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  4. McAauley v Tradelink Plumbing Supplies - [1999] QDC 9

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McAauley v Tradelink Plumbing Supplies[1999] QDC 9

McAauley v Tradelink Plumbing Supplies[1999] QDC 9

DISTRICT COURT

Plaint No 2666 of 1998

CIVIL JURISDICTION

JUDGE BRABAZON QC

ROBERT WILLIAM MCAULEY

Plaintiff

and

TRADELINK PLUMBING SUPPLIES

First Defendant

and

CRANE DISTRIBUTION LIMITED

Second Defendant

and

VACC INSURANCE

Third Defendant

BRISBANE

DATE 05/02/99

JUDGMENT

HIS HONOUR: In this case I have found that the time should be extended and I publish my reasons. There will be a question of costs.

...

HIS HONOUR: It is ordered that the plaintiff be granted leave to bring the proceedings of 23 June 1998, despite non-compliance with the requirements of division 3 of the Motor Accident Insurance Act 1994. I order that the costs of and incidental to this application be costs in the cause.

IN THE DISTRICT COURT

 

HELD AT BRISBANE

QUEENSLAND

[Before Brabazon Q.C. DCJ]

[Robert William McAuley v Tradelink Plumbing Services & Ors]

Plaint No 2666 of 1998

BETWEEN:

ROBERT WILLIAM McAULEY

Plaintiff

AND:

TRADELINK PLUMBING SUPPLIES

First Defendant

AND:

CRANE DISTRIBUTION LIMITED

Second Defendant

AND:

VACC INSURANCE

Third Defendant

JUDGMENT

Judgment delivered: 5 February 1999

Catchwords:

Motor Accident Insurance Act 1999 - sections 34, 37 & 39. Effect of non-compliance, “nunc pro tunc”.

Counsel:

Mr M Howe for the plaintiff

 

Mr K Holyoak for the third defendant

Solicitors:

Baker Johnson for the plaintiff

 

Gadens for the third defendant

Hearing Date(s):

21 December 1998

IN THE DISTRICT COURT

HELD AT BRISBANE

QUEENSLAND

Plaint No 2666 of 1998

BETWEEN:

ROBERT WILLIAM McAULEY

Plaintiff

AND:

TRADELINK PLUMBING SUPPLIES

First Defendant

AND:

CRANE DISTRIBUTION LIMITED

Second Defendant

AND:

VACC INSURANCE

Third Defendant

REASONS FOR JUDGMENT - JUDGE BRABAZON Q.C.

Delivered the 5th day of February, 1999

Mr McAuley wishes to claim for damages for personal injuries caused by a motor vehicle accident. He faces an obstacle, created by non-compliance with s. 37 of the Motor Accident Insurance Act 1984 in that a notice required by that section was given after the nine months allowed.

This application requests the court to extend the time within which Mr McAuley can comply with the requirements of s. 37.

The Facts

This is an interlocutory application. The facts are asserted in affidavits. They have not been finally assessed by the court. The following facts are taken to be true, for the purposes of this application.

On Thursday 16th November 1995 Mr McAuley was employed by the Underwood office of Tradelink Plumbing Supplies. He was driving a Tradelink vehicle when it ran off the road. The road was wet and he lost control of the vehicle. He was taken to hospital by ambulance. Police attended the scene, and made a report. He went to work on the Saturday morning, but was then away from work until 3rd December. He suffered pain. While away, he saw two doctors at his usual family practice, and had several visits to a physiotherapist. He lodged an application for workers' compensation on 21 November.

While he was at work on Saturday, 18th November, a workmate, Alan Dear, explained to him that the tyres on the vehicle that he had been driving were bald. He said that the condition had been reported by Dear to an area manager, but the tyres had not been changed by the time of the accident.

At a later time he spoke to another workmate, Gordon Daniels, about the bald tyres. His information corroborated, in effect, what Dear had said. The later information also indicated that the defective tyres were changed not long after his accident.

He continued to suffer symptoms from his injuries. His WorkCover application resulted in an appearance before the Workers' Compensation Tribunal on 28th October 1995. By that time, he had obtained advice from solicitors, Robert Burns & Co. Those solicitors advised him that he had three years within which damages for personal injury could be claimed. Neither the solicitors' letter of 30th October 1996 or a following letter of 18th February 1997, suggested that there was any constraint, other than the three year limitation period. The first letter also mentioned his instructions, that the vehicle was thought to have defective rear tyres at the time of the accident. In that letter, reference was made to his “potential claim for damages against your employer”. He was advised that he might have a claim for damages against the employer. A proper investigation of liability was suggested before substantial sums of money were spent.

Mr McAuley was anxious about his position. He consulted another firm of solicitors, I R Shepherd & Associates, on 2nd December 1996. Those solicitors were aware of the requirements of the MAI Act. On 8th January 1997 they wrote to VACC Insurance, the third party insurer and third defendant in this action, mentioning the requirements of s. 34 of the Act. Some brief details about Mr McAuley and his accident were supplied.

Those solicitors had noted s. 34(1)(b) which required a person in Mr McAuley's position to notify the third party insurer within one month after that person first consulted a lawyer about the possibility of making a claim for damages. For that reason, an explanation for the delay was given - that he first consulted a lawyer in that firm on 2nd December, that he was unaware of the registration and insurance details of the vehicle he was driving, and that his new solicitors had to make the usual searches.

The evidence here does not disclose the response from VACC, if any. Then, on 6th March 1997, Mr McAuley signed and swore a statement, headed “Personal Injury Notice of Claim”. That notice was received by VACC Insurance on 15th April 1997.

Therefore, the notice did not comply with s. 37(2) of the Act, which required that it be given within nine months after the motor vehicle accident, or the first appearance of symptoms of the injury. As his symptoms arose at the time of the accident, that period had expired on 16th August 1996.

VACC Insurance responded on 9th May 1997. The letter stated that it was not satisfied that the s. 37 notice complied with the requirements of the Act - it was not given within nine months, and did not contain an explanation of the delay, as required by s. 37(4) of the Act. The letter continued:

“We will allow you until 30th May 1997 to provide a satisfactory explanation for the late notification to remedy the non-compliance before the expiration of one month of (30th May 1997). We will further respond as required by s. 39(1)(b).”

In a letter of 30th May 1997, Messrs Shepherds responded. The explanation for delay given in their letter of 8th January 1997 was reiterated. In addition, it was asserted that it was only because of the continuation of symptoms after his WorkCover claim was finalized that he sought information concerning any other remedy available to him, and that he was unaware of the requirement to submit a notice within nine months of the accident.

VACC Insurance responded by its letter of 17th July 1997 (rather than within the one month allowed by s. 39(1)(b)). Liability in respect of the incident was denied. The letter went on: “Should your client proceed, the issue of late notification will be raised.”

The letter also continued to provide information on the question of the tread depth on the vehicle's tyres. It concluded by saying, “If your client has evidence to the contrary, please provide same to us.”

Then followed an argumentative exchange of correspondence between Mr McAuley's new solicitors (Messrs Baker Johnson) and VACC Insurance. The subject of the exchange was the presence, or absence, of bald tyres on the vehicle at the time of the accident. In short, Messrs Baker Johnson asserted that the two workmates, Messrs Dear and Daniels, had given statements saying that the tyres were bald, while VACC Insurance responded with the information that new tyres had been fitted to the vehicle not long before the accident, and that an inspection of the vehicle on 27th November 1995 showed 4mm of tread - over the legal minimum depth. In its letter of 10th December 1997, VACC confirmed its denial of liability. It noted that it was “heavily prejudiced by an inability to make early investigations into the allegations he makes (of the bald tyres). Your client has failed to comply with the provisions of the Motor Accident Insurance Act in this regard and we intend to strenuously defend the action on the basis of the information available to us, should proceedings be instituted.”

On 17th September 1998, Messrs Gadens, lawyers, wrote on behalf of VACC. The question of the delay of more than nine months was repeated.

On 23rd June 1998 a plaint had been filed, commencing proceedings in this court, despite the procedural difficulties. This application was filed on 6 November 1998. The three year limitation period expired on 16 November 1998.

Finally, mention should be made of two things about which there is no evidence. First, there is no evidence about VACC Insurance's receipt or non-receipt of any written notice about an accident causing personal injury, required to be given by Tradelink within one month - see s. 34(1)(A). Secondly, there is no evidence from VACC Insurance, suggesting any actual prejudice caused by the passing of time, or an inability to investigate the issue of the bald tyres.

The Provisions of the MIA Act

A photocopy of the relevant provisions is attached to this judgment.

Chronology

A chronology of the relevant events is also attached to this judgment.

The Decided Cases

These propositions have now been established by the decided cases:

  1. 1.Both in New South Wales and Queensland it has been held that provisions such as s. 37(1) and s. 39(5) are mandatory. Where they have not been complied with, then valid legal proceedings cannot be commenced. If they are commenced, then they are of no legal effect. See Serhan v Serhan (1996) 24 MVR 4, Young v Nominal Defendant (Court of Appeal No.225 of 1987, judgment 22nd May 1998 unreported) and Couling v Nelson (White J, Supreme Court of Queensland, No. 9521 of 1998, judgment 4th September 1998, unreported.)
  2. 2.Where proceedings are commenced before the requirements in s. 39(5) have been met, leave to bring the proceedings despite non-compliance with the Act requirements may be given nunc pro tunc - that is, given now but relating back to the commencement of proceedings. That has been held by Forde DCJ in Hardacre v Johnson & Suncorp General Insurance Ltd (D.C. No. 5102/97, judgment 27/1/98, unreported) and by Wilson J in McKelvie v Page & Ors (Writ 2801 of 1998, judgment 18th September 1998, unreported.)

The Non-Compliance

The Personal Injury Notice of Claim did not comply in two respects - it was given outside the allowable nine months, and did not contain an explanation of the delay (there were other omissions as well, but no point is taken about them).

It is immediately apparent, that deficiencies in the notice may be remedied but that it is impossible to remedy the undue passing of time. Once an explanation for the delay is given, then VACC Insurance had the choice of waiving the failure to comply with the nine month limit, or refusing to waive it. It is clear enough from the VACC Insurance letter of 17 July 1997, that the issue of late notification was not waived.

The letter of 9th May did not allow Mr McAuley the required one month for a response. However, as his solicitors replied promptly on 13th May and did not complain about the twenty-one days allowed, it can be taken that they waived the requirement which was for their client's benefit. Also, the VACC Insurance response of 17th July 1997 was out of time. However, the legislation does not provide for any particular consequence of that slowness.

As notice of the claim was given to VACC Insurance, which did not waive compliance with the actual requirements, and denied liability, the plaintiff had no right to bring proceedings in this Court. The plaint was ineffective.

However, an application to the court can be made to remedy the position. See s. 39(5)(b). There is no possibility of a declaration that the notice of the claim has been given as required under s. 37, or that Mr McAuley is taken to have remedied his slowness. Rather, he now asks leave to bring the proceedings despite non-compliance with the requirements of the Act - see s. 39(5)(c).

Some mention was made of s. 57 being a barrier to the present application for leave to bring the proceedings. However, as the application was filed before the expiry of the limitation period, and as the s. 37 Notice was given to the insurer, s. 57 presents no obstacle to the present application.

Therefore, the plaintiff asks for an exercise of the court's discretion in his favour. These appear to be the relevant matters which should be taken into account:

  1. (a)
    Mr McAuley was not personally aware of the requirement to give a notice within nine months, and neither were his first solicitors aware of it;
  2. (b)
    The notice was given once his second firm of solicitors was consulted;
  3. (c)
    In any case, the tyres on the vehicle were apparently changed quite quickly after the accident, and well before the expiry of the nine month period;
  4. (d)
    VACC Insurance had the benefit of statements from Messrs Dear and Daniels, with regard to the state of the vehicle's tyres;
  5. (e)
    VACC Insurance does not rely on actual prejudice suffered by it;
  6. (f)
    There is no need to make an assessment of the plaintiff's prospects of demonstrating liability - it is sufficient to say that the presence of such bald tyres could well be evidence of negligence on the part of Tradelink;
  7. (g)
    After liability was denied, there was a continuing exchange of information about the accident;
  8. (h)
    There are procedural faults on both sides.

Those factors point clearly enough to an exercise of discretion in Mr McAuley's favour.

It is ordered that the plaintiff be granted leave to bring the proceedings of 23rd June 1998 despite non-compliance with the requirements of Division 3 of the Motor Accident Insurance Act 1994.

Further submissions may be made about the costs of this application.

MOTOR ACCIDENT INSURANCE ACT 1994

Reprinted as in force on 28 July 1997

(includes amendments up to Act No. 54 of 1996)

Reprint No. 2

This reprint is authorised by the Parliamentary Counsel and printed by the Government Printer

under a CTP insurance policy under this Act for the motor vehicle.

(2) If the insurer under a CTP insurance policy becomes insolvent, the Nominal Defendant becomes the insurer under CTP policies in force under this Act for which the insolvent insurer was formerly the insurer unless the policies are transferred to some other licensed insurer.

(3) The Nominal Defendant is liable for personal injury arising out of a motor vehicle accident outside Queensland only if the liability arises under subsection (2).

Division 2—Duty to notify accidents and claims and provide information

Duty to notify accidents

  1. 34.
  1. (1)
    If personal injury arises from a motor vehicle accident—
  1. (a)
    the driver, person in charge or owner of the motor vehicle involved in the accident must give written notice to the insurer of the motor vehicle within 1 month after the accident; and
  2. (b)
    a person who proposes to claim damages for personal injury arising from the accident must give written notice to the insurer, or 1 of the insurers, against whom the claim may be made within 1 month after the person first consults a lawyer about the possibility of making a claim.
  1. (2)
    A notice under this section must—
  1. (a)
    state the date, time and place of the accident and describe how it happened; and
  2. (b)
    identify all motor vehicles and drivers involved in the accident as far as known to the person by whom the notice is given; and
  3. (c)
    state the names and residential addresses of all persons injured in the accident; and
  4. (d)
    if the notice is to be given by an intending claimant, state—
  1. (i)
    the intending claimant's full name, date of birth, and residential address; and
  2. (ii)
    the general nature of the personal injury to the intending claimant; and
  3. (iii)
    the date the intending claimant first consulted a lawyer about the possibility of making a claim.
  1. (3)
    A person must not fail to give a notice required under this section. Maximum penalty—5 penalty units.

Duty to provide information

  1. 35.
  1. (1)
    The driver, person in charge or owner of a motor vehicle involved in an accident out of which personal injury arises must, at the request of the insurer of a vehicle involved in the accident, provide any information about the accident that the insurer may reasonably require within 1 month after receiving the request.
  2. (2)
    A person must not, without reasonable excuse, fail to comply with a request for information under subsection (1).

Maximum penalty—10 penalty units.

  1. (3)
    A person asked to provide information under subsection (1) has a reasonable excuse for not complying with the request if the information would tend to incriminate the person.
  2. (4)
    A person, if not the driver, owner, or person in charge of the motor vehicle insured by the insurer asking for information, need not comply with the request unless it was made with the agreement of the insurer of the motor vehicle.
  3. (5)
    An insurer who asks for information under this section must disclose fully in the request the nature of the insurer's interest in the motor vehicle accident.

Duty to notify claims

  1. 36.
  1. (1)
    A person who receives a claim or demand, or notice of a claim or demand, about personal injury arising out of a motor vehicle accident must, within 1 month after receiving it, give the claim, demand or notice to the insurer of the motor vehicle under the statutory insurance scheme.

Maximum penalty—10 penalty units.

  1. (2)
    A person who receives a writ or other process of a court about a motor vehicle accident claim must immediately give it to the insurer of the motor vehicle under the statutory insurance scheme.

Maximum penalty—10 penalty units.

Division 3—Claims procedures

Notice to be given by claimant

  1. 37.
  1. (1)
    Before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident, a claimant must give written notice of the claim to the insurer, or 1 of the insurers, against which the action is to be brought—
  1. (a)
    containing a statement, sworn by the claimant, of the information required by regulation; and
  2. (b)
    containing an offer of settlement, or a sworn statement of the reasons why an offer of settlement cannot yet be made; and
  3. (c)
    accompanied by the documents required by regulation.
  1. (2)
    The notice must be given within 9 months after the motor vehicle accident or the first appearance of symptoms of the injury.
  2. (3)
    However, if the motor vehicle cannot be identified, the notice must be given to the Nominal Defendant within 3 months after the motor vehicle accident.
  3. (4)
    If the notice is not given within the time fixed by this section, the obligation to give the notice continues and the notice, when given, must contain an explanation of the delay but, if a motor vehicle accident claim relates to injury caused by, through or in connection with a motor vehicle that cannot be identified and notice of the claim is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred.
  4. (5)
    If 2 or more motor vehicles were involved in the motor vehicle accident, the insurer to which a notice of claim is given under subsection (1) must, within 7 days after receiving it, give a copy of the notice to any other insurer of a motor vehicle involved in the motor vehicle accident.

Multiple insurers

  1. 38.
  1. (1)
    If 2 or more motor vehicles are involved in a motor vehicle accident in circumstances in which 2 or more insurers may be liable on a motor vehicle accident claim arising out of the accident, 1 of the insurers (the “claim manager”) is to act for all the insurers under this Division and Divisions 4 (Cooperation between claimant and insurer), 5 (Rehabilitation) and 6 (Proceedings in court).
  2. (2)
    The claim manager is to be decided by agreement between the insurers within 2 months of the day when notice of the claim was first given under this Division or, if agreement is not reached within the period, the claim manager is to be decided under the industry deed.
  3. (3)
    Until it is decided under subsection (2) who the claim manager is to be, the insurer to which notice of claim is first given under this Division is the claim manager.
  4. (4)
    The claim manager—
  1. (a)
    may exercise the powers and perform the functions conferred by this Division and Divisions 4, 5 and 6 in relation to the claim and the claimant for all insurers liable, or potentially liable, on the claim; and
  2. (b)
    must act as far as practicable with the agreement of the other insurers; and
  3. (c)
    is entitled to contributions from the other insurers on the basis prescribed by the industry deed for expenditure properly incurred as claim manager, and for amounts awarded or paid out on the claim.
  1. (5)
    The claim manager and the other insurers must cooperate with each other and must provide each other with information in their possession relevant to the claim.
  2. (6)
    If the Nominal Defendant is 1 of 2 or more insurers who may be liable on a motor vehicle accident claim because a motor vehicle that cannot be identified was involved in the accident, another insurer may act for the Nominal Defendant under this section only if the Nominal Defendant agrees in writing.

Response to the notice of claim

  1. 39.
  1. (1)
    If a notice of claim is given to an insurer under this Division or purportedly under this Division—
  1. (a)
    the insurer must, within 1 month after receiving the notice of claim (even though the notice may have been given out of time), give the claimant written notice—
  1. (i)
    stating whether the insurer is satisfied that the notice has been given as required under this Division; and
  2. (ii)
    if the insurer is not satisfied—identifying the noncompliance and stating whether the insurer waives compliance with the requirements; and
  3. (iii)
    if the insurer does not waive compliance with the requirements—allowing the claimant a reasonable period (at least 1 month) specified in the notice either to satisfy the insurer that the claimant has in fact complied with the requirements or to take reasonable action specified in the notice to remedy the noncompliance; and
  1. (b)
    if the insurer is not prepared to waive compliance with the requirements in the first instance—the insurer must, within 1 month after the end of the period specified under paragraph (a)(iii), give the claimant a written notice—
  1. (i)
    stating that the insurer is satisfied the claimant has complied with the relevant requirements, is satisfied with the action taken by the claimant to remedy the noncompliance or waives the noncompliance in any event; or
  2. (ii)
    stating that the insurer is not satisfied that the claimant has taken reasonable action to remedy the noncompliance, with full particulars of the noncompliance and the claimant's failure to remedy it.
  1. (2)
    If an insurer to which a notice of claim is given under this Division or purportedly under this Division is not, for the purposes of the claim, the insurer of the motor vehicle to which the claim relates under the statutory insurance scheme, the insurer must, instead of responding to the notice of claim under subsection (1), give the claimant written notice denying that the insurer is the insurer under the statutory insurance scheme.
  2. (3)
    If a notice of claim is given to an insurer under this Division or purportedly under this Division, and the insurer does not respond to the notice within 1 month after receiving it, the insurer is conclusively presumed to be satisfied the notice has been given as required under this Division.
  3. (4)
    However, the insurer's failure to respond to the notice does not prevent the insurer from later denying that the insurer is the insurer of the motor vehicle to which the claim relates under the statutory insurance scheme, but the insurer is liable to compensate the claimant and the insurer against which the claim properly lies for prejudice resulting from the insurer's failure to respond to the notice under subsection (2).
  4. (5)
    A claimant may bring a proceeding in a court for damages based on a motor vehicle accident claim only if—
  1. (a)
    the claimant has given notice to an insurer who may be liable on the claim under the statutory insurance scheme as required under this Division or the insurer has waived compliance with the requirement and—
  1. (i)
    at least 6 months have elapsed since the notice or the waiver was given; or
  2. (ii)
    the insurer has denied liability on the claim; or
  3. (iii)
    the insurer has admitted liability but only in part and the claimant has given the insurer written notice that the extent of liability is disputed; or
  1. (b)
    the court, on application by a claimant dissatisfied with the insurer's response to a notice of a claim under this Division, declares that—
  1. (i)
    notice of claim has been given as required under this Division; or
  2. (ii)
    the claimant is taken to have remedied noncompliance with this Division; or
  1. (c)
    the court gives leave to bring the proceeding despite noncompliance with requirements of this Division.
  1. (6)
    A declaration that a claimant is taken to have remedied noncompliance with this Division, or an order that a claimant has leave to bring a proceeding despite noncompliance with requirements of this Division, may be made on conditions the court considers necessary or appropriate to minimise prejudice to an insurer from the claimant's failure to comply with requirements of this Division.
  2. (7)
    If a claimant does not comply with the requirements of this Division, a court before which the claimant brings an action for damages on the claim—
  1. (a)
    may, on the insurer's application, award in the insurer's favour costs (including legal and investigation costs) reasonably incurred by the insurer because of the claimant's default; and
  2. (b)
    may only award interest in the claimant's favour for a period for which the claimant was in default if the court is satisfied there is a reasonable excuse for the default.
  1. (8)
    If a claim against the Nominal Defendant is barred because the claim relates to personal injury caused by, through or in connection with a motor vehicle that cannot be identified and the claimant failed to give notice of claim under this Division within 9 months after the motor vehicle accident, the Nominal Defendant cannot waive compliance with the requirement to give notice within the time allowed by this Division, nor can the court give leave to bring a proceeding in a court despite the noncompliance.

Minority and legal disabilities

  1. 40.
  1. (1)
    A claimant's obligation to comply with this Division is suspended during the claimant's minority or a period of legal incapacity.
  2. (2)
    A period within which the obligation is to be complied with begins when the claimant's minority or legal incapacity ends.
  3. (3)
    However, this section does not prevent a claimant, or a person acting for the claimant, from complying with an obligation under this Division during the claimant's minority or legal incapacity.

Insurer must attempt to resolve claim

  1. 41.
  1. (1)
    Within 6 months after an insurer receives notice of a motor vehicle accident claim under this Division, the insurer must—
  1. (a)
    take reasonable steps to inform itself of the circumstances of the vehicle accident, the court must—
  2. (a)
    consider whether the claimant has failed to take reasonable steps to mitigate damages by not following suggestions made under this section; and
  3. (b)
    if it appears the claimant has failed to take reasonable steps to mitigate damages by not following the suggestions—reduce the claimant's damages to an appropriate extent reflecting the failure.

Awards of exemplary damages

  1. 55.
  1. (1)
    No award of exemplary or punitive damages may be made against an insurer on a motor vehicle accident claim.
  2. (2)
    However, if the court is of the opinion that the conduct of an insured person is so reprehensible that an award of exemplary or punitive damages is justified, the court may give a separate judgment against the insured person for the payment of exemplary or punitive damages.
  3. (3)
    An insured person is not entitled, under a CTP insurance policy, to an indemnity against an award of exemplary or punitive damages.

Exclusion of jury trial

  1. 56.A proceeding in a court based on a motor vehicle accident claim must be decided by the court sitting without a jury.

Alteration of period of limitation

  1. 57.
  1. (1)
    If notice of a motor vehicle accident claim is given under Division 3 (Claims procedures), or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under Division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.
  2. (2)
    However, the proceeding may only be brought after the end of the period of limitation if it is brought within 6 months after the day on which the notice is given or leave to bring the proceeding is granted.
  3. (3)
    If during the last 14 days of the period of limitation, the claimant wants to give a notice of claim under Division 3 but is unsure to which insurer the notice should be given, the notice is validly given if it is given to the Commission.
  4. (4)
    After receiving a notice of claim under subsection (3), the Commission must make inquiries to decide the insurer against which the claim properly lies, and pass the notice of claim on to the appropriate insurer.
  5. (5)
    If a period of limitation is extended under Part 3 (Extension of periods of limitation) of the Limitation of Actions Act 1974, this section applies to the period of limitation as extended under the Part.

Division 7—Insurer's rights of recourse

Insurer's rights of recourse

  1. 58.
  1. (1)
    If—
  1. (a)
    personal injury arises out of a motor vehicle accident; and
  2. (b)
    the insured person was at the relevant time using the motor vehicle without the owner's authority, without lawful justification or excuse, and without reasonable grounds to believe that the insured person had the owner's authority, or lawful justification or excuse, for using the motor vehicle;

the insurer may recover, as a debt, from the insured person any costs reasonably incurred by the insurer on a claim for the personal injury.

  1. (2)
    If—
  1. (a)
    personal injury arises out of a motor vehicle accident; and
  2. (b)
    the insured person intended to injure the claimant or some other person;

the insurer may recover, as a debt, from the insured person any costs reasonably incurred by the insurer on a claim for the personal injury.

  1. (3)
    If—
  1. (a)
    personal injury arises out of a motor vehicle accident; and
  2. (b)
    the insured person was, at the time of the accident, the driver of

CHRONOLOGY

16.11.95

Date of accident.

17.11.95

Plaintiff see Dr Bentley.

18.11.95

Onset of pain.

19.11.95

Police report completed.

21.11.95

WorkCover application completed.

by 27.11.95

Tyres changed on utility.

Late 11.95

Physiotherapy treatment.

03.12.95

Plaintiff returns to work.

02.06.96

Shepherds consulted by plaintiff.

16.08.96

Expiration of 9 months (s. 37(2))

28.10.96

Hearing before WorkCover Tribunal.

30.10.96

Letter from Burns to plaintiff.

08.01.97

s. 34 notice given to VACC Insurance - Shepherd letter.

17.01.97

VACC request submission of s. 37 Notice of Claim.

18.02.97

Second letter from Burns.

06.03.97

Date of signature - s. 37 Notice.

11.04.97

s. 37 Notice of Claim sent by Shepherds

15.04.97

s. 37 Notice received by VACC

09.05.97

VACC advise not satisfied with Notice - require further explanation as to delay.

13.05.97

Shepherds letter - further explanation to VACC

17.07.97

VACC deny liability - request further material.

Late 07.97

File transferred to plaintiff's present solicitors.

29.08.97

Further particulars provided to VACC

26.09.97)

 

12.11.97)

Plaintiff's solicitors seek VACC advices whether liability still denied.

19.11.97)

 

10.12.97

VACC seek yet further particulars.

22.12.97

Plaintiff's solicitors provide further particulars.

20.01.98

Plaintiff's solicitors further letter requesting response.

23.06.98

Plaint filed in District Court.

17.09.98

VACC solicitors seek further information.

05.10.98

Plaintiff supplies Statutory Declaration.

06.11.98

Application filed in District Court.

16.11.98

Expiration of three year limitation period.

21.12.98

Application for leave heard.

05.02.98

Judgment on application.

Close

Editorial Notes

  • Published Case Name:

    Robert William McAuley v Tradelink Plumbing Services & Ors

  • Shortened Case Name:

    McAauley v Tradelink Plumbing Supplies

  • MNC:

    [1999] QDC 9

  • Court:

    QDC

  • Judge(s):

    Brabazon DCJ

  • Date:

    05 Feb 1999

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Serhan v Serhan (1996) 24 MVR 4
1 citation
Jump To
Cite 1 - (1996) 24 MVR 4

Cases Citing

Case NameFull CitationFrequency
Thorburn v BBC Hardware [2001] QDC 511 citation
1

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