Pask v Gold Coast City Council
[2006] QDC 366
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- Unreported Judgment
- Pask v Gold Coast City Council[2006] QDC 366
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Pask v Gold Coast City Council[2006] QDC 366
Pask v Gold Coast City Council[2006] QDC 366
DISTRICT COURT OF QUEENSLAND
CITATION: | Pask v Gold Coast City Council [2006] QDC 366 |
PARTIES: | SHIRLEY ANN PASK Applicant v GOLD COAST CITY COUNCIL Respondent |
FILE NO/S: | 374/2006 |
DIVISION: | Civil Jurisdiction |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Southport |
DELIVERED ON: | 18 October 2006 |
DELIVERED AT: | Southport |
HEARING DATE: | 28 August 2006 |
JUDGE: | Dearden DCJ |
ORDER: | That the applicant be granted leave pursuant to s. 18(1)(c)(ii) of the Personal Injuries Proceedings Act to proceed further with her claim despite non-compliance with s. 9 of the Personal Injuries Proceedings Act |
CATCHWORDS: | APPLICATION – Personal Injury – Non compliance with pre-court procedures – Reasonable excuse – Court’s discretion to authorise claim to proceed despite non-compliance Cases Cited: Morris v. Gold Coast City Council [2006] QDC 172 Weeks v. The Nominal Defendant [2005] QCA 118 Piper v. The Nominal Defendant [2003] QCA 557 Personal Injuries Proceedings Act 2002 |
COUNSEL: | Mr P de Plater 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]This is an application by the applicant, Shirley Ann Pask against the respondent, Gold Coast City Council, seeking (relevantly) the following orders:
[1] A declaration that the applicant has 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 (“the Act”).
[2] A declaration that the applicant has given the respondent a complying Part 1 Notice of Claim pursuant to s. 9 of the Act.
[3] In the alternative, pursuant to s. 18(1)(c)(i) of the Act, the Court declare that the applicant has remedied any non-compliance.
[4] In the alternative, that the applicant be granted leave pursuant to s. 18(1)(c)(ii) of the Act to proceed further with the claim despite non-compliance.
Facts
- [2]The applicant was born on 14 July 1949 and is now 57 years of age. On 9 June 2004, when aged 53, the applicant was injured as a result of an incident which occurred on the footpath of 25 Pinaroo Street, Santa Barbara, Gold Coast.
- [3]The applicant describes the incident as follows:-[1]
“I had arrived at my son’s new home after dark at approximately 7.00pm in order to move in with him. At around 9.00pm I walked out of the home and across the road to my car to retrieve an item. As I came back from the car, I turned and pressed my automatic button to lock the car. I was stepping backwards slowly when suddenly I fell straight back having stepped in the uncovered hole on the Council nature strip outside the home. I had never been to this home before that night and I had arrived after dark and had not seen the hole in the Council nature strip at all.”
- [4]The applicant asserts that she sustained the following injuries in the incident:-[2]
[1] Broken clavicle
[2] Broken ribs – 3, 4 and 5 on left side
[3] Scarring on left shoulder.
Chronology
- [5]The accident having occurred on 9 June 2004, the applicant’s notice required pursuant to Personal Injuries Proceedings Act 2002 (PIPA) s. 9(3) was due on 9 March 2005.
- [6]The applicant’s first contact with solicitors involved a telephone call on Ms Leya Svetey, legal assistant at Maurice Blackburn Cashman on 12 May 2005. Ms Svetey attests that on that date she “spoke to the applicant when she first contacted the office of [Maurice Blackburn Cashman] to discuss her potential claim. The applicant informed [Ms Svetey] … that she fell in a hole on property owned by the respondent [Gold Coast City Council] suffering injuries including broken ribs and a broken left clavicle. [Ms Svetey] passed the applicant’s details on to Laura Neil, a solicitor in [the office of Maurice Blackburn Cashman]”.[3]
- [7]On 16 May 2005 Ms Svetey then contacted the applicant to make an appointment for the applicant to see Ms Laura Neil (solicitor) to discuss her potential claim but “the applicant informed [Ms Svetey] that she was going away for ten days and the person who had taken photos of the area in which she fell was not contactable [and Ms Svetey] requested that the applicant contact [Maurice Blackburn Cashman] once [the applicant] had some photos.”[4] The applicant then claims to have spoken to “Leya” (presumably Ms Svetey) at Maurice Blackburn Cashman on 1 February 2006[5] although Ms Svetey’s affidavit indicates unsuccessful attempts to contact the applicant on 1 and 2 February 2006 with the discussions finally occurring on 7 February 2006, at which stage Ms Svetey states that she was “informed that the applicant was relying on her daughter to take the photos of the area in which she fell [and] the applicant said she would telephone [Maurice Blackburn Cashman] once she has (sic) the photos to make an appointment”.[6] Curiously, the applicant claims to have been advised by Ms Svetey on 12 May 2005 that “there was an overriding three year time limit in which to bring a claim for personal injuries” and that the applicant therefore “thought that [she] had until 9 June 2007 to make [her] decision as to whether or not [she] wanted to bring a claim.”[7] This is in contradiction to the evidence of Ms Svetey who states that she does “not recall advising the Applicant that she had three years in which to bring a claim”, observing “this is not recorded in my file notes of my conversations with the applicant.”[8]
- [8]The applicant eventually obtained the photographs of the scene and made (and kept) an appointment to see Maurice Blackburn Cashman Solicitors on 30 May 2006, and informed her solicitors at that consultation that she had decided to pursue a claim on the basis that she was still in significant pain.[9]
- [9]After attending on Ms Nelson and Ms Neil, solicitors of Maurice Blackburn Cashman on 30 May 2006, the applicant was advised (apparently for the first time) of the requirements of PIPA s.9[10]. The applicant’s solicitors, Maurice Blackburn Cashman, forwarded a letter dated 21 June 2006 to the respondent together with a Part 1 Notice of Claim and a sworn Reasonable Excuse for Delay[11]. The respondent’s solicitors, O'Keefe Mahoney Bennett, by way of a letter dated 17 July 2006[12] advised that they did not consider that the applicant’s excuse for delay was reasonable and the respondent therefore was not prepared to waive compliance with the requirements of PIPA. There followed further correspondence between solicitors for the applicant and the respondent as to whether an application should be made to court, culminating in the filing of the Originating Application in these proceedings in the District Court at Southport on 3 August 2006[13]. The matter came on for hearing before me on 28 August 2006.
The Law
- [10]The injury suffered by the Applicant is 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.”
- [11]It is accepted that the applicant’s Part 1 Notice of Claim was required pursuant to PIPA s.9 (3)(a) on 9 March 2005, but was not in fact given until 21 June 2006[14] (some 15 months and 12 days out of time).
Reasonable Excuse PIPA s. 18 (1)(c)(i)
- [12]The applicant sets out in her Part 1 Notice of Claim form under the heading “Reasonable Excuse for Delay” the following reasons for that delay[15]
“1. After my accident on 9 June 2004, I believed that I would just work hard at getting myself better. This is the main reason why I chose not to bring a claim straight away. In fact I hadn’t really thought too much about bringing a claim at all.
- Then Dr Stabler informed me that I had to have an operation on 1 November 2004. After this operation I still had the same attitude, that is, I just wanted to get better and I did not think about pursuing a claim.
- On 12 May 2005, I made a decision to contact Maurice Blackburn Cashman in order to find out about the claim process as I was still in pain.
- I spoke to Leya Svetey that day who I believe is the assistant of Laura Neil at Maurice Blackburn Cashman. I was informed by Leya that there was an overriding three year time limit in which to bring a claim for personal injury. I therefore thought that I had until 9 June 2007 to make my decision as to whether or not I wanted to bring a claim.
- In addition to this I had had proper photos taken by a friend of the hole as it was at the time of the accident. However this friend, Paul Garrett, went to Sydney shortly after my accident and despite my best investigations, I haven’t been able to contact him at all.
- In early 2006, I then requested that my daughter take some photos of the hole that I fell in with her digital camera. It took my daughter some time in which to take those photos.
- I spoke to Leya at Maurice Blackburn Cashman again on 1 February 2006. I informed her that I was still trying to organise photographs of the scene of the accident.
- I eventually obtained the photographs and made an appointment to see my solicitors at Maurice Blackburn Cashman on 30 May 2006.
- At that consultation I informed my solicitors at Maurice Blackburn Cashman that I had decided to pursue a claim on the basis that I was still in significant pain.”
- [13]It is clear from the chronology that there was no contact whatsoever by the applicant with the solicitors prior to 9 March 2005, and although there was telephone contact with Maurice Blackburn Cashman on 12 May 2005[16] followed by further telephone contact on 1 February 2006 (or possibly 7 February 2006 on Ms Svetey’s version)[17], the firm of Maurice Blackburn Cashman was not actually “instructed” until 30 May 2006[18].
- [14]As I understand the submissions of Mr de Plater on behalf of the applicant, the “reasonable excuse” asserted on behalf of his client that is that she “had hoped that she would get better”[19] and further that the applicant was “simply … not aware, until she was told by her solicitors in late May 2006, of the need to comply with time requirements under PIPA.”[20]
- [15]It is clear that the question of the “reasonableness” of the excuse for the delay is an objective one[21].
- [16]In my view, I do not accept that the applicant has objectively established a reasonable excuse for the delay[22]. There is just no explanation other than that the applicant believed that she would work hard at getting herself better, which explains the delay of some eleven months in making initial phone contact with a firm of solicitors[23], nor is there any reasonable explanation for the further delay of some twelve and a half months before actually instructing solicitors on 30 May 2006[24]. There was, of course, no fault on the part of the applicant’s solicitors, who were in the first instance contacted by telephone on 12 May 2005 and subsequently (again by telephone) on either 1 or 7 February 2006, but were not instructed until 30 May 2006, at which stage, within a period of approximately three weeks, a Part 1 Notice of Claim (including a “Reasonable Excuse for Delay” document) was prepared and forwarded to the respondent[25].
- [17]I find, therefore, 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.
Courts Discretion to Authorise Claim to Proceed
- [18]The conclusion I have reached in respect of the applicant’s failure to establish a “reasonable excuse” under PIPA s. 18(1)(c)(i) is not the end of the matter, and (sensibly in my view), PIPA s. 18(1)(c)(ii) enables this court to authorise the claimant to proceed further with the claim despite non-compliance with the Part 1 Notice of Claim provisions[26].
- [19]In respect of that potential exercise of the court’s jurisdiction, Mr de Plater submits that the applicant is not even near the end of the limitation period (which expires 8 June 2007), that there is nothing to show that the respondent will suffer prejudice if the matter proceeds, and further that the applicant has an arguable case (given that at approximately 9.00pm at night she has fallen into an uncovered whole on the nature strip outside her son’s property)[27].
- [20]In the circumstances, I consider that the applicant has some reasonable prospect of success and the respondent concedes that it cannot point to any prejudice[28]. Given the matters outlined in the “Reasonable Excuse for Delay” portion of the Part 1 Notice of Claim form[29], and noting carefully the observations of Jones J, in Cousins v Mount Isa Mines Ltd [2006] QCA 261[30] it seems to me entirely appropriate for this court to exercise its discretion and grant the applicant leave to proceed pursuant to PIPA s. 18(1)(c)(ii).
Order
- [21]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
- [22]I will hear the parties on costs.
Footnotes
[1] Exhibit A(p. 6), Affidavit of Anneliese Nelson sworn 3 August 2006
[2] Exhibit A(p. 11), Affidavit of Anneliese Nelson sworn 3 August 2006
[3] Para 2, Affidavit of Leya Svetey sworn 3 August 2006
[4] Para 3, Affidavit of Leya Svetey sworn 3 August 2006
[5] Exhibit A (p. 17), Affidavit of Anneliese Nelson sworn 3 August 2006
[6] Paras 4-6, Affidavit of Leya Svetey sworn 3 August 2006
[7] Exhibit A (p. 17), Affidavit of Anneliese Nelson sworn 3 August 2006
[8] Para 7, Affidavit of Leya Svetey sworn 3 August 2006
[9] Exhibit A (p. 17), Affidavit of Anneliese Nelson sworn 3 August 2006
[10] Para 8, Affidavit of Anneliese Nelson
[11] Para 9 and Exhibit A, Affidavit of Anneliese Nelson sworn 3 August 2006
[12] Para 10 and Exhibit B, Affidavit of Anneliese Nelson sworn 3 August 2006
[13] Document 1 (Originating Application) filed 3 August 2006
[14] Para 9 and Exhibit A, Affidavit of Anneliese Nelson sworn 3 August 2006
[15] Exhibit A (p. 17), Affidavit of Anneliese Nelson sworn 3 August 2006
[16] Exhibit A (p. 17), Affidavit of Anneliese Nelson sworn 3 August 2006
[17] Para 6, Affidavit of Leya Svetey sworn 3 August 2006
[18] Exhibit A (p. 17) and para 8, Affidavit of Anneliese Nelson sworn 3 August 2006
[19] Hearing T.7
[20] Applicant’s Outline of Submissions p. 3 para 12
[21] Morris v. Gold Coast City Council [2006] QDC 172, para 16; Weeks v. The Nominal Defendant [2005] QCA 118 at para 24; Piper v The Nominal Defendant [2003] QCA 557 at paras 14, 30 and 46
[22] See PIPA s. 9(5) and s. 18(1)(c)(i)
[23] Exhibit A(p. 17), Affidavit of Anneliese Nelson sworn 3 August 2006
[24] Exhibit A(p, 17), Affidavit of Anneliese Nelson sworn 3 August 2006
[25] Exhibit A, Affidavit of Anneliese Nelson sworn 3 August 2006
[26] See PIPA s. 9
[27] Hearing T.12
[28] Hearing T.11
[29] Exhibit A(p. 17), Affidavit of Anneliese Nelson sworn 3 August 2006
[30] Paras 32-34