Harris v Nominal Defendant

[2009] NSWDC 372

CITATION:	Harris v Nominal Defendant [2009] NSWDC 372
HEARING DATE(S):	15-16 December 2009
EX TEMPORE JUDGMENT DATE:	18 December 2009
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. The plaintiff is granted leave pursuant to s109 of the Motor Accidents Compensation Act 1999 to commence proceedings in respect of the accident that occurred on 12 or 13 August 2004. 2. The statement of claim is to be filed and served by no later than 4pm on 29 January 2010. 3. The plaintiff is to pay the defendant’s costs of the application. 4. The exhibits and the affidavit materials are returned.
CATCHWORDS:	LIMITATIONS - Full and satisfactory explanation - Significant delay - Uncertainty as to whether a motor vehicle involved - Delay during rehabilitation from serious injury - Intervention by plaintiff's parents of which are plaintiff unaware - Competence of the plaintiff - Inadequate and incorrect legal advice - Whether they are trial available.
LEGISLATION CITED:	Legal Profession Act 2004 Motor Accidents Compensation Act 1999 Workers Compensation Act 1987
CASES CITED:	Itek Graphix Pty Limited v Elliott 54 NSWLR 207 Salido v The Nominal Defendant 32 NSWLR 5254
PARTIES:	Sturat James Reginald Harris (Applicant) Nominal Defendant - NRMA Insurance - (Respondent)
FILE NUMBER(S):	168/09
COUNSEL:	I Roberts SC & A Black (For the Applicant) Campbell SC (For the Respondent)
SOLICITORS:	Michael Kreveld Legal (For the Applicant) Hunt & Hunt Lawyers (For the Respondent)

JUDGMENT

1 The plaintiff in this matter was injured in an accident that occurred on the night of 12 and 13 August 2004. He suffered serious injuries, including a head injury. He was initially not expected to recover from his injuries.

2 The plaintiff claimed that he was struck by a motor vehicle that was driven at him deliberately and that this was the cause of his injuries.

3 These claims were made when the plaintiff was recovering from the coma into which he lapsed after his injury. They were written in an exercise book at a time when he was unable to speak.

4 In December 2004, the plaintiff’s parents retained Attwood Marshall, Solicitors in Coolangatta. At the time that those solicitors were retained, they advised the plaintiff’s parents of the three year time limit that was imposed on the commencement of proceedings.

5 In February 2005, a claim form was lodged with the Nominal Defendant.

6 By late 2005, Attwood Marshall had formed the conclusion that the prospects of success in the claim were poor and they advised the plaintiff’s father to that effect.

7 In April 2006 the solicitors wrote to the plaintiff’s father reminding him of the three year time limit. The plaintiff’s parents decided not to pursue the matter further.

8 In February 2007 the plaintiff instructed Mr Flynn, solicitor.

9 In July 2007 an exemption certificate was issued through the CARS process. The plaintiff’s father said that at that point he understood that the three year limitation period was no longer a problem.

10 Also in July 2007, the…