SUPREME COURT OF QUEENSLAND
CITATION:
Bougoure v State of Queensland [2004] QSC 178
PARTIES:
PAUL GERARD BOUGOURE
(applicant/plaintiff)v
STATE OF QUEENSLAND
(respondent/defendant)FILE NO:
SC No 10372 of 1998
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court, Brisbane
DELIVERED ON:
16 June 2004
DELIVERED AT:
Brisbane
HEARING DATE:
6 April 2004
JUDGE:
Atkinson J
ORDER:
1. Application allowed
2. The period of limitation for bringing proceedings extended to 6 November 1997
3. Respondent’s Application for summary judgment dismissed
CATCHWORDS:
LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF A DECISIVE CHARACTER – where applicant was member of Queensland Police Service – where applicant suffered psychological injuries and drug dependency injuries – whether applicant knew of the nature and extent of his injuries – whether applicant had taken all reasonable steps to ascertain nature and extent of his injuries – where conflicting diagnosis and prognosis – whether worthwhile action to pursue
Limitation of Actions Act 1974 (Qld), s 11, s 30, s 31
Buckton v BHP Coal Pty Ltd [2001] QCA 35, cited
Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, cited
Dick v University of Queensland [2000] 2 Qd R 476, applied
Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697, cited
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, applied
King v Queensland Corrective Services Commission [2000] QSC 342, cited
McManamny v Hadley [1975] VR 705, cited
Mills v Comalco Aluminium Limited [1991] FC 145; Appeal No 64 of 1991, 6 November 1991, cited
Pizer v Ansett [1998] QCA 298, cited
Russell v State of Queensland [2004] QSC 97, applied Taggart v The Workers’ Compensation Board of Qld [1983] 2 Qd R 19, cited
Watters v Queensland Rail [2000] QCA 51, citedCOUNSEL:
D Fraser QC with G Mullins for the applicant
R J Douglas QC with D J Campbell for the respondentSOLICITORS:
Gilshenan and Luton for the applicant
Crown Law for the respondent
The applicant/plaintiff, Paul Gerard Bougoure, has applied for an extension of time in which to commence proceedings for personal injury. The application is opposed but the respondent/defendant did not contend that the applicant does not have a cause of action apart from the defence founded on the expiration of the limitation period. Nor did the respondent contend that it is prejudiced by any delay. Rather the respondent asserted that the applicant cannot pass the test found in s 31 of the Limitation of Actions Act 1974 (Qld) (the “Limitations Act”) that a material fact of a decisive character was not known to him or within his means of knowledge prior to 6 November 1997, which is one year before the commencement of these proceedings. If the application for extension of time were to be unsuccessful, the respondent sought summary judgment against the applicant.
Mr Bougoure was sworn…
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- Case
- [2004] QSC 178
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether the applicant's knowledge of the material facts, as well as the steps taken to ascertain these facts, met the threshold for postponement of the limitation period. The court examined the applicant's understanding of the injuries, the conflicting medical diagnoses and prognoses, and the steps taken by the applicant to seek medical advice. The central question was whether the applicant had sufficient knowledge of the nature and extent of their injuries to start proceedings within the limitation period, and if not, whether they had taken reasonable steps to ascertain these facts in a timely manner.
The court found that the applicant did not have the requisite knowledge of the material facts at the relevant time, and therefore, the limitation period was not triggered. The court further determined that the applicant had taken reasonable steps to ascertain the nature and extent of their injuries, given the conflicting medical opinions. The court concluded that the applicant's lack of knowledge and the reasonable steps taken constituted grounds for postponement of the limitation period. Accordingly, the court extended the limitation period for bringing proceedings to 6 November 1997, allowing the applicant to pursue their claim. The court also dismissed the respondent's application for summary judgment.
In summary, the court allowed the applicant's application to extend the limitation period for bringing proceedings and dismissed the respondent's application for summary judgment. The court found that the applicant's lack of knowledge of the material facts and the reasonable steps taken to ascertain these facts justified the postponement of the limitation period, thereby permitting the applicant to pursue their claim against the respondent.
Orders
Orders of the court
1. Application allowed
2. The period of limitation for bringing proceedings extended to 6 November 1997
3. Respondent’s Application for summary judgment dismissed
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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