Jenkins v Clark[1998] QDC 21

CHAMBERS

JUDGE BOTTING

and

and

and

BRISBANE

DATE 29/01/98

JUDGMENT

HIS HONOUR: Gentlemen, I propose to give my judgment and reasons for it now. If I could at the outset thank you both for your helpful submissions. I am indebted to you both for them and I intend no disrespect to either of you in giving my judgment now extempore and it will be some succinct. I do that because firstly I have formed a clear view as to what I think the proper construction of the relevant provisions is and, secondly quite frankly, because the Court commitments which I have over the next two months are such that if I were to reserve I doubt that you would get a decision from me within three months at least and that in itself might be somewhat optimistic. I regret that situation very much but it is, I think, something which I must take into account and leads me to take the course that I have announced.

This application is brought pursuant to the provisions of the Motor Accident Insurance Act of 1994. A chronology has been put before me and a number of affidavits read by both counsel. In fact there are before me two applications today.

The plaintiff was called and was briefly cross-examined. Counsel for the defendant does not suggest for one moment that she is a witness who is not worthy of credit as I understand it. It was not suggested to her that she is in any way misleading the Court although her evidence was very brief and touched upon I suppose in a large way fairly uncontentious matters. I was impressed with her as a witness and I certainly have no hesitation in accepting the matters that she told me about.

She was injured in a motor vehicle accident on 21 October 1994. She was driving quite a large vehicle and that vehicle was collided with, if that is the right expression, by an emergency vehicle which, as I understand her evidence, she alleges went through a red light and also failed to stop obviously at that red light. Her injuries, at least initially, would not appear to have been particularly grave although no doubt they were distressing and painful at the time and for some period thereafter.

She was taken to hospital, I understand, but was not admitted to a ward at that hospital and she appears to have continued with her studies and with part-time employment following the accident without any significant disruption. Indeed those studies were successfully completed by her, as I understand it half way through the following year, and following that she went to Cairns where she was able to use the qualifications which she had acquired in the hospitality industry.

She was prosecuted in the Magistrates Court, it being alleged against her that she had driven without due care and attention. It appears that a counsel, a barrister I should say, who was known to her father agreed to appear for her although she believes that she did not have solicitors acting for her at the time. Whatever the rights or wrongs of that situation may be she clearly had the advantages of a barrister appearing for her at the criminal proceedings and indeed those proceedings were successful.

She impressed me now as having had quite a good grasp of what the issues were during the course of those proceedings but I suppose that is not altogether surprising in the situation or in the circumstances.

In any event, as I say, those proceedings came so far as she was concerned to a successful conclusion in about mid 1995. As I understand her evidence it was about that time that she moved to Cairns and secured the employment that I have referred to. She left Cairns when the work she had in a currency exchange became less remunerative to her because of the closing of or the decision of an airline to cease flying into Cairns.

She said that whilst in Cairns her hand was still giving her problems or giving her trouble and she consulted with a doctor who essentially told her that there was little that could be done about her injuries and that they would continue. She also says that her psychological condition, if I can call it that, was such that she found it very hard to face the prospect of further litigation.

In a way that might seem a surprising assertion. She is a young woman obviously of some intelligence I would have thought and with a level of education which must be at least I would have thought average or higher than average.

On the other hand one has to bear in mind that she went through what must have been a fairly traumatic incident in being rammed by the emergency vehicle while she was going through an intersection with a green light. She then had charges brought against her which meant that the authorities must have been reasonably satisfied that they could prove beyond a reasonable doubt that she had driven without due care and attention and she went through what cannot have been the pleasant experience of having to defend those charges as I have observed successfully in the end result.

Reflecting on these matters I accept her evidence that she had problems facing the prospect or thinking about the prospect of further litigation and that it was only towards the latter part of last year that she felt she had enough strength to pursue the matter further.

The chronologies that have been put before me are in evidence and, as I understand it, they are not contentious. She had telephone contact with a solicitor in September of 1997 and retained solicitors in October of 1997. A blank section 37 notice was forwarded to her for completion at the time that she retained those solicitors. The plaint herein was filed on 16 October 1997 and the defendant served the same day. On 21 October the limitation period expired. About a fortnight later she swore a section 37 notice which was then forwarded to her solicitors and served on the first defendant on 8 November 1997.

The defendants requested that she discontinue the proceedings on 27 November 1997 and on 11 December her solicitors advised the defendants' solicitors of their intention of bringing this application. A section 37 notice was forwarded to the defendant on 19 December, being received by the defendant on 22 December. This application was filed on the second day of this year.

I have been referred to a decision of His Honour Judge Newton and to three other cases involving judges of this Court who have all been called upon in one context or another to construe the provisions of division 3 of part 4 of the Act.

It has been urged strenuously upon me by Mr Tait on behalf of the defendant that the requirements of that division are mandatory and notwithstanding the provisions of subsection C of subsection 5 of section 39 a plaintiff who fails to comply with their provisions will be precluded from pursuing the claim except in certain circumstances.

He refers to section 57 and suggests that that might perhaps in conjunction with the provisions of subsection C of subsection 5 of section 39, serve to ameliorate what otherwise might appear to be somewhat harsh and stringent provisions of division 3.

I think there is force in his submissions but I take, with respect, a contrary view. It seems to me that what is done in division 3 is set out the “rules of the game”, as it were, the procedures which must be followed by those who wish to bring claims and they are somewhat onerous it might be thought both upon plaintiff's and also, to some extent, upon insurers.

It seems to me that subsection C has been included to allow a Court a fairly wide discretion to, in appropriate cases, give leave so that a just case may be heard or that a case may be heard in a just way.

My reasons for thinking that are: firstly the scheme of the Act itself. As I have said it seems to me to set out a series of fairly demanding requirements and they are followed, by what appears to me, to be very wide language of subsection C. It reads: “A claimant may bring a proceeding in a Court for damages based on a motor vehicle accident and claim only if...”and then it has the two irrelevant requirements in C “...the Court gives leave to bring the proceedings despite non-compliance with the requirements of this division”.

That language it seems to me, as I say, is very clear and is very wide. I see no reason to read it down to give it anything other than its natural meaning.

I therefore conclude that I do have a discretion which seems to me should be a wide discretion, in appropriate cases, to grant the leave contemplated by subsection C. That leaves me to consider whether, in the circumstances of this case, such leave should be granted.

The obligation on the plaintiff was of course to give notice within nine months of the accident, that is in the circumstances of this case and that she has clearly failed to do and failed to do by a considerable period. The defendant would have become aware of the prospect of these proceedings only shortly prior to the expiration of the limitation period.

If one looks at the circumstances of the accident, as I have said, it involved an emergency vehicle colliding with a vehicle being driven by the plaintiff. That leads me to suspect, or to suppose, that it is likely that there would have been fairly rigorous inquiries made by those responsible for the operation of that emergency vehicle as to the circumstances of the accident. That view is fortified by the knowledge that in fact a prosecution was launched, which makes me conclude that it is almost certain that inquiries were made and statements were taken from all relevant witnesses.

It seems to me that this is a case where it is most unlikely that any prejudice would be occasioned to the defendant insurer so far as ascertaining the facts or circumstances of the incident and obtaining witnesses, or should witnesses be deceased, obtaining statements signed by such witnesses.

Indeed in fairness to the defendant it has not been submitted to me that there is any evidence of prejudice to the defendant if this matter is to proceed. So it seems to me that I can, fairly comfortably, work on the basis that if the matter is to proceed there would not be any significant prejudice to the defendant by that happening.

The plaintiff, it seems to me, clearly suffered personal injuries in the incident and it seems to me that the likelihood is that she has, from the little I have been told, a good prospect of showing negligence in the driver of the emergency vehicle. It does not seem to me to be in the public interest that such claims should be denied, or that such a claimant should in those circumstances be denied the opportunity of at least being heard. I can see no public utility in that.

At the end of the day I am persuaded that this is a proper case for me to exercise any discretion in favour of the plaintiff and give the leave that is sought under subsection 5C. The issue arises whether such leave can be given now after the proceedings have been commenced. In that case I am fortified by the fact that, as I understand, at least four of my colleagues have come to an affirmative conclusion in that regard and it seems to me that it is indeed permissible for me to give such leave nunc pro tunc and I propose to do so.

As I say my reasons are perhaps a little more succinct than you might be entitled to expect. Is there any particular matter that either of you would wish me specifically to refer to that I have not touched upon?

MR TAIT: No, thank you very much, it was very clear.

MR dePLATER: No, Your Honour.

HIS HONOUR: Thank you, gentlemen. It seems to me, as I say, I should give the leave sought. Do you have a draft Order?

...

HIS HONOUR: Thank you. I order in terms of paragraph 1 of the summons which issued on 7 January 1998. On that summons I make no order as to costs.

On the summons filed on 23 December 1997 I order that the summons be dismissed and I order that the applicant pay the respondent's costs of the summons to be taxed.