STOJCESKA V MUHAREMOVIC  WADC 9 HEARD BY HIS HONOUR STAUDE DCJ, DECISION DELIVERED 27 JANUARY 2017.
The requirement for the Insurance Commission of WA (the Commission) to demonstrate "material prejudice" when claiming that a plaintiff failed to give notice of an intention to make a claim for injuries in a motor vehicle accident was recently considered again in the case of Stojceska v Muharemovic  WADC 9.
This decision also provides an example of how credibility issues can adversely impact on plaintiff's claim.
On 13 March 2012 the plaintiff was a passenger in the defendant's Ute, which crashed into the rear of another vehicle.
The evidence was that the impact was significant, with the plaintiff apparently striking her knees on the dashboard, despite wearing a seatbelt and the air-bag deploying.
The plaintiff did not notify the Commission of her intention to make a claim for her alleged injuries until 25 August 2014 – nearly 2.5 years after the crash.
At trial, the plaintiff alleged that she had sustained knee, hip, and back injuries in the accident, as well as PTSD and a major depressive disorder.
Issues in dispute
The Commission sought to prevent the plaintiff from making a claim by reason of the delay in notifying of her intention to make a claim, pursuant to Section 29 of the Motor Vehicle (Third Party Insurance) Act (the Act).
Section 29 requires a plaintiff to give notice in writing to the Commission of their intention to make a claim as soon as practicable after an accident. A failure to do so prevents a claim from being made.
The Commission asserted that it had suffered prejudice as a result of the plaintiff's delay in providing notice of her intention to make a claim. This was on the basis that the delay denied the Commission the opportunity to verify the plaintiff's injuries contemporaneously (i.e. to arrange an independent medico-legal review shortly after the accident).
The plaintiff alleged that the failure to notify the Commission was because she had initially hoped the injuries would resolve, and that she had been unaware of the obligation to provide notice to the Commission. She sought relief under Section 29A.
Section 29A provides that the Court may allow a plaintiff's claim to continue, notwithstanding Section 29, where the failure to give notice was due to mistake, inadvertence, or any other reasonable cause and the Commission was not materially prejudiced by the failure to notify.
If the plaintiff was able to continue with her claim, the Commission submitted that the evidence was that she had sustained no injury, or only a very minor injury, in the accident.
There was extensive consideration of the plaintiff's medical records and her reports of symptoms to different practitioners.
Relevantly, the plaintiff attended her GP a week after the accident but no made complaint of any injury from it. She was seen in relation to tiredness and difficulty concentrating at university.
She subsequently saw her chiropractor some six weeks after the accident. The plaintiff did not report knee or hip pain on the patient questionnaire she completed, but the clinical notes recorded that she had right hip pain one month before, right knee pain, and that she had hit her right knee on the glovebox in the accident. This was the first documented report of injury to the hip and knee.
The plaintiff's case was that the accident caused damage to both hips and knees, soft-tissue inflammation in the lumbar spine, PTSD, and a major depressive disorder.
Staude DCJ did not accept the plaintiff's suggestion that the delay in making the claim was because she had hoped to recover. His Honour considered that, prior to being diagnosed with a left hip injury some time later, the plaintiff did not attribute any injuries to the motor vehicle accident.
Accordingly, it was necessary to determine whether the Commission had been prejudiced by the delay in notifying of the plaintiff's intention to make a claim.
His Honour noted the plaintiff's entire medical history was available to the Commission and that the real issue was whether or not the injuries were accident-related (i.e. causation). A contemporaneous medical review arranged by the Commission would not have revealed more than the medical records demonstrated about the plaintiff's symptoms.
His Honour also noted this was not a case where the Commission had been prejudiced by being unable to verify the plaintiff's complaints in a timely manner, given the plaintiff's actual medical history was known and, for most of the period between the accident and making a claim, the plaintiff did not attribute any significant injury to the accident. Accordingly, the plaintiff was entitled to proceed with the claim pursuant to Section 29A.
His Honour then went on to consider the question of whether the injuries alleged were caused by the accident, and the issue of the plaintiff's credibility.
He observed that the plaintiff did not attribute any physical injuries to the accident until six weeks later, and did not complain of psychological symptoms from the accident until some three years after the accident. The expert medical evidence was that the plaintiff would have experienced significant pain and would likely have reported this to a doctor shortly afterwards.
His Honour considered the plaintiff was an unreliable historian, with inconsistencies between her evidence of pain from the time of the accident and the medical records for that period. Her complaints of psychological symptoms were noted to be from the demands of study and work, an abusive personal relationship, and an assault, with no reference to the accident until being seen by a medico-legal psychiatrist in 2015.
His Honour held that the injuries sustained in the accident would have been minor, required no immediate treatment, and would have resolved within a short period of time.
Accordingly, His Honour assessed the plaintiff's general damages below the statutory threshold, found she had sustained no economic loss, and awarded the plaintiff only special damages, in the sum of $272.70.
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