Discretion under s.43 of PIPA is unfettered

Nestorovic v Milenkovic [2010] QSC 143

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 [2002] 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 [2004] 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

[2004] 2 QdR 64, Piper v. The Nominal Defendant [2004]

2 QdR 85 and Miller v. The Nominal Defendant [2003] 38 MVR 416.

Facts

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

treatment.

(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

foot.

(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

year.

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 [2005]

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

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