Arndt v Horwood - [2012] QSC 104

SUPREME COURT OF QUEENSLAND

CITATION:

Arndt v Horwood & Anor [2012] QSC 104

PARTIES:

Melinda Peta ARNDT

(Applicant)

-and-

Rachael Ann HORWOOD

(First Respondent)

-and-

SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966)

(Second Respondent)

FILE NO/S:

S365 of 2011

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

18 April 2012

DELIVERED AT:

Mt Isa

HEARING DATE:

18 November 2011. Final Submissions 12 December 2011.

JUDGE:

North J

ORDER:

The parties have fourteen days to make written submissions as to the terms of the order and as to costs.

CATCHWORDS:

PRACTICE - PROCEDURE - LIMITATION OF ACTIONS - EXTENSION OF TIME - PERSONAL INJURY - MATERIAL FACT - WHETHER OF A DECISIVE CHARACTER - WHETHER APPLICANT ACTED REASONABLY

The State of Queensland v Stephenson & Ors (2006) 226 CLR 197; Hargans v Kemenes [2011] QCA 251; Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541; Limitations of Actions Act 1974 (Qld), s 30, s 31.

COUNSEL:

M Pope of Counsel for the Applicant

R D Green for the Respondents

SOLICITORS:

Connolly Suthers Lawyers for the Applicant

Miller Harris Lawyers for the Respondents

The applicant suffered injuries in a motor vehicle accident which occurred on 29 November 2007. The limitation period of three years provided by the Limitation of Actions Act 1974 ("the Act") passed without her having commenced proceedings. Accordingly she seeks an order pursuant to s 31 of the Act for the extension of the limitation period to enable her to prosecute an action for damages for her personal injury.

The matters in issue on the application were whether there was a material fact of a decisive character that was not within her means of knowledge until a date after 29 November 2009[1] and more particularly an examination of whether the applicant either knew the fact or took all reasonable steps to find out the fact at relevant times.[2] The respondent also contends that in the circumstances even if the applicant can establish an entitlement to the exercise of the discretion provided by section 31 an order should not be made because of the prejudice arising by reason of the influction of time.
[1] See section 31(2)(a) of the Act.
[2] See paras [13] and [14] below.

The date or anniversary section 31(2)(a) of the Act specifies is that date one year before the expiration of the limitation period. In the circumstances applying this date or anniversary is 29 November 2009. Accordingly the applicant must demonstrate that a material fact of a decisive character was not within her means of knowledge until after that date and in the context of this application therefore the examination of whether the applicant can make out the matters required by section 30(1)(b) and (c) involves consideration of her conduct in light of what was known by her and what might have been known by her (acting reasonably) at that date or anniversary.

The Applicant's Injury and Treatment

It is convenient to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arndt v Horwood

Details

AGLC: Arndt v Horwood [2012] QSC 104
Case: [2012] QSC 104
Decision Date: 18 April 2012

CaseChat Overview and Summary

The case of Arndt v Horwood was heard in the Supreme Court of Queensland. The plaintiff, Arndt, sought damages for personal injuries allegedly caused by the defendant, Horwood. Arndt’s initial proceedings were filed outside the statutory limitation period, prompting Horwood to argue that the claim should be dismissed. Arndt applied for an extension of time to file the claim, arguing that a material fact, which was crucial to the claim, was not known and could not have been known until a later date. The court was required to determine whether the material fact was of a decisive character and whether Arndt had acted reasonably in not instituting the proceedings earlier.

The legal issues at hand involved the interpretation and application of the Limitation of Actions Act 1974 (Qld), specifically sections 30 and 31, in the context of personal injury claims. The court needed to ascertain whether the material fact that Arndt argued was unknown to them until a later date warranted an extension of the limitation period. Additionally, the court needed to assess whether Arndt had acted reasonably in not instituting the proceedings earlier, considering the nature and timing of the discovery of the material fact.

In its reasoning, the court examined the statutory provisions and case law, including the decisions in The State of Queensland v Stephenson, Hargans v Kemenes, and Brisbane South Regional Health Authority v Taylor. The court found that the material fact relied upon by Arndt was indeed of a decisive character, as it related to the very cause of the injuries claimed. The court further found that Arndt had acted reasonably in not instituting the proceedings earlier, as the fact could not have been known or reasonably discovered earlier. Based on these findings, the court granted Arndt’s application for an extension of time, allowing the claim to proceed.

The court ordered that the parties have fourteen days to make written submissions as to the terms of the order and as to costs.

Orders

Orders of the court

The parties have fourteen days to make written submissions as to the terms of the order and as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Arndt v Horwood & Anor [2012] QSC 104
PARTIES:	Melinda Peta ARNDT (Applicant) -and- Rachael Ann HORWOOD (First Respondent) -and- SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966) (Second Respondent)
FILE NO/S:	S365 of 2011
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	18 April 2012
DELIVERED AT:	Mt Isa
HEARING DATE:	18 November 2011. Final Submissions 12 December 2011.
JUDGE:	North J
ORDER:	The parties have fourteen days to make written submissions as to the terms of the order and as to costs.
CATCHWORDS:	PRACTICE - PROCEDURE - LIMITATION OF ACTIONS - EXTENSION OF TIME - PERSONAL INJURY - MATERIAL FACT - WHETHER OF A DECISIVE CHARACTER - WHETHER APPLICANT ACTED REASONABLY The State of Queensland v Stephenson & Ors (2006) 226 CLR 197; Hargans v Kemenes [2011] QCA 251; Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541; Limitations of Actions Act 1974 (Qld), s 30, s 31.
COUNSEL:	M Pope of Counsel for the Applicant R D Green for the Respondents
SOLICITORS:	Connolly Suthers Lawyers for the Applicant Miller Harris Lawyers for the Respondents