October 13, 2010 | 23,208 viewsCourt allows renewal of claim 13 years after injury: Plaintiff excused in “sorry saga” of “dilatory” solicitors

Solicitors who failed to lodge a WorkCover notice of claim for damages and apply to renew a claim until 11 years after a farm accident had injured their 21 year-old banana picker client, came under heavy criticism last month from the Court of Appeal*.

John Crompton tripped over tree cuttings and injured his left knee as he was loading fruit on to a trailer in North Queensland in October 1997.

Shortly afterwards he moved to Tasmania where he engaged solicitors who in turn engaged Preascot Reason back in Cairns.

A subsequent injury to the same knee in Tasmania complicated things and a conditional damages certificate was not issued until a few days prior to the expiration of the 3 year limitation period. Despite being unable to finalise the notice of claim for damages, the solicitors also filed a claim and statement of claim in October 2000.

Mr Crompton moved back to Queensland in 2002 by which time his law firm had metamorphosed into Pinder Gandini.  He deposed to being fobbed off whenever he called to speak to his solicitor Mr Pinder: “He was never able to speak to” him and was always told Mr Pinder was “out” or “busy”. Only after intervention from Federal MP Bob Katter was there some activity.

In June 2003 WorkCover’s solicitors notified that they intended to apply to strike out the Supreme Court claim if the s 280 notice of claim was not delivered promptly. Counsel largely settled the notice in conference with the plaintiff but the solicitors withheld service, presumably because the plaintiff was to undergo further surgery to his injured knee a few months later.

Nothing happened in 2004.

In late 2005, Mr Pinder told Mr Crompton that Murphy Schmidt in Brisbane would “take over his file” but instead, the plaintiff engaged Mr Cooper who had acted for him in another matter.

Nothing to advance the claim happened during 2006 or 2007. Not until August 2008 did Mr Cooper notify WorkCover’s solicitors that he was acting and it was only then that the notice of claim for damages was served.

WorkCover not surprisingly, denied liability on the basis that the claim was “stale” for not having been renewed since 2002 and it not having been served. Their solicitors demanded the claimant apply for leave to renew the claim which they foreshadowed would be opposed and accompanied by a cross-application to strike it out for want of prosecution.

Nevertheless, a compulsory conference took place in December 2008. The matter was not resolved and the parties exchanged mandatory offers. Despite this, the solicitors continued to withhold service of the claim filed 8 years earlier.

Finally, an application was filed in August 2009 for leave to renew the claim and for leave to proceed. WorkCover cross applied for dismissal.

At first instance, the Supreme Court dismissed the renewal application on the basis that there had been no step taken in 12 years.

On appeal, the court exercised its discretion to allow the renewal effectively for a 7 year period by operation of UCPR rule 367. In so doing, it pointed out that WorkCover had not been able to point to any specific prejudice caused by the delay. The “general prejudice which infects all stale causes” was insufficient of itself to deny the renewal.

WorkCover had asserted that the plaintiff should have been more diligent personally for example by engaging Mr Katter repeatedly to intervene with the tardy lawyers. Her Honour White J rejected this, stating that the plaintiff’s personal conduct did not “seem to warrant censure to the extent of losing his claim altogether”.

The trial judge was held to have miscarried by failing to give sufficient weight to the plaintiff’s “attempt to get his several Queensland solicitors to advance his claim over many years and the early engagement of WorkCover in the investigation.”

In the circumstances Her Honour, with whom the other justices agreed, was somewhat reserved in her criticism of the plaintiff’s solicitors. She noted the plaintiff “had the great misfortune to be put in contact with solicitors in Queensland who failed to protect his interests. The sorry saga reveals, for example, that on three occasions the same income-tax notices of assessment and returns were sought and provided”.

If calendar alerts, monthly reviews and file audits are ignored, disasters can always occur. There but for the grace of a higher being (and these systems & processes) we may all potentially go. But the truth is that there are probably other similar terrifying tales still waiting to be told,  sitting under piles of paper in other lawyers’ offices. The outcome may not as benign for other practitioners as was the case in the tale of John Crompton.

–         Opinonian

* Crompton v Buchanan Farming and Grazing Pty Ltd [2010] QCA 250

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