Allan v Rykiert & Anor [2004] QDC 157

DISTRICT COURT OF QUEENSLAND CITATION: Allan v Rykiert & Anor [2004] QDC 157 PARTIES: DENNIS JOHN ALLAN Applicant v HENRY RYKIERT First Respondent and SUNCORP METWAY INSURANCE LIMITED Second Respondent FILE NO/S: BD1322/2004 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 26/5/04 DELIVERED AT: Brisbane HEARING DATE: 12/5/04 JUDGE: Richards DCJ ORDER: It is declared that the applicant has complied with s37 of the Motor Accident Insurance Act by providing to the respondent a complying notice of claim The costs of and incidental to this action are reserved CATCHWORDS: S 39 (5) Motor Accident Insurance Act – reasonable excuse for delay COUNSEL: R J Lynch for the applicant R M Treston for the first and second respondents SOLICITORS: McInnes Wilson Lawyers for the applicant Jensen McConaghy solicitors for the first and second respondents [1] This is an application seeking a declaration pursuant to s 39(5)(c)(i) of the Motor Accident Insurance Act (“the Act”) that the plaintiff has complied with s 37 of the Act by providing to the respondent a complying notice of claim. Alternatively, the applicant is seeking leave pursuant to s 39(5)(c)(ii) of the Act to commence -- 1 of 4 -- 2 proceedings against the respondent despite non-compliance with Division 3 of the Act. Facts [2] On 8 June 2001 the applicant was followed in his vehicle by the first respondent who had taken offence at some driving manoeuvre of the applicant. The first respondent followed the applicant to his home, a fight ensued and the first respondent then drove his motor vehicle at the applicant. The applicant, in an attempt to avoid injury, grabbed onto the bull-bar of the motor vehicle and was thrown from it sustaining injuries. The first respondent was charged with assaulting the applicant together with a number of driving offences. [3] The applicant was taken to the QEII hospital to have his injuries treated and there are medical records available regarding those injuries. The medical records do not distinguish between injuries caused during the fight and injuries caused as a result of being struck by the motor vehicle. [4] The police treated this matter as a criminal one and a traffic incident report was not filed. On 31st July 2002 there was a trial in the Brisbane District Court. The jury in that trial could not agree on all the charges. On 24 October 2002 the trial was due to recommence, however the first respondent agreed to plead guilty to a number of driving charges and the matter was resolved. [5] The applicant was told by the crown that he should seek advice about claiming criminal compensation but after the assault charge against the first respondent was withdrawn, he was told by a solicitor that he was unable to claim criminal compensation. It was not until he spoke to solicitors on 9 September 2003 that he was aware that he could claim for his injuries under the Act. [6] The applicant accepted that on 21 September 2000 he had previously claimed for damages for personal injury arising out of a motor vehicle accident against Suncorp Metway Insurance Limited and his wife had also pursued a claim for loss of consortium as a result of an accident. However, I accept his evidence that despite -- 2 of 4 -- 3 his previous dealings in the civil courts, he thought that as this matter was a criminal matter he had no recourse civilly. [7] The first question to be considered in this application is whether there was a reasonable excuse for the delay in providing a complying notice of claim. [8] My observations of the applicant are that he was not a particularly sophisticated man, and even though he had made a previous claim under the Act, this was an unusual type of traffic accident in that it was constituted by deliberate driving together with an assault. In the circumstances of this case it is understandable that the applicant would view this matter as a criminal matter and not make the connection between the injuries caused by the first respondent’s deliberate driving and an ability to seek damages under the Act. The problem was compounded in my view by the information given to him by the Crown that he may be able to apply for criminal compensation, thereby providing an alternative manner of claiming compensation for his injuries. [9] In these circumstances the applicant has demonstrated a reasonable excuse for the delay in complying with the notice of claim. [10] In any event, absent a reasonable excuse for the delay, this is an appropriate case for granting the applicant leave to commence proceedings despite non-compliance with Division 3 of the Act. It is well established by Thomas v Trans Pacific Industries Pty Ltd [2003] 1 Qd R 328 that a reasonable explanation for delay is only one of the factors that must be considered when the court exercises its discretion to give leave to bring proceedings under s 39(5) of the Act. [11] The other factors which lead to a conclusion that leave should be given are that the claim was given within the limitation period, there was a full investigation by police and there has been cross-examination of the applicant, [the transcript of which the respondent has in its possession]. The applicant was treated at the QEII Hospital and records from the ambulance and of that treatment are available. The first respondent is available to give evidence at trial and has already supplied a statement to police. -- 3 of 4 -- 4 [12] There may be some difficulty with disentangling the injuries caused by the assault with those caused by the traffic accident. It is clear that the applicant now claims that he has different injuries to those reported to the hospital but that is a matter which would simply go to the applicant’s credit by way of previous inconsistent statements. [13] If the applicant’s case is proved, there is a case where liability may be found against the respondents. There is no significant prejudice that can be claimed on behalf of the respondent if leave to commence proceedings were given. Therefore in my view the declaration should be made. ORDER [14] It is declared that the applicant has complied with s37 of the Act by providing to the respondent a complying notice of claim. The costs of and incidental to this action are reserved. -- 4 of 4 --