Moore v Ink Attack Tattoo Studios

[2003] QDC 568

DISTRICT COURT OF QUEENSLAND

CITATION:	Moore v Ink Attack Tattoo Studios [2003] QDC 568
PARTIES:	ANTHONY DAVID MOORE Applicant AND INK ATTACK TATTOO STUDIOS Respondent
FILE NO/S:	D108/03
DIVISION:	District Court
PROCEEDING:	Civil
ORIGINATING  COURT:	District Court at Maroochydore
DELIVERED ON:	3 September 2003
DELIVERED AT:	Ipswich
HEARING DATE:	11 July 2003
JUDGE:	Richards DCJ
ORDER:

It is declared that the applicant has given the respondent a complying notice under the Personal Injuries Proceedings Act 2002 and that the respondent is a proper respondent to the claim. The respondent is ordered to pay the applicants costs of this application to be assessed.

CATCHWORDS:	Complying notices – Personal Injuries Proceedings Act 2002
COUNSEL:	Mr G D Garrick for Applicant Mr N B McGregor for Respondent
SOLICITORS:	Boyce Garrick for Applicant Elfis and Somers for Respondent

1. This is an application to the Court seeking declarations:

a) that the applicant has given notice to the respondent under section 9 of the

Personal Injuries Proceedings Act 2002

b)	that the notice given to the respondent is a complying Notice of Claim
c)	Alternatively that the applicant has remedied any alleged non-compliance under Section 18(1)(c)(i) of the Act
d)	Authorising the applicant to proceed further with the claim despite non- compliance under section 18(1)©(i) of the Act
e)	that the respondent is a proper respondent to the applicants claim.

FACTS

1. The applicant visited the respondent’s tattoo parlour in the week of the 26 November 2001 whereupon a tattoo was applied to his right-upper arm/shoulder by an employee of the respondent. On the 3rd December 2001 the applicant returned to the tattoo parlour and had a tattoo applied to his left-upper arm/shoulder.

2. In the week preceding the 21 March 2002 the applicant first suffered symptoms of lack of energy, lethargy, and some stomach cramps. He consulted his general practitioner, Dr Beale, on 21 March 2002. He recommended he have blood tests. In mid-June 2002 he was not feeling well again, so on the 21st June 2002 he underwent a blood test which included a Hepatitis C test. On 26th June 2002 Dr Beale told him that he had Hepatitis C and that was the probable cause of him feeling unwell and lacking in energy.

3. On the 14th August 2002 Dr Beale referred him to Dr Don Walker, an endocrinologist, for an opinion. In that letter he indicated that the applicant had Hepatitis C which seemed to have been contracted from tattooing done in December 2001. Blood tests were carried out by Dr Walker on the 2 September 2002 and on 12 December 2002 positive Hepatitis C blood tests were received by him.

4. On 2 October 2002 the applicant consulted Boyce Garrick lawyers in relation to a possible claim and on the 4 October 2002 a form 1 Notice of Claim was sent by registered post to the respondent.

5. That form was sent pursuant to his claim being a claim under the Personal Injuries Proceedings Act 2002 – Section 9 of which states:

“9 (1) Before starting a proceeding in a court based on a claim, a claimant must give written notice of the claim in the approved form to the person against whom the proceeding is proposed to be stated.

(2)	The notice must :-
(a)

Contain a statement of the information required ……

(3) The notice must be given within a period ending on the

earlier of the following days:

(a)The day nine months after the day the incident giving rise to the personal injury or if the symptoms of the injury are not immediately apparent, the first appearance of the symptoms of the injury.

(b)The day one month after the day the claimant first consults a lawyer about the possibility of seeking damages for the personal injury and the person against whom the proceeding is proposed to be started is identified.”

1. On the 31 October 2002 the respondent’s lawyers Elfis and Somers replied to the notice confirming that they acted on behalf of the respondent and they indicated that they were unable to decide if they were the proper respondents to the claim. They requested further information and indicated that they were not satisfied that the notice was a complying notice and gave reasons set out in that letter. They asked for identifying details of the person who applied the tattoos, a photograph of the applicant and the tattoos and copies of medical reports together with workers compensation claims. They questioned the date of the alleged incident.

2. In a letter dated the 21 November 2002 those queries were answered. The date was changed from the 2 December 2001 to 3 December 2001 and photos were provided. A letter was sent back on 4 December 2002 from the respondent’s solicitors indicating that they were still unhappy with the notice of claim.

3. At the hearing of this matter the issues were set out by the applicant’s counsel as follows:

   (1) whether the respondent is a proper respondent under the
   Personal Injuries Proceedings Act.
   (2) whether the notice of claim given is a complying notice of
   claim.
   (3) whether if the notice is not a complying notice of claim whether
   the applicant should be given permission to proceed,
   notwithstanding non-compliance.

4. It was indicated by counsel for the respondent that it was accepted that the respondent was the proper respondent and that the non-compliance was said to be :

a)	failure to give notice within time.
b)	failure to link the injury to the event.
c)	failure to give a proper authority to obtain information and
d)	failure to reveal a work cover claim in relation to a shoulder injury in 2001.

WAS THE NOTICE LODGED ON TIME.

1. The applicant deposes to the fact that he didn’t feel well during the week preceding 21 March 2002. He was lacking in energy, had lethargy and some stomach cramps. This was the first time he suffered from these symptoms. He went to see Dr Beale on 21 March 2002 and he recommended a blood test.

2. He delayed the blood test until June because he was temporarily feeling better but upon receipt of his blood tests on 14 August 2002 he was told that he had Hepatitis C. At that stage Dr Beale indicated that it seemed to have been contracted from the tattooing.

3. It was submitted on behalf of the applicant that the claim was made within nine months of his first becoming aware of symptoms of the injury and within two days of consulting a lawyer so on both tests under s9 of the Act the notice was within time.

4. It was submitted on behalf of the respondents that unless there is some medical evidence linking the onset of his symptoms in March 2002 to Hepatitis C then times runs from the 26 November or that week, and time would have expired in August 2002 and thereby the notice is out of time. It was submitted that the applicant must show the symptoms of the injury were not immediately apparent after the tattoo otherwise the symptoms should be presumed to date back to December of 2002.

5. That question is really a matter of evidence on the application. The applicant provided an affidavit indicating that he was told by his doctor that the symptoms that he suffered in March 2002 were caused by Hepatitis C and the Hepatitis C has been linked by the doctor back to the tattoo. The applicant has also indicated in his affidavit that March 2002 was the first time he had suffered from these symptoms. Therefore on his affidavit there is evidence that the symptoms first appeared in March of 2002 and he was not challenged on that point. All this would have been possible on the application if the applicant had of been cross-examined but there was no indication that that was desired. [On the hearing of the application the applicant indicated that he was available for cross-examination if required.]

6. In my view there is prima facie evidence that the applicant did give notice within the nine month period allowed after the onset of symptoms and that there is sufficient connection between the symptoms and the disease.

IS THE INJURY LINKED TO THE EVENT?

1. The applicant in his Notice of Claim at question 15 is asked “Who does the injured person believe was the person that caused the incident and why?. He replied “Unsterile work practices leading to infection with Hepatitis C”. This is in my view is a sufficient statement to link the injury to the event.

2. It is important to note that Section 9 of the Personal Injuries Proceedings Act does not require absolute proof of the link to the injury at this stage of the proceedings. The question is framed only as to the injured persons belief and the reasons for that belief. The applicant has been fortified in that belief by his Doctor and in my view therefore the necessary link has been established between the injury and the event.

FAILURE TO PROVIDE AN UNCONDITIONAL AUTHORITY

1. This is an unusual case in that there was an authority signed by the applicant but then in the body of the notice, the applicant has in quite strong terms asked that a particular witness not be told that he has Hepatitis C. The respondent’s solicitors say it is impossible to interview the person without disclosing that and therefore it is a conditional permission to obtain information.

2. I cannot agree that that is the case. It is a strong request not to disclose certain information to a witness, but the witnesses name and address, and contact details are given and clearly this enables the respondent to obtain the information. Whether they comply with the request or not is a matter for them.

FAILURE TO DISCLOSE A WORKCOVER CLAIM

1. The regulations dealing with the necessity to disclose workcover claims were not gazetted until 20 December 2002.By that stage the notice of claim had already been given so there was no requirement to reveal those details although they have subsequently been revealed.

2. It was also suggested during submissions that the doctors notes should have been attached to the notice but that does not appear to be a requirement under the regulations.

3. Regulation 5 of the Personal Injuries Proceedings Regulations provides:

   “For section 9 (c) of the Act, the Notice of the Claim must be

   accompanied by the following documents:

(a)	For a claim other than a health care claim – a copy of any certificate signed by a doctor relevant to a personal injury to which a claim relates that is in the claimant’s possession……
(b)	A copy of any other document relevant to the personal injury, economic loss, treatment or rehabilitation that is in the claimant’s possession.”

1. The doctor’s notes were not in the claimant’s possession and he did not at that stage have any certificates signed by the doctor relevant to the personal injury so in my view he was not obliged under the notice to provide those documents with the notice. Though, obviously, as part of disclosure of information that should be done as soon as possible, and it was.

2. So in my view the notice is a complying notice pursuant to the relevant legislation.

DISCRETIONARY CONSIDERATIONS

1. One of the purposes of the introduction of the Personal Injuries Proceedings Act 2002 was to assist with the ongoing affordability of insurance for an appropriate and sustainable awards of damages for personal injuries which was to be achieved by providing a procedure for a speedy resolution of claims promoting early settlements minimising costs (s.4). Therefore even if the notice was a non- complying notice I would exercise my discretion arising under s.18.1(c)(ii) to authorise the applicant to proceed further with the claim despite the non- compliance in the applicant’s favour.

2. In accordance with the decision of the Court of Appeal in Thomas v Transpacific Industries Pty Ltd 2003 1QR 328, the factors relevant to the exercise of the discretion in my view are:

1.	The length of the delay.
2.	The reasons for that delay.
3.	The question of whether any prejudice has arisen as a consequence of it.
4.	Whether or not the applicant appears to have had a reasonable sustainable course of action.

1. In this case, the delay is short and the reason for the delay is that the applicant was not aware of his illness until some time in June or perhaps August of 2002. He went promptly to a solicitor and the notice was very promptly delivered to the respondent. There is no suggestion that the respondent has suffered prejudice as a result of the delay and it seems to me, as I have already stated, that there is sufficient evidence to establish to a reasonable degree that there is a sustainable course of action. The applicant is not required to show a prima facie case but he ought to be able to point to matters which, if proved, have some prospect of establishing liability in an action against the respondent and that his proposed course of action is not futile. (See Sarina and Thursday Afternoon Pty Ltd D.106 of 2003, Wilson SC DCJ relying on Thomas v Transpacific Industries Pty Ltd Supra and Simpson v Hopemount Pty Ltd & Anor 2003 QSC 078, at para.5.)

2. In relation to costs, the applicant has sought the costs of this application and it seems to me that in the spirit of this legislation this matter would have been very easily resolved between the parties but for the attitude of the respondent. In my view this is a case where costs should follow the event .

ORDER

1. It is declared that the applicant has given the respondent a complying notice under the Personal Injuries Proceedings Act 2002 and that the respondent is a proper respondent to the claim. The respondent is ordered to pay the applicants costs of this application to be assessed.