Douglass v Rocla Pty Ltd [2014] QDC 182

DISTRICT COURT OF QUEENSLAND CITATION: Douglass v Rocla Pty Ltd [2014] QDC 182 PARTIES: RYAN WILLIAM DOUGLASS (applicant) and ROCLA PTY LTD (ACN 000 032 191) (respondent) FILE NO/S: 2046/14 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court of Queensland HEARING DATE: 14 August 2014 DELIVERED ON: 29 August 2014 DELIVERED AT: Brisbane JUDGE: R S Jones DCJ ORDERS: 1. The Applicant is granted leave to commence proceedings for damages arising out of an incident that occurred over a period of time between 11 October 2010 and 9 December 2010 pursuant to s 59 of the Personal Injuries Proceedings Act 2002; 2. That subject to any relaxation ordered by the Court, that the proceedings be stayed pending compliance with the pre-proceedings provisions of the Personal Injuries Proceedings Act 2002; and 3. I will hear from the parties if necessary about costs. CATCHWORDS: LIMITATION OF ACTIONS – TORT – PERSONAL INJURIES – extension of time to permit a proceeding to be started – pre-litigation procedure – Personal Injuries Proceedings Act 2002 (PIPA) – exercise of discretion – whether a compliant part 1 notice of claim existed for purposes of s 59 of PIPA – other discretionary grounds – delay on part of applicant – prejudice to defendant Personal Injuries Proceedings Act 2002 Haley & Anor v Roma Town Council & Ors (2005) QCA 3 -- 1 of 16 -- 2 Ward v Wilshire Australia Pty Ltd & Anor (2008) QCA 93 Morrison-Gardiner v Car Choice Pty Ltd (2004) QCA 480 Winters v Doyle (2006) QCA 110 Berhane v Woolworths Ltd (2013) QDC 194 Ghobrial v Assaf & Ors [2014] QDC 141 McDonald v Holy Spirit Care Sercices Ltd & Anor (2011) QDC 78 Tiver v Sunshine Coast Regional Council (2009) QDC 106 Crain v Crocker & Anor (2004) QDC 151 Patterson v Leigh & Anor (2008) QSC 277 COUNSEL: Mr Kehoe for the applicant Mr K Holyoak for the respondent SOLICITORS: Dale & Fallu Solicitors for the applicant Norton Rose Fulbright Australia for the respondent [1] This proceeding is concerned with an application pursuant to s 59 of the Personal Injuries Proceedings Act 2002 (PIPA). The relief sought was for the following orders: 1. That the applicant be granted leave to commence proceedings for damages arising out of an incident that occurred over a period of time between 11 October 2010 and 9 December 2010… 2. That subject to any relaxation ordered by the court, that the proceeding be stayed pending compliance with the pre-proceeding provisions of (PIPA); 3. Any other order the court deems appropriate; 4. That the respondent pay the applicant’s cost of and incidental to the application on an indemnity basis… [2] For the reasons set out below the orders of the court are: 1. The Applicant is granted leave to commence proceedings for damages arising out of an incident that occurred over a period of time between 11 October 2010 and 9 December 2010 pursuant to s 59 of the Personal Injuries Proceedings Act 2002; 2. That subject to any relaxation ordered by the Court, that the proceedings be stayed pending compliance with the pre-proceedings provisions of the Personal Injuries Proceedings Act 2002; and 3. I will hear from the parties if necessary about costs. Relevant statutory provisions [3] Section 4 of PIPA identifies that the main purpose of the Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injuries. And, that the main purpose was to be achieved by, among other things, providing a procedure for the speedy resolution of claims for damages, -- 2 of 16 -- 3 for personal injuries and promoting settlement of claims at an early stage wherever possible. As s 4 envisages a number of pre court procedures are prescribed under the Act. Section 9 provides for the giving of part 1 and part 2 Notices of Claim within prescribed timeframes. Section 9 also requires that the claims must be in the approved form and contain particular information. Following the giving of the prerequisite notices of claim, s 36 obliges the parties to participate in a pre-trial compulsory conference. Sections 37 and 38 deal with the exchange of material before the compulsory conference and the procedure to be adopted at the conference respectively. In the event that the matter is not resolved at the settlement conference (or sometime thereafter) the parties are then required to exchange mandatory final offers (Sections 39 and 40). Section 42 then deals with the time for starting a proceeding after the conclusion of the compulsory conference or as otherwise agreed between the parties or fixed by the court. The court has a discretion in certain circumstances to either excuse or dispense of certain prescribed requirements under the Act.1 [4] The central provision of PIPA in this application is s 59. And, as Mr Kehoe, counsel for the applicant conceded, s 59(2)(b). Section 59 relevantly provides: “Alteration of period of limitation (1) If a complying part 1 notice of claim is given before the end of a 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 end of the period of limitation only if it is started within – (a) … (b) a longer period allowed by the court.” [5] As can be seen any relief granted under s 59(2) is dependent upon the existence of a complying Part 1 Notice of Claim being given before the end of the limitation period. Section 59(3) provides that if a proceeding is started under ss (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. In the circumstances of this application in the event that the relief sought was granted any proceeding would be stayed until the applicant had given his part 2 notice (s 9(3A)), participated in a compulsory conference and, in the event that settlement was not reached, exchange mandatory final offers (s 39 and 40). Background and chronology [6] The applicant asserts that he suffered a work related injury. At the time of the incident he was 21 years of age. The circumstances and nature of the injury as set out in the WorkCover claim are variously described as:  A sprain or strain that occurred while the applicant was “using right shoulder above chest height repeatedly”2;  Right rotation cuff sprain that occurred as a result of “heavy manual lifting above head height”3. 1 Eg. Section 42(2) and s 43. 2 Exhibits to affidavit of Mr Daniel Davison filed 8 August 2014 at p 1. 3 Ibid p 4. -- 3 of 16 -- 4 The date of the injury was said to have occurred on 25 November 2010 but was not reported until 9 December 2010. [7] In the permanent impairment assessment report requested by the insurer (prepared by Dr Harding) the injury was described as a “right shoulder subacromial bursitis with impingement” and the “mechanism of injury” was described in these terms: “Mr Douglas is a 21 year old labourer. The worker reported a two to three month history of full time work with a concrete pipe manufacturer. During this time the worker was reportedly exposed to repetitive upper limb manual activities involving the levering of metal clamps to release supporting moulds during the manufacture of concrete pipes. Following approximately two months of these duties, in November 2010 the worker developed anterior shoulder joint pain with radiation of pain into the right side of the neck and right upper limb.”4 [8] Dr Harding also reported that “the reported mechanism of injury is consistent with a inflammation of the brusal surfaces of the right shoulder joint leading to impingement”. No tendon tear was noted but evidence of bursitis with impingement was reported by the radiologist.5 Under the heading “permanent impairment assessment and code allocation” Dr Harding reported: “Right shoulder joint subacromial bursitis with impingement – 2% (two) partial permanent impairment of right upper extremity function under Q-Comp Tables of Injuries (Workers Compensation and Rehabilitation Act 2003) under code 1401.”6 [9] Following a number of attempts a Part 1 notice that complied with the PIPA was finalised on 31 May 2013. Prior to that however, on 28 April 2011 based on the assessment made by Dr Harding, WorkCover Queensland offered a lump sum payment of compensation of $4,247.80. That offer was accepted by the applicant on 8 May 2011.7 It is clear by reference to the documents that the payment of compensation was for the injury identified by Dr Harding and reported in paragraph 8 above. [10] In the PIPA Part 1 notice the injury suffered by the applicant as a consequence of the incident at work was described as a “SLAP/Bankart Lesion Right Shoulder”8 an injury described as a “Right Shoulder Muscle/Tendon Strain”, was described as an injury or disability that pre-existed the subject work related injury.9 Given the description and location of that injury and the fact that Dr Harding is reported as the treating doctor it is likely that it and the subacromial bursitis diagnosed by Dr Harding are one in the same. Dr Treffene carried out an arthroscopic procedure with labral repair on the applicant on or about 2 August 2011. Following continual reporting of pain by the applicant on or about 15 August 2011 Dr Traffene further diagnosed the applicant as suffering from “a bankart lesion which is basically an 4 Ibid at p 7 5 Ibid at pp 8 and 9. 6 Ibid at p 10. 7 Ibid pp 12-16. 8 Ibid p 27. 9 Ibid p 29. -- 4 of 16 -- 5 injury to the anterior of the labarum of the shoulder.”10 I should note here that there has been, consistent with the provisions of the PIPA, extensive but not complete exchange of material, including medical reports, between the parties. [11] Following a request for information made by the respondent’s solicitor the applicant, in a statutory declaration, deposed to, among other things: “Delay I was not aware of the bankart lesion/SLAP tear injury until I was operated on by Dr Traffene in August 2011… I then waited until my injury stabilised to obtain a further report from Dr Melson received by my solicitors in April 2012. …”11 [12] On 6 December 2012 the respondent’s solicitor made the following relevant inquiry: “Question 20 requires your client to provide details of the injuries they sustained in the incident. Your client has written ‘SLAP/Bankart Lesion Right Shoulder’. Considering that a SLAP injury and a Bankart Lesion are different injuries, kindly provide clarification whether your client claims to have suffered either a SLAP injury, a Bankart Lesion or both.”12 [13] On 14 January 2013 the applicants then solicitors then wrote to the respondent’s solicitors advising that they were seeking medical advice about the issues raised. No doubt based on that medical advice on 8 March 2013 they replied to the respondent’s solicitors in the following terms: “We refer to your letter of 6 March 2013 and advise our client’s instructions are that he is not seeking personally injuries in respect of any SLAP tear”. Based at least in part on that advice on 31 May 2013 the respondent’s solicitors wrote to the then solicitors for the applicant advising that they considered the Part 1 notice to be compliant. [14] Accompanying the written submissions on behalf of the applicant was a chronology which relevantly provided: 11.10.10 to 09.12.10 Applicants sustained personal injuries during the course of his employment …. 09.12.10 to 13.05.11 WorkCover Queensland make statutory payments to the claimant for his wages and medical treatment. 13.05.11 WorkCover Queensland issued a notice of assessment referable to the applicant’s right shoulder injury. 02.08.11 Applicant undergoes surgery for his right shoulder complaint. 04.08.11 Applicant instructs Peter Chappel Solicitors to pursue a claim for damages referable to his right shoulder injury. 10 Exhibit to affidavit of Joshua Sheaffe filed 28 July 2014 (JAS1). 11 Exhibits to affidavit of Mr Daniel Davison filed 8 August 2014 at p 39. 12 Ibid p 43. -- 5 of 16 -- 6 23.08.12 Applicant serves a notice of claim for damages on the respondent. 06.09.12 Respondent’s solicitor advises the applicant’s notice of claim is non-compliant. 18.10.12 Applicant’s then solicitors provide a statutory declaration under the applicant’s hand addressing the issues of non-compliance. 06.12.12 Respondent’s solicitors advise notice of claim remains non- compliant. 20.12.12 Applicant’s then solicitors provide a further statutory declaration dealing with the issues of non-compliance. 10.01.13 Respondent’s solicitors again advise that the notice remains non- compliant and seeks clarification of issues. 14.01.13 to 08.03.13 Applicant’s then solicitors correspond with respondent’s solicitors advising that the injury being claimed was a bankart lesion. 31.05.13 The respondent through its solicitors advises that the notice is compliant. 05.13 Applicants claim is transferred from then solicitors (Peter Chappel) to Kevin Bradley solicitor. 11.10.13 Applicant’s period of limitation expires.13 12.13 Kevin Bradley solicitors advises that he is no longer prepared to act for the applicant. 26.03.14 Applicant provides instructions to Dale Fallu to pursue the claim for damages. … 30.05.14 Application filed by applicant seeking leave to commence proceedings. [15] While that chronology identifies a number of significant matters as between the parties’ respective solicitors it does not set out the full history concerning the applicant’s alleged work injuries. Some time prior to September 2012 the applicant made a further claim on WorkCover for work related injuries. The description of 13 The basis for this date is unclear to me. On the information in the Part 1 NOC the relevant date would seem to be 25/11/2013 or, as the applicant’s case is now being advanced arguably, 9/12/2013. -- 6 of 16 -- 7 the relevant work was materially the same as that identified in the documents already referred to and the nature of the injury was described as a “Right Shoulder SLAP/Bankart lesion”. On 28 March 2013 the applicant’s WorkCover claim was rejected. On 10 May 2013 the applicant sought a review of that decision and on 27 June 2013 Q-Comp issued its reasons for decision confirming the original rejection of the claim. Following that advice the applicant then sought to appeal that decision to the Queensland Industrial Relations Commission (QIRC) and a compulsory conference was set down for 3 September 2013 with hearing dates set aside for the appeal on 9 and 10 January 2014. From the material before me it would appear that the applicant withdrew that appeal sometime in late March early April 2014. In the meantime, on 16 December 2013 Kevin Bradley, the solicitor then acting for the applicant, wrote to the respondent’s solicitors stating in part:14 “My client’s appeal had been set down for hearing on 9th and 10th January next, it is now likely to be adjourned because Dr Melsom is overseas until the end of January. Vice President Linnane of the QIRC has indicated that any new date is likely to be in mid 2014. It had been my client’s intention to await the outcome of the appeal before taking any further steps in his claim against your client. In the event of a successful (sic) out of the appeal it might have been possible to resolve the claim against your client without incurring unnecessary trouble and expense to our respective clients. However, if the appeal is unlikely to be heard before mid 2014, my view is that something needs to be done to preserve my client’s rights under PIPA. I have been instructed to advise that my client intends to make an application to the District Court at Brisbane seeking the following orders pursuant to s 59(2)(b) of PIPA for the following orders…” [16] It has been necessary to set out of the above matters in some detail because of the nature of the submissions made on behalf of the respondent. The arguments [17] Before going on to deal with those issues more concerned with the exercise of the court’s discretion, Mr Holyoak, counsel for the respondent submitted that there was a threshold issue which, if decided in favour of his client, would necessarily defeat the application. This submission, centred around whether as a consequence of certain conduct on the part of the applicant there was no longer a compliant Part 1 Notice of Claim. As discussed earlier, relief under s 59 of the PIPA is only available if such notice is given. In paragraph 9 of his written submissions Mr Holyoak advanced the argument in this way: “In other words, like court proceedings enforcing an action, what must be the subject of the NOC is the cause of action – the basis of liability. It is not possible for there to be a ‘complying part 1 Notice of Claim’, which can activate s 59(2)(b), if what in effect is claimed is not only a new injury but, in reality, a new basis of liability. In order to activate ss 59(2)(b), essentially the basis of liability must be 14 Ibid pp 102-103 (note: date wrongly described as 16 November 2013). -- 7 of 16 -- 8 the subject of a complying part 1 Notice of Claim given before the end of the limitation period.” (Footnotes deleted). [18] During oral submissions this argument was advanced at various times and in various ways.15 Mr Holyoak finally put his client’s position in these terms:16 “… so your Honour will recall that the incident that’s described was August 2010 to November 2010, now we’re talking about some events between October 2010 and December 2010, and quite clearly the applicant has distinguished all the way through between the incident that caused the bankart lesion and that which caused the subacromial bursitis. So the short and simple point, in the end, when one looks at the construction of the PIPA, is the complying notice of claim, having been given in respect of an incident – a basis of liability from 20 August 2010 to 25 November 2010 which produced an injury described in a particular way appears to be different, without any explanation, it seems, in the applicant’s own material, because the applicant’s maintained that distinction from that which the applicant now seeks relief for. The applicant seeks relief for – if it was just another injury, we wouldn’t be having this conversation, but the applicant seeks relief for an injury which seems to come from another time period and the applicant has all the way through distinguished between the two. So is that the same basis of liability? Can the applicant point to a complying Part 1 Notice of Claim which gives written notice in accordance with s 9 of the Claim? With respect, the answer is no.” [19] With all due respect I am unable to accept this argument. The part 1 Notice of Claim which the respondent accepted as being compliant on 31 May 2013 has, following the further particularisation of the applicant’s solicitor abandoning the SLAP injury, at all time been the bankart lesion right shoulder injury.17 The right shoulder muscle/tendon strain has been identified as a pre existing injury.18 In this regard it is also of some relevance that the claim was accompanied by a significant number of medical reports. Also, importantly the alleged cause of the injury remains unchanged.19 The only material change has been to the dates over which it is said the injury might have occurred. In the Notice of Claim it was identified as being some time between August 2010 to 25 November 2010. It has now been identified that the relevant period is, between 11 October 2010 to 9 December 2010. However, as Mr Kehoe pointed out, the change to those dates was the consequence of, following disclosure on the part of the respondent, the identification of the actual period that the applicant was relevantly employed. From my reading of the material there has been no change to the nature of the injury underlying the claim nor a change to what allegedly caused that injury. Further, in my view the change of 15 Transcript (T) 1-30 L 40-50; T 1-31 L 1-10; T 1-39. 16 T 1-48 L 22-40. 17 It may be that the correct description of the injury can only be determined after hearing medical evidence. However, as Mr Kehoe said, the resolution of that dispute (if any) is not for now. See Bell v Australia Meat Holdings Pty Ltd [2003] QCA 209; Berhane v Woolworths Limited [2013] QDC 194. 18 Refer to paragraphs 20 and 24 of the notice. 19 Refer to paragraphs 9, 11 and 18 of the notice. -- 8 of 16 -- 9 dates would in no way interfere with the respondent’s ability to clearly identify the case which it confronts. The claim that the applicant intends to litigate is that identified in the notice including the description of the injury given therein. Accordingly, there is no basis for considering that the Notice of Claim as presently formulated is not a compliant one for the purposes of the PIPA. For reasons given below, I consider the respondent’s concerns about a “subacromial bursitis with impingement” to be largely misconceived. Discretionary matters [20] It is not in contest that the court’s discretion in cases such as this is an unfettered one but one that has to be exercised judicially and having regard to the stated objects of the PIPA. On behalf of the respondent a number of matters have been raised which it says would lead to the discretion not being exercised in favour of the applicant. These are: (i) The lack of any “conscientious effort” on the part of the applicant to comply with the relevant provisions of the PIPA and in particular the lack of any satisfactory explanation for delay prior to the expiration of the limitation period and delay after the expiration of that period; (ii) Whether the applicant had effectively abandoned the PIPA proceedings; (iii) Prejudice caused to the respondent because of the delay; (iv) Whether or not in all the circumstances a fair trial can still be had. [21] Counsel for both sides referred to in both their written submissions and oral argument to the judgment of McMeekin J in Paterson v Leigh & Anor20. In Paterson his Honour relevantly said: “Applications of this type have come before the courts on a number of occasions. I have been referred to decisions of the Court of Appeal in Morrison-Gardiner v Car Choice Pty Ltd; Winters v Doyle; Ward v Wiltshire Australia Pty Ltd & Anor; Cottle v Smith & Anor and Gitsham & Ors v Suncorp Metway Insurance Ltd. The principles that seem to emerge from these cases are: (a) The discretion to be exercised in respect of an application pursuant to s 57(2)(b) of the Act is unfettered; (b) The onus lies on the applicant to show good reason why the discretion ought 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; 20 [2008] QSC 277 at paras 7 and 8. -- 9 of 16 -- 10 (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 deleted). [22] Turning then to the four discretionary matters identified above the first two are closely related. In his written submissions Mr Holyoak articulated the respondent’s position as follows:21 “32. Meanwhile, the three year limitation period against the respondent had expired. There had been no, or virtually no activity in the claim against the respondent and no information supplied to the respondent. The information which the respondent was able to obtain, it obtained via WorkCover as WorkCover had made the respondent a contributor to the DCRA claim. 33. Prior to the expiration of the limitation period on 25 November 2013 or, according to the claim currently before the court, 9 December 2013, the applicant had not taken any step and made no conscientious effort to comply with the steps required by chapter 2 of the PIPA after giving the NOC in August 2012. 34. It was not until it was clear that the WCRA claim was ‘stopped in its tracks’ after WorkCover’s refusal to accept it as an injury which could pass through s 237 of the WCRA for a common law remedy at all, that the applicant purported to renew interest in the PIPA claim. 35. The PIPA claim against the respondents sprang into life on 16 December 2013. 36. Importantly, although the court has abundant grounds to infer that the applicant had abandoned the PIPA claim in favour of the WCRA claim before the end of the period of limitation, that is expressly stated to have been the applicant’s intention in the letter of 16 December 2014 where the applicant’s then solicitor, Kevin Bradley, wrote 21 At paras 32 – 37. -- 10 of 16 -- 11 that ‘it had been my client’s intention to await the outcome of the appeal before taking any further steps in his claim against your client. In the event I was successful (outcome) of the appeal it might have been possible to resolve the claim against your client without incurring necessary trouble and expense to our respective clients’. 37. As noted, the applicant’s material does not address these matters at all and ignores them. This is a case where the applicant’s affidavit material is more conspicuous about what it does not say rather than what it says.” (Footnotes deleted). [23] Before proceeding further it is of significance that proceedings under the PIPA regime differ markedly from many other forms of civil litigation. In those cases a defendant will often have its first notice of the case it will have to meet when it receives the plaintiff’s pleadings. Under PIPA, a potential defendant is given notice of significant facts and circumstances going to both liability and quantum on completion of the Part 1 Notice of Claim, well before legal proceedings commence. The Part 1 notice step of itself makes a significant contribution to the meeting of the purposes of the Act pursuant to s 4.22 [24] On any objective reading of Mr Bradley’s correspondence dated 16 December 2013, the only inference reasonably left open is that the applicant, had not abandoned the PIPA claim but had certainly put it on hold pending the outcome of the appeal to the QIRC. It is also more likely than not in my opinion that, but for the adjournment of the appeal, Mr Bradley would not have corresponded with the respondent’s solicitor until some time after 10 January 2015 or even later when the Commission’s decision was handed down. In Winters v Doyle [2006] QCA 110 Keane JA (as he then was) was concerned with the discretion conferred by s 57(2)(b) of the Motor Accident Insurance Act 1994, a statute in similar but not identical terms to s 59(2)(b) of the PIPA. After considering the previous decision of the Court of Appeal in Morrison-Gardiner v Car Choice Pty Ltd23 his Honour relevantly said:24 “24. It can been seen that each member of this court in Morrison- Gardiner v Car Choice Pty Ltd identified, as a consideration of the central relevance to the proper exercise of the discretion conferred by s 57(2)(b) of the MAI Act, the relationship between the delay which has occasioned the need to seek relief from the operation of the statutory time bar and the plaintiff’s attempt to comply with the requirements of the MAI Act. A plaintiff will usually be able to show good reasons for the favourable exercise of the discretion conferred by s 57(2)(b) only if he or she can show that the delay which occurred was occasioned by a ‘conscientious effort to comply’ with the MAI Act. … 22 For more detailed discussions see Haley & Anor v Roma Town Council & Ors [2005] QCA 3 per Jerrard JA. 23 [2004] QCA 480. 24 At paras 24 and 32. -- 11 of 16 -- 12 32. As Chesterman J said in Morrison-Gardiner v Car Choice Pty Ltd, the purpose of s 57(2)(b) of the Act is ‘to ameliorate the plight of a plaintiff who is unable to comply with the requirements of the Act in time to commence proceedings and who, if justice is to be done, should be given the extension.’ An applicant would, therefore usually be expected to explain the extent to which compliance with the requirements of the MAI Act hampered the plaintiff in his or her attempts to commence proceedings within the limitation period.” [25] In Morrison-Gardiner v Car Choice Pty Ltd Chesterman J (as he then was) in addition to that part of his judgment referred to by Keane JA also went on to say:25 “… The discretion is likely to be exercised favourably only in those cases where a claimant’s circumstances make it difficult to comply with the requirements of the Act and commence proceedings within three years or where, despite making conscientious efforts to comply with the requirements of the Act, a claimant nevertheless does not do so within three years of the accident. 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. Claimants who ignore the obligations imposed on them by the Act or who make no conscientious effort to comply with them are unlikely to obtain an extension of time though, of course, each case must be decided on its individual merits.” [26] In his submissions Mr Kehoe referred me to a number of cases which, generally speaking, revealed a reluctance on the part of the courts to deny a potential plaintiff his right to pursue a legitimate claim because of dilatory or negligent behaviour on the part of his laywers.26 [27] In my view the conduct involved here cannot be explained away by blaming a dilatory solicitor. Instead it seems to have been as a consequence of a solicitor and client decision to deliberately put the PIPA process on hold until the QIRC process had been exhausted. In this context the letter states that it “had been my client’s intention to await the outcome of the appeal before taking any further steps in his claim against your client…”. The relevant part of that correspondence was set out in paragraph 32 of the affidavit of Daniel Davison and the purpose of identifying that part of the correspondences is obvious. That affidavit was filed on 8 August 2014 and no attempt had been made by the applicant to explain away or give the correspondence a different context. [28] In Ward v Wiltshire Australia Pty Ltd & Anor [2008] QCA 93 Fraser JA was concerned with the operation of s 57(2)(b) of the MAI Act. His Honour after referring in detail to the judgments in Morrison-Gardiner v Car Choice Pty Ltd and 25 Morrison-Gardiner v Car Choice Pty Ltd at para 82. 26 See for example Tiver v Sunshine Coast Regional Council [2009] QDC 106; McDonald v Holy Spirit Care Services Ltd & Anor [2011] QDC 78. -- 12 of 16 -- 13 Winters v Doyle went on to refer to the judgment of Fryberg J in Winters v Doyle clearly with approval. His Honour said:27 “Fryberg J recorded his agreement that the power conferred by s 57(2)(b) of the MAI Act was unfettered by any condition precedent and said, at [56]: ‘The discretion is at large. Considerations relevant to the exercise of the discretion are well known and there is no challenge in this application to the decision in Morrison- Gardiner. They include whether the delay was occasioned by the need to comply with the Act. That is an important, but not a dominating consideration. Its existence favours an extension of time. Its absence is by no means fatal to such an extension.’” [29] In paragraphs 94 to 97 his Honour went on to say: “94. Contrary to the submission for the appellant, no inference to that effect should be drawn in the appellant’s favour. In Winters v Doyle & Anor, Keane JA said at [34] that ‘it will often be the case that the nature and extent of a client’s reliance upon his or her solicitor, and the plaintiff’s lack of personal responsibility for the delay which has occurred can be satisfactorily explained only if the evidence includes an affidavit from the client.’ Here, both the client and the solicitor swore an affidavit but neither of them explained why the appellant had waited for nearly three years before bringing the application. That omission stands in marked contrast to their evidence about the delay in the earlier period. 95. In the absence of evidence on the topic from the appellant and her current solicitor, I accept the submission made for the second respondent that the application should be assessed on the premise that the appellant might have made a conscious decision, informed by legal advice from her current solicitor, not to seek to pursue her statute barred claim against the second respondent. 96. In Hall v Nominal Defendant (1966) 117 CLR 423; (1966) HCA 36, a question arose in an analogous context concerning the relative responsibilities of a plaintiff and the plaintiff’s solicitor for the failure to sue in time. Barwick CJ said at 435: ‘A conscious decision by a litigant to take a particular course after appreciating the relevant evidence and considerations in the light of which a decision is to be taken may very well in some circumstances lead directly to the conclusion that it would not be just to allow him to resile and to have an extension of time in which to sue; or at any rate provide no reason for entertaining the application to extend the time.’ 27 At para 34. -- 13 of 16 -- 14 97. In my view there would be an element of injustice in permitting the appellant not to resile from a decision not to sue the second respondent, and thereby to displace its defence to her claim, when so far as can be ascertained from her own evidence, she might have made a conscious and informed decision not to apply for an extension of time.” [30] This case of course is not concerned with an application to join another party out of time. Notwithstanding that I consider the observations of Fraser JA to be of some assistance when considering the potential ramifications of a conscious decision to pursue a certain course of conduct. [31] In this case the applicant has filed an affidavit which, under the heading “my legal representation”, addressed or attempted to address the issue of delay. The general thrust of the applicant’s affidavit in this regard is to the effect that his file had been passed through a number of solicitors and that he had never been informed or made aware of any limitation periods that might relate to his claim and otherwise left the management of his file to his solicitors. Somewhat curiously no mention is made whatsoever of the proceedings in the QIRC. [32] With no disrespect meant, the applicant is a labourer unlikely to have developed and put in place the QIRC strategy. More likely than not he would have acted in accordance with legal advice given to him; on any view of things that course of conduct involved risks for the PIPA proceeding. On the material before me I have concluded that as a consequence of the QIRC strategy the applicant had not made a conscientious effort to comply with the PIPA. However, the same material also leads me to conclude that the applicant has a reasonable explanation for that non- compliance. I am satisfied that, in this context, the applicant would not have fully appreciated the risks or consequences of putting the PIPA proceeding on hold and pursuing the QIRC strategy. [33] Turning to the question of whether there has been any unacceptable delay in applying for an extension of time, the relevant time-line is28: 31/5/2013 through his then solicitor Part 1 notice finalised: 5/2013 his file is transferred to Mr Bradley: between November and December 2013 the limitation period expires: 12/2013 for reasons unexplained Bradley advises he was no longer prepared to act for applicant: applicant seeks new solicitor: 20/1/2014 McNamara & Associates correspond with respondent’s solicitors on behalf of applicant: between January and March 2014 McNamara advises applicant they are not prepared to act on a “speculative” basis: Between 21 and 26 March 2014 current solicitors take on file: 30/5/2014 subject application filed. [34] There is no evidence that the changes in solicitors were the result of any unreasonable behaviour on the part of the applicant. Further, he clearly made attempts to source alternate legal representation once his relationship with Mr Bradley had come to an end. On taking on the applicant’s case the applicant’s current solicitors have acted quickly and efficiently in bringing this proceeding 28 Refer to unchallenged evidence in applicant’s affidavit. -- 14 of 16 -- 15 before the court. There has been no unreasonable delay in applying for an extension of time. Prejudice [35] In the affidavit of Mr Davison four matters are raised under the broad heading of prejudice to the respondent. They are described as involving “description of the system of work”, “description of the injury”, “failure to disclose details of motor vehicle accident” and “failure to respond to request information”. In his written submissions Mr Holyoak raised a further ground of prejudice being the potential of his client now having to face a larger claim for damages.29 In his oral submissions Mr Holyoak said this about the issue of prejudice:30 “… And, with respect, I put the submission on this basis: your Honour might look at each of these individually and think, well, that doesn’t go very far. But when one looks at the circumstances that we’re considering this in, where the applicant, in my submission has made no conscientious effort and has abandoned the claim, cumulatively, these things add up.” [36] In this context in Muir v Franklins Ltd31 Mullins J, with whom the other members of the court agreed said: “In accordance with Taylor, therefore, the issue is whether in absolute terms the proposed defendant can obtain a fair trial, if the extension of the limitation period were granted. If there is the possibility of significant prejudice to the proposed defendant, then a fair trial is not obtainable and the extension should not be granted.” [37] Turning then to each of the matters identified above: as to the first I am unable to identify how any delay on the part of the applicant has changed things. The nature of the work performed by the applicant and how it might have caused or contributed to the applicant’s injury has always been a live issue in this matter. As to the second matter raised I think the concerns of the respondent are largely misplaced. As I understand, the respondent’s concern is that it has lost the opportunity, because of intervening surgery, to have the applicant examined in respect of the subacromial bursitis and impingement injury. That such an injury was still being pursued in the PIPA proceeding seems to be founded on correspondence from McNamara and Associates on 20 January 2014.32 The letter is somewhat confusing but on balance I do not consider that it was necessarily signalling an intention to add to or expand the injury identified in the Part 1 Notice of Claim, being the bankart lesion right shoulder injury (the SLAP injury being abandoned). The disclosure issue concerning the applicant’s motor vehicle accident is a matter which could be readily addressed. I also consider that the applicant’s failure to respond to a request for information issued by the respondent fails to reveal any real prejudice. The reference to that part of Dr Stabler’s report dated 18 January 2013 where it is stated “I note there is evidence that the claimant was using steroids” has to be read in context. In the body of his report Dr Stabler referred to only two reported injections 29 Written submissions paragraph 50. 30 T 1-53 L 3-8 31 [2001] QCA 173 at para [56]. 32 Exhibit DJD29 (wrongly described in the affidavit as exhibit DJD23). -- 15 of 16 -- 16 of steroids and there was no suggestion that they were associated with the applicant’s gymnasium activities. Further, medical evidence would still be able to be given as to whether it was the gymnasium activity and/or the car accident that was the more likely cause of the injury. Further, the respondent’s solicitors apparent hope of finding useful gymnasium details, including CCTV footage seems extremely optimistic. It is also of some relevance on this issue that, as far as I was made aware, the only time questions were asked about the gymnasium details was on 31 May 2013 and they were directed to the applicant’s then solicitor Mr Chappel. The respondent has been aware for some time now that Mr Chappel ceased acting for the applicant and yet there has been no following up of the issue with either Mr Bradley or the current solicitor on the record. On balance I consider any prejudice to the respondent in this regard would not be such as to deny it the opportunity of a fair trial. [38] The final matter that needs to be addressed under the heading of “prejudice” was that raised by Mr Holyoak. The thrust of his submissions were to the effect that his client may now have to face a significantly larger damages claim and, in addition, has through intervening events, been denied the opportunity to carry out further medical examinations of the applicant. The basis for this submission seems to be that the respondent now faces a claim for damages in respect of a right shoulder joint subacromial bursitis with impingement injury.33 [39] I have already dealt with some of these matters and do not propose to repeat myself but some further discussion is necessary. As Mr Holyoak correctly pointed out the SLAP injury has been abandoned and the so called “Right Shoulder Muscle/Tendon Strain” injury is said in the Notice of Claim to have been a pre existing injury. The claim therefore identifies the only relevant injury as being a “Bankart Lesion Right Shoulder” injury. Mr Kehoe in oral submissions was reluctant to be tied down to a definitive medical description of the injury. Nevertheless that is the description given to the injury in the Notice of Claim and I did not understand Mr Kehoe to say that that description might also in some way include the “bursitis” injury. [40] It would be wrong to do so in my opinion. The bankart lesion and the bursitis injuries are different injuries. Further, for the reasons addressed in paragraphs 7 to 10 above, it seems tolerably clear that the pre existing shoulder injury said to be a pre existing injury and the bursitis injury grounding the WorkCover payout are the same injury. Accordingly, I am sufficiently satisfied that there is no real risk of the respondent now having to face a significantly greater claim for damages. [41] For the reasons given the orders of the court are: 1. The Applicant is granted leave to commence proceedings for damages arising out of an incident that occurred over a period of time between 11 October 2010 and 9 December 2010 pursuant to s 59 of the Personal Injuries Proceedings Act 2002; 2. That subject to any relaxation ordered by the Court, that the proceedings be stayed pending compliance with the pre-proceedings provisions of the Personal Injuries Proceedings Act 2002; and 3. I will hear from the parties if necessary about costs. 33 Written submissions para 4(a). -- 16 of 16 --