A man who suffered serious injuries after his motorcycle collided with a taxi at an intersection will be allowed to pursue a car accident compensation claim despite the case falling outside the statutory time limit.
Section 109(1) of the Motor Accidents Compensation Act 1999 states that plaintiffs have a three-year window in which to begin their claim. However, the courts can waive this deadline if two criteria are met, which – according to the Act – are:
In 2011, the plaintiff was riding his motorcycle east on Bridge Street in Sydney after leaving the Shangri-La Hotel following his work shift as a chef.
A taxi turned right at the intersection of Loftus Street into Bridge Street, leaving the plaintiff no time to take evasive action and causing a collision. The man was thrown off his motorcycle, resulting in injuries that required his left leg to be amputated below the knee.
The plaintiff received workers' compensation payments throughout his employment absences, as well as a lump sum from the employer's insurer for a 31 per cent whole person impairment.
The insurer advised the man that he could also make a claim for motor vehicle compensation, but the plaintiff said he was told he had six years to begin the claim.
He finally began pursuing a claim in 2014, when his employer's insurer informed him that the firm would be seeking recovery action from the taxi driver's CTP insurance supplier. A statement of claim wasn't filed until 2016.
Despite nearly five years passing since the accident, Justice David Davies of the Supreme Court granted the plaintiff leave to pursue his claim.
He accepted that the man believed he had six years to begin his case and had waited for the workers' compensation insurer to start proceedings. This fulfilled the first criteria of Section 109(1) of the Act.
On the second point, Justice Davies said the maximum amount for non-economic loss in this case would be $450,000, 25 per cent of which is $112,500.
The plaintiff's workers' compensation payments totalled more than $210,000, indicating that the man should receive in excess of $112,500 should his claim succeed, even if contributory negligence is a factor.
The man was therefore granted leave to commence proceedings for a car accident compensation claim.
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