Feher v Commonwealth of Australia [2014] QDC 145

DISTRICT COURT OF QUEENSLAND CITATION: Feher v Commonwealth of Australia [2014] QDC 145 PARTIES: TIMOTHY MARTIN FEHER (applicant) v COMMONWEALTH OF AUSTRALIA (respondent) FILE NO: 2093/14 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court of Brisbane DELIVERED ON: 20 June 2014 DELIVERED AT: Brisbane HEARING DATE: 12 June 2014 JUDGE: Butler SC, DCJ ORDER: 1. Order that the applicant have leave pursuant to s 43 of the Personal Injuries Proceedings Act 2002 to start a proceeding in this court for damages for personal injury sustained on or about 6 June 2006; 2. Declared that the applicant has given a reasonable excuse for his delay in giving a Part 1 Notice of Claim pursuant to s 9(5) of the Personal Injuries Proceedings Act 2002; 3. Ordered the applicant have leave pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002 to commence a proceeding in this court for damages for personal injury sustained on or about 6 June 2006. 4. The proceedings be stayed until there is compliance with Chapter 2, Part 1 of the Personal Injuries Proceedings Act 2002. 5. The costs of and incidental to this application will be the respective parties’ costs in the cause of the proceedings to be brought. CATCHWORDS: LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – where three year limitation period has expired – where non-compliance with requirements of Personal Injuries Proceedings Act 2002 – -- 1 of 13 -- 2 whether urgent need to start proceedings – whether leave to commence proceedings should be granted. COUNSEL: R Morgan for the applicant D L Atkinson for the respondent SOLICITORS: Shine Lawyers for the applicant Minter Ellison for the respondent [1] This is an application for leave to commence a proceeding for damages for personal injuries despite non-compliance by the applicant with the requirements of the Personal Injuries Proceedings Act 2002 (“PIPA”) and despite the three year limitation period having expired. [2] At the outset the applicant sought and was granted leave to amend the originating application to add a paragraph applying for an order under s 43 of the PIPA. [3] The applicant seeks the following orders: “1. A declaration pursuant to Section 18(1)(c)(i) of the Personal Injuries Proceedings Act 2002 that the Applicant has remedied non-compliance as at 6 February 2014. 2. In the alternative, an order that the Applicant is authorised to proceed further with the claim despite the noncompliance pursuant to Section 18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002. 3. An order that the Applicant be granted leave to commence a proceeding after the expiration of the three year limitation period in the Court, based upon liability for personal injury sustained by the Applicant in an incident at the Respondent’s premises on or about 6 June 2006 pursuant to s. 43 of the Personal Injuries Proceedings Act 2002 as amended. 4. An order that the Applicant be granted leave to commence a proceeding, after the expiration of the three year limitation period, in the Court based upon liability for personal injury sustained by the Appellant in an incident at the Respondent’s premises on or about 6 June 2006, pursuant to Section 59(2)(b) of the Personal Injuries Proceedings Act 2002 as amended. 5. The proceedings be stayed until there is compliance with Chapter 2 Part 1 of the Personal Injuries Proceedings Act 2002.” Legislation [4] The main purpose of the PIPA is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury: s 4. Among the ways this is achieved are by providing a procedure for the speedy -- 2 of 13 -- 3 resolution of claims and ensuring a person may not start a proceeding without being fully prepared. The Act provides as follows: “9 Notice of a claim (1) Before starting a proceeding in a court based on a claim, a claimant must give written notice of the claim, in the approved form, to the person against whom the proceeding is proposed to be started. (1A) The approved form must provide for the notice to be in 2 parts, namely part 1 and part 2. … (3) Part 1 of the notice must be given within the period ending on the earlier of the following days— (a) the day 9 months after the day the incident giving rise to the personal injury happened or, if symptoms of the injury are not immediately apparent, the first appearance of symptoms of the injury; (b) the day 1 month after the day the claimant first instructs a law practice to act on the person's behalf in seeking damages for the personal injury and the person against whom the proceeding is proposed to be started is identified. … (5) If part 1 of the notice is not given within the period prescribed under subsection (3) or section 9A(9)(b), the obligation to give the notice under subsection (1) continues and a reasonable excuse for the delay must be given in part 1 of the notice or by separate notice to the person against whom the proceeding is proposed to be started.” “18 Claimant's failure to give part 1 of a notice of a claim (1) A claimant's failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim unless— (a) the respondent to whom part 1 of a notice of a claim was purportedly given— (i) has stated that the respondent is satisfied part 1 of the notice has been given as required or the claimant has taken reasonable action to remedy the noncompliance; or (ii) is conclusively presumed to be satisfied it is a complying part 1 notice of claim under section 13; or (b) the respondent has waived compliance with the requirement; or -- 3 of 13 -- 4 (c) the court, on application by the claimant— (i) declares that the claimant has remedied the noncompliance; or (ii) authorises the claimant to proceed further with the claim despite the noncompliance. (2) An order of the court under subsection (1)(c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant's failure to comply with the requirement.” “43 Starting urgent proceeding with the court's leave (1) The court, on application by a claimant, may give leave to the claimant to start a proceeding in the court for damages based on a liability for personal injury despite noncompliance with this part if the court is satisfied there is an urgent need to start the proceeding. … (3) However, if leave is given, the proceeding started by leave is stayed until the claimant complies with this part or the proceeding is discontinued or otherwise ends.” Limitation of actions [5] Once the limitation period under the Limitation of Actions Act 1974 has expired, the applicant’s claim can be ultimately successful only if it can be brought within an extension of that limitation period. An order may be obtained to extend the limitation period under s 31(2) of the Limitation of Actions Act. That section provides: “(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court – (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.” -- 4 of 13 -- 5 [6] The key terms in s 31(2) are defined in s 30(1) as follows: “(1) For the purposes of this section and sections 31, 32, 33 and 34 – (a) the material facts relating to a right of action include the following – (i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded; (ii) the identity of the person against whom the right of action lies; (iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury; (iv) the nature and extent of the personal injury so caused; (v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty; (b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing – (i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and (ii) that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account, to bring an action on the right of action; (c) a fact is not within the means of knowledge of a person at a particular time if, but only if – (i) the person does not know the fact at that time; and -- 5 of 13 -- 6 (ii) as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time.” The respondent’s submissions [7] The respondent resists the granting of any of the orders sought. It submits that no urgency has been established for the purpose of s 43 of PIPA and that a reasonable excuse for delay has not been provided in the Part 1 notice as required in s 9(5). It is submitted that in all the circumstances, including the length of the delay and the slight prospects of success as to liability, the discretion should not be exercised to grant the orders sought under ss 43, 18 and 59 of PIPA. The facts [8] On 6 June 2006 the applicant sustained personal injuries when he slipped and fell descending a ladder while inspecting a shipping container at Fisherman Island. His right knee was twisted, resulting in an anterior cruciate ligament injury. At the time the applicant was employed by a labour hire company but working under the direction of the Australian Quarantine and Inspection Service, Department of Agriculture, Fisheries and Forestry. He alleges the defendant bears responsibility for his injury. [9] The three year limitation period under the Limitation of Actions Act 1994 expired on 6 June 2009. [10] The applicant served a Part 1 notice on the respondent on 26 November 2013. This was well outside the time prescribed in s 9(3) of PIPA. Furthermore, on the account advanced by the applicant, the one year period referred to in s 32(2) of the Limitation of Actions Act would expire on 15 October 2013. [11] The applicant purported to provide an explanation for his delay by letter accompanying service of the Part 1 notice and enlarged on that explanation in subsequent correspondence. The respondent does not accept that the explanations constitute a reasonable excuse for the delay. Relief under s 43 [12] A plaintiff may be given leave under s 43 of PIPA to start proceedings despite non-compliance with Part 1 Chapter 2 of the Act if an urgent need is shown. [13] A discretion under s 43 is to be exercised judicially having regard to the object of the legislation. It is a remedial provision and it should be construed accordingly.1 It is not necessary for the applicant to demonstrate a prima facie case against the respondent but absence of anything to indicate liability against the respondent is a relevant factor in the exercise of the discretion.2 1 Davison v State of Queensland (2006) 226 CLR 234 at [6]-[7], [41]. 2 Thomas v Tranpacific Industries Pty Ltd & Anor [2002] QCA 160 at [3], [32]-[34]. -- 6 of 13 -- 7 Applicant’s prospects as to liability [14] The applicant deposed that his duties as a quarantine inspection assistant at Fisherman Island required him to inspect the top of shipping containers. He described how his injury occurred as follows: “6. My accident occurred at around 1:15 am. I was wearing steel cap work boots. I had just completed the inspection of a container and was in the process of descending a ladder which I had used to carry out the inspection. The ladder was wet as it had been raining. 7. The ladder I was using was an aluminium ladder with hand rails on each side of it. It had a platform at the top of it. … 8. I was holding both of the hand rails as I descended the ladder. As I was in the process of descending the ladder my left foot slipped which caused both my hands to slide down the hand rails while my right leg remained caught on one of the ladder’s rungs. As I regained my grip on the hand rails my body twisted around to the right, causing my right knee to twist (‘the incident’).” [15] The notice of claim alleges the respondent was responsible due to: “ Failing to provide a ladder with sufficient non-slip tread when the respondent knew or ought to have known that the ladder provided was a slip hazard in the wet.  Failing to provide any warning to the claimant about descending the subject ladder when the respondent knew or ought to have known that the ladder was slippery when wet.  Requiring and or permitting the claimant to climb and descend a ladder in the wet when the respondent knew that this was a foreseeable risk of injury.  Failing to undertake any or any adequate risk assessments regarding the task.  Failing to provide a safe place of work.  Failing to provide a safe system of work.” [16] The facts stated by the applicant in my view give rise to an inference of responsibility on the part of the respondent sufficient to indicate liability. It is unnecessary that I express a view on the strength of the claim. It is sufficient to conclude that an adequate basis has been laid for the purposes of this application. Urgency [17] Under s 43 it is necessary for the court to be satisfied that there is an urgent need to start the proceeding. -- 7 of 13 -- 8 [18] The respondent strenuously argues that urgency has not been demonstrated given the time remaining before the maximum period of extension under s 31(2) of the Limitation of Actions Act expires. As explained by Kirby J in Davison the focus of the section is on procedural urgency.3 In most cases urgency will be established by the fact that the applicable limitation period will expire before pre-action procedures can be complied with.4 [19] Here the three year limitation period has expired and two thirds of the one year period provided for in s 31(2) has elapsed. The period in s 31(2) cannot be extended to a date beyond 15 October 2014. Should leave not be granted under s 43 the applicant has a number of procedural steps to take under PIPA. The time for taking some of those steps is not solely in the control of the applicant.5 Furthermore there is the potential need to apply to the court for an order under s 31(2) of the Limitation of Actions Act to extend the limitation period. The High Court in Davison acknowledged the extensive affidavit material that may need to be assembled for the purpose of a s 31(2) application.6 [20] The function of s 43 is “to prevent litigants being deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose”.7 [21] To construe the term “urgent need” in s 43 as not applying in a case such as this would require the applicant to progress all the necessary pre-action procedures as a matter of extreme urgency and thus deny him the opportunity of having his matter progress in accordance with “due procedure appropriate for the purpose”. [22] From the delivery of this decision less than four months will be available before expiry of the extension period. I am satisfied that the applicant’s need is urgent in the sense that it is probable the applicable period will expire before all necessary pre-action procedures (if progressed in an appropriate way) can be complied with. Applicant’s prospects under s 31 [23] On or about 14 June 2016 the applicant lodged an application for compensation with WorkCover. WorkCover accepted the application and funded surgery which was carried out on 23 August 2006 by Dr Mark Dekkers, orthopaedic surgeon. It involved a right knee arthroscopy and a reconstruction of the right anterior cruciate ligament. [24] The applicant received WorkCover benefits until about January 2007 when he moved to the United Kingdom. He lived and worked in the United Kingdom until April 2012 when he returned to Australia. During his time in the United Kingdom he received medical attention for his knee. Some of those attendances are outlined in the applicant’s affidavit but a more comprehensive medical history from his time in the United Kingdom is set out in the affidavit of Katie Jane Clarke filed by the respondent. 3 Davison v State of Queensland (2006) 226 CLR 234 at [43]. 4 GU v TO [2005] QCA 480 per Williams J at [16]. 5 See discussion in GU v TO [2005] QCA 480 per Jerrard J at [50]-[51]. 6 Davison v State of Queensland (2006) 226 CLR 234 at [24]. 7 Davison v State of Queensland (2006) 226 CLR 234 at [16], citing Dixon J in Dey v Victoria Railways Commissioners (1949) 78 CLR 62 at [92]. -- 8 of 13 -- 9 [25] The United Kingdom medical reports indicate the applicant was suffering some pain and restricted movement in the knee from a time soon after his arrival. The medical records indicate that in April 2008 the applicant underwent a arthroscopy of his right knee. The report opines that “previously ACL anterior fibres frayed, bulk of graft ACL intact and stable”. The applicant says that on this occasion he was advised by the specialist that the fibres had weakened but there was nothing the surgeons could do until they actually snapped and that the surgeon would not be prepared to operate until that had occurred. In 2010 the applicant attended the Leicester Royal Infirmary complaining of his knee. An x-ray was performed and the diagnosis was ligament injury to the right knee. The applicant says he was discharged the same day with no follow up arranged. The applicant states as follows in his affidavit: “At no time while I was living in the UK was I advised by any of the medical practitioners that my right knee condition had stabilised such that it was not likely to improve. On the contrary, I was specifically advised on 16 April 2008 by Dr James of the Medway Maritime Hospital that he was not prepared to perform a further operation until the anterior fibres of my ACL actually snapped. I assume that if I had further surgery there would be a chance of a full recovery of my condition. I knew, for example, that certain sports people could return to professional sport after having knee surgery. I always held out hope that I could achieve a similarly favourable outcome from further surgery.” [26] On his return to Australia in April 2012 the applicant returned to see his original surgeon, Dr Dekkers. He was seen by Dr Dekkers on 30 May 2013 and the doctor reported to WorkCover as follows: “His MRI scan was performed on 11.06.2013. This suggests an intact ACL graft, but unfortunately there was fibrosis with secondary impingement. Given this, this is likely to be a source of his pain. I therefore believe it is reasonable to do an arthroscopy to debride the arthrofibrosis and then a course of physiotherapy. … He initially had his surgery in May 2006 with a subsequent ACL reconstruction. He progressed post operatively. He hasn’t had any further injuries. The condition is however directly attributable to his initial injury and subsequent surgery.” [27] The applicant says the specialist told him that after the procedure his knee should largely return to the state it was in before his June 2006 accident. Consequently the applicant says he felt that further surgery could result in full resolution of his symptoms. WorkCover funded the surgery. [28] The surgery was performed on 19 June 2013 at Greenslopes Private Hospital. Unfortunately after the surgery pain levels did not decrease and mobility of the right knee got significantly worse. The applicant last attended on Dr Dekkers on 15 October 2013. On that occasion the applicant says he was advised by the specialist that a small percentage of people never actually recover from the surgery he had received and that his symptoms would continue as they were after his initial operation in August 2006. -- 9 of 13 -- 10 [29] The applicant deposed as follows: “It was at this point that for the first time I realised there was nothing more the medical profession could do for my knee, that my knee was never going to fully resolve. It was also the first time that I had received specialist advice that my condition was permanent. Prior to that I held the belief that my knee may one day fully recover. I appreciated for the first time that my injury would have a substantive and long term effect on my employment which would be serious enough to justify the expense and risk of litigation.” [30] The applicant attended Shine Lawyers on 24 October 2013 and the Part 1 Notice under PIPA was served on the respondent on 26 November 2013. [31] The applicant submits that the intimation from Dr Dekkers on 15 October 2013 was a material fact of a decisive nature which was not within his knowledge. To obtain an extension under s 31 an applicant must: “… show that without the newly learnt facts or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interest pursue it.”8 [32] As to whether all reasonable steps have been taken to find out a fact is answered by reference to what can reasonably be expected from an actual person in the circumstances of the applicant.9 [33] This application is not the occasion to make a final determination on leave under s 31. The test under s 43 is lower than a requirement to show a reasonably arguable case for granting an extension under s 31(2).10 It would seem sufficient that the applicant demonstrates some prospect of establishing it was not until 15 October 2013 that a material fact of a decisive character was within his means of knowledge.11 As expressed by McMurdo P in GU v TO, a judge should “not set the bar as high as for an applicant under s 31 Limitation Act”.12 However, an extension should not be granted if the applicant’s prospects are fanciful or it would be futile to grant an extension. [34] The applicant says that 15 October 2013 was the first time he received specialist advice his condition was permanent. It was after he received that advice he first approached his present solicitors. Although he had a long history of pain and knee problems, he deposes that he always held out hope he could achieve a favourable outcome from further surgery. [35] I am satisfied there is a basis for an argument that a material fact of a decisive character became known to the applicant on 15 October 2013 and there is some prospect of establishing that at hearing. 8 Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 at 333. 9 MF v State of Queensland [2005] QCA 110 per Keane JA at [29]. 10 Davison v State of Queensland (2006) 226 CLR 231. 11 Davison v State of Queensland (2006) 226 CLR 231 at [24]. 12 GU v TO [2005] QCA 480 at [11]. -- 10 of 13 -- 11 Reasonable excuse for delay [36] The applicant seeks a declaration under s 13(c)(i) that he has remedied non-compliance with PIPA or, alternatively, that he be authorised to proceed further with the claim in pursuance of s 18(c)(ii). [37] As the notice was delivered late, it must be accompanied by a reasonable explanation for the delay. The respondent asserts that a reasonable explanation has been provided. The issue of reasonableness is to be determined objectively.13 The applicant has consistently given as the explanation for his delay the reason that he held out hope that his knee would fully recover. [38] As part of the correspondence following the service of his Part 1 notice the applicant provided a draft affidavit which said the following in respect of his attendance on Dr Dekkers on 15 October 2013: “It was at this point that for the first time I realised there was nothing more the medical profession could do for my knee, and that my knee was never going to fully resolve. It was also the first time that I had received specialist advice that my condition was permanent. Prior to that I held the belief that my knee may one day fully recover.” [39] That is consistent with evidence in the applicant’s affidavit before the court referred to above where he said: “I assume that if I had further surgery there would be a chance of a full recovery of my condition … I always held out hope that I could achieve a similarly favourable outcome from further surgery.” [40] An injured person’s hope or belief that his condition will improve with time can afford a reasonable excuse for delay in giving a notice of claim: Nestorovic v Milenkovic.14 In that case the applicant was injured in January 2007 but did not contact solicitors until 28 July 2009. He said: “Until seeing Dr Forster on 10 July 2009 I had always believed that my injuries and symptoms would eventually resolve with enough time and patience. In the event that my injuries resolved, even if it took quite a long time, I would not have elected to pursue a claim for compensation against the Respondent. However, now that I know that I will be left with a permanent disability and my future looks quite bleak, I feel compelled to do so.” [41] This excuse was found by Margaret Wilson J to be reasonable. [42] In Thomas v Transpacific Industries Pty Ltd the delay involved was two years, which the applicant explained by reference to a hope that a back condition, alleged to be caused by the original injury, would improve over time. Davies JA said: “That, it seems to me, is an explanation of the delay until then and one which is not obviously unreasonable.”15 [43] In Chapman v The Body Corporate for Endeavour Inn Judge Alan Wilson SC observed: 13 Morris v Gold Coast City Council [2006] QDC 172 at [16]-[21]. 14 [2010] QSC 143. 15 [2002] QCA 160. -- 11 of 13 -- 12 “There will be cases in which such a belief is plainly illogical, and unjustified, and whether or not that is so will ordinarily fall to be determined by reference to such factors as the severity of the original injury, the nature and duration of treatment for it, and the presence and extent of any ongoing symptoms (and, questions of prejudice). … The obvious purpose of this legislation is to ensure putative defendants are alerted to the risk of a claim at an early time and to reduce the risk of embarrassment or prejudice. It is equally clear, however, that the legislature did not intend to penalise those with the fortitude to maintain a hope of recovery, so long as that was reasonable in the circumstances.” [44] In my view the conduct of the applicant in this matter was reasonable. Having received advice from Dr Dekkers on 15 October 2013 the applicant attended his present solicitors promptly and the Part 1 notice was served on 26 November 2013. I consider the solicitors acted with reasonable diligence. The excuse provided by the applicant was, in all the circumstances, a reasonable one. Prejudice [45] It is submitted that grant of the orders will prejudice the respondent. The passage of time since the injury was sustained on 6 June 2006 is considerable. [46] The affidavit of an officer of the Department of Agriculture attests to the loss of opportunity to gather evidence in respect of the initial incident. Although the original ladder cannot be located but similar ladders are retained in storage. Departmental risk management employee records are generally destroyed after seven years and may no longer be in existence. Eye witnesses have advised that their recollection has faded to a degree. [47] These facts identify prejudice the respondent will suffer in defending its claim. They must be taken into account in the exercise of the discretion. Consideration [48] In the exercise of a discretion as to whether to grant leave under s 43 it is necessary to weigh the various matters discussed above. They include without being exhaustive – the overall prospects, the prospects under s 31, the extent of the delay, adequacy of the explanation for delay and the likelihood of prejudice flowing from that delay.16 The reasonableness of the excuse under s 9 and its adequacy must be assessed objectively having regard to the applicant’s age, intelligence and education.17 16 See Thomas v Trans Pacific Industries Pty Ltd [2002] QCA 160 at [29]. 17 See Perdis v Nominal Defendant [2004] 2 Qd R 64; Piper v Nominal Defendant [2004] Qd R 85. -- 12 of 13 -- 13 Determination [49] For the reasons given above, I am persuaded the applicant should have leave under s 43 to commence a proceeding. There should also be a declaration that he has provided a reasonable excuse for his delay in giving the notice of claim. [50] In arriving at these conclusions I am mindful that the proceedings will be stayed until there is compliance with Chapter 2, Part 1 of the PIPA. [51] I now turn to whether leave should be granted under s 59(2)(b) of the PIPA. Applying the findings I have outlined above and mindful of the considerations canvassed in some length by Jerrard JA in GU v TO, I consider it prudent to also make an order under s 59(2)(b).18 Although this discretion must be exercised separately from those exercised above, many if not most of the same considerations must be weighed. I am mindful that an order under s 59 will also avoid an unnecessary further application to the court if my expectation is correct as to the time litigation will take. [52] The respondent addressed me with a submission on costs. I am not persuaded the applicant should not have his costs. He has been successful in respect of all orders sought. I propose to award costs in the cause in accordance with the order sought by the successful applicant. Orders [53] The orders of the court will be: 1. Order that the applicant have leave pursuant to s 43 of the Personal Injuries Proceedings Act 2002 to start a proceeding in this court for damages for personal injury sustained on or about 6 June 2006; 2. Declared that the applicant has given a reasonable excuse for his delay in giving a Part 1 Notice of Claim pursuant to s 9(5) of the Personal Injuries Proceedings Act 2002; 3. Ordered the applicant have leave pursuant to s 59(2)(b) of the Personal Injuries Proceedings Act 2002 to commence a proceeding in this court for damages for personal injury sustained on or about 6 June 2006. 4. The proceedings be stayed until there is compliance with Chapter 2, Part 1 of the Personal Injuries Proceedings Act 2002. 5. The costs of and incidental to this application will be the respective parties’ costs in the cause of the proceedings to be brought. 18 GU v TO [2005] QCA 480 at [56] and [14]. -- 13 of 13 --