Weeks v Nominal Defendant [2004] QDC 504

[3] At the time of the collision the applicant was acting in the course of his employment and was therefore eligible to claim workers' compensation benefits for any incapacity for work and did in fact lodge an application for workers' compensation dated 14 November 2002[1] the day following the collision and subsequently received compensation benefits.

[4] The material shows that the applicant sustained personal injury in the collision and was conveyed to the Royal Brisbane Hospital by ambulance, x-rayed, examined and discharged to the care of his general practitioner with a recommendation that he undergo physiotherapy treatment. The applicant states that he sustained injuries "... to my left upper shoulder region and to the lumbar support area of my back moving across to the right side"[2] and that he was advised at the hospital that he "... had most probably torn ligaments in my back and prescribed Panadol (sic) Forte".[3]

[5] At the hearing of the application the respondent was granted leave to read and file three affidavits from the following deponents:-

• Roger Macintosh (physiotherapist) sworn 4 August 2004;

• Kym Horsnell (general medical practitioner) sworn 10 August 2004; and

• Elizabeth Baer (general medical practitioner) sworn 10 August 2004.

[6] Doctors Horsnell and Baer belong to the same medical practice attended by the applicant.

[7] The records show that the applicant attended at the medical practice on 15 November 2002 where he was examined by Dr Horsnell whose notes at the time are interpreted in the following manner:

"Motor vehicle accident - Royal Brisbane Hospital Casualty - xray - no abnormalities detected - hit from behind - low back pain - feeling of numbness in neck increased - pain and stiffness generally. O/E generally stiff - decreased range of movement."[4]

[8] In his affidavit sworn 17 June 2004 the applicant states:

"9. Around the Thursday following the accident I telephoned Officer Emma McGinty of the Queensland Police and asked her if she could provide me with details of the car that caused the accident because I thought I might be able to make a claim in respect of my injuries. She told me and I verily believe that the driver of the other vehicle was most likely drunk, driving an unregistered vehicle or an unlicensed driver.

10. It was in this context that she told me that I would be all right because I had a WorkCover claim. I took this to mean that I could not make a claim against any one else. I had never heard of 'the Nominal Defendant' until I contacted my solicitors."

[9] The applicant had previously sworn the facts of the above paragraphs in his statutory declaration of 5 August 2003 to the respondent being Exhibit "CHW 2" referred to in paragraph [3] above.

[10] The applicant included in his worker's compensation application the fact that "the driver of the other vehicle left the accident without leaving any details".

[11] At the hearing of this application under cross examination the applicant reaffirmed that at the time he spoke to police officer McGinty the "claim" to which he was referring was a "Workcover" claim not a damages claim. He further maintained that he did not rely on Police Officer McGinty for legal advice.

[12] At the date of the motor vehicle accident the applicant was a workshop supervisor for a company which manufactured crates for export products, and it appears that his duties included assessing the type of packaging clients required and preparing a program and quotation for the client[5] but the work also involved physical activity in handling the crates, including heavy lifting.[6]

[13] When the applicant returned to employment he had obtained an office position with another company at which he was still employed at the date of the hearing.

[14] The applicant's medical history is that following his initial consultation with Dr Horsnell he attended the medical practice on four occasions up to and including 9 December 2002 at which time the doctor's notation is "Much improved - minimal pain - has new job in office".[7] On this occasion he was given a medical clearance for workers' compensation purposes to return to work.

[15] Subsequent to his WorkCover clearance and return to work on 9 December 2002 he continued to attend on his physiotherapist whom he had seen initially on 15 November 2002 but it would seem that his progress was relatively uneventful until 6 January 2003 when the physiotherapist's notes record:

"Right lumbar spine very sore at work today and at home one day ago. Examination - flexion 1/2 - certificate faxed 4 extended consultations required."[8]

[16] Similarly on 9 January 2003 he complained of a "still very sore lumbar spine" which had "settled" by 10 January 2003.

[17] He then consulted Dr Elizabeth Baer on 13 January 2003 where his complaint of a "very sore" lumbar spine "one week ago" was noted and Dr Baer recommended a CT scan and prescribed medications.

[18] There were "no abnormalities detected" in the CT scan and his next attendance for any medical treatment relevant to the motor vehicle accident was on his physiotherapist on 18 July 2003, with further complaints of "thoracic pain especially last few days". It was on this day that he sought legal advice in respect of the accident.

[19] The applicant's solicitors forwarded his Notice of Accident claim form with medical certificate to the Nominal Defendant under cover of letter dated 28 July 2003 to which the respondent's solicitors replied on 4 August 2003, pointing out certain "non-compliance" issues and seeking further information.

[20] The applicant's solicitors responded with the applicant's Statutory Declaration sworn 5 August 2003 previously referred to which dealt with the various matters of non-compliance referred to in the respondent's solicitors letter of 4 August 2003.

[21] The respondent's solicitors replied by letter of 27 October 2003 that their client would defer any decision in respect of the applicant's claim until the Court of Appeal had delivered judgments in three matters[9] containing issues relevant to the current matter.

[22] On 19 December 2003 the respondent's solicitors advised the applicant's solicitors that the respondent does not consider that the applicant "... has provided a reasonable excuse particularly in light of the determination of the Court of Appeal in Piper".

[23] The construction of s.37 of the Act and Division 3 of Part 4 has been comprehensively canvassed in the three decisions referred to above, and it is unnecessary to repeat here what has been said in those decisions other than to say that, if a claimant for damages for personal injuries sustained in a motor vehicle accident, is obliged to pursue the claim against the Nominal Defendant because the alleged offending motor vehicle cannot be identified, does not give notice of his claim within three months after the motor vehicle accident, the claimant must give the Nominal Defendant a "reasonable excuse" for his delay and must also give that reasonable excuse "... within nine months after the motor vehicle accident" otherwise "a claim against the Nominal Defendant is barred".[10]

[24] The core issue in this application is whether the claimant Weeks has provided a "reasonable excuse" to the Nominal Defendant within nine months of 13 November 2002 - that is, by 13 August 2003.

[25] The claimant forwarded his Notice of Claim to the Nominal Defendant through his solicitors under cover of a letter dated 28 July 2003, acknowledged by the respondent's solicitors in their letter of 4 August 2003 which notice was followed by a "separate notice" containing his "reasonable excuse" by way of the Statutory Declaration of 5 August 2003 forwarded to the respondent's solicitors by facsimile on the same date. The claimant has therefore provided his "excuse for the delay" in giving his Notice of Claim to the Nominal Defendant "within nine months after the motor vehicle accident" so that what this court must decide is whether the applicant's "excuse" is "reasonable".

[26] If the court finds the applicant's excuse reasonable then it would follow that "... the claimant has remedied the non-compliance" referred to in s.39(5)(c)(i) of the Act thereby enabling the applicant to proceed with his claim.

[27] I note that the respondent's solicitors' letter of 19 December 2003 reinforces the decision in Miller v Nominal Defendant (supra) that if the applicant did not give "a reasonable excuse for the delay" within the 9 month period he cannot now do so and therefore the Court has no power to allow further proceedings in the claim to continue pursuant to s 39(5)(c)(ii).

[28] Conversely however if the applicant's excuse which he gave in his statutory declaration of 5 August 2003 (received by the respondent through its solicitors on that day) is "reasonable" then the applicant has given his excuse within the nine month period and the question of the court having to grant leave under s.39(5)(c)(ii) is not applicable.

[29] As the three Court of Appeal decisions referred to above demonstrate the question of a claimant's excuse being reasonable is one "... to be judged objectively in all the circumstances". Those circumstances include "... the claimant's personal characteristics such as his age, intelligence and education and the nature of injuries sustained ..."[11]

[30] The decision of Piper is the most relevant to the instant case where the Court of Appeal by majority held that Piper's excuse was not reasonable where he assumed that the person from whom he sought legal advice and to whom he had entrusted his claim was a lawyer when he was not. The court held that it was an unreasonable assumption to make in all the circumstances and consequently he was unable to pursue his claim.

[31] It would appear also from my reading of Piper's case that the question of any deterioration post-accident in that applicant's symptoms did not arise which may have been of some assistance to him in any consideration of the "reasonableness" of his conduct.

[32] In my opinion, the instant case can be distinguished from Piper's case in a number of respects; namely:

(a) Weeks was well aware that McGinty was not a lawyer;

(b) It was reasonable for Weeks to contact the investigating police officer (McGinty) on or about the day following the collision to ascertain whether she had obtained any details of the offending vehicle as Weeks was then in the process of completing his Workers' Compensation application and it is commonsense that such information should be included in his claim form if it was available;

(c) Weeks' injuries at that time were relatively minor and McGinty's comments to him (to which he has sworn) relevant to the fact that he had a WorkCover claim were quite valid in the light of what then seemed relatively minor injuries;

(d) The applicant's condition improved over the subsequent weeks, no doubt due to the intensive physiotherapy he received paid by WorkCover so that he was not personally out of pocket by such expense;

(e) Weeks changed his employment during the period of his convalescence from a position which involved quite strenuous physical work at times to office work where it might be reasonably assumed that his medical condition (such as it was) would continue to improve;

(f) When the back pain did return in early January 2003 he again underwent further physiotherapy but did not seek any further medical advice or treatment until his symptoms gradually worsened over the subsequent months to the extent that he sought further physiotherapy treatment on 18 July 2003 and legal advice for the first time from his current solicitors.

Weeks' circumstances are therefore vastly different from those of Piper.

[33] Applying the objective test to the question of "reasonableness" in this application and having regard to the claimant's "personal characteristics" such as:

• His standard of further education being an apprenticeship in panel beating and spray painting;

• His ignorance of the office of the Nominal Defendant until he consulted his solicitors;

• His evidence of the fluctuation of his medical symptoms over the passage of time from the date of collision, which is confirmed by the medical and physiotherapy evidence; and

• His evidence of the onset of more severe symptoms (which I accept) in the weeks preceding his visit to the physiotherapist on 18 July 2003.

I find in all the circumstances that it was reasonable for the applicant to delay his seeking of legal advice in respect of his general rights relative to the motor vehicle collision on 13 November 2002 and its sequelae for the period he did, as it was reasonable for him to wait until such time as the symptoms from his injuries had persisted or deteriorated to such an extent that he was entitled to conclude that they were not going to resolve in a relatively short period of time post accident, thereby making it worth his while to pursue other means of compensation for his injuries than merely statutory workers compensation benefits.

[34] It follows therefore that I am of the opinion that the applicant has given a reasonable excuse for his delay in giving his Notice of Claim to the Nominal Defendant pursuant to s.37(3) of the Act by his Statutory Declaration of 5 August 2003 and that he is entitled to the relief sought under s.39(5)(c)(i) of the Act.

1. It is declared that pursuant to s.39(5)(c)(i) of the Motor Accident Insurance Act 1994 the claimant has remedied the non-compliance with s.37(2)(a) of the Act;

2. That the respondent pay the applicant's costs of and incidental to this application as agreed or assessed on the standard basis under the District Court scale.

[1] See paragraph 3(c) of Statutory Declaration exhibit "CHW2" to the applicant's affidavit sworn 17 June 2004.

[4] Exhibit "KH2" to the affidavit of Dr Kym Horsnell sworn 10 August 2004 and filed by leave.

[5] See transcript at page 7 lines 42-54.

[6] See transcript at page 8 lines 40-43.

[7] Exhibit "KH2" to the affidavit of Dr Horsnell sworn 10 August 2004 and filed by leave.

[8] Affidavit of Roger McIntosh sworn 4 August 2004 and filed by leave.

[9] Piper v The Nominal Defendant [2003] QCA 557; Miller v Nominal Defendant [2003] QCA 558; and Perdis v Nominal Defendant [2003] QCA 555.

[10] Sections 37(2)(a) and 37(3) of the Act.

[11] Piper v Nominal Defendant [2003] QSC 39, 27 February 2003, per Wilson J at [19] and confirmed by Court of Appeal 15 December 2003 -Davies, Williams and McKenzie JJ - at [14], [30] and [46].