Hamilton v Madden

[2007] ACTSC 89

KELLY HAMILTON v LEANNE MAREE MADDEN
[2007] ACTSC 89 (9 November 2007)

Limitation Act 1985, s 36
Court Procedures Rules 2006, r 74, r 443

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Nguyen v Jajic [2007] ACTSC 12 (23 February 2007)

No.  SC 833 of 2006

Judge:              Master Harper
Supreme Court of the ACT

Date:               9 November 2007

IN THE SUPREME COURT OF THE       )
  )          No.  SC 833 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:KELLY HAMILTON

Plaintiff

AND:LEANNE MAREE MADDEN

Defendant

ORDER

Judge:  Master Harper
Date:  9 November 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The period within which this action may be brought be extended until 3 November 2006.

2. The application by the defendant for summary judgment be dismissed.

3. The defendant’s costs of the plaintiff’s application for extension be the defendant’s costs in any event.

1. In this action for damages for personal injury arising out of a motor accident, the plaintiff applies for an extension of the limitation period. The defendant applies for summary judgment because the action was commenced out of time: the fate of that application will depend upon the outcome of the extension application by the plaintiff.

1. The cause of action arose on 6 June 2000. The action was not commenced until 3 November 2006, about five months out of time. Although there is contemporaneous corroboration that the plaintiff suffered an injury to the right knee in the collision (in the form of an x‑ray report dated 26 June 2000 addressed to her general practitioner), she did not seek legal advice about her entitlement to claim damages until 7 December 2004. On 16 October 2004 she was injured in another motor accident, and she consulted her solicitors, Maliganis Edwards Johnson, about the second accident. On taking instructions, they formed the view that she appeared to have a right to damages arising from the first accident also. NRMA Insurance Limited was fortuitously the third‑party insurer of both of the vehicles whose drivers had been apparently at fault in the two accidents.

1. The plaintiff’s solicitors had the plaintiff sign a completed personal injury claim notification form in relation to the 2000 accident, which they sent to NRMA on 8 December 2004. They then obtained a copy of the police report into the circumstances of the collision, and sent a copy of this to NRMA on 7 January 2005. The police report recorded that the accident had been a single vehicle collision a little after midnight on 7 June 2000. The defendant had been driving a Holden car on McLuckie Crescent, Banks, when she had lost control and struck a light pole and junction box. The plaintiff was a passenger. The accident was described as follows:

Vehicle parked behind another vehicle on battleaxe block of 40A McLuckie Crescent Banks. Owner Darren Ray Fitzpatrick… gave keys to Leanne Madden. Madden reversed vehicle out of driveway to allow the other vehicle to leave. Madden decides to drive around the block as she cannot…