DISTRICT COURT OF QUEENSLAND

REASONS FOR JUDGMENT

1. [1]
   This is an amended application filed 2 September 2003 which seeks by different means to remedy non-compliance by the applicant with s 9 of the Personal Injuries Proceedings Act 2002 (the Act). The application seeks the following orders:

“1)That the applicant’s explanation given pursuant to Section 9(5) of the Personal Injuries Proceedings Act 2002 is deemed to have remedied the Applicant’s non compliance with Section 9(3) of the Personal Injuries Proceedings Act 2002.

2. That pursuant to Section 18(1)(c)(i) of the Personal Injuries Proceedings Act 2002 the Applicant be deemed to have remedied non compliance.

3. That pursuant to Section 18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002 this Honourable Court grant the Applicant leave to proceed further with their claim.”

2. [2]
   Section 9 of the Act provides in part:

“Notice of a Claim

1. (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 proceedings is proposed to be started.

(1A)The approved form must provide for the notice to be in 2 parts, namely part 1 and 2.

…

(3)Part 1 of the notice must be given within the period ending on the earlier of the following days -

1. (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 immediate apparent, the first appearance of symptoms of the injury;

2. (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.

…”

3. [3]
   The applicant claims to have suffered an injury to his lower back as a result of the heavy lifting of an item purchased at the respondents’ business on 11 May 2002. In some of the affidavit material filed on behalf of the applicant the date that appears is 11 May 2001. This discrepancy caused me to seek further instructions from Counsel. As a result of this I have received letters from the applicant’s solicitors dated 3 October 2003 and from the respondents’ solicitors dated 6 October 2003 confirming that the relevant date relied upon by the applicant is 11 May 2002.

4. [4]
   It seems that the applicant did not consult a medical practitioner following the alleged incident until 12 June 2002. This is the date referred to in the statutory declaration of the applicant which is Ex JMG 3 to the affidavit of Justin Maxwell Geldard filed 5 September 2003. I note that this date differs from that contained in the affidavit of the applicant filed 29 August 2003 which seems to relate to a later onset of sciatica.

5. [5]
   The affidavit of Mr Geldard deposes to the fact that the applicant’s form 1 Notice of Claim was served on the respondent on 9 July 2003. It seems that he had first consulted solicitors on 16 June 2003. That service then would comply with s 9(3)(b) of the Act but the net effect of the remainder of the sub-section and the transitional provisions mean that there has been non-compliance with s 9(3)(a). The Act had not commenced at the date of the alleged injury with the result that the applicant had until 1 May 2003 to give notice. That notice was therefore late by a little over two months.

6. [6]
   The report of general practitioner, Dr Paul Anderson which is Ex ASL8 to the affidavit of Adrian Scott Land filed 28 August 2003 contains the following history:

“I initially saw David Hodges on the 12/06/2002 when he complained of chronic lower back pain. He was prescribed an anti inflammatory. He returned on the 29/07/02 complainant of a one week history of right sided sciatica with “pins and needles” in the right lower leg and foot. He walked in a stooped attitude to reduce his pain. David had been attending a Physio (Don Kirk) and had received some lumbar traction which had exacerbated his pain. The Physio had requested an X-ray and I enclose a copy of the results. Clinical examination at the time revealed paraesthesia on the dorsum of his fight foot (worse medially) and straight leg raising R 30 degrees; L 90 degrees. His deep tendon reflexes were brisk on the right side. This examination was clearly demonstrative of lumbar nerve root irritation on the right side.”

7. [7]
   It will be immediately obvious that the history conveyed to Dr Anderson contains no mention of an incident on 11 May 2001. The complaint is one of “chronic lower back pain” and the return consultation on 29 July 2002 makes reference to a one week history of right sided sciatica.

8. [8]
   Reference to the clinical notes of Mr Kirk the Physiotherapist which are Ex ASL 3 to the affidavit of Adrian Scott Land filed 28 August 2003 only complicates the situation. Mr Land’s notes refer to consultations concerning back pain dating back to February 1996 and further consultations in late 1996, mid 1997, late 1998 and early 1999. The next consultation would seem to be dated 27 July 2002 and appears to be a reference to the onset of sciatic pain. About a week prior to that date the letter of Mr Kirk referring the applicant to Dr Anderson which is part of Ex ASL 3 is consistent with what appears in Dr Anderson’s report to which I have referred above.

9. [9]
   There follows a reference to a specialist orthopaedic surgeon, Dr Khursandi. Again there is no reference in the notes to the alleged incident but of a two week history similar to that described by Dr Anderson. A laminectomy at L4/5 was performed at the Maryborough Hospital on or about 8 August 2002. The notes refer to a three month history of the applicant having hurt his lower back lifting a bag of cement. This was followed by further reviews and further attendance on Mr Kirk ultimately leading to his consulting solicitors on 16 June 2003.

10. [10]
    Following receipt of the Notice of Claim the respondents’ solicitors on 1 August 2003 gave notification of the claim being out of time and the consequent need for an order under s 18(c)(ii) of the Act. Further reference was made to non-compliant aspects of the Notice. On 28 August 2003 the applicant’s statutory declaration was served on the respondent’s solicitors. Those solicitors have claimed that the applicant’s explanation for non-compliance with s 9(3) does not disclose a reasonable excuse. Section 9(5) of the Act provides:

“(5)If part 1 of the notice is not given within the period prescribed under subsection (3) or section 9A(9)(b), the obligation to give the notice under subsection (1) continues and a reasonable excuse for the delay must be given in part 1 of the notice or by separate notice to the person against whom the proceeding is proposed to be started.”

11. [11]
    There are quite obvious disturbing features about the abovementioned summary, which might be summarised briefly as follows:

1. (i)
   There is no reference to a complaint of injury made to the other person carrying the garden seat – presumably the male respondent.

2. (ii)
   Despite the applicant’s history of lower back problems and his earlier recourse to physiotherapy he does not appear to have consulted Dr Anderson until two months after the incident and Mr Kirk some 3½ months after the accident. On each occasion he gave a history which not only made no mention of the alleged incident but provided an explanation which could be said to be at variance with his present complaints.

12. [12]
    From this point of view the applicant’s claim against the respondents appears very shaky indeed. I note, however, that the applicant claims to have had witnesses to the incident in the person of family members. It is impossible to gauge at this point of time the probative value of his account and that of his witnesses. It is also not possible to determine whether the applicant actually received advice that the laminectomy operation was a simple one and that the pain would go away after the operation within 12 months.

13. [13]
    The respondents have deposed in their affidavits to the manifest difficulty that they are under after such a lapse of time in identifying the particular event. They have no recollection of any such injury having occurred and would seem to have no documentation which might shed further light on the matter. Such prejudice though might be thought to have existed quite independently of any delay in the matter.

14. [14]
    It would seem that the applicant’s complaint surrounds the use of a two-man lifting technique in putting the garden seat into the applicant’s motor vehicle. This would seem to have been a small family based nursery business. While it may be common experience that two-man lifting is undesirable in the case of heavy loads and may impose upon an employer or occupier an obligation to provide some form of mechanised assistance the situation may be less clear in the context of a small operation if the weight to be lifted is moderate and there is no indication to the occupier that the applicant has a low back disability. These are matters which can be resolved only on trial. Suffice to say that establishing liability on the part of the respondents may present problems.

15. [15]
    The respondents’ Counsel has quite understandably expressed concern about the abovementioned aspects of the matter. However, the central issue in the present application concerns the excuse that has been advanced for failing to meet the time limit in s 9(3) of the Act.

16. [16]
    The applicant suggests in para 8 of his affidavit filed 29 August 2003:

“8.I say the reasons for my delay was as follows:-

(a) I was not aware that there was a time factor in lodging the claim for injuries.

(b) I thought the pain would go away after an operation.

(c) I was advised by my doctor that the operation was a simple one and that the pain would go away after the operation.

(d) I was advised by my physiotherapist that I should give it at least 12 months to heal.”

17. [17]
    Assuming the truth of those assertions it does not appear to me to be unreasonable on the part of the applicant to have delayed until the results of the laminectomy were apparent before proceeding to consult solicitors.

18. [18]
    The main purposes of the Act as set out in s 4 are generally similar to those contained in other legislation enacted in recent years concerning work related injuries and motor vehicle related injuries. The provisions are not directed to the issue of time under the Limitation Act but to setting in motion at an early stage a procedure for the identification of the salient issues in the claim with a view to the resort to legal proceedings being avoided where at all possible.

19. [19]
    In Thomas v Trans Pacific Industries Pty Ltd & Anor (2002) QCA 160 the Court of Appeal considered similar issues to those raised on the present application. A truck driver had driven over a dip in the road causing him to be thrown upwards in his seat whereby sustaining a back injury. The injury was said to have occurred on 11 December 1998. A notice was not served on the second respondent until 4 December 2001 and did not contain the explanation of the delay required under s 37 of the Act.

20. [20]
    The leading judgment of the Court was given by Davies J A. At para 30 of the judgment His Honour observed:

“In other words the respondent was presented more than two years after a notice was required to be given with little if anything to indicate the factual basis upon which negligence against it would be alleged. In addition, as His Honour also pointed out, the applicant’s alleged injury was to his back an injury of a kind which is notoriously difficult to disentangle from conditions or events that may have occurred before or since. These were in my opinion appropriate matters for His Honour to consider in the exercise of his discretion in deciding whether to grant leave to bring the proceedings …”

21. [21]
    In the present case the details of the incident resulting in the injury are sparse. It is described as a two-man lift. I note that further particulars were provided in the applicant’s statutory declaration Ex “JMG 3” to the affidavit of Justin Maxwell Geldard filed by leave 5 September 2003.

22. [22]
    In Thomas the explanation for the delay was also quite similar to that advanced in the present case. As Davies J A observes “… it appears that the applicant delayed seeking legal advice about his back condition until about mid 2001 because he thought it would improve over time. It was only then that he came to the conclusion that his condition was permanent and that he needed to seek legal advice.

...

It is therefore unsurprising and quite credible that the applicant was hopeful that his back condition would improve over time and that it was only by mid 2001 that he concluded that the condition was permanent. That, it seems to me is an explanation of the delay until then and one which is not obviously unreasonable.”

23. [23]
    Again in Thomas the judge at first instance had formed the opinion that some prejudice would be suffered by the respondent in the circumstances despite the fact that no specific prejudice had been alleged. Furthermore he had regard to the difficulty that the applicant would have with the issue of liability.

24. [24]
    Davies J A held that while it was not necessary for an applicant to show a prima facie case the issue of liability is nonetheless relevant:

“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.”

25. [25]
    In Thomas the Court of Appeal allowed fresh evidence which provided detail as to the basis of the claim of negligence, the nature of the injury and the name and address of the treating doctor. Having regard to this further material the Court extended time, granted leave to appeal and allowed the appeal. In the present case there is an abundance of medical evidence following the initial consultation with Dr Anderson. I have already adverted to the curious lack of evidence of medical involvement between the date of the incident and the date of that consultation.

26. [26]
    Despite my concerns about the abovementioned matters it seems appropriate that the applicant be given leave to proceed further with his claim. The delay in giving notice pursuant to s 9 of the Act was relatively short. The excuse given was as Davies J A put it “not obviously unreasonable” the prejudice suffered by the respondents would, in my view, not be greatly altered by the fact of the delay. The consequences of a refusal are to shut the applicant out from any further remedy. I give leave to the applicant pursuant to s 18(1)(c)(ii) of the Act to proceed further with their claim.

27. [27]
    The applicant, however, comes seeking an indulgence in circumstances where the substance of the claim is quite suspect. It is appropriate in these circumstances that the applicant bear the respondents’ costs of and incidental to the application to be assessed.

28. [28]
    I should mention that at the commencement of the proceedings there arose a question concerning jurisdiction there being no express amount claimed to indicate that the matter came within the jurisdiction of the District Court. This defect was cured by the applicant filing a further affidavit of Justin Maxwell Geldard exhibiting a draft claim and statement of claim. There is no question then concerning the issue of jurisdiction.