June 25, 2016 | 1264 ViewsInsurer defeated on jailbird’s injury claim strike-out due to own delay

A CTP insurer’s failure to “put its own house in order” in readying a case for trial has put paid to a bid to strike out for delay, an injury compensation claim by the victim of a vehicle assault that occurred in Mackay in September 2009.

Brent Winner admitted intentionally driving his Holden Commodore into his victim at his grandmother’s Slade Point home – where he resided with de facto Erin Jaenke and their baby – but claimed the attack was in self-defence.

Due to his “sporadic incarceration” and his failure to maintain regular solicitor contact, Isiaha Corowa’s claim stalled after he filed a District Court lawsuit in September 2012.

But it was not until 12 months after Brent Winner’s unexpected death in October 2014, Allianz filed an application to dismiss the lawsuit by reason of the ongoing delays in finalising the case.

Corowa’s delinquency in the claim for serious injuries to his foot, was his failure to file a statement of loss and damage and list of documents due by 2012’s end. Allianz though only met its equivalent obligation in August 2014.

Allianz claimed to have been prejudiced by the delay given Brent Winner’s death, his grandmother’s “fading memory” and Jaenke’s apparent disappearance.

All three had given statements to police and to Allianz’s accident investigator.

Winner’s version of the alleged violent conduct he was defending against – Corowa’s repeated beating of his grandmother with what he thought was an axe – was comprehensively recorded in a nine page sworn police interview record.

21-year-old Winner had claimed that prior to the assault, Corowa or one of his two companions, had thrown rocks at the house and a bottle at his car. Driving into him was a last resort to stop the melee, as by that time the two others had armed themselves with fence palings.

The Queensland’s Court of Appeal agreed Corowa’s approach to his claim was “casual in the extreme” but considered his delay should not be considered “in a vacuum”.

Having itself shown no great haste – Corowa argued – Allianz could hardly contend it had been “unfairly prejudiced” by reason of his tardiness now that Winner had died.

Justice Jim Henry – in delivering the lead judgement – agreed. Allianz’s “ambivalence towards the pace of litigation,” evidenced also in a 3 month delay in handing over a loss adjustor’s accident report, ruled out that argument.

In his view “neither party had been diligent in pressing the matter forward”.

But what of the prejudice Allianz claimed in respect of grandmother Winner’s “fading memory”?

That assertion was supported only by a passage in its lawyer’s affidavit of a brief telephone conversation with her.

“It’s hardly surprising that a witness of any age some years after an event might indicate that she had difficulty remembering it’s sequence,” observed His Honour. “When such a witness is given the time and advantage of refreshing her memory from her two witness statements” her recollection is likely to improve.

The court also observed that Alianz’s claim of “extreme difficulty” in locating Erin Jaenke, was “obviously deficient”.

All that had been done to locate her was for an investigator to call at a particular address in Dysart, liaise with Dysart police and search on Facebook.

No attempt be made to speak to Erin’s mother in Dysart or to “undertake comprehensive searches on the basis her whereabouts were unknown”.

All of Allianz’s arguments were tossed out and Corowa’s claim will proceed to hearing in the near future. Brent Winner’s written statements will be able to be relied on as can Jaenke’s, should she not be able to be found after a comprehensive search.

Allianz Australia Insurance Limited v Corowa [2016] QCA 170 Morrison JA and North and Henry JJ 21 June 2016

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