McColm v FKP Constructions Pty Ltd
[2007] QSC 40
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- McColm v FKP Constructions Pty Ltd[2007] QSC 40
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McColm v FKP Constructions Pty Ltd[2007] QSC 40
McColm v FKP Constructions Pty Ltd[2007] QSC 40
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
WHITE J
No 697 of 2007
BRUCE JEFFREY McCOLM | Applicant |
and | |
FKP CONSTRUCTIONS PTY LTD (ABN 84 009 910 098) | Respondent |
BRISBANE
DATE 09/02/2007
JUDGMENT
HER HONOUR: The applicant seeks an order pursuant to section 59(2)(b) of the Personal Injuries Proceedings Act 2002 for leave to commence proceedings against the respondent for damages for personal injuries sustained on the 25th of October 1999 outside the six-month period after a complying notice of claim was given to the respondent. That section provides:
"1.If a complying notice of claim is given before the end of the period of limitation applying to the claim the claimant may start a proceeding in a Court based on the claim even though the period of limitation has ended.
2.However, the proceeding may be started after the end of the period of limitation only if it is started within:
(a)six months after the notice is given or leave to start the proceeding is granted; or
(b)a longer period allowed by the Court."
The applicant gave a notice of claim on the 24th of October 2002 to the respondent, one day before the expiration of the limitation period. The applicant, who was born on the 13th of November 1961 and is now aged 45 years, sustained a low back injury in a fall in the course of carrying out work as a bricklayer on a commercial development at Mooloolaba known as the Outrigger Hotel.
The applicant was employed as a subcontractor by one Paul Kelly who was engaged as a bricklayer by the respondent who was the principal contractor on the site. Plexform Proprietary Limited carried out the formwork. The applicant claims that he slipped on debris left on a set of stairs then unfinished and fell on his back, suffering serious injury. The applicant has not returned to work since because of pain and other associated symptoms.
The applicant has suggested that flaky pieces of concrete were deposited on the unfinished treads of the stairs by the formworkers. There is said to have been no observable system of cleaning up the site to prevent such incidents from occurring. There are medical certificates attesting to the applicant's back injury or at least a back injury, although it does not seem to be seriously contested that the applicant did sustain an injury at work.
After the accident the applicant was referred by his union representative to a law firm in Brisbane but he found the travel aggravated his symptoms, and on the recommendation of a friend he attended on S J Hoolihan and Associates at the Sunshine Coast in November 2001. There is no evidence that the Brisbane firm did anything to advance the claim. A year later the applicant signed his notice of claim pursuant to the Personal Injuries Proceedings Act, the first notice of the accident which had been received by the respondent, because it seems that although the applicant spoke to a couple of people at the site no record of any accident was actually made.
In November 2002 the respondent's insurer's loss adjusters commenced investigations into the accident and produced a report dated the 14th of January 2003. On the 9th of January 2003 the applicant signed a statement at the lawyer's office and in May he received from those lawyers a copy of his medical files relating to attendances on two doctors. On 12 June 2003 Mr Hoolihan wrote about an appointment with Dr John Morris organised by the respondent which was kept on the 17th of July 2003. Dr Morris' report is dated the 17th of July 2003.
On 27 November that year Mr Hoolihan wrote to the respondent's solicitors suggesting a settlement conference in December. The solicitors responded foreshadowing a nil offer. The applicant met with the loss adjuster and a representative from the respondent and inspected the site, very likely towards the end of 2002, perhaps the beginning of 2003, in light of the loss adjuster's report. Mr Hoolihan told the respondent of some difficulty in setting a date with the respondent's solicitors for the furtherance of the claim, although apart from that that doesn't seem to be the case.
The applicant deposes that therefrom he was told by Mr Hoolihan that the claim was going well. Between 2003 and 2006 the contact, principally by telephone, with Mr Hoolihan dwindled to nothing, and in May 2006 the applicant received a letter from the Queensland Law Society advising that a receiver had been appointed to the firm S J Hoolihan and Associates. Subsequently it seems Mr Hoolihan has become a bankrupt.
The applicant was advised to see another lawyer by the Queensland Law Society and consulted his present lawyers in July 2006. This application was filed in January this year. It is plain, then, that the delay which has led to the passing of the six-month period was likely due in the first instance to the inability to complete the necessary Personal Injuries Proceedings Act steps within the six months allowed in the legislation, but they were, it seems, completed within 12 months and it is likely a Court would have extended, consistently with the observations particularly of Williams JA in Morrison-Gardiner v Car Choice Proprietary Limited [2005] 1 QR 378 and quoted by Keane JA in Winters v Doyle [2006] QCA 110.
Thereafter, however, the lengthy delay is attributable to factors outside the regime of the Personal Injuries Proceedings Act. Two letters from the respondent's solicitors to the applicant's solicitors, on the 8th of December 2003 and the 13th of April 2004, the latter asking if the claim was to proceed, brought no response at all and the respondent and the two third parties to whom notices of contribution had been given under the Personal Injuries Proceedings Act closed their files.
I am not prepared to conclude that the applicant was unconscientious in the pursuit of his claim even though three years was an extraordinary delay. The applicant had some reassurance from his solicitor. He was a bricklayer by trade and he was in constant pain, so that the standards that might be expected of someone more familiar with the system would not necessarily be applied to a person such as the applicant. The concern is the prejudice to the respondent's capacity to have a fair trial.
The loss adjuster's report demonstrates that after three years a number of the witnesses were unable to be traced. Mr Feely accepts that the trail was cold by the end of 2002, three years after an unrecorded accident.
There were no obvious witnesses to the fall except an un-named plumber; a safety officer named, Dave; and a union delegate named, Rod; who were at least informed on the day. None of them have been able to be traced.
The problem with building site witnesses is that this kind of industry has people who come and go all the time. So matters were not all that promising so far as recollection was concerned in 2002. But by now, although other possible witnesses, especially as to contribution, have been identified they cannot remember anything at all or cannot be traced. Of this, Keane JA, said in Winters v Doyle, at paragraph 44:
"The plaintiff argues that the difficulty which arises for the respondents by reason of the absence of Ms King may have arisen even if the action had been commenced within the limitation period. This argument must be rejected.
The plaintiff has not even attempted to demonstrate that Ms King became unavailable during the limitation period. Further, it is well established that there is no reason to engage in a comparison of the respondent's position during the limitation period with the defendant's position afterwards.
It is at the time when the Court is called upon to exercise its discretion, to permit the matter to proceed to trial, that the Court must address the question whether a fair trial may now be had. The Court's order deprives the defendants of an otherwise complete defence to the claim. Such an order should not usually be made if the Court cannot be satisfied a fair trial of the merits of the claim is possible at that time."
Further prejudice is that the respondent as defendant is now precluded by Section 40 of the Limitation of Actions Act 1974 from joining Mr Kelly and Plexform Proprietary Limited as third party joint tortfeasor's in any proceedings in Court.
Mr Grant-Taylor submitted that an action for breach of contract is not barred and there were obligations under their contracts with the respondent to keep a safe site.
Nonetheless, in my view, this is a significant loss for the respondent. On the other hand, the applicant will be reduced to suing his former solicitors for the loss of a chance to succeed. There seems little doubt on the material that he would successful in such an action.
However, that does come at some price, because what the Court must do is to assess the chance of success in the principle litigation, had it proceeded. The prospects of success for this applicant in either eventuality are rather difficult to evaluate.
It does not look to me a strong case, but the applicant has more recently made his account of the slip more detailed in a way which addresses the criticisms of his somewhat vague account, given to the loss assessors. And of course, in any litigation this would be the subject of cross-examination. It being a very long time since 1999 when this accident occurred.
Balancing all those matters, I have come to the conclusion that leave ought not be given and that the application should be dismissed.
Is there anything more, gentlemen?
MR FEELY: Your Honour, in those circumstance I've instructions to ask for the costs of the application which, in this circumstance, should follow the event.
HER HONOUR: Strictly that's correct.
MR GRANT-TAYLOR: I can't say anything about that, your Honour.
HER HONOUR: It is noted, of course, that this is a matter where the applicant is not merely blameless in the matter but there is not much one can do about it in these sorts of circumstances, I think. Presumably, the insurers won't seek to enforce the order but you can have the order.
The applicant should pay the respondent's costs of and incidental to the application, to be assessed on the standard basis.