Piper v Nominal Defendant [2003] QSC 39

[3] This application arises out of his failure to give the respondent (the Nominal Defendant) notice of the accident until 4 October 2002.

[4] Section 37(2) of the Act provides that in the case of an unidentified vehicle notice must be given to the respondent within 3 months after the accident. Subsection (3) of s 37 is in these terms -

"(3) If notice of a motor vehicle accident claim is not given within the time fixed by this section, the obligation to give the notice continues and a reasonable excuse for the delay must be given in the notice or by separate notice to the insurer but, if a motor vehicle can not be identified and the notice is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred."

[5] The principal issue on this application is whether the applicant has given "a reasonable excuse" for his delay in notifying the respondent. He seeks a declaration that he has remedied his non compliance or alternatively leave to proceed despite his non-compliance: see s 39(5)(c).

[6] When he lodged his Notice of Accident Claim Form, the applicant gave the respondent the following excuse for his 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."

[7] After the accident the applicant was admitted to the Townsville General Hospital where he remained for a few days. While he was there his sister suggested he apply for compensation from WorkCover Queensland. She arranged for an application form to be sent to him, and in due course helped him complete it. It was signed by him on 23 April 2002 and submitted to WorkCover.

[8] The applicant's uncle Ronald Morgan Barnard visited him in hospital the day after the accident. Mr Barnard said in a statutory declaration made on 13 November 2002 -

"1. DAVID RONALD PIPER who was injured in a motor vehicle incident on Tuesday, 16 April 2002 is my nephew.

2. On Wednesday, 17 April 2002, following on advice that David had been involved in a motor vehicle incident, I went to visit him in the Townsville Hospital to see how he was.

3. During the course of our conversation, I mentioned to him that he should seek legal advice in respect of his accident and particularly because of the personal injuries he had suffered. From a layman's perspective I could see that he was in a bad way particularly with his right leg which was heavily bandaged.

4. I suggested that as soon as he get out of hospital he should see a good friend of mine James O'Donnell who was an Industrial Advocate. My idea was that James O'Donnell, who had worked as an Industrial Advocate for Lawyers in Townsville from time to time, would be able to assist him.

5. I remember that David was discharged from hospital after a short stay.

6. I also remember ringing James O'Donnell shortly after David left the hospital to give him David's home phone number.

7. I then remember another phone call I made to James O'Donnell after David had contacted me advising he had not heard from James O'Donnell requesting James O'Donnell to contact my nephew as soon as possible.

8. I remember two or three more calls during the next two or three months to James O'Donnell following on calls from David that James O'Donnell had not contacted him, enquiring as to the progress of the matter. One of the things I remember James O'Donnell saying that he tried to contact David and had not been able to reach him.

9 I took comfort in these calls that things were in hand as I only wanted to assist my nephew.

10. I cannot be more specific than this because I did not keep written notes."

[9] In a statutory declaration made on 13 November 2002 the applicant said that his uncle visited him in hospital and advised him to contact Mr O'Donnell "who I thought was a Lawyer". In cross examination the following exchange occurred between Mr Wilson (counsel for the respondent) and the applicant -

"You say in your affidavit who you thought was a lawyer? - Yeah, well, that's who I thought was a lawyer at the time.

Did you uncle say anything to you about what Mr O'Donnell did? --No, he just said that he was a good lawyer, he's done some good cases, and I thought, well, he knows who he is, he knew the fellow, so I thought he was a lawyer.

Did your uncle describe him as a lawyer? -- Well, yes, to me he did, yes.

Your uncle didn't tell you that he was an industrial advocate? -- No, he didn't."

[10] On 4 May 2002 Mr O'Donnell visited the applicant at his home. He was driven there by Gregory Paul Lynham, a barrister, who was a friend of both Mr O'Donnell and Mr Barnard. I accept that while Mr Lynham may have been introduced to the applicant as a barrister, he was not in attendance in his professional capacity, and he took no active part in the discussion that followed.

[11] Mr O'Donnell did not say that he was a lawyer (which he was not) or that he was an industrial advocate (which he was). The applicant says he assumed that he was a lawyer. They discussed his WorkCover claim over about an hour. The applicant says that Mr O'Donnell told him that he had a good case and that he was prepared to take it on. There is no evidence to suggest that there was any discussion of a claim against the driver of the other vehicle or the third party insurer with respect to that vehicle. According to the applicant, he had no knowledge of such matters. According to Mr Lynham, common law rights against the applicant's insurer were touched on (in the context of discussion of the WorkCover claim).

[12] Mr O'Donnell had a second meeting with the applicant on 24 May 2002. Again Mr Lynham drove him to the applicant's home, but was not present in his professional capacity. There was further discussion of the WorkCover claim. The applicant said in oral evidence -

"He advised me not to go through WorkCover and he mentioned a common law claim, which I assumed was a third party claim."

(Transcript page 7 lines 49 - 51). According to the applicant there was discussion of his right to bring an action against the insurer or driver of the vehicle that caused the accident, and of the need to identify the vehicle, but no discussion of his right to claim against the respondent if the vehicle could not be identified. Mr O'Donnell said he would get back to the applicant with some paperwork - although the applicant was not sure whether the paperwork related to the WorkCover claim or the third party claim. Mr Lynham had no recollection of discussion of the applicant's right to bring proceedings against the insurer, but he recalled Mr O'Donnell saying he would try to locate the driver of the other vehicle: this was in the context of Mr O'Donnell inquiring whether the driver had been located. He recalled Mr O'Donnell saying that he had some contacts, but he could not recall Mr O'Donnell saying why this was necessary. (Transcript pages 22 - 23).

[13] I am satisfied that at that second 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 that vehicle or its driver. I am further satisfied that there was no discussion of a claim against the respondent if the vehicle could not be identified. I accept the applicant's evidence that there was no discussion of any applicable time limits.

[14] After that second meeting the applicant had no further contact with Mr O'Donnell until late August, although he did make several unsuccessful attempts to ring him on his mobile phone. There was a meeting attended by the applicant, Mr O'Donnell and Mr Lynham. The applicant was informed that he could lodge a claim even though the driver of the other vehicle had not been identified, but that this should have been done within three months of the accident. He was advised that he would have to explain why he had not done so within the three months and that he should contact a solicitor as soon as possible.

[15] The applicant engaged solicitors. On 3 October 2002 a Notice of Accident Claim Form was sent to the respondent. (It was received the next day.) Attached to it was the explanation for the delay set out above. On 16 October 2002 the respondent advised that it was not satisfied with the explanation that had been given and called for further information. On 15 November 2002 the applicant's solicitors faxed statutory declarations of the applicant, his sister, his uncle and Mr Lynham to the respondent. The respondent pointed to some tension between the version of the applicant and that of Mr Lynham and called for a statutory declaration by Mr O'Donnell. Mr O'Donnell has not made a statutory declaration, despite request.

"(5) A claimant's failure to give notice of a motor vehicle accident claim as required under this division prevents the claimant from proceeding further with the claim unless -

(i) declares that the claimant has remedied the noncompliance; or

(ii) authorises further proceedings based on the claim despite the noncompliance.

Having regard to the way the application was conducted, the real issue before the Court is whether, by a combination of his original explanation, the statutory declarations which were subsequently provided to the respondent and the oral evidence, the applicant has given a reasonable excuse for his delay in notifying the respondent.

[17] The notice requirements in relation to claims against the Nominal Defendant are strict. In Brannigan v Nominal Defendant [1999] QCA 347; [2000] 2 Qd R 116 the plaintiff commenced proceedings against the Nominal Defendant for damages sustained in a collision between the vehicle he was driving and an unidentified vehicle. He did not give the Nominal Defendant notice of the claim until more than 8 months after the accident. He did not supply any explanation for his delay within 9 months of the accident. At the time s 37(3) and (4) provided -

"(3)... 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 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 Court of Appeal held that in the absence of an explanation for the delay being furnished within 9 months of the accident, the plaintiff was precluded by s 37 from bringing an action against the Nominal Defendant. At page 119 de Jersey CJ said -

"(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'."

His Honour considered the provisions of s 39 which contemplates that an insurer might waive defects in some notices or give a claimant the opportunity to rectify them, and that in some cases the Court may declare that non-compliance has been remedied or give leave to bring proceedings despite non-compliance. However, as His Honour observed, by s 39(8), in the case of a claim against the Nominal Defendant in respect of an unidentified vehicle, a claim is barred if notice is not given within 9 months of the accident. His Honour described this bar as being in conformity with the intention obviously behind (the then) s 37(4), and went on at page 120 -

"[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."

McPherson JA traced the history of provisions relating to the giving of notice to the Nominal Defendant, discerning "a progressive tightening of the conditions for making claims against the Nominal Defendant in the case of an unidentifiable vehicle" (page 123). White J described the provisions as a recognition of the prejudice to the Nominal Defendant if late claims were permitted to be advanced.

[18] Section 37 has been amended since Brannigan. Under the present provision, where a claimant has not given notice within three months of the accident, "the obligation to give the notice continues and a reasonable excuse for the delay must be given in the notice or by separate notice." The absolute bar on proceedings against the Nominal Defendant in respect of an unidentified vehicle if notice is not given within 9 months of the accident is retained: ss 37(3); 39(8).

[19] 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.

[20] The applicant was aged 20 at the time of the accident. There is no evidence that he lost consciousness in the accident; indeed the Glasgow Coma Scale reading in the ambulance report suggests to the contrary. He was admitted to hospital, but was able to discuss the accident with his uncle and his sister within a day or so of its happening. He is a labourer by occupation, and someone who impressed me as having little if any understanding of legal matters, let alone the intricacies of the notice provisions of the Motor Accident Insurance Act. However, ignorance of the law is no excuse, and the question is really whether it was reasonable for him to leave the matter in Mr O'Donnell's hands.

[21] Did the applicant know that Mr O'Donnell was not a lawyer? Was it reasonable for him to assume that he was?

[22] 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 (Transcript page 5). 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. (Transcript page 6).

[23] 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.

[24] 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.

[25] 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.

[26] In short, I consider that the applicant has not given a reasonable excuse for the delay.

[27] The respondent has not pointed to any specific prejudice should the Court allow the proceedings to continue despite non-compliance with the notice requirement, other than the possibility that a bystander referred to in the ambulance report may not be able to be identified or located. However, that there are difficulties inherent in investigating and defending a claim involving an unidentified vehicle is the underlying foundation of the notice provisions. Ultimately it is for the applicant to persuade the Court that it would be fair and just to both sides to allow the proceedings to continue. He has not satisfied that onus.