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Taylor v Stratford

Taylor v Stratford

Case [2003] QSC 427 16 December 2003

Civil Litigation & Procedure

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SUPREME COURT OF QUEENSLAND

CITATION:

Taylor v Stratford & Ors [2003] QSC 427

PARTIES:

GLENN NEIL TAYLOR
(applicant)
v
GRAHAM STRATFORD
(first respondent)
and
ACME FIREWORKS PTY LTD ACN 091 527 132
(second respondent)
STATE OF QUEENSLAND
(third respondent)

FILE NO:

S6632 of 2003

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

16 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2003, 15 December 2003

JUDGE:

Wilson J

ORDER:

On the application filed 28 July 2003:

1.   Declaration that the applicant provided a reasonable excuse for the delay in giving the respondents a part 1 notice of claim pursuant to s 9(1) of the Personal Injuries Proceedings Act 2002 (Qld)

2.   Declaration that the applicant gave the respondents a complying part 1 notice of claim pursuant to s 9(1) of the Personal Injuries Proceedings Act 2002 (Qld) on 14 May 2003

On the application filed 10 December 2003:

1.   Order that leave be granted to the applicant pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (Qld) to file a claim for damages for loss of consortium and loss of servitium arising out of the personal injuries suffered by Lorraine Susan Taylor on 20 May 2000;

2.   Order that any proceeding commenced pursuant to such leave be stayed pending the determination of any appeal against my decision on the first application and pending the final determination of the proceeding commenced on 12 June 2003

CATCHWORDS:

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where applicant allegedly failed to serve notice of claim for loss of consortium and servitium pursuant to s 9 Personal Injuries Proceedings Act 2002 (Qld) – where application for declaration that applicant provided reasonable excuse for the delay in giving the respondents such a notice – where relevant Form of Notice of Claim made no provision for loss of consortium claim – where notice was served late – where applicant’s solicitor has acknowledged responsibility for delay – where applicant not personally to blame – whether reasonable excuse

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where applicant allegedly failed to serve complying notice of claim for loss of consortium and servitium – where application for declaration that applicant has given a complying notice – where no particular forms provided for loss of consortium and servitium claims – where neither Act nor Regulations specified requirements for notice of loss of consortium and servitium claims – where applicant’s solicitor prepared notice of claim in which applicant’s wife was named as the injured person and the particulars related to her – where applicant’s solicitor edited notice to include applicant’s details – whether applicant has given a complying notice

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where alternatively applicant seeks leave to proceed with the claim despite non-compliance – whether leave should be granted

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where judgment delayed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Taylor v Stratford

Details

AGLC: Taylor v Stratford [2003] QSC 427
Case: [2003] QSC 427
Decision Date: 16 December 2003

CaseChat Overview and Summary

In the matter of Taylor v Stratford, the Queensland District Court was asked to determine whether the applicant had provided a reasonable excuse for the delay in serving a notice of claim for loss of consortium and servitium. The applicant, Lorraine Susan Taylor, alleged that she was injured in a motor vehicle accident on 20 May 2000, and her husband, the applicant in this case, sought damages for the injuries she suffered. The legal issues before the court involved whether the applicant had given a complying notice of claim and whether leave should be granted to proceed with the claim despite the non-compliance.

The court found that the applicant had provided a reasonable excuse for the delay in giving the respondents a part 1 notice of claim. The relevant Form of Notice of Claim made no provision for a loss of consortium claim, and the notice was served late. The applicant's solicitor had acknowledged responsibility for the delay, and the applicant was not personally to blame. The court also found that the applicant had given a complying part 1 notice of claim, as the notice of claim in which the applicant's wife was named as the injured person and the particulars related to her, and the applicant's solicitor edited the notice to include the applicant's details.

In light of these findings, the court granted leave to the applicant to file a claim for damages for loss of consortium and loss of servitium arising out of the personal injuries suffered by Lorraine Susan Taylor on 20 May 2000. However, any proceeding commenced pursuant to such leave was to be stayed pending the determination of any appeal against the court's decision on the first application and pending the final determination of the proceeding commenced on 12 June 2003.

Orders

Orders of the court

On the application filed 28 July 2003:

1. Declaration that the applicant provided a reasonable excuse for the delay in giving the respondents a part 1 notice of claim pursuant to s 9(1) of the Personal Injuries Proceedings Act 2002 (Qld)

2. Declaration that the applicant gave the respondents a complying part 1 notice of claim pursuant to s 9(1) of the Personal Injuries Proceedings Act 2002 (Qld) on 14 May 2003

On the application filed 10 December 2003:

1. Order that leave be granted to the applicant pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (Qld) to file a claim for damages for loss of consortium and loss of servitium arising out of the personal injuries suffered by Lorraine Susan Taylor on 20 May 2000;

2. Order that any proceeding commenced pursuant to such leave be stayed pending the determination of any appeal against my decision on the first application and pending the final determination of the proceeding commenced on 12 June 2003

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Taylor v Stratford [2003] QSC 427

Most Recent Citation

SG v State of Queensland [2004] QCA 215

Cases citing this decision · 4 of 4 shown

Baioumy v Wendt
[2017] QDC 55 Para 1

…n of “a reasonable excuse for the delay” in relation to s 37(3) of the Motor Accident Insurance Act 1994, and said: [27] Taylor v Stratford & Ors [2003] QSC 427 at [18]-[19]…
Newson v Aust Scan Pty Ltd t/a Ikea Springwood
[2010] QSC 223 Para 1

…Defendant [2003] QCA 555; Piper v The Nominal Defendant [2003] QCA 557; Miller v The Nominal Defendant [2003] QCA 558; and, Taylor v Stratford [2003] QSC 427, at [18] per Margaret Wilson J. [8] Perdis v The Nominal Defendant (supra) at [12], [13] per Davies JA…
Kitson v NQEA Australia Pty Ltd
[2006] QSC 220 Para 1

…ctive basis. The satisfaction required by the legislation is compendiously described by Wilson J in Taylor v Stratford[7] in the following terms:- [7][2003] QSC 427…
SG v State of Queensland
[2004] QCA 215 Para 5

…plication in any meaningful way in any other circumstances it would seem necessary to construe it as Wilson J did in Taylor v Stratford & Ors [2003] QSC 427 at [25]-[27]. Her Honour therein expressed an inclination to the view that a notice would be a complying notice if its contents satisfied the requirements of…

View all 4 citing cases →

Cases cited in this decision · 7 of 7 shown

Kash v SM & TJ Cedergren Builders
[2003] QSC 426 Para 1

…lying notice because it (or at least part 1 of it) was given late, and he referred to statements by PD McMurdo J in Kash v SM & TJ Cedergren Builders [2003] QSC 426 and Wilson SC DCJ in Stanton v DMK Forest Products Pty Ltd [2003] QDC 150 to the effect that a late notice is a not a complying notice.…
Miller v Nominal Defendant
[2003] QCA 558 Para 1

…red by the Court of Appeal in Perdis v Nominal Defendant [2003] QCA 555; Piper v Nominal Defendant [2003] QCA 557; and Miller v Nominal Defendant [2003] QCA 558. As a result of that trilogy of cases it is now clear -…
Piper v Nominal Defendant
[2003] QCA 557 Para 1

…r Accident Insurance Act 1994 which was considered by the Court of Appeal in Perdis v Nominal Defendant [2003] QCA 555; Piper v Nominal Defendant [2003] QCA 557; and Miller v Nominal Defendant [2003] QCA 558. As a result of that trilogy of cases it is now clear -…
Perdis v Nominal Defendant
[2003] QCA 555 Para 1

…is similar to that in s 37(3) of the Motor Accident Insurance Act 1994 which was considered by the Court of Appeal in Perdis v Nominal Defendant [2003] QCA 555; Piper v Nominal Defendant [2003] QCA 557; and Miller v Nominal Defendant [2003] QCA 558. As a result of that trilogy of cases it is now clear -…
Stanton v DMK Forest Products Pty Ltd
[2003] QDC 150 Para 1

…referred to statements by PD McMurdo J in Kash v SM & TJ Cedergren Builders [2003] QSC 426 and Wilson SC DCJ in Stanton v DMK Forest Products Pty Ltd [2003] QDC 150 to the effect that a late notice is a not a complying notice.…
Curran v Young
[1965] HCA 14 Para 1

…In Curran v Young (1965) 112 CLR 99 the High Court had to determine whether at common law, in the absence of a relevant statutory provision, contributory negligence by an injured wife would defeat her husband’s claim for loss of consortium. The Court held that it would not, because the husband’s action was independe…
Wright v Cedzich
[1930] HCA 4

…r by the defendant’s conduct. It is an action for the damage caused to the husband by the injury of the wife: see generally Wright v. Cedzich (1930) 43 CLR 493. He must, of course, prove that some act or omission of the defendant was a substantial cause of the harm done to the wife. That requirement is satisfied in…

Legislation cited in this decision · 6

Civil Liability Act 2003 (Qld)
81 3 mentions (from Para 1)
Motor Accident Insurance Act 1994 (Qld)
37 2 mentions (from Para 1)
Personal Injuries Proceedings Act 2002 (Qld)
4 2 mentions (from Para 1)
Acts Interpretation Act 1954 (Qld)
32AA 1 mention (from Para 1)
Limitation of Actions Act 1974 (Qld)
11 1 mention (from Para 1)
Personal Injuries Proceedings Amendment Act 2002 (Qld)
1 mention (from Para 1)

CITATION:	Taylor v Stratford & Ors [2003] QSC 427
PARTIES:	GLENN NEIL TAYLOR (applicant) v GRAHAM STRATFORD (first respondent) and ACME FIREWORKS PTY LTD ACN 091 527 132 (second respondent) STATE OF QUEENSLAND (third respondent)
FILE NO:	S6632 of 2003
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	16 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	5 August 2003, 15 December 2003
JUDGE:	Wilson J
ORDER:	On the application filed 28 July 2003: 1. *Declaration that the applicant provided a reasonable excuse for the delay in giving the respondents a part 1 notice of claim pursuant to s 9(1) of the Personal Injuries Proceedings Act* 2002 (Qld) 2. Declaration that the applicant gave the respondents a complying part 1 notice of claim pursuant to s 9(1) of the Personal Injuries Proceedings Act 2002 (Qld) on 14 May 2003 On the application filed 10 December 2003:** 1. Order that leave be granted to the applicant pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (Qld) to file a claim for damages for loss of consortium and loss of servitium arising out of the personal injuries suffered by Lorraine Susan Taylor on 20 May 2000; 2. Order that any proceeding commenced pursuant to such leave be stayed pending the determination of any appeal against my decision on the first application and pending the final determination of the proceeding commenced on 12 June 2003
CATCHWORDS:	LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where applicant allegedly failed to serve notice of claim for loss of consortium and servitium pursuant to s 9 Personal Injuries Proceedings Act 2002 (Qld) – where application for declaration that applicant provided reasonable excuse for the delay in giving the respondents such a notice – where relevant Form of Notice of Claim made no provision for loss of consortium claim – where notice was served late – where applicant’s solicitor has acknowledged responsibility for delay – where applicant not personally to blame – whether reasonable excuse LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where applicant allegedly failed to serve complying notice of claim for loss of consortium and servitium – where application for declaration that applicant has given a complying notice – where no particular forms provided for loss of consortium and servitium claims – where neither Act nor Regulations specified requirements for notice of loss of consortium and servitium claims – where applicant’s solicitor prepared notice of claim in which applicant’s wife was named as the injured person and the particulars related to her – where applicant’s solicitor edited notice to include applicant’s details – whether applicant has given a complying notice LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where alternatively applicant seeks leave to proceed with the claim despite non-compliance – whether leave should be granted LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where judgment delayed…