Garling v Wiliams
[2007] NSWDC 22
•16 February 2007
CITATION: GARLING v WILLIAMS [2007] NSWDC 22 HEARING DATE(S): 15 February 2007 EX TEMPORE JUDGMENT DATE: 16 February 2007 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ DECISION: 1. The statement of claim is dismissed 2. The plaintiff is to pay the defendant’s costs of the proceedings, other than those directed to locating the defendant; 3. The affidavits and the exhibits are returned. CATCHWORDS: Proceedings out of time - futility of granting leave LEGISLATION CITED: Motor Accidents Compensation Act 1999 PARTIES: Ann Marise GARLING v Paul WILLIAMS FILE NUMBER(S): Newcastle 169/06 COUNSEL: P J Kirby - Plaintiff
P R Cummings - DefendantSOLICITORS: King Street Lawyers - Plaintiff
Sparke Helmore - Defendant
JUDGMENT
HER HONOUR
1 This matter comes before the court by motion filed on behalf of the defendant seeking an order dismissing the statement of claim filed for the plaintiff, Ann Marise Garling, on 26 April 2006.
2 The basis for the application is that the statement of claim relates to a motor vehicle accident that occurred on 14 April 2002 and that therefore the leave of the court is required to commence the proceedings pursuant to section 109(1) of the Motor Accidents Compensation Act 1999.
3 It was conceded by the plaintiff that leave was required and the parties agreed that I should deal with the issue of whether leave should be granted before determining the application.
4 A brief chronology is as follows.
5 The motor vehicle accident occurred on 14 April 2002. The plaintiff sought legal advice from Bale Boshev Solicitors in the same month. In September 2004 she consulted King Street Lawyers and a claim form was lodged after that consultation with NRMA. After initially rejecting the explanation for the delay in lodging the claim, the insurer accepted it as adequate.
6 In July 2005 the claim was exempted from the processes of the Claims Assessment Resolution Service operated by the Motor Accidents Authority. A statement of claim was filed on 26 April 2006.
7 The defendant did not claim any specific prejudice but relied upon the general prejudice occasioned by the delay in the commencement of the proceedings. The defendant did oppose the application to extend time, submitting that there had been no adequate explanation for the delay in the commencement of proceedings, that the claim had no merit and that the plaintiff, if successful, had not established that she would meet the threshold requirements of s 109(3)(b) of the Act. The relevant figure at the date of the motor vehicle accident was $77,250.
8 On the issue of the adequacy of the explanation, the plaintiff stated that her contact with Bale Boshev in April 2002 was by telephone. She was informed that, having run in front of a motor vehicle, she could not claim. She was also informed that her injuries as a result of the accident needed to be serious. She said that between April 2002 and August 2004 she understood this to mean that an injury in the nature of total permanent loss of the use of a limb or loss of a limb was necessary and that therefore she had no case.
9 When she consulted a solicitor in September 2004 on an unrelated matter at King Street Lawyers, the issue of the motor vehicle accident was discussed. She was referred to her current solicitor at that time and the processes necessary to pursue her claim were put into place.
10 The defendant submitted that this explanation was not credible, having regard to evidence of extensive medical investigations of the plaintiff after the accident, including x-rays and CT and MRI scans. It was argued that on this basis the plaintiff would quite clearly have been aware that she was presenting to doctors with complaints of serious injury.
11 It was suggested that the real reason she had not commenced proceedings was because she did not consider the defendant to be liable for any injury that she suffered.
12 The medical materials in evidence indicate that the plaintiff’s perception of the seriousness of her condition has increased over time. On the evening of the accident she attended at the Mater Hospital and was examined. The hospital records indicate that there was no finding of injury and they noted that no bruising was seen.
13 On 8 May 2002 she was examined by Dr Neil, a neurosurgical registrar at the John Hunter Hospital. She was x-rayed and a CT scan of her neck was taken. Dr Neil reported no abnormality on examination and a finding of no neurosurgical cause for her complaints following radiological investigations.
14 Dr Pratt was the plaintiff’s general practitioner. On 31 May 2006 he reported a number of injuries said to have been consistent with the accident. This was not supported by evidence of specialists to whom he referred the plaintiff.
15 One of those, Dr Watson, reported in February 2003 unusual musculoskeletal irritability of long standing, which he said had been exacerbated, but not caused, by the motor vehicle accident.
16 As to the merits of the claim, the plaintiff conceded that she crossed the road contrary to a flashing or red light at a pedestrian crossing. She said she rushed onto the road to get her dog from the opposite corner after standing at the traffic lights for some minutes.
17 Her allegation of negligence against the driver was that he drove forward to turn left at a time when he was looking to his right. She agreed that she had been aware that the driver was looking to his right, but that she rushed onto the road because she thought that she could just make it.
18 As noted, the threshold requirement of section 109(3)(b) of the Act requires the plaintiff to establish that she is likely to be awarded more than $77,250 if her claim succeeds.
19 For the plaintiff it was argued that medical evidence indicated that she had suffered an injury sufficiently serious to interfere with her income earning capacity.
20 Overarching all of the medical material relating to the plaintiff’s physical health were reports directed at her mental health, both before and since the accident. Material from Dr Wade, the plaintiff’s treating psychiatrist, indicated a significant pre-accident mental illness, interfering with both her quality of life and her income earning capacity.
21 The plaintiff stated that she had employment prior to the accident, but on the evidence, this appeared to be intermittent, and she agreed that she had not been employed in the twelve month period prior to the motor vehicle accident. This, according to Dr Wade, was consistent with her mental illness, which allowed her to work only when she was functioning well.
22 Since the accident, the evidence indicated that the intermittent pattern of employment has continued.
23 There are no tax returns in evidence to establish the plaintiff’s pre and post-accident earnings.
24 The indication from Dr Wade’s reports was that the plaintiff’s mental illness is long term and, as such, it is likely to affect her employment prospects long term.
25 Thus, even if I were to accept the plaintiff’s explanation as satisfactory on the basis that her mental health affected her capacity to appreciate that her condition was sufficiently serious, it is apparent that she faces considerable difficulties in bringing her claim.
26 I acknowledge that it is not my function on this application to decide the case. However, such evidence as I have suggests the following problems:
1. Establishing that the plaintiff’s current physical and mental condition is a consequence of the accident, having regard to the apparent relatively minor impact upon her by the defendant’s vehicle, her pre-existing medical history, both as to her physical and mental condition, and the absence of any evidence of finding of injury at the time of the accident.
2. Establishing that the accident was the result of negligence by the defendant and not the result of her own negligence. Even if she were to succeed in establishing an element of negligence by the defendant, in my view, a significant degree of contributory negligence would inevitably be found against her.
3. Establishing that her already limited income earning capacity has been further diminished as a result of the injuries from the accident.
27 Applying a likely finding in contributory negligence to what I consider to be prospects of an award of modest sums in damages, I could not be satisfied that the plaintiff has prospects of recovering more than 25 per cent of the maximum, that is, more than $77,250. On this basis, the application succeeds and the statement of claim is dismissed.
28 The statement of claim is dismissed.
29 The plaintiff is to pay the defendant’s costs of the proceedings, other than those directed to locating the defendant.
30 The affidavits and the exhibits are returned.
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