Salinger & Booth v Estate Booth [2006] NSWDC 100

New South Wales District Court

CITATION: Salinger & Booth v Estate Booth [2006] NSWDC 100

HEARING DATE(S): 17 November 2006

JUDGMENT DATE: 22 November 2006

JUDGMENT OF: Sidis DCJ

DECISION: Application dismissed

CATCHWORDS: Dismissal s 73(3)(c) - Full and satisfactory explanation

LEGISLATION CITED: Motor Accidents Compensation Act 1999

Kate Salinger PARTIES: Mallory Damian Booth bht Kate Salinger v Estate of the late James Leigh Booth

FILE NUMBER(S): Newcastle 379 of 2006

COUNSEL: Plaintiff C Hart Defendant P Cummings

SOLICITORS: Plaintiff Burgess Foat Defendant Moray & Agnew

JUDGMENT HER HONOUR

1 Kathleen Salinger has commenced proceedings under the Motor Accidents Compensation Act 1999 on behalf of herself and her son Mallory.

2 They claim nervous shock arising out of the deaths on the 1 June 2003 of Ms Salinger's husband, James Booth, and her daughter of a prior relationship, Samantha. They died when Mr Booth drove the vehicle in which Samantha was the only passenger at speed into a rock wall on the F3 Freeway. Immediately prior to their deaths, Samantha had been speaking to Ms Salinger by telephone. She had confirmed information that Ms Salinger had received earlier that day to the effect that she had been sexually assaulted by Mr Booth.

3 Later that day Mr Booth's mother told Ms Salinger that Mr Booth had himself been sexually abused by his stepfather in activity in which his mother had been involved.

4 Thus 1 June 2003 was a day of considerable trauma for Ms Salinger.

5 A statement of claim was filed on 11 August 2006. The defence of 6 September 2006 admitted breach of the duty of care but claimed that there had not been a full and satisfactory explanation of the delay in giving notice of the claim. The claim was forwarded to the insurer on 22 August 2005. An application was filed by the defendant on 28 September 2006 for orders dismissing the proceedings.