Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Verstappen v Fordyce

 

[2004] QSC 149

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No BS2992 of 2004

PETER JOHANNES MARIA VERSTAPPEN

Applicant

and

 

PETER WILLIAM FORDYCE

First Respondent

and

 

SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 960)

Second Respondent

BRISBANE

DATE 27/04/2004

JUDGMENT

HER HONOUR: This is an application made under section 55A(5)(b) of the Motor Accident Insurance Act 1994 (“the Act”) to dispense with a compulsory conference. The application is made by the plaintiff. The Court may dispense with the compulsory conference for good reason.

Section 51A of the Act provides that before a claimant may bring an action in a Court for damages for personal injury arising out of a motor vehicle accident there must be a conference of the parties which is called the compulsory conference. Either party may call the compulsory conference either at a time and place agreed between both parties or at a reasonable time and place nominated by the party calling the conference if certain other procedures required under subsection (3) have been complied with.

The parties may for good reason dispense with the compulsory conference by agreement. There being no such agreement in this case, the application has been made to the Court.

Subsection 51A(6) provides that in considering whether to dispense with the compulsory conference the Court must take into account the extent of compliance by the parties with their respective obligations related to the claim. The discretion given to the Court is, as was said by the President in Terence King Ho Choy v. Calancey [2002] QCA 441, at page 6, “a wide and unfettered discretion, subject to section 51A(6)”. There are a number of factors which in my view are relevant to the exercise of the discretion in this case. One is the objects of the Act and how they are best satisfied, a second is the behaviour of the parties leading up to the compulsory conference and the third is the desire for certainty in personal injury actions involving, as they do, persons as plaintiffs who very often have little, if any, experience of litigation apart from this action.

The plaintiff, Peter Verstappen, is a 47 year old man who suffered grievous personal injuries in a motor vehicle accident on the 22nd of August 2001. It should be noted that there is now less than four months till the limitation period expires and the defendant insurer, when it accepted liability, clearly indicated that it expressly reserve its right to rely on the Limitation of Actions Act should the plaintiff not commence an action for damages for the alleged personal injury within the applicable statutory limitation period. That limitation period is ordinarily three years. So the time is fast approaching where the action must be commenced.

The principal object of the Motor Accident Insurance Act which is relevant to this case is the object found in section 3(c) which is “to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents.” That is a laudable aim in view of the many cases which seem to drag on for long periods of time which discourage plaintiffs from being able to deal with their injuries and get on with the rest of their lives and also means that insurance companies have unsatisfied liabilities going on for excessive periods of time.

It is however true that very often the effects of an injury suffered in a motor vehicle accident will abate or worsen with time and may take some time to stabilise. Nevertheless, the Act provides for very clear steps to be taken by plaintiffs and insurer defendants to ensure that there is a speedy resolution of those claims so far as is practicable.

The plaintiff, as was submitted, has for the most part been extremely careful to comply with all his obligations under the Act.

This has been in somewhat stark contrast to the more dilatory approach taken by the respondent insurer to its obligations under the Act.

The plaintiff provided a compliant Notice of Accident claim form under section 37. His solicitors obtained and provided to the respondent copies of reports and other documentary material in relation to his claim in full compliance with section 45. Indeed, it was said in oral submissions that all but two of the 16 medical reports obtained by the plaintiff have been held by the defendant by over 12 months.

The applicant went beyond his statutory obligations and provided the respondent with a statement of loss and damage, verified by statutory declaration, some six weeks in advance of the date nominated for the compulsory conference. The applicant foreshadowed its desire to have a compulsory conference before actually setting a date well in advance of the compulsory conference for the respondent to attend.

The plaintiff complied with each and every of its obligations under section 51B of the Motor Accident Insurance Act. The only matter of which the respondent has been able to complain is that the plaintiff's solicitor did not give it notice within one month of the plaintiff commencing employment as a real estate agent on commission.

It appears that that employment commenced on the 17th of February 2004, however the defendant was not prejudiced by that failure. The employment as a real estate agent was notified to the defendant on or about 26 February in a report from CRS Australia who were providing rehabilitation services to the plaintiff on behalf of the defendant.

On the other hand, the respondent failed to comply with a number of its obligations under the Motor Accident Insurance Act. Section 41 of the Act provides that the insurer must attempt to resolve the claim and places many positive obligations upon it to gather information about the claim, to address it and to make an offer. The insurer is not permitted to stand by and merely be reactive to the claim: see Gitsham v Suncorp Metway Insurance Limited [2003] 2 QLR 251 at 254 per Justice White.

So far as the resolution of the claim is concerned, that does appear to have been what the defendant has done in this case. The defendant failed to comply with section 41(1)(b)(i) and provide advices in relation to liability within the time prescribed by the Act. In spite of a number of requests by the applicant in relation to whether or not the respondent wishes to conduct independent medical examinations, none of those requests were taken up.

The respondent failed utterly to comply with section 51B, failing in particular to provide a certificate of readiness and then failing to attend the conference. I should say that it appears that the failure to attend the conference was through inadvertence but, nevertheless, the fact is that the plaintiff was there with his solicitors ready to engage in the conference, prepared for the conference, and no conference took place solely because the respondent's solicitors did not attend.

As I have said, the plaintiff is not a young man. He is entitled, under the Act, to have his matter dealt with speedily and in spite of his diligent compliance with most of the requirements of the Act, he finds himself some four months short of the Limitation of Actions Act and still not able to commence proceedings unless the Court exercises its discretion to dispense with the compulsory conference.

I am satisfied, in these circumstances, that there is good reason to dispense with the compulsory conference and allow the plaintiff to commence his action forthwith. In the circumstances, I intend to grant the relief sought in paragraphs 1 and 2 of the amended originating application.

So far as costs are concerned, the applicant has sought his costs on an indemnity basis. The respondent has pointed out that, as the plaintiff failed to receive the certificate of readiness and other matters at least seven days before the compulsory conference was held, it was at least on some notice that the defendant had inadvertently failed to deal with the request for a compulsory conference.

Although one has great sympathy for the plaintiff and the costs involved, I am not satisfied that there was evidence of such unreasonable conduct by the defendant as to require the imposition of indemnity costs upon them. I will therefore award costs in favour of the plaintiff thrown away by the defendant's failure to attend the compulsory conference, and this application, on a standard basis.

Close

Editorial Notes

  • Published Case Name:

    Peter Johannes Maria Verstappen v Peter William Fordyce

  • Shortened Case Name:

    Verstappen v Fordyce

  • MNC:

    [2004] QSC 149

  • Court:

    QSC

  • Judge(s):

    Atkinson J

  • Date:

    27 Apr 2004

Litigation History

No Litigation History

Appeal Status

No Status