DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant sought leave to commence proceedings pursuant to section 43 of the Personal Injuries Proceedings Act 2002 (“PIPA”) and directions as to the conduct of the proceedings. 

The event

2. [2]
   The applicant suffered personal injury allegedly caused by medical procedures performed by the respondent on 10 December 2012. He is aged almost 80 years. Since the surgery he has suffered from other illnesses and requires significant care. He has suffered four episodes of aspiration pneumonia that have been successfully resolved by treatment but is said to be at risk of further episodes.

The background

3. [3]
   Hence the applicant has brought the application to in effect facilitate or substitute court supervision of the proceeding over and above the pre-trial procedures provided in PIPA. This is despite the fact that section 43 PIPA mandates the pre-court procedures and where leave is given to commence a proceeding the proceeding is stayed until the statutory pre-court procedures are completed.

4. [4]
   The pre-court procedures mandated by PIPA have not yet been completed. The liability statement of the insurer is due in mid-January 2015. Thereafter the compulsory conference and perhaps the mediation processes, would customarily take place.

5. [5]
   Section 43 of PIPA relevantly provides as follows:

“43Starting urgent proceedings with the court’s leave

(1)The court, on application by a claimant, may give leave to the claimant to start a proceeding in the court for damages based on a liability for personal injury despite non-compliance with this part if the court is satisfied there is an urgent need to start the proceeding.

…….

(3)However, if leave is given, the proceedings started by leave is stayed until the claimant complies with this part or the proceeding is discontinued or otherwise ends.”

6. [6]
   The gravamen of section 43 is that the court should be “satisfied there is an urgent need to start the proceeding”.

7. [7]
   The section customarily is invoked where a limitation period is imminent. If leave is given, “… the proceeding started by leave is stayed until the claimant complies with this part or the proceeding is discontinued or otherwise ends.”

Submissions

8. [8]
   Mr Pack submitted that the urgency, whilst not being a limitation period (which does not occur until late 2015), is that further episodes of the illness to which I have referred would pose a serious risk to the applicant’s life.

9. [9]
   Mr Elliott submitted that the section does not apply in the circumstances of this case, there being no urgency of the type covered by the section. He submitted that in about January 2015 the applicant had received a report from the doctor that said there had been no negligence on the part of the respondent. However, the applicant subsequently received a favourable report from a Dr Morris. The defendant has sought and is waiting for a medical report and counsel’s advice, which it is said will be available soon to enable the respondent to comply with the due date for the liability statement. Further, the applicant had initially also made a claim against two other doctors who had been responsible for his post-operative care. He recently discontinued those claims.

10. [10]
    Mr Elliott submitted that court supervision at this stage of the proceeding was inconsistent with the provisions of PIPA, which specifically provided for pre-court steps to be taken.

Discussion

11. [11]
    There has been no delay on the part of the respondent. The question really is whether the interests of justice are to be served and whether there has been good reason shown by the applicant why the discretion ought to be exercised in his favour.

12. [12]
    Williams JA in Gu v To [2005] QCA 480, at [16] wrote with respect to section 43 and the concept of “urgent need” to commence proceedings notwithstanding that the pre-action procedures in PIPA have not been complied with, being in most cases established by the imminence of the expiry of a limitation period “… or where, because of some consideration personal to the claimant or a witness (for example, imminent death), it is necessary in the interests of justice that the proceeding be commenced notwithstanding that the pre-action procedures have not been complied with.”

13. [13]
    However, in that case the limitation period had expired and the considerations were arguably somewhat different.

14. [14]
    Dr Morris, in his recent supplementary report dated 21 November 2014, opines that:

“I have been made aware that this gentleman has had four recent episodes of aspiration pneumonia and together with his many other problems, this is undoubtedly a life threatening situation that could result in his death at any time from a further episode of aspiration.  The cause of his aspiration is the pontine stroke which I agree was a consequence of his previous surgery and his complications.”

15. [15]
    The applicant also has financial problems and significant care requirements and his wife, who primarily cares for him, has medical and health issues of her own to deal with. However, those matters do not amount to “urgency” in terms of section 43 PIPA.

16. [16]
    Is the applicant’s history of four recent episodes of aspiration pneumonia “together with his many other problems” a “life threatening situation that could result in his death at any time from a further episode of aspiration?”

17. [17]
    Dr Morris says that is so. He says that the applicant has a “pontine infarction” or stroke which is attributable to “his previous surgery and his complications” and that the applicant “can’t swallow without aspirating into his lungs and that is why he has tube feeds into his stomach and has repeated aspirations into his lungs”.  However, each of the four episodes referred to were amenable to treatment.

18. [18]
    I do not think that the applicant’s condition is one where death is “imminent” in the legal sense. If Williams JA was correct in his obiter observation in Gu v To (there was no such similar issue in that case), the urgency has not been established.

On the other hand, section 43 is invoked where the limitation period is imminent.  There is a paucity of authority that cites other potential reasons to invoke the section. Certainly, I have not been apprised of any that deal specifically with section 43 PIPA. Mr Pack referred to Paterson v Leigh & Anor [2000] QSC 277. It concerned a limitation period which was to expire, the application of section 57(2) (b) of the Motor Accident Insurance Act 1994 and issues of delay in compliance.  I do not consider that case as analogist to the reasons for urgency here. 

19. [19]
    It is arguable that the “urgency” referred to in section 43 does not extend to the circumstances of this case. If so, then section 43 is not the correct vehicle upon which this application is made. However, I do not need to determine that matter because of my view that urgency has not been established on the facts.

Conclusion

20. [20]
    The application is dismissed.

Costs

21. [21]
    I will hear the parties as to costs.

Orders

22. [22]
    1.Application dismissed.