Khatri v Transport Accident Commission
[2004] QDC 38
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- Unreported Judgment
- Khatri v Transport Accident Commission[2004] QDC 38
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Khatri v Transport Accident Commission[2004] QDC 38
Khatri v Transport Accident Commission[2004] QDC 38
DISTRICT COURT OF QUEENSLAND
CITATION: | Khatri v. Transport Accident Commission [2004] QDC 038 |
PARTIES: | MITESH KHATRI (Applicant) v TRANSPORT ACCIDENT COMMISSION (Defendant) |
FILE NO/S: | BD801/04 |
DIVISION: | Civil jurisdiction |
PROCEEDING: | Originating jurisdiction |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 23 March 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15, 19 March 2004 |
JUDGE: | Rackemann DCJ |
ORDER: | Application allowed, applicant to pay respondent’s costs of and incidental to this application |
CATCHWORDS: | INSURANCE – MOTOR VEHICLES – Failure to give notice under s 37 of Motor Accident Insurance Act 1994 – whether reasonable excuse given – applicant in foreign jurisdiction – whether absence of reasonable excuse a bar to the exercise of power under s 39(5)(c)(ii). Motor Accident Insurance Act s 37(3), 539(5)(C)(iii) Thomas v Transpacific Industries Pty Ltd [2003] 1 Qd R 328 Perdis v Nominal Defendant [2003] QCA 555 Piper v Nominal Defendant [2003] QCA 557 Miller v Nominal Defendant [2003] QCA 558 Gillam v State of Qld & Ors [2003] QCA 566. |
COUNSEL: | Mr M E Eliadis for the Applicant Ms R M Treston for the Respondent |
SOLICITORS: | Robert Downey Lawyers for the Applicant Respondent self-represented. |
- [1]The applicant, who was involved in a motor vehicle accident on 21 March 2001, seeks an order pursuant to s 39(5)(c)(ii) of the Motor Accident Insurance Act 1994 authorising proceedings despite non-compliance with the obligation to give notice in accordance with Division 3 of Part 4 of the Act.
- [2]Section 37(1) of the Act requires a claimant, before bringing an action in a court for damages for personal injuries arising out of a motor vehicle accident, to give written notice of the motor vehicle accident claim to the insurer or one of the insurers against which the action is to be brought. Unless the notice is to be given to the nominal defendant (which is not the case here) sub-s (2)(b) requires the notice to be given within the period ending on the earlier of the following dates:-
- (1)Nine months after the motor vehicle accident or, if symptoms of injury are not immediately apparent, the first appearance of symptoms of the injury;
- (2)One month after the claimant first consults a lawyer about the possibility of making a claim.
- [3]Pursuant to sub-section (3), if a claim is not given within that time, 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.
- [4]The applicant, who is resident in England, was injured as a result of a serious motor vehicle accident which occurred along the Bruce Highway at Bambaroo on 21 March 2001 when the vehicle in which he was one of the passengers left the roadway at the approach to the crest of a hill and collided side-on into a tree. The Queensland Traffic Incident Report reveals that all occupants were injured and admitted to hospital and the vehicle was written off. The driver was killed. The incident report also notes that the vehicle had been seen speeding shortly before the accident. The respondent accepts, at least for the purposes of this application, that there is a prima facie case of liability.
- [5]The applicant’s injuries, which included multiple fractures of the lower limbs, were obviously immediately apparent. Consequently notice was required to be given on the earlier of nine months after the motor vehicle accident or one month after the claimant first consulted a lawyer about the possibility of making a claim.
- [6]The Act does not itself contain a definition of “lawyer” however s 36 of the Acts Interpretation Act defines the term to mean a barrister, solicitor, barrister and solicitor or legal practitioner of the High Court or the Supreme Court of a State. Relevantly for present purposes, the term would not, in my view, extend to legal practitioners admitted to practise in London but not in the High Court of Australia or the Supreme Court of a State.
- [7]No notice was provided within the time stipulated in s 37(2)(b). The first consultation with a “lawyer”, which is evidenced in the material, is when Robert Downey Lawyers (Downey) were contacted on 20 March 2003 by the claimant’s England based solicitors. Subsequently, Downey first contacted the insurer by letter dated 25 July 2003 giving details of the vehicles involved, the police details and a brief description of the accident. This was followed by an uncompleted notice of accident claim form sent on 12 August 2003. On 16 October 2003 a s. 37 notice and a medical certificate was forwarded to the insurer under cover of a letter dated 16 October 2003 which sought to explain the delay as follows:-
“1. The applicant resides in England;
- The applicant received advices from English solicitors in respect to his claim and appears to have been advised that he could not pursue the matter;
- The applicant appeared to be hesitant about proceeding with the matter and dealing with Australian solicitors and in particular had difficulty finalising a client agreement in respect to our costs;
- The applicant appears not to understand the urgency of the procedural aspects for a claim of this nature in Queensland Australia.”
- [8]On 29 October 2003 the insurer advised that the notice was not compliant and that compliance would not be waived. The notice was said to be deficient in three respects, namely the claimant’s signature had not been witnessed, that a reasonable explanation for delay had not been provided and that the medical certificate was incomplete. Further correspondence ensued between Downey and the solicitors in England before Downey sent a facsimile to the insurer on 3 March 2004 enclosing a medical certificate and a signed and witnessed notice of claim. The insurer responded on 9 March advising that compliance could not be confirmed in the absence of a reasonable explanation for delay. Downey replied on 11 March enclosing a facsimile from the solicitors in England claiming that the applicant did not lodge his claim because he did not know he had to do so and was not advised properly.
- [9]Some explanation of the delay was sought to be given in two affidavits of Mr Downey, the second of which exhibits numerous communications between his firm and the claimant’s solicitors in England.
- [10]It appears that the applicant first sought advice from a different firm of solicitors in the United Kingdom in approximately September 2001, some six months after the accident. Those solicitors ceased to act in about March 2003 when they informed the applicant they would not be able to deal with the matter further and new solicitors were appointed who promptly sought advice from Downey in relation to the relevant limitation period. That request was responded to promptly on 24 March 2003 in a letter which not only advised the limitation period but also advised of the substance of the requirements under s 37 of the Motor Accident Insurance Act 1994. On 24 April 2003 the solicitors in England confirmed that the applicant wanted to continue with the claim but that there was no funding in place. Downey obtained the traffic incident report on 30 April.
- [11]The need to attend to the requirements of the Act was reinforced in subsequent correspondence from Downey on 17 April 2003, 1 May 2003, 13 May 2003, and on 27 May 2003. After sending the uncompleted notice of accident claim form on 12 August 2003, the urgency of delivering a duly completed form was emphasised in correspondence from Downey on 16 September 2003. This was followed by a facsimile from the solicitors in England dated 22 September stating that “I have again today chased Mr Khatri for return of the completed documentation”.
- [12]In looking at the excuse for delay, it is relevant to have regard to all of the period since the date of the accident[1].
- [13]In this case it would appear that the applicant acted reasonably promptly in engaging solicitors in England about September 2001 but there is no satisfactory explanation for the delay which occurred in the 18 months thereafter despite the applicant’s current solicitors in England stating, with respect to the period, that “they clearly had not advised him properly in procedures in Australia and his claim was not lodged”. While the material suggests that the solicitor’s file was lost and it cannot now be traced, the applicant would, presumably, be in a position to say what, if anything, transpired in that period, at least in relation to the instructions he gave and the advise, if any, he received. This application is not however supported by an affidavit by the applicant.
- [14]As for the period from March 2003 when different solicitors in England were appointed and Downey was first consulted, the correspondence evidences a lack of urgency in giving Downey appropriate instructions to give the relevant notice. The main focus seems to have been on matters relating to funding and the client agreement, particularly with respect to costs. It was not until 28 May that the solicitors in England requested their client pay sufficient funds on a “private basis” in order to have the notice prepared “straight away”. That funding was not confirmed until July 2003, which is when Downey began to attend to the notice.
- [15]Because the evidence, in this respect, is limited to the correspondence which passed between the two firms of solicitors, the details of what transpired between the solicitors in England and the claimant is unknown, save for that which can be gleaned from the correspondence.
- [16]Generally, a claimant is said to give a reasonable excuse for delay if the excuse is that, in sufficient time, he entrusted the matter to a person who was reasonably believed to be competent to do whatever was necessary[2]. Where, as here, the applicant is resident outside the jurisdiction, it would seem to me to be reasonable for that person to engage solicitors in his own country and instruct them to do what was necessary to ascertain the requirements in Queensland and to convey instructions to solicitors in Queensland to attend to those requirements.
- [17]Such a general proposition is however, subject to qualification. The line of enquiry in relation to the reasonableness of the excuse for delay does not necessarily stop with the engagement of solicitors. There may, for example, be something which arises after the engagement which would cause a reasonable person in the position of the claimant to make further inquiry or to take other steps. Alternatively, it might be that the claimant fails to respond to requests by the solicitor to take appropriate steps or fails to give appropriate information or instructions when requested to do so. It is appropriate to take such matters into account when deciding whether reasonable excuse has been given.
- [18]The applicant, in this case, is not an unsophisticated person. The notice of claim reveals that he holds a full time position as an analyst programmer at Merrill Lynch in London where he receives an average weekly gross income of £790. There is no suggestion that he is a person who is incapable of understanding the need to give prompt instructions to protect his interests when so advised. There are, no doubt, complications in attending to matters in a foreign country through two sets of solicitors (one in each country). In the absence of affidavit material from the applicant however, it is difficult to know the extent the delay was due to his remoteness from the jurisdiction and failures on the part of those he engaged in England and the extent to which delay was caused by his own failure (if any) to give proper and prompt instructions and to make reasonable enquiry in relation to the progress of the matter.
- [19]It is the conduct of the applicant which is the primary focus of the inquiry into the reasonableness of the excuse for delay. While I am not sure that it is correct to say, as was submitted for the respondent, that a reasonable excuse for delay can never be established without an affidavit from the applicant personally, the absence of such material in this case leaves significant gaps in the explanation.
- [20]I accept the respondent’s submission that a reasonable excuse for the delay has not been given or the material before me. Indeed, counsel for the applicant did not strongly contend to the contrary and made it clear that he was neither seeking a declaration that a reasonable excuse had been given nor a declaration under s 39(5)(c)(i). Rather, he contended that the court had power to authorise further proceedings under s 39(5)(c)(ii) even in the absence of a reasonable explanation for delay. Counsel for the respondent submitted , at least initially, that a reasonable excuse for delay is a condition precedent to the granting of any order under sub-para (c), at least where the non-compliance related to a notice given out of time.
- [21]No such pre-condition is expressed in s 39(5)(c)(ii). Counsel for the applicant relied upon Thomas v Transpacific Industries Pty Ltd [2003] 1 Qd R 328 as authority for the proposition that there is no such pre-condition. In that case the President (with whom Helman J agreed) said, at para 8 of the reasons:
“Explanation for delay is a relevant factor but is only one factor for the court’s consideration in exercising its discretion to give leave to bring the proceedings under s 39(5) of the Act: See Dempsey v Dorber and re Tonks”.
- [22]Counsel for the respondent drew attention to the fact that s 39(5) has now been amended and relied on three unreported decisions at the Court of Appeal namely Perdis v Nominal Defendant [2003] QCA 555, Piper v Nominal Defendant [2003] QCA 557 and Miller v Nominal Defendant [2003] QCA 558 as authority for the proposition that a reasonable excuse for delay must be given before an order can be made under s.39(5)(c)(ii).
- [23]While amendments were effected by the Motor Accident Insurance Amendment Act 2000 to the Act, s 39(5)(c)(ii) is substantially similar to s 39(5)(c) as considered in Thomas v Transpacific Industries Pty Ltd (supra). Reference to the explanatory notes to subsections (5) and (6) does not reveal an intention to change the law in a way which would create the pre-condition contended for by respondent.
- [24]I do not consider that s. 39(5)(c)(ii) either expressly or impliedly limits the exercise of the discretion of the court to authorise further proceedings despite non-compliance in the way contended for on behalf of the respondent. It seems to me that the status of sub-para (ii) as an alternative to sub sub-para (i) and its contemplation of further proceedings being authorised “despite” non-compliance, raises difficulties for the respondent’s argument that the failure to provide a reasonable excuse for the delay is a bar to the authorisation of further proceedings.
- [25]In Gillam v State of Queensland & Ors [2003] QCA 566, a similar argument with respect to s 18 of the Personal Injuries Proceedings Act 2002 was rejected. In that case Jerrard JA (with whom Dutney and Philippides JJ agreed) said:
“[26]. The appellants submissions on s 43, regarding the need for demonstration of a reasonable excuse, were predicated upon the proposition that s 43 leave would be futile in proceedings in which s 18 would prevent a claimant from proceeding further with the claim by reason of a failure to give a complying notice. Behind that proposition lay the further argument, urged on the court by the appellant’s senior counsel, that the discretion given to a court by s 18(1)(c)(ii) would not be exercised in a claimant’s favour in the absence of a reasonable excuse for delay. This was said to be the result of the scheme of the PIPA, with the submission being that s 9(3), requiring a reasonable excuse, should be imported into s 18.
[27] The obvious difficulty that argument faces is that s 18(1)(c)(ii) empowers a court to authorise a claimant to proceed despite non-compliance. The argument is accordingly inconsistent with the Act and should be rejected. Where the lack of compliance is the failure to give a reasonable excuse for delay in provision of a s 9(1) notice, the appellant’s argument would result in a court reimposing, as a requirement of being excused, the provision of that from which a claimant sought to be excused.”
- [26]On the further hearing of the application I drew the attention of counsel to that passage and invited further submissions, particularly from counsel for the respondent. Both counsel had been aware of the case but had not referred me to it because they were not conscious that it dealt with s 18(1)(c)(ii). Counsel for the respondent, having been given a short time to consider case, could not advance any reason as to why a similar approach should not be taken with respect to s 39(5)(c)(ii) of the Motor Accident Insurance Act.
- [27]I will however, now turn to a consideration of the three decisions of the Court of Appeal, each delivered on 15 December 2003, upon which the respondent first relied.
- [28]It should be noted that each of the decisions dealt with a claim against the Nominal Defendant, in respect of which there is a stricter regime. That has some significance for reasons discussed later. It should also be noted that none of the decisions purport to say that the approach in Thomas v Transpacific Industries Pty Ltd (supra), in this respect, has been overtaken by reason of the amendments to the legislation.
- [29]In Perdis v Nominal Defendant (supra) the court was concerned with an application for leave to appeal by the Nominal Defendant against a declaration made in the District Court that the respondent had given reasonable excuse as required by s. 37(3) of the Act. The sole question which arose was whether, in deciding whether a reasonable excuse has been provided within the meaning of s. 37(3), it is necessary to consider only whether the claimant’s own personal actions were reasonably excusable in light of what has occurred, or whether, in circumstances where the claimant retained a solicitor in connection with the giving of the Notice, it was also necessary for the actions of the solicitor, insofar as they contributed to the delay, to be reasonably excusable. The declaration that the respondent had given reasonable excuse was characterised as a declaration made under s. 39(5)(c)(i)[3].
- [30]That case was not focused upon the scope of s 39(5)(c)(ii). Indeed, the judge at first instance had also expressed a “precautionary conclusion” that he would exercise the discretion under the subsection to allow the applicant to proceed against the Nominal Defendant despite non-compliance with Division 3 of Part 4 of the Act, assuming that the Notice of Claim eventually forwarded did not provide a reasonable excuse[4]. The Nominal Defendant did not seek to contest that conclusion before the Court of Appeal. The judgment of the Court of Appeal does not suggest that the primary judge erred in assuming that he had such a discretion, even if a reasonable excuse had not been provided.
- [31]In Piper v Nominal Defendant (supra), the court was concerned with an appeal against a decision dismissing an application for various orders or declarations under each of the sub subparagraphs to s. 39(5)(c).
- [32]The case concerned a claimant who had wrongly assumed that a person, whom he entrusted to assist him, was a lawyer when in truth that was not the case. Davies JA concluded that a reasonable excuse had been provided and accordingly, an order should be made under s. 39(5)(c)(i). Williams JA and McKenzie J however, were not inclined to disturb the learned trial judge’s finding that a reasonable excuse had not been given. By reason of the regime applying to claims against the Nominal Defendant however, it was not open to the court to go on to consider whether the discretion under s. 39(5)(c)(ii) should have been exercised. In that regard, Williams JA said at para. 26:
“Though there is reference in the appellant’s outline on appeal to the learned judge at first instance erring in not making an order pursuant to s. 39(5)(c)(ii) authorising further proceedings despite non-compliance, that order could not have been made either at first instance or on appeal because by operation of s. 37(3) the claim was barred once nine months had elapsed (16 January 2003) without either there being a complying notice or an order pursuant to s. 39(5)(c)(ii) authorising further proceedings despite the non-compliance. (See the judgment of this court in Miller v Nominal Defendant delivered contemporaneously with these reasons)”.
- [33]In Miller v Nominal Defendant (supra) the court was concerned with an appeal by the Nominal Defendant against orders made under s. 39(5)(c)(ii) authorising the bringing of further proceedings despite non-compliance. In particular, the court was concerned with the relationship between s 39(5), s 37(3) - which creates a bar if a motor vehicle cannot be identified and notice is not given to the Nominal Defendant within nine months after the motor vehicle accident, and s. 39(8) - which prevents the Nominal Defendant from waiving compliance and the court from giving leave to bring proceedings despite non-compliance. Mackenzie J said at para. 54:
“The present appeal is one which turns on the power of the court to authorise further proceedings, based on a claim despite non-compliance, after a period of nine months has elapsed from the accident. The bar imposed by s 39(8) applies to cases where ‘notice’, which includes reasonable excuse, has not been given. In a case where no such ‘notice’ has been given s. 39(5)(c)(ii) is relied on, the order must be made within nine months. That is to be distinguished from a situation where s 39(5)(c)(i) is relied on in a case where the dispute is whether an excuse given is reasonable. In such a case the quality of the excuse as reasonable or not reasonable has become fixed at the time at which it was given. A determination that the excuse given within time is reasonable may be made outside the period of nine months”.
- [34]The provisions creating a bar to certain claims against the Nominal Defendant are not relevant to the current application.
- [35]I do not consider that those decisions stand for the proposition that the court may not, in a case such as this, exercise the discretion in s. 39(5)(c)(ii) in the absence of a reasonable excuse for delay. The absence of such an excuse is, doubtless, a relevant factor and might, in a given circumstance, be determinative but I consider that it is only one factor for the court’s consideration in exercising the discretion. In this case there are other factors to consider.
- [36]To refuse the application would be to forever shut the applicant out of his cause of action against the respondent. The cause of action is one in respect of which there is, it has been conceded, a prima facie case of liability and the injuries for which damages would be sought are not insignificant.
- [37]While the establishment of a prima facie case is not a mandatory requirement[5], the applicant in this case does have a strong prima facie case. He was a passenger in the rear seat of a vehicle which left the roadway at the approach to the crest of a hill and collided, side on, into a tree shortly after being observed to have been speeding.
- [38]The injuries which he sustained in the collision, namely a cerebral contusion and fractures to the bones of his lower limbs, are reasonably ascertainable and are significant.
- [39]It seems unlikely that non-compliance in this case would significantly prejudice the respondent in investigating the incident or its effects. The incident was investigated by police and the results of the investigations are contained in the traffic incident report which, amongst other things, gives details of the incident scene, the vehicle involved, the occupants of the vehicle and their seating positions, the witness who observed the behaviour of the vehicle shortly prior to the incident, the person who first attended the scene and the hospital to which the claimant was admitted immediately following the incident. As I have noted, the injuries sustained are reasonably ascertainable and the claimant received immediate medical treatment in respect of which records are likely to exist.
- [40]The respondent does not contend that the non-compliance would prejudice it in responding to the claim, nor do the circumstances suggest that any significant prejudice is likely.
- [41]While each case must be considered on its own merits, I note that the claimant’s position is, at least in some respects, better than that of the applicant in Thomas v Transpacific Industries Pty Ltd (supra). The delay from the date of the accident until the giving of the notice was also considerable in the Transpacific case. In relation to explanation for delay, no reasonable excuse had been given at first instance in the Transpacific case, for the delay of almost three years from the date of the accident. While, on the hearing in the Court of Appeal, further evidence was received demonstrating adequate reason which, as the President observed, gave “even stronger reasons for granting the application”[6]. She had earlier expressed the view that “a consideration of the competing interests favoured the granting of the application”[7]. The applicant’s prima facie case on liability appears to be somewhat stronger than was the case in Transpacific Industries (particularly at first instance). Further, in Transpacific it was likely that the respondent would suffer some prejudice because of the passage of time and the disentangling of symptoms caused by pre-existing conditions aggravated by supervening trauma.[8] There is no suggestion of such difficulties here.
- [42]All of the factors must, of course, be balanced with the circumstances of the non-compliance which I have discussed earlier. After weighing all of the factors I have concluded, that the discretion under s 39(5)(c)(ii) should be exercised to authorise further proceedings.
- [43]An order of the court under subsection (5)(c) may be made on conditions. The applicant has undertaken, by his solicitor to cooperate with the insurer under Part 4 Division 4 of the Act and ‘is pleased’ to have an order made that the proceedings be stayed until compliance with Part 4 Division 5A of the Act. On the further hearing of the application I was informed that the parties had reached agreement on the orders (save with respect to costs) which should be made in the event the discretion was exercised in favour of the applicant and I am prepared to make orders in those terms.
- [44]Each party applied for costs, the respondent seeking them on an indemnity basis. The applicant was successful and the respondent’s contention as to s 39(5)(c)(ii) failed. On the other hand, the applicant was seeking an indulgence. The application was one which was required to be made because of the applicant’s non-compliance with the statutory requirements. In the circumstances I will order the applicant to pay the respondent’s costs, but not on an indemnity basis.
- [45]IT IS ORDERED THAT:
- The applicant be authorised to proceed further with his claim pursuant to s 39(5)(c)(ii) of the Motor Accident Insurance Act 1994.
- The compulsory conference be dispensed with pursuant to s 51A(5) of the Motor Accident Insurance Act 1994.
- The requirement that the parties exchange mandatory final offers be dispensed with pursuant to s 51C(11) of the Motor Accident Insurance Act 1994.
- The applicant’s action be commenced no later than 26 March 2004.
- The proceeding referred to in para 4 be stayed pending:
- (a)the participation of the parties in a conference as if it were a conference pursuant to s 51A of the Act;
- (b)the exchange of offers “without prejudice save as to costs” by the parties at the conclusion of the conference referred to in sub-para (a) herein.
- The conference referred to in para 5(a) be held within 28 days of the date upon which the respondent or its solicitors advise the applicant’s solicitors that they do not require any independent medical examination of the applicant or that they do not require to further investigate any matter arising out of any medical examination.
- The parties be at liberty to apply.
- The applicant pay the respondent’s costs of and incidental to this application.
Footnotes
[1] See Perdis v Nominal Defendant [2003] QCA 555 per Williams JA and Mackenzie J.
[2] See Perdis v Nominal Defendant (2003) QCA 555.
[3] Per Davies JA at paras. 16, 17.
[4] See Perdis v Nominal Defendant [2003] QDC 154 at paras 32-35.
[5] See Thomas v Transpacific Industries Pty Ltd (supra) per McMurdo P at para 3.
[6] See para. 11 of Reasons.
[7] See Reasons, para. 10.
[8] Per McMurdo P at para 9.