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Singh v Hill

 

[2019] QSC 79

SUPREME COURT OF QUEENSLAND

CITATION:

Singh v Hill & Anor [2019] QSC 79

PARTIE:

ISHMEET SINGH as litigation guardian for JASMEET KAUR

(applicant)

v

NETA HILL

(first respondent)

RACQ INSURANCE LIMITED

(ACN 009 704 152)

(second respondent)

FILE NO/S:

No BS1491 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2019

JUDGE:

Boddice J

ORDER:

I shall hear the parties as to the form of order and costs.

CATCHWORDS:

PROCEDURE – MISCELLANEIOUS PROCEDURAL MATTERS – PERSONAL INJURY OR FATAL ACCIDENTS PROCEEDINGS – PRELIMINARY MATTERS – where there was a collision between a motor vehicle driven by the applicant and a motor vehicle driven by the  first respondent – where the first respondent was insured by the second respondent – where the applicants seeks to claim damages for personal injuries – where the collision occurred six years previously and the notice of claim was issued by the applicant five years previously – where the limitation period has expired – where the applicant now seeks to commence proceedings – whether the applicant has established good reason for the grant of leave to commence those proceedings

Motor Accident Insurance Act 1994 (Qld)

Limitation of Actions Act 1974 (Qld)

Hsu & Ors v Wang & Ors [2004] QSC 324, considered

Jonathan v Mangera & Anor [2016] QCA 86, applied

Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378; [2004] QCA 480, cited

Paterson v Leigh & Anor [2008] QSC 277, applied
Blundstone v Johnson [2010] QCA 148, cited

Ward v Wiltshire Australia Pty Ltd (2008) 51 MVR 1; [2008] QCA 93, cited

Winters v Doyle & Anor [2006] 2 Qd R 285; [2006] QCA 110, cited

COUNSEL:

M Horvath, with S Lamb, for the plaintiff

K Howe for the defendant

SOLICITORS:

Compensation Partners Lawyers for the plaintiff

QMT Law for the defendant

  1. [1]
    On 25 August 2012, there was a collision between a motor vehicle being driven by the applicant and a motor vehicle being driven by the first respondent. That latter vehicle was insured by the second respondent.
  2. [2]
    Despite the collision having occurred over six years ago and a notice of claim having been issued by the applicant over five years ago, no proceeding has been commenced by the applicant claiming damages for personal injuries arising out of that collision.
  3. [3]
    By application filed 13 February 2019, the applicant seeks leave to now commence a proceeding against the respondents for damages for personal injury caused by that collision.
  4. [4]
    The application for leave, brought pursuant to s 57 of the Motor Accident Insurance Act 1994 (Qld) was filed by her brother, as litigation guardian. On 2 January 2019, the applicant’s brother was appointed her administrator for financial affairs by order of the Queensland Civil and Administrative Tribunal.
  5. [5]
    The respondents oppose the grant of leave. At issue is whether the applicant has established good reason for the grant of leave to commence those proceedings.

Factual background

  1. [6]
    The applicant was born on 28 September 1985 in India. She commenced living in Australia in 2011. At the time of the collision she was married and had employment.
  2. [7]
    The applicant first engaged solicitors in respect of the collision in April 2013. Those solicitors were provided with detailed instructions as to the circumstances of the collision, the applicant’s injuries and ongoing consequence of those injuries. A Notice of Claim dated 30 April 2013, was lodged by those solicitors, pursuant to the Act.
  3. [8]
    On 20 May 2013, those solicitors provided the applicant with detailed written advice in relation to the steps to be taken in respect of the claim. That advice included details of the relevant legislation, type of available claim, nature and type of damages that may be claimed and process for lodgement and progress of the claim. That advice included specific advice that “[c]ourt proceedings must be commenced within a period of three (3) years from the date of your motor vehicle accident. That is, by 24 August 2015. Failure to commence court proceedings prior to that date may prevent you from pursuing your matter unless you are able to provide a reasonable explanation to the court as to the reasons that you were late.”[1]
  4. [9]
    Although the Notice of Claim was initially said by the second respondent to be non- compliant in material respects, by letter dated 24 July 2013, the second respondent advised those solicitors that the notice of accident claim form complied with the requirements of the Act. That letter requested the applicant provide relevant information and documentation as to treatment and damages.
  5. [10]
    By letter dated 7 February 2014, the second respondent advised those solicitors that based on further documentation received from the Queensland Police Service, the second respondent did not consider the first respondent had breached a duty of care and had not contributed to the cause of the collision. Accordingly, liability was denied. The letter stated the denial “does not affect any statutory time limits placed upon your client (including the Limitation of Actions Act). We reserve our rights to rely upon any failure by your client to comply with these time limitations.”[2]
  6. [11]
    By email dated 6 March 2014, the applicant provided further information to those solicitors in respect of the route taken by the applicant and the first respondent. The applicant advised, “I am no more working since the 14th feb 2014, and i am seeing the psychaitrist: dr mario ceaser briganza, and also a psychologist: ms kerryn pinches, both at wharf street wellness on wharf street in tweed heads”.[3]
  7. [12]
    By letter dated 7 April 2014, the second respondent denied liability in full.
  8. [13]
    The applicant sent a further email on 11 April 2014 to those solicitors seeking confirmation they had received the further information and wanting to know “if everything was going well for the case”.[4]
  9. [14]
    By letter dated 12 May 2014, the second respondent wrote directly to the applicant advising they had been unable to contact her solicitors for the last 10 months and they had denied liability in full and withdrawn the offer to meet the reasonable and appropriate costs of rehabilitation. They repeated an early offer to the solicitors for all parties to walk away bearing their own costs incurred to date. The second respondent advised the applicant, if she wished to proceed with her claim, to contact them as a matter of urgency. If she did not do so by 13 June 2014, the second respondent would close the claim.
  10. [15]
    On 26 May 2014, the applicant telephoned those solicitors. She was recorded as having been “very angry” and was seeking to speak urgently in relation to a letter received from the second respondent.[5]
  11. [16]
    On 3 June 2014, the applicant spoke to those solicitors. She advised she was going overseas for two to three weeks. The solicitor advised the applicant the second respondent was denying liability and the solicitor would email additional documents through to the applicant for her comments.
  12. [17]
    By letter dated 2 July 2014, those solicitors advised the applicant they had provided further particulars of her claim to the second respondent “as per your instructions”.[6]They also advised the second respondent there was a significant change in her psychological condition since the lodging of additional information in May 2013. The solicitors requested further documentation from the applicant.
  13. [18]
    By letter dated 7 July 2014, those solicitors advised the second respondent the applicant remained unfit for work on the basis of her psychological injury. The solicitors provided other information in response to the request that had been made by the second respondent.
  14. [19]
    By email dated 29 September 2014, the applicant provided to those solicitors a response to questions forwarded by an insurance investigator on behalf of the second respondent. Those answers were forwarded to the second respondent by email of the same date.
  15. [20]
    On 18 June 2015, those solicitors forwarded a brief to counsel to provide advices on liability, evidence and prospects and to appear at any settlement conference.
  16. [21]
    By letter dated 16 July 2015, the second respondent advised those solicitors they were awaiting a Traffic Reconstruction Report before setting the matter down for a conference. The second respondent noted the limitation period expires on 25 August 2015 and that as the requirements of the Act were unlikely to be complied with by that date, the second respondent “undertakes not to rely on Section 11 of the Limitations Act 1974 for a further Three (3) months, on the condition that proceedings are commenced prior to 12.00 pm on 24 November 2015.”[7]The letter expressly said this offer was not a waiver of the second respondent’s right to raise the limitation defence after 25 November 2015.[8]
  17. [22]
    By email dated 27 July 2015, the applicant advised those solicitors she had not been “very well mentally over the weekend and unable to concentrate over the work which had to be done regarding barrister, wondering if we can postpone it to the Friday anytime. I will try and take some time off work to complete all this”.[9]
  18. [23]
    By letter dated 4 August 2015, those solicitors advised the second respondent their client instructed them to commence proceedings within the limitation period. They requested the second respondent attend a compulsory conference on 6 August 2015. By email of the same date, the second respondent advised the claims officer was currently out of the office. The email also stated that the second respondent was yet to make a final determination of liability as it was currently awaiting further investigations material and that the limitation period for the claim expired on 25 August 2015. The second respondent requested a response to their letter of 16 July 2015, offering an informal extension of that limitation period.
  19. [24]
    By letter dated 12 August 2015, those solicitors advised the second respondent they had received instructions to accept their offer to not rely on the limitation defence prior to 25 November 2015.
  20. [25]
    By letter dated 30 October 2015, the second respondent advised those solicitors they were still awaiting receipt of the Traffic Reconstruction Report. They undertook not to rely on the Limitations of Actions Act 1974 (Qld) for three months, on the condition proceedings were commenced prior to 12.00 pm on 24 February 2016. Again, the letter expressly advised this offer was not to be taken as a waiver of their rights to raise the limitation defence after 25 February 2016.[10]
  21. [26]
    By letter dated 10 November 2015, those solicitors sought the applicant’s consent to the extension of the limitation period until 24 February 2016. That consent was forwarded to the second respondent by email dated 24 November 2015.
  22. [27]
    By letter dated 2 December 2015, those solicitors advised Counsel of the second respondent’s offer not to rely on the limitation period, provided proceedings were commenced prior to 24 February 2016. The applicant’s solicitors also advised, “we have had some difficulties in obtaining instructions from or client to place a settlement offer.”[11]They asked about Counsel’s availability for a telephone conference.
  23. [28]
    By letter date 9 February 2016, the second respondent requested further information from those solicitors. The second respondent also advised the Traffic Reconstruction Report still had not been received and undertook not to rely on the limitation period for a further three months, on the condition proceedings were commenced prior to 12.00 pm on 24 May 2016. Again, the letter expressly stated the offer was not to be taken as a waiver of their rights to raise the limitation defence after 25 May 2016.[12]
  24. [29]
    By email dated 25 February 2016, those solicitors advised the second respondent the applicant accepted the offer not to raise the limitation defence until after 25 May 2016.
  25. [30]
    By email dated 9 July 2016, the applicant advised those solicitors she had sought further information as to the conduct of her proceeding, but had not heard anything further. The applicant requested advice so that she could attend to travel plans she had for August and September 2016, when she would not be available.
  26. [31]
    By email dated 1 July 2016, those solicitors requested instructions from the applicant to place a settlement offer in accordance with a schedule of damages sent to her by those solicitors. The email noted that when they spoke to the applicant on 24 May 2016, she understood they needed to make an offer of settlement. They had not heard further from her in that regard.
  27. [32]
    By email dated 28 July 2016, the applicant advised those solicitors, “there have been too many things happening with me and am not coping too well as I need to work which has not left any time for me to do the paperwork. I have done some bit of it, but have not been able to get it across as I am doing it in bits”.[13]The applicant sought an extension as her injuries had not settled and there were other things coming up. The applicant had started seeing a new psychiatrist. She was getting her parents over from India to be her carers for the next 12 months. She was travelling overseas from 3 August 2016 until 10 September 2016. The applicant requested they speak to the insurer to have the dates postponed.
  28. [33]
    By email dated 2 August 2016, those solicitors advised the applicant it was not “a case of just obtaining a further extension. The insurer will not agree to this”.[14]The solicitors advised they needed her urgent instructions to make a settlement offer as per the schedule of damages. By return email dated 2 August 2016, the applicant advised it was “not possible”.[15]She was flying out the next morning and did not have time for anything. The applicant said there was no point in proceeding with the case as her injuries have not yet settled. She noted the insurer had previously requested an extension and she had not sought such an extension.
  29. [34]
    By letter date 10 November 2016, the second respondent undertook not to rely on the limitation period for a further three months, on the condition proceedings were commenced prior to 12.00 pm on 23 February 2017. Again, this letter expressly stated that the offer was not to be taken as a waiver of their rights to raise the limitation defence after 24 February 2017.
  30. [35]
    By email dated 17 November 2016, those solicitors advised the second respondent the applicant agreed to that extension.
  31. [36]
    By email dated 17 November 2016, the applicant advised those solicitors she appreciated the further extension. The applicant noted this would give her enough time to recover from her father’s death and to grieve. The applicant said she would try and get the paperwork and give instructions, at the latest, by the second week of January 2017.
  32. [37]
    By email dated 15 February 2017, the second respondent responded to a request by those solicitors for an extension of the limitation period. That request had been made by letter dated 13 February 2017. The second respondent undertook not to rely on the limitation period for a further period of three months, on the condition proceedings were commenced prior to 12.00 pm on 24 May 2017. Again, the offer was expressly stated as not to be taken as a waiver of their rights to raise the limitation defence after 25 May 2017. The letter advised that the second respondent was prepared to participate in a compulsory conference, subject to the provision of certain specified information.
  33. [38]
    By email dated 1 March 2017, the applicant advised those solicitors that her health plan had changed, she had recently been diagnosed with severe sleep apnoea and she was undertaking further treatment.
  34. [39]
    By email dated 2 March 2017, those solicitors advised the applicant the matter could not proceed further until the applicant gave instructions to put a settlement offer to the insurer. The email noted they had previously written to the applicant about that matter and the barrister and the solicitor had spoken to the applicant at length about it. The email requested the provision of instructions urgently.[16]
  35. [40]
    By email dated 16 May 2017, the second respondent advised those solicitors the limitation period was to expire on 25 May 2017. The second respondent noted their client appeared unwilling to progress the claim for resolution and noted it was their understanding they had been unable to obtain any response or cooperation from their client. The second respondent advised they would be reluctant in those circumstances to consider a further informal extension. The second respondent sought urgent advice as to the applicant’s position on progressing the matter as “it appears to us that an application to extend limitation with directions requiring your client’s cooperation may be necessary”.[17]
  36. [41]
    By email dated 16 May 2017, those solicitors sought urgent instructions from the applicant to place a settlement offer to the second respondent. Those solicitors advised:

“In short, and as previously advised, the insurer:

  • Will not agree to any further extension of the limitation period in your matter;
  • The current agreed extension is until 25 May 2017;
  • I am unable to respond or take your matter any further until you provide me with instructions to make a settlement offer in this matter.”[18]
  1. [42]
    By email dated 14 December 2017, those solicitors advised the applicant: 

“We refer to your recent enquiries in this matter.

We note that you sustained an injury in a motor vehicle accident on 25 August 2012, and that you provided us with instructions to act in this matter on 13 May 2013.

In April 2015 the writer first attempted to discuss resolution of your case with the insurance company. We note that we have been waiting since that time to be provided with instructions to make a settlement offer but none has ever been forthcoming.

We note that the writer first spoke to you about your matter in May 2015 and met with you in person at our Brisbane office. A settlement conference date was arranged with the insurer for 20 May 2015. The settlement conference did not proceed on 20 May 2015, but instead was rescheduled to 25 June 2015.

On 3 June 2015 you rang my secretary and advised that you would not be able to go ahead with the settlement conference at this stage and that you would not be ready for a settlement conference for one to three months.

On 25 July 2015 Andrew Campbell, barrister, and myself had a phone conference with you where we again requested instructions to make a settlement offer but you did not provide instructions for any settlement offer to be made. We discussed extensively with you the heads of damages for your claim and advice as to the value of your claim.

On 27 July 2015 you emailed me and wanted to have the settlement conference rescheduled because you were unwell. The settlement conference scheduled did not go ahead as a result.

On 28 August 2015 I met with you in person at our Brisbane office together with Andrew Campbell, barrister. We again discussed extensively with you the heads of damages for your claim and advice as to the value of your claim.

On 9 November 2015 you emailed me to say that you were still getting your paperwork together.

On 24 February 2016 you emailed me to ask for an extension of the limitation period

On 25 February 2016 I emailed you requesting instructions again to place an offer of settlement

On 27 July 2016 I again emailed you for settlement instructions with a schedule of damages setting out details of your claim for your approval. On 28 July 2016 you asked me for further time. On 2 August 2016, I told you it was not possible to obtain any further extension and that I urgently needed your instructions. You then emailed me on 2 August 2016 to say that you would not be able to do this.

On 17 August 2016 you rang and spoke to my secretary and advised her you could not give any instructions for settlement.

On 17 November 2016 I again requested your instructions to make an offer of settlement.

On 2 March 2017 I again advised you that without instructions to make a settlement offer, I was unable to take your matter any further.

On 16 May 2017 I advised you in an email that the insurer would not agree to any extension of the limitation period beyond 25 May 2017 and unless you provided me with instructions to place an offer of settlement there was nothing further I could do

In the circumstances we are unable to take the matter any further and note that we made repeated requests to you for your instructions, particularly in view of the limitation period expiring in your claim. None were ever forthcoming.

As you are aware, the CTP insurer was only prepared to offer an amount of settlement which would have left you with no money as the entirety of the settlement would have gone to reimbursement of the workers compensation paid by you.

In the circumstances we are unable to take your CTP claim any further.

We note that you will still have any entitlements to you under the Workers’ Compensation legislation.

We will now close our file in the matter.”[19]

  1. [43]
    By email dated 14 December 2017, the applicant responded in the following terms:

“I have forwarded you and sent you paperwork around in may this year when you gave me the date of claim to be finalizing via express post, with I spoke to soo min to confirm you had received and have been waiting from your end to get an amount which you would let me know when you go through the paper work.

and since then almost one every two months i have been trying to talk to you over the phone to follow this up, with no response.

can you please check all the correspondence from my end please, as there is no way, that you have not received any paperwork from my end as I have spoken to soo min and confirmed paperwork was sent to you via email with attachments and spoke to soo min over the phone who confirmed.”[20]

  1. [44]
    By email of the same date, those solicitors responded as follows:

“I provided you with a schedule of damages – which set out extensively the heads of damages claimable by you and the amount in 2015 – over two years ago.

I has never been a question of what documents you did or did not provide to me or my secretary, it is a question of you never providing any instructions to me to put any settlement offer in over two years. As I said to you in my email of 16 May 2017 if you did not provide me with instructions to place an offer there was nothing further I could do for you.”[21]

  1. [45]
    The applicant responded by email that afternoon:

“In regards to that i said that i will send h paperwork with all the injuries and the amount should be more than you had advised and you and / or you are secretary asked me to forward the paperwork so u should be able to see what all injuries i have and then claim with the part of the body with the injury and then provide me with another figure.”[22]

Application

  1. [46]
    The applicant engaged her current solicitors in late August 2018. By letter dated 25 September 2018, the current solicitors sought a medico legal report from Dr Joseph Mathew, a psychiatrist. That report specifically sought assessment as to whether the applicant currently had capacity to provide instructions and any previous diminution of her capacity to instruct previous law practices for that claim.
  2. [47]
    By report dated 8 October 2018, Dr Mathew opined the applicant understood the nature of her legal case and was able to provide a reasonable estimate of quantum; understood the case would be resolved at conference with the matter to proceed to court if no agreement could be reached at that conference; understood it was ultimately her decision with regard to settlement, although she would be guided by her lawyer; and had sensible plans for use of any lump sum compensation. He noted the applicant managed her own finances using online banking.
  3. [48]
    Dr Mathew further opined that the applicant did not have capacity to instruct her lawyers. Although the applicant broadly understood the role of lawyers and it was their role to act in her best interests, she was confused about this and felt her first lawyers had made things confusing for her, with poor communication. The applicant resported that after engaging another law firm she had difficulty with the day to day aspect of her claim; was not sure what was required; had a great deal of difficulty of making sense of her appointments and found those sessions highly anxiety provoking to the point of zoning out (disassociation). The applicant expressed a preference for someone else to handle the legal matters. When asked why, the applicant replied “so that I don’t have to think about the accident or explain myself every [she did not complete the sentence].”[23]
  4. [49]
    After noting that an earlier report of Dr Kar, dated 17 May 2013, had detailed depressive and anxiety symptoms but opined her symptoms were not sufficient to make a psychiatric diagnoses of an adjustment disorder or Post-Traumatic Stress Disorder (“PTSD”), that her current symptoms could be due to factors unrelated to the accident, such as cultural factors and personality as well as stress from other sources, and that her diagnoses remained unclear, Dr Mathew opined that the applicant suffered from Major Depressive Disorder and PTSD, which were causally linked to her physical injuries and her knowledge that she had been involved in a serious accident. Notwithstanding these diagnoses, Dr Mathew assessed the applicant as having capacity to manage a lump sum if she receives such a sum.
  5. [50]
    Dr Mathew enlarged on his opinion that the applicant did not have capacity to instruct her solicitors. Dr Mathew observed the applicant had difficulties negotiating the legal process, was avoidant and very anxious when engaging with lawyers and doctors and had difficulty making sense of information. She told Dr Mathew she had been told at a late stage that there was generally a three year limitation for her proceeding but that this was easily extended. Dr Mathew opined the applicant was not aware for most of the time that her former solicitors were not doing a good job and it was only towards the end of her time with them that she became concerned about communication and that she was not provided with important information.
  6. [51]
    In a subsequent report dated 25 October 2018, Dr Mathew opined that it was most likely the applicant was unable to effectively instruct her lawyers from the first half of 2013. That opinion was informed by other available information, including Dr Kar’s report dated 17 May 2013, which noted the applicant had significant difficulties with her thinking, attention, concentration and memory problems and that she used to write things down to assist with her memory. Dr Mathew also had regard to an email from those solicitors dated 14 December 2017, which stated the settlement conference was rescheduled because the applicant was “unwell”.[24]In Dr Mathew’s opinion, it was clear from that email the applicant was not providing effective instructions and engaging in the legal process. The applicant was having significant psychiatric symptoms affecting her focus and thinking.
  7. [52]
    The report of Dr Kar referred to by Dr Mathew was provided in respect of the applicant’s workcover claim following the collision. In that report, Dr Kar opined there were some unusual features in the applicant’s case. In his opinion, if the applicant had developed a psychiatric condition or anxiety as a consequence of the collision, it would have been most severe and most apparent immediately after the condition with gradually reducing anxiety and symptoms with time. However, in the applicant’s case there was almost no report of psychiatric symptoms initially. Anxiety symptoms were present with the anxiety being focussed around her husband being away.
  8. [53]
    Dr Kar opined that due to the applicant’s physical injuries she became overly dependent on her husband and this dependency was a significant factor in her current anxiety. Part of her anxiety regarding her husband was explained by cultural factors. However, the applicant did not meet the full PTSD criteria or criteria for an adjustment disorder. Some of her unusual features raised the issue of personality and complex interpersonal relationship matters which are fostering or increasing dependency on her husband.
  9. [54]
    The applicant was also the subject of an assessment by Dr Julian Boulnois, Specialist Psychiatrist in 2016. In his report, dated 26 July 2016, Dr Boulnois described the applicant as “clearly a creature of contradictions”, noting that since the motor vehicle accident her symptoms “have been manifold – behavioural, psychological and maybe psychotic – and IVF has led to no grandson for her parents indeed her husband isn’t allowed near her sometimes banished to a motel”. Dr Boulnois concluded:

“Seemingly anxiety symptoms abound, phobic and panic and the only effective treatment (?) being prednisolone.”

Yet, she is still able to arrive from Tweed Head and work 36 hours per week for our Colleague, Clive Bishop and is soon to embark on a month’s trip to the USA to see relatives.

In the face of such contradictions it is difficult to avoid the elephant in the room, seemingly an underlying Borderline Personality Disorder?”[25]

Legal principles

  1. [55]
    The limitation period for the commencement of proceedings claiming damages for personal injuries is three years.[26]Section 57 of the Motor Accident Insurance Act 1994 (Qld) provides for an alteration of that period of limitation in specified circumstances. Relevantly, s 57 provides:
  1. “(1)
    If notice of a motor vehicle accident claim is given under Division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under Division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.
  1. (2)
    However, the proceeding may only be brought after the end of the period of limitation if it is brought within –
  1. (a)
    6 months after the notice is given or leave to bring the proceeding is granted; or
  2. (b)
    a longer period allowed by the Court.”
  1. [56]
    The power to grant an extension is discretionary. The relevant principles in the exercise of that discretion were stated in Jonathan v Mangera & Anor [2016] QCA 86 at [18]-[22]:

“[18] The power is discretionary, and that discretion is to be exercised with recognition of the context in which it operates. The objects of the Act are to keep the costs of insurance down and encourage the speedy resolution of personal injury claims. The Act is designed to achieve prompt assessment of claims by the insurer, which is to be given comprehensive information by the claimant, relatively soon after the accident. Claims should be prosecuted diligently. Further, there are provisions which encourage both sides to make offers of settlement.

[19] The principles applicable to the exercise of the discretion on the question of leave to commence proceedings out of time, have been well established.

[20] In Morrison-Gardiner v Car Choice Pty Ltd this Court referred to the context in which s57(2)(b) exists and said:

“The discretion to permit the commencement of proceedings after the expiration of a limitation period is to be exercised in this context. It is clearly meant to ameliorate the plight of a claimant who is unable to comply with the requirements of the Act in time to commence proceedings and who, if justice is to be done, should be given the extension. The discretion is likely to be exercised favourably only in those cases where a claimant’s circumstances make it difficult to comply with the requirements of the Act  and commence proceedings within three years of where, despite making conscientious efforts to comply with the requirements of the Act, a claimant nevertheless does not do so within three years of the accident. Any delay on the part of the claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion. Claims who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them are unlikely to obtain an extension of time though, of course, each case must be decided on its individual merits.”

[21] Subsequently in Winters v Doyle & Anor, Keane JA referred to the passage above and said:

 “It can be seen that each member of this Court in Morrison-Gardiner v Car Choice Pty Ltd identified, as a consideration of central relevance to the proper exercise of the discretion conferred by s 57(2)(b) of the MAI Act, the relationship between the delay which has occasioned the need to seek relief from the operation of the statutory time bar and the plaintiff’s attempts to comply with the requirements of the MAI Act. A plaintiff will usually be able to show good reason for the favourable exercise of the discretion conferred by s 57(2)(b) only if he or she can show that the delay which occurred was occasioned by a “conscientious effort to comply” with the MAI Act.”

[22] The applicable principles were later usually summarised by McMeekin J in Paterson v Leigh & Anor, in a way approved by this Court in Blundstone v Johnson. His Honour referred to Morrison-Gardiner and Winters, and other authority and said:

“The principles that seem to emerge from these cases are:

  1. (a)
    The discretion to be exercised in respect of an application pursuant to [s57(2)(b)] of the Act is unfettered;
  2. (b)
    The onus lies on the applicant to show good reason why the discretion ought to be exercised in his or her favour;
  3. (c)
    Where an applicant is able to show that the delay which has occurred was occasioned by a ‘conscientious effort to comply’ with the Act then that would normally be good reason for the favourable exercise of the discretion but is not a ‘dominating consideration’. Conversely, claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them may have difficulty obtaining a favourable exercise of the discretion;
  4. (d)
    Where an applicant is not able to show that the delay was occasioned by ‘a conscientious effort to comply’ with the Act that is not fatal to the application;
  5. (e)
    Any delay on the part of a claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion;
  6. (f)
    The length of any delay is important and possible prejudice to the defendant is relevant;
  7. (g)
    Depriving a defendant of the complete defence afforded by the statutory time bar is an important matter;
  8. (h)
    The interests of justice are of course the overriding consideration and in that regard the question of whether a fair trial of the proceedings is unlikely is an important consideration;
  9. (i)
    The giving of a notice of claim before the expiry of the limitation period and compliance by a claimant with the provisions of the Act that it provide any information sought by the insurer are both relevant factors.” (citations and emphases omitted)s
  1. [57]
    Whilst it is not a precondition to the exercise of the discretion that the delay was caused by attempts to comply with that Act,[27]it is relevant to bear in mind that it is a serious matter for a Court to override a defence otherwise available to the defendant.[28]Ultimately, each case turns on its own merits.

Applicant’s submissions

  1. [58]
    The applicant submits that whilst liability has been denied by the defendant, it should never have been in issue. Any initial confusion in relation to the circumstances of the collision was overcome by subsequent information which supported a conclusion that the first respondent failed to give way to the applicant. The applicant’s initial solicitors wrongly determined that there was a need for an expert report on the cause of the collision. The applicant further submits that the interests of justice warrant the granting of an extension of time as a fair trial can still be had, notwithstanding delay.
  2. [59]
    First, the applicant has completed all pre-court steps, except for holding a compulsory conference and the exchange of mandatory offers.
  3. [60]
    Second, whilst there has been lengthy delay, that delay was caused by a number of contributing factors, including the applicant’s lack of capacity, the instability of her injuries and her reliance upon what was ultimately incorrect legal advice. The applicant submits she was entitled to rely on that advice. Her conduct throughout was consistent with reliance upon that advice. It was also reasonable for the applicant not to change solicitors, particularly as the initial solicitors held themselves out as experts in personal injuries claims.
  4. [61]
    Third, no specific prejudice is asserted by the respondents from the grant of leave to commence the proceeding.

Respondent’s submissions

  1. [62]
    The respondents submit the applicant has not discharged the onus placed on her to show good reason for the exercise of the discretion in her favour. The applicant has not provided sufficient or adequate explanation for the delay. The applicant’s conduct is consistent with a lack of conscientious effort to progress the matter. Further, the evidence is insufficient to demonstrate an incapacity or inability to understand the nature of the proceedings or to provide instructions.
  2. [63]
    The respondent submits there is a material prejudice to the respondents, should leave be granted to the applicant to commence this proceeding. That prejudice arises by the delay of nearly seven years from when the cause of action arose. Not only has the possibility of timely examination and assessment been foreclosed, there is risk of general prejudice.

Discussion

  1. [64]
    Although the applicant states in her affidavit that she was regularly pursuing her solicitors for information in relation to the progress of her claim, and further, that she relied upon them to protect her interests in respect of that claim, a consideration of the material supports a conclusion that the applicant was not conscientious in her pursuit of that claim. Those solicitors’ email dated 14 December 2017 succinctly summarised what were the obvious difficulties occasioned to them in the applicant’s failure to provide them with instructions in respect of an offer to settle.
  2. [65]
    That failure was not reasonable in circumstances where they had provided a detailed schedule of damages for that purpose, particularly when the applicant was able, at the same time, to travel overseas for extended periods.
  3. [66]
    There is also no basis for the applicant’s claimed assertion that although she was aware there was a three year limitation for the commencement of proceedings, she understood an extension was easily to be achieved upon request. On more than one occasion those solicitors advised her of the need to commence proceedings within the requisite time period. That requirement was reiterated, notwithstanding the granting of extensions to the limitation period by the second respondent.
  4. [67]
    The applicant’s failure to provide the requisite instructions is sought to be explained by the opinion recently expressed by Dr Mathew to the effect that she does not have capacity to instruct her current solicitors and did not have that capacity since probably 2013. However, a consideration of the surrounding contemporaneous material does not support Dr Mathew’s opinion that that lack of capacity has existed since 2013.
  5. [68]
    Dr Mathew expressly relied upon opinions said to be expressed by Dr Kar in a report of 2013. Dr Kar’s report does not support a conclusion the applicant was lacking capacity to instruct her solicitors in 2013. To the contrary, the opinions of Dr Kar are consistent with any claimed symptoms not being as a consequence of psychiatric conditions, but as a consequence of behavioural or personality matters, in the context of the development of a significant dependency upon her husband.
  6. [69]
    Dr Mathew’s opinion is also inconsistent with the more contemporaneous opinion of Dr Boulnois. Whilst Dr Boulnois acknowledged the existence of symptoms, he observed there were many contradictions suggestive of an underlying Borderline Personality Disorder. I do not accept Dr Mathew’s opinion that the applicant lacked capacity to instruct her solicitors from 2013.
  7. [70]
    The applicant’s conduct in the course of her interactions with her then solicitors up to the expiry of the last extension of the limitation period support a conclusion that the applicant did have capacity to instruct solicitors at that time.
  8. [71]
    The applicant provided further information to those solicitors, by emails dated 6 March 2014 and 29 September 2014. That additional information included details of changes to her employment circumstances and her treating practitioners, as well as detailed responses to numerous questions forwarded by an insurance investigator.
  9. [72]
    Whilst the applicant advised those solicitors, by email dated 27 July 2015, she had not been very well mentally and was unable to concentrate, that email must be viewed in the context of the subsequent email, dated 28 July 2016, in which the applicant sought an extension of the limitation period. Although that email contained a reference to the applicant not coping too well, it also contained a reference to “too many things happening with me” and a “need to work which has not left any time for me to do the paperwork”.[29]The applicant expressly acknowledged that she was reviewing that material and had “done some bit of it”, but had not been able to get across it as she was doing it in bits.
  10. [73]
    Most tellingly, in that email the applicant requested those solicitors obtain an extension of the limitation period, stating her injuries had not settled, there were other things coming up, she had started to see a new psychiatrist and she was getting her parents to come from overseas to be her carers and she was travelling overseas in August and September 2016. When those solicitors indicated by return email that an extension was not possible, the applicant immediately responded stating there was no point in proceeding as her injuries had not yet settled and noting the insurer had previously requested an extension and she had not sought such an extension.
  11. [74]
    The contents of these emails indicate three things. First, a knowledge by the applicant of a need for, and the significance of, an extension of the limitation period. Second, an understanding of what had occurred to date, including the relevance of changes to her circumstances and ongoing injuries. Third, a willingness to place her own personal needs over her obligations in respect of the claim.
  12. [75]
    Of equal significance is the applicant’s subsequent email of 17 November 2016 in which she advised those solicitors that she appreciated the further extension, noting it would give her enough time to recover from her father’s death and to grieve. The applicant said she would give instructions, at the latest, by the second week of January 2017. That email evidenced an understanding by the applicant of the necessity to provide the relevant information and contained no suggestion the applicant could not do so due to any mental incapacity. The delay was solely as a consequence of other circumstances in her life.
  13. [76]
    A review of the applicant’s conduct in the period prior to the expiry of the last extension is completely inconsistent with the applicant not having an ability to understand the nature of the processes and of the steps required of her in order to provide proper instructions to her solicitors. I find the applicant chose to give priority to her own personal circumstances, notwithstanding an obligation to provide instructions in circumstances where she had been made well aware of the looming expiry of the limitation period.
  14. [77]
    These circumstances tell against the exercise of a discretion to permit the applicant to commence proceedings after the expiry of the limitation period. A claimant has a duty to facilitate an orderly progress of the claim by his or her legal representatives. As was observed by Wilson J in Hsu & Ors v Wang & Ors:

“A client has a duty to give his legal representatives full instructions, not just as the outset of a proceeding, but as required to progress that proceeding through the interlocutory phases and trial. He has an obligation to keep in contact with his solicitors and to ask as to the progress of the proceeding where there has been no communication or where there has been other circumstances which would put a reasonable person on enquiry.”[30]

  1. [78]
    The applicant’s conduct is not consistent with a conclusion the applicant has made a conscientious effort to comply with the requirements of the Act.[31]

Conclusion

  1. [79]
    A consideration of the whole of the circumstances favours a conclusion that the interests of justice do not warrant a grant of leave. The applicant did not comply with repeated requests by her then solicitors to provide instructions to progress the action. Those solicitors had provided the applicant with relevant information, including a schedule of damages sufficient to allow the applicant to provide such instructions.
  2. [80]
    Further, the delay has been extensive. It is now over six years since the collision and almost two years since the expiry of the last extension of the limitation period. Those delays have an inevitable impact on the respondent’s ability to fully and fairly defend any proceedings commenced as a consequence of leave being granted. This is a significant consideration, when determining whether it is appropriate to deprive the respondents of the complete defence afforded to them by the Limitation of Actions Act 1974 (Qld).
  3. [81]
    The applicant has not discharged the onus upon her of showing good reason to exercise the discretion in her favour. The application for leave is dismissed.

Orders

  1. [82]
    I shall hear the parties as to the form of orders and costs.

Footnotes

[1] Affidavit of Lee, p 24.

[2] Affidavit of Lee, p 34.

[3] Affidavit of Lee, p 35.

[4] Affidavit of Lee, p 38.

[5] Affidavit of Lee, p 41.

[6] Affidavit of Lee, p 57.

[7] Affidavit of Lee, p 75.

[8] Affidavit of Lee, p 75.

[9] Affidavit of Lee, p 81.

[10] Affidavit of Lee, p 105.

[11] Affidavit of Lee, p 109.

[12] Affidavit of Lee, p 111.

[13] Affidavit of Lee, p 128.

[14] Affidavit of Lee, p 128.

[15] Affidavit of Lee, p 131.

[16]  Affidavit of Lee, p 116.

[17] Affidavit of Lee, p 143.

[18] Affidavit of Lee, p 144.

[19]  Affidavit of Lee, pp 147-148.

[20] Affidavit of Lee, p 150.

[21] Affidavit of Lee, p 149.

[22] Affidavit of Lee, p 149.

[23] Affidavit of Lee, p 171.

[24] Affidavit of Lee, p 204.

[25]  Affidavit of Lee, p 215.

[26]Limitation of Actions Act 1974 (Qld), s 11.

[27]Ward v Wiltshire Australia Pty Ltd (2008) 51 MVR 1 at 9 [33].

[28]Winters v Doyle & Anor [2006] 2 Qd R 285 per Keane JA (as His Honour then was) at [34].

[29] Affidavit of Lee, p 128.

[30]  [2004] QSC 324 at [40].

[31]Winters v Doyle [2006] QCA 110 at [24].

Close

Editorial Notes

  • Published Case Name:

    Singh v Hill & Anor

  • Shortened Case Name:

    Singh v Hill

  • MNC:

    [2019] QSC 79

  • Court:

    QSC

  • Judge(s):

    Boddice J

  • Date:

    29 Mar 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment [2019] QSC 79 29 Mar 2019 Application for leave to commence a proceeding against the respondents for damages for personal injury pursuant to s 57 of the Motor Accident Insurance Act 1994 (Qld) refused: Boddice J.
Appeal Determined (QCA) [2019] QCA 227 25 Oct 2019 Appeal allowed; any order of the learned primary judge, dismissing the originating application filed 13 February 2019, set aside; originating application filed 13 February 2019 granted; pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld), appellant ordered to be able to commence proceedings within 60 days of a compulsory conference: Sofronoff P and Gotterson JA and Flanagan J.

Appeal Status

{solid} Appeal Determined (QCA)