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Late reporting of injury and other problems on quantum

Late reporting of injury and other problems on quantum

Case note: Evans v Williams [2018] QDC 210

A 51 year old kitchenhand, Ms Marie Evans, was injured while executing a right hand turn, when a vehicle coming in the opposite direction collided with the front of her car.

The accident happened in September 2015 and the compulsory third party insurer for the vehicle at fault, Allianz Australia Insurance Ltd, admitted liability for the circumstances of the accident.

Facts

Ms Evans sought damages for a musculo-ligamentous injury to her lumbar spine, bilateral hip injuries and a psychiatric injury as a result of the accident.

Ms Evans was born in Mauritius, educated to grade 11 and came to Australia in 1986. She had a number of jobs in her working life and it was only when her children were growing up that she was unable to maintain steady employment. Ms Evans returned to work the day after the accident but called in sick the following day because her pain ‘was getting really bad’. Her evidence was that there had been no time following the accident when she felt ‘completely free of pain’.

Her first attendance with a medical practitioner after the accident was on 4 March 2016, when she consulted a general practitioner about problems with her left ear. There was no complaints of back or hip pain during that attendance.

Ms Evans did not tell her employer (RSL Care) about the motor vehicle accident at that time because she was afraid of losing her job, however, she adjusted her work hours to start work early and finish a little later at times.

On 28 April 2016, Ms Evans resigned from her employment. Her letter of resignation did not make reference to issues relating to her back or hip. In the fortnight prior to her resignation, Ms Evans worked a 76 hour fortnight.

She first sought treatment for lower back pain on 13 May 2016, over eight (8) months after the accident. The entry in the general practitioner’s notes noted, ‘[n]o preceding trauma’. Ms Evans had an attendance with another general practitioner on 8 June 2016, at which time hip pain was reported. The clinical notes noted that her symptoms had been ongoing for, ‘the last year or so’ and stated that Ms Evans, ‘[d]id heavy lifting for a long time’.

The symptoms experienced by Ms Evans were not linked to the subject accident until after she attended with her solicitors on 8 September 2016. On 16 September 2016, almost one (1) year after the accident, a doctor with whom she attended linked the lower back pain to the motor vehicle accident.

Following her resignation from RSL Care, Ms Evans secured employment with the Logan City Council and after that, received Centrelink benefits for a short period of time, before commencing employment with her current employer, Homelife.

Expert evidence

Ms Evans relied upon the expert opinions of Drs Shaw (Orthopaedic Surgeon) and De Leacy (Psychiatrist). The Defendants relied upon the opinions of Dr Boys (Orthopaedic Surgeon) and Professor Whiteford (Psychiatrist).

Dr Shaw assessed Ms Evans as suffering a 6% whole person impairment (WPI) under AMA5 and Dr Boys assessed her as suffering a 5% WPI. Dr Shaw accepted at trial that if, in truth, the back and hip pain arose nine (9) months after the motor vehicle accident, it was, ‘very, very unlikely’ that the pain was related to the accident. Dr Boys did not relate the hip injury to the accident. As to her back pain, Dr Boys was of the view that she could have experienced temporary back pain which resolved and then symptoms related to her degenerative back condition when she sought treatment in May 2016.

Psychiatrists Professor Whiteford and Dr De Leacy assessed Ms Evans as suffering a 4% and 5% PIRS rating respectively. Professor Whiteford diagnosed Ms Evans as suffering from an Adjustment Disorder with depressed mood. Dr De Leacy diagnosed an Adjustment Disorder with mixed anxiety and depressed mood. Both accepted that if the motor vehicle accident did not cause a physical condition, then any psychiatric condition would not be related to the accident.

Judgment

Justice Jarro doubted the reliability of some of Ms Evans’ evidence regarding the extent of her accident related injuries and the sequelae arising from it, however, he was not prepared to reject the entirety of her claims.

The lack of contemporaneous medical reporting and reporting to Ms Evans’ employer, RSL Care (notwithstanding her reason for doing so) was given considerable weight in the judgment. Justice Jarro was not satisfied that these deficiencies could be ameliorated by lay witness accounts of Ms Evans’ demeanor or presentation pre-accident versus post-accident.

In Justice Jarro’s reasons, he highlighted a statement by Justice Gotterson in Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2016] QCA 247 at 57 on causation:

This submission employs the assumption that because an event occurs after another, that event must have been caused by the other. Reasoning on the basis of such an assumption, as the appellant does here, is flawed logic. The flaw is deepened when the reasoning is sought to be used to exclude any other preceding event from having had a causal relationship with the event which occurs later in time.

Ms Evans was awarded damages as follows:

General Damages – $15,750

Past Economic Loss – $103

Interest on Past Economic Loss – $4.14

Past Loss of Superannuation – $9.53

Future Economic Loss – $20,000

Future Loss of Superannuation – $2,200

Past Special Damages – $1,773.08

Interest on Past Specials – $24.52

Future Special Damages – $2,500

Total – $42,364.27

Considerations

This judgment will be of interest to insurers and personal injury lawyers. It highlights the importance of considering the following matters in claims for personal injuries:

(1) when and what injuries are reported to medical practitioners and employers;

(2) letters of resignation given by plaintiffs to employers following an accident;

(3) the timing of a plaintiff’s initial attendance with their solicitors on a claim in the context of the medical evidence at that time;

(4) the stated cause of alleged accident related symptoms at all medical attendances;

(5) the questions which are likely to be put to expert witnesses at trial in cases of late reporting;

(6) whether lay evidence is likely to be of assistance in addressing late reporting of symptoms by plaintiffs.

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Kate DenningLate reporting of injury and other problems on quantum
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Offers, Costs and Rehabilitation in CTP Claims

Offers, Costs and Rehabilitation in CTP Claims

Case note: McDermott v Manley & Anor [2018] QSC 35

A Claimant has been unsuccessful in an application to the Supreme Court of Queensland for a declaration that a Compulsory Third Party (CTP) insurer’s Mandatory Final Offer (MFO) should be increased for the rehabilitation services paid by the insurer.

The application was brought with a view to allowing the Claimant to recover a higher amount for costs.

Background

Mr McDermott (Claimant) brought a claim for personal injuries arising out of a motor vehicle accident under the Motor Accident Insurance Act 1994 (Qld) against RACQ Insurance Limited (RACQ).

The claim proceeded to a Compulsory Conference. RACQ delivered a MFO stating:

‘We have considered all of the material presently available to us and we are prepared to offer your client the amount of $53,000 inclusive of all heads of damage and statutory refunds, exclusive of payments made to date to or on behalf of your client in the sum of $22,318.11. Pursuant to section 51C(6) of the Motor Accident Insurance Act (as amended), this offer remains open for a period of fourteen (14) days.’

The MFO was silent on costs. The Claimant’s solicitors responded by noting that the offer equated to a gross offer of $75,318.11.

RACQ did not provide the Claimant’s lawyers with notice pursuant to section 51(4) of the Act before funding rehabilitation. RACQ disputed the Claimant’s characterisation of the offer. The Claimant’s solicitors wrote to RACQ stating that the Claimant would accept the offer if it was for $75,318.11.

A MFO of $53,000 would limit RACQ’s liability for costs to $3,600 under the Motor Accident Insurance Regulation 2004 (Qld). An offer of $75,318.11 would allow the Claimant to recover standard costs.

The Claimant made application to the Court for a declaration that the MFO was for damages of $75,318.11, inclusive of statutory refunds and plus standard costs and outlays to be agreed or assessed.

Legislation

The relevant parts of section 51 of the Motor Accident Insurance Act 1994 (Qld) provide as follows:

’51 Obligation to provide rehabilitation services

(4) If the insurer intends to ask the court to take the cost of rehabilitation services into account in the assessment of damages, the insurer must, before providing the rehabilitation services, give the claimant a written estimate of the cost of the rehabilitation services and a statement explaining how, and to what extent, the assessment of damages is likely to be affected by the provision of rehabilitation services. 

(9) The cost to the insurer of providing rehabilitation services under this section is to be taken into account in the assessment of damages on the claim if (and only if) the insurer gave a statement to the claimant, as required under subsection (4), explaining how and to what extent the assessment of damages was likely to be affected by the provision of the rehabilitation services.

(9A) If the cost of rehabilitation services is to be taken into account in the assessment of damages, the cost is taken into account as follows-

(a) the claimant’s damages are first assessed (without reduction for contributory negligence) on the assumption that the claimant has incurred the cost of the rehabilitation services as a result of the injury suffered in the accident; 

(b) any reduction to be made on account of contributory negligence is then made; 

(c) the total cost of rehabilitation services is then set-off against the amount assessed.

Example-

Suppose that responsibility for a motor vehicle accident is apportioned equally between the claimant and the insurer. Damages (exclusive of the cost of rehabilitation) before apportionment are fixed at $20,000. The insurer has spent $5,000 on rehabilitation services. In this case, the claimant’s damages will be assessed under paragraph (a) at $25,000 (that is, as if the claimant had incurred the $5,000 rehabilitation expense) and reduced to $12,500 under paragraph (b), and the $5,000 spent by the insurer on rehabilitation will be set off against this amount, resulting in a final award of $7,500.’

Decision

The Court dismissed the Claimant’s application and in doing so, found that the Claimant had not accepted RACQ’s offer. The Claimant was ordered to pay RACQ’s costs.

Ratio

It was found that because the insurer had elected to bear the costs of rehabilitation, those rehabilitation expenses were irrelevant to the MFOs.

The judgment relied upon the analysis of the above subsections in Aldridge v Allianz Australia Insurance Ltd [2009] QSC 257.

Considerations

This judgment is the first reported case to address whether rehabilitation expenses could be added to damages in a MFO to give a Claimant a more favourable entitlement to costs.

The decision clarifies that where a CTP insurer:

(a) agrees to bear amounts by way of rehabilitation expenses; and

(b) does not provide a notice under section 51(4),

those rehabilitation expenses will be disregarded in considering the cost consequences which flow from a MFO.

The Court found that it is only in circumstances where subsection 51(9A) applies, that rehabilitation expenses may be added to the damages (of course, they must then be set off).

Prior to amendments to the legislation in 2000, the rehabilitation expenses paid by an insurer were required to be taken into account in the assessment of damages in all claims: subsection 51(9) Motor Accident Insurance Act 1994 (Qld) (Act No.9 of 1994). However, subsection 51(9) of the Motor Accident Insurance Act 1994 (Qld) (Act No.9 of 1994) was not tested in relation to costs and MFOs; and it is unclear what ‘taken into account’ meant in that repealed subsection.

The decision will be welcomed by CTP insurers.

As a matter of strategy, CTP insurers may be inclined to be more generous in their funding of ‘rehabilitation services’ to reduce their MFO and consequently, their exposure to costs. Rehabilitation may be paid at any time prior to the exchange of MFOs.

The result highlights the need for parties to take care to draft their MFOs in a way which clearly explains the offer proposed. If RACQ’s offer in this case had been drafted to refer to statutory costs, the application may have been avoided.

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Kate DenningOffers, Costs and Rehabilitation in CTP Claims
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Joyriding passenger fails in claim against driver of stolen vehicle

Case note: Captain v Wosomo [2017] QSC 86

One recent decision of the Queensland Supreme Court is a warning to Plaintiffs who seek damages for injuries suffered while engaged in criminal behaviour – you claim may be doomed to failure.

The Facts

In February 2013 four boys stole a Toyota Hilux for a joyride in Townsville. The Plaintiff (then aged 14) was a passenger in the vehicle and the Defendant (then aged 16) was the driver.

At least one of the passengers in the vehicle yelled at the driver to slow down just before the Defendant lost control of the vehicle at an intersection.  At this time, the vehicle was traveling between 80 and 90 km/h.  The vehicle crashed into a light pole and the Plaintiff suffered severe head injuries.  The Plaintiff and other boys in the vehicle were not wearing seatbelts at the time of the crash.

The Plaintiff’s guardian brought a claim on his behalf in accordance with the Motor Accident Insurance Act 1994 (Qld) against the driver of the stolen car.

The Issues

The trial concerned liability only. The issues in dispute included:

  • whether the Defendant owed the Plaintiff a duty of care;
  • whether the Plaintiff was engaged in conduct that was an indictable offence at the time of the crash for the purposes of section 45 of the Civil Liability Act 2003 (Qld);
  • whether it would be harsh and unjust to deprive the Plaintiff of an award of damages under section 45(2);
  • whether there was a voluntary assumption of risk by the Plaintiff;
  • whether the Plaintiff had engaged in a dangerous recreation activity;
  • whether the Plaintiff had been contributorily negligent by failing to wear a seatbelt.

The Judgment

Justice Daubney held that the Plaintiff was jointly complicit in the stealing of the vehicle. Counsel for the Plaintiff argued that he withdrew from the criminal enterprise when he yelled at the driver to stop. This argument was not accepted by the Court as the yelling was an attempt to stop the driver speeding but was not an attempt to withdraw from the ongoing theft of the vehicle.  The facts of this case were distinguished from the High Court’s decision in Miller v Miller (2011) 242 CLR 446, where the Plaintiff had made clear and repeated requests to get out of a stolen vehicle.

Justice Daubney held that to demonstrate withdrawal from a joint illegal enterprise, the Plaintiff would have to establish:

  • something more than mere mental change of intention; and
  • timely communication of the withdrawal; and
  • that he took such action as he could reasonably take to undo the effect of his previous encouragement or participation,

and, he could not do so.

In this case, the ongoing criminal activity at the time of the crash and the Plaintiff’s failure to withdraw from that conduct led the Court to conclude that the Defendant did not owe the Plaintiff a duty of care. Accordingly, the Plaintiff was unsuccessful.

Criminal conduct

The judgment also addressed the application of section 45 of the CLA to the claim. Section 45 of the CLA states:

‘(1) A person does not incur civil liability if the court is satisfied on the balance of probabilities that-

(a) The breach of duty from which civil liability would arise, apart from this section, happened while the person who suffered harm was engaged in conduct that is an indictable offence; and

(b) The person’s conduct contributed materially to the risk of the harm.

(2) Despite subsection (1), the court may award damages in a particular case if satisfied that in the circumstances of the case, subsection (1) would operate harshly and unjustly.’

Although it was not necessary to make findings in relation to section 45, Justice Daubney held that:

  • The suffering of personal injury was a reasonably foreseeable consequence of the illegal conduct in which the Plaintiff was a participant – i.e. the unlawful use of the vehicle;
  • The Plaintiff materially contributed to the realisation of that risk. He was an active participant in the actual stealing of the vehicle, and went along for the joyride;
  • The Plaintiff’s damages should otherwise be reduced in accordance with section 45(3), on account of the Plaintiff’s conduct, by 50%.

Voluntary assumption of risk

Although it was not necessary to rule on this point, his Honour rejected the defence’s argument that the Plaintiff had voluntarily assumed the obvious risk of joyriding in a stolen car. Justice Daubney noted that this defence rarely succeeds and that the Defendant would be unable to demonstrate that the Plaintiff freely and voluntarily agreed to incur the risk.

Dangerous recreational activity

His Honour stated that he ‘would have been loathe to find that s 19 is applicable in the current case’ and given the specific application of the section 45 defence, the Court took the view that its application excluded a finding that the Plaintiff was engaged in a dangerous recreational activity.

Failure to wear a seatbelt

In further obiter, Justice Daubney accepted the medical evidence that it would not have been possible for the Plaintiff to sustain the head injuries he suffered, if he had been wearing a seatbelt.  His Honour was satisfied that the Plaintiff was therefore contributorily negligent, although the Court was not required to rule on this point as the Defendant owed no duty of care to the Plaintiff.  His Honour said that if a duty of care were owed to the Plaintiff, he would have reduced the damages awarded to the Plaintiff by 65% because of both the contributory negligence of the Plaintiff (15%) and the criminal conduct that the Plaintiff was engaged in (50%).

Considerations

This decision will be of interest to parties involved in claims for ‘harm’ involving criminal conduct.

The judgment is the first reported Queensland case to consider the application of section 45 in the context of a passenger injured during the unlawful use of a vehicle. It case will be of particular interest to compulsory third party insurers.

It is clear from this decision that it will be difficult for plaintiffs travelling in stolen vehicles to establish that a duty of care is owed to them. And if they can, they will be faced with a section 45 defence and any other defences available to the compulsory third party insurer.

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Kate DenningJoyriding passenger fails in claim against driver of stolen vehicle
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Interstate Insurers and the National Injury Insurance (Qld) Act 2016 (Qld)

Interstate Insurers and the National Injury Insurance (Qld) Act 2016 (Qld)

National Injury Insurance Scheme – National Injury Insurance Scheme Act – National Injury Insurance Scheme Queensland – National Injury Insurance Scheme Levy – NIIS NDIS – NIIS Qld – CTP Insurance Law – CTP Insurance Lawyer – Motor Accident Insurance Act – Motor Accident Insurance Commission Qld – Motor Accident Insurance Regulation

Background

As of 1 July 2016, Queensland has a no-fault scheme for treatment, care and support for eligible persons who suffer serious personal injury caused by, through or in connection with the:

  • driving;
  • collision, or action to avoid a collision;
  • running out of control; or
  • defect causing loss of control,

of a prescribed vehicle, within Queensland.

The National Injury Insurance (Qld) Act 2016 (Qld) (NIISQA) was introduced to meet Queensland’s obligation to address the agreed federal benchmarks for the provision of treatment, care and support to persons involved in road accidents who suffer serious personal injury. The NIISQA does not affect the common law rights of Claimants for at-fault compulsory third party claims. However, the meaning of the term ‘insurer’ under the NIISQA will see the legislation operate differently in claims against interstate compulsory third party (CTP) insurers (Interstate Insurers), compared with claims against Queensland licensed insurers.

The NIISQA will be administered by the National Injury Insurance Agency, Queensland (Agency).

Meaning of ‘insurer’

The dictionary in the NIISQA defines certain words used in the Act.

The word ‘insurer’ is a word that is defined. Under the NIISQA:

insurer means an insurer under the statutory insurance scheme under the [Motor Accident Insurance Act 1994 (Qld)].’

The Motor Accident Insurance Act 1994 (Qld) (MAIA) defines the statutory insurance scheme as, ‘the insurance scheme established by [the] Act’: section 4.

Several sections in the MAIA refer to the ‘statutory insurance scheme’.  Those sections concern such matters as:

  • the obligations of licensed insurers;
  • the statutory insurance scheme levy;
  • the industry deed;
  • the functions of the Motor Accident Insurance Commission; and
  • premium rates,

and other matters that are of no consequence to Interstate Insurers.

Interstate Insurers are not, ‘insurers under the statutory scheme under the [MAIA]’.  The Transport Accident Commission (Vic) is the insurer under the statutory scheme under the Transport Accident Act 1986 (Vic).  The Territory Insurance Office (NT) administers the Motor Accidents Compensation (MAC) Scheme under the Motor Accidents (Compensation) Act 1979 (NT).  The Motor Accident Insurance Board (Tas) administers the funding and payment under Tasmania’s scheme.

While claims for damages against these Interstate Insurers are regulated by the pre-court procedures of the MAIA, those Interstate Insurers are ‘insurers’ under their own schemes; with their own statutory policies of insurance.

When an Interstate Insurer is an ‘insurer’ under the NIISQA

Under section 32AA of the Acts Interpretation Act 1954 (Qld) (AIA) a definition in an Act applies to an entire Act.  However, under section 32A of the AIA, a definition in an Act applies except so far as the context or subject matter otherwise indicates or requires.

So, if the context or subject matter of a particular section or part of the Act requires; the term ‘insurer’ could be interpreted to mean Interstate Insurers.

Section 102 is an example of a provision which requires that the word ‘insurer’ be a reference to Interstate Insurers. Under section 102, the Agency may recover, as a debt, the present day value of a participant’s future treatment, care and support from the ‘insurer’ under an interstate CTP policy of a vehicle at-fault.

A comparison between sections 42 and sections 102 of the Act, shows that the word ‘insurer’ has taken on two meanings within the Act. Section 42 provides that the Agency may be liable to contribute to the liability of an ‘insurer’. It could not have been Parliament’s intention for the Agency to be obliged, on the one hand, to contribute to the liability of an Interstate Insurer and, on the other, entitled to seek recovery from them.

Claims involving Interstate Insurers

Apart from under section 102, the word ‘insurer’ under the NIISQA does not appear to extend to Interstate Insurers. This does not detract from the obligation of the Agency to pay for the treatment, care and support of participants under the NIISQA.

With the word ‘insurer’ under the NIISQA limited to licensed insurers, the Agency has no obligation to contribute towards the liability of Interstate Insurers, against which common law claims are made. Accordingly, Claimants may pursue those Interstate Insurers for the total of their damages (apart from amounts already paid by the Agency) in the usual way. However, the Agency is authorised to pursue Interstate Insurers for recovery of the present day value of any future treatment, care and support required by the Claimant.

Interstate Insurers will need to consider their liability for common law damages in Queensland claims and statutory entitlements (including those under their own schemes) in the context of the NIISQA, the MAIA and any local legislation or policy applying to the vehicles registered interstate which they insure. Lawyers for Claimants will need to provide different advice to their clients as to the process under the Act, depending on the identity of the Insurer.

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Kate DenningInterstate Insurers and the National Injury Insurance (Qld) Act 2016 (Qld)
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InDefence covers legal and technical issues in a general way. Changes in circumstances or the law may affect the completeness or accuracy of the information published. InDefence is not designed to express opinions on specific cases, to provide legal advice or to establish a relationship of client and lawyer between Denning Insurance Law and the reader, or any third party. No person should act or refrain from acting solely on the basis of this publication. You should seek legal advice particular to your circumstances before taking action on any issue dealt with in this blog.