Lawcovernotes March 2019

10. When there is a failure to commence proceedings on behalf of a client within a prescribed limitation period a claim almost certainly arises. In a recent claim, the solicitor was retained by the Owners Corporation of a strata title residential development to act in relation to a claim for defective building works. The solicitor also provided advice in relation to a claim on the home owners warranty insurance policy issued by an insurance company. A claim under the policy was lodged. The solicitor commenced proceedings on behalf of the plaintiff in the Consumer Trader and Tenancy Tribunal against the builder and the developer. The insurance company denied indemnity for the plaintiff’s claim. The builder, in its defence, pleaded that the proceedings were commenced out of time. The builder served a notice of motion on the plaintiff seeking orders that the proceedings be struck out, which was successful. The plaintiff commenced proceedings against the solicitor which was ultimately settled by Lawcover. In another claim, the solicitor acted for a client who had spinal surgery that caused injuries to his bladder, back and nervous system. The injury related to a surgical hose being left in the client’s back. The client suffered psychological damage as a result. Pursuant to section 9A of the Personal Injuries Proceedings Act 2002 (QLD) (PIPA), an Initial Notice of the claim had to be sent to the surgeon’s solicitor within nine months after the day the surgery occurred, or, if the symptoms of the personal injury arising out of the surgery were not immediately apparent, the first appearance of symptoms of the injury. The solicitor was retained after the PIPA time limit lapsed. Nevertheless, the solicitor sent an Initial Notice of the claim to the surgeon’s solicitors. Shortly thereafter, the client’s claim became statute barred, pursuant to section 11 of the Limitations of Actions Act 1974 (QLD). After the limitation period had expired, the solicitor sent medical reports, income tax returns and notice of assessment to the surgeon’s solicitor in support of the client’s claim. An explanation was not provided regarding the delay in providing the supporting documentation. The solicitor also attempted to organise a compulsory conference after the limitation period expired, without success. The client instituted proceedings against the solicitor alleging negligence in relation to the conduct of the personal injury claim which was eventually settled by Lawcover. In claims like these time is crucial - in this instance the time between the PIPA expiration and the commencement of the solicitor’s retainer (before the claim became statute barred). Even though the client had not complied with the pre- court procedures, had the solicitor applied to the court for leave to commence proceedings out of time, the subsequent claim of negligence may have been avoided. Alternatively the solicitor may have also sought an agreement from the surgeon’s solicitor to allow an extension of time to comply with the pre-court procedures. Neither was done. Unfortunately these types of claims are common, however they can be prevented by implementing simple risk management steps. The clock is ticking – limitation periods Don’t be caught off guard