Matheson v GJ Gardiner Homes
[2005] QDC 216
•16 June 2005
DISTRICT COURT OF QUEENSLAND
CITATION:
Matheson v. GJ Gardiner Homes [2005] QDC 216
PARTIES:
Carol Ann Matheson v. GJ Gardiner Homes
FILE NO/S:
106/05
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Maroochydore
DELIVERED ON:
16 June 2005
DELIVERED AT:
Maroochydore
HEARING DATE:
13 May 2005
JUDGE:
K.S. Dodds
ORDER:
Application refused
CATCHWORDS:
PERSONAL INJURY - Section 18 (1) Personal Injuries Proceedings Act 2002 –Declaration. Wh. remedied failure to give a complying notice of claim; wh. authorisation given to proceed despite non compliance; Section 59 (2) (b) –wh. proceedings may be commenced after period of limitation expired.
COUNSEL:
Mr Horvath (applicant)
Mr Schneidewin (respondent)
SOLICITORS:
Schultz – Toomey O’Brien (applicant)
Quinlan Miller & Treston (respondent)
This was an application by a potential plaintiff for damages for personal injury. It appears the respondent has been incorrectly named. The occupier of the material display home was Morcraft Pty Ltd trading as GJ Gardner Homes.
By application filed 7 April 2005 and subsequently amended, the applicant sought:
a declaration pursuant to S. 18 (1) (c) (i) of the Personal Injuries Proceedings Act 2002 (PIPA) that : “the applicant has remedied the non compliance contained in Part 1 of the Notice of Claim form” required by the Act and provided to the respondent;
Alternatively, the applicant be given leave pursuant to S. 18 (1) (c) (ii) to proceed further with the claim despite the non compliance with Part 1 of the Notice of Claim form;
Further, the applicant be given leave pursuant to S. 59 (2) (b) of the Act to commence court proceedings based on the claim even though the period of limitation has ended.
Supporting the application were affidavits from the applicant and her solicitors. Exhibited to those affidavits were two statutory declarations which were provided to the respondent when the applicant’s Notice of Claim form pursuant to PIPA was regarded as non compliant.
The following may be distilled from the affidavits and exhibits:
The applicant was born on 1 September 1960. She is now 44. On 3rd February 2002 in her work as a real estate agent, she had shown a display home belonging to the respondent to prospective buyers. Having left the house, she was walking down the steep exposed aggregate driveway of the house yard. A sprinkler was watering and the driveway was wet. She slipped and injured herself.
On 5 February 2002, she saw a Dr Fitzgerald and was X – Rayed. On 29 July 2002 she lodged a Workcover claim form which was approved for a left rotator cuff strain. Prior to that she was attempting to provide for medical treatment from her own resources but was not able to afford it. As time passed her injuries were not improving and she was becoming increasingly stressed. She continued working until December 2002. During this period, work was very busy and she was suffering extreme pain. Throughout, her employer was voicing resentment about the Workcover claim because he considered his premiums would increase. His opinion, which he shared with the applicant, was that her symptoms were due to stress. He wanted her to withdraw her workcover claim. She was concerned about losing her job. She withdrew her claim on the 15th of November 2002.
On the 5th of September 2002 she saw her present solicitors regarding a possible claim for damages. She was advised of the requirements of PIPA, that she would need to complete a Notice of Claim form and was advised of the time limits.
During the period from when she was injured to December 2002, she became extremely anxious. On 16th December 2002, a Dr Jonstone diagnosed an anxiety disorder and pain. She contacted Workcover with respect to her anxiety disorder. To use her words in one of the statutory declarations she “was under the impression that both of my cases were connected. By this I mean that my accident at GJ Gardner display Homes at Peregian Springs on 13 February 2002 resulted in me suffering from anxiety disorder and pain. The fact that I was overworked and stressed physically and mentally resulted in me not being able to follow through with my Workcover claim and also my personal injuries claim against GJ Gardner.”
On 9 January 2003 she had a nervous breakdown. She was confined to bed for two weeks. She was put on medication. There followed phobic disorders including an inability to answer phones and leave her home. On 29 April 2003 she lodged a stress related workcover claim with workcover.
She did not attend to the completing of the claim form. This was due to psychological breakdown.
An affidavit from her solicitor deposes that at the first consultation on 5 September 2002 a Notice of Claim form was partially completed and the applicant was to provide further details to finalise the form. On 9 September 2002, 19 September 2002, 15 November 2002, letters were sent by the solicitors to the applicant about completion of the form. On 4 February 2003 the solicitors received a voicemail message that the applicant had had a breakdown and would not get the information needed. On 5 February 2003 the solicitors contacted the applicant. She informed she had had a nervous breakdown and had not been able to obtain all documents required. She was urged to do so as soon as possible. On 9 February 2003 a letter was sent to the applicant by her solicitors, confirming an appointment on the 13th of February 2003 for the purposes of finalising the Notice of Claim. The applicant did not attend. On 4 March 2003 the solicitors wrote to the applicant referring to her failure to attend at the appointment and stressing it was imperative that the Notice of Claim be completed. On 3 April 2003 the solicitors again wrote to the applicant advising they would be closing their file. On 27 July 2004 the applicant saw her solicitors to discuss her claim. She was told that in the circumstances she would need to provide a reasonable excuse for delay in providing a Notice of Claim. The next day a letter was sent to the applicant advising of the matters required to complete the Notice of Claim.
On 29 September 2004, a Notice of Claim was served on the respondent, together with an excuse for the delay. The excuse provided included part of that which I have set out above; her employer had been extremely upset about the Workcover claim because he considered his premiums would increase, because of fear she would lose her job she did not follow through with that claim, she continued to work extremely long hours and as a result developed an anxiety disorder, she contacted Workcover again about her anxiety disorder, at that stage she was under the false impression that her claim with Workcover was connected with her claim with GJ Gardner Homes, she was overworked and stressed physically and mentally and was unable to deal with the claims against Workcover and GJ Gardner, as a result of the fall, subsequent stress and anxiety disorder, she eventually had a nervous breakdown, she suffered many phobic disorders including a fear of answering the phone and leaving her home, as a consequence she could not complete the Notice of Claim. She had been receiving therapy from psychologists since her breakdown and only recently had been able to deal with the issues involved, she recently contacted her solicitor.
In response to the notice and explanation served on the respondent on the 21st of September 2004, the respondent’s solicitors on the 21st of October 2004 advised that on the information available to them they were unable to decide whether their client was a proper respondent to the claim. They also advised they did not consider the notice compliant, the excuse provided for the delay was not reasonable as it lacked particularity and contained inconsistencies. They requested a statutory declaration with respect to the reasonable excuse for delay. That letter posed a number of questions to be answered in the statutory declaration to be provided, namely;
“1. on what date did the claimant lodge a Workcover claim;
2. On what date did the claimants employer state that he was “extremely upset” over the claim;
3. On what date did the claimant decide to cease or not follow through with the Workcover claim;
4. On what date did the claimant develop the alleged psychiatric conditions;
5. upon what date or dates did the claimant contact Workcover with respect to her psychiatric conditions;
6. Identify the medical practitioner that the claimant attended with respect to her psychiatric conditions and the dates of these attendances;
7. Upon what date did the claimant contact her solicitor with respect to the claim after the alleged lessening or abatement of her psychiatric conditions.”
On the 19th of November 2004, the applicant provided a statutory declaration purporting to address the questions.
On the 29th of November 2004, the respondent’s solicitors advised that the notice was not compliant, the statutory declaration failed to address the questions raised in the letter of the 21st of October, the respondent did not waive the non compliance issue and considered the applicant had failed to comply with section 9 of PIPA.
On the 7th of January 2005 the applicant supplied a further statutory declaration purporting to address the questions. Its content is also part of the distillation set out above.
On 8 February 2005 the respondent’s solicitors responded, advising it was still considered the notice did not comply with the provisions of PIPA, the applicant’s excuse was not accepted as constituting a reasonable excuse for the delay. The letter continued “in our view your client had sufficient time in which to lodge her initial notice form, after obtaining advice from her solicitor, and also after the introduction of PIPA. The reasons your client has given as to why she did not lodge her initial Notice of Claim are insufficient and not reasonable. We do not waive this requirement and maintain your client’s notice is not compliant.”
The provisions of PIPA for the purpose of this application commenced on 18 June 2002. Pursuant to the transitional provisions of PIPA in force, the applicant was required to give to the respondent her notice of claim pursuant to section 9 of PIPA on or before 29 December 2002. In the event that was not done (as here) her obligation to give the notice continued and a reasonable excuse for delay was required to accompany the notice.
The limitation period has expired. No proceedings have been commenced. The only way in which the applicant may now proceed is if the limitation period was to be effectively extended.
Section Section 59 PIPA is entitled “Alteration of Period of Limitation”. It provides: “(1) If a complying notice of claim is given before the end of the period of limitation applying to the claim the claimant may start a proceeding in a court based on the claim even though the period of limitation has ended.
(2) However the proceeding may be started after the end of the period of limitation only if it is started within-
(a) six months after the notice is given or leave to start the proceeding is granted;
(b) a longer period allowed by the court;
(3) Also if a proceeding is started under subsection 2 without the claimant having complied with part 1 the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends;
(4) If a period of limitation is extended under the Limitations of Actions Act (1974) part 3, this section applies to the period of limitation as extended under that part”.
A complying notice of claim, that is, a notice of claim given under section 9 or 14 of PIPA and that is given as required under Chapter 2 Part 1 Division 1 of PIPA, within the limitation period is a precondition to the court’s jurisdiction under section 59. The respondents position was that no complying notice of claim was given as required.
There are a number of ways under PIPA in which a notice of claim may be or become a complying notice of claim. Until there is a complying notice of claim a claimant is prevented in proceeding further with their claim. Section 18. Section 18 (1) (c) (i) and (ii) of PIPA however provide ways in which a claimant who has failed to give a complying notice of claim may be able to proceed with their claim. The court on application by a claimant may declare that the claimant has remedied the claimant’s failure to give a complying notice of claim or the court may authorise the claimant to proceed further with the claim despite the non compliance. The latter authorisation may include conditions the court considers necessary or appropriate to minimise prejudice to a respondent from a claimant’s failure to comply with the requirement to give a complying notice of claim. S. 18 (2).
In my view the court has no jurisdiction to authorise the applicant to proceed further with her claim under S. 18 (1) (c) (ii). The period of limitation has expired. The court’s jurisdiction under Section 59 to extend the limitation period is dependant upon a complying notice of claim being given before the end of the period of limitation.
The court’s power to declare a claimant has remedied their failure to give a complying notice of claim is provided for in Section 18 (1) (c) (i). It is also provided for in S. 20 (2) (b). The latter Section provides that when a notice of claim is not a complying notice, the recipient of the notice “is taken to have been given a complying notice of claim when …
(b) the court makes a declaration that the claimant is taken to have remedied the non compliance or authorises the claimant to proceed further with the claim despite the non compliance.”
The respondent submitted that a declaration now made by the court that the claimant has remedied the non compliance will not assist the applicant. Under section 20 (2) (b) the respondent was taken to have been given a compliant notice of claim only when the court makes the declaration contemplated therein. Such a declaration was prospective. It could have no retrospective operation.
Once the declaration contemplated under section 18 (1) (c) (i) is made, then the claimant has remedied the non compliance, in other words the notice of claim in issue becomes a complying notice of claim. The claimant may proceed further with their claim. However I do not think this assists the applicant for the purposes of section 59 because it does not have the effect that a complying notice of claim was given before the end of the limitation period.
The applicant referred me to the judgment of Chesterman J in Morrison Gardner v. Car Choice Pty Ltd 2004 QCA 480 Para 92 where His Honour speaking of Section 57 (1) of the Motor Accident Insurance Act 1994 (MAIA) expressed a view that there may arise cases where a non complying notice given within the limitation period will suffice for the purposes of Section 57. His Honour’s reasons focus on the particular wording of Section 57 (1) and Section 39 of that Act. Whilst the scheme of PIPA is similar to MAIA the wording of similar sections of PIPA differs from the wording which His Honour was focusing on. I do not think Morrison Gardner assists the applicant in the circumstances here where the period of limitation has expired.
For these reasons I do not think the application can succeed. However, I should indicate that even if I am wrong in this view, I would not be disposed to make the declaration sought or give leave to proceed.
There are a number of reasons for reaching that view of it. There is the considerable delay between 5 September 2002 and December 2002 despite the applicant’s solicitor’s doing their best to have the notice of claim form completed. The time limits had been explained to the applicant. There is the lack of any supporting material for what is said to be a psychological inability to attend to the notice of claim form from December 2002 until 27 July 2004. There is the lodging of a stress related workcover claim on 29 April 2003. There is the claim that the claimant thought her workcover claim and a claim against the respondent were connected. While some confusion or lack of clarity may have existed, I do not think it explains the disregard for the requirement apparently clearly explained to attend to the notice of claim. Finally I consider that inevitably, the respondent will suffer some prejudice because of the considerable delay particularly with respect to causation of damage. This is touched upon in a report of Dr Mark Byrne dated 1 March 2005, contained in a copy of workcover’s file exhibit PT 1 to the affidavit of Peta Twomey, filed 26 April 2005.
The application is refused.
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