Fitzgerald v Balanda

[2003] QDC 36

Transcript of Proceedings

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REVISED COPIES ISSUED
State Reporting Bureau

[2003] QDC 036	Date: 7 February, 2003
DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC
No 397 of 2002
ELEANOR ELIZABETH FITZGERALD	Plaintiff
and
ROBERT JOHN BALANDA, DOMINIC ARCURL,	First Defendants
ANTHONY LENAN, ANTONY JOHN KNOX and JONATHAN STEPHEN FLANNERY
and
ALISON JANE HISCOCKS	Second Defendant
SOUTHPORT ..DATE 03/02/2003
ORDER

1

03022003 T22/AF M/T 3/2003 (Robin DCJ)

HIS HONOUR: This application by the plaintiff has been made	1
more complicated by the absence of the first defendants and of
the second defendant, at whose urging the application is
brought. As filed, presumably under rule 69, it seeks the
addition of Suncorp Metway Insurance Limited ("Suncorp") as an	10
additional defendant in the action.
The existing defendants who are solicitors have been anxious
to procure such a joinder to protect their own positions as
20
defendants in professional negligence proceedings. In them,
the plaintiff complains that they let the statute of
limitations expire without instituting proceedings to protect
her interests, in respect of the motor vehicle accident in
which she apparently suffered personal injuries on the 2nd of	30
December 1994. The proposed new defendant's insured was a Mr
Bagot.
The statutory hoops established by the Motor Accident	40
Insurance Act 1994 ("the Act") had to be gone through by the
plaintiff. On the 7th of September 1995, the proposed new
defendant insurer, which opposes the application for relief,
wrote, and I quote:
50

"Thank you for your notice of claim dated 29th of August

1995.

We note you have complied with section 37 of the Motor

Accident Insurance Act except for the provision of an

ORDER

2  60

03022003 T22/AF M/T 3/2003 (Robin DCJ)

offer supported by medical reports. Please forward that	1
information immediately it becomes available, bearing in mind the provisions of the above Act.
We are prepared to settle liability on the basis of 100 per cent apportionment in favour of your client."

There were further contacts between the plaintiff's solicitors	10
who received that offer and Suncorp, which on the solicitor's
part indicated the plaintiff's preparedness to settle for
$50,000 general damages; special damages as listed, and party
and party costs. That offer appears in a letter of the 12th
20
of December 1996.
The plaintiff was apparently examined by Dr A Walker at the
behest of Suncorp. Dr Walker's report was some time in
coming. Suncorp wrote to the plaintiff's solicitors on 29th	30
April 1997 indicating they were presently awaiting the report,
and on receipt of it, would hopefully be in a position to make
an offer to settle. Unsurprisingly, the plaintiff's
solicitors evinced an interest in getting hold of that report	40
- see the letter of 28th October 1997 - which offers on behalf
of the plaintiff to undergo further medial assessment should
Suncorp require that.
50

ORDER

3  60

03022003 T23/MC M/T 3/2003 (Robin DCJ)

Suncorp's letter of the 11th of November 1997 advised Dr	1
Walker's report was still being awaited. On 2nd December
1997, the very date when the limitation period under section
11 of the Limitation of Actions Act 1974 expired, Suncorp
wrote to the plaintiff's solicitors forwarding copies of	10
importuning communications to Dr Walker and suggesting that
the plaintiff and her solicitors "put some pressure" on the
doctor. The plaintiff's solicitors' for an offer from Suncorp
continued.
20
By a letter of 16 March 1998, Suncorp asked the solicitors to
"please confirm that proceedings have been issued in this
matter" and that a copy of the plaint be forwarded.
30
Follow-up communications came from Suncorp. The only
proceedings that have hitherto, been instituted, on 24th of
May last year, are against the solicitors. Their response to
being sued for overlooking the limitation period has been to	40
provide the plaintiff's present solicitors, the original ones
now being defendants of course, with ammunition which suggests
that Suncorp and perhaps its insured, Mr Bagot, may yet be
successfully pursued.
50
Suncorp sent the plaintiff's new solicitors a letter dated

24th September 2001 which includes the following:
03022003 T23/MC M/T 3/2003 (Robin DCJ) 4 ORDER 60

"If your client is minded to proceed this matter further,	1
we hereby put you on notice that the matter will be strenuously defended by Suncorp Metway and we will rely on the Limitation of Actions Act 1974."

The decisions of Appeal Courts in Queensland in circumstances

like the present where there is a compulsory third party	10
insurer's letter like the one of 7 September 1995, reveal an
attitude of sympathy towards putative plaintiffs who are given
an intimation that they have no particular problems to face in
establishing liability for an accident, and, on the other
20
side, a stern attitude towards the insurers.
It may not have been inevitable that the Courts would take
such an approach, but by the time of this application it is
clearly enough established for this State.	30
The first important case is Newton, Bellamy and Wolfe v. The
State Government Insurance Office Queensland (1986) 1 Qd.R.
431 which was applied and confirmed to be still relevant,	40
notwithstanding the new regime brought about by the Act, in
Lindsay v Smith (2002) 1 Qd.R. 610.
The older case dealt with the contractual aspects of a letter
50
of the kind in evidence here. Lindsay v. Smith dealt also
with the related aspect of estoppel which the Court of Appeal
had considered in Morris v. FAI General Insurance Company

Limited (1996) 1 Qd.R. 495.
03022003 T23/MC M/T 3/2003 (Robin DCJ) 5 ORDER 60

1

Judge McGill had to consider both aspects in Simpson v. Lenton

(2002) QDC 214, Judgment 13 August 2002. There, his Honour

was highly critical of the delay exhibited by the plaintiff

and her legal representatives, and he concluded with what	10
appears to be regret that although on the contractual aspect
the Court was in a position to hold the plaintiff statute
barred because "the limitation period of six years from the
date of the letter accepting liability has also expired in
20
March last year" (see paragraph 15 of the reasons), binding
authority obliged him to acknowledge the potential
availability to the dilatory plaintiff of assistance by way of
estoppel.
30
40
50

6 ORDER 60

03022003 T24/MM M/T 3/2003 (Robin DCJ)

Mr Holyoak, who has argued this application for Suncorp,	1
relied on Woodhead v. Elbourne, (2001), 1 Qd.R. 220, which was not relied upon before Judge McGill, as an instance of the well-known principle that equity does not allow its doctrines to be resorted to, to subvert limitations periods which apply

10

to a common law claim, which was available to the plaintiff to
pursue.

I ought to indicate that the responsibility for delay in this matter cannot fairly be laid at the door of the plaintiff or

20

her present solicitors. In part, it seems it can be laid at those aspects.
the door of her former solicitors, and perhaps elsewhere too.
I have in mind the doctor I have referred to, and perhaps even

30

In Smith v. Lindsay, Chesterman J, with whom other members of the Court expressed agreement, said at the top of page 617, that the contract incorporated in a letter of the kind in question is, in essence,

40

"In consideration of the claimant forbearing to sue, and not incurring the expense of proving liability which the insurer will ultimately have to pay, the insurer admits

liability and agrees to pay reasonable damages."

That is not the way in which the proposed pleading making

50

allegations against Suncorp, presently before the Court, deals

with the matter. It pleads the contract as in terms of being

one "not to rely on the Limitation of Actions Act 1974". That

7 ORDER 60

03022003 T24/MM M/T 3/2003 (Robin DCJ)

is plainly too broad an allegation, as the judgment of	1
McPherson J in Newton, Bellamy makes clear.
His Honour distinguished the limitation provision respecting the contract to pay reasonable damages which, under section 10

10

(1)(a) of the Limitations of Actions Act 1974, is six years, from limitations issues to do with the three-year period for actions in respect of personal injury, dealt within section

11.

20

30

40

50

8 ORDER 60

03022003 T25/JR M/T 3/2003 (Robin DCJ)

It is most unlikely that anyone, least of all an experienced	1
insurer, would, in such a broad way, abandon any limitations points. Of course there may be estoppels created in particular circumstances.

10

Judge McGill's view that the limitation period in respect of suing on what appellate decisions construe as a "contract" was six years from the date of the contract or agreement is supported by comments of McPherson J in Newton, Bellamy at 445 where his Honour, having noted "The limitation period in

20

respect of an action on a simple contract is six years from
the date on which the cause of action arose", said, lower on
the page, that: "The limitation period applicable to the
contract in this case was...the period of six years...running

from the date of the contract made by the letter dated

30

February 9th 1981 from the SGIO."

The correspondence from the existing defendants, calculated to encourage the plaintiff to bring this application, referred to what his Honour said at the foot of the same page regarding

40

the "contract to accept liability" having "been repudiated by
the SGIO" whereupon the plaintiffs acquire the option of suing
for damages for breach of that contract or of affirming the
contract and relying upon it in answer to the defence". His

Honour regarded the plaintiff as having elected to adopt the

50

second alternative in that case.

It thus emerges that there are, or may be, two views of the

date when the limitation period in contract which affects the

9 ORDER 60

03022003 T25/JR M/T 3/2003 (Robin DCJ)

present plaintiff began to run the date of the contract or the	1
breach, although the letter of 24th of September 2001 from
date of breach. From some points of view, as yet, there is no points to defeat any claim by the plaintiff founded on the

10

motor vehicle accident.

The elucidation in the cases of the limitation period under section 10(1)(a) has established, in my view, a basic approach that it is upon the breach of a contract that the cause of

20

action arises, rather than on the making of a contract (see The Laws of Australia (LBC) volume 5 at 10.20). Obviously, there may be special cases, and Mr Holyoak's industry has

unearthed some.

30

In particular, he relies on the decision of the Appeal Court in Western Australia in CIGNA Insurance Asia Pacific Limited v. Packer [2000] 23 WAR 159, a case in which an injured

employee waited some 13 years, after being seriously injured

at work, before claiming a fixed sum, apparently $93,500,

40

which he was entitled to upon becoming permanently disabled,
the test of which was bodily injury lasting for at least 12
months which entirely prevented the insured person from
engaging in any occupation for the remainder of his life. The

plaintiff asserted he had made a claim by the 30th of August

50

1988 but the insurance company denied that. The accident had

occurred on the 20th of March 1986.

10 ORDER 60

03022003 T26-28/MM M/T 3/2003 (Robin DCJ)

The claim was otherwise pursued and the insurance company	1
finally made it clear by a letter of 30th of April, 1993, that it denied liability. No claim was instituted in Court until the 27th of August, 1998.

10

The judges, in particular, Malcolm C. J. and Pidgeon J., took the view that the cause of action accrued on the 20th of March, 1987, a year after the accident, and that liability of insurer was not dependent on the respondent making a claim, the "defined event" being bodily injury which resulted in

20

permanent total disablement as defined.

The Court of Appeal has applied that decision in Sullivan v. context of claims for compensation for entering on private

30

land.

It did not matter in the result in that case whether or not the amount of compensation that was appropriate had been worked out. The right to compensation was held to arise on

40

the entry, and the limitation period, this time, pursuant to
section 10(1)(d) of the Act, one referring to sums recoverable
by virtue of an enactment, began to run from the date of the

entry.

50

The judgments there and in CIGNA contain interesting

discussions of the authorities. Pidgeon J in CIGNA

distinguishes the judgment of Giles J in Council of the City

of Penrith v. Government Insurance Office of New South Wales,

11    ORDER

03022003 T26-28/MM M/T 3/2003 (Robin DCJ)

(1991), 6 ANZ Insurance Cases, 77 210, which, although it is	1
not available to me today, appears, from what is said about it, to represent the conventional approach that "a breach could not occur while there was a possibility of the defendant performing its promise", see CIGNA at 181.

10

I am inclined to regard such cases as CIGNA and Sullivan and those applied in them as special and dependent on their own particular contexts. I think the Court today must be aware of the particular context of this application, which is very much

20

to do with the Court's regulating the conduct and consequences
of conduct of parties who proceed towards and/or get involved

in litigation together.

Since Newton Bellamy, which was decided on the 19th of June,

30

1985, it has been clear in this State that the consequences of
a compulsory third-party insurer, perhaps any insurer,
indicating in some way that liability is accepted, are serious
and not easily avoided where the putative plaintiff, who does

not become an actual plaintiff in time, assuming the

40

Limitation of Actions Act can be invoked, can be shown to have been led into believing that it was not necessary to institute proceedings.

It has become clear that the Motor Accident Insurance Act,

50

1994, which not only establishes hurdles for a plaintiff to

negotiate, but also imposes obligations on insurers to declare

their attitudes, has not changed the approach of Newton

12    ORDER

03022003 T26-28/MM M/T 3/2003 (Robin DCJ)

Bellamy, or indeed, the availability of estoppels which goes	1
back at least to Verwayen v. The Commonwealth.
Today is not the occasion on which to determine whether an estoppel exists.

10

It is not even the occasion on which to determine what the
precise effective terms of the "contract" in the letter of 7th

September, 1995 were.

20

It seems clear to me, however, that the plaintiff ought to have the opportunity to pursue in the Court her claims, which I note again, she is being encouraged to do by the absent existing defendants. They have not appeared today when called, although Mr Morgan has obtained leave to file and read

30

an affidavit of the second defendant, an original copy of
which has been served on his instructing solicitors.

The plaintiff, it seems to me, would be free to institute proceedings against Suncorp and indeed, against Mr Bagot as

40

well. This is the course which Mr Morgan, who has no
responsibility for the presently proposed new statement of
claim, says he is inclined to think is the proper course from
the point of view of demonstrating against the solicitor

defendants that the plaintiff, if this is the case, has no

50

rights against Suncorp or Mr Bagot.

13    ORDER

03022003 T27/MM M/T 3/2003 & 4/2003 (Robin DCJ)

If the plaintiff chose to file a new claim against them in the	1
Court, nothing could be done to prevent that. It would remain
to be seen what defences the plaintiff was met with and

10

whether anything might be said by way of contract or estoppel
to assist the plaintiff. It seems to me convenient to have
everything dealt with in the existing proceeding against the

solicitors.

20

I think Suncorp has a legitimate concern not to be confronted with the argument that any joinder of parties or amendment permitted by the Court deprives it of any limitations or indeed other defence which might be available.

30

It is possible for the Court to attach conditions to orders for joinder of parties or amendment, which provide such protection. In the present situation, the action was not commenced until more than six years had elapsed from the insurer's letter, so there is probably nothing particular to

40

be gained by Suncorp in having a protective condition added to
the Court's order. Nonetheless, I propose to add the

condition.

...

50

HIS HONOUR: There will be leave granted to the plaintiff to join Guy Bagot and Suncorp Metway Insurance Limited as third and fourth defendants in the action, with a view to

14  60

03022003 D.1 T28/MM M/T 4/2003 (Robin QC DCJ)

establishing their liability to the plaintiff in respect of	1
personal injuries suffered in a motor vehicle accident on the 2nd of December, 1994, on the condition that such joinder be without prejudice to the ability of either to raise any existing limitation or other defence.

10

I grant leave to the plaintiff to file and serve an appropriate amended statement of claim within 14 days of today, on the same condition.

I grant liberty to apply.

20

...

HIS HONOUR: Costs are reserved, for the reason that it may be determined that the first and second defendants, who are not represented today, may turn out to be the parties who should

30

pay them.

----

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15 ORDER 60