LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION
PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS
– GENERALLY
– where the applicant was a paramedic with the Queensland Ambulance
Source
Original judgment source is linked above.
Catchwords
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATIONPERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS– GENERALLY– where the applicant was a paramedic with the Queensland AmbulanceService – where the applicant sufferedfrom post-traumatic stress disorderfrom a motor vehicle accident that occurred on 2 September 2018 – wherethe applicant filedan application and seeks an extension of time order for herto commence proceedings claiming damages for personal injuries againsttherespondents pursuant to s 31(2) of the Limitation of Actions Act 1974(Qld) – where the applicant alleges that she did not know the natureand extent of her psychological injury and that the psychological
injury was
caused by attending the accident until December of 2022 – where the
applicant submits that she did not know of the
identity of the first and third
respondents until 8 November 2023 – whether the facts relied on were
material facts –
whether any of the material facts were of a decisive
character – whether the applicant knew or had it within her means of
knowledge
to know of those facts – whether an extension of time should be
granted for the applicant to commence proceedings for damages
against the
respondents
Limitation of Actions Act 1974 (Qld), ss 30,
31
Motor Accident Insurance Act 1994 (Qld), ss 37, 39, 52,
57
Motor Accident Insurance Regulation 2018, reg 16, 17
Castillon
v P&O Ports Limited (No 2) [2008] 2 Qd R 219
[2007] QCA 364,
cited
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
[1984]
HCA 17, cited
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325,
cited
NF v State of Queensland [2005] QCA 110, cited
Pikrt v
Hagemeyer Brands Australia Pty Ltd [2006] QCA 112, cited
Pizer v
Ansett Australia Limited [1998] QCA 298, cited
Star Aged Living Limited v Lee [2024] QCA 1, cited
Judgment (62 paragraphs)
[1]
B F Charrington KC, with S McNeil, for the applicant
[2]
S J Williams KC for the first and third respondents
[3]
Moray & Agnew Lawyers for the first and third respondents
[4]
[1] By application filed on 21 August 2024 the applicant seeks a number of orders.
[2] Pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) (hereafter referred to as 'the Act') she applies for an order that the time limit for her to commence proceedings claiming damages for personal injuries against the second respondent be extended to 1 May 2023. Pursuant to s 31(2) of the Act she also applies for an order that the time limit for her to commence proceedings claiming damages for personal injuries, in respect of a motor vehicle accident that occurred on 2 September 2018, against the first respondent be extended to 9 November 2024. She also seeks leave pursuant to s 57 of the Motor Accident Insurance Act 1994 (Qld) to commence proceedings for damages based on liability for personal injuries against the first and third respondents caused by the motor vehicle accident of 2 September 2018. Various other orders (numbered 2, 3 and 7) are sought against the first and third respondents, however, it is agreed between the applicant and those respondents that it will only be appropriate to make those orders if the Court grants the applicant an extension of time as against the first respondent.
[3] The applicant's case for an extension of time against the three respondents depends on her establishing that prior to 6 December 2022 certain facts, said to be material and of a decisive character, were neither known to her nor within the means of her knowledge.
[4] The facts relied on are:
[5]
(a) the nature and extent of her psychological injury, whereby she did not know the nature and extent of the injury (post-traumatic stress disorder) until she became aware of the opinion of Dr Mungomery in December 2022 that:
(i) her condition was permanent, insofar as it was stable and stationary and she was unlikely to substantially improve with further treatment; and
(ii) she would not be able to return to her career as a paramedic; and
(b) that the accident caused the PTSD, which she did not become aware of until December 2022.
[6]
[5] However, even if the applicant does not make out her case in relation to either of these two asserted facts, her case for an extension of time against the first and third respondents is brought on an additional basis. This basis is that prior to 9 November 2023 the fact next referred to, again said to be material and of a decisive character, was neither known to her nor within the means of her knowledge.
[6] The further fact relied on is that she did not know the identity of the first and third respondents until after the receipt of documents disclosed by the second respondent to her solicitor, and this disclosure allowed her solicitors to do a point in time vehicle registration search on 8 November 2023.
[7] Each respondent concedes that the applicant has evidence to establish a right of action against it or him. It is therefore unnecessary to consider s 30(2)(b) of the Act. By the end of the hearing, none of the respondents contended that any relevant prejudice would be occasioned to it or him that would justify disallowing the application for an extension of time relevant to it or him. Even recognising that satisfaction of the conditions laid down in s 31(2)(a) and (b) does not "give an applicant a presumptive right to an order in their favour"[1], none of the respondents argued that there should not be orders in the applicant's favour if the conditions in s 31(2)(a) were found to be established.
[8] At the commencement of the hearing it was made clear, as between the applicant and the second respondent, that the applicant's case against it was not based on any allegation of breach of duty prior to 2 September 2018, the date of the motor vehicle accident.
[9] The matters in issue are therefore whether the applicant can show that any of the asserted facts she relies on are:
[7]
(a) material facts;
(b) of a decisive character; and
(c) that she neither knew those facts nor had it within the means of her knowledge to know those facts prior to 6 December 2022 in relation to two facts and 9 November 2023 in relation to the third fact.
"(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court -
[10]
(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b) ...
[11]
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly."
(1) For the purposes of this section and sections 31, 32, 33 and 34 -
[14]
(a) the material facts relating to a right of action include the following -
(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
(ii) the identity of the person against whom the right of action lies;
(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
(iv) the nature and extent of the personal injury so caused;
(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing -
(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
(ii) that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action;
(c) a fact is not within the means of knowledge of a person at a particular time if, but only if -
(i) the person does not know the fact at that time; and
(ii) as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time.
[15]
appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts."
[16]
[12] In relation to a provision analogous to s 31 of the Act, Dawson J said:[2]
[17]
"The form of the legislation requires, I think, a step-by-step approach. The first step is to inquire whether the facts of which the appellant was unaware were material facts: ... If they were, the next step is to ascertain whether they were of a decisive character: ... If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date: ..." (Reference to statutory provisions omitted).
[18]
[13] The applicant had been employed as a paramedic with the Queensland Ambulance Service from 2007. On the evening of 2 September 2018 she attended the scene of a single vehicle motor vehicle accident which had occurred at Mount Tamborine in her capacity as a paramedic with the Ambulance Service. It was necessary for her to remain with an injured young male passenger for about an hour. His arm had been almost completely amputated in the accident. The applicant retrieved his humerus bone from where it was lodged in a tree several metres from the vehicle.
[14] The applicant's ability to cope with work as a paramedic deteriorated from the period September/October 2018. On some days she had to go home from work early due to panic attacks. On some occasions on the drive to work she was overcome with panic and nausea and called in sick. Up to December 2018 she took 14 days off. On Christmas Eve 2018 she attended on Dr Norman, her general practitioner. She complained to her of anxiety attacks and fatigue. Dr Norman then, and on subsequent occasions prior to January 2021, considered that her symptoms related to perimenopause. Dr Norman issued a certificate for the applicant to take time off work until 7 January 2019.
[15] In the period between January 2019 and April 2019, the applicant took 100 hours sick leave. On or about 29 April 2019 when the matter of the extent of her sick leave was raised with her, the applicant broke down. She asked if she could reduce her work to part-time work or if she could work on a job share basis. On 7 May 2019 she told Dr Norman that her symptoms of fatigue, anxiety, agitation and low moods were worse than they had been in December 2018. She told the doctor she did not want to open work emails and was on "edge" during her shifts. Her officer in charge became concerned for her welfare and a job share arrangement was implemented for the applicant from 19 August 2019. Notwithstanding that she was then sharing her job with another officer, she was still required to work on a fulltime basis when that other officer was on leave.
[16] On 6 November 2019 she told Dr Norman that in the preceding 10 days she had had severe anxiety and found it hard to leave her bedroom.
[17] The applicant said that up until December 2020 she had many days off, struggled to cope with anxiety and with ruminations she had about traumas she had faced in her work. During 2020 her officer in charge suggested she might not be suitable to continue as a paramedic. On 11 August 2020 she complained to Dr Norman about having had extreme fatigue and that she had been confined to bed for two and a half days.
[19]
[34] Material facts include the nature and extent of the personal injury.[6] The applicant contends that there is information in Dr Mungomery's report which relates to the nature and extent of her injury. This report contained evidence that the injury was permanent and unlikely to be improved with further treatment, and that the applicant would not be able to return to work as a paramedic. The applicant says that she did not know the nature and extent of her injury until told of Dr Mungomery's opinion on 6 December 2022.
[35] Material facts also include the fact that the negligence caused the personal injury.[7] The applicant contends that Dr Mungomery's report contained evidence that the accident caused the PTSD. She says she did not know the accident caused her injury until told of Dr Mungomery's opinion on 6 December 2022.
[36] Also, the identity of the person against whom a right of action lies is a material fact.[8] The applicant contends that she only became aware of the identity of the third respondent which then enabled her, through her solicitor, to become aware of the identity of the first respondent, on 6 November 2023 when Crown Law disclosed documents to her solicitor. By 8 November 2023 her solicitor knew the identity of both the first and third respondents.
[37] Counsel for the first and third respondents did not direct any written or oral submissions towards the issue of whether any of the facts relied on were material. Rather, his submissions were directed to whether any of the facts relied on were of a decisive character and, more particularly, whether any were known to the applicant or within the means of her knowledge. Counsel for the second respondent did not argue that Dr Mungomery's opinion was not relevant to the nature and extent of personal injury and causation between the accident and the injury. He too directed his oral submissions to whether the facts were of a decisive character and to what the applicant knew or what was within the means of her knowledge. Although the second respondent's written submissions contained the assertion that the report of Dr Mungomery was "not a material fact",[9] this assertion was allied to the submission that the facts were "not new or material" to the applicant. I regard that submission to be relevant to the next two issues to consider, whether the material facts are of a decisive character and knowledge.
[20]
Were any of the material facts of a decisive character?
[21]
[39] Material facts are considered decisive if absent the alleged newly learned facts the applicant would not, even with the benefit of appropriate advice, have previously recognised that she had a worthwhile action to pursue and should in her own interests pursue it.[10]
[40] Knowledge that the accident caused the PTSD could be capable of being decisive, if it was a matter that someone in the applicant's position did not previously know or have within the means of her knowledge before being informed of Dr Mungomery's opinion. However, for the reasons set out at paragraphs [45] to [49] below, the applicant at least had within the means of her knowledge that the accident caused the PTSD well before Dr Mungomery completed his report. In these circumstances knowledge that Dr Mungomery considered that the accident caused the PTSD was not a fact of a decisive character.
[41] Knowledge of the fact that an injury was permanent and that it was such as to prevent the person from ever returning to the work previously done could be a fact of a decisive character. However, for the reasons which follow, this knowledge was not of a decisive character in the applicant's case because the evidence that I accept shows that the applicant knew, prior to December 2022, that she had available an action for substantial damages. Dr Mungomery's opinion might have assisted to show that the right of action was "more worthwhile"[11] but the evidence demonstrates that the applicant was aware, prior to being informed of Dr Mungomery's opinion, of a number of matters which would have justified her bringing an action. Those matters are as follows.
[42] Prior to attending the accident the applicant had been working on a full-time basis as a paramedic. Her income tax return for the financial year ending 30 June 2018 showed a gross income of $121,770. By 30 June 2020 her income tax return showed her gross income to be $66,393. The applicant did not return to work for the ambulance service after December 2020. Her income tax return for the year ending 30 June 2021 showed gross income of $42,469. She knew she had experienced a substantial loss in income by 30 June 2021. Also, by the time she last worked in December 2020 she was only working three days per fortnight whereas prior to 2 September 2018 she had been working full-time. Around 6 November 2019 she had told Dr Norman she had endured 10 days of severe anxiety and had experienced difficulties leaving her bedroom. Around 11 August 2020 she told Dr Norman she had been confined to her bed for two‑and‑a‑half days. By the end of 2020 she said, "I realised that I had no capacity to return to work. I experienced significant grief and loss due to giving up my work". The applicant stopped work in January 2021 and Dr Norman submitted an application on her behalf for workers compensation then. The applicant said that no one attributed her loss of function and fatigue to her work prior to December 2020, however, as will be seen from paragraph [48] below, that changed in early 2021. Dr Norman's notes dated 10 March 2021 record that, "Cant see self ever being able to return to QAS misses workmates ..." This stated belief that the applicant could never see herself returning to her job as a paramedic is very important evidence militating in favour of a conclusion that Dr Mungomery's opinion was not decisive. This is because it reveals that the applicant believed in March 2021 that her career was finished. Her situation was not one where she had been able to get on with life since September 2018. Rather, she had not been able to return to work full-time. The warning signs calling for prudent inquiry were there. The applicant's evidence about Dr Norman's note of 10 March 2021 was that this "wouldn't have been something that I have - I have said. I can't account for how Dr Norman may have written that ..." The obvious explanation for why Dr Norman noted this comment is that it was something that the applicant had told her. The applicant's evidence was that she always answered questions from Doctors Norman and Singh and Mr Rushton truthfully and accurately. The information in Dr Norman's note can only have been provided by the applicant. I cannot accept her evidence that she would not have provided that information.
[22]
[44] The applicant contends that prior to 6 December 2022 it was not within the means of her knowledge that the accident caused the PTSD. A fact is not within the means of knowledge of a person at a particular time, only if she did not know the fact at the time and she had taken all reasonable steps to find out the fact before that time.[16]
[45] On 6 April 2021 the applicant sent an email to WorkCover.[17] The contents of the email included the following:[18]
[23]
"I am writing to you in regards to my work cover claim regarding the date of injury/onset, as per my paperwork to follow.
[24]
Workcover are taking my injury date as the date I was first in contact with specialist and diagnosed with PTSD in January this year and not the mid September 2018 date of PTSD onset.
[25]
After speaking with my doctor's/specialists they are also perplexed as to why this is the case and it needs to be rectified asap and paid accordingly by reflecting the date of mid September 2018 (as per attached certificate) and the date needs to be rectified to reflect this.
[26]
Due to my PTSD and the severe stress and anxiety this is causing me as well as the added financial stress on top of what I am currently experiencing I've been meaning to attend to this and contact you earlier but anything to do with work sends me into a down hill spiral and I find it hard to cope and deal with ...
[27]
So can you please arrange to have this corrected and recalculated by Qas to reflect the correct injury date of 10/09/2018."
[28]
[46] The applicant accepted that the references in her email to mid-September 2018 were intended to mean the date on which she attended the accident at Mount Tamborine.[19]
[47] According to a medical certificate issued by Dr Norman on 31 March 2021,[20] Dr Norman certified that on 20 January 2021 she diagnosed the applicant with PTSD, major depression (reactive), with anxiety and panic attacks and insomnia (secondary to PTSD and anxiety). On the certificate Dr Norman wrote:
[29]
"It is difficult to apply a specific date of injury, as the current condition is the result of cumulative work experiences. But from Sep 2018, after she attended an MVA where a father who was drunk driving crashed resulting in the partial amputation of a childs arm, Sonia reports her PTSD symptoms and mental health significantly deteriorated in the days/weeks after this.
[30]
Her mental health and ability to work became significantly compromised and 3 to 4 months later Sonia approached her manager to request reduced working hours."
[31]
[48] On 3 February 2021 Dr Singh, the psychiatrist, diagnosed the applicant as having "multiple PTSD symptoms in the context of exposure to several traumas over the last 10 years".[21] Dr Singh did not link the PTSD to the accident. However, the applicant had also commenced treatment with Paul Rushton, a psychologist, in January 2021. In the consultation with Dr Norman on 31 March 2021 the applicant raised the date of injury with her. She asked Dr Norman to provide WorkCover with a certificate certifying the injury date as being September 2018, rather than 1 January 2018.[22] To the proposition that she wanted the date changed due to her attributing her deterioration in psychological functioning to the motor vehicle accident the applicant responded:[23]
[32]
"... with consultation and my treatment with Dr Rushton and ... I wanted to find out within myself when - how did this happen so I could fix it, and that part of the treatment with Paul Rushton, which part of it I didn't like because he'd make me go back and we'd work through what had ... occurred. And that was when within those few weeks, identified and attributed that everything I was experienced past that - from that accident was actually now diagnosed as PTSD. And I was filled with so much anger that it hadn't been picked up beforehand. And once sort of identifying that with Rushton, we felt we could then work forward. We'd found the cause and we could work forward and try and heal. In regards to the change of the medical certificate, for WorkCover ... that needed to be rectified. And I also - um - identified with Dr Norman that through my treatment, it had become obvious that the September 2018 was ... the catalyst for my demise ..."
[33]
[49] Having regard to the applicant's explanation about why she asked Dr Norman to change the date of injury which also explains why she wrote the email of 6 April 2021 in the terms that she did, it is clear that she at least had it within the means of her knowledge by April 2021 to discover that the accident of 2 September 2018 caused the PTSD. The applicant believed, by 6 April 2021, that it did. She knew by then that her psychologist considered it did too. The applicant therefore had a reasonable foundation for the belief that she had. Despite holding the belief she did not take the reasonable step of seeking a referral to obtain the opinion of a psychiatrist about the cause of her PTSD in the months after March 2021. As she said in the passage of evidence set out above, the applicant believed her PTSD was attributable to the accident. In a relevant sense this was a matter it can be concluded she knew.[24] Though even if this puts this matter too highly, it was as I have just concluded, a matter within the means of her knowledge.
[50] Although I have already concluded that Dr Mungomery's opinion that the condition was permanent, unlikely to substantially improve with further treatment and that the applicant would be unable to return to her career as a paramedic were not facts of a decisive character, I consider that even if they were all facts of a decisive character they were all within the means of the applicant's knowledge prior to receiving Dr Mungomery's report. The applicant believed by March 2021 that she could never return to her career as a paramedic. She knew by March 2021 that she had not worked in that role on a permanent full-time basis since August 2019, a period of one year and seven months. By December 2020 she believed she had no capacity to return to work. She did not ever return to work thereafter. By the end of March 2021 she still believed that she had no capacity to return to work and suffered grief and loss at having to give up the work. Believing her case to be as she expressed it, the applicant did not, in the months after March 2021, take reasonable steps to ascertain the nature and extent of her psychological injury.
[51] The issue of knowledge, or whether a person has taken all reasonable steps to find out a fact, is not to be considered from the perspective of a reasonable person but from the perspective of the applicant, a person who was dealing with PTSD and its impact on her personal and professional life. I consider that the applicant, even in these circumstances, had it within the means of her knowledge, if she did not know the asserted material facts, to ascertain these facts. Her email of 6 April 2021 demonstrated insight to her condition and was an effective effort to persuade WorkCover of the link between the accident and her condition. She pursued the issue of the date of injury with WorkCover again in June 2022.
[18] In late October 2020 the applicant requested that her work shifts be reduced again, to only three days per fortnight. This arrangement took effect from early November 2020. By the end of that year, when on holidays, she realised, "I had no capacity to return to work. I experienced significant grief and loss due to giving up my work".[3] However, she was unable to attribute her fatigue and loss of function to her work.
[19] By January 2021 she was housebound. She had no motivation to go out. Her symptoms had worsened. On 20 January 2021 she saw Dr Norman. The applicant said it was identified then that her psychological symptoms were caused by work. That day, Dr Norman "identified" that she had PTSD and made referrals for her to a psychiatrist and a psychologist. The applicant said in evidence that Dr Norman submitted an application for WorkCover benefits for her on 20 January 2021. She was issued with a certificate that stated that she had no capacity for work since 20 January 2021.
[20] The applicant said that she did not work as a paramedic again. She began treatment with Mr Rushton, psychologist in January 2021. In evidence she agreed that he diagnosed her as having PTSD that month. She began treatment with Dr Singh, psychiatrist in February 2021. In evidence she agreed that Dr Singh diagnosed her as having PTSD then. Dr Singh prescribed various medications which the applicant took. The antidepressant prescribed made her feel like a "walking zombie" until she stopped taking that drug in late 2022.
[21] Under cross-examination she agreed that in February 2021 she had told Dr Norman that she could not think about returning to work at that point.
[22] She also agreed that on 31 March 2021 she asked Dr Norman to change the WorkCover certificate injury date from 1 January 2018 to September 2018. It was suggested to the applicant that by this time (31 March 2021) she had attributed the deterioration in her psychological functioning to the accident. She said that with the assistance of Mr Rushton she had attributed her condition to the accident. She said that through her treatment with Dr Norman it had "become obvious that the September 2018 was ... the catalyst for my demise".[4] She said it was the date of her injury. Dr Norman provided a certificate which said that the applicant had no capacity to work until 10 June 2021 and which said that the doctor was unsure when the applicant could return to work.
[23] On 6 April 2021 the applicant sent an email to WorkCover. In that email she said that her injury had been incurred in September 2018 rather than in January 2021.
[24] On 14 June 2021 Dr Norman issued another certificate which stated that the applicant was incapable of work up to 10 September 2021. The doctor also stated that she was unsure when the applicant could return to work.
[25] On 9 July 2021 the applicant submitted an application for a review of the decision (made on 28 April 2021) to refuse her request to backdate the injury to September 2018. On 30 May 2022 the applicant was informed that this application for review had been unsuccessful. WorkCover advised her that there was no medical evidence to confirm a causative link to a work-related injury. The applicant pursued this matter further as mentioned at paragraph [29] below.
[26] The applicant said she consulted with Hall Payne Solicitors on 5 May 2022 and again on 9 May 2022 about her workers' compensation claim. They declined to act, however, they did tell her about a three-year time limit on common law claims for damages in workers' compensation matters.
[27] The applicant said that healthcare providers and other ambulance officers had told her she should seek advice about a forthcoming independent medical tribunal examination and about a potential common law claim.[5] By this time her union had referred her to Hall Payne for them to consider her application for review by the WorkCover regulator.
[28] On 31 May 2022 she consulted her present solicitors about her workers' compensation claim. Ms Denning, the solicitor who ultimately acted for the applicant in this application, informed the applicant on 31 May 2022 that her firm could not act for her with respect to the review application on a speculative basis. Ms Denning told the applicant that there was a three-year time limit for a common law action, that it was more appropriate for her to seek to utilise the services of Hall Payne to consider her review application and her common law options. Ms Denning told the applicant that the applicant needed to consider if she had a compulsory third-party claim (CTP) and for that she needed a police report number and the vehicle registration number. The applicant said that at that time she was not in a fit mental state to find out registration numbers for herself.
[29] On 16 June 2022 the applicant made another application to WorkCover for it to reconsider the matter of the date of her injury. That review was finalised in her favour on 11 November 2022.
[30] The applicant said that on or around 6 December 2022 Dr Mungomery's opinion was relayed to her. His findings made clear to her that her condition was permanent and that she could never return to work as a paramedic. His opinion led her to a realisation of the significance of her loss. She said that he considered that her PTSD was due to, inter alia, the accident. Her failure to consult any lawyers between June 2022 and February 2023 was because she was struggling with her illness and directing her efforts towards achieving an outcome of the review application that she had made with WorkCover. Her psychiatric and psychological treatment continued fortnightly. Upon her condition becoming more stable, she sought legal advice from Ms Denning in February 2023. She said that on 27 February 2023 she told Ms Denning that Hall Payne had not been willing to act for her. On 21 March 2023 Ms Denning said that her firm would act for the applicant in a workers' compensation common law claim. On 24 March 2023 she raised the question of a CTP claim with respect to the motor vehicle accident with Ms Denning. Ms Denning said that she could not recommend a CTP claim due to insufficient evidence.
[31] The applicant agreed in cross-examination that her gross income had declined considerably since the accident in September 2018. She agreed that her tax return for the income tax year ending 30 June 2018 showed a gross income of $121,770, whereas the return for the income tax year ending 30 June 2021 recorded her gross income as $42,469. She agreed this reduction in income was due to reduced working hours due to her psychological symptoms.
[32] Ms Denning said that she received instructions to act for the applicant in relation to her claims against the respondents on 27 March 2023. At that time Ms Denning did not have information about the date of the motor vehicle accident, the traffic incident report number, the registration number of the vehicle or the identity of the driver. On 22 June 2023 she caused a letter to be sent to WorkCover attaching a Notice of Claim for Damages and requested that WorkCover disclose all documents held by WorkCover or the Ambulance Service relating to the circumstances of the event resulting in injury. Further requests for information about the accident were sent on 5 July, 2 August and 10 August 2023. On 17 August 2023 Crown Law disclosed a QAS Incident Detail Report to Ms Denning. It identified the date of the accident as 2 September 2018. On 6 September 2023 Ms Denning had further correspondence sent to Crown Law noting that the report that had been disclosed contained redactions of information that might have identified the driver of the vehicle. She asked for an unredacted copy of the report. On the same day, she submitted a right to information request to the Police Service seeking access to the traffic incident report relating to the accident. On 14 September 2023 Crown Law provided her with an unredacted copy of the Ambulance report. It contained the name of the driver.
[33] On 20 September 2023 Ms Denning had an inquiry made with the Department of Transport to obtain information about how one might obtain a person's motor vehicle registration number if only utilising a name and address. The Department of Transport advised her that she would need to contact the Police Service. The Police Service disclosed a document in response to her right to information request on 12 October 2023, however, that document did not contain the registration details of the motor vehicle. Further efforts to obtain the registration number through CITEC proved fruitless. On 30 October 2023 Ms Denning wrote a letter to Crown Law asking for WorkCover to utilise a memorandum of understanding it apparently had with the Police Service to obtain the information about the vehicle. Finally, on 6 November 2023 Crown Law disclosed Police Service records which revealed the registration number of the vehicle involved in the accident. On 8 November 2023 Ms Denning caused a search to be conducted with CITEC to identify the compulsory third-party insurer of the vehicle. Later that day, CITEC disclosed to her that the first respondent was the compulsory third-party insurer of the vehicle at the time of the accident.
[38] I am satisfied that the three facts relied on by the applicant set out at paragraphs [4] and [6] above are material facts as that expression is defined in s 30(1) of the Act.
[43] Gaining knowledge of the identity of the person against whom a right of action lay is clearly a fact of a decisive character because knowing the identity of a defendant would be a matter a reasonable person would regard as showing that an action against the compulsory third party insurer and the driver would have a reasonable prospect of success. Ms Denning said that absent knowledge of the registration number of the vehicle involved in the accident she could not recommend a compulsory third‑party claim. Accordingly, I consider that the discovery of the identity of the first and third respondents on 8 November 2023 was a fact of a decisive character.
[52] I accept the applicant's evidence that it was beyond her capacity to discover the identity of the first and third respondents. A reasonable step to take to discover their identity would have been to instruct solicitors to pursue the issue with a view to commencing an action. The applicant did this in March 2023. I accept Ms Denning's evidence that until she could ascertain the registration number of the vehicle involved in the collision it was not possible for her to ascertain the identity of the insurer. This was important because if an action is brought for damages for personal injuries arising out of a motor vehicle accident the action must be brought against the insurer and the insured person.[26]
[53] Ms Denning's evidence was that the steps she took to ascertain the identity of the first respondent did not result in her obtaining that information until November 2023. I consider that she took reasonable steps to do so. The first and third respondents argued that armed with knowledge of the date of the accident and the location of the accident Ms Denning could have served notices of claim pursuant to s 37 of the Motor Accident Insurance Act on each of the licensed insurers and an insurer's obligation to respond to the notice it received[27] would thereby have revealed which one was the insurer of the vehicle involved within 14 days. Ms Denning's response was that the notice of claim required the claimant to serve the notice on the "correct CTP insurer",[28] by which I understood her to mean the entity which was in fact the insurer of the vehicle involved in the accident of 2 September 2018.
[54] 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" and the notice must contain a statement of the information required under a regulation.[29] A notice of claim must be in the approved form.[30] The notice must include information about the make, model, type, colour, year of manufacture, and registration number of each vehicle involved in the accident to the extent the claimant knows or can reasonably find out.[31]
[55] In view of the requirement that the notice contain the registration number to the extent the claimant knew it or could reasonably find it out I do not consider that the applicant, through her solicitor, could properly have employed the statutory process provided for in s 37 of the Motor Accident Insurance Act as a means of discovery against all the licensed insurers to identify the relevant insurer.
[56] However, in view of my conclusions about what was within the means of the applicant's knowledge by about the middle of 2021, I consider that it was then that the applicant was obliged to take reasonable steps to find out the identity of the first and third respondents. A reasonable step would have been to have instructed solicitors to pursue this information with a view to making a claim, as consulting a solicitor would have resulted in the applicant being informed about the possibility of pursuing a CTP claim. Even allowing for the hurdles Ms Denning encountered in ascertaining the identity of the first and third respondents it would have been within the means of the applicant's knowledge if assisted by a solicitor to have discovered their identity by early 2022.