Birch v AAI Limited [2017] QDC 66

Durward SC DCJ

The application was for an extension of the limitation period for a psychiatric injury suffered as a result of a motor vehicle accident in February 2012. Relevantly, the applicant was employed as a clinical audiometrist, required to travel by motor vehicle to regional centres in North Queensland.

The applicant witnessed a fatal motor vehicle accident where a vehicle on the incorrect side of the road collided with the vehicle in front of the applicant’s. After the accident, the applicant developed and continues to suffer from post traumatic stress disorder (“PTSD”) as a result of witnessing the accident.

In July 2016, the applicant attended a psychologist who advised that the applicant was suffering from aggravated PTSD and that she should not continue work. Following this, the applicant sent her employer a resignation letter however in August 2015 while en route to her final round of regional centres, the applicant witnessed a second motor vehicle accident.

The applicant submitted that work stressors clouded or disguised the gradual increase in her PTSD symptomology, and therefore it was not unreasonable for her to further inquire into any future disability. The respondents submitted that it will suffer significant prejudice should the application be granted.

Legislation

Section 31 of the Limitations of Actions Act 1974 (Qld) provides, inter alia:

(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court – 

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; 

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

The applicant claimed that the material facts came to her knowledge between July and August 2015, namely that she could no longer work in her current employment and her diagnosis of aggravated PTSD. Discussing the remaining elements of s 30 of the Act, Durward SC DCJ stated:

[43] There are two key components in section 30 (1) (b) of the Act: the expressions “reasonable person” and the taking of “the appropriate advice”. Determining whether an action is worthwhile commencing of necessity involves an assessment of the expense, cost and risks of litigation and their potential quantum and benefits of a successful proceeding…

[45] It seems to me that prior to that date, the applicant had not suffered any absence from employment as a result of her psychiatric condition. Her treatment requirements and expenses had been relatively minimal and the quantum of damages would have been fairly modest…

[46] The cost of bringing the claim, including a compulsory conference and going to trial, would likely have outweighed the benefit from the damages that may have been recovered which would have been, it seems to me, very much less than the likely quantum. That regime of costs would have been adverse to a decision to bring a claim as at that date.  The risks and uncertainties involved in the litigation at that time would have been significant.

[49] When the applicant became unable to continue in her employment and her psychiatric condition had developed adversely, together with the diagnoses of an aggravation of her post-traumatic stress disorder attributable to the motor vehicle incident, her position was quite different: she was medically unfit to continue in employment, she sustained a significant weekly economic loss and she was then aware that her inability to work related to the post-traumatic stress disorder attributable to the motor vehicle incident.

As to whether the applicant had a right of action, his Honour was satisfied that the applicant was able to prima facie establish a cause of action in negligence due to the respondent’s insured driving on the incorrect side of the road. Further, His Honour found that the respondent had not established that it will suffer prejudice and concluded for the applicant:

[59] I am satisfied that having regard to her capacity to cope at work for the time after the motor vehicle incident, the medical advice she received and her personal and work circumstances, the applicant took all reasonable steps to find out the material facts.

[60] In my view there will be severe prejudice to the applicant by a refusal of the application: Cousins v Mt Isa Mines Ltd [2006] QCA 261 at [34]. It follows that the issue litigated on this Application should be resolved in favour of the applicant.

The application was granted and the parties costs to be heard at a later date.

David Cormack – Brisbane Barrister & Mediator

Related Posts

Recent Comments

    Categories