Australian Associated Motor Insurers Limited v McPaul [2006] QSC 301

SUPREME COURT OF QUEENSLAND CITATION: Australian Associated Motor Insurers Limited v McPaul [2006] QSC 301 PARTIES: AUSTRALIAN ASSOCIATE MOTOR INSURERS LIMITED (applicant) v MATTHEW McPAUL (respondent) FILE NO/S: BS 7440/06 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court, Brisbane DELIVERED ON: 6 October 2006 DELIVERED AT: Brisbane HEARING DATE: 5 October 2006 JUDGE: White J ORDER: Application dismissed. CATCHWORDS: PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – respondent four years old in 2000 when motor accident in question occurred – respondent suffered severe acquired brain injury as result of accident – respondent’s mother submitted notice of claim in 2000 – applicant insurer seeking that respondent provide particulars of claim and supporting documentation pursuant to s 45 of the Motor Accident Insurance Act (1994) – premature to quantify the respondent’s needs which would sound in damages Limitation of Actions Act 1974 Motor Accident Insurance Act 1994, ss 40, 45 Australian Associated Motor Insurers Ltd v McPaul [2005] QSC 278 Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1 COUNSEL: S C Williams QC for the applicant M Grant-Taylor SC for the respondent -- 1 of 5 -- 2 SOLICITORS: Jensen McConaghy for the applicant Murphy Schmidt for the respondent [1] The applicant (AAMI) has applied for orders that the respondent provide particulars of his claim pursuant to s 45 of the Motor Accident Insurance Act (1994) (“the Act”) together with a list of relevant supporting documents. [2] The respondent who is now aged 10 years and 11 months sustained injuries when he was struck by a motor vehicle as he crossed on to a road at Palm Beach on 27 August 2000 from a median strip planted with shrubbery. His injuries included: • severe traumatic brain injury; • fractured base of skull and orbit; • pulmonary collapse and contusion of the right lung; • soft tissue injury to left face and scalp; • multiple abrasions. [3] He is presently in Grade 5 at Caningeraba State School and is in receipt of a special education program. Professor Barry Nurcombe, a specialist in child and adolescent psychiatry assessed the respondent for AAMI on 7 March 2006 and concluded that he does not suffer from a psychiatric disorder but he does suffer from the effects of severe traumatic brain injury. [4] The respondent’s mother has consented to her appearance as litigation guardian for the purpose of this application. She submitted a notice of claim to AAMI pursuant to s 37 of the Act in September 2000. It was accepted as a compliant notice of claim. AAMI contends that having given that notice the respondent is obliged to co-operate with it as directed by s 45 of the Act and in particular provide details of the claim and supporting documentation. [5] Mr S C Williams QC for AAMI submits that the object of the Act of speedy resolution of personal injury claims resulting from motor vehicle accidents which is reflected in the time limits throughout Part 4 of the Act (claims) together with a strongly articulated mutual duty of co-operation between claimant and insurer dictate that once a notice of claim is given neither infancy nor mental incapacity can derogate from expedition. [6] Section 40 of the Act provides: “(1) A claimant’s obligation to comply with this division is suspended during the claimant’s minority or a period of legal incapacity. (2) A period within which the obligation is to be complied with begins when the claimant’s minority or legal incapacity ends. (3) However, this section does not prevent a claimant, or a person acting for the claimant, from complying with an obligation under this division during the claimant’s minority or legal incapacity.” -- 2 of 5 -- 3 Mr Grant-Taylor concedes that s 40 does not apply expressly to s 45 since that provision is in Division 4 but would inform its construction. [7] The issue at this point in the progress of the claim is not so much whether the respondent’s infancy (or mental incapacity if it be sufficient to be so characterized) entitles him to decline to progress his claim until he is aged 21 years (or some unknown future date for unsoundness of mind) but rather, whether the consequences of his severe acquired brain injury have sufficiently stabilized to allow a just resolution of his claim to occur. Liability is very much an issue between the parties. [8] That a compliant s 37 notice of claim has been given on behalf of the respondent even though an infant does suggest an obligation to co-operate. That there is no obligation to give a notice of claim is clearly expressed in s 40. However, having given a complying notice there is nothing other then s 40 to suggest that the following provisions are not to apply to the claim. The Limitation of Actions Act 1974 is concerned with bars on commencing proceedings in a court. The situation may arise that the compulsory conference, not having brought about a resolution between the parties, an infant or person under a disability could wait many years before being obliged to commence proceedings. Such a person would be vulnerable to an application to stay those proceedings but the success or otherwise of that procedure would be dependent on the particular facts. [9] I would not wish to decide finally if, up to the point of commencing proceedings, the protection of the Limitation of Actions Act could be asserted because I think the matter can be resolved for this application without doing so. It may be noted that AAMI sought orders last year that the respondent be required to commence proceedings to determine liability as a preliminary issue by resort to the obligation to co-operate in s 45. The Chief Justice concluded that that provision did not derogate from a person’s right to commence proceedings in court at a time of his choosing within the time limits imposed by the Limitation of Actions Act, Australian Associated Motor Insurers Ltd v McPaul [2005] QSC 278. [10] There is persuasive evidence to suggest that it would be premature to quantify the respondent’s needs which would sound in damages. I refer particularly to aspects of some of the reports which have been exhibited to Mr Jensen’s affidavit filed on behalf of the applicant. Robyn A Murray, a consultant psychologist, examined the respondent on 27 April 2006. She concluded: “6.9 The brain injury that Matthew sustained in childhood has had an adverse impact on his subsequent cognitive and social development. In particular, when brain damage occurs prior to the emergence of a particular skill or early in a particular stage of development of that skill (e.g. reading) the greater will be the chance of impairment. In addition, impairment in basic skills can impair acquisition of other skills, such that a deficit in one cognitive domain can lead to problems in other related domains. This can result in an accumulation of ‘primary’ and ‘secondary’ impairments that can be reflected in global impairment on cognitive testing. -- 3 of 5 -- 4 The full impact of the brain injury on development of frontal lobe (executive) functioning is often not seen until the frontal lobe become fully mature in early to late adolescence. Executive functioning is central to social functioning. Executive dysfunction will disable the person in some way by preventing or diminishing his or her ability to participate in certain activities resulting in a neurobehavioural disability. A neurobehavioural disability comprises elements of executive dysfunctioning including deficits of attention, diminished insight, poor social judgement, labile mood, problems with impulse control and a range of personality changes that when combined with specific cognitive problems and premorbid personality characteristics can lead to serious social handicap undermining a persons’ capacity for independent social behaviour. … 6.11 I would consider that Matthew’s neuropsychological status is relatively stable. I do not consider that there will be further improvement in his cognitive functioning – instead, is likely that he will fall further behind his age-peers because of the impact of his brain injury. That is, his rate of cognitive development will not keep pace with that of children of his age. … 6.13 With respect to treatment recommendations, from a neuropsychological perspective I do not consider that Matthew currently requires any treatment. However, provision should be made for psychological counselling (behaviour management) in the future. While Matthew presents as a happy lad at present, behaviour problems may become more evident as he enters adolescence. He will continue to require the highest level of learning support at school and an estimate of future costs of this support should be obtained from an education professional” . [11] Doctor Terry Coyne, a neurosurgeon, who examined the respondent on 24 April 2006 on behalf of AAMI said at p 5 of his report: “It is currently almost six years since Matthew’s motor vehicle accident. At 10 years of age, Matthew’s development is not complete. However his deficits have been stable and consistent over time, and are unlikely to change in nature with further time. For purposes of impairment assessment it is reasonable at this point to consider Matthew as having reached maximum medical improvement. It is unlikely that assessment carried out when his development is complete will be significantly altered from the present”. That opinion relates to the acquired brain injury itself. [12] Doctor Barry Nurcombe who examined the respondent on behalf of AAMI on 7 March 2006 said at p 17 of his report: “… He does not currently suffer from a psychiatric disorder; however, as he becomes more aware of the discrepancy between his abilities and -- 4 of 5 -- 5 those of others of the same age, it is possible that he will develop an Adjustment Disorder.” [13] This is not a situation like that which was considered in Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27, a decision of the High Court of Australia of 14 June 2006, where proceedings were commenced in the Supreme Court of New South Wales in 1996 within time, because of the mental disability of the plaintiff, in respect of injuries sustained in a motor vehicle accident which occurred in 1965 and where a stay was imposed because of the likelihood that a fair trial could not be had. From almost immediately after the accident AAMI has been informed of the fact of the accident. The respondent has co-operated in being examined by numerous specialists of its choice. AAMI contends that the respondent through his advisers seeks to delay matters to maximise his damages. All that means is that the respondent wants to have an assessment which will more appropriately compensate him when his needs are more particularly crystallized. The quantum of his damages is still somewhat uncertain. The speedy resolution of claims also requires the just resolution of those claims. It is timely to recall by analogy the observations in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 per Dawson, Gaudron and McHugh JJ at 155 and Kirby J at 174. [14] The application is dismissed. Counsel have asked that they be given an opportunity to address costs after the delivery of these reasons. -- 5 of 5 --