Suncorp Metway Insurance Ltd v Snowdon - [2005] QDC 312

[2005] QDC 312

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3508 of 2005

SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966)	Applicant
and
KRISTY-LEE SNOWDON	Respondent

BRISBANE

..DATE 10/10/2005

ORDER

CATCHWORDS: Motor Accident Insurance Act 1994 s 46A, s 50,
s 51A - circumstances in which it was not "unreasonable" for the insurer to require a claimant to undergo examination by an occupational physician not made until shortly before a compulsory conference called by the claimant, 21 months after provision of the claimant's occupational therapist's report - insurer required to meet half costs of updating that report, and costs thrown away by abandonment of the conference (as the price of the Court's ordering a new conference on the insurer's application).

HIS HONOUR: There are cross-applications before the Court under the Motor Accident Insurance Act 1994 which comes into play because of the respondent's being injured in a motor vehicle accident on the 10th of May 2002.

The applicant insurer seeks an order under section 46A of the Act which provides inter alia:

"1.This section applies if the insurer wants to obtain an expert report on the claimant's medical condition or prospects of rehabilitation but fails to obtain the claimant's agreement.

2.The claimant must comply with the request by the insurer to undergo at the insurer's expense -
(a) a medical examination by a doctor to be selected by the claimant from a panel of at least three doctors nominated in the request; or
(b) an assessment of cognitive function or vocational capacity by an expert to be selected by the claimant from a panel of at least three experts with appropriate qualifications and experience nominated by the insurer in the request.
3.However, a claimant is not obliged to under go an examination under this section if it is unreasonable or unnecessarily repetitious."

The applicant insurer desires to have the respondent examined by an occupational physician and has provided three names as required by the Act. Her response is that such - is that a requirement for her to undergo such an examination would be unreasonable.

The basis of her assertion is delay, no request for her to cooperate in this regard being made until Messrs Sparke Helmore, the applicant's solicitors, made one on the 24th of March 2005, exactly 21 months after 24th June 2003 when the report of an occupational therapist obtained by the respondent's solicitors was sent to the applicant.

It managed the file itself until about 17th of February 2005 when the firm advised they were acting. It seems they came into the matter at the stage when the claimant's solicitors were becoming more demanding in respect of the holding of a compulsory conference in early February 2005. Earlier overtures in that regard had been made throughout the latter half of 2004 from time to time.

Mr Charrington, appearing for the claimant, justifies the making of charges of unreasonableness on the basis of the 21 months delay and on the circumstance that the insurer's request was…

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.

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Details

Case: [2005] QDC 312
Decision Date: 10/10/2005

CaseChat Overview and Summary

In the case of Suncorp Metway Insurance Limited v Kristy-Lee Snowdon, the District Court of Queensland addressed cross-applications under the Motor Accident Insurance Act 1994. The case arose from a motor vehicle accident that the respondent, Kristy-Lee Snowdon, was involved in on 10 May 2002. The primary dispute concerned the insurer's request for the respondent to undergo an examination by an occupational physician, which the respondent deemed unreasonable due to a significant delay by the insurer in making the request.

The legal issues before the Court were whether it was unreasonable for the insurer to require the respondent to undergo the examination by an occupational physician, and if so, what the consequences should be for the delay. The respondent argued that the insurer's request was unreasonable because it came 21 months after the respondent's solicitors had provided a report from an occupational therapist. The Court needed to determine if the delay justified the claim of unreasonableness and if the insurer should bear any costs associated with the delay.

The Court found that while the delay was significant, it did not render the request unreasonable. The respondent, who had intellectual impairment and faced substantial barriers to employment, had a claim that the Court deemed inflated. The Court concluded that the insurer's interest in obtaining a current medical examination outweighed the delay, particularly given the respondent's potential inability to work. The Court ordered the respondent to comply with the insurer's request for an occupational physician's examination but required the insurer to contribute to updating the occupational therapist's report. Additionally, the Court mandated that the insurer bear half the costs of updating the report and any costs wasted by the respondent's call for a compulsory conference, which was abandoned when the insurer refused to participate.

In its final orders, the Court granted the insurer's application to require the respondent to undergo an occupational physician's examination, conditioned on the insurer contributing to updating the occupational therapist's report. The Court also ordered a new compulsory conference within 60 days of the occupational physician's report, with the insurer to pay the lesser of the conference costs or the costs incurred by the respondent from the abandoned conference. The Court further directed that the insurer pay the respondent's costs and that all costs be assessed on the standard basis unless otherwise agreed.

Orders