Cook v Nominal Defendant - [2015] ACTSC 278

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Cook v Nominal Defendant
Citation:	[2015] ACTSC 278
Hearing Date:	10 July 2015
DecisionDate:	10 July 2015
Before:	Mossop AsJ
Decision:	The plaintiff is authorised to proceed further with her motor vehicle accident claim despite her non-compliance with s 86 of the Road Transport (Third-Party Insurance) Act 2008 (ACT).
Category:	Principal Judgment
Catchwords:	PERSONAL INJURY – Motor vehicle accident – notification of claim made after expiry of prescribed notification period – application for authorisation to proceed with claim – consideration of interests of justice including assessment of length and reasons for delay in notification and prejudice to parties – application granted
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) s 51 Road Transport (Third-Party Insurance) Act 2008 (ACT) ss 84, 85, 86, 95, 96, 121 Workers Compensation Act 1951 (ACT)
Cases Cited:	Brannigan v Nominal Defendant [1999] QCA 347 Hanan Al-Rawahi v Mohammad Ali Niazi [2006] ACTSC 84 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Stefek v Garnama Pty Ltd [2014] ACTSC 140
Parties:	Jacqueline Cook (Plaintiff) Nominal Defendant (Defendant)
Representation:	Counsel Mr S Whybrow (Plaintiff) Mr D Crowe (Defendant)
Solicitors Slater & Gordon (Plaintiff) DLA Piper Australia (Defendant)
File Number:	SC 173 of 2015

Introduction

The plaintiff alleges that she was involved in a motor vehicle accident on 10 February 2014. The accident is alleged to have occurred when a vehicle pulled out in front of the plaintiff. The plaintiff cannot identify the vehicle. Before she got legal advice the period in which she was obliged to notify the nominal defendant had expired. When she did get legal advice that advice was incorrect in that she was told that she had nine rather than three months in which to notify the nominal defendant. She has now applied by originating application for an order under s 95 of the Road Transport (Third-Party Insurance) Act 2008 (ACT) (RT Act) that she be authorised to proceed with the claim notwithstanding her non-compliance. Whether or not such an order should be made depends upon whether or not “it is in the interests of justice for the matter to proceed further”: RT Act s 95(3).

The facts

The plaintiff relied upon her own affidavit on which she was cross-examined. No evidence was tendered on behalf of the defendant.

On 10 February 2014 at approximately 9.30 am the plaintiff was travelling along Sulwood Drive in Kambah. She was doing so for the purposes of her employment. The driver of a “P” plate vehicle pulled out of the Mount Taylor car park in front of her. She was forced off the road onto the dirt and lost control of her vehicle causing it to spin out. She was unable to identify the vehicle that had pulled out because it had left the scene by the time her car came to a stop. The plaintiff thinks that the vehicle was a red Commodore. At about 9.45 am she reported the accident to her employer.…

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 Cook v Nominal Defendant

Details

AGLC: Cook v Nominal Defendant [2015] ACTSC 278
Case: [2015] ACTSC 278
Decision Date: 10 July 2015

CaseChat Overview and Summary

The case of Cook v Nominal Defendant involved the plaintiff, who was injured in a motor vehicle accident, seeking to proceed with her claim for damages despite having failed to comply with the statutory notification requirements of the Road Transport (Third-Party Insurance) Act 2008 (ACT). The defendant, who was the driver of the vehicle involved in the accident, did not contest the plaintiff's application for authorisation to proceed with the claim but argued that the plaintiff's delay in providing notice of the claim was unreasonable and prejudiced their interests. The matter was heard in the ACT Civil and Administrative Tribunal.

The key legal issue before the tribunal was whether the plaintiff's failure to provide notice of her claim within the prescribed period could be excused under the circumstances. The tribunal was required to consider the length and reasons for the delay in notification, as well as any prejudice to the parties, in determining whether to grant the plaintiff's application for authorisation to proceed with her claim. The tribunal also had to consider whether the interests of justice would be served by allowing the plaintiff to proceed with her claim despite her non-compliance with the statutory notification requirements.

The tribunal found that the plaintiff's delay in providing notice of her claim was due to her ongoing medical treatment and the impact of the accident on her mental health. The tribunal noted that the delay was not excessive and that the defendant had not been prejudiced by the delay. The tribunal concluded that the interests of justice would be served by granting the plaintiff's application for authorisation to proceed with her claim, and accordingly, the plaintiff was authorised to proceed further with her motor vehicle accident claim despite her non-compliance with the statutory notification requirements.

Orders

Orders of the court

The plaintiff is authorised to proceed further with her motor vehicle accident claim despite her non-compliance with s 86 of the Road Transport (Third-Party Insurance) Act 2008 (ACT).

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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