Jenkins v Spaceframe Buildings Pty Ltd
[2010] QDC 316
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- Unreported Judgment
- Jenkins v Spaceframe Buildings Pty Ltd[2010] QDC 316
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Jenkins v Spaceframe Buildings Pty Ltd[2010] QDC 316
Jenkins v Spaceframe Buildings Pty Ltd[2010] QDC 316
[2010] QDC 316
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 2116 of 2010
ROBERT DAVID JENKINS | Applicant |
and |
|
SPACEFRAME BUILDINGS PTY LTD | Respondent |
BRISBANE |
|
DATE 12/08/2010 |
|
ORDER |
|
CATCHWORDS | Personal Injuries Proceedings Act 2002, s 9(5), s 10, s 18 Validity of part 1 notice of claim disputed – whether "reasonable excuse" given for lengthy delay stated – applicant injured when debris on a city street presumed to have fallen from vehicle(s) caused him to lose control of his motorcycle – difficulty identifying appropriate defendant(s) after Nominal Defendant denied liability – respondent identified in a report prepared for the last in a series of part 1 notice of claim recipients associated with adjacent building site – whether affidavit of applicant necessary – whether each period of delay required separate explanation |
HIS HONOUR: The applicant, Robert David Jenkins, was riding his motorcycle at the corner of Commercial Road and Doggett Street in The Valley, Brisbane on Saturday, 8 December 2007. On taking the corner at what he says was a very moderate speed, he lost control when he rode across debris of the nature of sand and gravel and perhaps other material like small pieces of wood. A police officer investigated the ensuing accident in which Mr Jenkins was injured. There was also some property damage. When Mr Jenkins lost control of his bike, it careered into a stationary vehicle which was in a line of traffic awaiting an opportunity to move forward. The records generated by the police officer corroborate what is said about debris on the road.
Mr Jenkins is now trying to ascribe responsibility for that to the respondent, Spaceframe Buildings Pty Ltd. The case he presents to the Court is that not until 30 October 2009 did he appreciate that the respondent might have been involved in a way potentially productive of liability.
The point of today's application is to obtain a declaration that reasonable excuse has been provided for the delay in giving the respondent a Part 1 notice of claim pursuant to section 9 of the Personal Injuries Proceedings Act 2002, the PIPA as it's called. Subsection (5) provides that a reasonable excuse must be given in part 1 where the notice is not given within the period prescribed under section 9A, which relevantly has been taken to be the day one month after the claimant first instructed a law practice to act on his behalf seeking damages for personal injury. The notice sent to the respondent was dated 14 December 2009 and came well after the first involvement of the solicitors still acting. They sent out a part 1 notice of claim pursuant to section 9 on or about 19 February 2009 to the Public Trustee care of the Crown Solicitor. They had been previously involved, sending an accident claim form pursuant to section 37 of the Motor Accident Insurance Act 1994 on or about 22 May 2008. The view was taken at that stage that the incident should be regarded as flowing from culpable management of a motor vehicle on the road, presumably a vehicle from which debris was allowed to spill. The Nominal Defendant denied liability.
The Public Trustee became involved as the nominal owner of a construction site at the intersection where a commercial building was under construction. The Crown Solicitor provided advice that the Public Trustee had no commercial involvement - whereupon Opus Capital Pty Ltd was then turned to as the entity that might have been responsible on the approach that the debris on the road was the responsibility of those undertaking the construction.
Opus or its insurer went to the trouble of producing an investigation report of G Hughes and Associates, Legal Liability Consultants, which was forwarded "as required by section 27 of the PIPA" to Mr Jenkins' solicitors under cover of a letter dated 29 October 2009. It bears in Mr Le Guinio's exhibit a date received stamp of 30 October 2009. That report identified the owner or developer of the site as PJP Properties Pty Ltd and advised that it engaged the respondent as the principal building contractor for the site. Construction occurred throughout 2007 and until about March 2008.
Mr Le Guinio got Mr Jenkins to sign two new Part 1 notices of claim, one sent to each of the companies that had been identified, by registered letter dated 14 December 2009. The date of signature by Mr Jenkins appears to be 27 November 2009
There is attached to each of those documents an annexure in the following terms under the heading “Reasonable excuse for delay” as set out by section 9(5) of the Personal Injuries Proceedings Act 2002:
"After I sustained my injury I was hopeful that my injuries would resolve to my pre-accident state. However, I have experienced ongoing symptoms and I may be left with permanent impairment. I have therefore instructed my solicitors to proceed with a claim to obtain compensation for the effects of my injury. My solicitors preciously (sic) lodged a notice of claim on the Public Trustee of Queensland and Opus Capital Pty Ltd. Correspondence was received by my solicitors on 30 October 2009 providing an investigation report identifying Spaceframe Buildings Pty Ltd as a potential respondent to this claim. I therefore instructed my solicitors to serve a notice of claim to Spaceframe Buildings Pty Ltd".
A corresponding annexure was attached to the PJP Properties notice. The Court hears that that company has responded as required by section 10(1) of the PIPA, accepting that it is a proper respondent. There has been no response by the respondent in this originating application. Mr Le Guinio says that was the reason for the application being made so that the preliminary steps required by the PIPA occur, and proceeding seeking damages can be got underway. The limitation period will expire early in December this year.
The respondent in correspondence has on more than one occasion indicated that it's taking time to investigate whether the "reasonable excuse for the delay" referred to in section 9(5) has been given and further whether it suffers prejudice if Mr Jenkins' claim is allowed to proceed.
Today Mr de Jersey representing it is submitting that what his client is faced with is not a "Part 1 of a notice of claim" complying with the PIPA: although there is purported to be offered a "reasonable excuse", his client contends that there is in truth no reasonable excuse offered and that the Court should so determine. On this basis, it is said that section 10 need not be complied with.
It's submitted on the basis of what Judge Alan Wilson (as he then was) said in he Ellery v Australian Liquor Marketers Pty Ltd [2005] QDC 068 at paragraph [11] that each period of delay ought to be the subject of a reasonable explanation or excuse if the Court is to provide an indulgence to a claimant. Another factor which courts are considering in contexts such as the present (which his Honour adverted to) is that of prejudice which may be occasioned to a respondent/putative defendant if delay is excused. Prejudice is referred to in section 18(2) of PIPA. Here, as in Ellery, authorisastion to proceed despite non-compliance with section 9 is sought under section 18(1)(c)(ii), but the principal relief sought is a general law declaration of compliance rather than a declaration under section 18(1)(c)(i) of non-compliance having been remedied. The last period of delay which his Honour considered related to the time from 6 May until 21 June 2004, which is comparable in days with the so-called “delay” from 30 October 2009 until 14 December 2009. His Honour noted the excuse for the six week period was "work commitments" which, as I read the reasons, was seen as “not reasonable”: the solicitor could have been seen out of hours. There had been no explanation given for earlier periods of delay of much longer duration. The six weeks of inaction was seen as on “a lower plane” than the unexplained earlier delays which ran from November 2001. It is not clear at all that, had the earlier delay been explained, the short delay at the end would have embarrassed Ellery.
I am not persuaded for purposes of the decision the Court is asked to make today that a separate "reasonable explanation" or “reasonable excuse” for Mr Jenkins' inaction in the last six weeks is required.
Mr Le Guinio said he surmised that he had some difficulty in getting Mr Jenkins to attend at the office to sign the documents, which would, assuming it to be correct, not explain the delay after 27 November 2009. In my opinion, a broader approach should be taken here. Mr Jenkins is saying that, despite considerable efforts to identify the appropriate defendant(s), not until 30 October 2009 was the respondent identified. In my opinion, reasonable excuse has been given. The circumstances are different from Ellery, where the absence of an affidavit of the applicant personally was seen as “troubling” (para [12]). Here, it is unlikely that Mr Jenkins could have added to what Mr Le Guinio says in relation to identifying the appropriate defendant.
I do not think that in the circumstances such as the present where the claim is not yet statute-barred it is appropriate to penalise someone in Mr Jenkins' position by way of excluding him from pursuing mandatory pre-litigation procedures because things have not been done with alacrity. It seems highly unlikely that last the six weeks of delay would have had any effect on the prejudice which the respondent now asserts in affidavits the subject of leave to read and file given by the Court today.
I note Mr de Jersey's undertaking that a more perfect version of the affidavit of Ms Raspotnik will be provided.
Inadvertently those concerned with the taking of that affidavit omitted to have it signed by the deponent and witnessed at the end, although the relevant signatures appear on the first page. Ms Raspotnik is a director of administration of the respondent who confirms that its workplace health and safety officer on the site, Mr Filmer, no longer works for the respondent, no more does the site manager, Mr Iles who worked under a subcontractor arrangement. Affidavits from both gentlemen have been obtained, so that nothing would seem to turn on their not having any present employment contract or other contractual relationships. Both gentlemen have provided affidavits that indicate they have no knowledge of Mr Jenkins' accident.
It seems clear that the accident wasn't made known to the respondent at the time or indeed at any time prior to the Part 1 notice of claim going to it. There are general assertions in the affidavits that care was taken to keep the road outside the construction site clear of debris.
It is asserted that at the accident day the work was 90 percent complete with no major building works other than internal fitout being carried out on the site, which arguably makes it unlikely that gravel and sand on the road would have come from or been connected with the site. It is contended that the site was closed on the day of the accident, which was a Saturday. The Court is also told that there was a rubbish collection on 7 December 2007 from the site. As a matter of commonsense and logic, it's obviously one explanation for the presence of debris on the road that the respondent's activities played no part whatever in its being there. It's not for the Court to speculate today along those lines.
The claim the applicant wants to pursue makes sufficient sense. It's corroborated by the police officer’s contributions and also by photographs which appear to depict debris that the applicant's girlfriend supposedly took at the scene the day following.
It is inescapable that there is prejudice to the respondent from its not having heard of the accident until more than two years afterwards. As I said, I don't think that prejudice increased over the last six weeks.
Mr de Jersey has made it clear that his client doesn't rely only on the absence of any "reasonable excuse" for the period following 30 October 2009. He points out that the first paragraph of the "reasonable excuse" proffered is identical with what was told to the Public Trustee nearly 10 months before, so that nothing pertinent to injury having resolved or otherwise is relevant.
It is contended against Mr Jenkins that if Opus was capable of identifying Spaceframe Buildings Pty Ltd's involvement, so should Mr Jenkins have been.
In my opinion, it's appropriate for the Court to be understanding of Mr Jenkins' situation and indulgent towards him. The circumstances are relatively complex involving a good number of participants. I think that considerable expenditure of resources would have been required for Mr Jenkins to elicit the information which the loss investigator provided in the report dated 14 October 2009. Interestingly, that followed the Part 1 notice of claim of 30 March 2009 so that action was hardly quick in eventuating in that regard. In Ellery, the Court was apparently satisfied that the applicant failed to give sufficient instructions to the solicitor. Mr Jenkins cannot fairly be criticised on that score.
In my opinion, although criticisms might be made, "reasonable excuse" has been provided here. It's the responsibility of the applicant to show that. It's accepted by the respondent that it has the responsibility of establishing prejudice which might induce the Court not to indulge the applicant. Prejudice to the respondent does not determine whether a reasonable excuse has been given. While sympathetic to the difficulties it will confront, I am not persuaded that it points to prejudice to an extent which would dissuade the Court from keeping open to Mr Jenkins the way to prosecuting a claim in the Court. Mr Le Guinio has asserted that the respondent is likely to be brought in in third party proceedings by PJP Properties in any event. I accept from Mr de Jersey that is not a relevant consideration for the Court today.
The consequence is that the applicant ought to have the relief it seeks, namely a declaration that it has provided a reasonable excuse for delay pursuant to section 9(5) and a declaration that it has given a complying Part 1 notice of claim pursuant to section 9 of the PIPA. I will hear the parties as to other relief that might be granted but there seems no reason not to order the respondent to provide its response pursuant to section 10(1) of the Act within 14 days, that each party have liberty to apply on five business days' written notice to the other. There is also an issue of costs.
...
HIS HONOUR: Costs are reserved and I make it clear that the liberty to apply covers any application for costs.