Howell v Smith
[2018] WADC 125
•4 OCTOBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: HOWELL -v- SMITH [2018] WADC 125
CORAM: DEPUTY REGISTRAR HEWITT
HEARD: 13 SEPTEMBER 2018
DELIVERED : 4 OCTOBER 2018
FILE NO/S: CIV 4426 of 2016
BETWEEN: ROBERT JAMES HOWELL
Plaintiff
AND
GEOFFREY JAMES SMITH
Defendant
Catchwords:
Practice and procedure - Failure to give notice of intention to claim under s 29 of the Motor Vehicle (Third Party Insurance) Act - Consideration of s 29A of the Act
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943, s 29, s 29A
Result:
Application dismissed
Representation:
Counsel:
| Plaintiff | : | Mr J R Brooksby |
| Defendant | : | Mr R J Carey |
Solicitors:
| Plaintiff | : | Donna Percy & Co |
| Defendant | : | SRB Legal |
Case(s) referred to in decision(s):
Hunter v Morris [2000] WASCA 23
DEPUTY REGISTRAR HEWITT:
This action was commenced by a writ which was filed on 29 November 2016, in which the plaintiff sought damages for injuries alleged to have been received in an accident which occurred on 4 February 2014, allegedly due to the negligence of the defendant driver.
Following the commencement of the action a chambers summons seeking an extension of the validity of the writ was filed and an order in those terms granted. The plaintiff then filed an application for an order for substituted service but prior to that application being heard a memo of conditional appearance was filed on 9 February 2018. That appearance was filed on behalf of the defendant on instructions from the Insurance Commission of Western Australia. The basis upon which the conditional appearance was entered was to pave the way for a strike‑out application which was brought on the same day. The strike‑out application essentially involved the failure of the plaintiff to give a notice of intention to claim pursuant to s 29 of the Motor Vehicle (Third Party Insurance) Act 1943. That provision is in the following terms:
A person shall not, in respect of the death or bodily injury to a person directly caused by, or by the driving of, an insured or an uninsured motor vehicle by another person which may, under the provisions of this Act, give rise to an action or proceeding for damages against either an insured person or the Commission, commence or maintain such an action or proceeding unless the person proposing to claim the damages or some person on his behalf has given to the Commission, as soon as practicable after the occurrence giving rise to the claim, notice in writing prescribed by the regulations of his intention to make the claim.
Section 29A is however in the following terms:
29A.Court may grant leave to proceed
Notwithstanding the provisions of section 7(2) and (3), section 8(5), and section 29(1), where the court in which an action is brought, or (as the case may be) is sought to be brought, to recover damages against an insured person or the Commission in respect of the death of, or bodily injury to, any person, directly caused by, or by the driving of, an insured or an uninsured motor vehicle, considers the failure to give notice, or the defect in any notice, or the failure to make due search and inquiry, as required by one or other of those subsections, was occasioned by mistake, inadvertence or any other reasonable cause or that the Commission is not materially prejudiced in its defence or otherwise by the failure or defect, the court may -
(a)where the action is commenced, at any stage of the proceedings, if it thinks fit, relieve the plaintiff of the effect of that failure or defect; or
(b)where an action is sought to be brought, if it thinks fit, grant the applicant leave to proceed, notwithstanding that failure or defect.
The provision allows the court to relieve an injured person from the requirement to give notice of intention to claim when that failure arose by way of mistake, inadvertence or other reasonable cause or that the commission is not materially prejudiced in its defence or otherwise by the failure or defect. The power which is granted by the section to relieve the plaintiff of the effect of s 29(1) may be exercised either prior to or during the course of proceedings.
On 13 July 2018 the plaintiff filed an application pursuant to s 29A of the Motor Vehicle (Third Party Insurance) Act, that he be granted leave to proceed notwithstanding his failure to comply with s 29(1) of the Act. That application was listed before me on 13 September 2018 and it is that application with which I am required to deal.
The argument advanced by the plaintiff conceded that the failure of the plaintiff to give notice of intention to claim was not occasioned by mistake, inadvertence or any other reasonable cause. That concession is in my view well made, because at the relevant time the plaintiff had another action proceeding before the court involving an earlier accident in 2013 and he declined an invitation to negotiate in regard to settlement of the present claim in the context of a pre-trial conference regarding the earlier claim. The plaintiff at that stage was represented by a firm of solicitors and the fact that the plaintiff has chosen not to place any evidence before me by way of an affidavit in my view lends support to the proposition that the plaintiff had no prospect of satisfying any tribunal that his failure was occasioned by mistake, inadvertence or other reasonable cause. The entire thrust of the argument before me was that notwithstanding the failure to give Notice of Intention to Claim the commission was not materially prejudiced in its defence or otherwise by that failure.
Stepping back a little it is common ground that the plaintiff submitted an accident report form to the Insurance Commission of Western Australia. Such a form however is not a Notice of Intention to Claim. Information has been placed before me in the affidavit of Brett Lowe filed and sworn September 2018 that a very large number of accident reports are received by the Insurance Commission of Western Australia and only a small proportion of those cases are followed by a Notice of Intention to Claim. The investigation of each accident report would require a considerable additional allocation of resources. Lodging a Notice of Intention to Claim creates certain rights which the commission may exercise which include the right to have the plaintiff medically examined and to take action to require the plaintiff to commence an action in the event that is not done so within a period of six months after the occurrence giving rise to the claim.
In the present case the plaintiff relies on the fact that there were a number of medical reports obtained in the course of prosecuting the plaintiff's existing claim in which mention was made of the collision which is the subject of the present action. Undoubtedly, the commission was aware to some extent of the accident but there is nothing to suggest that any particular focus was generated by that information and indeed in the statement of claim which had been filed in the present proceeding the particulars of injury are in part described as an exacerbation of a neck injury and exacerbation of lower lumbar spine injury, those being injuries which occurred in the earlier accident. There is an additional injury claim which is for a left hand/wrist injury which appears to be new and unrelated to the earlier accident. The position therefore appears to have been, that the commission by way of the accident report form and some of the medical reports which were being produced in the course of the prosecution of the plaintiff's claim for an earlier accident caused injury, was aware of the present accident but there being no notice of intent to make a claim its opportunity to examine that issue thoroughly and to determine, if possible, the extent of the overlap between the earlier injuries and those imposed the later accident was lost. The position was therefore that although the commission knew something of these matters the plaintiff had declined to negotiate a settlement of them at a pre-trial conference in the existing action and the commission was not in a position to carry out its own enquiries because the powers contained in the Act which would allow it to require the plaintiff to attend for medical examination could not be exercised in the absence of a Notice of Intention to Claim.
One additional matter also was relevant and that is that the whereabouts of the defendant are no longer known and that proposition is made clear by the fact that the plaintiff was in the process of applying for an order for substituted service of the writ prior to the commission filing an memo of conditional appearance.
Relevant considerations therefore appear to me to be that the commission has not had the opportunity to thoroughly assess the contribution made by the accident the subject of this claim compared with that which was being pursued by the plaintiff in an earlier proceeding. Additionally it seems to me to a reasonable inference that the whereabouts of the defendant is not known to any of the parties and as a consequence to the extent that that person might have been able to assist the commission in conducting a defence that opportunity is lost.
The application of s 29A of the Motor Vehicle (Third Party Insurance) Act has been considered by the court on a number of occasions and of the cases cited in the course of argument I consider the case of Hunter v Morris [2000] WASCA 23 to be the most relevant. That case is simply an example of the exercise of the power contained in s 29A. In that instance the plaintiff had submitted claims for medical expenses incurred for treatment of accident caused injuries and the commission had paid those accounts. It hardly comes as a surprise that having acted in that way, and accepted liability to pay for the treatment expenses, that the commission was not considered to have suffered a material prejudice through the failure of the plaintiff to perform the strict requirements of the Act in order to be able to pursue a claim for his injuries. That case is very different to the present circumstances. In the present case no relevant accounts were every submitted for payment and a considerable period had passed without any action by the plaintiff in regard to this claim at all, and in particular his decision not to enter negotiations for settlement of the claim when invited to do so at a pre‑trial conference convened in his then active action.
There is a complication in this case which is of some importance. Both of the plaintiff's earlier claim and the present claim are subject to statutory thresholds. In order to determine an appropriate allowance for general damages it is necessary in regard to each accident, and in particular the accident with which this action is concerned to calculate in percentage terms the amount by which the plaintiff has been physically impaired by the injuries suffered in the accident. That would never be an easy task but in the present circumstances, given the fact that the question has not been specifically addressed by the medical specialists, would be nigh on an impossible task. In summary therefore, I consider that the commission has suffered a material prejudice because:
(a)The defendant is not available to give it instructions as to the circumstances of the accident, the force of the collision and things of that kind.
(b)The process of disentangling the contribution of each accident to the overall outcome of the plaintiff has been made extremely difficult, if not impossible given the lack of timely medical evidence specifically directed to that issue.
It follows from these reasons that the application of the s 29A which is brought by the plaintiff should be dismissed and that is the order I propose to make.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
COURT OFFICER2 OCTOBER 2018