Sheehy v Hobbs[2010] QSC 108

SUPREME COURT OF QUEENSLAND

1. McMeekin J: On 7 March 2007 the applicant, Catriona Sheehy, fell down a set of stairs at the respondents’ premises.  As a result she suffered incomplete quadriplegia as well as other significant injuries.  She seeks to claim damages against the respondents.

2. The applicant’s claim is governed by the provisions of the Personal Injuries Proceedings Act 2002 (PIPA).  On 1 March 2010 I gave leave to the applicant, pursuant to s 43 of PIPA, to commence proceedings in the court for damages because of the imminent expiration of the limitation period.  That leave was given without prejudice to the respondents’ rights.

3. The issue now for consideration is whether that claim for damages should be permitted to proceed further. It is common ground that the applicant failed to comply with s 9(3) of PIPA in that she failed to provide notice of her claim to the respondents within nine months of the occurrence of her injury. In those circumstances the legislation requires that she provide a reasonable explanation for the delay by separate notice: s 9(5) PIPA. The relevant non-compliance that the respondents have identified is the failure, they say, of the applicant to provide that reasonable explanation for the delay.  In response to that complaint a statutory declaration was sworn by Mrs Sheehy on 16 December 2009.  In that declaration Mrs Sheehy effectively gave the same account as she has done before me.

4. The application is brought pursuant to s 18(1)(c) of PIPA^[1] which provides, so far as is relevant, as follows:

“18Claimant’s failure to give part 1 of a notice of claim

(1)A claimant’s failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim unless –

3. The court, on application by the claimant –

1. declares that the claimant has remedied the noncompliance; or

2. authorises the claimant to proceed further with the claim despite the noncompliance.”

5. The respondents argue that the applicant is not entitled to the declaration under s 18(1)(c)(i) and that the court ought not to authorise the claimant to proceed further with the claim under s 18(1)(c)(ii) arguing:

1. The applicant has provided no reasonable excuse for the delay in giving notification of her claim;

2. The applicant has been aware of the strict time limits that the Act lays down for some years and despite that knowledge has failed to act promptly; and

3. The respondents have suffered significant prejudice because of the delay in notification of the claim.

6. The applicant contends that she has either provided a reasonable explanation for the delay that has occurred and so is entitled to a declaration that she has remedied any non-compliance with the legislation or alternatively that she should be authorised to proceed despite non-compliance in the circumstances that prevail, particularly in that there is no significant prejudice to the respondents. She denies knowing of the legislation’s requirements.

Explanation for delay – s 18(1)(c)(i)

7. The delay in question is a substantial one. A notice of claim was given in Form 1 on 20 October 2009, over 2 years and 7 months after the subject injury.

8. The applicant’s explanation is that she was initially very seriously injured and experienced a prolonged recovery period. Her means were limited, but she sought early advice from a solicitor who appeared to be competent and who appeared to investigate her claim adequately. His advice did not descend to any detail but was discouraging as to her prospects of success. She believed that the claim was not worth pursuing and it was only in 2009 at the urging of her friends that she contacted her present solicitors in May 2009. Thereafter there was difficulty in identifying the proper respondents as the registered proprietors of the premises. According to the applicant, this was all against a background that she was unaware of the strict time provisions in the Act for the giving of notice until she contacted those second set of solicitors.

9. I will look at the detail of the events more closely.

10. The hospital records show that the applicant expressed early interest in pursuing a claim for damages. There are entries in the Princess Alexandra hospital records on the 11^th and 14^th of May 2007 indicating an expression of interest in pursuing a claim.

11. A firm of solicitors was contacted and a solicitor visited the applicant when she was resident in a rehabilitation home attached to the Princess Alexandra hospital. Obviously she was still convalescing. According to a file note from the solicitor’s file that meeting occurred on the 12^th of October 2007.  The solicitor recorded: “Instructions taken for Part 1 and Part 2 PIPA notices”. 

12. Mrs Sheehy explained that the solicitor told her that he would have an engineer make an inspection of the stairs where the incident occurred and that he would then get back in contact with her. Mrs Sheehy says that she did not hear back from the solicitor and in the meantime moved to Yeppoon. She then contacted the solicitor again. Her account is to the effect that the solicitor indicated that he was not prepared to act on her behalf and would not take the matter any further. Mrs Sheehy maintains that he did not explain why he was not prepared to act further in the matter. She says that the solicitor told her that he had sent her a letter to that effect, a letter that she had not then, and has not to this day, received. Mrs Sheehy claims that no advices were given to her as to her prospects of success but she believed that effectively the solicitor was doubtful as to her prospects of success. Mrs Sheehy maintains that no advice was given to her as to the provisions of the PIPA legislation and specifically nothing said to her as to the existence of strict time limits.  Further no advice was given to her along the lines that she might seek a second opinion.

13. The solicitor’s account is somewhat different. He has produced two further file notes which evidence the following. On 6 November 2007 in a phone call to the applicant he recorded:

“Phone call to Catriona Sheehy to discuss the situation with her matter.

I advised that I have had a preliminary discussion with my engineer the other day and have asked him to look at a few other issues.

His preliminary view was not positive, but once I have discussed it further with him I will call her to discuss.”

14. The solicitor has recorded the matter as taking five minutes of his time. He explained that that did not mean that the conversation took five minutes but rather from opening and closing the file note five minutes elapsed.

15. The third file note was compiled on 25 March 2008 and records the following:

“Phone call to Katrina (sic) Sheehy to discuss her claim.

Advised that wqe (sic) could not recommend that she proceed with the claim.

I will dig up the letter of advice as she has nopt (sic) seen it.”

16. This file note records the time taken on the file as being some two and a half hours. The solicitor explained that he may have been taken away to another meeting or tended to another matter – the time did not necessarily reflect, and probably did not reflect, the time he spent with the applicant.

17. The solicitor acknowledged that whilst he had a good recollection of Mrs Sheehy he had no recollection of his conversations with her and gave his evidence based on his usual practice. He explained that he was an experienced personal injury lawyer and had practiced solely in that area for many years prior to these events.

18. Whilst I have no doubt that the solicitor was honest, there are significant difficulties in accepting that his evidence, based on his usual practice, is reliable. First there is no mention in his file notes of providing Mrs Sheehy with the advice that he says that he provided, namely that there were strict time limits under the legislation and that another solicitor might have a different view to his own.

19. Secondly, the file note of 6 November 2007 strikes me as quite odd in the circumstances. The legislation requires either that notice be given within nine months of the injury or within one month of consulting a solicitor, whichever first occurs. When the conversation of 6 November occurred, arguably the one month time limit prescribed by the Act for giving a Part 1 notice was only six days away. If the solicitor was as conscious of the imminent expiry of the strict time limit, as he would need to have been to have provided Mrs Sheehy with advice about her rights, then this was surely the time for that advice to be given. Mrs Sheehy had either to lodge her Part 1 notice or see another solicitor urgently. The giving of such advice is again not recorded but, as well, would be quite inconsistent with the tone of that file note. In my view the probabilities strongly favour the view that no such advice was given.

20. Thirdly the solicitor claims to have written a letter to Mrs Sheehy. She says that she has never received it. No copy of the letter could be produced by the solicitor. Again all the evidence is consistent with the letter not having been written and again consistent with the usual practices not being followed.

21. Quite apart from the documentary evidence, Mrs Sheehy was an impressive witness. She said that she would have been acutely conscious of any advice to the effect that a second opinion might be worth while and that she had to act within a certain number of days or that there was a restrictive time limit and she was confident that no such advice had ever been given to her. I believed her. She certainly had every reason to act if such advice had been given.

22. Mrs Sheehy swore in her affidavit that she knew little about legal processes, had a grade 10 standard of education and had no other qualifications. She had worked in non-skilled or semi-skilled positions she said and gave as examples hairdressing, for which she did not complete her training, and retail sales. She says that she relied completely upon her then solicitor. She said that a significant matter for her was the possible cost of any litigation as she had only limited means. The first solicitor declined to act on a speculative basis.

23. I am satisfied that in all the circumstances Mrs Sheehy was not advised as to the existence of the strict time limits or the possible utility in a second opinion.

24. It is plain that she was either expressly told by the solicitor that he considered her prospects to be poor or that she drew that inference from whatever was said to her. The issue then is whether a person with Mrs Sheehy’s background, who had sustained a very serious injury, was justified in not seeking a second opinion and in assuming that there was no point to pursuing the matter further.

25. A relevant matter is to identify the supposed source of the respondents’ liability. Effectively the applicant’s contention is that she slipped at the top of the staircase due to the condition of the stairs or of the carpet that was there in place. Mrs Sheehy’s knowledge was effectively that an apparently competent solicitor had engaged a presumably competent engineer who was accustomed to practice in this area, that engineer had inspected the scene and the solicitor had declined to be further involved. The solicitor says that he made it plain to the applicant that he was not satisfied there were sufficient prospects for him to continue with the matter on a speculative basis.

26. I accept that the question of the reasonableness of the explanation “must be considered objectively but having regard to the claimant’s personal characteristics such as his age, intelligence and education”: Piper v Nominal Defendant [2003] QCA 557; [2004] 2 Qd R 85 per Davies JA at [14] in relation to an analogous question arising under the Motor Accident Insurance Act 1994 (Qld).

27. In Perdis v Nominal Defendant, Williams JA considered the effect of the engagement of an apparently competent solicitor on this question of “reasonable excuse,” again in the context of the Motor Accident Insurance Act 1994:

“The question will always be whether or not the claimant had “reasonable excuse” for the failure to comply with the statutory requirement.  It may not always be sufficient simply to say that a solicitor was engaged during the relevant period.  Where the solicitor appears to have knowledge of the relevant law, and give specific advice (though incorrect) to the claimant, it would be difficult to conclude that the claimant acted unreasonably in relying on that advice.  If it was obvious to a reasonable person in the position of the claimant that the solicitor retained was not acting appropriately, then it may well be that it would not be sufficient for the claimant to explain away the failure to comply with the statutory requirement by saying a solicitor was retained.”^[2]

28. Here the applicant had a limited education and no knowledge of legal matters or procedure. She was ignorant of the time provisions in the legislation. She consulted a solicitor who was competent. He gave every appearance of that competence in advising her that he had retained an engineer to examine the question. The effect of what she was told was that she did not have a claim that that solicitor considered worth pursuing. She had limited funds. The only criticism that can be made of her conduct is that she failed to seek a second opinion. At the time she was living in Yeppoon, a small coastal settlement some distance from Rockhampton, where only a few solicitors practise and, so far as I know, none specialise in personal injury work or accept instructions on a speculative basis. Indeed few solicitors in Rockhampton do, to my knowledge. The applicant has the added disadvantage that she cannot get about easily. She is a partial quadriplegic confined to a wheel chair. In the circumstances it seems to me to be putting the bar too high to expect someone in the applicant’s position to have persisted further than she did.

29. There remains the delay after she consulted her second set of solicitors. She saw those solicitors on 13 May 2009 yet no notice was given for another 5 months or so. The delay was caused in identifying the name of the registered proprietor of the premises. The significant delay occurred because the applicant was unable to provide her solicitors with the address of the unit where she was injured. Again her physical restrictions are relevant. The applicant obviously has significant restrictions on her ability to travel from her residence in Yeppoon to Brisbane to make personal enquiries.  She relied on others, and it took some time before she was in possession of the address of the unit.  A search was promptly conducted by the solicitors once they had the address and the wrong owner identified.  By the time that error was corrected another month had passed.

30. A relevant factor through the whole of the delay is that Mrs Sheehy is in constrained circumstances. She says that she has limited funds available to her and clearly she needed a solicitor to act on her behalf who was prepared to act without payment unless successful in the matter. In my view that is a significant matter.

31. Where a potential claimant does not have the funds to retain a solicitor to act on her instructions to institute a claim then she must rely upon the goodwill of any solicitor she consulted to act on a speculative basis. There is a distinction between a person of means and a person without means. The former can instruct a solicitor to proceed and the solicitor will proceed, irrespective of his or her opinion as to prospects, provided appropriate advice has been given. The latter does not have that luxury. As McGill QC DCJ identified in Askew v Eacham Shire Council [2006] QDC 079, the effective excuse proffered in these circumstances is one of poverty.  In holding that an excuse so based was a reasonable one his Honour said:

“It is difficult to believe that the intention of the legislature was that people who needed special assistance to comply with the requirements of the Act and were unable to afford that assistance would thereby be shut out of potentially good claims.  The legislature of Queensland could not have intended in that way to discriminate against those citizens who suffer the disadvantage of poverty.  In my opinion, poverty is certainly capable of providing a reasonable excuse for an activity.”^[3]

32. I agree with his Honour’s approach.

33. In my view the applicant remedied her non-compliance with the Act when she provided a reasonable excuse for the delay to the respondents by separate notice when she provided the statutory declaration setting out that explanation in accordance with subsection 9(5) of the Act.

Sub-section 18(1)(c)(ii)

34. The applicant sought an order pursuant to s 18(1)(c)(ii). Given my decision that an adequate explanation has been given for the delay there is no need for me to go on to consider this question, but I will briefly mention my view.

35. I would have allowed the application and authorised the claim to proceed.

36. First, there is no evidence that the claim is a futile one.

37. Second, the significant matter to consider in relation to this issue is one of prejudice and I am not persuaded that the potential prejudice is so significant in this case. The respondents have lifted up the carpet on the stairs and disposed of it in the course of normal maintenance. They did so without notice of the claim. Thus they have been deprived of the opportunity of having an expert examine the carpet in situ.

38. I accept that whilst the applicant’s case is not limited to the state of the carpet it would seem likely that the state of the carpet would potentially be a significant factor in the resolution of the issue of the respondents’ liability for the injuries suffered.

39. The difficulty with the respondents’ contention is that there are evidently a number of witnesses available to the respondents who were well familiar with the carpet at the material time, and the engineer retained by the applicant, Mr McDougall, is potentially available. There is no property in a witness. Reports exist as to the state of the stairwell both before and after the date of the incident.

40. Third, there was no contumelious disregarding of the legislative requirements here.

41. Fourth, if the application was refused the applicant would be kept out of a potentially meritorious claim, and if meritorious, one deserving of very significant damages.

42. Fifth, whilst notice of the claim was late in the context of the PIPA provisions, notice was still given well within the limitation period.

Conclusion

43. The only remaining matter is whether there ought to be some special provisions made in order to minimise any prejudice to the respondents: see s 18(2) of PIPA. 

44. No submission was made that I should make any special provision. I will give the respondents leave to make submissions on that issue.

45. I declare that the claimant has remedied the non-compliance in the Notice of Claim.

46. I will hear from the parties as to the precise form of any further orders that they consider appropriate, in the light of these reasons.