Sweetman v Ritter

INTRODUCTION 1Colleen Sweetman was injured in a motor vehicle accident on 8 January 2007. She filed a summons on 5 February 2014 seeking leave to commence proceedings under s 109 of the Motor Accidents Compensation Act 1999 ("MAC Act"). Leave is opposed. The matter raises two issues: (a)whether Ms Sweetman has provided a full and satisfactory explanation of the delay in commencing proceedings under s 109(3) of the MAC Act; and (b)whether the total damages of all claims to be awarded to Ms Sweetman satisfies the statutory minimum.

BACKGROUND 2Ms Sweetman had, prior to the accident, never previously been injured in any accident and had only ever consulted a solicitor in relation to divorce and the sale of real estate. 3The ambulance report dated the date of the accident refers to Ms Sweetman stating, "HEAD WAS THROWN BACK" and suffering "CERVICAL NECK PAIN". After the accident, she was off work for three weeks. A few days after the accident her doctor's notes record: "Neck upper Thoracic amd Cx pain, constant, 'like strain'. ...mildly tendr R>L para spinal soft tissues ... Assess Mild 'whiplash injury'." 4On a body diagram prepared at the time, Ms Sweetman indicated at that time pain in the neck and upper back and wrote, "felt an instant pain mostly on the [right] side of the neck". Ms Sweetman was given painkillers, underwent physiotherapy and was determined to be unfit for 10 days. By 23 January 2007 the doctor's note recorded "pain mainly on right side of neck". 5On 6 July 2007, doctor's notes indicate a complaint of abdominal pain that is "worse with stretch/turn" and there is in those notes a reference to her back. On 8 August 2007 Ms Sweetman was loading promotional material onto a work van and felt pain in her lower back. A visit to the doctor that day records: "S> MVA January at work, hurt back and neck, had physio; still having neck and back pain; 2 weeks ago at work felt pulling in lower back; today, picked up light box, turned, felt gradually worsening neck and low back pain ...Exacerbation of pre-existing injury ...Physio". 6A body diagram in that report indicates that the affected area was the mid to lower back. The form referred to "Niggling pain...since MVA [motor vehicle accident]" under the heading "PAST/PREVIOUS TREATMENT" and "Back really sore today occasional neck aches". 7 Ms Sweetman returned to work in December 2007 on her doctor's advice but that proved unsuccessful. She was only able to work the two hours. A similar attempt in January 2008 produced a similar result. Throughout 2008 she had injections on occasions and engaged in physiotherapy and Pilates. She gave evidence as follows: "I consulted my solicitor in relation to my workers compensation claim. I made the appointment to see the solicitor on 30 January 2009. It was not until I consulted my solicitor on this date that I knew that I had entitlements under the Motor Accidents Compensation Act and moreover that I had an obligation under that Act to lodge my claim within 6 months of the date of the accident...Quite simply I was unaware of any entitlements, rights or obligations in respect of compensation whatsoever until I consulted my solicitor on 30 January 2009. I was not advised by any person prior to my solicitor, that if I did not lodge a claim in respect of the motor vehicle accident within any period of time, let alone 6 months, that I would lose rights or entitlements to compensation. Indeed I was not even aware that I had any rights or obligations in respect of compensation." 8On 5 February 2009, Ms Sweetman served a personal injury claim form on the defendant's Compulsory Third Party insurer. The claim form referred to "BACK AND NECK INJURIES" and her past treatment of "PHYSIO FOR REHAB" and "DIAGNOSTIC INJECTIONS TO LOWER BACK". The insurer responded on 17 February 2009 seeking a full and satisfactory explanation for the delay and sought particulars of a number of matters "[t]o the extent that it is not already provided in the claim form". In June 2009, Dominic Nash, Ms Sweetman's solicitor, arranged for her to consult an orthopaedic surgeon on 28 July 2009 for a medico-legal opinion. The report was received about 3 August 2009. 9On 8 October 2009, Mr Nash asked the insurer to concede that Ms Sweetman's injuries exceeded the non-economic loss threshold and made an application for a MAS permanent impairment assessment. On 14 October 2009, Mr Nash supplied the insurer with the Medicare, hospital and medical authorities the insurer had requested. On 17 December 2009 the plaintiff's explanation for delay in serving the claim form was provided to the insurer. The insurer rejected the application on 21 December 2009 and on that same day Mr Nash made an application for a special assessment with the Claims Assessment & Resolution Service ("CARS") in respect of the late claim. On 8 January the Motor Accidents Authority acknowledged receipt of the special assessment application and indicated a period of time until 8 February 2010 for the insurer to respond. 10The orthopaedic surgeon conducted the MAS assessment on 29 January 2010, three weeks after the three-year period for commencing proceedings in court expired. On 16 February 2010, a preliminary conference in respect of the CARS application was held. Further preliminary conferences were held on 12 March 2010 and 20 May 2010. Both parties filed written submissions in respect of the late notification of the claim. By the third preliminary conference, the insurer conceded that the explanation was full but continued to maintain it was not satisfactory. On 9 June 2010 the CARS assessor gave reasons for her decision, upholding Ms Sweetman's application for the special assessment. The assessor accepted Ms Sweetman was unaware of her rights until she consulted a solicitor and accepted that a reasonable person in the position of Ms Sweetman would have been justified in experiencing the same delay in lodging the claim. 11Shortly thereafter, on 15 July 2010, the insurer contacted Mr Nash stating, "[W]e are interested in arranging a settlement conference". 12As a consequence of the insurer's invitation to attend a settlement conference, Mr Nash began undertaking steps to prepare the claim, including obtaining comparable earnings from Ms Sweetman's former employer and obtaining counsel's advice on quantum. The settlement conference was organised for 16 November 2010. The conference did not proceed, the insurer notifying Mr Nash about that time that it was "not in a position to negotiate a settlement of the Plaintiff's claim and that the settlement conference would need to be postponed". Also at that time, on 11 November 2010, the insurer requested further particulars from Mr Nash of Ms Sweetman's claim and those particulars were supplied on 27 May 2011. Further arrangements for a settlement conference were made and a settlement conference was held on 25 October 2011. The matter did not settle. 13On 6 November 2011 the insurer sent a further request for particulars and tax records and advised of a medical appointment arranged by the insurer for Ms Sweetman to attend an orthopaedic surgeon, Dr Brian Noll. That occurred on 17 May 2012. After that appointment, the insurer requested further authorities from Ms Sweetman. On 31 July 2012, the insurer arranged another appointment with Dr Noll for 31 January 2013. On 27 September 2012, the insurer served a s 81 notice admitting fault in the accident but denying liability due to the late service of the claim. The letter continued: "Please be advised that we do not accept the decision of the Assessor in respect to the section 96 Special Assessment and suggest that you seek an exemption of this matter as we do not consider ourselves bound by the decision and suggest that it would be a waste of the parties costs proceeding through CARS." 14Ms Sweetman did not receive notification of the January 2013 medico-legal appointment with Dr Noll. The insurer wrote on 12 April 2013 advising of a further appointment with Dr Noll on 2 December 2013. That was subsequently brought forward to 20 August 2013. On 14 May 2013 the insurer again wrote about seeking an exemption in these terms: "We refer to our Section 81 Notice dated 27 September 2012 and request that you seek an exemption of this matter from CARS on the basis that we have admitted fault but denied liability. Please be advised that we do not accept the decision of the Assessor in respect to section 96 Special Assessment and suggest that you seek an exemption of this matter. Could also confirm with your client that she is pursuing her claim". 15Mr Nash responded the next day, noting the request regarding the exemption and seeking to be informed of the basis why the insurer was not bound by the assessor's decision. After Ms Sweetman attended on Dr Noll in August 2013, on 2 October 2013 the insurer wrote in the following terms: "We confirm we have determined this matter is ready to participate in a Section 89A conference. Would you kindly provide your available dates and times in the next month. We are instructed to lodge a CARS application to attempt to move the matter forward if the matter does not settle at the conference. We look forward to hearing from you and we propose to conduct the conference by telephone." 16A s 89A conference, or the readiness and willingness of a party to participate in such a conference, is a necessary prerequisite to a CARS general assessment of the claim (see s 89A(2) and (3)). The conference was scheduled for 20 November 2013. The conference did not take place due to miscommunication between the insurer and its solicitors. In any event, Ms Sweetman made an exemption application to CARS on 13 November 2013. The insurer accepted that the claim was an "exemptible claim". A CARS exemption certificate was issued on 12 December 2013 and received by the plaintiff's solicitor on 16 December 2013. The summons was filed at the beginning of the new term.