Ostreich v O'Hanlon
[2004] QDC 177
•7 June 2004
DISTRICT COURT OF QUEENSLAND
CITATION:
Ostreich v. O’Hanlon and Anor [2004] QDC 177
PARTIES:
CHRISTOPHER LEIGH OSTREICH (Applicant
v.
GEORGINA GLADYS O’HANLON ( First Respondent)
and
SUNCORP METWAY INSURANCE LIMITED (ABN 83 075 695 966) (Second Respondent)FILE NO:
156 of 2004
PROCEEDING:
Application for leave to start proceedings
DELIVERED ON:
7 June 2004
DELIVERED AT:
Brisbane
HEARING DATE:
27 January, 27 February and 2 June 2004
JUDGE:
Judge Brabazon QC
ORDER:
Application dismissed
CATCHWORDS:
INSURANCE – MOTOR VEHICLES – Failure to give notice under s 37 of Motor Accident Insurance Act 1994 – whether reasonable excuse given – applicant suffered personal hardship – whether absence of reasonable excuse a bar to the exercise of power under s 39(5)(c)(ii).
Motor Accident Insurance Act 1994 s.37(2); s.37(2)(b)(i); s.39(5)(c)(ii)
Motor Accident Insurance Regulation 1994 s.10(1)(m)
COUNSEL:
Mr D Thomae for the applicant
Mr W Campbell for the second respondentSOLICITORS:
Richardson & Lyons for the applicant
Suncorp Metway Insurance Ltd
This is an application under s.39(5)(c) of the Motor Accident Insurance Act 1994 (MAIA). The applicant, Mr Ostreich, asks for leave to bring a proceeding for damages in respect of injuries sustained by him as a consequence of a motor vehicle accident on 28 January 2001. His application is opposed.
The First Accident
It is necessary to understand the history of Mr Ostreich’s first motor vehicle accident on 24 October 2000. On that occasion he suffered a mild whiplash injury when the car he was driving was involved in a collision with another vehicle. The tow truck driver at the scene suggested that Mr Ostreich should see solicitors, Messrs Drakopoulos Black. He did so on 13 November 2000.
His solicitor, Mr Black, then prepared the statutory Notice of Claim. He sent a copy to Mr Ostreich, and took the other usual steps in such a claim. The solicitors agreed to act for him on a “no win no fee” basis. In a letter of 17 November, Mr Black asked him to go through the claim form carefully to check its contents.
It seems that Mr Ostreich signed the form on 8 January 2001. A certificate was obtained from his general practitioner, reporting some muscular bruising and stiffness of his neck and shoulders. Mr Ostreich signed the usual authority for the doctor to report on his condition – the authority is dated 15 January 2001.
Mr Black returned the Notice of Claim form to the insurer, FAI Insurance, on 16 January 2001. The insurer then requested some further information. That was done. In turn, more information was requested, in the solicitor’s letter of 2 February 2001. Mr Black responded in a letter of 12 April 2001, submitting some further information. He also obtained Mr Ostreich’s instructions to put forward a settlement proposal. That was done on a “without prejudice” letter of 17 April 2001.
In early May 2001, Mr Black sent some further information to the insurer. On 14 May 2001, FAI wrote to say that Mr Ostreich’s Notice had complied with the MAIA. On 28 May 2001 FAI wrote and admitted full liability on behalf of their client.
In mid-June 2001 Mr Black obtained some financial information from Mr Ostreich’s employer, about the wages he was receiving. Then, at about the same time, he obtained Mr Ostreich’s instructions to make an offer of settlement of $6,000 all up.
Some correspondence was exchanged between the solicitors and FAI. On 3 July 2001 they advised that Mr Ostreich was prepared to settle the matter on the basis that he be paid $3,800 all up. Mr Ostreich had discussions with his solicitor about the settlement. The result was the signing of a form of discharge and Mr Ostreich’s receipt of a cheque enclosed in the solicitors’ letter of 6 August 2001.
So, between November 2000 and August 2001, Mr Ostreich had the experience of giving instructions to a solicitor, providing the details for the statutory Notice of Claim, providing information which allowed a medical report to be obtained from a general practitioner, supplying some further information requested, and participating in discussions about settlement. The result was the receipt of a small payment for his apparently slight injuries.
The Second Accident
On 28 January 2001 he was involved in a second motor vehicle accident. He was a passenger in a friend’s car when it was struck from behind. He says that he attended the Ipswich Hospital for treatment on the day of the accident. He does not mention any particular treatment. He then saw Dr Birchley who told him that he had a whiplash type injury to the neck which would eventually resolve. He says he was not too concerned at that time about his injuries having any long term effect.
He says that he telephoned his solicitors, Drakopoulos Black, at about that same time. They gave him some general advice about recovering damages in respect of any fresh injury. He says that the advice was given during a single telephone conversation.
On 17 April 2001 Mr Black wrote to him about both accidents. With respect to the second accident, he said this:
“With regards to your more recent motor vehicle accident, could you please contact Dimitri Koulouris as soon as possible with the details of the accident. Strict time limits apply in cases of this nature and it is important that the relevant CTP insurer receive notice as soon as possible.
Could you please telephone the writer or Dimitri Koulouris … to provide details of the Notice of Claim recent accident.” (emphasis added)
It seems that his solicitors obtained a police report about the second accident. On 23 May 2001 they wrote to him, confirming his instructions, and the “no win no fee” basis of their retainer. They told him it was now necessary for them to forward a statutory notice to the third party insurer on his behalf. The letter continued:
“To this end, we enclose for your attention the following documents:
1. Notice of Claim form
2. Medical Authority in blank and
3. Medical certificate to be completed by your treating doctor/hospital.Could you please go through the claim form carefully and ensure that the contents are correct.
…
Should you have any difficulty with the enclosed documentation please do not hesitate in contacting the writer.”
The claim form contained information, some of which must have come from Mr Ostreich. For example, it is said that he returned to work on 5 February 2001.
The form, or a draft of the form, mentioned the first motor vehicle accident, said to be on 24 October 2000 and that insurance claim had been made to FAI Insurance. (The third party insurer with respect to the second accident, was Suncorp Metway Insurance.)
Mr Ostreich did not return the forms to his solicitors. He only had contact with his solicitors up until the completion of the first claim, in August 2001. There is no evidence that he had any further discussion about the second accident.
On 21 March 2003 Drakopoulos Black wrote to him, noting that the forms had not been returned by him. The solicitors said that, although there had been a significant delay in the matter, it might still be possible to lodge a claim. He was asked to contact them. As there was no response, a similar letter was sent on 14 April 2003. Receiving no reply, a final letter was written by them on 12 May 2003, saying that the solicitors were closing their file. They pointed out that the three year time limit expired on 28 January 2004.
Mr Ostreich says that he continued to suffer from neck and bilateral shoulder pain which he reported from time to time to his general practitioner, Dr Lee. In January 2003 he says that he and Dr Lee discussed the possibility of his ongoing symptoms being referable to the accident on 28 January 2001. Dr Lee gave him a referral to a physiotherapist and suggested that he see an orthopaedic surgeon for a further opinion. (Dr Lee’s notes put that consultation on 22 January 2003).
He says that he started to have some further thoughts about proceeding with a claim for damages because of the second accident. He believed that the driver of the vehicle, a friend called Mark Allen, had successfully pursued a claim for personal injuries which he had sustained in the accident. Mr Allen had retained Sciaccas Lawyers to act for him.
On 19 February 2003 he went to see Sciaccas. It was explained to him that the firm could not act for him, because of its previous retainer on behalf of Mr Allen, and because of some conflict of interest they had in acting for Suncorp in other matters. There was a recommendation that he consult Mr Tim Galligan of Richardson and Lyons, Solicitors.
He went to see Mr Richardson the next day. That solicitor explained the need for a medical certificate signed by Dr Lee. He took down details on the statutory Notice of Claim, and had it signed by Mr Ostreich.
Mr Ostreich said that he saw Dr Lee on 3 March 2003 for the purpose of having him complete the medical certificate. On that day Dr Lee referred him again to the orthopaedic surgeon, Dr David Morgan, as he was not prepared to complete the certificate without first obtained Dr Morgan’s report regarding the relationship between his ongoing neck and shoulder pain and the second accident.
He saw Dr Morgan on 12 May 2003. Dr Morgan wrote a cautious report saying that the clinical assessment showed “little outstanding and very few positive physical findings”. The report went on to say: “I suspect that he has a form of declaration injury which involves a number of pain sensitive soft tissue structures including the anulyst of the disc, musculo tendinous insertions etc. This type of problem is unlikely to resolve rapidly, particularly given the duration thus far.” The report contains, by implication, some support for a link between a motor vehicle accident and the symptoms that Mr Ostreich complained of.
Mr Ostreich signed the claim form which was prepared by Mr Galligan. Mr Galligan says that he was informed by Mr Ostreich that he had been in a minor motor vehicle accident, with no symptoms, in October 2000. Mr Ostreich did not tell him that he had made any claim for damages. Mr Galligan says that those instructions led to him completing the claim form, to the effect that there had been no previous injury or disability. That was untrue. Mr Ostreich said in his evidence that he had forgotten about receiving any damages. His evidence in that respect should not be accepted. He must have recalled such a relatively recent and notable event.
Mr Galligan wrote to Mr Ostreich on 25 March 2003 saying:
“We note that we are still waiting for you to return the medical certificate signed by Dr Lee and the signed client agreement, although we understand that this is due to you being very busy at work.
As you are aware we are unable to submit a notice of accident claim form to Suncorp in order to initiate your claim for damages without the signed medical certificate. We would therefore ask you to have Dr Lee sign the medical certificate and return it as soon as possible, so that we can get things moving.
…
Given that the three year statute of limitation period applying to your claim expires on 2 January 2004, we would like to ensure that your notice of accident claim form is submitted to Suncorp by the end of April 2003 at the latest, in order to avoid any time limit problems.
…
We look forward to receiving the signed medical certificate and client agreement within the next few weeks.”
On 14 May 2003 Mr Galligan wrote another, shorter letter, to much the same effect. Some concern about the delay was expressed.
On 22 May 2003 Mr Ostreich rang Mr Galligan. He was told that Dr Lee should be able to provide the report shortly, as he was waiting on a report from Dr Morgan. Mr Ostreich was to send the medical certificate in as soon as Dr Lee completed it.
Mr Ostreich visited Dr Lee on 12 June 2003 for influenza-like symptoms. He made no request for a medical certificate.
There had not been further correspondence from Mr Ostreich. On 4 August 2003 Mr Galligan wrote again, requesting the medical certificate, and expressing concern about the passing of time.
There had been no response by 3 November 2003, when Mr Galligan wrote again. He was told that the limitation period was to expire on 28 January 2004, and that time was running short. He wished to submit a Notice of Claim form and to obtain the medical certificate. The letter expresses concern about the continuing delay.
On 6 January 2004 Mr Galligan wrote to say that his firm was still awaiting the signed medical certificate. He explained there was a need to take urgent steps to comply with the limitation period. Mr Ostreich was asked to telephone Mr Galligan as soon as he received the letter, “in order to let us know what is going on with respect to the medical certificate”. The emphasis on the expiry of the limitation period on 28 January 2004 is explained by Mr Galligan in an affidavit. He says that, during his first consultation with Mr Ostreich on 20 February 2003, he did not give him any advice about any need to submit a Notice of Accident Claim Form within one month of that consultation. Rather, he explained the three year limitation period to his client. He did explain the requirement to submit a Claim form within nine months of the accident, and if that was not done there was a need to provide a reasonable excuse for the delay. He emphasised to Mr Ostreich that it was important that his claim form be submitted to Suncorp as soon as possible. He needed Dr Lee’s certificate to enable him to do that.
Mr Galligan obtained the police report of the accident. It appeared to him that the accident was caused by the negligence on behalf of the driver of the vehicle which ran into the rear of the car in which Mr Ostreich was a passenger. In fact, the report was provided to him by Sciaccas, who had obtained it for the purposes of the proceedings by Mr Allen.
After his letters had been sent to Mr Ostreich, Mr Galligan wrote again on 6 January 2004 inquiring about the whereabouts of the medical certificate. Mr Ostreich telephoned on 12 January 2004, saying that he had an appointment to see Dr Lee on 15 January. On that day Mr Ostreich attended at offices of Richardson and Lyons and handed over the medical certificate signed by Dr Lee.
As Mr Ostreich says, he did not request the certificate from Dr Lee between 12 May 2003 and 15 January 2003.
On 16 January 2004 Mr Galligan delivered the Claim Form, containing Dr Lee’s certificate, to Suncorp Metway. On the same day Mr Galligan filed the application in this court, for leave to proceed.
The Claim Form, as already mentioned, made no mention of the previous accident and the payment of damages. With regard to the excuse for the delay, the account says this:
“I consulted a solicitor for the first time today in relation to the injuries which I sustained in the accident on 28 January 2001, in order to seek advice in relation to my entitlement to damages.
I did not seek legal advice for the first nine months following the accident as I hoped that my neck/shoulder symptoms would resolve, but they have not abated since the January 2001 accident. Hence my decision to claim damages.
Further, my general practitioner, Dr Lee, has refused to sign the medical certificate until 15 January 2004 as he could not make an accurate diagnosis of my injuries.”
That statement was provided to Mr Galligan on 20 February 2004.
Dr Lee’s certificate is in very guarded terms:
“Suspected muscle, ligament injury – unable to make firm diagnosis as the injury was in 2001 and presentation two years later.”
Following their first meeting on 20 February 2003, Mr Galligan wrote to his new client a comprehensive letter on 21 February. The claim form was enclosed. The need to obtain a certificate from Dr Lee was explained. The letter stressed the need to see Dr Lee as soon as possible, and to provide a referral to Dr David Morgan, the orthopaedic surgeon.
Mr Ostreich’s Conduct
The evidence shows that on 10 December 2001 Mr Ostreich saw Dr Lee about an unrelated matter. In passing, he mentioned having seen a naturopath for some neck and shoulder problems, but he did not mention any motor vehicle accident. He then saw Dr Lee on 22 January 2003 and 12 May 2003.
Dr Lee again saw Mr Ostreich on 12 June 2003 for a flu vaccination. The doctor was not requested to complete any medical certificate. Dr Lee did not then see Mr Ostreich until 15 January 2004.
At the beginning of 2001, Mr Ostreich was still an apprentice. He says that the company he was working for went under, so that he lost his job and had fallen behind with the rent. He had some casual work at around the time his daughter was born.
Mr Ostreich is now 26 years old. He has had some personal difficulties in recent times. He works as a boilermaker/welder, and while he has not had constant employment, he seems to have been employed most of the time. In February 2000 he entered into a partnership with a friend, but they had a disagreement in March of that year, so that the partnership was dissolved. Shortly afterwards he obtained a job with Reco Engineering, which involved working long hours for seven days a week. He stayed with them until 26 September 2003. He then joined Dartbridge Welding, with whom he is still working.
He has also had considerable domestic difficulties. By 2000 he and his defacto partner had two children. They separated in about mid-2000, and he went to live first with his mother, then with a friend, and then he lived by himself at rented premises at Kirton Street. There was a reconciliation with his partner in around July 2001, which followed the birth of his third child on 7 April 2001.
It can be accepted, from the point of view of his domestic life and employment, that he had much to concern him at times, from around the middle of 2000 to around September 2003.
It emerged at the hearing of this application that Mr Ostreich was inclined not to be frank, either with his solicitors or with the court.
After the settlement of his first claim by Drakopoulos Black in August 2001, he ignored any further correspondence from that firm. He did not tell Mr Galligan about Drakopoulos Black, or their recovery of some damages for him. His explanation for the delay in the claim form prepared by that firm was quite inaccurate, in saying that his consultation with Mr Galligan was the first in relation to his second accident. The claim form did not disclose the payment of the earlier damages.
When this application first came on for hearing, little was known by the legal representatives of either side about the role of Drakopoulos Black. He said that he telephoned Drakopoulos Black around February 2001, in relation to the accident of 28 January 2001. He was asked if he knew that firm, and why he consulted them. He said that he was referred to them by “one of the towies” - that is to say, one of the tow truck drivers attending the scene of the second accident. He said nothing about their involvement as his solicitors with respect to the first accident. He admitted that he had been told about time limits by Drakopoulos Black. He said they told him that he needed to fill out a Notice of Claim Form. He went on to say that the claim form had been sent to his mate’s place (where he was staying at the time) and he went on to say: “That was sent to my mate’s place within – I guess, the transition period of me moving out, and all the stuff that was going on, its obviously slipped through my fingers and that was it. I didn’t pursue it with those guys. … I moved away from my mate’s place. … I was living with my mate at this point. I was broken up with my spouse. … I had moved because he was getting married in March, so I’d moved away very shortly after the accident … on my own … and I’d lost contact with this thing. If they did (send the claim form to my mate’s address) I don’t remember even getting the claim form .. I don’t remember … I never signed, I never filled out any claim form. I don’t think (I saw either a claim form or a letter from them.)
He admitted that he knew there was a degree of urgency in relation to lodging the claim form.
When asked about the delays after seeing Mr Galligan, he relied on both pressures at work and his family life in explaining why he did not respond to Mr Galligan’s letters. He did refer to the three year time limit that was mentioned by Mr Black, saying that he was always under the impression that he had those three years to lodge this claim.
When the final hearing in this matter was held on 2 June, all of the material relating to the first accident had been disclosed. Mr Ostreich maintained that he had no recollection of his claim for damages arising out of the first motor vehicle accident. That cannot be true.
Mr Ostreich said that he had been referred to Drakopoulos Black by one of the tow truck drivers present at the time of his first accident. He retreated from his previous assertion, that a tow truck was responsible for him seeing Drakopoulos Black after the second accident. Obviously enough, he contacted Drakopoulos Black about the second accident because they were already acting for him.
At the first hearing he suggested that his changes of address and preoccupations meant that he had not seen material from Drakopoulos Black about his second accident. At the second hearing, he agreed that he had received their correspondence.
Mr Ostreich said that he did not reply to Drakopoulos Black because he had lost interest in pursuing the matter at that point. He said that he had never been one really to complain. The (possible claim) was just not on his mind at all. He started thinking about it again when his friend Mark Allen told him that he had settled a claim arising out of the second accident during 2003. He said that he did not know that he could receive treatment and have an insurer pay for it. (That cannot have been true, bearing in mind his first claim.) There was no way he could have afforded treatment, such as physiotherapy. He then says that he found that out and realised that he was entitled to some compensation, so he decided to pursue it. He also said that his condition had deteriorated before he went to see Mr Galligan. He had been working and was too busy to worry about it, so he ignored the letters from Drakopoulos Black.
He admitted that he was mistaken, during the first hearing, in suggesting that he had not received the Notice of Claim from Drakopoulos Black, because of his moving to different addresses. (In fact, all of the correspondence seems to have been received by him, no matter where he was living at the time. Even during the separation, he visited his wife and children almost every day.)
Therefore, the picture is this – Mr Ostreich consulted his existing solicitors on at least one occasion about his second accident, and gave sufficient instructions for a draft Notice of Claim to be forwarded to him. Thereafter, he ignored their correspondence about pursuing that claim. When he went to see new solicitors in February 2003, he did not reveal his previous compensation for a similar whiplash type injury. The claim form that he signed on that occasion was positively misleading, in asserting that he had received no previous advice about the accident of 28 January 2001.
When he first appeared in this court, he was not frank about his relationship with Drakopoulos Black. He referred to a single telephone conversation with them, not revealing that they were acting as his solicitors at the time to claim damages arising out of his first accident.
The Need For Leave
No point is taken about the expiry of the three year limitation period. As Mr Ostreich first consulted Drakopoulos Black around early February 2001, he should have notified the insurer within a month of the accident – Motor Accident Insurance Act s.37(2)(b)(i), MAI Regulation s.10(1)(m). The notice was given to Suncorp Metway on 16 January 2004, nearly three years after the accident and after having first consulted a lawyer. It was nearly 11 months after he consulted Mr Galligan. In any case, he had to notify the insurer within 9 months of the injury – see s.37(2)(b)(i) of MAIA.
As notice of his claim was given outside the time (one month, and/ or nine months in any case) fixed by s.37(2) of the MAIA, he was obliged to give a reasonable excuse for the delay, either in his Notice of Claim, or by a separate notice to the insurer. It was submitted here on behalf of Suncorp Metway Insurance that no reasonable excuse has been given, and he should not now be allowed to commence an action.
On his behalf it is submitted that, bearing in mind his personal circumstances, his excuse is a reasonable one in all the circumstances. Even if the delay is not reasonably explained, then the court still has a discretion to give leave to bring proceedings under s.39(5)(c)(ii) of the MAIA. It was pointed out that there was a strong prima facie case in this matter, as he was a passenger in the vehicle which was struck from behind.
In looking at excuses for delay, beyond either the one month or the nine month period allowed by the Act, it is necessary to have regard to all of the period since the date of the accident until the notice was finally given.
In exercising the discretion, it is necessary to keep in mind the fact that a refusal would mean that the applicant is forever shut out of a chance of making out his claim against this insurer. Also, no actual prejudice is suggested, apart from that which might inevitably be assumed because of the passing of time. Any prejudice would not go to the question of liability, but to issues about the cause and extent of his injuries. Indeed, in cases like this, where there have been successive injuries affecting the neck and shoulder muscles, there are likely to be difficulties disentangling the effects of the two accidents. The passing of time would not make that any easier.
While there is no real issue about liability for the second accident, there is a real doubt about the proof that any symptoms that he has, are the result of that accident. Dr Lee has resolutely refused to draw any definite link, and the orthopaedic surgeon’s report is in guarded terms. In any case, the symptoms are not particularly serious.
Finally, Mr Ostreich’s deliberate attempts to mislead Mr Galligan, the insurer and this court must be counted against him. Putting all those things in the balance, including the excessive delay in any event, and his decision not to promptly respond to the requests of two firms of solicitors and his failure to obtain the certificate from Dr Lee as soon as was reasonably possible, the discretion should be exercised against him. His application is dismissed.
Mr Ostreich must pay the cost of the application, including the reserve costs.
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