Ware v Hughes[2002] QDC 21

CIVIL JURISDICTION

JUDGE BRABAZON QC

and

BRISBANE

DATE 18/01/2002

JUDGMENT

HIS HONOUR: In this case there are competing applications for the Court. It is a personal injuries action. The plaintiff says, even though there have been long delays, that she should have leave to proceed. The defendant responds by saying that the proceedings should be struck out for want of prosecution.

The plaintiff was in her early twenties and doing some child minding when she was injured by being struck by the defendant's motor vehicle. She was pushing a pram with the child that she was minding along a road. She was in the company of a friend called Roslyn Foran. The defendant's vehicle came around the corner. There was a collision between it and the plaintiff. Her hand and more seriously her foot were damaged.

All that was as long ago now as 9 March 1992. She went to see a solicitor, Mr Greg Casey, soon afterwards and contact was made between him and the defendant's insurer.

The result was that without prejudice discussions were opened as early as May 1992. She had been treated at the Redcliffe Hospital where a report was available and later on by a Dr Nutting who repaired her foot injury.

On 25 September 1992 the defendant's insurer made a without prejudice offer to resolve the question of liability 70/30 in favour of the plaintiff. For unknown reasons' it seems that Mr Casey never responded to the insurer. That perhaps was the first sign of his inappropriate conduct as the years passed.

Almost three years had passed when he issued her plaint in March 1995. That was served on the insurer in the usual way and an entry of appearance and defence was soon entered. However, from the point of view of the insurer that is really the last effective thing that has happened.

In 1996 she particularly went to see Mr Casey because she was buying a house. He acted for her. Then throughout 1998 and 1999 he acted for her in what is said to have been a difficult matrimonial dispute. It is clear from the evidence here that he had some discussion with her about that. According to her he said that the personal injury litigation should wait until the matrimonial difficulties were resolved. The evidence overall shows that she had irregular contact with him as the years passed.

In September 1998 the insurer wrote mentioning the fact that more than three years had passed since anything had happened and asking about the action. The reply told the insurer that she was undergoing a traumatic breakdown of her marriage in connection with domestic violence and she would continue her personal injury action. However, nothing happened. In March 1999 a warning letter about delay was given by the insurer.

Things took a turn for the worse in 2000. Mr Casey went to prison because of his fraudulent conduct in some unrelated matter. That was in June 2000. She learnt about his imprisonment, it seems, not long afterwards. New solicitors took over, apparently because of the involvement of the Law Society in August 2000. A second report from her surgeon, Dr Nutting, was then obtained.

Time passed and the two reports were sent to the insurer in late 2000. There was a notice of change of solicitor given when she went to Mr Herford's firm in May 2001. He obtained advice from counsel about her prospects of proceeding. That was in October last year.

He did send a statement of loss and damage to the insurer in August last year. Complaint is made of that because of some of, it is said, its deficiencies. This application, on her part, was filed on 17 December last year. It therefore can be seen that it is almost 10 years since the accident and about six and two-thirds years since any effective step was taken in the action.

It is said for her that under all the circumstances she should have leave to proceed. Attention has been paid to what are undoubtedly the most important issues in the conflict. It is said for her that the delay has been caused entirely or largely by her solicitor.

The response to that is that she did nothing to push him along and, in fact, in a sense was complicit in what happened because she went along with the delays at least during the time of the matrimonial difficulties.

It might be kept in mind that the plaintiff has a modest position in life. Her usual occupation is a console attendant in a service station. All things considered one should not be surprised at the apparent inactivity on the part of a woman in her position. The conduct of the solicitor obviously is much to be regretted but here it should be found that he was very largely to blame for what has happened.

It is true that to some extent the matter was only stirred into life because of the intervention, in effect, of those appointed by the Law Society to do something when Mr Casey went to prison.

Another important consideration is that the actual circumstances of the collision were investigated in a timely way enabling the insurer to make the without prejudice offer. A police report is available. Despite some uncertainties it is now established that Miss Foran, the witness, is also available.

It must be said that there is no real difficulty or prejudice caused to the insurer on the question of liability. Complaint though is made about the state of the evidence on the question of quantum. It is protested to the insurer that in the usual way the quality of evidence has deteriorated and that there will be increased uncertainties about quantum.

It is pointed out that no independent medical opinion was obtained and that there will be great uncertainties particularly with regard to any claims for economic loss.

There is no need to go into any detail of the orthopaedic injuries which she suffered. The hand injury overall has not been very serious but the ankle and heel injury has been, at least, moderately serious leading to, according to Dr Nutting's most recent report a significant permanent disability in her leg.

She suffered for a good deal of time, according to the reports, and now has a permanent disability which affects her ability to work, to stand up and to run and walk long distances. She has had a child in the meantime. So much appears from Dr Nutting's report.

It is difficult to know to what extent any real prejudice will be suffered by the insurer with regard to quantum. One is inclined to think that the difficulties may be mutual in establishing what really happened in the intervening years. In some sense, of course, each side is advantaged by the fact that the position has now become clearer as her condition is surely stable.

Overall, it should be accepted that there is some disadvantage to the insurer but not of any major kind. Mr Atkinson who appeared for the insurer pointed out, of course, that there are a number of considerations including the fact that any defendant, including an insurer, is entitled to get on with its commercial life without matters unduly hanging over its head.

Perhaps that should be adjusted somewhat to say in the case of an insurer that it is entitled to deal with matters which are brought to its attention in a timely and efficient way with opportunities to investigate matters while they are still fresh.

It is true that the statement of loss and damage has been prepared nine years after the accident. Perhaps the difficulties caused by the passing years are reflected in the deficiencies which it is said to have. On the other hand, the injury from an orthopaedic point of view is fairly simple to understand. It is unlikely, I think, that there will be any real controversy about the sort of difficulties described in Dr Nutting's report. For example, the matter has not been complicated by other injuries. There is no suggestion of any psychiatric disability.

There is indeed long delay. It is one factor that has to be taken into account. In a general way I have had the advantage of being reminded of the basic principles in this area of the law by the recent decision of the Court of Appeal in Tyler v. Custom Credit Corporation [2000] QCA 178.

Counsel paid attention to the summary of the usually relevant matters set out in Justice Atkinson's judgment. In this case, in my opinion, the dominant factors are the fault of a solicitor, the modest position in life of the plaintiff, the absence of prejudice in regard to the question of liability and the perception (at least on my part) that the difficulties about quantum are probably not very great.

Cases where there have been longer periods of delay have resulted in favourable orders for plaintiffs. For example, Wilson v. Bynon [1984] 2 Queensland Reports 83. Of course, the tide is rather flowing against dilatory plaintiffs in this area because of the emphasis on efficiency and the need to have to take a step within two years now demanded by the Uniform Civil Procedure Rules.

Overall the correct exercise of the discretion, in my opinion, is to grant leave to proceed and to dismiss the defendant's application. Following a remark that was made in Court when this was argued it would seem that the plaintiff is asking for an indulgence and unless there is some good reason that might be mentioned, the plaintiff really will have to pay the costs.

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HIS HONOUR: Order that the plaintiff be given leave to proceed. Order that the defendant's application be dismissed. Order the plaintiff to pay the defendant's costs, in any event, of her own application to be assessed on the standard basis. No order for costs with respect to the filing of the defendant's application.

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