Sheehy v Hobbs [2010] QSC 108

Sheehy v Hobbs (No 2)

[2010] QSC 171 

[2010] QSC 171[2010] QSC 171

The applicant suffered a fall down the stairs of the respondents on 7 March 2007 and suffered incomplete quadriplegia.  She was hospitalised in Brisbane for an extended period of time before returning to Yeppoon.  On 1 March 2010, leave was given for the applicant pursuant to s.43 of the Personal Injuries Proceedings Act 2002 (Qld) to commence court proceedings without prejudice to the respondents (given the imminent expiration of the limitation period). The matter returned to his Honour McMeekin J to determine whether the claim was to proceed further and in particular the “reasonableness” of the explanation for the delay and for an order pursuant to s.18(1)(c)(i).

The applicant’s delay was exacerbated because her first solicitor after some considerable time advised the claim did not have the requisite prospects of success, which were sufficient to conduct the matter on a speculative basis.

His Honour considered the evidence of the applicant and her first solicitor as to the ‘usual practice’ of the solicitor and preferred the evidence of the applicant that she was not told as to the strict time limits or to seek a second opinion:

[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.

 

Question of reasonableness – competency of the solicitor and poverty

His Honour next considered the period of delay in seeking the opinion of another solicitor and to what degree the competency of the solicitor can provide a ‘reasonable excuse’:

[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

His Honour was satisfied on the grounds of her education, financial and limited mobility as to the reasonableness of accepting her first solicitor’s advice and delay in seeking a second opinion. The issue then came down as to the delay once she consulted the second lawyers; there was another 5 months. The delay was due to ascertaining the correct address of the unit and it’s owner. The delay was in so small occasioned by her financial position and reliance on others and her lawyer acting on a ‘speculative’ basis.

Poverty as a ‘reasonable excuse’

[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.

2 [2003] QCA 555 at [26]

3 [2006] QDC 079 at [21]

His Honour was otherwise satisfied the respondent’s prejudice because the carpet which had since been disposed of could not be remedied or allayed by reference to other evidence and witnesses.

Brisbane Barrister – David Cormack

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