An injured claimant’s claim for compensation for injuries sustained in a motor vehicle accident has been extinguished by the Qld Supreme Court on account of her failure to commence proceedings within the 3 year limitation period.
The decision involved an application for leave to commence proceedings outside of the limitation period pursuant to pursuant to section 57 of the Motor Accident Insurance Act 1994 (‘the MAIA’) .
The applicant argued that the court should exercise its discretion on the basis that:
- She had completed all pre-court steps set out in the MAIA, except for the holding of the compulsory conference.
- The lengthy delay was contributed to by her lack of capacity, the instability of her injury and what she alleged was incorrect legal advice from her solicitors.
- There was no specific prejudice asserted by RACQ if leave was granted.
The respondents said that the applicant’s conduct was consistent with a lack of conscientious effort to progress the matter and that she had not shown good reason for the exercise of the court’s discretion in her favour.
The applicant, 34 year old Ishmeet Singh, allegedly suffered personal injury as a result of a motor vehicle collision which occurred on 25 August 2012.
Approximately 9 months following the collision, in April 2013, the applicant engaged solicitors. Those solicitors promptly served a Notice of Accident Claim Form on her behalf. They also provided her with detailed advice regarding the steps to be taken in respect of the claim and, importantly, the limitation period applicable to the claim.
It appears that following service of the initial Notice of Accident Claim Form, the claim was plagued by significant delays both on the part of the applicant and her solicitors. At one stage, RACQ contacted the applicant directly on account of being unable to make contact with the solicitors for a period of more than 10 months.
RACQ agreed to informally extend the claimant’s limitation period on 5 separate occasions at the request of the claimant and/or her solicitors. On each such occasion, the CTP insurer’s agreement included an express statement that the offer was not to be taken as a waiver of their right to raise the limitation defence after the date to which they were offering the informal extension.
Ultimately in May 2017, RACQ indicated that they were not prepared to provide any further informal extension of the applicant’s limitation period. The applicant’s solicitors did not receive her instructions to apply to the court for an extension or otherwise to commence proceedings. They allowed the extended limitation period to lapse.
The applicant’s mental health was of some significance. There was evidence from an independent psychiatrist, Dr Mathew, that at certain points in the claim process the applicant did not have capacity to instruct solicitors in respect of her personal injury claim. At various times the applicant said that she was mentally unable to cope with the requests being put to her by her solicitors. However, in contrast to this, she was well enough to travel overseas on occasions throughout the period when she ought have been taking steps to progress her claim.
Boddice J rejected the evidence of independent psychiatrist, Dr Mathew. The applicant’s instructions to her solicitors throughout the course of the claim, and indeed her overseas travel during the relevant period, supported a conclusion that she had capacity at all relevant times.
His Honour found that the applicant chose to give priority to her own personal circumstances, notwithstanding an obligation to provide instructions in circumstances where her solicitors had made her well aware of the looming expiry of the limitation period. The applicant’s conduct was not consistent with a conclusion that she had made a conscientious effort to comply with the requirements of the MAIA.
Finally, His Honour held that the expansive delay of more than 6 years since the collision had an inevitable impact on the respondent’s ability to fully and fairly defend any proceedings commenced as a consequence of leave being granted.
The application for leave to commence proceedings was therefore refused.
Implications for you
The reasoning of Boddice J, at paragraph 20 in particular, provides a succinct and helpful summary of the principles which have emerged from previous cases. This summary provides insight into how the court must approach the exercise of its discretion under section 57 of the MAIA.
It would be wise to review these principles when considering whether to grant an informal extension of a limitation period or to put the claimant to task, requiring them to apply for leave to commence proceedings out of time.
In circumstances where a claimant has received advice about the limitation period applicable to the claim, there have been repeated and extensive delays in prosecuting the claim and the claimant has not advanced any specific and reasonable grounds for the delays, it seems unlikely that the court will be minded to grant leave pursuant to section 57 of the MAIA.