HENRICKS v AGNEW [1997] NSWCA 145

HENRICKS v AGNEW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE, BEAZLEY and STEIN JJA 5 September 1997, 23 October 1997 [1997] NSWCA 145

DAMAGES under Motor Accidents Act 1988 — time limits in relation to claim of damages — "late claims" — consideration of statutory provisions — Motor Accidents Amendment Act 1995 and 1997 — consideration of test regarding granting of leave to commence proceedings beyond time — Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866 considered.

Cole JA On 28 February 1997 Phegan ADCJ granted leave to the respondent pursuant to s52(4) Motor Accident Act 1988 as amended to commence proceedings in respect of a claim arising out of a motor accident which occurred on 26 June 1990, provided such proceedings were commenced by 28 March 1997. So far as the material placed before this Court discloses the form of order has not been taken out nor have the proceedings been commenced. On 19 May 1997 this Court granted leave to Craig Wilson Agnew, the prospective defendant, to appeal.

FACTUAL BACKGROUND TO THE APPLICATION

The respondent suffered a lifting injury to his back whilst at work on 31 October 1989, which injury caused him sharp and severe pain. Thereafter intermittently prior to June 1990 he had periods of time off work and had physiotherapy treatment. On 29 June 1990 he was involved in a motor accident whilst travelling to work. It is his case that that motor vehicle accident occasioned an aggravation to his pre-existing back injury for which the appellant is responsible entitling the respondent to damages under the Motor Accidents Act 1988.

The respondent's employers workers compensation insurer was Manufacturers Mutual Insurance (MMI). That insurer arranged for the respondent to be examined by Dr O'Donovan on 28 August 1990, he having apparently had a CT scan on 25 July 1990 at Sydney Hospital. A further CT scan was taken on 14 August 1991 after he saw Dr Dan on 12 August 1991. In late 1991 or early 1992 Dr Dan performed an epidural block. A Dr Rothery, an MMI in-house doctor, conducted a review of the respondent on 11 June 1993 having reported on him on 16 July 1990. However his back problem was not cured. Following a further CT scan in late 1993 or early 1994 he was referred again to Dr Dan who on 19 August 1994 performed a laminectomy. In May 1995 the respondent alleges he developed pain in both legs and ceased work. He had an MRI scan in August 1995.