- Unreported Judgment
- Appeal Determined (QCA)
 QCA 310
SUPREME COURT OF QUEENSLAND
Gitsham, Edwards & Jensen v Suncorp Metway Insurance Ltd  QCA 310
BERYL MAY GITSHAM
LORNA MAY EDWARDS
JENNIFER KATE JENSEN
Appeal No 3547 of 2002
Appeal No 3548 of 2002
Appeal No 3549 of 2002
DC No 1001 of 2002
DC No 909 of 2002
DC No 908 of 2002
Court of Appeal
Application for Leave s 118 DCA (Civil)
District Court at Brisbane
23 August 2002
26 July 2002
Davies and Williams JJA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – RULES OF CONSTRUCTION – GENERALLY – where an insurer requests information from a claimant under s 45 Motor Accidents Insurance Act 1994 – whether the request is reasonable and made without undue delay – where an application by the claimant to dispense with the compulsory conference is granted following a request for information by the insurer
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – RULES OF CONSTRUCTION – GENERALLY – whether a claim for gratuitous care falls within s 45 Motor Accidents Insurance Act 1994 as “financial loss” – whether s 45 relates only to special damages or includes all pecuniary loss – whether claimant must provide information to the insurer of claim for gratuitous care before compulsory conference
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – OTHER PECUNIARY DAMAGE – where claim for gratuitous care (Griffiths v Kerkemeyer damages) – whether gratuitous care is “financial loss” within s 45 Motor Accidents Insurance Act 1994
PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – OTHER CASES – OTHER CASES – whether solicitors should be liable for costs where claim pursued aggressively
INSURANCE – THIRD PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – construction of provisions of Motor Accident Insurance Act 1994 (Qld) – purpose of notice provisions – purpose of statutory scheme
Motor Accident Insurance Act 1994 (Qld), s 3, s 10, s 34, s 37, s 41, s 45, s 47, s 51A, s 51B, s 51C, s 55F
Motor Accident Insurance Regulation 1994 (Qld), s 10
Uniform Civil Procedure Rules 1999, r 155
Donnelly v Joyce  QB 454, considered
Gricelis v House (2000) 201 CLR 321, considered
Griffiths v Kerkemeyer (1976-1977) 139 CLR 161, considered
Kars v Kars (1996) 187 CLR 354, considered
Pickett v British Rail Engineering Ltd  AC 136, considered
Van Gervan v Fenton (1991-1992) 175 CLR 327, considered
W Soffronoff QC, with K F Holyoak, for the applicant
S J Given for the respondents
Suncorp Metway Insurance Limited for the applicant
Morton & Morton (Maryborough) for the respondents
- DAVIES JA: I agree with the reasons for judgment of White J and with the orders she proposes.
- WILLIAMS JA: I have had the advantage of reading the reasons for judgment of White J, and there is nothing I wish to add thereto. The orders should be as proposed therein.
- WHITE J: These three applications for leave to appeal orders made by a District Court judge on 21 March 2002 raise similar questions of construction of the Motor Accident Insurance Act 1994 (“the Act”) and similar facts in respect of which his Honour exercised his discretion. His Honour heard the applications consecutively, giving separate reasons for judgment in each. The applicant seeks leave to appeal both the construction of the Act and the exercise of discretion.
- Each respondent to the applications and appeals is a claimant in respect of personal injury suffered by her caused by a motor vehicle and is represented by the same firm of solicitors in Maryborough. Each claimant brought an application in the District Court to dispense with the requirement to hold a compulsory conference required by Part 4 Division 5A of the Act. In each case the applicant for leave, Suncorp Metway Insurance Limited, is the insurer (“the insurer”) of the relevant motor vehicle. The insurer brought cross-applications in each of the claimant’s applications that the claimants provide statutory declarations pursuant to s 45(7) of the Act giving full particulars of each head of damage claimed in respect of injury sustained by her in the motor vehicle accident as required by s 45(1)(b)(ii).
- In each application his Honour dispensed with the requirement to hold the compulsory conference and refused the relief sought by the insurer.
- In broad terms the issues are whether a request for information about “the heads of damage” claimed by a claimant is a request for information pursuant to s 45(1)(b)(ii) of the Act; whether a request for information about the quantum of a gratuitous care claim is a request for information about “financial loss” pursuant to s 45(1)(b)(ii); and whether, in the circumstances, his Honour was right to dispense with the compulsory conference.
Motor Vehicle Insurance Act 1994
- The Act has undergone numerous amendments since 1994. The provisions relevantly in force are to be found in reprint No 4 of the Act but are not materially different in the most recent reprint, No 4C. The provisions of the Act which govern these applications are in Part 4 concerning claims. Before bringing an action in a court for damages for personal injury arising out of a motor vehicle accident s 37 requires a claimant to give written notice of the claim to the insurer against which the action is to be brought
- containing a statement of the information required under regulation,
- authorising the insurer to have access to records and sources of information relevant to the claim, and
- accompanied by the documents required by regulation.
Notice, relevantly, is to be given within nine months of the motor vehicle accident or within one month after the claimant first consults a lawyer about the possibility of making a claim.
- Section 10 of the Motor Accident Insurance Regulation 1994 sets out what must be included in a notice of claim so far as the claimant knows or can reasonably find out at the time when the notice is given. Relevantly for these applications, s 10(2) provides:
“The notice must contain –
(a)a statement of the nature and extent of the claimant’s loss (as far as it can be assessed at the date of the notice); and
(b)a statement of an amount the claimant would be willing to accept in full satisfaction of the claim … or a statement of why the claimant is not yet in a position to make an offer of settlement.”
- Consistently with one of the stated objects of the Act, to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents (s 3(c)), the insurer is required to respond to the notice within 14 days indicating whether the insurer is satisfied that it is a compliant notice and if not so satisfied, identifying the defects and whether the insurer waives further compliance. If the insurer does not waive compliance it must allow a claimant at least a month to take reasonable action which is specified in the notice to remedy the non-compliance. Within 14 days thereafter the insurer must indicate to the claimant whether or not it is satisfied as to compliance.
- Reflecting the requirement to proceed expeditiously, within six months after an insurer has received a notice of claim, the insurer must, pursuant to s 41(1):
“(a)take reasonable steps to inform itself of the circumstances of the motor vehicle accident out of which the claim arises; and
(b)give the claimant written notice stating –
(i)whether liability is admitted or denied; and
(ii)if contributory negligence is claimed – the degree of the contributory negligence expressed as a percentage; and
(c)if the claimant made an offer of settlement in the notice of claim, inform the claimant whether the insurer accepts or rejects the offer or, if the claimant did not make an offer of settlement in the notice, invite the claimant to make a written offer of settlement.”
Pursuant to s 41(2) the insurer must “as soon as practicable” after the insurer has received a notice of claim:
“(a)make a fair and reasonable estimate of the damages to which the claimant would be entitled in an action against the insurer; and
(b)make a written offer (or counter-offer) of settlement to the claimant setting out in detail the basis on which the offer is made, or settle the claim by accepting an offer made by the claimant.”
An offer or counter-offer of settlement must be accompanied by a copy of medical reports and other associated matters which may help the person to whom the offer is made to make a proper assessment of the offer, s 41(4).
- Accordingly, an insurer is not permitted by s 41 to stand by and merely be reactive to a claim. The section imposes a positive obligation to gather information, address it and make an offer. As would readily be appreciated, the best source of information about a number of matters which will assist the insurer in making “a fair and reasonable” estimate of the damages will be the claimant. Section 45 obliges the claimant to co-operate with the insurer (s 47 mirrors these obligations with respect to the insurer’s obligation to co-operate). It provides, relevantly:
“(1)A claimant must co-operate with the insurer and, in particular –
(a)must provide the insurer with copies of reports and other documentary material (including written statements made by the claimant or by witnesses) in the claimant’s possession about the circumstances of the accident or the claimant’s medical condition or prospects of rehabilitation; and
(b)must give information reasonably requested by the insurer about –
(i)the circumstances of the accident out of which the claim arose; and
(ii)the nature of the injuries resulting from the accident and of any consequent disabilities and financial loss; and
(iii)if applicable – the medical treatment and rehabilitation services the claimant has sought or obtained; and
(iv)the claimant’s medical history (as far as it is relevant to the claim), and any other claims for compensation for personal injury made by the claimant.”
- By s 45(2) a claimant must provide copies of reports and other documentary materials within one month of giving notice of the motor vehicle accident claim, or within one month after they come into the claimant’s possession and must respond to a request to give information made under s 45(1)(b) within one month of receiving it. If the insurer requires the information to be verified by statutory declaration then a claimant must do so, s 45(7).
- Section 46A provides, in the absence of agreement, for a claimant to undergo at the insurer’s expense a medical examination by a medical practitioner to be selected by the claimant from a panel. A claimant may refuse “if [the examination] is unreasonable or unnecessarily repetitious.”
- A court may enforce compliance with the obligations set out in Part 4 on application by a claimant or an insurer.
- If the claim has not settled earlier, the culmination of this information gathering is the compulsory conference. By s 51A, 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 either party may call at a time and place agreed between the parties or, relevantly, at a reasonable time and place nominated by the party calling the conference falling six months after the claimant gave notice to the insurer of the claim. The parties may agree to dispense with the compulsory conference or the court may, on application by a party, dispense with the compulsory conference for good reason. 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, s 51A(6).
- The compulsory conference is a significant event in the regime established by Part 4 of the Act, having important consequences if the claim is not settled. It is quite different from the compulsory conference which former RSC 39.30A(4)(e) required to be held before setting a matter down for trial which, as practised, often was little more than formal acknowledgement of the obligation.
- At least seven days before the compulsory conference is held s 51B(5) requires each party to give to the other party
- copies of all documents not yet given to the other party relevant to the claim;
- a statement verifying that all relevant documents in the possession of the party or the party’s lawyer have been given as required;
- details of the party’s legal representation;
- a certificate of readiness signed by the party’s lawyer to the effect that the party “is in all respects ready for the conference and the trial.”
Further the certificate of readiness must state, pursuant to s 51B(6), that
- all investigative material required for the trial has been obtained including witness statements other than expert witnesses that the party intends to call as a witness at the trial;
- medical and other expert reports have been obtained from all persons the party proposes to call at the trial;
- the party has fully complied with the party’s obligations to give the other parties material relevant to the claim;
- the party’s lawyer has given the party a costs statement containing the information required by s 51B(7).
- If the claim is not settled at the compulsory conference and unless the court has relieved them from doing so, each party must exchange written final offers described as a mandatory final offer at the conference or, if the conference has been dispensed with, within 14 days after the date of the agreement or order dispensing with the conference, s 51C(1). If a mandatory final offer is for $50,000 or less it is to be exclusive of costs. If the claim is not settled the claimant and the insurer must file in court a sealed envelope containing their mandatory final offers and the court must have regard to those offers when determining costs.
- Detailed provisions for the disposition of costs in respect of relatively small awards of damages which proceed to hearing and determination in a court are set out in s 55F of the Act and are such as to discourage resort to litigation for those claims. The claims, the subject of these proceedings, are likely to be so described. Those provisions explain why a party would be concerned not to embark on a compulsory conference unless adequately prepared. If a court awards $30,000 or less the court must apply the principles set out in s 55F(2) –
- if the amount awarded is less than the claimant’s mandatory final offer but more than the insurer’s offer no costs are to be awarded;
- if the amount awarded is equal to or more than the claimant’s mandatory final offer costs are awarded to the claimant on an indemnity basis only from the date on which the proceedings started;
- if the amount awarded is equal to or less than the insurer’s mandatory final offer costs are awarded to the insurer on a standard basis from the date on which the proceedings started.
- If a court awards between $30,000 and $50,000 the court must apply the principles set out in s 55F(3) –
- if the amount awarded is less than the claimant’s mandatory final offer but more than the insurer’s offer costs are awarded to the claimant on a standard basis up to a maximum of $2,500;
- if the amount awarded is equal to or more than the claimant’s mandatory final offer costs are awarded to the claimant to the date on which the proceedings started on the standard basis up to a limit of $2,500 and after that date on an indemnity basis;
- if the amount awarded is equal to or less than the insurer’s mandatory final offer costs are awarded up to the date on which the proceedings started to the claimant on a standard basis to a limit of $2,500 and after that to the insurer on a standard basis.
- A court may take into account, in its award of costs, compensation to a party for costs arising resulting from a failure of another party to comply with procedural obligations under Part 4 of the Act. A court may not award costs to a party related to the introduction of unnecessarily repetitive evidence. Of significance, unless the award of damages is affected by factors not reasonably foreseeable at the time of the exchange of mandatory final offers, the court must not award costs to a party concerning investigations or gathering of evidence after the conclusion of the compulsory conference or the date when the parties completed the exchange of final offers. This emphasises the intention of the legislature that the parties be as fully prepared as if commencing a trial of the action when participating in a compulsory conference.
- It is now convenient to consider the circumstances leading to the applications. In broad overview a notice of claim was given to the insurer in which each claimant said that she was not in a position to accept payment for her claim because her “injuries have not stabilised nor been fully investigated”. In each case liability would not be issue. In one case the insurer maintained that the notice initially was non-compliant but in due course notified compliance. Medical reports were exchanged over a period of months. The solicitors for the claimants in each case concluded that the investigative steps had been completed and called for a compulsory conference nominating a date and delivering a signed certificate of readiness. The insurer resisted on the ground that it had insufficient information and, inter alia, requested further information about damages pursuant to s 45. At the same time the insurer invited an informal negotiating process to continue. The claimants resisted providing any further information, alleging “stalling” tactics on the part of the insurer.
Lorna May Edwards
- Mrs Edwards is a 54 year old married woman, who was a pedestrian crossing on a green walk signal when she was struck by a motor vehicle, insured by the insurer, as it turned right into the street she was crossing on 24 January 2001. She consulted her solicitors on 13 February 2001 and her notice of claim was forwarded on 12 March 2001 to the insurer. The notice informed the insurer of the claimant’s name, gender, age, marital status, address, that she was retired from employment, that she had no pre-existing condition which might affect the extent of her disability resulting from the accident or the amount of damages, that she had not previously sustained a “significant disability” and the circumstances of the accident. Under Part 7 of the form headed “Payment to You/Offer of Settlement” the claimant indicated that she was not in a position to accept payment for her claim because her injuries had not stabilised nor been fully investigated. The form required the claimant in any case to attach all supporting documentary evidence such as reports, accounts and receipts that a claimant might have. None were attached.
- The insurer responded on 28 March that the claim was compliant and dealt with other matters such as rehabilitation as required under the Act. In a second letter of the same date liability for the circumstances of the accident was accepted and a request was made pursuant to s 45(2)(a) for medical reports. Consistently with its obligations, the insurer sent a copy of the claimant’s medical file, which it had obtained from the Maryborough Base Hospital, concerning the injuries sustained by the claimant, to the claimant’s solicitors on 11 April 2001. The file indicated that the claimant had sustained concussion, lacerations and bruising, dislocated her right shoulder and remained in hospital for some days.
- On 29 May 2001 the claimant’s solicitors sent a copy of a notice of charge from the Health Insurance Commission for $45.90, a report from the claimant’s general practitioner, Dr M.K. Isles, and a Queensland Ambulance Report about the accident to the insurer. Dr Isles indicated that the Maryborough Base Hospital was undertaking the claimant’s management but that she had consulted with him “to organise domiciliary nursing and home care until she regained full use of her arm again”. Under cover of letter dated 4 July 2001 the insurer sent the claimant’s solicitors a similar report from Dr Isles.
- Nothing further appears to have occurred, as far as the material reveals, until 16 January 2002 when the claimant’s solicitors sent the insurer a report from Dr J. Pentis, an orthopaedic specialist, dated 9 November 2001 and a notice of disclosure of documents, nominating 7 February 2002 at their office as the time and place for a compulsory conference. Dr Pentis reported:
“Currently gentle exercise, strengthening exercises and see how well she recovers over the next year.[sic]
If she doesn’t recover and has further problems and the range of movement is still limited and painful, then an arthroscopy, decompression of the subacaromial may be her lot.
It is early at present and she should be encouraged to use it actively and see how well she recovers before any operative procedures are undertaken at her age.”
It might be thought surprising in light of that opinion that the claimant’s solicitors nominated a compulsory conference within three weeks. Nonetheless, on 22 January 2002 a disclosure statement and a signed certificate of readiness as required by s 51B(5) and (6) of the Act were sent to the insurer.
- The insurer responded on 23 January 2001 protesting that it was not reasonable to proceed to a compulsory conference because of Dr Pentis’ opinion that surgery might be required in the near future:
“Once we are in receipt of the awaited updated General Practitioner’s Report and evidence your client’s condition is stable and stationary, we would appreciate receiving your client’s written Offer of Settlement in order that we may consider the heads of damage claimed enabling us to determine if further investigations may be necessary, for example, the Care component or Special Damages.”
Whilst this did not constitute a request for information pursuant to s 45 it was open to the claimant to provide that information to the insurer and appropriate that she do so.
- On 15 February 2002, without adverting to any of the issues raised by the insurer, the solicitors enclosed a copy of a further report from Dr Isles dated 29 January 2002. He thought the claimant was fully rehabilitated and had no current care needs relating to the motor vehicle accident. He noted that Meals on Wheels and Blue Nurses were organised to visit her over a period of approximately five weeks, that she was on a disability support pension for pre-existing medical conditions, that her shoulder injury from the motor vehicle accident should make no contribution to her ongoing disability and that she was unsuitable for any workplace situation. The claimant’s solicitors nominated 7 March 2002 as the date for the compulsory conference and advised on 27 February 2002 that if the insurer would not participate, an application would be made to the court to dispense with holding the conference.
- The insurer sought an updated report from Dr Pentis in view of what appeared to be an inconsistent report from Dr Isles, reserved its right to obtain an independent medical examination once Dr Pentis’ further report was to hand and sought information pursuant to s 45:
“… we ask that your client provide details of her claim for Special Damages and Care. We also ask that your client confirm that no claim is being made for Economic Loss. Pursuant to Section 47(3), we ask that this requested information be provided by way of Statutory Declaration”
and continued to offer to settle informally.
- The claimant’s solicitors responded by filing an application to dispense with the compulsory conference.
- Before the learned District Court judge it was argued that the information sought in the insurer’s letter of 25 February 2002 was not information within the meaning of s 45 which was reasonably requested or was not information relating to financial loss. His Honour concluded that all the information which the claimant could provide to the insurer had been provided and the reasonable inference was that the special damages claim related only to the Health Insurance Commission charge. His Honour said:
“The notion that there might be some other expenses that should be statut[orily] verified, in my opinion, amounts more to a suspicion and not something that can be reasonably requested in the negotiation stages.”
He observed, correctly in my view, that there is nothing in the Act to suggest that there must be compliance with every aspect of the applicant’s obligations before a conference can be held. There may be trivial omissions which would not have relevant consequences. His Honour was satisfied that the applicant had reasonably complied with the requests made by the insurer and that considerable information had been provided “to gain a picture about the applicant and the basis of her claims”. How his Honour was able to make this observation is not clear since there had been no quantification of her claim for special damages or care, although such a claim was very likely given Dr Isles’ report sent to the insurer on 15 February 2002.
- His Honour concluded that what was requested by the insurer was not information reasonably requested or was not information about financial loss. His Honour exercised his discretion to dispense with the compulsory conference on the ground that the request did not relate to matters sufficiently significant to justify the further delay in the proceedings “since it [was] over a year since the notice had been given.” His Honour did not refer to Dr Pentis’ report which had not been sent to the insurer until 16 January 2002 and which raised the prospect of a much more extensive claim than might have seemed likely.
- The claimant filed a statement of claim on 24 June 2002. Although not before his Honour, it is relevant to note that it seeks damages for “gratuitous and quasi-nursing services” for the past and future in the sums of $5,000 and $10,000 respectively. Special damages are pleaded to have been incurred but, contrary to the requirements of r 155 of the Uniform Civil Procedure Rules, the claimant does not state the nature and amount of those damages. In the prayer for relief (where the amounts for gratuitous care are found) the amounts of $1,000 for medical expenses, $500 for travelling expenses, $500 for pharmaceutical expenses, $2,500 for future medical expenses are set out. These figures raise questions about the quantum of the claim since they are identical with those for the claimant, Mrs Gitsham, and also raise questions about the seriousness with which the claimant’s solicitors approached signing the certificate of readiness prior to the call for the compulsory conference.
Beryl May Gitsham
- Mrs Gitsham was the driver of a motor vehicle attempting to turn right at the T-junction intersection of two streets in Hervey Bay on 9 October 2000 when the driver of a following sedan collided with the rear of her vehicle. Mrs Gitsham first consulted her solicitors on 22 November 2000. Her notice of claim was forwarded by her solicitor to the insurer on 28 February 2001. The insurer takes no point of the failure to comply with s 37(2)(b)(ii) of the Act which requires notice to be given one month after a claimant first consults a lawyer about the possibility of making a claim. In the covering letter the solicitors noted that the medical certificate completed by the claimant’s general practitioner was not available but would be forwarded when received. The information contained in the notice included that the claimant was a single (widowed) female born in 1927, retired from employment, in receipt of the age pension, who had sustained a significant disability and was being treated for a psychiatric illness in the Maryborough Base Hospital. The claimant indicated that she was not in a position to accept payment for her claim because her injuries had not stabilised nor been fully investigated.
- The medical certificate was purportedly sent under cover of letter dated 9 March 2001. In it her injury was described as mild whiplash injury/muscular strain lumbar region. Treatment in the form of physiotherapy was likely to be required for about six weeks and her spine X-rayed if it did not settle with conservative treatment. The medical certificate may have been lost in transit or in some other way because further correspondence ensued about its non-receipt. The insurer did not regard the notice as complying with s 37 since the original of the medical certificate and the police notice pursuant to s 34 had not been provided. The insurer asked for medical reports pursuant to s 45.
- By letter dated 28 March 2001 the insurer indicated to the claimant’s solicitors that a report would be sought from her general practitioner unless the claimant had already sought one. The general practitioner subsequently advised the insurer that she had forwarded a report to the claimant’s solicitors in November 2000. There were continuing problems with provision of the police accident report.
- By letter dated 14 May 2001 the insurer, inter alia, sought copies of any reports held by the claimant’s solicitors in relation to her “medical condition, rehabilitation and treatment” pursuant to s 45(1) of the Act.
- The claimant’s continuing non-complying notice was noted in a letter dated 1 June 2001 and was required to be remedied. The insurer was still waiting to be provided with a copy of the general practitioner’s report of November 2000 notwithstanding the obligation to provide it within one month of giving the notice of claim.
- On 25 June 2001 the claimant’s solicitors forwarded the s 34 police notice signed by the claimant and dated 15 June 2001. They also forwarded a report from the claimant’s general practitioner dated 28 November 2000 and a report from the claimant’s physiotherapist dated 14 December 2000. In her report the general practitioner noted that she saw the claimant at the end of October and concluded that she was suffering a mild muscular strain injury with probable underlying osteoarthritis of her lumbar and cervical spines and was expected to make full recovery.
- The physiotherapist reported that she had treated the claimant on 14 occasions and expected to see her for another month. Given the claimant’s age and type of accident the physiotherapist thought the claimant was doing well but the long term was uncertain although her problems were largely expected to settle.
- There was no further communication until the claimant’s solicitors sent the insurer a report dated 14 September 2001 from Dr I.D. Van Der Walt, an orthopaedic surgeon, on 4 October 2001. Dr Van Der Walt reported that “years ago” the claimant had suffered from neck and back symptoms but had been symptomless for about five years prior to the accident and deterioration shown in her cervical and lumbar spines predated the accident. He noted that she had had a number of operative procedures in the past including knee replacements. Dr Van Der Walt concluded that the claimant had suffered soft tissue injury to her spine and left knee in the motor vehicle accident and assessed the impairment in her lumbar spine at five percent of the whole person. In his opinion the claimant’s left knee prosthesis was probably loosening prior to the accident but had been accelerated. He concluded that her left knee would deteriorate rapidly and that she would require a revision replacement within a year or two.
- The insurer wrote on 11 October 2001 inquiring if an offer of settlement would be made or what further information was awaited.
- The claimant’s solicitors did not respond but instead on 17 October sent the claimant’s disclosure of relevant documents and, in a separate letter of the same date, noted that all investigations were complete, that the compulsory conference could proceed, nominated 7 November 2001 for the conference and enclosed a disclosure statement and signed certificate of readiness. The claimant’s solicitor, Mr Land, deposes that on the same date he made a “without prejudice” offer to settle “setting out the heads of damage on which the offer was based”. This included a lump sum for gratuitous care, including both past and future care without particulars.
- The insurer responded on 29 October that six months had not elapsed since a compliant notice had been received, that the insurer had not received a number of documents on the claimant’s list and sought information pursuant to s 45 about the claimant’s “usual treating general practitioner” as well as the general practitioner who had treated her previously regarding any pre-existing spine condition. Concern was expressed that Dr Van Der Walt may not have taken into account the claimant’s pre-existing spinal condition when he assessed her percentage disability and the insurer reserved its right to have the claimant independently examined should there be no settlement. The insurer made a counter-offer including a request for a detailed schedule of past care.
- By letter dated 2 November 2001 the claimant’s solicitor rejected the offer of settlement, did not respond to the request for information about care, enclosed the documents requested and noted that there had been a compliant notice of claim at least from 22 March 2001 when the medical certificate was forwarded and that the insurer had “more than ample time to have the claimant independently examined”. An application to the District Court was threatened.
- The insurer responded on 6 November 2001 that the claim had become compliant when the s 34 police notice was provided on 26 June so that the compulsory conference could not be held until 26 December 2001. The insurer asked if there would be a counter-offer or alternatively sought to have the claimant undergo an independent examination by one of three nominated orthopaedic specialists.
- The claimant’s solicitors complained about the unavailability of an early appointment and the insurer’s delay. The insurer noted difficulty in contacting Mr Land after the receipt of Dr Van Der Walt’s report and that there was only four weeks between the receipt of the report and the request for an independent medical examination. An expanded panel of specialists was offered. The claimant’s solicitors complained that none were available until well into 2002. The insurer was able to arrange an appointment with Dr D Morgan for 7 February 2002 and denied that it was attempting to frustrate or delay the claim.
- The claimant’s solicitors accepted that appointment and nominated 27 February 2002 at their office for the compulsory conference. The insurer indicated that it would endeavour to participate but reserved its rights. On 27 February 2002 the insurer wrote that it had not yet received the report from Dr Morgan and would not do so until the middle of March 2002 and asked if the matter could be settled informally. The claimant’s solicitors nominated 20 March 2002 at their office as the time for the compulsory conference.
- On 12 March 2002 the claimant’s solicitors sought confirmation of attendance at the compulsory conference on 20 March. The insurer responded by sending a copy of Dr Morgan’s report dated 8 February 2002 received at the insurer’s office on 5 March 2002 and requested information pursuant to s 45 to be given by statutory declaration:
“1.details of the heads of damage that your [client] alleges she has suffered as a result of the accident;
- if your client is claiming for gratuitous assistance, please provide details of that assistance, who gave the assistance and time taken;
- if your client is claiming for special damages, please provide receipts.”
The insurer noted that it had previously asked for a schedule of any gratuitous assistance claimed and proposed a compulsory conference 21 days after the information had been obtained, reserving its rights to postpone the conference should further investigations be required after receipt of the information.
- Dr Morgan reported that the claimant was “categoric” in her denials of previous problems referable to her cervical spine; that she had had intermittent lumbar discomfort over the last 20 to 30 years; and had had no problems with her left knee replacement until the time of the accident. She complained of ongoing symptoms in her cervical and lumbar spines and in her knee. Dr Morgan concluded that the accident probably aggravated the underlying condition in her spine but that it was unlikely that the changes noted in her knee were due to any trauma in the motor vehicle accident. He assessed a five percent loss of bodily function referable to the cervical and lumbar spines linked to the accident and a one or two percent loss of normal left lower limb function.
- The application to dispense with the compulsory conference was filed by the claimant.
- Before his Honour it was argued on behalf of the claimant that the information sought in the letter of 12 March 2002 was not information required to be provided by s 45 and if the information requested did fall within s 45 its provision was not a pre-condition to a compulsory conference being held. On appeal, Mr Given, for the claimant, did not strenuously argue these matters but rather that the information sought was not reasonably requested since the request had come too late. His Honour concluded that the applicant had provided everything asked of her and there was nothing more to be done. He said details of heads of damage was not information or information about financial loss within the meaning of s 45. His Honour concluded that in any event he would dispense with the compulsory conference because the claimant had done all that she could to provide information in the past to the insurer and the insurer had no sound basis for declining to hold the compulsory conference.
- It is instructive to note that Mrs Gitsham filed a statement of claim after his Honour’s orders were made in which she claims damages for “gratuitous and quasi-nursing services” and special damages in exactly the same round figure amounts as claimed by Mrs Edwards.
Jennifer Kate Jensen
- Ms Jensen sustained personal injury on 7 October 2000 when a motor vehicle collided with the bus stop seat where she was seated at Woodridge. Under cover of letter dated 21 February 2001 her solicitors forwarded a notice of claim to the insurer noting that Ms Jensen had first consulted the solicitors on 19 October 2000. The insurer takes no point of this non-compliance with s 37(2)(b)(ii). The claim form indicated that the claimant was a single female born in January 1982 who described her employment status as “student/child” and was in receipt of an unemployment benefit of a gross weekly sum of $150. She noted that she was in no position to accept payment for her claim because her injuries had not stabilised nor been fully investigated. The medical certificate described her injury as multiple grazes, bruises, lacerations and headaches and the results of a CT brain scan were awaited. The claimant was described as capable of working.
- The claim was acknowledged to be compliant, and the insurer sought any medical reports, noting that a copy of the Logan Hospital notes and a report from the claimant’s general practitioner had been requested and would be forwarded when received. The insurer sent a copy of the general practitioner’s (Dr Gunn) report on 9 April 2001 to the claimant’s solicitors. Dr Gunn thought the claimant would have persisting low grade joint abnormalities in consequence of her injury. The insurer admitted liability on 8 August 2001 and requested medical reports.
- The claimant’s solicitors forwarded a copy of a report from Dr I.D. Van Der Walt, an orthopaedic surgeon, dated 5 October 2001 and inquired as to whether the claimant would be required to submit to an independent medical examination. Dr Van Der Walt reported that there was complaint of neck stiffness and soreness, increased severe headaches and some lower back symptoms, and concluded that she had sustained soft tissue injury to her spine involving a five percent whole person impairment. He noted that the claimant was soon to start a job.
- The insurer did not require the claimant to submit to an independent medical examination “at this stage” but might do so should the claim not settle and sought the claimant’s offer.
- There was no further communication and by letter dated 4 December 2001 the claimant’s solicitor nominated 19 December as the time for a compulsory conference, enclosed a statement of relevant documents and a copy of an X-ray/MRI report from Dr J Sykes dated 2 October 2001.
- On 17 December the insurer said the matter was not ready to proceed to a compulsory conference and requested further information pursuant to s 45(1)(b)(ii) and verified by statutory declaration:
“… outlining full particulars of each head of damage your client intends to claim. For example, if your client is claiming G v K we ask that you provide full details as to who provided the care, what care was provided, length of care and amount/rate claimed. This statement should include full particulars of the duties provided to your client pre-accident and those performed post-accident.
If your client is claiming economic loss, we require copies of your client’s Income Tax Returns and Group Certificates for the three (3) years prior to the accident date and all subsequent financial years.”
The insurer indicated it had sought an updated report from Dr Gunn, would consider an independent medical examination when all of the requested documents had been received and nominated a compulsory conference 21 days after that information had been obtained, reserving its rights.
- By letter dated 18 December 2001 the claimant’s solicitor, striking a strident note, accused the insurer of trying to delay matters and nominated 15 January as the time for the compulsory conference, threatening to make an application to court. There was no explanation as to why the information requested would not be provided. The insurer responded on 21 December 2001 reminding the claimant’s solicitors of its obligations to certify the matter ready for trial pursuant to s 51B of the Act and informing the solicitors that it would not do so until it had the necessary material and particulars relevant to the claim.
- The claimant’s solicitors sent a further report from Dr Gunn to the insurer on 31 December 2001. Dr Gunn noted that in November the claimant had ongoing ligamentous and soft tissue irritation in her neck causing her significant symptoms. He said she would be predisposed to early osteoarthritis in her neck and would benefit from further treatment and rehabilitation.
- On 7 January 2002 the claimant’s solicitor received a without prejudice offer from the insurer which was refused. On 15 January the claimant’s solicitors indicated that they would make application at the next sittings of the District Court in Maryborough but made no reference to the information sought.
- In its letter of 18 January 2002 the insurer noted that it had not been provided with particulars of the damages sought by the claimant.
- Before his Honour it was submitted that there was no obligation to provide the information pursuant to s 45 prior to holding a compulsory conference, alternatively, that it was not information reasonably requested about financial loss. His Honour accepted that what was sought was not information about financial loss within the meaning of s 45 and thus was not information reasonably requested. He concluded that, impermissibly, the letter of request sought “full particulars of each head of damage the applicant intends to claim” suggesting that prefacing a request with “if” in some way denied the inquiry the characterisation of information about financial loss. His Honour thought that the intention of s 45 was that a claimant should not have to swear to the kind of information sought and concluded that the applicant had complied with her statutory obligations and there was good reason to dispense with the compulsory conference.
- This claimant, too, filed a statement of claim after his Honour’s orders were made. In it she pleads that she has suffered “income loss” and “has been rendered gratuitous and quasi-nursing services and she claims the value of those services…” without, contrary to r 155 of the Uniform Civil Procedure Rules, particularising the amounts claimed. In the prayer for relief, as with Mrs Edwards and Mrs Gitsham, round figure amounts are claimed for special damages, what is described as “Economic Lost Future – global basis including loss of superannuation benefits” in the amount of $30,000 together with $500 for past gratuitous care and $2,000 for future care.
Section 45(1)(b) information
- A fair reading of s 45(1)(b)(i) – (iv) of the Act compels the conclusion that it intends to cover the whole field of what an insurer who may become a defendant would want to know about the claim. In short form the sub-section covers:
- the accident (liability including contributory negligence);
- the injury sustained and its sequelae;
- financial loss;
- medical and rehabilitative treatment;
- relevant medical history and any past claims for compensation.
And this is hardly surprising if an appropriate offer of settlement is to be made either informally or, more importantly, a mandatory final offer. An insurer at this stage does not have the benefit of pleadings to define the ambit of the claim for damages or a statement of loss and damage providing the details of the quantum of the claim.
- In Edwards his Honour seemed to suggest that not all information sought under s 45 can be the subject of a request that it be verified by statutory declaration. If the information sought is of a kind which is encompassed by the section, including that it be reasonably requested, then s 45(7) enables an insurer to require it to be so verified. There is good reason for this. It binds a claimant to his or her claim so that an insurer might rely on it in making an offer of settlement. If departed from otherwise than for good reason, such as a change in the claimant’s medical condition, it may have an effect on costs.
- On appeal Mr Given relied upon the late date in the progress of each claim at which the insurer sought the information from the claimant to resist providing it, that is, that it was, thereby, not reasonably requested. There can be no doubt that s 45 must be read in light of the insurer’s obligations under s 41(2) that “as soon as practicable” after receipt of a notice of claim it must “make a fair and reasonable estimate of the damages” to which the claimant would be entitled should the matter proceed to trial and make a detailed offer or counter-offer of settlement. Clearly it would be unreasonable to request that information hard on the heels of a notice of claim if the notice indicated an inability to make an offer because the injury had either not been fully investigated or had not settled. Equally a request without reference to the stage a claim has reached, for example, whilst still waiting for a medical specialist’s report, might not be reasonable. So, too, if information is requested repetitiously. It is desirable and probably less expensive to seek and provide the information on one occasion. It might be supposed that a solicitor who is consulted by a person who proceeds to make a s 37 claim will advise the client to keep a note of those who provide gratuitous care and for how long and any other relevant records such as receipts, so that such information can readily be provided when requested.
- What is clear, contrary to the position urged on his Honour, is that this information needs to be requested and provided prior to the compulsory conference. Without it an insurer would be disadvantaged in attempting to formulate a final offer of settlement. That does not mean that an insurer can delay seeking information unreasonably and whether it has done so in these claims can only be assessed on a consideration of the whole of the dealings between the parties not just the final round of correspondence.
- The argument advanced on behalf of the respondents is that in the absence of a demand for payment by or an agreement to pay the provider of gratuitous care, a sum sought to compensate for such care cannot be characterised as “financial loss” within s 45(1)(b)(ii). In Griffiths v Kerkemeyer (1976-1977) 139 CLR 161, which gave its name in Australia to this species of claim, Mason J articulated what has become the accepted approach when services are provided to an injured plaintiff without financial reward or expectation of reward. His Honour said at 192:
“The [plaintiff’s] relevant loss is his incapacity to look after himself as demonstrated by the need for nursing service and this loss is to be quantified by reference to the value or cost of providing those services. The fact that a relative or stranger to the proceedings is or may be prepared to provide the services gratuitously is not a circumstance which accrues to the advantage of the [defendant]. If a relative or stranger moved by charity or goodwill to the respondent does him a favour as a disabled person then it is only right that the respondent should reap the benefit rather than the wrongdoer whose negligence has occasioned the need for the nursing service to be provided. Enough has been said in the cases which have been decided more recently to indicate that the old view based on the proposition that a plaintiff is not entitled to recover from the defendant the services provided to him unless he can show that he is under a legal liability to pay for them, is no longer acceptable. That view proceeded upon the footing that the relevant loss was the legal liability to pay for the service. It is now recognised that the true loss is the loss of capacity which occasions the need for the service. In consequence the existence of a legal liability to pay is not the dominant consideration.”
- Gibbs J characterised such a claim differently. He considered that if the plaintiff’s injuries created a need for services “the loss which sounds in damages is not the need itself, but the cost of satisfying it” at 167. However, Mason CJ, Toohey and McHugh JJ in Van Gervan v Fenton (1991–1992) 175 CLR 327 rejected this approach at 332, as going “as close as is possible to treating the claim as a claim for special damages” which had been rejected in Donnelly v Joyce  QB 454, a case which found favour with the majority in Griffiths v Kerkemeyer. The proper characterisation, their Honours held, in a claim for damages for gratuitous care “is the need of the plaintiff for those services provided for him or her and that the plaintiff does not have to show, as Gibbs J held, that the need “is or may be productive of financial loss”” at 333.
- So far, this analysis might suggest that the respondents are correct to assert that information about “financial loss” in s 45 of the Act does not encompass a claim for gratuitous care. But this is to misapprehend how such a claim is quantified. As the majority in Griffiths v Kerkemeyer held, the appropriate way to do so is to ascertain the market value for these services. Such a process differs from special damages which are calculated, as Dawson J noted in Kars v Kars (1996) 187 CLR 354 at 361, simply by adding them up. His Honour said at 361:
“True it is that the value of services provided or to be provided gratuitously to satisfy a need will ordinarily provide a guide in quantifying the damages to be awarded for the loss giving rise to the need, but those damages are general damages which are incapable of precise mathematical calculation and remain at large until quantified. It has been conventional when juries are called upon to assess damages to classify general damages under three heads; economic loss, loss of enjoyment of life and pain and suffering. Economic loss is often said to be the future loss of wages or loss of income but in fact it is for the loss of earning capacity that such damages are awarded. As Fullagar J pointed out in Paff v Speed (1961) 105 CLR 549 at 559: “Actual loss of wages or loss of income will have been already taken into account in assessing special damages, and what the plaintiff must receive in respect of the future is compensation for total or partial incapacity to earn income”.
In the same way the damages which a plaintiff receives for the need for services is compensation for the loss or incapacity giving rise to the need”.
- In Grincelis v House (2000) 201 CLR 321 the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) approved the statement of the majority of the Federal Court below that damages allowed for past gratuitous care must be “valued by reference to commercial rates charged for its provision, regardless as to whether they were in fact provided gratuitously, by relatives or partners”, at 325.
- When s 45(1)(b)(ii) employs the expression “financial loss” it cannot be confining its ambit to special damages, that is past out-of-pocket expenses or past loss of wages. It must be a reference to that broader category of “pecuniary” loss contrasted with “non-pecuniary” loss. Lord Scarman in Pickett v British Rail Engineering Ltd  AC 136 at 167 – 168 observed:
“The recent development of the judicial practice of “itemising damages,” though as a matter of history closely linked with the need to differentiate between heads of damage for the purpose of calculating interest upon damages, has, my Lords, helped towards a juster assessment of the capital element in damages for personal injury. For it ensures that pecuniary loss and non-pecuniary loss will be assessed separately. … The assessment of damages for non-pecuniary loss is a very different matter from assessment of damages for pecuniary loss. There is no way of measuring in money pain, suffering, loss of amenities, loss of expectation of life. All that the court can do is make an award of fair compensation. Inevitably this means a flexible judicial tariff … .
But, when a judge is assessing damages for pecuniary loss, the principle of full compensation can properly be applied. … .
Though arithmetical precision is not always possible, though in estimating future pecuniary loss a judge must make certain assumptions (based upon the evidence) and certain adjustments, he is seeking to estimate a financial compensation for a financial loss.”
So, too, Luntz Assessment of Damages for Personal Injury and Death 4th ed. (2002) includes gratuitous assistance and services as part of the pecuniary needs of an injured person capable of measurement in money, at 297 and ff. Any other conclusion denies efficacy to the scheme of the Act whose goal is settlement before action. It is particularly so in light of the consequences of going incompletely prepared into the compulsory conference and making the mandatory final offer of settlement.
- It was not until 16 January 2002 that Dr Pentis’ report dated 9 November 2001 was sent to the insurer by the claimant’s solicitors. In light of his intimation that it was too early to say what the outcome might be for the claimant including the possibility of surgery on her shoulder it is surprising that the solicitors called, in the same letter, for a compulsory conference. One week later that the insurer requested information
“in order that we may consider the Heads of Damage … for example the care component and Special Damages … confirm that no claim is being made for Economic Loss”.
The only specific amount which had been notified to the insurer was the Health Insurance Commission claim of $45.90. The claimant had revealed nothing more about the quantum of her claim although damages for gratuitous care were likely from Dr Isles’ report dated 21 January 2002 which had been obtained by the insurer.
- There can be no complaint about the general nature of the request made. It would be readily understood by a legal practitioner. As Mason J noted in Griffiths v Kerkemeyer at p 189:
“The assessment of damages for personal injury by setting money sums on particular heads of damage and of resorting to actuarial calculations accords with past practice here and in the United Kingdom: see the Arthur Robinson Case (1968) 122 CLR at pp 667-668; General Motors-Holden Pty Ltd v Moulars (1964) 111 CLR 234 at pp 249-251; and Taylor v Bristol Omnibus Co. Ltd  1 WLR, at 1057.”
That there was to be a Griffiths v Kerkemeyer claim is borne out by the statement of claim filed after his Honour’s orders. The claimant’s solicitors gave no explanation as to why they did not provide the information sought. They signed a certificate of readiness, so must be presumed to have known the particulars.
- It was reasonable to make the request for information on 25 February 2002. That it could have done so a week earlier is of no consequence. His Honour could not have made the orders which he did had he taken into account the dates of receipt of the medical reports and the purpose of s 45.
- It follows therefore that the insurer’s application ought to have been allowed and the order dispensing with the compulsory conference not have been made.
- The report from Dr Van Der Walt dated 14 September 2001 was sent to the insurer under cover of letter dated 4 October. A request by the insurer for an offer of settlement or an indication of what further information was awaited was left unanswered by the claimant’s solicitors and instead a certificate of readiness was sent and 17 October nominated as the date for the compulsory conference.
- The insurer made an offer and foreshadowed an independent examination in the light of Dr Van Der Walt’s opinion as to the claimant’s percentage disability. This offer was rejected and the entitlement to an independent examination challenged by the claimant’s solicitors because it was too late. Eventually the examination took place after protestation and delay. The request for information pursuant to s 45 was not made until 12 March 2002. It could have been made much earlier after receipt of Dr Van Der Walt’s report in October 2001. But, in light of the decision to have the claimant independently examined after the offer of settlement had been refused it was not so unreasonable to wait until the new report had been obtained as to absolve the claimant from responding and the information requested was reasonable.
- The claimant ought to have provided the information. His Honour appears not to have taken into account sufficiently the scope and purpose of s 45 and its place in Part 4 of the Act and ought not to have dismissed the insurer’s application and dispensed with holding the compulsory conference.
- The report of Dr Van Der Walt, was forwarded to the insurer under cover of letter dated 15 October 2001. In answer to the claimant’s solicitors’ inquiry the insurer responded that at this stage it did not require an independent medical examination but looked forward to an offer of settlement. This did not occur and on 4 December some further documents were provided and 19 December 2001 nominated as the date of the compulsory conference. The insurer responded on 17 December with a request for information pursuant to s 45. No other information was available to the insurer from the claimant about the nature of her claim for damages. The request outlining full particulars of each head of damage which she intended to claim was reasonable.
- The insurer’s offer of settlement was rejected without a counter-offer being made. One is left with the distinct impression that the claimant’s solicitor was disinterested in pursuing informal settlement. There is nothing revealed on the material which was unreasonable about the timing of the request for information. It ought to have been provided by the claimant. His Honour seems to have been influenced by an erroneous view of the ambit of s 45 and gave undue weight to the claimant’s solicitors’ request for a compulsory conference without recognising that little was known of the detail of the damages claimed. The orders cannot stand.
- The applicant requires an extension of time to seek leave to appeal under s 118 of the District Court Act 1967. These three applications raise important matters relating to the construction of the Motor Accident Insurance Act 1994 and matters of practice which will arise between insurers and claimants and their solicitors. I would grant the extension of time and leave to appeal.
- It follows from what has been said that each appeal should be allowed.
- The applicant is clearly entitled to its costs of the application and appeal in each case, and no further submissions need be made with respect thereto.
- It was not to the obvious benefit of the respondents to pressure the insurer for a compulsory conference when their claims had not been adequately particularised. It seems unlikely that they instructed their solicitors to conduct their claims with the insurer in what appears from the correspondence to be an unnecessarily aggressive manner. The solicitors should lodge with the registrar within fourteen days submissions in writing showing cause why they ought not be ordered to pay the costs of the applications and appeals.
- At the conclusion of the hearing a stay of each of the proceedings was sought without opposition and orders to that effect made pending the outcome of the applications and the appeals.
- The orders I would make are:
(1)Grant an extension of time in which to seek leave to appeal in each application.
(2)Grant leave to appeal in each application.
(3)Allow each appeal.
(4)Adjourn the question of costs for further consideration.
- Published Case Name:
Gitsham & Ors v Suncorp Metway Insurance Ltd
- Shortened Case Name:
Gitsham v Suncorp Metway Insurance Limited
- Reported Citation:
 QCA 310
Davies JA, Williams JA, White J
23 Aug 2002
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|Appeal Determined|| 2 Qd R 251||23 Aug 2002||-|