gadens lawyers assisted the respondent and its insurer to successfully defeat a claimant's application for leave to commence proceedings in a personal injury claim in Zinns v Luca Paccioli Pty Ltd (now known as Plantation Rise Pty Ltd) & Anor [2007] QDC 267.
Pursuant to section 11 Limitation of Actions Act 1974 (Qld), a claimant must bring a personal injury action within three years from the cause of action accruing. However, section 59 (1) Personal Injuries Proceedings Act 2002 (Qld) ("PIPA") confers discretion on the court to grant leave to file proceedings despite the expiration of the limitation period where the claimant provides the defendant with a complying notice of claim prior to expiration of the limitation period.
Usually, a claimant's application under s59 PIPA would routinely result in the respondent/its insurer consenting, or the court granting leave to proceed, despite the expiration of the limitation period.
In our case, Mrs Zinns had provided the respondent with a complying notice of claim prior to expiration of the limitation period. However, despite our numerous requests, the claimant had failed to disclose relevant financial information to support her economic loss claim.
Further, the insurer had acted in good faith in earlier granting an informal six month extension' of the limitation period to the claimant. During this extension period, the claimant continued to withhold disclosure of relevant documents. The claimant's failure to comply with the PIPA disclosure obligations also prevented the parties from convening a compulsory settlement conference.
gadens submitted to the court that the claimant's failure to advance the claim and provide material disclosure in a timely manner did not represent a "conscientious effort to comply with the Act"1. This phrase represents a test that had been previously applied by the Court of Appeal with respect to claims under the Motor Accidents Insurance Act 1994 (Qld) (MAIA') but had not been considered in the context of a PIPA claim.
gadens persuaded the court that the legislative intent of section 57 MAIA was identical to section 59 PIPA. The court held that, like a claim under the MAIA, a claimant seeking leave pursuant to section 59 PIPA bears an evidentiary onus to demonstrate a "good reason" why they are entitled to relief.
His Honour Dodds DCJ held that because the claimant failed to disclose relevant financial documents to support her economic loss claim, she had not discharged her evidential onus. His Honour dismissed the application with costs. Consequently, the entire claim was barred.
This is the first time a court has applied the interpretation given to section 57 MAIA in the context of an action under PIPA to impose an evidentiary burden on an applicant to show that the delay has been caused by the applicant attempting to comply with the statutory pre-court procedures.
It is now established that where a claimant fails to disclose information reasonably sought by an insurer, or fails more generally in his or her duty to progress proceedings in a timely manner, courts will be reluctant to grant relief under section 59 PIPA unless the claimant can show good cause.
The outcome in this case will enable respondents and their insurers to rely on precedent that if the claimant fails to comply with their obligations and advance their claim, the claim can become statute barred. Other claims may in future suffer the same consequences.
At the very least the precedent will send a strong message to claimants and their solicitors, motivating them to advance the claim or face the consequences of a barred claim. Respondents and their insurers will therefore be able to attempt to resolve claims earlier.
Footnotes
1. Winters and Doyle [2006] QCA 110
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David Slatyer |
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Jef Sewell |
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