Claimant duty to cooperate with insurers in relation to court proceedings

PUBLISHED 24 Jul 2017

The recent findings of Justice Burns of the Queensland Supreme Court the matter of Behrens v Nguyen and Anor [2017] QSC 14, provide an interesting commentary on a claimant’s duty to cooperate with insurers in relation to motor vehicle accidents.

The Motor Accident Insurance Act 1994 (QLD) has a list of objectives, one of these objectives is to “encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents”.  This objective can be achieved in various ways throughout the act this article will focus on Division 4 of Part 4, which provides for cooperation between claimants and insurers.

The question asked in Behrens v Nguyen is whether the claimant must attend defendant medical examinations.

Section 46A shows that the obligation imposed on the claimant is not open-ended. Rather the claimant is not obliged to undergo examination if it is “unreasonable or unnecessarily repetitious”.

This was a case about a 25-year-old German national who was injured in a motor vehicle accident on 19 May 2012. The claimant received quite a severe burst fracture to his cervical spine at C5 which resulted in incomplete paraplegia. The claimant returned to Germany following his accident where he continued to reside. All medical appointment therefore needed to be conducted there.

Proceedings were commenced on 14 August 2015 and liability was admitted by the insurer.

Given the severity of the plaintiff’s injuries, you will find it’s not unsurprising that he had been the subject of many medicolegal reports. At the time of these proceedings the claimant had undergone 21 medical examinations including 13 for his own solicitors and 8 for the defendant’s insurer.

The claimant commissioned a report of Dr Brocks an orthopaedic surgeon who commented on the Claimant’s need for ongoing surgical revisions of each joint over the claimant’s lifetime, estimated to cost between €7 million and €10 million.

By letter dated 12 December 2014 the insurers instructed a Dr Wiesner, orthopaedic surgeon, to prepare a report in response to the claimant’s report of Dr Brocks.

The Claimant attended upon Dr Wiesner to be examined on 23 January 2015. The doctor did not produce a report until 28 May 2015. The report which was provided did not provide any estimates as to costs or any and anticipated expenses in relation to further treatment requirements of the claimant.

On 9 March 2016 the solicitors for the insurers again wrote to Dr Wiesner requesting the missing information from his report.

In the meantime on 8 March 2016 they wrote to the solicitors for the claimant requesting that he be assessed by a neuro-urologist Dr Gary.  To which the claimant’s solicitors opposed under the letter dated 4 April 2016.

On 23 June 2016 after being pestered by the claimant’s solicitors the supplementary report of Dr Wiesner’s was provided.

Upon receipt of the report the solicitors for the insurer again requested that the claimant still undergo the medical appointment with Dr Derry. The claimant’s solicitors again refused to allow the claimant to attend upon the doctor thus spawning the insurer’s application.

In his judgement Justice Burns commented that the insurer must satisfy the court the request examination is neither unreasonable nor unnecessarily repetitious.

 His honour then commented that:-

“The proper assessment requires, in my view, a careful consideration of the chance that the mooted surgeries will be required during the plaintiff’s lifetime that, in turn may very well enhance the prospects that the claim can be resolved short of a trial. I also think that for the difficulties experienced by the solicitors for the insurer in obtaining the initial and supplementary reports of the doctor support the conclusion it will be better in circumstances of this case the second opinion elsewhere”

His Honour was satisfied that in the circumstances of this case that further examination was neither unreasonable nor unnecessarily repetitious. This was not a situation where an unfavourable medical opinion had been obtained and they sought another opinion to overcome that, to the contrary the report of Dr Wiesner whether this very favourable for the defendant insurer.

Queensland personal injury cases are an inherently difficult maze to wander within.  At Gerard Malouf and Partners we streamline the process ensuring that you receive the best advice to maximise your compensation claim at every step of the process.

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