Insurers must advise notice is not compliant – twice!

In Saunders v The Nominal Defendant [2011] QSC 391 a pedestrian was injured by an unidentified motor vehicle on 26 May 2010. A Notice of Accident Claim Form (“Notice”) was provided to the Insurer on 25 June 2010. On 1 July 2010 the Insurer advised the Claimant that the Notice was not compliant.

Various correspondence passed between the Applicant’s solicitors and the Insurer, none of which addressed compliance until 28 February 2011 when the Insurer wrote to the Applicant’s solicitors advising that as a compliant Notice had not been provided within time the Applicant’s claim was barred.

The Applicant brought an Application arguing that the Respondent had waived compliance relying on s39 of Motor Accident Insurance Act 1994 (Qld) (“the Act”). It appears that both parties satisfied s39(1)(a) which requires an Insurer within 14 days after receiving the Notice to advise the Claimant whether they are satisfied with the Notice or if they are not satisfied confirm that they waive compliance or alternatively provide the Claimant a reasonable period of at least one month to remedy the non-compliance.

The Applicant argued that the Insurer had failed to satisfy s39(1)(b) which requires Insurers who are not satisfied that any non-compliance had been remedied to advise the Claimant 14 days after the reasonable period has ended. This notice to the Claimant must give full particulars of any non-compliance and the Claimant’s failure to remedy it. In other words, the Act requires Insurers to twice notify the Claimant if there is non-compliance.

Boddice J found that the requirement for the second notice by Insurers is understandable when non-compliance by a Claimant has such a drastic consequences.

The court found the Insurer did not follow the statutory requirements under the Act. The failure to advise the Claimant of non-compliance the second time means the Respondent is presumed to be satisfied that the Notice had been given as required.

The lesson for Insurers, if raising non-compliance, either under the Motor Accident Insurance Act 1994 (Qld)1 or under the Personal Injuries Proceedings Act 2002² both acts require Insurers to raise non-compliance twice with the Claimant before relying on non-compliance as a bar to the Claimant’s claim.