Bayfield v Allianz Australia Insurance Limited & Anor [2016] QDC 71

DISTRICT COURT OF QUEENSLAND CITATION: Bayfield v Allianz Australia Insurance Limited & Another [2016] QDC 71 PARTIES: LYNELLE GRACE BAYFLIED (plaintiff) v BENJAMIN ROSS SIEMON (LEASEPLAN AUSTRALIA LTD) (first defendant) AND ALLIANZ AUSTRALIA INSURANCE LIMITED (ACN 000 122 850) (second defendant) FILE NO/S: 153/14 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: Maroochydore District Court DELIVERED ON: 1.4.16 DELIVERED AT: Maroochydore HEARING DATE: 19.2.16 JUDGE: Robertson DCJ ORDER: Application dismissed. Order the plaintiff pay the second defendants costs of the application to be assessed on the standard basis, in any event. CATCHWORDS: INSURANCE; MOTOR VEHICLE ACCIDENT; LIABILITY; where the applicant sustained injuries in a motor vehicle collision; where the defendants have admitted liability; where the applicant seeks payments for medical and pharmaceutical expenses, whether these expenses were reasonably and appropriately incurred because of the plaintiff’s injuries pursuant to section 42(1) of the Motor Accident Insurance Act 1994; whether the insurer has breached its duty under the Act to make payments for -- 1 of 8 -- 2 medical and pharmaceutical expenses “reasonably and appropriately incurred”. Legislation considered Motor Accident Insurance Act 1994 Uniform Civil Procedure Rules 1999 (Qld) Cases considered Aldridge v Allianz Australia Insurance Ltd [2009] QSC 257, COUNSEL: de Plater, P. for the applicant Morton, R. for the respondent SOLICITORS: Schultz Toomey O’Brien Lawyers for the applicant McInnes Wilson Lawyers for the respondent [1] The plaintiff sustained injuries in a motor vehicle collision on 15.2.2012. She commenced proceedings in this Court by way of Claim and Statement of Claim filed 25.9.14. In the Defence filed 10.11.14, the Defendants admitted liability. The only issue therefore is the extent of the Plaintiffs injuries and the causal link between her symptoms and the admitted negligence of the First Defendant. [2] On 2.2.16, the Plaintiff filed an application in the following terms: “1. An Order, pursuant to section 50(2) Motor Accident Insurance Act 1994 that the Second Defendant, pursuant to section 42(1) Motor Accident Insurance Act 1994 make payments to the Plaintiff for medical and pharmaceutical expenses reasonably and appropriately incurred because of the Plaintiff’s injuries. 2. The Second Defendant to pay the Plaintiff’s costs of an incidental to the Application. 3. Such further or other Orders the Court deem meet”. [3] In support of the application, the plaintiff filed an affidavit, with annexures relating to various expenses for procedures she says have been reasonably and appropriately incurred because of injuries she suffered in the motor vehicle collision. That affidavit, with annexures, numbers 100 pages. She also relies on an affidavit by her Solicitor which with annexures numbers over 580 pages. -- 2 of 8 -- 3 [4] The relevant sections (as referred to in the application) are ss 42(1) and 50(2) of the Motor Vehicle Insurance Act 1994 are in the following terms: “42 Payment of medical expenses etc. (1) Once liability has been admitted, it is the duty of the insurer to make payments to or for the claimant for private hospital, medical and pharmaceutical expenses reasonably and appropriately incurred because of the injury or a proportionate part of the expenses reflecting the extent of the insurer’s responsibility (assuming the claimant to be guilty of contributory negligence as asserted by the insurer) …… 50 Court’s power to enforce compliance with divs 2, 3 and 4 (2) If an insurer fails to comply with a duty imposed under division 3 or 4, the court may, on the claimant’s application, order the insurer to take specified action to remedy the default within a time specified by the court”. [5] As can be seen from the plaintiff’s affidavit, the expenses relate primarily to chiropractic services rendered to the plaintiff by Doctor Lavery and Dr Moore (neither of whom are medical doctors); there are small components for pharmeucticals, and for medical expenses. Section 42(1) does not in its terms refer to services such as chiropractic or physiotherapy, and these probably came within the definition of “rehabilitation”, defined in s 4 as: “rehabilitation means the use of medical, psychological, physical, social, educational and vocational measures (individually or in combination)— (a) to restore, as far as reasonably possible, physical or mental functions lost or impaired through personal injury; and (b) to optimise, as far as reasonably possible, the quality of life of a person who suffers the loss or impairment of physical or mental functions through personal injury”. -- 3 of 8 -- 4 [6] It is of no moment here as s 51 of the Act, dealing with the insurer’s obligation to provide rehabilitation services, is also qualified, in s 51(3) that such services are “reasonable and appropriate”. [7] The Second Defendant’s position here is that the expenses claimed are not “reasonable and appropriate” as they are not related to any injury sustained as a consequence of the Second Defendant’s negligence. [8] Neither experienced Counsel could find any authority on the precise issue here, but Mr Morton was able to refer me to Aldridge v Allianz Australia Insurance Ltd [2009] QSC 257, a decision of Applegarth J in relation to s 51. In that case, his Honour was considering a claim where the plaintiff was a paraplegic as a result of a motor vehicle accident for which the insurer had accepted liability; and an application to determine what kind of accommodation constitutes reasonable and appropriate rehabilitation services in the circumstances. Although obviously distinguishable on its facts, his Honour’s observations at [47] – [48] are apposite here: “[47] The insurer’s obligation under s 51(3) of the Act to ensure that “reasonable and appropriate rehabilitation services are made available to the claimant” is to be construed in accordance with the remedial intent of the legislation, and not constrained so that services will only be found to be reasonable and appropriate if they and their cost match a head of damages in a personal injuries action. The requirement that the services be “reasonable and appropriate” and directed towards rehabilitation governs the insurer’s obligation under s 51(3). The expected outcome of the personal injuries action is a relevant consideration in deciding what is “reasonable and appropriate” in the circumstances of the case. However, a distinction exists under the Act between “rehabilitation” which is concerned with measures to optimise, as far reasonably possible, the quality of life of a claimant, and the assessment of damages in a legal proceeding. [48] Decisions under s 51(5)(b) are made in the shadow of the future trial or settlement of a damages claim. In deciding what rehabilitation services -- 4 of 8 -- 5 are “reasonable and appropriate” I should have regard to the applicant’s personal injuries claim and the likely date of trial at which she will receive an award of damages, the purpose of which is to restore her to her pre-accident condition and satisfy her accident-caused needs, so far as money can”. [9] On the hearing of this application on 19.2.16, I set the matter down for trial in August 2016, so clearly issues of causation will be decided then. [10] The position of the second defendant was clearly articulated to the plaintiffs Solicitors after receipt of a report from Dr Dickinson dated 17.7.2013. He had examined the plaintiff at the behest of the second defendant. [11] The second defendant had paid a number of chiropractic and other expenses prior to this but have paid none since 17.7.2013. Demand for reimbursement of $12,604.93, being for services rendered since 17.7.2013, was not made until 10.9.15, in a letter which did not reach the Second Defendant’s solicitor until 15.9.15. That letter also threatened “to bring application … should a satisfactory outcome not be forthcoming or in a timely manner”. The second defendant’s solicitor replied by fax on 18.9.15. He wrote: “The costs for which your client is seeking reimbursement are a contested head of damage and the recoverability or otherwise of such sums will be a matter for determination at a trial. As you are aware, our client will assert that the effects of the motor vehicle accident were minor and lasted for a period of the order of 3 months. Similar treatment to that now claimed as related to the accident was being utilised prior to the accident for pre-existing conditions and the necessity of any such treatment since the accident is also the subject of dispute on the medical evidence. It is therefore inappropriate for our client to reimburse these expenses and an application to the Court is not an appropriate forum for this dispute, as -- 5 of 8 -- 6 the Court will need to have regard to all of the evidence to be presented at trial to determine whether your client is entitled to recover such expenses. This matter is ready to proceed to trial and we have served a Request for Trial Date on you under cover of our letter dated 5 August 2015. You have not signed and filed this request. Doing so will allow the matter to be brought on for trial so that this issue can be properly resolved. Please sign and file the Request for Trial Date without further delay”. [12] An Amended Statement of Claim was filed on 18.1.16 which essentially amended the alleged personal injuries sustained in the incident, but not in a manner that relevantly affects the issue here. [13] Despite the earlier threat to bring an application, the application was not filed until 2.2.16. Why the demand was not made sooner, particularly after the Insurer stopped re-imbursements after receipt of Dr Dickinson’s report, is not explained. The duty to proceed expeditiously, articulated in r 5 Uniform Civil Procedure Rules 1999 (Qld), is an on-going duty on all parties. [14] The plaintiff’s solicitors in fact signed the Request for Trial Date prior to the hearing on 19.2.16, but after filing the application. Disposition [15] In a more recent report, Dr Dickinson had had the opportunity to read a report of Dr Lavery dated 14.2.13, and also the notes of Dr Moore. Dr Lavery referred to a presentation on 19.1.12 (i.e. prior to the accident) in which the plaintiff presented with: “5. The Lavery Chiropractic report of 14 February 2013 (MWC-12) shows the Plaintiff presented on 19 January 2012 with: (a) “Weird stuff” like change in perception going up stairs, driving with light in the rain and filling the mower; (b) Her fourth left toe was affecting her dancing (possibly because a steel table fell on her toes in July 2011 – see -- 6 of 8 -- 7 Lavery Chiropractic Confidential Patient Introduction – MC-30); (c) Cervical range of movement decreased 25 per cent right lateral flexion and 75 per cent left lateral flexion; (d) Lumbar range of movement 50 per cent loss of flexion, 25 per cent loss of right rotation and rotation extension; (e) Weak right deltoids, biceps, triceps, opponens; left dorsi flexors; (f) Left Trendelenderg – unsteady on her left leg (i.e. the test was positive). 6. The Plaintiff’s confidential patient introduction form for Lavery Chiropractic on 19 January 2012 (Ex. MWC-30) recorded problems with: (a) Low back; (b) Sacroiliac joint; (c) Knee (pain diagrams indicates right knee); (d) Toe; (e) Eyes/perception; (f) Possible mini stroke. 7. The form also indicated: (a) The pain was there “mostly” and “John helps”; (b) That the pain level at the time was 4/10; (c) That the pain level averaged over the previous week had been 5/10; (d) That the pain at the worst it had been over the previous week was 10/10; (e) The Plaintiff, in answer to a question of how this had affected her life, said “very badly in the past”; (f) The Plaintiff in answer to a question of how this had affected her work said “Painful working. Can’t lift, stand or sit consistently since 2002.”” -- 7 of 8 -- 8 [16] Dr Dickinson did not alter his opinion previously set out on 17.7.13, that the plaintiff had 0 % impairment from the injuries sustained in the motor vehicle collision, which, in practical terms, is summarised in the second defendant’s solicitor’s letter dated 18.9.15. [17] Mr de Plater refers in his written outline, to opinions expressed by Doctors (both treating and medico-legal assessments) that disagree with Dr Dickinson. Dr Campbell (a neurologist), who saw her as a result of a request of the GP dated 18.11.15, opined that “physiotherapy, alternative therapies and modification of activities” might assist. There is no suggestion that he had access to the Lavery report or the notes of the other chiropractor, nor does a comment like this to a GP have any weight in assessing the issue here. [18] Mr Morton’s analysis in his written outline, read in conjunction with Exhibit 1 (the list of expenses) does indeed suggest that the bulk of the expenses relate to treatments for pre-existing conditions, or do not relate to the injuries she says she sustained in the incident. Indeed, he goes further, by reference to the actual notes of the chiropractors; and says that a lot of the expenses paid (prior to 17.7.13), appear to be for treatments for pre-existing or unrelated conditions. This is explained by the fact that what was forwarded to the insurer was the receipt for payment for what was universally referred to as “chiropractic spine correction”. As his analysis demonstrates, it also appears that a number of medical expenses have been wrongly paid. [19] The reasonableness and appropriateness of the expenses claimed will largely be resolved at trial which is now set for August. The plaintiff has failed, at this point, to satisfy me that the Insurer has failed to comply with any duty imposed under division 3 or 4 of the Act. The application is of course an appeal to my discretion, and my refusal of the application is also informed by the delay in bringing it expeditiously after the Insurer’s position was made clear after 17.7.13. [20] The application is dismissed. I order the plaintiff to pay the second defendants costs of the application to be assessed on the standard basis in any event. -- 8 of 8 --