October 30, 2019

Insurance litigation

Singh v Hill & Anor [2019] QCA 227

In August 2012, the Appellant/Claimant was involved in a motor vehicle accident in Queensland for which the circumstances and liability to cause of same were in dispute.  About eight months post-accident, the Claimant submitted a Notice of Accident Claim Form. Nearly three months later, the Claim Form was said to be complaint with the Motor Accident Insurance Act 1994 (Qld) (“MAIA”). Subsequently further investigations were undertaken both with respect to the accident itself and to the Claimant’s medical conditions.

The initial three year limitation period expired in August 2015. Before such expiry, the Second Respondent / RACQ considered it inappropriate to proceed to a compulsory conference at that time because it was awaiting a report in relation to the circumstances of the accident. An informal three month extension was given to November 2015. Subsequently, three further extensions were sought by RACQ in October 2015 and February and May 2016. This was for the same reasons as the initial extension. The Claimant obtained three extensions thereafter until 24 May 2017 for various reasons. All extensions and non-reliance on the initial three year limitation period by RACQ was done on an informal basis.

At various times, the Claimant’s former solicitors provided to the Claimant a schedule of damages and sought her instructions to provide that to RACQ. Such permission was not given by the Claimant. The Claimant said that it did not mention her psychiatric injuries and which were not said to be stable or stationary.  The only other step prior to commencing proceedings was to participate in a compulsory conference and exchange mandatory final offers as required by the MAIA. 

Shortly prior to the expiry of the informal extension in May 2017, RACQ said it was reluctant to allow a further informal extension given the matter had been ongoing for almost five years. It wanted to know what the Claimant was doing to progress the matter and that it appeared that an application to extend the limitation with directions may be necessary. The Court took this as being an application pursuant to section 57(2)(b) of the MAIA. This was not relayed by the Claimant’s former solicitors to the Claimant, who essentially advised that RACQ would not agree to any further extension of the limitation period and for the Claimant to make an offer to settle. There was no mention of an application to extend the limitation period. The Claimant’s former solicitors said to the Claimant that they could not do anything further because she was not providing them with instructions to make an offer to settle, which she was not comfortable with because her psychiatric injuries were not stable and there being no mention of such injuries in the schedule of damages previously completed. Further correspondence from the Claimant’s former solicitors to the Claimant in December 2017 referred again to same.

Subsequently, the Claimant sought new solicitors, approaching at least six firms and requesting her former solicitors’ file in December 2017. The Claimant’s current solicitors did not receive the file until August 2018, then met the Claimant in September 2018 at which time her solicitors thought the Claimant may not have capacity to provide instructions due to psychiatric reasons. A report was obtained from a psychiatrist whose opinion was that the Claimant had been lacking capacity to effectively instruct solicitors from the first half of 2013.  Subsequently, an application was filed with QCAT that someone be appointed the Claimant’s administrator for instructions in relation to her motor vehicle claim. This was in October 2018.  In January 2019, such appointment was made by QCAT. In February 2019, the application pursuant to section 57(2)(b) of the MAIA was made, which was dismissed.

Why the discretion to alter the period of limitation was not exercised at first instance:

The alteration of the limitation period is discretionary. A claimant needs to show good reason why the discretion should be allowed in their favour, taking into account to allow same would deprive a defendant of a defence to the claimant being statute barred, the interest of justice concerning any prejudice and whether a fair trial can proceed and the length and reasons for the delays associated with the need for the application.

The Court found that the Claimant was not conscientious in pursuing her claim by way of failing to give instructions to provide an offer of settlement. The lack of capacity issue was rejected by the Court as being inconsistent with other psychiatric reports and the Claimant’s actions generally in the claim demonstrating that she had knowledge of the limitation period and what was required in relation to generally progressing her matter. Prejudice was also said to be of relevance so far as it being over six years since the accident and almost two years since the expiry of the last informal extension of the limitation period. 

The appeal was allowed – why?

On appeal, the Court found that the Claimant was in fact sufficiently conscientious in proceeding with her claim. An early Notice of Accident Claim form was submitted and she had otherwise complied with pre-court steps other than providing a settlement offer and attending a compulsory conference. The reasons were associated with the previously mentioned issues with the schedule and to her ongoing unstable psychiatric injuries. This was found to be a reasonable course of action by the Claimant not to proceed with a compulsory conference. Further, her former solicitors’ advised her, at an early stage, that it was not recommended to resolve her matter until stabilisation of her injuries had occurred and had been assessed. The Claimant had told her former solicitors of her concerns to same.

The delay was not only relating to informal extensions of the limitation period sought by the Claimant (about 9 months) but also by RACQ (about a year). Responsibility for the delay to RACQ did not appear to have been considered at first instance. The Claimant’s mental state gave some explanation as to the difficulties the Claimant said she experienced in complying with the pre-court steps. There were a number of matters unrelated to the accident eg., deaths in the family and travelling etc. At first instance, the Judge found that delays were associated with the Claimant’s personal circumstances.  Based on only passing reference and/or no mention of other factors, and as related to the Claimant’s mental state and that she was generally proactive in contacting her former solicitors, this was not found to be an appropriate reason for not exercising the discretion. The delay could have been minimised by proceeding with a section 57(2)(B) of the MAIA application post-May 2017 informal extension. 

No prejudice to RACQ was found despite the time that had passed since the accident. RACQ had early notice of the accident and had been able to undertake investigations in relation to both liability and quantum / the Claimant’s medical conditions. 

Her previous solicitors effectively refused to proceed unless the Claimant made an offer. She subsequently looked for alternative legal representation and time associated to same and proceeding to file the application to extend the limitation period provided a reasonable explanation for the ongoing delay.   

Orders were subsequently made that the Claimant may commence proceedings within 60 days of a compulsory conference pursuant to section 57(2)(b) of the MAIA .

Implications.

This decision reiterates that where claimants have shown a willingness to engage with insurers to undertake the pre-court requirements of the MAIA, where there is reasonable excuse for the delay why proceedings have not been commenced prior to the limitation period expiring and in circumstances where there is no prejudice to the Defendant, the above discretion is more than likely to be given.  The interest of justice as a whole to both parties needs to be considered, essentially to what is fair and just in the circumstances.

The outcome of the appeal may have been different if RACQ could have established significant prejudice impacting their ability to properly and fully investigate the claim.  This is more likely to be in circumstances where there is late notice of an accident claim and/or after the expiry of the limitation period initially. In such case, people’s memories of an event may have faded or are potentially now unreliable, people have passed away and/or physical evidence in relation to the circumstances of the accident no longer exist or have been destroyed for whatever reason.