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  4. Morris v Gold Coast City Council - [2006] QDC 172

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Morris v Gold Coast City Council[2006] QDC 172

Morris v Gold Coast City Council[2006] QDC 172

DISTRICT COURT OF QUEENSLAND

CITATION:

Morris v Gold Coast City Council [2006] QDC 172

PARTIES:

MARJORIE MORRIS

Applicant

v

Gold Coast CITY COUNCIL

Defendant

FILE NO/S:

D707/2005

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

3 February 2006

DELIVERED AT:

Southport

HEARING DATE:

23 January 2006

JUDGE:

Dearden DCJ

ORDER:

The applicant be granted leave pursuant to s 18(1)(c)(ii) of Personal Injuries Proceedings Act 2002 to proceed further with her claim despite non-compliance with s 9 of Personal Injuries Proceedings Act 2002

CATCHWORDS:

APPLICATION – Personal injury – Non compliance with pre-court procedures of Personal Injuries Proceedings Act 2002 – Reasonable excuse – Court’s discretion to authorise claim to proceed despite non-compliance

Personal Injuries Proceedings Act 2002

Weeks v The Nominal Defendant [2005] QCA 118

Piper v The Nominal Defendant [2003] QCA 557

Daniels v Leggatt [2005] QCA 377

Dempsey v Dorber [1990] 1 Qd R 418

COUNSEL:

Mr D Rangiah for the applicant

Mr K Howe for the respondent 

SOLICITORS:

Maurice Blackburn Cashman for the applicant
O'Keefe Mahoney Bennett for the respondent  

Introduction

  1. [1]
    This is an application by the applicant, Marjorie Morris, against the respondent, Gold Coast City Council, seeking (relevantly) the following orders:
  1. [1]
    Declaration that the applicant provided a reasonable excuse for the delay in giving the respondent a Part 1 notice of claim pursuant to s 9 of the Personal Injuries Proceedings Act 2002 (PIPA);
  1. [2]
    Declaration that the applicant gave the respondent a complying Part 1 notice of claim pursuant to s 9 of PIPA on 31 May 2005;
  1. [3]
    In the alternative, that pursuant to s.18(1)(c)(i) of PIPA, the Court declare that the applicant has remedied any non-compliance;
  1. [4]
    In the alternative, that the applicant be given leave pursuant to s 18(1)(c)(ii) of PIPA to proceed further with the claim despite non-compliance.

Facts

  1. [2]
    The applicant was born on 24 July 1925 and is now 80 years of age. On 13 January 2004, when aged 78, she was injured as a result of stepping into a concealed hole in the grass between the kerbing and the footpath on Cougal Street, Southport outside the Gold Coast Specialist Medical Centre and Gold Coast Hospital. Photographs of the concealed hole (which appear to have been taken shortly after the date of injury) were intended to have been sent as an enclosure with a handwritten letter from the applicant to the respondent on 24 March 2004. The applicant’s letter of 24 March 2004 enclosed an appointment letter from the Gold Coast Hospital (it appears that the applicant was on her way to an appointment at the Gold Coast Hospital when the injury occurred), a letter from the applicant’s doctor (Dr Simon Carter) in respect of her injuries, a letter from an eye-witness to the accident and various receipts in respect of the applicant’s medical costs relating to the injury.
  1. [3]
    The applicant omitted to include the photographs to which she had referred in her initial letter of 24 March 2004 to the respondent, and these photographs were subsequently forwarded attached to a second handwritten letter from the applicant received by the respondent on 26 March 2004[1].
  1. [4]
    It is clear, as a result of the applicant’s two letters and attachments, that the respondent was, informally at least, provided with significant information about the date, place and specific circumstances of the injury. The photographs attached to the applicant’s letter to the respondent received on 26 March 2004 show an apparently well-concealed hole, sufficiently wide to encompass the applicant’s entire foot and of a depth sufficient to reach the top of the applicant’s ankle. The eye-witness statement of Mr John Drinkwater, provided by the applicant as an attachment to her initial letter to the respondent, relevantly stated that “The hole was barely noticeable as the grass had grown over it and blended into the area of grass near the footpath, presenting a dangerous situation for pedestrians.”
  1. [5]
    The respondent replied to the applicant’s letters on 31 March 2005 in the following terms[2]:

“We refer to your letter (sic) and photographs received by Council on 26 March 2004. 

Unfortunately, we are not able to respond to your claim until you comply with the requirements of the Personal Injuries Proceedings Act 2002 (as amended).

The Form 1 notice of claim (non-health care claims) is currently available via the Internet at http://www.justice.qld.gov.au/ourlaws/forms/pipa1v3 or from any Court House.

Please contact the Attorney-General’s office on 07 3239 3466 should you have any further enquiries.”

  1. [6]
    The applicant attests[3] that she “did not understand the letter and had not contemplated commencing a legal process, seeing a lawyer or going to Court” and that “[a]t the time I was on morphine and the more I looked at the correspondence [a reference to the letter from the respondent dated 31 March 2004] the more confused I got.”
  1. [7]
    The applicant states further[4] that she “thought [her] injuries would heal with time,” that she “did not want to go through the stress of a legal claim because [she] thought [her] injuries would settle” and that she “did not want to have to pay for a solicitor.”  However, the applicant’s injuries did not resolve and she subsequently attended on Ms Jacqueline Dalling, solicitor of Maurice Blackburn Cashman on 30 March 2005, at which stage she was advised about relevant time limitation periods and the necessity to provide a reasonable excuse for the delay[5].
  1. [8]
    The applicant further attests that she was “reluctant to follow [her solicitor’s] advice and proceed with a claim because [she] was concerned how a claim would affect [her] health.” The applicant was also “afraid [she] might have to go to Court” but “after long and detailed discussions with [her] family and friends [the applicant] instructed [her] solicitors to proceed with lodging [her] notice of claim form on 31 May 2005”[6].
  1. [9]
    On 24 June 2005 the applicant was advised by her solicitors that an application would have to be made to Court because the respondent had refused to accept her excuse for the delay in lodging the Part 1 notice of claim[7].  The applicant initially instructed her solicitors not to proceed with the application because of the stress on her health, in particular her concern about her hospitalisation as a result of an asthma attack[8], but after further discussions with her family and friends[9] the applicant instructed her solicitors on or about 25 November 2005 to proceed with the claim.
  1. [10]
    During the course of correspondence between the applicant’s solicitors, Maurice Blackburn Cashman, and the respondent’s solicitors, O'Keefe Mahoney Bennett, the applicant’s solicitors, in a letter dated 30 August 2005[10], relevantly stated that: “We confirm that our client is not proceeding further with her claim at this point in time.”
  1. [11]
    The originating application under consideration by this Court was subsequently filed on 6 December 2005.

The Law

  1. [12]
    The injury suffered by the applicant is clearly subject to the relevant provisions of PIPA. The applicable provisions of s 9 of PIPA provide:

“(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.

…

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

(a)  the day nine months after the day of 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;

(b)  the day one month after the day the claimant first instructs a lawyer to act on the person’s behalf in seeking damages for the personal injury and the person against whom the proceeding is proposed to be started is identified.

…

(5)  If Part 1 of the notice is not given within the period prescribed under sub-section (3) or section 9A(9)(b), the obligation to give the notice under sub-section (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.”

  1. [13]
    It is uncontested that the applicant’s Part 1 notice of claim was required to have been given to the respondent by 13 September 2004, but was not in fact given until 31 May 2005[11] (approximately eight-and-a-half months out of time).  The applicant’s correspondence to the respondent of 24 and 26 March 2004[12] provided a substantial proportion of the relevant information required by the Part 1 notice of claim, but not in a form that complied with the relevant provisions of s 9 PIPA.

Reasonable Excuse – PIPA s 18(1)(c)(i)

  1. [14]
    At p 16 of the applicant’s Part 1 notice of claim[13] she sets out the following reasons for the delay:

“1.Following the incident on 13 January 2004, I thought that my injuries would settle.

  1. On or about 24 March 2004 I wrote to the Gold Coast City Council asking them to pay for my medical expenses as I am a pensioner and these expenses were a burden on my income.
  1. In or about April 2004 I received a response from the Gold Coast City Council that I found confusing.
  1. It wasn’t until my injuries didn’t heal that I sought legal advice as to my rights after speaking to a friend.  I wasn’t aware that a delay would compromise my right to claim until recently.
  1. I was unaware of the procedures in the Personal Injuries Proceedings Act 2002 and that I had to lodge a notice of claim within nine months.  I was uncertain as to whether I wanted to pursue a claim against the Gold Coast City Council after speaking to my solicitor as I am an elderly lady and have asthma.
  1. After careful consideration and discussions with my family, I have decided to go ahead with a claim.
  1. I signed a client agreement with Maurice Blackburn Cashman on       31 May 2005 and instructed them to act on my behalf.”
  1. [15]
    It is submitted on behalf of the applicant that she has complied with her obligation under s 9(5) of PIPA to give a reasonable excuse for her delay. The applicant’s counsel, Mr Rangiah, outlined the reasons identified by the applicant for her delay as:
  1. “(a)
    [The applicant] did not understand what she was required to do in   order to comply with PIPA following her letter to the respondent asking for payment for her medical expenses, she was taking morphine at the time and was confused by the response from the respondent[14];
  1. (b)
    [The applicant] thought that her injuries would heal with time[15];
  1. (c)
    [The applicant] did not want to go through the stress of a legal claim because she thought her injuries would settle[16], bearing in mind that she was 78 years of age at the time and suffered from asthma which was aggravated by stress[17];
  1. (d)
    [The applicant] did not want the expense of engaging a solicitor[18] bearing in mind that she was on a pension and had found her medical bill caused by the incident difficult to pay”[19].
  1. [16]
    Mr Rangiah submits, relying on the decisions in Weeks v The Nominal Defendant [2005] QCA 118[20] and Piper v The Nominal Defendant [2003] QCA 557[21], that whether an excuse is reasonable is to be judged objectively in all of the circumstances, including the applicant’s personal characteristics, such as age, intelligence, education, and the nature of the injuries sustained.  It is submitted that if the applicant has, in the Court’s view, shown a reasonable excuse for her delay, then an appropriate declaration should be made under       s 18(1)(c)(i) of PIPA.
  1. [17]
    Mr Rangiah then submits[22] that the applicant’s excuse for her delay in delivering the Part 1 notice of claim is reasonable given:
  1. “(a)
      that the applicant was 78 years of age at the time, was in frail health because of asthma, as well as the injuries sustained in the accident, and risk of aggravation of her condition with the stress of making a claim;
  1. (b)
    the applicant did not understand what she was required to do in order to comply with PIPA and was confused by the letter from the respondent;
  1. (c)
    the applicant’s confusion appears to have been exacerbated by morphine which she was prescribed for the injury sustained by her allegedly as a result of the respondent’s negligence;
  1. (d)
    the respondent’s letter did not inform the applicant of the nine-month period for submitting a notice of claim;
  1. (e)
    the applicant believed that her injuries would settle with time and did not want to go through the stress of a legal claim and thought her injuries would settle, but her injuries have not healed and she is continuing to pay for medical expenses;
  1. (f)
    the applicant is a person of limited education and limited experience with legal matters.”
  1. [18]
    Mr Howe, on behalf of the respondent, submits in reply that:
  1. (a)
    the letter from the respondent council was not confusing;
  1. (b)
    there was no medical evidence as to whether the letter was confusing because of the applicant’s age, her use of morphine or her asthma condition;
  1. (c)
    there was no medical evidence in respect of the issue as to whether the applicant’s medical condition was worsening or not healing;
  1. (d)
    the applicant was able to adequately correspond initially with the respondent and included relevant and specific photographs of the scene/cause of the injury, which appears directly inconsistent with a claim that the applicant was confused on reading the respondent’s letter in reply;
  1. (e)
    the reason for delay was not uncertainty about the applicant’s rights, but prevarication by the applicant as to whether or not she wished to proceed[23].
  1. [19]
    Ultimately, Mr Howe submitted that it was not uncertainty about the applicant’s rights or the applicant’s medical condition which resulted in the Part 1 notice of claim being out of time, but rather, “uncertainty or prevarication about what [the applicant] wanted to do”[24].
  1. [20]
    In my view, it is inescapable that the applicant has failed to objectively establish a reasonable excuse for the delay[25].  In my opinion, contrary to the forceful submissions of Mr Rangiah on behalf of the applicant, the applicant’s age, intelligence, education, health and medical treatment do not explain her failure to comply with the relevant nine-month time limit.  It is clear from the respondent’s letter dated 31 March 2004[26] that furtherance of the applicant’s claim required compliance with PIPA, and the respondent in that correspondence provided three separate potential sources of information for the applicant in respect of the Form 1 notice of claim[27]. Even if the applicant, as she asserts, found the letter confusing, she had, on the material filed, access to friends and family who (presumably) would have been able to read the letter and interpret its contents (ie basic information as to the steps the respondent required the applicant to comply with). In my view the most difficult hurdle for the applicant to overcome is the fact that just over two months after the injury, on or about 24 and 26 March 2004, she was capable of putting together the necessary documentation (including four extremely helpful photographs as well as relevant medical and eye-witness documentation) which she forwarded to the Council.  Her counsel, Mr Rangiah, submits that the applicant was then subsequently incapable of understanding the reply dated 31 March 2004 from the respondent.  This submission cannot be sustained on the objective facts before the Court.
  1. [21]
    I find that the applicant has failed to establish a “reasonable excuse” for her delay in filing a Form 1 notice of claim and I decline to make a declaration under s 18(1)(c)(i) of PIPA.

Court’s Discretion to Authorise Claim to Proceed

  1. [22]
    My decision that the applicant has failed to demonstrate a reasonable excuse under PIPA s 18(1)(c)(i) does not, however, finally resolve the matter. PIPA s 18(1)(c)(ii) enables the Court to authorise the claimant to proceed further with the claim despite non-compliance with the Part 1 notice of claim provisions[28].
  1. [23]
    Mr Rangiah, on behalf of the applicant, submits that, if the Court did not accept that his client has shown the necessary “reasonable excuse” for her delay, sufficient for a declaration under PIPA s 18(1)(c)(i), then his client, in the exercise of the Court’s discretion, should be authorised to proceed further with her claim without any necessity to demonstrate that a reasonable excuse exists for the delay.
  1. [24]
    Mr Rangiah submits that matters relevant to this exercise of the Court’s discretion include:
  1. (a)
    whether there is some material to indicate liability on the part of the respondent;
  1. (b)
    any prejudice to the respondent;
  1. (c)
    prejudice to the applicant by being shut out of her cause of action against the respondent; and
  1. (d)
    the length of the delay.
  1. [25]
    Mr Rangiah submits that the applicant has a strong case on liability[29]; that the respondent received early informal advice of essential details of the proposed action; that if the applicant is shut out of her proceedings she will have lost the opportunity to recover any damages for a serious injury; and that the length of the delay is not significant.
  1. [26]
    Mr Howe, on behalf of the respondent, submits that the applicant has a weak case; that the applicant has prevaricated and delayed, even after consulting solicitors; and (in effect) that the applicant’s failure to establish a “reasonable excuse” under PIPA s 18(1)(c)(i) should be determinative of the Court’s exercise of its discretion under PIPA s 18(1)(c)(ii).
  1. [27]
    In my view, the applicant does have reasonable prospects of success in her claim against the respondent. The information provided by the applicant to the respondent in Exhibit 2 has the effect of substantially minimising any prejudice to the respondent from the failure to comply with the Part 1 notice of claim provisions of PIPA. The information in Exhibit 2 was provided in a timely fashion. As a consequence, the prejudice to the respondent from the delay has been substantially mitigated. It is not intended that the discretion available under PIPA should be exercised in a “punitive or cautionary way”[30]. 
  1. [28]
    Given the applicant’s age, state of health and financial situation[31] and despite her prevarication leading to non-compliance with the statutory obligations of PIPA, it seems to me to be appropriate, given my view of the applicant’s prospects of success on the substantive claim, for this Court to exercise its discretion and grant the applicant leave to proceed pursuant to PIPA                  s 18(1)(c)(ii).

Order

  1. [29]
    I order that the applicant be granted leave pursuant to s 18(1)(c)(ii) of PIPA to proceed further with her claim despite non-compliance with s 9 of PIPA.

Costs

  1. [30]
    I will hear the parties on costs.

- - - - -

Footnotes

[1]  Exhibit 2

[2]  Affidavit of Jacqueline Dalling sworn 6 December 2005, Exhibit C

[3]  Affidavit of Marjorie Morris sworn 5 January 2006, para 12

[4]  Affidavit of Marjorie Morris sworn 5 January 2006, paras 13-15

[5]  Affidavit of Marjorie Morris sworn 5 January 2006, para 19

[6]   Affidavit of Marjorie Morris sworn 5 January 2006, paras 19-22

[7]   Affidavit of Marjorie Morris sworn 5 January 2006, para 23

[8]   Affidavit of Marjorie Morris sworn 5 January 2006, para 24

[9]   Affidavit of Marjorie Morris sworn 5 January 2006, para 27

[10] Affidavit of Aidan Errol O'Keefe sworn 19 January 2006, Exhibit B

[11]  Affidavit of Jacqueline Dalling sworn 6 December 2005, Exhibit D

[12]  Exhibit 2

[13]  Affidavit of Jacqueline Dalling sworn 6 December 2005, Exhibit D

[14]  Affidavit of Marjorie Morris sworn 5 January 2006, para 12

[15]  Affidavit of Marjorie Morris sworn 5 January 2006, para 13

[16]  Affidavit of Marjorie Morris sworn 5 January 2006, para 14

[17]  Affidavit of Marjorie Morris sworn 5 January 2006, para 24

[18]  Affidavit of Marjorie Morris sworn 5 January 2006, para 15

[19]  Affidavit of Marjorie Morris sworn 5 January 2006, para 9

[20]  para 24

[21]  paras 14, 30 & 46

[22]  Applicant’s Outline of Submissions, p 4

[23]  T pp 24-25

[24]  T p 27

[25]  See PIPA s 9(5) and s 18(1)(c)(i)

[26]  Affidavit of Jacqueline Dalling sworn 6 December 2005, Exhibit C

[27]  The Department of Justice website; “any courthouse;” and a specified phone number in the office of the Attorney-General

[28]  See PIPA s 9

[29]  T p 21

[30]  Daniels v Leggatt [2005] QSC 377, per White J at para 29, and see Dempsey v Dorber [1990] 1 Qd R 418, per Connolly J at p 422

[31]  The applicant is in receipt of an aged pension – see Affidavit of Marjorie Morris sworn 5 January 2006, para 9

Close

Editorial Notes

  • Published Case Name:

    Morris v Gold Coast City Council

  • Shortened Case Name:

    Morris v Gold Coast City Council

  • MNC:

    [2006] QDC 172

  • Court:

    QDC

  • Judge(s):

    Dearden DCJ

  • Date:

    03 Feb 2006

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Daniels v Leggatt [2005] QSC 377
1 citation
Jump To
Cite 1 - [2005] QSC 377
Dempsey v Dorber[1990] 1 Qd R 418; [1989] QSCFC 92
2 citations
Jump To
Cite 1 - [1990] 1 Qd R 418
Cite 2 - [1990] 1 Qd R 418
Piper v Nominal Defendant[2004] 2 Qd R 85; [2003] QCA 557
2 citations
Jump To
Cite 1 - [2003] QCA 557
Cite 2 - [2003] QCA 557
R v Perkins [2005] QCA 377
1 citation
Jump To
Cite 1 - [2005] QCA 377
Weeks v Nominal Defendant [2005] QCA 118
2 citations
Jump To
Cite 1 - [2005] QCA 118
Cite 2 - [2005] QCA 118

Cases Citing

Case NameFull CitationFrequency
Feher v Commonwealth of Australia [2014] QDC 1451 citation
Pask v Gold Coast City Council [2006] QDC 3662 citations
1

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