Khan v Batagode
[2018] ACTSC 240
•30 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Khan v Batagode |
Citation: | [2018] ACTSC 240 |
Hearing Date: | 16 August 2018 |
DecisionDate: | 30 August 2018 |
Before: | McWilliam AsJ |
Decision: | See [37] |
Catchwords: | PERSONAL INJURY – Motor vehicle accident – notification of claim made after expiry of prescribed notification period – application to proceed with claim despite non-compliance – whether in the interests of justice to proceed with claim – whether the delay in notification has caused prejudice to the defendants – application granted STATUTORY CONSTRUCTION - Road Transport (Third-Party Insurance Act 2008 (ACT), s 85 |
Legislation Cited: | Limitation Act 1985 (ACT) s 16B |
Cases Cited: | Blackpool Corporation v Locker [1948] 1 KB 349 Dordevic v Moore [2017] ACTSC 320; 12 ACTLR 282 |
Parties: | Sajjad Khan (Plaintiff) Sunil Batagode (First Defendant) Insurance Australia Limited Trading As NRMA Insurance (Second Defendant) |
Representation: | Counsel Mr D Crowe (Plaintiff) Mr J Pappas (First and Second Defendants) |
| Solicitors United Legal (Plaintiff) Sparke Helmore (First and Second Defendants) | |
File Number: | SC 170 of 2018 |
The plaintiff in the present case, who is perhaps presently more correctly described as the applicant before this Court, was involved in a motor vehicle accident on 27 January 2016. As a result of that accident, he alleges he sustained personal injuries and wishes to commence proceedings for compensation against the driver of the other vehicle, represented by the compulsory third party insurer (CTP insurer), the defendants in these proceedings.
However, he requires leave of the Court to commence such proceedings, due to the operation of the Road Transport (Third-Party Insurance) Act 2008 (ACT) (RT Act). The combined effect of the relevant provisions contained in the RT Act is to prevent claimants who fail to notify the relevant CTP insurer of a claim within certain prescribed time limits, determined by reference to particular events, from commencing proceedings without first applying for leave of the Court.
In support of the application filed on 20 April 2018, the applicant relied upon affidavit evidence sworn by himself and his instructing solicitor. The applicant was briefly cross-examined and I accept his evidence.
Relevant provisions of the legislation
Before a claimant for a motor accident claim brings a court proceeding based on the claim against a respondent, the claimant must give the respondent written notice of the claim: s 84(1) of the RT Act.
The required contents of such a notice are set out in s 84(2) of the RT Act. They are immaterial to the present application as there is no issue about the content of the notice, merely its timing.
Section 85 of the RT Act governs the timing for providing a notice to a CTP insurer. It is in the following terms (emphasis added):
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.
Section 85(2) of the Act is a little ambiguous. The emphasised words “earlier of the following days” do not mean the earlier of one of the four options listed in (a) or (b). The words mean the earlier of either (a) or (b), each of which contains a choice of two events from which time commences to run.
The effect of the provision is that a claimant has nine months from the date the accident occurred to notify the CTP insurer of a claim. If a claimant does not suffer symptoms immediately following the accident, then the complainant has nine months from the date the symptoms first appeared to notify the CTP insurer of a claim.
If however, a claimant seeks advice from a lawyer, then that time is shortened to one month. On my construction of the legislation, the exception to this appears to be that if the claimant seeks advice from a lawyer, but the respondent to the claim is yet to be identified, then the one month time limit does not commence to run until the respondent (and thus, the relevant CTP insurer) is identified. That is, I have not construed the section to set up a choice between the earlier of the date of the accident and the date a respondent is identified without any involvement of a legal practitioner.
Any claim that is not notified in accordance with the specified time limits is not a “complying notice of claim” within the definition in the RT Act (s 76).
The Court’s power to authorise a claimant to proceed in spite of the non-compliance derives from s 95(2)(c)(ii) of the RT Act. Section 95 is in the following terms (emphasis added):
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.
Without a “complying notice of claim”, a claimant cannot proceed to litigate the claim, as seen from the terms of s 96 of the RT Act as follows:
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.
Applicable principles
The relevant consideration for the Court on the present application is expressed in the emphasised words of s 95 above. The Court considers whether it is “in the interests of justice for the matter to proceed further.”
It is a broad discretion with no express mandatory considerations, although, given that s 85(3) of the RT Act requires the claimant to provide to the CTP insurer “a reasonable excuse for the delay”, this may imply that the reason a claim was not notified earlier is a matter to which the Court would give consideration.
Given the words of the test however, the lack of any reasonable excuse for a delay in notification is not a determinative factor – the focus is on the impact of any delay and how that impact affects the interests of justice, particularly where s 16B of the Limitation Act 1985 (ACT) permits a period of three years for proceedings to be commenced. Section 85 is not to be treated as a de facto limitation period: Dordevic v Moore [2017] ACTSC 320; 12 ACTLR 282 (Dordevic) at [48] per Burns J.
In Cook v Nominal Defendant [2015] ACTSC 278; 11 ACTLR 13 (Cook), Mossop AsJ (as his Honour then was) considered that matters relevant to determining where the interests of justice lie include the length and reasons for the delay, prejudice to either party and other matters. It is clear from comments made at [31] of that judgment that his Honour also considered whether the plaintiff had an arguable case. Although the subject matter of that case concerned the Nominal Defendant, the same considerations are applicable to the discretion being exercised here.
Cook was referred to by Burns J in Dordevic at [57]. His Honour was of the view (at [58]) that considering the length and reason for the delay and the prejudice that may flow to the defendant would usually simply raise the issue of whether the CTP insurer was correct to reject any excuse for delay offered (pursuant to s 85(3) of the RT Act). However such issues are described, they are consistent with a construction of the Act as impliedly requiring consideration of the reasonableness of the excuse as part of the broader discretion whether to authorise a claimant to proceed.
The circumstances of the delay in the present case
The applicant’s evidence was that on the day of the accident, 27 January 2016, police attended the scene and took witness statements. Paramedics from the ACT Ambulance Service also attended the accident scene and recommended that the applicant be conveyed to Calvary Hospital for further assessment, which occurred. The applicant was discharged and he left to travel overseas the next day to Canada, on a pre-planned trip to visit his sister and brother-in-law, who was having surgery to remove a cancerous tumour.
The applicant deposes to suffering pain the next day, after a long haul plane trip of 25-30 hours, in the left side of his neck, left shoulder and arm and lower back.
While in Canada, there was little opportunity to worry about his own state of health and he hoped his injuries from the accident would resolve. He returned to Australia on 10 February 2016.
The effect of the applicant’s evidence is that from 10 February 2016 to mid-Feb 2017 he took a number of overseas trips with his family for various reasons, but in particular was in Canada from December 2016 until mid-February 2017 assisting his brother-in-law who passed away shortly before Christmas, and then providing emotional support to his sister.
By August 2017, when his pain still had not resolved, a friend suggested to him that he should see a solicitor. That was the first time he became aware that he could have made a claim as a result of his injuries. He then did see a solicitor in September 2017 and as soon as he had done so, the necessary notification of a claim was made on 28 September 2017, which also appears to have been the first time the applicant became aware that this course was necessary.
Notification thus occurred 11 months after the nine month time limit in s 85 of the RT Act had passed, assuming (as the parties both assumed) that time commenced to run from the date of the accident.
It is trite that ignorance of the law is no excuse: Blackpool Corporation v Locker [1948] 1 KB 349 (Blackpool) at 361. However, as pointed out by Gleeson CJ and Kirby J in Ostrowski v Palmer [2004] HCA 30; 218 CLR 493 at [2], having referred to Blackpool, the corollary of such a principle is that information as to the content of the law should be readily accessible to the public. In a society in which many personal, social and commercial activities are closely regulated, and the schemes of regulation are frequently changed, the detail of regulation may be difficult for citizens and their lawyers to keep up with.
At the time of the accident, the applicant was dealing with traumatic family circumstances. What I have inferred from reading the applicant’s affidavit was that he was a time poor father, attempting to support his wife in her work commitments, look after his daughter, and to contribute to the family income by working as an Uber driver; indeed, working long hours to make up for the periods when he was overseas rendering assistance to a dying family member and his sister in her initial period of grief.
It seems to be that the nature of the injuries was something that, due to being time poor, the applicant chose to put up with and hoped that his body would heal itself rather than seek medical intervention, which may have led to seeing a solicitor at an earlier stage and becoming aware of the notification requirements for claims arising from motor vehicle accidents.
There is no suggestion of bad faith. It is understandable that a person who suffered a motor vehicle accident and who did not appreciate the ongoing nature of his injuries, let alone the need to take steps to identify and notify the CTP insurer for the purpose of making a claim, would delay seeing a solicitor or completing the formal requirements of notification under the RT Act. I consider the reason for delaying making a claim to be plausible, and more than that, to be reasonable.
Prejudice to the parties
The CTP insurer submitted that because of the delay in receiving notification, there was significant prejudice, in that it had been denied the opportunity to have the applicant assessed at an early stage to establish the true nature and extent of the injury suffered. The medical evidence suggests the aggravation of a degenerative condition affecting the plaintiff’s spine and left shoulder. The CTP insurer has lost the ability to intervene early to pay medical expenses and to facilitate treatment in recovery. Where the CTP insurer may have been facing a small claim months ago, now it may be facing a larger claim with an unspecified degree of aggravation.
The applicant submitted that he will stand to suffer prejudice if an order authorising him to proceed is not made. As was the case in Dordevic, the applicant was not at fault in the accident. The claim has reasonable prospects of success and he is well within the three year limitation period.
I accept both those arguments. Ideally, the CTP insurer would have liked to assess the applicant earlier and to limit its exposure on the claim by assisting with the recovery process as soon as possible. However, the applicant did go to hospital on the day of the accident. There are contemporaneous hospital notes. The ongoing nature of the injuries was such that the requirement for medical intervention was not immediately apparent to the applicant. In circumstances where the applicant was not at fault and he is otherwise within time to file a statement of claim, the fact that there may now be additional issues for the parties to litigate should not result in the applicant being denied the right to litigate them at all.
In my view, the issue of causation and perhaps of mitigation would arise in this case regardless of whether the claim was notified in October 2016 or September 2017. The task for the Court is the balancing of the competing prejudices. I consider that it is not in the interests of justice to prevent the claim from going forward by reason of the claimed prejudice to the CTP insurer. Further, medical experts are able to assist the Court with whether earlier intervention would have reduced the present symptoms of injury or alleviated the claimed disabilities in their entirety, and it is in the interests of justice that those issues should be tested at a hearing before a judge, rather than determined in a summary manner in threshold proceedings.
Accordingly, I consider that the interests of justice favour an order authorising the plaintiff to proceed.
Costs
The applicant has been successful, but was seeking an indulgence of the Court, due to his failure to comply with the RT Act. In such circumstances, I do not consider that an order on the basis that costs follow the event is appropriate.
Equally, the CTP insurer has defended the proceedings, when it was open to it to have waived the non-compliance under s 95(2)(a)(ii) of the Act above, so I would not order that the applicant pay the costs of his opponents.
Nor would I reserve the question of costs, as the relief sought in the application is final relief. Although the application is a precursor to the commencement of further proceedings, such proceedings may be commenced in the Magistrates Court rather than this Court.
The appropriate exercise of the discretion on costs is thus to find that the costs of this application properly form part of the preparatory costs of the litigation and, on that basis, I will order that costs be costs in the cause of any proceedings subsequently commenced pursuant to this Court’s authorisation.
Conclusion
For the above reasons, the orders of the Court will be:
(1) Pursuant to s 95(2)(c)(ii) of the Road Transport (Third Party Insurance) Act 2008 (ACT), the plaintiff is authorised to proceed further with his motor vehicle accident claim, despite the noncompliance with s 86 of that statute.
(2) The costs of the application are to form part of the costs in the cause of any proceedings subsequently commenced pursuant to order 1.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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