Cielo v Fitzgerald; Cielo v Keighran - [2015] QSC 330

SUPREME COURT OF QUEENSLAND

CITATION:

Cielo v Fitzgerald & Anor; Cielo v Keighran & Anor [2015] QSC 330

PARTIES:

JOSEPH MARIO CIELO
(plaintiff)
v
GARRETT FITZGERALD
(first defendant)
and

STATE OF QUEENSLAND
(second defendant)

JOSEPH MARIO CIELO
(plaintiff)
v
ROBYN KEIGHRAN
(first defendant)
and

STATE OF QUEENSLAND
(second defendant)

FILE NO/S:

BS No 8897 of 2005

BS No 8445 of 2007

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2015

JUDGE:

Peter Lyons J

ORDER:

Application dismissed.

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where the plaintiff claims damages for personal injuries against two doctors, alleged to have arisen out of treatment given by the first doctor in 2002 and 2003, and by the second doctor from 2003 until 2005 – where the defendants apply to strike the proceedings out on the grounds of want of prosecution – where the defendants rely on the long delay since the underlying events occurred, the absence of proper explanation for much of that delay, and the general presumption of prejudice – where the plaintiff commenced the actions within the limitation period, and preceded the actions with notices of potential claims – where the plaintiff claimed economic loss relating to, amongst other matters, arrangements made to manage a hotel owned by the plaintiff’s family, and gave the defendants a reasonably extensive explanation of this claim in June 2007 – where those arrangements were, in part, made with the plaintiff’s father who died in 2003, but primarily with other members of the plaintiff’s family – where, on 28 October 2010, the plaintiff did not attend a compulsory conference – where, at the end of 2010, the defendants made, and the plaintiff rejected, mandatory final settlement offers – where, from the plaintiff’s withdrawal of instructions at the end of 2010, until 30 May 2014, the plaintiff’s former solicitors refused to release the plaintiff’s files without arrangements being made for the payment of their costs – where the plaintiff made attempts to obtain legal representation from the end of 2010 until 2014 when representation was obtained –– where there was no suggestion that the defendant doctors’ contemporary records of the treatment given were not adequate – where there was no suggestion of any relevant omission from the reports and records of various medical experts who examined the plaintiff – where there was no suggestion of any difficulty with the medical experts giving evidence about causation, or the appropriate treatment standard at the relevant time – where the defendants’ submission that the plaintiff had poor prospects of success on any of his claims was not accepted – whether the plaintiff’s claims against the defendants should be struck out for want or prosecution – whether the defendants have suffered prejudice arising from the plaintiff’s delay in prosecuting the claims

Personal Injuries Proceedings 2002 (Qld), s 4, s 9, s 9A, s 20.

Uniform Civil…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QSC 330
Decision Date: 26 November 2015

CaseChat Overview and Summary

The proceedings were brought by the plaintiff, Mr Cielo, against two doctors, Dr Fitzgerald and Dr Keighran. Mr Cielo sought damages for personal injuries arising from treatment received from Dr Fitzgerald between 2002 and 2003, and from Dr Keighran from 2003 until 2005. The defendants applied to have the proceedings struck out for want of prosecution, arguing that the long delay since the underlying events, the absence of proper explanation for much of that delay, and the general presumption of prejudice warranted such an outcome. The defendants also contended that Mr Cielo had poor prospects of success on his claims. The court had to decide whether Mr Cielo's claims should be struck out for want of prosecution and if the defendants had suffered prejudice from the delay.

The court considered the submissions made by both parties and weighed up the competing considerations. The court found that Mr Cielo's delay was not wilful or the result of deliberate neglect, and that there was no evidence to show that the delay had prejudiced, or was likely to prejudice, the ability of the defendants to defend the claim. The court noted that the defendants were provided at an early stage with information about the claims, and that they were in a position to provide their responses by August 2007. The court also considered that the plaintiff's former solicitors refused to release the files or provide a copy of them, until May 2014. The court held that the applications should not be determined by reference to rigid rules but required a decision reached upon a balance of the relevant circumstances. The balance favoured dismissing the applications made by the defendants.

In conclusion, the court dismissed the application to strike out the proceedings for want of prosecution. The court found that the delay was not wilful or the result of deliberate neglect, and that there was no evidence to show that the delay had prejudiced, or was likely to prejudice, the ability of the defendants to defend the claim. The court held that the applications should not be determined by reference to rigid rules but required a decision reached upon a balance of the relevant circumstances. The balance favoured dismissing the applications made by the defendants. The court held that the submissions for the plaintiff pointed out the extent to which the defendants were provided at an early stage with information about the claims. They were in a position to provide their responses to the claims by August 2007. The plaintiff’s former solicitors refused to release the files or provide a copy of them, until May 2014. The plaintiff approached other lawyers between 2010 and 2014, in an attempt to secure representation in relation to his claim, without success. He was extremely unwell for large periods of time in this period. After May 2014, there were debates about the stage which the proceedings had reached, until October 2015. Any delay by the plaintiff was not wilful or the result of deliberate neglect. He now faces the potential loss of all his rights to compensation against the defendant. There is no evidence to show that the delay had prejudiced, or is likely to prejudice, the ability of the defendants to defend the claim.

The application was dismissed, and the proceedings were not struck out for want of prosecution.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

For reasons which will become apparent, it is necessary to examine in some detail the dealings between the parties. They may be better understood if this examination is preceded by an overview of the legislation which regulated the bringing of the proceedings by the plaintiff.Statutory background The bringing of each proceeding was regulated by the Personal Injuries Proceedings Act 2002 (Qld) (PIPA). It is convenient to commence with its main purpose, as follows: “4 Main purpose(1)The main purpose of this Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury.(2)The main purpose is to be achieved generally by—(a)providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and(b)promoting settlement of claims at an early stage wherever possible; and(c)ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement of trial; and(d)putting reasonable limits on awards of damages based on claims; and(e)minimising the costs of claims; and(f)regulating inappropriate advertising and touting.” Section 9 required that a Notice of Claim be served by the plaintiff on each proposed defendant before the commencement of proceedings. The notice was required to contain certain information, and to authorise each proposed defendant and each defendant’s insurer to have access to records and sources of information relevant to the claim. The notice was required to be in two parts, the giving of Part 2 to be somewhat later than the giving of Part 1. The prescribed form for Part 1 of the Notice of Claim made it necessary for a claimant to give a brief description of what is described as “the incident”, no doubt requiring an account of the events which resulted in the alleged injury; together with an explanation for the claimant’s belief that a proposed defendant caused the incident; and some other relevant information. The prescribed form for Part 2 required a claimant to provide information relevant to economic loss; as well as the identification of potential witnesses and reports. However, s 9A required, in the case of “a claim based on a medical incident” that an “initial notice” be given before the Notice of Claim. Amongst other things, the initial notice was to include a description of the medical services alleged, the name of the doctor who provided those services, and the date or dates when, and the place or places at which, the medical services were provided; as well as a description of the alleged injury. The person to whom the notice was given was required to give a written response, and copies of all documents held by that person about the medical services. Section 20 of the PIPA required a person described as a respondent to a Part 1 Notice of Claim to take reasonable steps to inform himself, herself, or itself about the incident; and to give the claimant written notice stating whether liability is admitted or denied; as well as to make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding against that respondent; and to make a written offer of settlement. The offer was required to be accompanied by a copy of medical reports and other documents relevant to the alleged loss.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Weighing up the competing considerations, this does not seem to me to be a case which should be struck for want of prosecution.Conclusion I propose to refuse the application made by the defendants.

Ratio Decidendi

Legal Principle Established

The submissions for the plaintiff pointed out the extent to which the defendants were provided at an early stage with information about the claims. They were in a position to provide their responses to the claims by August 2007 (at which time the State denied any liability to the plaintiff). The plaintiff’s former solicitors refused to release the files or provide a copy of them, until May 2014. The plaintiff approached other lawyers between 2010 and 2014, in an attempt to secure representation in relation to his claim, without success. He was extremely unwell for large periods of time in this period. After May 2014, there were debates about the stage which the proceedings had reached, until October 2015. Any delay by the plaintiff was not wilful or the result of deliberate neglect. He now faces the potential loss of all his rights to compensation against the defendant. There is no evidence to show that the delay had prejudiced, or is likely to prejudice, the ability of the defendants to defend the claim. The first defendants are insured, and continue to be represented by their original legal representatives. The plaintiff’s treatment and management has been recorded in medical files and notes which had been made available to the defendants’ legal representatives. It was submitted by reference to Witten v Lombard Australia Ltd[63], cited with approval in Cooper v Hopgood & Ganim[64] that the applications should not be determined by reference to rigid rules, but required a decision reached, upon a balance of the relevant circumstances. That balance favoured dismissing the applications made by the defendants.[63] (1968) 88 WM (Pt 1) NSW 405, 412.[64] [1999] 2 Qd R 113, at 118.Consideration It is convenient to commence with some observations about the nature of the plaintiff’s claims. In each case, the claim relates to the medical treatment which he received from each of the first defendants. Important matters in respect of each claim will therefore be the plaintiff’s condition at the time of treatment, and the treatment which he received; whether that treatment accorded with appropriate standards current at the time; what injuries the plaintiff suffered; the causal relationship between any such injury, and the conduct of each first defendant; and, particularly in the present case, any economic loss established by the plaintiff. It is apparent, particularly from the reports of Dr Silverstein and Dr Vaughan, that several doctors recorded in writing matters relevant to the plaintiff’s condition. There are also CT scans and reports (the earliest from 1999), MRI scans, and Xrays, documenting the plaintiff’s condition at various times. The materials referred to previously appear to set out in some detail (particularly in the case of Dr Fitzgerald) the extent to which the doctors provided treatment. It is usual for a contemporary record to be made by a medical practitioner of the treatment given, and there is no reason to think that that did not occur in the case of the treatment given by each first defendant. There has been no suggestion that there is no adequate record of these matters.

CITATION:	Cielo v Fitzgerald & Anor; Cielo v Keighran & Anor [2015] QSC 330
PARTIES:	JOSEPH MARIO CIELO (plaintiff) v GARRETT FITZGERALD (first defendant) and STATE OF QUEENSLAND (second defendant) JOSEPH MARIO CIELO (plaintiff) v ROBYN KEIGHRAN (first defendant) and STATE OF QUEENSLAND (second defendant)
FILE NO/S:	BS No 8897 of 2005 BS No 8445 of 2007
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 November 2015
DELIVERED AT:	Brisbane
HEARING DATE:	3 November 2015
JUDGE:	Peter Lyons J
ORDER:	Application dismissed.
CATCHWORDS:	PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where the plaintiff claims damages for personal injuries against two doctors, alleged to have arisen out of treatment given by the first doctor in 2002 and 2003, and by the second doctor from 2003 until 2005 – where the defendants apply to strike the proceedings out on the grounds of want of prosecution – where the defendants rely on the long delay since the underlying events occurred, the absence of proper explanation for much of that delay, and the general presumption of prejudice – where the plaintiff commenced the actions within the limitation period, and preceded the actions with notices of potential claims – where the plaintiff claimed economic loss relating to, amongst other matters, arrangements made to manage a hotel owned by the plaintiff’s family, and gave the defendants a reasonably extensive explanation of this claim in June 2007 – where those arrangements were, in part, made with the plaintiff’s father who died in 2003, but primarily with other members of the plaintiff’s family – where, on 28 October 2010, the plaintiff did not attend a compulsory conference – where, at the end of 2010, the defendants made, and the plaintiff rejected, mandatory final settlement offers – where, from the plaintiff’s withdrawal of instructions at the end of 2010, until 30 May 2014, the plaintiff’s former solicitors refused to release the plaintiff’s files without arrangements being made for the payment of their costs – where the plaintiff made attempts to obtain legal representation from the end of 2010 until 2014 when representation was obtained –– where there was no suggestion that the defendant doctors’ contemporary records of the treatment given were not adequate – where there was no suggestion of any relevant omission from the reports and records of various medical experts who examined the plaintiff – where there was no suggestion of any difficulty with the medical experts giving evidence about causation, or the appropriate treatment standard at the relevant time – where the defendants’ submission that the plaintiff had poor prospects of success on any of his claims was not accepted – whether the plaintiff’s claims against the defendants should be struck out for want or prosecution – whether the defendants have suffered prejudice arising from the plaintiff’s delay in prosecuting the claims Personal Injuries Proceedings 2002 (Qld), s 4, s 9, s 9A, s 20. Uniform Civil…