Schmitt v Rummery & Suncorp Metway Insurance Ltd
[2006] QDC 22
•03/02/2006
[2006] QDC 022
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No BD226 of 2006
| WENDY SHARON SCHMITT | Applicant |
| and | |
| ADAM RUMMERY and SUNCORP METWAY INSURANCE LIMITED | First Respondent Second Respondent |
BRISBANE
..DATE 03/02/2006
ORDER
CATCHWORDS: Motor Accident Insurance Act 1994 s.51A(5) - refusal of application for order that insurer attend compulsory conference where the applicant had suffered
injuries in an incident two months prior to the motor accident
which appeared to have contributed to his asserted economic loss, and may have contributed to his need for gratuitous services - earlier incident the subject of a claim under Personal Injuries Proceedings Act 2002 - insurer wanted compulsory conferences held together.
HIS HONOUR: This is an application by a claimant under section 51A of the Motor Accident Insurance Act 1994, in particular subsection (5).
What is sought is that the Court endorse the fixing of a compulsory conference for today week, a time which was nominated in the applicant's solicitor's letter of 19th December 2005. For the whole of the year the solicitors had been seeking agreement on a conference date. There is a history of each raising of the topic of being met by a request for new information or new steps to be taken: for example, examination by an occupational therapist.
This is one of numerous matters in which the second respondent insurer conducted the file itself for many months before handing it over to solicitors. Experience suggests that that step which occurred here in the middle of August last year often delays matters because new minds are brought to bear in the controversy and new ideas are developed. One can sympathise with the applicant's frustration and her developing the thought that the insurer is simply seeking to delay.
A good deal of trouble has been gone to in this application to produce material of a general nature, suggesting against this insurer and perhaps others, that there is a pattern of such delay against a background where their financial interests are well served by it, if only because funds can be profitably employed the longer they are withheld from deserving claimants.
The dissatisfaction felt in the applicant's camp is no doubt magnified by the circumstance that for a long time, liability has been acknowledged. The motor vehicle accident happened on the 8th of December 2003. The applicant complains that she sustained an injury to her lower back.
It seems to me that this is not an ideal scenario for the claiming of the relief which is sought. There is the complication of an earlier injury which the insurer has known about for some time.
The quantum aspects of the claim were, by arrangement of the parties, dealt with by provision of a "plaintiff's statement of loss and damage" of the kind required under the UCPR, in which circumstances the applicant is described as plaintiff. This document contains a Griffiths v. Kerkemeyer or gratuitous services" component estimated at "26 weeks of assistance at six hours per week at the rate of $15 per hour", which would naturally attract some suspicion by a cynical reader as it corresponds with the minima stipulated for such damages being recoverable by section 59 of the Civil Liability Act 2003 which, as is common ground, applies to claims under the Motor Accident Insurance Act 1994 relevantly.
The more significant financial claim described in the statement of loss and damage is $50,000 which the plaintiff seeks for "future economic loss" as a result of her injuries.
That claim is immediately preceded by a description of the applicant's work situation as a financial assistant at Griffith University. The applicant's dissatisfaction at now being unable to contribute as she could have uninjured leads to the following, and I quote:
"The work practices described above come on top of injuries and restrictions occasioned by an incident of 15 September 2003 when the plaintiff suffered injuries to her left shoulder and neck when stopping herself being thrown from a camel on Great Keppel Island.
As a consequence of that incident the plaintiff sustained injuries to her left shoulder and neck. The injuries sustained in the motor vehicle accident of December 2003 superimposed upon the injuries sustained in September 2003 restrict the plaintiff's employment opportunities. She is at a disadvantage on the open labour market. She is less able to compete with other candidates. Her opportunities for advancement with her current employer have been impaired."
The natural reading is that the "injuries" for which $50,000 for future economic loss is claimed include the September 2003 injuries as well as the December 2003 injuries. The insurer's attempts to obtain clarification from the point of view of damages under that heading being claimed also in respect of the camel incident have not been responded to in a useful way. It seems to me central to the present situation that the plaintiff who in Part 2 of her Personal Injuries Proceedings Act Statement of Claim in respect of the camel incident indicated a claim for economic loss.
It is going to be necessary for a determination to be made one way or another, by an agreement or some determination by an appropriate Tribunal, as to how responsibility for that loss is to be shared. There are on foot proceedings, or at least preliminary steps, under the PIPA, towards proceedings, in respect of the camel incident. Those are said to be complicated by there being three other injured parties. Liability is very much in contest.
If the applicant is to avoid a risk of falling between stools it would be important that the same tribunal deal with her damages, if agreement isn't reached. The second respondent here is of the view that any conference ought to involve the "respondent" in the earlier accident. Mr Cross' argument complaining of the history of what he says are delaying tactics by Suncorp does not mention the earlier incident and perhaps because Suncorp has not raised it or has not raised it clearly or persistently enough.
At the end of the day I am sympathetic to the proposition that the applicant's two claims ought to be dealt with together as I would expect them to be if the matter comes to Court. I think the compulsory conference is more likely to be useful if that occurs. Both incidents under the relevant legislation will lead to compulsory conferences being held. There is no question today of dispensing with the conference. Suncorp will not agree to that and, for obvious reasons, the conference may be useful; it is certainly not a clear case for dispensing with the conference.
One of Suncorp's complaints is that there has been no compliance with its request for a statutory declaration from the care provider, who was the applicant's husband, to describe the services provided in terms of some detailed analysis of the time spent on the particular tasks which have been described in general terms.
There is an issue between the solicitors as to whether or not a statutory declaration can be called for. Section 45(7) of the MAIA provides that "Any information provided by a claimant under this section must be verified by statutory declaration if the insurer requires it to verified by statutory declaration".
Mr Cross submits, for the applicant, that this provision does not apply as the information is not to be provided by a "claimant" but rather by her spouse, the caregiver. No occasion arose for submissions to be made in detail in this respect but my own inclination would be to regard information sought from a caregiver in respect of a claimant's claim as coming within the description "information provided by a claimant". It is easy to understand why the comfort of information being provided in a sworn form is sought here.
I have said enough to indicate the Court's view that it is not appropriate to make any order under section 51A(5). I think it would bring reproach on the system, where there are multiple claims plainly better dealt with together, to order a conference for fixed time in respect of one while the other claim proceeds independently.
The Court should also note the more specific objections made by Mr Dickson to the application which are to the effect that the applicant is really not ready for a compulsory conference. A large amount of material, including the important part 2 notice from the PIPA notice of claim, has only very recently been made available. There has been contravention of the requirement in the MAIA for documents to be supplied within a month of their coming to the claimant's solicitor. It is not sufficient, in my view, for the claimant to assert a belief that the material could or might have been got by the respondent in other ways.
Mr Dickson also submits that the applicant is in no position to provide the certificate of readiness, not just for the conference, but for the trial, required under section 51B, subsection (5) and subsection (6). In that regard, he has referred again to the economic loss claim and the gratuitous services claim. It is not impressive that the very late delivery of more than 150 pages of documents has occurred.
I will dismiss the application in the circumstances. Its fate has been very much dictated by the circumstance of the occurrence of the earlier accident.
The confusion that has attended the matter may be illustrated by reference to the belief that the second respondent developed on the basis of a medical report (and which the applicant's solicitor seemed to share briefly) that there had been a subsequent motor vehicle accident in which the applicant was injured. That proved to be a misunderstanding, but it is one which contributed to the delay which so frustrates the applicant.
I am not persuaded that it is in her or the general interest,
however, to hurry this particular claim on while that arising from the incident two months before remains unresolved. So, I refuse the application.
MR CROSS: You made one error there, your Honour, just in - you said the claimant's solicitor was confused as to whether there was a motor vehicle accident.
HIS HONOUR: No, I thought he said he'd look into it.
MR CROSS: Just to confirm, there wasn't. The insurer misread the medical report.
The insurer misread what Dr Boys said.
MR CROSS: Yes.
HIS HONOUR: And developed the erroneous idea there'd been another accident.
MR CROSS: Correct. They just want that cleared up.
HIS HONOUR: Yes.
...
HIS HONOUR: I'm not inclined to make any order as to costs, Mr Dickson. I think it's regrettable that the insurer then the solicitors adopted the "dribs and drabs" approach to seek the information - there are explanations for it in some of the instances I'm sure, but I don't think there should be any order as to costs.
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