Bona v Jeffries - [2021] QSC 84

SUPREME COURT OF QUEENSLAND

CITATION:

Bona v Jeffries & Another [2021] QSC 84

PARTIES:

MICHAEL ANTHONY BONA

(plaintiff)

v
MICHAEL ERNEST JEFFRIES

(first defendant)

ALLIANZ AUSTRALIA INSURANCE LIMITED
ABN 15 000 122 850

(second defendant)

FILE NO/S:

BS No 4075 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2021

JUDGE:

Burns J

ORDER:

1.     The defendants’ signatures on a Request for Trial Date dated 21 December 2020 be dispensed with.

2.     The defendants’ application filed on 11 March 2021 is dismissed.

3.     The defendants pay the plaintiff’s costs of his application filed on 5 March 2021 and their application filed on 11 March 2021 to be assessed on the standard basis.

CATCHWORDS:

DAMAGES – GENERAL PRINCIPLES – OTHER MATTERS – where the plaintiff brought a claim for damages for personal injury and consequential loss arising from a motor vehicle accident – where the plaintiff was examined for medico-legal purposes by a number of medical experts including, at the request of his solicitors, an occupational therapist – where the defendants wanted the plaintiff to undergo an examination by a different occupational therapist – where there was lengthy delay in the provision of a suitable panel of occupational therapists to conduct such an examination – where the plaintiff refused to be further examined in light of the delay – where the defendants sought an order pursuant to s 46A and s 50 of the Motor Accident Insurance Act 1994 (Qld) requiring the plaintiff to undergo the further examination – whether it would be unreasonable to require the plaintiff to undergo the further examination

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – where the plaintiff brought a claim for damages for personal injury and consequential loss arising from a motor vehicle accident – where the plaintiff was examined for medico-legal purposes by a number of medical experts including, at the request of his solicitors, an occupational therapist – where the defendants wanted the plaintiff to undergo an examination by a different occupational therapist – where there was lengthy delay in the provision of a suitable panel of occupational therapists to conduct such an examination – where the plaintiff refused to be further examined in light of the delay – where the defendants sought an order pursuant to s 46A and s 50 of the Motor Accident Insurance Act 1994 (Qld) requiring the plaintiff to undergo the further examination – whether it would be unreasonable to require the plaintiff to undergo the further examination

Motor Accident Insurance Act 1994 (Qld), s 3, s 45, s 46A,
s 47, s 50, s 51A, s 51B

Uniform Civil Procedure Rules 1999 (Qld), r 5, rr 426-429A, r 429G, r 469

Behrens v Nguyen & Anor [2017] QSC 14, followed

Luck v Lusty EMS Pty Ltd [2008] QSC 146,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bona v Jeffries

Details

AGLC: Bona v Jeffries [2021] QSC 84
Case: [2021] QSC 84
Decision Date: 28 April 2021

CaseChat Overview and Summary

In the case of Bona v Jeffries, the plaintiff brought a claim for damages for personal injury and consequential loss arising from a motor vehicle accident. The defendants sought an order pursuant to ss 46A and 50 of the Motor Accident Insurance Act 1994 (Qld) requiring the plaintiff to submit to an assessment by an occupational therapist. The central issue was whether such an assessment should be ordered in light of the delay in providing a suitable panel of occupational therapists for the examination. The plaintiff had previously been examined by an occupational therapist, Mr Stephen Hoey, at the request of his solicitors. The defendants had requested a further examination by a different occupational therapist but delayed in providing a suitable panel. The plaintiff refused to be further examined due to the delay, leading to the defendants' application for an order requiring the plaintiff to undergo the further examination.

The court had to decide whether it would be unreasonable to require the plaintiff to undergo the further examination, considering the delay and the plaintiff's refusal. The court examined the provisions of the Motor Accident Insurance Act 1994 (Qld) and the circumstances of the case. The court found that the delay in providing a suitable panel and the subsequent refusal by the plaintiff to be further examined justified the dismissal of the defendants' application. The court also considered the plaintiff's application for an order dispensing with the signatures of the defendants on a Request for Trial Date. The court granted the plaintiff's application and ordered the defendants to pay the plaintiff's costs of both applications.

In summary, the court dismissed the defendants' application for an order requiring the plaintiff to undergo a further occupational therapist examination due to the unreasonable delay in providing a suitable panel. The court also granted the plaintiff's application for an order dispensing with the signatures of the defendants on a Request for Trial Date. The defendants were ordered to pay the plaintiff's costs of both applications.

Orders

Orders of the court

1. The defendants’ signatures on a Request for Trial Date dated 21 December 2020 be dispensed with.

2. The defendants’ application filed on 11 March 2021 is dismissed.

3. The defendants pay the plaintiff’s costs of his application filed on 5 March 2021 and their application filed on 11 March 2021 to be assessed on the standard basis.

Background

Background to the litigation

There are two applications before the court. The first in time was filed on behalf of the plaintiff on 5 March 2021. He seeks an order pursuant to r 469 of the Uniform Civil Procedure Rules 1999 (Qld) dispensing with the signatures of the defendants on a Request for Trial Date. Six days later, the defendants filed an application for an order pursuant to ss 46A and 50 of the Motor Accident Insurance Act 1994 (Qld) requiring the plaintiff to submit to an assessment by an occupational therapist. The central question is whether such an assessment should now be ordered to take place in light of the following background.Background to the applications The plaintiff’s claim is for damages for personal injuries and consequential loss arising out of a motor vehicle accident that occurred on 24 November 2018 at Wynnum. Liability is not in issue. Before the proceeding was commenced (on 9 April 2020), the claim progressed through the various pre-litigation steps required by the Act culminating in a compulsory conference pursuant to s 51A. That took place on 11 March 2020. Prior to the compulsory conference, the plaintiff was separately examined by two neurosurgeons (Drs Campbell and Tomlinson) and, at the request of the defendants, by an orthopaedic surgeon (Dr Boys). When the claim did not resolve at the compulsory conference, the plaintiff’s solicitors arranged for him to be assessed by an occupational therapist, Mr Stephen Hoey. Mr Hoey then produced a written report regarding his assessment on 16 August 2020 and a copy was served on the solicitors for the defendants a couple of days later. A slightly revised version of Mr Hoey’s report emerged on 19 August and it, too, was promptly served on the defendants’ solicitors. Then, on 21 August 2020, Mr Schultz of the plaintiff’s solicitors forwarded an email to Mr Schreurs of the defendants’ solicitors enquiring whether the defendants required “any further medical reviews”. Mr Schreurs responded one week later, advising that he was taking his client’s instruction on the “provision of a panel pursuant to section 46A” of the Act “for review [by] your client”. He anticipated “receiving those instructions shortly” and promised to revert to Mr Schultz once they were received. As nothing further was heard from the defendants’ solicitors, on 14 October 2020 an email was forwarded to Mr Schreurs enquiring again whether the defendants required “any further medical reviews”. If so, they were asked to “submit the usual panel/s so that [the plaintiff could] make the required election”. On 29 October, Mr Schreurs responded, submitting a panel of three occupational therapists (Mr Fraser, Mr Zietek and Ms White). The next day, a letter was emailed to Mr Schreurs in which he was advised that the plaintiff had chosen Mr Zietek. Mr Schreurs was asked to make an appointment for the plaintiff with Mr Zietek and a number of conditions to facilitate the review were then specified, including that any assessment take place within three months.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bona v Jeffries & Another [2021] QSC 84
PARTIES:	MICHAEL ANTHONY BONA (plaintiff) v MICHAEL ERNEST JEFFRIES (first defendant) ALLIANZ AUSTRALIA INSURANCE LIMITED ABN 15 000 122 850 (second defendant)
FILE NO/S:	BS No 4075 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 April 2021
DELIVERED AT:	Brisbane
HEARING DATE:	17 March 2021
JUDGE:	Burns J
ORDER:	1. The defendants’ signatures on a Request for Trial Date dated 21 December 2020 be dispensed with. 2. The defendants’ application filed on 11 March 2021 is dismissed. 3. The defendants pay the plaintiff’s costs of his application filed on 5 March 2021 and their application filed on 11 March 2021 to be assessed on the standard basis.
CATCHWORDS:	DAMAGES – GENERAL PRINCIPLES – OTHER MATTERS – where the plaintiff brought a claim for damages for personal injury and consequential loss arising from a motor vehicle accident – where the plaintiff was examined for medico-legal purposes by a number of medical experts including, at the request of his solicitors, an occupational therapist – where the defendants wanted the plaintiff to undergo an examination by a different occupational therapist – where there was lengthy delay in the provision of a suitable panel of occupational therapists to conduct such an examination – where the plaintiff refused to be further examined in light of the delay – where the defendants sought an order pursuant to s 46A and s 50 of the Motor Accident Insurance Act 1994 (Qld) requiring the plaintiff to undergo the further examination – whether it would be unreasonable to require the plaintiff to undergo the further examination INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – where the plaintiff brought a claim for damages for personal injury and consequential loss arising from a motor vehicle accident – where the plaintiff was examined for medico-legal purposes by a number of medical experts including, at the request of his solicitors, an occupational therapist – where the defendants wanted the plaintiff to undergo an examination by a different occupational therapist – where there was lengthy delay in the provision of a suitable panel of occupational therapists to conduct such an examination – where the plaintiff refused to be further examined in light of the delay – where the defendants sought an order pursuant to s 46A and s 50 of the Motor Accident Insurance Act 1994 (Qld) requiring the plaintiff to undergo the further examination – whether it would be unreasonable to require the plaintiff to undergo the further examination Motor Accident Insurance Act 1994 (Qld), s 3, s 45, s 46A, s 47, s 50, s 51A, s 51B Uniform Civil Procedure Rules 1999 (Qld), r 5, rr 426-429A, r 429G, r 469 Behrens v Nguyen & Anor [2017] QSC 14, followed Luck v Lusty EMS Pty Ltd [2008] QSC 146,…