Fitzpatrick v Cervo [2020] NSWDC 619

District Court New South Wales

Medium Neutral Citation: Fitzpatrick v Cervo [2020] NSWDC 619 Hearing dates: 1 October 2020 Date of orders: 12 October 2020 Decision date: 12 October 2020 Jurisdiction: Civil Before: Dicker SC DCJ Decision: The Notice of Motion filed on 26 May 2020 is dismissed. Catchwords: TORTS – negligence – motor accident claim – failure by the plaintiff to make a claim within six months after the date of the accident – application by the defendant to dismiss the proceedings – whether the plaintiff has provided a full and satisfactory explanation for the delay in making the claim Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Buller v Black [2003] NSWCA 45 Choukor v Spiroski [2016] NSWDC 358 Dijakovic v Perez [2015] NSWCA 174 Hunter v Roberts [2019] NSWCA 116 Karambelas v Zaknic (No 2) [2014] NSWCA 433 Lyu v Jeon [2012] NSWCA 446 Category: Procedural and other rulings Parties: Daniel Joseph Fitzpatrick (Plaintiff) Carlo Joseph Cervo (Defendant) Representation: Counsel: B Jones (Plaintiff) M Nesbeth (Defendant)

Solicitors: Stacks Goudkamp (Plaintiff) Barry Nilsson Lawyers (Defendant) File Number(s): 2020/00126235

Judgment 1. Before the court for determination is a Notice of Motion filed on 26 May 2020 by the defendant in the proceedings, Mr Carlo Cervo, seeking orders pursuant to s 73(5) of the Motor Accidents Compensation Act 1999 (NSW) ("MACA"), that the Statement of Claim filed on 28 April 2020 be dismissed with consequential relief. By the Statement of Claim filed on 28 April 2020, the plaintiff, Mr Daniel Fitzpatrick, brings a claim under MACA for damages for personal injuries allegedly suffered by him as a result of the negligence of the defendant in causing a motor accident which occurred at approximately 1:30pm on 1 July 2017. It is alleged that the plaintiff was driving a truck towing a trailer in Queanbeyan in the State of New South Wales when the defendant collided with the trailer of the truck whilst driving his BMW motorcycle at excessive speed. 2. An unusual aspect of the accident is that the plaintiff's claim is solely for alleged psychiatric injuries said to result from the accident. There is no claim for damages for physical injuries. It is alleged that the plaintiff's psychiatric injuries were caused by the negligent driving of the defendant of his motorcycle. 3. By an Amended Defence filed 22 June 2020, the defendant denies negligence, does not admit the injuries claimed and pleads contributory negligence. 4. The proceedings were commenced less than three years after the date of the motor accident and, accordingly, there is no breach of s 109(1) of MACA by the plaintiff. However, it is not in issue between the parties on the application that there has been a breach by the plaintiff of s 72(1) of MACA in that the plaintiff's claim as a result of the accident was not made within six months after the relevant date for the claim being the date of the motor accident to which the claim relates. The claim should have been made by the plaintiff by 1 January 2018 at the latest, being six months after the date of the accident on 1 July 2017. The evidence shows that the claim was not made by the plaintiff until 29 March 2019 or possibly 9 April 2019 when the claim was apparently received by the defendant's insurer (although the former date is more likely as the evidence seems to establish that the claim was sent by the plaintiff's solicitors by way of email).