Rita Harika v Stanley Tupaea

The proceeding concerned an appeal by Rita Harika against a decision of the District Court in a motor accident claim against Stanley Tupaea. The central dispute revolved around whether Ms. Harika had provided a "full and satisfactory explanation" for the late lodgement of her claim, as required by section 43A of the *Motor Accidents Act 1988* (NSW), and whether the court was satisfied that the damages likely to be awarded would not pass the relevant threshold. The appeal was heard by Mason P, Tobias JA, and Foster AJA.

The primary legal issues before the Court of Appeal were: firstly, whether the District Court judge erred in finding that Ms. Harika had not provided a full and satisfactory explanation for the delay in lodging her claim; and secondly, whether the District Court judge erred in concluding that it was not satisfied that the damages likely to be awarded would exceed the threshold stipulated by section 43A of the *Motor Accidents Act 1988*. The interpretation of the word "likely" in the context of assessing the probability of damages exceeding the threshold was also a key consideration.

The Court of Appeal found that the District Court judge had misconstrued the nature of the inquiry required by section 43A. The judge had impermissibly conflated the assessment of whether damages were "likely" to exceed the threshold with a final determination of the quantum of damages. The Court of Appeal held that the correct approach was to consider whether there was a real or substantial chance that the damages would exceed the threshold, rather than requiring a high degree of certainty. Furthermore, the Court of Appeal determined that the explanation for the delay, while not perfect, was sufficiently full and satisfactory in the circumstances.

Consequently, the appeal was upheld.