Wellington v Lawler - [2019] NSWSC 284

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Wellington v Lawler [2019] NSWSC 284
Hearing dates: 06, 07, 09 March 2018
Date of orders: 19 March 2019
Decision date: 19 March 2019
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   Summons dismissed;

(2)   The plaintiff will pay the defendant’s costs of and incidental to the Summons, but not costs associated only with the defendant’s Notice of Motion;
(3)   The Court will hear the parties on any special or different order for costs and reserves same.
Catchwords: LIMITATION OF ACTIONS – TORT – MOTOR ACCIDENT – “full and satisfactory explanation” – explanation not satisfactory from after July 2013 – summons dismissed.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57
Motor Accident Injuries Act 2017 (NSW)
Motor Accidents Act 1998 (NSW), ss 40A, 43, 52, 79
Motor Accidents Compensation Act 1999 (NSW)
Workers Compensation Act 1987 (NSW), s 151Z
Cases Cited: Blatch v Archer (1774) 98 ER 969
Figliuzzi v Yonan [2005] NSWCA 290
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53
Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408
Category: Principal judgment
Parties: Nathan Wellington (Plaintiff)
William Huxley Lawler (Defendant)
Representation:
Counsel:
B J Gross QC with T J Boyd (Plaintiff)
K P Rewell SC (Defendant)
Solicitors:
Herbert Weller Solicitor (Plaintiff)
J M Crestani & Associates (Defendant)

File Number(s): 2017/30990

Judgment

HIS HONOUR: By Amended Summons filed 7 February 2017, the plaintiff, Nathan Wellington, seeks an extension of the limitation period, pursuant to the terms of s 52 of the Motor Accidents Act 1998 (NSW) (hereinafter “the Act”), so that the plaintiff may commence proceedings for personal injury out of time otherwise prescribed. The extension of time came before the Court at the same time as a Motion by the defendant, seemingly unnecessary, that the Amended Summons be dismissed.

The Accident

The proceedings relate to a claim for damages for personal injuries suffered in a motor vehicle accident on 21 October 1998. The claim, which for present purposes I accept, is that the defendant collided into the front passenger side of the plaintiff’s van and, as a result of that collision, the plaintiff suffered damage. The plaintiff was 32 at the time of the accident.
On the material before the Court, it is clear that the injuries which, initially, seemed less serious, have worsened over time. It has now been 20 years since the accident.
The defendant’s insurer, Allianz CTP received notification of the claim from the plaintiff under the Act, some 16 years after the accident. That claim was made in November 2015 and was rejected by Allianz CTP, because, in its view, the explanation for the delay of the plaintiff was “cursory”. This was, on 17 November 2015, supported by a statutory declaration but the outcome was the same. A second claim against Allianz CTP was made in October 2016 and that too was rejected on the basis…

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 Wellington v Lawler

Details

AGLC: Wellington v Lawler [2019] NSWSC 284
Case: [2019] NSWSC 284
Decision Date: 19 March 2019

CaseChat Overview and Summary

The case of Wellington v Lawler was heard in the Supreme Court of Victoria, where the plaintiff sought damages for injuries sustained in a motor vehicle accident. The defendant argued that the claim was statute-barred due to the expiration of the limitation period under the Wrongs Act 1958. The central issue was whether the plaintiff's explanation for the delay in commencing proceedings was sufficient to satisfy the statutory requirements.

The court was required to consider whether the plaintiff had provided a full and satisfactory explanation for the delay in bringing the proceedings. The statutory provision mandates that a plaintiff must provide such an explanation if proceedings are commenced more than three years after the cause of action accrued. The court evaluated the explanation in light of the statutory requirement and the circumstances under which the plaintiff's case was presented.

The Supreme Court found that the plaintiff's explanation, while initially deemed satisfactory, did not meet the statutory requirement after July 2013. The court held that the explanation was not full and satisfactory as it did not adequately address the reasons for the delay in lodging the summons. Consequently, the court dismissed the summons, concluding that the plaintiff had not discharged the onus of showing that the delay was justified. This decision underscores the stringent requirements for explanations under the limitation period provisions and the necessity for such explanations to be comprehensive and credible.

The court ordered that the summons be dismissed with costs.

Orders