Chapman v Body Corporate for Endeavour Inn [2005] QDC 18

DISTRICT COURT OF QUEENSLAND CITATION: Chapman v The Body Corporate for Endeavour Inn [2005] QDC 018 PARTIES: COLLEEN FAYE CHAPMAN Applicant v CTS 17901 THE BODY CORPORATE FOR ENDEAVOUR INN Respondent FILE NO: BD305 of 2005 DIVISION: Civil PROCEEDING: Originating application ORIGINATING COURT: District Court of Queensland at Brisbane DELIVERED ON: 17/02/2005 DELIVERED AT: Brisbane HEARING DATE: 15 February 2005 JUDGE: Alan Wilson SC,DCJ ORDER: 1. Declare that the applicant’s Notice of Claim form complies with s 9 of the Personal Injuries Proceedings Act 2002. 2. Order that the respondent pay the applicant’s costs of and incidental to this application assessed on the standard basis. CATCHWORDS: PERSONAL INJURIES – Personal Injuries Proceedings Act 2002 – what is a “reasonable excuse” under s 9(5). Personal Injuries Proceedings Act 2002 Cases considered: Hodges v Avdyl trading as Daniell’s Nursery & Garden Supplies [2003] QDC 347 Thomas v Trans Pacific Industries Pty Ltd (2002) QCA 160 COUNSEL: Mr BF Charrington for the applicant Mr JS Miles for the respondent SOLICITORS: Paul Everingham & Co for the applicant Tress Cox Lawyers for the respondent [1] This is an application under the Personal Injuries Proceedings Act 2002 (PIPA) which places certain procedural requirements in the path of a person wishing to -- 1 of 3 -- 2 claim damages for personal injury before any proceeding can be brought in the court. The applicant alleges she was hurt when she fell over outside the Endeavour Inn at Emu Park on 13 August 2003 in circumstances said to give rise to a right to damages for those injuries from the defendant. Her solicitors gave the notice required by s 9 of PIPA just over a year later, on 7 September 2004, outside the time limit in the section which requires a notice within nine months after the incident. If that is not done, the obligation to give the notice continues, with an added requirement that the applicant provide a “reasonable excuse for the delay”: s 9(5). [2] The respondent contended, until recently, that the applicant had failed to provide a reasonable excuse but on 11 February 2005 the applicant filed an affidavit in this application which, the respondent now concedes, satisfies the provision and the respondent no longer opposes the declaratory relief sought in the application, ie that the applicant’s Notice of Claim form now complies with PIPA, s 9. [3] Rather, the dispute descended to a question of costs, which both parties sought. It was argued primarily by reference to the reasonableness, or otherwise, of the excuse the applicant and her solicitors proffered before this application was brought. [4] In her recent affidavit the applicant says that she suffered a fracture of her right ankle in the original fall and was treated at Rockhampton and Redcliffe Hospitals until March 2004. Then, in June 2004, she went on holiday to the United Kingdom with her husband and found she had trouble walking and developed an ulcer on her left foot. Subsequently she saw doctors and a podiatrist about the ulcer and her leg/foot injury. Relevantly, she says: 11. From the date of the accident to in or around my holiday in June 2004 I had experienced some ongoing difficulties with respect to my right ankle and right foot injury. However I was hopeful that my injuries would stabilise and did not pursue a claim for compensation at that time. It was not until my holiday when I was very limited in what activities I could do and developing the left ulcer that I realised that I was likely to suffer significant ongoing problems with respect to the injury to my right foot/ankle and the ulcer on my left foot and decided to pursue a claim for compensation. [5] When the applicant first lodged her claim she provided a statement to the effect that she was in a wheelchair for three months after the accident, and then on crutches for about six weeks. When the claim form was served her solicitors also delivered a letter advising she was unaware of the full extent of her injury until June 2004, when the ulcer appeared and, later, when she discovered it was most likely related to the injury; and, that she was “… initially hopeful that her injury would stabilise but after continuing to experience ongoing symptoms … she realised that she was likely to suffer significant problems into the future and has decided to pursue a claim for compensation.” [6] In a letter 5 November 2004 the respondent’s solicitors indicated their client did not accept that explanation, and would take no further steps until a reasonable excuse was provided. The applicant’s solicitors delivered a statutory declaration in which the applicant said, again, that after she had problems walking during her holiday, and developed the ulcer and obtained treatment for it, she was told of the connection and first realised there might be significant ongoing problems. The respondent’s solicitors asserted, by letter in reply, that this explanation was “… neither reasonable nor credible”. -- 2 of 3 -- 3 [7] In Thomas v Trans Pacific Industries Pty Ltd (2002) QCA 160 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. [8] In Hodges v Avdyl trading as Daniell’s Nursery & Garden Supplies ([2003] QDC 347 the applicant alleged he suffered an injury on 12 June 2002 but did not serve his claim until July 2003 and, although other factors led Boulton DCJ to describe the claim as “very shaky indeed”, he was prepared to accept that the delay (which he described as “relatively short”) had been reasonably explained by an excuse based, again, on a hope of recovery. [9] 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)1. While the applicant’s original injury was obviously quite severe, and her initial convalescence prolonged, there is nothing in the evidence to suggest that, thereafter, and up until the time of her trip to England and the appearance of the ulcer, her belief that there was a reasonable prospect of long term recovery was unreasonable. The development of the ulcer and the medical advice she received as a consequence of her treatment for it appears, plausibly, to have alerted her to the probability that continuing symptoms were likely. [10] 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. The applicant’s conduct here was of that kind, and what is contained in her statutory declaration and her solicitor’s letter 21 October 2004 should be described as a reasonable excuse; and, significantly for the issue of costs, there is nothing in the affidavit filed 11 February 2005 which could be said to convert an unreasonable excuse to a reasonable one. In the circumstances this application was unnecessary, and the respondent ought to pay the costs associated with it. 1 Piper v Nominal Deft (2004) 2 Qd R 85 -- 3 of 3 --