Issue: material fact of a decisive nature and when knowledge of same commenced.
The applicant was described as an uneducated truck driver, who was injured when the brakes on the truck he was driving failed whilst descending Mystery Road, Mt Tamborine on 26 May 2007. The applicant placed the matter in the hands of his solicitor in January 2008. They took their lead from the employer’s finding of guilt in the prosecution by the Department of Transport and consequently lodged a Notice of Claim for Damages against the employer, which was lodged immediately before the expiration of the 3 year limitation period (and compliance was granted). The usual pre-litigation steps were taken, during which the solicitor for WorkCover Queensland gave notice to the applicant’s solicitor in early October 2010 that their investigations of the Department of Transport’s file, revealed the inspection of the brakes were undertaken by a third party and the claim should made under the Motor Accident Insurance Act 1994 (Qld). A denial of liability followed on 2 November and was received on 3 November 2010 by the applicant’s solicitor.
Her Honour found the material fact was the information disclosed in the Department of Transport’s file. The issue was whether this was in the realm of the applicant or his solicitor. Her Honour found by reason of the applicant’s education and having instructed a solicitor early after the accident, it was not known to him and he could leave it for his solicitor to investigate. The critical issue then became the date on which it was known because the application fell outside of the 12 month period running from October, but if it was in November it was within time. Justice Atkinson found the information became decisive when it was relied upon to found the denial of liability in November. Lastly, her Honour found there was also no prejudice to the respondent in exercising the discretion.
Brisbane Barrister – David Cormack