LEGAL PROFESSION BOARD OF TASMANIA No. 15/2014 MR ALLAN MCKENZIE Complainant -AND- MR CRAIG GERALD RAINBIRD Legal Practitioner Determination DETERMINATION & REASONS FOR DETERMINATION 1. That the Legal Practitioner is guilty of unsatisfactory professional conduct in that he: a. Unreasonably delayed the progression of the Complainant s personal injuries claim. b. Failed to advise the Complainant of Court applications, Court appearances and consequent orders of the Court when reasonably required to do so. c. Failed to diligently attend to complying with Court Orders. 2. That the Legal Practitioner be reprimanded. 3. That the Legal Practitioner pay a fine in the sum of $2,000.00 to the Board by 30 April 2014. 4. That the Legal Practitioner provide an apology to the Complainant in the terms of Annexure A to this Determination. 5. That the Legal Practitioner pay the Board s costs in the sum of $9,900.00 by 30 April 2014. The Complaints, Facts and Reasons for Determination 6. On 14 March 2014 the Board held a Hearing under s.450 (a) of the Legal Profession Act 2007 ("the Act") in respect to two (2) complaints made by the Complainant against the Legal Practitioner namely complaint number 090120 dated 21 September 2009 and 110051 dated 31 March 2011. Determination & Reasons for Determination File Ref: 110051 & 090120 Legal Profession Board of Tasmania Level 3, 147 Macquarie Street HOBART TAS 7000 Telephone: (03) 6226 3000 Facsimile: (03) 6223 6055
7. The Hearing proceeded on the basis of an Agreed Statement of Facts which is set out below and which conveniently particularises the matters of complaint raised by the Complainant and the relevant facts agreed. BACKGROUND 1. The Complainant was injured when cars participating in the Targa Tasmania car race on 29 April 2006, crashed into the spectator area where the Complainant was located to watch the race ( the accident ). 2. In October 2006, the Legal Practitioner was instructed by the Complainant about getting compensation for injuries sustained in the accident. 3. Allegations of unsatisfactory professional conduct have been made against the Legal Practitioner and the Board resolved to conduct a hearing in respect of the allegations. 4. The Complainant and the Legal Practitioner agree the following facts for the purpose of the hearing referred to in paragraph 3. As to Allegation 1 that the Legal Practitioner unreasonably delayed the progression of the Complainant s personal injuries claim: 5. Between about 1 June 2007 until 3 July 2008 the Legal Practitioner: a. failed to seek any expert medical reports relating to the Complainant s injuries resulting from the accident until 16 July 2008, despite being instructed to pursue a damages claim in October 2006 and receiving medical authorities in November 2006; and b. took no steps to pursue the damages claim, other than to report to the Complainant by letter of 19 December 2007, when he reasonably ought to have: formed a view as to liability; and filed a Writ to commence the claim. 6. Between about 29 January 2009 until 29 May 2009 in that having received the last of the expert medical reports requested on 16 July 2008 and liability having been admitted by letter dated 29 October 2008 he: a. failed to seek earlier clarification of medical issues identified in the expert medical reports that had been received, as required to particularise the claim for damages; b. delayed in filing and serving the Writ & Consent Judgment; and, c. delayed in taking the instructions required to prepare Particulars of Claim. 7. Unreasonably delayed conducting the work identified by Barrister, Mr McTaggart ( the Barrister ) at a meeting on 29 May 2009, for periods ranging from approximately 7 to approximately 14 months. 7.1. The Barrister s advice was that further medical reports or information was required as follows: Page 2 of 6
a. the file from the Neuro Trauma Clinic; b. the services of an Occupational Therapist to look at daily living needs; b. statements from wife and witnesses as to pre-accident and post-accident level of function; c. a report from Mike Nicholson (Cardiologist); d. a referral to Mr Merry for information about the Complainant s hearing; e. further information from Dr Harvey; f. further information from Dr Geoff Kirkland; g. information from Dr Hilton Francis; and h. ask Webster (MAIB) whether they have got any reports. 7.2. The Legal Practitioner attended to the tasks referred to in paragraph 7.1 as follows: a. wrote to the Neuro Trauma Clinic by letter dated 24 December 2009, approximately seven months after the first meeting with the Barrister; b. sought a report of an Occupational Therapist (Verity Coulter) by letters dated 16 July 2010 and 9 August 2010, approximately 14 months after the first meeting with the Barrister; c. statements from the complainant s wife and witnesses as to pre-accident and post-accident level of function do not appear to have been prepared by the Legal Practitioner; d. sought a report from Dr Nicholson (Cardiologist) by letter dated 23 March 2010, approximately 10 months after the first meeting with the Barrister; e. made referral arrangements relating to the Complainant s hearing being tested by Mr Merry by two letters dated 24 December 2009 and 1 March 2010 respectively, approximately 7 and then 9 months respectively after the first meeting with the Barrister; f. requested a further report from Dr Harvey on 1 March 2010, approximately 9 months after the first meeting with the Barrister; g. requested a further report from Dr Kirkland by letter dated 19 March 2010, approximately 9 months after the first meeting with the Barrister; h. requested a further report from Dr Hilton Francis by letter dated 19 July 2010, approximately 13 and a half months after the first meeting with the Barrister; and, Page 3 of 6
i. reports were sought from MAIB by two letters dated 24 December 2009 and then 1 March 2010, approximately 7 months and 9 months respectively, after the first meeting with the Barrister. 8. He unreasonably delayed requesting further medical reports as advised by the Barrister, by letter dated 17 May 2010 ( the letter of advice ), for approximately 2 months in that: 8.1. By the letter of advice the Barrister reminded the Legal Practitioner that some further medical reports were still required: a. Mr Wiggins needed to be asked for a report as to the need for a knee brace and whether this need was linked to the accident (mentioned at page 7, subparagraph h of the letter of advice); and b. the need for a report of an Occupational Therapist is repeated (mentioned at page 8, of the letter of advice). 8.2. The Legal Practitioner attended to the tasks referred to in paragraph 8.1 as follows: a. a report was requested from Mr Weston Wiggins by letter dated 16 July 2010 (approximately 2 months after the date of the advice); and b. the advice of an Occupational Therapist was sought in writing by letters dated 16 July 2010 and 9 August 2010 (approximately 2 months after the date of the advice). As to Allegation 2 that the Legal Practitioner failed to advise the complainant of court applications, court appearances and consequent orders of the court when reasonably required to do so: 9. On 17 February 2010 the defendant filed an Interlocutory Application for proofs of evidence and Particulars of Claim. 10. On 2 March 2010 orders were made by consent to serve expert proofs and Particulars of Claim in 90 days and for the plaintiff to pay the defendant s taxed costs of the application in any event. 11. The plaintiff failed to provide particulars of loss or expert proofs on or before the 90 days expired on 31 May 2010. 12. On 3 June 2010 the defendant requested that the matter be re-listed before the Court because the plaintiff had failed to comply with the consent order of 2 March 2010 or seek the defendant s consent to any extension of that order. 13. On 22 June 2010 the Associate Judge ordered that: a. the time for delivery of Particulars of Claim and expert proofs be extended for a further 6 weeks (until 4 July 2010) with liberty to apply for a further extension prior to the non-compliance occurring; b. Division 1 of Part 14 of the Supreme Court Rules 2000 applied; Page 4 of 6
c. that a direction hearing was to occur on 10 August 2010; and d. the plaintiff was to pay the defendant s taxed costs of and incidental to the 22 June 2010 appearance. 14. The plaintiff failed to provide particulars of loss or expert proofs on or before the extended order made on 22 June 2010 expired on 4 July 2010. 15. On 9 August 2010, by email sent at 9.16am, the Legal Practitioner sent a letter to the solicitor for the defendant requesting an extension of time for particulars and proofs because he was waiting on two fresh reports and was involved in a criminal trial. 16. On 10 August 2010 the directions hearing took place before the Associate Judge. The Associate Judge ordered that: a. the plaintiff have a further 3 weeks for delivery of Particulars of Claim and expert proofs; b. the directions hearing be adjourned to 31 August 2010; c. the plaintiff pay the Defendant s taxed costs thrown away as a result of the adjournment. 17. By letter dated the 11 August 2010 the solicitor for the defendant wrote to the Legal Practitioner indicating that the costs thrown away as a result of the application were $278.90. 18. On 25 August 2010 the defendant filed an interlocutory application for the proceedings to be dismissed due to the failure to provided Particulars of Claim and proofs of evidence. 19. Particulars of Claim were provided to the defendant s solicitors on or about 30 August 2010. 20. On 31 August 2010 orders were made by consent dismissing the interlocutory application dated 25 August 2010, ordering that the plaintiff pay the defendant s costs of and incidental to the interlocutory application dated 25 August 2010 and referring the proceedings to mediation. As to Allegation 3 that the Legal Practitioner failed to diligently attend to complying with court orders: 21. The Legal Practitioner did not diligently attend to complying with court orders referred to in paragraphs 10 and 13. Reasons for Determination 8. From the agreed facts the Board finds the Practitioner guilty of unsatisfactory professional conduct in respect to allegations 1, 2 and 3 as set out in the Statement of Agreed Facts referred to above. The Board makes the further determinations pursuant to s.454 (2) (a) and (b) of the Act that the Practitioner be reprimanded and that he pay a fine of $2,000.00. 9. The Board makes a determination under s.454 (2) (m) that the Practitioner pay the Board s agreed costs of $9,900.00. Page 5 of 6