Sinclair v Hansson[2008] QSC 250

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

FRYBERG J

No 6197 of 1998

BRISBANE 

DATE 07/10/2008

ORDER

HIS HONOUR:  The plaintiff seeks leave to proceed pursuant to rule 389 of the Uniform Civil Procedure Rules, no step having been taken in the proceedings for more than two years.  The proceedings were commenced on the 8th of July 1998.  In a statement of claim filed on the 4th of August 1998, the plaintiff alleges that he was assaulted by the first defendant, a police officer, at Caloundra.  He pleads that the second defendant was vicariously liable for the conduct of the first defendant. 

The claim proceeded in what counsel for the plaintiff described as the normal course from 1998 to April 2000.  That appears to refer to the somewhat desultory progress which the claim made over that period. 

In April 2000, it was not far from being ready for trial.  The progress was then interrupted by the plaintiff's imprisonment in Victoria from April 2000 until February 2001.  Proceedings then resumed and the matter went to mediation in the middle of 2002.  It did not settle.  Presumably in mid-2002 the defendants were content with the particulars which they then had.

In February 2003, the plaintiff's then solicitors served a request for trial date on the defendants' solicitors.  That is less than eight months after the mediation.  The defendants asserted that they required more particulars of the plaintiff's statement of loss and damage.  They refused to execute the request.  Whether that was the real reason for the refusal is uncertain as on the 19th of November 2003, the first defendant served a list of documents and a statement of expert and economic evidence on the second defendant and, I infer, on the plaintiff.  In mid-2003 the plaintiff's solicitors served some eight notices of non-party disclosure.  They did not seek to have the matter listed for trial notwithstanding the refusal of the defendants to sign the request for trial date.  There was correspondence in 2004 and since then no steps have been taken and the plaintiff's side has not been responsive to numerous requests made by the second defendant and warnings of the consequences of the effluxion of time given by that defendant.

The plaintiff has made an affidavit which was produced only this morning and has not been cross-examined.  The plaintiff in it seems to assert that he has kept in touch with his previous solicitors and also asserts that he has suffered from ill-health and impecuniosity from time to time over the intervening period.  He does not anywhere exhibit his correspondence with his own solicitors, nor does he assert the truth of anything contained in that correspondence.  However, that correspondence is before me because the second defendant has read an affidavit filed by the plaintiff's previous solicitor in an application by him to seek to cease acting for the plaintiff.

It is apparent that the solicitor made strenuous efforts to energise the plaintiff in the period since 2004, all of them without success.  The plaintiff on some occasions did not respond to his solicitor and on other occasions responded with letters asserting that he was emotionally or physically unable to come to Queensland - he was in Victoria - and to give the necessary instructions which the solicitors were requesting for providing an updated statement of loss and damage.

I accept the evidence that the plaintiff was suffering from both physical and psychiatric disabilities as well as disabilities induced by his consumption of illicit drugs.  He was further disadvantaged by imprisonment for some time between 2004 and 2006 which no doubt inhibited his contact with his solicitor. 

The statement of claim reveals that the plaintiff claims that the first defendant punched him twice in the face inside a police car, pushed him in the right hip by closing a door upon it forcing him into a door pillar and forced him against a wall and unlawfully hit him continually with his fists.  The plaintiff claims unspecified damages for assault, aggravated and exemplary damages and interest.

His statement of loss of damage in 2002 asserts that the plaintiff has physical disabilities resulting in a four per cent permanent partial impairment of bodily functions and severe pain when doing heavy lifting work which inhibits his trade in stonemasonry and prevents his continuing with a business of general maintenance and like cleaning, painting and lawn mowing activities.  He also asserts that he has suffered in 2008 panic disorder, generalised anxiety disorder, dysthymic disorder and drug dependency in full sustained remission.  There is evidence to support the proposition that he is now in remission.  To what extent his psychiatric disabilities can be traced to the incident with the police officer is unclear. 

He does not claim special damages, but claims a total for past and future Griffiths and Kirkemeyer damages of $13,550.  He claims $35,000 for aggravated damages, $100,000 for exemplary damages, a little under $10,000 for past superannuation contributions, $5,000 for future medication, so that as can be seen from those figures, it is not at all clear that the matter could not now be tried in the District Court.  His physical disabilities are, in my judgment, significant and do influence my decision. 

The first defendant submits that the plaintiff has failed to give a proper explanation for the delay.  I think there is considerable force in that submission.  The delay seems primarily the result of the plaintiff's failure to contact his solicitors, a failure which I infer was contributed to by his illness, but which I still am not satisfied is properly explained.

The first defendant also submits that he has suffered specific prejudice as a result of the delay, in particular, the evidence discloses that attempts to contact a Dr Harrison, formerly of the Currimundi Seven Day Medical Centre have been unsuccessful.  The attempts are somewhat half-hearted.  The Medical Board and the AMA have been contacted, but no interstate search has been carried out and apart from the fact that no-one at the practice now knows where Dr Harrison is, the searches seem to have stopped. 

There is no evidence that the notes which Dr Harrison made are unavailable and Dr Harrison's referral of the plaintiff to the Nambour Hospital for psychiatric treatment and his subsequent treatment at the hospital no doubt can be obtained from documents.  It is asserted in the plaintiff's material that the hospital found nothing psychiatrically wrong with him at that time although on the first defendant's case, there is evidence that the referral was for anger management problems.

It is unlikely that even at the time of the preparation for trial in the early years of this decade, Dr Harrison would have remembered any more than was in the notes.  It is not suggested that at that time the first defendant had sought to obtain evidence from Dr Harrison, nor that any statement was desired.

I am far from persuaded that Dr Harrison would have anything to add to the documentary evidence which I assume is available.  The fact that the first defendant has not put before me any evidence suggesting that it is not available leads me to draw that inference.

The second defendant does not suggest that there was any specific detriment suffered by it.  However, the material discloses that the first defendant's conduct was the subject of disciplinary proceedings and also of an investigation by the then Criminal Justice Commission.  I was told from the bar table that the plaintiff's then solicitor had asserted that the first defendant was found guilty of misconduct by that Commission.  Neither defendant has chosen to put any evidence before me of the outcome of the disciplinary proceedings or the enquiry by the Criminal Justice Commission.  I infer that nothing that could be obtained from the records of those enquiries would be of assistance to the defendants.  The fact that such enquiries were held on the contrary suggests that the circumstances would have been investigated at the time more thoroughly than incidents of this sort are able to be investigated in civil litigation.

I have no doubt that the State of Queensland would be able to procure the documents relating to these enquiries and proceedings should it wish to do so.  I would be surprised if those acting early this decade had not done so.

The relevant principles have been set out in the judgment of the Court of Appeal in Tyler and Custom Credit Corporation Limited [2000] QCA 178.  The principles seem to me to bear both upon the plaintiff's application to which I've already referred and the applications of the defendants to strike out the matter for want of prosecution. 

The application of the second defendant was the first in time and it is that application which seems to have provoked the plaintiff's cross-application for leave to proceed.  The first defendant simply seems to have hopped on the band wagon after both of those applications were filed.

There are a number of factors which are relevant to the exercise of the discretion.  The delay is of course a most important one and here the delay is very considerable.  The litigation was commenced 10 years ago and the period of delay can probably be dated at least from 2004.  There may be some relatively short periods of delay before that attributable to the plaintiff but most of the delay before that - and it was not terribly great - is, I think, no more the plaintiff's fault than that of the defendants. 

The plaintiff's prospects of success are difficult to assess.  His solicitors have changed and the former solicitors will not release their file.  I see no reason to think that the prospects of success are dim.  If the plaintiff's then solicitor was asserting a finding of misconduct against the first defendant, one might think that the plaintiff's prospects were quite favourable.  The assertion may or may not be true, but it's a matter which does not lead me to think that the plaintiff's prospects are other than good.

I have referred to the vulnerability of the plaintiff in terms of his psychiatric disability.  His imprisonment and disabilities have no doubt resulted in his lacking financial wherewithal, but the evidence does not extend to a direct assertion that impecuniosity has contributed to the delay.  I do not find that that is a factor.

The litigation had progressed to a very substantial extent and although it would need updating, the matter would not be now thought to be far from ready for trial.  As I have said, on the whole, I think that the explanation for the delay is only partial and is less than completely satisfactory.  On the other hand, the fact that the plaintiff has sound prospects of success and the absence of any substantial detriment to the defendants - I have said why I do not think the first defendant has such a detriment in relation to Dr Harrison - outweigh that factor. 

On balance, I think the plaintiff should be allowed to proceed.  I take into account in making that assessment the somewhat unusual circumstance that this is a claim against a police officer for an assault in the course of his duties.  It seems to me that the Court should be slow to strike out such a claim, a claim in which the public as well as the plaintiff would have an interest in circumstances where it seems the plaintiff is now keen to progress it.  If it is not progressed with expedition in the future, of course, then things might be different.

I propose to grant the plaintiff's application and dismiss those of the defendants.  I ask counsel to prepare and bring in a draft.