Re: Horinack

[2000] QSC 46

SUPREME COURT OF QUEENSLAND

CITATION:

Re: Horinack [2000] QSC 046

PARTIES:

KARIN HORINACK
(applicant)
and
SUNCORP METWAY INSURANCE LTD
(respondent)

FILE NO/S:

SC No 5888 of 1999

DIVISION:

Trial Division

DELIVERED ON:

25 February 2000

DELIVERED AT:

Brisbane

HEARING DATE:

30 June 1999

JUDGE:

Douglas J

ORDER:

Ordered that the applicant be given leave to proceed.

CATCHWORDS:

INSURANCE – THIRD PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – GENERALLY – QUEENSLAND – applicant failed to give sufficient notice as required under s 37 of Motor Accident Insurance Act 1994

-     whether leave to proceed should be granted pursuant to

 s 39(5)(c) and s 39(6) despite non-compliance.

Motor Accident Insurance Act 1994

Brannigan v The Nominal Defendant (Unreported 24 August 1999 per de Jersey CJ, McPherson JA and White J).

COUNSEL:

Mr D B Fraser QC for the applicant plaintiff
Mr J P Kimmins for the respondent defendant

SOLICITORS:

Gilshenan & Luton for the applicant
Mr T R Walsh Solicitor (Suncorp Metway Insurance Limited) for the respondent

1. Douglas J: The applicant was injured in a motor collision which occurred on 30 January 1996. In November 1998 she first consulted Victorian solicitors who instructed their Queensland agents. Eventually a notice purporting to be a s 37 notice pursuant to the Motor Accident Insurance Act 1994(“the Act”) was received by Suncorp Metway (“the respondent”). The respondent also received from the solicitors a letter stating, by way of explanation of the delay in forwarding the notice pursuant to s 37, that:

(a)        the applicant was unaware of the time constraints; and

(b)        when the applicant ceased treatment she found it emotionally difficult to deal with the issue of litigation until encouraged to do so by relatives and friends.

1. After some further correspondence the respondent on 2 February 1999 wrote to the solicitors stating that s 37 of the Act had not been complied with as the notice of claim had been provided outside the 9 months period stipulated by s 37(2) and the applicant had not provided an explanation required by s 37(4). That letter requested that the explanation for such delay be contained in a sworn statement by the applicant and address all issues relevant to her failure to provide a notice of claim within the 9 month period.

1. The respondent reminded the solicitors of their obligations on 3 March 1999 and on 31 March 1999 did so again by e-mail.  On 13 May 1999 the respondent wrote to the solicitors stating “as your client’s claim is not statute barred could you please supply us with a copy of the plaint/writ for our files”.

1. Ultimately, at the hearing of the action an affidavit in purported compliance with the requirement to include a sworn statement with the s 37 notice of claim was filed.

1. Since the hearing of this application the Court of Appeal gave judgment in Brannigan v The Nominal Defendant [1999] QCA 347; Appeal No 5764 of 1999, 27 August 1999 per de Jersey CJ, McPherson JA and White J). In the course of his reasons the learned Chief Justice said:

“… one notes at once the mandatory terms of the subsection. Further, s 37(4) makes it clear that the explanation of the delay required, if notice is given after the expiration of the initial three months, is part of the notice itself. The notice must “contain” it. The appellant nevertheless contends that notwithstanding that express statutory requirement, a notice not containing the explanation may still be sufficient for the purposes of the section.

Whatever the result of omitting arguably less consequential information required by regulation (s 37(1)(a)), a matter on which we were addressed, the circumstances that the section itself specifically – and in mandatory terms – requires that the explanation be included in the notice, and the potential relevance to the promotion of the objects of the Act of requiring such an explanation, strongly suggest that a notice purportedly given under s 37(4) which does not contain the necessary explanation should be regarded as insufficient for the purposes of the subsection.”

1. Each of the judges gave separate reasons agreeing that in the circumstances of that case the District Court Judge appealed from was correct in striking out the action brought by the appellant there.  White J in her reasons said:

“Although not without some difficulty, it is not, in my view, possible to construe s 37(4) in the context of Division 3 of Part 4 of the Motor Accident Insurance Act other than to require the applicant to have given an explanation for the delay within nine months of the motor vehicle accident and failure to do so precludes him from bringing an action in court for damages.”

1. Although Brannigan concerned an action against the nominal defendant I cannot see that the principles are any different in this case.  I therefore refuse to grant the declarations sought which if granted would have the effect of validating the notice and sworn statement already given by the applicant.

1. The applicant, in the alternative, seeks an order pursuant to s 39(5)(c) and s 39(6) of the Act for leave to bring proceedings despite non compliance with requirements of Division 3 of Part 4 of the Act.

The discretion given to me appears to be a wide one.  The collision which gave rise to the applicant’s alleged injuries and damage was a rear end collision.  The nature of the collision is such as to expect that no real issue on liability is likely to emerge.  A police report was prepared which confirms that the accident happened as sworn to by the applicant.  Plainly there is evidence of negligence.  There is no apparent risk of prejudice in this area.

1. So far as quantum is concerned, the injuries complained of are neither exotic nor unexpected. They are all well documented. It is fair to say that the applicant provided a great deal of detail in her sworn s 37 notice.

1. An unsworn explanation for the delay was provided when the notice of claim was sent on 4 January 1999 (within the limitation period) and a more detailed explanation was set out in a letter of 27 January 1999. 

1. My view no prejudice has been pointed to as flowing from the failure of the applicant to:

(a)        give the notice of claim earlier;

(b)        provide the explanation within the body of her notice of claim’ or

(c)        provide a sworn explanation until 21 June 1999.

1. Therefore, in my judgment it is fair and just to give leave to proceed in such circumstances.  The respondent indicated at the hearing that if leave were granted it would not in any action brought plead a Limitation of Action defence.

1. I therefore order that the applicant be given leave to proceed against Richard Stanley Arnold, Margaret Arnold, and Suncorp Metway Insurance Limited (ACN 075 695 966) despite non-compliance with the requirements of Division 3 of Part 4 of the Act.