White v Australian Associated Motor Insurers Limited (No. 1)
[2009] QSC 141
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- Unreported Judgment
- White v Australian Associated Motor Insurers Limited (No. 1)[2009] QSC 141
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White v Australian Associated Motor Insurers Limited (No. 1)[2009] QSC 141
White v Australian Associated Motor Insurers Limited (No. 1)[2009] QSC 141
SUPREME COURT OF QUEENSLAND
CITATION: | White v Australian Associated Motor Insurers Limited & Anor (No. 1) [2009] QSC 141 |
PARTIES: | DARRYL JAMES WHITE |
FILE NO: | 3478/09 |
DIVISION: | Trial Division |
PROCEEDING: | Originating application |
DELIVERED ON: | 28 May 2009 |
DELIVERED AT: | Supreme Court, Brisbane |
HEARING DATE: | 5 May 2009 |
JUDGE: | Wilson J |
ORDER: |
|
CATCHWORDS: | INSURANCE – THIRD PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – GENERALLY – QUEENSLAND – where applicant police officer claims to have sustained psychiatric injury in consequence of his attendance at and investigation of two motor vehicle accidents – where applicant wishes to commence proceedings for damages for negligence against the drivers who allegedly caused the accidents – where applicant purported to give first and second respondents, who are insurers of the drivers, notice of his claims pursuant to s 37 of the Motor Accident Insurance Act 1994 (Qld) – where applicant failed to give such notice within 9 months after the first appearance of symptoms of the injury – where applicant submits he gave a reasonable excuse for the delay – where applicant seeks a declaration that his notice of accident claim form complies with the Act; or a declaration that pursuant to s 39(5)(c)(i) he has remedied any non-compliance; or an order pursuant to s 39(5)(c)(ii) authorising him to proceed further with claim despite any non-compliance – whether issues are sufficiently in dispute to decline declaratory relief sought – whether applicant should be authorised to proceed further with claim despite any non-compliance Limitation of Actions Act 1974 (Qld), s 11 Motor Accident Insurance Act 1994 (Qld), ss 37, 39 General Credits (Finance) Pty Ltd v Grimm [1978] Qd R 449, cited Piper v Nominal Defendant [2004] 2 Qd R 85; [2003] QCA 557, cited |
COUNSEL: | M Grant-Taylor SC for the applicant DB Fraser QC for the first respondent RE Miller (solicitor) for the second respondent |
SOLICITORS: | Schultz Toomey O'Brien for the applicant Dillons Solicitors for the first respondent Quinlan Miller & Treston for the second respondent |
- Wilson J: The applicant, a serving police officer, claims to have sustained psychiatric injury in consequence of his attendance at and investigation of two motor vehicle accidents, which occurred on 6 January 2006 and 17 August 2007. He wishes to commence proceedings for damages for negligence against the drivers whose negligence allegedly caused the accidents. On 16 January 2009 he purported to give the first and second respondents, who are the insurers of those drivers, notice of his claims pursuant to s 37 of the Motor Accident Insurance Act 1994 (Qld) ("the Act"). Because they asserted that he had not fulfilled his obligations under s 37, he brought this application.
- The issues raised on the application between the plaintiff and the second respondent (whose insured was involved in the second accident) were resolved between them, and at their request a declaration that the applicant’s notice of accident claim form now complies with the Act and the Regulation under it was made.
- The applicant seeks the following relief against the first respondent (whose insured was involved in the first accident) –
- a declaration that his notice of accident claim form complies with the Act and the Regulation; or
- a declaration, pursuant to s 39(5)(c)(i) of the Act, that he has remedied any noncompliance; or
- an order, pursuant to s 39(5)(c)(ii) of the Act, authorising him to proceed further with his claim despite any noncompliance.
Section 37
- By s 37(2) and (3) of the Act -
"(2) The notice must be given—
(a) if it is to be given to the Nominal Defendant because the motor vehicle can not be identified—within 3 months after the motor vehicle accident; or
(b) in any other case—within the period ending on the earlier of the following dates—
(i)9 months after the motor vehicle accident or, if symptoms of the injury are not immediately apparent, the first appearance of symptoms of the injury;
(ii)1 month after the claimant first consults a lawyer about the possibility of making a claim.
(3) If notice of a motor vehicle accident claim is not given within the time fixed by this section, the obligation to give the notice continues and a reasonable excuse for the delay must be given in the notice or by separate notice to the insurer but, if a motor vehicle can not be identified and the notice is not given to the Nominal Defendant within 9 months after the motor vehicle accident, the claim against the Nominal Defendant is barred."
Section 39
- By s 39(5)(c) and (6) –
"(5)A claimant’s failure to give notice of a motor vehicle accident claim as required under this division prevents the claimant from proceeding further with the claim unless—
(c) the court, on application by the claimant—
(i) declares that the claimant has remedied the noncompliance; or
(ii) authorises further proceedings based on the claim despite the noncompliance.
(6)An order of the court under subsection (5)(c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to an insurer from the claimant’s failure to comply with requirements of this division.
- There are two periods of delay which must be explained –
- the initial period: if the symptoms were immediately apparent, the period of nine months after the accident, or if they were not immediately apparent, the period of nine months from their first appearance; and
- delay thereafter.
Delay
- The applicant did not consult a lawyer about the possibility of making a claim until 6 January 2009. Ten days later he submitted a notice of accident claim form to the first respondent. A five page statement was attached to it by way of explanation for the delay. In that statement he said that the first time he recalled having symptoms of any stress related or psychological condition was in "late 2007", and that he consulted a general practitioner, Dr June Canavan, on 6 August 2007 (before the second accident). He said that he did not realize he was "suffering from symptoms that were attributable to these car accidents" until he consulted Dr Petros Markou, a psychiatrist, in 2008. In fact he had three consultations with Dr Markou that year - on 14 May, 20 May and 27 June 2008.
- When the applicant submitted his notice of accident claim form, the necessary medical certificate had not been completed. On 5 February 2009 he saw Dr Markou again, and Dr Markou completed the form the next day. Under the heading "Medical Diagnosis or Description of Injury" he wrote –
"psychiatric injury secondary to witnessing accident"
and under the heading "Clinical Findings" he wrote –
"anxiety, hypervigilance, nightmares, avoidance".
Submissions
- Senior counsel for the applicant conceded that his client had failed to give a notice of accident claim form within 9 months after the first appearance of symptoms of the injury, but submitted that he had given a reasonable excuse for the delay.
- Senior counsel for the first respondent submitted that on the evidence before the Court there were two critical matters of fact which should not be determined in the applicant’s favour - when his symptoms first appeared and when he first realized they were attributable to the accident. He submitted that there was evidence that the symptoms first appeared immediately after the accident in January 2006. He also submitted that the Court should infer that the applicant did not tell Dr Markou about the accidents until the consultation in February 2009.
- The applicant relied on an affidavit sworn by his solicitor to which relevant documents were exhibited. The first respondent relied on affidavits sworn by Dr Canavan, Dr Markou, Dr Philip Bird (a psychiatrist who examined the applicant at the request of WorkCover on 3 February 2009), and its solicitor.
- Senior counsel for the first respondent drew attention to the applicant’s not having sworn an affidavit in support of his application, so avoiding exposure to the risks of cross-examination. He submitted that in consequence of the applicant’s failure to do so, any inferences available to be drawn against him should be drawn against him.[1] Senior counsel for the applicant submitted that the first respondent was agitating matters which should properly be determined at trial rather than on this application.
The evidence
- The applicant was born on 7 August 1959. He is a married man with one young son, who was conceived only after he and his wife had undergone some years of IVF treatment.
- As a serving police officer over many years, the applicant was exposed to various stressors, including attendance at and investigation of traumatic events and internal conflicts and tensions within the police force.
- On 6 January 2006 he attended the scene of the accident the subject of the claim against the first respondent. It was on the Bruce Highway at Beerburrum. A young teenage boy had been killed when his father had lost control of the car in which they had been travelling and the car had hit a tree. The boy had died as a result of head and internal injuries.
- In about January 2007 the applicant consulted Dr Canavan, who has particular experience as a sports physician, about a problem with his left knee. She reviewed him on several occasions before an orthopaedic surgeon performed surgery on his knee in April that year.
- Some weeks after the applicant returned to work, a meeting of APEC was held at Coolum on the Sunshine Coast. The applicant was rostered to perform duty for 112 hours in a nine day period between 27 July 2007 and 4 August 2007; in fact he worked about 120 hours in that period due to operational requirements. He was then directed to return to work despite having previously been told he would have a week off after the APEC meeting. He consulted Dr Canavan on 6 August 2007 about being run down and stressed. In the statement he gave the first respondent he said -
"That was the first time that I recall feeling symptoms of any stress related or psychological condition."
- He did not take time off work, although on 9 August 2007 he made an application to WorkCover for medical expenses. In that application he said he had not previously suffered from any similar injuries or conditions. The application was supported by a medical certificate from Dr Canavan, whose diagnosis was work-related anxiety.
- On 17 August 2007 the applicant attended the scene of the accident the subject of his claim against the second respondent. Two young males had been killed in horrific circumstances.
- In the statement he gave the first respondent the applicant described the first accident and then said -
"Only about 12 months or so later there was another double fatality at the Bruce Highway which once again involved young males. I couldn’t help but think about my own son and his possible mortality. I kept thinking that this could have been my son who had died."
It is not clear whether he was referring to having those thoughts after the first accident or the second. He then described the second accident and, said –
"It was an horrific scene and the whole time that I was there I couldn’t help but think of my own young son. I have not been able to forget about it and the horrific scene that I was exposed to."
- The applicant consulted Dr Canavan in September and October 2007. Dr Canavan recorded in her clinical notes -
Sep 2007 |
P P
Still finding it difficult to manage requested duties. Normal duties 40-50 hr/wk Now asked to inspect/assess specific locations over next 10 weeks, taking 1-4 hours each in addition to normal duties. Has requested legal advice |
P WC certificate completed to cover previous visit & enable ongoing surveillance of anxiety symptoms WC 6.8-6.11.07 Claim 507CD501522 |
Oct 2007 |
Flu-like illness 1/12 ago – recurred last week dizziness & nausea. Off work 6 ½ days but no relief worker Having difficulty reducing work hours – tried to get advice from Industrial Section Police Force unsuccessfully. Concerned about returning to work 8.10.07 because of backlog of work. |
* Recurrent viral illness: July Aug, September
P Discussed re referral to Organisational Psychologist Obtain path results. |
- WorkCover met the applicant’s medical expenses between 6 August and 29 September 2007 and paid him compensation for total incapacity between 27 September and 5 October 2007.
Initial consultations with Dr Markou
- In early 2008 the applicant took some recreational leave. When he returned to work, he was still suffering some anxiety. He spoke with Janine Hoffman, the regional Injury Management Co-ordinator for the Queensland Police Service and at her suggestion availed himself of three visits to a psychiatrist (Dr Markou) at the expense of his employer. Those were the consultations on 14 May, 20 May and 27 June 2008 to which I have already referred.
- In his statement the applicant said -
"When I saw Dr Markou I told him about all of the various stressors that I was having and I told him about two in particular which happened in recent years. They both related to motor vehicle accidents where I had to attend the scene and at which I was the District Duty Inspector.
.....
...I did not realise that I was suffering from symptoms that were attributable to these car accidents until I saw Dr Markou in 2008."
- In his clinical notes of the consultation on 14 May 2008 Dr Markou recorded -
"Getting older, not as resilient
In police 27 years
Used to be a detective and saw a lot of brutal things
Was in Brisbane; promoted to Inspector
Murders, bad accidents, involving children, sexual abuse of children
Never worried him in past
work place issues last 12-18 months: now these incidents have an impact on him
management has eroded his confidence
2001 : in Brisbane, in charge of South Brisbane JAB
Asked to investigate 2 six (sic) workers murders
•both from same brothel
Was brought back to investigate Second one
No one replaced him while he was doing this job; he had to cover both
•a big workload - it was stressful; not sleeping well
Son was born and was able to have a break
promoted in 2004 and moved to Sunshine Coast
Since being here: was in charge of Woolworths Maleny issues; also still had to do his inspector job
Had a huge workload for an extra 9 months to June 2007
December 2006: went on holidays for 4 weeks: no one did his work while away
•was going to make a grievance; his boss was a liar
Removal costs weren’t reimbursed; they didn’t provide grounds
Management were being very hostile;
Put in a formal grievance
in Oct 2007; met with grievance officer
went to a mediation session: gave him the $15,000 in the end
Got the money in Dec 2007
was also at APEC summit at Coolum
•on day 8, told he couldn’t have his 6 days off
He went in to confront bosses, and resolve it
Asst commissioner Graham Rynders threatened to transfer him
put in a legal submission from industrial relations commission
Loaded up with extra duties; bullying
had to do inspections of 14 stations + 3 work houses; auditing systems
Withdrawn at home
Short fused
Has been going on for 12-18 months
Has stopped playing golf which he loved
feeling tense fluctuates
Sleep: waking early
Visited a HSO; they do not maintain confidentiality"
The notes went on -
"is depressed; used to ride his bike; making a conscious effort
It’s not the normal him."
The notes of the examinations on 20 May and 27 June 2008 are as follows -
20 May 2008
"Sons birthday
Battling on
A positive development at work; a new person in supervisory role
A bit more optimism
Always looking over his shoulder
Things at home are much better; focussing on fitness
Mandatory retirement at age 60; wants to work up until that time Plan to ease out age 56
Women in this position
son: loves reading; grade 2
*Kids sick:"
27 June 2008
"Discussing work conditions
New asst commissioner continues to cause problems
Is fairly happy with things at present
keeping up exercise; playing golf"
Further consultations with psychiatrists
- At the time the applicant made his statement on 13 January 2009, arrangements had been made for him to be examined by Dr Bird, at the request of WorkCover, on 3 February 2009, and by Dr Markou, on referral by Dr Canavan, on 5 February 2009.
Dr Bird
- In Dr Bird’s opinion the applicant was suffering from chronic post traumatic stress disorder and was in partial remission from a major depressive episode. He said -
"From history provided I consider that the events described by the claimant consistent with the development of the psychological symptoms. They are related in time and spectrum of symptoms. 1 am unaware of the history of any non-work-related stress tools which would significantly contribute to the development of the claimants psychological symptoms.
…….
I consider the stressors have been the exposure to the motor vehicle accidents commencing in 2006. These have significant relevance to the claimant. He described experiencing intrusive and distressing recollections of the incident involving a 14-year-old boy. He realised that it was a chance event that could be repeated for him and result in the loss his only child. He was unable to resolve this and thus has developed a Post Traumatic Stress Syndrome with the subsequent similar episodes reinforcing his symptoms. I consider that his behaviour following the loss of the pre arranged leave was out of context with his usual behaviour. I believe that this was consistent with the symptoms of a post-traumatic syndrome. I consider that this was causally related to his work related episodes.
…….
I consider that his current symptoms have been further exacerbated by his continued exposure to similar traumatic episodes in the undertaking of his duty as a police officer."
Dr Bird recorded the history the applicant gave him as follows –
"Mr. White described a successful career in the police service with numerous positions, involving attendance at many traumatic and distressing incidents. He admitted his exposure to these had resulted in him, at times, being emotionally distant or cold.
In 2006 he attended a motor vehicle accident where a young boy aged 14 had been killed after the car in which he was travelling collided with a tree in the median strip of the Bruce Highway. His father was driving and lost control in wet conditions. Mr White’s duties included the coordination of this incident. He was aware at the time of his own personal situation and the potential risk and devastating consequences that such an incident would have for his family. This potentially was made more intense by the loss of his own father from emphysema when Mr. White was 16 years old.
Following this episode he described intrusive and distressing images related to the incident particularly of the accident itself. These could be triggered by any queues [sic] which reminded him of the episode. He also noted that his sleep deteriorated and would often wake during the night and be disturbed by ongoing images preventing him from returning to sleep. He became increasingly withdrawn and admitted he was ruminating about the episode. He lost interest in playing golf and other social pursuits. He became frequently tearful and experienced mood swings. He also considered that he was becoming overprotective towards his son which resulted in frequent arguments. In 2008 he attended another motor vehicle accident, again on the Bruce Highway in which 2 young males died. On driving to the incident Mr. White felt overwhelmed, becoming short of breath and needed to pull over in an attempt to calm his thoughts. There have been several other similar episodes in which his responsibilities have required him to attend traumatic incidents. He has been able to do this but admits that where possible he has avoided direct exposure to the casualties, becoming aware of the exacerbation of his symptoms as a consequence. In January 09 he was a senior officer in a fatality close to the Maroochydore police station. On this occasion he managed the incident without attendance in person.
In an attempt to try and control these symptoms he has ceased his alcohol consumption, he engages in regular exercise on most days. This has enabled him to improve his sleep as without exercise he finds difficulty sleeping without interruption.
Mr. White also described difficulties in the workplace relating to the expectations of him as a commissioned officer. In 2007 he was the responsible officer during the APEC meeting held at Coolum on the Sunshine Coast. This involved 10 days duty working at least 13 hours per day. This was an exhausting time and it had been agreed before hand that the officers involved would be given 6 days leave in compensation for the extra hours worked. The day prior to the end of this duty he was informed by his superior, the then assistant Commissioner that this was not possible and that he would have to return to work after only 2 days leave or face disciplinary proceedings. He described being intensely distressed by this and sought industrial advice as to the legality of this order. His legal advice was limited by the Police Union being uncomfortable to act both for Mr. White and as their role as representative of all commissioned officers. On reflection Mr. White admitted that this level of conflict between himself and his superiors was inconsistent with his past police service.
Subsequent to this conflict he believed that he has been persecuted by the same senior officers requested to undertake duties that are not possible with his current level of responsibilities and time constraints.
Mr. White described himself enjoying his career in the police service and was looking forward to completing the 10 years until retirement. He denied any history of anxiety or depression. He was a lifelong non-smoker, denied heavy alcohol consumption and illicit substance misuse.
He has not previously seen a counsellor, psychologist or psychiatrist apart from the 3 assessments with Dr. Markcou [sic]. He has also never been involved directly with a work cover claim."
Dr Markou
- Dr Markou’s notes of the consultation on 5 February 2009 are as follows -
"Underlying concerns and anxieties because of past events
past fatalities
worries about son
Incidents: eg pacific paradise fatality
He tires to coordinate things remotely
•doesn’t want to be exposed to traumatic scenes
Now more aware of this trauma
Janine Hoffmann:
•work cover of 2007 was accepted for medical expenses
Re applied for this in 2008
December: went to see Philip Bird; saw him on Tuesday
•he referred it back to work cover
Saw solicitor in January: Trevor Schulz
3rd party compensation re accidents
Accidents:
6.1.06
•was duty inspector, torrential storm, minor flooding
•single vehicle accident at Beerburrum, southbound; driver struck a tree
•Son seated on left died at scene; son age 15
Attended the scene
•felt vulnerable, monied [sic] about own son
•minimizes risk with driving
•had dreams of accident, lasted to a few months
if it came on news, became emotional
August 2007
•double fatality
•young men on Bruce High way
•hit truck, decapitated passenger, car hit median, both incinerated
attended that accident
Brains of passenger were all over the truck
this resurrected issues from first accident
Now overbearing and wanting to protect son
Had dreams and nightmares of this
No nightmares now; now sleeps well because of exercise
Thoughts of this in past; better able to tolerate them
thought he was going OK, probable room for improvement
Wants to work to age 60
Career: will probably Stay where it is
Son is in grade 3: Stella Maris
Administration issues: took over Tony Lewis job
•he does his own thing"
- He reported to Dr Canavan -
"Clinical summary …
Darryl is a man that I saw at the request of the Queensland Police service for several sessions last year. He was last seen over six months ago.
At the time, he was experiencing distress in relation to management issues within his role at the QPS, and these were able to be worked on successfully.
Since that time however, it has become increasingly apparent to him that he has been experiencing symptoms of post-traumatic stress disorder related to a number of traumatic incidents at work. There are two primary ones, and these have occurred in 2006 and 2007.
In the first of these accidents, Darryl attended a motor vehicle accident in which the occupants were incinerated. He was on the scene and witnessed this personally. Following this, he experienced intense anxiety about this, in addition to nightmares, despite being able to continue his work.
The second incident was also a motor vehicle accident in 2007, and this was one where an occupant of a car was decapitated. Again, this was extremely traumatic and result (sic) in nightmares and flashbacks in addition to generalised anxiety.
Since that time, Darryl has been aware of an underlying sense of anxiety and worry about his son which pervades his daily life. Nightmares are rare, however a generalised state of tension and worry persists."
In that report Dr Markou seems to have recounted the circumstances of the two accidents incorrectly, transposing some of the facts of the second accident to the first.
Comment
- If the history he gave Dr Bird is correct, the applicant’s symptoms of psychiatric injury first appeared soon after the motor vehicle accident in January 2006.
- On the face of Dr Markou’s report to Dr Canavan, written on 6 February 2009, there is reason to be sceptical about the applicant’s assertion that he had realised his symptoms were attributable to the motor vehicle accidents when he saw Dr Markou in 2008. On the other hand, Dr Markou’s notes of the consultation on 14 May 2008 refer (inter alia) to "bad accidents involving children", and the applicant made the assertion before he consulted Dr Markou again in February 2009. Further, the confusion about the circumstances of the accidents evident in Dr Markou’s report to Dr Canavan is a reason to be cautious about the accuracy of his notes of the history the applicant gave him at the first consultation.
Disposition of the application
- The Court has been asked to declare that the notice given complied with the Act and Regulation or that any noncompliance has been remedied. It cannot not do so without first determining when the applicant’s symptoms first appeared and whether he gave the first respondent a reasonable excuse for the delay in notifying it of the claim.
- Whether an excuse is a reasonable one is to be judged objectively in all the circumstances. Those circumstances include the applicant’s personal characteristics, such as his age, intelligence and education, and the nature of the injuries sustained.[2] The veracity of an excuse is an aspect of its reasonableness.
- These are not easy questions in a case such as this where the applicant alleges psychiatric injury as a result of witnessing and investigating an horrific scene.
- A psychiatric disorder resulting from trauma may develop over time rather than have an immediate onset. Its symptoms may not be appreciated or understood by a lay person, even someone suffering from the disorder. On the other hand, a person who suffers from such a disorder may be unreliable in his or her recall of when the symptoms first appeared; in some cases the unreliability may be related to the disorder and in others not. And sometimes the person may be deliberately dishonest on the issue.
- I cannot resolve these factual issues on this application. They are issues properly to be explored at a trial. Even then, a mere mechanical comparison of versions given to examining physicians on different occasions may not truly resolve them, and may work an injustice.
- These issues are sufficiently in dispute for me to decline the declaratory relief sought.
- The first respondent has not led evidence that it would be prejudiced if the applicant were to proceed with his claim despite any non-compliance with the requirements of s 37. Both counsel submitted that the possibility of the limitation period under s 11 of the Limitations of Actions Act 1974 (Qld) having expired was irrelevant to the determination of this application.[3]
- I am satisfied that this is an appropriate case to authorise the applicant to proceed further with his claim, despite any noncompliance.
- I will hear counsel on the form of the order and on costs.
Footnotes
[1] Cf. In General Credits (Finance) Pty Ltd v Grimm [1978] Qd R 449 at 463 Dunn J (with whom the other members of the Full Court agreed) considered a somewhat analogous point in a summary judgment application.
[2] Piper v Nominal Defendant [2004] 2 Qd R 85 at 91; [2003] QCA 557 at [46].
[3] Transcript of proceedings on 5 May 2009, 1.30.