New South Wales Consolidated Acts

MOTOR ACCIDENTS ACT 1988 - SECT 52

52 Time limitations on commencement of court proceedings

(1) The objects of this section are:

(a) to encourage and facilitate the investigation, assessment and negotiation of a claim for damages without the commencement of court proceedings, and

(b) to impose a limitation period of 3 years for the commencement of legal proceedings for damages under this Act and to enable the extension of that period only if:

(i) the claimant can explain the reasons for the delay in not commencing the proceedings within the 3-year period, and

(ii) the claim is likely to result in an award of substantial damages,

or in the circumstances described in subsection (4A).

(1A) A claimant is not entitled to commence court proceedings against another person in respect of a claim until:

(a) 6 months have elapsed since notice of the claim was given to the other person and (if required by section 43 (4)) to the other person’s insurer, or

(b) 90 days have elapsed since the details required by section 50A were given to the other person’s insurer, or

(c) if the other person’s insurer has made an offer of settlement to the claimant before the claimant commences court proceedings, 28 days have elapsed from the date on which the claimant’s response to the offer is communicated to the other person’s insurer,

whichever is the later or latest.

(1B) Subsection (1A) (c) applies only to the first offer made by the other person’s insurer and not to any subsequent offer.

(2) If notice is given to the other person’s third-party insurer then despite subsection (1A) the claimant is entitled to commence court proceedings if any of the following occurs:

(a) the insurer denies all liability in respect of the claim,

(b) the insurer admits partial liability in respect of the claim but the claimant is dissatisfied with the extent to which liability is admitted,

(c) in the case of a late claim within the meaning of section 43A, the insurer rejects the claimant’s explanation for delay in making the claim or rejects the claim on the ground that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are less than 10% of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.

(4) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:

(a) the date of the motor accident to which the claim relates, or

(b) if the claim is made in respect of the death of a person, the date of death,

except with the leave of the court in which the proceedings are to be taken.

(4A) However, if at the end of the 3-year period referred to in subsection (4), the claimant has complied with section 50A but is unable to commence court proceedings because of the effect of subsection (1A) (b) or (c), the claimant may commence court proceedings within 28 days after the period under subsection (1A) (b) or (c), or the later of those periods, has elapsed.

(4B) 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 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.

(4C) Subsection (4B) (b) does not apply to a claimant who is legally incapacitated because of the claimant’s age or mental capacity.

(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.