Stanton v DMK Forest Products Pty Ltd
[2003] QDC 150
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- Unreported Judgment
- Stanton v DMK Forest Products Pty Ltd[2003] QDC 150
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Stanton v DMK Forest Products Pty Ltd[2003] QDC 150
Stanton v DMK Forest Products Pty Ltd[2003] QDC 150
DISTRICT COURT OF QUEENSLAND
CITATION: | Stanton v DMK Forest Products Pty Ltd. [2003] QDC 150 |
PARTIES: | JOHN WILLIAM STANTON Applicant and DMK FOREST PRODUCTS PTY LTD (ACN 001 002 428) Respondent |
FILE NO/S: | 153/2003 |
DIVISION: | Civil |
PROCEEDING: | Originating Application. |
ORIGINATING COURT: | District Court, Southport |
DELIVERED ON: | 16 May 2003 |
DELIVERED AT: | Southport |
HEARING DATE: | 14 April 2003 |
JUDGE: | Alan Wilson SC DCJ |
ORDER: | Declare that the claimant is authorised to proceed further with his claim despite his non-compliance with s 9(3)(b) and 9(5) of the Personal Injuries Proceedings Act 2002 |
CATCHWORDS: | STATUTES – STATUTORY CONSTRUCTION – Notice of Claim under Personal Injuries Proceedings Act 2002 – delay – whether reasonable excuse for delay – discretionary relief – whether applicant should have leave to proceed notwithstanding delay, and absence of reasonable excuse Personal Injuries Proceedings Act 2002 Cases considered: Dempsey v Dorber (1990) 1 Qd R 418 Nielson v Peters Ship Repair Pty Ltd (1983) 2 Qd R 419 Randel v Brisbane City Council (1984) 2 Qd R 277 Parsons v Doukas (2001) 34 MVR 103 Piper v Nominal Defendant (2003) QSC 039 ReTonks (1999) 2 Qd R 671 Salido v Nominal Defendant (1993) 32 NSWLR 524 Simpson v Hopemont 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: | Ms K T Magee for the applicant Mr K N Wilson SC for the respondent |
SOLICITORS: | Primrose Couper Cronin Rudkin for the applicant. Jensen McConaghy for the respondent. |
- [1]This is an application under the Personal Injuries Proceedings Act 2002 (PIPA). Under s 9 of that Act a person who claims to be injured in circumstances which may involve proceedings for damages is required to give the alleged tortfeasor a Notice of Claim, containing information about the event, within a specified period. This applicant did not do so, but says he has given a “reasonable excuse” for that failure (a contingency the legislation also contemplates) and seeks a declaration that his subsequent, albeit late Notice is compliant. In the alternative he contends that, if his excuse was not reasonable, a power given to the Court under s 18(1)(c) to permit him to proceed notwithstanding non-compliance should be exercised in his favour.
- [2]Under UCPR r 26(8) an originating application of this kind or the material filed with it must show the Court has jurisdiction to decide the application[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 to be a reference to a Court “with jurisdiction to hear the claim”. The applicant’s Notice of Claim alleges he suffered a broken rib; bruising, cuts, abrasions, and lacerations; a neck injury; a back injury; and, headaches; and, that he was away from work for about five weeks. The accident occurred on 11 December 2002. While the period since the accident is short, and the material about it less than precise, this information is sufficient, for the purposes of this application, to establish the matter falls within the monetary jurisdiction of this Court.
- [3]The circumstances in which the plaintiff was injured are not in dispute, but the information he has provided about them in his Notice, and through his solicitors, are relevant to aspects of the discretionary relief he seeks under s 18, if it is necessary to consider that issue. The Notice of Claim shows he is now 59, and attended high school up to year 3. He was employed full-time at MovieWorld as a driver. At around 9a.m. on 11 December 2002, he says, he went to the respondent’s premises to purchase material and as he was standing in its yard, about 14 feet away from two pieces of timber, they suddenly fell and crushed him, causing his injuries. In para 16 of the Notice he asserts the respondent was negligent in failing to secure or safely store timber. In a letter of demand sent by his solicitor to the respondent on 18 December 2002 it is asserted the applicant “...was injured by two pieces of timber that were standing against two pallets falling on him”. It also appears from the Notice that he may have made a claim for lost wages from WorkCover and his solicitor explained part of the delay by referring to the need to obtain WorkCover’s file, suggesting Mr Stanton may have been at the respondent’s premises for some purpose associated with his employment. Again, save in respect of the discretionary relief sought by the applicant, no issue arose in this matter about the involvement of another insurer.
- [4]An affidavit from the applicant’s solicitor Mr Smith shows he was first instructed by the applicant only two days after the accident, on 13 December 2002. He sent the letter of demand to the respondent on 18 December. On 30 January 2003 Suncorp Metway Insurance Limited replied to Mr Smith, apparently on the respondent’s behalf, advising that:
S 9(3)(b) of the Personal Injuries Proceedings Act 2002 (“the Act”) requires that a claimant must give written notice of a claim, in the improved form, the day one month after the day the claimant first consults a lawyer.
Based on the information received the claimant consulted your office no later than 18 December 2002. Clearly the prescribed period under s 9(3)(b) has now expired.
We therefore consider that your client has failed to provide a complying Notice of Claim and accordingly is unable to proceed further.
- [5]On 3 February 2003 Mr Smith replied advising he was obtaining his client’s income tax material and the WorkCover file and would then be delivering a “complying Notice of Claim” and “a statutory declaration…giving a reason for the delay”. Mr Smith received the WorkCover file on 4 February. On 17 February Suncorp advised by letter that the Notice under s 9 should be served upon the respondent, and not Suncorp Metway.
- [6]On their face the Notice of Claim and attached statutory declaration were both sworn on 3 March 2003, but Mr Smith’s affidavit shows they were sent by mail to Suncorp on 27 February. At the hearing counsel for the applicant conceded that date must be wrong, and the Notice and declaration were posted to Suncorp some time between 3 March, and 25 March, when Suncorp sent a letter asserting the applicant had failed to give a reasonable excuse for his delay and had, therefore, failed to give notice of his claim; and, moreover, that Suncorp was not prepared to waive that non-compliance (under s 18) so the applicant could not proceed.
Personal Injuries Proceedings Act 2002 (PIPA)
- [7]The Act commenced on 20 June 2002, some six months before 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 the purpose of the legislation 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 ensuring Court proceedings are not brought precipitately.
- [8]S 9 relevantly provides:
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]The relevant part of 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]The “reasonable excuse” (s 9(5)) originally proffered by the applicant was contained in his statutory declaration, which accompanied the Notice. It simply recited that the claim form was not given to him within a month of first consulting his solicitor, although a letter of demand was sent on 18 December 2002; but no response was received by his solicitor to that letter until 20 January 2003; and, that upon receiving that letter his solicitor prepared the claim form and he executed it. On its face this is not an excuse at all, but simply a recitation of the failure of the applicant, and his solicitor, to send the Notice in time. In oral submissions the applicant’s counsel also referred to a delay encountered by the applicant’s solicitor, mentioned in an affidavit from him, in obtaining the WorkCover file so that he could insert some material sought in the Notice (including the WorkCover claim reference number). There is, however, no evidence to show when information was sought from WorkCover, nor to establish that it could not have been obtained at some earlier time. Again, (as the applicant’s counsel properly conceded) this cannot reasonably be viewed as an excuse in terms of s 9(5).
- [11]Rather, it was submitted that the applicant himself had a reasonable excuse because he had consulted solicitors within two days of the incident occurring and, thereafter, left the matter in their hands; and, it was argued, the solicitor’s failure to lodge the Notice of Claim was not something which should be visited upon the applicant himself. Reliance was placed upon provisions of the Limitation of Actions Act 1974, relevant to the question whether a person seeking an extension of time under that legislation to bring proceedings has taken reasonable steps to ascertain a “material fact” under s 30(d). In considering whether an applicant has acted reasonably in the context of that legislation, the Courts have held that placing the matter in the hands of apparently competent solicitors with adequate instructions ordinarily amounts to the taking of reasonable steps, provided the applicant exercises his or her best endeavours to ensure the solicitors do not delay in the prosecution of the action[2].
- [12]There is, however, good reason for thinking that PIPA s 9 (and s 18) involves a different test, with different criteria, from that which arises under those parts of the Limitation of Actions Act.PIPA has no like provisions dealing with “material facts”, and their discovery. A principal is ordinarily held liable for the action of his or her agent, carried out within the scope of the agent’s authority. Usually, a claimant under PIPA will act through a solicitor who will have the authority to decide which notices need to be given, and act accordingly. On its face, PIPA is to be construed so that the excuse should exculpate not only the applicant, but also an agent, including a solicitor, retained to act on the applicant’s behalf. The contrary view involves a logical inconsistency: an applicant who engages an incompetent or negligent solicitor might legitimately be excused more delay than one whose legal representative complies with the legislation – thwarting the obvious purpose of PIPA.
- [13]To date, there have been no decisions on s 9 (5) of particular assistance. Some guidance is provided by Piper v Nominal Defendant (2003) QSC 039 which considered an almost identically worded provision in the Motor Accident Insurance Act 1994. Wilson J said, at para [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.
The decision is presently under appeal.
- [14]I was also referred to the decision of the Queensland Court of Appeal in Solway v Lumley General Insurance Ltd & Ors (2003) QCA 136 in which Williams JA referred at paras [10]-[12] to a passage in Taikato v the Queen (1996) 186 CLR 454 at 464-5[3] in which it was suggested that the meaning of the term “reasonable excuse” will vary, and depend not only on the circumstances of the individual case but also on the purpose of the provision in which it is contained.
- [15]Nothing in the applicant’s personal history or circumstances, or matters arising in respect of the events surrounding his injury, suggest any reason why he (or his solicitor) could not have given the Notice of Claim within the stipulated period. There is no basis for concluding, then, that the applicant had a reasonable excuse and his Notice was, then, non-compliant.
- [16]The question which then arises is whether the residual discretion vested in the Court under s 18(1)(c)(ii), to allow the claimant to proceed with his claim notwithstanding non-compliance, should be exercised in his favour. The jurisdiction is to be exercised in a way which acknowledges the claimant is seeking an indulgence and has an obligation to demonstrate to the Court why he should be allowed to proceed with his claim[4]; whilst not forgetting that, as Connolly J said in Dempsey v Dorber (1990) 1 Qd R 418 at 422:
These jurisdictions are not exercised on a punitive or even on a cautionary basis. The essential question is whether there is good reason for making these orders.[5]
- [17]To similar effect are remarks of McMurdo P in Thomas v Transpacific Industries Pty Ltd (2003) 1 Qd R 328, a case which dealt with similar requirements for notices under the Motor Accident Insurance Act 1994 (s 37). At 335, the President said:
[8] Explanation for delay is a relevant factor but is only one factor for the Court’s consideration in exercising its discretion to give leave to bring the proceeding under s 39(5) of the Act. see Dempsey v Dorber and Re Tonks.
[9]His Honour rightly noted that it was likely that the respondent would suffer some prejudice because of the passage of time and the disentangling of symptoms caused by pre-existing conditions aggravated by supervening trauma. The respondents did not point to specific prejudice.
[10] On the other hand, to refuse the application was to forever shut the applicant out of his cause of action against the respondent.
…
- [18]Thomas’s case also involved a consideration of the factors relevant to the discretion arising under s 18 in an application of this kind and identified, in particular, the extent of the applicant’s delay in giving the notice, the adequacy of any explanation for that delay, and the likelihood of prejudice which might flow from it. The nature of the circumstances giving rise to the claim, and the claimant’s ultimate prospects of success, were also said to be relevant.
- [19]The respondent conceded it could point to no instance of prejudice. The applicant himself consulted a lawyer about his claim very promptly, within two days of his accident. A complying Notice should have been given, then, within one month after that consultation, ie on or before 13 January 2003: s 9(3)(b). The Notice was not, in fact, provided until some time after 3 March 2003. That delay is to be considered, however, in the context of the solicitor’s letter to the respondent giving a warning of the claim and some details about it on 18 December 2002; and, the provisions of s 9(3)(a), which allows a period of nine months for the Notice to a claimant who does not consult a solicitor so promptly as Mr Stanton.
- [20]The point most vigorously contended by the respondent concerned the calibre of the applicant’s material in respect of the case he might have, in negligence, against the respondent. Particulars of the information and material advanced by the applicant were set out earlier, at para [3]. The respondent argues that evidence falls well short of showing some prospect of establishing negligence on its part and, in those circumstances, the applicant should not be allowed to proceed.
- [21]The nature of the onus upon an applicant in this respect was considered by the Court of Appeal in Thomas’ case[6]. Davies JA said at 339-340:
The applicant’s prospects of success
[32] I would accept that, in an application of this kind, it is not necessary to show a prima facie case. However, I do not think that that is what the learned primary judge was saying in the passage relied on by the applicant, only a small part of which I have quoted above. The passage should be set out in full.
“In my opinion it is likely that some prejudice would be suffered under circumstances such as these. It is not possible to identify it with precision, but the disentangling of symptoms caused by pre-existing conditions and then aggravated by a supervening trauma are often difficult. This case seems likely to be in that category. Also, it seems there is really no prima facie case of negligence established against the defendant, in any case. No fact is mentioned, which could point to liability in the employer.”
[33] It is significant that, immediately upon the conclusion of this passage, his Honour referred to the decision of McKelvie v Page in which Wilson J said:
“A factor which weighs heavily against the grant of leave is that there is no evidence before me as to how the accident happened, beyond the fact that there was a head-on collision between the plaintiff’s bicycle and a motor vehicle.”
The last sentence in the passage quoted from his Honour’s judgment, in my opinion, echoes this sentence which I have quoted from the judgment of Wilson J in McKelvie and the sentence was referred to specifically in argument shortly before his Honour delivered his judgment. It seems to me, therefore, that his Honour was saying no more than that there was no fact stated which pointed to liability of the employer. The absence of anything to indicate liability in a respondent is in my opinion a relevant factor in the exercise of the discretion under s 39(5)(c), as indeed would be some indication that the applicant had a strong case against the respondent in negligence.
[34]I cannot be satisfied therefore that, on the evidence before him, the learned primary judge either took into account irrelevant matters or failed to take into account relevant matters or that, in any other way, he erred in law in exercising his discretion in the way he did.
- [22]At 328, the President said:
[10] On the other hand, to refuse the application was to forever shut the applicant out of his cause of action against the respondent. Although the material before his Honour did not suggest the applicant’s case was necessarily strong, the s 37 Notice stated sufficient facts to conclude that the granting of leave would not obviously be a futile exercise. In my view, a consideration of the competing interests favoured the granting of the application.
- [23]Helman J concurred with the President, and Davies JA, and said he agreed with the reasons of both. In a subsequent decision, Simpson v Hopemont Pty Ltd & Anor [2003] QSC 078, he said:
[5] An applicant under s 39(5)(c) is not required to show a prima facie case, but the absence of anything to indicate liability in a proposed defendant is a relevant factor in the exercise of the Court’s discretion, as is some indication that the applicant has a strong case: Thomas v Transpacific Industries Pty Ltd. 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.
- [24]The applicant’s material, while sparse, gives rise to reasonable inferences that his alleged mishap occurred suddenly and unexpectedly, and in circumstances which were both beyond his control, and surprising. His assertion, in para 16 of his Notice that the respondent caused the accident by having the timber in an unsafe position, and failing to secure or safely store it, suggests a concomitant inference - that the event was one which might attract the res ipsa loquitur doctrine. These matters go some way towards indicating liability on the part of the respondent and establish to a sufficient degree, I think, that it would not be futile for the applicant to pursue his case.
- [25]Early notice of the claim, a relatively short delay in the delivery of the Notice required by PIPA, the absence of prejudice, and indications the claim is probably a viable one all point to the conclusion the discretion should be exercised in the applicant’s favour.
- [26]It was also contended by the respondent that in that event, however, any relief granted should be made subject to the claimant complying with amendments to PIPA affected under the recent Civil Liability Act 2003, and also any relevant provisions of that legislation. That Act commenced on 9 April 2003. Chapter 6 affects significant amendments to PIPA, and applies to the applicant’s claim: CLA s 4(1). It also inserts, under s 109, a new Chapter 4 Part 3 in PIPA and, under s 79 of PIPA¸ the CLA amendments can only be ignored if a complying Notice of Claim has been given before the latter commences. The respondent contends that a “Notice of Claim” in s 79(1) should be construed as a complying Notice of Claim (within the definition of that term in PIPA), and no complying notice has been given in this case. The amendments to PIPA s 9 now require that the Notice is in two parts (although, when this matter was heard, the new form could not, apparently, be found).
- [27]White J gave leave to proceed, but subject to conditions to be fulfilled by the applicant, in Re Tonks[7] (in the circumstances which arose in that case with reference to s 37(4) and 39(5) of the Motor Accident Insurance Act 1994), but the delay had there been much longer (about 18 months). Where, as here, the delay is short, early notice of the claim has been given, the only other matter giving rise to a complaint of. non-compliance is the failure to explain the delay (and the cause of that failure is plain and obvious – and, as I have found, capable of being excused) there seems little point in requiring the applicant to repeat the exercise. To do so would provide no further assistance or benefit to the respondent, and have no effect save a punitive one upon an applicant, to no purpose.
- [28]The appropriate order is to declare that the claimant is authorised to proceed further with his claim, despite the non-compliance. I will hear submissions about costs.
Footnotes
[1] Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd (1991) 1 Qd R 192 at 197 per McPherson J
[2] Nielson v Peters Ship Repair Pty Ltd (1983) 2 Qd R 419; Randel v Brisbane City Council (1984) 2 Qd R 277
[3] Brennan CJ, Toohey, McHugh and Gummow JJ
[4] Re Tonks (1999) 2 Qd R 671; Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530-532, 537-539.
Parsons v Doukas (2001) 34 MVR 103; PIPA (supra) at [27]
[5] Cited by White J in Re Tonks (supra), AT 678
[6] supra
[7] supra, at 678