MANUAL DE OPERACIONES Y MANEJO DE CONTINGENCIAS

Proceedings in respect of a claim may be taken in any court of competent jurisdiction.

108 Claims assessment or exemption pre-condition for commencement of court proceedings

(1) A claimant is not entitled to commence court proceedings against another person in respect of a claim unless:

(a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or

(b) a claims assessor has issued a certificate in respect of the claim under section 94 (Assessment of claims).

(2) The provisions of this section are in addition to those of section 109. Accordingly, both sections are capable of applying to a claim.

109 Time limitations on commencement of court proceedings (cf s 52 MAA)

(1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:

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(a) the date of the motor accident to which the claim relates, or (b) if the claim is made in respect of the death of a person—the

date of death,

except with the leave of the court in which the proceedings are to be taken.

(2) Time does not run for the purposes of this section from the time that a claim has been referred to a claims assessor for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.

(3) The leave of the court must not be granted unless:

(a) the claimant provides a full and satisfactory explanation to the court for the delay, and

(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident. (4) Subsection (3) (b) does not apply to a claimant who is legally

incapacitated because of the claimant’s age or mental capacity. (5) The Limitation Act 1969 does not apply to or in respect of proceedings

in respect of a claim.

110 Insurer may require claimant to commence court proceedings (cf s 52B)

(1) The insurer of a person against whom a claim is made may give the claimant notice requiring the claimant to commence court proceedings in respect of the claim if:

(a) the claimant has been entitled to commence the proceedings for a period of at least 6 months, and

(b) at least 18 months have elapsed since the date of the motor accident to which the claim relates.

(2) The claimant must comply with the notice within 3 months after its receipt.

(3) If the claimant does not comply with the notice as required by this section, the claimant is taken to have withdrawn the claim.

(4) A claimant whose claim is taken to have been withdrawn by the operation of this section may apply to a court of competent jurisdiction for reinstatement of the claim.

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(5) The court may reinstate the claim if the court is satisfied that the claimant has a full and satisfactory explanation for the failure to comply with the notice.

111 Matter to be remitted for further claims assessment where significant new evidence produced in court proceedings

(1) This section applies to court proceedings in respect of a claim for which a claims assessor has issued a certificate under section 94. (2) If significant evidence is adduced in the court proceedings that was not

made available to the claims assessor, the court is required to adjourn the proceedings until:

(a) the party who has adduced the evidence has referred the matter for further assessment under Part 4.4, and

(b) a claims assessor has issued a further certificate under section 94 in respect of the claim.

(3) For the purposes of this section, significant evidence is evidence that the court considers may have materially affected the assessment made by the claims assessor if it had been made available to the claims assessor when the initial claims assessment was made (whether or not it was available at that time).

Note. See section 151 for cost penalty where the new evidence was available at

the time of the original claims assessment. 112 Presumption of agency (cf s 53 MAA)

(1) For the purposes of:

(a) any proceedings against the owner of a motor vehicle, whether severally or jointly with the driver of the vehicle, for the recovery of damages for liability in respect of the death of or injury to a person caused by the fault of the driver of the vehicle in the use or operation of the vehicle, and

(b) the third-party policy, if the vehicle concerned is an insured motor vehicle,

any person (other than the owner) who was, at the time of the occurrence out of which the proceedings arose, the driver of the vehicle (whether with or without the authority of the owner) is taken to be the agent of the owner acting within the scope of the agent’s authority in relation to the vehicle.

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(2) Nothing in this section is to be taken to imply any ratification by the owner of the motor vehicle of the acts of the person driving the motor vehicle.

(3) The presumption of agency under this section is applicable not only with respect to proceedings taken against the owner of the motor vehicle, whether severally or jointly with the driver, but also:

(a) where the owner or driver is dead, with respect to proceedings against the owner or driver’s estate pursuant to Part 2 of the

Law Reform (Miscellaneous Provisions) Act 1944, and

(b) where the owner or driver is dead or cannot be served with process, with respect to:

(i) proceedings against the person’s insurer under section 113 or the Nominal Defendant, and

(ii) proceedings in which the owner or driver, the owner’s or driver’s estate, the insurer or the Nominal Defendant, as the case may be, is involved as alternative defendant or as a person on whom notice in writing has been served pursuant to Part 2 of the Law Reform

(Miscellaneous Provisions) Act 1946, or as a party to

proceedings for recovery of contribution by or against a joint tortfeasor pursuant to Part 3 of that Act.

113 Proceedings against insurer if insured dead or unable to be served(cf s 54 MAA)

(1) If a person against whom a claim can be made is dead or cannot be served with process, the claimant and a person claiming contribution or indemnity between joint tortfeasors may:

(a) take proceedings in respect of the claim against the person’s insurer, and

(b) recover in those proceedings an amount for which the claimant or the person claiming contribution or indemnity could have obtained a judgment against the insured person.

(2) The fact that a person cannot be served with process is not to be regarded as having been proved unless it is established that all reasonable inquiries have been made in an effort to effect service.

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114 Proof of inability to serve process and give notice(cf s 55 MAA)

The fact that a person cannot be served with process or given notice of a claim may be proved orally or by the affidavit of the person who endeavoured to effect service.

115 Disclosure of offers or assessment by claims assessor(cf s 56 MAA)

(1) This section applies to:

(a) the amount of an offer of settlement under section 82 in connection with a claim, or

(b) the amount of an assessment of damages by a claims assessor under Part 4.4.

(2) Except as prescribed by the regulations, any such amount is not to be specified in any pleading, affidavit or other document filed in or in connection with court proceedings, and is not to be disclosed to or taken into account by the court, before the court’s determination of the amount of damages in the proceedings.