Clarke v Angove

[2021] ACTSC 121

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Clarke v Angove

Citation:

[2021] ACTSC 121

Hearing Date:

11 June 2021

DecisionDate:

11 June 2021

Before:

Elkaim J

Decision: 

See [11]

Catchwords:

CIVIL LAW – INTERLOCUTORY APPLICATION – Leave to Commence Proceedings – Non-compliance with Chapter 4 requirements – whether there is an urgent need to commence proceedings – significant health issues affecting applicant’s lifespan – leave granted

Legislation Cited:

Road Transport (Third-Party Insurance) Act 2008 (ACT) Ch 4, s 150

Texts Cited: 

Oxford Concise Medical Dictionary (4^th ed, 1996) ‘myeloid leukemia’ (def 1)

Parties:

James Clarke ( Applicant)

Shane Angove ( First Respondent)

AAI Limited t/as GIO Insurance (Second Respondent)

Representation:

Counsel

A Costin ( Applicant)

N Wicks ( Respondents)

Solicitors

Blumers Lawyers ( Applicant)

Moray & Agnew Lawyers ( Respondents)

File Number:

SC 207 of 2021

ELKAIM J:

1. In this matter the applicant is seeking leave to commence proceedings despite non-compliance with Chapter 4 of the now repealed Road Transport (Third-Party Insurance) Act2008 (ACT). The problem in simple terms is that certain procedures have to be taken before a person can commence proceedings. These include a compulsory conference and the exchanging of mandatory final offers. You are allowed to commence proceedings without having done these things, but only if you comply with section 150 of the Act. This section says:

150 Need for urgent proceeding

(1)The court, on application by a claimant, may give leave to the claimant to begin a proceeding in the court based on a motor accident claim despite noncompliance with this chapter if satisfied there is an urgent need to begin the proceeding.

1. The respondent has opposed the application and concisely made submissions as to whether or not there is an urgent need to begin the proceedings. The respondent acknowledges that the applicant is 85 years old and has some health conditions, but says, in effect, which 85 year old does not have some health conditions and what is so marked about his health conditions that an urgent need is created?

1. I think the answer to this question lies in the report of Dr Michael Brown dated 8 June 2021. I accept the respondent's submission that the report is clearly one designed to support the application and is not a general medico-legal report. But Dr Brown is a general practitioner and he says that the applicant is a patient of his practice. He has known him for more than 20 years. If anybody is likely to know the ‘ins and outs’ of Mr Clarke's condition, one would expect it to be his long-time GP.

1. I further note that Dr Brown was not required for cross-examination, nor was any report put forward to contradict what he says.  On the other hand, I accept the respondent's submission that a number of the conditions that are listed in the report are perhaps conditions which might be expected in an aged person.  It is also clear that some of these conditions are long term, such as ischaemic heart disease.  The doctor also lists as the last of the conditions, “probable Myelodysplastic disorder of his blood picked up in routine pathology testing”. Learned counsel for the applicant has looked it up on Google and says that this refers to a leukemia type condition.

1. The respondent preferred me not to look it up on Google, which I understand and accept, but had no problem with me looking it up in a medical dictionary.  The medical dictionary spells it a bit differently, but clearly the equivalent condition in the medical dictionary is myeloid leukemia. This is described as:

[A] variety of leukemia in which the type of blood cell that proliferates abnormally originates in the blood forming myeloid tissue of the bone marrow. Myeloid leukemia may be acute or chronic and may involve any one of the cells produced by the marrow.

1. The respondent made two points about this entry in the doctor's report:  firstly, he uses the word “probable” disorder.  However in a civil action you do not have to prove something beyond reasonable doubt; you only have to prove it on the balance of probabilities.  The second point, and it arises from the definition that I have just read out, is that it may or may not be of a chronic nature.  In other words, just because you have the condition does not mean that it is likely to accelerate and cause an early death.

1. It is important to look at precisely what Dr Brown says.  After listing all of the medical conditions he says:

These are significant health issues, especially in an 85 year old man, which severely affect his lifespan.

1. Dr Brown is not saying that the leukemia condition of itself creates an urgency.  He is saying that the whole of the conditions affect the lifespan.  And I note his use of the word “severely”. The respondent has handed up the Vincents Litigation Tables which suggest that the prospective life expectancy of an 85 year old man is 6.51 years.  Furzer Crestani, an organisation which also produces an assessment handbook, has a similar, in fact, precisely the same life expectancy for an 85 year old man, but terms it a medium life expectancy.

1. The word “medium” is important because it is clearly indicating an averaging. In other words, just because you are 85 does not mean you are going to live another 6.51 years.  If we add back to that life expectancy the words “severely affect his lifespan” there clearly is, in the opinion of the doctor, a significant health condition which is affecting him, and which might reduce the 6.51 years “severely”.  Both parties told me that their research, other than in respect of limitation periods, had not revealed any authorities on urgent need. 

1. The respondent referred to urgent as defined in the dictionary as including pressing and compelling. In my view, “severely affect his lifespan” is pressing. Accordingly, I will allow the application. By allowing the application, however, I do not intend to excuse the applicant from his obligations under Chapter 4. There must still be a compulsory conference and exchange of mandatory final offers. I think the respondent is entitled to have those matters occur.

1. Accordingly, I make the following orders:

(i)Orders 1 and 2 in the application in proceeding filed on 25 May 2021.

(ii)A compulsory conference and exchange of mandatory final offers is to take place prior to 30 July 2021.

(iii)Each party is to pay its own costs of the application.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 16 June 2021