FRAME v DICKINSON [1997] NSWCA 113

FRAME v DICKINSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY and BEAZLEY JJA 27 October 1997

[1997] NSWCA 113

Handley JA Mr Barry QC has moved for leave to appeal from a decision of Christie DCJ given on 20 May this year in which he dismissed an application by the claimant for an extension of the 3 year limitation period in s52(4) of the Motor Accidents Act. Mr Barry has said everything that could possibly have been said on behalf of the claimant, but the Court is not satisfied that the Judge committed any error of principle and the case therefore involves weighing all the circumstances to determine whether an extension should have been granted.

The claimant was injured on 17 May 1991. The Judge found that the circumstances of the collision were such that the delay would not cause any prejudice to the defendant on the issue of liability.

The claimant suffered a soft tissue injury to her neck. There was an immediate onset of symptoms and her own evidence demonstrates that she received regular medical attention for her neck over the whole period from shortly after the accident until proceedings were commenced and the application for an extension was lodged, a period of some 6 years.

The Judge weighed the various factors favouring the grant or refusal of an extension, but in the end concluded that there would be very real prejudice to the defendant if an extension were to be granted. The delay is substantial and, of course, the defendant has been denied the opportunity to have the cl~imant medically examined at a much earlier stage in the development of her condition. The Court has not been persuaded that there was any error of principle in his Honour's reasons, or that the exercise of his discretion otherwise miscarried.

The summons for leave to appeal will therefore be dismissed with costs.