A M Haydon v M B Gread

[2000] QSC 334

SUPREME COURT OF QUEENSLAND

CITATION:

A M Haydon v M B Gread [2000] QSC 334

PARTIES:

ANNE MARIE HAYDON
(applicant)
v
MICHAEL BRIAN GREAD
(respondent)

FILE NO:

9591 of 1998

DIVISION:

Trial Division (Brisbane Registry)

DELIVERED ON:

29 September 2000

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2000

JUDGE:

Mackenzie J

ORDER:

1.  That leave to join Traffic Accident Commission (Victoria) is granted.
2.  That the writ is renewed for such periods as are necessary to enable it to remain in force for one year from the date of this order.
3.  That the plaintiff serve an amended writ upon Traffic Accident Commission (Victoria) forthwith,
4.  That the plaintiff deliver to Traffic Accident Commission (Victoria) information appropriate to a dependency claim by completing fully a Motor Accident Fatal Injury Notice of Claim within one month of the date of this order.
5.  That the plaintiff pay the costs of Traffic Accident Commission (Victoria) of and incidental to the application to be assessed, payment of such costs to be postponed until completion of the action.

CATCHWORDS:

INSURANCE – MOTOR VEHICLE – LIABILITY – DEPENDANCY CLAIM – approved form – fatal injury claim “purportedly given” – deficiency in detail – need for notice of defects - limitation period – joining insurer after period expires.

Limitation of Actions Act 1974, s 11
Motor Accident Insurance Act 1994, s 4, s 34, s 37(1),(2); s 39(1),(3), (5)(a), (b), (c); s 52(1)

Brannigan v Nominal Defendant (1999) QCA 347
Bryant v Queensland Rail (2000) QSC O81)
De Innocentis v Brisbane City Council (1999) QCA 404
Johnstone v Brisbane City Council (2000) QSC 078
QBE v Nominal Defendant (1999) QCA 493
Kammerman v South Australian Planning Commission (1986) 61 LGRA 99
Young v Keong (1999) 2 QdR 335

COUNSEL:

A J Williams for the applicant
P Ambrose for the respondent

Phillips & Lowes for the applicant
Quinlan, Miller & Treston for the respondent

1. MACKENZIE J:  The plaintiff is the widow of a man who died in a collision with a semi-trailer driven by the defendant on 18 October 1995.  She has brought dependency proceedings.  The writ filed on 15 October 1998, three days before expiry of the limitation period, names the driver of the vehicle as defendant but does not comply with the Motor Accident Insurance Act 1994 because it does not join the insurer as required by s 52(1) of the Act.

1. The present application seeks leave to join the insurer Traffic Accident Commission (Victoria), as defendant.  There was also an oral application for an order, if necessary, to renew the writ. 

1. Notice under s 34 of the Motor Accident Insurance Act 1994 was given on or about 13 December 1995. On 17 June 1996, within the nine month period prescribed by s 37(2) of the Act, a document purporting to be notice of claim under s 37(1) was given to the Traffic Accident Commission.

1. After correspondence between the plaintiff’s solicitors as to whether Quinlan, Miller & Treston were acting for the Commission, Miss Miller of that firm rang Mr Lowes of Phillips & Lowes on 22 July 1996 to enquire whether there was a claim for nervous shock.  She was told that there was only a claim for loss of dependency.  Her diary notes indicate that she advised Mr Lowes that in the circumstances the wrong claim form had been used.  He indicated that he had used a claim form derived from the Queensland Law Society database.  She also advised him that she did not think there would be a problem but that she would send him a fatal injury notice of claim form to be completed.  He advised that he was currently having an accountant look at the claim.

1. Miss Miller said that when she said that she did not think there would be a problem she meant that she did not think the Commission would take any point that the delivery of the proper notice under s 37 would by that time be outside the nine month period prescribed.  I accept that that was what she had in mind. 

1. Mr Lowes said that he interpreted what she had said as meaning that no point would be made about the form being the wrong one.  Nevertheless, Miss Miller sent the approved form for a fatal injury claim to Mr Lowes within a short time and subsequently reminded him on a number of occasions that it had not been returned.  A date nominated for a conference to discuss settlement (9 November 1998) was cancelled, specifically because the claim form, a statement of loss and damage and supplementary documentation had not been supplied. 

1. The evidence before me shows that the form originally filled in was appropriate for a claim for personal injuries to a plaintiff, but largely lacked the kind of information appropriate to a dependency claim.  The form relating to a fatal injury claim is clearly appropriate to a dependency claim.  The difference between the form filled in and the form sent by Miss Miller for completion must have been obvious.  The reason for cancellation of the proposed settlement conference, if nothing else, should have highlighted this. 

1. The writ was never served on the driver of the semi-trailer.  On the day the writ was filed a copy was delivered to Quinlan, Miller & Treston.  This was relied on as service of the writ upon the Commission by the plaintiff in submissions before me.  However, there is nothing to suggest that formal service was effected. 

1. One of the requirements of s 37 is that the notice include, amongst other things, a sworn statement of information required by regulation.  Regulation 10(1) sets out in detail information to be provided.  It also provides that the information must be provided in a form approved by the Commission. 

1. There must be, firstly, particulars of the claimant.  "Claimant" means a person by whom or on whose behalf a claim is made (s 4).  Much of the other information is concerned with details of the relevant motor vehicle accident and of treatment administered after it.  The latter is more relevant to a case where a person physically injured is the claimant than to a dependency claim.  If loss of income is relevant particulars of the claimant's income must be provided.  The regulation also requires supply of information concerning the claimant's personal injuries, illnesses and disabilities that may affect damages in some way. 

1. It follows from the definition of "claimant" that personal details of each claimant and of any illnesses, injuries or disabilities which might affect damages should be provided.  The form filled in is deficient in those respects.  A comparison of the pink motor accident personal injuries notice of claim and the grey green motor accident fatal injury notice of claim (both of which state on their face that they are approved by the Commission) shows that they reflect the different considerations applicable to personal injuries and dependency claims. 

1. Reading the form delivered to the Transport Accident Commission on its own, it could be ascertained that the claim was for the death of the plaintiff's husband, but it revealed nothing about the children.  The fact that there were two children, but no more than that fact, could be ascertained from the writ.  Nothing could be ascertained from the form delivered about the state of health or previous illnesses, injuries or disabilities of the plaintiff or her children.  The Commission would therefore not be in any position to make an assessment of the effect of any such factors upon damages.

1. Regulation 10(2) requires that the notice must contain an offer of settlement or a statement of the reasons why an offer of settlement cannot yet be made.  There is no offer to settle and no explanation was given.  It is however, apparent from other statements in the form actually submitted that work was still progressing on the degree of financial loss.  Had that been specifically advanced as the reason for an offer of settlement not being made, it would in the circumstances of the case have been an acceptable explanation for failure to make such an offer.

1. The two approved forms clearly differentiate between the factors relevant to a personal injury claim in the ordinary sense and a dependency claim.  However generous an interpretation is placed on the document sent with a view to satisfying the requirement to deliver a written notice of claim under s 37 it contains serious deficiencies in detail.

1. It is also difficult to understand why nothing was done to remedy the situation even if there had been an initial misunderstanding as to the effect of what Miss Miller had said.  The facts are clearly open to that interpretation.  However, any such misapprehension should not have lingered since, almost immediately, the deficiency of the notice was brought to the attention of the plaintiff’s legal representatives and a copy of the correct form was provided for completion.  There were persistent reminders that it had not been returned and the failure to provide it was expressly one of the reasons given to cancelling a proposed settlement conference.  No inquiry was made of Quinlan, Miller & Treston as to why completion of the form was now being insisted on and nothing was advanced to them as to why it was unnecessary to complete .the form or as to why there were difficulties in doing so in a timely way.  There was a faint suggestion in oral evidence that the plaintiff had been under medical treatment, but that evidence did not descend into particular detail concerning it.

1. However, unsatisfactory as the position may be, s 39 of the Motor Accident Insurance Act prescribes a procedure where a notice of claim is given under Division 3 of Part 4 the Act (which includes s 37) or is “purportedly given under” Division 3 and an issue as to compliance arises.  The procedure is in my view intended to ensure that any arguments about the sufficiency of a document given with the intention of initiating the claims procedure are resolved at an early stage.

1. Reference to a notice of claim “purportedly given” includes one which was, at the time it was given, intended or meant to be a notice of claim even though it did not comply in all respects with the requirements (cf Kammerman v South Australian Planning Commission (1986) 61 LGRA 99). “Purportedly” ordinarily means that what is done is meant to be or implied as that which was required to be done. Often it carries with it some implication that the truth or validity of the claim implicit in the act done is not necessarily objectively established, or conceded by the party in respect of whom the act is done.

1. Cases where a notice of claim is deficient because it fails to comply with the requirements of the Act but purports to be such a notice are to be distinguished from cases where no document purporting to be a notice of claim has been given at all.

1. The procedure in s 39 is that within one month after receipt of the notice of claim, the insurer must give the claimant written notice to one of the following effects:

(i)         that it is satisfied that the notice has been given as required;

(ii)       that it is not satisfied that notice has been given as required, that the defects are as identified in the notice, but that it nevertheless waives compliance; or

(iii)      that it is not satisfied that notice has been given as required, that the defects are as identified in the notice and that it does not waive compliance, and that the claimant is allowed at least one month to satisfy the insurer that he or she has complied with the requirements, or to take reasonable action specified in the notice to remedy the non-compliance.

1. In the last mentioned case the insurer is required to give the claimant written notice, within one month after the time allowed has expired, whether:

(i)         the insurer is satisfied that the claimant has complied with the requirements, has remedied the defects, or that the insurer waives non-compliance in any event; or

(ii)       that it is not satisfied the claimant has taken reasonable action to remedy non-compliance and giving full particulars of non compliance and the failure to remedy it.

1. Section 39(3) provides that if a notice of claim is given under Division 3 or purportedly given under it and “the insurer does not respond to the notice within one month after receiving it” the insurer is conclusively presumed to be satisfied that notice has been given as required under Division 3. Whilst s 39(3) does not reproduce the words of s 39(1) the words “does not respond” can only sensibly refer to invoking the procedure under s 39(1). Where that has not been done there is a statutory estoppel against denying that the notice has been given as required.

1. If that seems to encourage formality and discourage informal resolution of issues concerning compliance, it is at least consistent with the emphasis in the Act upon the need to follow the prescribed steps in a timely way to facilitate prompt resolution of claims.  The particular procedure seems to be designed to promote speedy resolutions of arguments about compliance with the requirements of the Act and Regulations in a notice given or purportedly given under s 37.

1. By using both expressions and providing the procedure in s 39, the scope for argument outside the confines of s 39 whether a notice which falls short of such requirements but nonetheless purports to be given under s 37 falls short of being a notice at all is, in my view, limited. For that reason authorities in which the effect of not giving any notice of claim at all under s 37 is discussed are of limited assistance (e.g. Young v Keong (1999) 2 QdR 335; Brannigan v Nominal Defendant (1999) QCA 347; QBE v Nominal Defendant (1999) QCA 493; Johnstone v Brisbane City Council (2000) QSC 078; Bryant v Queensland Rail (2000) QSC O81).

1. The correspondence in evidence establishes that at the time of submitting the document which forms exhibit GHL2 the solicitor for the applicant believed that he was giving a notice of claim under s 37. Therefore the claim was given purportedly under Division 3. The correspondence cannot be construed as invoking the procedure in s 39. In particular no time limit was set for remedying non- compliance. No doubt this was because the view was taken that the form submitted was not a claim given under s 37 because it was on the wrong form and therefore lacked much of the information appropriate to a dependency claim. The consequence of this is that s 39(3) operates to give the document in exhibit GHL2 the status of a notice of claim notwithstanding the unsatisfactory course of events prescribed in paragraphs [3] to [15] above.

1. Section 39(5) limits the bringing of actions for damages to three situations. Because the insurer is presumed to be satisfied that notice had been given as required under Division 3, the present case falls within s 39(5)(a). There is no need to have recourse to either of the other two possibilities. Section 39(5)(b) concerns a case where the insurer has responded to a claim, the claimant is dissatisfied with the response and the court has resolved the dispute in favour of the claimant. Section 39(5)(c) concerns the case where the claimant is given leave to bring proceedings despite non-compliance with the requirements of Division 3.

1. De Innocentis v Brisbane City Council (1999) QCA 404 establishes that there is no basis in the Motor Accident Insurance Act for a conclusion that the 3 year time limit applicable to actions for negligence applies to actions against insurers and that s 11 of the Limitation of Actions Act 1974 does not apply to the statutory obligation in the Motor Accidents Insurance Act to include the insurer as defendant in an action under the Act.  Further, it is stated that the discretion to allow an amendment by joining an insurer should be exercised by reference to the principles applicable where it is sought to add a defendant to an action without the complication of the expiration of a limitation period.  The judgment also suggests that there does not appear to be any reason why the insurer must be a party from the inception of the action or why it must be a party before the limitation period applicable to insured persons expires.

1. It also states that where the proceedings have been commenced in time against the insured person and the insurer has received the notices required by s 34 and s 37 it is hard to see why an order joining the insurer should not be made as a matter of routine. There being no limitation period applicable with respect to the action against the insurer, the only relevant inquiry will be whether it has been given due notice of the proposed claim or, if it has not, whether the joinder should be made despite the lack of notice.

1. This is a case where the insurer has been aware of the claim from the earliest stages.  There is no compelling evidence of particular prejudice if the insurer is joined.

1. In the circumstances I am satisfied that leave to join the insurer Traffic Accident Commission (Victoria) as a defendant should be granted.  If it be necessary to do so the writ should be renewed.  In consequence of the order concerning joinder there is good reason to do so.

1. However, the plaintiff has prosecuted the action in a desultory fashion notwithstanding the legislative intent that matters of this kind should proceed expeditiously.  To ensure that the dilatoriness with which the action has proceeded is overcome, the information which should have been provided at the time of the delivery of exhibit GHL2 should now be given promptly.  There will be a directions order that the applicant deliver that information by completing fully the Motor Accident Fatal Injury Notice of Claim within one month of the date of this order.

1. With respect to costs, the application has been necessary because of the failure on the plaintiff’s side to attend to the requirements of the Motor Accident Insurance Act and to take steps to remedy obvious deficiencies when they were pointed out.  In the circumstances the applicant should pay the respondent’s costs of and incidental to the application to be assessed.  I will however postpone recovery of such costs until the action is completed. 

1. The orders are as follows:

1.          That leave to join Traffic Accident Commission (Victoria) is granted.

2.          That the writ is renewed for such periods as are necessary to enable it to remain in force for one year from the date of this order.

3.          That the plaintiff serve an amended writ upon Traffic Accident Commission (Victoria) forthwith.

4.          That the plaintiff deliver to Traffic Accident Commission (Victoria) information appropriate to a dependency  claim by completing fully a Motor Accident Fatal Injury Notice of Claim within one month of the date of this order.

5.          That the plaintiff pay the costs of Traffic Accident Commission (Victoria) of and incidental to the application to be assessed, payment of such costs to be postponed until completion of the action.