Van Der A'a v Nominal Defendant

[2003] QDC 431

DISTRICT COURT OF QUEENSLAND

CITATION:

Van Der A’a v Nominal Defendant [2003] QDC 431

PARTIES:

ANTOINETTE VAN STEENSEL VAN DER A’A

Applicant

and

NOMINAL DEFENDANT

Respondent  

FILE NO:

D504/2003

DIVISION:

District Court

PROCEEDING:

Application

ORIGINATING COURT:

District Court Southport

DELIVERED ON:

14 November 2003

DELIVERED AT:

Southport

HEARING DATE:

27^th October 2003

JUDGE:

R D Hall  DCJ

ORDER:

Applicant to have leave to proceed despite non-compliance with S 37(3) of Motor Accident Insurance Act, 1994

CATCHWORDS:

Insurance- Third-party liability insurance-Notice of Claim requirements-“reasonable excuse” –Leave to proceed if Notice non-compliant-S39(5)(c)- Relevant criteria- whether application for leave must be made within 9 months after motor vehicle accident-- Motor Accident Insurance Act 1994, S37(2), (3) S 39(5), (8)

Cases cited:
Miller v Nominal Defendant (2003) QSC 081
Piper v Nominal Defendant (2003) QSC 039
Thomas v Transpacific Industries Proprietary Limited (2003) 1 Qd R 328

COUNSEL:

Mr Simpson for the applicant

Mr K Wilson SC for the respondent

SOLICITORS:

Baker Johnson Lawyers for the applicant
Phillips Fox for the respondent

1. The applicant applies pursuant to the Motor Accident Insurance Act 1994 for (a) a declaration that the applicant’s excuse for delay constitutes a “reasonable excuse” within the meaning of s 37(3) or (b) alternatively, leave to proceed pursuant to s 39(5)(c). The applicant suffered injuries in a motor vehicle collision on 22^nd June 2002.  She was driving a Volvo sedan in a southerly direction along the Pacific Motorway at Nerang behind a Toyota Hilux utility.  The Hilux utility was following a red-coloured hatchback vehicle which remains unidentified.  That vehicle was following a semi-trailer which is also unidentified and which lost a retread from one of its tyres.  The driver of the red hatchback was able to take evasive action to avoid the retread but the driver of the Toyota Hilux was not able to do so because of another unidentified motor vehicle travelling in the adjoining lane.  The retread became lodged beneath the Toyota Hilux lifting the front wheels from the road surface so that it could not be controlled.  Over a distance of some 100 metres the Toyota Hilux utility traversed the centre and right lanes of the motorway colliding with the guard rail and then traversed back across the three traffic lanes.  The applicant believes that her motor vehicle came into contact with the Hilux utility as it careered out of control.  Although the applicant gave notice pursuant to the Act to the insurer of the Hilux utility it is apparent that the collision in which the applicant claims to have suffered injuries was caused by the loss of the retread from the unidentified semi-trailer.

1. The applicant was not aware of any pain or injury at the time of the collision but on 29^th June 2002 she suffered symptoms which started to escalate.  When admitted to Pindara Emergency Centre on 1^st July 2002 her injuries were noted as severe back pain and severe chest pain.  On 11^th July 2002 she was examined by…