Dordevic v Moore
[2017] ACTSC 320
•15 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Dordevic v Moore |
Citation: | [2017] ACTSC 320 |
Hearing Date: | 16 October 2017 |
DecisionDate: | 15 December 2017 |
Before: | Burns J |
Decision: | See [60] |
Catchwords: | PERSONAL INJURY – Motor vehicle accident – notification of claim made after expiry of prescribed notification period – application to proceed with claim despite non-compliance – remedy of non-compliance – whether it is in the interests of justice to proceed with claim – whether there was reasonable excuse for delay - whether the delay caused prejudice to the defendant |
Legislation Cited: | Limitation Act 1985 (ACT) ss 11, 16A, 36 Motor Accidents Insurance Act 1998 (Qld) Road Transport (Third Party Insurance) Regulation 2008 (ACT) |
Texts Cited: | J. B. Sykes (ed), The Concise Oxford Dictionary (Oxford University Press, 6th ed, 1976) Explanatory Statement, Road Transport (Third Party Insurance) Bill 2007 (ACT) Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 22 November 2007 |
Cases Cited: | Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Cook v Nominal Defendant [2015] ACTSC 278; 11 ACTLR 13 Weeks v Nominal Defendant [2005] QCA 118; 43 MVR 417 |
Parties: | Vesna Dordevic (Plaintiff) Rachel Louise Moore (First Defendant) Kidane Belay (Second Defendant) Adam Radic (Third Defendant) Insurance Australia Limited t/as NRMA Insurance ACN 000 016 722 (Fourth Defendant) |
Representation: | Counsel Ms K Musgrove (Plaintiff) Mr D Crowe (First, Second, Third and Fourth Defendants) |
| Solicitors Blumers Lawyers (Plaintiff) Moray and Agnew (First, Second, Third and Fourth Defendants) | |
File Number: | SC 320 of 2017 |
Burns J:
By an Amended Application lodged 11 October 2017 the plaintiff, Vesna Dordevic, seeks the following orders:
1.That the plaintiff is authorised to proceed with the motor accident claim despite non‑compliance pursuant to section 95(2)(c) of the Road Transport (Third Party Insurance) Act 2008 (ACT).
2.The plaintiff have leave to commence these proceedings despite non-compliance with Chapter 4 of the Road Transport (Third Party Insurance) Act 2008 (ACT).
3.That the proceedings be stayed until there has been compliance with Chapter 4 of the Road Transport (Third Party Insurance) Act 2008 (ACT).
The defendants oppose the making of order 1, but in the event it is made do not oppose the making of orders 2 and 3.
The plaintiff alleges that she sustained personal injuries in a motor vehicle accident on her way to work on 28 March 2013.
The plaintiff swore an affidavit dated 11 October 2017 in support of the application. At the time of the accident she was working for APIS Consulting Group in Yarralumla as a senior consultant and project manager. The plaintiff said that she went to work after the accident and advised her supervisor, Paul Pollard, of the car accident. He advised her to complete an incident report form, which she did that day. She said that she signed this form with Carol Davies from human resources on 18 April 2013. A copy of the incident report form was annexed to her affidavit. The form indicates that NRMA was informed of the accident, and the car was taken into be repaired. I infer from this that the vehicle driven by the plaintiff at the time of the accident was one which belonged to APIS, and which was insured by NRMA for property damage. About two months later, on 13 June 2013, she saw her general practitioner, Dr Lo, at Florey Medical Practice as she had a cold. She deposed to having told Dr Lo about the car accident and that her neck, shoulder and back were sore. She had subsequently been informed that Dr Lo did not record her report of the car accident in his notes.
The plaintiff said that at this stage she was not aware that she could make any claim for her injuries other than through workers compensation. She chose not to make the workers compensation claim at that time, as she believed that her injuries would resolve. She continued working, but found she had pain in her shoulder increasing over the next few years, until around September 2015 when it became so bad that her right arm had painful pins and needles to her fingertips, and she thought she may be having a stroke. At that time she determined to see her doctor.
On a 2 September 2015, the plaintiff went to her general practitioner, Dr Tang, at Florey Medical Practice and reported the pain in her right shoulder. She said that she told Dr Tang that she had been in a car accident a few years earlier. He ordered an x-ray and ultrasound of her ribs. These procedures were carried out on 10 September 2015. It appears that the plaintiff did not return to see Dr Tang for about six months after these procedures were carried out. In her affidavit she said that she could not recall why this was the case, although she was very busy at work at that time.
On 8 March 2016 she returned to see Dr Tang. He ordered an MRI of her shoulder, which she underwent on 2 May 2016. He also referred her to Dr Bisley, an exercise physician, who she saw on 10 May 2016. The plaintiff said that around this time her medical expenses began to grow. She spoke to Joanne Hamilton in human resources to ask if she could get any assistance with her medical bills as she had been injured on her way to work. Ms Hamilton directed her to obtain a claim form from another person, Yvette Alcock. Ms Alcock gave the plaintiff’s claim forms on 25 May 2016.
The plaintiff said that on 2 June 2016, her shoulder pain was so bad that she was unable to go to work. She called in sick on 2 and 3 June 2016. On 7 June 2016 the plaintiff saw Dr Tang and was given a medical certificate to cover her absence from work on 2 and 3 June 2016. She submitted this certificate with her claim form.
The plaintiff deposed to having completed CGU claim forms on 7 June 2016 and returning them to Ms Alcock together with the medical certificate from Dr Tang. I understand CGU to be her employer’s workers compensation insurer. At this stage, the plaintiff said she was still unaware that she was able to make a claim other than for workers compensation.
The plaintiff continued receiving treatment from Dr Bisley between June and September 2016, including a cortisone injection on 15 July 2016. She returned to work, which she said she was able to manage with some difficulty. During this period she said she was having increased problems with headaches, shoulder pain and back pain. Her hip was also starting to cause her pain. She said that she struggled to carry things like her laptop and paperwork. The headaches were causing her to feel “foggy” and not function at her best.
11. On 25 August 2016, the plaintiff underwent a medico-legal examination with Dr Wallace, arranged by CGU. After this examination, she received a letter from CGU dated 22 September 2016 declining her workers compensation claim. At this point, she decided to obtain legal advice and contacted Blumers Lawyers (Blumers). She attended a meeting at Blumers on 14 October 2016 and met with two solicitors, Ms Burr and Ms Teys. At this meeting she was advised that she could make a separate claim through compulsory third party insurance (CTP). She said that this was the first time she was aware of her rights to make such a claim. She was also advised that the claim was out of time, as claim forms had not been submitted and more than three years had passed. The plaintiff said that this was the first time she was made aware that time limits applied to making a claim for personal injuries. She was further advised that she might be able to extend the three-year limitation period as she had been on her way to work when the car accident occurred. She was advised to ask her doctor to complete a Motor Accident Medical Report (MAMR) as part of the CTP claim process.
12. The plaintiff said that on 26 October 2016 she returned to Dr Bisley about her ongoing hip and lower back pain, as well as her shoulder pain. She deposed to having had a hip replacement in 2005 and hip dysplasia as a child. Dr Bisley referred her to an orthopaedic surgeon with respect to her hip pain. On 1 November 2016 she saw the orthopaedic surgeon, who sent her to have blood tests and a CT scan so that he could decide whether she would need to have another hip replacement.
13. The plaintiff said that on or before 2 November 2016 she gave Blumers instructions to represent her in relation to both her workers compensation claim and her CTP claim.
14. On a 2 November 2016, the plaintiff was called to a meeting with her managers at APIS and received a letter alleging that she was underperforming and giving her the option of either taking a redundancy or completing six weeks of performance management. She did not wish to take either option, but wanted to keep her job. On 3 November 2016 she met with Ms Teys at Blumers and was advised to seek advice from an employment law specialist. The plaintiff contacted an employment law firm, Badgery & Rafferty.
15. On 3 November 2016, the plaintiff also went to her doctor and obtained a medical certificate saying she was unfit for work. He also referred her to a psychologist. She gave the medical certificate to APIS, which gave her an extension on the length of time she had to give it a decision about the redundancy or performance management options.
16. The plaintiff said that on 6 November 2016 she went to her doctor to complete the MAMR. A copy of the MAMR is annexed to the plaintiff’s affidavit. In the top right hand corner of the MAMR the plaintiff has written “Provided to Employer”. In her affidavit, however, the plaintiff said that she now believes that she sent it to MLC for income protection payments, but did not give it to anyone else.
17. On 14 November 2016, the plaintiff was contacted by Blumers and told that as NRMA were not on notice of her claim, she would not qualify for an extension of time for a CTP claim. She deposed to her understanding that the advice given by Blumers was to only pursue the workers compensation claim, so she gave instructions to that effect. Because of this advice, she did not provide the MAMR to Blumers. She said that she then forgot about it, and was not asked about it again until August 2017.
18. On a 8 December 2016 the plaintiff resigned from APIS and took a termination package. She said that she has not worked since, and, as at the date of swearing her affidavit, was currently receiving income protection payments.
19. On 20 January 2017, the plaintiff attended an appointment arranged by Blumers with an orthopaedic surgeon, Dr Burgess. He told her that she may need surgery on her neck and her shoulder. On 27 February 2017, she discussed the report of Dr Burgess with Blumers. It was decided that she should see a shoulder surgeon and a neurosurgeon before filing an application for arbitration to dispute the decision made by CGU in the workers compensation claim. On 14 February 2017, the plaintiff attended her general practitioner and obtained referrals to a shoulder surgeon and a neurosurgeon.
20. On 20 March 2017, the plaintiff saw Dr Colin Andrews, a neurologist, for a nerve conduction study, which was reported as normal. He referred her for an MRI to her cervical and lumbar spine, which she underwent on 29 March 2017. On 5 April 2017 she returned to Dr Andrews who recommended a nerve block, which she underwent on 27 June 2017.
21. On 25 August 2017, the plaintiff attended a meeting at Blumers where she was advised that there had been a review of the earlier advice given to her by Blumers that she would not qualify for an extension of time to pursue a CTP claim, and her lawyers now believed that she may still be able to seek an extension of time to make a CTP claim for damages arising out of the car accident. The plaintiff says that she instructed Blumers to do so. The plaintiff deposed to having forgotten that she had already obtained a MAMR from her general practitioner, so she returned to her general practitioner on 29 August 2017 and obtained another MAMR.
22. The plaintiff said that she was not able to book an appointment with her shoulder surgeon until 23 October 2017. The plaintiff also said that she plans to have right hip replacement surgery on 20 November 2017 at Goulburn Hospital. She anticipated being in hospital for approximately seven or eight days, followed by eight to ten weeks of recovery. She believed that she would not be able to walk without support until mid-February 2018. After that surgery, she would be placed on another 12 month waiting list to have her left hip replaced.
The plaintiff also relied upon affidavits affirmed by Amy Charlotte Burr on 1 September 2017 and 11 October 2017. Ms Burr is a solicitor at Blumers with responsibility for the plaintiff’s claims. In her first affidavit, Ms Burr referred to the lodging of the application seeking leave to commence the proceedings on 24 August 2017, together with a service of that application by post on the NRMA on 31 August 2017. The material served on the NRMA included an unsealed copy of an Originating Claim and Statement of Claim. As at the date the affidavit was affirmed, Ms Burr had received, on 11 November 2016, a letter from NRMA indicating that they would resist any proceedings issued in the matter, and she presumed that they would oppose the present application.
In her second affidavit, Ms Burr stated that the plaintiff first contacted her firm on 11 October 2016 and spoke to Ms Ellen Teys, an employed solicitor. This was approximately three and a half years after the accident. At that time the plaintiff told Ms Teys that she had submitted a workers compensation claim which had recently been declined by her employer’s insurer. She had not submitted a CTP claim. On 14 October 2016 Ms Burr met with the plaintiff and advised her that her claim was out of time, however Blumers would file proceedings on her behalf and seek an extension of the limitation period. They advised the plaintiff to obtain a MAMR as soon as possible. They received written instructions to represent the plaintiff on 2 November 2016. On 3 November 2016, the plaintiff attended Blumers in a distressed state to discuss an employment matter. She met with Ms Teys who referred her to an employment law firm, Badgery & Rafferty. The plaintiff again attended Blumers on 8 November 2016, at which time she met with Ms Teys and provided background information as well as instructions to draft and file proceedings for her CTP claim, along with an application for arbitration seeking reinstatement of the workers compensation payments. At that meeting the plaintiff completed the Notice of Claim form and the Motor Accident Notification Form. Unfortunately, she had not brought the MAMR with her. On 8 November 2016, Blumers sent a letter by email to NRMA enclosing the forms and a police report. On 9 November 2016 Blumers requested Statements of Registration for relevant vehicles from ACT Government Road Transport Services. These statements were received on 10 November 2016.
25. On 11 November 2016, Ms Teys contacted Madeline Knudsen at CGU workers compensation to enquire whether they had notified NRMA Insurance that they would seek a recovery against NRMA for workers compensation payments made to the plaintiff. Ms Knudsen confirmed that CGU had not yet contacted NRMA in relation to the claim. Based on that information, Ms Burr considered that NRMA was not on notice of the accident. She therefore concluded, erroneously, that there were no arguable grounds on which to seek an extension of the limitation period with respect to the proposed CTP claim, and that the claim should be abandoned. On 14 November 2016, she advised the plaintiff of her conclusion. Blumers accordingly obtained instructions to pursue only the application for arbitration in relation to the plaintiff’s workers compensation claim.
26. On 16 November 2016, Blumers received a letter from NRMA rejecting the plaintiff’s claim, alleging that it was non-compliant and statute barred. The non-compliance alleged was a failure to provide a completed MAMR.
27. Blumers then arranged for the plaintiff to see Dr Burgess, a medico-legal orthopaedic surgeon on 20 January 2017. His report was received on 7 February 2017. Ms Burr and Ms Teys met with the plaintiff on 27 February 2017 to discuss the report of Dr Burgess, and they advised her to see a neurosurgeon and a shoulder surgeon to discuss possible surgical treatment prior to commencing workers compensation proceedings.
28. On 30 March 2017, Blumers received an email from NRMA asking for confirmation of the plaintiff’s instructions in relation to the CTP claim. On 31 March 2017, Ms Teys replied stating that Blumers were not instructed to take the matter any further.
29. On a 6 April 2017, the plaintiff instructed Blumers that she had obtained a referral, but had not yet booked an appointment to see a shoulder specialist. On 11 July 2017, she again advised Blumers that she had still not booked an appointment to see a shoulder specialist. On 1 August 2017, the plaintiff advised that she had booked an appointment with the shoulder specialist soon.
30. On 23 August 2017, Blumers received an email from CGU workers compensation requesting that their anticipated recovery be noted against the negligent party. Ms Burr said that in considering a response to this email, Ms Teys reviewed the decision to abandon the application for an extension of time for the CTP claim and alerted Ms Burr to the fact that their advice to the plaintiff in November 2016 may have been wrong. They met with the plaintiff on 24 August 2017 and explained their error. They obtained instructions to issue proceedings for the CTP claim. They advised the plaintiff to obtain a MAMR as soon as possible. On the afternoon of 24 August 2017 Blumers filed the present application. On 28 August 2017, they sent a letter to NRMA setting out their instructions to proceed with the CTP claim. On 31 August 2017, the plaintiff provided Blumers with a MAMR dated 29 August 2017, as well as one dated 8 November 2016. On the same day, they served the present application on NRMA. By letter dated 21 September 2017, lawyers for the defendant’s stated that they did not consider the claim forwarded by the plaintiff to be a complying claim for the purposes of the Road Transport (Third Party Insurance) Act 2008 (ACT) (the Act), as no reasonable excuse had been provided for the delay in notifying the claim. The lawyers for the defendant invited Blumers to furnish a reasonable excuse for the delay, upon receipt of which NRMA would consider its position for the purposes of s 95 of the Act. By letter dated 21 September 2017, Blumers advised the defendants’ lawyers that the explanation for the plaintiff’s delay in commencing proceedings was that she was unaware of her entitlement to make a claim for damages for her injuries.
32. The following provisions of the Act are relevant:
5A Objects
The main objects of this Act are—
(a) to continue and improve the system of compulsory third-party insurance, and the scheme of statutory insurance for uninsured and unidentified vehicles, operating in the ACT; and
(b) to promote competition in setting premiums for compulsory third-party insurance policies; and
(c) to keep the costs of insurance at an affordable level; and
(d) to provide for the licensing and supervision of insurers providing insurance under policies of compulsory third-party insurance; and
(e) to encourage the speedy resolution of personal injury claims resulting from motor accidents; and
(f) to promote and encourage, as far as practicable, the rehabilitation of people who sustain personal injury because of motor accidents; and
(g) to establish and keep a register of motor accident claims to help the administration of the statutory insurance scheme and the detection of fraud; and
(h) to promote measures directed at eliminating or reducing causes of motor accidents and mitigating their results.
…
76 Definitions – ch 4
In this chapter:
complying notice of claim means a notice of claim under section 84 (Notice of claim)… that is given as required under this part.
…
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).
Note 1A proceeding must be brought before the end of the relevant limitation period under the Limitation Act 1985.
Note 2If a form is approved under s 276 for a notice of claim, the form must be used.
Note 3For how documents may be given, see the Legislation Act, pt 19.5.
(2) The notice of claim must—
(a) contain a statement of the information prescribed by regulation; and
(b) authorise each respondent for the motor accident claim to have access to the records and sources of information relevant to the claim that are prescribed by regulation; and
(c) be accompanied by any documents prescribed by regulation; and
(d) if the claimant has not given the respondent a motor accident notification form and a motor accident medical report for the motor accident for the motor accident claim—be accompanied by a motor accident notification form and a motor accident medical report for the motor accident for the motor accident 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.
Note However, 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.
…
88 Preliminary response to claimant
(1) A respondent must, in writing not later than 1 month after the day the respondent receives a notice of claim under section 84—
(a) respond to the claimant under section 90; or
(b) if the respondent cannot decide, on the information in the notice, whether the respondent is properly a respondent for the claim—give the claimant a written notice about the further information the respondent reasonably needs to make that decision; or
(c) if the respondent believes that he or she is not properly a respondent for the claim—give the claimant a written notice to that effect, indicating—
(i)the reasons for the belief; and
(ii)any information the respondent has that may help the claimant identify someone who may be a respondent for the claim.
Note For how documents may be given, see the Legislation Act, pt 19.5.
(2) A claimant given a written notice under subsection (1) (b) must, not later than 1 month after the day the claimant is given the notice—
(a) give the respondent the further information indicated in the notice; or
(b) tell the respondent, in writing, that the claimant—
(i)considers the respondent to be properly a respondent for the claim; and
(ii)requires the respondent to respond to the claimant under section 90.
(3) Not later than 1 month after the day the respondent is given the information under subsection (2) (a), the respondent must, having regard to the information—
(a) respond to the claimant under section 90; or
(b) if the respondent believes that he or she is not properly a respondent for the claim, give the claimant a written notice to that effect, indicating—
(i)the reasons for the belief; and
(ii)any information the respondent has that may help the claimant identify someone who may be a respondent for the claim.
(4) If the claimant is given notice under subsection (1) (c) or subsection (3) (b) that the respondent is not properly a respondent for the motor accident claim, the claimant must, not later than 1 month after the day the claimant is given the notice, tell the respondent, in writing, that the claimant—
(a) accepts that the respondent is not properly a respondent for the claim; or
(b) considers the respondent to be properly a respondent for the claim and requires the respondent to respond to the claimant under section 90.
(5) Acknowledgement given to the respondent under subsection (4) (a) does not prevent the claimant from later giving the respondent another notice of claim under section 84.
…
90 Response to notice of claim
(1) This section applies if a respondent—
(a) considers the respondent to be properly a respondent for a motor accident claim; or
(b) is told under section 88 (2) (b) or section 88 (4) (b) (Preliminary response to claimant) that the claimant considers the respondent is properly a respondent for a motor accident claim.
(2) The respondent must, not later than the required day, give the claimant a written notice (a response)—
(a) stating whether the respondent is satisfied that the notice of claim is a complying notice of claim; and
(b) if the respondent is not satisfied that the notice of claim is a complying notice of claim—identifying the noncompliance and stating whether the respondent waives compliance; and
(c) if the respondent does not waive compliance—allowing the claimant a reasonable period, of at least 1 month, stated in the response to—
(i)satisfy the respondent that the notice of claim is a complying notice of claim; or
(ii)take reasonable action stated in the response to remedy the noncompliance; and
(d) stating whether the insurer for the motor accident claim is prepared (without admitting liability) to meet the reasonable and appropriate costs of the claimant’s rehabilitation.
Note 1 Further provisions about rehabilitation are in pt 4.6.
Note 2 For how documents may be given, see the Legislation Act, pt 19.5.
(3) If the respondent does not give a response by the required day, the respondent is conclusively presumed to be satisfied that the notice of claim is a complying notice of claim.
(4) If subsection (2) (c) applies, the respondent must, not later than 1 month after the day the period stated in the response ends, 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.
(5) In this section:
required day means—
(a) if the respondent responds directly to the claimant under this section as mentioned in section 88 (1) (a)—the day applying under section 88 (1); and
(b) in any other case—the later of the following:
(i)if the respondent gives notice to the claimant under section 88 (3) (a)—1 month after the day the respondent is given the further information under section 88 (2) (a);
(ii)if the claimant tells the respondent under section 88 (2) (b) or section 88 (4) (b) that the claimant considers the respondent is properly a respondent for the motor accident claim—1 month after the day the claimant tells the respondent under that paragraph.
…
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.
Note The 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.
33. The following provisions of the Limitation Act 1985 (ACT) (the Limitation Act) are also relevant:
11 General
(1) Subject to subsection (2), an action on any cause of action is not maintainable if brought after the end of a limitation period of 6 years running from the date when the cause of action first accrues to the plaintiff or to a person through whom he or she claims.
(2) Subsection (1) does not apply to a cause of action in relation to which another limitation period is provided by this Act.
…
16A Claims for common law compensation for workers compensation
(1) This section applies to a cause of action, other than a cause of action that is a claim for compensation under the Workers Compensation Act 1951, if—
(a) the cause of action relates to a personal injury that is a compensable injury under the Workers Compensation Act 1951; and
(b) a claim could be, or could have been, made in relation to the cause of action under the Workers Compensation Act 1951 if notice of the injury had been given as required under that Act.
(2) The action is not maintainable if brought 3 or more years after the day the injury happened.
…
36 Personal injuries
(1) This section applies to any action for damages if the damages claimed consist of or include damages in relation to personal injuries to any person.
(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it considers appropriate, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for the period that it determines.
(3) In exercising the powers given to it by subsection (2), a court shall have regard to all the circumstances of the case, including, for example, the following:
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
I the conduct of the defendant after the cause of action accrued to the plaintiff, including the extent (if any) to which the defendant took steps to make available to the plaintiff means of ascertaining facts that were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of actioI(e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice the plaintiff may have received.
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(4) The powers given to a court by subsection (2) may be exercised at any time notwithstanding—
(a) that the limitation period in relation to the relevant cause of action has ended since the cause of action accrued; or
(b) that an action in relation to such personal injuries has been begun.
(5) This section does not apply in relation to a cause of action to which either of the following applies:
(a) section 16B (Other claims for damages for personal injury);
(b) the Civil Law (Wrongs) Act 2002, part 3.1 (Wrongful act or omission causing death).
(6) Also, this section does not apply in relation to the period mentioned in section 30B (2) (Special provision in relation to children—claims relating to health services).
34. The purpose of referring to the provisions of the Limitation Act is simply to demonstrate that any decision I make permitting the plaintiff to proceed with her claim will not necessarily be futile, as barred by the Limitation Act. The Court has a discretion under s 36(2) to extend the period in which the claim may be brought. I note that I am not asked to consider in the present application whether any order under s 36(2) of the Limitation Act should be made.
35. The first issue to determine is whether the plaintiff has given NRMA, as the CTP insurer, a complying notice of claim so as to allow her to proceed with her claim. To be a complying notice of claim, the notice must be one given under s 84 of the Road Transport (Third Party Insurance) Act 2008 (ACT) (the Act) that is given as required under Part 4.2. A notice under s 84 of the Act must contain the information and accompanying documents required by s 84(2).
36. A complying notice of claim is a notice of claim under s 84 that is given as required under Part 4.2 of the Act. The provisions of s 84 govern the required content of a notice of claim in order that it may be a complying notice of claim; in other words, it governs the information which must be provided to the CTP insurer for the claim to be a complying notice of claim. In order to be a complying notice of claim, the notice of claim must also be “given as required” under Part 4.2 of the Act. A further requirement for the giving of the notice of claim is found in s 85 of the Act, which governs the time for the giving of the notice of claim to the CTP insurer.
What, then, does s 85 require? The interpretation of this provision may be approached in two ways. First, it may be seen as a provision whose requirements may be satisfied in two alternative ways: either by the giving of notice within the relevant period prescribed in s 85 (2), or by giving notice outside that period and providing a reasonable excuse for failing to give notice within the relevant period. Secondly, it may be seen as a provision that may only be satisfied by the giving of notice within the relevant time period prescribed by s 85(2), in which case the requirement in s 85(3) that a reasonable excuse by provided where the requirement of s 85(2) is not met is simply a requirement that information be provided to the CTP insurer to enable it to determine whether it will waive non-compliance with s 85(2). In my opinion, the latter interpretation is to be preferred despite an apparently different approach having been taken with regard to provisions of similar effect in the Motor Accidents Insurance Act 1998 (Qld): see Weeks v Nominal Defendant [2005] QCA 118; 43 MVR 417. The Queensland legislation, however, has a significant difference to the Act with which I am concerned, in that it permanently bars any claim against the nominal insurer where there is non-compliance with the notice requirements.
38. In the present case it is therefore clear that the notice given to the CTP insurer by the plaintiff was not a complying notice of claim as it was not given as required under Part 4.2 of the Act, as the notice was not given as required by s 85(2).
A failure to give a CTP insurer a complying notice of claim does not conclusively preclude a plaintiff from proceeding with a motor accident claim. Relevantly for present purposes, s 95(2)(c) provides that this Court may, by order, on application by the plaintiff, either declare that the plaintiff has remedied any non-compliance (s 95(2)(c)(i)) or authorise the plaintiff to proceed further with the claim despite the non-compliance (s 95(2)(c)(ii)). In my opinion, it is the latter provision that is presently relevant, which is supported by the terms of s 95(2) of the Act which provides that where the relevant non‑compliance is the failure to give the notice of claim as required by s 85 the Court may only authorise the plaintiff to proceed further with the claim if it is in the interests of justice for it to proceed further. This approach is also consistent with the practical impossibility of remedying a non-compliance constituted by a failure to meet an inflexible time requirement.
40. It is inherent in the terms of s 85 of the Act that the provision of a reasonable excuse for failing to comply with the time requirements of s 85(2) was intended by the legislature to be sufficient for the CTP insurer, in the absence of other relevant circumstances such as prejudice caused to the CTP insurer by the delay, to waive compliance with those time requirements. The legislative scheme of the Act requires the CTP insurer to give real consideration to the excuse provided by a claimant, and to act reasonably in determining whether a proffered excuse is a reasonable one. The time limits prescribed by s 85 should not be treated as de facto limitation periods. It is appropriate to expand somewhat on this.
41. The term “reasonable excuse” is, unsurprisingly, not defined by the Act, except to the extent that s 85(4) provides that regulations may provide that a particular excuse is a reasonable excuse for the purposes of s 85(3). The Road Transport (Third Party Insurance Regulation 2008 (ACT) does not prescribe any explanation as a reasonable explanation for the purposes of s 85(3). It is therefore necessary to consider the ordinary meaning of the term, or its constituent words.
42. The Concise Oxford Dictionary, 6th edition, defines “excuse”, when used as a noun, as “[a] reason put forward to mitigate or justify an offence, fault etc”. The same dictionary relevantly defines “reasonable” as “2. In accordance with reason; not absurd; within the limits of reason; not greatly more or less than might be expected”. When approached as an exercise in plain English interpretation, these definitions suggest that the test imposed by s 85(3), of providing a reasonable excuse for not complying with the time limits prescribed by s 85(2), is not a stringent one. But as well as the text of s 85(3), it is also necessary to consider the context of the provision.
43. In a different context, in Taikato v The Queen [1996] HCA 28; 186 CLR 454 at 464, a majority of the High Court (Brennan CJ, Toohey, McHugh and Gummow JJ) said in relation to the phrase “reasonable excuse”:
The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on the statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception.
44. While the above statement was made in the context of a statutory provision which created an offence, but provided a defence of “reasonable excuse”, the reference by the majority to the need to consider individual circumstances and the statutory purpose of relevant provisions is, in my opinion, equally apt to the present case.
45. Little assistance is gained by referring to the contents of the Explanatory Statements to the Road Transport (Third Party Insurance) Bill 2007 published on 22 November 2007 and 12 February 2008; they do little more than paraphrase the provisions of the Bill. Slightly more assistance is derived from the presentation speech by the responsible minister, the Honourable Jon Stanhope MLA, on 22 November 2007. What emerges from the presentation speech is a concern to reduce the cost of CTP insurance to the community by promoting efficiency in the manner in which common law claims for damages are processed by lawyers for injured persons and for insurers, and by promoting early rehabilitation of injured persons.
46. The requirement that an injured person provide notice of a claim to a CTP insurer is directed towards achieving the legislative objects of the Act, as set out in s 5A and as expressed in the Minister’s presentation speech. It is fair to say that one objective of the Act is to reduce the cost to CTP insurers, and therefore to the community through the level of premiums, of the cost of compensating those injured in motor vehicle accidents. The way in which the legislature has gone about achieving that objective is not by conclusively precluding claims from being litigated where the time requirements for giving notice under s 85(2) have not been complied with. The purpose of the imposition of limitation periods under the Limitation Act and the purpose of imposing time requirements for giving notice of a claim in s 85 of the Act are not the same. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552, McHugh J identified 4 broad bases for statutes limiting a plaintiff’s right to maintain an action:
(a) delay is likely to cause a deterioration in the quality of evidence available;
(b) there is a public interest in disputes being resolved as soon as possible;
(c) it can be oppressive to a defendant to allow an action to be brought long after the circumstances giving rise to the claim occurred; and
(d) after a certain time, people should be allowed to arrange their affairs on the basis of certainty that claims will no longer be made against them.
47. The purpose of the time requirements for giving notice of a claim in s 85 is to ensure that the CTP insurer is given early notice of a claim, so that the insurer may investigate the claim, satisfy itself that it is the correct CTP insurer, satisfy itself that the claim involves a compensable injury and to provide claimants with early access to rehabilitation services. An ability to investigate a claim shortly after an alleged motor vehicle accident assists in deterring, and detecting, false claims. The provision of early access to rehabilitation services serves to promote rehabilitation and a return to a productive life. In these ways the Act seeks to reduce the cost of claims to CTP insurers.
48. Compulsory third party insurance is a means for distributing across the community the cost of compensating those who suffer injury in motor vehicle accidents through the fault of others. It would cut across the fundamental purpose of the Act if the notice requirements in s 85 were treated as de facto limitation periods, resulting in denial of access to rehabilitation and other benefits provided by the Act to apparently meritorious claimants. That is not to say that the text of the Act may be ignored, but in giving practical effect to indeterminate terms such as “reasonable excuse” and “the interests of justice” it is important to bear in mind the underlying purposes of the Act.
49. The Courts cannot control the decision of a CTP insurer whether to accept as reasonable an excuse put forward by a claimant. Where it is necessary, however, for a claimant to seek an order under s 95(2) of the Act because an insurer unreasonably refuses to accept that an offered excuse is a reasonable excuse, and no other basis for the refusal of the insurer to waive non-compliance with the notice requirement is given, the courts should readily make the order sought, and with costs. CTP insurers should recollect that a waiver of non-compliance with the notice requirements under the Act is not an admission of liability; it merely enables the claimant to bring the claim in which liability will be determined.
50. In the present case the CTP insurer offered the plaintiff no reason for its rejection of her excuse for failing to comply with the notice requirements in s 85(2); it did not suggest to the plaintiff, for example, that its ability to properly investigate the alleged motor vehicle accident had been impaired by the delay in giving notice beyond the period prescribed in s 85(2), nor did it suggest to the plaintiff that any such delay had prejudiced it in any other way. The CTP insurer simply issued a bald statement that the excuse given was not, in its estimation, reasonable.
51. It would have been very difficult for NRMA as the CTP insurer to have suggested to the plaintiff that the relevant delay in giving notice of her claim had prejudiced its ability to properly investigate the alleged accident. NRMA was the insurer for property damage of the vehicle driven by the plaintiff in the accident, and it was put on notice of the particulars of the accident on the very day the accident occurred. Police and fire brigade members also attended the scene of the accident, and one can infer that in the ordinary course of dealing with the property damage claim NRMA would have obtained reports and statements about the cause of the accident.
52. In addition, the plaintiff made a claim for workers compensation arising out of the accident, albeit that her claim was not made until June 2016. She was thereafter seen by a number of medical specialists, and has been provided with treatment.
53. In terms of the significance for the CTP insurer of the plaintiff’s delay in notifying it of her claim, it is worthwhile noting that the plaintiff’s injuries did not immediately have any significant impact upon her. It was not until September 2015, well after the 9 month period after the accident allowed by s 85(2) of the Act that her injuries worsened to the degree that she determined to make a workers compensation claim. It was entirely reasonable for the plaintiff to have refrained from giving notice of a claim within the period prescribed by s 85(2) in circumstances where she thought that her injuries would heal and she would not need to make a claim. It cannot have been the intention of the legislature that those who suffer apparently minor injuries and who attempt to avoid burdening the CTP system for such a claim, should be prejudiced if it eventuates that their injuries worsen. The explanation by the plaintiff that she resisted making a claim until her injuries worsened is a reasonable one, and should have been accepted as such by the CTP insurer. Having said this, there was a regrettable lack of detail of the plaintiff’s excuse provided by Blumers in its letter to the CTP insurer; certainly, nothing like the detail provided in her affidavits read in this application. The attitude of the insurer to this application makes it unlikely, however, that it would have accepted the plaintiff’s excuse as reasonable even if greater detail had been provided.
54. The evidence of the plaintiff is that she was unaware of her right to make a CTP claim until she spoke to Blumers in October 2016. Prior to that time her belief was that she was only entitled to workers compensation. There is nothing unreasonable in this explanation by the plaintiff; indeed in cross-examination of the plaintiff during the hearing of the present application it was never suggested to her that her evidence on this issue was not the truth. There is nothing unreasonable in an ordinary citizen, untrained in the law, being uninformed about their rights to make a claim for entitlements under arcane legislation like the Act, and the requirements for making such a claim. For some reason, neither governments no insurers seem keen to engage in public education programs on these issues.
55. These was a regrettable delay in the plaintiff notifying the CTP insurer of her claim occasioned by the provision to her of incorrect advice by Blumers. This delay extended from November 2016 until 25 August 2017. In Perdis v Nominal Defendant [2003] QCA 555; 39 MVR 548, Davies JA (with whom Williams JA and Mackenzie J agreed) considered that delay based upon incorrect advice from a lawyer consulted by a claimant would constitute a reasonable excuse for failing to give notice of a claim to the nominal insurer as required by the Motor Accident Insurance Act 1994 (Qld). The lawyers consulted by the present plaintiff were apparently knowledgeable in this area of the law, and it was not unreasonable for the plaintiff to have relied upon their advice.
56. After the plaintiff became aware of the correct position regarding her entitlement to make a claim, she acted with appropriate expedition to give notice of the claim to the CTP insurer, and ultimately to commence the present proceedings.
57. Having digressed to consider the question of “reasonable excuse” in s 85 of the Act, I will now return to the immediate question of whether it is in the interests of justice to authorise the plaintiff to proceed with her claim. In Cook v Nominal Defendant [2015] ACTSC 278; 11 ACTLR 13, Mossop AsJ (as his Honour then was) considered the provisions of the Act as they apply to giving notice of a claim to the nominal insurer. Those provisions, for present purposes, are to the same effect as the provisions relevant to notifying a CTP insurer of a claim. In the course of his reasons, Mossop AsJ identified a number of considerations relevant to determining where the interests of justice lie, including the length of and reason for the delay, what prejudice may flow for the plaintiff if authorisation is not given and what prejudice may flow to the defendant if authorisation is given.
58. In my opinion, the first and third of these considerations will usually simply raise the issue of whether the CTP insurer was correct to reject any excuse for delay offered by the plaintiff under s 85(3) of the Act, that is, whether the excuse offered was a reasonable excuse. I acknowledge that there will be cases where the excuse for the delay offered by the claimant in seeking an order under s 95(2)(c) may be different to that offered in accordance with s 85(3), or will provide greater detail, and each case will need to be considered on its individual merits. In the present case the plaintiff stands to suffer considerable prejudice if an order authorising her to proceed with her claim is not made. There appears to be little doubt that the plaintiff was not at fault in the accident, and that the driver of the other vehicle was at fault. It is true that the plaintiff may still pursue her claim for workers compensation which, if successful, would provide for her treatment costs and provide some compensation for economic loss, but the legal issues in a workers compensation claim are not exactly identical to those in a CTP claim, and the benefits to the plaintiff are less in a workers compensation claim than a CTP claim.
59. The length of the delay in giving notice of the plaintiff’s claim to the CTP insurer was considerable. But the excuse she has provided for the delay is a reasonable excuse, and I am satisfied that the defendant has suffered minimal prejudice by reason of the delay. The plaintiff’s case is that her injuries worsened after the expiration of the notification period set by s 85(2) of the Act. The issue of causation of the conditions that lead to the plaintiff seeking medical treatment in 2015 and 2016 would be the same whether or not the plaintiff gave notice of her claim as required by s 85(2).
60. I am satisfied that it is in the interests of justice that an order should be made under s 95(2)(c)(ii) of the Act authorising the plaintiff to proceed further with her claim despite her non-compliance with the notice requirements in s 85(2) of the Act. In all the circumstances I would be minded to make an order that the costs of this application be costs in the cause, but I have not heard submissions on this issue. If the parties are unable to agree on costs of the application, they have leave to file written submissions, not exceeding 2 pages, addressing the issue of costs within 14 days of publication of these reasons.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Karina Curry-Hyde Date: 15 December 2017 |
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