For the Defendant - August 2016
Welcome to the latest edition of our newsletter to keep our clients up to date with the latest developments in personal injury and insurance law in Queensland & what they mean for you.
Dangerous Doormats?
In Valentine v D & C Masters Painters & Decorators P/L [2016] QDC 203, a painter failed in his damages claim against his employer and the Crown for injuries sustained when he slipped on a doormat as he left work at a housing commission home. At issue was whether they should have identified the doormat as a hazard.
The plaintiff obtained two expert ergonomist reports from Justin O’Sullivan. For the first report, the plaintiff was unable to describe the mat other than in very general terms.
The second report was prepared after a house inspection. Judge Robertson accepted the tenant’s evidence that her then rubber-based doormat was very similar to the mat on the date of the accident. The plaintiff’s expert opined this mat posed a “moderate to very low” risk of slipping and conceded in cross-examination that he would have recommended such a mat as an appropriate response to the slip hazard posed by the doorway.
His Honour therefore concluded that there was nothing about the doormat which called for it to be inspected by an employer, or, indeed on the plaintiff’s own expert evidence, replaced.
Plaintiff Unable to Limit IME’s Scope
A plaintiff’s refusal to undergo an unrestricted orthopaedic independent medical examination proved costly in White v Ducks in a Row Pty Ltd [2016] QDC 212.
The 61 year old plaintiff had already been assessed by two neurologists in respect of an L1 crush fracture sustained in a boating accident.
The defendant briefed orthopaedic surgeon Dr Steadman to examine, inter alia, records from an orthopaedic & sports medicine centre which recorded unrelated pre-existing conditions in his hip (after a total hip replacement) and knee (as a result of a longstanding skiing injury). He recommended the insurer have the plaintiff examined by an orthopaedic surgeon to assess the combined impact of those injuries.
The plaintiff sought an order that the examination be limited to his hip and knee conditions & not include any comments regarding his spine.
Judge Butler SC found it would not be unreasonable for an orthopaedic surgeon to have regard to the plaintiff’s hip, knee and spinal conditions to express an opinion on the combined effect of those conditions on his whole person impairment and earning capacity.
His Honour thus ordered the plaintiff to undergo an unrestricted orthopaedic IME and to pay the defendant’s costs on the standard basis.
Reasonable Explanation for Delay
In Djuric v Wai Kit & Anor [2016] QDC 194, a Claimant was able to successfully proceed with her claim despite first serving her Notice of Accident Claim (“NoAC”) form on the CTP insurer 11 days after the 3 year limitation period had expired.
The Claimant, who had difficulties with the English language, had met with a solicitor within two months of her May 2013 accident – a collision with her stationary vehicle in traffic - and partially filled out a NoAC over the next 12 months as she received the necessary documentation, such as a CTP medical certificate. The NoAC was thus not lodged with the CTP insurer within the requisite 9 months.
The Claimant alleged she was told the claim form could not be submitted without providing details of her income from employment. She further submitted that she was unable to provide such information until she re-contacted her solicitors over 2 years later, by which point the 3 year limitation period had expired without her solicitors having served the NoAC on the CTP insurer.
The insurer alleged that this amounted to complete inaction over a two year period by the plaintiff without valid explanation.
His Honour found the Claimant’s explanation was unsatisfactory; however, he found that her solicitor bore part of the blame, and that no prejudice to the insurer on liability stemmed from the delay.
The insurer also alleged it had been prejudiced by being unable to conduct surveillance of the claimant and that it had been deprived of the ability to have her undergo a timely medical examination. Judge Smith did not accept either of these reasons as amounting to significant prejudice, noting that economic records would be available in respect of the former and, with respect to the latter, that it is not unusual for medicolegal examinations to occur some years after an accident.
Thus, though his Honour declined to make the order pursuant to s 39(5)(c)(i) of the Motor Accident Insurance Act 1994 (Qld) on the basis that the Claimant had not remedied the non-compliance, he nonetheless exercised his discretion to authorise her to proceed further with her claim pursuant to s 39(5)(c)(iii). However, given the delay she had caused, the Plaintiff was ordered to pay the insurer’s costs in respect of the application.