Rigby v. Currie

[2004] QDC 91

[2004] QDC 091

DISTRICT COURT

CIVIL JURISDICTION

JUDGE McGILL SC

No BD1000 of 2004

JOSS ALAN RIGBY	Applicant
and
WAYNE DANIEL CURRIE	First Respondent

and

SUNCORP METWAY INSURANCE                  Second Respondent
(ABN 075 695 966)

BRISBANE

..DATE 14/04/2004

ORDER

HIS HONOUR: This is an application under section 39(v)(c) of the Motor Accident Insurance Act 1994. The circumstances are that the applicant was injured in a motor vehicle accident on the 26th of April 2001, sometime ago now. The limitation period is therefore about to expire.

He was, apparently, seated as a front seat passenger in a vehicle that was stationery at a pedestrian crossing when it was struck from behind and, in these circumstances and, if that is what occurred and, certainly, all of the available material suggests that that is what occurred, he would appear to have a strong case on liability.  There may be some question about whether he was, as he claims, wearing a seat belt.  It does not appear that there is any evidence to the contrary at the moment, but the respondents say they have not exhausted the possibility of investigating that matter.

Subject to that, however, it would appear to be a strong case on liability which is a relevant consideration.  The applicant was thrown forward in the accident and subsequently felt pain in his neck.  He consulted a doctor who diagnosed a whiplash strain but did not think it was severe and told the applicant that he would recover in time with rest.  There was no particular treatment prescribed.  He then saw another doctor the next day and again was told that the condition would settle down.  He was told to take pain killers, if necessary, but in fact the applicant avoided them.

There were also some symptoms in his back developing over a few days, more in the form of stiffness apparently, than pain, but the symptoms abated over the next couple of months although they did not go away completely.  He lost a couple of days off work immediately after the accident but otherwise appears to have been working normally throughout although he did modify his work by avoiding heavy lifting.

There were some flare ups, although, apparently, not particularly serious flare ups in about May 2002.  His father is himself a medical practitioner, and he referred him to physiotherapy and subsequently to an orthopaedic surgeon, Dr Williams, who examined him in June 2002, just over a year after the accident.  There is available a letter which Dr Williams wrote to the applicant's father in June 2002 in which he describes episodic low back pain and neck pain which has been continuing but has not been radiating into the arms. 

He appeared to have a reasonably good range of spinal movement and not indicating much in the way of problems on examination.  Dr Williams thought that the pain would eventually settle, though over a protracted course, and in 40 per cent of such cases, the symptoms can persist for up to two years.  He suggested massage therapy and possibly a short course of anti-inflammatory agents.  It does not appear that Dr Williams thought that anything very serious was going to happy and that, in general, he expected the situation to clear up.

The applicant says that he was left with the impression that his condition would get better over time, which appears to be consistent with the letter and that, indeed, over the next 18 months or so, the symptoms did improve although, there would be the occasional flare ups.  At some stage, about July 2003, he was told that there was a three year limitation period but, at that stage, did not intend to pursue any claim.  He says that he was not comfortable with the idea of bringing a legal claim and had never had to deal with lawyers before.

Things remained the same and he would not have done anything about the matter expect that, in late January 2004, he had a very bad flare up of back and neck pain.  He was hardly able to get out of bed for a number of days and, as a result, he became very concerned that this condition may be permanent and may continue to affect his work and lifestyle indefinitely. 

It appears, from the description in the affidavit, that this flare up produced significantly worse symptoms than he had suffered up until then and caused him, not only to consider further medical treatment, but also to see some lawyers.  Up until then, although he had suffered a certain amount of pain, there had been little in the way of economic loss and it appears that he was willing essentially to put up with his symptoms and not pursue a claim.  It was really only in January 2004 that it seemed to him that he was facing a prospect of perhaps a significantly worse level of symptoms  that he became really concerned and that he decided that a claim should be pursued.
He consulted solicitors, as I say, in January 2004 and they promptly gave a Notice of Claim on the 25th of February 2004.  The Notice of Claim was not in compliance with the act because it was given too late and the respondents did not give a reasonable excuse for the delay.  What was stated in the claim was, "I thought my injuries would resolve.  Unfortunately, they have not.  I didn't know what my rights were in relation to making a claim."

There have been a number of decisions which are relevant to the approach to the exercise of the discretion under section 39(v). 

I dealt with a number of these in O'Keeffe v. Marks 2003 QDC 050.  Since then there has been some further guidance in the decision of the Court of Appeal in Piper v. Nominal Defendant 2003 QCA 557 and some related decisions at about the same time.

The position in this case is essentially that the applicant was not going to make a claim since he was prepared to put up his symptoms.  In circumstances where there would not appear to have been much in the way of economic loss and he did not foresee, perhaps reasonably did not foresee, anything much in the way of future economic loss up until January 2004, his decision not to make what would have been otherwise a very modest claim was, I think, reasonable. 

He had not had previous experience of lawyers and may well have taken the view that it would not have been worthwhile making a modest claim, given the legal costs involved, or the sort of legal costs he might well have assumed would be involved.

It may well be reasonable for a person who has had no experience of lawyers to assume that they are likely to be expensive.  Indeed, it may be reasonable for someone who has had experience of lawyers to reach the same conclusion.

In any case, the respondents have submitted that it was not reasonable for the applicant to fail to take some steps to pursue a claim and particularly to obtain legal advice so that he could be advised of the requirement to give a notice of claim prior to January 2004.  That really depends on the severity of the problems the applicant was suffering up until January 2004 and the question of whether it was reasonable for him in the light of those problems to decide not to pursue a claim.

In all the circumstances I think that on the basis of the applicant's account it was reasonable for him up until then to decide not to pursue a claim, and therefore reasonable not to have given notice of claim or indeed to have consulted lawyers for that purpose.

I think that this is not a case where I would conclude that the applicant's failure to take further action to protect his position earlier has been unreasonable.  That really explains the course of events.  So long as he was prepared to put up with his injury and not seek to pursue any claim in respect of it, his behaviour was quite reasonable. 

Once he changed his mind, a change of mind which on the material was a reasonable response to a very significant development in the course of his condition, he reacted reasonably and promptly and no delay has been asserted after that point.

The authorities indicate that it is reasonable to take into account that refusal of the application would shut out the applicant from any cause of action against the respondent forever and I have referred to the authorities in my decision of O'Keeffe. 

This is not a case where there was any question of any default on the part of solicitors.  With regard to the question of prejudice or risk of prejudice, the only prejudice apart from some difficulty in tracking down some of the people who might have been able to give some evidence relevant to the question of liability is that there has been an inability to have the plaintiff independently medically examined in a timely way.

That can be a problem if there have been subsequent events which have given rise to difficulties of disentangling the consequences of the accident from other things which have occurred before or since, and some people have spines that have very complicated histories.

It does not appear, however, that this applicant falls into that category and there is, I suppose, the advantage that a report which was not for the purposes of litigation was obtained about a year after the accident and there is no reason to doubt that was a reasonable and objective examination and by an orthopaedic surgeon and that his comments in the letter can be accepted at face value.

That evidence is available of course to both parties, for what it is worth, and in those circumstances I do not think that the fact that there was not the opportunity to have the applicant examined by a different orthopaedic surgeon of the respondent's choosing at that time is a matter of sufficient importance by way of prejudice to outweigh the other considerations to which I have referred.  There may well be some prejudice but not, I think, a great prejudice to the respondents.

The respondents are understandably concerned that it is now quite some time, or it was quite some time after the accident before notice was given, but that is really a consequence of the fact that a significant flare-up occurred quite some time after the accident.

It is inevitable that where there is a significant delay between an accident which apparently produces only mild or temporary symptoms and an indication that the condition is significantly worse that that will be the situation. Indeed, the Limitation of Actions Act contains provisions directed to extending the limitation period in certain categories of cases of that nature.

However, it is, I think, unsurprising that there would be a delay in such a situation and that is not a reason not to exercise the discretion.  I think that in all the circumstances it is appropriate to exercise the discretion and I will give leave to commence proceedings in the District Court for damages based on the claim in respect of injuries arising out of the accident on the 26th of April 2001.

...

HIS HONOUR:  I think in relation to these applications that although in a sense it is a matter of seeking the indulgence of the Court because that is the structure of section 39(5C), in substance the application is one which only becomes necessary because of the attitude of the respondent and in those cases in my view the costs essentially should follow the event; and I think, frankly, the applicant was being generous  in offering costs in the cause, in the proceeding to be commenced.  But I think that now that the issue has been argued the appropriate course is simply that the costs should follow the event and so I will order the respondents to pay the applicant's costs of the application to be assessed.

Otherwise there will be an order in terms of paragraphs 1 and 2 of the originating application with the modification in paragraph 1 that the proceedings may be commenced in the District Court.

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