Howell v Smith [2018] WADC 125


The plaintiff was involved in a motor vehicle accident in 2013. He made a claim to the Insurance Commission of WA (the Commission) and commenced legal proceedings in the usual course.

He was involved in a further accident on 4 February 2014 (the subject of this decision).

The plaintiff completed a crash report form, but did not complete a notice of intention to make claim form.

The Commission invited the plaintiff to negotiate a settlement of any claim arising from this accident at the same time as settling the 2013 claim; however, he declined.

Legal proceedings were subsequently commenced by a writ filed on 29 November 2016.

The Commission, by its solicitors, filed an application to strike out the plaintiff’s claim on the basis the plaintiff failed to give notice of his intention to make a claim, pursuant to Section 29(1).

The plaintiff then filed an application for leave to proceed with the claim under Section 29A.

Relevant provisions

Section 29 of the Act provides that plaintiffs cannot commence or continue an action unless they provide the Commission with notice of their intention to make a claim as soon as practicable after the accident.

  • Under Section 29A, the Court may nonetheless grant leave for a plaintiff to commence or continue an action where the failure to notify:
  • was by mistake;
  • was by inadvertence;
  • was for any other reasonable cause; or
  • has not materially prejudiced the Commission in its defence or otherwise.


This decision was in relation to the plaintiff’s application under Section 29A.

The plaintiff conceded that the failure to provide notice was not occasioned by mistake, inadvertence, or any other reasonable cause. He did submit that the Commission had not been materially prejudiced as a result of the failure to notify.

Deputy Registrar Hewitt observed that a crash report form is not taken to be a notice of intention to make claim, noting the Commission received a large number of reports but with only a small proportion subsequently involving a claim (with the provision of a notice of intent).

The Commission’s powers under the Act to arrange a medical examination of a plaintiff or to require proceedings to be commenced, are enlivened upon receipt of a notice of intention to claim.

While the Commission would have been aware of the accident (having received medical reports relating to the 2013 accident which referenced the 2014 accident), there had been no notification of an intention to claim. Accordingly, the Commission had lost the opportunity to investigate, noting the limitations of its powers under the Act.

The plaintiff had not submitted any treatment accounts for payment, a considerable time had passed without any action by the plaintiff, and he decided not to enter into settlement negotiations with the Commission when invited.

In addition, the defendant driver’s whereabouts was no longer known, and the Commission appeared to have lost the opportunity to have the assistance of the defendant with the defence of the claim, including giving evidence as to the severity of the crash.

The Deputy Registrar also observed that the assessment of an appropriate allowance for non-pecuniary loss, having regard to the statutory threshold, would be ‘nigh on an impossible task’, given the above and the lack of contemporaneous medical evidence as to the relative contributions of each accident to the plaintiff’s injuries.

Accordingly, the plaintiff’s application was dismissed.

Implications of decision

The decision is perhaps somewhat surprising, noting the objective evidence that the Commission had actual knowledge of the 2014 accident, and invited the plaintiff to enter into settlement discussions (i.e. it was expected he would be claiming for that accident).

However, the Deputy Registrar observed that the Commission was unable to arrange a medico-legal review until a notice of intention to make claim was received and this, combined with the passage of time with no action by the plaintiff, appears to have been fatal in this case.

The Deputy Registrar focussed particularly on the difficulties the Commission would have in disentangling the effects of the 2013 accident and the 2014 accident, given the passage of time and lack of contemporaneous review. It is not clear whether the plaintiff’s application would have been successful had there only been one accident.

Further information / assistance regarding the issues raised in this article is available from the author, Daniel Coster, Senior Associate, or your usual contact at Moray & Agnew.