DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 4 March 2002, the applicant underwent surgery by the respondent, a general surgeon, for multiple gallstones and recurrent abdominal pain. The initial surgery was done by laparoscopy. During the course of that procedure, the applicant’s bile duct, hepatic duct and hepatic artery were severed. Another doctor carried out surgery to repair the damage. Complications arose which required the removal of part of her liver and refashioning of her bile ducts. Infection was another problem.

2. [2]
   The applicant’s solicitors obtained a verbal opinion from Dr Banting on 9 June 2005 and a written opinion from Professor Fawcett in October 2005. Both doctors were negative about the applicant’s prospects of success. A report from Professor Spigelman dated 3 December 2005 was obtained. He was not critical of the surgery carried out by the respondent. By letter of 18 January 2006,^[1] the applicant’s solicitors indicated that they were no longer prepared to act in the matter.  They advised the applicant that she had three years in which to bring an action, but that they had made an application to protect her interests.^[2] Reference was also made to the time frames under PIPA.  They advised “that if you wish to continue your (sic) claim, you should seek legal advice as soon as possible”.

3. [3]
   The applicant received a letter dated 20 October 2006 from the respondent’s solicitors.^[3] They confirmed that no proceedings had been commenced after the s 43 application.  It was also pointed out that the limitation period had expired as had the six months extension period provided for under s 59(2)(a) of PIPA. A more exhaustive chronology is attached to these reasons. On 3 January 2007, the applicant contacted her present solicitors.^[4] On 13 February 2008, the applicant received a report ^[5] from Professor Ham who was supportive of her claim in that he was satisfied that the respondent did not perform to a standard of care required of a reasonably competent surgeon.^[6]

Issues for determination

4. [4]
   There are two applications before the court. The applicant seeks leave to commence proceedings pursuant to s 59(2) of PIPA, despite the expiration of the three year limitation period. Alternatively, she seeks to extend the limitation period to 28 January 2009 pursuant to s 31 of the Limitation of Actions Act 1974.  It is convenient to deal with the limitation issue in the first instance.  It is recognised, however, that any limitation period is subject to s 59 of PIPA, which gives a court a general discretion to extend the limitation period even though the application is outside the limitation period.^[7] The discretion must be exercised judicially. Williams J summarised the position as follows:^[8]

In my view, given all the provisions of the Motor Accident Insurance Act,  conferring a discretion on the court to permit proceedings to be started in a court after the end of the ordinary three year limitation period does not infringe the basic principles underlying the statute of limitations.  The provisions of s 57(1) and (2) are no more than a recognition of the fact that a claimant has to comply with a complex set of pre-trial requirements and, for example, on occasions it may not be possible to comply with all of those requirements and still commence the proceedings within the ordinary limitation period, and provided there is no prejudice to the defendant, there is no reason why a court ought not grant an indulgence by extending the limitation period. The discretion would, of course, have to be exercised judicially and would have to recognise the usual considerations governing the exercise of such a discretion.  Amongst other considerations the court would have to have regard to the explanation for the delay, the length of the delay, possible prejudice to the defendant and the general interest of the court in having such proceedings prosecuted expeditiously.

It should be noted that s 59(4) of PIPA provides:

4. (4)
   If a period of limitation is extended under the Limitation of Actions Act 1974, part 3, this section applies to the period of limitation as extended under this part.

Limitation of Actions Act 1974 (the “Act”)

5. [5]
   Sections 30 and 31(2) of the Act provides as follows:

30 Interpretation

1. (1)
   For the purposes of this section and sections 31, 32, 33 and 34—

1. (a)
   the material facts relating to a right of action include the following—

1. (i)
   the fact of the occurrence of negligence, trespass, nuisance  or breach of duty on which the right of action is founded;

2. (ii)
   the identity of the person against whom the right of action  lies;

3. (iii)
   the fact that the negligence, trespass, nuisance or breach of  duty causes personal injury;

4. (iv)
   the nature and extent of the personal injury so caused;

5. (v)
   the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

2. (b)
   material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—

1. (i)
   that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

2. (ii)
   that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;

3. (c)
   a fact is not within the means of knowledge of a person at a  particular time if, but only if—

1. (i)
   the person does not know the fact at that time; and

2. (ii)
   as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.

2. (2)
   In this section—

appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.

31 Ordinary actions

1. (1)
   …

2. (2)
   Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—

1. (a)
   that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

2. (b)
   that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

3. (3)
   …

6. [6]
   The applicant did not know that she had some prospects until 13 February 2008 when she received the report. This is probably the relevant date for determining when she knew of a “material fact of a decisive nature”. It is common ground that learning of facts e.g. an expert’s report that one has a worthwhile cause of action is a material fact of a decisive nature.^[9]  The definition of “material facts” in s 30(a) of the Act would clearly encompass expert evidence to establish a cause of action

“Means of knowledge” – reasonable steps to ascertain facts

7. [7]
   The question arises in the present case as to whether the applicant took all reasonable steps to take appropriate advice and find out whether the respondent had been negligent. Her former solicitors, who could be considered experienced in the field, obtained only negative reports both verbally and in writing. They advised her that they would no longer act, but that the limitation problem had been attended to. It was not unreasonable for the applicant to rely on that advice. However, they did warn her of the need to adhere to time frames under PIPA and to seek advice. She then let the matter lie from January 2006 until October 2007. There was correspondence from the respondent’s solicitors on a monthly basis during that period asking what she intended to do. In oral evidence ^[10] the applicant gave three main reasons for not pursuing the claim from January 2006 when her former solicitors indicated that they would no longer act for her:

1. (a)
   Assisting her daughter with her ill son, and travelling overseas to do so;

2. (b)
   She believed her position to be protected, and so put her action on hold; and

3. (c)
   She did not wish to embarrass Dr Hack, the respondent, as Townsville was a “small town.” He had offered to pay her out of pocket expenses.

8. [8]
   Dilatory conduct or a conscious decision not to take a particular course of action on the part of a plaintiff can be a factor.^[11] There is also the delay of two years between consulting her solicitors and the service of the Part 1 Notice of Claim, that is, from April 2002 to May 2004. The applicant’s health deteriorated during that period.  This was confirmed by Dr Croese.^[12]  He stated that from the date of the operation until January 2005, the applicant’s health was seriously compromised.  In that respect, there has probably been a satisfactory explanation for the delay by the applicant.  However, on an application of this nature, the explanation for the whole period up to present is examined.  Her solicitors had given preliminary advice in relation to limitation periods. The delay since January 2005 has not been satisfactorily explained.  There was a conscious decision not to progress the matter.  It seems that the applicant was involved in family affairs and, given the previous negative advice, did not know how to advance the matter.  She subsequently contacted her former solicitor Ms Yellop.^[13]  She denies that she had abandoned her claim.  Whether she did or did not abandon the claim, from the respondent’s point of view it was not progressing.  It was only in April 2006 that she indicated to the respondent’s solicitors that she wished to continue the claim.  The explanation for the delay since January 2005 is also relevant to the s 59 of PIPA aspect.  It is not consistent with the philosophy of that legislation to sit by and let time elapse as it has here.

9. [9]
   The correct test to be applied in relation to reasonableness is both objective and subjective.^[14] The test of reasonableness of the steps taken by the applicant must have regard to the background and situation of the applicant.^[15]  She is married to a Deputy Vice-Chancellor of a University and since 2007 has resumed teaching.  After taking the original advice from Shine Lawyers in January 2006, the applicant concentrated on getting her health back.  She believed that her position in relation to time limitations was protected.  In fact, due to an administrative error by the solicitors, the claim was never filed after leave was given pursuant to s 43 of PIPA.  Administrative errors by solicitors are not looked upon favourably by the courts.^[16]  In Saltner v Watson and RACQ Insurance Limited ^[17] the period of time which elapsed once the administrative error by the solicitors was determined was just over a week.^[18] A more lenient view could be taken of such a short delay.

10. [10]
    It is submitted on behalf of the applicant that once she knew that her limitation period was not protected, she contacted new solicitors some two months later in January 2007. The conduct of the applicant in that respect seems to be reasonable, but one must look at the whole period once the limitation period has passed. It was not until 13 February 2008 that the applicant was aware of the material fact of a decisive nature viz. the positive report from Professor Ham. In that respect, the period of limitation could be extended until 13 February 2009.^[19] It is clear that in the present case the material fact was not known to the applicant until well after the limitation period expired on 4 March 2005, and not until February 2008.  A similar situation existed in the Castlemaine Perkins case where the plaintiff did not become aware of the expert’s opinion that the bottle exploded due to a defect in its manufacture until more than three years after he was injured by the explosion.  His solicitors had obtained an earlier report from an engineer which was negative.  The delay in the present case is more than two years longer.

11. [11]
    The following are relevant in considering whether the applicant took all reasonable steps: the applicant’s poor health, the negative reports from three doctors and her actions once advised of the limitation problem by the respondent’s solicitors. It was the diligence of her present solicitors which allowed her to obtain a positive report. Once aware of the limitation problem, the applicant acted punctually. However, there was still considerable delay in bringing the subject application. Reliance was placed by the applicant upon the decision of Royal North Shore Hospital v Henderson where it was held that reasonableness may mean that a plaintiff takes no steps at all, or any steps that could not reasonably be expected.^[20]  However, there are authorities relied upon by the respondent which makes the issue problematical.^[21] In Campbell’s case, Daubney J stated:

Ultimately, the question for determination is one as to the reasonableness of the steps taken by the plaintiffs, noting that they will not succeed if they have unreasonably delayed in obtaining the necessary advice or information.

12. [12]
    Campbell’s case involved putting the case into the solicitor’s hands and waiting for expert opinion, yet not obtaining all the medical records.  The plaintiff initially put the issue before the Health Rights Commission, and obtained a report from an investigating medical practitioner.  It pointed to negligence on the part of the defendant. The respondent ^[22] points to the following as relevant to unreasonableness on the applicant’s part:

1. (a)
   There is significant period of unexplained delay after the operation and the early consultation with Shine Lawyers until the giving of the Notice of Claim.  There is no explanation as to why no medical evidence was sought during this time;

2. (b)
   Thereafter, three medical opinions were sought (Doctors Banting, Fawcett and Spigelman) all of which were unfavourable to the Applicant;

3. (c)
   In January 2006 the view taken by Shine Lawyers was that the matter ought not proceed, as it was attended with insufficient prospects of success.  They terminated their retainer.  By inference, the Applicant can thereafter be taken to have accepted that view and, in any event, it is not a case like Campbell, Dick or Nielson ^[23] where the Plaintiff had the matter in the hands of solicitors looking for advice.  The claim was abandoned, at least for a period for time, or was not being pursued, in light of the advice received; and

4. (d)
   There is then significant periods of time thereafter, prior to Professor Ham being engaged, which are not able to be explained or is explained on the basis, at least in part, that other experts could not be engaged which would support the plaintiff.

The respondent submits that it was unreasonable for the applicant to reject three negative opinions, to allow the claim to lie in abeyance for long periods and to positively abandon same until receiving a letter from the respondent’s solicitors, and then to retain new solicitors who obtained a favourable report.  This approach, it is argued, is the antithesis of what is required according to Brisbane South Regional Health Authority v Taylor.^[24] It is not a case where the applicant was ignorant of what evidence was required.^[25] Also, it is not a case of progressive stages of awareness.^[26]. In Ervin’s case ^[27] there was a delay of some seven years between the original operation and when the plaintiff received a report which pointed to a finding of negligence in her favour.  The period in which to bring the action was extended. It was heldthe plaintiff had not received a report of a medical practitioner supporting her case until three years after her operation. She had to engage solicitors in Sydney, and had problems getting legal aid. In the present case, the matter was merely put on hold whilst the applicant dealt with other priorities.

13. [13]
    Having considered the applicant’s position in the present case, and the subjective factors relating to her, she has failed to discharge the onus of proof by satisfying me that she has acted reasonably for the purposes of s 31 of the Limitations of Actions Act.  The requirements of PIPA are separate from the limitation legislation.^[28] The right of action, or prospects of success and prejudice, have also to be considered under both legislative regimes.

Prospects of success

14. [14]
    If the evidence of Professor Ham ^[29] is accepted, then the applicant has established that she has a right of action for the purposes of the limitation legislation.  Professor Ham confirms that the respondent failed to exercise the standard of care expected of a surgeon.  The main allegations concern the failure of the respondent to carry out a dissection of Calot’s triangle i.e. the region behind the inflammatory membrane.  Also, the respondent should have converted the operation into an open procedure once there was damage to the common bile duct.

15. [15]
    On the adjourned hearing counsel for the applicant tendered a diary note of the respondent’s solicitor.^[30] For the respondent it was submitted that the note was not clear. No evidence was adduced to support that contention. Prima facie, it seems that Dr O'Rourke expressed the view that the respondent had performed “below (an) acceptable standard of care” and that it was a “big mistake.” It was submitted that the diary note not only supported the applicant’s case, but that it was relevant to the question of prejudice. The latter point will be discussed shortly.

16. [16]
    One cannot be too critical of the respondent’s solicitors who failed to disclose the diary note before 4 September 2008. The decision of Watkins v State of Queensland ^[31] was a surprise to many practitioners in this area of practice. It required discovery of certain communications obtained for use under s 20 of PIPA. The application to seek an extension of time was not filed until 20 June 2008.

Section 59 of PIPA aspect

17. [17]
    In relation to the requirements of relevantly PIPA or the UCPR, Keane JA in Page v The Central Queensland University ^[32] stated that:

…the court will be reluctant to deny a litigant with an arguable case the opportunity for a fair trial of his… claim.

18. [18]
    In applying this principle, Chesterman J in Quinlan v Rothwell ^[33] stated:

The reluctance is less where the claim is shown to be doubtful or proof of it beset with difficulties.  It is not possible, nor desirable, to reach any conclusion as to the probable outcome of the claim, should it proceed to trial.  Nevertheless, the apparent strength, or weakness of a claim is a factor in the balancing exercise called for in the determination of an application to strike out an action for want of prosecution.  In those cases where the claim is, as I think this one is, doubtful, the factor assumes significance.

Given that the defence will have the original negative reports to rely upon, the applicant’s case will be beset with difficulties. However, it finds some support in the solicitor’s notes of the conference with Dr O'Rourke.^[34] Whether Dr O'Rourke remembers his preliminary views is problematical.

Prejudice

19. [19]
    Apart from specific prejudice alleged, there is the general prejudice suffered in this type of case as discussed in Brisbane South Regional Health Authority v Taylor.^[35]  It is submitted by the respondent ^[36] that merely because the provisions of s 31(2) are met does not mean that the discretion will be exercised in favour of the applicant.  The onus is upon the applicant to establish that commencing the action at this point would not result in significant prejudice to the respondent.^[37] Of course, in Taylor’s case, actual prejudice was shown in relation to recall of the various witnesses given the lapse of time.  The real question is whether the respondent can obtain a fair trial if the limitation period is extended.^[38]  This aspect is similar to one of the factors to be considered in relation to s 59 of PIPA.^[39] The time for assessing any prejudice is at the time of the application.^[40]

20. [20]
    The interaction of the limitation period and a similar provision in the Motor Accident Insurance Act 1994 ^[41] was discussed by Fraser J in Ward v Wiltshire Australia Pty Ltd & Anor.^[42] Even if a fair trial were possible, there was still the requirement that professional people and insurers should be able to arrange their affairs without claims being outstanding against them for long periods.^[43] Ongoing professional indemnity requirements would require full disclosure which would touch upon the risk of the particular policy and the level of premiums.^[44] In Ward’s case, Fraser JA ^[45] stated:

The public interest requires that disputes be settled as quickly as possible and people (and insurance companies) should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. 

21. [21]
    The respondent refers to the following as evidence of prejudice:

1. (a)
   After all of this time, the Respondent still does not know very much at all about the claim for quantum.  Whilst there does not appear to be any claim for economic loss, the Respondent knows nothing of the claim for general damages and care as well as future expenses.  The Respondent knows virtually nothing of the progress of the Applicant’s condition and her current state.  There is nothing before the Court which indicates that even now.  Despite multiple endeavours by the Respondent to elicit it, the Applicant has not provided any statement of loss and damages.  Quantum and causation of the quantum claim, is therefore an unknown quantity.  In Ward v Wiltshire Australia Pty Ltd ^[46] Fraser JA noted that possible prejudice that the Applicant may now make a large claim increased beyond that reported in medical reports.  The Respondent might be held liable for such a claim because it could not disentangle.^[47] It might be difficult now to obtain such evidence.  In this case, there are not even any medical reports as to the Applicant’s condition, despite the Respondent urging the Applicant to supply them over the years.   The Applicant has not explained what damages she now wishes to claim and whether or not her claim would be premised upon the nature and extent of whatever incapacity is described in the notices of claim unsupported by medical reports.^[48]

 That prejudice is particularly telling if it arises, at least in part by a “conscious decision by a litigant to take a particular course after appreciating the relevant evidence and considerations,” in allowing the claim to lie fallow, or at least for some time, be abandoned.^[49]

Prejudice might be inferred in these circumstances:-

“The difficulty of a Defendant in preparing a case for trial must be substantially increased if the Claimant does not tell it what acts or omissions are to be investigated…The assertion that the Defendants cannot nominate precise particulars of prejudice in the preparation and presentation of their defence does not lie comfortably in the mouth of a Plaintiff who has not yet exposed the allegations that need to be defended.” ^[50]

2. (b)
   The problems with unfairness relating to fading memories and recollections identified in the judgment in Brisbane South Regional Health Authority v Taylor.^[51]  There is presumptive prejudice in this regard.  More than six years after the alleged negligent operation, the Respondent will no doubt be questioned about the procedure and why he did or did not take steps for example identified in Professor Ham’s report.  These allegations have only been raised for the first time in 2008.  To have to respond to these allegations now, and one can infer some time hereafter when the trial takes place, raises a presumption of gross unfairness.  It must be remembered that Brisbane South Regional Health Authority v Taylor was itself a medical negligence case and the High Court’s comments were made in that context.

22. [22]
    In order to meet these valid points in relation to prejudice, the applicant sought an adjournment to 4 September 2008. In the original written submissions ^[52] there was a bald statement that there was no prejudice shown. In subsequent written submissions ^[53] counsel for the applicant submits that adequate allegations of negligence were provided in the draft Statement of Claim, provided to the respondent’s solicitors in 2005.  The later claim is difficult to comprehend, as there were no reports supporting negligence at that point.  The allegations raised by Dr Ham seemed to be more specific.  They are referred to above.^[54] There was no suggestion in the Statement of Claim that the respondent ought to have resorted to open surgery once problems arose during the operation.

23. [23]
    It is further submitted by the applicant that the shape of the applicant’s case was known to the respondent given the material discovered or referred to in the Statement of Claim. For the purposes of this application, that submission is generally accepted, except that the detail required was not given.^[55] There was never any claim for economic loss.  In fact, the applicant was able to perform part time teaching duties from 2007.  She is actively assisting her family.^[56] It submitted for the respondent that there is no Statement of Loss and Damage, or an update on her present condition. Certainly, up until the first hearing date of this application, quantum was not clearly itemised.  A diary note was attached to the affidavit of Ms Yellop, concerning her conversation with a Dr Fawcett, and this touches upon the applicant’s recent condition.^[57] What is clear from the affidavit of Ms Yellop is that very little was done as far as the respondent was concerned from March 2005, when the s 43 application was made, to February 2008 when the report of Dr Ham was provided.^[58] For the purposes of s 59(2)(b) of PIPA, such a delay is unacceptable.

24. [24]
    Counsel for the applicant attempted to deal with the prejudice aspect by submitting that the solicitors for the respondent did not seek access to all of the material referred to in Part 1 of the Notice of Claim.^[59] This has to be considered in light of the advice received from Dr O'Rourke.^[60] Also, under the provisions of s 43 of PIPA, the respondent could have sought the court’s assistance to progress the matter. The respondent had not been served with a Statement of Claim. It was attached to the affidavit of Ms Alker in support of the s 43 application in 2005. The respondent and his advisors would not have known the case they were facing. In fact, in the affidavit of Ms Stubbings ^[61] the following points are made:

1. (a)
   The applicant in her Part 2 Notice did not provide any detail regarding the quantum of her claim, and no settlement offer was made;

2. (b)
   The affidavit of Ms Yellop ^[62] did not estimate the amount of refunds owed to public hospitals;

3. (c)
   No receipts have been provided to the respondent’s solicitors;

4. (d)
   Prior to Ms Yellop’s affidavit being served, no detail had been provided in relation to the Griffiths v Kerkmeyer claim. This has delayed any timely assessment by an expert; and

5. (e)
   There has been no Statement of Loss & Damage by way of statutory declaration.

25. [25]
    A copy of Professor Ham’s report in relation to negligence was exhibited to the affidavit of Ms Yellop.^[63] It was obtained in February 2008.^[64] It would only have been available to the respondent when the affidavit was served. Also, the reports of Dr Fawcett and Professor Spigelman were only provided when the application was filed. As was submitted by the respondent, prejudice can be inferred from these events.^[65]

26. [26]
    The applicant submits that the respondent has not sworn an affidavit touching upon the prejudice issue. In response, counsel for the respondent submits that the detail of the case against his client has not been given on either quantum or liability. There were multiple operations post the operation by the respondent. The onus rests with the respondent to attempt to disentangle causation with most of the operations prior to 2005.^[66] The pleadings are not yet finalised.^[67] It was submitted that there is more than presumptive or speculative prejudice.^[68] The failure by the applicant to detail the claim to date, and the extent of her incapacity related to the original alleged negligence, are difficult issues to deal with given the delay. As no claim was filed after the s 43 application, it is difficult for the applicant to be too critical of any failure by the respondent to prepare its case.^[69]

27. [27]
    When one considers that statement by Thomas J as applied to the facts of this case, and the general principles referred to in Taylor’s case,^[70] it would be unjust to allow the applicant to proceed to have the limitation period extended in the present case and so deprive that respondent of that defence.  Further, in the context of s 59(2)(b) of PIPA, the applicant has failed to discharge the onus of proof required to negate the prejudice aspect arising from the delay.

Application pursuant to s 59(2)(b) of PIPA

28. [28]
    Section 59 provides:

59 Alteration of period of limitation

1. 1.
   If a complying part 1 notice of claim is given before the end of the period of limitation applying to the claim, the claimant may start a proceeding in a court based on the claim even though the period of limitation has ended.

2. 2.
   However, the proceeding may be started after the end of the period of limitation only if it is started within—

1. (a)
   6 months after the complying part 1 notice is given or leave to start the proceeding is granted; or

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

3. 3.
   Also, if a proceeding is started under subsection (2) without the claimant having complied with part 1, the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends.

4. 4.
   If a period of limitation is extended under the Limitation of Actions Act 1974, part 3, this section applies to the period of limitation as extended under that part.

29. [29]
    In effect, the provisions of s 59(2) have to be considered apart from the limitation period.^[71]  It is an alternative application in any event. As mentioned, s 59(2)(b) is relevant to any extended limitation period.^[72]  A court has a general discretion to extend the time under the provisions of s 59(2)(b) of PIPA.^[73] Some of the factors to be taken into account were identified in Spencer v Nominal Defendant:^[74]

As the decisions of this Court confirm, the reason for delay is one, albeit an important one, of the considerations bearing upon the determination of whether good reason has been shown to exercise the discretion conferred by s 57(2)(b) in favour of the grant of an extension of time.  That discretion is conferred to ensure that the need to comply with the Act does not prevent a claimant with a good case from having that case fairly tried.  In the light of this appreciation of the purposes of 57(2)(b), the considerations which bear upon the proper exercise of the discretion can be fairly readily discerned.  Considerations other than the need to comply with the Act which will usually be relevant in this regard are the length of delay, whether there has been a general lack of diligence in the prosecution of the claim, whether the prospects of a fair trial of the claim have been diminished, and the circumstance that the exercise of the discretion is apt to deny the respondent a complete defence to the claim.  The weight to be accorded to these considerations in any particular case is a matter for discretionary assessment.

That is a useful summary for present purposes.

30. [30]
    It is an important factor for the applicant to explain the extent to which compliance with the requirements of PIPA prevented her from commencing proceedings within the limitation period.^[75] That of course, is but one material factor, but not essential.^[76] In the present case, the applicant’s original solicitors obtained leave to proceed under s 43 on 2 March 2005, but then failed to file the Claim and Statement of Claim.^[77] The failure to file was due to an administrative oversight.  The applicant had been told that her position in relation to the limitation period had been protected but that she should seek advice relative to the time frames set by PIPA.

Non-compliant notice

31. [31]
    In the written submissions,^[78] counsel for the respondent submits that the notice of claim remains non-compliant as it was not given as required as it was given out of time.  The Part 1 notice was served on the respondent on 31 May 2004, within the limitation period. Under the transitional provisions of PIPA, it should have been served by 1 May 2003.^[79] In reply pursuant to s 12, the respondent’s solicitors referred to four grounds of non-compliance.^[80] The failure to provide a reasonable excuse was not one of them.  It was submitted by the respondent that s 20(2)(b) of PIPA should have been invoked by an application under s 18(1)(c).  That submission relies on the decision of Thomas v Transpacific Industries P/L & Anor.^[81] That case can be distinguished, as there was no explanation for the delay accompanying the notice of claim in that case.^[82] His Honour said that it was not compliant due to the fact that there was no explanation for the delay. In the present case, the respondent did not raise the issue of reasonable excuse for delay as a basis for non-compliance.^[83] Section 12(1) requires a respondent to identify the non-compliance. For example, in some cases a respondent may not be satisfied with the reasons for the delay.  As part of Part 1 of the notice of claim dated 20 May 2004, an explanation was offered by the applicant.^[84]  By letter dated 15 July 2004, the solicitors for the respondent stated that they were “satisfied with the steps taken by you to remedy the non-compliance identified in our letter of 16 June 2004.  Accordingly, we certify your notice of claim as a complying notice of claim pursuant to section 12(3)(b) of the Personal Injuries Proceedings Act 2002”.^[85] The respondent’s solicitors could have stated that they were not satisfied that the applicant has taken all steps to remedy non-compliance.^[86]  They did not do so.

32. [32]
    A notice may have to be given “as required” by the definition of “complying part 1 notice of claim” and not merely “given”. However, s 12 specifically provides for waiver of non-compliance by the respondent. In the present case, by stipulating some aspects of non-compliance and then providing a certification of compliance, the conduct of the respondent is tantamount to waiver. It would be inappropriate for the respondent to now seek to rely on a procedural provision to prevent the claim.^[87] In any event, it is open for a court to authorise the applicant to proceed further with the claim despite the non-compliance.^[88] On the facts of this case, it would be appropriate for the applicant to be so authorised, if the limitation period had not expired. The respondent’s counsel submits that as it has expired, no such order can be made under s 20(2)(b). In view of the findings on other issues it has not been necessary to finally determine whether the Part 1 Notice of Claim in the present case was a complying notice for the purposes of s 59.^[89]

Exercise of the discretion

33. [33]
    The applicant is in a position to show good reason for the favourable exercise of the discretion if she has shown that any delay was occasioned by a conscientious effort to comply with PIPA.^[90] The applicant believed that her position was preserved after receiving the letter from Shine Lawyers on 18 January 2006.  The failure of the solicitors to file the claim allowed the limitation period to expire.  It would seem that it was not the problems of PIPA which was a cause of the oversight, but an administrative bungle.   The issues of delay have been discussed as has the question of prejudice. It is not essential to show attempts to comply with PIPA as an explanation for delay.^[91]

34. [34]
    It is submitted for the applicant that the circumstances of an administrative oversight are similar to the circumstances in Morrison–Gardiner.^[92] Issuing proceedings without leave demonstrates a lack of understanding of the requirements of PIPA.  To seek leave under s 43, and then to fail to file the claim due to an administrative error, is not a lack of understanding of the requirements of PIPA.   Morrison–Gardiner can be distinguished. The delay from April 2002, when she first saw her solicitors, to May 2004 is not explained, except for her health problems.  She then gave them instructions to act. The delay from January 2006 to January 2008 was related to a belief by the applicant that she had no medical evidence to support her case.  It cannot be said that those delays were occasioned by a “conscientious effort” to comply with PIPA.  This seems to be the situation both before the expiration of the limitation period in March 2005 and after that date until the report of Professor Ham was received in January 2008. The applicant decided to leave her claim in abeyance for different reasons including family problems and a desire to protect the respondent’s reputation.

35. [35]
    In discussing the factors to be taken into account, counsel for the applicant originally submitted ^[93] that there was no prejudice to the respondent.  It was obvious from the respondent’s written submissions that there was some prejudice to the respondent as to the lack of detail on quantum and the general prejudice referred to in Taylor’s case.^[94] The issue of prejudice is similar whether it be considered under the limitation provisions or s 59.^[95] Put another way, can justice be done if leave is granted to the applicant to pursue the action?

36. [36]
    The question of prejudice has been discussed above. Apart from that question, there has been a failure by the applicant’s former solicitors to attempt to comply with PIPA. Section 4 of PIPA provides as follows:

4 Main purpose

1. (1)
   The main purpose of this Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury.

2. (2)
   The main purpose is to be achieved generally by—

1. (a)
   providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; …

It would seem that the applicant has failed to give effect to what PIPA intended.  It is over six and a half years since the respondent operated upon the applicant.  It was a similar period before the respondent was aware of the actual allegations to be made against him, as detailed in Professor Ham’s report.  If a claim had been filed more expeditiously, the respondent would have been forewarned about the nature of the allegations and the specific details of the quantum claim. 

Relevance of solicitor’s failure

37. [37]
    The applicant may have her rights against her former solicitors. A refusal to extend the time in the present case does not mean that those rights are extinguished. It was conceded in argument that it was a relevant factor. Counsel for the applicant added that it is difficult to know to what extent, if any, that the action would succeed. In the present case, the applicant’s contribution to any delay has been discussed above. Had her solicitors filed the claim when it ought to have been filed, there would still have been the problem of not being able to obtain a favourable report. Thereafter, some delay was due to the applicant’s reluctance to advance her position, yet believing that her position was protected. In Allen v Sir Alfred McAlphine & Sons Limited ^[96] Diplock LJ stated:^[97]

As regards the position of the plaintiff it is of course unfortunate that he, though personally blameless should suffer for the default of his agent.  But if he does, he is not without remedy, for unless he himself has caused or consented to the delay which has resulted in his action being dismissed for want of prosecution, he will have a right of action against his solicitor for negligence.  Liability for professional negligence is a risk against which most solicitors insure.  Delay which justifies dismissal of an action for want of prosecution, as distinct from dismissal for disobedience to a peremptory order of the court is ex-hypothesi so prolonged that it involves a serious risk that there will not be a fair trial of the issues.  If the action nevertheless proceeds to trial, injustice may be done to the plaintiff as a result of the solicitor’s default but here will be no practicable remedy available to him.  On the other hand if the action is dismissed, the plaintiff in a subsequent action for negligence against his solicitor can recover in addition to the costs of the action which has been dismissed, compensation for the loss of his changes of recovering damages against the defendant in the dismissed action had it been properly conducted on his behalf by the solicitor (emphasis added).  It is true that if the action for professional negligence were fought, the court which tried it would have to assess what those changes were.  But on this issue the plaintiff would be in a much more advantageous position than if he had sought, despite the inordinate delay, to establish liability against the defendant in the action which had been dismissed.

38. [38]
    In the present case, the former solicitors, having failed to commence the action, did set out in detail the applicant’s rights and the problem with the limitation period. It was not until her health settled down and she once again approached a solicitor whom she knew, that a further report of a positive nature was obtained. The significant delay since the solicitor’s failure to commence the action could not be said to be due to attempts to comply with the legislation. An extension of time in the present case is made more difficult by that administrative error by the solicitors and the subsequent inaction by the applicant.^[98] The applicant made a conscious decision to let the action lie for some time.  It was not a case of “making conscientious efforts” ^[99] to comply with the PIPA legislation.^[100] Chesterman J felt it would be unjust for the plaintiff to resile from her decision not to sue when a conscious and informed decision was made not to apply for an extension of time.  The applicant was warned by her former solicitors ^[101] that there were other time frames to be adhered to under PIPA.  She was advised to seek other legal advice “as soon as possible” if she wished to continue the action.  That letter was dated 18 January 2006.  Even if an applicant is not found to be unconscientious in pursuing her claim, a court may still refuse relief based upon other discretionary factors.^[102]

39. [39]
    Therefore, if effect is to be given to the philosophy of PIPA and also the onus being upon the applicant to show efforts to comply with the legislation and explain the delay, the applicant is not in a strong position when an extension of time is considered under s 59. These matters have to be considered when exercising a discretion, including any prejudice flowing to the respondent as a result of the delay.^[103] It could be said that the applicant has materially contributed to this action being “dragged out.” ^[104]

Conclusions

40. [40]
    The original failure of the solicitors to file the claim was the beginning of a problematical set of circumstances. The subsequent inaction by the applicant not to proceed in a timely manner after she had substantially recovered her health by January 2005 has added to the dilemma. Her belief that her position had been protected does not sit comfortably with the advice from her former solicitors that there were time limitations under the PIPA legislation. She did not act reasonably by failing to progress the action. The positive report of Dr Ham may have established a right of action, but even in the event that the applicant proceeded to trial, there would be difficulties of proof given the early negative reports obtained by her former solicitors. In any action against her former solicitors, the loss of chance would have to be assessed. It is not in the public interest that this type of action be allowed to proceed at such a leisurely pace. The requirements of PIPA run parallel to the Limitation of Actions Act.  The former legislation requires that a claimant proceed in a timely manner to avoid the consequences of what is inevitable in this case.  The latter legislation requires her to take reasonable steps to obtain appropriate advice.  The applicant fails on both tests.

Orders

1. The application to extend the time under the Limitation of Actions Act 1974 is refused.

2. The application for leave to proceed under s 59(2)(b) of the Personal Injuries Proceedings Act 2002 is refused.

3. The applicant is ordered to pay the costs of the respondent of these applications to be assessed on the standard scale.

4. Liberty to apply in relation to costs within 28 days

CHRONOLOGY OF EVENTS