Carmen BELTRAME-DIEZ v Craig Rayner
[2013] ACTMC 27
•18 December 2013
CARMEN BELTRAME-DIEZ v CRAIG RAYNER AND ANOR
[2013]ACTMC 27 (18 December 2013)
ROAD TRANSPORT (THIRD-PARTY INSURANCE) ACT 2008 (ACT) – failure to comply with s 85 – application for declaration that non-compliance remedied or authorisation to proceed pursuant to s 95 – meaning of complying notice of claim – power of Court to supervise assessment of what is a reasonable excuse by way of declaration that non-compliance has been remedied – authority to proceed despite non-compliance – exercise of discretion - interest of justice – prejudice to respondent – no evidence of actual prejudice – presumptive prejudice viewed against background that liability admitted and well-documented medical history - in the interest of justice that claim proceed – application granted.
Road Transport (Third-Party Insurance) Act 2008 (ACT)
Civil Law (Wrongs) Act 2002 (ACT)
Al-Rawahi v Niazi [2006] ACTSC 84
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Cowie v State Electricity Commission of Victoria [1964] VR 788
Gray v Sinclair [2011] AP 11/41
No. CS 813 of 2013
Magistrate: Morrison
Magistrates Court of the ACT
Date: 18 December 2013
IN THE MAGISTRATES COURT OF THE )
) No. CS 813 of 2013
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:CARMEN BELTRAME-DIEZ
Applicant
AND:CRAIG RAYNER
First Respondent
AND:INSURANCE AUSTRALIA LIMITED t/as NRMA INSURANCE
Second Respondent
DECISION
Magistrate: Morrison
Date: 18 December 2013
Place: Canberra
The applicant asserts that she was injured in a motor vehicle accident in this territory on 18 November 2010. The terms of Part 4.2 of the Road Transport (Third-Party Insurance) Act 2008 (ACT) (‘the Act’) impose certain obligations on her in relation to her damages claim for injuries arising out of that accident.
The applicant accepts that she did not comply with the requirements of section 85 of the Act.
In the application heard by me on 17 September 2013 the applicant seeks either a declaration that she has remedied her non-compliance with the Act or, in the alternative, authorisation to proceed with her claim despite her non-compliance.
The evidence before me comprises the affidavit of the solicitor for the second respondent James Philip Wilkinson Treloar filed 3 September 2013, the oral testimony of the applicant who was extensively cross-examined and some documents put into evidence through her.
Before turning to the evidence it is useful to make some comments about the statutory scheme.
Chapter 4 of the Act defines a number of key terms and sets out certain procedures to be followed in making a motor accident claim in this jurisdiction. Under section 84 of the Act, a written notice of claim must be given to a CTP insurer within the time periods prescribed by section 85. That section requires, in summary, that notice of the claim be given by the earlier of two points in time – either within nine months of the accident or of the first appearance of symptoms of any injury; or within one month of the claimant first instructing a lawyer about the claim or of identification of the defendant. If notice is not given within the time prescribed, a reasonable excuse must be given, either in the notice of claim or by separate written notice – see section 85 (3).
Section 95 of the Act goes on to deal with what happens if a claimant gives a notice of claim which is not a complying notice of claim as defined in section 76. Relevantly, a "complying notice of claim" is defined to mean “a notice of claim, under section 84 (Notice of claim) ....... that is given as required under this part”.
Section 95 is a deeming provision – deeming the claimant to have given a complying notice of claim in certain circumstances. There are broadly three sets of circumstances under which that deeming takes place.
The first, not relevant for present purposes, occurs where the respondent notifies the claimant that it waives non-compliance, or is satisfied with the steps taken by the claimant to remedy the non-compliance or regards the notice as being compliant.
The second, also not relevant for present purposes, occurs where a respondent fails, under section 90 to give notice to the complainant which, amongst other things, identifies the relevant non-compliance. In those circumstances, the respondent is presumed, pursuant to section 90 (3) to be satisfied that the notice is compliant.
It is the third set of circumstances which is relevant for present purposes. The claimant is taken to have given a complying notice of claim if the court, by order, on application by the claimant—
a. declares that the claimant has remedied the non-compliance; or
b. authorises the claimant to proceed further with the motor accident claim despite the non-compliance.
The affidavit evidence indicates that the applicants notice of claim did not, at first, include a police report, but as I understand the submissions, that is something which was remedied and no point is taken about it.
The point which is the subject of the contest before me is that the notice of claim was not given until February 2012 – a point in time which was about six months outside the most generous of the time limits imposed by section 85.
What followed when the notice of claim was given is set out in the affidavit by Mr Treloar. That evidence was not challenged. A short summary follows.
The applicant completed a motor accident notification form which is dated 10 February 2012. I note that it is date stamped as received 21 February 2012. The motor vehicle accident is asserted to have taken place on 18 November 2010, such that the notice was given roughly 15 months after the accident.
On 23 February 2012, the second respondent wrote to the applicant asking that she attend a meeting at the second respondent’s office. That meeting took place. On 6 March 2012 the second respondent wrote to the applicant. That letter included the following – “you indicated that the reason it has taken you 15 months to lodge your claim was because you were overseas on holiday. Can you please elaborate on this and provide me with a written explanation for why you submitted your claim late?”
On 7 March 2012 the second respondent wrote to the applicant advising that it did not accept the notice given as compliant and requiring a reasonable excuse for the delay in lodging the claim, and some police report ID number information which is not relevant for present purposes. That letter required provision of the relevant information by the end of April 2012.
The language used in the letter just referred to does not follow precisely that used in the legislation in section 90, but the differences are not material. The letter was, on its face, sent within the time limit provided for in section 88. The applicant does not in her submissions challenge the efficacy of the letter as notice for the purposes of section 90.
The terms of the letter from the second respondent, requiring a reasonable excuse for the delay in lodging the applicant’s claim, appear to have been designed to meet the demands of section 90(2)(c) which required the insurer to allow the claimant a reasonable period, of at least 1 month to—
a.satisfy the respondent that the notice of claim is a complying notice of claim; or
b.take reasonable action stated in the response to remedy the noncompliance.
Section 90 goes on to require the insurer, not later than 1 month after the day the period referred to above ends, to give the claimant a written notice stating that the respondent—
a.is satisfied the notice of claim is a complying notice of claim requirements, is satisfied with the action taken by the claimant to remedy the noncompliance, or waives the noncompliance; or
b.is not satisfied that the claimant has taken reasonable action to remedy the noncompliance, and giving full particulars of the noncompliance and the claimant's failure to remedy it.
On 17 April 2012 the applicant’s present lawyers made contact with the second respondent, advising that they acted for the applicant, seeking confirmation that the claim form had been lodged and asking for a copy of the documents.
On 18 April 2012 the second respondent wrote to the lawyers. That letter repeated what had been said to the applicant herself that the second respondent did not accept the notice was compliant and that it required a reasonable excuse for the delay in lodging a claim. On this occasion, the letter required the provision of the information by 18 May 2012.
That letter from the second respondent brought a short response from the solicitor for the applicant to the effect that the applicant said she was not aware of the relevant time restrictions for the bringing of a common-law claim. The response is by letter dated 26 April 2012.
The second respondent’s response was to notify the applicant’s solicitors that they did not accept the explanation as being a reasonable excuse for the purposes of section 85(3) of the Act and that it did not waive the non-compliance.
By letter dated 27 July 2012 to the applicant’s solicitors, the second respondent reiterated its position. By letter in reply dated 3 August 2012 the solicitors informed the second respondent that their client was an aged lady, that her English was very poor, and that they believed that she had legitimate reasons for failing to comply with the relevant time limits.
The subsequent exchanges set out in the affidavit are not relevant for present purposes.
I note that a letter from the applicant’s solicitors to the second respondent dated 23 February 2013 made certain assertions about the second respondent itself having failed to comply with the legislation but that is not something which was pressed in submissions to me.
Some documents were put into evidence and marked as exhibits. I need refer to only one of them which I do later.
I infer from the evidence before me and the submissions that it is not in dispute that the motor vehicle accident asserted by the applicant to give rise to her claim took place on 18 November 2010 in the manner described by the applicant – that it is that the vehicle in which she was a passenger was struck from behind by another vehicle. I note the second respondent’s submissions – at paragraph 54 – that it would have determined to accept liability having regard to the circumstances of the accident.
The other relevant evidence before me is that of the applicant having suffered an earlier motor vehicle accident - in October 2008 - having brought a claim for damages in relation to it, and having settled that claim in late 2010 or early 2011.
One of the documents put into evidence is a medico-legal report prepared by consultant surgeon Dr G G Griffith for the purposes of the applicants prior damages claim. It is dated 20 April 2009 and I understand it to have been obtained at the request of the applicant’s then lawyers. It is a comprehensive report – running to some 7 pages and including a description of the prior accident and the resulting injury, a detailed history of the initial treatment received for it, a description of the then current symptoms, a report of a detailed physical examination including such things as measurement of flexion, extension, rotation and the like in relation to cervical, shoulder and wrist movements; as well as opinions about the cause of the applicants then injuries, her recovery prognosis and future medical treatment.
I return to the legislative scheme.
Various provisions of Chapter 4 speak in terms of remedying non-compliance. It is not possible to retrospectively remedy non-compliance which comprises failure to meet a time limit which has passed.
The applicant submits that the failure to comply with the time limit in section 85 does not render the notice of claim non-compliant. The applicant points out that section 85(3) expressly deals with the failure to give notice of a claim within the time limits set out in section 85(2) - imposing then an additional obligation to provide a reasonable excuse for the delay.
The applicant’s argument that failure to comply with the time limits in section 85 does not make the notice a non-complying notice of claim cannot be supported. It does however usefully direct attention to the significance to be attached to section 85(3) when a notice is out-of-time. That is something to which I return later.
The submissions of the second respondent as to the meaning to be given to “complying notice of claim” should be accepted. A notice given out-of-time is not a notice given “as required under this part” for the purposes of section 76.
To the extent that it is necessary to look beyond that plain meaning of the words used, there are several arguments supporting the second respondent’s submissions.
First, there are obvious benefits in requiring prompt notification of claims and doing so clearly promotes the stated objects of the Act – including the speedy resolution of personal injury claims. The imposition of time limits on the giving of notice under the Act is a key feature of achieving the objects. It would be incongruous for non-compliance with such a key feature of the legislative requirements to be treated as anything other than rendering a notice non-compliant.
In addition, regard must be had to the terms of section 95. It is the section dealing with the circumstances under which a non-complying notice of claim may be or become a complying notice of claim. The opening subsection – section 95(1) – says that the section applies if the claimant gives a respondent a notice of claim “that is not a complying notice of claim”. It is subsection (2)(c) of section 95 which empowers a court, by order, to authorise “the claimant to proceed further with the motor accident claim despite the noncompliance” – that being part of the relief sought in the present case.
Subsection (3) of section 95 goes on to impose a restriction on the Court’s power to grant that relief. It is expressed in the following terms:
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.
It is apparent from a combined reading of the application section – section 95 (1) - and the restriction on the power to authorise a claimant to proceed contained in section 95(3) that a notice of claim which fails to comply with section 85 is a notice of claim that is not a complying notice of claim for the purposes of section 95.
Lastly, the applicant in her written submissions asserts (at paragraph 47) that the legislation is silent as to what flows from failure to give a reasonable explanation for the delay. That would be an unusual gap in the procedural scheme, but no such gap exists if the failure to comply with the time limit in fact makes the notice non-compliant.
For the reasons given, and subject to the comments which follow, a notice which is out-of-time is to be treated as a non-complying notice.
It remains necessary to consider the combined effect of section 85(3) and what follows – in particular section 95.
It is apparent that the legislature has recognised, pragmatically, that sometimes a notice of claim may be given outside the time limit in section 85.
Section 85(3) evinces a legislative intent that the requirement for strict compliance with the time limit set out in section 85(2) is not to apply where there is a reasonable excuse for the delay. An obligation is however imposed on the applicant by that subsection to give written notice of any such excuse. In the first instance, the insurer considers the excuse proffered. The insurer may accept that the excuse for the delay is reasonable. In such circumstances it may waive the non-compliance or notify the applicant that it is satisfied with the action taken by the claimant to remedy the non-compliance.
It is when, such as in the present case, the insurer does not accept that an excuse is reasonable, that recourse may be had to section 95.
That procedural scheme - allowing the court under section 95(2)(c)(i) to declare that the claimant has remedied the non-compliance - evinces a legislative intent to give the court the power to supervise the assessment of what is a reasonable excuse and to protect an applicant against a capricious or unreasonable rejection by the respondent of the excuse proffered by the applicant.
In other words, the giving of reasonable excuse for delay in accordance with section 85(3) remedies the non-compliance with section 85 where the excuse is accepted by the insurer. If the excuse is not accepted by the insurer then the role of the court in an application under section 95(2)(c)(i) is to decide if the excuse proffered for delay is a reasonable one. If it is, then a determination to that effect amounts to a declaration that the non-compliance has been remedied because section 85(3) - the requirement to give a reasonable excuse - will thereby have been complied with.
The principal relief sought by the applicant in this case is for a declaration of the kind just mentioned – that is requiring an assessment of the reasonableness or otherwise of the excuse proffered.
The applicant gave evidence and was extensively cross-examined. What she said in her evidence is the subject of most of the submissions before me. I was left with the overall impression that the applicant had a more extensive command of the English language then she was prepared to concede in her testimony.
Having said that it is convenient to look first to the second leg of the applicant’s claim – that is for an order under section 95(2)(c)(ii) authorising her to proceed further with her claim despite the non-compliance.
A decision under that section is discretionary. The only authority on the exercise of that discretion to which I was referred is a decision of her Honour Magistrate Campbell in Gray v Sinclair [2011] AP 11/41, where her Honour referred with approval to the observations of Master Harper in Al-Rawahi v Niazi [2006] ACTSC 84. Master Harper, speaking of comparable provisions in the Civil Law (Wrongs) Act 2002 (ACT) made these observations:
The exercise of the jurisdiction conferred on the Court by section 59 is not, however, conditional upon the applicant having had a reasonable excuse for a delay in service of a notice of claim. It is clear from subsection 59(2) that prejudice to a respondent is one factor to which the Court is to have regard. It seems to me that the section confers on the Court a discretion to grant or refuse an application, which is to be exercised judicially having regard to the circumstances of each case. It would not, in my view, be appropriate for me to seek to develop principles governing the exercise of the discretion which might fetter its exercise in some future case. It should be exercised after considering the effect of making or refusing the orders sought on both parties, and considering generally the interests of justice.
As the discretion is conferred by statute, it is also appropriate when exercising it to have regard to the Human Rights Act 2004. Section 21 of that Act provides for the right to a fair trial. The section relevantly provides that “Everyone has the right to have … rights and obligations recognised by law … decided by a competent, independent and impartial court or tribunal after a fair and public hearing”. In an application such as this, where the claimant’s right to bring an action for damages for personal injury is at stake, this provision suggests that if there is any doubt, the Court should err in favour of ordering that the claimant be allowed to pursue her claim.
In Brisbane South Regional Health Authority v Taylor [1996] HCA 25, the High Court dealt with an application to commence proceedings outside a limitation period. Whilst the statutory provision was different the decision is useful. The judgements do not refer to an interests of justice test in those terms, but that issue did form part of their Honours’ considerations. Dawson J referred to the relevant statutory provision as conferring a discretion to extend time which should only be exercised where “justice is best served by doing so”. McHugh J referred to the applicant bearing “the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour”.
In its written submissions directed to the application for authorisation, the second respondent refers to the applicant’s earlier damages claim and what is described as her very complex medical history and asserts that whatever injury or injuries she may have suffered on 18 November 2010 were superimposed upon a background of significant injury. The second respondent goes on to say that it has been robbed of a fair opportunity to have the applicant medically examined in a timely way and to institute a regime of rehabilitation and treatment. The second respondent’s submissions do not refer to prejudice as such but I treat its submissions as being an assertion to that effect.
In Brisbane South Regional Health Authority the Court considered the significance of prejudice to a defendant on the exercise of the discretion.
Insofar as the risk of actual prejudice is concerned the majority in Brisbane South Regional Health Authority approached the matter on the basis that the respondent had an evidentiary burden – described by Toohey and Gummow JJ by reference to the decision of Gowans J in Cowie v State Electricity Commission of Victoria [1964] VR 788 at 793 in these terms:
It is for the respondent to place in evidence sufficient facts to lead the court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.
There is no evidence before me in this case as to what is or may be the consequence for the second respondent of a delay in the opportunity to have the applicant medically examined or to institute any program of rehabilitation and treatment.
The significance of what the second respondent describes as the applicant’s very complex medical history must be viewed against the background that her history appears to be well-documented because of her earlier claim – including by way of the comprehensive report of Dr Griffith which is exhibit R2. Admittedly the Griffith report was obtained by the applicant’s then lawyers as part of her earlier claim, but to the extent that a professional report may tend towards overstatement one would expect that to work in favour of the second respondent in relation to the applicant’s present claim.
I am not satisfied that the second respondent has raised evidence of actual prejudice.
To the extent that the judgements in Brisbane South Regional Health Authority deal with presumptive prejudice because of the passage of time it is necessary to bear in mind that the case dealt with an application under a statutory limitation period of 3 years. The rationales for the imposition of limitation periods referred to by McHugh J are relevant to consideration of the exercise of discretion under s95(2)(c)(ii) but to a lesser extent given the context and time limits involved in the present application.
In addition the weight of a presumptive prejudice argument must be viewed against the background of the concession by the second respondent that it would have admitted liability for the accident and again of the apparently well-documented history of the applicant’s state of health in the more or less immediate lead up to the accident giving rise to the present claim.
Having regard to all of the above I conclude that for the purposes of section 95 it is in the interests of justice for the matter to proceed further and I authorise the applicant pursuant to s95(2)(c)(ii) to proceed with her claim despite the non-compliance. Having made that order there is no need for me to deal with the application for a declaration under s95(2)(c)(i).
I certify that the preceding sixty-three (63) paragraphs are a true copy of the Reasons for Decision of his Honour, Magistrate Morrison.
Associate: Gary Khoo
Date: 18 December 2013
Counsel for the Applicant: Mr A Muller
Solicitor for the Applicant: Maliganis Edwards Johnson
Counsel for the Respondents: Mr J Pappas
Solicitor for the Respondents: Moray & Agnew Lawyers
Date of hearing: 17 September 2013
Date of decision: 18 December 2013
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