Stimpson v O'Toole & Anor

The Court considered whether a District Court order which had been made in the applicant’s favour pursuant to s 57(2)(b) Motor Accident Insurance Act 1994 giving her leave to commence a proceeding within the time specified in the order extended to a fatal injury claim which had not been part of her claim at the time the order was made. The Court held that it was in the interests of justice to make the order she sought and that it was appropriate that the discretion under s 16 Civil Proceedings Act 2011 operate in her favour. She was granted leave to amend her claim and statement of claim to pursue a dependency claim.

Bowskill CJ and Mullins JA and Boddice J

7 October 2022

The applicant’s de-facto partner had been fatally injured by the respondent’s vehicle whilst crossing the road on 8 October 2016. [1]. She alleged that she has suffered psychiatric injury since. On 6 September 2019, out of time, and after instructing lawyers on 4 September 2019, she gave a notice of accident claim form (non-fatal injury) to the second respondent. [2]. On 24 September 2019 and by consent an order was made in the District Court enabling the applicant to commence proceedings within 60 days of the occurrence of one of the events specified in the order. [3]. Thereafter on 22 October 2019 the second respondent admitted full liability for the accident. [4]. Subsequently, the applicant advised the second respondent of her intention to pursue a dependency claim. [5]. The second respondent did not accept that the consent order dated 24 September 2019 preserved the limitation period for all claims made by the applicant arising from the accident, including the fatal injury claim. [7].

At first instance the primary judge found in the respondents’ favour. [10]. The applicant argued, inter alia, that his failure to consider the matter pursuant to s 16 Civil Proceedings Act 2011 and give reasons why leave should not be given pursuant to that provision to amend the claim in the proceeding to include the dependency claim was in error. [17].

Did an order under s 57(2) Motor Accident Insurance Act 1994 obtained on a notice given under s 37 for a claim for psychiatric injuries arising out of the death of the applicant’s de-facto extend to a claim for loss of dependency?

The applicant sought to argue that given the definition of “personal injury” includes a fatal injury, in consequence the definition of motor vehicle accident claim means a claim for damages “that can extend the one claim to cover both a claim for damages for personal injury and a dependency claim arising out of the same accident.” [25].

The Court was not convinced. Put simply the order did not apply to the dependency claim. The argument based on the definition of motor vehicle accident claim was incompatible with both the scheme of the Act and the requirement of s 37(1) that a notice of claim must be given before bringing a proceeding based on the claim. [28].

Did 16 Civil Proceedings Act 2011 apply to give the Court a general discretion to allow an amendment to join a cause of action outside the limitation period where r 376 UCPR did not apply since the pre-condition in r 376(1) was not satisfied?

Here, when the action was commenced the limitation period for the dependency claim sought to be joined had already expired.

In the Court’s view, the primary judge’s failure to specifically address that aspect of her application was erroneous. [34]. The Court noted that s 16 confers a general discretion to permit the amendment of a claim and statement of claim despite the Limitation of Actions Act 1974. [37].

Referring to Draney v Barry [2002] 1 Qd R 145, where s 81 of the Supreme Court of Queensland Act 1991 (the predecessor of s 16) was considered, the Court noted that it had been held by McMurdo P and Pincus JA (at [2] and [23]) that where applications do not meet the requirements set out in r 376(4)(b) to add a new cause of action, the court possesses a general discretion under s 81 to add a cause of action out of time, but that in exercising that discretion the court should have regard to the fact that the effect of doing so equates to an evasion of the provisions of the Limitation of Actions Act 1974. As such taking that course needs to be properly justified. The Court considered the reasoning in Draney regarding the condition in r 376(4)(b) as being equally applicable where r 376 does not apply because the condition in r 376(1) is not satisfied. [36].

Here, both parties recommended that the Court exercise the general discretion provided for in s 16(2) in deciding whether to allow the amendment to add the new cause of action. [39]. The Court held that s 16 did have application in this instance and could be resorted to. The Court made it clear that:

“If the circumstances for r 376 of the UCPR to apply (pursuant to either r 376(1) or r 376(4)(b)) are not applicable to a particular case, then the general discretion under s 81 (now s 16 of the CPA) remained. It would usually be a relevant factor to take into account in the exercise of the discretion under s 16(2) of the CPA that r 376 of the UCPR was not applicable. How that factor is taken into account will depend on the circumstances of the case, so that it cannot be characterised as a factor that will affect the exercise of the discretion in one way only or the other way only.” [40].

The Court stressed that it is not the case where a party can continue to rely upon the limitation defence and r 387 of the UCPR following the successful amendment of a claim by leave to include another claim. [41]. That is because the effect of an order under s 16 permitting an amendment out of time is to evade the limitation period for the out of time cause of action added, as Justice Pincus clarified in Draney at [23]. It follows that s 16(4)(a) of the Act operates to deprive a defendant of a limitation defence when a plaintiff successfully obtains an order under s 16(2). Rule 387 has no application to an amendment allowed by the Court in the exercise of the power conferred by s 16(2) Civil Proceedings Act 2011. [43].

In the event, the Court’s view was that the interests of justice favoured allowing the cause of action to be added out of time pursuant to s 16 of the Act. [50].

The appeal was allowed, and the orders made at first instance were set aside. [66].

A Jarro