Antonio Trimboli v Mark Thomas
[2002] ACTSC 110
•6 November 2002
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 to comply with requirements of the Motor Accidents Act 1988 (NSW) (the Act). The present proceedings formally came before me pursuant to a notice of motion filed by the plaintiff seeking leave, albeit retrospectively, for the institution of the proceedings notwithstanding that the limitation period imposed by s 52(4) of the Act had expired. However, during the course of the hearing further issues were raised as to the plaintiff’s failure to give notice of the accident in the approved form and it was agreed that the submissions made by Mr Pilkinton who appeared for the defendant should be treated as an oral application to have the proceedings struck out.
There had apparently been some initial confusion as to the precise location of the area in which the accident occurred and the plaintiff’s solicitors first informed the insurer that the accident occurred in Macquarie in the Australian Capital Territory. As they later conceded, this was plainly incorrect. It is now common ground that the accident had in fact occurred on a farming property on Woronpon Road near Hall in the State of New South Wales and that the Act applies to the plaintiff’s claim. The Act imposes strict procedural requirements and time limitations.
First, subsection 42(1) requires an injured person to report the accident to the police within 28 days and subsection (4) of that section provides that if proceedings are commenced in relation to an accident which has not been so reported the plaintiff must provide a full and satisfactory explanation for his or her non-compliance with this requirement. In the present case, the plaintiff deposed to the fact that he had not reported the accident to the police because he had not believed it to be necessary, given that it had not involved a “car accident”. Mr Mildren, who appeared for the plaintiff, submitted that this was an entirely adequate explanation. The accident had not involved a collision between moving vehicles or of a vehicle with an object but simply the sudden release of a door at the back of the tray attached to a stationary truck. Hence, it did not involve any potential breach of the motor traffic laws and was not the kind of accident that the police could have been expected to investigate. Indeed, it is not suggested that it even occurred on a public street. I accept this submission. The plaintiff was, in my opinion, entitled to take the view that if the accident called for any investigation it would be one conducted by authorities concerned with workplace safety rather than those charged with upholding the criminal law and traffic regulations. Mr Pilkinton did not address this issue in his submissions and I am satisfied that the circumstances of the accident do provide a full and satisfactory explanation for the plaintiff’s failure to report the matter to the police.
Second, the Act requires that a claim be made by the provision of due notice within six months of the accident. Mr Pilkinton argued that the provisions of s 43 effectively prevented the maintenance of the present proceedings. That section is in the following terms:
“1.The object of this section is to promote the early making of claims to enable the insurer:
(a) to commence investigations while evidence relating to a claim is available, and
(b) to identify injuries and facilitate the access of claimants to appropriate injury management and rehabilitation services and thus to expedite the claimant’s recovery, and
(c) to allow the insurer to more accurately predict claim frequency and hence formulate premiums.
2.A claim must be made within 6 months after the relevant date for the claim. The relevant date is the date of the motor accident to which the claim relates unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person’s death.
3.(Repealed)
4.A claim is made by giving notice of the claim to the person against whom the claim is made and, if that person’s insurer is a third party insurer, to the insurer.
5.The requirement under subsection (4) (only in so far as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if:
(a)that person is dead, or
(b)that person cannot be given notice.”
Section 44 provides that a notice of a claim under s 43(4) must be in the form approved by the Motor Accidents Authority of New South Wales, and must set out or be accompanied by the particulars and information required by that form.
Section 43A provides that a claim may be made more than 6 months after the relevant date for the claim under s 43 if the claimant provides a full and satisfactory explanation for the delay in making the claim. That explanation must be provided in the first instance to the third-party insurer concerned or to the nominal defendant. Subsection 4 provides that a late claim may not be made more than 12 months after the relevant date for the claim under s 43 unless, in addition to the provision of a full and satisfactory explanation, the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 10 per cent of the maximum amount that may be awarded for non-economic loss under s 79 or 79A of the Act as at the date of the relevant motor accident.
In the present case, it was common ground that the claim had not been made by the provision of notice to either the defendant or the third party insurer in the form approved by the Authority. Mr Pilkinton fairly conceded that if the claim were to succeed the total damages likely to be awarded to the claimant would be not less than 10 per cent of the maximum amount that could be awarded for non-economic loss under s 79A at the time of the accident. Nonetheless, he maintained that the failure to provide notice in the prescribed form prior to the institution of proceedings necessarily meant that the proceedings could not be maintained. He relied upon a decision of the New South Wales Court of Appeal in Hill v Bolt (1992) 28 NSWLR 329 as authority for the proposition that the requirement for notice is mandatory and may bar proceedings even in circumstances in which discretion would be exercised under s 52 of the Act to extend the more general limitation period for the commencement of proceedings.
Mr Mildren, who appeared for the plaintiff conceded that his client had not complied with the requirements of the section but submitted that the third party insurer had effectively waived compliance with the section or was estopped from raising any issue of non-compliance. He argued that the insurer had entered into a binding agreement which involved an implied undertaking not to rely upon these procedural requirements by requesting particulars, entering into a course of negotiations, admitting liability, inviting the commencement of proceedings to enable damages to be assessed and providing the filing fee to enable the plaintiff to comply with that request.
Somewhat similar situations have been considered in a number of previous cases. See Newton, Bellamy and Wolfe v State Government Insurance Office (Qld) [1986] 1 Qd R 431; Hewson v Burke (2000) 32 MVR 392; and Lindsay v Smith (2001) 34 MVR 435. In the last mentioned case, Chesterman J observed, at paragraph 36, that comparable provisions in the Motor Accident Insurance Act 1994 (Qld) did not modify the law relating to estoppel. His Honour pointed out that whether an admission has given rise to an estoppel or a contract will depend upon the context. An insurer may express an admission of liability in a manner that avoids either consequence but if it chooses to admit liability unequivocally and in circumstances that would otherwise give rise to an estoppel or a contract, the objects of the Act will not prevent if from becoming bound by the admission upon which claimant had relied. In my opinion the fact that s 43 of the Act is in mandatory terms does not provide any adequate reason for concluding that legislature intended to modify the law of estoppel and permit insurers to shelter behind statutory entitlements even when they had effectively agreed not to rely upon them or had induced claimants to act in reliance upon implied representations that any non-compliance would not be raised against them.
In the present case, Mr Pilkinton submitted that no such conclusion could be drawn because the correspondence suggested that the insurer would have been acting upon the assumption that the accident had occurred in the ACT and would have had no reason to suppose that the provisions of the Act applied. However, the affidavit of the plaintiff’s solicitor, Mr MacDonald reveals that on 21 July 1998 he received a telephone call from Mr Bull, who was then senior claims consultant with the insurer, during which Mr Bull asked where the accident occurred. Mr MacDonald obtained instructions that it had occurred on a small farm on Woronpon Road off Wallaroo Road in Hall and conveyed that information to Mr Bull. A file note annexed to Mr Bull’s affidavit confirms that this information was received on 21 July 1998. That location is in New South Wales. Furthermore, in a letter dated 28 August 1998, some five weeks later, Mr Bull wrote to the plaintiff’s solicitors stating that “enquiries into the accident circumstances are now complete”. It was that letter which also conveyed the admission that the defendant had breached his duty of care to the plaintiff. The letter also contained a suggestion that the plaintiff had been guilty of contributory negligence and a request for medical reports. Accordingly, I am satisfied that the insurer knew that the accident had occurred in New South Wales at a time when it admitted liability and either embarked upon or continued with a course of negotiation and, of course, at the later times when it invited the plaintiff to commence proceedings and provided the necessary filing fee.
It is true that the defendant himself took no apparent part in these proceedings but the insurer was clearly entitled to enter into negotiations on his behalf. It might also be noted that the provisions of s 43 are expressed to be for the benefit of the insurer rather than the particular driver against whom the complaint is made.
In all the circumstances, I am satisfied that, as in Newton, Bellamy and Wolfe v State Government Insurance Office, the insurer entered into a contract on its own behalf and on behalf of the defendant. The course of dealings involved an implied offer that if the plaintiff refrained from suing pending an investigation into the circumstances of the accident, the insurer would consider admitting liability and enter into negotiations to settle the foreshadowed claim. The plaintiff clearly accepted this offer by providing information and copies of medical reports and entering into negotiations. The insurer, having sought and acted upon that forbearance and co-operation subsequently agreed that it was liable. It may not now say that there was no consideration for that agreement or that it is not bound to honour it because of the provisions of s 43. I should, perhaps, add that even if I had not accepted that the course of dealing involved the actual formation of an agreement to this effect I would, in any event, have held that it had been sufficient to give rise to estoppels preventing both the insurer and the defendant from relying upon the requirements of that section.
Third, s 48 requires a claimant to co-operate with the person against whom the claim was made and that person’s insurer. In particular, it requires the claimant to comply with any reasonable request for the provision of information and the production of specified documents or records including photographs and other evidence as to the identity of the claimant. The obligation applies only until the commencement of proceedings and it was not suggested that the plaintiff had failed to comply with any such obligation.
Fourth, the Act provides that Mr Pilkinton also submitted that the present claim was not maintainable because of the provision of s 52(1A) which provides as follows:
“A claimant is not entitled to commence court proceedings against another person in respect of a claim until:
(a) 6 months have elapsed since notice of claim was given to the other person and (if required by section 43(4)) to the other person’s insurer, or
(b) 90 days have elapsed since the details required by section 50A were given to the other person’s insurer, or
(c) if the other person’s insurer has made an offer of settlement to the claimant before the claimant commences court proceedings, 28 days have elapsed from the date on which the claimant’s response to the offer is communicated to the other person’s insurer,
whichever is the later or latest.”
Whilst the requirements of subparagraphs (b) and (c) had clearly been complied with Mr Pilkinton relied upon the fact that a period of six months had not elapsed since notice of the claim had been given in accordance with the requirements of section 43. Indeed, notice has still not been given in a manner that would satisfy those requirements. He also pointed out that the provisions of subs (1A) are in mandatory terms. I accept those submissions. However, I am again of the opinion that this provision was not intended to modify the law relating to estoppel and, having regard to the findings referred to earlier, I am satisfied that the defendant is also estopped from reliance upon this provision.
Fifth, the Act requires a claimant to commence proceedings within three years after the date of the motor vehicle accident to which the claim relates. Leave may be given for the commencement of proceedings after the expiration of that period but subsection 52(4B) provides that:
“The leave of the court must not be granted unless:
(a) the claimant provides a full and satisfactory explanation to the court for the delay, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.”
It was again clear that the total damages likely to be awarded to the complainant if the claim succeeds would be of sufficient magnitude to satisfy the requirements of this section. However, Mr Pilkinton argued that no full and satisfactory explanation for the delay had been provided. In one sense that is true. There is certainly no affidavit from the plaintiff in which he expressly states that he did not commence proceedings within the three year period for a stipulated reason. However, as I have mentioned, the evidence reveals that liability was admitted on 28 August 1998 and a course of negotiations then ensued. Furthermore, it is clear from the affidavit of Mr MacDonald that, following the letter of 28 August 1998 and the subsequent provision of a schedule of medical reports after the third party insurers had had the plaintiff medically examined, correspondence between his solicitors and the insurer “continued … on a regular basis” and payments, apparently made in anticipation of the ultimate resolution of the proceedings, were made to the plaintiff on 8 August 2001, 3 October 2001 and 20 November 2001. The affidavit also revealed that the plaintiff continued to be medically treated, apparently at the insurer’s expense, and correspondence continued, leading to an offer of settlement on 19 April 2002. Mr MacDonald was not subjected to cross-examination and there was no suggestion that the course of dealing had not followed the course outlined in his affidavit. In these circumstances, it seems abundantly clear that the plaintiff had continued to rely upon the agreement between the parties in the hope of negotiating a settlement without the need to commence legal proceedings. In the particular circumstances of this case, I am satisfied that this constitutes a full and satisfactory explanation for the delay.
Even if the requirements of subs (4A) are satisfied, a claimant seeking leave must still demonstrate that there are adequate grounds for the exercise of discretion in his or her favour. The section does not specify the criteria that must be taken into account but, in my opinion, he or she must show that such a course would be fair and just. It will rarely, if ever, be in the interests of justice to grant leave to commence proceedings out of time if a fair trial of the issues could no longer be conducted but the court must exercise its discretion in the context of the balance of competing factors referred to in cases such as Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and with due appreciation of the almost inevitable risk that the defendant’s position will have been prejudiced by the delay.
In the present case, given the course of dealings between the parties, Mr Pilkinton readily conceded that he was unable to point to any real prejudice that could be occasioned by the delay and, in all the circumstances, I am satisfied that it would be fair and just to extend the time nunc pro tunc to validate the existing proceedings.
Accordingly, the plaintiff will be granted leave to institute proceedings commenced by the filing of an originating application on 2 July 2002 and the application for an order striking out the proceedings will be dismissed.
I will hear counsel as to costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Crispin.
Associate:
Date: 6 November 2002
Counsel for the plaintiff: R Mildren
Solicitors for the plaintiff: Vandenberg Reid
Counsel for the defendant: S Pilkinton
Solicitor for the defendant: Hunt and Hunt
Date of hearing: 25 October 2002
Date of judgment: 6 November 2002
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