DISTRICT COURT OF QUEENSLAND

1. [1]
   Mr Paterson alleges he suffered personal injuries in a motor vehicle accident on 15 March 2001. Under s 11 of the Limitation of Actions Act 1974 (LAA), he was obliged to bring proceedings for that claim by 15 March 2004, but did not do so. He did, however, take initial steps under the Motor Accident Insurance Act 1994 (MAIA) and, in this application, seeks leave under s 57(2)(b) of that Act to begin proceedings notwithstanding the expiration of the limitation period.

2. [2]
   S 57 provides:

57Alteration of period of limitation

3. (1)
   If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.

3. (2)
   However, the proceeding may only be brought after the end of the period of limitation if it is brought within–

1. (a)
   six months after notice is given or leave to bring the proceeding is granted; or

2. (b)
   a longer period allowed by the court.

3. [3]
   The nature and effect of the provision, and of the discretion arising under it, have been considered in detail in two recent decisions of the Court of Appeal: Morrison‑Gardiner v Car Choice Pty Ltd & Anor [2004] QCA 480; and, Winters v Doyle & Anor [2006] QCA 110. As McMurdo P pointed out in the first of those cases^[1] the MAIA imposed detailed statutory prerequisites before a person claiming damages for personal injuries arising out of the alleged fault of another in a motor vehicle accident can issue proceedings within the three-year limitation period provided under the LAA.

4. [4]
   The objects of the MAIA include, as the President went on to observe, the continuing improvement of the system of compulsory third party motor vehicle insurance and of the scheme of statutory insurance for uninsured and unidentified vehicles operating in Queensland; establishing a basis for assessing the affordability of insurance under the statutory insurance scheme; keeping the cost of insurance at a level the average motorist can afford; encouraging the speedy resolution of personal injuries claims; promoting and encouraging rehabilitation of claimants; and, the promotion of measures directed at eliminating or reducing causes of accidents, and mitigating their results.

5. [5]
   The scheme set up under that Act to achieve these ends requires claimants, firstly, to give written notice of their motor vehicle accident claims to insurers before an action can be brought: s 38. Unless the insurer waives compliance with the notice provisions, or the insurer is presumed to be satisfied that notice has been given, a claimant who has failed to give notice is prevented from proceeding further, save with the assistance of the court:  s 39.

6. [6]
   Under the scheme, the insurer is obliged to take steps to resolve the claim within six months after it receives notice: s 41. Since amendments to the MAIA introduced in 2000, a claimant is not only obliged to give notice before bringing an action in court, but, also, to have a compulsory conference within six months after giving notice or, if that time has passed, at a reasonable time and place nominated by the party calling the conference:  s 51A. By the time of that conference, each party is expected to be ready for trial, and to have supplied the other party with all material relevant to the claim and its costs:  s 51B. The parties are to exchange mandatory final offers if the claim is not settled at the conference:  s 51C.

7. [7]
   An action for damages is to be started within 60 days after the compulsory conference, or within a further period agreed by the parties (within that 60‑day period), or fixed by the court on the claimant’s application within the period:  s 51D. Failure to commence the action within that time does not prevent the claimant from starting an action, unless the court makes an order fixing a time limit within which that must occur:  s 51D(4).

8. [8]
   Mr Paterson gave a complying notice of claim to the second respondent within the relevant limitation period and, as early as 1 August 2001, sent it some hospital records and a report from a doctor. On 22 March 2002, the second respondent admitted liability. Thereafter, however, nothing happened referrable to the requirements of the MAIA, or the LAA until this application was filed on 2 February 2007. Pursuant to the LAA the limitation period past on 15 March 2004.

9. [9]
   No part of, or blame for, the causes of that delay are attributable to the respondents. Indeed, the second respondent approached the applicant’s solicitor on eight occasions to progress the claim and sought, on four occasions^[2], to arrange a settlement conference – a proposal which was on each occasion, for various reasons, declined (or the conference was cancelled). On 3 June 2004, the respondent insurer telephoned the applicant’s solicitor pointing out the limitation period had passed a few months earlier.

10. [10]
    Mr Paterson’s solicitor says he wrote to the second respondent on 6 August 2004 contending that the insurer’s earlier admission of liability meant it was estopped from refusing to pay damages, and making a settlement offer. The second respondent denies receiving that letter, or seeing it, until it was served with this originating application on 7 February 2007. Neither the applicant’s solicitor nor the solicitor for the second respondent, both of whom filed affidavits about this matter, was required for cross‑examination.

11. [11]
    Nothing happened, then, until 10 November 2006 when the applicant’s solicitor wrote to the second respondent requesting copies of certain letters from its file. These were provided in a reply of 15 December 2006.

12. [12]
    Affidavits concerning the reasons for the delay were filed by Mr Paterson and his solicitor^[3]. Mr Paterson says that at the time of the accident in March 2001 he was studying for a Masters degree and working part‑time at USQ. He returned to study after convalescing from orthopaedic injuries, but says his ‘… brain just didn’t seem to be functioning properly’^[4] and he had trouble completing the balance of his course. In 2003, however, he found employment but says that, during the years 2002 and 2003 he had difficulty managing his personal affairs and it seems, from the applicant’s affidavit and that of his solicitor, that there was a period between January 2003 and September 2003 when he did not respond to communications from the solicitor and, then, a gap for similar reasons between that date and April 2004. It also appears that there was no contact between solicitor and client in the period October 2003 to July 2006.

13. [13]
    The affidavits are less than clear in some other respects and neither the solicitor nor the applicant say whether or not the latter was informed of the limitation period. The applicant does say that when he spoke to his solicitor in September 2003 he gave instructions about the difficulties he was experiencing with memory and concentration, and that the solicitor recommended a consultation with his GP and, subject to the GP’s advice, consultation with a specialist. The applicant did see a GP who, he says, did not believe his symptoms warranted a referral. Later, however, and after the limitation period had expired, another GP did provide a referral to a neurologist, Dr Walsh. The applicant saw him on 18 June 2004 and according to the applicant’s affidavit, the specialist diagnosed depression attributable to a head injury suffered in the subject accident.

14. [14]
    After further delays the applicant underwent an MRI and some nerve conduction tests in July and September 2004. He says he was told they revealed no abnormalities. Dr Walsh had prescribed an anti‑depressant, and the applicant says his condition has slowly but gradually improved since the end of 2004.

15. [15]
    Otherwise, it appears, the applicant has been able to continue with his studies and remained in good employment.

16. [16]
    The solicitor’s affidavit begins with the taking of instructions; the delivery, promptly, of a notice under the MAIA; and, the obtaining of medical reports, including one from an orthopaedic specialist in April 2002. The affidavit then confirms intermittent exchanges between the solicitors and the insurer about conferences apparently intended to achieve, or advance the matter towards, settlement. In 2003, there are discussions with the applicant about his symptoms, and his attempts to obtain a referral to a specialist. A ‘settlement submission’ was sent to the insurer on 18 May 2004, but on 17 June the insurer advised it would not respond to that offer ‘... until further advice was received with respect to the expiration of the limitation period’^[5] (which had, of course, occurred about two months earlier).

17. [17]
    The solicitor also deposes to becoming aware of the decision of Holmes J in Morrison‑Gardiner at first instance, and that it had been appealed, and decided to wait until the decision of the Court of Appeal was available. Otherwise, the solicitor very frankly assumes all of the blame for the unobserved passing of the limitation period, and the failure to address the statutory requirements of the MAIA. As to the latter, the explanation offered is^[6]:

The compulsory conference could not be arranged before the full extent to the applicant’s injuries was known. The applicant had difficulties in seeking medical advice and treatment due to the nature of his employment. Proper and reasonable efforts were made, in the circumstances, to have his symptoms investigated. There was a failure in our office systems to have the limitation date entered in the computerised limitation diary. I am unable to explain how or why the limitation date was not entered in the diary. There was a failure, on the part of my office, to seek an extension of the limitation period from the respondent insurer, or to bring an application to dispense with the need for a compulsory conference, in circumstances where the compulsory conference could not be held before 15 March 2004 due to the instability and deterioration of the applicant’s symptoms and the outstanding need to have certain of those symptoms diagnosed and reported on.

18. [18]
    The evidence concerning the nature and extent of Mr Paterson’s injuries, his treatment and the obtaining of medico‑legal reports is not, as previously observed, easily extracted from his affidavit. He observed symptoms, capable of being reasonably categorised by a layperson as likely to be associated with depression, in 2001, 2002, and 2003. He told his solicitor about them in September 2003 and pursued a referral to a specialist, as described earlier, until he was diagnosed with depression about, it appears, mid 2004.

19. [19]
    Morrison‑Gardiner v Car Choice Pty Ltd and Winters v Doyle make it clear that the discretion arising under s 57(2)(b) has, as its central element, the relationship between the delay which gave rise for the need to seek relief, and the plaintiff’s attempts to comply with the requirements of the MAIA. As Keane JA said in Winters v Doyle^[7]

[24] … a plaintiff will usually be able to show good reason for the favourable exercise of a discretion conferred by s 52(2)(b) only if he or she can show that the delay which occurred was occasioned by a ‘conscientious effort to comply’ with the MAI Act.

…

[26] It should be emphasised that an explanation for delay which shows that the delay was associated with the plaintiff’s attempts to comply with the requirements of the MAI Act and evidence negativing of the possibility of unfair prejudice to the defendant, are not considerations precedent to the enlivening of the power conferred by s 52(2)(b) of the MAI Act. Rather, they are considerations relevant to the proper exercise of that power.

20. [20]
    Earlier, his Honour had cited the judgment of Chesterman J in Morrison‑Gardiner^[8]:

The discretion to permit the commencement of proceedings after the expiration of a limitation period is to be exercised in this context. It is clearly meant to ameliorate the plight of a claimant who is unable to comply with the requirements of the Act in time to commence proceedings and who, if justice is to be done, should be given the extension. The discretion is likely to be exercised favourably only in those cases where a claimant’s circumstances make it difficult to comply with the requirements of the Act, and commence proceedings within three years or where, despite making conscientious efforts to comply with the requirements of the Act, a claimant nevertheless does not do so within three years of the accident. Any delay on the part of a claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion. Claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them, are unlikely to obtain an extension of time though, of course, each case must be decided on its individual merits.

21. [21]
    The earlier analysis of the applicant’s evidence, and that of his solicitor, makes it reasonable to conclude that by the time the limitation period expired investigations relevant to the possible nature and extent of his injuries had not been completed. Mr Paterson’s affidavit contains two, albeit diffuse, explanations for that circumstance.

22. [22]
    The first is the difficulty he had with his study and work (when his ‘… brain just didn’t seem to be functioning properly^[9]’) between a time after his initial convalescence from his orthopaedic injuries (which appears to have been about mid 2001) and Christmas 2004, since when he says he has noticed a ‘… slow but gradual improvement’^[10]) attributable, by inference, to the anti‑depressant medication prescribed by the specialist, Dr Walsh.

23. [23]
    These intellectual/personality difficulties were not minor: he says he could not bring himself to attend to his personal affairs, including the preparation of his tax returns, and failed to lodge one from and after 2002/2003; that he was aware he was irritable at work; and, that in September 2003, respected work colleagues commented upon his health and observed that he did not seem to be ‘… performing terribly well.’^[11]

24. [24]
    The second explanation arises from his work in remote places, the difficulties this created in obtaining medical advice, his lack of transport, and his employer’s reluctance to give him time off.

25. [25]
    At paragraph 7 of his affidavit he appears to shoulder responsibility for his failure to contact his solicitor or give instructions about his intellectual and personality problems until September 2003. Mr Atkinson of counsel, for the second respondent, not unfairly pointed to the absence of any medical evidence to corroborate these claims, but there is no reason to doubt what the applicant says about the personality changes he observed or the diagnosis he was given by the specialist. Nor is it unfair to observe that, by their nature, these traits would be likely to lead to delay and lack of efficiency in pursuing matters which were in his own interest.

26. [26]
    Nor is there any reason for criticism of the applicant’s solicitor for the advice given in September 2003, when the applicant informed the solicitor of these difficulties with memory and concentration. It might, on reflection, have been better to send the applicant directly to a neurologist for examination for the purposes of a medico‑legal report, but it is not particularly surprising that a competent and careful, and caring solicitor would also be concerned to ensure that the applicant obtained appropriate treatment for symptoms, too.

27. [27]
    The initial approach to a GP in October 2003 for a referral to a specialist was, as previously observed, unsuccessful. The applicant says he was not happy with that advice and^[12]:

… decided that it would be better if I could attend my family GP back in Toowoomba. However, it was extremely difficult for me to arrange this. When I was at Byfield, I did not own a motor vehicle. I had the use of a departmental 4WD, but the use of this was extremely restricted. Any personal business I had to do such as shopping, or attending a medical appointment, could really only be done when I needed to travel to Yeppoon for work purposes. Matters were also complicated by the fact that I had a number of periods of work away from Byfield, in more remote areas. I was required to travel to Cardwell, Cape York, Atherton, and Ingham.

9. In addition, my employer was not sympathetic to me taking time off. But this time my work was extremely demanding. The workload was very high and it really took all of my concentration and energy to cope with the work requirements. I was also loathe to fully discuss the problems that I was experiencing. In these particular circumstances, I was not able to see a doctor again for some months. I eventually went to see a locum, Dr Krishna, at Yeppoon in May 2004 … Dr Krishna provided me with a referral to a neurologist, Dr Michael Walsh. I first saw Dr Walsh on 18 June 2004.

28. [28]
    Byfield is a settlement north of Yeppoon. The applicant commenced his job there at some time in 2003, but says:

4. … when I took up the job at Byfield, I knew that things were not quite right. During 2003 I put absolutely all of my concentration and energy into managing my job. I found that I was simply unable to deal with other things …

It appears the applicant worked there until 2006. At the time of his injury, he was studying and working in Toowoomba.

29. [29]
    The MAIA acknowledges that applicants may encounter problems jumping through all of the statutory hoops it sets up before an action may be commenced. It allows a court to dispense with the compulsory conference ‘for good reason’ (s 51A(5)(b)); and, to extend the time in which proceedings may be brought (s 51D). Arguably, that is what the solicitor should have pursued in the circumstances just described, ie when it was obvious the plaintiff was complaining, towards the end of the limitation period, of some new symptoms which had not previously been investigated, in circumstances where those investigations might use up the time still remaining before expiry.

30. [30]
    The solicitor admits so much, of course, in the passage from his affidavit set out earlier. In Winters v Doyle, Keane JA went on to say, at [35]:

… the more serious problem for the plaintiff, it seems to me, is that the explanation for the delay which was given did not identify any significant connection between the requirements of the MAI Act and the delay which occurred. It is to be emphasised that the issue here is not whether the plaintiff may reasonably be excused for having relied upon his solicitor to comply with the requirements of the MAI Act. The issue whether the delay which occurred was related to compliance with the MAI Act.

31. [31]
    While it is not unreasonable to infer that Mr Paterson did rely upon his solicitors to advance his claim in accordance with the relevant legislation, and it is plain they failed to anticipate or observe the expiry of the limitation period, those things were ancillary to the primary, relevant circumstance – that in the period leading up to the date of expiry, the applicant’s new instructions, about symptoms he had not previously mentioned to his legal advisers, necessitated steps which, it is reasonable to conclude, made it improbable the applicant could ever have complied with the relevant MAIA provisions before expiry. It must be acknowledged that this conclusion is necessarily hypothetical, but, complaints of mental deficits will never be taken lightly by a competent legal practitioner who will, as the applicant’s solicitor did, recommend steps intended to discern whether those symptoms are related to injury suffered in the subject accident. That is what occurred here.

32. [32]
    Once that conclusion is reached, the question of reliance by the applicant upon his solicitor becomes secondary. Whether or not he did so, the limitation period expired in circumstances which had an important connection with the requirements of the MAIA. Had the relevant delay been referrable only, or in the major part, to the facts and circumstances surrounding the investigation of his newly revealed symptoms, around the time the limitation period passed, he might be said to have a reasonable case for the exercise of the discretion arising under s 57.

33. [33]
    This case has, however, another element: the delay between 2004 and early 2007, for which the greater part of the responsibility must be attributed to the solicitor. It cannot be said to involve any connection with the requirements of the MAIA. Whether or not the solicitor’s letter of 6 August 2004 actually went to the insurer, the solicitor’s own affidavit shows that he did nothing, thereafter, until June 2006. In particular, there was no attempt to pursue the insurer for a response (when, presumably, it might have been discovered the insurer had not received the letter), nor to contact Mr Paterson. That latter contact did not occur until June 2006. At that time Mr Paterson was advised, appropriately, to seek independent legal advice and did so, and instructed the solicitor to proceed with the application. It did not proceed expeditiously. Instructions were given on 24 August 2006 but it was not until 10 November that the insurer was asked for copies of some documents.

34. [34]
    The second respondent claims to have suffered prejudice as a consequence of all of the delays. It says it has not had the opportunity to pursue steps which might aid the applicant’s rehabilitation, and has not obtained information regarding his alleged cognitive deficits (or depression). It is further submitted that, in the absence of the opportunity to obtain that evidence, it might now be impossible to ascertain whether the current symptoms are, in truth, related to the original accident. Both counsel made submissions about this, but there is no evidence directly touching the matter at all.

35. [35]
    It does not seem that any medico‑legal report has ever been sought from the neurologist, Dr Walsh. The letter sent by the applicant’s solicitor to the insurer on 20 May 2004 mentions some memory problems, but does not suggest further medical or medico‑legal reports are being obtained. The mysterious letter of 6 August 2004 (which, on balance, seems unlikely to have been sent) alludes to the possibility of a neurologists report being obtained, but no more. No report was obtained from the GP who referred the applicant to the neurologist in circumstances where, it seems likely, the latter reported back to the former (in accordance with customary practice in the medical profession).

36. [36]
    Although Chesterman J suggested in Morrison‑Gardiner v Car Choice that the provisions of the MAIA had superseded the operation of the LAA as it applies to claims for damages for personal injuries caused by motor vehicle accidents^[13], McMurdo P was, with respect, more tentative^[14] and Williams JA said s 57 of the MAIA is ‘… clearly predicated on the proposition that the three year limitation period imposed by s 11 of the Limitation of Actions Act continues to apply to claims of the type in question. That is the basic rule.’^[15]  The question does not appear to have been explored further in Winters v Doyle.

37. [37]
    In Morrison‑Gardiner, Williams JA noted^[16] that the policy underlying statutes of limitation rests upon three principles:  that those who go to sleep upon claims should not be assisted by the courts; a defendant ought not be forced to trial when it may have lost the evidence to disprove a stale claim; and, that persons with good causes of action should not stand by and omit to enforce them:  Archie v Archie [1980] Qd R 546, per Hoare J at 559. The possibility that evidence has been lost or is otherwise unobtainable because of the delay remains an important factor relevant to the discretion (as the discussion of the ‘lost’ witness in Winters v Doyle shows)^[17].

38. [38]
    It is the applicant who bears the onus of showing that the discretion to permit the matter to proceed to trial should be exercised in his favour: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541^[18]. Uncertainty about the possibility that a medico‑legal examination could now establish, or disprove, some connection between the plaintiff’s intellectual/personality-related symptoms and his injuries is, then, a deficit in his attempts to persuade the court that there is a good reason to allow the matter to proceed to a trial.

39. [39]
    More than three years have passed since the applicant first complained of these symptoms to his solicitors. This aspect of the delay is inordinate, and exacerbates the reasonable concern that the insurer may not, now, be able to conduct useful investigations. At best for the applicant it can only be said that the nature and extent of the difficulties confronting the insurer, consequent upon the delay, are unclear.

40. [40]
    The delay since the expiry of the limitation period is not referrable to any difficulties associated with the procedural requirements of the MAIA and is solely, rather, the product of inaction. That factor, combined with the circumstance that there is at least a possibility the insurer has, by the delay, suffered prejudice, means that, on balance, the weight of the factors relevant to the exercise of the discretion tells against the applicant. For these reasons, the application is refused.