Sweetman v Ritter - [2014] NSWDC 110

District Court

New South Wales

Medium Neutral Citation: Sweetman v Ritter [2014] NSWDC 110
Hearing dates: 28 February and 22 May 2014
Decision date: 23 May 2014
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1) Leave be granted pursuant to s 109 of the Motor Accidents Compensation Act 1999 for leave to proceed.
(2) Leave to the parties to file and serve written submissions on costs within 14 days (maximum 5 pages).
(3) On receipt of those submissions, I will determine whether the matter will be re-listed for further argument on costs or for orders.

Catchwords: MOTOR ACCIDENT COMPENSATION - late claim - limitation period - expiration of time limit - delay in making claim for damages - full and satisfactory explanation for delay - reasonable person in position of claimant - statutory minimum damages
Legislation Cited: Motor Accidents Compensation Act 1999, s 5, s 6, s 62, s 66, s 78, s 82, s 89A, s 89C, s 109, s 110
Cases Cited: ASB-Tech Services Pty Ltd (In Liquidation) v Doeland & Anor [2003] NSWCA 167
Eades v Gunestepe [2012] NSWCA 204
Khoury v Linfox Australia Pty Ltd [2006] NSWCA 51
Smith v Grant [2006] NSWCA 244
Walker v Howard [2009] NSWCA 408
Category: Principal judgment
Parties: Colleen Sweetman (plaintiff)
Jarrod Martin Ritter (defendant)
Representation: Mr R Quickenden (plaintiff)
Mr J Turnbull (defendant)
Nash Allen Williams & Wotton (plaintiff)
Sparke Helmore Lawyers (defendant)

File Number(s): 2014/39875
Publication restriction: None

Judgment

INTRODUCTION

Colleen Sweetman was injured in a motor vehicle accident on 8 January 2007. She filed a summons on 5 February 2014 seeking leave to commence proceedings under s 109 of the Motor Accidents Compensation Act 1999 ("MAC Act"). Leave is opposed. The matter raises two issues:

(a) whether Ms Sweetman has provided a full and satisfactory explanation of the delay in commencing proceedings under s 109(3) of the MAC Act; and

(b) whether the total damages of all claims to be awarded to Ms Sweetman satisfies the statutory minimum.

BACKGROUND

Ms Sweetman had, prior to the accident, never previously been injured in any accident and had only ever consulted a solicitor in relation to divorce and the sale of real estate.

The ambulance report dated the date of the accident refers to Ms Sweetman stating, "HEAD WAS THROWN BACK" and suffering "CERVICAL NECK PAIN". After the accident, she was off work for three weeks. A few days after the accident her doctor's notes record:

"Neck upper Thoracic amd Cx pain, constant, 'like strain'.

...mildly tendr R>L para spinal soft tissues ...

Assess Mild 'whiplash injury'."

On a body diagram prepared at the time, Ms Sweetman indicated at that time pain in the neck and upper back and wrote, "felt an instant pain mostly on the [right] side of the neck". Ms Sweetman was given painkillers, underwent physiotherapy and was determined to be unfit for 10 days. By 23 January 2007 the doctor's note recorded "pain mainly on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sweetman v Ritter

Details

AGLC: Sweetman v Ritter [2014] NSWDC 110
Case: [2014] NSWDC 110
Decision Date: 23 May 2014

CaseChat Overview and Summary

Sweetman v Ritter is a case concerning a claim for damages arising from a motor accident. The plaintiff, Sweetman, sought compensation from the defendant, Ritter, for injuries sustained in a motor vehicle accident. The dispute centred on the late filing of the claim for damages, which was beyond the statutory limitation period under the Motor Accidents Compensation Act 1999. The Queensland District Court was tasked with determining whether Sweetman had provided a full and satisfactory explanation for the delay, which would permit the court to grant leave under section 109 of the Act to proceed with the claim.

The court was required to examine whether Sweetman had provided a reasonable explanation for the delay in making the claim. This involved assessing the circumstances of the delay and whether a reasonable person in Sweetman's position would have made the claim within the prescribed time limit. Additionally, the court had to determine if the statutory minimum damages should be awarded under section 128 of the Motor Accidents Compensation Act 1999, given the late filing of the claim.

The court found that Sweetman had provided a full and satisfactory explanation for the delay in filing the claim, which satisfied the requirements under section 109 of the Motor Accidents Compensation Act 1999. The court acknowledged the reasons provided by Sweetman and concluded that the delay was justified under the circumstances. Consequently, the court granted leave for Sweetman to proceed with the claim. Further, the court ordered that written submissions on costs be filed and served within 14 days, with a maximum length of five pages. Upon receipt of these submissions, the court would determine if the matter required further argument on costs or for specific orders to be made.

Orders

Orders of the court

(1) Leave be granted pursuant to s 109 of the Motor Accidents Compensation Act 1999 for leave to proceed.

(2) Leave to the parties to file and serve written submissions on costs within 14 days (maximum 5 pages).

(3) On receipt of those submissions, I will determine whether the matter will be re-listed for further argument on costs or for orders.

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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Medium Neutral Citation:	Sweetman v Ritter [2014] NSWDC 110
Hearing dates:	28 February and 22 May 2014
Decision date:	23 May 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Leave be granted pursuant to s 109 of the Motor Accidents Compensation Act 1999 for leave to proceed. (2) Leave to the parties to file and serve written submissions on costs within 14 days (maximum 5 pages). (3) On receipt of those submissions, I will determine whether the matter will be re-listed for further argument on costs or for orders.
Catchwords:	MOTOR ACCIDENT COMPENSATION - late claim - limitation period - expiration of time limit - delay in making claim for damages - full and satisfactory explanation for delay - reasonable person in position of claimant - statutory minimum damages
Legislation Cited:	Motor Accidents Compensation Act 1999, s 5, s 6, s 62, s 66, s 78, s 82, s 89A, s 89C, s 109, s 110
Cases Cited:	ASB-Tech Services Pty Ltd (In Liquidation) v Doeland & Anor [2003] NSWCA 167 Eades v Gunestepe [2012] NSWCA 204 Khoury v Linfox Australia Pty Ltd [2006] NSWCA 51 Smith v Grant [2006] NSWCA 244 Walker v Howard [2009] NSWCA 408
Category:	Principal judgment
Parties:	Colleen Sweetman (plaintiff) Jarrod Martin Ritter (defendant)
Representation:	Mr R Quickenden (plaintiff) Mr J Turnbull (defendant) Nash Allen Williams & Wotton (plaintiff) Sparke Helmore Lawyers (defendant)
File Number(s):	2014/39875
Publication restriction:	None