Australia: Section 109(3) monetary threshold merely requires proof of a "real and not remote" chance

Curwoods Case Note
Last Updated: 12 July 2012
Article by Dewashish Adhikary

Judgment date: 4 July 2012

Eades v Gunestepe [2012] NSWSC 204

NSW Court of Appeal1

In Brief

  • Section 109(3)(b) of the Motor Accidents Compensation Act (MACA) requires the court to merely consider whether there was a "real and not remote chance or possibility" that a claimant's contributory negligence would be assessed at a level which engages the monetary threshold.
  • A claimant carries the onus of establishing the matters set out in s 109(3)(b).
  • A court, in applying s 109(3)(b), can make its own predictive assessment of likely damages for non-economic loss even though an assessment of permanent impairment has not been made by a Medical Assessor.


The plaintiff, Kadriye Gunestepe, sustained injuries as a result of a motor vehicle accident which occurred on 2 September 2007. The insurer admitted breach of duty of care but alleged contributory negligence. Ms Gunestepe commenced proceedings in the District Court of NSW one day after the 3-year limitation period prescribed by s 109 of the MACA had expired. In issue was whether her contributory negligence was such as to defeat the monetary threshold contained in s 109(3)(b).

Relevant Law

Section 109(3) provides that:

"The leave of the Court must not be granted unless:

  1. the claimant provides a full and satisfactory explanation to the court for the delay, and
  2. 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 section 134 as at the date of the relevant motor accident."

At Trial

The trial judge ascertained Ms Gunestepe's likely entitlement to damages was $120,000. He had limited evidence on the issue of contributory negligence. There was no oral evidence or cross-examination. He found that the damages should be reduced by 10% for contributory negligence. The sum assessed was $108,000, above 25% of the maximum amount for non-economic loss, which was $91,500.

His Honour did not take non-economic loss into account because there had been no assessment of whole person impairment by a Medical Assessor.

Upon Appeal

The Court of Appeal found that the District Court Judge had applied the wrong test with respect to s 109(3)(b).

Hoeben JA stated at [45]:

"What his Honour was required to decide was whether there was a 'real and not remote chance or possibility' that the respondent's contributory negligence would be assessed at 24 percent or less. He was not required to make a specific assessment of contributory negligence. The task which his Honour had to undertake was that described in Sinclair v Darwich 2 ."

The Court in Sinclair had observed at [37]:

"The structure of the Act such as the MAC Act is to assume that the plaintiff will succeed however the court has to assess whether there is a real chance of the verdict exceeding the barrier after considering the reduction for contributory negligence. Now if at the trial the statements of the bystanders is accepted there is a very great likelihood that the respondent was at least as culpable as the driver, probably more so, and it may be that a verdict of fifty percent contributory negligence may be found, however that is not the question. The question is whether there is a real chance of the contributory negligence being assessed at forty percent or less and it seems to me that that answer must be that there is a very real chance of that happening."

After considering the evidence, the Court concluded that there was a real chance that Ms Gunestepe's contributory negligence would have been assessed at 24% or less, thus preserving an entitlement to damages in excess of the threshold.

Who Bears the Onus?

Hoeben JA concluded that as s 109(3) is in the form of a prohibition rather than a grant, the claimant carries the onus of establishing the matters set out in that provision.

Is a Predictive Assessment of Non-Economic Loss Permissible?

At [59] Hoeben JA stated:

"I can see no reason why a court in applying s 109(3)(b) cannot make its own predictive assessment of likely damages for non-economic loss even though an assessment of permanent impairment of more than 10 percent has not been made by a Medical Assessor in accordance with ss 131 and 132 of the MAC Act. This is particularly so when s 109(3)(b) will normally be invoked at an early stage in proceedings before any assessment of permanent impairment has taken place."

Although the trial judge had applied the wrong test under s 109(3)(b), the Court of Appeal concluded that the plaintiff had discharged her onus in relation to the monetary threshold. As such, the insurer's appeal was dismissed.


A claimant carries the onus of establishing that the likely damages to be assessed, were a grant of leave under s 109 to be made, exceeds the monetary threshold. However, where contributory negligence is alleged, all he or she must do is prove that there is a real and not remote chance or possibility that the extent of that negligence does not reduce the likely damages below the threshold.

When assessing likely damages, the Court is entitled to carry out a predictive exercise with regard to whole person impairment even though the dispute has not yet been determined by a Medical Assessor.


1 Basten and Hoeben JJA, and Tobias AJA
2 [2010] NSWCA 195; 77 NSWLR 166

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