Tan v Basaga - [2010] NSWSC 1143

CITATION: Soo Pin TAN v Lorima BASAGA [2010] NSWSC 1143

HEARING DATE(S): 16 September 2010

JUDGMENT DATE :
11 October 2010

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: Application dismissed.

CATCHWORDS: Motor accident compensation claim - application to have claim dismissed on the ground of delay - whether full and satisfactory explanation for the delay - where claimant ignorant of existence of cause of action

LEGISLATION CITED: Motor Accidents Compensation Act 1999

CATEGORY: Procedural and other rulings

CASES CITED: Figliuzzi v Yonan [2005] NSWCA 290
Russo v Aiello [2003] HCA 53; 215 CLR 643
Walker v Howard [2009] NSWCA 408

PARTIES: Soo Pin TAN (Plaintiff)
Lorima BASAGA (Defendant)

FILE NUMBER(S): SC 10/131250

COUNSEL: S. Norton SC / E.Welsh (Plaintiff)
W. Fitzsimmons (Defendant)

SOLICITORS: Brydens (Plaintiff)
Moray & Agnew (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

11 OCTOBER 2010

2010/131250 Soo Pin TAN v Lorima BASAGA

JUDGMENT

1 McCALLUM J: Dr Soo Pin Tan is a medical practitioner. On 20 August 2005, while he was driving to work at Wollongong Hospital, Dr Tan’s car was hit by another car when its driver tried to overtake in the left hand lane on the entrance ramp to the M5 motorway at Bexley. Dr Tan alleges that the collision occurred at a relatively high speed and involved a good deal of force. His car collided with the roadside barrier a number of times and he sustained injuries to his neck and back.

2 Dr Tan claims damages in negligence from the driver of the car, Mr Lorima Basaga. The application presently before the Court is an application by Mr Basaga’s insurer to have the claim dismissed on the ground of delay in accordance with the provisions of s 73 of the Motor Accidents Compensation Act 1999.

Statutory context in which the application is brought

3 The claim is governed by the provisions of Chapter 4 of the Motor Accidents Compensation Act. Pursuant to s 72 of the Act, Dr Tan was required to make his claim (by giving notice of the claim to Mr Basaga’s insurer) within six months after the date of the accident, that is, on or before 20 February 2006. Section 73 of the Act, however, makes provision for a claim to be made more than 6 months after the relevant date (called “a late claim”). A late claim may be made “if the claimant provides a full and satisfactory explanation for the delay in making the claim”. That requirement is explained in s 66(2) of the Act as follows:

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 Tan v Basaga

Details

AGLC: Tan v Basaga [2010] NSWSC 1143
Case: [2010] NSWSC 1143
Decision Date: 11 October 2010

CaseChat Overview and Summary

The matter of Tan v Basaga involved a motor accident compensation claim. The claimant sought compensation for injuries sustained in a car accident, while the respondent, the driver of the other vehicle, argued that the claim should be dismissed due to delay. The matter was heard in the Supreme Court of New South Wales. The primary legal issue the court had to address was whether the delay in filing the claim was justified, and whether the claimant had provided a full and satisfactory explanation for the delay. The court also had to consider whether the claimant was unaware of the existence of the cause of action at the relevant time.

The court examined the circumstances of the case and the reasons provided by the claimant for the delay in filing the claim. The claimant argued that they were unaware of the full extent of their injuries at the time of the accident, and that this ignorance contributed to the delay. The court found that the claimant had provided a satisfactory explanation for the delay, as they were genuinely unaware of the full extent of their injuries. The court also considered the respondent's argument that the delay had prejudiced their ability to defend the claim, but found that this was not the case. The court concluded that the delay did not prejudice the respondent's ability to defend the claim, and that the claimant's ignorance of the full extent of their injuries provided a satisfactory explanation for the delay.

The Supreme Court of New South Wales dismissed the respondent's application to have the claim dismissed on the ground of delay. The court found that the claimant had provided a full and satisfactory explanation for the delay, and that the delay did not prejudice the respondent's ability to defend the claim. The court ordered that the claim proceed to trial, and that the parties prepare for a hearing to determine the extent of the claimant's injuries and the appropriate compensation.

Orders