Her Honour Margaret Wilson J in an ex tempore judgment helpfully summarised the principles relevant to the exercise of discretion pursuant to section 43 of Personal injuries Proceedings Act 2002 (Qld) and held:
The discretion under section 43 is unfettered. It is to be exercised judicially, having regard to the object of the legislation. That said, a number of principles relevant to the exercise of the discretion have been identified.
(a) It is not necessary that an applicant demonstrate a
prima facie case against the respondent, but the absence
of anything to indicate liability in the respondent will
be a relevant factor.
See Thomas v. Transpacific Industries Pty Ltd  QCA 160 at paragraph 3 per McMurdo P, paragraph 32-34 per Davies JA, a case on section 39(5)(c) of the Motor Accident Insurance Act 1994.
(b) It is not fatal that an applicant does not satisfy the
Court hearing the application that he has a reasonable
excuse for not giving notice of claim under section 9
within the time prescribed in section 9(3).
See Gillam v. State of Queensland  2 QdR 251.
(c) Nevertheless, the extent of delay in giving notice of
claim, the adequacy of the explanation for the delay and
the likelihood of prejudice flowing from that delay are
all relevant to the exercise of the discretion in section
See Thomas v. Transpacific Industries Pty Ltd at paragraph 29 per Davies JA.
(d) There may be other relevant factors – for example, that
it was not until just before the expiration of the
limitation period that the applicant identified the
respondent as someone potentially liable. See, for
example, Gillam v. State of Queensland.
(e) The reasonableness of the excuse pursuant to section 9(5)
and its adequacy as a factor in the exercise of the
discretion under section 43 must be considered
objectively, having regard to the applicant’s personal
characteristics such as age, intelligence and education.
See the trilogy of cases on section 37(3) of the Motor
Accident Insurance Act: Perdis v. The Nominal Defendant
 2 QdR 64, Piper v. The Nominal Defendant 
2 QdR 85 and Miller v. The Nominal Defendant  38 MVR 416.
Both the applicant and respondent were members of the Free Serbian Orthodox Church at Vulture Street, South Brisbane. The applicant was permitted to live rent free on the churches property in return for general assistance and being the caretaker. The respondent was the verger of the church and also a self employed truck-driver. Twice a year he would collect candles from Melbourne and transport them to Brisbane for the church. It was customary for the applicant to assist in the unloading. On this occasion the respondent could only assist in a limited fashion because he was recovering from heart surgery. He asked the applicant to assist and directed him. In the process of unloading the truck the applicant fell from the trailer and fractured his right leg.
During his treatment the applicant opted for conservative treatment as he did not wish to give up smoking, which was a pre-requisite for surgery.
Furthermore, the applicant deposed that initially he did not wish to pursue a claim because the respondent was a member of his church:
“42. Prior to this I would not really have contemplated
pursuing a claim for compensation against the Respondent
as he is a fellow member of the church and a passing acquaintance, and it would have made things uncomfortable
for the church and its other members.”
However, the injury became worse and he was required to have surgery as he deposed:
It was not until 10 July 2009, two and a half years after the
accident, that he obtained the further advice of Dr Forster.
“47. I underwent further x-rays as recommended and saw Dr
Forster again for further review on 10 July 2009. On
that occasion Dr Forster advised me that there were
serious problems with the fractured bones in my foot and
ankle and that I would need to undergo surgery to repair
those bones if I was to have any hope of having an
improvement in my symptoms. Dr Forster informed me that
while he hoped to achieve some improvement with surgery,
the future was not bright and I was likely to be left
with a substantial disability in my right foot and ankle
as a result of my injury.
52. Until seeing Dr Forster on 10 July 2009 I had always
believed that my injuries and symptoms would eventually resolve with enough time and patience. In the event that
my injuries resolved, even if it took quite a long time,
I would not have elected to pursue a claim for
compensation against the Respondent. However, now that I
know that I will be left with a permanent disability and
my future looks quite bleak, I feel compelled to do so.”
Her Honour noted the applicant’s mental state was deteriorating and delaying the required information to commence the claim:
On 28 July 2009 he first contacted solicitors, and an appointment was arranged for 31 July 2009.
He attended that appointment, when
he was told what extra information the solicitors would need,
and on 4 August 2009, he contacted the solicitors and
instructed them to commence a claim.
On 1 September 2009 the applicant phoned the solicitors’
office and provided the street and suburb where the accident
occurred and the respondent’s address. The solicitors still
did not have the respondent’s full name or the name of his
business despite having their having told the applicant in the
first appointment that this information was necessary.
By 15 September 2009 the solicitors’ inquiries had led to the
proper identification of the respondent. The next day they
sent a Part 1 Notice of Claim to the applicant for signature.
He returned it approximately a month later, on 12 October
2009. That day the solicitors sent it to the respondent by
registered post. He received it on 15 October 2009. On 21 October 2009 the applicant underwent surgery.
Her Honour found the excuse provided by the applicant’s solicitor to be reasonable:
By letters dated 12 and 13 November 2009 the solicitors for the
respondent asserted to the applicant’s solicitors that the
notice of claim was out of time and that a reasonable excuse
for the delay had not been given. The applicant’s solicitors
proffered an excuse by letter dated 13 November 2009,
apparently faxed on 16 November 2009. They said:
“The Claimant hereby provides same, namely:
(i) Immediately after his accident the Claimant attended
upon Mater Public Hospital for treatment for his
injuries. He was advised by his treating doctors that
due to the degree of swelling in his injured ankle they
could not make a definitive prognosis or consider
surgical intervention at that time.
(ii) The Claimant’s treating doctors bandaged his injured
ankle and discharged him home on the basis that he be
strictly non-weight bearing and then return for periodic
review over the coming months in order to assess whether
his injury had stabilised to a sufficient degree to
permit them to make a further assessment of his
condition and the need for surgical intervention.
(iii) The Claimant attended at Mater Public Hospital for
numerous periodic reviews over the coming months,
stretching into years and also came under the care of a
general practitioner, Dr Comino at West End. His treating doctors persisted with conservative forms of
treatment and repeatedly expressed the hope that with
the passage of time and appropriate forms of
conservative treatment the Claimant’s injuries would
improve without the need for surgical intervention.
(iv) The Claimant relied upon the medical advice he received
and equally hoped and believed that with the passage of
enough time his injuries and symptoms would improve to a
sufficient degree to permit him to once again enjoy a
reasonable quality of life. The Claimant is not a
litigious person and he refrained from commencing a
claim for damages pending the outcome of his medical
(v) In the middle of this year the Claimant’s condition was
not improving and, in fact, his symptoms were becoming
intolerable and grossly debilitating. He ultimately
sought further specialist medical opinion from Dr Ben
Forster, orthopaedic surgeon, who recommended that he
undergo urgent surgery to repair his fractured ankle and
(vi) The Claimant underwent surgery in October 2009. He
remains significantly disabled as a consequence of his
injuries and ongoing symptoms and has experienced little
improvement consequent upon surgery; and
(vii) The magnitude of his injuries and the potentially
permanent and debilitating nature of his ongoing
symptoms was not apparent to the Claimant until he was
informed of the urgent need for surgery earlier this
The claimant refrained from commencing a claim for damages
based upon medical advice which was available to him and based
upon his genuinely held belief that his injuries would heal
and his symptoms improve and that he would be returned to a
reasonable quality of life.
When it became apparent to the Claimant that his belief would
not be fulfilled and that he will be permanently disabled as a
result of his injuries, the Claimant felt compelled to
commence a claim for damages. Same is eminently reasonable.”
Did the applicant provided a reasonable excuse? An injured
person’s hope or belief that his condition will improve with
time can afford a reasonable excuse for delay in giving notice
of claim. See, for example, the remark of Davies JA in
Thomas v. Transpacific Industries Pty Ltd at paragraph 37.
In Chapman v. The Body Corporate for Endeavour Inn 
QDC 018 Judge Alan Wilson SC observed:
“There will be cases in which such a belief is plainly
illogical and unjustified, and whether or not this is so will
ordinarily fall to be determined by reference to such factors
as the severity of the original injury, the nature and
duration of treatment for it and the presence and extent of
any ongoing symptoms (and questions of prejudice).
The obvious purpose of this legislation is to ensure putative
defendants are alerted to the risk of a claim at an early time
and to reduce the risk of embarrassment or prejudice. It is
equally clear, however, that the legislature did not intend to
penalise those with the fortitude to maintain a hope of
recovery so long as that was reasonable in the circumstances.”
In the present case the applicant was initially given two
options. Given the risks associated with surgery, he chose
conservative management. He persevered and attended as
recommended on his general practitioner and at the hospital,
but for the period from the latter half of 2008 into early
2009 when he was in deep depression.
I turn to the question of prejudice. The respondent relies
upon the prejudice which is inherent in the passage of time.
His own recollection of the accident has faded and he says he
has lost the opportunity to investigate the accident, but he
does not point to the death or disappearance of any particular
witness or the loss of any particular document. It is well
accepted that the mere passage of time can lessen the chances
of a fair trial. See, for example,
Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541.
In all of the circumstances I am persuaded that the applicant
should be given leave to commence a proceeding pursuant to
section 43 of the Personal injuries Proceedings Act. There
should also be a declaration that he has given a reasonable
excuse for his delay in giving a Part 1 Notice of Claim
pursuant to section 9(5) of the Act.
Brisbane Barrister – David Cormack