Heystraten v Suncorp Metway Insurance Limited
[2004] QDC 159
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- Unreported Judgment
- Heystraten v Suncorp Metway Insurance Limited[2004] QDC 159
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Heystraten v Suncorp Metway Insurance Limited[2004] QDC 159
Heystraten v Suncorp Metway Insurance Limited[2004] QDC 159
DISTRICT COURT OF QUEENSLAND
CITATION: | Heystraten v Suncorp Metway Insurance Limited [2004] QDC 159 |
PARTIES: | PETER HEYSTRATEN Applicant v SUNCORP METWAY INSURANCE LIMTIED Respondent |
FILE NO/S: | BS3647/2003 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 26 May 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 May 2004 |
JUDGE: | Richards DCJ |
ORDER: | Leave granted to the applicant to commence proceedings despite non-compliance with the Act |
CATCHWORDS: | S 39(5) Motor Accident Insurance Act – leave to commence proceedings |
COUNSEL: | D Thomae for the applicant W D P Campbell for the respondent |
SOLICITORS: | Joseph Lyons & Co solicitors for the applicant Respondent self represented |
- [1]On 2 November 2000 the applicant was the driver in a vehicle which was struck from behind as he was stationary and making a signalled right-hand turn into his workplace.
- [2]Although the applicant had experienced pain and discomfort from the date of the accident, he did not attend his general practitioner until approximately four weeks after the accident. His general practitioner advised him that he suffered a soft tissue injury to his neck. On the advice of his doctor he went to a physiotherapist on two occasions but did not get any relief from his pain. He continues to suffer pain from his injuries and they remain unresolved. He has not returned for treatment to the doctor.
- [3]In the middle of 2002 he decided that he should get a letter from his doctor to prove the extent and duration of his injuries. In his affidavit he says that he did not realise that he could make a claim for damages until he was told in October 2003 by a friend that there was a limitation period of 3 years on any action. This was either a misrepresentation or bad use of language in the affidavit. In cross-examination his state of mind was explained in a convincing manner.
- [4]The applicant was a man who had had no previous dealings with the courts or lawyers and he was reluctant to become involved in litigation. He thought that the injuries that he suffered would resolve and he was told as much by his doctor. Unfortunately his injuries have not resolved and he continues to experience pain. He is now concerned that the injuries will in time mean that he will be forced into early retirement. He was aware that he could make a claim for damages at an early stage but he did not think that it was worth his while. He only lodged a notice of accident claim under the Motor Accident Insurance Act (“the Act”) to preserve his rights as he is still not convinced that he will have to finish work early.
- [5]He is now seeking leave to commence proceedings against the respondent despite non-compliance with Division 3 of the Act.
- [6]A preliminary question was raised at the hearing of the application namely whether the application was required to be filed and heard before the expiration of the limitation period. In that regard the respondent relied on the comments by Robin DCJ in Norman & Anor v Potter & Anor [2001] QDC 113 wherein his Honour commented at paragraph [18]:
“My impression is that in practice whenever a limitation period is about to expire judges are asked (and take some trouble to) give decision before the period expires.”
- [7]And at paragraph [21]:
“In summary, my view is that it is now too late, the limitation period having expired, for leave ( even leave appropriate to permit a new District Court action) to be given; the applicant should have arranged a hearing, at the least, by 21 May 2001. Essentially this conclusion flows from the effect which Court of Appeal decisions have given to s 57. If this view were wrong, I would be disinclined to grant leave in any event”
- [8]The applicant argues that all that needs to be done is that the application be filed before the limitation period expires. In that regard the applicant pointed out that in the decision of Norman v Potter, Judge Robin left this question open. He referred to the decision of Couling v Nelson (1999) 2 Qd.R 231, at 234-235:
“The question is may the court give leave to bring a proceeding in a court despite non-compliance with the requirements of the Act in the circumstances of this case? The discretion in s 39(5)( c) is limited in my view by the provisions of s 57. At the least a notice of claim or an application for leave to bring a proceeding must be brought before the end of the period of limitation applying to the claim…. There is no reduction in the period allowed under the Limitation of Actions Act 1974 because notice can be given on the last day of such a period, to preserve the entitlement. The six months waiting period required by s 39(5)(a)(i) can elapse and then the proceedings may be brought. Subsection (3) takes account of last minute instructions, as would seem to have occurred here, by permitting notice to be given to the Motor Accident Insurance Commission where a claimant is unsure of the identity of the licensed insurer…”
- [9]He indicated each decision needs to be considered in its own context.
- [10]It was submitted that the proposition that the application is made when it is filed is supported by the court of Appeal decision of Thomas v Transpacific Industries Pty Ltd [2003] 1 Qd R 328 per Davies JA which was affirmed in Miller v Nominal Defendant [2003] QCA 558 at paragraph 33:
“An application for leave to bring a proceeding based on the motor vehicle accident claim was made, in my opinion, before the end of the period of nine months specified in s 37(3) because that application was filed on the last day of that period”
- [11]In my view the applicant’s submissions must be correct. Otherwise the success of an application would depend too heavily on the availability of court dates and the ability of the registry to file and arrange a hearing of matters before the expiration of limitation periods in circumstances where it may simply not be possible to do so.
- [12]As to the substantive question in the application, it is clear from the applicant’s evidence that he is a fairly simple and self reliant man who did not want to proceed with a claim under the Act and is only doing so now because he cannot leave it any longer. Ultimately he felt that it was necessary to preserve his rights under the Act before the expiration of the limitation period.
- [13]The problem with this stance is that he has not sought any medical treatment which should support his claim nor has he indicated that he currently intends to proceed with the claim. He has been aware for a significant period of time that he has the ability to proceed with the claim and that it is important for him to follow certain procedures under the Act. However, he did not take the matter any further.
- [14]In that regard I have been referred to a decision of my brother McGill in Rigby v Currie & Suncorp Metway Insurance Limited [2004] QDC 038 wherein the delay was explained by the fact that the applicant had no intention of proceeding with the claim until his compensable condition became dramatically worse whereupon he determined to proceed. In those circumstances his explanation was seen as being a reasonable excuse for the delay.
- [15]It seems to me that this case is not on all fours with Rigby’s case because with the applicant in this case, his injuries have been constant rather than deteriorating dramatically. His concern remains that if his symptoms worsen he may not be able to work. In this case it seems to me that there is no reasonable excuse for the delay in that the applicant could and should have complied with the act at a much earlier time.
- [16]However, it is established by Thomas v Trans Pacific Industries Pty Ltd [2003] 1 Qd R 328 that a reasonable explanation for delay is only one of the factors that must be considered when the court exercises its discretion to give leave to bring proceedings under s 39(5) of the Act.
- [17]There is clearly a prima facie case in this instance. There has been no significant prejudice alleged by the respondent and in refusing the application the applicant would be forever shut out from any cause of action against the respondent. It would also seem to be unjust to shut the applicant out of an action in circumstances where he has endeavoured to deal stoically with his injuries. It is understandable that a person in the applicant’s position who has had no previous contact with lawyers to make a decision not to pursue a claim that without a significant claim for economic loss would be a modest claim for damages. In those circumstances his decision not to take the matter any further before the end of the limitation period was in my view a reasonable one.
- [18]Accordingly, the applicant should succeed.
ORDER
- [19]The applicant is given leave to commence proceedings under the act despite non-compliance with the Act.