Adams v Vesco Nominees Pty Ltd

[2004] QDC 305

DISTRICT COURT OF QUEENSLAND

CITATION:

Adams v. Vesco Nominees Pty Ltd & Ors [2004] QDC 305

PARTIES:

CAROL ANN ADAMS (Applicant)

v.

VESCO NOMINEES PTY LTD (First respondent)

and

JO-JO’S RESTAURANT PTY LTD (Second respondent)

And

PUNCH JOSEPH & ASSOCIATES
KEENDOVE HOLDINGS PTY LTD (Third respondent)

And

DEKARIDGE PTY LTD (Fourth respondent)

FILE NO/S:

BD2936 of 2004

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

10^th September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

8^th September 2004

JUDGE:

Forde DCJ

ORDER:

The application pursuant to s.18(1)(c)(ii) is dismissed.1.   

Applicant to pay the Respondents’ costs of the application to be assessed.2.   

CATCHWORDS:

PERSONAL INJURIES PROCEEDINGS ACT 2002 – COMPLIANT NOTICE OF CLAIM – LEAVE TO COMMENCE PROCEEDINGS – Expiration of Limitation period – Delay – Prejudice - Estoppel

Personal Injuries Proceedings Act 2002 (Qld) ss 9, 12, 18, 43, 59

Limitation of Actions Act 1974 (Qld)

Gillam v State of Qld & Ors. [2003] QCA 566 Hardwick v. Vanderfield Holdings Pty Ltd (2003) QSC 468
Kash v. SM & TJ Cedergren Builders and Ors (2003) QSC 426
Miller v. Nominal Defendant (2003) QCA 558 Nicholls and Ors. v. Brisbane Slipways and Engineering Pty Ltd. [2003] QSC 193

Patterson v Baptist Union of Queensland & Anor[2004] QCA 146
SG v Queensland [2004] QCA 215 Thomas v Transpacific Industries Ltd. (2003) 1 Qd R 328 Walton Stores (Interstate) v Maher (1987-1988) 164 CLR 387

COUNSEL:

Mr M Byrne for the Applicant

Mr S Farrell for the First Respondent

Mr M Barry Solicitor for the Third Respondent

Mr T Hancock Solicitor for the Fourth Respondent

SOLICITORS:

A M McNally Solicitors

Barry & Nilsson

Carter Newell Lawyers

Quinlan Miller & Treston

Introduction

1. The applicant, Carol Ann Adams, was six months pregnant when she was proceeding on an escalator from the Queen Street Mall to J0-Jo’s Restaurant on 24 April 2001. A piece of protruding steel cut into her left ankle, shearing off a large piece of flesh. Little did she know that between that date and the present she would become another victim of the “labyrinth” which is the Personal Injuries Proceedings Act (the “Act”)[1]. In order to pursue her action, the applicant requires the court under s.18(1)(c)(ii) of the Act to authorise her to proceed further despite non-compliance with s.9.

   [1] per McMurdo J. in Kash. V SM& TJ Cederen Builders and Ors. (2003) QSC 426 at para.2

1. The proceedings became statute barred on 24 April 2004. The present application seeks to proceed notwithstanding it would be subject to the Limitation of Actions Act and without an application under s.59 of the Act. A court may allow an applicant to proceed under s.59 after the limitation period has expired if there has been a complying notice given under s.9 before the period of limitation has ended. There is no application to extend the time under s.31 of the Limitation of Actions Act.

1. The present application does not seek to proceed against the respondents other than the first respondent, Vesco Nominees Pty Ltd.  However, the third and fourth respondents were served and were represented.  They sought to support the first respondent’s position.  It is convenient to refer to the respondents’ arguments.  The third respondent was the managing agent of the premises where the accident occurred.  The fourth respondent provided cleaning services to the premises.

Factors relevant under s.18(1)(c)(ii)

1. The extent of the delay

1) For convenience, a chronology is attached to these reasons. The applicant served a Notice of claim pursuant to s. 9 of the Act on 19 January 2004. It was served outside the time period required under s.9. The applicant consulted her solicitor on 8 May 2001. The Notice of Claim should have been given by 29 December 2002.[2] The insurers for the first respondent initially were prepared to treat the matter without reference to the Act, but by 24 November 2003, required a Notice of Claim. There was a delay of approximately three months with no explanation for the delay. It was not until 21 May 2004 that an explanation was provided. This was outside the limitation period.

[2] ss 9(3)(b), 77A(3); Patterson v Baptist Union of Queensland & Anor[2004] QCA 146.

2) The applicant is required to provide a reasonable excuse for the delay only under s.9 . However the whole period for the delay should be explained for the purposes of s.18: Patterson para 52[3]; Gillam para 27[4]. One can understand that if the insurers were willing to negotiate without regard to the Act then part of the delay is explained. However, by January 2003 when other parties were involved, and who were not part of the initial arrangement, steps should have been taken to comply with the Act. A timely application under s.43 would have sufficed. In order to comply with the Act, a statutory declaration was required to explain the delay. The applicant’s solicitors provided the following grounds for the delay:

[3]Patterson v Baptist Union of Queensland & Anor[2004] QCA 146.

[4]Gillam v State of Queensland & Ors (2003) QCA 566 para 27.

“My practice is a busy general practice, with only a handful of personal     injury actions. I depend upon the online OQPC legislation. I was unsure as   to the effect of the various amendments made pertaining to PIPA because      of time constraints in my practice. I was unable to conduct a thorough         research of the legislation and manually consolidate the legislation. I was   originally under the misapprehension that PIPA did not apply to this matter    because of s. 6(2) of the original Act but since then was unable to establish     with any certainty how my client’s case fitted into the PIPA or civil   liability legislation. In any event, I relied upon the representation by Royal            and Sun Alliance on 11 December 2002 that that insurer was prepared to         treat the matter without reference to PIPA and thereafter concentrated upon attempting to negotiate the matter. In any event, if Royal and Sun Alliance         had insisted on a Notice of Claim at around 11 December 2002, I would            have given them one as requested at that time and would, in the normal      course of business attended to any anomalies within the Notice of Claim.

I can only explain that the delay was caused by:

(a) An understanding with Royal and Sun Alliance that negotiations would           occur without reference to PIPA, which negotiations took twelve months;
           (b) My uncertainty as to the application of this matter of the various          amendments to PIPA;
(c) The pressure of a busy general practice to manually consolidate the various amendments to the Act
           (d) The fact that my client’s injuries took time to stabilize before expert     medical evidence could quantify the impairment caused by the incident;
(e) My misapprehension as to the applicability of the Act or the procedures to be followed with respect to a matter that predated PIPA especially when there was an agreement not to refer to PIPA during negotiations;
           (f) The total non-response by the other entities to the Notice of Claim        served upon them by Vero
           (g) The confusion enunciated by Vero in their letter of 24 November 2003            as to whether PIPA applied”.[5]

[5] (para. 52-3 of the affidavit of Mr. McNally).

3)        The applicant should not be punished for the incompetence or delay by her           solicitor:  Hardwick v Vanderfield Holdings Pty Ltd (2003) QSC 468 per Douglas J. at para.7; Gillam v State of Qld & Ors. [2003] QCA 566 at para. 23. The significant delay at least in April 2004 whilst the applicant had the Statutory Declaration seems crucial. Had the reasonable excuse been provided then it was more likely that the Notice of Claim could have been compliant prior to the expiration of the limitation period. It has not been adequately explained. It is of some significance that the applicant has not filed an affidavit.[6] The Notice of Claim was accepted as compliant on   13 July 2003.

[6]Patterson para 52.

1. Prejudice to the respondents

A statement was obtained from a cleaner, Mr. Richard Tyrna.  He stated that on the day of the accident he observed a couple with a stroller drag it onto the escalator.  He later observed the edge of the aluminium strip near the bottom of the escalator bent up slightly.  This was after the accident.  He assumed that the couple who has been taking the pram or stroller onto the escalator may have damaged it.  He was uncertain.  Mr. Tyrna has since died.  It was not revealed when he died.  His statement may be proved and is dated 29 May 2001.  There is no evidence which satisfied me that any delay referable to the applicant has caused prejudice to the respondents.  

Prejudice to the applicant

1. Even if this application succeeds, the applicant faces a plea relying on the expiration of the limitation period. There is no material which has been put before the court which could relate to an application under s.31 of the Act. It is also noted that application under s.59 has not been made.

1. The strength of the applicant’s case

The protrusion of a piece of metal is of itself a hazard.  Mr. Tyrna was responsible for cleaning up and removing hazards.  Once he became aware of the problem he took steps to close off the escalator and have it repaired.  Evidence of the extent of the supervision and removal of hazards procedure would be relevant. It was unnecessary to show a prima facie case, but the absence of anything to indicate liability in the respondent is a relevant factor in the exercise of the court’s discretion.  It cannot be said that the applicant has a strong case against the respondent in negligence: Thomas v Transpacific Industries Ltd. (2003) 1 Qd R 328 at 339-340. There is no evidence that other accidents had occurred that day. The problem was attended to soon after the accident. Presently, it is difficult to reach a conclusion that there is some evidence of negligence by the respondents. There is no substantial material indicating the applicant’s prospects of success.[7]

[7]Patterson para 52.

Relevance of the Limitation Period to an application under s.18(1)(c)(ii)

1. The applicant contends that an application under this section can be made notwithstanding that the limitation period has expired.  Reliance was placed upon the case of Nicholls and Ors. v. Brisbane Slipways and Engineering Pty Ltd. [2003] QSC 193. Certainly, an application under s.43 must be within the limitation period subject to s.20(2): SG v Queensland [2004] QCA 215 per Williams J. Such an application could have been brought by the applicant prior to 24 April 2004.

1. Nicholls case involved an application under s.18(1)(c)(ii) but it also involved s.77D. The latter section was relevant to cases where the limitation period ended between 18 June 2002 and ending 18 December 2003. That section is not relevant to the present case. Those matters are relevant when considering the application of Nicholls case to the present case.  The Notice of Claim was given on 23 May 2003 which was before the expiration of the limitation period allowed for under s.77D(2)(a).

1. If her honour had been satisfied that the Notice of Claim was compliant then leave to proceed would have been given under s.77D(2)(a): para12.  Because there were still some prospects of the Notice of Claim being compliant and the extended limitation period under s.77D(2)(b) being apposite, leave was given subject to certain conditions.  Those parameters do no apply in the present case.

Compliant Notice

1. The applicant argues that the Notice of Claim is deemed to be compliant because the first respondent failed to comply with s.10(1) within the required period. If that is correct, then the Notice would be within the limitation period. S.10 requires the respondent to give a notice under s.12 within one month after receiving the Notice of Claim. S.12(2) requires the respondent to state whether the notice is compliant, identify any non-compliance and if compliance is not waived, to allow the claimant a reasonable period to comply.

1. A letter dated 2 February 2004[8] was sent by the first respondent’s solicitors to the applicant’s solicitors. It clearly set out the requirements of s.12(2). It stated that it required details in a statutory declaration of the reasons for the delay and also an answer to question 4 of the Notice of Claim. It added “…our client does not waive your client’s non-compliance in this regard. In my view, this was adequate compliance with ss.10 and 12.

[8] (Ex.Y to the affidavit of Mr. McNally)

Estoppel

1. Although this aspect of the written submissions was not developed at the hearing it is necessary to deal with same.  The written submission stated:

“19. Further, by its representation to treat the claim without reference
PIPA the respondents are estopped from asserting that proceeding under PIPA is  prevented because the limitation period has expired or alternatively has waived the requirement that Notice of Claim be served within the limitation period”.

1. The type of estoppel relevant to the case would only arise if there is reliance by the applicant and which results in some detriment:

“The nature of an estoppel in pais is well established in this country.
A party who induces another to make an assumption that a state of affairs exists, knowing or intending the other to act on that assumption, is estopped from asserting the existence of a different state of affairs as the foundation of their respective rights and liabilities if the other has acted in reliance on the assumption and would suffer detriment if the assumption were not adhered to” Walton Stores (Interstate) v Maher (1987-1988) 164 CLR 387 at 413 per Brennan J; see also Mason C.J.Wilson J. at 406.

1. In the present case it has not been established that by the parties initially proceeding without regard to the PIPA legislation that it was causative of the detriment leading to the expiration of the limitation period. As early as 24 November 2003 the insurer for the first respondent asked for compliance with the Act by the delivery of a Notice of Claim. The estoppel argument fails.

Conclusions

1. A satisfactory explanation has not been given in the present case for the material delay particularly in the first four months of 2004. The applicant’s prospects of success in the trial are problematical. I am not satisfied that there is some or sufficient evidence at this point to prove negligence. The action is statute barred. If the applicant were to proceed further the Limitation of Actions Act would become relevant. This aspect has not been determined on this application. There was ample opportunity to avoid the consequences of that legislation and to comply with the Act.

Order

The application pursuant to s.18(1)(c)(ii) is refused1.          .

Applicant to pay the Respondents’ costs of the application to be assessed.2.