Ellery v Australian Liquor Marketers Pty Limited [2005] QDC 68

DISTRICT COURT OF QUEENSLAND CITATION: Ellery v Australian Liquor Marketers Pty Limited [2005] QDC 068 PARTIES: LEON JAMES ELLERY Applicant v AUSTRALIAN LIQUOR MARKETERS PTY LTD (ACN 002 885 645) Respondent FILE NO: 4169/04 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 11 April 2005 DELIVERED AT: Brisbane HEARING DATE: 18 March 2005 JUDGE: Alan Wilson SC,DCJ ORDER: Application refused CATCHWORDS: WORKERS COMPENSATION – INSURANCE – pre-court procedures under Personal Injuries Proceedings Act 2002 - whether applicant has reasonable excuse for non-compliance with statutory requirements – whether applicant should be permitted to proceed notwithstanding non-compliance – relevant factors Personal Injuries Proceedings Act 2002, s 18 WorkCover Queensland Act 1996 Motor Accident Insurance Act 1994, ss 37 and 39(5) Cases considered: Gillam v State of Queensland (2004) 2 Qd R 251 Perdis v Nominal Defendant (2004) 64 Piper v Nominal Defendant (2004) 2 Qd R 85 Thomas v Transpacific Industries Pty Ltd (2003) 1 Qd R 328 COUNSEL: Mr A F Maher for the applicant Mr K N Wilson SC for the respondent SOLICITORS: Baker Johnson Lawyers for the applicant HBM Lawyers for the respondent -- 1 of 7 -- 2 [1] On 17 March 2005 judgment was delivered, with reasons, in an application brought under the Personal Injuries Proceedings Act 2002 (PIPA). As the Reasons show the application was dismissed when a preliminary point raised by the respondent (that, on the face of the applicant’s pleading at that time, PIPA did not apply) was upheld, with leave to the applicant to reopen the matter by midday on the following day. [2] The applicant did so and, on 18 March 2005, was given leave to read and file an amended pleading which remedied the problem raised by the preliminary point. [3] The application now proceeds under PIPA s 18(1)(c), which relevantly provides: 18. Claimant’s failure to give Notice of 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— … (c) the court, on application by the claimant— (i) declares that the claimant has remedied the non-compliance; or (ii) authorises the claimant to proceed further with the claim despite the non-compliance. [4] The applicant’s Notice of Claim, a pre-court step required by PIPA s 9, relates to an injury allegedly suffered on 19 January 2001 and, by reason of certain other provisions of PIPA should, then, have been delivered by 29 December 20021 . It was not sent to the defendant until 21 June 2004. The application is for relief under one or other of the subsections of s 18(1)(c). It is supported by an affidavit from the applicant’s solicitor, Mr Tregenza (but not the applicant himself). Affidavits were also filed in the matter by the respondent’s solicitor, Mr Land, and Messrs Schofield, Sloane and Piunti, employees of the defendant. [5] The history of the claim revealed by the affidavits shows the applicant, who had previously engaged his solicitors in respect of a motor vehicle accident on 31 July 2000, first advised them on 2 October 2002 of an alleged work injury on 19 November 2001. He told them he was employed at the time by Manpower Services Australia Pty Ltd (a labour hire company). The solicitor apparently took no further steps in the matter until he received a Notice of Assessment of Permanent Impairment from WorkCover around 10 December 2003 whereupon, he says, he was instructed by the applicant to commence a claim against Manpower Services. The solicitor then says he completed and served a Notice of Claim for Damages on or about 19 April 2004 and served it on WorkCover Queensland, and Manpower Services. [6] On 6 May 2004 WorkCover’s solicitors wrote to the applicant’s solicitor enquiring whether the Notice had been given to the present defendant to whom, it appears, his services had been hired. The applicant’s own solicitor contacted him with advice the Notice should be served on the present defendant and, the solicitor says, was instructed by the applicant to proceed with the claim against it. The solicitor also says, however, that the applicant said he told him he was too busy to attend the solicitor’s office to give further instructions for a Notice of Claim and on 9 June 1 PIPA ss 9(3), 77A(3). -- 2 of 7 -- 3 2004 the solicitor rang him again. The applicant later attended at his office and the Notice was sent to the defendant by post around 21 June 2004. [7] In July 2004 the defendant’s solicitor advised the Notice did not comply with PIPA requirements because it was out of time, and did not contain any reasonable excuse for the delay: PIPA s 9(5). On 10 August 2004 the applicant’s solicitors sent the defendant’s solicitors a letter containing a statutory declaration from the applicant purporting to provide a reasonable excuse for the delay. On 26 October 2004 the defendant’s solicitors replied asserting no reasonable excuse had been presented. On or about 5 November 2004 the applicant’s solicitor wrote again, enclosing a further statutory declaration. [8] Because the limitation period was close to expiry the applicant approached the Court in separate proceedings (BD 4088/04) and obtained an order on 18 November 2004 under PIPA s 43 permitting proceedings to be commenced, but stayed pending the determination of the issues in respect of these pre-claims procedures. [9] On 15 December 2004 the applicant filed this application seeking orders “that the excuse for delay of the service of the Notice of Claim for Damages was reasonable”. In fact what is being sought is a declaration under PIPA s 18(1)(c)(i), or a favourable exercise of discretion in the applicant’s favour under s 18(1)(c)(ii). [10] The relief sought under s 18(1)(c)(i) necessitates a finding that a reasonable excuse has been given: s 9(5). The original Notice did proffer an excuse for the delay between 29 December 2002, when the Notice should have been given, and its delivery on 21 June 2004. In his first statutory declaration of 10 August 2004 the claimant’s excuse was: … because I initially gave instructions to my solicitors to commence a WorkCover claim against my employer who was Manpower Services (Australia) Pty Ltd. In truth this was not an excuse because as the applicant recognised elsewhere in the statutory declaration it was his omission to provide his solicitor with proper instructions which led to the failure to give the PIPA Notice. No explanation was proffered for the delay in advising the solicitor of the incident, ie for the period between 19 November 2001 and 2 October 2002, nor for the delay between that date and the Notice to WorkCover in April 2004 nor, finally, for the further delay between 6 May and 21 June 2004. [11] In his second statutory declaration of 4 November 2004 there is, firstly, an implication that there were discussions between the plaintiff and his solicitors about the subject incident prior to 2 October 2002 but no details are given and there is no explanation why there was a delay until the latter date. Nor is there any explanation for the delay occasioned by the obtaining of a Notice of Assessment from WorkCover until December 2003, particularly in the face of a report obtained from a doctor much earlier, in November 2002. Nor, again, is any explanation offered for the delay between receipt of the Notice of Assessment from WorkCover in December 2003 and the giving of the claim in April 2004. The only excuse offered for the delay between 6 May and 21 June 2004 is “work commitments”. [12] The question whether an excuse is a reasonable one is to be judged objectively in all the circumstances, including the claimant’s personal characteristics and the nature of the injury suffered: Piper v Nominal Defendant (2004) 2 Qd R 85. The absence -- 3 of 7 -- 4 of an affidavit from the plaintiff addressing his personal circumstances, and the various periods of delay, is troubling. It is relevant, here, that he apparently had a pre-existing retainer with a solicitor concerning an earlier claim for damages for personal injuries and around November 2002 obtained a report from a specialist doctor attributing part of his ongoing disability to the event for which he wished to claim here. There is no suggestion of any adverse personal circumstances between November 2001 and June 2004 which might have militated against steps being taken in his own interest. He had apparently given his solicitors complete instructions and obtained advice around the end of 2002, and he had medical evidence to support the claim. On a lower plane, the excuse proffered for the delay between 6 May and 21 June 2004 is not reasonable. The plaintiff might have consulted his solicitor, it might be reasonably be assumed, out of hours. [13] The fact he has obtained an order under s 43 is not relevant for present purposes: Gillam v State of Queensland (2004) 2 Qd R 251. The paucity of information presented by the applicant, and the inadequate explanations proffered, compel the conclusion that he has not provided reasonable excuse for the delay. [14] The alternate relief, involving an exercise of the discretion under s 18(1)(c)(ii) involves issues like those which arise under the Motor Accident Insurance Act 1994, ss 37 and 39(5), considered by the Court of Appeal in Thomas v Transpacific Industries Pty Ltd (2003) 1 Qd R 328. The factors relevant to the discretion identified by Davies JA include the extent of the delay, the adequacy of any explanation for it, and the likelihood of prejudice. As his Honour also said2 , the existence or otherwise of evidence indicating liability in the respondent may also be a relevant factor. [15] In his Notice the applicant said: Claimant as part of his duties was required to pick orders for customers from various pallets situated in the warehouse. As he bent down to pick up a box of goods weighing about 25kgs he strained his back because the box was stuck due to excessive glue or due to the flap of the box caught on the bottom box and suffered injury. [16] In his statutory declaration of 10 August 2004 the applicant said he suffered his injury in an area called aisle 1 while lifting a box of goods containing four x Yalumba 4 litre casks of wine, and the box was stuck because of excessive glue. The respondent’s affidavits from Messrs Piunti, Sloane and Schofield (which are uncontradicted) suggest however that the incident was most likely to have occurred in that way because the cartons were not in that locality, the product in the cartons did not exist, Yalumba did not glue its cartons, the cartons did not weigh what the plaintiff ascribes to them, and there had never been any similar problem despite a large volume of product being handled. [17] While, as the decision of the Court of Appeal in Gillam v State of Queensland (2004) 2 Qd R 251 shows, the provision of a reasonable excuse for delay is not an essential prerequisite for the exercise of the discretion under 18(1)(c)(ii)3 , the fact of delay itself yet remains relevant: as Jerrard JA said at 260: 2 At 339-340. 3 Per Jerrard JA at 259. -- 4 of 7 -- 5 Where there has been delay, and where at the time an application under section 18 is heard a reasonable excuse that delay exists, then whether that excuse has been provided as required by section 9(5) or not, its existence will be relevant to the exercise of the section 18(1)(c)(ii) discretion in a claimant’s favour; but demonstrating that one exists is not mandated by the section. [18] Logically, the delay described here should be considered conjointly with the question whether or not there is a likelihood of real or actual prejudice to the defendant if the plaintiff is allowed to pursue his action. The delay is lengthy. In the interim, as the evidence clearly establishes, the defendant’s warehouse has been moved and some documentary evidence has been destroyed. Importantly, the opportunity of identifying the manufacturer of the carton (if, for example, it was not the manufacturer alleged by the applicant) has been lost. Finally, although the plaintiff reported his injury to one of the defendant’s staff, Mr Piunti, the latter recorded it in only very terse terms as a “strained back” and says that: 7. Had the applicant told me that his injury arose because of excessive glue between the carton that he was lifting and the carton immediately underneath I say that I probably would have recorded that in the Injury Diary because that particular cause of a back injury or any injury, is most unusual. … 9. Had the plaintiff told me that he had hurt his back in the way in which he claims as he set out in his Notice of Claim, I would have gone to investigate the incident because of his unusual nature. Further, I would have investigated the incident because I would have to direct another store person to complete the order that the applicant was making up at the time of his injury, and I would have to check to see whether the cartons were in a safe condition to allow the remainder of the order to be made up and other future orders that included a carton from this pallet. I presume, because the Applicant did not describe to me how the incident occurred, I did not go and investigate the incident. 10. Because the applicant left the warehouse almost immediately, another store person was directed to complete the order that the Applicant was engaged in at the time … I am not aware of the identity of the person who completed the order that the Applicant was making up at the time of his injury. The internal documents that would contain the name of that person have since been destroyed. They are kept for approximately six months … [19] As I understood the submission made on the applicant’s behalf any prejudice which flows from the delay should not tell against the applicant because, having reported his injury, the burden of investigation and enquiry shifted to the respondent which, in the face of the report, was placed under an obligation to pursue the matter and collect whatever information might be relevant. The submission assumes a shifting onus which may well apply in some instances, but its operation will depend on the circumstances of each case. These matters simply fall to be considered within the ambit of the question whether or not what has occurred has given rise to a reasonable likelihood of prejudice, upon which the respondent might legitimately rely. [20] There is some evidence from one of the respondent’s managers, Mr Schofield, suggesting cartons of wine are sometimes glued and “… if an assembler has any doubt about whether a carton is glued or not, the assembler simply knocks one corner of the carton with the palm of the hand before attempting to pick it up”. It is -- 5 of 7 -- 6 not unreasonable to construe this evidence as to some degree corroborative of the applicant’s claims about the circumstances of his injury. [21] As to the paucity of information recorded by Mr Piunti about the circumstances of injury Mr Schofield’s affidavit contains statements from which it might reasonably be inferred that the respondent was uninterested, in any event, in investigating back injuries. He says: 9. … I was also the Workplace Health and Safety Officer for that warehouse. As such, I was required to investigate unusual injuries that occurred in the warehouse. Unusual injuries are, in the main, injuries that result from cuts or collisions. As a general rule, I would not investigate back injuries because they all arise from the same cause, namely, poor lifting technique and the Respondent deals with poor lifting technique in its training of its permanent employees. However, if I had been told that a back injury was sustained because of glue or excessive glue, I would have investigated it because a back injury sustained in this way is an unusual injury. (emphasis added) [22] The Notice of Claim (exhibited to the affidavit of the applicant’s solicitor, Mr Tregenza) is in the form of a questionnaire to be answered by the claimant and includes questions about the circumstances of the incident and any witnesses to it, but does not ask whether the incident was reported to any other person or, if so, to whom and in what details. The applicant’s two statutory declarations were primarily directed, of course, towards an explanation for the delay. The applicant’s first statutory declaration of 10 August 2004 did, however, answer some questions raised in a letter from the respondent’s solicitors 20 July 2004 which enquired where and how the alleged injury occurred, and the identity of any person in the respondent’s employ to whom the applicant reported the injury. The applicant simply states that it was reported to “Grant Punti” which is consistent, save for the misspelling of his name, with the affidavit of Mr Piunti. [23] There remains, however, the respondent’s uncontradicted and uncontested assertion that the initial report contained no particulars of the circumstances of injury. The applicant has not condescended to attempting any rebuttal of Mr Piunti’s evidence, although the matter was first heard on 16 February 2005, and argued again on 18 March after the preliminary point had been determined. Notwithstanding the matters which might be said to raise some questions about the accuracy of that evidence, these circumstances point to the only fair conclusion being that, on the available evidence, the respondent did not have proper information about those circumstances until some years later, by which time circumstances creating prejudice had arisen. [24] The affidavit of Mr Piunti shows, in para 16, that had the Notice been delivered in a timely way, this prejudice may not have arisen. The Act came into force on 18 June 2002 (although it was not given retrospective effect until 29 August 2002). Nothing in the history of the matter provided by the applicant’s solicitors contains an apparent explanation why the Notice could not have been given with reasonable promptness. Some delay was occasioned because of the relations between Manpower Services Australia Pty Ltd and the present respondent, but that occurred only after another two years had elapsed. [25] Although the matter was not raised by the applicant it is appropriate to consider, too, (particularly in light of the absence of an affidavit from him) whether it might avail him to assert the delay, and consequent prejudice, was the product of the inefficiency or inaction of those representing him. Under the similar Motor -- 6 of 7 -- 7 Accident Insurance Act 1994 legislation, a claimant gives a reasonable excuse for delay if, in sufficient time, he or she entrusts the matter to a legal representative: Perdis v Nominal Defendant (2004) 64; Piper v Nominal Defendant (2004) 2 Qd R 85. Those cases related, of course, to the preliminary question whether the excuse was reasonable (ie it was relevant to the relief available under PIPA s 18(1)(c)(i)). [26] In any event, the circumstances here suggest nothing more than the possibility that the applicant consulted his lawyers before 2 October 2002 and the solicitor, Mr Tregenza, positively swears that around that date he was informed “for the first time” of the work accident by the applicant. That delay by the applicant himself took the matter almost up to the last date permitted for the Notice, ie 29 December 2002. Thereafter, there is nothing in the evidence of the solicitor himself suggesting some error (or incompetence) although it is unclear why it was necessary to wait for more than another year, until after receipt of the Notice of Assessment from WorkCover, before some attempt was made to advance the matter. [27] For these reasons, the application is refused. -- 7 of 7 --