What is Public Liability? In Queensland, public liability claims are governed under the Personal Injuries Proceedings Act 2002. Public liability...
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The Motor Accident Insurance Act 1994 (QLD) (‘Act’) governs the operation of Queensland’s Compulsory Third Party (CTP) insurance scheme. It is common for Claimants to undergo medico-legal assessment when pursuing a claim for damages arising out of a motor vehicle accident.
Pursuant to s 46A of the Act, a Claimant must comply with a request by the insurer to undergo, at the insurer’s expense, a medical examination by a doctor, or an assessment of cognitive, functional, or vocational capacity by a suitably qualified expert. However, a claimant is not obliged to undergo such an examination or assessment if it is unreasonable or unnecessarily repetitious.
The interpretation of this section was recently considered by the Supreme Court of Queensland in Bona v Jeffries [2021] QSC 84.
Mr. Michael Bona brought a claim for damages arising out of a motor vehicle accident that occurred on 24 November 2018. A compulsory conference was subsequently convened on 11 March 2020, with Mr Bona filing proceedings thereafter on 9 April 2020.
Mr. Bona’s solicitors then arranged for him to attend upon an Occupational Therapist, Mr. Stephen Hoey, for the purposes of obtaining a medico-legal report. Mr. Hoey provided a report dated 19 August 2020. Mr. Bona’s solicitors also invited the insurer to provide a panel of three suitably qualified experts, pursuant to s 46A of the Act, should the insurer wish to have Mr Bona assessed.
On 29 October 2020, a panel of three occupational therapists was submitted by the insurer, with Mr. Bona agreeing to an assessment with Mr Xavier Zietek, provided this assessment take place within three months. Thereafter, there was a protracted back and forth between the parties, with it becoming evident that Mr Zietek would not be able to assess Mr Bona until April or May 2021.
On 21 December 2020, Mr Bona served a Request for Trial Date on the insurer. Mr Bona objected to any further medical review, relying on the “unreasonable delay” that had transpired to that date. Solicitors for the insurer advised in response that he was happy to sign the Request for Trial Date, provided it included Mr. Bona’s attendance upon an occupational therapist being a matter outstanding. Further correspondence was passed between the parties in relation to the issue, but a Request for Trial Date was never executed by the parties.
On 5 March 2021, Mr Bona filed an application, seeking an order pursuant to r 469 of the Uniform Civil Procedure Rules 1999 (Qld), dispensing with the signatures of the defendants on a Request for Trial Date. On 11 March 2021, the defendants also filed an application for an order pursuant to ss 46A and 50 of the Motor Accident Insurance Act 1994 (Qld) requiring the plaintiff to submit to an assessment by an occupational therapist.
In the court’s decision, Byrne J observed that one of the objects of the Act is to “encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents”. Byrne J also noted that whilst s 46A of the Act imposes an obligation on a claimant to undergo a medical examination at the insurer’s request, this obligation is not “open-ended”, but instead must not be “unreasonable or unnecessarily repetitious”.
Byrne J was critical of the “lengthy delay” by the insurer in making arrangements for an assessment of Mr Bona. He also dismissed submissions made by counsel for the insurer that there were “a lack of appropriate specialists in this area” whom could assess Mr Bona in a timely manner”, opining that: –
“Although it may very well be the case that occupational therapists within the defendants’ preferred stable of experts are limited in number, the unchallenged evidence is to the effect that there are many outside that stable who were able to assess the plaintiff within a relatively short period of time.”
Bryne J ultimately found in favour of Mr Bona, ordering that the signatures of the defendants on the Request for Trial Date be dispensed with. The defendants’ application for an order requiring the plaintiff to an assessment by an occupational therapist was dismissed.
It is important that claimants are aware of the obligations imposed on them by the Act, but also of the limits of these obligations. Bona reinforces that a claimant’s obligation to be medically assessed at the insurer’s request is not an open-ended one.
Whilst not considered by the court, it appears likely that similar restrictions on assessments would apply with respect to workers’ compensation and public liability claims, given the governing law for both schemes utilise similar statutory provisions pertaining to medico-legal assessment as the Motor Accident Insurance Act 1994 (QLD).
If you require assistance in relation to a CTP claim, please do not hesitate to contact us.
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