Motor Vehicle (Third Party Insurance) Act 1943 (WA) s 29, s 29A

McKinnon v Turner (1989) 6 SR (WA) 192

Smith v Mangione (1992) 8 SR (WA) 319

Summerville v Johnston (1979) 1 SR (WA) 207

1 IPP J: I have read the reasons to be published by Steytler J. I agree with them and his Honour's conclusions. I have nothing further to add.

2 MURRAY J: I have read the reasons for decision to be published by Steytler J, with which I agree. There is nothing I could usefully add.

3 STEYTLER J: This is an appeal from a decision of a Commissioner in the District Court.

4 On 27 November 1997 the appellant commenced an action against the respondent in respect of a motor vehicle accident which occurred on 24 August 1993. The respondent admitted her negligence but did not admit that the appellant had suffered the injuries, loss and damage alleged by him. Moreover, the respondent said, neither the appellant nor anyone on his behalf gave notice in writing to the State Government Insurance Commission of his intention to make his claim as soon as practicable after the motor vehicle accident, as required by s 29(1) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA). That being so, the respondent contended, his claim is not maintainable. This question was tried as a preliminary issue on 24 February 1999. The learned Commissioner upheld the respondent's contentions and it was this which gave rise to the appeal.

5 At the conclusion of argument on the appeal the court unanimously allowed the appeal, set aside the decision of the learned Commissioner, remitted the matter to the District Court for further hearing and made an order under s 29AA of the Act giving to the appellant leave to proceed with his action notwithstanding any failure by him to comply with s 29(1) of the Act. These are my reasons for joining in that decision.

6 Section 29(1) of the Act provides, in effect, that a person proposing to commence proceedings in respect of death or bodily injury caused by the driving of a motor vehicle by some other person must first give notice in writing as prescribed by the regulations to the Insurance Commission of Western Australia (formerly the State Government Insurance Commission) of his or her intention to make that claim. The notice must be given as soon as practicable.

Notwithstanding the provisions of section 6A(3), of section 7(2) and (3), section 8(5), and section 29(1), where the court in which an action is brought, or (as the case may be) is sought to be brought, to recover damages against an insured person or the Commission in respect of the death of, or bodily injury to, any person, directly caused by, or by the driving of, an insured or an uninsured motor vehicle, considers the failure to give notice, or the defect in any notice, or the failure to make due search and inquiry, as required by one or other of those subsections, was occasioned by mistake, inadvertence or any other reasonable cause or that the Commission is not materially prejudiced in its defence or otherwise by the failure or defect, the court may -

(a) where the action is commenced, at any stage of the proceedings, if it thinks fit, relieve the plaintiff of the effect of that failure or defect; or

(b) where an action is sought to be brought, if it thinks fit, grant the applicant leave to proceed, notwithstanding that failure or defect."

8 The learned Commissioner found that the appellant did not give to the Commission the notice required by s 29(1). He also found that the failure to do so was not occasioned by mistake, inadvertence or any other reasonable cause and that the Commission was materially prejudiced in its defence as a consequence of the failure to give notice.

9 Because I have arrived at the conclusion that the learned Commissioner erred in finding that the Commission was materially prejudiced in its defence to the plaintiff's claim it is necessary for me to consider only the ground of appeal which attacks that finding.

10 The evidence disclosed that the appellant attended the Rockingham/Kwinana Hospital on the evening of 24 August 1993 shortly after the accident. He was there examined by Dr Molton who diagnosed a minor soft tissue injury. Dr Molton was then of the opinion that no treatment was required and the appellant was consequently discharged.

11 The appellant telephoned the Commission and reported the accident on 26 August 1993. He did not lodge any written claim form. However his oral report was to the effect that he had suffered an injury to the soft tissue in his neck and injuries to his back, knee and wrist. He said in evidence that he told the Commission that he intended to seek medical treatment. He vaguely recalls that he was given a claim number and believes that he gave that number to Mr Ian Lowther, a sports physiotherapist who provided physiotherapy services to him and who forwarded medical bills directly to the Commission for payment.

12 Notwithstanding that the Commission twice sent to the appellant documentation asking him to lodge a written claim form he did not do so. However he did lodge what was described by the learned Commissioner as a "duly completed accident report form dated 30 September 1993".

13 It seems that on 21 October 1993 the appellant saw a general practitioner, Dr M E Rasool, in respect of his injuries and that, on the same day, he saw Dr John Fraser, a radiologist.

14 On 26 October 1993 the Commission received a report dated 21 October 1993 from Dr Fraser which said, of the appellant, that:

"The vertebrae are in normal alignment, with good preservation of the disc spaces. There is some minimal degenerative lipping around the superior end plate of L5, but no other features of note are seen. The posterior facet and sacro-iliac joints are normal."

15 Accounts submitted by Outram Centre Physiotherapy dated 1 November 1993, 1 December 1993, 14 December 1993, 4 January 1994 and 1 February 1994 for treatment provided to the appellant by another physiotherapist, Alison Thorpe, were paid by the Commission.

16 In May 1994 the appellant had his left wrist x-rayed and an account dated 27 May 1994 was submitted by the radiologist, Dr Claude Cianciullo, to the Commission.

17 By letter dated 3 August 1994 the Commission again invited the appellant to lodge a written claim form. Once again he did not do so.

18 The Commission thereafter treated its file as inactive until it heard from the appellant's solicitors by way of a letter dated 6 August 1996 when the claim for damages was first foreshadowed.

19 The Commission first received a report from Dr Rasool on 16 December 1996. That report was dated 25 November 1996 and, in it, Dr Rasool said that the appellant only consulted him once in relation to his accident-related injury and that this took place on 21 October 1993. On that occasion, he said, the appellant told him that he had had sciatic nerve problems and a right knee problem for years and that he was attending a manipulative physiotherapist. He said that the appellant also told him that he had muscle wasting in his right thigh. He said that the accident had "flared up these problems" and that as a consequence the appellant's principal problem was one of "pain in the back and the right leg". Dr Rasool diagnosed back strain. He said that x-rays showed "minor degenerative changes to the appellant's spine and especially the superior endplate of L5".

20 The Commission has also since received a medical report by Dr Keith Holt, a sports medicine specialist, dated 2 January 1997 together with copies of reports provided by Dr Holt to a general practitioner, Dr Ross Jose, dated 21 December 1992 and 22 December 1992 respectively.

21 In his report dated 2 January 1997 Dr Holt said that he had last seen the appellant in December 1992, some 8 months prior to the accident. At that time the appellant had left-sided patellofemoral pain or chondromalacia. He suggested that this was "a pre existing ailment and therefore the ongoing patellofemoral pain that ... [the appellant] has suffered may not be entirely due to his motor vehicle accident".

22 In the report by Dr Holt to Dr Jose dated 21 December 1992 Dr Holt said, inter alia:

"Thanks for referring this man who has had 2 years of what has essentially been posterior left knee ache. It started after a 2 hour game of tennis coming on without injury but ending up with him having great difficulty walking off the court. Since then he has never really been all that good, he has had posterior ache."

"I believe that he has predominantly a patellofemoral problem and it is not all that uncommon to have posterior ache because of that and certainly this would fit in with the stiffness he gets with sitting and the activity related problems. He does have tight lateral retinacular structures and it may be therefore that he had an overuse injury which gave him patellofemoral pain and that he has failed to recover properly from this because of the increased pressure under the lateral facet of his patella."

24 He concluded by saying that he had arranged for the appellant to be x-rayed and then to see him again.

25 Dr Holt's report dated 22 December 1992 was written after the appellant had been x-rayed and had seen him again. He there said that the x-rays showed "some patellar tilt which is in keeping with him having tight lateral retinacular structures and pain which I think is patellofemoral in nature despite the fact that most of it is posterior".

26 In September 1996 the appellant was examined by an orthopaedic surgeon, Dr Cameron Thrum. In a report dated 12 September 1996, he diagnosed the appellant as suffering from resolved soft tissue injury to the cervical spine, probable disc injury to the lumbar spine with some sciatic nerve compression and resultant S1 nerve root loss; mild cartilaginous crush of the wrist with no major long term sequelae and "traumatic chondromalacia patellae left knee".

27 Dr Thrum again reviewed the appellant in April 1997. In his subsequent report dated 22 April 1997 he recorded that the appellant had said that he suffered from constant pain in the right leg and buttock going to the three outer toes of the right foot, intermittent pain, mainly anterior and posterior, in the left knee, intermittent back stiffness, occasional dull pain in the left wrist and some muscle wasting in the right buttock. On examination he was tender over the L4/5 and S1 area and straight leg raising was to 80 degrees on the right and 90 degrees on the left. He said that the appellant had a questionably positive sciatic stretch test on the right and that he also had altered sensation of the right side of the leg, mainly in the distribution of L5. He had an absent right ankle jerk. Dr Thrum said that the appellant's condition was probably static and that his claim could be finalised upon the basis of permanent disability.

28 The Commission has also received a report addressed by Mr Lowther to the appellant's solicitors dated 13 August 1996. In that report Mr Lowther has said that he had not treated the appellant for over two years and that Dr Holt had referred the appellant to him with a recommendation for physiotherapy to the left knee as a consequence of patello-femoral joint related pain. However Mr Lowther also examined the appellant's lumbar spine and found that the appellant had a history of low back pain on the left side. He diagnosed sciatica. Mr Lowther had treated the appellant both before and after the accident and it was not clear from his report, as the learned Commissioner found, whether the symptoms and treatments referred to in his report (other than the posterior knee pain which, he said, had been suffered by the appellant "since playing tennis") were pre-accident or post-accident or both.

29 Against this background the learned Commissioner found that, if the appellant had given the Commission the written notice which it required, then the Commission would have gathered "available medical evidence" and arranged to have the appellant reviewed by a medical practitioner of its own choice. He said that it was very likely that an investigation by the Commission would have revealed that the appellant had suffered from symptoms related to his back, right leg and left knee prior to the accident and that he had received physiotherapy treatment in July and August 1993, prior to the accident.

30 The learned Commissioner also mentioned that, notwithstanding that Dr Rasool recommended, on 21 October 1993, that the appellant have an x-ray taken of his wrist, this was about two months after the accident and the x-rays were not taken until about seven months after the recommendation was made.

"I find that the Commission is materially prejudiced in its defence to the plaintiff's claim. The material prejudice relates to the quantum of the plaintiff's claim for damages. There is no prejudice in connection with the circumstances of the accident. Given the condition suffered by the plaintiff before the accident it is clear from the evidence of Mr McNamara [a claims supervisor employed by the Commission] that an investigation would have been directed not only to the existence and extent of the alleged injuries but also to the important issue of causation itself. The Commission has lost that opportunity and in all the circumstances of this case that has operated to the prejudice of the Commission."

32 The learned Commissioner went on to say that the appellant did not attend any medical practitioner between 22 October 1993 and 2 September 1996 other than Dr Cianciullo who took x-rays of his wrist. He also said that the appellant had last had physiotherapy treatment on 10 January 1994. The learned Commissioner concluded that it was simply not possible for the Commission "to remedy the prejudice by examining medical practitioners who saw the plaintiff during the period in which notice was not given". There was, he said, "no medical practitioner to call and examine on the plaintiff's condition during a lengthy continuous period of time prior to August 1996".

33 It was common cause between the parties that, although an applicant for leave bears the ultimate onus of satisfying the court that the Commission is not materially prejudiced, there is an evidentiary onus upon the Commission to show some basis in fact for such prejudice. (See, in this respect, Hall v Motor Vehicle Insurance Trust [1984] WAR 111 at 113 - 114 and Stevens v Motor Vehicle Insurance Trust [1978] WAR 232.)

34 While it is true, as the learned Commissioner found, that there was a long period in which the appellant was not examined by any medical practitioner, there is no evidence at all to suggest that this has caused the Commission any prejudice.

35 There is, as will be apparent from what I have said, available medical evidence of a detailed kind, including x-rays, with respect to the appellant's condition prior to the accident. There is also available detailed medical evidence, again including x-rays, with respect to his condition in the period immediately following the accident. While it is no doubt true, as the learned Commissioner said, that it was probable that a prompt investigation by the Commission would have revealed the appellant's pre-accident symptoms and treatment, the fact is that it is now in possession of everything which it would have obtained in that regard had notice been timeously given other, of course, than information which it might have obtained by then having the appellant examined by a doctor or doctors of its own choice. Moreover there is nothing at all in the evidence to say that any examinations subsequent to the period within which notice should have been given and prior to the examinations conducted in 1996 would or even might have revealed any additional information which bears upon the issue of causation or which is otherwise material to the appellant's claim and which could not be obtained through further medical investigations or from the medical evidence, including x-rays, which is currently available.

36 It is, with due respect to the learned Commissioner, not enough for the Commission merely to assert that it would have made further investigations into the existence and extent of the alleged injuries and into the issue of causation. If it was to discharge its evidentiary onus of showing some basis in fact for the prejudice contended for by it then it was necessary for it to show, by admissible evidence, what those further investigations might have revealed, that those possible revelations encompassed matters additional to what has been revealed by the available medical evidence, that those additional revelations are material and why it is no longer possible to obtain information of that kind by way of further medical examination of the appellant or further examination of his x-rays or otherwise.

37 There having been no evidence to this effect there was, in my respectful opinion, no basis for any finding of prejudice to the respondent.

38 It was for that reason that I reached the conclusion that the appeal should be upheld and that the orders to which I have referred should be made.