Duffield v. Gray

DISTRICT COURT OF QUEENSLAND

CITATION:

Duffield v Gray & Anor [2007] QDC 269

PARTIES:

GREGORY JAMES DUFFIELD

Applicant

V

DEAN ROBERT GRAY

First Respondent

And

BLOOMER CONSTRUCTIONS PTY LTD

Second Respondent

And

ALLIANZ AUSTRALIA INSURANCE LIMITED

Third Respondent

FILE NO/S:

BD1082/07

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

9 November 2007

DELIVERED AT:

Brisbane

JUDGE:

Griffin SC DCJ

ORDER:

Leave to commence proceedings within 14 days of Order

1. The applicant seeks an order pursuant to provisions of the Motor Accident Insurance Act 1994 for leave to commence a proceeding.

1. The relevant section, s 57 of the Act provides:

“(1) If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.
(2) However the proceeding may only be brought after the end of the period of limitation if it is brought within –

(a)        Six months after the notice is given or leave to bring the proceeding is granted; or

(b)        A longer period allowed by the court.”

Background

1. The applicant was involved in a motor vehicle accident which occurred on 31 August 2003.  He was a passenger in a Toyota Hilux utility in which others were injured.  The driver of the vehicle (Gray) pleaded guilty to the offence of dangerous operation of a motor vehicle causing death and grievous bodily harm.  These latter injuries concerned two other passengers in the vehicle.  The applicant himself claims injuries including whiplash to the spine, muscular – ligamentous injury to the spine and post traumatic stress disorder.  The applicant was aged seventeen years at the time of the injury which occurred on 31 August 2003. 

1. The limitation period commenced on 10 March 2004 when he turned eighteen.  Shortly thereafter he engaged solicitors to act on his behalf.  By 31 May 2004 the relevant Notice of Claim was provided to the third respondent Allianz.  There is no question in these proceedings that the Notice of Claim was in fact not compliant.  There was a change of solicitors in May of 2005.

1. By mid 2005 the applicant was diagnosed (by Doctor Klugg – report of April 2007) as suffering from a depressive illness which persisted until at least late 2006.

1. Importantly in February 2006 the applicant was examined by Ms Lloyd, a psychotherapist who reported twice in April and November of 2006 on the applicant’s mental health.

1. At least by December 2006 the applicant, according to Steven Pearson[1] swears that the applicant was in a suitable condition to provide instructions (although I note that prior to that period certain information was provided by the applicant to his legal representatives relevant to essential matters relating to the claim).

   [1] Affidavit of Steven Pearson sworn 16 April 2007 at…