Claimant loses injury case for being out of contact to his solicitors

The Claimant Warren Jonathan was injured in a motor vehicle accident on 4 August 2012. He subsequently through his solicitors sent to the CTP insurer RACQ a Notice of Accident Claim form under the Motor Accident Insurance Act 1994. The insurer confirmed that the form was compliant with Motor Accident Insurance Act  requirements and later admitted liability in full for the accident.

In about March 2013, the Claimant lost contact with his solicitors and did not contact them again until 29 July 2015, after various attempts on their part to reach him. There was evidence later adduced in the Court of Appeal that he may have been avoiding the authorities as a result of a suspected arson.

The Claimant applied to the District Court for leave (special permission) to extend the time for bringing his claim in a court so that he would have more time to comply with the legislative pre-proceeding requirements.

Section 11(1) of the Limitation of Actions Act 1974 provides that:

“an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person… shall not be brought after the expiration of 3 years from the date on which the cause of action arose.”

However, the Claimant also had to comply with pre-proceeding steps provided by the Motor Accident Insurance Act, including cooperating with the insurer, making himself available for independent medical examinations and attempting to resolve the claim by compulsory conference before his claim for damages could be filed in a court.

Section 57 of the Motor Accident Insurance Act 1994 provides as follows:

“(1) If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.

(2) However, the proceeding may only be brought after the end of the period of limitation if it is brought within—

(a) 6 months after the notice is given or leave to bring the proceeding is granted; or

(b) a longer period allowed by the court.”

The District Court dismissed the application to extend the time for the following reasons:

• 1. The Claimant’s failure to comply with his pre-proceeding obligations had been caused by his decision to not make contact with his solicitors
• 2. The insurer may have been prejudiced by the Claimant’s long absence, because if his condition had improved or worsened it would now not be able to verify when this may have occurred
• 3. The Court found that the Claimant probably had been advised of the three year time limit for filing his claim, and therefore would have been aware of the potential consequences of his long absence.

The result of the District Court’s decision was that the Claimant missed the time limit/limitation period and his claim was consequently statute barred.

This decision was upheld on appeal.

As a result, the Claimant lost his right to pursue the claim.

Costs were awarded against him in the District Court and the Court of Appeal.

This is an important case concerning a Claimant’s responsibilities and obligations in respect of his or her own claim, and another case that shows how disastrous it can be for a client of a law firm to intentionally remain uncontactable to their solicitors.

This case provides a salutary lesson in terms of the following:

1. 1. The need to be contactable to your solicitors throughout your claim
2. 2. The need to avoid any undue delay of your claim
3. 3. The importance of observing the three year time limit and being proactive where possible in avoiding the need to apply to Court to extend the time limit .

Personal injury claims, like nearly all legal matters, are serious matters and must be taken seriously. In particular, it is extremely important for a Claimant to comply with their obligations at law, as failing to do so may jeopardise their claim.

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