Leibeck v RMQ Contracting Pty Ltd

CITATION:	Leibeck v RMQ Contracting Pty Ltd [2008] NSWDC 239
HEARING DATE(S):	26 September, 2008
JUDGMENT DATE:	2 October 2008
JURISDICTION:	District Court Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Plaintiff is granted leave nunc pro tunc to extend the time for filing his Statement of Claim to 7 March 2008. 2. Defendant’s motion to dismiss Plaintiff’s claim is dismissed. 3. Defendant to pay the Plaintiff’s costs in respect of each motion.
CATCHWORDS:	Procedural motion – under Motor Accidents Act, 1999 to extend time for filing Statement of Claim – dependent on facts. - Expert evidence – whether Plaintiff is required at an early stage to demonstrate through expert evidence a viable claim in a motor accident case.
LEGISLATION CITED:	Motor Accidents Compensation Act, 1999 s.66(2); s.92(1)(a); s.108; s.109
CASES CITED:	Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538 Clark v Ryan (1960) 10 CLR 483 McNamara v Fitzgibbon [2005] NSWCA 274
PARTIES:	Ronald Allen Leibeck (Plaintiff) RMQ Contracting Pty Ltd (Defendant)
FILE NUMBER(S):	0819 of 2008
COUNSEL:	Mr A McSpedden (Plaintiff) Mr G Smith (Defendant)
SOLICITORS:	Bell Lawyers (Plaintiff) TL Lawyers (Defendants)

JUDGMENT

Introduction

1. Two matters arise for determination. The Plaintiff’s Notice of Motion seeks an order nunc pro tunc seeking leave to validate the proceedings already commenced on 7 March 2008 contrary to the requirements of the scheme of the Motor Accidents Compensation Act, 1999. The Plaintiff seeks such leave because of the unusual circumstances in which his claim has arisen. The Defendant’s Notice of Motion seeks dismissal of the Plaintiff’s proceedings for non-compliance with the requirements of Section 109(2) of the Act.

Facts and chronology of events

Facts giving rise to awareness of a right to claim

2. The Plaintiff commenced proceedings against his employer on 7 March 2008 in respect of a work related injury he claims to have sustained on 31 August 2004 whilst driving his employer’s prime mover truck. The Plaintiff claims that the driver’s seat, the shock absorbers and suspension and/or other components of the prime mover were unsafe, defective and unfit for the intended purpose and that these conditions caused him to suffer a back injury consequent upon him driving the truck over a pothole or object on the roadway which he was unable to avoid.

3. Since his injury the Plaintiff has been in receipt of continuous workers’ compensation payments. On 17 June 2007, in a conference with counsel, he became aware for the first time that his injury could give rise to a potential claim under the Motor Accidents Compensation Act, 1999.

Chronology

4. Thereafter the following events occurred:

(a) On 20 June 2007 a Motor Accidents Act Personal Injury Claim Form was completed and signed by him.

(b) On 20 June 2007 his treating doctor completed and signed a Medical Certificate.

(c) On 6 July 2007 he completed a Statutory Declaration to explain the delay in lodging the Motor Accidents Act Personal Injury Claim Form.

(d) On 7 July 2007 a copy of…