Piper v Nominal Defendant [2003] QCA 557

[1] DAVIES JA: On 18 December 2002 the appellant applied in the Supreme Court for a declaration pursuant to s 39 of the Motor Accident Insurance Act 1994 ("the Act") that the appellant has remedied the non-compliance referred to in that section or an order pursuant to that section authorizing the appellant to proceed further despite that non-compliance. In the further alternative the appellant sought a declaration that a notice dated 3 October 2002 was a complying notice pursuant to s 37 of the Act and in the further alternative a declaration that the claimant had provided reasonable excuse for the delay. The Nominal Defendant was the respondent in each case. On 27 February 2003, the learned primary judge refused to make any of the orders or declarations sought and dismissed the appellant's application.

[2] The appellant's amended grounds of appeal were as follows:

1. her Honour erred in holding that the appellant had not provided a reasonable excuse for the delay in providing a notice to the respondent under s 37(3) of the Motor Accident Insurance Act 1994;

2. her Honour erred in holding that the excuse given by the appellant was not a reasonable excuse for the delay in the circumstances;

3. her Honour erred in applying an objective test to the question as to whether the excuse was a "reasonable excuse" for the delay;

4. her Honour erred in accepting and hearing evidence from the appellant as to the excuse for the delay and erred in failing to assess the nature of the explanation for the delay on the explanation provided with the s 37 notice;[1]

5. her Honour erred in the exercise of her discretion in refusing to grant leave to proceed further with the claim pursuant to s 39(5)(c)(ii) of the Motor Accident Insurance Act 1994.

[3] The relevant facts were as follows. The appellant, to whom I shall refer hereafter as the claimant, was injured in an accident involving an unidentified motor vehicle on 16 April 2002. He was admitted to the Townsville General Hospital where he remained for a few days. Whilst there his sister suggested that he apply for workers' compensation and he submitted an application for workers' compensation on 23 April 2002.

[4] In the meantime, on 17 April he was visited by his uncle Mr Barnard who suggested that he should seek legal advice. Mr Barnard suggested that he should see a good friend of his Mr James O'Donnell. Mr O'Donnell was an industrial advocate but Mr Barnard did not tell the claimant that. Nor did he tell the claimant that Mr O'Donnell was not a lawyer.[2]

[5] The claimant had some difficulty in making contact with Mr O'Donnell but eventually did so and on 4 May 2002 Mr O'Donnell visited the claimant at his home accompanied by Mr Gregory Lynham, a barrister. The claimant said in evidence that Mr O'Donnell introduced Mr Lynham as a barrister. Mr Lynham said in his evidence that he could not recall whether or not he was introduced as a barrister but that may have been the case. Mr O'Donnell did not give evidence.

[6] Mr O'Donnell did not say that he was a lawyer or that he was an industrial advocate. However he discussed the claimant's WorkCover claim with him, advised him on the steps involved in the process, said that he thought that the claimant had a good case and said that he was prepared to take it on. During the course of that discussion, according to Mr Lynham, Mr O'Donnell mentioned the option of pursuing a common law claim against the employer. No mention was made of any claim based on negligence of the driver of the unidentified vehicle. However Mr Lynham recalls mention being made, presumably by the claimant, of the facts that the woman driver of the car which collided with the claimant left the scene of the accident and that her car's registration number appeared to have been wrongly recorded. Mr Lynham did not take part in the interview between the claimant and Mr O'Donnell but remained present throughout.

[7] On 24 May Mr O'Donnell again visited the claimant, again accompanied by Mr Lynham. There was further discussion between Mr O'Donnell and the claimant about his WorkCover claim. Again Mr O'Donnell gave advice and again mentioned the possibility of a common law claim against the claimant's employer. Her Honour found that, at that meeting, there was some discussion of bringing a claim against the driver and/or the insurer of the other vehicle, and of the need to identify the vehicle or its driver. Again Mr Lynham remained present during the whole of the meeting between the claimant and Mr O'Donnell but did not take part in any discussion between them.

[8] It seems that the next contact between the claimant and Mr O'Donnell was in August 2002 when the claimant phoned Mr O'Donnell. Her Honour found that, in the meantime, the claimant had made attempts to phone Mr O'Donnell on his mobile but had been unsuccessful in doing so. Mr O'Donnell then arranged for Mr Lynham to give the claimant some advice, because, according to Mr Lynham, Mr O'Donnell told him he was unsure how to progress the matter. At a meeting in Mr Lynham's chambers in early September, attended by the claimant, his sister and Mr O'Donnell, Mr Lynham explained to the claimant, for the first time, the possibility of a claim against the Nominal Defendant. He told him that the period of three months stated in s 37(2)(a) had expired (it had expired on 16 July) and that he would need to explain now why he had not notified the Nominal Defendant earlier. He showed the claimant a copy of s 37.

[9] Mr O'Donnell then said that he would arrange for a solicitor who he knew, Mr O'Toole, to see the claimant. The claimant says that that was the first time he realized that Mr O'Donnell was not a solicitor. As it turned out Mr O'Toole was not available, apparently because of a personal family matter. A further meeting took place in Mr Lynham's chambers where it was agreed that Giudes & Elliott would be contacted. The claimant then saw Mr Giudes of that firm, a notice was sent on 3 October 2002 and was received by the Nominal Defendant on 4 October.

[10] The notice contained the following excuse for the delay:

" I was in Townsville General Hospital a few days after the accident when my uncle visited me. He told me I should see James O'Donnell who I thought was a Lawyer about taking a personal injuries claim.

James O'Donnell came to see me with a Barrister and I gave them full particulars of the accident. I am a carpenter by trade and new [sic] nothing about time limits. I thought my action was being looked after for me.

I rang James O'Donnell on several occasions and about six weeks later he came to my home with the Barrister but not with the paperwork he had promised he would bring for me to sign. We just talked again about the accident.

I tried to contact James O'Donnell on several further occasions on his mobile telephone but only my uncle was successful in contacting him.

About three weeks ago, we saw James O'Donnell in a Barrister's Chambers in Townsville when he told us he was an Industrial Advocate and not a Lawyer. The Barrister said we would have to hurry things along because of the time restraints and that I would have to write a letter explaining why we were slightly late. James O'Donnell said he would organise a Solicitor to see me.

I went to see that Solicitor in the Barrister's Chambers last Saturday the 28th September, 2002 when the Barrister and James O'Donnell were present but not the Solicitor who was unavailable apparently due to a family crises.

James O'Donnell was supposed to organise for me to see this Solicitor on Wednesday the 2nd October last but it never occurred. Subsequently, we saw our Solicitor, Raoul Giudes from Giudes & Elliott on Thursday the 3rd October, 2002."

[11] The principal question in those circumstances is whether what occurred between 16 July 2002 and 4 October 2002 provided a reasonable excuse for the claimant's delay in giving notice of a claim until that latter date. The learned primary judge held that it did not. She reached that conclusion by answering in the negative the following question: was it reasonable for the claimant to assume that Mr O'Donnell was a lawyer? In my opinion her Honour was correct in thinking that that was a correct question to ask.

[12] In Perdis v Nominal Defendant this Court held that "a reasonable excuse for the delay" has been given within the meaning of s 37(3) of the Act where the excuse was that the claimant retained and gave adequate instructions to a solicitor, in sufficient time before the expiry of the three months stated in s 37(2)(a), to enable him or her to prepare and send a notice containing or accompanied by a reasonable excuse for the delay. It so held because in doing so, such a claimant had done what a reasonable person might have been expected to do namely leave the matter then in the hands of an apparently competent solicitor. The Court referred to one possible qualification to this principle, not relevant in that case and not relevant, I think, in this. That is if, after the claimant has entrusted the matter to his or her solicitor, there was some reason which ought to have caused a reasonable person in the position of the claimant to take further action, such as to make inquiry as to the progress of the claim, and the claimant failed to take that action.

[13] In the present case the claimant assumed that Mr O'Donnell was a solicitor competent to act on his behalf. Was he reasonable in thinking that? Her Honour thought that he was not because she thought that he had an interest in knowing what his legal position was and that he ought to have clarified Mr O'Donnell's status, at least at the second meeting when he was advised against pursuing WorkCover and a common law claim was suggested.

[14] Her Honour had earlier said that whether an excuse is a reasonable one is to be judged objectively in all the circumstances. Those circumstances included, her Honour thought, the claimant's personal characteristics such as his age, intelligence and education, the nature of the injuries sustained, and the likelihood of prejudice to the Nominal Defendant. Subject to the question whether the likelihood of prejudice to the Nominal Defendant is relevant to this question[3] I agree with what her Honour said in this respect. Her Honour went on to describe the claimant as a labourer (he described himself as a carpenter but that does not weaken the force of her Honour's following impression) and someone who impressed her as having little if any understanding of legal matters, let alone the intricacies of the notice provisions of the Act.

[15] With some hesitation, I disagree with her Honour's conclusion that, on the facts accepted by her Honour, the claimant did not have a reasonable excuse for his delay in giving the notice required under s 37. That is primarily because, in my opinion, the claimant acted reasonably in thinking that Mr O'Donnell was a lawyer to whom he had entrusted the making of a claim in respect of his injuries against whomsoever such a claim could properly be made; and that thereafter he acted reasonably until 4 October when the notice of claim of accident was given.

[16] Like her Honour I think that the question of reasonableness must be considered objectively but having regard to the claimant's personal characteristics such as his age, intelligence and education. He was of limited education with little understanding of legal matters.

[17] Mr O'Donnell came to see the claimant in circumstances in which the claimant's uncle had told him that he would send Mr O'Donnell to him because he needed legal advice. The advice which Mr O'Donnell gave, on the first and on the second meeting was plainly legal advice. Moreover on each occasion he was accompanied by a person whom he introduced as a barrister and who remained present throughout the interview between them.

[18] In those circumstances the claimant was, in my opinion, entitled to assume that Mr O'Donnell was a solicitor to whom he was entrusting whatever claim he had for his injuries in the accident. Unlike her Honour I do not think it was unreasonable of him not, on either occasion, to ask specifically whether Mr O'Donnell was a solicitor.

[19] It was not until sometime in early September, at the meeting in Mr Lynham's chambers, that the claimant learnt, for the first time, that Mr O'Donnell was not a solicitor. The three months period required by s 37(2)(a) had expired, as I indicated earlier, on 16 July.

[20] Perhaps things could have moved more quickly than they did from early September to early October but this seems to have been because Mr O'Donnell and, later, Mr Lynham had undertaken to engage a solicitor on the claimant's behalf and because of Mr O'Toole's apparently sudden unavailability. I do not think that, during that period, there was any more that the claimant, given his age and apparent lack of sophistication, should reasonably have done to shorten that delay or that that delay was significant. The Nominal Defendant does not appear to contend to the contrary.

[21] It follows that I think that her Honour erred in concluding that the claimant did not have reasonable excuse for the delay until 4 October 2002 and that he did not then give reasonable excuse for the delay. Two further questions remain for consideration. The first is whether, reasonable excuse having been given for the delay from 16 July 2002 until 4 October 2002, an order should have been made pursuant to s 39(5)(c). And the second is, if an order should have been made, whether it should have been pursuant to s 39(5)(c)(i) or s 39(5)(c)(ii).

[22] I think it was appropriate to make such an order. The claimant has given a reasonable excuse for the delay. The circumstances of the claimant's accident, as outlined in the police traffic accident report, show that the claimant had good prospects of proving that the unidentified motor vehicle was primarily to blame for the accident and his injuries. And the Nominal Defendant has not asserted any prejudice from the delay.

[23] For the reasons given in Perdis, I think that the appropriate form of order is one under s 39(5)(c)(i).

3. In lieu, declare that the claimant has remedied the non-compliance with s 37(2)(a) of the Motor Accident Insurance Act 1994.

4. That the respondent pay the appellant's costs of the application and of this appeal.

[24] WILLIAMS JA: I will not repeat unnecessarily non-contentious facts stated in the reasons for judgment of Davies JA which I have had the advantage of reading. The critical facts are as follows:

(i) the appellant was injured in an accident on 16 April 2002 when his bicycle was struck by a motor vehicle which remains unidentified;

(ii) he submitted an application for Workers' Compensation on 23 April 2002;

(iii) on 4 and 24 May 2002 the appellant spoke to a Mr O'Donnell in the presence of a Mr Lynham;

(iv) on 16 July 2002 the three month period provided for in s 37(2)(a) of the Motor Accident Insurance 1994 ("the Act") (Reprint 4B is the relevant version for present purposes) expired;

(v) in August 2002 the appellant telephoned Mr O'Donnell and then in "early September" the appellant met O'Donnell and Lynham and, for the first time, the possibility of a claim against the Nominal Defendant was raised;

(vi) on 2 October 2002 the appellant contacted a solicitor, and that solicitor sent a notice to the Nominal Defendant on 3 October which was received on 4 October;

(vii) that notice contained as the excuse for the delay what is set out in the reasons for judgment of Davies JA;

(viii) the appellant filed an application on 29 November 2002 seeking a declaration that he had remedied non-compliance with s 37(2)(a) of the Act or alternatively seeking an order authorising him to proceed despite non-compliance;

(ix) that application was heard on 18 December 2002 and judgment was delivered on 27 February 2003 dismissing the application.

[25] This is an appeal from the order of 27 February 2003, and essentially the appellant seeks a declaration pursuant to s 39(5)(c)(i) that the appellant had remedied non-compliance; essentially that would mean he had provided reasonable excuse for delay (s 37(3) of the Act) when he gave the notice on 4 October.

[26] Though there is reference in the appellant's outline on appeal to the learned judge at first instance erring in not making an order pursuant to s 39(5)(c)(ii) authorising further proceedings despite non-compliance, that order could not have been made either at first instance or on appeal because by operation of s 37(3) the claim was barred once nine months had elapsed (16 January 2003) without either there being a complying notice or an order pursuant to s 39(5)(c)(ii) authorising further proceedings despite the non-compliance. (See the judgment of this court in Miller v Nominal Defendant delivered contemporaneously with these reasons).

[27] The critical issue before the learned judge at first instance was whether or not the excuse for the delay given to the respondent with the notice received on 4 October 2002 was reasonable. One critical question addressed by the trial judge was "whether it was reasonable for him to leave the matter in Mr O'Donnell's hands."

[28] In Perdis v Nominal Defendant (reasons delivered contemporaneously with these reasons) I concluded that the "delay" for which reasonable excuse must be provided is the period from the date of the accident to the date on which the notice and excuse is provided. For the reasons given therein, which I will not repeat here, it is, in my view, incumbent upon a claimant to provide a reasonable explanation for why notice was not given within the initial three month period, and also a reasonable explanation for the delay thereafter.

"Whether an excuse is a reasonable one is to be judged objectively in all the circumstances. Those circumstances include the claimant's personal characteristics such as his age, intelligence, and education, the nature of the injuries sustained, and the likelihood of prejudice to the Nominal Defendant."

[30] I agree that the test must be an objective one, and in a case such as this the age, intelligence and education of the claimant will always be significant. The appellant was born on 28 November 1971, making him 30 at the time of the accident, and nearly 31 when the notice was ultimately given. He is a carpenter by trade. In his statement purporting to establish reasonable excuse he claimed that he knew nothing about time limits. The judge at first instance had the opportunity of assessing the appellant while he gave evidence and she recorded that he was "... someone who impressed me as having little if any understanding of legal matters, let alone the intricacies of the . . . Act."

[31] The main reason for the learned judge at first instance concluding the appellant had not given a reasonable excuse for the delay was that the appellant assumed that O'Donnell was a lawyer which was not, in all the circumstances, a reasonable assumption.

[32] I will not set out in these reasons a summary of the meetings between the appellant and O'Donnell on 4 May, 24 May and "early September" 2002; I am content to accept the summary contained in the reasons for judgment of Davies JA.

[33] Under cross-examination at first instance the appellant said for the first time that his uncle, Ron Barnard, described O'Donnell before the first meeting as "a good lawyer". The learned judge did not accept that the uncle so described O'Donnell, and there was no challenge to that finding on the hearing of the appeal. The fact that such an assertion was made for the first time when the appellant was under cross-examination was clearly a sufficient reason for rejecting his evidence in that regard.

[34] Also under cross-examination the appellant admitted that at the initial meeting nothing was said to the effect that O'Donnell was a lawyer or a solicitor or a barrister. Under further questioning it became clear that the appellant made an assumption to that effect. In answering a relevant question he used the words "I assumed he was one . . .". When asked what was the basis for that assumption he answered: "Well, he brought a barrister out with him for starters out to my house and introduced him as a barrister. Then on the second meeting he told me that the - WorkCover wasn't the way to go, a common law claim was the way to go."

[35] Those matters were dealt with in the reasons for judgment at first instance as follows:

"There is no evidence that Mr O'Donnell ever described himself as a lawyer. There is no evidence that Mr O'Donnell or Mr Lynham did anything at either of the first two meetings to suggest that Mr Lynham would be involved in the case in any-way. I am prepared to accept that Mr O'Donnell gave the impression he would look after the WorkCover claim. Further, I accept that at the second meeting Mr O'Donnell told the applicant that WorkCover was "not the way to go", that there was some discussion of a "common law claim", and that Mr O'Donnell said he would make inquiries to try to ascertain the identity of the other vehicle or its driver.

However, I do not accept that the applicant's uncle said that Mr O'Donnell was a lawyer. At most the applicant assumed that he was. In my view that was not a reasonable assumption. The applicant had an interest in knowing what his legal position was, and he ought to have clarified Mr O'Donnell's status, at least at the second meeting when he was advised against pursuing WorkCover and a common law claim was suggested.

There is no evidence from Mr O'Donnell explaining his role in advising the applicant and why he did not give the respondent notice of the accident."

[36] All of those conclusions were, in my view, clearly open on the evidence and I am not persuaded that the learned judge was wrong in reaching them.

[37] At the material time the appellant was a mature man of 30 years of age though with limited knowledge of legal matters. He clearly recognised that it was important for him to take legal advice and the vital question really is whether or not he took reasonable steps to obtain such advice. In my view having informal discussions with O'Donnell and others in the way that he did it did not constitute taking reasonable steps to obtain legal advice as to his position. Certainly once he was advised that a common law claim should be made he should have taken steps to ensure that he was given adequate legal advice with respect thereto. A reasonable person in the position of the appellant would have done so.

[38] For the reasons given in Perdis v Nominal Defendant the appellant is not responsible for omissions made by O'Donnell, a person acting on his behalf; rather, what makes his excuse unreasonable is that he failed to take reasonable and proper steps to protect the limited rights conferred upon him by the Act.

[39] In the circumstances, as found by the learned judge at first instance, the appellant failed to provide a reasonable explanation for why notice was not given within the initial three month period and for the delay thereafter until a solicitor was consulted in October 2002.

[40] In the circumstances the appeal should be dismissed with costs.

[41] MACKENZIE J: The essential facts in this matter are set out in detail in the reasons for judgment of Davies JA and summarised in the reasons for judgment of Williams JA. I will therefore not repeat them except to the extent necessary for elaborating upon the issues. There is an appeal against the finding by the learned trial judge that the appellant had not provided a reasonable excuse for the delay in providing a notice to the respondent under s 37(4) of the Motor Accident Insurance Act 1994 (Qld) and other associated grounds. There was also a notice of contention on behalf of the respondent premised on the proposition that not only did the applicant have to give a reasonable excuse for his own conduct, but also for that of any person acting on his behalf. For reasons given in Perdis v Nominal Defendant, that proposition must be rejected.

[42] Also for the reasons given in Perdis v Nominal Defendant I am of the view that the appellant's conduct from the date of the accident to the date upon which the notice of claim was filed may be reviewed for the purpose of determining whether a reasonable excuse has been given. The accident occurred on 16 April 2002. The 3 month period therefore expired on 16 July 2002. The notice of claim was received by the respondent on 4 October 2003.

[43] The excuse advanced was that the appellant believed that Mr O'Donnell, whom he was advised to see by his uncle in connection with his accident, was a lawyer. In fact Mr O'Donnell was an industrial advocate. There was also evidence that a barrister, Mr Lynham was present at times when Mr O'Donnell spoke to the appellant in this connection. According to Mr Lynham he merely drove Mr O'Donnell to his meetings with the appellant as a favour and did not participate in those discussions, at least in the first two meetings. However, in early September there was a meeting with the appellant in Mr Lynham's chambers at which Mr O'Donnell was also present. On that occasion Mr Lynham advised the appellant of the requirements of the Act, including the fact that he would need to explain to the Nominal Defendant why more than 3 months had expired. He advised him to see a solicitor. Mr O'Donnell suggested the name of a solicitor, but on the last Saturday in September a further meeting was organised at Mr Lynham's chambers because contact with the solicitor had not eventuated. Another solicitor's name was suggested and that solicitor acted promptly to give the notice.

[44] The learned trial judge heard oral evidence from the appellant and Mr Lynham, which supplemented the affidavit evidence. Mr O'Donnell neither gave an affidavit nor gave evidence. Those findings were based on the following summary of the effect of the evidence on the subject:

"In his statutory declaration the applicant said he thought Mr O'Donnell was a lawyer. His uncle advised him to get legal advice, and suggested he see Mr O'Donnell. It is not clear from the uncle's statutory declaration whether he described Mr O'Donnell as an industrial advocate: at any rate, it is unlikely that the applicant would have known what that meant. In his oral evidence the applicant said at one stage that his uncle described him as a lawyer. If that were so, one wonders why such an important fact was left out of the applicant's statutory declaration. Later, when he was questioned about why he had said in the statutory declaration that he assumed Mr O'Donnell was a lawyer, he did not say that his uncle had said so - rather, he relied on the facts that a barrister had come with Mr O'Donnell and that they had discussed matters."

[45] The learned trial judge made a number of critical findings of fact. They are as follows:

"There is no evidence that Mr O'Donnell ever described himself as a lawyer. There is no evidence that Mr O'Donnell or Mr Lynham did anything at either of the first two meetings to suggest that Mr Lynham would be involved in the case in any way. I am prepared to accept that Mr O'Donnell gave the impression he would look after the WorkCover claim. Further, I accept that at the second meeting Mr O'Donnell told the applicant that WorkCover was "not the way to go", that there was some discussion of a "common law claim", and that Mr O'Donnell said he would make inquiries to try to ascertain the identity of the other vehicle or its driver.

However, I do not accept that the applicant's uncle said that Mr O'Donnell was a lawyer. At most the applicant assumed that he was. In my view that was not a reasonable assumption. The applicant had an interest in knowing what his legal position was, and he ought to have clarified Mr O'Donnell's status, at least at the second meeting when he was advised against pursuing WorkCover and a common law claim was suggested."

[46] The learned trial judge said that whether an excuse is a reasonable one is to be judged objectively in all the circumstances. Those circumstances include the claimant's personal characteristics, such as his age, intelligence and education, the nature of the injuries sustained, and the likelihood of prejudice to the Nominal Defendant. I agree with that formulation except to the extent that in my view the likelihood of prejudice to the Nominal Defendant is not relevant in determining whether an excuse is a reasonable one. It may be relevant however to the exercise of discretion under s 39(5)(c). She said that the question was whether it was reasonable for the appellant to leave the matter in Mr O'Donnell's hands. She posed the questions whether the appellant knew that Mr O'Donnell was not a lawyer and whether it was reasonable for him to assume that he was.

[47] Having reviewed the evidence before the learned trial judge, I am of the opinion that the findings of fact were clearly open and that her assessment of whether a reasonable excuse had been given ought not to be disturbed. I would therefore dismiss the appeal with costs.

[1] The meaning of the ground is by no means clear. However there was no lack of clarity in the central question argued in this appeal.

[2] The claimant said, for the first time in cross-examination, that Mr Barnard described Mr O'Donnell as a lawyer but her Honour did not accept that he had. The claimant did not contest that finding in this appeal.

[3] With which I disagree. I think that that it is relevant only to the exercise of the Court's discretion under s 39(5)(c).