Duffield v Gray & Anor [2007] QDC 269

DISTRICT COURT OF QUEENSLAND CITATION: Duffield v Gray & Anor [2007] QDC 269 PARTIES: GREGORY JAMES DUFFIELD Applicant V DEAN ROBERT GRAY First Respondent And BLOOMER CONSTRUCTIONS PTY LTD Second Respondent And ALLIANZ AUSTRALIA INSURANCE LIMITED Third Respondent FILE NO/S: BD1082/07 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 9 November 2007 DELIVERED AT: Brisbane JUDGE: Griffin SC DCJ ORDER: Leave to commence proceedings within 14 days of Order [1] The applicant seeks an order pursuant to provisions of the Motor Accident Insurance Act 1994 for leave to commence a proceeding. [2] The relevant section, s 57 of the Act provides: “(1) If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended. (2) However the proceeding may only be brought after the end of the period of limitation if it is brought within – -- 1 of 5 -- 2 (a) Six months after the notice is given or leave to bring the proceeding is granted; or (b) A longer period allowed by the court.” Background [3] The applicant was involved in a motor vehicle accident which occurred on 31 August 2003. He was a passenger in a Toyota Hilux utility in which others were injured. The driver of the vehicle (Gray) pleaded guilty to the offence of dangerous operation of a motor vehicle causing death and grievous bodily harm. These latter injuries concerned two other passengers in the vehicle. The applicant himself claims injuries including whiplash to the spine, muscular – ligamentous injury to the spine and post traumatic stress disorder. The applicant was aged seventeen years at the time of the injury which occurred on 31 August 2003. [4] The limitation period commenced on 10 March 2004 when he turned eighteen. Shortly thereafter he engaged solicitors to act on his behalf. By 31 May 2004 the relevant Notice of Claim was provided to the third respondent Allianz. There is no question in these proceedings that the Notice of Claim was in fact not compliant. There was a change of solicitors in May of 2005. [5] By mid 2005 the applicant was diagnosed (by Doctor Klugg – report of April 2007) as suffering from a depressive illness which persisted until at least late 2006. [6] Importantly in February 2006 the applicant was examined by Ms Lloyd, a psychotherapist who reported twice in April and November of 2006 on the applicant’s mental health. [7] At least by December 2006 the applicant, according to Steven Pearson1 swears that the applicant was in a suitable condition to provide instructions (although I note that prior to that period certain information was provided by the applicant to his legal representatives relevant to essential matters relating to the claim). [8] Solicitors sought over an extended period of time advice of counsel in relation to the claim. This advice was not forthcoming. No doubt on the material I accept this added substantially to the delay in relation to the claim. Ultimately by late February 2007 advice was received from counsel which included the opinion that a report be 1 Affidavit of Steven Pearson sworn 16 April 2007 at par 17 -- 2 of 5 -- 3 obtained from a psychiatrist (which was subsequently obtain from Dr Klugg on 26 April 2007). [9] On 2 March 2007 correspondence was sent to Allianz requesting consent to an extension of the limitation period which was due to expire on 10 March. On 5 March 2007 Allianz wrote to the applicants’ solicitors enclosing a proposed Consent Order to extend the limitation period until after a conference had been held and the applicants’ solicitors contacted counsel for advice. On 9 March 2007 the applicants’ solicitors wrote to Allianz enclosing the Consent Order for signing. On 10 March 2007 the limitation period expired and all steps necessary to save the situation had not occurred although the applicant himself2 believed that his legal advisors had taken all necessary steps. [10] On 17 April 2007 this application was filed which was five weeks after the expiration of the limitation period. Explanation for the Delay [11] There are a variety of factors which have attended the delay in these proceedings which include the following: - • Failure of counsel to give timely advice; • Failure by the applicants’ solicitors proximate to the 10th of March 2007 (the limitation date) to secure all final steps; • The mental health and psychological condition of the applicant; • The applicant was however aware of the limitation period but had placed the matter in the hands of legal representatives. The Principles to be applied in this Application [12] The exercise of the discretion in such as case is unfettered. However, the principles which should be applied have been the subject of much judicial analysis. It is noteworthy to record two matters before turning to an analysis of the principals. The first is that the Notice of Claim was statutorily compliant. The second is that in 2 See Affidavit sworn 16 April 2007 and Affidavit sworn 29 May 2007 at par 13 -- 3 of 5 -- 4 this application there is no suggestion that the respondent has been prejudiced by the delay. Whilst the latter is of course, according to the principles, not decisive, it is nonetheless a consideration of some weight. [13] In Winters v Doyle & Anor3 Keane JA said: “A plaintiff will usually be able to show good reason 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.” and: “It is to be emphasised that the issue…is not whether the plaintiff may reasonably be excused for having relied upon his solicitor to comply with the requirements of the MAI Act. The issue is whether the delay which occurred was related to compliance with the MAI Act.” [14] Specifically in relation to the question of delay His Honour said: “It should be emphasised that an explanation for delay which shows that the delay was associated with the Plaintiff’s attempts to comply with the requirements of the MAI Act, and evidence negativing the possibility of unfair prejudice to the defendant, are not conditions precedent to the enlivening of power conferred by s 52(2)(b) of the MAI Act. Rather they are considerations relevant to the proper exercise of that power.” [15] In the present case although the failure to take final steps prior to the 10th March 2007 lies at the feet of the applicants’ legal representatives significant delay was occasioned for a substantial period prior to approximately December 2006 which on the material I accept was substantially (but not entirely) due to the applicant’s mental state and psychological condition. [16] In the applicant’s Affidavit of 16 April 2007 he swore that: “I have been severely affected by the accident psychologically and have had suicidal ideations. This is noted in the medical reports of Mr Rod Preston and Ms Stacey Lloyd. At times it has been very difficult to comply with some of the requests of my solicitors in a timely manner because of my psychological state as a result of the accident and the memories that I have had to relive on numerous occasions.” [17] On 31 May 2007 the psychotherapist Ms Lloyd stated: 3 (2006) QCA 110 at 24 -- 4 of 5 -- 5 “I am particularly concerned at the suicidal ideations that he has experienced as well as other self harming behaviours namely drug and alcohol use and abuse…It is my professional opinion and advice that Mr Duffield does have difficulty in providing Mr Pearson with instructions and participating in the litigation. I advised Mr Pearson that his office should wait to proceed with the case until Mr Duffield’s condition has stabilised because there is and has been a risk of self harm if Mr Duffield is forced to deal with the impending litigation.” [18] Whilst there was a recognition by the applicant of the appropriate limitation period, the material to my mind suggests that this realisation was overtaken by a significant and dangerous psychological condition which inhibited him from providing his solicitors with timely and full instructions (although as I have already noted he was during the period up to December 2006 capable of providing some information relevant to the continuation of the claim). [19] I regard the applicant’s mental and psychological condition as having a substantial effect on the delay. Furthermore the circumstances of the accident including the fact that the driver of the motor vehicle in which the applicant was travelling has pleaded guilty to a serious indictable offence related to the driving of that vehicle leads to a conclusion that the applicant may well have a good case against the respondents. [20] A relevant consideration to which I have already referred is the fact that there is no allegation of prejudice in relation to the respondents to these proceedings. [21] In all of the circumstances I give leave to the applicant to commence proceedings within fourteen days of the date of this order. [22] I will hear submissions as to any order as to costs. -- 5 of 5 --