SEIB v MORTON [2000] NSWCA 139

New South Wales Court of Appeal

CITATION : SEIB v MORTON [2000] NSWCA 139 FILE NUMBER(S) : CA 40647/98 HEARING DATE(S) : 26 November 1999 JUDGMENT DATE : 26 June 2000

GEORGE SEIB PARTIES : v KEVIN JOHN MORTON JUDGMENT OF : Priestley JA at 1; Meagher JA at 33; Handley JA at 34; Sheller JA at 60; Brownie AJA at 61

LOWER COURT JURISDICTION : District Court LOWER COURT DC 2877/88 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER :

COUNSEL : A R Lakeman/C H Weston (Appellant) C R R Hoeben SC/ M A Elkaim (Respondent) SOLICITORS : H D W Ross, Gordon (Appellant) Sparke Helmore (Respondent) CATCHWORDS : MOTOR ACCIDENTS - leave to commence proceedings out of time - whether extension of time would prejudice defendant LEGISLATION CITED : Motor Accidents Act 1988 (NSW) CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 DECISION : Appeal allowed with costs - orders made

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40647/98 DC 2877/88 PRIESTLEY JA MEAGHER JA HANDLEY JA SHELLER JA BROWNIE AJA

26 June 2000

SEIB v MORTON

MOTOR ACCIDENTS - leave to commence proceedings out of time - whether extension of time would prejudice defendant The appellant was injured in July 1994 when the taxi he was driving was struck from behind by a car driven by the respondent who was driving with a blood alcohol concentration three times the legal limit. The appellant did not consult a solicitor until January 1996. The solicitor then gave a notice of the claim and filed a statement of claim in the District Court the same day contrary to s 52(1) which prohibited the commencement of proceedings 6 months after the giving of notice of the claim. Those proceedings were discontinued in July 1996. Before this happened the applicant answered a request for particulars, the respondent had admitted liability and arranged for the appellant to be medically examined. The examination took place two weeks after the discontinuance. The Judge dismissed the application on the ground that the respondent would be prejudiced if the extension was granted. His Honour found that (1) the delay in the proceedings denied the respondent the opportunity to investigate the medical position at an early time and this had caused prejudice and (2) the respondent did not have the opportunity, at an early time, to consider the appellant's claim for economic loss. HELD, on appeal by leave, allowing the appeal: (1) The Judge erred in approaching the question of prejudice on the assumption that the three year limitation period expired on 17 July 1997 when it expired on 17 January 1998. This was significant because the appellant was seeking an extension of a little over three months whereas his Honour thought he was seeking an extension of over 9 months. (2) The Judge's finding of actual prejudice to the respondent could not be supported. There was no proper basis for a finding that the respondent would be prejudiced in the sense of being unable to have a fair trial of the appellant's claims. The respondent had and exercised the opportunity to have the medical issues investigated at a comparatively early stage well within the limitation period. He had been supplied with a great deal of the appellant's medical evidence in January 1996 within 18 months of the accident and had the benefit of the medical examination of the appellant by the doctor of its choice just 2 years after the accident. (3) The only relief sought by the appellant was the lifting of the time bar under s 52(4) of the Act which required proceedings to be commenced within 3 years and 6 months of the accident. This limitation period in itself could not ensure that the respondent had the opportunity at an early time to investigate the medical issues, or the appellant's claim for economic loss. It could only ensure that the respondent had that opportunity prior to or within a short time of the expiration of the limitation period. The loss of an opportunity to do this any earlier cannot be treated as a prejudice flowing from the extension of this period. (4) Liability was clear, and the respondent would not be prejudiced by the delay in establishing contributory negligence based on the appellant's failure to wear the available seat belt. ORDERS