RITA HARIKA v STANLEY TUPAEA [2003] NSWCA 332

Reported Decision : 58 NSWLR 675

New South Wales Court of Appeal

CITATION : RITA HARIKA v STANLEY TUPAEA [2003] NSWCA 332 HEARING DATE(S) : 17 October 2003 JUDGMENT DATE : 11 November 2003

JUDGMENT OF : Mason P at 1; Tobias JA at 48; Foster AJA at 49 DECISION : Appeal upheld

CATCHWORDS : Negligence - motor accident - damages - Motor Accidents Act 1988, s43A - late claim - whether full and satisfactory explanation - whether court satisfied that damages likely to be awarded did not pass threshold - "likely". (D) PARTIES : RITA HARIKA v STANLEY TUPAEA FILE NUMBER(S) : CA 41234/2002 COUNSEL : Appellant: K P Rewell SC / A Capelin Respondent: M Elkaim SC SOLICITORS : Appellant: Carroll & O'Dea Respondent: Abbott Tout

LOWER COURT District Court JURISDICTION : LOWER COURT DC 1685/02 FILE NUMBER(S) : LOWER COURT Karpin DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41234 of 2002

MASON P TOBIAS JA FOSTER AJA

Tuesday 11 November 2003

RITA HARIKA v STANLEY TUPAEA

The appellant was a passenger in a stationary car that was hit from behind by a car driven by the respondent. She suffered soft tissue injuries.

The claim on the respondent's insurer was not made until 15 months after the accident. Accordingly, under s43A of the Motor Accidents Act 1988, the respondent was entitled to have the proceedings dismissed if he satisfied the court (1) that the appellant did not provide a full and satisfactory explanation for the delay in making her late claim, and; (2) that the total damages of all kinds likely to be awarded if the claim succeeded was less than 10% of the maximum that could be awarded for non-economic loss at the date of the accident.