Cook v Nominal Defendant
[2015] ACTSC 278
•10 July 2015
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 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. She ceased work at 11.00 am and at 2.00 pm presented herself to the Canberra Hospital Emergency Department complaining of neck pain following the accident. The record from the Emergency Department provides a contemporaneous record of the plaintiff’s version of events: “43 year old female presented to Emergency following non-impact MVA at 60 km/hr. Swerved to miss car and spun on dirt on side of road. Applied breaks [sic] and hit head on back of seat.”
Her employer made a claim on its workers’ compensation insurer. On or about 12 February 2014 the plaintiff contacted ACT policing by phone in an attempt to report the accident. She described the accident including the fact that there was no property damage and that she could not identify the other vehicle. She was told that there was no point in reporting the accident. Subsequently, when the issue of her notification arose she attempted to obtain corroborative evidence of the making of the call but had not made the call on her mobile phone and hence was unable to obtain data from that source. When she approached police seeking a record arising from her telephone conversation she was told that there was no record and that she may have been speaking to a volunteer rather than a police officer. She only subsequently became aware of the capacity to report a motor vehicle accident online.
On 28 February 2014 she submitted a workers’ compensation claim in relation to the motor vehicle accident.
On 17 February 2014 the plaintiff consulted her general practitioner as she was still sore in the upper neck and by then had lower back pain. Her description of the incident to her general practitioner corroborates the evidence about what occurred during the accident.
The plaintiff returned to work on 20 February 2014 with “a partial capacity to complete [her] work duties”.
On 28 February 2014 she submitted a workers’ compensation claim to her workers’ compensation insurer.
On 15 May 2014 she sought legal advice and was advised that she had nine months from the date of the accident to notify the relevant insurer. This advice was correct if the claim was to be made against a CTP insurer within the meaning of the RT Act but incorrect if the claim was to be made against the nominal defendant.
She was also advised that she had three years from the date of the accident to commence proceedings.
In September 2014 her workers’ compensation claim was declined by her workers’ compensation insurer. She commenced proceedings for arbitration under the Workers Compensation Act 1951 (ACT) and ultimately received a settlement of some $122,000.
On 10 November 2014 she instructed her solicitor to give notice of a motor vehicle accident claim to the nominal defendant and the notice was given that day. The nominal defendant, by letter dated 17 November 2014, gave notice that in its view the plaintiff’s notice did not comply with s 84 or s 86 of the RT Act; that it was not satisfied that due search and enquiry had been performed and hence not satisfied that the nominal defendant was a proper defendant; noted that the accident was not reported to police; and noted the operation of s 121 of the RT Act.
The letter requested information concerning the plaintiff’s reasonable excuse for the delay in lodgment, evidence of the steps taken to identify the vehicle at fault and a copy of an Australian Federal Police report.
Notwithstanding some further correspondence the nominal defendant remained unsatisfied that the claim complied with the terms of the RT Act.
The relevant provisions of the RT Act
The relevant provisions of the RT Act are ss 84, 85, 86, 95 and 96 which are as follows:
84 Notice of claim
(1)Before a claimant for a motor accident claim brings a court proceeding based on the claim against a respondent for the claim, the claimant must give the respondent written notice of the claim (the notice of claim).
...
85 Time for giving notice of claim—CTP insurer
(1)This section applies if the insurer for a motor accident claim is the CTP insurer for the motor vehicle for the claim.
(2)The notice of claim must be given under section 84 not later than the earlier of the following days:
(a) the day that is 9 months after—
(i)the day the motor accident for the motor accident claim happened; or
(ii)if symptoms of the personal injury caused by the motor accident are not immediately apparent—the day symptoms of the personal injury first appear;
(b) the day that is 1 month after the later of the following days:
(i)the day the claimant first instructs a lawyer to provide advice about seeking damages for the personal injury;
(ii) the day the respondent is identified.
NoteHowever, the time for giving a notice of claim for a claimant with a legal disability begins on the day after the day the claimant’s legal disability ends (see s 98).
(3)If the claimant does not give the notice of claim as required in subsection (2), a reasonable excuse for the delay must be given in the notice or by separate written notice to the respondent.
(4)Without limiting subsection (3), an excuse is reasonable if the excuse is prescribed by regulation.
Note For waiver of compliance see s 95.
86 Time for giving notice of claim—nominal defendant
(1)This section applies if the insurer for the motor accident claim is the nominal defendant.
(2)The notice of claim must be given under section 84 not later than 3 months after the day the motor accident for the motor accident claim happened.
NoteHowever, the time for giving a notice of claim for a claimant with a legal disability begins on the day after the day the claimant’s legal disability ends (see s 98).
(3)If the claimant does not give the notice of claim as required in subsection (2), a reasonable excuse for the delay must be given in the notice or by separate written notice to the nominal defendant.
(4)Without limiting subsection (3), an excuse is reasonable if the excuse is prescribed by regulation.
Note For waiver of compliance see s 95.
95 Noncomplying notice of claim may be complying notice of claim
(1)This section applies if the claimant for a motor accident claim gives a respondent for the claim a notice of claim that is not a complying notice of claim.
Note Complying notice of claim is defined in s 76.
(2)The claimant is taken to have given the respondent a complying notice of claim if—
(a) the respondent has told the claimant, in writing—
(i)under section 90 (2) (a) or section 90 (4) (a) (Response to notice of claim), that the respondent is satisfied that the notice of claim is a complying notice of claim; or
(ii)under section 90 (2) (b) or section 90 (4) (a) that the respondent waives any noncompliance; or
(iii)under section 90 (4) (a), that the respondent is satisfied with the action the claimant has taken to remedy the noncompliance; or
(b)the respondent has not responded to the claimant as required and is conclusively presumed, under section 90 (3), to be satisfied the notice is a complying notice of claim; or
(c) the court, by order, on application by the claimant—
(i)declares that the claimant has remedied the noncompliance; or
(ii)authorises the claimant to proceed further with the motor accident claim despite the noncompliance.
(3)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.
(4)An order of the court under subsection (2) (c) may be made on the conditions that the court considers necessary or appropriate to minimise prejudice to a respondent because of the claimant’s noncompliance.
(5)The claimant is taken to have given, and the respondent is taken to have received, the complying notice of claim, on the day—
(a) for subsection (2) (a)—the respondent tells the claimant, in writing; or
(b)for subsection (2) (b)—that is the required day under section 90 for the presumption; or
(c)for subsection (2) (c)—the court makes the declaration or gives the authorisation.
96 Claimant not to proceed without complying notice of claim
(1) This section applies if the claimant for a motor accident claim—
(a)does not give the respondent for the motor accident claim a complying notice of claim; or
(b)is not taken to have given the respondent for the motor accident claim a complying notice of claim.
NoteThe circumstances in which a claimant is taken to have given a respondent a complying notice of claim are in s 95.
(2)The claimant cannot proceed with the motor accident claim.
The plaintiff seeks to obtain an authorisation under s 95(2)(c)(ii) to proceed further with the motor accident claim despite her non-compliance with the time requirements in relation to the giving of notice of her claim to the nominal defendant. Section 95(3) permits the Court to authorise that course “only if it is in the interests of justice for the matter to proceed further”. An order authorising the plaintiff to proceed further may be made on conditions: s 95(4).
Therefore the issue to be determined is whether or not it is in the interests of justice for the matter to proceed further.
Legislative history
The legislative history of s 95(3) provides relevant background to the interpretation of the provision and to any decision about whether or not it is in the interests of justice for the plaintiff’s claim to proceed.
As originally enacted s 95(3) provided:
(3)However, if a motor accident claim against the nominal defendant is barred under section 86 (Time for giving notice of claim—nominal defendant)—
(a)the nominal defendant must not waive compliance with the 3-month time limit for giving the notice of claim; and
(b)the court cannot authorise the claimant to proceed further with the motor accident claim despite the noncompliance with the 3-month time limit for giving the notice of claim.
That provision obviously provided an inflexible bar to proceedings if the relevant notice was not given in time.
During the debates upon the bill that became the RT Act one of the opposition members of the Legislative Assembly adopted concerns that had been expressed by the legal profession in relation to the inflexible bar upon proceedings if there was a failure to notify the nominal defendant within three months. In particular the practical issue that was raised was that police reports could take longer than three months to obtain and that would make it difficult to properly identify whether a claim should be brought against the nominal defendant in the time permitted for notice to be given: see Debates of the Legislative Assembly for the ACT, 20 August 2008 at 3300-3301. As a consequence of these concerns the then Chief Minister gave an undertaking to address the issues if necessary: see Debates of the Legislative Assembly for the ACT, 21 August 2008 at 3496. Shortly prior to the commencement of the RT Act the then Treasurer introduced the Road Transport (Third-Party Insurance) Amendment Bill 2008 (No 2) which would amend s 95(3) so as to put it in its present form. The bill was supported by the government, the opposition and the Greens members of the Legislative Assembly: see Debates of the Legislative Assembly for the ACT, 9 December 2008 at 144-147, 11 December 2008 at 444-445. The two circumstances specifically addressed in the Legislative Assembly debates where some flexibility would be required were first where the police accident report was not provided within the three month period and second a circumstance where a prospective claimant filed the claim with an insurer that incorrectly described the registration number plate of a vehicle involved in the accident and the vehicle turned out not to be insured and the claimant was not advised by the insurer within three months of the accident. The debates recognised that the amendments provided a two tiered approach which would permit the claimant to establish a reasonable excuse or to apply to the Court for an order permitting the claimant to proceed.
While clearly the debates of the Legislative Assembly focused on two particular circumstances in which there might be perceived to be some injustice in having an inflexible time limit for the notification of the nominal defendant, the terms of the statute which the legislature enacted are not confined to those circumstances and permit an authorisation to proceed whenever it is in the interests of justice to so order.
Submissions
Mr Whybrow who appeared for the plaintiff submitted that the three month period had expired even before the plaintiff had first had the opportunity to obtain legal advice and that when she did obtain legal advice that advice was wrong. He submitted that the delay in notification was not deliberate and occurred in a context where the plaintiff believed that she would get better over time. He submitted that the manner of reporting to the police was reasonable in the circumstances. He submitted that there would be no relevant prejudice to the nominal defendant in authorising the plaintiff to proceed having regard to the continuity of medical records from the plaintiff’s first report to the hospital on the day of the accident. He drew my attention to the decision in Hanan Al-Rawahi v Mohammad Ali Niazi [2006] ACTSC 84 which dealt with the exercise of a power to authorise a claimant to proceed notwithstanding that the claimant had not given complying notice of the claim under s 51 of the Civil Law (Wrongs) Act 2002 (ACT). While in that case the statute did not expressly impose a requirement that permission should only be given if it was in the interests of justice to do so, Master Harper, in effect, adopted such an approach: see [38]. Finally he submitted that even if the incident had been reported within the three month period the likelihood was that the motor vehicle at fault would have remained unidentified. He also submitted that it was relevant to the interests of justice that if the plaintiff was permitted to proceed then her employer’s workers’ compensation insurer, which had settled her workers’ compensation claim, would have an entitlement to repayment in the event that the plaintiff’s claim against the nominal defendant was successful.
Mr Crowe who appeared for the defendant submitted that the plaintiff had made a deliberate and informed decision based on legal advice not to notify the nominal defendant under s 86 of the RT Act. In those circumstances he submitted that the remarks of Ipp AJA in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 at 224-226 in relation to the significance of a deliberate decision to allow a limitation period to expire were applicable in the present case. He submitted that it was significant that the nominal defendant was a statutory fund rather than a commercial insurer and that it was that difference which gave rise to the legislature’s different treatment of notification requirements as between the nominal defendant and CTP insurers. He referred to the comments made by de Jersey CJ in Brannigan v Nominal Defendant [1999] QCA 347 at [15] where his Honour said:
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.
He submitted that in balancing the interests of justice it was important to note that if the plaintiff was not authorised to proceed further she would not miss out because she had recovered workers’ compensation entitlements in relation to the consequences of the accident. Finally he submitted that although actual prejudice was not asserted, it might be inferred that had notice been given earlier there were steps that might have been taken to attempt to identify the vehicle in question or witnesses to the incident.
Should the plaintiff be authorised to proceed?
In my view the following matters are the most significant matters to consider in determining where the interests of justice lie.
Length and reasons for the delay: Notification was given nine months after the incident is alleged to have occurred when it should have been given three months after the incident. Therefore it was six months late. In my view the conduct of the plaintiff was not unreasonable and the reasons for her delay are properly explained as follows.
(a)The plaintiff was only aware of the existence of an obligation to notify the nominal defendant after the three month period had in fact expired.
(b)It does not appear to me to be unreasonable that laypersons such as the plaintiff are unaware of such strict notification requirements.
(c)Further, in that state of ignorance, I consider it not unreasonable to have only sought legal advice shortly after the expiry of the three month period.
(d)When she did obtain legal advice that advice was incorrect, identifying a nine month rather than a three month period in which to notify the nominal defendant. There is no explanation as to when she was first advised that an error had been made in the advice that she had been given although it is clear that the solicitor who gave the advice continued to act for her at least up until the time when notice was given to the nominal defendant.
Prejudice to the plaintiff if authorisation is not given: It is relevant to take into account the fact that if authorisation is refused then the plaintiff will not be without a remedy having already had the benefit of workers’ compensation proceedings which have been settled and that, having regard to the terms of the advice that she was given, she would be likely to have a cause of action against the solicitor who gave her the erroneous advice. However, as recognised in the context of extension of limitation provisions, it is generally the primary wrongdoer that should be looked to for compensation although in some cases the proper balance may mean that that is not appropriate: see Stefek v Garnama Pty Ltd [2014] ACTSC 140 at [26]. In the present case the nominal defendant is the representative of the primary wrongdoer.
Prejudice to the defendant if authorisation is given: Having regard to her early reporting of her injuries and the availability of medical records relating to her condition, the potential for prejudice lies in relation to increased difficulties, so far as the defendant is concerned, in attempting to identify the vehicle responsible for the incident or to locate any persons who may have been witnesses to the incident. While I accept that this must be a factor to be given some weight, in the present circumstances it appears that the realistic prospects of identifying the vehicle or obtaining witnesses to the event would not be great even if notification had been given immediately. Although no emphasis was placed on the issue in the defendant’s submissions, there is also some potential prejudice from the informal manner in which notification to the Australian Federal Police of the accident was given. However on the evidence before me I cannot infer any material prejudice as there is no evidence that had the notification been given more formally there would have been any attempt on the part of the Australian Federal Police to investigate the circumstances of the accident so as to permit the identification of the vehicle involved or any witnesses to the accident.
Other matters: Although the plaintiff’s former employer’s workers’ compensation insurer may stand to benefit from a successful claim by the plaintiff against the nominal defendant I do not consider that this is a matter to be given significant weight in determining where the interests of justice lie. I have considered the comments of Ipp AJA in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 which are based upon a deliberate decision to allow a limitation period to expire. I am not satisfied that the plaintiff can be said to have made a deliberate decision to permit the notification period to expire. She was unaware of the existence of the notification period prior to its expiry. Following its expiry she got incorrect advice as to the period of notification. I do not consider a decision made in ignorance of the period of notification or on the basis of incorrect advice as to the period of notification to be a deliberate decision to allow the period of notification to expire. Therefore I do not consider that any decision not to immediately notify the nominal defendant after having first obtained legal advice is a powerful factor against authorising the claim to proceed. In those circumstances I do not need to decide what weight should be given to the remarks of Ipp AJA in a context different to that with which his Honour was dealing, namely involving an obligation to give notice of a claim rather than involving the expiry of a limitation period that bars a cause of action.
Whether or not the interests of justice favour the granting of authorisation to the plaintiff to proceed involves an exercise of judgment that balances the various matters that have been put forward. In my judgment the interests of justice favour granting authorisation for the plaintiff to proceed because she has an arguable case, her conduct in relation to her claim has been reasonable, even if it did involve non-compliance with the strict terms of the statute, and in the circumstances there can only be minor or nominal prejudice assumed to the interests of the nominal defendant by reason of the notification being made nine months after the accident.
Therefore I will make an order authorising the plaintiff to proceed further with her motor vehicle accident claim despite her non-compliance with s 86 of the RT Act and I will hear the parties in relation to costs.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 14 September 2015 |
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