Fletcher v Elser and Hudson

[2011] QDC 92

[2011] QDC 92

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1497 of 2011

MICHELE LEIGH ANN FLETCHER

Applicant

and

JOHN ELSER
and
LYNTON HUDSON

First Respondent

Second Respondent

BRISBANE

..DATE 18/05/2011

ORDER

CATCHWORDS

Personal Injuries Proceedings Act 2002
Limitation of Actions Act 1974

Consent order for leave to commence a proceeding before mandatory pre-litigation steps are completed adjusted to clarify the time allowed for commencing and the time allowed for an application to deal with a limitations issue.

HIS HONOUR:  The court makes an order in terms of the initialled draft which provides as follows:

1.The Applicant be granted leave to start by Friday 20 May 2011 a proceeding in the court for damages based on a liability for personal injury against the First Respondent (in respect of treatment from on or about June 2002 to January 2006) and against the Second Respondent (in respect of treatment from on or about 2003) pursuant to section 43 of the Personal Injuries Proceedings Act 2002 (‘the Act’);

1. The proceeding be stayed pending compliance with part 1 of Chapter 2 of the Act or the proceeding is discontinued or otherwise ends;

2. The grant of leave be conditional upon the Applicant making an application pursuant to section 31 of the Limitation of Action Act 1974, seeking orders that the limitation period in respect of her claims against the Respondents be extended, within one month of compliance pursuant to section 12 of the Act;

3. The parties have liberty to apply on three business’ days notice; it is declared that the liberty to apply extends to the Applicant bringing this application on to serve as the application referred to in paragraph 3. above;

4. There be no order as to costs.

The words "by Friday, 20 May 2011" in paragraph 1 and the words in paragraph 4 after the semicolon have been added at the court's initiative to clarify matters from the court's point of view.

In my understanding, the changes do not involve any departure from an agreement that the parties have reached upon the terms of the order. They might ease the way for the applicant by sparing her from having to file a new originating application under the Limitation of Actions Act 1974.

The proceeding, leave for which is granted, arises out of an allegedly botched surgical procedure conducted by the first respondent many years ago which it is contended the second respondent ought to have diagnosed.  The applicant's argument is that she became aware of the relevant personal injury only just under a year ago on undergoing another medical procedure.  The deadline inserted in paragraph 1 represents the elapsing of 12 months from the discovery of the alleged significant new information which alerted the applicant to her potential claim.

As the draft order submitted for the court's consideration stood, it seemed to me there was a concern that if an application under the Limitations of Actions Act hadn't been made before the proceeding was started, it might have been contended that the leave never truly became effective. The amendment in paragraph 4 is there to make it clear that the applicant has time to make her Limitation of Actions Act application.

Ms Nixson tells the Court that more time is needed to prepare for that application which, as I understand things, is to be deferred until the pre-litigation steps mandated by the Personal Injuries Proceedings Act 2002 have been carried out. It may be that those lead to the proceeding being unnecessary.

Ms Nixson is, in the interests of saving costs, for which the parties ought to be commended, acting as unpaid agent today for the respondents' lawyers to the extent of seeking to read and file the notice of address for service of the respondents prepared by them.  As I understand, she is comfortable that the changes the court has proposed to the draft fit within the agreement that she's reached with the other lawyers.

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