Written by Peter CarterApril 20, 2012
As Vanessa Morris was calmly driving along the Logan motorway, building materials and engine parts began raining on her car, as if from nowhere. She lost control and careered her car into the concrete motorway barriers.
Vanessa’s symptoms worsened overnight and after presenting to Gold Coast Hospital emergency the next day to be cleared of fractures or major injury, she took several days off work to recuperate at home. In the six months after the smash in March 2005, regular chiropractic treatment seemed to yield some improvement.
She learnt to cope with her pain and avoid actions that seemed to increase discomfort, seeking medical or homeopathic treatment intermittently. That was until August 2010, when awaking in severe pain in the region of her neck and experiencing, for the first time, pins and needles in her left arm, she anxiously consulted her GP as to her prognosis.
It was the off-the-cuff comment from a Nerang radiologist that the pain originated from neck trauma probably caused by the 2005 accident – and that was probably too late to take any legal action – that motivated her to consult a lawyer for the first time a few days later.
Thereafter swift specialist medical investigation attributed her symptoms to a neck injury, most likely caused – especially when current x-rays were compared to those taken prior to the motorway smash – in that crash.
Suncorp was put on notice of a claim against their insured driver but refused to agree that the 3 year limitation period should be extended to allow accident damages to be assessed.
District Court proceedings were started in May 2011 and – against Suncorp’s protestations – an order made in August extending the limitation period. Not content, Suncorp filed an appeal with the judgment delivered this week. Before moving forward to the result, readers must return – just for a moment – to the motorway scene.
Not stopping and not identified at the time, an on-the-scene police officer told the shaken Vanessa, he would try to track down the courier truck that eye-witnesses had claimed was the culprit. She phoned the police a week after the accident and asked the officer if he had been successful in locating the driver from the shipping label on one of the airborne car parts boxes. She was told the investigation was ongoing and that they would contact her on its conclusion.
A month or so later she called again and was told by another officer that their sleuthing “may take months or even years” and that she would be contacted “if their investigation revealed the vehicle’s identity”. That’s where the issue was left until, once on the job, her lawyers uncovered that the police had in fact identified the courier company, the truck and its driver.
In Wednesday’s Court of Appeal judgment, the court re-examined the evidence and in particular, the reasonableness of her claim that she was unaware both of the identity of the at-fault vehicle and of the extent of her neck injury, until August 2010.
Suncorp fiercely contended that Vanessa – to qualify as having conducted a reasonable enquiry to ascertain the identity of the truck (the claimed new “material fact”) – ought to have been more vociferous and in her follow-up of the police.
“Reliance on advice from an unidentified police officer was not sufficient to hold that the identity of the other vehicle was not within the respondents’ means of knowledge within the limitation period”, it asserted.
Rejecting this submission, the court reminded Suncorp that it “in circumstances such as this needs to balance whether, on the one hand, the evidence discloses that the degree of pain and disability was such that an applicant ought to have realised [she] was in a position of vulnerability and needed to make and appropriate enquiry, or whether on the other hand, it is a case, on its facts in which there was no requirement that the applicant takes appropriate advice or to ask appropriate questions”.
The primary judge’s finding that the case fell within the latter category was therefore approved.
The appeal court went to some lengths to affirm those limitation applications involve factual assessments and “an appeal court is not free to decide the question according to its own preference” and should not intervene “unless the judgement reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried”.