Komuda v Parmaxidis

Relevant Provisions in the Act

1. Section 86 of the Act provides as follows: "86 Medical and other examination of claimant (1) A claimant must comply with any request by the person against whom the claim is made or the person's insurer: (a) to undergo a medical examination by one or more medical practitioners nominated by that person or insurer, or (b) to undergo a rehabilitation assessment, an assessment to determine functional and vocational capacity or an assessment to determine attendant care needs, by an assessor nominated by that person or insurer, or (c) to undergo an assessment in accordance with Motor Accidents Medical Guidelines, not being, in any such case, an examination or assessment that is unreasonable, unnecessarily repetitious or dangerous. (2) Any such examination or assessment is at the cost of the person who requests it. The claimant may decline to undergo the examination or assessment unless that person pays the claimant a reasonable sum to meet the reasonable and necessary costs and expenses incurred by the claimant in connection with the examination or assessment. (3) A claimant must comply with any request by a medical assessor or the Authority to undergo a medical examination or an assessment by the medical assessor for the purposes of a medical assessment under Part 3.4. (4) If the claimant fails without reasonable excuse to comply with such a request: (a) the claim cannot be referred to the Authority for assessment under Part 4.4 and any such assessment cannot be continued while the failure continues, and (b) court proceedings cannot be commenced or continued in respect of the claim while the failure continues. (5) The regulations may prescribe a rate at which the cost of travel by any specified mode of transport is to be calculated for the purposes of the payment of travel costs under this section."
2. Section 109 of the Act provides as follows: 109 Time limitations on commencement of court proceedings (1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after: (a) the date of the motor accident to which the claim relates, or (b) if the claim is made in respect of the death of a person - the date of death, except with the leave of the court in which the proceedings are to be taken. (2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued. (3) The leave of the court must not be granted unless: (a) the claimant provides a full and satisfactory explanation to the court for the delay, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident. (4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. (5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim."
3. Section 110 of the Act provides as follows: "110 Insurer may require claimant to commence court proceedings (1) The insurer of a person against whom a claim is made may give the claimant notice requiring the claimant to commence court proceedings in respect of the claim if: (a) the claimant has been entitled to commence the proceedings for a period of at least 6 months, and (b) at least 18 months have elapsed since the date of the motor accident to which the claim relates. (2) The claimant must comply with the notice within 3 months after its receipt. (3) If the claimant does not comply with the notice as required by this section, the claimant is taken to have withdrawn the claim. (4) A claimant whose claim is taken to have been withdrawn by the operation of this section may apply to a court of competent jurisdiction for reinstatement of the claim. (5) The court may reinstate the claim if the court is satisfied that the claimant has a full and satisfactory explanation for the failure to comply with the notice."

Evidence for the Defendant

1. The plaintiff relied upon the affidavit of Mr Malley, solicitor, sworn on 18 June 2019 (DX1). His affidavit establishes that by a letter dated 9 November 2017 the CTP insurer (GIO) issued a s 110 notice.
2. The notice refers to an exemption certificate issued on 12 April 2016 by the Claims Assessment and Resolution Service (CARS) in accordance with s 92 of the Act, as the insurer had denied liability. The notice asserted that as six months had elapsed since the date of the Exemption Certificate, and 18 months had elapsed since the date of the accident, the insurer required the plaintiff to commence court proceedings. The notice stated that under s 110 (3) of the Act if the claimant did not commence court proceedings within three months, the claimant was taken to have withdrawn the claim.
3. As previously noted, the Statement of Claim was filed on 15 April 2019.
4. The affidavit of Mr Malley also establishes that the defendant arranged the following medical examinations for the plaintiff: 1. Dr Martin Allan, psychiatrist, on 1 May 2018; 2. Dr Ian Barrett, orthopaedic surgeon, on 29 May 2018.
5. The plaintiff did not attend either examination. GIO incurred non-attendance fees. At the date of Mr Malley's affidavit, the plaintiff had not provided any explanation for his failure to attend the medical appointments with Dr Allan and Dr Barrett.
6. The defendant also relied upon the affidavit of Ms Varela, solicitor, dated 30 August 2019 (DX2). Ms Varela annexed to her affidavit email confirmations of the sending, to the plaintiff's solicitor, of the letters concerning the medico-legal appointments. Her affidavit also annexed email confirmation of the insurer advising the plaintiff's solicitors that the claimant had not attended the medical appointments.

Evidence for the Plaintiff

1. The plaintiff swore an affidavit on 28 August 2019. He instructed his solicitors on 4 March 2016 to act on his behalf in relation to the motor vehicle accident which occurred on 6 February 2016. At that time he lived at Picnic Point. He continued to reside there until 8 October 2016.
2. In October 2016 he moved to Mooloolaba in Queensland where he still lives. He has been at the same address in Mooloolaba since moving.
3. On 18 September 2018 he was contacted by his solicitors, enquiring whether he had received any correspondence from GIO or its solicitors Moray & Agnew. He confirmed that he had received nothing. No correspondence had been redirected to him from his previous home address in Picnic Point. He had no recollection of the GIO contacting him by telephone for a long time and he did not recall any telephone call from the GIO indicating that they wanted to close his file.
4. On 26 September 2018 the plaintiff flew to Sydney for a conference with his solicitors.
5. The plaintiff swore an affidavit on 28 August 2019 (PX3) as follows: 1. He had not received the s 110 notice; 2. He had not received any letters advising him of medical appointments organised by GIO; 3. He did not attend the medical appointments organised by GIO as he had not been advised of them by anyone.
6. The plaintiff tendered an affidavit of Dominika Walkowiak sworn on 27 August 2019 (PX1). Ms Walkowiak is a "legal executive" under the supervision of Mr Zreika, the solicitor for the plaintiff. Ms Walkowiak provided the following chronology: 1. 16 February 2016 - Personal Injury Claim Form served by the plaintiff's previous solicitors. 2. 4 March 2016 - plaintiff's solicitors Drexler Litigation Lawyers (Drexler) instructed by the plaintiff. 3. 1 April 2016 - GIO denied liability for the claim by way of a s 81 notice. 4. 1 April 2016 - GIO lodged an application for exemption with CARS. 5. 12 April 2016 - claim exempted from CARS and Exemption Certificate issued. 6. 12 September 2016 - Ms Huynh solicitor took over conduct of the claim from Ms Zugaj the previous solicitor at Drexler. 7. 19 June 2017 - Drexler served the report of Dr Ali seeking the insurer's concession in relation to Whole Person Impairment (WPI). 8. 8 March 2018 - Drexler served the report of Dr Dixon seeking the insurer's concession in relation to WPI. 9. No response was received from GIO to either of these letters. 10. 16 April 2018 - GIO sent a letter to Drexler requesting s 85A particulars. 11. 4 May 2018 - Drexler filed an application for assessment of a Permanent Impairment Dispute with the Medical Assessment Service (MAS). 12. 10 June 2018 - GIO served its MAS Reply. 13. 27 July 2018 - Ms Walkowiak took over conduct of the matter from Ms Huynh, subject to the supervision of Mr Zreika. 14. 14 August 2018 - Drexler was notified that Moray & Agnew had received instructions to act on behalf of the GIO. 15. 6 September 2018 - Moray & Agnew advised Drexler that GIO wished to close its file, due to the plaintiff's non-compliance with a s 110 notice. In the same letter Moray & Agnew noted that the plaintiff failed to attend the insurer's medical appointments on 1 May 2018 and 29 May 2018. 16. 14 September 2018 - Ms Walkowiak reviewed the file and found that it did not contain the correspondence referred to in the Moray & Agnew letter dated 6 September 2018. Specifically, the file did not contain any letters from GIO dated 9 November 2017 or 20 March 2018, advising of medical appointments. The review of the file by Ms Walkowiak indicated that in the period between 1 April 2016 and 16 April 2018, Drexler did not receive any correspondence from GIO. Ms Walkowiak also checked the firm's legal software and confirmed that there was no record of any incoming telephone calls from GIO. 17. 18 September 2018 - Ms Walkowiak contacted the plaintiff and asked about the correspondence which GIO had allegedly sent to the plaintiff. He confirmed that he had not received any letters from GIO or Moray & Agnew. 18. 26 September 2018 - a conference was held with the plaintiff and Mr Zreika and the plaintiff again confirmed that he had not received a s 110 notice. 19. 26 September 2018 - plaintiff underwent an assessment with Dr Crane, MAS Assessor. 20. 11 October 2018 - Mr Zreika wrote to Mr Malley, stating that the file had been reviewed and that no s 110 notice had been received by the plaintiff's solicitors at any time. The letter pointed out that since the alleged s 110 notice, GIO had requested particulars on 16 April 2018 and the matter had progressed to the MAS on 3 May 2018, with no objection by GIO. Mr Zreika said: "That conduct is, it is respectfully submitted, inconsistent with your client Insurer having adopted the view that a s 110 notice it had apparently served many months earlier had expired and thus the claim was withdrawn in accordance with s 110(3). Indeed, it is entirely at odds with any such assertion." 1. There was no response from Moray & Agnew to the letter from the plaintiff's solicitor dated 11 October 2018. 2. 12 April 2019 - Drexler served s 85A particulars upon the Moray & Agnew. 3. 15 April 2019 - the court proceedings were commenced. 4. 6 May 2019 - the Statement of Claim and the Statement of Particulars was served upon the defendant by post. 5. 7 May 2019 - further medical assessment with Dr Jones, MAS Assessor. 6. 7 June 2019 - Moray & Agnew requested particulars. 7. 11 June 2019 - the Defence, alleging breaches of the Act, was filed.
7. Ms Walkowiak swore another affidavit dated 4 September 2019. She referred to the affidavit of Ms Varela which annexed emails sent to the Drexler. Ms Walkowiak deposed that the emails were sent to the email address of a Ms Karim, who ceased her employment with Drexler in May 2017. Thus the emails dated 21 March 2018 and 4 May 2018 were sent to an email address which was no longer in use.

Consideration of Section 110 of the Act

1. Counsel for the defendant submitted that it was to say the least "unusual" that all of the letters, being the s 110 notices, had not been received. He submitted that the court would have to determine whether the evidence of denial of receipt was acceptable. In relation to the plaintiff, counsel for the defendant conceded that the evidence showed that he had moved address and that no mail had been forwarded to him from Sydney to Queensland. Counsel properly conceded that if the court was not satisfied that the s 110 notice had been received, then that part of the motion had to fail.
2. It is not enough for an insurer to simply create or issue a notice under s 110 of the Act. Section 110(1) speaks of the insurer giving the claimant notice. Section 110(2) speaks of the "receipt" of the notice by the plaintiff. Clearly enough, if the notice has never been received by the plaintiff, then there can be no obligation upon the claimant to comply with the notice as required by s 110(3).
3. Counsel for the defendant submitted that the court should infer from the form of the s 110 notice sent to Drexler that it was posted to Drexler and would have been received. I decline to draw that inference. Ms Walkowiak gave sworn evidence, and was not cross-examined. I find as a fact that Drexler did not receive the s 110 notice dated 9 November 2017. I find as a fact that the plaintiff himself did not receive the s 110 notice. The mere fact that the s 110 notice dated 9 September 2017 was addressed to Drexler at a post office box is simply evidence that the notice contained those words. No organisation can be expected to produce direct evidence that a particular piece of correspondence was put in the post. However, in such cases it is common for evidence to be given of standard practice within the organisation, which then provides some evidence from which the court might draw the inference that the notice was sent by post. No such evidence was called in the present case. There must be a system at GIO in relation to the posting, or sending by other means, of such notices. No such evidence was called.
4. I accept the submission of counsel for the plaintiff that the evidence shows that the notice was not received by the plaintiff and was not received by Drexler.
5. That being so, there was no failure by the plaintiff to comply with the notice. If there had been failure to comply with the notice, within three months after its receipt, then the plaintiff would be taken to have withdrawn his claim. Since the giving of the notice has not been established, and the receipt of the notice has not been established, non-compliance with the notice has not been established. For these reasons the application in paragraph 1 of the motion fails.
6. Counsel for the plaintiff also submitted that in any event the notice was defective and was a nullity. This submission was founded upon the decision of Judge Neilson of this court in Kalazich v Yang [2012] NSWDC 261.
7. In view of the conclusions expressed above, I do not need to decide whether or not the notice was a nullity.

Consideration of s 86(4)

1. Counsel for the defendant submitted that there were two interpretations open in relation to s 86(4) of the Act. The first interpretation was that the "failure" of which the sub-section speaks, was a failure to attend a medical examination. The second interpretation was that the "failure" was a failure to provide a reasonable excuse. Counsel for the defendant advanced the second interpretation as the correct one. He further submitted that there was an obligation on the defendant to provide his reasonable excuse to the insurer before commencing proceedings.
2. I reject that submission. Section 86(1) of the Act provides that a claimant must comply with any request to undergo a medical examination. The Macquarie Dictionary defines "request" to mean "the act of asking for something to be given or done". The common sense understanding of request is that it is an act of asking, conveyed by one person to another.
3. In the present case the "request" purportedly made directly to the plaintiff did not come to his attention. He had moved before the request was sent, and no letters were forwarded from his old address in Sydney to his new address in Queensland.
4. In relation to the copy of the "request" sent to Drexler, the evidence establishes clearly that it was sent by email to an email address at Drexler of a person who was no longer employed there. It is a common misconception that simply because an email is sent, it must be received. If no-one is looking at that email address, then it cannot be said that that person has received their email.
5. Counsel for the defendant submitted that from the form of the letter of request, the court should draw the inference that the request was also posted to Drexler. True it is that it is a common practice to create a letter addressed to a postal address, post that letter, and then send it by email as confirmation. However, common experience is also that letters in that form are sometimes sent by email, but no hard copy is ever sent or posted. In the present case, there was uncontroverted evidence from Ms Walkowiak that no letter of request for a medical examination had ever been received by Drexler. In the absence of any cross-examination, or any other reason to doubt that evidence, I find that the two requests for medical examination sent by the GIO were not received by Drexler. There was therefore never any effective request communicated by the insurer to Drexler.
6. So far as the two interpretations of s 86(4) put forward, I do not need to decide which is the correct interpretation, as there was no "request" and thus no "failure". However, in deference to the careful argument of counsel for the defendant, I will indicate my view. When s 86(4) says "if the claimant fails without reasonable excuse to comply with such a request" it does not require the claimant to provide such excuse before commencing proceedings, and it does not require the claimant to provide a reasonable excuse to the insurer. What it requires is that if the claimant has failed to comply with the request, the court must determine whether the claimant has a reasonable excuse for failing to comply with the request. That requires the court to look at what excuse the claimant had, at the date of the failure to comply. There is no reason to read into s 86(4) the additional words which would be necessary, if the defendant's preferred construction were to be adopted. The enquiry that the court embarks upon is whether the claimant has a reasonable excuse for failing to comply. The enquiry is not whether such reasonable excuse was communicated to the insurer before proceedings were commenced.
7. If I am wrong in my finding that there was no request, then I find that the plaintiff has a reasonable excuse for failing to attend the two medical examinations. He had no idea that the appointments had been made. Nor did his solicitors.
8. For those reasons the application in paragraph 2 of the Motion fails.

Costs

1. Counsel for the defendant submitted that even if the defendant's motion failed, there should be an order that the plaintiff pay the defendant's costs of the motion. He submitted that there had not been a full response to the letter from Moray & Agnew dated 6 September 2018 to Drexler (Annexure "L" to DX1). The first paragraph of that letter referred to GIO serving the s 110 notice requiring the claimant to commence proceedings. The second paragraph read: "Does the claimant intend to seek leave from the court to reinstate his claim? If so, please outline the facts, matters and circumstances upon which he proposes to rely as constituting a full and satisfactory explanation for his delay in commencing proceedings as required by the s 110 notice."
2. The letter went on to note that GIO had requested particulars pursuant to s 85 by a letter dated 16 April 2018 with no response. The letter also noted that in breach of s 86 the claimant had failed to attend medical assessments arranged by GIO with Dr Allan and Dr Barrett and "that no reasons for his failures to attend have been provided".
3. The letter required Drexler to respond.
4. The response was the letter dated 11 October 2018 from Drexler to Moray & Agnew (annexure "M" to DX1). It provides an explanation about the assertions concerning the s 110 notice. The letter confirms that the s 110 notice was never received by Drexler and was never received personally by the plaintiff. The response said nothing about the s 85 particulars or the failure to attend the s 86 medical examinations. However, one reading of the letter from Moray & Agnew is that it calls for a specific response in relation to the s 110 notice, but simply notes the failures to comply with s 85 and s 86. That letter did not require explanations to be provided for those failures. I do not think that the omission in the Drexler letter to deal with any excuse for failing to attend the medical examinations has any great significance.
5. Counsel for the defendant also submitted that no explanation in relation to the s 110 notice or the failure to attend the medical examinations was advanced until the affidavits were filed on the motion in late August 2019. However, in relation to an explanation for the s 110 notice, it should be noted that such explanation was provided, in the same terms advanced on the motion, in the letter from Drexlers to Moray & Agnew dated 11 October 2018, referred to above.
6. There is some attraction in the submission that the plaintiff could have provided his explanation concerning the failure to attend the medical examinations earlier than the affidavits filed on the motion. However, as counsel for the plaintiff pointed out, even after those affidavits were served, there was no change of heart by the defendant, which chose to pursue the motion: 1. in relation to s 110, when an explanation had been provided by the solicitor for the plaintiff back in October 2018; 2. in relation to s 86(4) when an explanation had been provided by the affidavits served in late August 2019.
7. During oral submissions, I raised with both counsel the notion that the fairest costs order might be that costs of the motion be costs in the cause. As recited above, there is a contest on liability. If I make an order that costs of the motion be costs in the cause, then if there is no negligence, the defendant will get the costs of the motion, even though it has failed on the motion. If the plaintiff succeeds in establishing liability, then he will get his costs of the motion, upon which he has succeeded.
8. In the circumstances, I have come to the conclusion that the fairest order in relation to costs of the motion would be to order that costs of the motion be costs in the cause. While this course was opposed by counsel for the defendant, it was consented to by counsel for the plaintiff.

Conclusion and Orders

1. My orders are: 1. Dismiss the defendant's Notice of Motion filed on 11 June 2019. 2. Order that costs of the motion be costs in the cause.

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