Suncorp Metway Insurance Ltd v Snowdon
[2005] QDC 312
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- Suncorp Metway Insurance Ltd v Snowdon[2005] QDC 312
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Suncorp Metway Insurance Ltd v Snowdon[2005] QDC 312
Suncorp Metway Insurance Ltd v Snowdon[2005] QDC 312
[2005] QDC 312
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 3508 of 2005
SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966) | Applicant |
and |
|
KRISTY-LEE SNOWDON | Respondent |
BRISBANE
DATE 10/10/2005
ORDER
CATCHWORDS: | Motor Accident Insurance Act 1994 s 46A, s 50, s 51A - circumstances in which it was not "unreasonable" for the insurer to require a claimant to undergo examination by an occupational physician not made until shortly before a compulsory conference called by the claimant, 21 months after provision of the claimant's occupational therapist's report - insurer required to meet half costs of updating that report, and costs thrown away by abandonment of the conference (as the price of the Court's ordering a new conference on the insurer's application). |
HIS HONOUR: There are cross-applications before the Court under the Motor Accident Insurance Act 1994 which comes into play because of the respondent's being injured in a motor vehicle accident on the 10th of May 2002.
The applicant insurer seeks an order under section 46A of the Act which provides inter alia:
"1. This section applies if the insurer wants to obtain an expert report on the claimant's medical condition or prospects of rehabilitation but fails to obtain the claimant's agreement.
- The claimant must comply with the request by the insurer to undergo at the insurer's expense -
(a) a medical examination by a doctor to be selected by the claimant from a panel of at least three doctors nominated in the request; or
(b) an assessment of cognitive function or vocational capacity by an expert to be selected by the claimant from a panel of at least three experts with appropriate qualifications and experience nominated by the insurer in the request.
- However, a claimant is not obliged to under go an examination under this section if it is unreasonable or unnecessarily repetitious."
The applicant insurer desires to have the respondent examined by an occupational physician and has provided three names as required by the Act. Her response is that such - is that a requirement for her to undergo such an examination would be unreasonable.
The basis of her assertion is delay, no request for her to cooperate in this regard being made until Messrs Sparke Helmore, the applicant's solicitors, made one on the 24th of March 2005, exactly 21 months after 24th June 2003 when the report of an occupational therapist obtained by the respondent's solicitors was sent to the applicant.
It managed the file itself until about 17th of February 2005 when the firm advised they were acting. It seems they came into the matter at the stage when the claimant's solicitors were becoming more demanding in respect of the holding of a compulsory conference in early February 2005. Earlier overtures in that regard had been made throughout the latter half of 2004 from time to time.
Mr Charrington, appearing for the claimant, justifies the making of charges of unreasonableness on the basis of the 21 months delay and on the circumstance that the insurer's request was made on the eve of a compulsory conference at which had ultimately been called for 10 a.m. on the 29th of March 2005.
This complaint (which it is suggested caused costs to be wasted when the compulsory conference - to which the applicant wouldn't agree, didn't happen) is said to relate to but one instance of a pattern of behaviour of that kind by compulsory third party insurers.
Another feature relied on by Mr Charrington is that by the time any occupational physician's report is obtained, likely to be well into next year given that the only one of the panel members who could see the claimant this year is totally unacceptable to her, the occupational therapist's report obtained by the claimant will be two years or more out of date. The other panel members apparently are not offering an appointment until late February 2006.
The events of February this year included a statutory declaration from the claimant quantifying her claim as in excess of $660,000. Scrutiny of it suggests to me the claim is unjustifiably inflated. It is unsurprising that the Court has information that the various offers which have been transmitted between the parties are all within the range of this Court's jurisdiction.
It was necessary for the Court to have information along those lines to be satisfied that it had jurisdiction to entertain the application. It would have lacked that jurisdiction if the quantified claim indicated the Supreme Court as the appropriate venue.
It is made clear by Mr Charrington that no complaint is made by his side against the conduct of the applicant's solicitors. It has to be accepted that different minds may make different judgments about the necessity for steps such as the obtaining of additional medical reports. It may also be that the surprisingly high level of claims mentioned in the statutory declaration was sufficient to prompt second thoughts.
The plaintiff is a young woman, still only in her early twenties. Material shows that she was diagnosed as long ago as 1996 as suffering some intellectual impairment, which forecloses a good many occupations to her. She was training for a position in child care, which she says is now not open to her because of physical injuries and their consequences. She has, as I understand it, completed her studies, and is in receipt of a disability support pension. It cannot possibly be said, in my opinion, that now, clearly facing a claim that the complainant effectively cannot get any work at all - her chosen field is notoriously poorly renumerated - the insurer acts unreasonably in wanting the examination by the occupational physician.
The claimant's solicitor was careful to protect his client's position, by writing, on the 23rd of May 2003, to advise the insurer of the claimant's intention to attend on Dr Gillett, orthopaedic surgeon, for the purposes of a medico legal report on the 1st of June 2003, and on a named occupational therapist "on 17 June 2003, for an occupational therapy report." The letter concluded, "If it is your intention to have our client attend an independent medical examination in relation to either of the above appointments, please provide us with your panel of experts by return."
Dr Pincus was brought in as an orthopaedic expert. Nothing was done in relation to the occupational therapy aspect. Mr Tauchmann, the author of the letter, might perhaps be contemplating whether he ought not have taken a belt and braces approach by adding to his letter of 24th June 2003 transmitting the occupational therapy report a specific paragraph to the effect that the insurer, in light of the contents of the report, ought to consider whether or not it wished to obtain its own report.
Being of the view that the interests of a proper examination of the issues are served by the applicant's application succeeding, I am also of the view that the price of that ought to be the applicant's agreement to contributing to the costs of the claimant's report being updated.
Mr Green has persuaded me that updating is something the claimant may have been well advised to obtain, in any event. The delay by his client has, I think, made it more important - the claimant would not want to be in the position of the Court, or any other Tribunal, favouring the occupational physician's report on the basis of its being so much more current.
In those circumstances, I have amended my intention to require the full costs of updating to be borne as part of the price, substituting a requirement in terms of half of the cost of it.
The cross application, which the claimant filed, seeks dispensing with the requirement to hold the compulsory conference under section 51A of the Motor Accident Insurance Act 1994.
The claimant's view is that the parties will not be able to resolve the matter at conference. If the idea behind the tactics of CTP insurers is to browbeat claimants into submission, as Mr Charrington suggested, that effect is apparently not coming about in relation to this claim. The insurer, having declined to participate in a compulsory conference in March this year on the basis that it had insufficient information without the occupational physician's report, is now keen to have a compulsory conference. Material placed before the Court indicates that the parties' offers are less than 10 per cent apart, leading me to think that the requirement of the compulsory conference ought not be dispensed with.
I do think, however, that there ought to be a condition whereby the claimant ought to be protected from wasting costs in the event that she has actually incurred costs in relation to her abortive call in March this year for a conference to be at the chambers of her counsel, Mr Lynch. He has apparently rendered no fee to this point, so perhaps the Court became too excited about this aspect.
The orders to be made are pursuant to section 50 of the Act and will be as per the initialled draft, the terms of which I will read out to assist the parties to decipher the considerably amended draft:
Order 1:
Pursuant to section 57(2)(b) of the Motor Accident Insurance Act 1994 (the Act) the respondent be given leave to commence proceedings within 60 days of one of the following events occurring:
1.1 a conference being held pursuant to sections 51A and 51B of the Act and mandatory final offers being exchanged in accordance with section 51C of the Act; or
1.2 the date of agreement if the parties dispense with the compulsory conference by agreement pursuant to section 51A(4) of the Act; or
1.3 an order by the Court pursuant to section 51A(5)(b) of the Act dispensing with the compulsory conference.
Order 2:
Pursuant to section 46A of the Act the respondent comply with the applicant's request to undergo a medical examination by an occupational physician from the following panel:
- Dr Steven Goode
- Dr Nicholas Burke
- Dr Keith Adam
on the condition that the applicant has signified its agreement to pay half the reasonable costs of the respondent obtaining an update of her occupational therapist's report of June 2003.
Order 3:
The parties participate in a compulsory conference pursuant to section 51A of the Act at a time, date and venue to be agreed between the parties but within 60 days of the applicant's receipt of the report of the occupational physician nominated by the respondent from the above panel on the condition that the applicant has signified its agreement to pay the lesser of the costs of such compulsory conference and the costs, if any, actually incurred by the respondent and thrown away by the failure of the compulsory conference the respondent called for on 29th of March 2005.
Order 4:
Each party have liberty to apply by giving three business days' notice in writing to the other party.
Order 5:
The applicant pay the respondent's costs of its application and/or the respondent's cross-application filed the 4th of October 2005.
...
Order 6:
All costs to be assessed on the standard basis, if not agreed.