Kitson v NQEA Australia Pty Ltd
[2006] QSC 220
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- Unreported Judgment
- Kitson v NQEA Australia Pty Ltd[2006] QSC 220
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Kitson v NQEA Australia Pty Ltd[2006] QSC 220
Kitson v NQEA Australia Pty Ltd[2006] QSC 220
SUPREME COURT OF QUEENSLAND
CITATION: | Kitson v NQEA Australia Pty Ltd [2006] QSC 220 |
PARTIES: | ANDREW KITSON |
FILE NO/S: | 61 of 2006 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court Cairns |
DELIVERED ON: | 9 June 2006 |
DELIVERED AT: | Cairns |
HEARING DATE: | 3 March 2006 |
JUDGE: | Jones J |
ORDER: | 1.I make the following declarations – (i)that the applicant has remedied non-compliance with s 9 (3)(b) of PIPA; (ii)that the applicant gave the respondent a complying part 1 notice claim pursuant to s 9(1) of PIPA by 23 November 2005. 2.I order that the respondent pay the applicant’s costs of and incidental to the application to be assessed on the standard basis such order to take effect 15 days from the date hereof. 3.I give each party liberty to apply on giving two business day’s notice to the other party. |
CATCHWORDS: | LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES - where applicant delayed in giving notice of claim to respondent pursuant to s 9 of the Personal Injuries Proceedings Act – where applicant had changed solicitors – where applicant had informed respondent of reason for delay – whether explanation was reasonable Taylor v Stratford [2003] QSC 427 Personal Injuries Proceedings Act 2000 s 9(1), s 9(3)(b), s 18, s 20 |
COUNSEL: | C Ryall for the applicant |
SOLICITORS: | Shine Roche McGowan for the applicant |
- By this application the applicant seeks various orders, pursuant to s 18 of the Personal Injuries Proceedings Act 2000 (“PIPA”). The principal relief sought is:-
- a declaration that the applicant has remedied non-compliance with s 9(3)(b) of PIPA;
- in the alternative, an order that the applicant as claimant be authorised to proceed further with the claim despite non-compliance with s 9(3)(b) of PIPA.
Background facts
- The applicant was injured in the course of his employment on 4 August 2004. He was at that time employed by Skilled Engineering Pty Ltd and the place of his employment was at the premises of the respondent at Cairns.
- In relation to this incident, the first contact with the respondent on behalf of the applicant occurred on or about 17 June 2005 by a letter sent by his present solicitors. By this date the period for giving notice pursuant to s 9(3)(a) had expired on two counts. It was approximately one month after the nine month period provided for by the section but, more particularly, it was more than one month after the applicant had first consulted solicitors in respect of this injury. He first contacted a firm of solicitors on 20 January 2005 thus making the time for due delivery of the Notice of Claim being 20 February 2005. The firm of solicitors initially retained gave no notice to the respondent but did give some notice to WorkCover. It appears that no further action was taken until the applicant retained his present solicitors on 14 June 2005 after which notice to the respondent was given within a few days.
- The respondent acknowledges that it is a proper respondent to the claim.[1] The respondent’s concern about compliance with PIPA was whether reasonable excuse for the delay identified above had been given. Effectively that delay relates to the period between 20 February 2005 and 17 June 2005 but the impact of the delay is measured from the date of the incident. The respondent does not assert that it suffered any prejudice by reason of the delay nor would one infer that there would be any prejudice in such a short period of time. The respondent prepared an Incident Notification Form in accordance with Workplace Health and Safety legislation soon after the incident occurred.[2]
- Notices of claim in respect of the same incident were served on two other respondents, namely Furniture Manufacturers of Australia Pty Ltd and Luxury Yacht Refinishers Pty Ltd. Each of these respondents has apparently accepted the explanation for the delay and have notified the applicant that his respective notices were complying. WorkCover Queensland advised to the same effect.[3]
The issue
- It is necessary to look at the basis for the present respondent taking a different view. The first indication is in the letter from the respondent’s solicitors of 20 July 2005.[4] By this letter the respondent allowed a further month to –
“satisfy our client that your client has in fact complied with the requirement or to take the following reasonable action to remedy the non-compliance:
- Advise the substance and effect of your client’s alleged advice to his former solicitors “of the full details of his accident and the parties involved”;
- Advise the reasons why, and the circumstances in which, your client came to:
- Terminate the retainer of his former solicitors; and
- Retain you.”
This request for the applicant to give reasons for his change of solicitors was objected to by the applicant’s solicitors as not being a compliance issue. That objection, it seems to me, was properly taken for reasons which will become apparent. Nonetheless there followed a flow of correspondence on this issue between 26 July – 20 December 2005.[5] Included in this flow of material is the applicant’s declaration that the initial solicitors failed to give any relevant advice to the applicant. See paragraphs 2 and 3 of the statutory declaration.[6]
- The right to demand an explanation for delay provided by the legislation does not entitle the respondent to embark upon an inquisition of its own desire. The requirements of the legislation are satisfied if the test of reasonableness is satisfied on an objective basis. The satisfaction required by the legislation is compendiously described by Wilson J in Taylor v Stratford[7] in the following terms:-
“[18]Where a notice of claim is not given within the requisite period, the obligation to give the notice continues and the claimant must provide “a reasonable excuse for the delay”: s 9(5). This requirement is similar to that in s 37(3) of the Motor Accident Insurance Act 1994 which was considered by the Court of Appeal in Perdis v Nominal Defendant [2003] QCA 555; Piper v Nominal Defendant [2003] QCA 557; and Miller v Nominal Defendant [2003] QCA 558. As a result of that trilogy of cases it is now clear –
- That the delay for the purpose of s 37(3) of the Motor Vehicle Insurance Act 1994 is the lapse of time from the date of the accident to the date on which a notice with accompanying explanation or excuse for the delay is given;
- That for this purpose the question of reasonableness must be considered objectively but having regard to the claimant’s personal characteristics such as age, intelligence and education; and
- That an explanation for the delay in terms that the claimant had, in a timely fashion, entrusted the matter to a solicitor he reasonably believed was competent to do whatever was necessary and the failure to give a notice of claim was attributable to inaction on the part of the solicitor, will generally be a ‘reasonable’ one within the meaning of the section. (The qualification to that general proposition where, after a claimant has entrusted the matter to his solicitor, there is something which would cause a reasonable person in his position to make further inquiry or take other steps does not arise on the facts of the present case.)
I consider that a similar interpretation should be given to s 9(5) of the Personal Injuries Proceedings Act 2002.”
- Here the material before me shows that the applicant placed his reliance in the hands of a firm of solicitors whom he expected would give him proper advice. By the terms of his declaration he said this was not given any such advice. That assertion remains uncontradicted. In the absence of evidence to the contrary the explanation is a reasonable one. The fact that the explanation was accepted as reasonable by the other respondents might have given some pause to the respondent in asserting that it was not reasonable.
- The respondent’s request for details of the applicant’s instructions to his former solicitors is somewhat curious. If his instructions related at all this work related injury then it was incumbent on his solicitors to give him some advice about time limits. If his instructions had no relationship to the subject injury then it would have been unnecessary for his present solicitors to refer to the earlier retainer as they did on 17 June 2005 (“CHA 1”). Once it is accepted that the applicant did in fact consult other solicitors about this incident, the failure to give the requisite notices to the respondents or to give him advice as to the need for such notices leads to an inference of some fault on the part of those solicitors. In the absence of any evidence suggesting this did not happen, the explanation in the circumstances of this case is a reasonable one. It is not necessary for the applicant to assert that his former solicitors were incompetent or to establish why they did not give him proper advice. The explanation for delay lies in the fact that he was not given appropriate advice at all.
- I find that the explanation given by the applicant was a reasonable one. By his provision of the statutory declaration on 23 November 2005 he has remedied non-compliance with s 9(3)(b). Accordingly, I will allow the application. For completeness I would also indicate that had I not reached this conclusion it is clear in circumstances where no prejudice has been suggested by the respondent the alternative relief of authorising the claimant to proceed further with the claim, despite non-compliance, would also be allowed.
- There remains ample time before the expiration of the limitation period for the pre-court procedures to be undertaken though the time for the respondent’s response pursuant to s 20 must be extended. As no discussion on this topic was had before me I will allow the parties to agree upon the times but failing such agreement each party will have liberty to apply.
Costs
- The applicant seeks costs from the respondent in the event that it is found that he had given a reasonable explanation. I see no reason why costs should not follow the event and I propose therefore to make the order as sought but allow 14 days for the respondent to make submissions for a variation to its terms.
Orders
- 1. I make the following declarations –
- that the applicant has remedied non-compliance with s 9(3)(b) of PIPA;
- that the applicant gave the respondent a complying part 1 notice claim pursuant to s 9(1) of PIPA by 23 November 2005.
- I order that the respondent pay the applicant’s costs of and incidental to the application to be assessed on the standard basis such order to take effect 15 days from the date hereof.
- I give each party liberty to apply on giving two business day’s notice to the other party.
Footnotes
[1] Ex “CAH2” to affidavit of Christopher Hibbert sworn 1 February 2006
[2] Exhibits A, B and C to affidavit Christopher Hibbert sworn 1 March 2006
[3] Affidavit of Christopher Hibbert sworn 1 March 2006
[4] Ex “CAH2” to affidavit of Christopher Hibbert (supra)
[5] See exs CAH3” to “CAH11” to affidavit of Christopher Hibbert (supra)
[6] Ex “CAH10” (supra)
[7] [2003] QSC 427