Cayley v Gladstone Regional Council [2023] QSC 195

SUPREME COURT OF QUEENSLAND CITATION: PARTIES: FILE NO/S: DIVISION: PROCEEDING: ORIGINATING COURT: DELIVERED ON: DELIVERED AT: Cayley v Gladstone Regional Council [2023] QSC 195 KERRIE LOUISE CAYLEY (applicant) v GLADSTONE REGIONAL COUNCIL (respondent) S 845/23 Trial Division Application Supreme Court at Rockhampton 28 August 2023 Rockhampton HEARING DATE: 23 August 2023 JUDGE: Crow J ORDER: 1. Pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), the applicant be given leave to commence proceedings within 60 days of one of the following events occurring: a. A compulsory conference being held pursuant to s 36 of PIPA and mandatory final offers being exchanged in accordance with s 39(1) of PIPA; or b. The date of agreement, if the parties dispense with the compulsory conference by agreement pursuant to s 36(4) of PIPA; or c. An order by the Court, pursuant to s 36(5) of PIPA, dispensing with the compulsory conference. 2. The applicant pay the respondent’s costs of the application on a standard basis. CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OF POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURY MATTERS – where the applicant claims to have suffered personal injuries as a result of a single motor vehicle accident in September 2020 – where the applicant issued a complying Notice of Claim under the Personal Injuries Proceedings Act -- 1 of 12 -- 2 2002 (Qld) (PIPA) within the time limitation period – where the claim has not progressed as required by PIPA – where the three-year period of limitation pursuant to the Limitation of Actions Act 1974 will expire on 3 September 2023 –where the applicant filed an application seeking leave pursuant to s 59(2)(b) of PIPA – where the respondent resist this application – whether the applicant has leave to commence proceedings within 60 days of a compulsory conference being held, or the date of the agreement to dispense with the compulsory conference, or an order pursuant to s 36(5) of PIPA dispensing with the compulsory conference. Personal Injuries Proceedings Act 2022 (Qld), s 10, 12, 13, 20, 20(1)(a), 22, 25, 27(1)(a) 35, 36, 36(4), 36(5), 39(1), 59, 59(2)(b) Limitation of Actions Act 1974 (Qld) s 11 Folwell v Maher [2020] QSC 162 Paterson v Leigh & Anor [2008] QSC 277 COUNSEL: Mr A Arnold for the applicant Mr Isaacs, solicitor, for the respondent SOLICITORS: Shine Lawyers for the applicant King & Company for the respondent [1] The applicant, Ms Cayley, suffered personal injuries in a single motor vehicle accident on 3 September 2020. The accident occurred on the Tablelands Road near Essenden Bridge when Ms Cayley was driving towards Bundaberg. [2] Ms Cayley has described that she was driving her motor vehicle at 90km/h along the Tablelands Road when her vehicle started to lose traction, she lost control of the vehicle and it struck a tree. Ms Cayley estimated she was driving her motor vehicle at 90km/h in a 100km/h zone. [3] Following the accident, Ms Cayley was transferred by ambulance from the accident site to Rosedale State School, then flown by helicopter to the Bundaberg Base Hospital. [4] In her diagram annexed to her PIPA Form 1, Ms Cayley has identified gravel on the road and has alleged that there were not any roadworks signs upon the road to warn her of the presence of gravel. In the traffic accident report compiled by police, it is stated: -- 2 of 12 -- 3 “It is the opinion of police that the driver of Unit 1’s motor vehicle has lost traction due to recent roadworks occurring at the location. The road consisted of some loose gravel which appears to have compromised the traction…” [5] Following the accident, Ms Cayley acted promptly in attending upon Shine Lawyers in Bundaberg on 28 September 2020. On 27 October 2020, Ms Cayley completed a Form 1 Notice of Claim under the Personal Injuries Proceedings Act 2002 (PIPA) and it was given to the respondent on 30 October 2023. [6] It is common ground that Ms Cayley’s claim has not progressed as required by PIPA, and the three-year period of limitation pursuant to s 11 of the Limitation of Actions Act 1974 will expire on 3 September 2023. [7] On 9 August 2023, Ms Cayley filed an application seeking leave pursuant to s 59(2)(b) of PIPA to commence proceedings within 60 days of a compulsory conference being held, or the date of the agreement to dispense with the compulsory conference, or an order pursuant to s 36(5) of PIPA dispensing with the compulsory conference. The respondent resists this application. [8] Section 59 of PIPA provides: 59 Alteration of period of limitation (1) If a complying part 1 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) 6 months after the complying part 1 notice is given or leave to start the proceeding is granted; or (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 Limitation of Actions Act 1974, part 3, this section applies to the period of limitation as extended under that part. [9] In Folwell v Maher [2020] QSC 162, Bowskill J (as her Honour then was) said at [4]: -- 3 of 12 -- 4 “[4] The decision of McMeekin J in Paterson v Leigh [2008] QSC 277, in relation to the equivalent s 57 of the Motor Accident Insurance Act 1994, contains a helpful summary of the relevant principles which apply to the exercise of the discretion on an application such as this: (a) The discretion to be exercised in respect of an application pursuant to [s 59(2)(b) of the PIPA] is unfettered; (b) The onus lies on the applicant to show good reason why the discretion ought to be exercised in his or her favour; (c) Where an applicant is able to show that the delay which has occurred was occasioned by a ‘conscientious effort to comply’ with the Act then that would normally be good reason for the favourable exercise of the discretion but is not a ‘dominating consideration’. Conversely, claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them may have difficulty obtaining a favourable exercise of the discretion; (d) Where an applicant is not able to show that the delay was occasioned by ‘a conscientious effort to comply’ with the Act that is not fatal to the application; (e) Any delay on the part of a claimant in complying with the Act’s requirements or in applying for an extension of time will be relevant to the exercise of the discretion; (f) The length of any delay is important and possible prejudice to the defendant is relevant; (h) Depriving a defendant of the complete defence afforded by the statutory time bar is an important matter; (i) The interests of justice are of course the overriding consideration and in that regard the question of whether a fair trial of the proceedings is unlikely is an important consideration; (j) The giving of a notice of claim before the expiry of the limitation period and compliance by a claimant with the provisions of the Act that it provide any information sought by the insurer are both relevant factors.” [footnotes omitted] [10] The respondent opposes the application on the basis the applicant has failed to show good reason why the discretion ought to be exercised in her favour when there is potential prejudice to the respondent generally and further to allow the application will deprive the respondent a complete defence under the Limitations of Actions Act 1974 (Qld). -- 4 of 12 -- 5 [11] It is conceded by the applicant that it cannot show that there has been a conscious effort to comply with the Act, however, as stated at paragraph (d) above, that is not fatal to the application. [12] In Paterson v Leigh & Anor [2008] QSC 277 at [9], McMeekin J said: “[9] Here the second respondent argues that the delay that has occurred is such that the application should be denied. As will be seen there appears to be no particular prejudice to the second respondent alleged by this delay; the second respondent has itself been guilty of significant delay and has ignored its own obligations under the Act; whilst some criticism can be levelled at her the applicant has, through her solicitors, been endeavouring to prepare her material; and what delay there has been seems to largely centre on the obtaining of an ultra sound report which might be thought not to be of central relevance to assessing the claim and which, if the second respondent had wished to exercise its powers under the Act, it could have long since obtained.” [13] There are several features in the applicant’s case that are similar to the application brought by Ms Paterson. The first is that the respondent does not suggest there is any particular prejudice being suffered. Rather, the only prejudice is prejudice by effluxion of time. In the present case, that is of no great consequence as Ms Cayley brought her claim promptly, thus notifying the respondent of its need to investigate, and police investigated the accident. [14] Exhibit SH6 is a copy of a right to information released from the respondent which appears to record a detailed inspection of the accident area prior to the accident. Exhibit SH6 is a detailed document of some 187 pages and it includes photographs and a description of road conditions pre-accident. Exhibit SH6 contains details of “Two accidents as a result of road works loose gravel left on road at Tablelands Road”.1 [15] In addition, there are several other incidents relating to the road repair noted in Exhibit SH6. Insofar as the respondent contends there is general prejudice from an effluxion of time, I would conclude that the factual circumstances surrounding the accident have been carefully investigated by police officers and the circumstances were well known to council as a result of the applicant’s accident and other accidents as noted 1 Exhibit SH6 at page 153. -- 5 of 12 -- 6 in their file. There is no suggestion by the respondent that it has suffered any prejudice in respect of its defence of the quantum aspect of the plaintiff’s case. In short, any prejudice to the respondent is minimal. [16] A second matter similar to Paterson is the conclusion that whilst the applicant has been guilty of delay, the respondent also has been guilty of delay and has ignored its own obligations under PIPA. The relevant timeline is that following the accident of 3 September 2020, Ms Cayley attended upon Shine Lawyers in Bundaberg on 28 September 2020. Ms Cayley signed a Form 1 PIPA Notice of Claim on 27 October 2020 and it was forwarded to the respondent on 30 October 2020. [17] Under s 10 of PIPA, the respondent was required to give a s 12 notice within a month of receipt of the Notice of Claim. It is common ground the respondent failed completely in respect of its obligations under s 12, as it did not send a s 12 response at all. The consequence under s 13 of PIPA is that it is conclusively presumed that Ms Cayley sent a complying Notice of Claim in a most timely manner. [18] As the Part 1 Notice of Claim was given on 30 October 2020, the claimant’s liability response under s 20 was due 30 April 2021. It was received some seven and a half months later on 8 December 2021. The respondent’s obligations as set out in s 20 of PIPA are quite onerous. Section 20 provides: “20 Respondent must attempt to resolve claim (1) Within the period prescribed under a regulation or, if no period is prescribed, within 6 months after a respondent receives a complying part 1 notice of claim, the respondent must— (a) take reasonable steps to inform himself, herself or itself about the incident alleged to have given rise to the personal injury to which the claim relates; and (b) give the claimant written notice stating— (i) whether liability is admitted or denied; and (ii)i f contributory negligence is claimed, the degree of the contributory negligence expressed as a percentage; and (c) if the claimant made an offer of settlement in part 2 of the notice of a claim, inform the claimant whether the respondent accepts or rejects the offer, or if the claimant did not make an offer of settlement in part 2 of the notice, -- 6 of 12 -- 7 invite the claimant to make a written offer of settlement; and (d) make a fair and reasonable estimate of the damages to which the claimant would be entitled in a proceeding against the respondent; and (e) make a written offer, or counter offer, of settlement to the claimant setting out in detail the basis on which the offer is made, or settle the claim by accepting an offer made by the claimant. (2) If part 1 of a notice of a claim is not a complying part 1 notice of claim, a respondent is taken to have been given a complying part 1 notice of claim when— (a) the respondent gives the claimant notice that the respondent waives compliance with the requirement that has not been complied with or is satisfied the claimant has taken reasonable action to remedy the noncompliance; or (b) the court makes a declaration that the claimant is taken to have remedied the noncompliance, or authorises the claimant to proceed further with the claim despite the noncompliance. (3) An offer, or counter offer, of settlement must be accompanied by a copy of medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss, in the offerer’s possession that may help the person to whom the offer is made make a proper assessment of the offer. (4) A respondent or claimant to whom a written offer, or counter offer, of settlement is made must, unless a response to the offer is to be made under subsection (1)(c), respond in writing to the offer within the period prescribed under a regulation or, if no period is prescribed, within 3 months after receiving it, indicating acceptance or rejection of the offer. (5) An admission of liability by a respondent under this section— (a) is not binding on the respondent in relation to any other claim; and (b) is not binding on the respondent at all if it later appears the admission was induced by fraud.” [19] It is not in dispute that the respondent has not complied with its obligations under s 20 of PIPA. The respondent’s solicitors, King & Co, were appointed by the respondent on 11 December 2020. King & Co promptly wrote to Shine Lawyers on 16 December 2020 informing them they had been instructed by the respondent in the matter and that they “Expect to be in contact with you in the near future.” -- 7 of 12 -- 8 [20] Apparently without any further contact, approximately one month later on 20 January 2021, Shine Lawyers wrote to King & Co noting that there was not a response pursuant to ss 10 or 12 of PIPA, enclosing further liability material and advising the respondent’s solicitor of the timelines under PIPA. Shine requested discovery of all relevant documents related to the accident, which, under s 27(1)(a), was due to be received 20 February 2021. Shine also reminded the respondent of the necessity of its s 20 liability notice response by 30 April 2021, and asked for a compulsory conference to occur by mid-June 2021. [21] On 28 January 2021, King & Co wrote to Shine seeking information pursuant to s 22 of PIPA. The applicant has not directly answered the request for information but rather on 15 February 2021, forwarded the Part 2 Notice of Claim under PIPA and additional documents being the Centrelink portal search, photos of the vehicle and the incident site and a receipt for cleaning. [22] Whilst the applicant has not responded to the request for information of 22 January 2021, the respondent has not made any application under s 35 of PIPA to enforce compliance with the request. If the respondent wishes to have the information sought, it can apply. [23] As set out in s 20(1)(a), the respondent has positive obligations to take reasonable steps to inform itself about the incident and is entitled to send an information request pursuant to s 22. However, if a claimant fails to answer a s 22 application, the obligation placed upon a respondent under s 20(1)(a) does not abate. The obligations imposed by the Act in order to attempt to efficiently manage personal injury claims falls upon both claimants and respondents. The applicant’s and the respondent’s material does not say what, if anything, occurred between April 2021 and 29 September 2021. [24] On 29 September 2021, Shine Lawyers contacted King & Co requesting the s 20 liability response, which was then overdue by approximately five months. The respondent supplied the s 20 response by the end of the year. On 17 November 2021, Shine Lawyers wrote to King & Co requesting the overdue s 20 response, and it was provided on 8 December 2021 with a denial of liability. -- 8 of 12 -- 9 [25] It seems to me insofar as the claim has proceeded slowly, the predominant cause of the delay in proceeding with the claim between the lodgement of the claim on 30 October 2020 and the receipt of the s 20 response some 13 months later on 8 December 2021, lay at the feet of the respondent. [26] The situation then appears to change insofar as in the first 13 months, the delay is occasioned by the respondent, in the last year and a half, the delay has largely been occasioned by the applicant. As between the parties, it would appear that there was no correspondence between 8 December 2021 and 9 August 2023. [27] On 9 August 2023, Ms Nolan of Shine Lawyers contacted Mr Isaacs of King & Co providing an update on the claim and explaining “That the matter had been held in abeyance while the applicant’s injuries stabilised” and that Shine now held instructions to proceed with medicolegal examinations. Ms Nolan also sought the consent of the respondent to an extension of the period of limitations until 60 days post compulsory conference. [28] Subsequent to 9 August 2023 there has been regular correspondence between the parties with respect to the need for the extension of time due to the fact that the three year time limitation period will expire on 3 September 2023. [29] As to what occurred between 8 December 2021 and 9 August 2023, the affidavit of Ms Hansen, solicitor in the employ of Shine Lawyers, deposes that on 25 February 2022, Ms Nolan contacted the applicant seeking an update upon the applicant’s injuries. The applicant advised that she had recently returned to work on a part-time basis and was struggling to cope, that her injuries were not stable and she intended to undergo further treatment. This information was not supplied to the respondent. [30] There is then a gap of almost 11 months to 20 January 2023 when a different solicitor in the employ of Shine Lawyers contacted the applicant seeking an update on the applicant’s injuries. The applicant advised she was undergoing ongoing investigations. She expected to be reviewed by an ENT specialist within the next couple of months. There is no suggestion that information was passed to the respondent. There is no information upon what, if anything, the applicant’s solicitors did to progress the applicant’s claim in that 11-month period between 25 February 2022 and 20 January 2023. It would appear that no one from Shine Lawyers even -- 9 of 12 -- 10 sought to contact Ms Cayley until 27 July 2023 when Ms Nolan attempted to contact the applicant for the purpose of obtaining an update on the injuries, but was unable to reach the applicant. That was the only occasion when the applicant was not able to be contacted by the applicant’s solicitor. [31] Shortly after on 7 August 2023, Ms Nolan did contact the applicant for the purpose of obtaining an update. The applicant advised on 7 August 2023 that investigations in respect of the treatment for her injuries were finalised and that she would continue with ongoing conversative treatment. It was in the consultation of 7 August 2023 that Ms Nolan of Shine Lawyers advised the applicant of the necessity to bring proceedings prior to the expiration of the time limitation on 3 September 2023. [32] There is no suggestion in the applicant’s material that the applicant was provided with any advice concerning its obligations under PIPA. In particular, in respect of the only positive obligation that the claimant has breached, namely the failure to give information requested in April 2021, there is no suggestion that the applicant was advised of her statutory duty to provide that information. [33] Accordingly, in terms of the applicant’s lack of conscientious effort to comply with the Act, the applicant’s default lay in her failure to provide information to the request of 9 April 2021. On the other hand, the respondent, despite having the statutory power to bring an application to enforce a proper response, has not done so. [34] I accept that depriving the defendant of a complete defence afforded by a statutory time bar is an important matter. It seems to me in the present application, even though the applicant has done little to progress her claim since December 2021, the respondent has done less. In terms of defaults under the statutory duties, the respondent’s breaches of s 10, s 12 and s 20 are more egregious than the applicant’s failure to respond to the s 22 request for information. [35] Under s 36 of PIPA, either party can call for a compulsory conference and the applicant has done so. In this application there is some delay, however the accident did occur less than three years ago and due to the timely reporting of the accident, the timely bringing of the claim, there is not any relevant prejudice to the defendant. [36] The applicant has provided some reasons as to lack of progress of her claim, namely that she had attempted to return to work, indeed performed work on a part time basis; -- 10 of 12 -- 11 the applicant had sought medical assistance to determine in particular the assistance of an ENT surgeon to determine whether any further treatment would be required. The timeline for the seeking of further advice for medical treatment appears to in the next couple of months beyond 20 January 2023. The outcome being, it would appear, that surgical intervention was not required but the injuries should be treated with conservative treatment. Whilst the applicant’s claim was held in abeyance whilst the applicant’s injuries stabilised, that is, in my view, not fatal to the application. [37] The respondent had a duty to assess the quantum of the plaintiff’s claim and the power under s 25 of PIPA to require medical examination. There is accordingly no medical or other evidence to contradict the applicant’s assertion that her injuries were not medically stable until early to mid-2023. There is grave difficulty in concluding personal injuries claims in the absence of injuries stabilising. Absent a claimant meeting maximum medical improvement, the claimant cannot be assessed for permanent impairment, therefore an assessment of general damages is most difficult, if not impossible. Furthermore, until the injuries have stabilised, it is extremely difficult if not impossible for medical specialists to provide any prognosis which might assist in the assessment of damages for loss of economic capacity. [38] In this application I accept that the applicant’s injuries were not stable and stationary until early to mid-2023 and, in combination with the matters referred to above, constitute good reason why the discretion ought to be exercised in the applicant’s favour. [39] I therefore make an order in terms of paragraph 1 of the application. There is no suggestion by the respondent that a fair trial of proceedings cannot be undertaken. In circumstances where the plaintiff has suffered from serious personal injury, it seems to me proper to conclude that the interests of justice favour the applicant continuing in respect of her claim for compensation. [40] I shall hear the parties as to costs. [41] I therefore make the following orders: 1. Pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), the applicant be given leave to commence proceedings within 60 days of one of the following events occurring: -- 11 of 12 -- 12 a. A compulsory conference being held pursuant to s 36 of PIPA and mandatory final offers being exchanged in accordance with s 39(1) of PIPA; or b. The date of agreement, if the parties dispense with the compulsory conference by agreement pursuant to s 36(4) of PIPA; or c. An order by the Court, pursuant to s 36(5) of PIPA, dispensing with the compulsory conference. -- 12 of 12 --