We have all received one (or likely more) of those claims – the claims that are served outside the time allowed for in the Personal Injuries Proceedings Act1 (PIPA). Given the current environment, with some people suffering additional financial stress as a result of COVID-19, the need for some extra cash may prove the catalyst to reinvigorate that forgotten claim, or to make a claim that in normal circumstances would not be advanced, arising out of circumstances occurring some time ago.
What seems to be most annoying about such claims is that although PIPA includes a mechanism to serve a late claim, with provision of a reasonable excuse for delay, increasingly not only are late claims being served, but in many cases no excuse for delay is provided. It seems to be a given that these claims will be allowed to proceed. Perhaps the solicitors for the claimants think respondents and their insurers will not notice the late service?
But is it actually worth it to take issue with late service? The short answer, in most cases, is no. By all means press the claimant for an excuse, any excuse. However, once that excuse has been provided, no matter how flimsy, the claim will likely be allowed to proceed. Even if no excuse is provided, the claim will likely be allowed to proceed, particularly in circumstances where, as it often is, the claim is still within the limitation period.
There are two elements the Court looks at before allowing a claim to proceed. The first is whether there is a reasonable excuse for delay. The second is, where there is no reasonable excuse (either because no excuse was provided, or the provided excuse was not reasonable), whether the claim be allowed to proceed in any event.
If the Court finds that a reasonable excuse has been provided (and experience and a review of relevant case law would indicate almost any excuse will do) prejudice plays no role. Once a reasonable excuse for delay has been established the claim is allowed to proceed as a matter of right2.
What if you are lucky enough to have either no excuse offered at all, or obtain a finding that an excuse is not reasonable? After you have popped the bottle of bubbles things will quickly calm down as you realise the claimant may still be allowed to proceed with the claim based on the Court’s discretion3. This is when the issue of prejudice has its chance to shine.
But shine it does not.
A respondent’s prejudice caused by a claimant’s delay is one of the elements the Court will have regard to when considering use of its discretionary powers to allow a claim to proceed despite non-compliance with PIPA. Although it is for the claimant to demonstrate that the Court’s discretion should be exercised, there is a positive onus on respondents wishing to assert prejudice to put evidence before the Court of such prejudice. However, in attempting to investigate the extent to which (if any) prejudice exists, a respondent not only incurs costs, but may create a rod for its own back: evidence may be found that indicates there is in fact no, or minimal, prejudice. Respondents may also give evidentiary leads to claimants that the claimants were previously unaware of (potentially making it easier for the claimant to make and prove their claim).
Even if no incident or injury was reported, such that a respondent has lost the opportunity to conduct timely investigations, such prejudice is not sufficient. If witnesses cannot be located or cannot recall an incident, such issues are relevant to credit and acceptance of the evidence at trial, and do not create sufficient prejudice to prevent a claim that is otherwise being advanced within the limitation period from proceeding.4
On balance, and while every case will turn on its own facts, if you are faced with late service of a PIPA claim, even where no reasonable excuse for delay has been provided, it may be better for you to focus your time, energy and, yes, money, on investigating and, if appropriate, defending the claim, rather than go to the expense of defending an application for leave to proceed despite non-compliance with PIPA.
This article was written by Nhu Huynh, Partner and Erin Martin, Special Counsel.
1 2002 (Qld).
2 The provision of a reasonable excuse cures the non-compliance of failing to issue the Notice within time.
3 S 18(1)(c)(ii) gives the Court discretionary power to allow a claimant to proceed with a claim, despite non-compliance.
4 Cf: Wilkins v Thomas Bortwick & Sons (Australia) Pty Ltd [2017] QDC 125.