Matter: Jane Welby v Transport NSW
Matter no: To be filed
Court: The District Court of NSW
Solicitor’s name: John Pearson
With: Maryanne Welby, victim’s mother
Date: 30 June 2020 Time: 10:00am
File Note: Conversation with Maryanne Welby
Maryanne Welby came to our office on the morning of 30 June 2020 to discuss a personal injury matter in which her daughter suffered a grievous personal injury that led her to suffer epilepsy. The facts of the case as provided by Mrs Welby are as follows with notes and observations within the parenthesis: -
Instructions from the client:
The client instructed to advise upon the issues that may arise at a preliminary stage. She has not furnished any document on which she plans to rely as the evidence in support of her claim. Therefore, there is no question to go into the substantive issues involved in the case relating to the Civil Liability Act 2002 (NSW) and Evidence Act 1995.
As the matter has not originated in the court yet these are preliminary issues that may arise at the pre-trial:
Issue 1: Limitation
Transport NSW has would raise the issue of limitation. The limitation doesn’t defeat the right, it defeats the remedy. The period of limitation for filing cases for personal injury is three years from the cause of action. Provisions of the Limitation Act 1969 (NSW) as amended by the Civil Liability Amendment (Personal Responsibility) Act 2002 would apply in this case. According to this legislation, the cause of action, in this case, would not commence from the date of injury but the date of discovery of the injury. So, the period of limitation of three years would run from 20 June 2020 and not from the date of the accident i.e. 03 June 2017.
There are various other elements that were added by Schedule 1 of the Civil Liability Amendment (Personal Responsibility) Act 2002 like enlarging the scope of personal injury to include:-
(a) pre-natal injury, and
(b) impairment of a person’s physical or mental condition, and
The second part of this clause directly relates to the matter in question. Substantial changes were done by Schedule 4 of this amendment. According to part 4.6 of Limitation Act 1969 No 31, the period of limitation of three years would run from the date of discovery of the injury and not from the date of actual injury.
Issue 2: Pecuniary and territorial jurisdiction
As Jane’s injury has rendered her mentally incapable and dependant for care on another person for the rest of her life, the cost of the claim would be more than A$100,000. Therefore, the action for this tortuous claim would lie in the District Court of New South Wales whose pecuniary jurisdiction covers cases up to A$750,000.
Newcastle lies in New South Wales, Australia. Therefore, the District Court of NSW would have territorial jurisdiction in this case.
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