By David Slatyer, Partner and Mitchell Dunk, Lawyer

The case of Bona v Jeffries & Anor [2021] QSC 84 should serve as a salutary warning to insurers not to delay in making arrangements for independent medico-legal examinations following the commencement of litigation in Queensland.

Background

This Decision of the Supreme Court of Queensland pertains to applications arising in the context of claim for damages by Mr Michael Anthony Bona (the Plaintiff), who sustained personal injuries in a motor vehicle accident on 24 November 2018.

The Plaintiff initially brought a notice of claim against the CTP insurer for the at-fault vehicle and complied with the various pre-litigation steps required by the Motor Accident Insurance Act 1994 (MAIA), culminating in a compulsory conference on 11 March 2020. When the claim did not resolve, the Plaintiff filed proceedings in the Supreme Court of Queensland on 9 April 2020.

At the conclusion of the conference the Plaintiff’s solicitor made arrangements for him to be examined by Stephen Hoey, Occupational Therapist (Hoey provided a written report dated 19 August 2020) and invited the defendant to submit their own panel of specialists in accordance with section 46A of the MAIA.

On 29 October 2020, the defendant submitted a panel of three occupational therapists, Cameron Fraser, Xavier Zietek and Anne White. The plaintiff agreed to an assessment with Mr Zietek, but on the condition it take place within three months.

Over the following weeks the parties corresponded on the issue as the defendant’s specialists did not have availability until April or May 2021 (i.e. outside the three-month timeframe) and the Plaintiff objected, believing it would cause unreasonable delay. No alternative specialists were nominated and no appointment was ever confirmed.

On 21 December 2020, the Plaintiff served a Request for Trial Date and stated the Plaintiff would object to further medical review given the “unreasonable delay” that had occurred. The defendant’s solicitor responded advising he was happy for the Request to be completed but with the attendance of the Plaintiff “upon an occupational therapist” as a matter outstanding.

On 21 February 2021, the Plaintiff warned of an application under the Uniform Civil Procedure Rules 1999 (UCPR) complaining of unreasonable delay in signing and returning the Request for Trial Date. The next day, the defendant’s solicitor issued a response stating he was not “trying to delay the litigation” and was “trying to get some OT’s who can examine [the Plaintiff] within a three month period”, indicating the defendant would sign the Request provided an occupational therapy assessment was noted as outstanding on the Request.

The plaintiff’s solicitor stated he “will not agree to undergoing a review by an Occupational Therapist” and again warned of an application to dispense with the Defendant’s signature if the Request was not returned by 1 March 2021.

The signed Request was not returned by 1 March 2021, and on 5 March 2021 the Plaintiff filed an application. Six days later the defendant filed an application for orders pursuant to section 46A and section 50 of the MAIA, that the Plaintiff submit to an examination with an Occupational Therapist.

Positions of the Parties

At the hearing of both applications, counsel for the Plaintiff submitted that the insurer had ample opportunity to provide a panel of medical specialists for the Plaintiff’s consideration, but had squandered that opportunity through “tardiness and inactivity.” The solicitor swore an affidavit which relevantly contained a list of several occupational therapists he believed to have availability to examine the Plaintiff in March and April 2021.

Counsel for the insurer submitted that there could be no prejudice occasioned to the Plaintiff by requiring an examination, as a trial date was unlikely to be allocated prior to the second half of 2021. It was also submitted that there was a “lack of appropriate specialists in this area” and contended that the defendant would be at a, “significant forensic disadvantage if the opinions of Mr Hoey are not answered.”

Decision

Byrne J found in favour of the Plaintiff ordering that the defendant’s signature on the Request for Trial Date be dispensed with and also dismissing the defendant’s application for orders requiring an occupational therapy examination.

In reaching that decision, Byrne J noted a key objective of the MAIA was to “encourage the speedy resolution of personal injury claims from motor vehicle accidents,”[1]  which was, in part, enabled by the provisions of Division 4 of Part 4 of the MAIA requiring, “meaningful cooperation between claimant’s and insurers.”[2]

His Honour criticised the “lengthy delay” of the defendant in making the arrangements for an examination and expressly rejected the submission that a lack of appropriate specialists in the area had contributed to the delay:

“I cannot accept that submission. Although it may very well be the case that occupational therapists within the defendant’s preferred stable of experts are limited in number, the unchallenged evidence is to the effect that there are many outside that stable who were able to assess the plaintiff within a relatively short period of time”[3]

His Honour held that the obligation imposed on a claimant by section 46A of the MAIA (i.e. the provision requiring the claimant submit to an examination in absence of agreement between the parties) was “not open ended” and that although, “the defendant has the statutory right to obtain the necessary and relevant information to defend claims made against it,” the defendant, as a party to the proceeding, “impliedly undertook to proceed in an expeditious way” consistent with rule 5 of the UCPR.

His Honour stated:

“if an order for examination was made after such unexplained delay, it would mean that parties to a proceeding of this type could feel free to ignore their obligations under the UCPR without consequence and…such an outcome would do little to satisfy one of the principal objectives of the Act”[4] (i.e. the requirements of rule 5 of the UCPR)

His Honour also cautioned that the Plaintiff’s specialist Mr Hoey was, “not to be regarded as some sort of partisan mouthpiece for the plaintiff,” and that as an expert he owed a “clearly defined and overriding duty to assist the court.”[5]

Key Takeaways

Insurers and their solicitors in Queensland will need to be aware of the risk of waiting to ask the claimant to submit to an independent medico-legal examination, and the risk of selecting only experts with long wait times. In a particular case, such as, it may be regarded as unreasonable delay.

The claimant’s obligation to submit to independent examination is not open ended, and a court may not accept that the defendant be entitled to its preferred experts.

This is likely to be the case not only with CTP claims but also public liability and workers compensation claims in Queensland, as the legislation is similar[6].

Expect renewed resistance from plaintiff solicitors when seeking medico-legal examinations once a claim becomes litigated, particularly if there is any delay of more than 3 months and the matter is otherwise ready to proceed to trial.

[1] Motor Accident Insurance Act 1994 (Qld) s 3(g)

[2] Motor Accident Insurance Act 1994 (Qld) pt 4 div 4

[3] Bona v Jeffries & Another [2021] QSC 84, [29]

[4] Ibid [31]

[5] Ibid [30]

[6] Section 25 of Personal Injuries Proceedings Act 2002 (Qld) and Section 282 of the Workers Compensation and Rehabilitation Act 2003 (Qld) is similar to section 46A of the MAIA