McAnalen v Nextra Strathpine Newsagency
[2008] QDC 18
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- McAnalen v Nextra Strathpine Newsagency[2008] QDC 18
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McAnalen v Nextra Strathpine Newsagency[2008] QDC 18
McAnalen v Nextra Strathpine Newsagency[2008] QDC 18
[2008] QDC 18
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No BD3153 of 2007
MARLEEN JUNE McANALEN | Applicant |
and |
|
NEXTRA STRATHPINE NEWSAGENCY | Respondent |
BRISBANE
DATE 01/02/2008
ORDER
CATCHWORDS: | Personal Injuries Proceedings Act 2002, s.59(2)(b) circumstances in which a "longer period" was allowed to an applicant to start a proceeding although the limitation period had ended. |
HIS HONOUR: The applicant throws herself on the mercy of the court from the point of view of being able to start a proceeding to recover damages for an accident that befell her in or about the respondent's premises on the 9th of March 2004. She was quick to engage legal assistance, having done so within the week. Before the enactment of the Personal Injuries Proceedings Act 2002 (PIPA) it may well have been that a court proceeding would have been started quickly; the legislation forbade that, requiring a would be plaintiff to comply first with the procedures established by the Act.
The solicitor, Mr McGhie, effectively immediately completed the part 1 notice of claim contemplated by the Act and his opposite, Mr Miller, on 11th of May 2005, acknowledged that the part 1 notice was compliant with section 22. Matters proceeded efficiently, the applicant serving a part 2 notice of claim the 2nd of June 2004, Mr Miller's people providing copy of a loss adjuster's report on the 13th of October. In the following months consent was requested and given for issue of a contribution notice to Ideal Doors Pty Limited. In the following year there was some delay experienced by Mr Miller in getting arrangements made for an independent medical examination of the applicant. That occurred on the 13th of January 2006 in Dr Dickinson's premises. Although I infer that Dr Dickinson expected resolution of the plaintiff's shoulder injury, from her point of view that was not occurring and she submitted to surgery in accordance with Mr McGhie's prognostication of the 4th of May 2006, which was performed early last year by Dr Cutbush. His opinion was that a year would be required for the outcome of the surgery to be usefully assessed. That year is expiring about now.
Back in May 2006 a "liability response" required by section 20 of the Act‑‑‑‑‑
...
HIS HONOUR: ‑‑‑‑‑was provided by Mr Miller by a document stating:
"Liability is admitted to the extent of 75 per cent and contributory negligence is alleged ... to the extent of 25 per cent because of her failure to keep any - or any proper lookout."
That communication lacks the significance of pre PIPA offers in that, as is common ground at the Bar table, the purpose of it is to facilitate out of court resolution of claims such as the applicant's. If the matter is to go to court, the respondent would be free to assert it wasn't liable to any extent at all.
On the other hand, I think it would be wrong for the court to set no store by that communication which the common sense, practical approach would identify as something very useful from the applicant's point of view, likely to confirm her confidence in her claim. Throughout 2006 further satisfaction of PIPA requirements as called for by the parties occurred, such as the applicant providing a statutory declaration on the 12th of September 2006. Arrangements were made for the disclosure of records relating to the applicant's employment at Royal Brisbane Hospital. Early in 2007 Mr McGhie noted the forthcoming expiration of the limitation period, which would happen on the 9th of March 2007. He inquired whether the respondent was prepared to hold a compulsory conference or otherwise grant an extension of the limitation period. The response, quite understandable given the developments involving Dr Cutbush and the situation in relation to employment records, was that the respondent was not in a position to participate in a compulsory conference.
On the 9th of March 2007, when the limitation period was to expire, there was an email exchange between the solicitors in which the respondent agreed to an extension of time for institution of proceedings, "after compliance with pre-litigation procedures", to 4.00 p.m. on the 9th of June 2007. That is a three month extension which I understand from counsel, without checking the evidence before the court, is what Mr McGhie asked for. A few days later Mr Miller disclosed the employment records which had been obtained from the hospital.
According to Mr Matthews' helpful chronology the next pertinent event was the disclosure by the respondent of Dr Cutbush's records. The applicant set some store by this. It might be taken to indicate that the respondent was taking no point about the expiration of the agreed extension of the limitation period. According to Mr McGhie's affidavit that expiration had not passed without some thought being given to it by him. His affidavit says in paragraph 33:
"On 14 May 2007 the respondent's solicitors replied to my email [a communication pointing out the applicant was recovering from surgery and that it would be premature to assess her disability at that stage], a true copy whereof is exhibited hereto and marked with the letter 'X'. Although their email was somewhat ambiguous I interpreted it to mean that liability was only disputed to the extent of 25 per cent and that there was no change from the previous position. There was also no response to my advice regarding the plaintiff's recovery from surgery and the fact that it's premature to assess her disability at that stage. As a result I formed the view that it was understood and agreed between the parties that there was little or nothing which could be done to advance the claim until the applicant's injuries stabilised. I also believe that the respondent, for its own separate reasons, was still not ready to hold the compulsory conference in any event. I formed the view that because the respondent had not advised me of any change in its position since the letter dated 15 January 2007 (Exhibit Q) as a result of all these considerations and the respondent's unqualified admission of liability I decided that there was no need to take any further action to further extend the agreed limitation date."
MR MATTHEWS: Your Honour, I think where you've put in brackets what the email is‑‑‑‑‑
HIS HONOUR: Yes, I know, I've got the wrong one.
MR MATTHEWS: The email is the one of the 75/25, being the response under the Act.
HIS HONOUR: Yes. Yes, I think I've got the wrong one there. So which one should I have‑‑‑‑‑
MR MATTHEWS: That's the May, isn't it, '06?
MR SMITH: '07, I think.
HIS HONOUR: We might be able to sort that out, because I agree, it just doesn't make a lot of sense.
MR MATTHEWS: I think‑‑‑‑‑
HIS HONOUR: Where do they‑‑‑‑‑
MR MATTHEWS: I think it's the 30th of May 2006, the liability response required by section 20 of the Act.
MR SMITH: Yes, yes.
HIS HONOUR: Is the 14th of May 2007, that date is correct, isn't it?
MR SMITH: It is, your Honour.
MR MATTHEWS: That is correct.
HIS HONOUR: Yes. I'll just check Exhibit X. Mr Matthews, assisted by reminding me that the email exchange in May 2007 had to do with Mr Miller's erroneously‑‑‑‑‑
MR MATTHEWS: It‑‑‑‑‑
HIS HONOUR: ‑‑‑‑‑sent an email on the 24th of April 2007 at 3.01 p.m. advising, "liability is denied."
MR MATTHEWS: That's because Mr McGhie was acting - it's Exhibit MAM25 to Mr Miller's affidavit. Mr McGhie didn't exhibit it. It's the section 20 PIPA response letter. It's at page 61 of the bundle of exhibits to Mr Miller's first affidavit.
HIS HONOUR: Yes.
MR MATTHEWS: That's where it comes.
HIS HONOUR: Well, I'd be grateful if the Court Reporting Bureau would reproduce this exchange for my assistance, when the transcript is made.
MR MATTHEWS: That's all right. 30 May 2006 Mr Miller said:
"We refer to the objects of the Personal Injuries Proceedings Act, in particular sections 4(2)(a) and (b). Neither your client nor your firm have disclosed any medical reports or certificates in support of your assertion made in your letter of 4 May '06."
There's some talk about the report from Dr Dickinson:
"In the circumstances we're instructed to make a response pursuant to section 20, a detailed request for information under section 22 and thereafter apply for an order that information and documentation be supplied and disclosed within the specified time."
So the section 20 response on behalf of the respondent and the contributor was:
- "(1)Liability is admitted to the extent of 75 per cent and contributory negligence is alleged against your client to the extent of 25 per cent because of her failure to keep any, or any proper lookout;
- (2)There's an invitation to make a written offer in a part 2 notice as is required. There was an assessment of damages that Mr Miller had done and an offer, as required under the Act.&rdquo
HIS HONOUR: Yes. Well, I've quoted part of that letter‑‑‑‑‑
MR MATTHEWS: Yes. Yes, your Honour.
HIS HONOUR: The email 24th of April 2007 took Mr McGhie by surprise, leading him to remind Mr Miller of the letter of 30th of May 2006. That attracted acknowledgement of an error and a correction to clarify that:
"Liability is an issue. Our client has made its response on liability at 75 per cent. Your client did not respond on liability, nor has your client made an offer as required by the Act."
On the 21st of September 2007 Mr McGhie advised that because of the applicant's condition still not having stabilised, which the Court accepts as the factual situation, it hadn't been possible to obtain any final medical report or respond to the respondent's offer of settlement. The letter went on:
"We note the limitation period was extended by consent until 9 June 2007. Please advise whether your client will agree to a further extension of the limitation period or if not, whether it will consent to an order under section 59."
The response of 26th of September 2007 was to refer to the decision of Court of Appeal in Spencer v. Nominal Defendant [2007] QCA 254 on the 8th of August 2007. Mr Miller indicated that having regard to the principles enunciated in the Court of Appeal a question arose of the respondent being satisfied that the applicant was "entitled to the exercise of the discretion under section 59."
A request was made for provision of particulars of the reason for delay which had occurred:
"particularly since 9 March 2007 when our client agreed to extend the time for institution of proceedings after compliance with the pre-litigation procedures to 4.00 p.m. on the 9th of June 2007."
A very detailed letter providing those particulars was sent by Mr McGhie on the 3rd of October 2007, the response being that:
"The respondent is not prepared to waive its rights in respect of the limitation period and would oppose any application."
That is indeed the approach of the respondent on the hearing today. The decision in Spencer was foreshadowed by that in Winters v. Doyle [2006] QCA 110. The legislation considered was section 57 of the Motor Accident Insurance Act 1994, which is indistinguishable from section 59 of the PIPA. Mr Matthews submits that there is a strict limitation upon the availability of section 59(2)(b) which applies in circumstances like the present in which a complying part 1 notice of claim has been given before the end of the limitation period. In that case, a proceeding may be started after the end of the period of limitation if it is started within "a longer period allowed by the Court."
The applicant presents a sympathetic case in that, albeit with the qualification noted, she has obtained an acknowledgement of liability to the extent of 75 per cent. It is also clear that there is something wrong with her shoulder which for present purposes I would associate with the accident. The only prejudice the respondent can point to is that of being deprived of the protection of a limitation period which, of course, can be massive in its implications because it represents the difference between being liable and not being liable. There are no difficulties of disappearance of evidence or the like. It is a situation in which the settling of the plaintiff's medical condition means that a trial can more usefully be had now than at earlier stages.
The limitation on availability of section 59 relief is that the delay which produces limitation difficulties must be related to genuine difficulties in compliance with the requirements of the relevant Act. In my opinion such difficulties are encountered here. If the suggestions the court has heard are correct, they may be about to end when Dr Cutbush reports on the applicant's shoulder.
Mr Matthews submits that there is no difference from the Spencer situation, in which the would-be plaintiff failed to comply with a court order which authorised the commencement of proceedings seeking damages no later than the 14th of July 2006. The applicant there in the end in any event did not commence proceedings until the 5th of October 2006.
The difficulties of medical assessment of an injury encountered here were not encountered in Spencer. It, like Winters v. Doyle, is a case of an unsuccessful appeal against refusal of a District Court Judge to exercise the section 59(2)(b) discretion in favour of the applicant. In my opinion this is a case in which the discretion ought to be exercised favourably to the applicant. The circumstances are ones in which it has not been possible to hold a useful compulsory conference or for the applicant to make a sensible offer. The respondent might well wish to revise its offer when Dr Cutbush reports, if entitled to do that. Although I have noted the respondent's failure to seize immediately on the applicant's failure to seek extension of the limitation period by agreement after the 9th of June last year, I am not relying on that in reaching my decision.
The situation in my opinion is not governed by the agreement about the 9th of June 2007 with the effect that a section 59 application was doomed to fail. The applicant was entitled to bring her application and have it assessed on the merits which, in my opinion, lie with her.
...
HIS HONOUR: So it is order as per application with the addition to paragraph 1 of the words, "At least one of such events to be brought about by the 1st of August 2008."