Martin v Quinn

[2010] NSWDC 35

CITATION:	Martin v Quinn [2010] NSWDC 35
HEARING DATE(S):	19 June 2009, 11 March 2010
JUDGMENT DATE:	19 March 2010
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	The application is dismissed The Applicant is to pay the respondents' costs of the application The exhibits and affidavits are returned
CATCHWORDS:	LIMITATIONS - Deficiencies in explanation - Significant pre and post accident ill health - Difficulties with 10% whole person and damages thresholds - Inadequate search and inquiry - Actual prejudice
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
PARTIES:	Christine Helen Martin (Applicant) Jeffrey Alan Quinn (First Respondent) The Nominal Defendant (Second Respondent)
FILE NUMBER(S):	7/08
COUNSEL:	C A W Hart (for the Applicant) D Ronzani (for the First Respondent) P Cummings (for the Second Respondent)
SOLICITORS:	Bale Boshev Lawyers (for the Applicant) Curwood Lawyers (for the First Respondent) Moray & Agnew Solicitors (for the Second Respondent)

JUDGMENT

1 The plaintiff in this matter seeks to bring proceedings in respect of a motor vehicle accident that occurred on 8 October 2002. Her motion for relief was initially filed in January 2008. In that motion the respondent was named as Jeffrey Quinn.

2 The motion was subsequently amended to seek leave to proceed out of time and to determine issues arising under ss73, 108 and 109 of the Motor Accidents Compensation Act 1999. S108 is no longer relevant. The question arising under s73 was whether the plaintiff “has” a full and satisfactory explanation for the delay in making her claim. In s109(3)(a) the question was whether the plaintiff “provided” a full and an satisfactory explanation.

3 Substantial delays were experienced after the motion was filed while the claim worked its way through the procedural requirements of the Act and by reason of the delay on the part of the first respondent in determining his response to the issue of liability. The first respondent ultimately denied liability on the basis that the accident was the result of negligence by the driver of the second unidentified motor vehicle. The plaintiff therefore obtained an order joining the Nominal Defendant and the motion was amended accordingly.

4 A substantial amount of affidavit material was provided in support of the application. From this material, significant events may be summarised as follows.

5 The accident occurred on 8 October 2002. The plaintiff was a passenger in the motor vehicle driven by the first respondent. The police report indicated that the first respondent claimed from the outset that a second unidentified motor vehicle was involved.

6 At the time of the incident the plaintiff was 56 years old and not in good health. Immediately after the accident she complained of neck and back pain. She was treated between 2003 and 2006 for serious thyroid and cardiac conditions and osteoarthritis and neck pain.

7 The plaintiff said that until 2006 she was advised by her general practitioner and various specialists including Dr Mathers, a rheumatologist, that the pain that persisted in her neck and arms was caused by arthritis or related to her heart problems. An MRI of her cervical spine was undertaken in May 2006 and it reported on findings at a number of levels in that part of her spine.

8 In June 2006 the MRI report was sighted by Dr Mathers who noted the finding of a disc protrusion at C3-4 and compromise of the C7 nerve root consistent with the plaintiff’s complaints of paraesthesia in her arm. He suggested physiotherapy. The plaintiff said that this treatment did not help her.

9 The plaintiff’s general practitioner Dr Hamidi noted on 23 June 2006 that she reported that Dr Hickey, her cardiologist, suggested her neck problems could be due to the injuries suffered in the accident four years earlier.

10 In July 2006 the plaintiff consulted her current solicitors. She stated that until this point she was unaware of her right to claim compensation or of the limits imposed upon the time within which her claim might be brought.

11 On 25 August 2006 a personal injury claim form was lodged alleging negligence on the part of the first respondent. The plaintiff’s explanation for the delay in lodging that claim form was rejected by the first respondent’s insurer. Liability was denied by the first respondent in May 2008 on the basis that the person at fault was the driver of the unidentified motor vehicle. As a result a personal injury claim form was served upon the Nominal Defendant in respect of the liability of that driver. The plaintiff’s explanation for the delay was rejected by the Nominal Defendant.

12 There was an issue concerning whether that rejection of the explanation was out of time. The plaintiff claimed that it was provided two months and three days after the explanation had been given to the Nominal Defendant. There was no evidence of when the explanation was served on or received by the Nominal Defendant, but in the result this issue became irrelevant.

13 Both respondents denied liability by 15 April 2009.

14 The application was initially heard on 19 June 2009 when certain difficulties facing the plaintiff were pointed out by the respondents. The plaintiff sought and was granted leave to present further medical evidence in support of her application and further submissions were heard on 11 March 2010.

15 There were four problems facing the plaintiff in pursuing her claim.

16 The first related to an accident notification form that was accompanied by a certificate signed by Dr Hamidi and dated 25 October 2002. In the general practitioner’s certificate the plaintiff’s injury was described as a whiplash injury to the neck radiating into her shoulders and interscapular area. The certificate referred to findings of tenderness around the cervical spine and both shoulders, the arm and interscapular area and painful and restricted movements. It reported that her treatment was by physiotherapy.

17 The plaintiff said she did not remember completing or signing this form which apparently remained in the possession of her general practitioner. The notes of the general practitioner contained entries dated 11th, 25th and 30 October 2002 concerning consultations that dealt with symptoms following the accident. The note of 25 October 2002 referred to “in depth discussion” about the plaintiff’s disabilities and management and described her symptoms as severe neck and back pain.

18 Whilst I could accept that it was plausible that the plaintiff forgot that the form was completed or that she was confused about its purpose, the plaintiff said nothing in any of her explanations of consultations with the general practitioner at the time of completion of that form. Those consultations suggested that she was wrong in her statement that no doctor made any connection between her unrelenting neck and shoulder pain and the motor vehicle accident until that question was raised by cardiologist Dr Hickey in June 2006.

19 Indeed the notes suggested that her general practitioner diagnosed a whiplash injury arising from the accident and that her severe neck and back pain as a consequence was discussed in depth. This therefore cast doubt upon the absence of medical advice concerning the connection between the plaintiff’s complaints of pain and the accident as a reason for the delay in the commencement of proceedings.

20 The second major problem facing the plaintiff was that of establishing that the pain and disability of which she continued to complain was in fact the result of injuries suffered in the accident in 2002. Medical notes indicated that the plaintiff complained of neck and back pain prior to the accident and of symptoms of paraesthesia in her arms. Those symptoms were said by consultant physician Dr Malcolm in August 2002 to be due to degenerative problems in her cervical spine. After the accident the plaintiff suffered from serious conditions affecting her thyroid, heart and from osteoarthritis.

21 The plaintiff relied on changes in MRI scans dated July 2002 and May 2006. Certainly there were changes in the imaging that indicated a deterioration in the condition affecting the plaintiff’s neck. After the MRI scan of May 2006 the plaintiff was referred to Dr Christie and then to Dr Nair, neurosurgeons. There were no reports from either of these doctors in evidence and no evidence was provided of their opinions concerning any causal connection.

22 Dr Hamidi was asked to give an opinion on this connection. He stated in December 2009 that the plaintiff complained of headache, neck pain and arm pain “for a long time” and that her condition significantly deteriorated after the accident. He was not prepared to say whether the deterioration had anything to do with the accident. Dr Hamidi pointed out that the plaintiff suffered numerous ailments for many years and that those symptoms had also deteriorated for reasons unrelated to the accident.

23 The only treating specialist to provide an opinion was Dr Mathers, rheumatologist, in a report dated 14 December 2007. He explained his opinion that the plaintiff suffered from primary generalised osteoarthritis. He said it was arguable that the accident contributed to the changes to the cervical spine shown in the 2006 MRI but that in a practical sense any contribution is likely to be very minimal.

24 Notwithstanding these opinions, the plaintiff sought to rely upon the opinions of Dr Sage who first examined her in January 2008. The difficulties with the original report from Dr Sage were that he was told that the plaintiff had no symptoms in her neck prior to the accident and he was told nothing of the symptoms that she had in her arms. He was told that she had osteoarthritis only in both thumbs and in the great toe of her right foot. He made no reference in his report to her cardiac problems and to the generalised osteoarthritis reported upon by Dr Mathers. Notwithstanding this he rejected the contention that the MRI supported a connection to the effects of the accident.

25 Dr Sage said the changes shown were multi-level degenerative changes that were age-related. He assessed the plaintiff’s whole person impairment at 15%. There was some ambiguity as to the extent to which he related her condition to her pre-existing degenerative changes. On one reading he attributed 10% of her condition to her pre-accident problems.

26 In subsequent reports Dr Sage maintained his opinion of a15% whole person impairment but in July 2008 he attributed her pre-existing condition to 8% of that condition to arrive at a whole person impairment related to the accident of 7%. In a subsequent report in July 2009 he set the proportions at 4% and 11% respectively. These changes were made on receipt of further information that contrary to his original understanding, the plaintiff had been asymptomatic prior to the accident, she in fact had symptoms both in her neck and her arms. It was somewhat surprising therefore that he appeared to reduce the proportion attributed to her pre-accident condition and to increase that attributed to the accident itself.

27 I decided that I preferred the opinions of the long term general practitioner and Dr Mathers that the contribution, if any, was minimal.

28 I was asked to draw an inference from the failure by the respondents to put into evidence a report said to have been obtained from Dr Korber, radiologist. The most that could be inferred from this withholding of material by the respondents was that it would not have assisted them. It did not lead me to conclude that I should reject the opinions of the plaintiff’s general practitioner and Dr Mathers.

29 The third problem related to the threshold requirement of s109(3)(b) of the Act. This provision requires that I should be satisfied that the plaintiff, if successful, was likely to be awarded not less than 25% of the maximum amount that might be awarded under s134 of the Act as at the date of the accident. The relevant figure in this case was $77,250.

30 The plaintiff at the time of the accident was a pensioner and therefore there was no claim for income loss.

31 If successful, her claim would involve assessment of her non-economic loss, needs for care and medical expenses. In the light of my findings relating to causation, I could not be confident that the plaintiff would be assessed as having suffered greater than 10% whole person impairment as a result of the motor vehicle accident and that therefore she would be entitled to any amount for non-economic loss.

32 Further, I was not satisfied that if the amounts for care and medical expenses are apportioned to take account of the need generated by the pre-existing condition of the plaintiff’s cervical spine and the symptoms it generated as well as the other very serious health problems from which she suffered, she would receive an award for care and medical expenses exceeding $77,250.

33 The final problem faced by the plaintiff was that of prejudice. Although no evidence was put forward by either respondent of actual prejudice, the problems they would face in securing a fair trial were obvious. Those problems related both to the circumstances of the accident and the extent to which the plaintiff’s health was affected by the injuries that she suffered.

34 It was known from the outset that a second unidentified motor vehicle was involved. It was reported to the police. In the circumstances where the plaintiff was a passenger in the vehicle, the contest in any claim would be between the first and second respondents as to liability.

35 The delay meant that no due inquiry and search was undertaken within a reasonable time after the accident. A somewhat pathetic attempt was made in January 2009 by placing two small advertisements in the local press. Those advertisements provided insufficient or inaccurate information.

36 The plaintiff argued that inquiry and search would have been futile but that argument was based upon the time at which she wished to commence her claim. It may well have been futile at that time. However, as pointed out by the second respondent, the circumstances of the accident were such that it could not necessarily be said that it would have been futile in October 2002.

37 Aside from the plaintiff’s obligations of due inquiry and search, her delay prejudiced the capacity of both respondents to investigate their relative responsibilities.

38 I have already dealt with the complications of the plaintiff’s health. She was treated after the accident for serious heart problems as well as other conditions. The respondents were left without the opportunity to assess the plaintiff’s condition at or around the time of the accident and to make a reasoned assessment of the extent to which her current condition was the result of the injuries suffered in the accident.

39 In summary, I have determined that the requirements of s109 were not met for the following reasons:

1) The explanation provided was not full or satisfactory. It did not make reference to the consultations with the general practitioner and the in depth discussion of the plaintiff’s condition that took place in the days immediately following the accident. It did not explain why no action was taken to pursue a claim at that time.

2) I was not satisfied that a reasonable person in the plaintiff’s condition complaining as she said she did of unrelenting pain from the time of the accident, having received advice from her general practitioner immediately after the accident and a diagnosis of a whiplash injury would have been justified in experiencing the same delay.

3) I was not satisfied that the plaintiff’s current condition was attributable other than to a minor degree to the accident.

4) I was not satisfied in the light of my findings as to the minor degree to which the plaintiff’s condition was attributable to the accident that she would succeed in recovering damages that exceeded the threshold provided for in s109(3)(b).

5) Both respondents were affected by actual prejudice resulting from the substantial delay in bringing the claim to the point where I concluded that they would not be in a position to secure a fair hearing of the claims brought against them.

40 In the circumstances the application is dismissed.

41 The plaintiff is to pay the respondents costs of the application.

42 Exhibits and affidavits are returned.

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