Hernandez v Northbridge MJN Pty Ltd
[2013] QDC 160
•11 June 2013
DISTRICT COURT OF QUEENSLAND
CITATION:
Hernandez v Northbridge MJN Pty Ltd [2013] QDC 160
PARTIES:
MARGARET HERNANDEZ
(Applicant)
and
NORTHBRIDGE MJN PTY LTD
(Respondent)
FILE NO/S:
1988/2013
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
District Court
DELIVERED ON:
11 June 2013
DELIVERED AT:
Brisbane
HEARING DATE:
11 June 2013
JUDGE:
Samios DCJ
ORDER:
1. Order as per the draft.
CATCHWORDS:
LIMITATIONS OF ACTIONS- personal injuries- where the applicant sought orders to be given leave to commence proceedings for damages for personal injury within 60 days of the events listed in the application pursuant to section 59 (2) (b) of the Personal Injuries Proceedings Act 2002 (Qld) - whether the applicant has reasonable excuse for the delay - whether the applicant has no reasonable prospect of success.
LEGISLATION
Personal Injuries Proceedings Act 2002 (Qld) s43 (1), 59 (2) (b), 18 (1) (c) (ii)
CASES
Ghantos v Hawkesbury City Council (2001) HCA [29]
COUNSEL:
The applicant was self represented
Ms Topen (Sol) for first respondent
Mr Williams (Sol) for second respondent
SOLICITORS:
The applicant was self represented
Carter Newell Lawyers for the first respondent
King & Co for the second respondent
This is an application for orders that, pursuant to section 59, subsection (2), paragraph (b) of the Personal Injuries Proceedings Act 2002, the applicant be given leave to commence proceedings for damages for personal injury within 60 days of the events listed in the application. The application is responded to by two respondents: the first is Northbridge MJN Pty Ltd and the second respondent is Brisbane City Council. Northbridge MJN Pty Ltd does not oppose the application; The application is opposed by the Brisbane City Council. Ms Hernandez is the applicant. She is 64 years of age and a single parent providing full time care for her adult son, Gerald, who was born on the 7th of October 1985. He has severe disabilities and high needs.
Ms Hernandez is pursuing a personal injuries claim against the respondents. She is seeking alteration of the limitations (limitation period) in relation to an incident that occurred on June 10 2010. She says that at approximately 8.50 am, she was walking towards the Brisbane Courts along a public thoroughfare of Turbot Street to appear as a character witness in an unrelated Court hearing. She says she was walking briskly along the public thoroughfare, which was unfamiliar to her, and she approached the narrow, steep flight of steps, which she ascended. Within three metres after the stairway, there were two landing areas, for which the second landing area was slightly raised and required her to take a higher step.
She says, she continued to make note of her footsteps due to the changing ground levels as she continued another three metres along the public thoroughfare of 32 Turbot Street. She made two quick glimpses at her phone, contemplating phoning her son’s carer and checking the time on her mobile phone. She says, looking along the ground, approximately two metres ahead, to ensure there were no changes in the ground level, the pavements appeared to continue, although, as she was about to raise her eyes, her head hit a protruding part of the building attached to 32 Turbot Street, Brisbane City.
At the time, it was very painful and for a moment she was disorientated as she continued to proceed towards the Courts. On arrival at the Courts and throughout the proceeding, she felt a persistent throbbing from the centre of her forehead, from which a lump the size of a large egg appeared. As a wellness consultant, she continued to apply magnetic water to relieve the pain during the Court process, and on arrival home, she sought additional natural products to assist her body to heal.
On June 11 2010, she awoke from sleep, as she had been required to do often in the past, to attend to the care of her adult son. She states, on rising, the pain in her forehead became so intense that for the first time in awaking to provide care to her son, she fell and hurt her left shoulder. She states, in prioritising the care of her adult son, she continued to take natural remedies for both her headaches and shoulder. Her headaches persisted and the pain in her shoulder continued to increase. She attended a GP on 17 June 2010. He sent her for ultrasound; that apparently reported bursitis, which was an inflammation to her shoulder. I have omitted to mention that she explained to her treating doctor that she was experiencing headaches, although the pain that she was experiencing in her shoulder was considerably more severe.
On 24 June, she returned to the GP as she was still unwell and he advised her that it would take at least another three weeks to improve as a result of a contusion haematoma. She states that, for a period of eight weeks between June 10 and August 5 in 2010, she relied on respite carers. She used medicinal products that she stocks to treat the pain and added stress. She also states by inference that her practice was interrupted by the effects of her injuries.
On 3 September 2010, following the concerns of her family and friends for her health, she contacted Legal Aid to ask for advice. As best as I can read her writing, in her affidavit that’s been amended, she also contacted the insurer for 32 Turbot Street. She also sent a letter to the representative of the insurer, requesting payment of some costs. She then had correspondence, during 2011, with the claim’s consultant for CGU Insurance. She waited for some paperwork of respite provided for the eight weeks period. Those matters took place in March 2011, and then in 2011, she was made an offer by CGU and then in August, she says, CGU was still awaiting documentation from DSQ, which I take to be Disability Services Queensland. Then, there was another offer made by CGU in November 2011. She also says that she became aware, in December 2011, of the requirements of architects that the standard height for a thoroughfare is 2 metres.
Then, in 2012, she approached a law firm for advice and assistance. However, they were not willing to pursue her claim but advised her to keep seeking legal advice. In July 2012, she suffered a minor stroke, she says aggravated by added stress and steady rise over the years of her blood pressure. In October 2012, she approached another law firm regarding her claim. In December 2012, she became aware that a serious blow to the head can cause damage to the pituitary gland. But despite rehabilitation, damage to the pituitary can potentially cause long-lasting effects to vital organs. Then, between November 2012 and May 2013, she says that the amounts that she was making claims for, and the variation in her anxiety and pain and suffering that she experienced as a result of the head blow in 2010, still required further medical investigation to be adequately assessed.
She says, on February 2013, she first made contact with the Brisbane City Council to inform them of her claim. She received a letter from Northbridge, requesting additional medical documentation in March 2013. In May 2013, she sought professional advice to undergo the tests required to establish the extent of the damage caused by the blow to her head. She was quoted at costs of $1,500 by two times. On 3 June 2013, she received legal advice to inform her she was required to lodge an originating application to seek additional time to settle her claim and that it would cost $5,000 for her to proceed. On 4 June 2013, she gathered information to submit independently for an originating application and affidavit for which she was supplementing with this additional affidavit.
She states she believes it is in her best interest to seek the appropriate tests required to establish the extent of damage caused to her pituitary gland, be paid by the insurers, Northbridge, to ascertain the extent of her injury as a result of a blow to the head. She states she has photos of the public thoroughfare in 2010 and in 2013. She says, under the protruding constructions adjoined to 32 Turbot, there are now plants, which she has been informed, should have been planted to begin with, being within a public thoroughfare instead of the continued paving, as was the case in 2010. She states, she’s only recently been provided other support to assist her to pursue her personal injury claim. She therefore says the affidavit is written in pursuit of an alteration of limitations due to the extenuating circumstances of her case.
One of the grounds upon which the Brisbane City Council opposes Ms Hernandez’s application is that she has provided no reasonable excuse for the delay in serving a complying notice under the Act. I conclude, on the evidence before me, that there is evidence from Ms Hernandez which explains the delay and that her excuse, in that respect, is reasonable. Much does have to be made by way of inference from her evidence, but it is clear that she has had the obligations to an adult child with severe disability and high needs, the care she is providing is full-time and it is clear that she has no legal qualifications and she has pursued the matter, I infer, as best as she can in those circumstances. I would include, in those circumstances, an inference that she simply does not have the financial means to pay for investigations into her medical condition and for lawyers to act on her behalf. Therefore, to the extent that a reasonable excuse for the delay is required, I am satisfied there is, in the circumstances, a reasonable excuse for the delay.
However, it is also submitted that the applicant has no reasonable prospects of success. It is submitted that she had an obligation to look where she was going and there was – clearly this was a case where it is not unreasonable to expect that people will see, in broad daylight, what lies ahead of them, in the ordinary course as they walk along. It is submitted no special vigilance is required for this. In that respect, the Brisbane City Council quotes the judgment of Callinan J in Ghantos v Hawkesbury City Council (2001) HCA 29 and 355. In addition, it is submitted that Ms Hernandez was looking down, looking at her phone and not paying attention to where she was going.
Notwithstanding what has been said about the obligation of pedestrians and what Ms Hernandez was doing, I am satisfied that there are reasonable prospects of success of a claim for damages against the respondents, that the Council is not absolved from its duty of care because a pedestrian may be looking down a particular point in time as they proceed along a thoroughfare. In fact, in my view, it is arguable that it can be a trap that people may think there is nothing ahead of them that will strike them in the head as they walk along, and therefore, the duty of care arises for an authority to ensure and for a building owner to ensure that there is no hazard that might strike a pedestrian who is momentarily inattentive and may even be walking briskly, as Ms Herandez admits. However, people have a lot on their minds and a fixed obstacle can pose a danger. Therefore, I am satisfied that this cannot be said to be a hopeless case, as matters stand at the present time, in the context of this application. That is not to say what may be the result when a Court, seized of all the facts, and considers all the authorities may conclude.
Therefore, I do order, pursuant to section 59, subsection (2), paragraph (b) of the Personal Injuries Proceedings Act or, alternatively, pursuant to section 18, subsection (1), subparagraph (c)(ii), or pursuant to section 43, subsection (1) of the Act that the applicant have leave to commence proceedings for damages for personal injury within 60 days.
Order as per the draft, initialled by me and left with the papers.
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