Perdis v Nominal Defendant[2003] QDC 154

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application under the Motor Accident Insurance Act 1994 (“the Act”) for a declaration that the applicant has provided a reasonable excuse for the delay in giving the respondent notice of a motor vehicle accident claim as required by s 37(1) of the Act, or in the alternative for leave pursuant to s 39(5)(c)(ii) of the Act to proceed further on the basis of the claim despite non compliance with the requirements of Division 3 of Part 4 of the Act.

2. [2]
   The applicant alleges^[1] that she was involved in a motor vehicle accident on 6 September 2002.   She was at the time driving along Ivory Street towards the Story Bridge when a red pickup truck moved in front of her while merging from a feeder lane, in a way which caused her to veer to the right and to slow down slightly.  The vehicle that she was driving was struck from behind by another vehicle which she did not identify at the time, and which did not stop following the collision.  All she can say about this vehicle is that it was a silver car.  The red truck also did not stop after the accident, and the applicant did not otherwise identify it at the time, although she believes that the truck had come from the fire station nearby, and has subsequently observed a red pickup truck with a particular registration coming from that fire station.  She suggests that it was the same truck.  That truck is owned by a fireman who sometimes works at that station, and who when there leaves work at about the time the accident happened, but has no recollection of the incident described, although he cannot say positively that it did not happen or that it did not involve his vehicle.^[2]  If the red truck was not the vehicle identified in this way, it is an unidentified vehicle.

3. [3]
   Following the collision on 6 September 2002 the applicant developed neck pain. On 12 September 2002, while driving to attend a physiotherapy appointment for treatment of this neck pain, the plaintiff’s vehicle was struck from behind while stationary and waiting to turn right into the physiotherapist’s premises. On this occasion the other vehicle was identified, a claim in relation to the accident has been lodged with the relevant insurer, and liability has been admitted in relation to that accident. That accident made her neck worse.

4. [4]
   She had physiotherapy and medical treatment for the neck injury, and shortly thereafter went overseas on a holiday which had been arranged previously, coping with strong painkillers provided by a GP until she returned in mid October. When she returned she had some contact with some solicitors in relation to a conveyancing matter, and then spoke to a solicitor with that firm (“the solicitor”) and told him that she had suffered injuries. He advised that she needed to put in claim forms in relation to the accidents, arranged for her to come and see him, and told her that the claim forms would have to be put in within one month of that consultation.

5. [5]
   The applicant had a consultation with the solicitor on 14 November 2002, for about an hour, in the course of which told him that she wanted to pursue the claims, and that the vehicles involved in the accident on 6 December 2002 were unidentified.  She was told about the one month limit in s 37(2)(b)(ii) of the Act, but not about the three months limit applicable under s 37(2)(a) if notice is to be given to the Nominal Defendant.

6. [6]
   A few days later she telephoned the firm, and the solicitor subsequently phoned back and told her that everything was okay. About two weeks later she again phoned and was told by the solicitor’s secretary that he had gone overseas. She told the secretary to ensure that the matter was being looked after, and asked for the head of the firm to call her back, but he did not do so.

7. [7]
   About two weeks later she received a telephone message from the solicitor who asked her to come in urgently to sign papers. She said she was unable to do that because of the demands of her profession (the plaintiff is a practising dentist, and she had appointments booked for that day). He said he would arrange to courier the forms to her the following day, but that did not occur. On the day after, 13 December 2002, someone from the solicitors bought forms to her for her to sign and she signed them.  Copies were provided to her.

8. [8]
   Subsequently she received a letter from the solicitor dated 18 December 2002 advising that “If the form is not sent to the Nominal Defendant within three months from the date of the accident we need to give a reason for the delay which we have included in your claim form and a copy of the reasons for the delay is enclosed for your reference.”  There was nothing in the letter to indicate that anything else needed to be done by her.  She had a telephone conversation with the solicitor on or about 13 January 2003, when she was told that the first claim could be in jeopardy because of the delay.  Three days later she spoke to another solicitor, whom she had first spoken to on 13 December 2002, and after receiving some advice sought from the solicitor urgent clarification of the status of her claim against the Nominal Defendant.  On 24 January 2003 she was advised by another solicitor of the firm that the claim was out of time, and that he wanted to arrange a meeting with a barrister to discuss what needed to be done to remedy the situation.  However on 4 February 2003 she decided to transfer her instructions to another firm of solicitors, and gave them appropriate instructions, and the following day asked the first firm to transfer her file to the new firm. 

9. [9]
   There was then some delay caused by the first solicitors’ sending their file to a costs assessor, and there was then a dispute about paying the costs. Subsequently the new solicitors obtained information from the Nominal Defendant, and the insurer in relation to the second accident. As a result of that information being passed on to the applicant she found out for the first time that the Nominal Defendant had rejected her claim, because it did not accept that she had provided a reasonable excuse for giving the notice late. It emerged that the Nominal Defendant had taken this position on 23 December 2002, but the applicant did not find out about it until she received a letter from the new solicitors dated 18 March 2003.

10. [10]
    The new solicitors made further submissions about whether there had been a reasonable excuse provided, but the Nominal Defendant’s attitude did not change. The applicant is concerned about the effect of the neck pain on her ability to continue to practice her profession, and accordingly on 24 April 2003 instructed the new solicitors to make the appropriate application to the court.

Statutory provisions

11. [11]
    Under the Act as it was in force at the relevant time s 37 required a notice in accordance with subs (1) to be given, if the vehicle responsible cannot be identified, to the Nominal Defendant within three months after the motor vehicle accident:  subs (2)(a).  If the vehicle can be identified, the obligation is to give notice within nine months of the accident, or within one month of consulting a solicitor, whichever is earlier:  subs (2)(b).  Subsection (3) at the relevant time provided:  “If notice of a motor vehicle accident claim is not given within the time fixed by this section, the obligation to give the notice continues and a reasonable excuse for the delay must be given in the notice or by separate notice to the insurer but, if a motor vehicle cannot be identified and the notice is not given to the Nominal Defendant within nine months after the motor vehicle accident, the claim against the Nominal Defendant is barred.”

12. [12]
    Section 39 provided for an insurer to whom notice of motor vehicle accident claim is given or purportedly given to respond in various ways, and deals with the effect of various responses. The relevant provision for present purposes is subs (5) which provided: 

1. “(5)

   A claimant’s failure to give notice of a motor vehicle accident claim as required under this division prevents the claimant from proceeding further with the claim unless –

1. (a)
   the insurer –

1. (i)
   has stated that the insurer is satisfied notice has been given as required under this division or the claimant has taken reasonable action to remedy the noncompliance;  or

2. (ii)
   is presumed to be satisfied notice has been given as required under this division;  or

2. (b)
   the insurer has waived compliance with the requirement;  or

3. (c)
   the court, on application by the claimant –

1. (i)
   declares that the claimant has remedied the noncompliance;  or

2. (ii)
   authorises further proceedings based on the claim despite the noncompliance.”

13. [13]
    In the present case it was alleged that the notice originally given by or on behalf of the applicant, the notice dated 13 December 2002, did not comply with the requirements of the division in that it was not given within three months of the accident and did not contain a reasonable excuse for the delay.  Apart from what was stated in the notice itself, presumably inserted by the former solicitor for the applicant, a further notice giving more details about the circumstances was provided in April 2003.  There was also an issue at one time in relation to a medical certificate, but it was common ground before me that any deficiency in that regard has been remedied and no point was taken by the respondent about that.  The respondent’s position remains that the applicant has not given a reasonable excuse for the delay and therefore subs (3) has not been complied with, and indeed could not be complied with because there is no reasonable excuse for the delay.  The applicant submitted that what had been provided was a reasonable excuse for the delay, or in the alternative sought authorisation despite non-compliance under s 39(5)(c)(ii).

Was there a reasonable excuse?

14. [14]
    The respondent also conceded that, so far as the applicant’s actions personally are concerned, her actions were reasonable. The respondent nevertheless submitted that the action of the solicitor not reasonable, that there was no reasonable excuse for his having failed to give effect to the instructions provided by the applicant within the time stipulated by the statute, and that therefore the applicant has not provided a reasonable excuse for the failure to fulfil the requirements of the Act. The applicant did not dispute that the former solicitor did not act reasonably and that there is no reasonable excuse for his failure, but submitted that, so long as she had personally acted reasonably, she was not to be responsible for any unreasonable failure on the part of her solicitor to act in accordance with her instructions.

15. [15]
    The issue which arises therefore is whether, in deciding whether the applicant has a reasonable excuse, it is necessary to consider only whether her own personal actions were reasonably excusable in the light of what has occurred, or whether, in circumstances where the applicant retained a solicitor in connection with the giving of the notice, it is also necessary for the actions of the solicitor, insofar as they contributed to the delay, to be reasonably excusable. Is the applicant responsible for any unreasonable delay or inattention on the part of the solicitor, or can the applicant reasonably excuse herself simply by saying that she instructed the solicitor, provided him with the necessary information, and made reasonable attempts to chase him up?

Authorities

16. [16]
    There have not been many decisions yet on the question of what is a reasonable excuse for the purposes of this section. In Piper v The Nominal Defendant [2003] QSC 39 the applicant was injured in an accident and was subsequently told by his uncle that he should see a particular person about making a claim.  That person came to see him in the hospital, with a barrister, and also came to see him about six weeks later at home, but nothing was done and after several further phone calls there was a further meeting with this person who then indicated that he was an industrial advocate and not a lawyer, and said he would organise for a solicitor to see the applicant.  After some further delay when that did not eventuate the applicant finally located for himself a solicitor, who promptly gave notice although it was then outside the three month period, being almost eight months after the accident.  The notice contained that explanation. 

17. [17]
    In this case her Honour considered that the question was really whether it was reasonable for him to leave the matter in the hands of the person who turned out to be an industrial advocate: para [20] Her Honour held that the applicant had assumed that he was a lawyer, but that this was not a reasonable assumption. He ought to have clarified what the status of the individual was, at least by the time of the second meeting when a common law claim was suggested. Her Honour did not consider that the applicant had given a reasonable excuse for the delay, and went on to refuse to allow the claim to continue, notwithstanding the absence of specific prejudice. Her Honour said that it was for the applicant to persuade the court that it would be fair and just to both sides to allow the proceedings to continue and that he had not satisfied that onus: para [27].

18. [18]
    In the course of her reasons her Honour said at (para [19]): “Whether an excuse is a reasonable one is to be judged objectively in all the circumstances. Those circumstances include the claimant’s personal characteristics such as his age, intelligence and education, the nature of the injuries sustained, and the likelihood of prejudice to the Nominal Defendant.” With respect, although I would concede that the likelihood of prejudice to the Nominal Defendant is an important consideration when dealing with the discretion under s 39(5)(c)(ii)^[3], I have difficulty in seeing how it could be relevant to the question of whether there was a reasonable excuse for the failure to give notice.  The reasonable excuse must surely look to the situation of the applicant, which may or may not include persons consulted by the applicant to assist in formulating the notice, rather than the impact of the delay on the Nominal Defendant.  In my opinion whether an excuse is reasonable and whether there has been prejudice to the Nominal Defendant are two separate questions.

19. [19]
    For present purposes what is significant about this decision is that it focuses on the reasonableness of the applicant’s personal conduct. There is no consideration of the reasonableness or otherwise of the conduct of the industrial advocate to whom he had spoken. Had her Honour thought that any deficiencies in the behaviour of that person were to be taken into account when deciding the reasonableness of the excuse, I would have expected her Honour to say so.

20. [20]
    A similar application came before the Supreme Court in Miller v The Nominal Defendant [2003] QSC 81, a case involving a bus driver who injured his shoulder in the course of swerving his bus quickly in order to avoid a collision with a car which had cut in front of his bus at high speed.  Although he was able to complete his shift with some difficulty, he was unable to work the next day and he consulted a general practitioner, who gave him medical certificates relieving him from work duties for a period of three months.  The shoulder was x-rayed and he saw a physiotherapist, and then saw at the request of WorkCover an orthopaedic specialist who considered that he was physically fit to work.  Because of that workers compensation payments ceased, but by then more than three months had elapsed since the incident.  He consulted solicitors shortly afterwards, and a little over a month later they sent a notice of claim to the Nominal Defendant.  That notice was not given within three months of the accident, and it was therefore necessary in that case to consider whether a reasonable excuse for the delay had been given.  Fryberg J accepted that the reasonable excuse could be given in a separate notice after the notice of claim was given:  para [6].

21. [21]
    In that case his Honour approved the approach adopted in the present case, seeking a declaration that a reasonable excuse had been provided, or in the alternative leave under s 39(5):  para [19].^[4]  His Honour noted that the section required a causal connection between the subject matter of the excuse and the omission to give the notice of claim (para [20]), and that it was necessary to satisfy the court of the truth of the excuse given to the Nominal Defendant:  para [22].  His Honour ultimately did not accept that the applicant had given a reasonable excuse for his failure to give notice of claim on time, a conclusion arrived at in part because of his Honour’s wariness about the reliability of the applicant’s evidence (the applicant had given oral evidence before his Honour, in addition to various accounts given in letters or statutory declarations) and in part because his Honour was of the view that a reasonable man in his position would have consulted a solicitor at an earlier stage:  para [21].

22. [22]
    Turning to the application under s 39(5)(c), his Honour analysed the amendments introduced in 2000 in a way which is very helpful, and noted that one effect of the amendments was to replace the requirement for an explanation of failure to deliver a notice of claim within time with “the more onerous requirement of a reasonable excuse”:  para [31].  His Honour did not think that the effect of the amendments was to change the situation that a claim against the Nominal Defendant was barred if notice of claim was not given within nine months of the accident:  para [38].  The parties before me proceeded on the same assumption as did the parties before his Honour, that a claim made under s 37 is not made “as required under” that section if the claimant fails to provide a reasonable excuse as required by s 37(3).  There was no other deficiency relied on which had not been either remedied or waived by the Nominal Defendant.

23. [23]
    In relation to the exercise of discretion under s 39(5)(c), his Honour appears to have regarded the former authorities of Thomas v Transpacific Industries Pty Ltd [2003] 1 Qd R 328 and Re Tonks [1999] 2 Qd R 671 as still applicable.  His Honour noted a number of factors including that there was not much delay (a little under eight weeks), that there was no particular prejudice to the Nominal Defendant, and that it was legally still possible for the applicant to comply with his obligations under s 37 to give a reasonable excuse.  This point was considered in para [53] where there is a comment that:  “There would appear to be no factual impediment to this being done except, perhaps, a possible conflict of interest on the part of [the applicant’s] present solicitors.”  That suggests that his Honour thought that the applicant might have had a reasonable excuse but had just not provided it at that stage, and also suggests that the reasonable excuse might well involve an explanation that the delay, or at least some of it, was attributable to the solicitors rather than to the applicant personally.  That is significant for present purposes, because it suggests that his Honour did not take the view that it was necessary for the reasonable excuse to excuse both the applicant and the solicitors for the applicant.

24. [24]
    Another matter mentioned by his Honour, in the context of the exercise of the discretion under s 39(5)(c), was that he would follow the approach in Re Tonks (supra) where any failure on the part of a solicitor was not attributed to the applicant personally:  para [52].  That is also of some significance in the present case;  it would be odd if the actions of the solicitor were attributed to the client for the purposes of determining whether a reasonable excuse has been provided as required by s 37(3), but not for the purpose of determining whether the discretion under s 39(5)(c) should be exercised. 

25. [25]
    Ultimately his Honour exercised his discretion, but subject to the applicant having some further period within which provide a reasonable excuse, with liberty to apply if ultimately he proved unable to do so. I do not know whether the matter went any further before his Honour or elsewhere as a result of that liberty to apply; I understand the decision is subject to appeal, but I do not think it is any less significant because of that.

26. [26]
    I was also referred to the decision of his Honour Judge Wilson in Stanton v DMK Forest Products Pty Ltd [2003] QDC (16 May 2003), an application under the similar provisions in the Personal Injury Proceedings Act 2002.  In that case a notice was given after the time when it ought to have been given, so that there was a statutory obligation to provide a reasonable excuse, and it was submitted that the applicant had a reasonable excuse because he had consulted solicitors and left the matter in their hands, and the solicitor’s failure to lodge the notice was not something which should be visited on the applicant himself:  para [11].  His Honour noted that a principal is ordinarily held liable for the actions of his or her agent carried out within the scope of the agent’s authority, and that the obvious purpose of the Act would be thwarted if a claimant with an incompetent or negligent solicitor might legitimately be excused for the delay.  His Honour was not persuaded that a reasonable excuse has been given, taking into account the actions of the solicitor as well as the actions of the applicant.  He went on to consider the alternative relief sought under s 18(1)(c),^[5] referred to the authorities, and concluded that because of the relatively short delay in the delivery of notice, the absence of prejudice, and indications that the claim was likely to be a good one, there should be an exercise of the discretion favourable to the applicant.

Analysis

27. [27]
    His Honour’s decision refers to the earlier decision in Piper, but preceded the decision in Miller.  I am concerned that, although Fryberg J did not deal directly with the issue which was crucial in relation to the declaration in Stanton, and indeed is crucial in the present case, his approach appears, for reasons I have given, to have been inconsistent with the notion that for either purpose it is appropriate to attribute the omissions of the solicitor to the client applicant.  Although I see the force of the reasons given by Wilson DCJ,^[6] I consider that if the approach of the Supreme Court appears to be different I should follow the Supreme Court decision unless persuaded that it is wrong.

28. [28]
    There are two other considerations that seem to me of some force. Under the former Motor Vehicles Insurance Act the provision allowing an extension of time for giving notice to the Nominal Defendant required the applicant to show that the failure to give notice within time “was not occasions by an act or omission of the claimant or any person acting on his behalf”.^[7]  It would have been easy enough for the Act to provide that what was required was an excuse showing that the claimant and any person acting on the claimant’s behalf had acted reasonably, but that was not done.

29. [29]
    Reference was made to the comment of McPherson JA in Brannigan v Nominal Defendant [2000] 2 Qd R 116 at 123, “One can discern a progressive tightening of the conditions for making claims against the Nominal Defendant in the case of an unidentified vehicle.”  It seems to me however that his Honour’s comment was in the context of other provisions of the Act referred to by his Honour on that page, and does not necessarily mean that every aspect of the Act should be interpreted as being at least as restrictive as the equivalent provision of the Motor Vehicles Insurance Act.  

30. [30]
    The other consideration is that it is unusual when dealing with statutory provisions involving an issue about an excuse for failing to comply with a time limit for the act or omission of an agent such as a solicitor to be treated as the act or omission of the client. That position was not adopted in Re Tonks (supra), where reference was made to a comment in Dempsey v Dorber [1990] 1 Qd R 418, a case involving an application for leave to proceed under RSC O. 90 r. 9 and a cross application to dismiss for want of prosecution.  The High Court in Sophron v Nominal Defendant (1957) 96 CLR 469 when considering whether a claimant had shown “sufficient cause” to justify an extension, under the Motor Vehicles (Third Party Insurance) Act 1942-1951 of New South Wales, of the period for suing the Nominal Defendant, said at p. 474:  “When the application was before the prothonotary he appears to have adopted the view that a fixed general rule existed that when the failure to give notice within time could not be ascribed to the fault of the claimant but was attributable entirely to fault on the part of his solicitor, that necessarily amounted to sufficient cause within the meaning of s 30(2)(b)(ii).  Such a view is opposed to the principles laid down by Walsh J in Martin v Nominal Defendant (1954) 74 WN (NSW) 121 and it gained no support in the Full Court in the present case.  No one, of course, doubts that such a consideration as the blamelessness of the claimant and the responsibility of his solicitor is very material.  But every case must be determined on its own facts.”  For present purposes what matters is the High Court’s approval to the proposition that it is relevant to distinguish between the fault of the claimant and the fault of the solicitor, and that the fact that the fault is that of the solicitor rather than the claimant is very material.  See also the approach adopted recently by the New South Wales Court of Appeal in relation to a provision of the Motor Accidents Act 1988 (New South Wales), in Manderson v Ellis [2002] NSWCA 289 at [18] per Santow JA, [58]–[60] per Davies AJA.

31. [31]
    Bearing these matters in mind, I prefer to follow the indications given in the Supreme Court decisions of Piper and Miller, and conclude that the issue in relation to s 37(3) of whether the notice “includes a reasonable excuse for the delay” must be assessed as whether what the claimant did was reasonable and, in the situation in which the claimant was placed, reasonably excused the delay, and that the actions of any solicitor retained by a claimant are not to be attributed to her.  In other words, the issue is whether the claimant has provided a reasonable excuse, not whether what has been provided is a reasonable excuse both for the claimant and for any solicitor acting for her.  It was conceded on behalf of the respondent that, if the matter were approached in this way, the applicant had given a reasonable excuse.  Accordingly it is appropriate to make the declaration sought.

Precautionary finding

32. [32]
    In case a different view may be taken elsewhere, I shall deal briefly with the approach to the discretion under s 39(5)(c).  If it were necessary I would exercise my discretion under that subsection.  In the present case the period of delay was very short.   Assuming that the notice of claim eventually forwarded did not provide a reasonable excuse, it otherwise provided notice of the claim and of the accident, sufficient to enable the respondent to investigate the circumstances surrounding the claim.  A notice which achieved that much was provided on 17 December 2002, only 11 days outside the three month period.  The relevant delay therefore was very short. 

33. [33]
    The respondent has suggested that there may have been some prejudice because it was not provided with the identity of the vehicle believed to be the red truck until the affidavit in support of the application was filed, and that if that information had been provided earlier it may be that the owner of that vehicle would have been in a better position to recall what he was doing on the date of the accident, and may have been able positively to deny that he was involved, or may have been able to explain what occurred in a way which exculpated him. However, insofar as there is any prejudice in failing to investigate that situation more thoroughly it is not prejudice which arises because of the failure to give the notice within the time, or provide a notice with a reasonable excuse subsequently.

34. [34]
    In any case, it is not much prejudice, since I doubt whether someone in his position, if he were the relevant driver, would have been able to recall very much about the circumstances anyway, and whether he was actually working there on the day should be able to be ascertained by rostering records, which ought still to be available. If the identity of the red truck can be established in this way, a notice can be given to its insurer, but that does not seem to me to be a consideration which shows that there has been particular prejudice suffered by the respondent. The respondent’s involvement in the matter is because of any negligence on the part of the driver of the silver car, and any negligence on the part of the driver of the red truck if it was not the truck subsequently identified by the applicant.

35. [35]
    Apart from these considerations, it does appear from the material available that there is some strength in the applicant’s case on liability against either the Nominal Defendant or the driver of the red truck. I note that in this context it has been said to be of some significance that any failure to attend to the obligations under the Act was caused by the applicant’s solicitors rather than the applicant personally,^[8] and that the refusal of the application would shut out the applicant from any cause of action against the respondent whatever.^[9]    Bearing all those factors in mind, if it were necessary to do so I would allow the applicant leave to proceed against the Nominal Defendant in the District Court despite non-compliance with the requirements of Division 3 of Part 4 of the Act.

36. [36]
    I will hear submissions on costs when I publish these reasons, but, subject to those submissions, costs of the application should follow the event.