Piper v Nominal Defendant

[2003] QSC 39

SUPREME COURT OF QUEENSLAND

CITATION:

Piper v Nominal Defendant [2003] QSC 039

PARTIES:

DAVID RONALD PIPER
(applicant)
and
NOMINAL DEFENDANT
(respondent)

FILE NO:

S11401/02

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

27 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

18 December 2002

JUDGE:

Wilson J

ORDER:

Application is dismissed.

CATCHWORDS:

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – WHERE IDENTITY OF THE VEHICLE CANNOT BE ESTABLISHED – QUEENSLAND – Notice of claim – Delay – Reasonable – explanation of delay essential requirement – Action barred

Motor Vehicle Insurance Act 1994 (Qld), s 37, s 39

Brannigan v Nominal Defendant [2000] 2 Qd R 116, applied

COUNSEL:

W F S Elliott for the applicant
K N Wilson SC for the respondent

SOLICITORS:

Guides & Elliott for the applicant
O’Shea Corser Wadley for the respondent

1. WILSON J: This is an application for orders in relation to the applicant’s alleged non-compliance with the notice provisions of s 37 of the Motor Accident Insurance Act 1994.

1. The applicant was born on 28 November 1971.  He is a labourer/construction worker. On 16 April 2002, on his way home from work, he was involved in a motor vehicle accident when the vehicle he was driving came into collision with an unidentified vehicle at an intersection.  He sustained a fracture of the lower part of his right leg.

1. This application arises out of his failure to give the respondent (the Nominal Defendant) notice of the accident until 4 October 2002.

1. Section 37(2) of the Act provides that in the case of an unidentified vehicle notice must be given to the respondent within 3 months after the accident. Subsection (3) of s 37 is in these terms –

“(3)  If notice of a motor vehicle accident claim is not given within the time fixed by this section, the obligation to give the notice continues and a reasonable excuse for the delay must be given in the notice or by separate notice to the insurer but, if a motor vehicle can not be identified and the notice is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred.” 

1. The principal issue on this application is whether the applicant has given “a reasonable excuse” for his delay in notifying the respondent.  He seeks a declaration that he has remedied his non compliance or alternatively leave to proceed despite his non-compliance: see s 39(5)(c).

1. When he lodged his Notice of Accident Claim Form, the applicant gave the respondent the following excuse for his delay –

“I was in Townsville General Hospital a few days after the accident when my uncle visited me.  He told me I should see James O’Donnell who I thought was a Lawyer about taking a personal injuries claim. 

James O’Donnell came to see me with a Barrister and I gave them full particulars of the accident.  I am a carpenter by trade and new [sic] nothing about time limits.  I thought my action…