DANDASHLI v DANDASHLI [1996] NSWCA 138

DANDASHLI v DANDASHLI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA AND COHEN AJA 16 December 1996

[1996] NSWCA 138

Handley JA In this matter Mr Donohoe QC moves for leave to appeal from a decision of Newton DCJ given on 15 November 1996 in which he dismissed a notice of motion on behalf of the defendant for orders under a number of sections in the Motor Accidents Act. The application for leave to appeal has only been pressed in reliance on s5OA and s52(4) of the Act.

The plaintiff was injured in a motor vehicle accident on 21 January 1992. He was 16 years of age at the time. His claim on the defendant's insurer was lodged on 2 February 1996.

It is apparent that more than 3 years had then elapsed since the accident and therefore s52(4) prima facie applied and the proceedings were

statute barred unless the plaintiff could obtain an order under that section permitting the proceedings to be brought out of time by leave.

SSOA inserted by Act No 55 of 1955 provides that:

"A claimant is not entitled to commence court proceedings against another person until the claimant has given to that person's insurer full details of the claimant's injuries, disabilities, impairments, where appropriate the prognosis for future recovery and of any claims for economic and other losses claimed as damages".

The purpose of the section, as its terms indicate, is to enable the insurer, so far as practicable, to make a proper assessment of the claimant's full entitlement to damages. A further purpose indicated by the heading to the section is the facilitation of settlement before court proceedings are commenced. Mr Donohoe has pointed to a number of deficiencies in the claim form submitted on behalf of the plaintiff, and it is fair to say that on some the claimant has a fair arguable point.

S50A has to be read, however, with s52(1A)(b), which provides that: