Baker v Coles Supermarkets Australia P/L - [2012] QDC 7

DISTRICT COURT OF QUEENSLAND

CITATION:

Baker v Coles Supermarkets Australia P/L [2012] QDC 7

PARTIES:

ANGELEQUE JACQUELINE MAREE BAKER
(Applicant)

V

COLES SUPERMARKETS AUSTRALIA PTY LTD
(Respondent)

FILE NO/S:

4792 of 2011

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

31 January 2012

DELIVERED AT:

Brisbane

HEARING DATE:

15 December 2011

JUDGE:

Dorney QC, DCJ

ORDERS:

1. Application dismissed.

2. Applicant to pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

LIMITATION OF ACTIONS – Extension of limitation period – continuing pain – no “new” diagnosis, simply nature of permanent injury confirmed and operation advised which gave pain relief – whether maintaining work, through avoiding manual labour, sufficient in circumstances to forestall facts becoming decisive – whether, in any event, prejudice giving rise to likelihood of unfair trial

Limitation of Actions Act 1974 s 30(1)(a), s 30(1)(b), s 30(1)(c), s 30(1)(c)(ii), s 31, s 31(2)(a)

Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327

Hertess v Adams [2011] QCA 73

Muir v Franklins Limited [2001] QCA 173

NF v Queensland [2005] QCA 110

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Pizer v Ansett Australia Limited [1998] QCA 298

State of Queensland v Stephenson (2006) 226 CLR 197

Sugden v Crawford [1989] 1 Qd R 683

COUNSEL:

S D Anderson for the Applicant

C C Heyworth-Smith for the Respondent

SOLICITORS:

Shine Lawyers for the Applicant

Dibbs Barker for the Respondent

Introduction

The applicant seeks an extension of the limitation period under the Limitation of Actions Act 1974 (“LAA”), pursuant to s 31, with respect to a claim against the respondent for damages for personal injuries sustained by the applicant on 23 August 2005, together with supplementary orders. Although no date of extension was sought, even in the Amended Originating Application for which leave to file was given at the hearing, it is common ground that the extension of the period, if granted, would be to 7 September 2011. At the hearing of the application on 15 December 2011, besides giving leave to amend the Originating Application filed 25 November 2011 (for the purpose of the substituting the respondent’s name for the original party as named), I gave leave to the respondent to read and file the affidavit of Stephen John Murray, affirmed 15 December 2011, and a further affidavit of Kirsten Louise Reece, sworn 14 December 2011. The earlier affidavit was also read, filed 13 December 2011.

The material relied upon by the applicant consisted of the affidavit of the applicant filed 25 November 2011, as well as the affidavit of Aimee Elizabeth Quemard, filed 25 November 2011.

By leave, the applicant was cross-examined, after leading some further evidence in response to the “new” material filed on behalf of the respondent.

The main questions to be determined are: whether what was within the means of knowledge of the applicant at the relevant time could then be characterised as material facts of a decisive…

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.

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Details

Case: [2012] QDC 7
Decision Date: 31 January 2012

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Baker commenced proceedings against Coles Supermarkets Australia P/L for injuries sustained during his employment. The central issue was whether the limitation period for Baker's personal injury claim had been appropriately extended. The respondent argued that the limitation period had expired, while Baker contended that his ability to continue working, albeit with certain restrictions, should allow for an extension.

The legal issues before the court revolved around whether the nature of Baker's injury, which was a permanent condition, warranted an extension of the limitation period. The court had to determine if the circumstances, including Baker's continued employment and avoidance of manual labour, were sufficient to forestall the facts from becoming decisive. Additionally, the court needed to assess whether there was a likelihood of prejudice leading to an unfair trial if the limitation period was extended.

The court held that the facts had become decisive when Baker's injury was confirmed as permanent, and he was advised of the need for an operation to alleviate his pain. The ability to continue working, through avoiding manual labour, did not prevent these facts from becoming decisive. Moreover, there was no evidence of prejudice that would give rise to a likelihood of an unfair trial. Consequently, the application for an extension of the limitation period was dismissed, with the applicant ordered to pay the respondent's costs of and incidental to the application.

Orders

Orders of the court

1. Application dismissed.

2. Applicant to pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.

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:	Baker v Coles Supermarkets Australia P/L [2012] QDC 7
PARTIES:	ANGELEQUE JACQUELINE MAREE BAKER (Applicant) V COLES SUPERMARKETS AUSTRALIA PTY LTD (Respondent)
FILE NO/S:	4792 of 2011
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	31 January 2012
DELIVERED AT:	Brisbane
HEARING DATE:	15 December 2011
JUDGE:	Dorney QC, DCJ
ORDERS:	1. Application dismissed. 2. Applicant to pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.
CATCHWORDS:	LIMITATION OF ACTIONS – Extension of limitation period – continuing pain – no “new” diagnosis, simply nature of permanent injury confirmed and operation advised which gave pain relief – whether maintaining work, through avoiding manual labour, sufficient in circumstances to forestall facts becoming decisive – whether, in any event, prejudice giving rise to likelihood of unfair trial Limitation of Actions Act 1974 s 30(1)(a), s 30(1)(b), s 30(1)(c), s 30(1)(c)(ii), s 31, s 31(2)(a) Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327 Hertess v Adams [2011] QCA 73 Muir v Franklins Limited [2001] QCA 173 NF v Queensland [2005] QCA 110 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Pizer v Ansett Australia Limited [1998] QCA 298 State of Queensland v Stephenson (2006) 226 CLR 197 Sugden v Crawford [1989] 1 Qd R 683
COUNSEL:	S D Anderson for the Applicant C C Heyworth-Smith for the Respondent
SOLICITORS:	Shine Lawyers for the Applicant Dibbs Barker for the Respondent