Brannigan v The Nominal Defendant [1999] QCA 347

Court of Appeal (Qld)|1999-08-24|Before: Jersey CJ, McPherson JA, White J

1 On 9 July 1998, the appellant filed a plaint in the District Court claiming damages for personal injuries. The appellant allegedly sustained his injuries in a collision on 13 April 1997 between the vehicle he was driving and an unidentified motor vehicle. The appellant alleged that the collision occurred because of the negligence of the driver of that unidentified vehicle. Hence the defendant to the plaint, and the respondent to this appeal, is the Nominal Defendant.

2 By summons dated 23 April 1999 the respondent sought an order striking out the action on the ground that it was barred by s 37 of the Motor Accident Insurance Act 1994. A learned District Court Judge made that order, against which the appellant now wishes to appeal.

4 The Motor Accident Insurance Act sets up a legislative scheme designed, as especially relevant to this case, "to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents" and "to establish and keep a register of motor vehicle accident claims to help the administration of the statutory insurance scheme and the detection of fraud" (s 3).

5 Consistently, s 37 obliges a claimant to give early comprehensive notice of a claim to the Nominal Defendant. Its terms follow:-

"37.(1) Before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident, a claimant must give written notice of the claim to the insurer, or 1 of the insurers, against which the action is to be brought--

(a) containing a statement, sworn by the claimant, of the information required by regulation; and

(b) containing an offer of settlement, or a sworn statement of the reasons why an offer of settlement cannot yet be made; and

(2) The notice must be given within 9 months after the motor vehicle accident or the first appearance of symptoms of the injury.

(3) However, if the motor vehicle cannot be identified, the notice must be given to the Nominal Defendant within 3 months after the motor vehicle accident.

(4) If the notice is not given within the time fixed by this section, the obligation to give the notice continues and the notice, when given, must contain an explanation of the delay but, if a motor vehicle accident claim relates to injury cause by, through or in connection with a motor vehicle that cannot be identified and notice of the claim is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred.

(5) If 2 or more motor vehicles were involved in the motor vehicle accident, the insurer to which a notice of claim is given under subsection (1) must, within 7 days after receiving it, give a copy of the notice to any other insurer of a motor vehicle involved in the motor vehicle accident."

6 The period of three months prescribed by s 37(3) expired on 13 July 1997. The appellant did not give the required notice within that period. He first consulted a lawyer on 31 October 1997, and gave notice in purported compliance with his continuing obligation under s 37(4) on 24 December 1997. That notice did not however "contain an explanation of the delay", that is as to the delay from 13 July 1997, as required by s 37(4). On 20 January 1998 the solicitors for the respondent drew this deficiency to the appellant's attention. The learned judge subsequently relied on that deficiency in declaring the action barred because of s 37(4).

7 Counsel for the appellant submitted that "where notice is given within the nine month period but contains some defect (such as the absence of an explanation for the delay) the notice is still valid subject to a requirement that the defect be remedied."

8 In assessing that submission, 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.

9 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.

10 With relation to the objects of the Act (s 3), requiring an explanation is an integral, possibly important part of a tight regime conducing to the speedy resolution of claims and intended to discourage fraud. Also, as submitted for the respondent, "the explanation itself may guide the Nominal Defendant to a line of inquiry as to the existence or otherwise of the unidentified vehicle".

11 We were referred to McKelvie v Page (1998) 27 MVR 292, where Wilson J held that where a claimant had given the Nominal Defendant a defective notice under s 37, and subsequently remedied the defects, albeit after the expiration of the prescribed nine month period, the court retained a discretion under s 39(5)(c) to grant leave, nunc pro tunc, for the bringing of proceedings for damages despite non-compliance. The respondent in this Court challenged the correctness of that decision. It is not however necessary in this case to consider the issue. For discretionary reasons, Wilson J in fact declined to grant leave - because the claimant could not provide sufficient evidence of the negligence to be established were the case to go forward. What is significant for present purposes is that Her Honour was not there concerned with the case of an unidentified vehicle, but an unregistered vehicle, and that immediately distinguishes this case from McKelvie v Page. For present purposes, s 37(4) is clear in its provision that failure to give "notice of the claim" within nine months, in a case involving an unidentified vehicle (but not an unregistered vehicle), results in the barring of the claim.

12 Counsel for the appellant pointed out that whereas the opening words of the subsection couple reference to the notice with reference to inclusion of the explanation, the later words, relating specifically to claims against the Nominal Defendant in respect of unidentified vehicles, refer only to the notice of claim. But no significance favourable to the appellant can be drawn from that. There was no need to refer again later in the provision to the inclusion of the explanation: the requirement for that had already been spelt out, and applies plainly to the species of claim referred to in the later part of the subsection.

13 We were referred to s 39, which contemplates that an insurer might waive defects in such notices or give a claimant the opportunity to rectify them. The section provides that even if the claimant's notice is given out of time, the insurer must within a month either confirm its satisfaction that the notice has been given as required, or waive any non-compliance, or "if the insurer does not waive compliance with the requirements - (allow) the claimant a reasonable period (at least one month) specified in the notice either to satisfy the insurer that the claimant has in fact complied with the requirements or to take reasonable action specified in the notice to remedy the non-compliance." Subsection 39(5)(b) contemplates that if a claimant is "dissatisfied with the insurer's response to a notice of a claim", the court may declare that the notice of claim was given in compliance with the Act, or that the claimant be taken to have remedied the non-compliance. Further, the court might "(give) leave to bring the (damages) proceeding despite non-compliance" (subs 5(c)).

14 But in the case of a claim against the Nominal Defendant in respect of an unidentified vehicle, these possibilities, potentially beneficial to the claimant, are excluded by s 39(8), in conformity with the intention obviously behind s 37(4). Section 39(8) provides:-

"If a claim against the Nominal Defendant is barred because the claim relates to personal injury caused by, through or in connection with a motor vehicle that cannot be identified and the claimant failed to give notice of claim under this Division within nine months after the motor vehicle accident, the Nominal Defendant cannot waive compliance with the requirement to give notice within the time allowed by this Division, nor can the Court give leave to bring a proceeding in a court despite the noncompliance."

15 It may therefore be seen that the legislature saw claims for damages in respect of unidentified vehicles as falling into a special category justifying an even stricter regime, a regime less accommodating of laxity or other non-compliance on a claimant's part, more "supportive" of the Nominal Defendant as the relevant insurer. The reasons for this are obvious enough, principally the prime need for the earliest possible investigation of the circumstances of the alleged accident and seeking out the allegedly negligent other driver, and more broadly the prevention of fraud. In these particular cases, there is effectively no capacity for extension of the nine month cut-off limitation, and the requirement for the required notice within that period is apparently inflexible.

16 The critical ultimate issue is therefore whether, even though it did not contain the explanation which the statute prescribed be included, this notice given in purported compliance with s 37 was nevertheless sufficient for the purposes of the section. For reasons discussed above, the language of the Act strongly suggests not, and that is consistent with the promotion of its objects. The learned judge's decision was correct.

17 Leave to appeal should be granted, but the appeal dismissed, with costs to be taxed.

1 I have read the reasons for judgment of the Chief Justice and McPherson JA. I agree that this appeal should be dismissed.

2 The Chief Justice has mentioned two of the objects of the Motor Accident Insurance Act. A further object set out in s 3 is

"to continue and improve the system of compulsory third-party motor vehicle insurance, and the scheme of statutory insurance for uninsured and unidentified vehicles, operating in Queensland."

McPherson JA has referred to the previous statutory scheme which enabled a claim to be brought when a person was injured by, through or in connection with an unidentified motor vehicle, Motor Vehicles Insurance Act 1936, s 4F(3).

3 What has altered in a significant way is the removal of the discretion which a court had

to extend the period for bringing a claim against the Nominal Defendant after the expiration of six months from the date of the accident but within the limitation period. Under the previous legislation the Nominal Defendant had to be notified within three months of the accident but could extend time to six months in certain circumstances, s 4F(4)(b)(i). Even under the previous regime the Nominal Defendant between six and nine months from the accident and the court thereafter had to be satisfied that the delay in giving notice of the claim was not through any act or omission of the claimant or any person acting on the claimant's behalf. A stricter regime now prevails for claims against the Nominal Defendant in respect of an unidentified vehicle. This appears to recognise in a more complete way the risk of prejudice to the Nominal Defendant if late claims are permitted to be advanced which was adverted to in cases such as Facey v The Nominal Defendant (Queensland) [1966] Qd R 65 at 73 and Ussher v The Nominal Defendant (1957) 74 WN (NSW) 370 at 372.

4 As the Chief Justice and McPherson JA have set out, s 39(8) bars a claim against the Nominal Defendant in respect of an unidentified motor vehicle if the claimant fails to give notice of the claim within nine months of the motor vehicle accident. The Nominal Defendant may not waive compliance with this requirement and neither may a court give leave to bring a proceeding in court despite non-compliance which it might do in respect of other "defective" notices of claim, s 39(5)(c).

5 The language employed in s 37(4) to indicate the obligation to provide an explanation of the delay after the three month period stipulated does not appear well-chosen. The expression requiring the notice when given to "contain" an explanation of the delay strikes one as inapt for at least two reasons. The form of notice provided for in the regulations contains no provision for an explanation as to delay. McPherson JA has referred to an explanation accompanying the notice as a difference which would not be regarded as crucial but an explanation given in a separate document sent some days later but still within the nine month period could not sensibly fall within the meaning of "contain". It is not necessary to decide this issue finally because no explanation for the delay was given within nine months from the date of the motor vehicle accident. A practical resolution would be to issue a fresh notice which contained the explanation for the delay. Some consideration might be given, if the forms are to be revised, for including a heading for an explanation for delay should the notice be given more than three months after but within nine months of the motor vehicle accident.

6 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 The facts and the terms of the relevant statutory provisions are set out in the reasons for judgment of the Chief Justice, which I have had the advantage of reading.

2 Section 37(1) of the Motor Accident Insurance Act 1994 imposes a condition precedent to the bringing of an action for damages for personal injury arising out of a motor vehicle accident that the claimant (meaning by s4 a person making a motor vehicle claim) give written notice of the claim to the insurer. In determining who in this instance is the insurer, reference must be made to s31(1)(d), which provides that, if the motor vehicle cannot be identified, the Nominal Defendant is the insurer.

3 What is meant by "written notice of the claim" in s37(1) is to be gathered from paras (a) to (c) of that subsection. The notice of claim is to: (a) contain a statement of the information required by regulation; (b) contain an offer of settlement, or reasons why such an offer cannot be made; and (c) be accompanied by the documents required by regulation. Ordinarily, the notice must be given within 9 months after the motor vehicle accident or the first appearance of the symptoms of the injury: s37(2). However, if the motor vehicle cannot be identified, the notice must by s37(3) be given to the Nominal Defendant within three months after the motor vehicle accident.

4 In the present instance, the plaintiff claims to have been injured in a motor vehicle accident in circumstances in which the vehicle cannot be identified. The accident happened on 13 April 1997. He did not give notice of his claim until 24 December 1997, which was more than three months (which expired on 13 July 1997) after the accident, so it did not comply with s37(3). That consideration is, however, not necessarily fatal to the claim. Section 37(4) provides that, if notice is not given within the time fixed by s37, then the obligation to give notice continues; and "the notice, when given, must contain an explanation of the delay ...". The delay of which explanation is required by that provision is, clearly enough, the delay in giving notice to the insurer within the period specified in s37(2) of nine months; or, if the motor vehicle cannot be identified, the period of three months specified in s37(3) in the case of a claim against the Nominal Defendant.

5 Section 37(4) then proceeds:

"... but, if a motor vehicle accident claim relates to injury caused by, through or in connection with a motor vehicle that cannot be identified and notice of the claim is not given to the Nominal Defendant within 9 months after the motor vehicle accident the claim against the Nominal Defendant is barred."

The central question on this application for leave to appeal is what is comprehended by "notice of the claim" in the extract just quoted from s37(4). Does it refer only to notice of the claim narrowly confined to that specified in s37(1); or does it refer more broadly to notice of the claim as expanded by s37(4) to include "the explanation of the delay", which is required by that subsection to be contained in it once the period of three months has expired? The answer is critical to the determination here, because the plaintiff's notice of the claim given on 24 December 1997 did not contain an explanation for the delay in giving it within three months, although the notice of claim under s37(1) was in fact itself given within the period (which expired on 13 January 1998) of nine months after the accident. In all other respects it conformed to the requirements of s37(1) and of the regulations referred to in that subsection.

6 In the collocation of provisions that go to make up s37, the language used to identify the notice is not entirely uniform. Section 37(1) begins by referring to it as written "notice of the claim". In s37(5) the verbiage is "a notice of claim". In that instance it is expressly identified with the notice under s37(1) by the more precise description of it in s37(5) as a notice of claim "given under subsection(1)". Section 37(5) deals, however, with a special subject-matter, which is the giving of a copy of the notice of claim by one insurer to another where two or more vehicles were involved in the motor vehicle accident. It does, however, suggest, even if only faintly, that the primary meaning of the expression "notice of the claim" used in s37 is the notice under s37(1), and not the expanded version of the notice envisaged by s37(4) as containing an explanation of the delay.

7 This impression of s37(4) is to some extent borne out by the form of notice prescribed by the Motor Accident Insurance Regulations 1994. Section 10(1) of those Regulations specifies in some detail particulars of various matters to be incorporated in "a notice under section 37 of the Act". They all relate or are relevant to the form of the motor vehicle claim being made rather than to the process of making the claim itself. Section 10(3) of the Regulations expressly provides that the notice must be in a form approved by the Commission "and the statements of fact contained in the notice must be sworn to by the claimant".

8 The form of notice specified in Regulation 10 does not require that it incorporate an "explanation of the delay" as provided in s37(4), and it is only the most narrowly defined notice under s37(1) which is by that provision itself expressly made a condition precedent to bringing an action for damages for personal injury by a claimant against the insurer or the Nominal Defendant. Indeed, it does not seem an altogether natural use of language to speak of an explanation for not giving timely notice of a claim for damages as if it formed part of the claim itself or of the notice of the claim being made. To be weighed against this are the considerations mentioned in the reasons of the Chief Justice. Primarily they are these. First, that the terms of s37(4) are mandatory. The nine-month notice under that provision "must" contain an explanation of the delay. I am, however, not fully persuaded that the use at this juncture of mandatory language is decisive. The author of s37(4) could hardly have been expected to leave the giving of the explanation to the discretion of the claimant by using the word "may" instead of "must". The second and more cogent consideration is the use of the word "contain". The nine-month notice under s37(4) must "contain" an explanation of the delay, in the same way as it must "contain" the matters specified in s37(1)(a) and(b). One wonders, however, whether the requirement under s37(4) is meant to be read as literally as this language might initially suggest. If the explanation were merely to accompany, rather than be contained in, the notice of claim under s37(1), it seems unlikely that the difference would be regarded as crucial.

9 Finally, there is the general policy of the legislation. As regards the Nominal Defendant, one of the legislative purposes of the 1994 Act is to suppress fraudulent claims to which, it may be accepted, the Nominal Defendant is peculiarly prone. The absence of any explanation for delay in giving notice of the claim under s37(1) is a factor that tends to support the contention that incorporating it in the nine-month notice given under s37(4) is an indispensable requirement in the case of a claim involving an unidentified vehicle. That impression is partly confirmed by the provisions of s39. Its provisions in effect require an insurer to which a notice of claim is given to respond to it in various ways, by stating for example whether the insurer is satisfied that the notice has been given as required; or, if not so satisfied, by waiving compliance with those requirements: see s39(1). In the end, the court is invested by s39(5)(c) with a power to grant leave to bring a proceeding despite non-compliance with the requirements of this division of the Act. Significantly, however, the court is by s39(8) precluded from exercising that power, and the Nominal Defendant from waiving compliance with those requirements, if the claim against it is barred because it relates to personal injury caused by a motor vehicle that cannot be identified "and the claimant failed to give notice of claim under this division within 9 months after the motor vehicle accident".

10 It may be noticed that it is only in respect of a claim involving an unidentifiable motor vehicle that s37(4) and s39(8) operate respectively: (i) to bar the claim, and (ii) to preclude waiver of the notice of claim or the giving by the court of leave to bring a proceeding despite non-compliance with the notice requirement. The case of an uninsured vehicle, which under s31(1)(c) of the Act is the other area of potential liability on the part of the Nominal Defendant, is not affected by either of those two specific provisions. That being so, it is instructive to refer briefly to previous legislative history. Claims against the Nominal Defendant in respect of injuries caused by uninsured or unidentifiable vehicles were first authorised by the Motor Vehicles Insurance Act 1936 as amended in 1961. In the further amended form in which that Act stood before repeal by the current Act of 1994, the Nominal Defendant was not liable in respect of a claim unless it was made or notice of it was given within three months of injury: see s4F(4)(a); but the Nominal Defendant had power under s4F(4)(b)(i) to extend that time for a further period of three months (making six months in all); and the court had power under s4F(4)(b)(ii) to extend it for any period not exceeding the limitation period.

11 Under each of s4F(4)(b)(i) and s4F(4)(b)(ii), the Nominal Defendant, or, as the case might be, the court, had, before extending the time, to be satisfied that failure to give notice was not occasioned by any act or omission of the claimant or any person acting on his behalf, which was judicially construed as referring to the first period of three months mentioned in s4F(4)(a). See Smith v The Nominal Defendant (Queensland) [1965] Qd R 1 and Halleday v The Nominal Defendant (Queensland) [1965] Qd R 7. Satisfaction that the failure to give notice was not so occasioned was held to be a condition precedent to the exercise of the power to extend time conferred by s4F(4). Looking at the amendment to the legislation effected in 1963 and comparing it with the state of affairs introduced by the Act in 1994, one can discern a progressive tightening of the conditions for making claims against the Nominal Defendant in the case of an unidentifiable vehicle.

12 What is particularly significant for present purposes is that under the former legislation no distinction was made between a claim against the Nominal Defendant in respect of an injury according to whether it was caused by an uninsured or by an unidentifiable vehicle. In either case an explanation of the failure to give notice within the first three months was a prerequisite to obtaining an extension of time whether from the Nominal Defendant during the second three months, or, after that period, from the court. Under s37 of the current Act of 1994 notice of claim must still be given to the Nominal Defendant within three months or, with an explanation of the delay, within nine months; but, if it is not given within that time, a claim in respect specifically of an unidentifiable vehicle is absolutely barred by s37(4); and the former power of the Court to dispense with it is completely removed by s39(8).

13 This still does not directly answer the question whether explanation of the delay is an indispensable part of the nine-month notice required by s37(4); but it goes some way towards it. The obligation of giving notice of claim to the insurer including the Nominal Defendant as a condition precedent to enforcing it in legal proceedings has been extended to nine months by s37(2) of the current Act, unless the vehicle is not identifiable in which case the old initial three month period has been retained. The opportunity of giving notice of claim even in that case is expanded by s37(4) to a period of nine months; but it has also been coupled with a requirement after the first three months of explaining to the Nominal Defendant the delay in not giving the notice earlier. It would be surprising if the Act of 1994 had been intended to dispense altogether with such an explanation as an essential requisite. On the contrary, it is evident that there is a policy of deliberately restricting the circumstances in which a person can pursue a claim against the Nominal Defendant for injury caused by an unidentifiable vehicle, which is reflected both in the express provision barring the claim in s37(4) and in the complete removal by s39(8) of the court's power to extend the time within which notice of such a claim may be given. The delay is now to be explained to the Nominal Defendant rather than the court, and under s39(8) not even the Nominal Defendant can waive compliance with the requirement to give notice "under this division", of which s37(4) forms a part.

14 The result and the process of reasoning by which it is reached are not entirely satisfying or satisfactory. It might perhaps be different if the legislation had the effect of removing a pre-existing right of action arising under the general law for damages for personal injury: cf Georgiadis v Australian & Overseas Telecommunications Corporation (1993-4) 179 CLR 297, 306. But here the plaintiff's only claim to recover from the Nominal Defendant damages for his injury is essentially a product of a statutory enactment. The conditions of its existence or enforcement may therefore be altered, restricted or removed by statute without invading or impinging upon presumptions about legislative intent, or the absence of it, that are more readily available in the case of a right recognised at common law. The statutory claim has now been hedged about by the requirement that an explanation be given for the delay in notifying it.

15 Having failed to comply with the requirement of s37(4) of the Act for explaining the delay in giving his notice of claim, the plaintiff was under s37(1) not entitled to bring an action in a court against the Nominal Defendant for damages arising out of a motor vehicle accident relating to personal injury caused by a motor vehicle that cannot be identified. The learned judge of District Courts was therefore correct in striking it out.

16 I agree that leave to appeal should be granted, but the appeal dismissed with costs.

Accident Insurance Act 1994

Accident Insurance Regulations 1994

Vehicles Insurance Act 1936

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