Smallwood v Broome

Case [2019] NSWDC 393


District Court


New South Wales

Medium Neutral Citation: Smallwood v Broome [2019] NSWDC 393
Hearing dates: 12 July 2019
Date of orders: 09 August 2019
Decision date: 09 August 2019
Jurisdiction:Civil
Before: Judge Levy SC
Decision:

1. Pursuant to s 109(1) of the MAC Act, the plaintiff is granted leave to institute and maintain these already commenced proceedings claiming damages as compensation for the injuries she sustained in a motor vehicle accident on 21 October 2011;

 

2. The defendant is to pay the plaintiff’s costs of the plaintiff’s notice of motion filed on 29 April 2019 on the ordinary basis unless otherwise ordered;

 

3. The exhibits may be returned;

 4. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords: LIMITATION OF ACTIONS – negligence – motor vehicle accident – claim for damages for alleged negligence – whether delay in commencing proceedings has been explained fully and satisfactorily and whether damages threshold stipulated by s 109(3)(b) of the Motor Accidents Compensation Act 1999 (NSW) has been met
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Motor Accidents Compensation Act 1999 (NSW), s 66, s 81, s 92, s 109
Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Dijakovic v Perez [2015] NSWCA 174
Karambelas v Zakvic (No 2) [2014] NSWCA 433
Nowlan v Marsland Transport Pty Ltd (2001) NSWLR 116; [2001] NSWCA 346
Ren v Jiang [2014] NSWCA 1
Sinclair v Darwich [2010] NSWCA 195
Smith v Grant [2006] NSWCA 244
White v Overland [2001] FCA 1333
Category:Procedural and other rulings
Parties: Harriet Smallwood (Plaintiff/Applicant)
David Broome (Defendant/Respondent)
Representation:

Counsel:
Mr W Fitzsimmons (Plaintiff)
Mr B Wilson (Defendant)

  Solicitors:
Stacks Goudkamp (Plaintiff)
Sparke Helmore (Defendant)
File Number(s): 2018/320224
Publication restriction: None

Judgment

Table of Contents

Contested notice of motion

[1] – [4]

Evidence relied upon by the parties

[5] – [9]

Accident circumstances and sequelae

[10] – [11]

Reasons for rulings made at the hearing

[12] – [22]

Refusal of defendant’s application to cross-examine deponents

[12] – [18]

Refusal of informal application by defendant for a split trial

[19] – [22]

Legislation

[23] – [25]

Applicable legal principles

[26] – [29]

Factual chronology of events

[30]

Facts emerging from affidavit evidence

[31] – [40]

Plaintiff’s affidavit

[32]

Plaintiff’s mother’s affidavit

[33] – [34]

Plaintiff’s solicitor’s affidavit

[35] – [39]

Defendant’s solicitor’s affidavit

[40]

Other relevant circumstances

[41] – [48]

Consideration

[49] – [61]

Whether proffered explanation is full

[50] – [55]

Whether proffered explanation is satisfactory

[56] – [58]

Whether s 109(3)(b) threshold is satisfied

[59] – [61]

Disposition

[62]

Costs

[63]

Orders

[64]

Contested notice of motion

  1. These reasons concern the determination of a contested notice of motion filed on 29 April 2019, by the plaintiff, Ms Harriet Smallwood, now aged 24 years and a resident of the United Kingdom, in proceedings in which…

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AGLC
Smallwood v Broome [2019] NSWDC 393
Case
[2019] NSWDC 393
Decision Date

CaseChat Overview and Summary

The plaintiff, Smallwood, brought an action against the defendant, Broome, seeking compensation for injuries sustained in a motor vehicle accident that occurred on 21 October 2011. The case was heard in the Supreme Court of New South Wales. Broome argued that Smallwood's claim was time-barred, as the statutory period for commencing such proceedings had expired, and that even if the claim was not time-barred, the damages sought did not meet the threshold of $10,000 stipulated by section 109(3)(b) of the Motor Accidents Compensation Act 1999 (NSW).

The court had to determine whether Smallwood's delay in commencing proceedings was satisfactorily explained and whether the damages claimed met the stipulated threshold. Broome contended that Smallwood had not provided a satisfactory explanation for the delay, and even if the delay was excused, the damages did not meet the required threshold. Smallwood argued that the delay was due to her mental health issues that arose from the accident and that the damages claimed were sufficient to meet the threshold. The court found that Smallwood's explanation for the delay was satisfactory and that the damages claimed met the threshold.

The court granted Smallwood leave to institute and maintain the proceedings, finding that the delay was satisfactorily explained and that the damages claimed met the threshold. The court ordered that the defendant pay the plaintiff's costs of the notice of motion on the ordinary basis unless otherwise ordered. The exhibits were to be returned, and liberty to apply on seven days' notice if further or other orders were required.

Orders

Orders of the court

1. Pursuant to s 109(1) of the MAC Act, the plaintiff is granted leave to institute and maintain these already commenced proceedings claiming damages as compensation for the injuries she sustained in a motor vehicle accident on 21 October 2011;

2. The defendant is to pay the plaintiff’s costs of the plaintiff’s notice of motion filed on 29 April 2019 on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

4. Liberty to apply on 7 days’ notice if further or other orders are required.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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