Weeks v Nominal Defendant

[2004] QDC 504

DISTRICT COURT OF QUEENSLAND

CITATION:

Weeks v Nominal Defendant [2004] QDC 504

PARTIES:

CHRISTOPHER HENRY WEEKS
(Applicant)

v

THE NOMINAL DEFENDANT
(Respondent)

FILE NO/S:

BD 2301/04

DIVISION:

Civil

PROCEEDING:

Chamber application

ORIGINATING COURT:

District Court

DELIVERED ON:

8 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

12 August 2004

JUDGE:

Tutt DCJ

ORDER:

1.   It is declared that pursuant to s.39(5)(c)(i) of the Motor Accident Insurance Act 1994 the claimant has remedied the non-compliance with s.37(2)(a) of the Act;

2.   That the respondent pay the applicant’s costs of and incidental to this application as agreed or assessed on the standard basis under the District Court scale.

CATCHWORDS:

Application for declaration that claimant remedied non-compliance – personal injuries from motor vehicle collision – unidentified motor vehicle – whether “a reasonable excuse” for his delay in not giving his Notice of Accident Claim.

Motor Accident Insurance Act 1994 ss. 37(2)(a), 37(3) and 39(5)(c)(i) and (ii).

Miller v Nominal Defendant [2003] QCA 558.

Perdis v Nominal Defendant [2003] QCA 555.

Piper v The Nominal Defendant [2003] QCA 557.

Piper v The Nominal Defendant [2003] QSC 39.

COUNSEL:

Mr G W Diehm for the applicant.

Mr R B Dickson for the respondent.

SOLICITORS:

Kelly & Agerholm for the applicant.

Tress Cox for the respondent.

1. The applicant seeks a declaration pursuant to s 39(5)(c)(i) of the Motor Accident Insurance Act 1994 (“the Act”) that the claimant has remedied the non-compliance with s 37(2)(a) of the Act in that the applicant has provided “a reasonable excuse” for his delay in not giving his Notice of Accident Claim to the Nominal Defendant “within three months after the motor vehicle accident” as required by s 37(2)(a) where the alleged offending motor vehicle cannot be identified. Such a declaration is now necessary to enable the applicant to proceed with his claim.

Facts

1. The applicant was involved in a motor vehicle collision on Wednesday 13 November 2002 when his stationary motor vehicle was struck by another vehicle which failed to remain at the scene of the collision and was not otherwise identified. This circumstance triggers the application of s 37(2)(a) aforesaid in respect of a Notice of Accident Claim.

1. At the time of the collision the applicant was acting in the course of his employment and was therefore eligible to claim workers’ compensation benefits for any incapacity for work and did in fact lodge an application for workers’ compensation dated 14 November 2002[1] the day following the collision and subsequently received compensation benefits.

   [1] See paragraph 3(c) of Statutory Declaration exhibit “CHW2” to the applicant’s affidavit sworn 17 June 2004.

1. The material shows that the applicant sustained personal injury in the collision and was conveyed to the Royal Brisbane Hospital by ambulance, x-rayed, examined and discharged to the care of his general practitioner with a recommendation that he undergo physiotherapy treatment.  The applicant states that he sustained injuries “…  to my left upper shoulder region and to the lumbar support area of my back moving across to…