Kinzett v McCourt

The dispute in *Kinzett v McCourt* concerned the application of limitation periods to a claim involving personal injury and the joinder of an insurer. The plaintiff, Ms Kinzett, sought to bring proceedings against the defendant, Mr McCourt, for personal injuries allegedly sustained as a result of his negligence. The case came before the Court of Appeal of New South Wales, with Spigelman CJ, Mason P, Priestley, Meagher and Handley JJA presiding.

The central legal issues before the Court of Appeal were whether the plaintiff's claim was out of time under the *Limitation Act 1969* (NSW), and if so, whether an extension of time should be granted. Specifically, the court had to consider the provisions relating to the plaintiff's awareness of the connection between their injury and the defendant's conduct, and when proceedings might reasonably have been instituted. Further, the court examined the application of the statutory charge provisions under s 6 of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW), which allows a plaintiff to join an insurer directly, and whether the limitation periods under the *Limitation Act 1969* applied to the insurer in the same way as they would to the insured. This involved determining when time commenced to run in favour of the insurer and when it ceased to run against them, and whether leave to proceed against the insurer was a condition precedent to the commencement of the action.

The Court of Appeal reasoned that the plaintiff's delay in instituting proceedings was not unreasonable or dilatory, particularly given the plaintiff's initial unawareness of the identity of the party responsible for their injuries. The court applied the principles governing the exercise of discretion under s 60F of the *Limitation Act 1969* to grant an extension of time. Regarding the insurer's liability, the court determined that the insurer, by virtue of s 6 of the *Law Reform (Miscellaneous Provisions) Act 1946*, stepped into the shoes of the insured and was subject to the same rights and liabilities. Consequently, the limitation periods that applied to the insured also applied to the insurer, and the insurer could not rely on separate limitation periods commencing from a later date.

The appeal was allowed.