SEIB v MORTON [2000] NSWCA 139 | Case summary

JUDGMENT PRIESTLEY JA: 1 Introduction. The argument in this appeal immediately followed the argument in Holt v Wynter , judgment in which has been delivered today. 2 For the reasons mentioned in Holt v Wynter a Bench of five sat to hear this appeal also. It likewise concerns a person injured in a motor accident seeking leave of the court pursuant to s 52(4) of the Motor Accidents Act (the Act) to commence proceedings in respect of a claim more than three years after the date on which the claim had to be made in accordance with s 43. Mr Seib, the would-be plaintiff, was called the plaintiff in the application for leave in the District Court (where Garling DCJ dismissed his application) and is the appellant in this court. I will simply call him the applicant throughout, and the person against whom he was seeking leave to proceed, the respondent. 3 Applicable law. The respondent at first submitted that the new s 52(1) inserted in the Act by the Motor Accidents Amendment Act No 66 of 1995 (Act 66/95) applied to the case when it was heard and decided by Garling DCJ. Later however the court discovered that some problems caused by Act 66/95 were retrospectively cured by a further amending Act, the Motor Accidents Amendment Act 1997 No 3 (Act 3/97) which changed the position. The result was that no part of the new s 52 introduced by Act 66/95 applied to the proceedings before Garling DCJ and the assumption upon which the case proceeded before him, namely that the relevant statute was the Act as it stood before the enactment of Act 66/95 was correct. This is subject to the exception that the insertion by Act 66/95 of a new subcl (7) in cl 17 of Part 7 of Schedule 4 to the Act was unaffected by Act 3/97. That provision however is not relevant to the circumstances of the present case. When this was drawn to the attention of the respondent, the submission to the contrary was withdrawn. 4 Background. The applicant was injured on 17 July 1994 when the taxi cab he was driving in a southerly direction on the Pacific Highway at Doyalson was hit from behind by a car driven by the respondent. 5 The provisions of the Act then immediately relevant to any proceedings the applicant wished to take against the respondent began with s 43. This required the applicant to make a claim pursuant to that section within six months of the accident. Section 43A(1) provided that a claim might be made more than six months after the accident if the claimant provided a full and satisfactory explanation for the delay in making the claim. Section 43A(3) provided that if within two months after receiving an explanation for delay in the making of a late claim the insurer did not reject the explanation the insurer and the person against whom the claim was made lost the right to challenge the claim on the ground of delay. Paragraph (c) of subs 3 provided that if court proceedings were commenced in respect of a late claim an insurer or the person against whom the claim was made who had not lost the right to challenge the claim on the ground of delay might apply to have the proceedings struck out on the ground of delay only within two months after receipt of the statement of claim by the insurer. Section 43A(4) then provided that a court might strike out proceedings commenced in respect of a late claim if the court was satisfied the claimant did not have a full and satisfactory explanation for the delay in making the claim. 6 Section 52(1) provided a claimant was not entitled to commence court proceedings in respect of a claim until six months had elapsed since notice of the claim was given. Section 52(4) provided that a claimant was not entitled to commence proceedings in respect of a claim more than three years after the date on which the claim had to be made in accordance with s 43, except with the leave of the court. 7 The applicant got well out of time for compliance with the requirement that his claim must be made within six months after the accident. He later gave evidence that he did not know of this requirement. He did not speak to a solicitor about the matter until 13 January 1996. That solicitor then caused a notice of claim to be served on 17 January 1996 (exactly eighteen months after the accident) and also filed a statement of claim in the District Court on the same day. This involved at least one and possibly two non-compliances with the Act. The applicant was clearly not entitled to commence proceedings because of s 52(1). The respondent also contended that the notice of claim was not in proper form. 8 Despite this and despite the fact that the respondent drew the applicant's attention to the problems on a number of occasions, the proceedings were continued for some time. On 10 July 1996 the applicant's solicitor served a statutory declaration directed towards providing a full and satisfactory explanation pursuant to s 43A for the delay in making the claim. 9 Eventually on 19 July 1996 the District Court proceedings were discontinued by consent. Before this happened, the applicant had answered a request for particulars by the respondent and the respondent had filed notice of grounds of defence, admitting breach of duty, and had arranged for the applicant to be medically examined by Dr B. Ireland. This examination took place on 30 July 1996, after the discontinuation of the proceedings. Presumably the respondent was expecting the claim to be pursued. 10 This inference is consistent with the fact that by letter dated 24 July 1996 the respondent's solicitor rejected the s 43A explanation. This meant that when later the applicant commenced proceedings against the respondent, it would be open to the respondent to apply within two months after receipt of the statement of claim to strike it out on the ground of delay. Such an application would be successful if the court were satisfied that the applicant did not have a full and satisfactory explanation for the delay in making the claim. 11 However, nothing further happened, so far as the respondent was concerned, for another twenty-one months. The applicant explained the reason for this delay in two affidavits. In the first, sworn 28 April 1998, he said he ended his work as a taxi driver in December 1996. He then received no advice as to his rights of claiming compensation except that his employer without referring to any time limitation told him he could sue for his injuries in the future. He also said that as early as July 1996 he was suffering feelings of depression (for which he did not seek medical help), felt unsure of himself and "for a variety of unconnected reasons had doubts of the merit or even the wish to proceed further with my claims". The unconnected reasons included the ill health of his parents, separation from his wife and the need to spend substantial sums of money defending criminal matters. He spent considerable time looking after his father, who died on 9 March 1997 and also with his mother who had become incapable of properly looking after herself. 12 In his second affidavit, sworn 23 July 1998, he gave some further details of what he called "The inner turmoil I suffered due to my inability to cope with a variety of personal problems which seemed at the time insurmountable and unsolvable". He mentioned that the criminal charges were a series of counts involving indecent aggravated assault with which he was first charged in December 1995. He denied the charges and eventually underwent two trials. The second ended with a verdict of not guilty, on 10 October 1997. 13 Once acquitted of the criminal charges he received support, particularly from his sister, to go on with his proceedings for damages. He still had insufficient funds for the legal proceedings and looked for a legal representative who would conduct the proceedings on a contingency basis. The solicitor he found to do this was Mr H.D.W. Ross. For reasons Mr Ross explained in his affidavit sworn 23 July 1998 he was unable to confer with counsel prepared to conduct the matter on a contingency basis until 9 March 1998. Before this he had done much preparatory work. The conference of 9 March 1998 was the first of three, the last of which took place on 31 March 1998. During these conferences all pleadings were settled and the order in which steps were to be taken in filing the applicant's application was decided. The notice of motion seeking leave to commence proceedings was settled by counsel on 28 April 1998 and was filed the following day. 14 Proceedings at first instance. In the materials that were before his Honour Judge Garling, who heard the application on 31 July 1998, and gave judgment dismissing it on 4 August 1998, everything available to the applicant appears to have been included. 15 The striking thing about this case is how completely the objects of the Act were thwarted. The Act was on its face designed to ensure prompt notice of claims to insurers (within six months, s 43) whose duty it was to endeavour to resolve the claim by settlement or otherwise as expeditiously as possible (s 45(1)). Claimants were required to cooperate fully with the insurer so that the insurer had sufficient information to check on the validity of the claim, then to be able to make an early assessment of liability and then to be able to make an informed offer of settlement (s 48(1)). To enable this to be done claimants were not entitled to commence court proceedings until six months after notice of the claim was given (s 52(1)). Then, a claimant was not entitled to commence proceedings more than three years after notice of the claim except with the leave of the court (S 52(4)). There were exceptions and qualifications to this scheme, but that was its main outline. What was done on the applicant's behalf involved the late making of the claim (which was not the solicitor's fault) and a premature commencement of proceedings (which was). Despite the bungling, however, by the end of July 1996 the respondent was in possession of the claim, an explanation for the delay in making it, and the knowledge from the aborted proceedings (statement of claim and answer to request for particulars) of the case the applicant was asserting. Also the respondent had the benefit of Dr Ireland's examination of the applicant on 30 July 1996. 16 When the applicant's case came before his Honour Judge Garling, he, in the course of reaching his eventual conclusion to dismiss the application, decided that the applicant's statutory declaration of 27 June 1996, rejected by the respondent, in his opinion gave a full and satisfactory explanation for the delay in making the claim. In the way the case was conducted before Judge Garling, once he made that finding, the case before him became greatly simplified; all he had to decide was whether or not he should give leave to the applicant to commence proceedings. In order to decide this, under the Act as it stood on 17 July 1994, the date of the applicant's accident, he had, in my view, to bear in mind the guidelines in Salido v Nominal Defendant (1993) 32 NSWLR 524, understood in light of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. My opinion of the guidelines, as so understood, is set out in Holt v Wynter. 17 (The Act as it stood on 17 July 1994 is contained in the reprint published by the New South Wales Government Information Service reprinted as in force at 28 July 1994. The last amendment before that date had commenced on 17 June 1994.) 18 I have set out my understanding of the guidelines in Holt v Wynter, as follows: 1. Section 52(4) confers a discretion which is to be exercised for the purposes of the Act; these purposes include forensic diligence; a corollary of the forensic diligence purpose is what Gleeson CJ called protection of defendants against the injustice of stale claims. 2. The eventual question to be decided, in light of the purposes of the Act, is whether it is fair and just to grant leave, and whether there can be a fair trial. 3. The onus is on the applicant to show that it is fair and just to grant leave. 4. In considering whether the applicant has shown that it is fair and just to grant leave it is material for the court to take into account the delay and the applicant's explanation for it. 5. In considering whether it is fair and just to grant leave, the disadvantage to the defendant which would result from the granting of leave is a material but not a conclusive consideration. 19 The trial judge began his consideration of what had occurred after July 1996 by noting that the next thing that appeared in the insurer's files was a letter dated 16 April 1998 from the respondent's solicitor to the insurer saying no correspondence had been received from the applicant's solicitors since 16 July 1996 and asking for instructions to close the matter and return the file. As it happened, this letter was followed almost immediately by a letter to the insurer from Mr Ross, dated 23 April 1998, advising he was now acting for the applicant and enclosing by way of re-service all necessary documents. He mentioned the earlier procedural errors and asked the insurer to let him know whether there appeared to be any similar problem with regard to the present documentation. 20 The trial judge noted Mr Ross's letter and then referred to the delay between the time Mr Ross first came into the matter and the date when he gave notice to the insurer (by the letter of 23 April 1998) telling the insurer that a notice of motion for leave to proceed was shortly to be filed. 21 The trial judge next referred to what Gleeson CJ had said in Salido and considered the Chief Justice's guidelines. The trial judge said the claim was stale and there had been a complete lack of forensic diligence until Mr Ross came into the matter. As to delay on the part of the applicant himself he said he did not think the applicant did a lot that was wrong. He accepted there was some delay by the applicant but said it appeared it was explained by the fact he was going through a fairly traumatic period defending a criminal case. 22 Next the trial judge moved to the nature and extent of any forensic disadvantage to the respondent resulting from the applicant's delay. Here he referred to Brisbane South and in particular seems to have taken into account what McHugh J had said about "matters relating to delay and relating to delay being prejudicial". He then referred to the submission by the respondent that because of the considerable delay the respondent did not have the opportunity to investigate this matter medically, at least, at an early time and that that in itself was prejudicial. Similarly it had been submitted the respondent did not have the opportunity at an early time to consider the matter of the applicant's claim for loss of income. 23 Then, after noting that the respondent had had a medical examination of the applicant in 1996, and after mentioning again that he had taken into account the personal problems of the applicant, the trial judge focussed on the delay following July 1996 and continued: " But, as at 13 January 1996 the claim is in the hands of a solicitor who acts on the plaintiff's behalf. There is no evidence before me that these personal problems were holding the matter up. I am satisfied that there was prejudice to the defendant. I have no evidence as to why there was so much inaction at an early stage and as to why steps were not taken to get this matter back on the track. I see no evidence that the plaintiff's solicitor could not have obtained instructions from the plaintiff at an early time. The final matter I have to take into account is the fairness to both the plaintiff and to the defendant. I have concluded, in this case, given the history I have set out at some length, it would be unfair for me to grant the plaintiff's application. " 24 Discussion. I find it difficult to see why the trial judge arrived at the conclusion that he did in view of the favourable findings he had made concerning the applicant. He had found there was a satisfactory explanation for the delay up to mid 1996; he had found that he did not think the applicant had done a lot that was wrong and that the applicant's personal delay after mid 1996 was explained by his personal problems; he had noted there had been a medical examination of the applicant on 30 July1996. It seems that his reasons for holding against the applicant substantially were the inactivity by the applicant's legal representative and the respondent's complaint that the applicant's lack of promptness had been prejudicial because of loss of opportunity to investigate the matter medically at an early time and to consider the plaintiff's claim for loss of income at an early time. 25 However, his Honour did not explain how, on the facts of the case before him, these two specific matters caused prejudice to the respondent. As shown by the materials in evidence before the trial judge, there was then available to the respondent the full documentation, including x-ray reports, from the hospital to which the applicant was taken after his accident, a report from the GP who saw him shortly after the accident and who then thought that the applicant was unlikely to have any long term after effects or permanent disability from his injuries, a further report from the same doctor dated 13 July 1996 in which he recorded having seen the applicant on later occasions as a result of which his prognosis had become more pessimistic, from an orthopaedic specialist dated 23 February 1996 and from two other (radiologist) doctors dated 15 February 1996. A psychiatrist's report date 24 April 1998 was also available. The report the respondent had obtained from Dr Ireland was not in evidence. 26 In view of the availability of this material, the possession by the respondent of its own nominated specialist's report of July 1996 and bearing in mind the nature of the applicant's injuries, I do not see that any particular prejudice has been occasioned to the respondent so far as preparation of the respondent's medical case is concerned. The applicant in fact, after his late start had aimed for an arbitration in mid 1996; it is difficult to see that the respondent could not then have had a fair trial. Because of the mismanagement by the applicant's solicitor, the provisions of the Act designed to reach a speedy conclusion after proper opportunity to the respondent for information gathering and, if appropriate, offer of settlement, made it technically impossible to have the arbitration which would have taken place within two years from the date of the accident and would have given reasonable opportunity for a fair trial. In this case however the passing of the further time caused by these inappropriate procedures does not seem to me to have caused such difficulty to the respondent as to prevent the view being taken that the applicant showed at the time of the hearing before the trial judge that a fair trial could be had. 27 With respect to him, the trial judge seems to have been influenced by the failure, caused on the applicant's part, to comply with the objectives of the Act and also by the observations of McHugh J in Brisbane South concerning the prejudicial effects of delay. 28 As to the former matter, delay defaults were most readily to be taken into account in deciding whether a full and satisfactory explanation had been provided for the delay in making the claim. Once the court was satisfied of that, the question became whether it was fair and just to grant leave, bearing in mind that this also entailed considering whether there could be a fair trial. When this point was reached, delay became one of a number of considerations the court had to take into account in deciding how discretion should be exercised. 29 As to delay, as explained in Holt v Wynter, it appears that somewhat different emphasis was given to it by Toohey and Gummow JJ on the one hand and McHugh J, and possibly Dawson J on the other. McHugh J's view appears to be a more stringent one which would result more frequently in the conclusion that delay was such as to create prejudice preventing a fair trial than would the view of Toohey and Gummow JJ. Both views attach importance to delay as a consideration in the exercise of discretion but it seems reasonably clear that McHugh J's approach places greater emphasis upon it. 30 As a result of the differing opinions, I reached the view in Holt v Wynter that no binding rule is to be found in Brisbane South to the effect that trial judges must take into account prejudice arising from delay according to the view of McHugh J. Unless and until the matter is further clarified, the position in my opinion will be that I reached in Holt v Wynter, that is, that Salido remains as the authority in this court on applications for leave under the Motor Accident Act, in its form before the amendments made by Act No 66 of 1995, subject to bearing in mind that Brisbane South shows that the delay factor has at least the importance attached to it by the reasons of Toohey and Gummow JJ, but that for the present at least, the High Court authority does not extend further than that. To the extent that the trial judge took what McHugh J said as binding on him, then, it seems to me, he gave a somewhat undue weight to the factor of delay in the present case. 31 The position in regard to the respondent's opportunity to consider the matter of the applicant's claim for loss of income at an early time, although somewhat cloudier than the question of liability, (about which the respondent raised no doubts) seems to me to be subject generally to the same considerations. In my view the material that was before the trial judge should have led him to the conclusion that the applicant had shown that a fair trial was reasonably practicable on this issue also, notwithstanding the time that had passed. 32 Conclusion. My conclusion therefore is, that, on the footing on which the application was conducted before the trial judge, there was a miscarriage of discretion. I therefore propose that the appeal be upheld, the trial judge's orders set aside, and that this court, in re-exercising discretion should make orders granting leave, the respondent to bear the applicant's costs of the hearing at first instance and also of the appeal. It seems to me appropriate in this case for the court to order that the applicant's costs of the hearing at first instance should be his costs in the cause. 33 MEAGHER JA: I agree with Handley JA. 34 HANDLEY JA: This is an appeal by leave from a decision of Garling DCJ refusing the appellant leave to bring proceedings in respect of a motor accident out of time. I have had the benefit of reading the reasons for judgment of Priestley JA in draft form and agree that the appeal should be allowed but have reached this conclusion for different reasons. 35 Section 52(4) of the Motor Accidents Act, as applicable to this case, provides: "A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after the date on which the claim must be made in accordance with section 43 except with the leave of the court in which the proceedings are to be taken". 36 The relevant motor vehicle accident occurred on 17 July 1994 when the taxi being driven by the appellant on the Pacific Highway at Doyalson was struck from behind with considerable force by a car driven by the respondent. The taxi was forced forward and off the carriageway of the Pacific Highway, and the vehicle was a write-off. (T9) The respondent was found to have a blood alcohol concentration of 0.155 and was charged with driving with more than the prescribed concentration. (Combined Book 90) Liability is therefore clear and Garling DCJ said in his reasons for judgment that a breach of duty had been admitted. (Red 5) 37 The unhappy history of the appellant's attempts through various solicitors to commence proceedings to obtain compensation for his injuries has been chronicled by Priestley JA and need not be repeated. 38 Section 43(1) required the appellant to give notice of his claim within 6 months of the accident, that is by 16 January 1995. This was not done. Notice of the claim was eventually given on 17 January 1996 but the claim form was incomplete and did not comply with the requirements of s 44. 39 Section 52(1) prohibited the commencement of proceedings within a period of 6 months after the giving of notice of the claim. However, contrary to this section, the appellant's first solicitor commenced proceedings in the District Court on 17 January 1996. The insurer received a statement of claim and particulars in accordance with DCR Pt 12 r 4A of the appellant's injuries, disabilities, and claims for economic loss. Annexed to those particulars were copies of a report of Dr Nair, the appellant's general practitioner, the notes from Wyong Hospital, the ambulance report, the hospital outpatients' records, the hospital x-ray report of 18 July 1994, and a WorkCover medical certificate of Dr Nair. 40 On 29 May 1996 the respondent's solicitors arranged a medical examination of the appellant by Dr Basil Ireland of Bondi Junction and this took place on 30 July 1996. On 19 June the appellant's solicitors supplied 4 pages of further and better particulars in answer to the request from the respondent's solicitors of 28 May. The first action was discontinued on 19 July 1996. 41 The 3 year period for the commencement of proceedings expired on 17 January 1998 without further proceedings having been commenced. Following a change of solicitors a notice of motion was filed on 28 April 1998 seeking the leave of the Court under s 52(4) for an extension of the limitation period. 42 The appellant's affidavit in support of the motion sworn 28 April 1998 annexed copies of the proposed statement of claim and particulars under DCR Pt 12 r 4A. A further notice of claim was given to the respondent and his insurer the same day. Apparently this was still deficient. On 23 April the appellant's new solicitor sent the respondent's insurer copies of the medical reports of Dr Rita di Genua of 6 February 1996, Dr Lannan of 15 February 1996, Dr R G Smith of 23 February 1996, and Dr Nair of 18 July 1996, together with copies of the hospital and outpatient records of Wyong Hospital. The following day he sent the insurer a copy of the report of Dr Jolly of 9 September 1996. 43 On 17 June 1998 the appellant's solicitor served on the insurer a copy of the ambulance report, and on 23 July he served a copy of the employer's certificate of earnings which completed the information required by s 44 in the appellant's claim form. 44 On 15 June the solicitors for the respondent filed a motion seeking the dismissal of the proceedings pursuant to ss 43 and 43A of the Act because of the appellant's failure to serve a proper notice of claim as required by s 44. The claim form was eventually completed by service of the employer's certificate of earnings on 23 July 1998 and as a result the respondent consented to this motion being dismissed, and Garling DCJ made that order. 45 The respondent's evidence in the application for leave to commence proceedings out of time was limited to an affidavit by a solicitor dealing with the history of the proceedings, which annexed some correspondence, and stated that the insurer had taken no action on the claim between 16 July 1996 and 28 April 1998. 46 Garling DCJ made the inevitable finding that there had been a total lack of forensic diligence on behalf of the appellant until after his present solicitor was retained. He also found that the appellant himself had not done "a lot that was wrong". 47 The Judge then turned to consider the question of prejudice to the respondent. He approached this question on the assumption that the three year limitation period expired on 17 July 1997, but in fact it expired on 17 January 1998. This error is of some significance because the appellant was seeking an extension of only a little over 3 months whereas his Honour thought that he needed an extension of over 9 months. 48 The Judge found that as a result of the delays the respondent did not have an opportunity to investigate this matter medically, at least, at an early time and this, in itself, had been prejudicial. He also found that the respondent did not have the opportunity, at an early time, to consider the appellant's claim for economic loss. He concluded that the respondent would be prejudiced if the time bar was lifted and dismissed the appellant's motion. 49 The only relief sought by the appellant was the lifting of the time bar under s 52(4) which required proceedings to be commenced within 3 years and 6 months of the accident. This limitation period in itself could not ensure that the respondent had the opportunity "at an early time" to investigate the medical issues, or the plaintiff's claim for economic loss. It could only ensure that the respondent had that opportunity prior to or within a short time after January 1998. 50 The respondent had been supplied with a great deal of the appellant's medical evidence in January 1996 within 18 months of the accident, and had the benefit of the medical examination by a doctor of its choice on 30 July 1996, just after 2 years after the accident. The respondent sought no other medical examination at that stage and its medical report was not in evidence in the extension proceedings. 51 The appellant's claim for economic loss depends on his pre-injury earnings and his post-injury capacity for work. His pre-injury earnings can be proved from the records of his employer. His post-injury capacity will depend partly on his own evidence and partly on medical assessments of his physical condition. The respondent had this assessed well within this limitation period. If one of the purposes of this limitation period was to provide defendants with an opportunity to have plaintiffs medically examined within the limitation period, in this case that purpose had been achieved well before the end of the period. 52 In my judgment therefore the findings of particular prejudice made by the Judge cannot be supported. In the context of this limitation period the defendant had and exercised the opportunity to have the medical issues investigated at a comparatively early stage well within the period. This limitation period did not guarantee that the respondent would be able to have the medical issues examined any earlier, and the loss of an opportunity to do this cannot fairly be treated as prejudice flowing from an extension of this period. His Honour's general finding of prejudice is dependent on his particular findings, and if it was intended to go further is unsupported by reasons and contrary to the evidence previously referred to. 53 There is however an issue concerning a defence of contributory negligence. The P4 report states in one place that the appellant was wearing a seatbelt at the time of the accident, but in another place at least suggests that the belt was not being worn. The front seat broke loose in the accident, the plaintiff's chest hit the steering wheel, and when he recovered consciousness he was slumped on the passenger side of the seat. His first claim form stated (137) that he was not wearing a seatbelt, but the ambulance report (101) states that he was. His second claim form of 22 April 1998 states "On reflection the best I can say is that I have no recollection as to whether I was wearing a seatbelt!". However the report of Dr R G Smith of 23 February 1996 to his own solicitors stated "He was a driver not wearing a seatbelt when another vehicle drove into the rear" (105), and Dr Jolly's report of 9 September 1996 states (122-3) "He wasn't wearing a seatbelt … he never did, 'in the taxi .. years ago .. I had a smash in a truck .. if I'd been wearing one .. I'd have been cut in half ' .. then the tray on a prime mover sliced through the cab which George Seib was driving … he survived (was saved) by throwing himself sideways, out of harm's way, in an instant". 54 During the hearing in this Court the parties tended to adopt positions on this issue which were the opposite of those they would adopt at the trial. Mr Lakeman for the appellant suggested that the trial Judge would find that the plaintiff was not wearing his seatbelt, while Mr Hoeben SC for the respondent suggested that there was no guarantee that the trial Judge would make such a finding. 55 In my judgment, on this evidence, a finding that the appellant was wearing a seatbelt at the time of the accident would be perverse. His first claim form, which presumably was verified, stated that he was not wearing a seatbelt. His second claim form of 22 April 1998 states that he cannot remember whether he was wearing a seatbelt. However he has twice told his own examining doctors that he was not wearing one, and in the case of Dr Jolly he gave reasons why, as a matter of practice, he never wore a seatbelt while driving a taxi. There still may be an issue as to whether, and to what extent, the wearing of a seatbelt would have protected him from some or all of his injuries, but there is nothing to suggest that these issues will be any more difficult for the defendant than they would have been if proceedings had been commenced within the limitation period. 56 In my judgment therefore the Judge's finding of actual prejudice to the defendant cannot be supported, and there is no proper basis for a finding that the defendant will be prejudiced in the sense of being unable to have a fair trial of the plaintiff's claims. 57 This case therefore proves, on analysis, to be an unsatisfactory vehicle for determining whether, and to what extent, the principles stated in the majority judgments in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 apply to applications for leave to commence proceedings under s 52(4) of the Act. On this question I respectfully adopt the reasons for judgment of Sheller JA in Holt v Wynter. 58 In the result the appeal should be allowed and the appellant given leave to commence proceedings against the respondent. 59 The following orders should be made:

SEIB v MORTON

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

Cited By (11)