Laskey v Gilbert
[1998] QDC 225
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- Unreported Judgment
- Laskey v Gilbert[1998] QDC 225
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Laskey v Gilbert[1998] QDC 225
Laskey v Gilbert[1998] QDC 225
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 65 of 1994 |
BETWEEN:
SHERIDON LASKEY | Plaintiff |
AND:
MARK GILBERT | Defendant |
REASONS FOR JUDGMENT - BOULTON D.C.J.
Delivered the 2nd day of September 1998
The plaintiff makes application pursuant to Rules 375 and 377 of the District Court Rules.
She was a passenger in a motor vehicle which suffered a collision with another vehicle on 22nd February 1991. I am told that the licensed insurer, Suncorp, was informed of the claim on 16th September 1991 and that there was correspondence between the plaintiff's then solicitor and Suncorp up to about March of 1992 when a medical report was supplied to Suncorp. Suncorp did not respond to a request for financial assistance with medical treatment which was made around that time.
The driver of the motor vehicle in which the plaintiff was travelling was her then boyfriend, Mark Gilbert. She suffered facial injuries. The relationship between them broke down a couple of weeks after the accident. She alleges that he had become violent and that she moved back to live with her mother and sisters. Her mother also was the victim of a violent relationship. Her father took his own life on 13th August 1993.
The plaintiff says that she found all of this extremely distressing. She had psychiatric problems of a serious nature. The stress affected her to the point where she made two attempts on her own life, one in late 1991 and one, it seems, in late 1993. She received psychiatric treatment as an outpatient.
She claims to have shut the accident out of her mind because of its traumatic aftermath.
It does seem that she consulted a solicitor, Mr Greenland, on or about 19th April 1991. An application was made on her behalf for legal aid, but was refused. She was impecunious and was unable to afford necessary medical treatment. This was also the time when she suffered her personal problems. The plaint was issued on 21st February 1994. It seems that a copy of the plaint was given to the plaintiff to serve on the defendant as an economy measure, but because of her depressed frame of mind, it was never actually served. There was, in addition to the distress of the breakdown of the relationship, an added difficulty in locating the defendant. This is referred to by Mr Greenland in his affidavit.
It was not until she heard a radio advertisement from her present solicitor in late 1997 that she was able to overcome her reluctance to revive the experience. Within a few days, Mr Ellis sought her file from Mr Greenland and that was received on 13th February 1998. An application was made to extend the time for renewal of the plaint to the Registrar of the District Court. This application was made in error. However, on 25th February 1998, the Registrar extended the time. It is agreed by counsel before me that the Registrar had no power to do so and I have set aside the Registrar's order by consent of the parties.
The result is that the plaintiff seeks an extension of time in which to renew the plaint and also seeks leave to proceed. Similar considerations apply to both applications. This was pointed out by Connolly J in Traj v The Cannery Board (1990) 1 Qd.R. 494 at 496.
It is worth noting that while the plaint was issued in time, the limitation period has now well and truly expired. There must be good reason for excepting the proceedings from the normal prohibition. Connolly J pointed out at p.496 of the abovementioned judgment:
“I take ‘good reason’ in D.C.R.r.53 to be good reason for excepting the case from the general prohibition on proceedings on a plaint which has ceased to be in force. In so stating the proposition I am, of course, modifying what the High Court said in relation to A.90 r.9 of the Rules of the Supreme Court in William Crosby & Co Pty Ltd v Commonwealth (1963) 109 CLR 490 at 496. Whether there is such good reason involves a consideration of all relevant matters which will include the reason for the delay, and this in turn will include whether there was reasonable excuse for the delay; prejudice to the defendant if the application be granted; and the seriousness of the consequences to the plaintiff if it be refused.”
The plaintiff explains satisfactorily her failure to serve the plaint. The delay to that point of time is amply explained by her difficult circumstances and her psychiatric condition. Her explanation for the delay between 1994 and 1997 is less satisfactory, but still explicable in terms of what had gone before.
I note that the insurer was notified of the claim in 1991 and actually was provided with a medical report in 1992.
The insurer was invited to assist the plaintiff with treatment in 1992 and did not respond.
The plaintiff had been a passenger in the defendant's motor vehicle which collided with a stationary vehicle to the front. There may, of course, be issues of contributory negligence arising out of failure to fasten a seatbelt in cases of this kind. However, it would be fair to say that the plaintiff has a strong claim in liability. I note what was said by McPherson JA in Keioskie v Workers' Compensation Board of Queensland, Appeal No 46 of 1992, dated 15 September 1992 (unrep.):
“Whether there is good reason for excepting the particular proceedings from the general prohibition imposed by O.90, r.9 is not something that can or ought to be determined in a complete vacuum. There plainly is a better reason for exempting from the prohibition a case that superficially has every prospect of success than one that, on the face of it, appears doomed to failure at the trial. Passenger claims in motor vehicle cases may be an illustration of the former: see, for example, Wilson v Byron (1984) 2 Qd.R. 83, 87 where it was considered relevant that the action was ‘a passenger's quantum only’ case.”
The defendant did not file any material on the applications before me. No particular prejudice is alleged other than which is the inevitable outcome of the passage of years. I note in this regard what was said by the members of the Court of Appeal in Hullock v Roderick. Appeal No 129 of 1992 dated 19th November 1992 (unrep.):
“It is impossible to doubt in this or any other litigation that delay has a potential to prejudice the fair trial of proceedings. However, in the absence of some indication of specific prejudice, one would expect it to be a matter that would operate in favour of or against both parties more or less in equal degree. While, therefore, some potential prejudice can almost always be inferred from the fact of delay alone, there is no basis for assuming the existence of any additional prejudice in the present case.”
That comment seems to have relevance to the facts of the present application.
It seems therefore that the applications under both Rule 375 and Rule 377 should succeed. On those applications I extend time to permit the renewal of the plaint and further grant liberty to proceed. The plaintiff, however, seeks an indulgence from the court in these respects and should pay the costs of the application.
I have already indicated that the defendant's application to set aside the Registrar's order was not opposed and the order on that application was made by consent of the parties. Again, the plaintiff should pay the defendant's costs of and incidental to that application.
In both instances, the defendant's costs, if not agreed, should be taxed. I direct, however, that the taxation of such costs should await the determination of the action or earlier order of the court.