Huckel v Norris

[2001] NSWCA 301

CITATION:	Huckel v Norris [2001] NSWCA 301
FILE NUMBER(S):	CA 40541/00
HEARING DATE(S):	30 August 2001
JUDGMENT DATE:	11 September 2001
PARTIES :	Jaycen Graeme Huckel - Appellant Karla Maree Norris - Respondent
JUDGMENT OF:	Priestley JA at 1; Meagher JA at 2; Stein JA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 50/00
LOWER COURT JUDICIAL OFFICER :	Tupman DCJ

COUNSEL:	J D Hislop QC - Appellant M G Gilbert - Respondent
SOLICITORS:	Thomas Laycock, Newcastle - Appellant Stacks - The Law Firm, Port Macquarie - Respondent
CATCHWORDS:	PROCEDURE - limitation period expired - leave to commence proceedings - s 52(4) Motor Accidents Act 1988 - whether prejudice would deprive defendant of fair trial - whether full and satisfactory explanation for delay - ND
LEGISLATION CITED:	Motor Accidents Act 1988
CASES CITED:	Holt v Wynter (2000) 49 NSWLR 128 House v The King (1936) 55 CLR 499
DECISION:	1) Appeal allowed with costs. 2) Respondent to receive a certificate under the Suitor's Fund Act, if otherwise entitled. 3) set aside orders of Tupman DCJ made on 24 June 2000 and, in lieu thereof, order that the respondent's Notice of Motion before the District Court be dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40541/00
DC 50/00

PRIESTLEY JA

MEAGHER JA

STEIN JA

Tuesday, 11 September 2001

Jaycen Graeme HUCKEL v Karla Maree NORRIS

The appellant was the driver of a motor bike involved in an accident on 7 October 1992, where the respondent, a pillion passenger, was thrown from the bike and landed on her back. Although she attended Dubbo Hospital following the accident, the respondent did not seek any medical treatment for her back condition until mid 1999. The Motor Accidents Act required that a notice of claim be served on the appellant’s third party insurer by 6 April 1993, however this did not occur until 24 September 1999. The limitation period to commence proceedings had expired on 7 April 1996. On 12 April 2000, the appellant filed a Notice of Motion in the District Court seeking leave to commence proceedings. This motion was upheld and leave granted on 27 June 2000. The appellant appeals against this grant of leave.

Per Stein JA, Meagher JA agreeing: (Priestley JA dissenting)

1 The applicable test on prejudice to a potential defendant arising out of delay is that stated by the majority in Holt v Wynter (2000) 49 NSWLR 128.

2 The prejudice occasioned to the appellant on the issue of quantum must have been significant. It is not possible to see how the appellant could possibly have a fair trial in the circumstances. The judge’s finding that the prejudice was not such as to prevent a fair trial cannot stand, as it involved a miscarriage of her discretion and an error in principle.

3 It is unnecessary to consider the issue of a full and satisfactory explanation for the delay in commencing proceedings as the appeal is determined on the prejudice issue.

Per Priestley JA dissenting:

1 It was open to Tupman DCJ to grant leave to the respondent to commence proceedings on the basis of the view she expressed about the facts of the case.

2 Her Honour did not make any error falling into the categories set down in House v King (1936) 55 CLR 499 as permitting appellate interference.

1 Appeal allowed with costs.

2 Respondent to receive a certificate under the Suitor’s Fund Act, if otherwise entitled.

3 Set aside orders of Tupman DCJ made on 24 June 2000 and, in lieu thereof, order that the respondent’s Notice of Motion before the District Court dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40541/00
DC 50/00

PRIESTLEY JA

MEAGHER JA

STEIN JA

Tuesday, 11 September 2001

Jaycen Graeme HUCKEL v Karla Maree NORRIS
Judgment

In this appeal against the decision by her Honour Judge Tupman to grant leave to the respondent to commence proceedings against the appellant, I have reached the view that it was open to her Honour to reach the conclusions she did on the basis of the view she expressed about the facts of the case.

2 In my opinion her Honour did not make any error falling into any of the categories described in House v The King (1936) 55 CLR 499 as permitting interference by an appellate court with the decision of a lower court in a case of the present kind. In the absence of any such error this court should in my opinion dismiss the appeal with costs.

I agree with Stein JA.

This is an appeal by leave of the Court against a decision granting leave to the respondent to commence proceedings under s 52(4) of the Motor Accidents Act 1988 (the Act).

5 The respondent was involved in an accident on 7 October 1992 when she was a pillion passenger on the appellant’s motor bike. When rounding a bend near Burrandong Dam, Wellington, the bike skidded in gravel, hit a pole and flipped over an embankment. She was thrown from the bike and landed on her back.

6 At the time the respondent was 16 ½ years old and in Year 11 at school. She was living with a girl friend in a flat in Dubbo until she completed HSC examinations at the end of 1993. In early 1994 she moved to Valla on the North Coast to live with her mother.

7 Following the accident she was admitted to Dubbo Hospital. She had an x-ray of her thoraco-lumbar spine and was discharged after a couple of hours. The hospital records were tendered. They indicate tenderness around the middle of her back. The x-ray report was normal. The x-rays have not been located and are unlikely to become available.

8 The appellant reported the accident to police about a month after the accident. The P4 form includes a notation of the respondent having a ‘sore back’. The form summarises the accident as follows:

Vehicle making a left turn when front wheel caught in deep gravel causing rider to loose (sic) control and fell to the roadway.

9 Police did not attend the scene of the accident at any time.

10 The Act required a notice of claim to be served on the appellant’s third party insurer by 6 April 1993. This did not occur until 24 September 1999. The limitation period to commence proceedings under the Act expired on 7 April 1996. It was not until 12 April 2000 that the respondent filed a Notice of Motion in the District Court seeking leave to commence proceedings. Her Honour upheld the motion and granted leave on 27 June 2000.

11 It appears that the respondent did not seek any medical treatment for her back condition until mid 1999. Her Honour accepted the respondent’s evidence of lower back pain and that she had elected to put up with it until 1999.

12 Her Honour found that the respondent had provided a full and satisfactory explanation for the delay as required by s 43 of the Act. She further found that the prejudice which the delay occasioned to the appellant was not such as would prevent a fair trial. These findings are contested by the appellant.

13 In my view, it is unnecessary to consider the issue of a full and satisfactory explanation because the appeal may be determined on the prejudice issue.

14 It may now be accepted that the applicable test is as stated by the majority in Holt v Wynter (2000) 49 NSWLR 128. Sheller JA, with whom Meagher JA, Handley JA and Brownie AJA agreed, said:

In my opinion, the effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. [at 147]

15 On the question of prejudice relating to damages and causation her Honour said:

It is true that in assessing what damages might flow to the plaintiff ultimately from any proceedings that might commence, the defendant’s doctors, and for that matter the Court, will be almost entirely dependent on accepting the history given by the plaintiff and the impact that that history has on the medical assessment of her condition over the years. It does not seem to me in that respect that this case is any different from many others that come before the Court in which the history given by a plaintiff is the basis on which an opinion is formed and given and whilst the delay as I said of itself will create some prejudice, it does not seem to me that that prejudice is such that would prevent the defendant from having a fair trial.

16 On the issue of liability the judge said:

It does not seem to me, now that they have managed to locate the defendant driver, that this operates as a significant prejudice in relation to assessing the issue of liability and the identity of any joint tortfeasors.

17 Her Honour found that the degree of prejudice was not such as would deprive the appellant of a fair trial.

18 The appellant submits that her Honour erred in principle in misdirecting herself on the question of prejudice. It is submitted that the undisputed facts must have lead to the conclusion that the appellant would suffer significant prejudice if leave was granted to commence the proceedings. The error was such as to satisfy the often repeated principles stated in House v The King (1936) 55 CLR 499 at 504 – 505.

19 The matters relied on by the appellant to establish prejudice included his deprivation of the opportunity to:

(i) obtain particulars of the injuries and disabilities of the respondent at an early stage.

(ii) obtain an early medical examination of the respondent.

(iii) intermittently examine the respondent.

(iv) obtain the x-rays from Dubbo Hospital.

(v) undertake early surveillance of the respondent’s activities.

(vi) check with employers as to respondent’s duties and how she coped.

(vii) to identify the medical practitioners consulted by the respondent from time to time to ascertain if there was any evidence of lower back complaints. In this regard, the respondent gave evidence that she had consulted doctors from time to time between the accident in 1992 and June 1999 but never mentioned her back pain.

20 The appellant relied on the evidence of Dr Black who was asked to answer a series of questions by the appellant’s solicitors in June 2000. His answers included the following:

(i) that the lack of documented complaints of low back pain made the question of correlation of the accident a speculative exercise and required a complete acceptance of the respondent’s history.

(ii) that he could not agree with any certainty that the respondent’s current claimed disabilities were as a result of the accident.

(iii)If the respondent had been examined closer to the accident, say by the end of 1995, the question of attributability would have been less speculative.

(iv) If the respondent had sought medical treatment in the few years following the accident because of on-going low back pain, CT and MRI scans could have been helpful in deciding whether the accident related to injury to the lower lumbar spine or some other cause.

21 The appellant also submits that he will suffer significant prejudice on the issue of liability. Her Honour rejected the proposition that this prejudice amounted to significant prejudice, particularly as the appellant had been located and the accident was reported to police by him. I do not see that her Honour erred in this conclusion.

22 However, it seems to me that irrespective of her Honour’s acceptance of the respondent’s explanation for the delay in seeking medical assistance for her back pain until June 1999, the prejudice occasioned to the appellant (on quantum) must have been significant. In that circumstance, I cannot see how the appellant could possibly have a fair trial on this aspect.

23 The judge’s conclusion that the prejudice was not such as to prevent the appellant receiving a fair trial cannot stand.

24 The finding involved a miscarriage of her discretion and an error in principle. On the evidence, it must be concluded that if leave was granted to the respondent to commence proceedings, the appellant would plainly suffer significant prejudice such that a fair trial could not be had.

25 I would propose the following orders:

1. Appeal allowed with costs.

2. Respondent to receive a certificate under the Suitor’s Fund Act , if otherwise entitled.

3. Set aside orders of Tupman DCJ made on 24 June 2000 and, in lieu thereof, order that the respondent’s Notice of Motion before the District Court be dismissed with costs.