Hoinville-Wiggins v Connelly [1999] NSWCA 263

New South Wales Court of Appeal CITATION : Hoinville-Wiggins v Connelly [1999] NSWCA 263 FILE NUMBER(S) : CA 40360/98 HEARING DATE(S) : 20 July 1999 JUDGMENT DATE : 27 July 1999

PARTIES : Lee Hoinville-Wiggins - Claimant Daphne Connelly - Opponent JUDGMENT OF : Mason P at 1; Stein JA at 2; Giles JA at 6

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 101/97 (Port Macquarie) LOWER COURT JUDICIAL OFFICER : Cooper DCJ

COUNSEL : D F Rofe QC & M J Walsh - Claimant C G Gee QC & D J Russell - Opponent SOLICITORS : Falvey Byrne Associates, Port Macquarie - Claimant Phillips Fox, Sydney - Opponent CATCHWORDS : MOTOR ACCIDENT - nervous shock - limitation on recovery of damages by Motor Accidents Act s 77 - claimant in school classroom when pedestrian struck on road outside - did not see or know of it until told - thereafter rendered first aid - not at scene of accident at the time it occurred - no damages. DECISION : Time for applying for leave to appeal extended to 18 December 1998, but leave to appeal refused; the appeal filed purportedly as of right struck out; and the claimant to pay the opponent's costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40360/98 DC101/97 (Port Macquarie)

MASON P STEIN JA GILES JA

Tuesday 27 July 1999

HOINVILLE-WIGGINS v CONNELLY

JUDGMENT

1 MASON P: I agree with Giles JA. 2 STEIN JA: I agree with Giles JA and with the orders be proposes. 3 While the court would have great sympathy for the claimant for what she suffered, the application for leave to appeal has to be determined on the proper construction of s 77 of the Motor Accidents Act 1988. The facts are clear. The relevant motor accident was the collision between the deceased pedestrian and the driver. When the motor accident took place, the claimant was inside a classroom in the school. She was not present at the scene of the accident when it occurred (s 77 (a)(ii)). The claimant did not suffer injury in the motor accident (s 77(a)). 4 I do not accept that 'accident' referred to in s 77 includes the intervention of the claimant (however laudable) after the collision occurred. 5 Cooper DCJ was correct in his construction of the provision. 6 GILES JA: The claimant wished to bring proceedings for damages for psychological or psychiatric injury suffered in connection with a motor accident occurring on 14 July 1993. She was out of time, and applied for leave to commence proceedings pursuant to s 52(4) of the Motor Accidents Act 1988 ("the Act"). On 8 May 1998 Cooper DCJ held that the facts disclosed in her proposed statement of claim did not, as a matter of law, entitle her to damages, and dismissed her application. 7 The claimant filed a notice of appeal without appointment, not setting out any grounds of appeal, on 1 June 1998. She filed a notice of appeal with appointment, setting out grounds of appeal, on 27 August 1998. The appeal purportedly as of right was incompetent, see s 101(2)(e) of the Supreme Court Act 1970, Hall v Nominal Defendant (1966) 117 CLR 423 and Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374. On 18 December 1998 she filed a summons claiming leave to appeal from the dismissal of her application by Cooper DCJ and an extension of time for claiming the leave to appeal. 8 Full argument on the substance of the proposed appeal was heard in conjunction with the application for leave to appeal.