Trainee Solicitor With the Firm Dewey Cheetham

¶ … trainee solicitor with the firm Dewey Cheetham & Howe. The secretary has made an appointment with an Arthur Morris who wants to speak to a solicitor about being injured in a road accident riding as a passenger in a car that rolled on the Logon Motorway in Queensland two months ago. Both the passenger (Morris) and the driver of the car had been drinking.

(1) When did the accident occur?

This question is very important based on the Limitations of Actions Act 1974, which states that in the majority types of legal action there are "time periods known as limitations periods within which cases must be commenced." (Limitations of Actions Act 1974) Failure to commence proceedings within the allotted limitation period will bar the action from being taken and make the action subject to "possible suspension or extension of the period, or the other side failing to take issue." (Limitations of Actions Act 1974 ) The statutes of limitations exist for two primary reasons:

(1) Injustice -- proceedings hanging over the heads of defendants for long periods of time would result in injustice due to the memories of witnesses having faded and other such factors; and (2) Efficiency -- litigants should be encouraged to bring their actions within a period of time that is reasonable. (Limitations of Actions Act 1974)

Reasons cited by the Courts for supporting the statute of limitations existence include:

(1) Plaintiffs with good causes of action pursue them with reasonable diligence;

(2) Defendant might have lost evidence to disprove a state claim; and (3) Long dormant claims have more cruelty than justice in them. (Limitations of Actions Act 1974)

The statute of limitation period generally begins "upon accrual of the cause of action and is stopped by the commencement of the proceedings. If proceedings are not commenced within the limitation period, time expires and the cause of action is unenforceable. There are instance in which the plaintiff can seek a time extension.

Question Two

(2) Were the police notified of the accident?

Importance of Question

The Motor Accident Insurance Act 1994 -- Section 34: Duty to Notify Accidents to Policy states:

"that anyone who is to make a motor vehicle accident claim must ensure that appropriate notice of the accident has been given to a police officer." (Motor Accident Insurance Act 1994) Included as element of appropriate notice of motor vehicle accident are the following:

(a) the report of particulars required under the Transport Operations (Road Use Management -- Road Rules) Regulation 1999, section 287; or (b) if (and only if) particulars have not been reported as required under that section -- a notice under this section in a form approved by the commission. (Motor Accident Insurance Act, 1994 -- Sect 34) (Motor Accident Insurance Act 1994)

Question Three

(3) Was the driver of the vehicle covered by automobile insurance?

Importance of Question

The Motor Accident Insurance Act 1994 Schedule -- Policy of Insurance 1 Extent of Insurance Cover reports that the insurance policy "insures against liability for personal injury caused by, through or in connection with the insured motor vehicle anywhere in Australia." (Motor Accident Insurance Act 1994) However, the policy is such that does not "insure a person (the injured person) against injury, damage or loss -- (a) that arises independently of any wrongful act or omission; or (b) (b) to the extent that the injury loss or damage is attributable to the injured person's own wrongful act or omission." (Motor Accident Insurance Act 1994) Also stated is that the policy "does not insure against a liability to pay exemplary, punitive, or aggravated damages." (Motor Accident Insurance Act 1994 )

Questions Four and Five

Questions that must be addressed are those, which ask the following:

(4) Did you make any attempt to persuade the driver to refrain from consuming alcoholic beverages prior to driving the vehicle?

(5) Did you attempt to get another ride from the bar?

Importance of Questions

These questions are relevant in that the Civil Liability Act of 2003 states in regard to standard of care in relation to contributory negligence as follows:

"The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm. For that purpose -- (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and (b) the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time. Contributory negligence can defeat claim. (Civil Liability Act 2003)

The defendant knew prior to entering the vehicle that the drive had been drinking alcoholic beverages and have been drinking them himself as well therefore it is possible that any claim that the passenger files against the driver of the vehicle involved in the accident will be unsuccessful in receiving compensation or damages as it is likely that the passenger will be held to have contributed to the negligence resulting in the injuries sustained in the accident. (Civil Liability Act, 2003)

Question Six

(6) Did the driver of the vehicle have his blood-alcohol content checked and if so what was the reading?

Importance of Question

The importance of this question is within the applicability of insurance coverage in which the driver is actively committing a criminal offense while driving under the influence of alcohol. It is noted and stated is that parties can be excluded from claiming damages because of "particular behavior" and specifically that the individual "does not incur civil liability is the court is satisfied of the prospects that: