MAIA: s.39 – reasonable excuse for delay & prejudice

Djuric v Wai Kit & Anor [2016] QDC 194

Smith DCJA

The applicant was involved in a car accident on 8 May 2013 but due to personal commitments including pressure and stress from her business, she could not provide her solicitor with the relevant details to progress her claim. In April 2016, the applicant recalled having the accident almost three years ago at which stage she contacted her solicitors who referred her to her current solicitor on 11 May 2016.

The current solicitor served a Notice of Accident Claim form on 19 May 2016 but on 29 June 2016 the insurer rejected the excuse provided was reasonable and did not accept the claim. Accordingly, the applicant brought a claim pursuant to s 39(5)(c) of the Motor Accident Insurance Act 1994 (Qld) which relevantly 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

 

The applicant submitted that she entrusted the proceeding of her claim to her solicitor and also was extremely stressed and under serious personal and financial pressure. She also claimed that her initial solicitor did not advise her as to the timeframes of her claim. The respondent conceded that although the applicant may have been under pressure, there was no suggestion that simple matters could not have been taken care of and accordingly there was complete inaction by the applicant from March 2014 to May 2016.

 

In considering the delay and reasonable excuse pursuant to s 39(5)(c)(i) of the MAIA:

 

[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.

 

Ultimately, however, his Honour allowed the application and noted the absence of any prejudice to the insurer in allowing the claimant to proceed with her claim pursuant to s 39(5)(c)(ii) of the MAIA:

 

[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

 

[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

 

The application was allowed, and the applicant was ordered to pay costs.

David Cormack – Brisbane Barrister & Mediator

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