Tom Atie v Dennis Tonacio - [2012] NSWSC 156

Supreme Court

New South Wales

Medium Neutral Citation: Tom Atie v Dennis Tonacio [2012] NSWSC 156
Hearing dates: 29 February 2012
Decision date: 05 March 2012
Jurisdiction: Common Law
Before: Grove AJ
Decision:
That the plaintiff has provided a full and satisfactory explanation for the delay in making the claim and the motion is dismissed.
Liberty to apply in respect of costs.

Legislation Cited: Motor Accidents Act 1999
Cases Cited: Figliuzzi v Yonan [2005] NSWCA 290
Russo v Aiello (2003) 215 CLR 643
Tan v Basaga [2010] NSWSC 1143
Category: Procedural and other rulings
Parties: Tom Atie - Plaintiff
Dennis Tonacio - Fourth Defendant
Representation: Mr McCarthy for the plaintiff, the respondent to the motion
Mr J Gracie for the applicant on motion, fourth defendant

File Number(s): 2011/263979

Judgment

HIS HONOUR : This is a motion by the fourth defendant in proceedings brought by the plaintiff seeking that they be dismissed as against that defendant pursuant to section 73(5) of the Motor Accidents Act 1999 (the Act).

The plaintiff claims in respect of injuries sustained at about 2:15 am on 21 August 2008. In what might be perceived as the general run of events falling within the concept of motor accidents, the facts alleged are unusual. In the course of submissions counsel described the accident as eccentric.

Roadworks were being undertaken in the vicinity of the Hume and Cumberland Highways. To enable the works, a traffic diversion was put in place. The plaintiff was employed by a company (Torpoint) and engaged in laying asphalt in order to form a road surface. On the basis that the road was running north and south, the plaintiff was working on the eastern side. A truck driven by the fourth defendant was northbound on the road as diverted and collided with a power pole near the western side of the road causing lines which were supported by the pole to break and, as pleaded, become "four heavy whips which struck the plaintiff". At the time the plaintiff was raking asphalt on the other side of the road. I do not purport to make findings of fact in these regards but to describe the circumstances upon which the claim is based.

The plaintiff joined as defendants in action the head contractor (Boral), the Roads and Traffic Authority (RTA) as overall controller of the works, the corporation engaged to implement traffic diversion (Able Roadwork) and the fourth defendant truck driver. He has not sued his employer Torpoint.

Pursuant to section 72 of the Act the plaintiff was required to give notice of his claim to the insurer of the truck (Zurich) within six months after the relevant date, 21 August 2008. That period expired on 21 February 2009. It is not disputed that no requisite notice was given during the prescribed period.

Following the accident in August, the plaintiff was off work for a short time and returned to light duties which he described as paperwork, driving the spray truck and a small amount of raking.…

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.

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Details

Case: [2012] NSWSC 156
Decision Date: 05 March 2012

CaseChat Overview and Summary

Tom Atie has brought a motion against Dennis Tonacio, the fourth defendant, in proceedings brought by Atie seeking that they be dismissed as against that defendant pursuant to section 73(5) of the Motor Accidents Act 1999. Atie claims in respect of injuries sustained at about 2:15 am on 21 August 2008 when he was struck by four heavy whips after a truck driven by Tonacio collided with a power pole near the western side of the road. The plaintiff joined as defendants in action the head contractor, the Roads and Traffic Authority, the corporation engaged to implement traffic diversion and the fourth defendant truck driver. He has not sued his employer Torpoint. Pursuant to section 72 of the Act, Atie was required to give notice of his claim to the insurer of the truck within six months after the relevant date, 21 August 2008. That period expired on 21 February 2009. It is not disputed that no requisite notice was given during the prescribed period. The issue to be determined on the motion is whether a satisfactory explanation has been given for the failure to notify the claim between 21 February 2009 and 5 November 2010.

The court found that the plaintiff had provided a full and satisfactory explanation for the delay in making the claim. The court accepted the evidence that the plaintiff had limited education, leaving school without completing the School Certificate and that his employments have involved labouring or manual work which did not enhance his formal education so as to equip him to deal with legal issues or like complexities. The court concluded that the plaintiff was unaware that potential rights arising out of the incident in August 2008 were governed by the Act of which he had never heard of. The court found that the plaintiff would be aware that, if he was conscious of some deprivation of entitlement, he knew that he could consult a solicitor for assistance. The court also found that it would require a perceptive analyst with more than a smattering of legal encounter rather than a person in the position of the plaintiff, to look for a remedy beyond workers compensation. The court formally ruled that the plaintiff had provided a full and satisfactory explanation for the delay in making the claim and the motion is dismissed. Liberty to apply in respect of costs.

Orders