Berther v Dragut

[2001] QDC 3

DISTRICT COURT OF QUEENSLAND

CITATION:

Berther v. Dragut & Anor [2001] QDC 003

PARTIES:

PETER DAVID BERTHER (Plaintiff)
v.
LIVIU DRAGUT (First Defendant)
And
SUNCORP GENERAL INSURANCE LIMITED (Second Defendant)

FILE NO/S:

Plaint 3713 of 1998

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

2 February 2001

DELIVERED AT:

Brisbane

HEARING DATE:

16 January 2001

JUDGE:

McGill DCJ

ORDER:

The following question be decided separately in advance of the trial, and instanter:
Is the defence in para. 6 of the second defendant’s Entry of Appearance and Defence filed on 20 October 1998 a good defence to the plaintiff's claim?
That question be answered as follows:  Yes.
Plaintiff’s claim dismissed.  Order the plaintiff to pay the costs of the action, including this application, to be assessed.

CATCHWORDS:

LIMITATION OF ACTIONS – personal injuries – motor vehicle accident – when limitation period begins to run – Motor Accident Insurance Act 1994 s.37, 39

Craig v. BHP Coal Pty Ltd (Mackay S160/99, Dutney J, 1910, 2000, unreported) – distinguished
Austral Pacific Group Ltd v. Airservices Australia (2000) 74 ALJR 1184 – cited
Young v. Keong [1999] 2 Qd.R. 335 - followed
Horinack v. Suncorp Metway Insurance Ltd [2000] QCA 441 – followed
Tanks v. WorkCover Queensland [2000] QSC 326 – distinguished

COUNSEL:

SOLICITORS:

R N Aldridge for plaintiff
A M Daubney SC for second defendant

McCarthie Durie Ryan Neil for the plaintiff
Quinlan Miller & Treston for second defendant

1. On 27 Aug 1998 a plaint claiming damages for personal injuries caused by the negligence of the first defendant together with interest was filed in the District Court.  In accordance with the requirements of the Motor Accident Insurance Act 1994, the second defendant, the licensed insurer of the first defendant’s vehicle, was joined as a defendant.   The plaint alleges that the plaintiff suffered injury in a collision on 20 August 1995.  There is nothing to indicate that the plaintiff’s injuries were not caused immediately in the collision. 

1. On 20 October 1998, an Entry of Appearance and Defence on behalf of the second defendant was filed. That defence admitted that the collision occurred on 20 August 1995, but did not admit that the plaintiff suffered injury as a result, or that the first defendant was negligent. It is admitted that the second defendant was the licensed insurer of the first defendant’s vehicle at the relevant time. That defence also alleged that the plaintiff’s claim is barred by s.11 of the Limitation of Actions Act 1974.  

1. On 8 January 2001 the plaintiff’s solicitors applied for an order that the paragraph of the defence by which the Limitation of Actions Act was pleaded be struck out pursuant to r.171 as disclosing no reasonable defence, and on the other grounds referred to in that rule, and seeking further or in the alternative a declaration that the period of limitation did not expire prior to 20 November 1998 or in the alternative prior to 28 August 1998. When that application came before me it was…