Recent Cases

Dahdah v Witte [2023] NSWCA 304 (13 December 2023) (White and Mitchelmore JJA, Griffiths AJA)


Catchwords:


TORTS – Motor vehicle accident – Late claims – Requirement for “full and satisfactory explanation” – Where applicant sought leave to institute proceedings under Motor Accidents Compensation Act 1999 (NSW) outside of time prescribed by s 109 – Where primary judge refused leave on basis that applicant had not provided “full and satisfactory explanation” for delay within meaning of ss 66(2) and 109(3)(a) of Motor Accidents Compensation Act – Where applicant delayed in raising symptoms said to have been caused by collision with doctor for some years thereafter – Where insurer accepted explanation for delay in lodging claim – Where applicant briefed son as solicitor on claim after time for instituting claim as of right had lapsed – Where applicant claimed privilege over email instructing son to act – Where neither applicant nor son cross-examined – Whether applicant’s explanation of reliance on respondent’s insurer and ignorance of right to make claim “full and satisfactory” – Whether claim of privilege over correspondence with legal representative inconsistent with obligation to provide “full and satisfactory explanation” – Held that applicant satisfies s 109(3)(a) of Motor Accidents Compensation Act

TORTS – Motor vehicle accident– Late claims – Requirement that “total damages of all kinds likely to be awarded” to claimant if claim should succeed exceeds amount prescribed by s 109(3)(b) of Motor Accidents Compensation Act – Where primary judge made no findings as to damages likely to be awarded to applicant if claim should succeed – Where medical evidence as to nature and extent of applicant’s injuries diverges significantly – Whether Court should resolve matter adversely to applicant on basis of medical reports adduced by respondent – Held that total damages of all kinds likely to be awarded to applicant if claim should succeed exceeds amount prescribed by s 109(3)(b) of Motor Accidents Compensation Act

WORDS AND PHRASES – “Full and satisfactory explanation” – “Likely to be awarded”