Grace v Dennis

[2019] NSWDC 421

District Court

New South Wales

Medium Neutral Citation:

Grace v Dennis [2019] NSWDC 421

Hearing dates:

12 & 13 August

Date of orders:

15 August 2019

Decision date:

15 August 2019

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff is granted leave to file a statement of claim to institute and maintain the proceedings claiming damages as compensation for the injuries she sustained in a motor vehicle accident on 6 February 2012;

 

2. The proposed statement of claim the subject of Order (1) above is to be filed within 14 days of today’s date;

 

3. The defendant is to pay the plaintiff’s costs of the plaintiff’s summons filed on 9 May 2019 on the ordinary basis unless otherwise ordered;

 

4. The exhibits may be returned;

 5. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

LIMITATION OF ACTIONS – negligence – motor vehicle accident – claim for damages – whether delay in commencing proceedings has been fully and satisfactorily explained – s 109(3)(a) of the Motor Accidents Compensation Act 1999 (NSW)

Legislation Cited:

Limitation Act 1969 (NSW)
Limitation of Actions Act 1974 (Qld)
Motor Accidents Compensation Act 1999 (NSW), s 66(2), s 81, s 109

Cases Cited:

Djakovic v Perez [2015] NSWCA 174
Eades v Gunestepe [2012] NSWCA 204
Karambelas v Zakvic (No 2) [2014] NSWCA 433
Smith v Grant [2006] NSWCA 244
Walker v Howard [2009] NSWCA 408

Category:

Procedural and other rulings

Parties:

Bernadette Sheila Grace (Plaintiff)
Michael Thomas Dennis (Defendant)

Representation:

Counsel:
Mr L Brazel (Plaintiff)
Mr W Reynolds (Defendant)

  Solicitors:
Somerville Laundry Lomax (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2019/145893

Publication restriction:

None

Judgment

Table of Contents

Summons	[1]
Background	[2]
Issues for determination	[3] – [6]
Evidence	[7] – [11]
Legislation	[12] – [13]
Applicable legal principles	[14] – [24]
Factual circumstances of the plaintiff	[25] – [63]
Medical assessment chronology	[64] – [93]
Defendant’s evidentiary material	[94] – [98]
Submissions of parties	[99] – [112]
Determination	[113] – [132]
Whether the plaintiff’s explanation for the delay is full	[114] – [130]
Whether the plaintiff’s explanation is satisfactory	[131]
Conclusion concerning plaintiff’s explanation for delay	[132]
Disposition	[133]
Costs	[134]
Orders	[135]

Summons

1. The plaintiff, Bernadette Grace, filed this summons on 9 May 2019, seeking leave, pursuant to s 109(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”), to commence proceedings otherwise out-of-time, against the defendant, Michael Dennis, in respect of injuries received in a motor vehicle accident on 6 February 2012.

Background

2. At about 2.55pm on Monday, 6 February 2012, the defendant drove his vehicle into the rear of the plaintiff’s stationary vehicle. In that collision, the plaintiff sustained musculo-ligamentous injuries to the neck, shoulders, lower back, bruising to her forehead, back of the head, her chest and to both knees. As a result she has developed significant physical and psychological disabilities. Her background circumstances, and those disabilities, have…