Djuric v Wai Kit & Anor [2016] QDC 194

DISTRICT COURT OF QUEENSLAND CITATION: Djuric v Wai Kit & Anor [2016] QDC 194 PARTIES: MARA DJURIC (applicant) v RICHARD WAI KIT (first respondent) ALLIANCE AUSTRALIA INSURANCE LIMITED (ACN: 000 122 850) (second respondent) FILE NO/S: 2880/2016 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 3 August 2016 DELIVERED AT: Beenleigh HEARING DATE: 28 July 2016 JUDGE: Smith DCJA ORDER: 1. Pursuant to r 367 of the Uniform Civil Procedure Rules 1999, the Court will determine the application notwithstanding the applicant’s noncompliance with r 27(1) of the Uniform Civil Procedure Rules. 2. The applicant is authorised to proceed further with her claim pursuant to s 39(5)(c)(ii) of the Motor Accident Insurance Act 1994 (Q) on the following terms: (a) The parties comply with the obligations imposed pursuant to ss 51A, 51B and 51C of the Act by 28 January 2017; (b) Pursuant to s 57(2)(b) of the Act the applicant be given leave to commence proceedings within 60 days of the earliest of the following events occurring: (i) A conference being held pursuant to ss 51A and 51B of -- 1 of 8 -- 2 the Act and mandatory final offers being exchanged in accordance with s 51C of the Act; or (ii) In the event of the parties agreeing to dispense with (a) above pursuant to s 51A(4) of the Act, the date of the set agreement; or (iii) In the event of the Court making an order to dispense with (a) above pursuant to s 51A(5)(b) of the Act, the date of such order. 3. The parties be at liberty to apply. 4. The applicant is to pay the respondents’ costs of and incidental to this application fixed in the sum of $7,500. CATCHWORDS: TORTS- NEGLIGENCE- Whether court should exercise discretion to declare notice under Motor Accident legislation is remedied or whether claimant is authorised to proceed with her claim- whether satisfactory explanation for delay- whether prejudice to respondent Motor Accident Insurance Act 1994 (Q) ss 37, 39, 51A, 51B, 51C Uniform Civil procedure Rules 1999 rr 27, 367 Khatri v Transport Accident Commission [2004] QDC 38 O’Keefe & Anor v Marks & Anor [2003] QDC 50 Perdis v Nominal Defendant [2003] QCA 555 Piper v Nominal Defendant [2003] QCA 557 Re Tonks [1999] 2 Qd R 671 COUNSEL: Mr L Smith for the applicant Mr R Morton for the respondents SOLICITORS: Logan Law for the applicant Allianz Insurance for the respondents Introduction [2] This is an application by the applicant for a declaration pursuant to s 39(5)(c)(i) of the Motor Accident Insurance Act 1994 (Q) (“MAIA”) that as of 28 July 2016 the applicant has remedied any noncompliance in the Notice of Accident Claim form served upon the second respondent together with consequential orders. Alternatively, the application is that the applicant be authorised to proceed further with her claim pursuant to s 39(5)(c)(ii) of the MAIA on various terms. -- 2 of 8 -- 3 Material in this case [3] The applicant has sworn an affidavit filed 25 July 2016.1 The applicant swears that the motor vehicle collision in this case occurred on 8 May 2013. At the time of the accident she was in a Mazda motor vehicle which was stationary in a line of traffic on Mains Road, Mt Gravatt when her vehicle was struck by a Honda motor vehicle driven by the first respondent. The second respondent is the insurer of the Honda. As a result of this accident she experienced pain in her neck, upper back and chest. She attended her GP on 10 May 2013 – two days after the accident. Exhibit A to her affidavit is the report from the GP dated 10 May 2013 which noted a whiplash injury. This was in the form of a letter to a physiotherapist. [4] She was treated with rest, painkillers, heat cream and referred to physiotherapy. She had about seven days off work following the motor vehicle accident, during which time her eldest daughter worked in her café but because she could not afford to pay fulltime wages she was forced to return to work after about a week. [5] The applicant was born on 15 April 1965 and presently is 51 years old. In 1998 she came to Australia from Bosnia through Austria. She could not speak English when she arrived here but now has a basic grasp of the English language. She is married with two adult daughters. She worked as a cleaner when she arrived in Australia until May 2011 when she purchased a café at Logan Road, Greenslopes. She works seven days a week in the café. At the time of the accident she was not aware of her entitlement to claim damages for personal injuries. She however spoke to Mr Gunn, a barrister at law, whom she had met through work as a cleaner, told him about the accident and the injuries she suffered and he referred her to a Mr Guest of Macfie Curlewis Spiro Lawyers. [6] On 26 June 2013, she met with Mr Guest and completed a notice of accident claim form. He in fact came to her shop. He told her that she had to go to her GP to have the CTP medical certificate completed, to go to the Police station to report the accident, and to complete her business tax returns so she could advise him of income for the claim. He marked the notice of accident claim form with a highlighter to identify the items requiring attention. Exhibit B to the affidavit is a copy of this claim form.2 Mr Guest informed her of a three year time limit in connection to her claim. She has no recollection of him explaining to her that the notice of accident claim form needed to be lodged within nine months of the accident. [7] I notice in the notice of accident claim form the full details and mobile telephone number of the first respondent are included. It may be inferred that she obtained these at the accident scene. The insurer has not placed material before this Court that there is any difficulty contacting Mr Kit. Accordingly, I draw the inference that no prejudice has been occasioned to the insurer in this regard, i.e. on the question of liability. [8] On or about 27 June 2013, the applicant visited the Mt Gravatt Police station to report the incident but they told her they could not do a report as they did not attend the scene. She informed Mr Guest about this at some stage. Indeed, Exhibit C, which is a file note from Mr Guest’s firm, notes this. Also, she attended her general practitioner and a medical certificate was obtained from him (Exhibit D to the 1 Document 2. 2 Exhibit 1 is a colour photocopy. -- 3 of 8 -- 4 affidavit). This certificate certifies that she suffered a whiplash injury in the collision. It is dated 3 July 2013. She is not sure if she forwarded this to Mr Guest. [9] She was of the understanding that Mr Guest could not progress her claim until he was provided with details of her income. To do this she needed to consult with an accountant but did not have the money to do so at that time, was very busy with her business, and was under pressure and stress. Also, her husband had health issues, suffering Multiple Schlerosis. She was working long hours at her café, responsible for caring for her husband, in severe financial hardship, in debt to the Taxation Office and was the sole earner for the family. Her main focus was on the business. She did not forget about the claim but was under the impression that Macfie Curlewis Spiro Lawyers were progressing it. She did not appreciate the notice of accident claim form had to be served within any particular time frame except for the three years which had been mentioned. She does not recall hearing from Macfie Curlewis Spiro Lawyers until about March 2014. [10] On 10 March 2014, she received Exhibit E from the firm. This confirms there was a meeting on 7 March 2014 and confirms that they would provide her with a fresh diagram of the incident to be attached to the notice of accident claim form. There is nothing in the letter to suggest that the notice of accident claim form had to be served within any particular time or, indeed, they were out of time. She did not provide him with the information requested as nothing had changed and she could not afford to do business tax returns at that point. She continued to believe that she had three years. There is a further letter dated 17 April 2014 (Exhibit F) but the she recalls being extremely stressed at the time she received that. [11] There is a further letter dated 31 July 2014 (Exhibit G) in which she was advised that Mr Guest was leaving the firm and Ms Van de Vorst was taking over the carriage of the matter and she would shortly contact the applicant to introduce herself. [12] She denies the suggestion that Macfie Curlewis Spiro Lawyers sent any letter to her advising her that the file was to be closed. [13] She recalls in about April 2016, the religious celebration of St. Peters. It reminded her it had been almost three years since the motor vehicle accident. She was then in a financial position to be able to complete her tax returns. She attended upon her accountant at Moorooka and requested the taxation returns be prepared. After completing these she telephoned Macfie Curlewis Spiro Lawyers on or about 5 May 2016. Mr Spiro told her “we cannot help you because you never replied to our letters you need to contact the insurer urgently about this claim”. She contacted Mr Gunn and on 6 May 2016, Mr Gunn contacted the insurer and arranged for a consent extension to the limitation date and he referred her to her current solicitors. [14] She first contacted Logan Law on 11 May 2016 and provided instructions for them to act. It was explained to her that the notice of accident claim form was never lodged with the insurer. She was unaware of this and was unaware that it might bar her claim. [15] On 19 May 2016, a Notice of Accident Claim form (Exhibit H) was served by Logan Law on the insurer. The applicant was also required to provide a statutory declaration (Exhibit L) in which she set out some of the details relevant to this matter. -- 4 of 8 -- 5 [16] On 29 June 2016, the insurer wrote to the applicant’s solicitors advising they did not accept that the excuse provided was reasonable and did not accept the claim was compliant. As a result this application has been brought. Applicant’s submissions [17] The applicant submits that she entrusted the carriage of this claim to her solicitors in a timely manner. She spoke no English when she moved to Australia in 1998 and has a basic grasp of it. After the accident she returned to work, was extremely stressed, under serious personal and financial pressure, cared for her husband, was the sole income earner and had no knowledge of the legal procedure associated with the claim. She did attend her GP and obtained the medical certificate and she also attended the Police station. She was told that the claim form could not be submitted without the income details. She was unable to complete the business tax returns until early 2016. It is submitted that the solicitors made no attempt to contact her prior to the expiration of one month post consultation limitation to advise her of the urgency of the information and the timeframes were not advised to her. She believed she had three years in which to bring the claim and in the premises she has provided reasonable excuse for the delay. [18] It is alternatively submitted that if the Court does not accept that she has provided reasonable excuse it is appropriate for an order to be made under s 39(5)(c)(ii). The Court has the power to authorise these further proceedings in the event of the absence of reasonable explanation for delay.3 [19] It was submitted the applicant has a strong case in respect of liability, she has provided a detailed explanation of her understanding, the delays are entirely attributable to the solicitors and there is no significant prejudice to the insurer. Respondents’ submissions [20] It is submitted by the respondents that the applicant was clearly told that she needed to provide the medical certificate, the details of weekly gross income, and the claim could not be submitted without those details. It is submitted that although the applicant claims she was stressed and under pressure, no details is given about that and there was no suggestion she could not have attended to relatively simple matters had she wished to do so. It is submitted that there is complete inaction by the plaintiff from March 2014 to May 2016. It is submitted no valid explanation for the delay has been given. [21] It is also submitted that the delay is contemptuous of the insurer’s position and there is prejudice to the insurer in that there will be a claim for economic loss in relation to the operation of the café business and there is no prospect of the insurer to be able to counter allegations made as to what she may or may not have done in the business over the last three years e.g. by way of surveillance. It is submitted there is also the loss of the ability to have a timely medical examination of the plaintiff. [22] The respondents submit that in those circumstances, the application should be dismissed. Discussion 3 O’Keefe & Anor v Marks & Anor [2003] QDC 50 at [4]. -- 5 of 8 -- 6 [23] The MAIA requires that prior to bringing an action in Court a notice of accident claim be served on the insurer of the vehicle driven by the second party.4 The notice must be given within nine months after the motor vehicle accident or, if symptoms of the injury are not immediately apparent, the first appearance of symptoms of the injury; or within one month of first consulting the lawyer about making the claim whichever is the earlier.5 [24] Section 39(5) of the MAIA provides: “(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— (a) the insurer— (i) has stated that the insurer is satisfied notice has been given as required under this division or the claimant has taken reasonable action to remedy the noncompliance; or (ii) is presumed to be satisfied notice has been given as required under this division;… … (c) the court, on application by the claimant— (i) declares that the claimant has remedied the noncompliance; or (ii) authorises further proceedings based on the claim despite the noncompliance.” [25] Similar provisions have been considered in a number of decisions. In Perdis v Nominal Defendant6 it was held at [12]-[13] by Davies JA: “…the claimant gives a reasonable excuse for the delay if the excuse is that, in sufficient time, he or she entrusted the matter to a person who was reasonably believed to be competent to do whatever was necessary… [13] It may be necessary to qualify that general proposition where, after a claimant has entrusted the matter to his or her solicitor, there is something which would cause a reasonable person in the position of the claimant to make further inquiry or take other steps but it is unnecessary to consider any such qualification here for the complainant here did all that could reasonably have been expected of her.” [26] Williams JA at [22] thought that there must be reasonable explanation why notice was not given in the initial period and the delay thereafter. And at [26] he said: “The question will always be whether or not the claimant had ‘reasonable excuse’ for the failure to comply with the statutory requirement.” Importantly, both delay and the issue of prejudice to the insurer are to be considered on such an application.7 4 See s 37(1) of the MAIA. 5 Section 37(2)(b)(i) of the MAIA. 6 [2003] QCA 555. 7 See Re Tonks [1999] 2 Qd R 671. -- 6 of 8 -- 7 [27] In Piper v Nominal Defendant8 Williams JA agreeing with the primary judge at [29] noted: “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 likely prejudice to the Nominal Defendant.”9 [28] In this case it is surprising that despite the absence of information the previous solicitor did not forward the notice of a claim to the insurer. I consider there is fault on the part of the previous solicitor to not do that and to not advise the plaintiff as to the timeframes associated with the MAIA procedure. [29] On the other hand, the plaintiff did not take any step herself in the prosecution of this action between 2014 and 2016 and, in those circumstances, the delay is not satisfactorily explained during that period. [30] In those circumstances, in the exercise of the Court’s discretion, I decline to make an order pursuant to s 39(5)(c)(i) of the MAIA. [31] I now turn to the exercise of the alternative discretion. [32] In O’Keefe v Marks & Anor10 McGill SC DCJ at [5] said that relevant considerations are: “ (a) The strength or otherwise of the apparent case on liability against the respondent; (b) All that has occurred since the time the nine month period expired; (c) That refusal of the application would shut out the applicant from any cause of action against the insurer forever; (d) Whether any failures to attend to the obligations under the act was caused by the applicant’s solicitor rather than the applicant person; (e) Whether there has been prejudice or risk of prejudice to the respondent as a result of the delay.” [33] A reasonable explanation is not a prerequisite for the grant of leave.11 [34] In this case, as I have found, the explanation for delay is not satisfactorily explained between 2014 and 2016. [35] Despite this though, it is my view there is some degree of fault on the part of the solicitor for not serving the notice of claim and not advising the applicant of the time limits associated therewith. I accept the applicant’s evidence she only ever understood there was a three year time limitation. In this case, there is no prejudice alleged concerning liability. The insurer has the contact details of the first respondent and no material was put before the Court alleging there was any prejudice in that 8 [2003] QCA 557. 9 McKenzie J agreed at [46] with the exception that he did not think the likelihood of prejudice was relevant to whether or not the excuse was a reasonable one. His Honour pointed out that the question of prejudice, however, may be relevant to the exercise of the discretion under s 39(5)(c). 10 [2003] QDC 50. 11 Ibid. at [4]. Also see Khatri v Transport Accident Commission [2004] QDC 38 at [20-24]. -- 7 of 8 -- 8 regard. It seems to be a strong case on liability at this point. If the order were not made the plaintiff would be shut out from bringing her case before the courts. [36] As to alleged prejudice suffered by the respondents, although it is true that surveillance has not been conducted over the previous three years, there will be books of account and taxation returns available which will enable the respondents to accurately assess loss (if any) caused by the accident. Additionally, it is not unusual for medicolegal examinations to take place some years after an alleged accident. The applicant can still be the subject of such an examination. Also, it seems in the material at this point, the matter is concerned with a relatively minor whiplash injury, although I do note that sometimes claims can be greatly inflated. [37] In all the circumstances, I do not consider there is significant prejudice to the insurer here. In the circumstances and in the exercise of the Court’s discretion, bearing in mind the strong case on liability, the absence of proved prejudice to the insurer, and despite the difficulties with the explanation for delay, I exercise the Court’s discretion to authorise the applicant to proceed further with her claim pursuant to s 39(5)(c)(ii) of the MAIA on terms. [38] In my view, the plaintiff is seeking an indulgence of the Court. She delayed the action between March 2014 and early 2016. In my view, she should pay the costs of this application. Orders [39] In the circumstances, the orders of the Court are: 1. Pursuant to r 367 of the Uniform Civil Procedure Rules 1999, the Court will determine the application notwithstanding the applicant’s noncompliance with r 27(1) of the Uniform Civil Procedure Rules. 2. The applicant is authorised to proceed further with her claim pursuant to s 39(5)(c)(ii) of the Motor Accident Insurance Act 1994 (Q) on the following terms: (a) The parties comply with the obligations imposed pursuant to ss 51A, 51B and 51C of the Act by 28 January 2017; (b) Pursuant to s 57(2)(b) of the Act the applicant be given leave to commence proceedings within 60 days of the earliest of the following events occurring: (i) A conference being held pursuant to ss 51A and 51B of the Act and mandatory final offers being exchanged in accordance with s 51C of the Act; or (ii) In the event of the parties agreeing to dispense with (a) above pursuant to s 51A(4) of the Act, the date of the set agreement; or (iii) In the event of the Court making an order to dispense with (a) above pursuant to s 51A(5)(b) of the Act, the date of such order. 3. The parties be at liberty to apply. 4. I order the applicant is to pay the costs of and incidental to this application to the respondents, as agreed or assessed. -- 8 of 8 --