Knapman v Oceanic Beaches Pty Ltd
[2007] QSC 88
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Knapman v Oceanic Beaches Pty Ltd[2007] QSC 88
- Add to List
Knapman v Oceanic Beaches Pty Ltd[2007] QSC 88
Knapman v Oceanic Beaches Pty Ltd[2007] QSC 88
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application – Leave to Proceed and Dismissal of Action for Want of Prosecution |
ORIGINATING COURT: | |
DELIVERED ON: | 20 April 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 February 2007 |
JUDGE: | Moynihan J |
ORDER: | 1.The plaintiff’s application for leave to proceed refused. 2.Claim dismissed for want of prosecution. |
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – DELAY SINCE LAST PROCEEDING – where the plaintiff had taken no steps in four years – whether the plaintiff should be granted leave to proceed pursuant to r 389 Uniform civil Procedure Rules 1999 (Qld) – whether the proceedings should be dismissed for want of prosecution Corporations Act 2001 (Cth) s 601AH(2) Uniform Civil Procedure Rules 1999 (Qld) 280(2), 389. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered. Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, considered. William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490, considered. |
COUNSEL: | J McClymont for the plaintiff. W Campbell for the third defendant. |
SOLICITORS: | Murphy Schmidt for the plaintiff. Herbert Geer & Rundle for the third defendant. |
[1] The applicant seeks leave to proceed in this action pursuant to Uniform Civil Procedure Rules 1999 (Qld) (UCPR) 389 and for the reinstatement of the first defendant pursuant to s 601AH(2) of the Corporations Act 2001 (Cth). The third defendant seeks to have the claim dismissed for want of prosecution pursuant to UCPR 280(2). The fourth, fifth and sixth defendants did not play any part in the proceeding. The claims against them appear to have related to events which took place after those giving rise to the claims against the first, second and third defendants.
[2] The action arises out of events which occurred on 14, 15 and 16 March 1995. The plaintiff and others embarked on a dive boat for instruction in scuba diving so as to obtain a particular certification in the plaintiff’s case of recreational diving over the three day period. As a consequence of engaging in the diving activity the plaintiff suffered what is referred to as ‘decompression illness’ and is seriously disabled.
[3] It is convenient to refer to the first, second and third defendants collectively, including their servants or agents as the defendants.
[4] The first defendant is sued on the basis of conducting the diving business carried on by the second defendant which contracted with the third defendant to provide her services as a dive instructor.
[5] The defendants were represented by the same solicitors until they withdrew as solicitors for the first and second defendants on 2 January 2007. Apart from the third defendant the plaintiff, his girlfriend and three other recreational divers were aboard the dive boat together with the two operators of the vessel.
[6] What occurred leading up to and following the plaintiff’s decompression illness is contentious in a number of crucial respects. These issues are a matter for trial; they cannot be resolved with this application.
[7] The plaintiff had previous scuba diving experience in the course of which he had exhibited or experienced symptoms bearing on whether he was at risk of decompression sickness in subsequent dives. He did not however disclose this in documentation provided for him to complete before commencing the course. His explanation is that he was encouraged not to disclose this by an agent of the defendants.
[8] The incident report completed by the third defendant records that the plaintiff’s girlfriend told the third defendant after the incident that he had had a splitting headache the previous night and took a Panadol. This information was not disclosed until after the plaintiff’s decompression illness became apparent.
[9] The plaintiff alleges that during the course of dives on the three days he developed nausea, headaches, vomiting and other symptoms which were or ought to have been apparent to the defendants and others aboard the boat.
[10] The third defendant has no recollection of the plaintiff being unwell aboard the boat apart from the reference in the incident report that the plaintiff had a slight headache but felt quite okay to dive when he completed a document on 16 March 1995 before making the dive the outcome of which was his injury.
[11] The plaintiff was evacuated ashore for medical attention and ultimately taken to the specialist hyperbaric unit at the Townsville Hospital for expert attention and treatment. He was returned to the United Kingdom, he lived there, on 9 April 1995 and has remained there since.
[12] The plaintiff has been diagnosed as suffering from decompression sickness, consequent infarction of the cerebellum, spine and right cerebral hemisphere resulting in incomplete tetraplegia and residual incomplete paraplegia. He is seriously and permanently disabled, essentially dependent on others for his day to day care and well being and unable to earn a living.
[13] The plaintiff’s case essentially is that the third defendant knew or ought to have known of his previous history with the consequent risk of his suffering from decompression sickness and of his condition which developed and deteriorated during or following dives he undertook on 14, 15 and early 16 March 1995.
[14] It is alleged that the defendants should have warned the plaintiff of the risks involved in his engaging in the diving activities, required he be medically assessed before allowing him to dive, not allowed him to dive or to continue doing so once his symptoms became apparent. There are further allegations of exacerbation of the consequences of decompression episodes by the defendants failing to properly respond to the events which occurred.
[15] There is apparently an issue relating to whether the defendants stated at the time that the plaintiff’s symptoms were a manifestation of his being stung by a marine creature rather than decompression sickness founding an inference adverse to the defendants as to the cause of his condition.[1]
[16] The following chronology, although far from exhaustive and in various respects contentious, is a useful indication of the course of events:
Date | Event |
14 March 1995 | Plaintiff commences advanced open water diving course. Not indicated on forms had suffered diving after effects apparently claims operator told him to do so. Became ill and rested ashore |
15 March 1995 | Diver suffered with headaches |
16 March 1995 | Date of decompression illness onset |
9 April 1995 | Plaintiff evacuated to United Kingdom |
16 July 1997 | United Kingdom solicitors instruct the plaintiff’s current solicitors |
12 March 1998 | Writ of summons filed (4 days prior to the expiration of the limitation period) |
11 March 1999 | Third defendant served with writ (one day before writ expired) |
21 September 1998 | United Kingdom principal withdraws instructions and the plaintiff’s solicitors act for him directly on a contingency basis as to costs |
1 April 1999 | Entry of appearance first, second and third defendants |
8 June 1999 | Expert report of Dr Edmonds bearing on liability and damages issues |
1999-2007 | Plaintiff’s solicitors have problems locating plaintiff and obtaining instructions |
9 February 2000 | Statement of claim filed |
15 May 2000 | Defences first and third defendants filed |
15 May 2000 | Letter and first defendant’s request for further and better particulars delivered. To date, the plaintiff has failed to respond to that request |
29 November 2002 | Plaintiff’s lists of documents served on the first and third defendants (last step in the action) |
October 2004 | Solicitor responsible for file leaves plaintiff’s solicitors employ. Matter in abeyance to approximately November 2005 |
1 February 2006 and 6 February 2006 | Defendant’s solicitors attempt to contact the plaintiff’s solicitors - left messages |
28 July 2006 | Defendant’s solicitors send facsimile to plaintiff asking whether the plaintiff intended to proceed with action. |
24 August 2006 | Defendant’s solicitors locate him in the United Kingdom after considerable efforts. Defendant’s solicitors speak to him by phone. |
11 September 2006 | Defendant’s solicitors send a facsimile to plaintiff’s solicitors confirming instructions to apply to dismiss the plaintiff’s claim for want of prosecution |
11 September 2006 | Defendant’s solicitors confirming instructions to seek leave to proceed |
2 January 2007 | The solicitors on the record for the first and second defendant obtain leave to withdraw |
30 January 2007 | The plaintiff filed his application for leave to proceed |
[17] The considerations which arise for applications such as this have been widely considered in a large number of cases in a range of Australian and overseas jurisdictions. The general principles are now well established, although variously expressed and I do not intend canvassing the cases exhaustively or in detail. It is a matter of applying the principles to the particular circumstances.
[18] It is for the plaintiff to show good reason for exempting proceedings from the general prohibition imposed by UCPR 389;[2] for example, William Crosby & Co Pty Ltd v The Commonwealth;[3] Tyler v Custom Credit Corp Ltd & Ors[4] (Tyler).
[19] The relevant general considerations applicable here are conveniently collected in the judgment of Atkinson J (McMurdo P and McPherson JA agreeing) in Tyler.[5] It is convenient to deal with the issues in this case under the following headings:
How long ago did the events occur before litigation was commenced and how long ago was it commenced?
[20] It will be appreciated from the chronology that it is 12 years since the events giving rise to the action. The proceedings were commenced four days prior to the expiration of the limitation period and the third defendant served one day before the writ expired. The last step in the action occurred more than four years ago.
How far has the litigation progressed?
[21] A statement of claim and defence have been filed. Disclosure has not been completed.
[22] The unanswered request for further and better particulars of 15 May 2000 includes a request for further and better particulars of the basis of the allegation that the third defendant knew or ought to have known of the plaintiff’s condition and the consequential dangers prior to the dive of 16 March 1995. That appears to be a proper request but has not been answered.
[23] The plaintiff has given disclosure and has provided the defendants with a report by Dr Edmonds which bears on the issue of liability and with the reports from the Salisbury District Hospital (United Kingdom) of 12 July 2000 and 26 July 1996 provided by the plaintiff’s treating practitioner.[6]
[24] I note that Dr Edmonds’ report canvasses a wide range of considerations and gives rise to fairly complex considerations bearing on the issue of liability. The facts on which his opinion are based might of course be proved by admissible evidence.
[25] The material provided about the plaintiff’s condition needs to be updated and a statement of loss and damage provided. The defendants most likely would wish to have independent medical examinations and reports and to obtain expert opinion on the issues raised by Dr Edmonds’ report bearing on the issue of liability.
[26] Put shortly there are a number of procedural steps to be completed for the action to be ready for trial and trial preparation is not complete. As to these considerations it is not irrelevant that the plaintiff is resident in the United Kingdom and is incapacitated.
[27] As I have already said there are a number of contemporaneous documents including the diving log, an incident report relating to the plaintiff’s condition, an acknowledgment of advice and confirmation of assumption of risk to which I have previously referred and associated medical statements. It seems that there was a workplace health and safety investigation which did not involve action being taken. There is no evidence of the details of the investigation.
[28] The contemporaneous documents are in a number of aspects, some of which I have noticed are not wholly favourable to the plaintiff’s case. The plaintiff also pleaded a number of other documents relating to his acquisition of a qualification which were completed on the vessel over the three days. A review of these documents indicates that the plaintiff apparently did not have any difficulty in completing the reviews.
[29] The action is one in which the outcome of the trial will depend to a significant degree on the recollection of those involved, for example in the plaintiff’s signing of the document, who were aboard the dive boat up to the time the plaintiff suffered the decompression episode.
[30] The facts pleaded in the statement of claim, if found to be proven are capable of founding an arguable case of liability. Dr Edmonds’ report provides supporting evidence but would presumably be challenged at trial. Experience suggests that it is likely that the defendants would lead contraverting opinion evidence on liability and damages issues.
[31] It is impossible to predict the outcome of the trial on the material before me but the plaintiff has a number of obstacles to overcome. In my view he has at best reasonable prospects of success in establishing liability. The defendants’ prospects might, on balance be thought stronger. The outcome as I have indicated will depend on a resolution of issues at trial. If the plaintiff is successful in proving liability his damages will be substantial given his age and the debilitating consequences of his injury.
Disobedience to court orders or directions
[32] There has been no disobedience to court orders or directions. The plaintiff had the carriage of the action. Upon the UCPR coming into force on 1 July 1999 the parties were subject to an implied undertaking to proceed expeditiously.[7] The defendants were prepared to let sleeping dogs lie until the plaintiff sought to reactivate the action.
The causes of delay
[33] Although there has been some delay when the solicitor responsible for the conduct of the action left the employ of the plaintiff’s solicitors and the file was misplaced, it cannot be said that the plaintiff’s solicitors have been dilatory.
[34] Their ability to progress the action has been hampered by a lack of instructions from the plaintiff, effectively he did not keep in touch with his solicitors and ignored their attempts to communicate with him until they tracked him down after considerable efforts and spoke to him by telephone on 24 August 2006.
[35] The plaintiff’s explanation for not progressing the action, keeping in touch with his solicitors or responding to their communications was because he was depressed, ‘not thinking straight’ and unable or unwilling to make decisions and because of his concern about costs. He ‘buried [his] head in the sand’ and did not realise until the contact in August 2006 that he still had a chance of pursuing his claim.
[36] As to costs, it appears the action was being conducted on the basis of the plaintiff paying for outgoings. The payment of costs is contingent on the outcome.
[37] The plaintiff’s explanations were not contraverted and appear consistent with his injuries and their physical and mental consequences which include incapacity, dependence, despondence, frustration and impecuniosity.
[38] It is material to note that in the event the plaintiff succeeds at trial the defendants’ breach of duty will be found to have caused the condition which has led to him not actively prosecuting the action. In this sense it may be said that there is reasonable explanation for the delay but the outcome is contingent on a trial in which the plaintiff is successful.
Whether striking out would dispose of litigation?
[39] The limitation period has long expired and striking out the action would conclude litigation between the parties with respect to the event of 14, 15 and 16 March 1995.
The effect of delay on a fair trial
[40] The onus is on the plaintiff to show that any prejudice the defendants, particularly the third defendant, may have suffered because of the delay would not lead to injustice to those defendants if the action is allowed to continue. There are a number of factors to be considered under this head.
[41] The first and third defendants were insured by a subsidiary of HIH and will not be indemnified by their insurer. The third defendant lodged a claim for assistance under the Australian Government HIH Claim Support Scheme and obtained it. The first defendant has not applied but there is evidence that assistance is available and it is submitted by the plaintiff that, although the grant would be discretionary, the fact that the third defendant has been granted assistance and that the first defendant appears to meet the eligibility criteria there are reasonable prospects of an application being successful.
[42] As I have already said the action is one in which the outcome of the trial depends not just on contemporaneous documents but on the recollection of those involved in the plaintiff’s signing of a document and who were aboard the dive boat up to the time the plaintiff suffered the decompression episode.
[43] The witness to the plaintiff’s signature, who may be the person who he says told him not to disclose the previous incidents and others who were on the dive boat have not been located. There is no evidence of statements taken from then and their memories are almost inevitably compromised at this stage.
[44] The factors referred to by McHugh J in Brisbane South Regional Health Authority v Taylor[8] about delay causing prejudice because the quality of the evidence may have ‘unrecognisably deteriorated’ or because evidence has been lost or not identified as available are relevant here.
[45] The third defendant deposes to the effect that she has little independent recollection of events apart from what is reflected in the contemporaneous documents due to the time since the injury.
Summary and conclusion
[46] The situation may in my view be summarised as follows. There has been delay in the institution and progressing of the proceedings which can at the very least be said to have been lengthy. The proceedings were commended four days prior to the expiration of the limitation period and the defendant served one day before the writ expired. The last step in the action occurred more than four years ago and the relevant events occurred 12 years ago.
[47] The pleadings have progressed to the stage of defence but there is a request for further and better particulars outstanding since 15 May 2000. The plaintiff has given disclosure and provided the defendants with some evidence bearing on liability and damages. There appears to be considerably more to be done before the action could be said to be ready for trial.
[48] The plaintiff has at best reasonable prospects of success in establishing liability not least because of delay. On the other hand the defendants have reasonable prospects of successfully defending the action.
[49] The contradictory position reflects that there are contentious factual issues. The evidence at trial will in a significant degree depend on oral evidence and the recollection of witnesses of events which took place 12 years ago.
[50] In my view the delay has materially compromised the defendants’ prospects of a fair trial of the action for reasons to which I have referred.
[51] The cause of delay has been the plaintiff’s failure to keep in touch with his solicitors and ignoring their attempts to communicate with them. His explanation for this is that the effect of the injuries he suffered on account of the defendants’ alleged negligence were that he did not pursue the action. If he is successful at trial this may constitute a reasonable explanation for the delay but the resolution of those issues would necessarily involve a trial.
[52] The factors canvassed weigh heavily against the plaintiff.
[53] I note that in the event that leave is not granted the expiration of the limitation period means that the plaintiff will no longer be able to pursue relief against the defendant and that there has been no disobedience to court orders or directions. These factors tend to weigh in favour of the plaintiff.
[54] By way of conclusion the combined effect of the various considerations[9] which I have canvassed in the circumstances of this case leads to the conclusion that the applicant should not have leave to proceed and that the third defendant’s application to have the claim dismissed for want of prosecution should be allowed. It is unnecessary to make the reinstatement order in respect of the first defendant.
Footnotes
[1] See Dr Edmonds report dated 8 June 1999.
[2] The rule provides leave is necessary if no step has been taken for two years.
[3] (1963) 109 CLR 490, 496.
[4] [2000] QCA 178.
[5] Ibid.
[6] See exhibits bound and marked ‘TMS-01’ affidavit of Patricia Mary Schmidt sworn 30 January 2007.
[7] UCPR 5(2).
[8] (1996) 186 CLR 541, 551.
[9] See for example Dempsey v Dorber [1990] 1 Qd R 418, 420.