Sarina v Thursday Afternoon Pty Ltd
[2003] QDC 149
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- Unreported Judgment
- Sarina v Thursday Afternoon Pty Ltd[2003] QDC 149
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Sarina v Thursday Afternoon Pty Ltd[2003] QDC 149
Sarina v Thursday Afternoon Pty Ltd[2003] QDC 149
DISTRICT COURT OF QUEENSLAND
CITATION: | Sarina v Thursday Afternoon Pty Ltd [2003] QDC 149 |
PARTIES: | PETER HOWARD SARINA Applicant and THURSDAY AFTERNOON Pty Ltd Respondent |
FILE NO: | D106/2003 |
DIVISION: | Civil |
PROCEEDING: | Application |
DELIVERED ON: | 16 May 2003 |
DELIVERED AT: | Southport |
HEARING DATE: | 7 April 2003 |
JUDGE: | Alan Wilson SC DCJ |
ORDER: |
|
CATCHWORDS: | STATUTES – STATUTORY CONSTRUCTION – Notice of Claim under Personal Injuries Proceedings Act 2002 – delay – whether reasonable excuse for delay Personal Injuries Proceedings Act 2002 Cases considered: Brannigan v Nominal Defendant (2000) 2 Qd R 116 Piper v Nominal Defendant (2003) QSC 039 Simpson v Hopemount Pty Ltd & Anor (2003) QSC 078 Solway v Lumley General Insurance Ltd & Ors (2003) QCA 136 Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd (1991) 1 QD R 192 Taikato v The Queen (1996) 186 CLR 454 Thomas v Transpacific Industries Pty Ltd (2003) 1 Qd R 328 |
COUNSEL: | Mr M E Pope for the applicant Mr A C Harding for the respondent |
SOLICITORS: | Primrose Couper Cronin Rudkin for the applicant Suncorp Insurance Ltd for the respondent |
- [1]This is an application under s 18(c) of the Personal Injuries Proceedings Act 2002 (PIPA) for a declaration that the claimant has remedied a non-compliance with that legislation or, alternatively, for an order authorising him to proceed further with the claim despite non-compliance.
- [2]Two preliminary matters arose: first, the respondent (an insurance company) objected to the applicant’s non-compliance with UCPR r 26(6) which requires that these applications specify the name and section number of the Act under which they are brought. Leave was given to the applicant to amend the originating application to remedy that defect. The second matter concerned the requirement in UCPR r 26(8) that the application or the material filed in it must show this Court has jurisdiction to decide the matter[1]. The definition of “Court” in the schedule to PIPA provides that, if no proceeding based on a claim has been started, references in the legislation are taken as a reference to a Court “with jurisdiction to hear the claim”. The applicant’s original Notice of Claim was exhibited to an affidavit of his solicitor and I also gave him leave to tender a copy of a draft claim in the action he might, ultimately, bring. Both persuaded me the matter falls within the jurisdiction of this Court, and I may decide the application.
- [3]The applicant alleges that on the afternoon of 4 February 2002 he was at the defendant’s premises, a bar and restaurant at Chevron Island when he was assaulted by a person who appears to have been a fellow patron at the bar in circumstances which, the draft claim asserts, involved negligence on the defendant’s part, with particulars that the defendant’s staff continued to supply liquor to the assailant, and failed to control him when his behaviour had been aggressive and unpleasant for some time.
- [4]The claimant consulted his present solicitors about three weeks later, on 22 February 2002 and they wrote to the respondent on 25 February. On 20 March 2002 Suncorp Metway Insurance Limited replied saying it was the respondent’s public risk insurer. Thereafter, letters and telephone calls passed between the plaintiff’s solicitors and Suncorp including, in particular, one from Suncorp of 5 August 2002 in which it referred to its investigations and, while making allegations which raised doubts whether it would accept the plaintiff’s claims or responsibility for damages for his injury, also said:
Under the circumstances we would be pleased if you would furnish us with medical evidence in support of your client’s injuries.
In a further letter of. 29 August 2002 Suncorp again sought medical reports saying:
In the meantime we look forward to receiving any evidence you acquire in relation to the issue of liability together with the relevant medical reports that come to hand.
- [5]The applicant’s solicitor says, and I accept, that he then arranged an appointment with an orthopaedic specialist on 7 November 2002, and received that specialist’s report on 13 January 2003. On the same day he wrote to Suncorp disputing its assertions about the circumstances surrounding his client’s injury, but also enclosing the specialist’s report and asking whether the insurer was prepared to entertain informal settlement negotiations. Otherwise, he said, he would deliver a Notice of Claim in accordance with the Personal Injuries Proceedings Act 2002, s 9. When he had no reply to that letter by 30 January, he sent that Notice of Claim which was, then, just over a month out of time.
- [6]Suncorp finally replied on 26 February 2003 asserting the Notice should have been served on or before 29 December 2002 and that it was not prepared to waive non-compliance with the statutory time limit. This application was then brought.
Personal Injuries Proceedings Act 2002 (PIPA)
- [7]The Act commenced on 20 June 2002, some four months after the incident giving rise to the plaintiff’s claim. It was promptly amended by the Personal Injuries Proceedings Amendment Act 2002, No. 38, which took effect on 29 August 2002. S 4 announces that its purpose is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury which is to be achieved, inter alia, by providing a procedure for the speedy resolution of claims, and promoting early settlements and minimising costs and, relevantly:
4
…
(c) ensuring that a person may not start a proceeding in a Court based on a claim without being fully prepared for resolution of the claim by settlement or trial.
- [8]S 9 provides, in its relevant parts:
9 Notice of a claim.
- (1)Before starting a proceeding in a Court based on a claim, a claimant must give written notice of the claim, in the approved form, to the person against whom the proceeding is proposed to be started.
- (2)The notice must -
(a) contain a statement of the information required under a regulation; and
(b) authorise each of the following to have access to records and sources of information relevant to the claim specified under a regulation -
(i) the person;
(ii) if the person is insured against the claim, the person’s insurer for the claim; and
(c)be accompanied by the documents required under a regulation.
- (3)The notice must be given within the period ending on the earlier of the following days -
(a) the day 9 months after the day the incident giving rise to the personal injury happened or, if symptoms of the injury are not immediately apparent, the first appearance of symptoms of the injury; and
(b) the day 1 month after the day the claimant first consults a lawyer about the possibility of seeking damages for the personal injury and the person against whom the proceeding is proposed to be started is identified.
- (4)If the claimant is a child, the child’s parent or legal guardian may give the notice for the child.
- (5)If the notice is not given within the period prescribed under subsection (3), the obligation to give the notice continues and a reasonable excuse for the delay must be given in the notice or by separate notice to the person against whom the proceeding is proposed to be started.
…
- [9]Relevantly, s 18 provides:
- (1)A claimant’s failure to give a complying notice of claim prevents the claimant from proceeding further with the claim unless -
(a) the respondent to whom notice of a claim was purportedly given -
(i)has stated that the respondent is satisfied that the notice has been given as required or the claimant has taken reasonable action to remedy the noncompliance; or
(ii)is presumed to be satisfied the notice has been given as required; and
(b)the respondent has waived compliance with the requirement; or
(c)the court, on application by the claimant -
(i)declares that the claimant has remedied the noncompliance; or
(ii)authorises the claimant to proceed further with the claim despite the noncompliance.
- (2)An order of the court under subsection (1)(c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant’s failure to comply with the requirement.
- [10]It is not in issue that, pursuant to the provisions of s 77A(3) of PIPA the claimant was deemed to have consulted his solicitors not later than 29 November 2002 and was therefore required, under s 9, to deliver his Notice of Claim by 29 December 2002. By letter 28 February 2003 the applicant’s solicitors admitted this non-compliance and said the explanation and excuse for the delay was as follows:
- The claimant was injured on 4 February 2002.
- You acknowledge receipt of the claim notification by letter dated 20 March 2002.
- There has been numerous discussions regarding this claim with your company by telephone and letter.
- By letter dated 5 August 2002, your company requested that we obtain medical reports.
- You repeated this request by letter dated 29 August 2002.
- Pursuant to these requests we made a medicolegal appointment and provided you with the orthopaedic report on 13 January 2003 and asked whether you wished to commence settlement negotiations. Your company did not respond.
- On 20 January we delivered the Notice of Claim in form 1. “
- [11]In written submissions counsel for the applicant summarised the applicant’s “reasonable excuse” for the delay (PIPA, s 9(5)) in terms that the approved form of Notice of Claim required under PIPA “...contemplates the need for a medical assessment before the question could be accurately answered”. Item 27 in Form 1, promulgated under PIPA, simply asks this question:
27 HAS THE INJURED PERSON SUFFERED ANY DISABILITIES FROM THE PERSONAL INJURY (eg limp, restricted movement, impaired vision) WHICH IS RELEVANT TO THE ASSESSMENT OF THE EXTENT OF THE PERSONAL INJURY?
I do not think it can be reasonably inferred that a claimant must undergo medical assessment before answering the question. Indeed the passage in parenthesis, which uses lay rather than medical terms, rather points to the opposite conclusion.
- [12]In truth, I think, the question here is whether or not the fact of ongoing communications between the claimant and a third party representing itself as the respondent’s insurer, in which the latter actively seeks medical evidence relating to the claim, gives rise to a circumstance constituting a reasonable excuse. The issue is to be considered in light of PIPA s 7 which declares that the provisions of parts of the legislation, including s 9(5) are provisions of substantive, as opposed to procedural, law; and, recent authority suggesting that the question is to be judged objectively, in light of all the circumstances[2].
- [13]Those circumstances include, here, the fact the legislation was introduced some time after the event giving rise to the plaintiff’s claim; that he was, however, represented by a solicitor from an early date and, in particular, throughout the period which covers the months in which the legislation was introduced, and amended, and the Notice became due; and, the conduct of the insurer. Other circumstances would ordinarily include the nature of the injury sustained, and the likelihood of prejudice to the insurer but neither is of particular relevance in this case.
- [14]There have not yet been any decisions on PIPA s 9(5) which assist with this matter, although in Piper v Nominal Defendant (supra) Wilson J considered an almost identically-worded provision in the Motor Accident Insurance Act (1994) in which she said:
[19] Whether an excuse is a reasonable one is to be judged objectively in all the circumstances. Those circumstances include the claimant’s personal characteristics such as his age, intelligence, and education, the nature of the injury sustained, and the likelihood of prejudice to the nominal defendant.
The decision is presently under appeal.
- [15]As to the usual meaning of the term “reasonable excuse” I was not referred to, but adopt, the remarks of the majority in Taikato v The Queen (1996) 186 CLR 454 at 464-5[3] to the effect that its meaning will depend upon the circumstances of the individual case, and the purpose of the provision in which it is used. The passage was referred to by Williams JA (with whom Davies JA, and Atkinson J agreed) in Solway v Lumley General Insurance Ltd & Ors (2003) QCA 136[4].
- [16]The main purpose of the PIPA legislation has already been set out in para [7]. In the circumstances arising here, summarised earlier in paras [3], [4], and [5] there had been very early notice of the claim, before the legislation itself was promulgated; extensive communications about both liability and quantum had passed between the claimant, and the respondent’s insurer over a lengthy period before the time for delivery of the notice expired; the insurer, apparently acting on behalf of the respondent, invited the claimant to submit his medicolegal evidence as it was obtained – but did not, at the same time, issue any warning suggesting it would insist upon strict compliance with the time limits; very shortly after that time limit expired the claimant’s solicitor enquired if the insurer would so insist; and, the insurer did not notify the claimant’s solicitor of its adverse position for almost two months. All of those circumstances give rise, in my view, to a “reasonable excuse” within the meaning of that term as it is used in s 9(5). It follows that the applicant has, then, remedied his noncompliance with s 9(3) (the late delivery of the Notice), and is entitled to a declaration under s 18(1)(c)(i) to that effect.
- [17]Even if that was not so I would, in any event, be prepared to exercise the discretion arising under s 18(1)(c)(ii) (to authorise the claimant to proceed further with the claim despite the noncompliance) in the applicant’s favour. Again, I was not graced with submissions about that discretion nor referred to the decision of the Court of Appeal in Thomas v Transpacific Industries Pty Ltd (2003) 1 Qd R 328, which makes it clear that the factors relevant to the exercise of the discretion (albeit in the context of other, but very similar legislation) are the length of the delay, the reasons for that delay, and the question whether any prejudice has arisen as a consequence of it; and, whether or not the applicant appears to have a reasonably sustainable cause of action.
- [18]Here, the delay is short, and the respondent has not suggested it has suffered any prejudice. The reason for the delay, while not admitted by the applicant or his solicitor, appears to be a simple oversight on the part of one or both of them, in the context of the ongoing correspondence with the insurer about the claim, including the delivery of medical reports. The respondent did not contend that the applicant had failed to adduce sufficient evidence to establish, to a reasonable degree, that he had a sustainable cause of action. The applicant is not required to show a prima facie case, but he ought to be able to point to matters which, if proved, have some prospect of establishing liability in an action against the respondent, and that his proposed cause of action is not futile: Thomas v Transpacific Industries Pty Ltd (supra); Simpson v Hopemount Pty Ltd & Anor (2003) QSC 078, at para [5].
- [19]Very clear particulars of the applicant’s allegations against the respondent were set out in the applicant’s solicitor’s original letter 25 February 2002, and the insurer’s response of 5 August 2002 indicates it has conducted its own investigations, and obtained its own witness statements; and, while it goes on to raise assertions rebutting the applicant’s allegations it then, of course, invites the submission of medical evidence. In the upshot, the applicant’s position is at least as good as that of the applicant before Helman J in Simpson v Hopemount Pty Ltd (supra) at para [5], of whom his Honour said:
…
In this case it cannot be said that the applicant has a strong case of causes of action arising on and after 5 March 2000, but I am not satisfied of the futility of his pursuing them.
There are, then, clear grounds for exercising the discretion in the applicant’s favour.
- [20]The applicant sought costs and, further, an order that they be paid on an indemnity basis because, it was said, the insurer’s behaviour was contrary to the tenor of the legislation as it is revealed in the Attorney-General’s second reading speech[5]. In the course of that speech the Attorney-General discussed “pre-Court procedures and limits on the recovery of legal costs” which would “reduce the costs of managing claims” but I do not think those general remarks have any particular relevance here. The applicant could, as his counsel submitted, have simply delivered his Notice to the respondent in time. At the same time, the insurer has done no more than take a position which is open to it under the legislation – albeit one which, I think, probably warranted further reflection. Where a provision in legislation like this is quite clear and a claimant ought for prudence’ sake act in accordance with it, but the insurer might also be said to have induced the belief that it would not object to a relaxation of the statutory requirement, I think the justice of the case is best served if there is, simply, no order as to either party’s costs.