Brannigan v Nominal Defendant

[1999] QCA 347

IN THE COURT OF APPEAL	99.347
SUPREME COURT OF QUEENSLAND

Appeal No 5764 of 1999

Brisbane

[Brannigan v The Nominal Defendant]

BETWEEN:

ROBERT STANLEY BRANNIGAN

(Applicant) Appellant

AND:

THE NOMINAL DEFENDANT

(Respondent) Respondent

de Jersey CJ
McPherson JA

White J

Judgment delivered 24 August 1999

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

LEAVE TO APPEAL AGAINST JUDGMENT BELOW GRANTED.
APPEAL DISMISSED.

COSTS TO BE TAXED.

CATCHWORDS:	INSURANCE - THIRD-PARTY LIABILITY INSURANCE - MOTOR VEHICLES - COMPULSORY INSURANCE LEGISLATION - WHERE IDENTITY OF VEHICLE CANNOT BE ESTABLISHED - appeal against striking out of damages claim against Nominal Defendant for personal injuries allegedly sustained in motor vehicle accident on the ground that it was barred by Motor Accident Insurance Act 1994 s 37 - appellant failed to give notice within period specified in s 37(3) - whether notice given under s 37(4) must contain explanation of delay - effect of wording in provision - whether defect in notice able to be waived under s 39 - legislative aims of act
considered Georgiadis v Australian & Overseas Telecommunications Corporation (1993-4) 179 CLR 297, considered Halleday v The Nominal Defendant (Queensland) [1965] QdR 7, considered McKelvie v Page (1998) 27 MVR 292, distinguished Smith v The Nominal Defendant (Queensland) [1965] QdR 1, considered
Facey v The Nominal Defendant (Queensland) [1966] QdR 65, considered
Motor Accident Insurance Act 1994 ss 3, 31, 37, 39 Motor Accident Insurance Regulations 1994 s10
Counsel:	Mr DB Fraser QC with DL Atkinson, for the appellant Mr PV Ambrose for the respondent
Solicitors:	Watling Roche Lawyers for the appellant Biggs & Biggs for the respondent
Hearing Date:	26 July 1999

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 5764 of 1999

Brisbane

Before de Jersey CJ
McPherson JA
White J

[Brannigan v The Nominal Defendant]

BETWEEN:

ROBERT STANLEY BRANNIGAN

(Applicant) Appellant

AND:

THE NOMINAL DEFENDANT

(Respondent) Respondent

REASONS FOR JUDGMENT - de JERSEY CJ

Judgment delivered 24 August 1999

1. On 9 July 1998, the appellant filed a plaint in the District Court claiming damages for personal

   injuries. The appellant allegedly sustained his injuries in a collision on 13 April 1997 between the vehicle

   he was driving and an unidentified motor vehicle. The appellant alleged that the collision occurred

   because of the negligence of the driver of that unidentified vehicle. Hence the defendant to the plaint,

   and the respondent to this appeal, is the Nominal Defendant.

2. By summons dated 23 April 1999 the respondent sought an order striking out the action on the

   ground that it was barred by s 37 of the Motor Accident Insurance Act 1994. A learned District

   Court Judge made that order, against which the appellant now wishes to appeal.

3 The appellant first requires leave to appeal under s 118 of the District Courts Act, because
he cannot establish that the value of his claim exceeds $50,000 (s 118(2)). Leave should be granted:

the issue is one of importance and not yet the subject of a ruling at appellate level and has potential

application to a possibly large number of cases. We treated the hearing of the application for leave to

appeal as if the substantive hearing of the appeal.

1. The Motor Accident Insurance Act sets up a legislative scheme designed, as especially relevant

   to this case, “to encourage the speedy resolution of personal injury claims resulting from motor vehicle

   accidents” and “to establish and keep a register of motor vehicle accident claims to help the

   administration of the statutory insurance scheme and the detection of fraud” (s 3).

2. Consistently, s 37 obliges a claimant to give early comprehensive notice of a claim to the

   Nominal Defendant. Its terms follow:-

   “37.(1) Before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident, a claimant must give written notice of the claim to the insurer, or 1 of the insurers, against which the action is to be brought—

(a)	containing a statement, sworn by the claimant, of the information required by regulation; and
(b)	containing an offer of settlement, or a sworn statement of the reasons why an offer of settlement cannot yet be made; and
(c)	accompanied by the documents required by regulation.

(2) The notice must be given within 9 months after the motor vehicle accident or the

first appearance of symptoms of the injury.

(3) However, if the motor vehicle cannot be identified, the notice must be given to the

Nominal Defendant within 3 months after the motor vehicle accident.

(4) If the notice is not given within the time fixed by this section, the obligation to give the notice continues and the notice, when given, must contain an explanation of the delay but, if a motor vehicle accident claim relates to injury cause by, through or in connection with a motor vehicle that cannot be identified and notice of the claim is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred.

(5) If 2 or more motor vehicles were involved in the motor vehicle accident, the insurer to which a notice of claim is given under subsection (1) must, within 7 days after receiving it, give a copy of the notice to any other insurer of a motor vehicle involved in the motor vehicle accident.”

1. The period of three months prescribed by s 37(3) expired on 13 July 1997. The appellant did

   not give the required notice within that period. He first consulted a lawyer on 31 October 1997, and

   gave notice in purported compliance with his continuing obligation under s 37(4) on 24 December 1997.

   That notice did not however “contain an explanation of the delay”, that is as to the delay from 13 July

   1997, as required by s 37(4). On 20 January 1998 the solicitors for the respondent drew this

   deficiency to the appellant’s attention. The learned judge subsequently relied on that deficiency in

   declaring the action barred because of s 37(4).

2. Counsel for the appellant submitted that “where notice is given within the nine month period but

   contains some defect (such as the absence of an explanation for the delay) the notice is still valid subject

   to a requirement that the defect be remedied.”

3. In assessing that submission, one notes at once the mandatory terms of the subsection. Further,

   s 37(4) makes it clear that the explanation of the delay required, if notice is given after the expiration of

   the initial three months, is part of the notice itself. The notice must “contain” it. The appellant

   nevertheless contends that notwithstanding that express statutory requirement, a notice not containing

   the explanation may still be sufficient for the purposes of the section.

4. Whatever the result of omitting arguably less consequential information required by regulation

   (s 37(1)(a)), a matter on which we were addressed, the circumstances that the section itself specifically

   - and in mandatory terms - requires that the explanation be included in the notice, and the potential

   relevance to the promotion of the objects of the Act of requiring such an explanation, strongly suggest that a notice purportedly given under s 37(4) which does not contain the necessary explanation should

   be regarded as insufficient for the purposes of the subsection.

5. With relation to the objects of the Act (s 3), requiring an explanation is an integral, possibly

   important part of a tight regime conducing to the speedy resolution of claims and intended to discourage

   fraud. Also, as submitted for the respondent, “the explanation itself may guide the Nominal Defendant

   to a line of inquiry as to the existence or otherwise of the unidentified vehicle”.

6. We were referred to McKelvie v Page (1998) 27 MVR 292, where Wilson J held that where

   a claimant had given the Nominal Defendant a defective notice under s 37, and subsequently remedied

   the defects, albeit after the expiration of the prescribed nine month period, the court retained a discretion

   under s 39(5)(c) to grant leave, nunc pro tunc, for the bringing of proceedings for damages despite non-

   compliance. The respondent in this Court challenged the correctness of that decision. It is not however

   necessary in this case to consider the issue. For discretionary reasons, Wilson J in fact declined to grant

   leave - because the claimant could not provide sufficient evidence of the negligence to be established

   were the case to go forward. What is significant for present purposes is that Her Honour was not there

   concerned with the case of an unidentified vehicle, but an unregistered vehicle, and that immediately

   distinguishes this case from McKelvie v Page. For present purposes, s 37(4) is clear in its provision

   that failure to give “notice of the claim” within nine months, in a case involving an unidentified vehicle (but

   not an unregistered vehicle), results in the barring of the claim.

7. Counsel for the appellant pointed out that whereas the opening words of the subsection couple

   reference to the notice with reference to inclusion of the explanation, the later words, relating specifically

   to claims against the Nominal Defendant in respect of unidentified vehicles, refer only to the notice of

   claim. But no significance favourable to the appellant can be drawn from that. There was no need to refer again later in the provision to the inclusion of the explanation: the requirement for that had already

   been spelt out, and applies plainly to the species of claim referred to in the later part of the subsection.

8. We were referred to s 39, which contemplates that an insurer might waive defects in such

   notices or give a claimant the opportunity to rectify them. The section provides that even if the

   claimant’s notice is given out of time, the insurer must within a month either confirm its satisfaction that

   the notice has been given as required, or waive any non-compliance, or “if the insurer does not waive

   compliance with the requirements - (allow) the claimant a reasonable period (at least one month)

   specified in the notice either to satisfy the insurer that the claimant has in fact complied with the

   requirements or to take reasonable action specified in the notice to remedy the non-compliance.”

   Subsection 39(5)(b) contemplates that if a claimant is “dissatisfied with the insurer’s response to a notice

   of a claim”, the court may declare that the notice of claim was given in compliance with the Act, or that

   the claimant be taken to have remedied the non-compliance. Further, the court might “(give) leave to

   bring the (damages) proceeding despite non-compliance” (subs 5(c)).

9. But in the case of a claim against the Nominal Defendant in respect of an unidentified vehicle,

   these possibilities, potentially beneficial to the claimant, are excluded by s 39(8), in conformity with the

   intention obviously behind s 37(4). Section 39(8) provides:-

   “If a claim against the Nominal Defendant is barred because the claim relates to personal injury caused by, through or in connection with a motor vehicle that cannot be identified and the claimant failed to give notice of claim under this Division within nine months after the motor vehicle accident, the Nominal Defendant cannot waive compliance with the requirement to give notice within the time allowed by this Division, nor can the Court give leave to bring a proceeding in a court despite the noncompliance.”

10. It may therefore be seen that the legislature saw claims for damages in respect of unidentified vehicles as falling into a special category justifying an even stricter regime, a regime less accommodating of laxity or other non-compliance on a claimant’s part, more “supportive” of the Nominal Defendant as

    the relevant insurer. The reasons for this are obvious enough, principally the prime need for the earliest

    possible investigation of the circumstances of the alleged accident and seeking out the allegedly negligent

    other driver, and more broadly the prevention of fraud. In these particular cases, there is effectively no

    capacity for extension of the nine month cut-off limitation, and the requirement for the required notice

    within that period is apparently inflexible.

11. The critical ultimate issue is therefore whether, even though it did not contain the explanation

    which the statute prescribed be included, this notice given in purported compliance with s 37 was

    nevertheless sufficient for the purposes of the section. For reasons discussed above, the language of

    the Act strongly suggests not, and that is consistent with the promotion of its objects. The learned

    judge’s decision was correct.

12. Leave to appeal should be granted, but the appeal dismissed, with costs to be taxed.