Earthrowl v State of Queensland

[2003] QDC 441

DISTRICT COURT OF QUEENSLAND

CITATION:

Earthrowl v State of Queensland [2003] QDC 441

PARTIES:

NICOLE EARTHROWL
Applicant

v

STATE OF QUEENSLAND
Respondent

FILE NO/S:

BD 3663/03

DIVISION:

Civil jurisdiction

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

8 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17 November 2003

JUDGE:

Judge Robin QC

ORDER:

APPLICATION DISMISSED COSTS TO BE ASSESSED

CATCHWORDS:

Personal Injuries Proceedings Act 2002, s 77D(2)(b) – application for leave to start a proceeding in respect of injury from an incident on 23 September 1999 (in places said to be 23 January 1999) – notice of claim under s 9 given out of time on 6 June 2003 – notice otherwise non-compliant – if court had discretion to grant leave under s 77D(2)(b), the circumstances did not justify leave whether permissible to start proceedings by filing a statement of claim in the application considered

COUNSEL:

Mr D J Kelly for the Applicant

Ms K Philipson for the Respondent

SOLICITORS:

Parker Simmonds for the Applicant

Crown Solicitor for the Respondent

1. The applicant on 6 June 2003 served on the respondent a Form 1 Notice of Claim under the Personal Injuries Proceedings Act 2002 (PIPA).  It is based on an incident recorded as occurring on 23 September 1999, described as follows:

“My house was raided by Police, in which they were looking for a man wanted for questioning called Damien Garwood.  Damien took chase, in which all officers chased him, leaving the police at scene alone with me.  The dog attacked me, not letting go until they returned.  Was hospitalised.”

No doubt it was the police dog left “alone” with the applicant.  In Item 11 in the Form 1, she described her part in the incident thus:

“Unwanted victim got bitten by mistake by Police dog.  Bitten 5 times, taken to Caboolture Hospital by Ambulance.”

The affidavit of the applicant’s solicitor identifies the relevant injuries as including five bite marks, one requiring stitching, damaged tail bone and severe trauma.  The applicant consulted his firm about 16 May 2003, long after the applicable three year limitation period had expired. 

1. Crown Law’s response to the Form 1, in a letter of 24 June 2003, was as follows:

“I refer to previous correspondence.

I note that your client’s Notice of Claim was given outside the time frame prescribed by the Personal Injuries Proceedings Act 2002.  I also note your advice that your client had previously consulted another firm and was advised that she should not proceed with her claim.  In order to enable my client to consider whether such explanation is a reasonable excuse for the delay in providing the Notice of Claim, would you please advise the date on which your client first consulted your firm about the possibility of making a claim for her personal injuries.

In the meantime, without an admission that your client’s explanation for the delay in giving her Notice is reasonable, I have reviewed the notice of claim and provide the following response under sections 9, 10…