MAYOL v STATE OF NEW SOUTH WALES and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 5 July 1996, 5 July 1996 [1996] NSWCA 345 Motor Accidents Act, 1988 s42, s43, s52 — duty to identify insurer — lapse of time. FACTS: The Appellant was injured on 6 March 1791 whilst a custodial passenger in a vehicle controlled by the Prisons Department. It took the appellant until October 1993 to realise the seriousness of his injuries and he then instructed solicitors to make a claim. His solicitors did so, and attempted to do all that is required by the Motor Accidents Act, 1988, despite being both out of time and lacking details of the registration and insurer of the vehicle. The lateness of the claim was aggravated by a delay of 13, months by the Department in responding to enquiries as to the registration and insurer of the vehicle. Proceedings were brought to commence proceedings out of time and leave was refused. The plaintiff appears. Held: By Meagher JA, Clarke, Handley JJA agreeing: (1) Despite the lapses in time, the fact was that the plaintiff/appellant did not know the identity of the insurer through no fault of his own and he suffered real injustice in the refusal of his claim. ORDERS: 1. Leave to appeal granted; 2. Appeal allowed 3. Orders of his Honour Judge Christie set aside: and 4. Declaration as in 1 in the Notice of Application; next the Declaration as in 2 in the Notice of Motion; next the Declaration as in 3 in the Notice of Motion. Order that the proceedings be filed within a month from this date. I would order that the respondent or the opponent pay the costs both below and in the present court of the Notice of Motion and of the Appeal. Meagher JA This is an application for leave to appeal from an order of is Honour Judge Christie who dismissed, with costs, the notice of application to commence proceedings which had been brought by Mr Mayol under the Motor Accidents Act. The position is this, Mr Mayol had an accident on 6 March 1991 when he was in a vehicle owned by the Prisons Department, which was conveying him from Long Bay to the Supreme Court. He was imprisoned at that stage on a very serious criminal offence. He apparently got bail on the following day, 7 March and later in 1991 he was acquitted. Fairly soon after the accident, which he had in the van, he went to see his doctors and he gave them an account of what happened. His evidence was that at first he did not think he had suffered any very serious problems. As time went on his Honour found that by August 1993 he was aware that his problems were indeed serious. 2 UNREPORTED JUDGMENTS There is some question about what happened between March 1991 and August 1993. In view of the fact that he must have had some difficulty rehabilitating himself, that he obviously had medical problems and that he also had domestic problems, it is understandable that he left matters slide a little. Having discovered in mid-1993 that his problems were indeed serious he went to his current solicitor in October 1993. His current solicitor immediately realised that the proceedings should be brought but at this stage it wasn't entirely easy to bring them because he did not know the registration number of the vehicle in which the accident occurred, nor did he know the name of the insurer of that vehicle. Under s42 and s43 of the Motor Vehicles Act a claim must be made within six months of an accident and the claim form must be served both on the defendant and on its insurer. That could not be done in October 1993. At that time the solicitor did the only thing he could have done which was write to the Department of Corrective Services asking for details. In April to May 1994 notification to the Police Department of the accident was made, this is required to be done under s42. Certainly the Act says that such notification should be made within twenty-eight days of the accident and the amount of time that had elapsed was very considerable indeed. In April 1994 a blank claim form was filled in and served. It wasn't very informative because again the registration number of the vehicle was unknown and the identity of the insurer was unknown. On 23 November 1994 the Department of Corrective Services wrote a letter supplying the registration number of the vehicle but regretted that it could not identify the insurer of the vehicle. That letter is remarkable, both for the length of time it took the Department to answer a perfectly civil request made over a year before and for the fact that it professed ignorance of facts which one would have thought would be well within its knowledge. However, on having received that letter in November 1994, Mr Mayol's solicitors took out a motion for an extension of time seeking declarations under s42 subs(1) and subs(5) relating to notification to the police under s43A seeking a declaration that there had been a full and satisfactory explanation of the delay in making a claim under s52(4) for leave to commence proceedings out of time. His Honour rejected this application as I have stated. It is worth quoting what his Honour said towards the end of his judgment. He said, "I am of the view that once the applicant is in possession of knowledge that his symptoms are not insignificant and the possibility of a claim exists then it behoves the applicant to acquaint the correct prospective insurer with the possibility of a claim as soon as can be reasonably expected. I do not find that that occurred on this occasion." With respect to his Honour I think his Honour must have overlooked the fact that the applicant did not know of the identity of the insurer even when he took out a motion for extension of time, because it was after that date that counsel appeared in court for the insurer in question, protesting that his insurance company might, in fact, not have been the insurer at risk at the time. It isdifficult to understand what his Honour meant by those words unless it simply be that his Honour misunderstood something that was in the evidence. In my view, despite the apparent great lapses of time, Mr Mayol suffered a real injustice in having his claim dismissed. In my view the following orders should be made: 1. Leave to appeal granted, 2. Appeal allowed, URJ MAYOL v STATE OF NEW SOUTH WALES and ANOR (Handley JA) 3 3. Orders of his Honour Judge Christie set aside, 4. Declaration as in | in the Notice of Application; next the Declaration as in 2 in the Notice of Motion; next the Declaration as in 3 in the Notice of Motion. Order that the proceedings be filed within a month from this date. I would order that the respondent or the opponent pay the costs both below and in the present court of the Notice of Motion and of the Appeal. Clarke JA I agree and I only wish to add short observations. The critical date, or period, in view of his Honour's finding that the appellant realised that his injuries were more serious than he may have originally thought in August 1993, is that date. The evidence reveals that the next month the appellant consulted a solicitor who referred him to his present solicitors and that in October the present solicitors saw the appellant and on 22 October wrote a letter to the correct defendant, the Department of Corrective Services. In that letter the solicitors identified the date of the event the solicitors identified the journey on which the appellant was travelling when he sustained his injury and sought information as to the registration number of the vehicle. The solicitors also enclosed medical reports. It seems to me therefore, that the defendant, the correct defendant, the Department of Corrective Services, was notified that there was going to be a claim in respect of an event which occurred on a specified journey on the date mentioned by October 1993 which was within the three year period. What occurred following that date does not, in my opinion, reflect, as his Honour seemed to think, on the appellant. On the contrary it reflects very badly against the Department of Corrective Services itself. It would appear that that request for information it was not for years that the appellant was able to find out both the registration number and the identity of the authorised insurer. In those circumstances it is difficult to understand how his Honour could have said that there had been any failure to acquaint the correct prospective insurer with the possibility of a claim at an early point when in fact all that could possibly have been done was done before he correct insurer eventually identified itself. I would agree with the orders proposed. Handley JA I would also agree. I would only add for myself that in this case the Court can act with some confidence on the history given by the appellant to his local medical practitioner, Dr Sassi, on 19 March 1991 in which he records his fall while being conveyed by a prison vehicle from Long Bay to the Supreme Court. It appears from other evidence that it was not until the middle of 1993 that the appellant appreciated that he might have legal rights to recover compensation for any injuries sustained in that fall. On that occasion he was informed by the same doctor about the possibility of legal rights existing and as a result made his first effective contacts with solicitors. This is not a case in which there can be any real doubt in my view from the information before the Court that the fall did take place when and where it was reported by the plaintiff to his general practitioner on 19 March 1991. Mr O' Sullivan do you seek any orders different from those enumerated by Mr Justice Meagher. O'SULLIVAN: No, your Honour. 4 UNREPORTED JUDGMENTS CLARKE JA: I note that in your Notice of Appeal you seek only at 72 an order dismissing his Honour's order and granting the appellant leave to commence proceedings. His Honour went wider than that. O'SULLIVAN: Yes, your Honour. 5 CLARKE JA: You wish to have all those orders made. O'SULLIVAN: Yes, your Honour. MEAGHER JA: Don't get out of time now. O'SULLIVAN: I don't think that that is very likely at all, your Honour. CLARKE: The orders of the Court will be as Mr Justice Meagher announced. 1. Leave to appeal granted; 2. Appeal allowed 3. Orders of his Honour Judge Christie set aside: and 4. Declaration as in | in the Notice of Application; next the Declaration as 15 in 2 in the Notice of Motion; next the Declaration as in 3 in the Notice of Motion. Order that the proceedings be filed within a month from this date. I would order that the respondent or the opponent pay the costs both below and in the present court of the Notice of Motion and of the Appeal.Counsel for the appellant: B O'Sullivan Solicitors for the appellant: Bolzan and Dimitri 25 Counsel for the respondent: P Morris Solicitors for the respondent: Sparke Helmore3545