Bougoure v State of Queensland - [2004] QSC 178

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, cited

COUNSEL:

D Fraser QC with G Mullins for the applicant
R J Douglas QC with D J Campbell for the respondent

SOLICITORS:

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…

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.

Keep reading for free

Create a free CaseChat account to read Bougoure v State of Queensland and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] QSC 178
Decision Date: 16 June 2004

CaseChat Overview and Summary

The case of Bougoure v State of Queensland involved the applicant, who was a member of the Queensland Police Service, and the respondent, the State of Queensland. The applicant sought to bring a claim for personal injuries suffered while on duty, including psychological injuries and drug dependency. The central issue was whether the applicant had knowledge of the material facts necessary to commence proceedings and whether the applicant had taken reasonable steps to ascertain the extent of their injuries. The dispute centred around the interpretation of the limitation period under relevant legislation, specifically whether the applicant's knowledge of the material facts and the reasonable steps taken to investigate those facts could postpone the bar of limitation.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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, cited
COUNSEL:	D Fraser QC with G Mullins for the applicant R J Douglas QC with D J Campbell for the respondent
SOLICITORS:	Gilshenan and Luton for the applicant Crown Law for the respondent