Case Note: Djuric v Wai Kit & Anor [2016] QDC 194

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In this case, the District Court had to determine whether to exercise it’s discretion to declare notice under the Motor Accident Insurance Act 1994 (Qld) when there had been a delayed application for the claim. Central to the Court’s decision was whether the Applicant’s explanation for the delay was satisfactory, and the prejudice it would cause the Respondent should the claim proceed.

Background

On 8 May 2013 the Applicant was involved in a motor vehicle accident – she was stationary at a red light intersection when her vehicle was struck by a Honda. The Applicant exchanged details with the driver of the Honda (who was the First Respondent in this matter). The Second Respondent was the Insurer of the Honda.

The Applicant attended her GP two days after the accident, where she was advised that she had whiplash injury and was referred to a physiotherapist. The Applicant owned a café, in which she ordinarily worked fulltime. Immediately after the accident she took 7 days off work, but could not take any more time than this as she did not have enough money to pay full time wages to cover her absence.

On 26 June 2013 the Applicant reached out to a barrister who she had made the acquaintance of through her work, to ask for advice about the motor vehicle accident. The barrister advised the applicant that she needed a CTP medical certificate from her GP, a report from the Queensland Police, and that she had 3 year time limitation in connection with her claim. The barrister then referred the applicant to a solicitor’s firm.

The Applicant contacted the solicitors firm and began compiling documents for the claim, however when she was told she needed to provide business tax returns in support of the claim, she did not take any further action with the matter because she could not afford to see an accountant at the time. The Applicant was never advised about the statutory time limitations for serving the claim – being 9 months from the time of the accident. And so she did not follow up the claim with any sense of urgency thinking that she had 3 years to complete the claim. It was also noted that the Applicant’s solicitor never indicated that she was going to run out of time to make the claim.

The Applicant did not contact her solicitor’s again until 5 May 2016, at which time they said that they could no longer help her. The Applicant then sought the advice of a different solicitor’s firm, who completed and served her claim on 19 May 2016. On 29 June 2016, the Insurer responded and refused compliance on the basis that there was no reasonable excuse for the delay. So the Applicant brought her matter before the Court to seek compliance.

The Applicant submitted to the court that she was very stressed with work around the time of the accident, and with difficulties she was having at home. The Applicant submitted that she had a strong case in respect of liability, she provided a detailed explanation of her (limited) understanding about the claims procedure at the time, that the delays were entirely attributable to the solicitor’s and that there was no significant prejudice to the insurer. In this regard, it was on the basis that the Applicant had obtained the contact details of the insured at the time of the accident, that there was no prejudice to the Insurer, particularly in respect of liability.

The Decision

In its decision, the Court considered there to be fault on the part of the previous solicitor for not lodging the claim and not advising the Applicant of the relevant time frames. The Court also acknowledged that the Applicant did not take any action in relation to her claim for approximately 2 years and that this inaction was not satisfactorily explained. However ultimately, his Honour allowed the application because of the absence of prejudice to the insurer, the fault on the part of the first solicitors, and the Applicant’s compelling evidence that she only ever understood there to be a 3 year time limitation. The Applicant was ordered to pay costs.

Take Away

This case indicates that the Courts may be willing to allow even a lengthy delay in serving a Notice of Accident Claim Form in relation to a motor vehicle accident where there is no significant prejudice to the respondent, and there is a legitimate excuse for the delay. It also indicates the Courts’ interest in deciding a matter based on its merits, rather than dismissing it on a technicality. While a claimant should always seek to stay within the limitation periods, if they happen to miss the time frames, there may still be an opportunity to serve their CTP claim.

For more information regarding a delay application for a motor vehicle accident

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