Barnes v Smith

[2011] QSC 259

SUPREME COURT OF QUEENSLAND

CITATION:

Barnes v Smith & Ors  [2011] QSC 259

PARTIES:

TRACEY LEE BARNES

(applicant)

v

LEONARD JOHN SMITH and AENONE LYNETTE SMITH TRADING AS AGNES WATER BUILDING CENTRE & HARDWARE

(first respondent)

and

WORKCOVER QUEENSLAND

 (second respondent)

FILE NO:

S 360 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Rockhampton

DELIVERED ON:

24 August 2011

DELIVERED AT:

Bundaberg

HEARING DATE:

19 August 2011

JUDGE:

McMeekin J

ORDERS:

1.    The application is dismissed

2.    The applicant to pay the respondents’ costs on the standard basis

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – where the applicant wishes to claim for damages against the respondent – where the limitation period for the claim has expired – whether time should be extended

Limitation of Actions Act 1974 (Qld), s 30, s 31
Workers Compensation and Rehabilitation Act 2003 (Qld), s298
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Fuller v Bunnings Group Ltd [2007] QCA 216
Healy v Femdale [1993] QCA 210
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110
Sugden v Crawford [1989] 1 Qd R 683
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431

COUNSEL:

GF Crow SC for the applicant

RAI Myers for the first respondent

SOLICITORS:

Chris Trevor & Associates for the applicant

Hede Byrne & Hall for the first & second respondents

1. McMeekin J: Tracey Lee Barnes applies under s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”) to extend the limitation period applicable to the subject proceeding.

1. Ms Barnes wishes to pursue a claim for damages against the respondents.  The limitation period within which she was permitted to commence such a proceeding expired on 23 December 2008 without action being commenced.

1. Ms Barnes also seeks leave to commence proceedings pursuant to s 298 of the Workers Compensation and Rehabilitation Act 2003 despite non compliance with s 275 of that Act. The parties argued the application on the basis that leave would automatically follow if Ms Barnes was successful in her application for extension of the limitation period.

The “Incident”

1. Ms Barnes was employed by the first respondent at the material time at their hardware store. She alleges that on 23 December 2005, and whilst engaged in the course of that employment, she was lifting drums of paint weighing, she says, at least 23 kgs each. She lifted 20 such drums of paint from the floor onto a stool, added tint to the drum, stirred it, then placed the drum “back with the other group of drums behind [her]”.

1. Ms Barnes says that she had received no training in heavy lifting and “did not know that twisting [her] back while lifting a heavy item was unsafe”. Her affidavit does not expressly state that the work either required that she twist her back while lifting…