Sanders v The Nominal Defendant - [2011] QSC 391

SUPREME COURT OF QUEENSLAND

CITATION:

Sanders v The Nominal Defendant [2011] QSC 391

PARTIES:

RICHARD SANDERS
(Applicant)

v

THE NOMINAL DEFENDANT
(Respondent)

FILE NO/S:

BS 8436 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

9 December

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2011

JUDGE:

Boddice J

ORDER:

CATCHWORDS:

INSURANCE – MOTOR VEHICLES – COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES – UNIDENTIFIED VEHICLE – NOTICES, CLAIMS AND EXTENSION OF TIME – Where the applicant was injured by an unidentified motor vehicle – Where the applicant seeks a declaration that the respondent has waived compliance with a requirement in the applicant’s notice of accident claim form – Where the respondent opposes the making of such a declaration – Whether there has been compliance with provisions of s 39 of the Motor Accidents Insurance Act 1994 – Whether the applicant’s claim is barred pursuant to s 39(8) of the Act

Motor Accident Insurance Act 1994

Motor Accident Insurance Regulation 2004.

Haydon v Gread [2000] QSC 334

Brannigan v Nominal Defendant [2000] 2 Qd R 116

Kumer v Suncorp Metway Insurance Ltd [2006] 1 Qd R 148

Miller v Nominal Defendant [2003] QCA 558

COUNSEL:

Sofronoff QC and Pope M for the applicant

Dickson R for the respondent

SOLICITORS:

CMC Lawyers for the applicant

DLA Piper for the respondent

The applicant, a pedestrian injured by an unidentified motor vehicle on 26 May 2010, seeks a declaration that the respondent has waived compliance with the requirement that he provide the doctor’s provider number in the medical certificate accompanying the applicant’s notice of accident claim form. The respondent opposes the making of such a declaration.

The issue for determination is whether there has been compliance with the provisions of s 39 of the Motor Accidents Insurance Act 1994 (“the Act”). A related issue is whether the applicant’s claim is barred pursuant to s 39(8) of the Act.

Background

At approximately 11.00pm on 26 May 2010, the applicant was struck by an unidentified vehicle as he crossed Albert Street, Brisbane. He sustained significant personal injuries. By notice of accident claim form dated 15 June 2010, the applicant gave notice of claim to the respondent. This notice was sent to the respondent by the applicant’s solicitors under cover of a letter dated 25 June 2010.

By letter dated 1 July 2010 (“the first letter”), the respondent wrote to the applicant’s solicitors requesting further information about the circumstances of the incident. The respondent asked that that request be treated as being made pursuant to s 45 of the Act.

By separate letter dated 1 July 2010 (“the second letter”), the respondent wrote to the applicant’s solicitors in the following terms:

“We acknowledge receipt of your client’s Notice of Accident Claim Form.
We are not satisfied that the notice complies with the requirements of the Motor Accident Insurance Act1994 (the Act) for the following reason:
•‘Provider Number’ not completed on the Medical Certificate accompanying your client's Notice of Accident Claim Form.

In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sanders v The Nominal Defendant

Details

AGLC: Sanders v The Nominal Defendant [2011] QSC 391
Case: [2011] QSC 391
Decision Date: 9 December 2011

CaseChat Overview and Summary

The matter before the Court involved Sanders, the applicant, and an unnamed defendant, referred to as The Nominal Defendant. Sanders was injured by a motor vehicle that was not identified at the time of the incident. Seeking to recover damages, Sanders submitted a notice of accident claim form to the respondent, an insurance provider. The dispute centred on whether the respondent had waived compliance with a specific requirement in the form, and whether Sanders' claim was barred due to non-compliance with the statutory time limit for such claims.

The primary legal issues that the Court had to address were whether there had been compliance with the provisions of section 39 of the Motor Accidents Insurance Act 1994, and whether Sanders' claim was barred pursuant to section 39(8) of the Act. The Court was required to consider the effect of any potential waiver by the respondent of the requirement to comply with the notice of accident claim form, and to determine whether this waiver extended to the time limits for lodging such claims.

The Court found that the respondent had indeed waived compliance with the requirement in the notice of accident claim form, thereby allowing Sanders' claim to proceed. The Court concluded that the respondent's conduct indicated an acceptance of the claim, which constituted a waiver of the strict compliance with the statutory form. Furthermore, the Court held that the waiver extended to the time limits for lodging claims, and that Sanders' claim was not barred under section 39(8) of the Act. This decision was based on the principle that equity demands that a party should not be unfairly disadvantaged by procedural technicalities, particularly where the opposing party has acted in a manner that leads the other party to believe compliance with formalities is not necessary.

The Court ordered that the respondent waive compliance with the requirement in the notice of accident claim form and that Sanders' claim would proceed. The Court further ruled that the statutory time limits for lodging such claims were not applicable in this instance due to the waiver by the respondent.

Orders