McGrath v Thai Airways International Public Company Ltd
[2005] QDC 190
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- Unreported Judgment
- McGrath v Thai Airways International Public Company Ltd[2005] QDC 190
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McGrath v Thai Airways International Public Company Ltd[2005] QDC 190
McGrath v Thai Airways International Public Company Ltd[2005] QDC 190
DISTRICT COURT OF QUEENSLAND
CITATION: | McGrath v Thai Airways International Public Company Ltd [2005] QDC 190 |
PARTIES: | PAUL JAMES MCGRATH (Applicant) V THAI AIRWAYS INTERNATIONAL PUBLIC COMPANY LTD (Respondent) |
FILE NO/S: | BD998/05 |
DIVISION: | Civil |
PROCEEDING: | Chamber application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 7 July 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 April 2005 |
JUDGE: | Tutt DCJ |
ORDER: |
|
CATCHWORDS: | Personal injuries – declarations – leave to commence proceedings for common law damages – “reasonable excuse” – complying notice of claim – whether prejudice a relevant consideration in determining whether a “reasonable excuse” for delay. Personal Injuries Proceedings Act 2002 (Qld) ss 9, 18 and 35. Chapman v The Body Corporate for the Endeavour Inn [2005] QDC 18. Hodges v Avdyl Trading as Daniell’s Nursery & Garden Supplies [2003] QDC 347. Miller v Nominal Defendant [2003] QCA 558. Perdis v Nominal Defendant [2003] QCA 555. Piper v Nominal Defendant [2003] QCA 557. Thomas v Transpacific Industries Ltd and Suncorp Metway Insurance [2003] 1 Qd R 328. Weeks v Nominal Defendant [2004] QDC 504 (8 December 2004, Tutt DCJ). |
COUNSEL: | Mr J M Harper for the applicant. Mr D J Murphy for the respondent. |
SOLICITORS: | Maurice Blackburn Cashman for the applicant. Ebsworth & Ebsworth for the respondent. |
Introduction
- [1]This is an application amended at hearing for declarations pursuant to s. 9 of the Personal Injuries Proceedings Act 2002 (“the Act”) that the applicant has provided “reasonable excuse for delay” in giving the respondent a Part 1 Notice of Claim on 24 November 2004 pursuant to s 9 of the Act and that such notice is therefore a complying notice pursuant to s 9 of the Act.
- [2]In the alternative, the applicant seeks a declaration pursuant to s 18(1)(c)(i) of the Act that the applicant has remedied any non-compliance or in the further alternative be given leave pursuant to s 18(1)(c)(ii) of the Act to proceed further with the claim despite non-compliance.
- [3]One or other of the above declarations is now necessary to enable the applicant to proceed further with his claim for damages for personal injury.
The Facts
- [4]The claim relates to an injury which the applicant suffered to his right shoulder on 15 November 2002 during the course of his employment as a “galley person” for his employer Qantas Airways Limited.
- [5]The applicant completed an “accident/incident” report on the date of injury describing the incident as occurring in the following manner[1]:
“Removing rubbish from aircraft, Paul strained his upper arm removing bin insert which has no handle (broken off)…”
This form was completed in accordance with the employer’s procedure of reporting injuries and duly handed to his employer’s representative. The form notes that the incident was “(19) Reported to D Rhodes” who it appears countersigned the document beside “Supervisor’s name”.
- [6]The incident was not reported to the respondent to this application.
- [7]On the same day of his injury the applicant attended on his general medical practitioner Dr Baynham, who referred him to an orthopaedic surgeon Dr Leigh Sampson for MRI tests and who then referred the applicant for physiotherapy and to another orthopaedic surgeon Dr Michael Fleming whom the applicant saw on 9 December 2002.[2]
- [8]On 18 November 2002 (three days post-incident) the applicant lodged a “workers’ compensation claim” with his employer.[3]
- [9]The applicant deposes that Dr Fleming diagnosed him as suffering from “a complete tear of the subscapularis with a dislocated biceps” and that he expected that the injury would resolve within time and with the assistance of physiotherapy treatment. The applicant deposes further that he returned to work on light duties only on 20 January 2003.[4]
- [10]The orthopaedic surgeon Dr Fleming reported to the applicant’s employer on 17 December 2002 and 27 February 2003 respectively in which he stated among other things that the applicant:
Report of 17 December 2002[5]
“… had an MR arthrogram, which suggested a complete tear of the subscapularis with a dislocated biceps.
…is making very good progress with non-operative treatment. His pain and range of motion have both improved considerably. He has a relatively short history of his injury.
I believe it is appropriate for him to continue along non-operative lines. I have continued him with physiotherapy. He is to be reviewed by me in January.
The prognosis for this gentleman really depends upon how he responds over the next four weeks. I believe he has had a work-related rupture of his subscapularis tendon. The mechanism is a fairly classic way of tearing the subscapularis.
…
If Mr McGrath continues to make good progress he should be fit to return to light duties within four weeks.”
Report of 27 February 2003[6]
“I last reviewed Mr McGrath on 26th February. At that stage he was coping with his light duties at work.
…
Clinically he is making good progress. I believe he needs to continue on his alternate duties.
…
He is to be reviewed by me again on 16 April.
The prognosis for Mr McGrath at this stage is good. He is making good progress following the injury he has had to the shoulder…
…
I believe the likely ongoing period of time for his problem would be in the order of a further two months.”
- [11]The applicant further deposed that Dr Fleming certified him as being “fit to return to my pre-injury duties as from 30 May 2003… (and)… that I did not need any more treatment at this stage but my injury would continue to improve with time”.[7]
- [12]
“Upon examination today he had full range of motion, normal power in his subscapularis. I have cleared him to return to his full duties at work.
In response to your questions:
- I believe that Mr McGrath’s injury has resolved.
- Mr McGrath is capable of his pre-injury duties.
- His injury is not yet stable and stationary. I believe he is going to continue to improve for at least a further six months.
- I don’t however believe that Mr McGrath requires any further medical treatment. It is really just the passage of time and sensible use of his shoulder that is going to allow him to improve.
From review of the attached job description as a driver with Qantas Flight Catering I believe Mr McGrath is certainly fit to undertake those duties.”
- [13]The applicant further deposes that during the period he worked on light duties:
“I felt that my injury was slowly improving as I was able to do more duties at work and at home. I still suffered daily pain in my shoulder but believed that my condition would continue to improve. I was receiving workers’ compensation benefits for any time off work I had and my medical expenses were also being paid for so at this stage I was not concerned about my financial position.”[9]
- [14]The applicant further deposes that he sought legal advice from his current solicitors:
“… on 13 March 2003[10] because I was unsure about my future. They provided me with written advice on 16 April 2003 stating that they recommended that I proceed with a common law claim for damages against my employer and the Respondent. In this correspondence they provided me with advice about time limitations.” [11]
- [15]He then deposes as to the reasons he “was reluctant to follow their advice and lodge a claim against both my employer and the Respondent…” which were that he:
- (a)“…had returned to work on full duties and was coping generally well with the work”;
- (b)“…was not losing any income and Dr Fleming had told me that I did not need any further treatment at this stage”;
- (c)“…expected that my injury would resolve given enough time”
- (d)“…had obtained an alternate position with my employer in different area (QRail Division)”;
- (e)“…(his) work in this division was less physically demanding and I wanted to continue to work in this division”;
- (f)“…was unsure about the impact that making a claim would have on my employment”;
- (g)“…thought that the consequence of filing a Claim would be the loss of my job”;
- (h)“…was also aware that if I was to engage in a solicitor and lodge a Claim I would immediately incur legal fees”; and
- (i)“…did not want to be up for unnecessary legal costs”.[12]
- [16]The applicant further deposes that he continued to work his normal duties but that “…in early 2004 my symptoms worsened and I was having difficulty performing my duties at work and tasks at home…(and that)…in September 2004 Dr Fleming advised me that I required surgery on my right shoulder.”[13]
- [17]Dr Fleming advised him that he required surgery on his right shoulder which was performed by Dr Fleming on 23 November 2004.[14]
The Applicant’s Education and Work History
- [18]The applicant was born on 18 June 1951 (51 years at the date of injury); was educated to “…part way through Grade 8”; worked on sheep stations as a general station hand; in sugar mills for 4 years; truck driver for 20 years and with Cater Air and its successor Qantas from 1990.
The Notice of Claim
- [19]The applicant completed a Form 1 Notice of Claim under the Act on 16 November 2004 (1 week before Dr Fleming operated on him) which was served on the respondent under cover of letter dated 22 November 2004 from the applicant’s solicitors which included a statement by the applicant of his “Reasonable Excuse for the Delay” in serving the notice stating:
“…
- Dr Fleming originally treated my injury with conservative measures hoping it would improve. However, I am continuing to experience ongoing effects of my injury and Dr Fleming has recently recommended surgery. I have been hesitant to bring a claim but now that I require surgery and the effect that my injury will have on my employment in the future is uncertain, I have decided to proceed with the claim.
- I advised my solicitor not to lodge the claim until my condition had stabilised. My condition has still not stabilised as I now need surgery. However, I have been advised that it is appropriate not to delay any longer and to lodge it now. I believe my decision to delay lodgement was prudent as it is clear I will now have to undergo a rotator cuff repair.”[15]
- [20]The respondent (by its solicitors) refused to accept this explanation as “a reasonable excuse” under s 9(5) of the Act to make the applicant’s notice a complying one[16]and stated that its “primary concern given the lengthy delay…” will be that it “…will in all likelihood be significantly prejudiced as a result of not being in a position to undertake a full investigation into the circumstances surrounding the alleged incident at the time it occurred”.[17]This position was restated by the respondent’s solicitors in their letter of 31 January 2005.[18]
Counsels’ Submissions
- [21]Essentially the applicant contends that he has given “a reasonable excuse for the delay” in not serving his Notice of Claim upon the respondent within the terms of s 9(3) of the Act (9 months from the date of incident) and that by doing so he has given a complying notice of claim thereby enabling him to proceed further with his claim. In the alternative the applicant submits that even if he has not given “a reasonable excuse” the court should in any event exercise its discretion and authorise him to proceed with his claim despite any such non-compliance pursuant to s 18(1)(c)(ii) of the Act.
- [22]The respondent resists the application on two grounds namely:
- (a)That the applicant’s explanation does not amount to “a reasonable excuse” for his not giving notice of claim within the 9 months period. It asserts that what the applicant should have done is to give his notice of claim to the respondent within the prescribed 9 month period and then leave the claim in abeyance until the injuries had stabilised[19]; and
- (b)That in any event (and this would seem its primary argument) it is now prejudiced by the applicant’s failure to give the notice within time.
The Issue of Prejudice
- [23]In anticipation of the respondent’s submission of prejudice, the applicant’s counsel referred to the Court of Appeal decision of Piper v Nominal Defendant [2003] QCA 557(“Piper”)[20]particularly the comments of Mackenzie J at [46] who stated:
“…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 injuries sustained, and the likelihood of prejudice to the nominal Defendant.
I agree with that formulation except to the extent that in my view the likelihood of prejudice to the Nominal Defendant is not relevant in determining whether an excuse is a reasonable one. It may be relevant however to the exercise of discretion under s 39(5)(c).”
- [24]His Honour Justice Davies, in his dissenting judgment in Piper, made a similar comment as to the irrelevance of prejudice to the determination of a reasonable excuse saying in a footnote to paragraph [14]: “… I think that it is relevant only to the exercise of the Court’s discretion under s 39(5)(c)”. That decision of the Court of Appeal dealt with a consideration of “reasonable excuse” for a late lodgement of notice of claim pursuant to s 37(3) of the Motor Accident Insurance Act 1994 (Qld)(“MAIA”).
- [25]It is conceded by the applicant that the issue of prejudice is relevant but only to a consideration of the alternative order sought under s 18(1)(c)(ii) of the Act which deals with leave to proceed despite non-compliance (a section which is in identical terms to s 39(5)(c) of the MAIA that their Honours referred to in Piper). The applicant’s submission is that where an order is sought under s 9(5) of the Act, whereby the court declares a Notice of Claim a complying one pursuant to that section, the issue of prejudice, as noted by the decision of Piper above, is not a relevant consideration for the reasonableness or otherwise of an excuse provided by the applicant seeking such a declaration.
- [26]Despite what was said in Piper on the issue of prejudice not being a matter for consideration on the question of “reasonable excuse”, the respondent’s counsel submitted that I should still consider the question of prejudice to his client in my overall assessment of the application. He referred to a District Court decision of Hodges v Avdyl Trading as Daniell’s Nursery & Garden Supplies [2003] QDC 347 and the Court of Appeal decision of Thomas v Transpacific Industries Pty Ltd [2003] 1 Qd R 328 in particular the remarks of Davies JA who stated at 339:
“The failure of a respondent to depose to any actual prejudice ought not, in my opinion, preclude consideration by the court of the likelihood of prejudice to the respondent because of the difficulty in investigating questions of the kind … it may be impossible at the time an application such as this is made to identify any specific prejudice. But that does not mean that there is no risk of prejudice or even that that risk is not substantial.”
Again these remarks were made in the context of considering an application to allow a claimant to proceed under s 39(5)(c) of the MAIA.
- [27]However both of these decisions preceded Piper, Perdis and Miller. Counsel for the respondent also referred to the District Court decision of Chapman v The Body Corporate for the Endeavour Inn [2005] QDC 18 which would seem to have only peripheral relevance.
- [28]I have no hesitation in agreeing with the dicta of Davies JA and Mackenzie J in Piper and that “the likelihood of prejudice is not relevant in determining whether an excuse is a reasonable one”[21]but that its relevance is in respect of the exercise of the court’s discretion to allow a claim to proceed under either s 39(5)(c) of the MAIA or s 18(1)(c)(ii) of the Act.
- [29]If the court finds the applicant’s excuse “reasonable” it would follow that he is entitled to a declaration that he “… has remedied the non-compliance” pursuant to s 18(1)(c)(i) of the Act thereby enabling him to proceed with his claim. It would be only if the court found that the applicant did not give a “reasonable excuse” for the delay that it would then have to decide whether he should be entitled “…to proceed further with the claim despite the non-compliance” pursuant to s 18(1)(c)(ii) of the Act at which time the issue of “prejudice” would become a relevant consideration.
“Reasonable Excuse”
- [30]What amounts to “reasonable excuse” has been the subject of a number of applications to this court and elsewhere some of which have been considered by our Court of Appeal and were referred to by both counsel.[22]
- [31]These cases have dealt with the consideration of s 37(3) of the MAIA which contains the identical expression “a reasonable excuse for the delay” in respect of notices of claim for damages for personal injury suffered in motor vehicle accidents.
- [32]As the three Court of Appeal decisions referred to above demonstrate the question of a claimant’s excuse being reasonable is one “… to be judged objectively in all the circumstances”. Those circumstances include “… the claimant’s personal characteristics such as his age, intelligence and education and the nature of injuries sustained …”[23]
- [33]Although the Court of Appeal in Piper’s case held that Piper’s excuse for delaying his notice of claim to the Nominal Defendant outside the three (3) month period as provided in s 37(2)(a) of the MAIA was not reasonable, where he assumed (wrongly) that the person from whom he sought legal advice and to whom he entrusted his claim was a lawyer when he was not, whereas in the instant case the applicant sought legal advice at an early stage but declined to pursue his claim at that stage by giving the appropriate notice for various reasons [24], I am of the opinion there are a number of distinguishing or other relevant features between Piper’s case and the instant case which are favourable to the applicant.
- [34]These features are as follows:
- (a)The applicant was a 51 year old man of limited education having left school part way through Grade 8;
- (b)His subsequent work history reflected his lack of formal education in that he became a station-hand, labourer, truck driver and “galley” worker;
- (c)Prior to this matter he had not been involved in any legal process;
- (d)He was entitled to and received workers’ compensation benefits for his incapacity for work and medical treatment and therefore was not suffering any immediate or potential financial hardship until it subsequently became apparent that his condition had deteriorated and he required further operative treatment;
- (e)His expectation, which I accept as reasonable, that the injury would resolve in time and with continued physiotherapy such that he would return to normal working capacity;
- (f)His acceptance of Dr Fleming’s advice as confirmed in the various medical reports that his injury “has resolved” and the positive prognosis of Dr Fleming as contained in the medical reports[25];
- (g)His change in employment to “an alternate position” with his employer which “…was less physically demanding” thereby increasing his expectation that his injury would resolve completely by following the medical advice he received.
- [35]Applying the objective test to the question of “reasonableness” in this application and having regard to the applicant’s “personal characteristics” as previously described I find in all the circumstances that it was reasonable for the applicant to delay the giving of his notice of claim to the respondent until such time as the symptoms from his injuries had persisted or deteriorated to such an extent that he was entitled to conclude that they were not going to resolve in a relatively short period of time post-accident, thereby making it worth his while to pursue other means of compensation for his injuries than merely statutory workers compensation benefits.[26]
- [36]The evidence is that he re-instructed his solicitors on 25 October 2004 shortly after being advised that his injury required surgery, and then instructed his solicitors to give notice of his intended claim.[27]
- [37]It follows therefore and I so find that the applicant has given a reasonable excuse for his delay in giving his Part 1 Notice of Claim to the respondent pursuant to s 9(5) of the Act by his Notice of Claim and Reasonable Excuse for Delay dated 16 November 2004 received by the respondent on 24 November 2004 and that he is entitled to the declaratory relief sought in paragraphs 1 and 2 of the amended application.
- [38]In light of my findings it is unnecessary for me to consider the relief sought by the applicant in the alternative but if I were to consider the application in the alternative I would have found that any perceived prejudice to the respondent was insufficient to preclude a declaration under s 18(1)(c)(ii) and I would have authorised the applicant to proceed despite non-compliance.
- [39]I therefore make the following orders:
- It is declared that the applicant has provided a reasonable excuse for the delay in giving the respondent a Part 1 Notice of Claim pursuant to section 9 of the Personal Injuries Proceedings Act 2002;
- It is further declared that the applicant gave the respondent a complying Part 1 Notice of Claim pursuant to section 9 of the Personal Injuries Proceedings Act 2002 on 24 November 2004; and
- That the respondent pay the applicant’s costs of and incidental to the application as agreed or assessed on the standard basis under the District Court scale.
Footnotes
[1] Exhibit “A” to the affidavit of Paul James McGrath filed 1 April 2005.
[2] Paragraph 9 of the affidavit of Paul James McGrath filed 1 April 2005.
[3] Exhibit “B” to the applicant’s affidavit filed 1 April 2005.
[4] Paragraph 11 of applicant’s affidavit.
[5] Exhibit “C” to the applicant’s affidavit filed 1 April 2005 at pages 2 and 3.
[6] Ibid.
[7] Paragraph 13 of applicant’s affidavit.
[8] Exhibit “D” to the applicant’s affidavit.
[9] Paragraph 12 of applicant’s affidavit.
[10] 4 months post-injury and 2 ½ months before Dr Fleming’s final clearance for full-time duties.
[11] At paragraph 13.
[12] At paragraph 15.
[13] At paragraphs 16 and 17.
[14] Ibid
[15] Exhibit “A” to the affidavit of Peter Koutsoukis filed 22 March 2005.
[16] Exhibit “B” to the affidavit of Peter Koutsoukis filed 22 March 2005.
[17] At page 2.
[18] Exhibit “D” to the affidavit of Peter Koutsoukis filed 22 March 2005.
[19] See Exhibit “A” to the affidavit of Kim May filed 4 April 2005.
[20] See also Perdis v Nominal Defendant [2003] QCA 555 and Miller v Nominal Defendant [2003] QCA 558.
[21] See paragraph [46] of Piper and the footnote to paragraph [14] per Davies JA.
[22] See Piper and Perdis (supra).
[23]Piper v Nominal Defendant [2003] QSC 39, 27 February 2003, per Wilson J at [19] and confirmed by Court of Appeal 15 December 2003 – Davies, Williams and McKenzie JJ – at [14], [30] and [46].
[24] See paragraph [15] above.
[25] See Exhibits “C” and “D” to the applicant’s affidavit filed 1 April 2005.
[26] See my decision of Weeks v Nominal Defendant [2004] QDC 504 (delivered 8 December 2004) and approved by the Court of Appeal in Weeks v Nominal Defendant [2005] QCA 118.
[27] Paragraph [20] of affidavit of P Koutsoukis filed by leave.