Graco v United Services Club[2003] QSC 319

1. HIS HONOUR: This is an application for orders pursuant to ss. 18 and 43 of the Personal Injuries Proceedings Act 2002.
2. The applicant seeks orders pursuant to s. 18(1)(c)(i), or alternatively s. 18(1)(c)(ii), of the Act in respect of a claim against the respondent for damages for personal injury suffered by him on 25 September 2000. He also seeks an order for leave under s.43 of the Act.
3. The applicant was injured on 25 September 2000 when he slipped on some stairs at the respondent's premises as he was carrying a bag of dirty laundry. He was employed by a commercial laundry company called Woolloongabba Laundry Pty Ltd as a driver. The respondent was a customer of the laundry. The slip caused the applicant to fall onto his tail bone. He claims that as a result he has suffered a serious injury to his lumbar spine.
4. He was examined on 14 September 2002 by Dr Scott Campbell, neurosurgeon, who concluded that the applicant had suffered damage to the L5-Sl disc the incident, and that the structures that were likely to have been traumatized included muscles, ligaments, discs, and apophyseal joints. Dr Campbell said, in a report dated 20 September 2002, that in the majority of cases symptoms of the kind complained of by the applicant resolve within a few weeks to a few months, but in one third of cases the injury has a longer-term effect. The applicant had been symptomatic for two years, Dr Campbell said, and his condition was stable and stationary and his impairment likely to be permanent.
5. On 9 October 2000 the applicant lodged a claim for workers' compensation with WorkCover Queensland. On 18 February 2002 a notice of assessment was issued by WorkCover. On 20 March 2002 the applicant elected to pursue a common law claim against his employer. On 25 February 2003 a complying notice of claim was delivered to WorkCover Queensland. On 16 April this year the applicant's solicitors received a report prepared for WorkCover Queensland and dated 11 April 2003 in which there appeared a statement by Mr Malcolm Ellis, a director of the applicant's employer. In the statement, Mr Ellis said that the company had no control over how many soiled sheets or towels a customer put into the bags of the type the applicant was collecting on the day in question. He continued saying:

"We have asked our customers on occasions to ensure they don't overload the bags. This has been done verbally. We have no documents relating to these requests... We don't have a formal contract with the United Services Club. We have been dealing with them for about 15 years and have never had a written contract."

6. The applicant's claim against his employer was that the bag he was carrying at the time he slipped was too heavy, and the weight of the bag was the cause of his slipping and, consequently, of the injuries he suffered.
7. On 24 April 2003 the applicant's solicitor advised him that it would be prudent to serve a notice of claim on the respondent under the Personal Injuries Proceedings Act. That advice was given because of the contents of Mr Ellis's statement to which I have referred. On 12 May 2003 the applicant's solicitor received his instructions to proceed with the service of a notice on the respondent, and on 14 May a notice of claim was delivered to the respondent. On 30 May 2003 the respondent's solicitors said that they were not satisfied that the applicant's notice of claim was compliant because, inter alia, the notice of claim had not been delivered within the time stipulated in the Act. (By operation of s. 77A (3) of the Act, the notice should have been delivered on 29 December 2002.) On 20 June 2003 the applicant's solicitor wrote to the respondent's solicitors enclosing a statutory declaration sworn by the applicant providing - as the applicant asserted - an excuse for the delay in delivery of the notice claim. On 18 August 2003 the respondent's solicitors wrote to the applicant's solicitors saying that the respondent did not accept that the applicant had provided a reasonable excuse for the failure to deliver the notice of claim within the time provided for in the Act.
8. The issues that arise on this application are these: whether or not the applicant appears to have a reasonably sustainable cause of action, the length of the delay and the reasons for it, and whether any prejudice will be suffered by respondent if the application succeeds.
9. The applicant's case against the respondent comes down to one breach of duty in overloading the bag the applicant was required to carry. It is on behalf of the respondent the pursuit of the applicant's claim against respondent would be futile because it is not clear that the applicant can attribute his fall to the weight of bag and because it is not clear that any request to the respondent from the applicant's employer preceded his mishap. While is some merit in each those submissions, I am not persuaded by them that those considerations are sufficient to enable me to conclude that the applicant's case is futile. The applicant is not required to show a prima face case on this application but, consistently with principles that have been applied in relation to similar legislation - e.g., the Motor Accident Insurance Act 1994, the absence of anything to indicate liability in a proposed defendant is a relevant factor in the exercise of the Court's discretion, as is some indication that the applicant has a strong case: see Thomas v. Transpacific Industries Pty Ltd [2003] 1 Qd.R. 328. While the applicant's case does not - on the evidence before me on this application - appear to be a particularly strong one against the respondent, it does not appear to me to be futile.
10. The length of the delay in this case was not great. The notice of claim was delivered to the respondent approximately four and a half months later than it should have been. That is not in my view, so great a delay as to warrant a refusal of this application. The reason proffered for the delay is, in essence, that it was not until the receipt of the WorkCover on 16 April 2003 those advising the applicant became aware of the possibility of a claim against respondent. That, in my assessment, is a satisfactory explanation.
11. There may be some relevant prejudice to the respondent if this application succeeds. Had the respondent had notice of the applicant's claim earlier that it did, it may possibly have been in a better position to meet it than it is now. But it must be borne in mind that the limitation period applicable to the applicant's claim has not yet expired. The respondent has not produced any specific evidence of prejudice, although I am invited, quite properly, to conclude from the delay that some prejudice may be suffered. But the fact remains that there is no specific evidence of prejudice.
12. Balancing all of the relevant considerations, I conclude that the applicant should have the relief he seeks under s .18(1)(c)(ii) and under s.43. It is not necessary for me to consider further his application under s .18(1)(c)(i).
13. HIS HONOUR: I shall make the order you sought and add no order as to costs.
14. MR KIMMINS: Thank you, your Honour.
15. HIS HONOUR: So the order will be as in the initialled draft.