Antonio Trimboli v Mark Thomas - [2002] ACTSC 110

ANTONIO TRIMBOLI v MARK THOMAS [2002] ACTSC 110 (6 November 2002)

CATCHWORDS

PRACTICE AND PROCEDURE - claim for damages for injuries sustained in a motor vehicle accident in NSW – accident not reported to police because caused by faulty operation of gate at rear of parked truck rather than collision between vehicles – whether full and satisfactory explanation for non compliance with requirement to report – notice not provided to insurer on approved form - course of dealings between plaintiff and defendant’s insurer extending to payments for medical treatment, admission of liability, offer of settlement, invitation to commence proceedings and provision of cheque for payment of filing fee to have damages assessed – whether agreement not to rely on non-compliance with statutory requirement or defendant estopped from doing so – whether proceedings maintainable - leave to commence proceedings outside limitation period sought only after institution of proceedings – relevant principles.

Motor Accidents Act 1988 (NSW), ss 43, 44, 52(4), 79, 79A
Motor Accident Insurance Act 1994 (Qld)

Hill v Bolt (1992) 28 NSWLR 329
Newton, Bellamy and Wolfe v State Government Insurance Office (Qld) [1986] 1 Qd R 431
Hewson v Burke (2000) 32 MVR 392
Lindsay v Smith (2001) 34 MVR 435
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

No SC 395 of 2002

Judge: Crispin ACJ
Supreme Court of the ACT
Date: 6 November 2002

IN THE SUPREME COURT OF THE     )
  )          No. SC 395 of 2002
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:ANTONIO TRIMBOLI
Plaintiff

AND:MARK THOMAS
Defendant

ORDER

Judge:  Crispin ACJ
Date:  6 November 2002
Place:  Canberra

THE COURT ORDERS THAT:

the plaintiff be granted leave for the institution of the proceedings by the filing of the Originating Application and Statement of Claim on 2 July, 2002; and

the oral application by the defendant for an order striking out the proceedings be dismissed.

The plaintiff suffered serious injuries as a result of an accident on 29 August 1997 when a metal door attached to the tray of a truck from which he had recently alighted suddenly swung open and struck him in the head and upper body. The defendant’s insurer, NRMA Insurance Ltd, (“the insurer”) subsequently accepted that the accident had occurred as a result of a breach of a duty of care which the defendant had owed to the plaintiff and entered into negotiations to settle his claim. When those negotiations proved unsuccessful the insurer wrote to the plaintiff’s solicitors inviting the plaintiff to commence proceedings immediately “so that we can arrange to have the Court assess damages”. In response to this invitation the plaintiff’s solicitors indicated that the plaintiff was unable to afford the necessary filing fee and the insurer provided a cheque payable to the ACT Supreme Court for payment of this fee. Yet when he commenced the proceedings, the defendant asserted that he was not entitled to do so.

This assertion was based upon contentions that the proceedings were not maintainable because the plaintiff had failed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Antonio Trimboli v Mark Thomas

Details

AGLC: Antonio Trimboli v Mark Thomas [2002] ACTSC 110
Case: [2002] ACTSC 110
Decision Date: 6 November 2002

CaseChat Overview and Summary

Antonio Trimboli brought a claim against Mark Thomas for damages arising from injuries sustained in a motor vehicle accident in New South Wales. The central dispute in the case was the failure to report the accident to the police, as it was caused by the faulty operation of a gate at the rear of a parked truck rather than a collision between vehicles. The court had to determine whether this constituted a full and satisfactory explanation for non-compliance with the statutory requirement to report the accident. Additionally, the notice to the insurer was not provided on an approved form, raising further issues about procedural compliance.

The legal issues at hand involved the interpretation of statutory requirements concerning accident reporting and the consequences of non-compliance. The court needed to consider whether the course of dealings between the plaintiff and the defendant’s insurer, which included payments for medical treatment, admission of liability, offer of settlement, invitation to commence proceedings, and provision of a cheque for the filing fee, could be interpreted as an agreement not to rely on the non-compliance with the statutory requirement. The court also had to decide if the defendant was estopped from raising the issue of non-compliance due to the established course of dealings. Another layer of complexity was added by the timing of the application for leave to commence proceedings outside the limitation period, which was sought only after the proceedings had already been instituted.

The court found that the circumstances surrounding the accident and the subsequent course of dealings between the parties were sufficient to constitute a full and satisfactory explanation for the non-compliance with the statutory reporting requirement. The court also held that the established course of dealings, including the insurer’s actions, effectively amounted to an agreement not to rely on the non-compliance and estoppel principles applied to prevent the defendant from asserting the defence based on the procedural lapses. Consequently, the plaintiff was granted leave to institute the proceedings, and the court allowed the proceedings to continue despite the initial non-compliance with the statutory requirements.

Orders

Orders of the court

the plaintiff be granted leave for the institution of the proceedings by the filing of the Originating Application and Statement of Claim on 2 July, 2002; and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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