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
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…
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- Case
- [2012] QDC 7
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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