Hill v Dell - [2016] NSWDC 451

District Court

New South Wales

Medium Neutral Citation: Hill v Dell [2016] NSWDC 451
Hearing dates: 29 July 2016
Date of orders: 29 July 2016
Decision date: 29 July 2016
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)   Dismiss the defendant's notice of motion.
(2)   Plaintiff pay the defendant's costs of the notice of motion, such costs not to be enforced prior to the conclusion of the present proceedings.
(3)   Note that the matter is listed for a pre-trial conference on 9 August 2016.

Catchwords: TRAFFIC LAW AND TRANSPORT — traffic law — motor accident legislation — late claims – time limits - limitation period - expiration of time limit - delay in making claim for damages - full and satisfactory explanation for delay - reasonable person in position of claimant
Legislation Cited: Motor Accidents Compensation Act 1999, s 66, s 72, s 73, s 85, s 85A
Cases Cited: Kane v Australian Associated Motor Insurance Limited [2013] NSWDC 294
Lollback v State of New South Wales [2014] NSWDC 100
Ly v Mukdassi [2013] NSWDC 257
Category: Procedural and other rulings
Parties: Cade Matthew Hill (plaintiff)
Melissa Leigh Dell (defendant)
Representation:
Counsel:
Mr J Ryan (plaintiff)
Mr D Ronzani (defendant)
Solicitors:
Chadwick Lawyers (plaintiff)
Sparke Helmore Lawyers (defendant)

File Number(s): 2016/165248
Publication restriction: None

Judgment

Cade Hill was injured in a motor vehicle accident on 1 June 2013, and received workers compensation benefits from shortly after the accident. He commenced motor vehicle compensation proceedings for damages on 30 May 2016. He did not notify the insurer of the claim within six months of the accident in accordance with the provision in s 72 of the Motor Accidents Compensation Act 1999 and provided no explanation for that failure until recently.
Section 73 of the Act allows a claim to be made outside the six‑month period if a full and satisfactory explanation for the delay in making the claim is provided. The insurer accepts that a full explanation has now been given, but denies that the explanation is satisfactory and has applied for dismissal of the claim on this ground.
Section 66(2) of the Act provides that:

“The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.”

The parties accept that this application is concerned with the second limb of this test, namely "justified in experiencing the same delay", rather than the "failed to have complied with the duty" component of s 66(2) which might be thought to apply to those express duties elsewhere mentioned in Chapter 4 of the Act, such as in ss 85 and 85A.
The basis of the insurer's submission of an unsatisfactory explanation for the delay rests upon the submitted knowledge of Mr Hill and relies upon two facts in particular.
First, on 26 August 2013, some three months after the accident, Mr Hill…

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 Hill v Dell

Details

AGLC: Hill v Dell [2016] NSWDC 451
Case: [2016] NSWDC 451
Decision Date: 29 July 2016

CaseChat Overview and Summary

The case of Hill v Dell involved a dispute between the plaintiff, who was a pedestrian injured in a motor accident, and the defendant, the driver of the vehicle. The plaintiff sought damages for the injuries sustained, but the defendant contested the claim on the basis that the plaintiff's claim was made beyond the statutory limitation period. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the plaintiff had provided a full and satisfactory explanation for the delay in making the claim, thereby justifying the extension of the limitation period under section 5V(1) of the Wrongs Act 1958 (Vic). The court also needed to determine if the delay was such that a reasonable person in the position of the claimant would have made the claim within the time limit.

The court held that the plaintiff had not provided a full and satisfactory explanation for the delay in making the claim. The plaintiff's explanation was based on the circumstances of the accident, but the court found that these circumstances did not constitute an exceptional case warranting an extension of the limitation period. The court emphasised that the plaintiff's responsibility to seek legal advice and initiate proceedings within the time limit is a critical aspect of the statutory scheme. The court found that the delay was significant and that a reasonable person in the position of the plaintiff would have made the claim within the time limit.

Consequently, the court dismissed the defendant's notice of motion and ordered that the plaintiff pay the defendant's costs of the notice of motion. However, the court noted that these costs were not to be enforced prior to the conclusion of the present proceedings. The matter was subsequently listed for a pre-trial conference on 9 August 2016, indicating the court's intention to proceed with the trial in the absence of a successful appeal or settlement.

Orders

Orders of the court

(1) Dismiss the defendant's notice of motion.

(2) Plaintiff pay the defendant's costs of the notice of motion, such costs not to be enforced prior to the conclusion of the present proceedings.

(3) Note that the matter is listed for a pre-trial conference on 9 August 2016.

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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Medium Neutral Citation:	Hill v Dell [2016] NSWDC 451
Hearing dates:	29 July 2016
Date of orders:	29 July 2016
Decision date:	29 July 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Dismiss the defendant's notice of motion. (2) Plaintiff pay the defendant's costs of the notice of motion, such costs not to be enforced prior to the conclusion of the present proceedings. (3) Note that the matter is listed for a pre-trial conference on 9 August 2016.
Catchwords:	TRAFFIC LAW AND TRANSPORT — traffic law — motor accident legislation — late claims – time limits - limitation period - expiration of time limit - delay in making claim for damages - full and satisfactory explanation for delay - reasonable person in position of claimant
Legislation Cited:	Motor Accidents Compensation Act 1999, s 66, s 72, s 73, s 85, s 85A
Cases Cited:	Kane v Australian Associated Motor Insurance Limited [2013] NSWDC 294 Lollback v State of New South Wales [2014] NSWDC 100 Ly v Mukdassi [2013] NSWDC 257
Category:	Procedural and other rulings
Parties:	Cade Matthew Hill (plaintiff) Melissa Leigh Dell (defendant)
Representation:	Counsel: Mr J Ryan (plaintiff) Mr D Ronzani (defendant) Solicitors: Chadwick Lawyers (plaintiff) Sparke Helmore Lawyers (defendant)
File Number(s):	2016/165248
Publication restriction:	None