Tenacity and determination of Karina Goodall in fighting for her clients’ rights causes Judge Gibson of the District Court of NSW to criticise defendant for using “stalling” tactics in personal injury case.
Karina is a fierce and passionate advocate for her clients and is relentless when pursuing their cases and fighting for what they are entitled to.
Delay in personal injury cases have a serious impact on injured claimants and Karina was unrelenting in her efforts to progress her client’s claim.
Judge Gibson commends Karina on her persistent attempts to progress her client’s claim, drawing attention to over 18 months’ worth of correspondence that was ignored by the solicitor for the insurer. The solicitor for the insurer was heavily criticised by Judge Gibson for their discourteous failure to answer correspondence, including obstructive and delaying tactics which were attempted to deprive Karina’s client of their rightful claim for compensation after a motor vehicle accident.
This decision highlights the ceaseless nature of Karina in progressing her client’s claims for compensation and the lengths that she will go to ensure her client’s cases are not delayed by lazy defendants and stalling tactics. Karina is the definition of an outstanding advocate, and this decision reiterates why it is necessary for injured persons to have a solicitor like Karina, with an innate ability to go above and beyond for her clients.
Please see below, for a summary of the successful decision won for our client, by Karina Goodall.
BACKGROUND
On 24 September 2018 our client, a resident of New South Wales, was driving her motor vehicle along the M5 motorway at 5:30 AM when the defendant, travelling in the lane adjacent, suddenly without warning merged into our client’s lane, colliding with the right side of our client’s car. Our client’s car spun several times while travelling from the left to the right side of the motorway, colliding with the road wall several times before coming to a stop.
Our client suffered injuries to her cervical spine, requiring an anterior cervical discectomy and fusion at C5/C6 level, her right shoulder (including rotator cuff injury), her lumbar spine and other parts of her body. These injuries sadly impacted our client’s ability to work and live the way she had prior to the accident.
Our client’s claim for damages was complicated due to the jurisdictional issues which arose because the other vehicle was registered in the State of Victoria.
WHOLE PERSON IMPAIRMENT
A claim for damages can only be made if the injured person’s whole person impairment is greater than 10%. In this case, our client had been assessed by an expert who opined that her whole person impairment was 34%.The severity of her injuries pursuant the AMA4 Guidelines already put our client over the 10% threshold.
Ms Goodall initially notified the insurer on 27 February 2020 that her client was making a claim for damages and asked the insurer’s solicitor to concede that our client has a whole person impairment of greater than 10%.
On 2 March 2020 the insurer responded to Ms Goodall’s notice and stated that enquiries were being completed and liability would be determined. During this time, our client’s condition was continuing to deteriorate and a claim for damages was not able to be lodged until 25 June 2020 to allow her injuries to medically stabilise (20 months after accident, pursuant to section 6.14 of the Motor Accident Injuries Act 2017). Ms Goodall repeatedly wrote to the solicitors for the insurer seeking this concession because, if this concession was made then the parties could participate in settlement discussions prior to the 25 June 2020 and reach a resolution for our client after an already stressful time.
Ms Goodall continued to write to the solicitors for the insurer about conceding the 10% whole person impairment. On 10 June 2020 a response was provided to Ms Goodall, stating that the file was being reviewed. On 11 June 2020 Ms Goodall sent an Application for Damages Common Law and on 30 June 2020 included 15 medical reports and investigations in support of our client’s serious injuries.
The only correspondence from the solicitors for the insurer was a letter requesting further and better particulars of the accident and injuries. In this correspondence, the request to concede 10% whole person impairment was ignored, despite the previous 4 months’ worth of attempts.
Ms Goodall sent over 20 letters to the solicitors acting for the insurer between 23 August 2020 and 19 May 2021 asking if they would concede the 10% impairment and each time, Ms Goodall was completely ignored.
Ms Goodall continued to request a response and sent another letter on 29 June 2021. Ms Goodall received a response on 2 July 2021 and 7 July 2021 requesting Ms Goodall to be ‘patient’. The solicitors for the insurer advised that they were undertaking their own inquiries into our client’s whole person impairment on the basis that our client had not provided evidence to support her claim. Ms Goodall responded immediately regarding evidence of the whole person impairment. The solicitor for the insurer’s response referred to the necessity to investigate causation and or any pre-existing condition prior to giving a determination.
On 16 September 2021, a year after the accident and some 8 months after the insurer was notified of the claim, Ms Goodall wrote again to request instructions to concede the 10% threshold to which the insurers solicitor responded stating they required more time to investigate.
Despite Ms Goodall’s tenacious endeavours for a response, the solicitors for the insurer continued to ignore her and delay the progression of our clients claim.
BEST ENDEVOURS
To progress the claim, Ms Goodall lodged an application for her client in the Personal Injury Commission (PIC) on 15 October 2021. On 15 November 2021 the PIC referred the matter to the District Court of New South Wales as it was federally impacted matter due to the defendant’s car being registered in the State of Victoria. On 18 November 2021 Ms Goodall filed a Summons in the District Court of New South Wales and did not include any material in delay of the filing as the progression of the case was frustrated by the delayed response of the solicitors for the insurer.
The solicitors for the insurer were quick to raise issue of the proceedings being commenced out of time yet were happy to ignore numerous requests for concession of the 10% impairment and sought that the summons be amended to seek leave to file out of time.
On 29 November 2021 Ms Goodall sent further correspondence to the solicitor acting for the insurer asking if the insurer had given instructions on whether to concede the 10% whole person impairment. On 14 December 2021 Ms Goodall received a response from the solicitors for the insurer stating that it was the first time that evidence had been served in support of the 10% impairment and that they are entitled to 90 days to respond, despite the numerous correspondence from Ms Goodall months earlier serving the medical reports evidencing her client’s 34% whole person impairment.
The correspondence paints a clear picture that the insurer’s solicitor was in possession of more than enough material to determine the whole person impairment threshold and that they were simply ignoring the numerous requests as a stalling tactic and then consequently introducing causation as a further issue.
Judge Gibson notes that the repeated requests from Ms Goodall for the insurer to concede the 10% impairment were fobbed off by assertions that the insurer’s solicitors were undertaking their own inquires, that it was necessary to investigate causation and or pre accident medical history. Moreover, there was no feedback in relation to the numerous reports and certificates filed by Ms Goodall. The insurer’s solicitor made two appointments for the plaintiff with two medico legal experts but did not serve them or discuss their contents, despite claiming to the Court that there were issues with causation in these proceedings.
The judge noted that using best endeavours in settlement negotiations require some form of response form the opposing side, concluding that even though the 10% is now conceded, there was no explanation from the solicitors for the insurer for this delay.
CONLUSION
Judge Gibson concluded that Ms Goodall had used best endeavours to try and resolve the case of Azer V Sharma both quickly and cheaply, without incurring unnecessary legal costs. Judge Gibson criticised the insurer’s solicitors conduct again, highlighting that they were in possession of enough material to consider a concession of our client’s the whole person impairment from 1 October 2020 and again on 2 November 2020 but the insurer’s solicitor continued to ignore Ms Goodall’s requests. Further, Judge Gibson notes that the insurer’s own medico legal reports were withheld until April 2022 with the concession finally being made, with no explanation as to why it took two years to make this concession.
With credit to Ms Goodall’s tenacity, our client was successful in the application and the defendant was ordered to pay the costs of our client’s application.
Judge Gibson made the following orders:
- Pursuant to section 26(3) of the Personal Injury Commission Act 2020 (NSW) grant leave nunc pro tunc to the plaintiff to commence proceedings in the District Court of New South Wales and treat the statement of claim filed in these proceedings as having validity to the claim.
- Pursuant to s 6.32 of the Motor Vehicle Accident Injuries Act 2017(NSW) grant leave to the plaintiff to commence these proceedings out of time.
- The defendant to pay the plaintiffs costs of the amended summons dated 14 December 2021.
- Pursuant to s 26(5) of the Personal Injury Commission Act 2020 (NSW) the plaintiffs claim is remitted to the PIC as the usual decision maker for determination, the District Court of New South Wales being satisfied that the PIC has jurisdiction to determine it.
Stacks Goudkamp have the knowledge and experience to ensure that your motor vehicle claim is handled effectively. Karina is dedicated, persistent and resourceful with strong character and relentless duty to fight for what is right.
If you have been injured in a motor vehicle accident and need an advocate to fight for your rights, then please contact Karina Goodall on (02) 4058 3925 for a free initial consultation or contact us online
