Pamenter v Nominal Defendant[2004] QDC 275

CITATION: Pamenter v Nominal Defendant [2004] QDC 275

PARTIES:

v

FILE NO/S: D2612/2004

DIVISION:

PROCEEDING: Originating application

ORIGINATING COURT: District Court, Brisbane

DELIVERED ON: 26 July 2004

DELIVERED AT: Brisbane

HEARING DATE: 26 July 2004

JUDGE: McGill DCJ

ORDER: Declare that the applicant has remedied the non-compliance of the notice.

CATCHWORDS:

INSURANCE - Motor Vehicles - compulsory insurance legislation - notice of claim - reasonable excuse for delay - relevance of specific cognitive deficits.

Motor Accident Insurance Act 1994 s 37(3).

Piper v Nominal Defendant [2004] 2 Qd R 85 - applied.

CIVIL JURISDICTION

JUDGE McGILL SC

and

BRISBANE

..DATE 26/07/2004

ORDER

HIS HONOUR: This is an application under the Motor Accident Insurance Act. The first question is whether, for the purposes of section 37(3) the applicant has given a reasonable excuse for the delay in providing the notice required by that section, in this case to the Nominal Defendant.

This was a case where the notice was given to the Nominal Defendant because the motor vehicle alleged to have been involved in an incident as a result of which the applicant suffered an injury could not be identified, so that subsection 2(a) applied. A notice was required within three months after the motor vehicle accident; however a failure to give notice within that three month period does not bar the claim.

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 the notice is not given within nine months after the accident, a claim against the Nominal Defendant is barred.

Both the three month period in subsection 2(a) and the absolute bar after nine months are unusually strict and reflect the considerations discussed by the Court of Appeal in Brannigan v Nominal Defendant [2000] 2 QdR 116, however the question of what is a reasonable excuse for the delay is not something which is specific to claims against the Nominal Defendant or claims against the Nominal Defendant because the motor vehicle cannot be identified.

It applies whenever a notice has not been given within whatever is the applicable time limit in the circumstances under subsection (2).

It is therefore a test which is not specific to claims against the Nominal Defendant and therefore not specifically tightened or made more rigid or rigorous by the considerations referred to in Brannigan.

The matter has been, to some extent, considered by the Court of Appeal. For present purposes I would note that in Piper v The Nominal Defendant [2003] QCA 557 all of the members of the Court approved the proposition that the test was an objective one, and that it was reasonable to take into account factors such as the age, intelligence, and education of, and nature of injuries sustained by the applicant.

In that matter, the Judge at first instance seems also to have taken into account the likelihood of prejudice to the Nominal Defendant. It seemed to me that that matter was not approved by the Court of Appeal and, in principle, the question of prejudice to the Nominal Defendant, in my opinion, cannot be relevant to the question of whether there has been a reasonable excuse for the delay given.

The relevant delay is the whole of the period from when time began to run - in this case, the date of the motor vehicle accident until the date when the notice was, in fact, given. The notice was given, in this case, on the 8th July, but there were aspects of the notice which were non-compliant at that stage and some additional steps were taken. Ultimately, the Nominal Defendant seems to have been satisfied by all aspects of the notice other than the question of whether there was reasonable excuse given for the delay. That's the case, isn't it, Mr Dickson?

MR DICKSON: Yes.

HIS HONOUR: Yes, all right. Therefore, the first issue is whether reasonable excuse has been given for the delay. If so, that means that for the purposes of section 39(5)(c)(i) the applicant has remedied the non-compliance and I should make a declaration accordingly.

In relation to the situation here, the applicant was working as a traffic controller on highway road works at the relevant time. That is to say, he was standing beside a road holding a “Stop” or “Slow” sign, and liaising with another traffic controller at the other end of the section. He says now that a vehicle came past which was driving in the wrong place and as it went past it threw up a stone or threw up something. He heard a bang and saw something coming from the vehicle and felt a blow on the head and fell to the ground.

The contemporaneous material suggests that he was noticed on the ground - lying on the ground - and as a result co-workers came to see him. He was unconscious or lapsing in and out of consciousness. An ambulance was summoned and he was examined and then taken to hospital where he was admitted for three days. He was apparently being observed because of concerns about his condition and he discharged himself.

He said in the statutory declaration which was provided to amplify the statement of the reasonable excuse that:

He had a number of symptoms at that stage, a number of which were associated with problems specifically on the right side. There were some visual problems with the right eye, aural problems in the right ear, his speech was slurred and he had headaches and problems in the right arm and shoulder, including aching.

There was some concern as to just what the cause of these symptoms may have been. He said he became scared and confused about the extent of his injuries and worried because they seemed to be unable to find the cause of his symptoms, and as a result discharged himself and went home.

He had - or his wife had made a worker's compensation application promptly on his behalf. He says that his application was rejected because WorkCover had decided that his injuries were the result of a stroke rather than trauma to his head. It appears rather that WorkCover were investigating the matter further. There is a report in the WorkCover file, which he did not have at this stage, from Dr Callaghan, dated the 13th November 2003, which expresses some doubt as to whether the cause of the injury was work related or due to a stroke or something or that nature.

He suggested that the applicant be referred to a neurologist for consideration. The applicant says that he decided to see a specialist and therefore attended Dr Edwards, a neurologist, but Dr Edwards ultimately provided a report to WorkCover and it looks as though it was WorkCover that arranged for the applicant to see Dr Edwards. However, Dr Edwards' report of 2 December 2003 records at that stage that the applicant gave him a history of a blow to the right side of the head. He described a number of symptoms and reviewed the examination, the CT scan records and apparently an EEG which was undertaken under his supervision. He concluded that the applicant had suffered a closed head injury followed by immediate post traumatic epileptic seizure.

He said that in his opinion the applicant needed no rehabilitation to resume his previous work activities; that he should be fit to resume his previous work by the end of December but it might be advisable to start with shorter hours; and in relation to prognosis, that unless MRI scans showed intra-cranial complications of the head injury, prognosis for full recovery was excellent and there should be no sequelae.

Although that was a report provided to WorkCover and it appears likely that Dr Edwards was seen at the request of WorkCover, that suggests that insofar as Dr Edwards provided any information about the applicant's condition to the applicant, it would have tended to reassure the applicant. It is certainly the case that Dr Edwards would not have indicated to the applicant that he had suffered any serious injury or any injury that was likely to disable him for any great length of time. It does appear, however, that following Dr Edwards' report, WorkCover accepted that the injury was work related and workers compensation payments began to flow as from the day after the date of the accident.

Accordingly, if Dr Edwards' rather optimistic prognosis had proved to be accurate, the applicant would have received workers compensation for the period off work and there would have been really no claim worth pursuing. Following that report, the applicant apparently attempted to return to work. There is a reference to his having seen a GP in Dalby in January when he reported to the GP that his symptoms had plateaued in December 2003, that he had tried to return to work, he says, on 2 December, presumably after he saw Dr Edwards on 2 December, but he found himself dizzy and unable to cope.

There was further time off work and further investigation. It appears that the next person who saw the applicant was a psychologist, Dr Senior, who saw him for the purpose of testing on 6 May 2004. He was referred for psychological assessment by WorkCover (Queensland) who felt that psychological testing could provide relevant information regarding the relevant impact of cognitive and psycho-social factors on his current overall level of functioning.

The report is lengthy and detailed and lists a very large number of tests which were administered. Significantly for present purposes, the testing identified a number of problems. The applicant was shown to be a man of low average intellectual functioning with average to low average verbal, visual, processing and attention abilities. Specific and severe cognitive deficits were found in three areas of cognitive functioning: graphomotor speed, visual scanning and executive functioning. These deficits were said to be likely to substantially limit the applicant's vocational opportunities, et cetera.

The reference to executive functioning was explained in some detail on page 6 of the report. Specifically, this refers to the degree to which an individual can execute plans, organise solutions, and solve problems. The tests indicate that he had very low scores compared with the community in general in relation to these matters. For present purposes it may not matter whether there were deficits caused by the injury, or were pre-existing.

The other significant feature of this report is that it indicates that there was still the potential for some recovery of function but that Dr Senior recommended further rehabilitation of a particular kind. Significantly, by May 2004, attempts to return to work and attempts to achieve speedy rehabilitation were proving unsuccessful, and further detailed investigation was carried out which indicated that at least further rehabilitation was required.

The applicant obtained this material when he received a copy of his WorkCover file on 25 June 2004. He says it was only after reading this file and the medical reports contained within it that he realised that a blow to the head had caused his injuries and that his symptoms were likely to be permanent. It may be that the significance is not so much that a blow to the head had caused the injuries but that there was medical evidence to support his statements to that effect (he had made statements to that effect earlier) and that the symptoms were likely to be of at least significant or indefinite duration. In any event, he obtained the impression from the material that there was no possibility of fixing the damage to his head and he would be left with permanent disabilities.

Dr Senior's report is I think significant, partly because of the light it throws on the prospects of the plaintiff's returning to work but also because of the light it throws on the particular circumstances of the particular plaintiff. If his age, education, and so on, are relevant considerations to take into account when applying the objective test of whether there has been a reasonable excuse, then, in my opinion, in the same way specific and severe cognitive deficits, particularly in the area of executive functioning, which is precisely the area it seems to me from the description of it in Dr Senior's report which one would have to apply when deciding what steps one should take in order to protect one's interest in matters such as a claim for damages in respect of injury, would also have to be a relevant consideration in determining whether a person in his position acted reasonably in failing to give the notice earlier than he did.

That is a matter which, it seems to me, is consistent with the approach adopted by all members of the Court of Appeal in Piper. This is a case which I think is different from the other cases considered by the Court because of the presence of those specific and severe cognitive deficits which are particularly relevant to the reasonableness of his acting to protect his interest. The applicant in Piper was working on his own behalf as a carpenter and although that is essentially a practical trade, it is one that requires a good deal of intelligence and an ability to plan and organise and no doubt he had an executive functioning ability which was far greater than the present applicant.

I think that is a relevant consideration in assessing whether he behaved reasonably. Broadly speaking, therefore, although he may well have had from the beginning some recollection that he had been struck by a stone apparently thrown up by a passing vehicle, if he was being told that there was some uncertainty as to what had really caused his relevant symptoms, then it was reasonable enough, in my opinion, for someone such as him to wait until that uncertainty had been resolved. Once that had been resolved, he was receiving workers compensation and he had no reason not to believe that he would speedily recover. I think it likely that he was given some reassurance by Dr Edwards even if Dr Edwards did not provide detailed information about his condition to him and he, therefore, attempted to return to work, and I think that is also significant because that is consistent with a belief that he was not going to be permanently adversely affected by what had happened to him.

It was really only, it seems to me, once there was that detailed testing undertaken by Dr Senior in May 2004 that it would have become apparent that this was a matter which where his prospects were less sanguine and where he ought to be taking some appropriate steps to protect his interest. Once that report was available by obtaining a copy of the WorkCover material, he seems to have acted reasonably promptly in giving the notice, and various requests for further information from the Nominal Defendant produced prompt responses.

Even if it be the case that the further statutory declaration from the applicant dated 19 July was not sufficient without further amplification to establish reasonable excuse, the amplification or perhaps background material in the form of the medical reports from the WorkCover file has at last been provided to the Nominal Defendant so that if that further material is required in order to enable the reasonable excuse to be given by the separate notice, then once that further material was provided, in my opinion, reasonable excuse for the delay by separate notice was given and, accordingly, the non-compliance has been remedied.

It is in these circumstances unnecessary to consider whether, had that not been the case, it would have been appropriate to make an order authorising further proceedings despite non-compliance under subsection (5)(c)(ii). So I declare that the applicant has remedied the non-compliance.

...

HIS HONOUR: I think it may well have been reasonable for the respondent to be concerned about the matter and particularly to be concerned about aspects of prejudice but they do not really arise in relation to this aspect. It may be that the respondent did not sufficiently clearly distinguish between what was relevant to the question of reasonable excuse and what was relevant to the exercise of separate discretion if there had not been compliance, but, in my view, on the material the respondent should have agreed that the deficiency in the notice had been remedied, and costs should follow the event.

So, I order that the respondent pay the applicant's costs of the application, to be assessed.

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