Horton v Butler

[2004] QDC 564

[2004] QDC 564

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD4022 of 2004

DANIEL REECE HORTON	Applicant
and
ROBERT JOHN BUTLER	First Respondent

and

FAI ALLIANZ LIMITED                   Second Respondent

BRISBANE

..DATE 26/11/2004

ORDER

CATCHWORDS: Application for leave to commence damages claim although Motor Accident Insurance Act pre-litigation steps have not been completed - costs only issue - respondent ordered to pay costs until filing of application - incidence of applicant's costs thereafter reserved

HIS HONOUR:  This is an application by a would-be plaintiff for leave to commence a proceeding for damages for personal injury arising out of a road accident which occurred on the 6th of December 2001.  Expiration of the three-year limitation period is imminent.

The difficulty that has arisen following arrangements made for a compulsory conference as required by the Motor Accident Insurance Act 1994 which had been agreed to be held on 11 November 2004 at 2 p.m. concerns the second respondent's dissatisfaction with information provided to them in respect of a "cranial decompression" which the applicant underwent prior to the motor vehicle accident.

The principal injury he complains of is a soft tissue injury to his back, but he has also complained of what is called a minor head injury.  He is now, it seems, suffering some disadvantage from his understandable determination to collect damages for everything that happened to him in the motor vehicle accident.  One wonders if the tail is not wagging the dog here to an extent. 

Since the 25th of March 2003 when Dr Pentis provided a report to the applicant which went to the second respondent it has been on notice that the applicant had suffered an injury to the brain in the past and had undergone an operation. 

Further, that the applicant believed the problem had been some sort of viral infection and was not certain what operation had been performed.
The second respondent seemed not to appreciate the potential significance of the event until very recently.  There is a statutory declaration before the Court, or a copy of one, in which the applicant, who is now 31, says that the cranial surgery he had happened when he was 11 at the Mater Children's Hospital, surgery being performed by Dr Redmond, to deal with an infection inside his skull around the brain caused by a severe infection in his sinus system.

The statutory declaration of 4th November 2004 also states:

"Approx six months prior to my motor cycle accident I attended upon Dr Redmond for occasional headaches and a review of the compression site of my skull.  I have no adverse medical effects, only aesthetic concerns."

The second respondent, and perhaps justifiably, seems to have been uncertain as to whether the applicant's surgery may not have been far more recent.  It declined to sign the proffered certificate of readiness on the basis that the matter was not "ready for trial" - with the consequence that the compulsory conference could not be held. 

The parties provided helpful written submissions.  Ms Bradford's, on behalf of the second respondent, called the second defendant, states, among other things:

"The defendants have requested details of the plaintiff's complete medical history and in particular the decompressive craniotomy performed by Dr Redmond on 25 and 28 October, 3, 4 and 10 November 2004.  To date, those medical records have not been provided by the plaintiff."

I do not consider it justified for the second respondent to require "medical records" in response to a request for details of the decompressive craniotomy. 

It seems to me that, bearing in mind what had been available since March 2003, it is hardly reasonable to require the applicant, for example, to produce in time for the compulsory conference a report from Dr Redmond.

The second respondent's approach has been to consent to the principal order sought in the originating application on the basis that there be no order for costs against it.  The application had to be brought, given the imminent expiration of the limitation period once the compulsory conference was abandoned at the instance of the second respondent.

It is common ground that a consent order to that effect could have been sought from the Registrar.  As Mr Barnes for the applicant says, however, substantial filing fees for the originating application would still have to be paid and a certain amount of work would have to be done at cost to somebody.  There does not seem to be much jurisprudence yet relating to visiting costs consequences on those participating in mandatory pre-litigation procedures under the Act and similar legislation.

I am sure we are entering an era in which such costs orders will be encountered as part and parcel of the significance which is placed on attempting to get disputes relating to personal injuries resolved outside the Court, the supposed justification being the saving of legal costs.  The reasonableness of insisting upon compliance with the letter and spirit of the legislation involved from "professional" potential litigants such as the second respondent (as opposed to ordinary members of the community, perhaps) seems to be clear.

By leaving things to the last minute as it did, the second respondent forced the applicant to bring this present application and it may well have been that if the compulsory conference had proceeded, the Court need not have been involved at all. As things stand, the originating application had to be filed and it seems a proceeding may have to be filed within the next week and a half, occasioning further expense. As I did in a similar application under the Personal Injuries Proceedings Act 2002 earlier in the week I propose to take a middle course here in relation to costs orders, making a limited order in the applicant's favour at this stage but reserving the question of who will bear the balance of these costs for later determination.

Although Mr Barnes has rather passionately asserted that the applicant can not be criticised in the least, I am not confident enough about that to make a final costs order based on the assertion.  I think it also has to be said that the applicant rather left things to the last minute as well in relation to seeking to arrange the compulsory conference.  So the Court's orders are in terms of paragraphs 1 and 2 of the originating application-----

MR BARNES:  Excuse me, your Honour, there's actually a draft order there where the only order to be changed is the last paragraph about costs.  I thought I tendered that to you at the start.  I can hand up another copy if Mr‑‑‑‑‑

HIS HONOUR:  What's wrong with order as per application?

MR BARNES:  The application doesn't go into near the detail, your Honour.  That's the order that both parties agree is appropriate, your Honour.

HIS HONOUR:  I see, it's much more detailed.

MR BARNES:  It talks about what's got to happen at the compulsory conference and things like that.  It's the standard sort of order made in these cases.

HIS HONOUR:  I am grateful to the parties' representatives for supplying a more detailed order which gives directions for future conduct of matters in much greater detail than the bare bones relief sought in the filed application.

I have deleted what is provided in that draft in respect of costs in paragraph 5 and substitute the following orders:

(i)The second respondent is to pay the applicant's costs of the application to and including the 10th of November 2004.

(ii) The application is adjourned to a date to be fixed for the purpose of finalising costs issues as to the applicant's costs of the application after the 10th of November 2004.  Those costs are reserved provided that they shall be the plaintiff's costs in the cause in the proceeding started by the Court's leave should those proceedings have been concluded during the adjournment.

You see, what I'm attempting to achieve is that if your costs in the cause turns out to mean something, you won't have to come back here and argue about them under the reservation of costs.

MR BARNES:  Only if it's under $50,000 your Honour, in which case we're limited to costs.

HIS HONOUR:  Well, they're reserved and it will be decided in this application.

MR BARNES:  Yes.

HIS HONOUR:  Which you will have to trouble the Court with on another day unless in the meantime there is some resolution of them.

MR BARNES:  But if it's over 50,000 we get them automatically, your Honour.  It's only going to be a problem, we would be back here if it's under 50 - if there's any settlement or judgment.

HIS HONOUR:  Yes, all right.

MR BARNES:  That's understood, your Honour.

HIS HONOUR:  Yes, okay, thank you.  Order as per initialled draft.

‑‑‑‑‑