Sinclair v Darwich [2010] NSWCA 195

New South Wales Court of Appeal

CITATION: Sinclair v Darwich [2010] NSWCA 195

HEARING DATE(S): 5 August 2010 JUDGMENT OF: Young JA at [1], [42]; Handley AJA at [40]; Sackville AJA at [41]

EX TEMPORE JUDGMENT DATE: 5 August 2010

DECISION: The application for leave to appeal is dismissed with costs.

LEGISLATION CITED: Motor Accidents Compensation Act 1999, s 109

CATEGORY: Principal judgment

Baker v Salagiannis [2009] NSWCA 385 CASES CITED: Holt v Wynter (2009) 49 NSWLR 128 Reeves v Reeves [2002] NSWCA 181 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367

PARTIES: Wayne Sinclair (Applicant) Daniel Darwich (Respondent)

FILE NUMBER(S): CA 2010/39177

COUNSEL: W H Fitzsimmons (Applicant) K Andrews (Respondent)

SOLICITORS: Hunt & Hunt (Applicant) Carneys Lawyers (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4432/08

LOWER COURT JUDICIAL OFFICER: Levy DCJ

LOWER COURT DATE OF DECISION: 18 November 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Darwich v Sinclair [2009] NSWDC 295

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2010/39177

YOUNG JA HANDLEY AJA SACKVILLE AJA

Thursday 5 August 2010 SINCLAIR v DARWICH Judgment 1 YOUNG JA: This is the concurrent hearing of an application for leave to appeal from a decision of the District Court and, if leave is given, a determination of the appeal. 2 The proceedings arise out of an incident that occurred on 27 February 2001. It seems tolerably clear that at about 6.45 pm on that date the respondent, then thirteen-years-old, was involved in an incident in a water shop in Juno Parade, Greenacre which caused the person apparently in charge of that shop, a gentleman of Asian extraction, to chase the respondent out of the shop and along Juno Parade possibly whilst holding a piece of wood. That person was referred to below as "the Asian man" and I will do the same. 3 The respondent decided to escape by running out onto Juno Parade. He seems to have been running diagonally. He safely passed through the eastern-bound lane but was hit by a vehicle being driven by the applicant whilst running across the western-bound lane. He was injured and taken to hospital. The police called at the scene. As will appear, the recollections of the two police officers who attended the scene are weakened by the delay and the notebook of one of them is missing. However, the respondent's mother swore an affidavit that one of the policeman said to her at the hospital that the applicant was not speeding and the accident was the respondent's fault for running across the road. The primary judge noted this, but said that that preliminary view of the police was not conclusive though it may have had the effect on the respondent's mother of inhibiting her from having her son take legal action. 4 Statements of bystanders made at the time suggest that the respondent ran across the road without looking. Those statements also confirm the police view that the accident was probably the respondent's fault. 5 The proceedings before the District Court were brought because no proceedings were commenced in respect of the accident until 19 September 2008. However, a claim form had been lodged with the applicant's insurers on 10 May 2007. 6 Section 109 of the Motor Accidents Compensation Act 1999 (the MAC Act) precludes a person from commencing proceedings in respect of a motor vehicle accident after three years from the date of the accident unless the relevant court gives leave. Section 109(3) of the MAC Act provides as follows: "The leave of the court must not be granted unless: (a) The claimant provides a full and satisfactory explanation to the Court for the delay; and (b) The total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 as at the date of the relevant motor accident."