Conrad & Anor v P & O Resorts Pty Ltd [2004] QSC 179

SUPREME COURT OF QUEENSLAND CITATION: Conrad & Anor v P & O Resorts Pty Ltd [2004] QSC 179 PARTIES: OLGA CONRAD (first plaintiff) and RONALD WALTER CONRAD (second plaintiff) v P & O RESORTS PTY LIMITED (ACN 009 962 887) (defendant) FILE NO: 11327 of 2000 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court, Queensland DELIVERED ON: 17 June 2004 DELIVERED AT: Brisbane HEARING DATE: 21 May 2004 JUDGE: Helman J. CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – TIME – DELAY SINCE LAST PROCEEDING – leave to proceed – whether satisfactory reason for delay – plaintiffs’ prospects of success – prejudice to defendant. Uniform Civil Procedure Rules 1999, rule 389(2) Supreme Court Act 1995, ss. 17, 18, and 21 Succession Act 1981, s. 66 COUNSEL: Mr P. Woods for the plaintiffs SOLICITORS: Hopgood Ganim for the plaintiffs Phillips Fox for the defendant and Heron Island Pty Limited [1] This is an application by the plaintiffs who seek the following orders: 1. That the first and second plaintiffs be granted leave to proceed with their action, pursuant to rule 389(2) of the Uniform Civil Procedure Rules 1999. 2. That the first and second plaintiffs be granted leave to amend their Claim and Statement of Claim, pursuant to rule 376(2) of the Uniform Civil Procedure Rules, by removing the present -- 1 of 5 -- 2 named defendant, P & O Resorts Pty Limited (ACN 009 962 887), and inserting Heron Island Pty Limited (ACN 009 724 921) thereto. Heron Island Pty Limited is a respondent to the application. [2] The plaintiffs began their proceeding by a claim filed on 29 December 2002. The first plaintiff is the widow of Mr Helmar Conrad who died on 31 December 1997, then aged seventy-two years. She is the executrix of his estate. The second plaintiff is the son of the deceased. The plaintiffs’ claims arise from an incident that occurred on 31 December 1997 off Heron Island, Queensland. Having entered the water from a motor boat operated from a resort on the island, the deceased and the second plaintiff were snorkelling in the Wistari Channel near the island when, according to the plaintiffs’ case, the deceased was ‘in trouble’, and later drowned. The plaintiffs allege that the incident was caused by the negligence of the defendant by its servants and agents, the crew of the boat. The first plaintiff claims damages pursuant to ss. 17, 18, and 21 of the Supreme Court Act 1995, damages for nervous shock, ‘funeral and testamentary costs’ in her capacity as executrix pursuant to s. 66 of the Succession Act 1981, together with interest and costs. The second plaintiff claims damages for nervous shock, and interest and costs. I am not clear what the claim to testamentary costs entails, but no issue about it was raised at the hearing of the application. [3] The plaintiffs’ proceeding has moved barely imperceptibly since it was instituted, its dormancy interrupted seldom and then only briefly. It will not take long to relate what steps have been taken because so few have. The claim was not served until in or about July 2001. That was the last step taken in the proceeding. [4] By a letter dated 6 August 2001 the defendant’s former solicitors notified the plaintiffs’ solicitors’ Brisbane agents that the wrong company had been joined as defendant and that the company that should have been joined was Heron Island Pty Limited. The defendant’s solicitors asked that the plaintiffs’ solicitors’ Brisbane agents confirm that their ‘client’ would ‘attend to the necessary amendment of the pleadings’ without requiring the defendant to file a defence. It took until 15 April 2002 for the plaintiffs’ solicitors to send a draft order for execution. A further draft was sent on 17 June 2002. By facsimile dated 7 October 2002 the defendant’s solicitors sent a copy of the executed consent order. On 29 January 2003 a request was made by telephone by the plaintiffs’ solicitors to the defendant’s solicitors for an original copy of the order. On or about 2 February 2003 the plaintiffs’ solicitors received an original version of the consent order enclosed with a letter from the defendant’s solicitors dated 30 January 2003. On 3 September 2003 a solicitor employed by the plaintiffs’ solicitors informed the defendant’s solicitors that he had the plaintiffs’ file and had reviewed it, but did not have the original of the ‘signed documents’. (The inference that can clearly be drawn is that the order had been lost.) On 17 September 2003 the plaintiffs’ solicitors sent another draft of the consent order to the defendant’s solicitors with a letter which drew a response dated 30 October 2003 from the defendant’s solicitors pointing out that since more than two years had elapsed since a step had been taken in the proceeding the leave of the court under rule 389 was required before a further step could be taken. -- 2 of 5 -- 3 [5] This application was not filed until 26 February 2004 and was returnable on 8 April 2004. The court order sheets show that the application was adjourned on 30 March 2004 to 10 May 2004 on the application of the plaintiffs’ solicitors’ town agents because the application had not been served, and was adjourned on 2 April 2004 to 17 May 2004 for the same reason. It was again adjourned on 4 May 2004 to 21 May 2004 for the same reason. [6] The plaintiffs’ solicitors, who practise in Sydney, have changed their name a number of times since the proceeding was instituted. When it began they were called LMG Solicitors & Attorneys, later Selby Kent Levitt, then Selby Levitt, and then Levitt Robinson. I mention that only because it is mentioned by Mr Stewart Levitt, solicitor of the plaintiffs’ solicitors’ firm, as a circumstance he appears to regard as relevant, although I have difficulty in seeing its relevance to this application. According to Mr Levitt, ‘In about February 2003, I was apprised of rule 389(2) of the Uniform Civil Procedure Rules 1999, of which there is no counterpart in New South Wales’. That event is I think relevant, as I shall mention later. [7] The delays in pursuing the proceeding are obvious and difficult to understand if one assumes the plaintiffs truly wish to pursue it. [8] First there was the delay in instituting the claims, left until just before the three-year limitation period had expired. The first plaintiff swore in an affidavit filed on 14 May 2004 that she refused to see a psychiatrist until she finally agreed to see a Professor Frederick Ehrlich on 31 October 2001 on referral from Mr Levitt, that she did not want to be involved in legal proceedings concerning her late husband’s death, and that she was hesitant to become involved in ‘legal proceedings generally’. She swore that between 2000 and 2002 she felt as if her whole family life had collapsed and she was too distressed to give proper instructions to her solicitor to maintain this proceeding on her behalf. The second plaintiff, in an affidavit also filed on 14 May 2004, swore that during 2000, 2001, and early 2002 he was preoccupied with a matrimonial dispute, and that from mid-2000 until mid-2002 because of the ‘domestic distractions’ he was ‘regrettably inattentive to the conduct of this case’. [9] There is before me a copy of a report dated 31 October 2001 by Professor Ehrlich, who records the plaintiffs’ attending to give him an account of the events surrounding the death of the deceased. Curiously enough, Professor Ehrlich does not, as the first plaintiff suggested in her affidavit, practise as a psychiatrist. His specialty is shown as orthopaedic rehabilitation and his current appointments indicate that his practice is in orthopaedics. He holds the position of medical superintendent of the Maitland Hospital, Director of Surgical and Rehabilitation Service for the State psychiatric hospitals, and honorary orthopaedic surgeon to the Spastic Centre of New South Wales and the Subnormal Children’s Welfare Association. He is visiting senior specialist orthopaedic surgeon at the Concord Hospital and professor of rehabilitation, aged and extended care at the University of New South Wales and St George Hospital. He is also ‘VMO’ of St Vincent’s and Prince of Wales private hospitals. The report nonetheless deals with no orthopaedic questions but with the mental condition of the plaintiffs and the cause of death of the deceased. I shall return to the latter subject later. -- 3 of 5 -- 4 [10] It follows that despite the first plaintiff’s reluctance to pursue her claim and the second plaintiff’s preoccupation with his matrimonial difficulties they instituted their proceeding at the eleventh hour, and then, only after another ten months had elapsed, consulted an orthopaedic surgeon on matters unrelated to his specialty. Their inaction since 2002 remains unexplained. [11] No satisfactory explanation has been offered for the delays in serving the claim, in acting upon the notification concerning the defendant in the defendant’s solicitors’ letter of 6 August 2001, in making the request of 29 January 2003, in notifying the defendant’s solicitors of the loss of the original version of the consent order, and in making and serving this application. The inactivity after Mr Levitt became aware of the provisions of rule 389 is perplexing. [12] On behalf of the defendant and Heron Island Pty Limited the application for the first order sought was resisted, but no objection was taken to my making the second order if the application for the first should succeed. In resisting the first order sought the defendant’s solicitors relied on the plaintiffs’ delay in instituting and pursuing their claims, and asserted that the evidence did not show that the plaintiffs had any reasonable prospect of succeeding. [13] There could be considerable doubt as to whether the plaintiffs genuinely wished to pursue their claims at the time they were instituted. They appear now to be more anxious to do so although their inaction since 2002 remains unexplained. Their solicitors’ inaction is not satisfactorily explained. There is in my view no material delay attributable to the defendant or its solicitors. [14] In suggesting that the plaintiffs have little prospect of success in their claims, the defendant’s solicitors placed particular emphasis on the coroner’s finding dated 13 January 1999 in which the cause of death was found to be ‘drowning due to coronary atherosclerosis’. (The medical certificate on the cause of death dated 1 January 1998 following a post-mortem examination showed drowning to be the cause of death, but gave atherosclerosis and polycystic kidneys as other significant conditions ‘[c]ontributing to the death, but not related to the disease or condition causing it’.) The argument is in essence that that evidence excludes any act or neglect by others as the cause of the deceased’s drowning, which followed a heart attack. Professor Ehrlich gives the opinion, however, that it is ‘well known’ that vigorous exercise can culminate in coronary occlusion, and that death ‘during excessive exertion during swimming, particularly if accompanied by the anxiety of “not making it” can be a significant provocative factor for coronary occlusion’. Although, as I have indicated, it appears that Professor Ehrlich may be stepping outside his specialty of orthopaedics and possibly relying on anecdotes in giving an opinion on a matter strictly within the field of a cardiologist, his general medical experience is enough for me to conclude that he is sufficiently expert to express an opinion on the issue of causation. The plaintiffs have then a sufficient case on that issue to permit this proceeding to continue. I should add that there appears to be a sufficient case that acts and omissions of employees of Heron Island Pty Limited caused the deceased to be in trouble before he drowned. [15] The case for leave is a borderline one in which no adequate explanation for the plaintiff’s delay has been proffered. On behalf of the defendant and Heron Island Pty Limited, however, it was frankly conceded that no prejudice to them can be demonstrated, because the defendant’s solicitors were retained to act at the inquest -- 4 of 5 -- 5 which, as I have indicated, came to a conclusion in January 1999. In those circumstances I shall make both orders sought by the plaintiffs, but shall invite further submissions on the form of the orders and any directions that may be necessary for the future conduct of the proceeding, and costs. -- 5 of 5 --