Jenkins v Spaceframe Buildings Pty Ltd

[2010] QDC 316

[2010] QDC 316

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2116 of 2010

ROBERT DAVID JENKINS	Applicant
and
SPACEFRAME BUILDINGS PTY LTD	Respondent

BRISBANE

..DATE 12/08/2010

ORDER

CATCHWORDS

Personal Injuries Proceedings Act 2002, s 9(5), s 10, s 18
Validity of part 1 notice of claim disputed - whether "reasonable excuse" given for lengthy delay stated - applicant injured when debris on a city street presumed to have fallen from vehicle(s) caused him to lose control of his motorcycle - difficulty identifying appropriate defendant(s) after Nominal Defendant denied liability - respondent identified in a report prepared for the last in a series of part 1 notice of claim recipients associated with adjacent building site - whether affidavit of applicant necessary - whether each period of delay required separate explanation

HIS HONOUR:  The applicant, Robert David Jenkins, was riding

his motorcycle at the corner of Commercial Road and Doggett
Street in The Valley, Brisbane on Saturday, 8 December 2007.
On taking the corner at what he says was a very moderate speed, he lost control when he rode across debris of the nature of sand and gravel and perhaps other material like
small pieces of wood.  A police officer investigated the ensuing accident in which Mr Jenkins was injured.  There was also some property damage.  When Mr Jenkins lost control of his bike, it careered into a stationary vehicle which was in a line of traffic awaiting an opportunity to move forward.  The records generated by the police officer corroborate what is said about debris on the road.

Mr Jenkins is now trying to ascribe responsibility for that to
the respondent, Spaceframe Buildings Pty Ltd.  The case he
presents to the Court is that not until 30 October 2009 did he
appreciate that the respondent might have been involved in a
way potentially productive of liability.

The point of today's application is to obtain a declaration
that reasonable excuse has been provided for the delay in
giving the respondent a Part 1 notice of claim pursuant to
section 9 of the Personal Injuries Proceedings Act 2002, the
PIPA as it's called.  Subsection (5) provides that a reasonable excuse must be given in part 1 where the
notice is not given within the period prescribed under section
9A, which relevantly has been taken to be the day one month
after the claimant first instructed a law practice to act on
his behalf seeking damages for personal injury.  The notice
sent to the respondent was dated 14 December 2009 and came
well after the first involvement of the solicitors still acting.  They sent out a part 1 notice of claim pursuant
to section 9 on or about 19 February 2009 to the Public
Trustee care of the Crown Solicitor.  They had been previously
involved, sending an accident claim form pursuant to section
37 of the Motor Accident Insurance Act 1994 on or about 22 May
2008.  The view was taken at that stage that the incident
should be regarded as flowing from culpable management of a
motor vehicle on the road, presumably a vehicle from which debris was allowed to spill.  The Nominal Defendant denied liability.

The Public Trustee became involved as the nominal owner of a
construction site at the intersection where a commercial
building was under construction.  The Crown Solicitor provided
advice that the Public Trustee had no commercial involvement -
whereupon Opus Capital Pty Ltd was then turned to as the
entity that might have been responsible on the approach that
the debris on the road was the responsibility of those
undertaking the construction.

Opus or its insurer went to the trouble of producing an
investigation report of G Hughes and Associates, Legal
Liability Consultants, which was forwarded "as required by
section 27 of the PIPA" to Mr Jenkins' solicitors under cover
of a letter dated 29 October 2009.  It bears in Mr Le Guinio's
exhibit a date received stamp of 30 October 2009.
That report identified the owner or developer of the site as
PJP Properties Pty Ltd and advised that it engaged the
respondent as the principal building contractor for the site.
Construction occurred throughout 2007 and until about
March 2008.

Mr Le Guinio got Mr Jenkins to sign two new Part 1 notices of
claim, one sent to each of the companies that had been
identified, by registered letter dated 14 December 2009.  The
date of signature by Mr Jenkins appears to be 27 November
2009.

There is attached to each of those documents an annexure in
the following terms under the heading “Reasonable excuse for
delay” as set out by section 9(5) of the Personal Injuries
Proceedings Act 2002: 

"After I sustained my injury I was hopeful that my injuries would resolve to my pre-accident state.  However, I have experienced ongoing symptoms and I may
be left with permanent impairment.  I have therefore
instructed my solicitors to proceed with a claim to obtain compensation for the effects of my injury.  My solicitors preciously (sic) lodged a notice of claim on the Public Trustee of Queensland and Opus Capital Pty Ltd.  Correspondence was received by my solicitors on 30 October 2009 providing an investigation report identifying Spaceframe Buildings Pty Ltd as a potential respondent to this claim.  I therefore instructed my solicitors to serve a notice of claim to Spaceframe Buildings Pty Ltd".

A corresponding annexure was attached to the PJP Properties
notice.  The Court hears that that company has responded as
required by section 10(1) of the PIPA, accepting that it is a
proper respondent.  There has been no response by the
respondent in this originating application.  Mr Le Guinio says
that was the reason for the application being made so that the preliminary steps required by the PIPA occur, and proceeding seeking damages can be got underway.  The limitation period will expire early in December this year.

The respondent in correspondence has on more than one occasion
indicated that it's taking time to investigate whether the
"reasonable excuse for the delay" referred to in section 9(5)
has been given and further whether it suffers prejudice if
Mr Jenkins' claim is allowed to proceed.

Today Mr de Jersey representing it is submitting that what his
client is faced with is not a "Part 1 of a notice of claim"
complying with the PIPA: although there is purported to
be offered a "reasonable excuse", his client contends that
there is in truth no reasonable excuse offered and that the Court should so determine. On this basis, it is said that section 10 need not be complied with.

It's submitted on the basis of what Judge Alan Wilson (as he then was) said in he Ellery v Australian Liquor Marketers Pty Ltd [2005] QDC 068 at paragraph [11] that each period of delay ought to be the subject of a reasonable explanation or excuse if the Court is to provide an indulgence to a claimant. Another factor which courts are considering in contexts such as the present (which his Honour adverted to) is that of
prejudice which may be occasioned to a respondent/putative
defendant if delay is excused.  Prejudice is referred to in
section 18(2) of PIPA. Here, as in Ellery, authorisastion to proceed despite non-compliance with section 9 is sought under
section 18(1)(c)(ii), but the principal relief sought is a general law declaration of compliance rather than a declaration under section 18(1)(c)(i) of non-compliance having been remedied. The last period of delay which his Honour considered related to the time from 6 May until 21 June 2004, which is comparable in days with the so-called “delay” from 30 October 2009 until 14 December 2009. His Honour noted the
excuse for the six week period was "work commitments" which,
as I read the reasons, was seen as “not reasonable”: the solicitor could have been seen out of hours.  There had been no explanation given for earlier periods of delay of much longer duration.  The six weeks of inaction was seen as on “a lower plane” than the unexplained earlier delays which ran from November 2001.  It is not clear at all that, had the earlier delay been explained, the short delay at the end would have embarrassed Ellery.

I am not persuaded for purposes of the decision the Court is
asked to make today that a separate "reasonable explanation"
or “reasonable excuse” for Mr Jenkins' inaction in the last six weeks is required.

Mr Le Guinio said he surmised that he had some difficulty in
getting Mr Jenkins to attend at the office to sign the
documents, which would, assuming it to be correct, not explain the delay after 27 November 2009.  In my opinion, a broader approach should be taken here.  Mr Jenkins is saying that, despite considerable efforts to identify the appropriate defendant(s), not until 30 October 2009 was the respondent identified.  In my opinion, reasonable excuse has been given.  The circumstances are different from Ellery, where the absence of an affidavit of the applicant personally was seen as “troubling” (para [12]).  Here, it is unlikely that Mr Jenkins could have added to what Mr Le Guinio says in relation to identifying the appropriate defendant.

I do not think that in the circumstances such as the present
where the claim is not yet statute-barred it is appropriate to
penalise someone in Mr Jenkins' position by way of excluding
him from pursuing mandatory pre-litigation procedures because
things have not been done with alacrity.  It seems highly
unlikely that last the six weeks of delay would have had any effect on the prejudice which the respondent now asserts in
affidavits the subject of leave to read and file given by the
Court today.

I note Mr de Jersey's undertaking that a more perfect version
of the affidavit of Ms Raspotnik will be provided.

Inadvertently those concerned with the taking of that
affidavit omitted to have it signed by the deponent and
witnessed at the end, although the relevant signatures appear
on the first page.  Ms Raspotnik is a director of
administration of the respondent who confirms that its
workplace health and safety officer on the site, Mr Filmer,
no longer works for the respondent, no more does the site
manager, Mr Iles who worked under a subcontractor arrangement.
Affidavits from both gentlemen have been obtained, so that
nothing would seem to turn on their not having any present
employment contract or other contractual relationships.
Both gentlemen have provided affidavits that indicate they
have no knowledge of Mr Jenkins' accident.

It seems clear that the accident wasn't made known to the
respondent at the time or indeed at any time prior to the Part 1 notice of claim going to it.  There are general assertions
in the affidavits that care was taken to keep the road outside
the construction site clear of debris.

It is asserted that at the accident day the work was 90
percent complete with no major building works other than
internal fitout being carried out on the site, which arguably
makes it unlikely that gravel and sand on the road would have
come from or been connected with the site.  It is contended that the site was closed on the day of the accident, which was a Saturday.  The Court is also told that there was a rubbish collection on 7 December 2007 from the site.  As a matter of commonsense and logic, it's obviously one explanation for the presence of debris on the road that the respondent's activities played no part whatever in its being there.  It's not for the Court to speculate today along those lines.

The claim the applicant wants to pursue makes sufficient
sense.  It's corroborated by the police officer’s
contributions and also by photographs which appear to depict
debris that the applicant's girlfriend supposedly took at the scene the day following.

It is inescapable that there is prejudice to the respondent
from its not having heard of the accident until more than two
years afterwards.  As I said, I don't think that prejudice
increased over the last six weeks.

Mr de Jersey has made it clear that his client doesn't rely
only on the absence of any "reasonable excuse" for the
period following 30 October 2009.  He points out that the
first paragraph of the "reasonable excuse" proffered is
identical with what was told to the Public Trustee nearly 10
months before, so that nothing pertinent to injury having resolved or otherwise is relevant.

It is contended against Mr Jenkins that if Opus was capable of
identifying Spaceframe Buildings Pty Ltd's involvement, so
should Mr Jenkins have been.

In my opinion, it's appropriate for the Court to be
understanding of Mr Jenkins' situation and indulgent towards
him.  The circumstances are relatively complex involving a
good number of participants.  I think that considerable
expenditure of resources would have been required for
Mr Jenkins to elicit the information which the loss
investigator provided in the report dated 14 October 2009.
Interestingly, that followed the Part 1 notice of claim of
30 March 2009 so that action was hardly quick in eventuating
in that regard.  In Ellery, the Court was apparently satisfied that the applicant failed to give sufficient instructions to the solicitor.  Mr Jenkins cannot fairly be criticised on that score.

In my opinion, although criticisms might be made, "reasonable
excuse" has been provided here.  It's the responsibility of
the applicant to show that.  It's accepted by the respondent
that it has the responsibility of establishing prejudice which
might induce the Court not to indulge the applicant.  Prejudice to the respondent does not determine whether a reasonable excuse has been given.  While sympathetic to the difficulties it will confront, I am not persuaded that it points to prejudice to an extent which would dissuade the Court from keeping open to Mr Jenkins the way to prosecuting a claim in the Court.  Mr Le Guinio has asserted that the respondent is likely to be brought in in third party
proceedings by PJP Properties in any event.  I accept from
Mr de Jersey that is not a relevant consideration for the
Court today.

The consequence is that the applicant ought to have the relief
it seeks, namely a declaration that it has provided a
reasonable excuse for delay pursuant to section 9(5) and a
declaration that it has given a complying Part 1 notice of
claim pursuant to section 9 of the PIPA. I will hear the
parties as to other relief that might be granted but there
seems no reason not to order the respondent to provide its
response pursuant to section 10(1) of the Act within 14 days,
that each party have liberty to apply on five business days'
written notice to the other.  There is also an issue of costs.

...

HIS HONOUR:  Costs are reserved and I make it clear that the
liberty to apply covers any application for costs.

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