Van Der A'a v Nominal Defendant
[2003] QDC 431
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- Unreported Judgment
- Appeal Determined (QCA)
- Van Der A'a v Nominal Defendant[2003] QDC 431
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Van Der A'a v Nominal Defendant[2003] QDC 431
Van Der A'a v Nominal Defendant[2003] QDC 431
![Van Der A'a v Nominal Defendant [2003] QDC 431](/judgmentview/image?name=315740.001.png&id=315740)
DISTRICT COURT OF QUEENSLAND
CITATION: | Van Der A’a v Nominal Defendant [2003] QDC 431 |
PARTIES: | ANTOINETTE VAN STEENSEL VAN DER A’A Applicant and NOMINAL DEFENDANT Respondent |
FILE NO: | D504/2003 |
DIVISION: | District Court |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court Southport |
DELIVERED ON: | 14 November 2003 |
DELIVERED AT: | Southport |
HEARING DATE: | 27th October 2003 |
JUDGE: | R D Hall DCJ |
ORDER: | Applicant to have leave to proceed despite non-compliance with S 37(3) of Motor Accident Insurance Act, 1994 |
CATCHWORDS: | Insurance – Third-party liability insurance – Notice of Claim requirements – “reasonable excuse” – Leave to proceed if Notice non-compliant – S39(5)(c) – Relevant criteria – whether application for leave must be made within 9 months after motor vehicle accident – Motor Accident Insurance Act 1994, S37(2), (3) S 39(5), (8) Cases cited: Miller v Nominal Defendant (2003) QSC 081 Piper v Nominal Defendant (2003) QSC 039 Thomas v Transpacific Industries Proprietary Limited (2003) 1 Qd R 328 |
COUNSEL: | Mr Simpson for the applicant |
Mr K Wilson SC for the respondent | |
SOLICITORS: | Baker Johnson Lawyers for the applicant Phillips Fox for the respondent |
- [1]The applicant applies pursuant to the Motor Accident Insurance Act 1994 for (a) a declaration that the applicant’s excuse for delay constitutes a “reasonable excuse” within the meaning of s 37(3) or (b) alternatively, leave to proceed pursuant to s 39(5)(c). The applicant suffered injuries in a motor vehicle collision on 22nd June 2002. She was driving a Volvo sedan in a southerly direction along the Pacific Motorway at Nerang behind a Toyota Hilux utility. The Hilux utility was following a red-coloured hatchback vehicle which remains unidentified. That vehicle was following a semi-trailer which is also unidentified and which lost a retread from one of its tyres. The driver of the red hatchback was able to take evasive action to avoid the retread but the driver of the Toyota Hilux was not able to do so because of another unidentified motor vehicle travelling in the adjoining lane. The retread became lodged beneath the Toyota Hilux lifting the front wheels from the road surface so that it could not be controlled. Over a distance of some 100 metres the Toyota Hilux utility traversed the centre and right lanes of the motorway colliding with the guard rail and then traversed back across the three traffic lanes. The applicant believes that her motor vehicle came into contact with the Hilux utility as it careered out of control. Although the applicant gave notice pursuant to the Act to the insurer of the Hilux utility it is apparent that the collision in which the applicant claims to have suffered injuries was caused by the loss of the retread from the unidentified semi-trailer.
- [2]The applicant was not aware of any pain or injury at the time of the collision but on 29th June 2002 she suffered symptoms which started to escalate. When admitted to Pindara Emergency Centre on 1st July 2002 her injuries were noted as severe back pain and severe chest pain. On 11th July 2002 she was examined by a Dr Clarke and although the applicant mentioned the motor vehicle accident, Dr Clarke made no comment connecting her symptoms with the motor vehicle collision. Dr Clarke advised her to rest for three months and then return to “see” him.
- [3]On 3rd October 2002 she returned to Pindara Hospital where she was referred to a physiotherapist. On 7th October she consulted the physiotherapist who, for the first time, linked the injuries with the motor vehicle collision. She consulted Mr Alexander of Baker Johnson, Lawyers on 15th October 2002 and on 11th November 2002 notice was given to the Nominal Defendant pursuant to s 37 of the Motor Accident Insurance Act. By letter dated 27th November 2002 the Nominal Defendant advised that the s 37 notice was not compliant because, inter alia, the Notice was supplied well outside the three-month period required by s 37(2)(a). Consequently, as the Nominal Defendant advised, the applicant was required to give further notice to the Nominal Defendant which complied with the Act and regulations and providing a “reasonable excuse” for her delay in giving notice.
- [4]Further enquiries were conducted by the applicant’s solicitors but it was not until 4th June 2003 that the solicitors for the applicant forwarded to the Nominal Defendant a copy of the investigator’s report, in response to the letter of 27th November 2002 referred to above.
- [5]By further letter to the solicitors for the Nominal Defendant dated 26th June 2003 the solicitors for the applicant supplied a statutory declaration by the applicant setting out the reasons for her delay in giving notice pursuant to the Act. She claimed in effect that it was not until 7th October 2002 when she received advice by a physiotherapist that she appreciated that the condition for which she had sought medical treatment and had been referred to therapy, was related to the motor vehicle incident on 22nd June 2002. On 23rd July 2003 the applicant’s solicitors wrote to the solicitors for the Nominal Defendant seeking advice as to prejudice the Nominal Defendant had suffered as a result of the applicant’s “failure to notify within the three-month period as allowed under s 27”. On 27th August 2003, having had no reply from the Nominal Defendant’s solicitors, the plaintiff’s solicitors wrote again to them enclosing an additional statutory declaration sworn by the applicant on 22nd August 2003. That declaration appears to be in identical terms to the earlier one made on 25th June 2003 with the addition only of a sentence to paragraph 20 in these terms: “Also if the symptomology (sic) had resolved itself quickly without ongoing problems I would not have sought legal consultation”. There was also the addition of a new paragraph 18 relating to X-rays and a further consultation with Dr Clarke.
- [6]There is one curious feature of the evidence on this application. The affidavit of Sean Anthony Sullivan, the solicitor for the Nominal Defendant exhibits a copy of the plaintiff’s statutory declaration sworn on 25th June 2003. That is the date of the declaration relied upon by the applicant as containing a detailed explanation of her reasons for failing to give notice earlier than she had. That statutory declaration is clearly a different document from that referred to in paragraph 14 of Mr Alexander’s affidavit. However, that document refers to a statutory declaration previously sworn in connection with this matter so it may well be that Mr Alexander has simply exhibited the wrong statutory declaration. My disquiet about this aspect is not eased by the fact that the declaration exhibited by Mr Alexander is not dated and is clearly not a photocopy of a sworn document. My failure to notice the difference between those two documents results directly from the undesirable practice which seems to be coming increasingly popular of assailing an Applications Judge with detailed documentary material for which leave is sought to read and file at the commencement of a hearing.
- [7]The material filed on this application shows that the applicant ought to have given notice pursuant to s 37(2)(a) of the Motor Accident Insurance Act on or before 21st September 2002. In fact her written notice of the motor vehicle accident claim relating to this application was not delivered until 18th November 2002. That notice was non-compliant and the applicant was obliged to give by separate notice, a reasonable excuse for the delay which had occurred. By virtue of subsection (3) of s 37 that separate notice had to be provided on or before 21st March 2003. The applicant points to the letter of 13th January 2003 from her solicitors directly to the Nominal Defendant as satisfying that requirement.
- [8]In actual fact an earlier letter of 18th December 2002 from the applicant’s solicitors to the Nominal Defendant purported to enclose “Additional Information form with the reason for delay on p 8”. The alleged enclosure is not exhibited to Mr Alexander’s affidavit but seems to be exhibited as part of Exhibit “SAS2” to Mr Sullivan’s affidavit. That form appears to consist of only seven pages and certainly does not contain any reason for the delay. However, the letter of 13th January 2003 contains this; “It is obvious from our client’ (sic) reasons for delays as provided in her Additional Information form that she did not realise the extent of her injuries and thought that they would simply go away consistent with a sporting injury. As the injuries have now been ongoing for some six months, our client has lodged a claim.”
- [9]The explanation provided on the applicant’s behalf in that letter is not inconsistent with that contained in the statutory declaration dated 5th June 2003 apparently received by the Nominal Defendant and exhibited to the affidavit of Sean Anthony Sullivan. Paragraph 8 of that document provides:
“The reason why I did not immediately claim for personal injuries is that I was of the opinion that my injuries would resolve as they do with a general sprain and/or muscle sprain type injury.”
That explanation is enlarged in the statutory declaration dated 22nd August 2003. In paragraph 16 of that document it is demonstrated that it was not until 7th October 2002 that she was informed of a causal connection between her complaints and the motor vehicle incident of 21st June 2002.
- [10]Paragraph 20 of that document contains a statement that “At all stages prior to consulting a lawyer I wanted to make sure that I was doing the right thing and that the injuries were related to the motor vehicle accident as I did not want to incur legal costs should the symptomology (sic) be from ageing. Also if the symptomology (sic) had resolved itself quickly without ongoing problems I would not have sought legal consultation.”
- [11]The letter of 13th January 2003 prompted a response from the Nominal Defendant dated 22nd January 2003 which apart from indicating that each of the parties was operating under the incorrect belief that the applicant’s claim was against the driver of the Toyota Hilux which could not be identified, contained a request that the applicant provide a report of the doctor she had consulted at the Pindara Hospital. It concluded “We are not prepared to waive compliance and are prepared to give your client until 22nd February 2003 to supply a copy of the report.” There does not seem to have been any response to that letter.
- [12]It seems to me that that request was entirely reasonable and that the failure of the applicant’s solicitors to comply with it has not been explained.
- [13]“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 injury sustained, and the likelihood of prejudice to the Nominal Defendant.” Piper v Nominal Defendant (2003) QSC 039 at paragraph 19, per Wilson J.
- [14]The applicant declared on 22nd August 2003 that on the day of the collision she was not in pain and did not notice any injuries till approximately one week later, namely on or about 29th June 2002, leading to her admission to the Pindara Emergency Centre on or about 1st July 2002. She says further (paragraph 12) that “it was not until 11th July 2002 that I had mentioned my motor vehicle accident to Dr Clarke”. In paragraph 13 she says, “Whilst the doctor did not confirm as to whether my symptomology (sic) was related to my motor vehicle accident it seem (sic) to clarify my position and sudden physiological change.” She was told to go home for three months and rest but apparently was in continual pain during that period and on her return to consult with Dr Clarke she was given a pethidine shot to relieve her pain. Whatever the applicant intended to convey by her comments in paragraph 13 of that declaration she must surely have realised well before 3rd October 2002 that there was at least a possibility that her physical problems were related to the motor vehicle incident of June 2002. It is clear that the applicant considered the possibility of a connection between her injuries and the motor vehicle incident as at 11th July 2002 but her declaration and the other material provided on her behalf does not explain her failure to seek legal advice prior to 21st September 2002. Indeed, the reason given for the delay originally in the letter of 13th January 2003 suggests that she did relate her injuries to the motor vehicle incident in that she “Did not realise the extent of her injuries and thought that they would simply go away, consistent with a sporting injury.” There is no suggestion that she had suffered a sporting injury at or about the time of the motor vehicle incident. Notwithstanding that, it is clear that the applicant acted quickly in seeking legal assistance after the advice she received from the physiotherapist on 7th October 2002.
- [15]On the other hand it could not be suggested that the Nominal Defendant has suffered any prejudice by reason of the applicant’s failure to comply with s 37. As at 21st September 2002 the trail of the unidentified semi-trailer was cold. That was in fact the situation on the day of the incident, there being no evidence available from which that vehicle might be identified. That is apparent from the loss assessor’s report exhibited to Alexander’s affidavit.
- [16]On the whole I see no reason to disbelieve her claims and I do not think she should be held to account for the (probably negligent) failure of her solicitor to respond to the Nominal Defendant’s request for further information. The fact remains however that as at 21st March 2003 the applicant had failed to deliver to the Nominal Defendant a notice of claim accompanied by a reasonable excuse for her failure to satisfy the time limits set out in s 37. I have determined this on the basis that the Nominal Defendant’s request for a medical report which ought to have confirmed the plaintiff’s claim that it was not until October 2002 that a causal link was established between her then current condition and the motor vehicle incident was a reasonable request. Accordingly, the failure to satisfy that reasonable request results in the conclusion that the applicant had not supplied a reasonable excuse for her non-compliance.
- [17]The second limb of the application is for leave to proceed further with her claim pursuant to s 39(5)(c) of the Motor Accident Insurance Act 1994. The relevant portions of s 39 are as follows:
- “(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 –
…
…
- (c)the Court, on application by the claimant –
- (i)declares the claimant has remedied the non-compliance; or
- (ii)authorises further proceedings based on the claim despite the non-compliance.
…
…
- (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 nine 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 non-compliance.”
- [18]Subsection (8) clearly qualifies and restricts the power of the Court to grant leave to proceed with a non-compliant claim. However, it does not in its terms prohibit a Court from granting leave where the non-compliance with s 37 of the Act consists of a failure to give a reasonable excuse or failing to comply with s 37(2)(a).
- [19]In Miller v Nominal Defendant (2003) QSC 081 Fryberg J considered the effect of legislative amendments of the Act on the second limb of s 37(3). At paragraph 38 he said:
“One change however is the introduction of the words ‘the notice’ in place of ‘notice of the claim’. It is unlikely that the use of the definite article was accidental. This is not a context where the singular can be read as including the plural. ‘The notice’ must refer to one or other of the notice of claim or the separate notice. It cannot sensibly refer to both, collectively or disjunctively. It seems most improbable that it refers to the separate notice. It is the notice of claim which the Nominal Defendant needs in order to investigate the incident, not a notice giving an excuse for failing to lodge a notice of claim. Prior to the amendments, the section barred a claim in these circumstances where notice of claim was not given within nine months. There is no reason to think that the amendments intended any change to this. Moreover the words ‘the notice’ where first and second used in s 37(3) clearly refer to the notice of claim and it is more natural that they should do the same when used a third time. It follows that provided a compliant notice of claim is given within nine months, failure to give the separate notice of reasonable excuse within that period does not bar the claim under the subsection.” (Emphasis added).
- [20]Dealing with s 39(5) of the Act his Honour said:
“There are therefore two matters which arguably might constitute a ‘failure to give notice of a motor vehicle accident claim as required under this division’ within the meaning of s 39(5): the failure to give the notice of claim on time; and failure to provide a notice giving a reasonable excuse for the delay …
The parties appear to have assumed 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). I am uncertain whether this assumption is correct. Its correctness cannot be demonstrated simply by reference to the meaning of the words. They are capable of supporting the assumed meaning, but they do not necessarily do so.”
- [21]As occurred in Miller’s case very little argument was addressed to this alternative claim. However Mr Wilson SC argued that the claimant has not shown why she should be permitted to proceed with the claim pursuant to s 39(5)(c). In particular he says:
- “(a)the initial notice of claim was deficient to the extent that no mention was made of the involvement of a vehicle leaving a retread on the roadway. The claimant well knew within the nine-month period of the involvement of another identified vehicle, but did not notify the respondent of that fact;
- (b)within nine months of the accident the claimant had identified the vehicle which collided with hers and had put its compulsory third party insurer on notice;
- (c)the claimant has not shown good reasons why the requirements of the statute have not been complied with, and why she should be allowed to proceed.”
Further, Mr Wilson argued that her application for leave to proceed pursuant to s 39(5) must be brought within the nine-month period stipulated in s 37(3) and s 39(8).
- [22]There is no authority for the latter proposition. It seems to me to be entirely wrong in principle. The Act provides, generally speaking, that in the case of a claim against the Nominal Defendant made in relation to an unidentified vehicle the claimant must give notice of his claim within nine months after the motor vehicle accident. If an application to be made to the Court for leave to proceed, notwithstanding non-compliance with the time limits laid down in s 37, had to be made to the Court within the nine-month period required by subsection 39(8), a Court could not hear that application until after the nine-month period had expired. It would be impossible, for example, for a Court to determine that that time limitation had been breached in an application heard, say, eight and a half months after the motor vehicle accident. To put it another way, if the legislature intended, in the case of a claim made in respect of an unidentified vehicle to substitute the three-year limitation period which normally applies with a nine-month limitation period it would have to do so in clear and express words. There is nothing in the language of division 3 to justify or support that argument raised by the Nominal Defendant.
- [23]In Thomas v Transpacific Industries Proprietary Limited (2003) 1 Qd R 328 at 337 Davies JA considered matters relevant to an application pursuant to s 39(5)(c)(ii). His Honour Mr Justice Fryberg in Miller v Nominal Defendant (supra) said that the amendments to the Act which followed Thomas’ case were not such as to affect the relevance of these factors. (See para 43).
- [24]The factors relied upon in those two authorities which seem to me to be relevant in the circumstances of this case are the following:
- (a)The extent of the delay in the giving of a notice of claim;
- (b)The reason for the delay;
- (c)The question of prejudice to the insurer;
- (d)The applicant’s prospects of success;
- (e)Whether there is a reasonable explanation for the applicant’s failure to give a reasonable excuse for the delay in lodging her notice of claim.
- [25]The period of delay in giving the notice of claim is seven weeks between 21st September 2003 and 11th November 2003. Fryberg J said of an eight week delay in Miller v Nominal Defendant (supra): “That is not much. Obviously there is no question of the ordinary limitation period having expired.” I adopt his Honour’s reasoning.
- [26]Although I have found that the applicant failed to provide a reasonable excuse for her non-compliance with the three-month period in s 37, within the nine-month period following the motor vehicle accident, the explanations supplied in the statutory declaration subsequently given to the Nominal Defendant amount to a reasonable explanation for that delay. I am satisfied that there was no default or dilatoriness on the applicant’s part once she had received advice from the physiotherapist as to a causal connection between her injuries and the motor vehicle incident. Delays which did occur related to the curious persistence in her solicitors to pursue the driver of the Hilux utility and its insurer.
- [27]It is apparent that the delay in giving notice of claim has not prejudiced the Nominal Defendant, at least no more than the prejudice it suffered as from the time of the motor vehicle accident. None of the witnesses spoken to on and after that date was able to give any information leading to the identification of the vehicle from which the retread described above became separated. It is therefore unlikely that the Nominal Defendant could have carried out any useful investigations even if the notices of claim had been lodged within time or at any time within the first three months following the accident.
- [28]The applicant’s prospects of success are difficult to determine. On the material presently available there seems little or nothing to establish liability in the driver of the semi-trailer from which that retread became separated. It may well be possible however for expert opinion to be provided as to warnings of that impending incident which ought to have been noticed by the driver of that vehicle. As in Miller’s case the applicant’s prospects can be described as “shadowy”. (See Miller (supra) at para 49).
- [29]The reasonableness of the explanation for the applicant’s failure to give a reasonable excuse for the delay is not expressly addressed in the evidence or in the submissions to counsel. However there is no fault that can be laid at the applicant’s door for her failure to supply an excuse within time according to division 3 and it seems to me that the applicant did all that she was able to do personally to satisfy the obligations cast upon her.
- [30]A final factor is that referred to by Fryberg J in Miller’s case. There at para 53 he said, “There is a factor which is of particular importance in this case. It is that legally it is still possible for Mr Miller to comply with his obligation under s 37 to give a reasonable excuse.” That dictum is clearly contrary to the submission that an application such as the current one must be made within nine months of the motor vehicle accident and is obviously relevant to the circumstances of this application. The other arguments raised on behalf of the Nominal Defendant as to the failure of the applicant to specifically mention the involvement of the semi-trailer that left its retread on the road has not caused any prejudice to the Nominal Defendant for the reasons set out above.
- [31]Accordingly, in all the circumstances of this case I am satisfied that I should give leave pursuant to s 39(5)(c) of the Act, permitting the applicant to proceed with her proposed proceedings, notwithstanding her non-compliance with the requirements of s 37 of the Act. Moreover, if the dictum of Fryberg J., in Miller’s Case (supra) set out in paragraph 38 is correct it follows that the Applicant has in fact satisfied her obligation to give “reasonable excuse” within S 37(3) of the Act, by her provision of the Statutory Declarations dated 35 June and 22 August, 2003. In that case the first limb of the Application should also succeed and leave to proceed is not required. (I express my Reasons in this way because I am informed that Miller v Nominal Defendant is presently subject to appeal.)
- [32]I order that the applicant’s and respondent’s costs of and incidental to this application be costs in the proceedings.