IN THE MAGISTRATES COURT

)

No. AP 41/2011

AT CANBERRA IN THE

)

 

AUSTRALIAN CAPITAL TERRITORY

)

 

 

 

 

BETWEEN:

 

Matthew James GRAY

 

 

Plaintiff

AND:

 

Ronald Howard SINCLAIR

 

 

Defendant

 

 

ORDER

 

 

 

Coram:           Magistrate Campbell

 

Date:               11 October 2011

                                               

 

THE COURT ORDERS THAT:   

 

1.      The plaintiff be authorised to proceed with the motor accident claim under the Road Transport (Third-Party Insurance) Act 2008 despite non-compliance with the provisions of s 84.

2.      The plaintiff pay the defendant’s cost of the application.

 

REASONS FOR JUDGMENT

1.                  The plaintiff seeks an order that he be “granted leave” to proceed with a claim under the Road Transport (Third-Party Insurance) Act 2008 (‘the Act’) notwithstanding his failure to serve a complying notice of claim under s 84 of the Act.

 

The Statutory Scheme

 

2.                  Chapter 4 of the Act (in which s 84 is located) outlines the procedures, and defines a number of key terms, relating to making a motor accident claim in the Australian Capital Territory (the terms of s 84 and other relevant sections are contained in the schedule to this judgment).

3.                  The first step in that process is for the claimant (the plaintiff) to give the respondent (the defendant)[1] a written notice of claim. The notice of claim must contain certain information, be accompanied by relevant documentation, and be given within prescribed time periods set out in s 85. That section, in summary, provides that the notice of the claim must be given within nine months of the accident or the first appearance of symptoms of injury; or within one month of the claimant first instructing a lawyer about the matter, or of identification of the respondent.

4.                   If notice is not given within time, the claimant must give a reasonable excuse for the delay (s 85(3)). There is no statutory guidance as to what might constitute a reasonable excuse other than an indication in s 85(4) that this includes an excuse prescribed by regulation as reasonable. There are no excuses prescribed by regulation for the purposes of s 85(4).

5.                  Section 84 provides that the claimant must give the respondent written notice of the claim before the claimant ‘brings a court proceeding based on the claim.’ Section 96 reinforces this by stating relevantly:

(1) This section applies if the claimant for a motor accident claim—

(a) does not give the respondent for the motor accident claim a complying notice of claim...

            (2) The claimant cannot proceed with the motor accident claim.

However, the situation can be remedied if, on application by the claimant, the Court authorises the claimant to proceed despite the non-compliance.

 

The background

6.                  The plaintiff claims to have been injured as a result of being struck by an ACT registered motor vehicle while he was working as a signal operator at a construction site on 8 January 2010 (the incident). Within two weeks of the incident, on 21 January 2010, he consulted with the firm of Maurice Blackburn Lawyers (the solicitors).  The plaintiff completed a Motor Accident Notification Form (MANF) (s 69) on 21 January 2010. On 18 February 2010, a Motor Accident Medical Report Form (MAMRF) (s 70) was signed by the plaintiff’s treating general practitioner, Dr Paek. Both documents were sent to NRMA Insurance Ltd (NRMA) (the insurer) by the solicitors under cover of a letter dated 30 March 2010. Neither of these documents is a notice of claim for the purposes of s 84, but they are used, inter alia, when a claimant is seeking early payment of medical expenses.

7.                  On 12 April 2010, there was a telephone conversation between the solicitors and a Ms Blanksby on behalf of the NRMA. On the same date, Ms Blanksby wrote to the solicitors, confirming that NRMA was the ‘correct respondent’ for the purposes of the procedures contained in the Act. She also returned the MANF pointing out that it did not contain all necessary information. Ms Blanksby also reminded the solicitors that:

If your client wishes to pursue their claim, they must complete a Notice of Claim and Additional Information Form (NOCAIF). This form needs to be submitted to the respondent within 1 month of the claimant instructing a lawyer to make a claim or 1 month from identifying the respondent whichever is the later.

8.                  On 22 April 2010, a Notice of Claim and Additional Information Form (NOCAIF) was signed by the plaintiff. It was not sent to the NRMA until 8 June 2011, some 17 months after the incident, and long after the plaintiff had originally instructed the solicitors in relation to making a claim on his behalf. A record of events and contact between the parties between 22 April 2010 and 8 June 2011 is set out in the affidavit of Wilhelmina Corby affirmed on 9 September 2011. I shall not repeat them here.

9.                  What is clear is that the plaintiff failed to give the defendant written notice of his claim in accordance with the statutory provisions

10.              The defendant maintains that no reasonable excuse for the delay was provided by the plaintiff. It is difficult to argue against this. There is an explanation, which has been somewhat euphemistically described as ‘solicitor oversight.’ This was not, in the NRMA’s view, a reasonable excuse for the delay. Accordingly, the insurer, as is its entitlement under the Act, has not waived the plaintiff’s non-compliance with the requirements of s 85.

11.              In response, an application has been brought by the plaintiff seeking the following order: ‘That the plaintiff be granted leave to proceed with a claim under the Road Transport (Third-Party Insurance) Act 2008 (the Act), pursuant to s 95(2)(c) of the Act, notwithstanding the plaintiff’s non-compliance with s 85 of the Act.’ The indulgence sought by the plaintiff is more correctly described as ‘authority for the plaintiff to proceed further’ with a claim despite his failure to give notice of the claim in accordance with the provisions of the Act.

12.              A court may authorise the plaintiff to proceed under s 95(2)(c)(ii) only if it is in the ‘interests of justice’ for the matter to proceed further (s 95(3)).

The interests of justice

13.              The exercise of the discretion conferred by s 95 is not conditional upon my determining that the plaintiff did have a reasonable excuse for the delay in service of his notice of claim, although clearly it would be relevant to the outcome of the plaintiff’s application were I to regard his “excuse” to be reasonable. I do not.

14.              The defendant relies specifically on three points to support his submission that it is not in the interests of justice for the matter to proceed. Not surprisingly, they are all based on claims of prejudice to the defendant. They are:

·         The loss of opportunity to have the plaintiff medically examined at a time approximate to the accident.

·         The loss of opportunity to identify witnesses to the accident (he points out that the plaintiff is recorded as having given several inconsistent versions of how the incident occurred, and has been unable to provide the names of any witnesses to the incident, although he is recorded as saying there were some).

·         Delay of itself may be a ground to find presumed prejudice: see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

15.              The loss of an opportunity to have the plaintiff medically examined at an early time and the loss of opportunity to identify witnesses to an incident are not particularly unusual circumstances faced by a defendant or their insurer in personal injury claims, but in an appropriate case each factor individually or in combination could result in a defendant being placed in a position of irremediable prejudice.

16.              This is not a case, however, where there is no medical evidence obtained by an insurer with an interest in exploring whether the plaintiff was credible in his claims of injury. Both the plaintiff’s general practitioner and medical practitioners on behalf of the workers’ compensation insurer (CGU) have had the opportunity to examine him and to record their observations and the objective findings of various tests (for example, an MRI of his lumbar spine was taken on 9 February 2010) within a reasonably short time after the accident. Some of these reports are not favourable to the plaintiff. In this regard I note, for example, that CGU rejected the plaintiff’s claim for workers’ compensation after receiving a report prepared by Dr John Silver following his consultation with the plaintiff on 14 July 2010.

17.              As for the loss of opportunity to identify witnesses to the accident, the unchallenged evidence in paragraph 7 of Ms Corby’s affidavit was:

Email correspondence subsequent to 28 January 2010 between John Giri, an investigator on behalf of CGU, the workers’ compensation insurer for our client, and Fred Lester confirms that the workers’ compensation insurer undertook investigations in relation to the circumstances of the incident and had contact with our client at that time.

Even if the plaintiff is unable to provide the names of witnesses, it is not clear from the evidence before me that CGU has been unable to identify any, or indeed, that their absence will be more prejudicial to the defendant’s interests rather than the plaintiff’s.

18.              Further, the defendant has been aware of the incident and the plaintiff’s allegations since early April 2010. As Mr Shillington pointed out, there is no evidence to suggest that the insurer was unable to communicate with its insured (the defendant), or to obtain full instructions from him as to his version of the circumstances of the incident. Such enquiries would significantly ameliorate any prejudice occasioned by the delay in complying with the notice requirements.

19.              The interests of justice is a broad concept and is not limited solely to consideration of prejudice to a defendant (see the useful discussion of Master Harper in Al-Rawahi v Niazi [2006] ACTSC 84 at paras 38-39). There are also considerations relating to the plaintiff which are to be taken into account in determining whether to grant the application.

20.              For example, it is clear that the delay was not occasioned by any act or neglect of the plaintiff personally, but rather was brought about by the ‘oversight’ of experienced and reputable legal practitioners engaged by him to act on his behalf.

21.              Further, an amount in the vicinity of $50,000 to $60,000 has already been paid to the plaintiff as workers’ compensation payments. This lends support to his claim of having been genuinely injured in the incident and it is appropriate that he be allowed to pursue his claim and to have it “decided by a competent, independent and impartial court ......after a fair and public hearing.” (s21 Human Rights Act 2004 (ACT)).

22.              I am of the view that it is in the interests of justice that the application be granted.

Costs

23.              Although the plaintiff’s application has succeeded it was only required because of his non-compliance with the requirements of s 84. It is appropriate therefore that the statutory consequence provided for in s 99 is activated.

24.              Accordingly, I order that the plaintiff pay the defendant’s costs of the application.

25.              The parties have agreed that recovery of these costs can be delayed until the plaintiff’s claim is resolved. I am not sure why this is necessary as I assume the costs to be paid in relation to this application will be paid by the lawyers or their insurance company and not the plaintiff himself.  Further, there are no court proceedings currently on foot between the parties and it is possible there never will be. Therefore such an order might mean that there will never come a time for payment of the costs of this application.

26.              I therefore propose to order that enforcement of this order be stayed until further order of the court – unless the parties wish to be heard as to a more appropriate order.

 

 

I certify that the preceding 26 paragraphs are a true copy of the reasons for decision of Magistrate Campbell

 

 

 

 

K Bills

Associate

Schedule of relevant sections

Section 84: Notice of claim

(1) Before a claimant for a motor accident claim brings a court proceeding based on the claim against a respondent for the claim, the claimant must give the respondent written notice of the claim (the notice of claim).

Note 1                A proceeding must be brought before the end of the relevant limitation period under the Limitation Act 1985.

Note 2                If a form is approved under s 276 for a notice of claim, the form must be used.

(2) The notice of claim must—

(a) contain a statement of the information prescribed by regulation; and

(b) authorise each respondent for the motor accident claim to have access to the records and sources of information relevant to the claim that are prescribed by regulation; and

(c) be accompanied by any documents prescribed by regulation; and

(d) if the claimant has not given the respondent a motor accident notification form and a motor accident medical report for the motor accident for the motor accident claim—be accompanied by a motor accident notification form and a motor accident medical report for the motor accident for the motor accident claim.

Note                If the claimant has received early payment of treatment expenses under pt 3.2 the claimant will have already given the respondent the motor accident notification form and a motor accident medical report for the motor accident (see s 72).

 

Section 85: Time for giving notice of claim—CTP insurer

(1) This section applies if the insurer for a motor accident claim is the CTP insurer for the motor vehicle for the claim.

(2) The notice of claim must be given under section 84 not later than the earlier of the following days:

(a) the day that is 9 months after—

 (i) the day the motor accident for the motor accident claim happened; or

 (ii) if symptoms of the personal injury caused by the motor accident are not immediately apparent—the day symptoms of the personal injury first appear;

(b) the day that is 1 month after the later of the following days:

 (i) the day the claimant first instructs a lawyer to provide advice about seeking damages for the personal injury;

 (ii) the day the respondent is identified.

Note                 However, the time for giving a notice of claim for a claimant with a legal disability begins on the day after the day the claimant's legal disability ends (see s 98).

 (3) If the claimant does not give the notice of claim as required in subsection (2), a reasonable excuse for the delay must be given in the notice or by separate written notice to the respondent.

 (4) Without limiting subsection (3), an excuse is reasonable if the excuse is prescribed by regulation.

Note                 For waiver of compliance see s 95.


Section 95: Noncomplying notice of claim may be complying notice of claim

(1) This section applies if the claimant for a motor accident claim gives a respondent for the claim a notice of claim that is not a complying notice of claim.

Note                 Complying notice of claim is defined in s 76.

(2) The claimant is taken to have given the respondent a complying notice of claim if—

(a) the respondent has told the claimant, in writing—

(i) under section 90 (2) (a) or section 90 (4) (a) (Response to notice of claim), that the respondent is satisfied that the notice of claim is a complying notice of claim; or

(ii) under section 90 (2) (b) or section 90 (4) (a) that the respondent waives any noncompliance; or

(iii) under section 90 (4) (a), that the respondent is satisfied with the action the claimant has taken to remedy the noncompliance; or

(b) the respondent has not responded to the claimant as required and is conclusively presumed, under section 90 (3), to be satisfied the notice is a complying notice of claim; or

(c) the court, by order, on application by the claimant—

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

(ii) authorises the claimant to proceed further with the motor accident claim despite the noncompliance.

(3) However, if the noncompliance is failure to give the notice of claim in accordance with section 85 (Time for giving notice of claim—CTP insurer) or section 86 (Time for giving notice of claim—nominal defendant), the court may authorise the claimant to proceed under subsection (2) (c) (ii) only if it is in the interests of justice for the matter to proceed further.

(4) An order of the court under subsection (2) (c) may be made on the conditions that the court considers necessary or appropriate to minimise prejudice to a respondent because of the claimant's noncompliance.

(5) The claimant is taken to have given, and the respondent is taken to have received, the complying notice of claim, on the day—

(a) for subsection (2) (a)—the respondent tells the claimant, in writing; or

(b) for subsection (2) (b)—that is the required day under section 90 for the presumption; or

(c) for subsection (2) (c)—the court makes the declaration or gives the authorisation.

 

 

Section 99: Costs awarded if noncompliance with pt 4.2—claimant

If a claimant does not comply with the requirements of this part, a court in which the claimant begins a proceeding based on the motor accident claim—

(a) may, on a respondent's application in the proceeding, award in the respondent's favour costs (including legal and investigation costs) reasonably incurred by the respondent because of the claimant's noncompliance; and

(b) may only award interest in the claimant's favour for a period for which the claimant was in noncompliance if the court is satisfied there is a reasonable excuse for the noncompliance.

 

 

_____________________________


[1] I have used the terms ‘plaintiff’ and ‘defendant’ as these are the terms used by the parties, and are appropriate terms in any litigation which may eventuate between them, whereas the Act refers to ‘claimant’ and ‘respondent.’ The latter term includes the insurer of a motor vehicle which is the subject of a motor accident claim (ss 79 and 81). I have not drawn any distinction between the defendant and his insurer for the purposes of this decision. I have also assumed prejudice to one is prejudice to the other.