Luo v Hoffman[2017] QDC 272

DISTRICT COURT OF QUEENSLAND

1. [1]
   Ting Tin Luo (‘Luo’) and Guang Xiang Wu (‘Wu’) are wife and husband and say they were injured in a motor vehicle accident on 22 August 2013. The usual limitation periods expired on 22 August 2016. Proceedings were not commenced by then. The second respondent agreed to extend the limitation periods in relation to both claims to 21 November 2016. Proceedings had still not been commenced by this date. The second respondent agreed to a further extension of the limitation period in relation to the Luo claim and also arguably the Wu claim, until 24 February 2017. No proceedings in relation to either claim were commenced by that date.

2. [2]
   Luo and Wu cannot now commence proceedings because they are yet to comply with some of the requirements of the Motor Accident Insurance Act 1994 (‘the Act’). Notably, there is yet to be conferences between the parties as envisaged by s 51A of the Act. Certificates of readiness have not been signed by each party’s lawyer in accordance with s 51B(5) of the Act. There has been no exchange of mandatory final offers as required by s 51C of the Act.

3. [3]
   The court has the power under s 57(2)(b) of the Act to extend the limitation periods so as to allow the proceedings to be commenced, even though the limitation periods have expired.

4. [4]
   The second respondent opposes the applications on three primary grounds, namely:

1. (i)
   The applicants have not made conscientious efforts to comply with their obligations under ss 37A(3), 45 and 51A of the Act.

2. (ii)
   The applicants chose to delay the progress of their claims and not to undertake any medico-legal examinations, without explanation, until some two and a half years after the accident; and

3. (iii)
   The second respondent may now suffer prejudice in defending the claim if leave is granted.

Factual background

5. [5]
   Luo and Wu arrived in Australia from China on 14 February 2013. They are 27 years and 26 years of age respectively. The accident occurred on 22 August 2013. The applicants first instructed their lawyers on 15 October 2013. Luo’s notice of claim was given to the second respondent on 4 November 2013, along with a medical certificate for a whiplash injury, bilateral shoulder injuries, a low back injury and PTSD. The second respondent admitted liability for the accident in relation to the Luo claim on 11 November 2013. Wu’s notice of claim was given to the second respondent on 11 November 2013, along with a medical certificate for discomfort in his left neck and lower back. The second respondent admitted liability for the accident in relation to the Wu claim on 5 February 2014.

6. [6]
   By letters dated 26 March 2014, Luo provided a statutory declaration explaining that she had only arrived in Australia some six months prior to the accident. The statutory declaration also included details of her treatment providers and the studies she was undertaking. Enclosed with this correspondence were copies of her visa and passport. It is noted that the second respondent made repeated requests for this information that had already been provided, in correspondence dated 4 April 2014, 13 May 2014 and 16 June 2014.

7. [7]
   At the instigation of the second respondent, Luo and Wu underwent occupational therapy rehabilitation assessments by Ms Karen Talbot on 11 April 2014. Interpreters were present for both assessments. The report in relation to Luo suggests she told Ms Talbot that she had developed a serious sleeping problem commencing the night after the accident, although this had improved. No physical assessment was undertaken as Luo apparently did not report any ongoing physical symptoms. The report in relation to Wu suggests he told Ms Talbot that following the accident he experienced pain in the right side of his neck and pain all over his body. It also suggests Wu indicated that while he had made a reasonable recovery, he had a dull pain in his neck if he adopted a static posture for too long.

8. [8]
   Between February and June 2015, offers of settlement were made by the second respondent for both claims and these were rejected. In mid-2015, after repeated requests had been made by the second respondent, Wu provided a statutory declaration. This confirmed that Wu had only been treated by one doctor. It also included details of his employment and his private health fund provider. He also provided the second respondent with copies of his passport and visa.

9. [9]
   There was an eight month period of inactivity between mid-2015 and 10 February 2016. It was then that the applicants’ solicitors were informed that the claims were being managed by a new claims manager, Ms Crawley. During a telephone discussion on 10 February 2016, Ms Crawley was told that Luo and Wu were being examined by Dr Peter Conrad later that month. Ms Crawley advised that she would also be arranging for Luo and Wu to undergo medico-legal assessments. There was a discussion regarding the holding of a compulsory conference and the applicants’ solicitors indicated that instructions would need to be obtained from Luo and Wu in this regard.

10. [10]
    Dr Conrad examined Luo and Wu on 23 February 2016. Luo appears to have told Dr Conrad that immediately following the accident, she felt pain in her neck, shoulders and back and had ongoing pain in her neck and both shoulders. Dr Conrad diagnosed a whiplash injury of Luo’s neck with pain radiating to her shoulders and a back injury. Wu seems to have informed Dr Conrad that immediately following the accident, he felt pain in his neck and back. Dr Conrad diagnosed a whiplash injury of Wu’s neck and an injury to his thoracolumbar spine. Dr Conrad recommended that both applicants undergo MRI investigations on account of the chronicity of their symptoms.

11. [11]
    Over the next two or so weeks, Luo and Wu’s solicitors left three messages for Ms Crawley in an attempt to organise a compulsory conference. Ms Crawley did not telephone back until 2 June 2016, at which time she advised that the second respondent wanted to have both Luo and Wu independently medically examined prior to convening the compulsory conference.

12. [12]
    The MRI imaging referred to above was undertaken and reports of this imaging were provided to the second respondent on 15 June 2016. Arrangements were made for Luo and Wu to be independently examined by Dr Michael Ryan, orthopaedic surgeon, on 1 July 2016.

13. [13]
    Given that the significant date of 22 August 2016 was fast approaching, on 13 July 2016 the applicants’ solicitors telephoned Ms Crawley to request an urgent compulsory conference. It was at this time that Ms Crawley advised that Wu had not attended the scheduled appointment with Dr Ryan and that the second respondent would not participate in a compulsory conference until such an assessment had taken place. It was against this background that the parties agreed to extend the limitation period in relation to both claims to 21 November 2016.

14. [14]
    The applicants’ solicitors were provided with a copy of Dr Ryan’s report in relation to his examination of Luo on 3 August 2016, and his report in relation to his examination of Wu, on 15 August 2016. The report in relation to Luo indicates that she told Dr Ryan that she had neck pain every few days with occasional low back pain. The report in relation to Wu suggests that Wu indicated to Dr Ryan that he had no ongoing symptoms.

15. [15]
    A call was made from the applicants’ solicitors to Ms Crawley on 15 August 2016, in a further attempt to organise an informal settlement conference. Ms Crawley requested that she be sent some proposed dates and that she would review the files. Some two and a half weeks later, the applicants’ solicitors provided to Ms Crawley supplementary reports of Dr Conrad, which addressed the significance of the MRI imaging referred to above. By agreement, the conference was scheduled for 27 September 2016. However, on 20 September 2016, Ms Crawley indicated that this date was no longer suitable for the second respondent and it was agreed that it would be rescheduled for 19 October 2016.

16. [16]
    In the week or so prior to the conference, there were discussions between the applicants’ solicitors and the second respondent about delaying the conference and again extending the limitation period until 21 February 2017 to allow Dr Ryan to review the MRI reports, and to allow Dr Conrad to provide a further supplementary report in the event that Dr Ryan provided supplementary reports addressing the MRI reports.

17. [17]
    On 17 October 2016, the applicants’ solicitors forwarded an email to the claims manager for the second respondent confirming a telephone discussion earlier that day, that by consent there would be a further extension with regard to the limitation period until 21 February 2017 in relation to both claims. By reason of what appears to have been an oversight on both sides, this further extension was formalised in writing in relation to Luo but not Wu.

18. [18]
    The second respondent provided Dr Ryan’s supplementary report in relation to Luo on 15 November 2016. The applicants’ solicitor went on holiday on 18 November 2016 for some three weeks. There was inactivity again between mid-December 2016 and early February 2017. This was largely attributed to the Christmas vacation and the holidays taken by the applicants’ solicitor and counsel. The applicants’ solicitor returned to work on 12 January 2017. She telephoned the applicants’ counsel and was advised that he would be on leave until February 2017. She deposes to the fact that she was still waiting for the second respondent to disclose Dr Ryan’s supplementary report of Wu.

19. [19]
    The applicants’ solicitor unsuccessfully attempted to speak with Ms Crawley on 3 and 13 February 2017. It was not until her discussion with Ms Crawley on 15 February 2017 that she learnt that there had been no correspondence between the parties formally extending the limitation period to 21 February 2017 in the Wu matter. When the applicants’ solicitor attempted to telephone Ms Crawley the following day, she discovered that Ms Crawley had in fact gone on leave until 22 February 2017. She was told that the team leader would return her call, which did not occur. She again telephoned the second respondent on 20 February 2017, at which time she was again told that the team leader would return her call. The applicants’ solicitor advised that she would be absent from the office after 2.30pm. The team leader returned her call at 2.56pm, after she had left the office. It was on the following day that she was advised the second respondent considered that both claims were statute barred and the files in relation to them were being closed.

20. [20]
    Statements of claim in relation to both matters were immediately filed in the District Court. These pleadings were subsequently amended and provided to the second respondent on 18 April 2017. In mid-May 2017, counsel for the applicants advised the applicants’ solicitors to file originating applications. It was not until 22 August 2017 that the applicants’ solicitors sent the applications and affidavit material to their town agents in Brisbane. On 1 September 2017, the second respondent was advised of the applications and the hearing date.

Relevant law

21. [21]
    s 57(2) of the Motor Accident Insurance Act 1994 (Qld), relevantly provides:

“(1)If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.

(2)However, the proceeding may only be brought after the end of the period of limitation if it is brought within—

1. (a)
   6 months after the notice is given …; or

2. (b)
   a longer period allowed by the court.”

22. [22]
    The principles applicable to the exercise of the discretion on the question of leave to commence proceedings out of time, have been well established. In Paterson v Leigh & Anor^[1], McMeekin J summarised the applicable principles and said:

“The principles that seem to me to emerge from these cases are:

1. (a)
   The discretion to be exercised in respect of an application pursuant to [s 57(2)(b)] of the Act is unfettered;

2. (b)
   The onus lies on the applicant to show good reason why the discretion ought to be exercised in his or her favour;

3. (c)
   Where an applicant is able to show that the delay which has occurred was occasioned by a ‘conscientious effort to comply’ with the Act then that would normally be good reason for the favourable exercise of the discretion but is not a ‘dominating consideration’. Conversely, claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them may have difficulty obtaining a favourable exercise of the discretion;

(d) Where an applicant is not able to show that the delay was occasioned by ‘a conscientious effort to comply’ with the Act that is not fatal to the application;

5. (e)
   Any delay on the part of a claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion;

6. (f)
   The length of any delay is important and possible prejudice to the defendant is relevant;

7. (g)
   Depriving a defendant of the complete defence afforded by the statutory time bar is an important matter;

(h)The interests of justice are of course the overriding consideration and in that regard the question of whether a fair trial of the proceedings is unlikely is an important consideration;

1. (i)
   The giving of a notice of claim before the expiry of the limitation period and compliance by a claimant with the provisions of the Act that it provide any information sought by the insurer are both relevant factors.”

23. [23]
    This summary of these principles has been approved by the Court of Appeal in Blundstone v Johnson^[2] and Jonathan v Mangera & Anor^[3].

Delay

24. [24]
    The affidavits and chronology prepared on behalf of the applicants show that slow but reasonably continuous steps were taken by their solicitors and that their claims did not go to sleep. Apart from some intermittent periods of inactivity (the longest of which was between June 2015 and February 2016), there has been ongoing communications between the parties, together with exchanges of information.

25. [25]
    The Act requires that written notice of the motor vehicle accident be given to the insurer within one month of first consulting a lawyer about the possibility of making a claim. This consultation occurred on 14 August 2013. The notices were given under cover of letters to the second respondent dated 4 November 2013 and 11 November 2013 respectively. These notices were accompanied by medical certificates detailing the injuries reportedly suffered by both applicants. Liability was admitted shortly thereafter in respect of both claims. This was some two and a half years prior to the expiration of the limitation periods.

26. [26]
    After the admissions of liability, exchanges between the parties continued relating to the provision of information by the applicants on the issue of quantum. Although this may have been provided in a somewhat piecemeal way, progress was made.

27. [27]
    The second respondent made repeated requests for some information that had already been provided. For example, by letters dated 26 March 2014, Luo provided a statutory declaration explaining that she had only arrived in Australia in February 2013, some six months prior to the accident. The statutory declaration also included details of her treatment providers and the studies she was undertaking. Enclosed with this correspondence were copies of her visa and passport. Subsequent to this time, in correspondence dated 4 April 2014, 13 May 2014 and 16 June 2014, the second respondent made repeated requests for the applicant’s individual tax returns for the three years prior to the subject accident, having been told that the applicant had not been in Australia for most of this time. In this further correspondence, it also repeatedly requested details of the course the applicant was studying, her treatment providers and copies of her passport and visas, all of which had previously been provided.

28. [28]
    It is submitted by the second respondent that the reason a compulsory conference did not occur within the three year limitation period, or twice extended limitation period, is because of the election by the applicants to delay, rather than pursue the claim.

29. [29]
    It is true that the first mention of independent medical examinations of the applicants was in a conversation between the applicants’ solicitor and the second respondent’s claims manager on 10 February 2016. These examinations took place on 23 February 2016 and the reports were disclosed to the second respondent on 3 March 2016, some five months prior to the expiration of the limitation period. It would of course have been ideal if these examinations had occurred earlier.

30. [30]
    However, there is nothing in the Act to suggest that the obligation to obtain necessary medical information lies only on the applicants. The legislation also imposes a positive obligation on the second respondent to gather information and progress the claims. In Gitsham & Ors v Suncorp Metway Insurance Ltd, White J (as she then was) observed that ‘an insurer is not permitted ... to stand by and merely be reactive to a claim’.^[4]  To the contrary, pursuant to ss 45 and 46A of the Act, the second respondent is armed with the power to “force the pace”^[5] by requiring claimants to co-operate with the insurer and to undergo medical examinations.^[6]  The second respondent did not request medical examinations until 2 June 2016, and the report in relation to the medical examination of Wu was not provided to the applicants’ solicitors until a week prior to the expiration of the limitation period.

31. [31]
    It must be said that the second respondent’s late requirement for independent medical examination was a material cause of the needs of the applicants for the initial extension. Once the second respondent exercised this entitlement for these examinations, it meant that it was impossible to hold the compulsory conference under s 51A, and to comply with the 14 day moratorium of proceedings for consideration of the mandatory final offers under s 51C(6) of the Act prior to the expiry of the limitation period. In these circumstances, the second respondent must bear at least some responsibility for the delay prior to the expiry of the limitation period.

32. [32]
    As 2016 progressed, it is evident that the applicants’ solicitors were mindful of the approaching expiration of the limitation period. So much is clear from the telephone discussion between the applicants’ solicitor and the second respondent’s claim manager on 13 July 2016.

33. [33]
    In all the circumstances, I am satisfied that the explanation for the delay prior to the expiration of the limitation period was occasioned largely by a requirement to comply with the Act and also to some extent by the second respondent’s own failure to progress the claims.

34. [34]
    The second respondents agreed not to rely on the limitation period on the condition that the proceedings were commenced by 21 November 2016. Some progress was made. It is common ground that the second respondent had the supplementary reports of Dr Conrad addressing the MRI findings by early September 2016. Attempts were made to schedule conferences and the schedule date was postponed at the request of the second respondent. However, the conferences did not eventuate as both parties considered they required further medical reports. This meant that neither party were in a position to comply with their obligations in accordance with Division 5A of the Act resulting in the applicants’ solicitors again requesting an extension of the limitation period in both matters. The agreed extended limitation period in relation to Luo expired on 21 February 2017. It seems to have been agreed between the parties during a telephone discussion on 17 October 2016 that the agreement in relation to the extension would also apply in relation to the Wu claim, although this was never formalised in writing.

35. [35]
    After this second extension was agreed, the second respondent disclosed the supplementary report of Dr Ryan in relation to Luo. It still had not disclosed the supplementary report of Dr Ryan’s in relation to Wu by 21 February 2017, when the applicants’ solicitor was informed that the second respondent had closed the files as the claims were statute barred. The applicants’ solicitors had attempted to progress the claims during the three month intervening period. These attempts were made difficult on account of the Christmas holiday period and the fact that the second respondent’s claims manager then went on leave.

36. [36]
    The abovementioned history demonstrates that neither side has proceeded with great haste. There are certainly occasions when the applicants’ solicitors could perhaps have been more diligent. However, in my view, it is not a case where the applicants or their solicitors have let the matter lie dormant or where there have been persistent failures to make any reasonable attempt to comply with the requirements of the Act.

37. [37]
    It is relevant that the applicants gave early notice. The applicants have co-operated with the insurer, making disclosure, subjecting themselves to examinations by orthopaedic surgeons and giving instructions regarding the second respondent’s offers to settle.

38. [38]
    Ms Nichols who appeared on behalf of the second respondent, was critical of the applicants for not having provided affidavits. However, I do not consider the absence of evidence from the applicants to be fatal in this case. This is because it would seem to me that their solicitor, who had the conduct of these matters, was better placed than the applicants to detail for the court the steps that had been taken. I am not satisfied that the applicants could have provided affidavits of any real assistance to the court. Their ongoing symptoms and injuries are addressed in the reports of the orthopaedic surgeons.

Prejudice

39. [39]
    There is no specific prejudice to the second respondent alleged by the delay. No evidence was led that a fair trial of the merits cannot be had. It is of great significance that the second respondent admitted liability at an early stage and has had the benefit of early complying notices of claim. Prior to the expiration of the limitation period, it also had statutory declarations from the applicants and medical reports, including ones from its chosen orthopaedic surgeon, Dr Ryan.

40. [40]
    The thrust of Ms Nichols submissions were to the effect that the second respondent may now have to face significantly larger damages claims and in addition, has through intervening events, limited opportunities of investigating them. I am unpersuaded by this argument in these particular cases. I note that the ongoing symptoms reported to Ms Talbot, the second respondent’s rehabilitation occupational therapist, are at odds with the diagnoses made by the treating specialists in the medical certificates provided to the second respondent with the notices of claim. However, the contents of these certificates are not inconsistent with the symptoms reported to and the diagnoses made by Dr Conrad, which reports were provided to the second respondent prior to the expiration of the limitation period.

41. [41]
    The delay of more than four years means that the second respondent will probably suffer general prejudice at any future trial, as it may be difficult to establish that the applicants’ present injuries were caused by something other than the accident. However, this issue of general prejudice will also apply to the applicants. Therefore, while the risk may be real, it is not so significant as to require the applications to be refused. It may well of course be that the passage of time will clarify some quantum related issues.

42. [42]
    Of course, to allow the applications would be to deprive the respondents of a complete defence to the applicants’ claims which is never an insignificant factor. By contrast, a refusal of the applications would close Luo and Wu out of their claims against the respondents in circumstances where liability has been admitted and only quantum remains in issue. I am satisfied that the granting of this application is not likely to result in a trial which is unfair to the respondents.

43. [43]
    It seems likely that a fair trial can still be held, despite the lapse of time.

Legislative framework

44. [44]
    A further issue for determination is whether the statutory context of s 57(2)(b) requires the refusal of the applications. The discretionary powers conferred by s 57(2)(b) are wide and unfettered but must be exercised in the context in which the section operates. The objects of the Act are set out in s 3 and some of them are relevant to interpreting s 57(2)(b). While the refusal of the applications might encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents, it would do nothing for example, to promote and encourage the rehabilitation of claimants who sustain personal injury because of motor vehicle accidents. I am far from persuaded that the parliamentary intent evident from the Act necessitates the refusal of these applications because of the delays which have occurred with these claims.

Conclusion

45. [45]
    Having weighed up the relevant competing factors and the overriding consideration of the interests of justice, I consider these to be proper cases to exercise the discretion in favour of granting the applications to extend the time to commence the proceedings.

46. [46]
    The factors which tip the balance in favour of exercising my discretion in this way are the length of the delay, the reason for the delay prior to the expiration of the limitation period, the reason for the subsequent delay and the statutory context of s 57(2)(b). Further, the second respondent has admitted its liability to compensate the applicants for their injuries and this is a competing consideration entitled to substantial weight.^[7]  In addition, the applicants have been examined by an expert orthopaedic surgeon who seems to support their claims. Finally, the respondents will suffer no specific or obvious prejudice and it seems entirely possible to have a fair trial of the remaining quantum issues between the parties.

47. [47]
    Given my conclusions above, I consider it appropriate to make an order that there be no order as to costs. If an alternate order as to costs is sought, then I will allow the parties until 4.00pm on Tuesday 21 November 2017, to provide no more than a two page written outline to me through my associate. If necessary, I will relist the matter for hearing at a date to be fixed.

48. [48]
    I will direct the parties to confer with a view to providing a draft of agreed directions as to the further conduct of the proceedings by 4.00pm on Tuesday 21 November 2017.