Rita Harika v Stanley Tupaea

Reported Decision: 58 NSWLR 675

Court of Appeal

CITATION:	RITA HARIKA v STANLEY TUPAEA [2003] NSWCA 332
HEARING DATE(S):	17 October 2003
JUDGMENT DATE:	11 November 2003
JUDGMENT OF:	Mason P at 1; Tobias JA at 48; Foster AJA at 49
DECISION:	Appeal upheld
CATCHWORDS:	Negligence - motor accident - damages - Motor Accidents Act 1988, s43A - late claim - whether full and satisfactory explanation - whether court satisfied that damages likely to be awarded did not pass threshold - "likely". (D)
PARTIES :	RITA HARIKA v STANLEY TUPAEA
FILE NUMBER(S):	CA 41234/2002
COUNSEL:	Appellant: K P Rewell SC / A Capelin Respondent: M Elkaim SC
SOLICITORS:	Appellant: Carroll & O'Dea Respondent: Abbott Tout

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1685/02
LOWER COURT JUDICIAL OFFICER :	Karpin DCJ

CA 41234 of 2002

MASON P
TOBIAS JA
FOSTER AJA

Tuesday 11 November 2003

RITA HARIKA v STANLEY TUPAEA

The appellant was a passenger in a stationary car that was hit from behind by a car driven by the respondent. She suffered soft tissue injuries.

The claim on the respondent’s insurer was not made until 15 months after the accident. Accordingly, under s43A of the Motor Accidents Act 1988, the respondent was entitled to have the proceedings dismissed if he satisfied the court

(1) that the appellant did not provide a full and satisfactory explanation for the delay in making her late claim, and;

(2) that the total damages of all kinds likely to be awarded if the claim succeeded was less than 10% of the maximum that could be awarded for non-economic loss at the date of the accident.

HELD per Mason P (Tobias JA and Foster AJA agreeing), upholding the appeal:

1) Karpin DCJ was not properly satisfied as to the deficiencies in the appellant’s explanation. [17]

(a) The decision of the trial judge involved specific factual errors, questionable inferences from primary facts and omission to have regard to a critical matter. [11] - [16]

2) The respondent has not satisfied the Court that the appellant’s explanation was anything other than full and satisfactory. [18]

(a) The appellant gave a full account in that she placed the whole picture before the court. The respondent has not satisfied the court that a reasonable person in the appellant’s position would have acted otherwise than she did. [20]

3) The respondent has not satisfied the court that the total damages of all kinds “likely to be awarded to the claimant if the claim succeeds” are less than $27,300. [23]-[24], [45]-[46]

(a) The word “likely” should be construed in context. In this case, where the court is engaged in a predictive exercise and not the trial of the claim, the word is to mean “a real and not a remote chance or possibility, regardless of whether it is less or more than 50 per cent”: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 346-7 per Deane J, Secretary, Department of Employment, Education,…