Claim dismissed due to plaintiff’s delay and non-compliance Claim dismissed due to plaintiff’s delay and non-compliance

Claim dismissed due to plaintiff’s delay and non-compliance

31 March 2017 | Compulsory Third Party (CTP)

This is a successful application for summary judgment by a CTP insurer due to the plaintiff’s history of delay and non-compliance with the procedural provisions of the MAIA.

Date Delivered: 22 December 2016

Facts

The plaintiff was injured in an accident on 9 December 2007.  She completed a notice of accident claim form on 19 February 2008 under the Motor Accident Insurance Act 1994 (Qld) (“the Act”). The claim progressed slowly, partly because she suffered many subsequent injuries and other health problems. There were also lengthy periods when her solicitors lost contact with her because changes of address were not notified to them by the plaintiff.

Consent orders were made on 3 December 2010 which gave the plaintiff leave to commence proceedings within 60 days of a compulsory conference.  A further order was made on 16 September 2015 that if the compulsory conference was not held on or before 28 November 2015, it is to be dispensed with in accordance with section 51A(5) of the Act and the plaintiff to commence her proceedings within 60 days therefrom.

No compulsory conference was held on or before 28 November 2015 or, indeed, later.  The plaintiff filed and served her claim and statement of claim on 5 February 2016. She should have done so on or before 28 January 2016 but, by her solicitors’ omission, failed to do so.

The insurer applied for summary judgment and the plaintiff applied for leave to commence proceedings under section 57(2)(b) of the Act.

Result

Summary judgment for the insurer – the plaintiff’s application was dismissed.

Decision

The judge referred to the plaintiff’s history of delay and non-compliance with the provisions of the Act, and said that while part of that was explicable by her later accidents and health problems but her failures to keep in touch with her solicitors, her delays in responding to normal requests regarding medical re-examinations and her and her solicitors’ delays, particularly during the critical period between 28 November 2015 and 28 January 2016, were not adequately explained.  While the court  was not asked not to visit her solicitors’ failings on her, the judge said that the plaintiff herself would have had great difficulty in persuading him that she had made a “conscientious effort to comply” with the Act.

Crawford v Forna & Anor [2016] QSC 309

Stewart Boland

Stewart Boland

Special Counsel