Basics – Clinical Notes, Credibility & Late Notice

On 27 January 2017, Judge Staude of the WA District Court delivered his decision in the matter of Stojceska -v- Muharemovic [2017] WADC 9. The Plaintiff was a young woman who was allegedly injured in a collision at an intersection. She was a passenger and the Defendant was the driver. The amount awarded in damages was just $272.20.

There are 3 useful points to take from the decision, from a claims management perspective.

Firstly, His Honour did not accept the evidence of the Plaintiff. Findings of fact were made to the effect that the Plaintiff had not reported injuries from the accident for some time, had long gaps when she did not make complaints at all and had extensive treatment and management in the meantime. In reaching the conclusion he did about credibility, His Honour placed significant weight on the discrepancies between the Plaintiff’s evidence and the clinical files of her treating medical practitioners.

Secondly, the Defendant’s insurer ran a ‘late notification’ defence pursuant to s 29 of the Motor Vehicle (Third Party Insurance) Act 1943. The crash was on 13 March 2012. Notice of Intention to Claim was not given until 25 August 2014. His Honour supplied a useful summary of the law relating to a late notification Defence. The Plaintiff applied to be excused from her late notification by s 29A of the MV Act. Staude J found that notice was not given “as soon as practicable” after the crash. His Honour also found that the Plaintiff’s failure to give notice in time was not a result of “mistake, inadvertence, or other reasonable cause”. However, he did not accept that the Defendant had proved prejudice. In fact, he found that the availability of the clinical files and the “full record” of the Plaintiff’s management since the crash had given the Defendant what it needed to defend the claim.

Thirdly, His Honour was critical of certain aspects of the Plaintiff’s pleading of her alleged injuries. Four separate bodily regions were identified, but the Plaintiff pleaded that “a precise diagnosis was yet to be given”. Further, the Plaintiff alleged that further particulars could be extracted from the medical reports to be discovered. His Honour said that it was “inappropriate” to plead that the necessary particulars will be provided in the form of medical reports.

This decision reminds Defendants of the need for careful preparation on the issues of causation and credibility. It is useful to note that there remains a difficult – but not insurmountable – evidentiary onus on the insurer to run a late notification defence. The point to prove is that there is some “real” prejudice to the insurer by the late notification. It is also worth noting that challenges to vague pleading of injuries should be considered at an earlier stage in the proceedings. Using formal requests for further and better particulars should be encouraged.