The applicant/appellant Ms Stimpson was in a de facto relationship with Mr Cullen, who was struck by a motor vehicle whilst crossing the road on 8 October 2016 and died the following day.
Ms Stimpson suffered psychiatric injury and in September 2019 gave a notice of accident claim form (non-fatal injury) to the second respondent, as CTP (compulsory third party) insurer for the at-fault vehicle. This was two days after instructing solicitors to act on her behalf and roughly one month prior to the expiration of her three-year limitation period.
Via consent, orders were made on 24 September 2019 for Ms Stimpson to commence proceedings within 60 days of the occurrence of specified events, such as the holding of a compulsory settlement conference. Liability for the accident in which Mr Cullen was killed was admitted in full by the second respondent in October 2019.
In July 2020, roughly three years and nine months after the accident, Ms Stimpson delivered a further notice of accident claim form for financial dependency accompanied by an excuse for delay. She indicated that it was not until she and her solicitor were conferring with her barrister earlier that month – for the purpose of a compulsory settlement conference in respect of her personal injury claim – that the barrister indicated the likelihood of an available claim for loss of dependency.
The second respondent asserted the dependency claim was lodged outside of the three-year limitation period and was statute barred. Court proceedings were validly filed for the personal injuries claim on 10 May 2021.
As the second respondent maintained its reliance on the expiration of the three-year limitation period with respect to her dependency claim, Ms Stimpson filed an application on 17 September 2021 for various orders. This included a declaration that the earlier order, made on 24 September 2019, extended both the limitation period for her personal injury claim and her dependency claim respectively, or in the alternative, to amend that order pursuant to rule 376(4) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) or section 16 of the Civil Proceedings Act 2011 (Qld) (CPA).
At the hearing of the application, it was conceded by Ms Stimpson that her solicitors did not investigate a dependency claim at any time prior to conferring with her barrister in July 2020, prior to the compulsory settlement conference.
The primary judge dismissed Ms Stimpson’s application and ordered that her solicitors pay the second respondent’s cost of the application. Ms Stimpson subsequently applied for leave to appeal against the primary judge’s orders, including with respect to the order for costs.
- application for leave to appeal granted
- appeal allowed
- set aside orders made by the primary judge on 29 October 2021
- leave to the appellant to amend the previously filed claim and statement of claim to include the dependency claim, pursuant to section 16 of the CPA
- second respondent to pay the appellant’s cost of the application before the primary judge, the application for leave to appeal and of the appeal.
Ms Stimpson appealed on two grounds:
- the primary judge erred in determining the relevant period of limitation, on the basis that the order made on 24 September 2019 extended to both claims for personal injury and dependency by Ms Stimpson in respect of the accident, despite having only made a claim in respect of personal injury at the time the order was made
- the primary judge failed to consider the correct application of section 16 of the CPA.
The court rejected the first ground of appeal as it was inconsistent with the scheme of the Motor Accident Insurance Act 1994 (Qld) (MAIA), requiring that a notice of claim be given before bringing a proceeding based on the claim. That is, the only notice of claim delivered prior to the orders – dated 24 September 2019 – granting leave to extend the limitation period, were those with respect to the personal injury claim, not with respect to the dependency claim.
It was conceded by Ms Stimpson that she could only rely upon rule 376(1) of the UCPR to amend the court proceedings to include the dependency claim, if the limitation period for the dependency claim was current (that is, had not expired) as at the commencement of the proceeding on 10 May 2021.
The court held that section 57(2) of the MAIA did not otherwise extend the period of limitation for any other claims sought by Ms Stimpson, arising out of the same accident for which she had not obtained leave during the period of limitation.
The court found that the primary judge did not expressly consider the application of section 16 of the CPA when determining Ms Stimpson’s initial application to amend her claim to include a dependency claim. Applying section 16(2) of the CPA, the court considered the relevant factors put forward by Ms Stimpson and the second respondent when exercising their discretion.
Ms Stimpson submitted that the second respondent had notice within the standard three-year limitation period that she intended to bring a personal injury claim for damages. She asserted that this put the second respondent on notice that the circumstances of the accident should be investigated, including the circumstances relevant to the claim for damages for nervous shock.
She further submitted that the insurer had admitted liability for the accident and that she was blameless for the delay in prosecuting her dependency claim, as she was never informed by her solicitors within the limitation period that she could make such a claim.
The second respondent submitted that, if leave were not granted to enable Ms Stimpson to claim for dependency, she would have a good claim against her solicitors, but otherwise did not raise any specific prejudice against it.
The court considered that whilst Ms Stimpson may have a good claim against her solicitors, it was not a factor that should weigh against her given she was blameless for the delay in giving notice for her dependency claim. In exercising its discretion, the court noted the requirement to weigh up all the relevant factors to determine whether it was in the interest of justice to make the orders sought by the applicant, concluding that it was.
In determining costs, the court noted that the previous order of costs against Ms Stimpson’s solicitors could be justified when the (primary) application was dismissed. However, as Ms Stimpson had succeeded on the appeal and obtained the relief initially sought in the application before the primary judge, it was appropriate that costs followed the event for both the application before the primary judge, and the present (successful) application and appeal to the court.
This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Trent Johnson, is a Partner. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.