Harrison v Leaseplan Australia Ltd

[2011] QDC 81

[2011] QDC 81

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 65 of 2010

RICHARD PAUL HARRISON	Applicant
and
LEASEPLAN AUSTRALIA LIMITED & ANOR	Respondents

BRISBANE

..DATE 16/05/2011

ORDER

CATCHWORDS

Motor Accident Insurance Act 1994 s 51A, s 51B, s 51C, s 51D

"Guillotine order"  dismissing claim for damages should claimant fail a second time to attend upon a medical practitioner engaged by the insurer for proposes of a report being prepared and participate in "compulsory conference" processes - liability admitted by insurer - claimant to pay wasted medical fees - order made by consent

HIS HONOUR:  The Court makes an order in terms of the initialled draft.  The consent to the essentials of that order of the respondent/would be plaintiff is clear from Exhibit 1, which is a letter of his lawyers.  There's been no need for them to attend today in the circumstances.

The order, in appearance, is draconian. It's a guillotine order to the effect that the “plaintiff's” claim against the applicants/“defendants” which arises out of a motor vehicle accident is dismissed, unless he attends and undergoes a medical examination with an identified practitioner at an identified time and place, attends and participates in a compulsory conference with the second defendant complying with sections 51A, 51B and 51C of the Motor Accident Insurance Act 1994 by a nominated time and files and serves a claim within 60 days following in accordance with section 51D. The underlying proceeding is Mr Harrison’s originating application for leave to commence proceedings.

The plaintiff has already defaulted in attending a medical examination at the defendants’ request with the same practitioner, leaving the defendants with the doctor's account for $950 in respect of the non-attendance and no medical report.  The plaintiff, who has been self-represented for a considerable period while "between solicitors", took the view that, having done his part in the production of a medical report from a practitioner brought in by his original solicitors he's done all that is required.  He misunderstands the obligations the law imposes on him as a claimant.
The new solicitors offered the excuse for the non-attendance at the first medical examination arranged by the defendants that the plaintiff, who resides in northern New South Wales found it difficult to obtain funds to organise his transport to Wickham Terrace.

That difficulty shouldn't be replicated.  The Court accepts from Mr Lavercombe that, as is entirely appropriate, bus tickets on appropriate services have been provided already.  The expectation is that the plaintiff will recover damages.  Mr Lavercombe says he was the driver of a leading vehicle which was impacted from behind by the defendants’ vehicle.  Liability has been admitted.

There's still a possibility that if the plaintiff or respondent doesn't do what's required under the legislation, his claim may be defeated.  That will be very much his responsibility and it's of comfort to the Court that his solicitors have consented to the order, no doubt on instructions.  There have been two minor changes made to what the plaintiff's present solicitors consented to.

One states the amount of the doctor's fee for the wasted appointment, which the plaintiff is ordered to pay.  The other is a provision deferring the payment of that until the plaintiff recovers his damages or until earlier termination of the proceeding and/or claim.  Order as per initialled draft.

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