There is often much confusion from motor vehicle accident claimants as to the length of time within which to make a claim or to bring Court proceedings for personal injury in New South Wales. This confusion is heightened in the event a claim or Court proceedings have not been made within time.
For motor vehicle accidents occurring on or after 1 October 2008, the relevant limitation periods are as follows:
- A notice of claim must be made within 6 months after the date of the motor vehicle accident pursuant to Section 72 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”).
- Section 109 of the Act provides that a claimant is not entitled to commence Court proceedings in respect of a claim more than 3 years after the date of the motor vehicle accident expect with the leave of the Court.
In the event a claimant has not lodged a compensation claim form with the relevant insurer within the 6 month time limit, the insurer will almost always require the claimant to provide a full and satisfactory explanation as to this delay pursuant to Section 72 of the Act. If the insurer rejects this explanation then the claimant can proceed to the Claims Assistance Resolution Service (“CARS”) by way of a special application or to Court.
After providing such an explanation to the insurer, there are divergent views as to whether or not the onus then shifts to the insurer in establishing that the claimant’s explanation is not full and satisfactory (Russo v Aiello [2003] HCA 53). In Russo v Aiello, the High Court held that the onus is on the insurer to satisfy the Court that the claimant does not have a full and satisfactory explanation for the delay. This ordinarily requires the insurer to specify how the claimant’s account is not “full”, and identify “why… a reasonable person in the claimant’s position would not have been justified in experiencing the same delay” (Russo v Aiello [2003] HCA 53, per Gummow and Hayne JJ at [59]).
The insurer often alleges that the Court must dismiss the proceedings unless satisfied that the claimant has given a full and satisfactory explanation for the delay in making the claim pursuant to Section 73(7) of the Act.
In the event the CARS Assessor or Court is not satisfied that the explanation is full and satisfactory, the special application or Court proceedings will be dismissed.
Given the obstacles faced by a claimant with a late claim, it is recommended that any claimants who suffer injuries in a motor vehicle accident seek advice from an appropriately qualified legal practitioner as soon as possible even if outside the time limit of 6 months or the limitation period of 3 years.
Ben Robin Emma Babbage
Partner Associate
Accredited Specialist Personal Injury
Please note that the information provided in this article is provided as general guidance only and does not constitute legal advice. For further assistance in relation to Motor Vehicle Claims please do not hesitate to contact our specialist personal injury team.