Dual application – extension of the limitation period and 18(1)(c)(ii) of PIPA to proceed

Green v Taylor [2010] QDC 298

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the applicant has applied under section 31 of the Limitations of Actions Act 1974 (Qld) for the limitation period relating to his claim for damages for personal injuries to be extended – where the applicant was a jockey who suffered an injury to his left hip after a race fall – where the applicant alleges the respondent is responsible for the injury – where the respondent concedes there is evidence to establish a right of action apart from a defence founded on the expiration of the limitation period –where the applicant argues he did not know a material fact of a decisive character until a date within the 12 months preceding 11 February 2009 – whether in all the circumstances, the limitation period should be extended LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE – REASONABLE STEPS TAKEN TO ASCERTAIN FACTS – where plaintiff has applied under section 31 of the Limitations of Actions Act 1974 (Qld) for the limitation period relating to his claim for damages to be extended – where the plaintiff was a jockey who suffered an injury to his left hip after a race fall – where the applicant alleges the respondent is responsible for the injury – where the applicant argues he did not know a material fact of a decisive character until a date within the 12 months preceding 11 February 2009 – whether the applicant took all reasonable steps to ascertain the material fact of a decisive character – whether in all the circumstances, the limitation period should be extended LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where plaintiff wishes to recover damages for personal injury – where the plaintiff was a jockey who suffered an injury to his left hip after a race fall – where the applicant failed to provide a complying notice of claim under section 9(1) of the Personal Injuries Proceedings Act 2002 (Qld) – where failure to give a notice of claim within the nine month period – failure to provide a reasonable excuse for delay in providing a compliant notice – where failure constitutes non-compliance under the Personal Injuries Proceedings Act 2002 (Qld) – where respondent did not contend he suffered any specific prejudice from the delay – whether the court should exercise discretion to allow the applicant to proceed with the claim despite a failure to provide a complying notice.

Issues:

  • Material fact;
  • Decisiveness;
  • All reasonable steps;
  • Prejudice; &
  • Failure to provide complying Notice of Claim and reasonable excuse.

In the factual matrix of a lingering injury exacerbated by the impact of arthritis, the reasoning of Irwin DCJ, provides a useful and practical analysis of the above issues and the commercial realities of pursuing a claim, statutory refunds and when it becomes viable to bring it.  

The authorities below are helpfully summarised in the judgment:

  • Cousins v Mt Isa Mines Ltd [2006] QCA 261;
  • Gillam v State of Queensland & Ors [2003] QCA 566;
  • Greenhalgh v Bacas Training Limited & Ors [2007] QDC 056;
  • Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327;
  • Pizer v Ansett Australia Limited [1998] QCA 298; &
  • State of Queensland v Stephenson (2006) 80 ALR 923.

 

Weighing heavily in allowing the application was the accepted credibility of the plaintiff/applicant and lack of prejudice to the defendant /respondent.

Brisbane Barrister – David Cormack

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