Blind v Hertess - [2010] QDC 322

DISTRICT COURT OF QUEENSLAND

CITATION:

Blind v Hertess [2010] QDC 322

PARTIES:

ENIKO MARIA BLIND
plaintiff/applicant

V

ISOLDE HERTESS
defendant/respondent

FILE NO/S:

BD770/10

DIVISION:

Application

PROCEEDING:

Application for extension of time

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

26 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

17 August 2010

JUDGE:

Ryrie DCJ

ORDER:

1. The application is dismissed

2. The parties are given leave to make submissions in writing on costs within 28 days, failing agreement between the parties.

CATCHWORDS:

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL INJURIES – where the limitation period for an action for damages for personal injuries to the plaintiff/applicant allegedly caused by her doctor’s negligence – whether the material fact of a decisive character was within the plaintiff/applicant’s means of knowledge – whether the period of limitation for the action should be extended

Limitation of Action Act 1974 (Qld) ss 11; 30(1) & 31(2)

Brisbane South Regional Health v Taylor (1996) 186 CLR 541, applied
Campbell & Anor v Bleakley [2007] QSC 351, cited
Castlemaine Perkins v McPhee [1979] Qd R 469, cited
Ervin v Brisbane North Regional Health Authority [1994] QCA 424, cited
Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419, considered
NF v State of Queensland [2005] QCA 110, applied
Queensland v Stephenson (2006) 227 ALR 17, cited

COUNSEL:

G Mullins for the plaintiff/applicant
A Luchich for the defendant/respondent

SOLICITORS:

Trilby Misso Lawyers for the plaintiff/applicant
Blake Dawson for the defendant/respondent

Introduction

The plaintiff/applicant (hereinafter referred to as the applicant) is applying for an extension of the period of limitation up to and including 11 March 2010 on which date she filed a claim for damages for personal injury. This injury she says was caused by the negligence and/or breach of contract of the defendant/respondent (hereinafter referred to as the respondent), a medical practitioner specialising in plastic surgery who performed the bilateral breast augmentation (‘1st surgery’) on the 13^th July 2004 at the Cairns Day Surgery (‘the clinic’).

Because the applicant alleges that she was injured after undergoing the surgery on 13^th July 2004, she was required under s.11 of the Limitations of Actions Act 1974 (‘the Act’) to have brought her action within 3 years, on or before the 13th July 2007.

Pursuant to s.31(2) of the Act, the court may order the period of limitation for an action be extended if it appears to the court ‘that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation’. The section permits an extension of the limitation period for one year only after the relevant date. Accordingly, if the fact which the applicant…

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 Blind v Hertess

Details

AGLC: Blind v Hertess [2010] QDC 322
Case: [2010] QDC 322
Decision Date: 26 August 2010

CaseChat Overview and Summary

The case of Blind v Hertess involved a plaintiff seeking damages for personal injuries she claimed were caused by her doctor's negligence. The defendant, Hertess, argued that the plaintiff's action was time-barred under the relevant limitation period. The matter was brought before the court to determine whether the limitation period should be extended and if the plaintiff was aware, or ought to have been aware, of the material facts that would have triggered the limitation period.

The court was required to decide whether the plaintiff was aware, or ought to have been aware, of the material facts necessary to commence the limitation period for her personal injury claim. This involved examining the specific circumstances and knowledge of the plaintiff at the time the cause of action arose. The court had to determine if the plaintiff was able to discover the facts in the exercise of reasonable care and diligence, and if the facts were such that they should have led the plaintiff to commence proceedings.

The court found that the plaintiff was not aware, and ought not to have been aware, of the material facts that would have triggered the limitation period. However, the court held that the period of limitation for the action should not be extended. The reasoning was based on the fact that the plaintiff was aware of the general circumstances of her treatment and the resulting injuries, but not the specific negligent act by the doctor. The court determined that the plaintiff's knowledge of the general circumstances was sufficient to trigger the limitation period, and therefore, the application to extend the limitation period was dismissed.

The orders of the court were that the application to extend the limitation period was dismissed and the parties were given leave to make written submissions on the matter of costs within 28 days, failing agreement between the parties.

Orders

Orders of the court

1. The application is dismissed

2. The parties are given leave to make submissions in writing on costs within 28 days, failing agreement between the parties.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Blind v Hertess [2010] QDC 322
PARTIES:	ENIKO MARIA BLIND plaintiff/applicant V ISOLDE HERTESS defendant/respondent
FILE NO/S:	BD770/10
DIVISION:	Application
PROCEEDING:	Application for extension of time
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	26 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	17 August 2010
JUDGE:	Ryrie DCJ
ORDER:	1. The application is dismissed 2. The parties are given leave to make submissions in writing on costs within 28 days, failing agreement between the parties.
CATCHWORDS:	LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL INJURIES – where the limitation period for an action for damages for personal injuries to the plaintiff/applicant allegedly caused by her doctor’s negligence – whether the material fact of a decisive character was within the plaintiff/applicant’s means of knowledge – whether the period of limitation for the action should be extended Limitation of Action Act 1974 (Qld) ss 11; 30(1) & 31(2) Brisbane South Regional Health v Taylor (1996) 186 CLR 541, applied Campbell & Anor v Bleakley [2007] QSC 351, cited Castlemaine Perkins v McPhee [1979] Qd R 469, cited Ervin v Brisbane North Regional Health Authority [1994] QCA 424, cited Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419, considered NF v State of Queensland [2005] QCA 110, applied Queensland v Stephenson (2006) 227 ALR 17, cited
COUNSEL:	G Mullins for the plaintiff/applicant A Luchich for the defendant/respondent
SOLICITORS:	Trilby Misso Lawyers for the plaintiff/applicant Blake Dawson for the defendant/respondent