Monthly Archives: June 2012

Don’t just rely on the plaintiff having to rebut the presumption

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The recent District Court decision of McLean v Nominal Defendant [2012] QDC 73 handed down by Judge McGill has highlighted the perils of simply relying on section 47 of the Civil Liability Act 2003 (the “Act”) when alleging contributory negligence.

Section 47 places the onus on the Plaintiff to rebut the presumption of contributory negligence when they suffer harm whilst intoxicated.  In the matter of McLean, the Plaintiff had been on an overnight drinking “binge” at a friend’s house.  The specifics of the following morning’s events were in dispute.  It was accepted that the claimant continued to drink alcohol.

At some point in time, he decided to walk from his friend’s place to his sister’s place, which was in close proximity.  It was during this walk, that he was crossing the road at an unmarked pedestrian crossing (at a roundabout) when he was struck by an unidentified vehicle.  He suffered fractures and crush injuries to both his feet.  The Court found these injuries were consistent with his feet having been run over by a motor vehicle.

The Plaintiff was rather vague on the details of the actual accident.  His story differed somewhat from versions of events provided by other witnesses.  It was generally accepted however, that the accident had occurred as described.

The Defendant alleged contributory negligence pursuant to section 47 of the Act.

The driver of the at-fault vehicle owed a duty of care to keep a proper lookout for the presence of the Plaintiff.  The driver was found to have breached that duty.  Given the accident circumstances, McGill J found the Plaintiff’s intoxication did not “contribute to that breach of duty.  The lack of a proper lookout on the part of the driver of the unidentified vehicle obviously had nothing to do with the intoxication or otherwise of the Plaintiff” (see s.47(3)(a) of the Act).  McGill J found that the driver of the unidentified vehicle had sufficient time and opportunity to be aware of the presence of the Plaintiff as he approached the intersection and therefore be able to take evasive action to avoid the Plaintiff.  The fact that the unidentified vehicle had only run over the Claimant’s feet rather than cleaning him up good and proper, supported this.

McGill J observed that the Nominal Defendant had only pleaded contributory negligence pursuant to s.47 of the Act and the Plaintiff was able to rebut the presumption therein.  It was only during counsel’s submissions that an argument for common law contributory negligence was raised. Even if, at that point, an application for leave had been made to amend the Defence to plead common law contributory negligence, McGill J said that he would not have granted it.

Judge McGill conceded that had contributory negligence been pleaded at common law, he would likely have accepted that due to the Plaintiff’s intoxication “his perceptions of the indications of the approach of the motor vehicle, particularly the sound of it, would have been diminished, and his reaction time would have been increased.  In those circumstances, it is I think quite likely that had he not been intoxicated, he would have noticed the approach of the vehicle sooner, which would have given him more time to get out of its way.”  He indicated that he would have apportioned 20% of the responsibility for the accident to the Plaintiff.

Quantum for the claim was assessed at just under $125,000 plus costs.

The importance of insurers complying with statutory obligations

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A recent case serves as a friendly reminder to CTP insurers that they must ensure they have complied with their statutory obligations.

When a Notice of Accident Claim form (NOAC) in relation to a motor vehicle accident is served upon an insurer, it is required to provide a response to the claimant about whether the NOAC is compliant or not.

If the NOAC does not provide enough information for its liking, the insurer can deem the Notice non-compliant.  It will then provide a suitable period of time during which the claimant must provide more information.  If no response is forthcoming within that period, the insurer is then obliged to give the claimant the heads up that the insurer has heard nothing. This is required to occur within 14 days of the period expiring.  Sometimes, even insurers miss deadlines and things slip through the cracks.

In the recent Supreme Court judgment of Sanders v Nominal Defendant, the insurer did just that.  This led to the Court finding that by “forgetting” to give the claimant a friendly little reminder, the Nominal Defendant was assumed to have deemed the Notice compliant.

The claimant had been injured in a motor vehicle accident on 26 May 2010.  He had been struck by an unidentified vehicle and hence, the Nominal Defendant was in the crosshairs for the claim. The claimant’s NOAC was provided to the Nominal Defendant by letter dated 25 June 2010.  The Nominal Defendant responded within the required 14 days by letter dated 1 July 2010, deeming the Notice non-compliant because the medical certificate did not contain a Medicare Provider Number (“the number”) for the doctor who signed it.

The Nominal Defendant rightly provided the claimant with one month to provide the number.

The parties continued to share information until eight months later when the Nominal Defendant realised its oversight.  It was then the Nominal Defendant advised the claimant, by letter dated 28 February 2011, that because the number was not provided, the claim was statute barred.

The Court held that once the deadline of 1 August 2010 had passed (being 1 month from the letter dated 1 July 2010), under Section 39(1)(a)(iii) of the Motor Accident Insurance Act (the “Act”), the Nominal Defendant was required to write once again (“the second notice”) to the claimant, within 14 days, notifying that the Notice was now compliant or that the claimant had failed to take reasonable action to remedy the non-compliance.

The Court found that because the Nominal Defendant had failed to provide the second notice and continued to exchange information with the claimant,  “it was statutorily estopped from denying that the notice has been given” to the Nominal Defendant by the claimant as required by the Act.

Because the Nominal Defendant did not provide the second notice, it was presumed that it was satisfied that the Notice had been provided as required by the Act.  Given the possible statute barring of the claim, the Court found in the claimant’s favour.

This case is a friendly reminder to CTP insurers that they must be able to go into such matters with clean hands, having complied with all of their statutory obligations.

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