Re Pobjoy[2000] QDC 293

DISTRICT COURT OF QUEENSLAND

[1] This is an application, pursuant to section 39(5)(c) of the Motor Accident Insurance Act 1994, to bring proceedings for damages arising out of an alleged accident on 21 September 1997, despite non-compliance with the requirements of Part 4 Division 3 of the Motor Accident Insurance Act 1994 (the Act).

[2] The applicant was injured in an accident on 21 September 1997. At the time of the accident he was performing duties for his then employer, Falwood Proprietary Limited, now named Capricorn Estates Proprietary Limited. The applicant was unloading a trolley filled with linen from a truck using a tailgate mechanism on the rear of the truck. The trolley was placed on the tailgate and the tailgate was then to be lowered to the ground. The applicant operated the tailgate by controls located in the rear of the truck. The plaintiff says that there were no safeguards in or around the tailgate to prevent the trolley from moving off the tailgate when the tailgate was in motion. As the tailgate was being lowered the trolley commenced to roll of the tallage. The applicant spontaneously reached out with his left arm to stop the trolley from rolling off the tailgate and, in the course of that action suffered injuries.

[3] I accept that the applicant was, at all times prior to 18 September 2000, unaware of the obligations he may have, pursuant to section 37 of the Act, to lodge a notice of claim with a compulsory third party insurer of the truck. At all times he considered that any liability arising out of the accident was a matter between himself, his employer and WorkCover Queensland. The applicant applied for and received Workers’ Compensation benefits. He was assessed by WorkCover Queensland to have sustained a permanent injury to his left shoulder.

[4] On 18 September 2000, his Honour Judge Dodds gave leave, in this Court, to the applicant to proceed against his previous employer pursuant to section 305 of the WorkCover Queensland Act 1996. At that time Mr Shah, who appears as counsel for the applicant and appeared as counsel for the applicant before his Honour Judge Dodds, realised that it may be submitted that the Act could apply to the facts of the accident, pursuant to section 5. It could be argued that the lowering of the tailgate could be viewed as a “driving” of the truck: Townsville Trade Waste Proprietary Limited v Commercial Union Assurance Co of Australia Limited (1999) QCA 386 per Davies JA. If the Act is applicable to the facts of this accident the applicant was required to give a notice of claim to the relevant compulsory third party insurer of the truck within nine months of the accident. This has not been done.

[5] In any event, it is mandatory that a notice of claim be given to the relevant compulsory third party insurer prior to the applicant commencing proceedings: see Young v Keong (1999) 2 QdR 335. The limitation period is due to expire today, 21 September 2000. The applicant can still bring proceedings if leave is given pursuant to section 39(5)(c) of the Act. If the application for leave is made prior to the expiration of the limitation period, then the limitation period itself is extended for a further six months from when leave was given: section 57(2).

[6] In my opinion leave should be given pursuant to section 39(5)(c), because the applicant has provided an appropriate explanation for the failure to provide a notice of claim: Re Tonks (1999) 2 QdR 671 at 677. At present the applicant does not know who the compulsory third party insurer of the truck is, and the applicant could not have given a notice of claim to the Motor Accident Insurance Commission pursuant to section 57(3) of the Act and then relied on section 39(5)(a) to bring an action. Section 39(5)(a) requires that at least six months elapses from the giving of the notice before proceedings can be brought. Pursuant to section 57(2) the limitation period is only extended for six months after the giving of the notice. Because of section 57(2) the applicant would not be able to satisfy the requirements of section 39(5)(a).

[7] I agree with the submission that there is at present some evidence from which an inference can be drawn of negligence against the applicant’s previous employer: McKelvy v Page (1999) 2 QdR 259 at 266. The issue of any prejudice to the compulsory third party insurer of the truck cannot be addresses at this stage as the insurer is unknown. The issue could be dealt with by a court granting the insurer liberty to apply and be heard in respect of any leave given by me pursuant to section 39(5)(c) of the Act.

[8] In my view this is an appropriate case in which leave should be granted and I order-:

(1) The applicant be granted leave, pursuant to s 39(5)(c) Motor Accident Insurance Act 1994, to bring proceedings for damages in relation to an alleged accident on 21 September 1997 despite non-compliance with the requirements of part 4 division 3 Motor Accident Insurance Act 1994.

(2) The applicant forthwith send to the Motor Accident Insurance Commission:-

3. (c)
   a notice of claim pursuant to s 37 Motor Accident Insurance Act 1994;
4. (d)
   copies of the applicant’s originating application, affidavit and this order.

(5) The compulsory third party insurer of the motor vehicle

involved in the alleged accident have liberty to apply and be heard in respect of the leave granted in paragraph 1 of this order.

(6) The applicant’s costs of and incidental to this application be reserved.