Draca v Silva - [2010] NSWDC 138

CITATION: Draca v Silva [2010] NSWDC 138

HEARING DATE(S): 19/5/10, 20/5/10

JUDGMENT DATE:
4 June 2010

JURISDICTION: CIVIL JURISDICTION

JUDGMENT OF: Finnane QC DCJ

DECISION: Leave to commence proceedings granted. Proceedings must be commenced within 1 month.
I order the plaintiff to pay the defendant’s costs of this application and I order that no steps be taken by the defendant to enforce the costs order until the conclusion of the litigation.

CATCHWORDS: LIMITATION OF ACTIONS - s 109 Motor Accidents Compensation Act 1999 (NSW) - whether leave should be granted - whether full and satisfactory explanation for delay - whether total damages likely to be awarded to plaintiff not less than 25% of the maximum amount that could be awarded for non-economic loss -

LEGISLATION CITED: Motor Accidents Compensation Act 1999 (NSW), s 81 s 109
Road Rules 2008-reg 149

CASES CITED: Reeves v Reeves [2002] NSWCCA 181
Walker v Howard [2009] NSWCA 408

PARTIES: Slavko DRACA (Plaintiff)
Carlos SILVA (Defendant)

FILE NUMBER(S): 2010/100604

COUNSEL: Mr P Frame (Plaintiff)
Mr J Gracie (Defendant)

SOLICITORS: NSW Compensation Lawyers (Plaintiff)
Vardanega Roberts Solicitors (Defendant)

1. HIS HONOUR: The plaintiff claimed that he was injured in a motor vehicle accident which occurred on 28 June 2006. His claim is that he was travelling in a lane on a road. The lane came to an end and he sought to move over to his right into the next lane. However, a truck driven by the defendant was in that lane and it struck his vehicle as he was moving his vehicle into the middle lane. It struck his vehicle on the right hand side of the car striking the mirror and the front mudguard area.

2. On 3 July 2006, he gave instructions to his solicitor to commence proceedings; and on 7 July 2006, his solicitor commenced those proceedings by lodging a claim form. On 11 December 2006, the insurance company acting for the defendant denied liability pursuant to section 81 of the Motor Accidents Compensation Act 1999 (NSW) (the Act). On 30 March 2007, the solicitor sent to the Motor Accidents Authority an application for exemption; and on 12 April, the Authority issued a certificate of exemption pursuant to section 92 of the Act. Once that certificate is granted, the person to whom it is granted is entitled to bring proceedings in court.

3. However, it was necessary for the plaintiff to get a certificate from the Motor Accidents Medical Assessment Service (MMASS).

4. In order to obtain damages for normal economic loss, the plaintiff had to obtain a certificate that his degree of permanent impairment as a result of the injury was greater than 10%. If that certificate cannot be obtained, a plaintiff cannot obtain any damages from a court for non-economic loss.

5. The plaintiff is an Australian citizen who was born in Serbia. It would appear that his knowledge of English is very limited and all his evidence given before me was given with the assistance of an interpreter. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Draca v Silva

Details

AGLC: Draca v Silva [2010] NSWDC 138
Case: [2010] NSWDC 138
Decision Date: 4 June 2010

CaseChat Overview and Summary

The case of Draca v Silva involved a claim for motor vehicle accident compensation under the Motor Accidents Compensation Act 1999 (NSW). Draca, the plaintiff, sought to bring proceedings against Silva, the defendant, for damages resulting from a car accident. The primary issue was whether leave should be granted for Draca to commence the proceedings given the significant delay in initiating the action. The court also had to determine if Draca had provided a full and satisfactory explanation for the delay and if the total damages likely to be awarded were not less than 25% of the maximum amount that could be awarded for non-economic loss.

The court considered the statutory provisions of section 109 of the Motor Accidents Compensation Act 1999 (NSW) which provides that proceedings must be commenced within a specified period. The court examined the circumstances surrounding the delay and the adequacy of the explanation provided by Draca. The court also assessed whether the total damages claimed by Draca were likely to be at least 25% of the maximum amount allowable for non-economic loss. The court found that Draca had provided a reasonable explanation for the delay and that the total damages likely to be awarded were indeed not less than the statutory threshold.

Based on the evidence and arguments presented, the court concluded that leave should be granted to Draca to commence the proceedings. The court ordered that the proceedings must be initiated within one month. Additionally, the court ordered that Draca pay Silva’s costs associated with the application but deferred enforcement of this order until the conclusion of the litigation. This decision ensures that Draca can pursue the claim while also addressing the financial implications of the delay for Silva.

Orders

Orders of the court

Leave to commence proceedings granted. Proceedings must be commenced within 1 month.

I order the plaintiff to pay the defendant’s costs of this application and I order that no steps be taken by the defendant to enforce the costs order until the conclusion of the litigation.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Draca v Silva [2010] NSWDC 138
HEARING DATE(S):	19/5/10, 20/5/10
JUDGMENT DATE:	4 June 2010
JURISDICTION:	CIVIL JURISDICTION
JUDGMENT OF:	Finnane QC DCJ
DECISION:	Leave to commence proceedings granted. Proceedings must be commenced within 1 month. I order the plaintiff to pay the defendant’s costs of this application and I order that no steps be taken by the defendant to enforce the costs order until the conclusion of the litigation.
CATCHWORDS:	LIMITATION OF ACTIONS - s 109 Motor Accidents Compensation Act 1999 (NSW) - whether leave should be granted - whether full and satisfactory explanation for delay - whether total damages likely to be awarded to plaintiff not less than 25% of the maximum amount that could be awarded for non-economic loss -
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 (NSW), s 81 s 109 Road Rules 2008-reg 149
CASES CITED:	Reeves v Reeves [2002] NSWCCA 181 Walker v Howard [2009] NSWCA 408
PARTIES:	Slavko DRACA (Plaintiff) Carlos SILVA (Defendant)
FILE NUMBER(S):	2010/100604
COUNSEL:	Mr P Frame (Plaintiff) Mr J Gracie (Defendant)
SOLICITORS:	NSW Compensation Lawyers (Plaintiff) Vardanega Roberts Solicitors (Defendant)