Ward v Wiltshire Australia Pty Ltd
[2007] QSC 144
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- Unreported Judgment
- Appeal Determined (QCA)
- Ward v Wiltshire Australia Pty Ltd[2007] QSC 144
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Ward v Wiltshire Australia Pty Ltd[2007] QSC 144
Ward v Wiltshire Australia Pty Ltd[2007] QSC 144
SUPREME COURT OF QUEENSLAND
CITATION: | Ward v Wiltshire Australia P/L & Anor [2007] QSC 144 |
PARTIES: | HELEN LOUISE WARD |
FILE NO/S: | BS 4081/07 |
DIVISION: | Trial Division |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 4 June 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 May 2007 |
JUDGE: | Lyons J |
ORDER: | Application refused |
CATCHWORDS: | LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - APPLICATION OF THE STATUTES TO PARTICULAR CAUSES OF ACTION - MOTOR VEHICLE INSURANCE - where applicant sought an extension of time under s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) within which to commence proceedings for damages as a result of personal injuries suffered in motor vehicle accident - where no evidence of the delay being caused by the requirements of the Motor Accident Insurance Act - where delay caused by mental illness of applicant’s legal representative - where applicant's solicitors allowed limitation period to pass - whether discretion under s 57(2)(b) should be exercised and extension of time granted Limitation of Actions Act 1974 Motor Accident Insurance Act 1994, s 38, s 39, s 41, s 51, s 57 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited Morrison-Gardiner v Car Choice Pty Ltd & Anor [2004] QCA 480, applied Paterson v Kurcharzynk and Transport Accident Commission [2007] QDC 035, approved Winters v Doyle & Anor [2006] QCA 110, applied |
COUNSEL: | K F Holyoak for the applicant J McClymont for the respondents |
SOLICITORS: | Anderson Brady solicitors for the applicant Suncorp Metway Insurance Limited for the respondents |
- The applicant was injured in a motor vehicle accident on 8 March 2001 and pursuant to the Limitation of Actions Act 1974, she was obliged to institute proceedings on or before 8 March 2004. The date was extended by agreement to 8 June 2004 to allow the parties to complete pre-court procedures. The “extended” limitation period passed on 8 June 2004 without proceedings being issued.
- This is an application pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 (“the MAIA”). The applicant requests leave to bring a proceeding in respect of a claim, for which a complying notice of claim has been given, more than six months after the notice was given, notwithstanding the expiry of the limitation period. The essential issue is whether there should be an extension of the limitation period to allow an action to be commenced now, even though the limitation period has expired.
- The respondents oppose the application.
Background
- On 8 March 2001 the applicant was involved in a motor vehicle accident at Helensvale and suffered personal injuries. The insurer of the other vehicle involved in the accident was Suncorp Metway Insurance Limited, the second respondent. On 13 March 2001 the applicant retained solicitors to prosecute a claim for damages for negligence against the driver of the vehicle. On 11 April 2001 a notice of accident claim form was sent to the second respondent and on 26 April 2001 the second respondent wrote and advised that they considered that the notice of claim form complied with s 37 of the Act.
- On 13 September 2001 the second respondent, by way of a letter to the solicitors for the applicant, admitted liability in full.
- After liability was admitted, the solicitors proceeded to gather the necessary evidence to support the applicant’s quantum claim and in particular, appointments were made with an orthopaedic surgeon and a psychiatrist. These reports were obtained on 22 October 2002 and 15 November 2002.
- There would appear to have been no further action on the file from late 2002 until 10 November 2003 when the applicant’s solicitor states he forwarded an offer to settle the action to the second respondent.
- The affidavit of Daniel Timchur sworn 24 May 2007 states that the second respondent did not receive an offer of settlement dated 10 November 2003 but on or about 23 November 2003 the second respondent received a telephone call indicating that an offer of settlement would be forwarded on the applicant’s behalf. Mr Timchur also stated in this affidavit that on 15 December 2003 he received a telephone call from the solicitors requesting a response to an offer of settlement which had been sent on 10 November 2003. Mr Timchur advised that the offer of settlement of 10 November had not been received.
- The solicitor for the applicant states in his affidavit that on 14 February 2004 he forwarded a further offer of settlement seeking damages for pain and suffering, economic loss, gratuitous care and future medical and pharmaceutical expenses. The solicitor states that it was not until 24 February 2004, less than two weeks before the limitation period expired, that he received a letter from the second respondent advising that they required the applicant to undergo a medical examination by an orthopaedic surgeon.
- Given that the requirements of division 5 of the MAIA were not likely to be complied with before the expiration of the limitation period on 3 March 2004, it was agreed between the parties that the limitation period should be extended until 8 June 2004 and a letter dated 3 March 2004 from the second respondent confirmed that agreement.
- In early April 2004 the second respondent advised the solicitors for the applicant that none of the panel of orthopaedic surgeons that they had provided on 24 February 2004 could see the applicant until June 2004 and accordingly, the solicitors agreed that the applicant could be reviewed by Dr Fitzpatrick on 7 May 2004. Dr Fitzpatrick’s report was forwarded to the solicitors for the applicant on 24 May 2004.
- There were no attempts by either the solicitors for the applicant or the second respondent to arrange a compulsory conference before the expiration of the extended limitation period. On 31 August 2004 the second respondent sent a letter to the solicitors for the applicant enclosing a HIC notice of past benefits.
- Accordingly, the limitation period has expired and the applicant has not complied with the provisions of the Act. The affidavit material establishes that the failure by the applicant to comply with division 5A of the Act and commence proceedings prior to the expiration of the limitation period is because the applicant’s solicitor was experiencing severe health problems. At the time the limitation period expired on 8 June 2004 the applicant’s solicitor had been diagnosed with depression and on 28 June 2004 he was assessed by a psychiatrist as suffering from a major depressive episode and in July 2004 attempted suicide on two occasions. Between 27 July 2004 and 8 September 2004 the applicant’s solicitor was admitted to the New Farm Clinic as an inpatient and never returned to practise in the legal firm which the applicant had consulted.
- In early August 2004 the locum solicitor employed by the firm discovered that proceedings against the first and second respondents were not commenced prior to 8 June 2004. On 23 August 2004 the applicant retained her current solicitors.
The Act
- The MAIA imposes detailed statutory prerequisites before a person claiming damages for personal injuries arising out of a motor vehicle accident can issue proceedings within the three year limitation period provided under the Limitation of Actions Act 1974.
- Section 38 of the MAIA requires that written notice be given to insurers before an action can be brought and s 39 provides that unless the insurer waives compliance, a claimant who has failed to give notice is prevented from proceeding further. Under the scheme the insurer is obliged to take steps to resolve the claim within six months after it receives notice (s 41) and a claimant is not only obliged to give notice before bringing an action in court, but also has to have a compulsory conference within six months after giving notice or, if that time has passed, a reasonable time and place nominated by the party calling the conference (s 51A). By the time of that conference each party is expected to be ready for trial and to have supplied the other party with all material relevant to the claim and its costs (s 51B). The parties are to exchange mandatory final offers if the claim is not settled at the conference (s 51C).
- Section 51D then provides that the action for damages must be started within 60 days after the compulsory conference or within the further period agreed between the parties within that 60 day period.
- Section 57 of the MAIA provides as follows:
“57 Alteration of period of limitation
- If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.
- However, the proceeding may only be brought after the end of the period of limitation if it is brought within--
- (a)6 months after the notice is given or leave to bring the proceeding is granted; or
- (b)a longer period allowed by the court.
- If during the last 14 days of the period of limitation, the claimant wants to give a notice of claim under division 3 but is unsure to which insurer the notice should be given, the notice is validly given if it is given to the commission.
- After receiving a notice of claim under subsection (3), the commission must make inquiries to decide the insurer against which the claim properly lies, and pass the notice of claim on to the appropriate insurer.
- If a period of limitation is extended under part 3 of the Limitation of Actions Act 1974, this section applies to the period of limitation as extended under the part.”
- It is important to note that there has been a compliant notice of claim under division 3.
The principles relevant to s 57(2)(b)
- The discretion conferred by s 57(2)(b) was considered by the Court of Appeal in Morrison-Gardiner v Car Choice Pty Ltd & Anor[1] and Winters v Doyle & Anor.[2]
- The following principles may be drawn from those cases:
- It is necessary for the applicant to demonstrate that the delay in the claim was occasioned by attempts to comply with the MAIA. As enunciated by Keane JA in Winters v Doyle & Anor:[3]
“A plaintiff will usually be able to show good reason for the favourable exercise of the discretion conferred by s. 57(2)(b) only if he or she can show that the delay which occurred was occasioned by a ‘conscientious effort to comply’ with the MAI Act.”
and:[4]
“It is to be emphasised that the issue ... is not whether the plaintiff may reasonably be excused for having relied upon his solicitor to comply with the requirements of the MAI Act. The issue is whether the delay which occurred was related to compliance with the MAI Act.”
In that case, proceedings were not instituted because of a failure on the part of the plaintiff's solicitor to diarise the limitation date. In those circumstances, his Honour found:[5]
“One must conclude that the delay which led to, and followed, the expiration of the limitation period was not materially affected by the need to comply with the procedural requirements of the MAI Act or any mistake by the plaintiff or his solicitors in that regard. As a result, one cannot say that the plaintiff's attempts to comply with the MAI Act in relation to his claim afford a reason for the favourable exercise of the discretion in s. 57(2)(b) of the MAI Act.”
- The applicant bears the onus of showing that the discretion to permit the matter to proceed to trial should be exercised in his favour: Brisbane South Regional Health Authority v Taylor,[6] cited by Keane JA in Winters v Doyle & Anor.[7]
- It is relevant to consider whether, due to the lapse of time, the insurer has suffered prejudice.
Submissions of the applicant
- The applicant submits that the real issue is whether the delay which occurred was related to a failure to comply with the MAIA. The applicant submits that there are multiple manifestations of the inability of both sides to comply with the requirements of division 3 and division 5A of Part 4 of the MAIA within the three year limitation period. In particular, the applicant relied on the fact that the limitation period was extended by agreement to facilitate compliance with the MAIA. Secondly, after the limitation period had expired the second respondent continued to request medical evidence, had the applicant independently examined and exchanged correspondence in relation to quantum. This was in preparation for the compulsory conference required by division 5A.
- Furthermore, the applicant submits that the independent medical examination arranged by the insurer after the expiration of the limitation period initially could not be complied with until the first week of June and therefore agreement was reached to have Dr Fitzpatrick review the applicant on 7 May 2004. The report however was not received by the solicitors until 24 May 2004 which was shortly prior to the agreed extended limitation period expiring on 8 June 2004. In particular, the applicant relies on the fact that neither party endeavoured to arrange a compulsory conference during this period of time that remained before the expiration of the limitation period. Indeed, the applicant submits that no issue was taken with the expiration of the limitation period on 8 June 2004 and there was in fact further activity on the part of the second respondent in relation to the quantification of the applicant’s claim after the expiration of the limitation period on 8 June 2004.
- The applicant submits that a compulsory conference and the commencement of litigation could not have occurred within the period from the arrival of the doctor’s report on 24 May 2004 and the expiration of the agreed extended limitation period on 8 June 2004, because there were certain reports and notifications that had to be given.
- Importantly, in addition mandatory final offers had to be exchanged at the compulsory conference under s 51C. Section 51C(6) of the MAIA provides:
“(6) A mandatory final offer must remain open for 14 days and proceedings must not be started while the offer remains open.”
The applicant submits therefore that, allowing the seven days required by s 51B(5) to expire, the earliest a compulsory conference could have been arranged was 1 June 2004 which left only seven days before the agreed extended limitation period expired. Inevitably, the moratorium imposed by s 51C(6) would have exceeded the agreed extended limitation period. Accordingly, the applicant submits that either the limitation period would have to be extended by agreement again or division 5A dispensed with or s 57 invoked for an exercise of the discretion.
- In any event, the applicant submits that it is clear that both sides were endeavouring to comply with division 5A but that this could not occur within time and the failure to commence proceedings within the limitation period was directly related to the exigencies of division 5A.
- The applicant claims that a conscientious effort was being made to comply with the requirements of the MAIA and in particular, the solicitor’s illness denied the applicant of the benefit of further attempts to comply with the MAIA. In any event, further compliance with the MAIA would have required some exercise of discretion under the MAIA in order to complete compliance within time before litigation could be commenced. Accordingly the applicant submits that the delay in the claim was occasioned by attempts to comply with the MAIA.
- The applicant submits that the discretion should be exercised in this case because the claim is a quantum only claim and liability has been admitted. Furthermore, the circumstances of the accident make it unlikely that the admission would be withdrawn. It is therefore unlikely that there is any need for recollection and the case can be determined largely on medical evidence, notes and records.
- In addition, the applicant submits that there is a full explanation for the delay in the affidavit of the solicitor. The solicitor indicates he was afflicted by a serious mental illness and he endeavoured to comply with the MAIA and indeed had obtained an extension of the limitation period by agreement. Towards the end of the limitation period when endeavouring to arrange a compulsory conference he was however overwhelmed by his illness.
- The affidavit evidence indicates that the applicant had complete reliance upon the solicitor in relation to compliance with the MAIA provisions within the limitation period.
- The applicant also submits that there is no obvious prejudice to the second respondent and the existence of prejudice is unlikely as all medical records are available and updated medical appointments can be obtained as they would in any event. In particular, the insurer in this case has already had early fulsome notification in relation to both issues of liability and quantum and has pursued its own enquiries even after the limitation period ended.
- The applicant also submits that the delay between the expiration of the agreed extended limitation period until the present time is explained by the applicant’s current solicitors being unaware of reason for the failure to comply with the extended limitation period until this year when details of the illness of the solicitor became known. In particular, it is submitted that this is not a case of the solicitor having forgotten or overlooked what he needed to comply with but blamelessly he was afflicted by a serious illness and it was not an administrative or clerical oversight as in Winters v Doyle & Anor.[8]
Should the discretion be exercised?
- It should be noted that there were significant periods of delay within the limitation period. In particular from September 2001 to September 2002 and from December 2002 to November 2003. Clearly there has been a delay of two years within the three year limitation period.
- There has also been no real explanation for the period of delay from August 2004 to the filing of this application on 14 May 2007, a period of almost three years. That delay does not involve any connection with the requirements of the MAIA. The claim has in fact lain dormant for three years.
- I accept that in this case the second respondent cannot point to any significant prejudice given the fact that liability was admitted and the applicant had been independently examined. In a similar situation which arose in the decision of Paterson v Kurcharzynk[9] Wilson DCJ held:
“More than three years have passed since the applicant first complained of these symptoms to his solicitors. This aspect of the delay is inordinate, and exacerbates the reasonable concern that the insurer may not, now, be able to conduct useful investigations. At best for the applicant it can only be said that the nature and extent of the difficulties confronting the insurer, consequent upon the delay, are unclear.
The delay since the expiry of the limitation period is not referrable to any difficulties associated with the procedural requirements of the MAIA and is solely rather the product of inaction.”
- It has to be said that in the present case the delay of three years is similarly the product of inaction and is not referrable to any difficulties with the procedural requirements of the MAIA.
- In the present case, as has been set out above, the onus is on the applicant to demonstrate that the two year delay during the limitation period and the three year delay since the limitation period expired was due to the applicant’s attempts to comply with the MAIA. Furthermore the attempts to comply must show a “conscientious effort”.
- Furthermore as Keane JA said in Winters v Doyle & Anor:[10]
“It should be emphasised that an explanation for delay which shows that the delay was associated with the plaintiff’s attempts to comply with the requirements of the MAI Act, and the evidence negativing of the possibility of unfair prejudice to the defendant, are not conditions precedent to the enlivening of the power conferred by s 57(2) (b) of the MAI Act. Rather, they are considerations relevant to the proper exercise of that power.”
- As Chesterman J held in Morrison – Gardiner v Car Choice Pty Ltd:[11]
“The discretion is likely to be exercised favourably only in those cases where a claimant’s circumstances make it difficult to comply with the requirements of the Act, and commence proceedings within three years or where, despite making conscientious efforts to comply with the requirements of the Act, a claimant nevertheless does not do so within three years of the accident…Claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them are unlikely to obtain an extension of time though, of course, each case must be decided on its individual merits.”
- Whilst there is an argument that within the limitation period that delay was referable to attempts to comply with the MAIA, the applicant has failed to satisfactorily explain the delay in the last three years.
- The application is refused.