MAYOL v STATE OF NEW SOUTH WALES and ANOR [1996] NSWCA 345

MAYOL v STATE OF NEW SOUTH WALES and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA

5 July 1996, 5 July 1996

[1996] NSWCA 345

Motor Accidents Act, 1988 s42, s43, s52 — duty to identify insurer — lapse of time.

FACTS:

The Appellant was injured on 6 March 1791 whilst a custodial passenger in a vehicle controlled by the Prisons Department. It took the appellant until October 1993 to realise the seriousness of his injuries and he then instructed solicitors to make a claim. His solicitors did so, and attempted to do all that is required by the Motor Accidents Act, 1988, despite being both out of time and lacking details of the registration and insurer of the vehicle. The lateness of the claim was aggravated by a delay of 13, months by the Department in responding to enquiries as to the registration and insurer of the vehicle. Proceedings were brought to commence proceedings out of time and leave was refused. The plaintiff appears.

Held:

By Meagher JA, Clarke, Handley JJA agreeing:

(1) Despite the lapses in time, the fact was that the plaintiff/appellant did not know the identity of the insurer through no fault of his own and he suffered real injustice in the refusal of his claim.

ORDERS:

1. Leave to appeal granted;

2. Appeal allowed

3. Orders of his Honour Judge Christie set aside: and

4. Declaration as in 1 in the Notice of Application; next the Declaration as in 2 in the Notice of Motion; next the Declaration as in 3 in the Notice of Motion. Order that the proceedings be filed within a month from this date. I would order that the respondent or the opponent pay the costs both below and in the present court of the Notice of Motion and of the Appeal.

Meagher JA

This is an application for leave to appeal from an order of is Honour Judge Christie who dismissed, with costs, the notice of application to commence proceedings which had been brought by Mr Mayol under the Motor Accidents Act.