Bougoure v State of Queensland - [2004] QCA 485

SUPREME COURT OF QUEENSLAND

CITATION:

Bougoure v State of Qld [2004] QCA 485

PARTIES:

PAUL GERARD BOUGOURE
(plaintiff/respondent)
v
STATE OF QUEENSLAND
(defendant/appellant)

FILE NO/S:

Appeal No 6094 of 2004
SC No 10372 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2004

JUDGES:

Davies and Williams JJA and Chesterman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    Amend the order made below by deleting       "6 November 1997" and inserting in lieu       "6 November 1998"
2.    Dismiss the appeal
3.    The appellant to pay the respondent's costs of the       appeal to be assessed

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 DECISIVE CHARACTER - where the application for extension of time within which to commence proceedings was granted by the learned primary judge - where the respondent was formerly a police officer who performed covert police work - where the respondent sustained psychological injury as a result of that work - where a cause of action existed except for the fact that the action was not commenced within time - whether all material facts relating to the right of action were within the means of knowledge of the respondent before the critical date

Limitation of Actions Act 1974 (Qld), s 30(1)(b)(ii), s 31(2)(a)

Do Carmo v Ford Excavations PtyLtd (1984) 154 CLR 234, discussed

Moriarty v Sunbeam Corporation Limited [1988] 2 QdR 325, discussed

Reeman v State of Queensland [2004] QCA 484; Appeal No 8239 of 2004, 17 December 2004, followed

Stephenson v State of Queensland [2004] QCA 483; Appeal No 7621 of 2004, 17 December 2004, followed

Sugden v Crawford [1989] 1 QdR 683, cited

COUNSEL:

R J Douglas SC, with D J Campbell, for the appellant
D B Fraser QC, with G R Mullins, for the respondent

SOLICITORS:

C W Lohe, Crown Solicitor, for the appellant
Gilshenan & Luton for the respondent

DAVIES JA:
1.       The proceedings and the relevant issues

The appellant State of Queensland appeals against an order made in the Supreme Court, pursuant to s 31 of the Limitation of Actions Act 1974 ("the Act"), that the period of limitation for an action commenced by the respondent against it on 6 November 1998 be extended so that it expired on 6 November 1997.[1] In consequence of making that order the Supreme Court also ordered that the appellant's application for summary judgment be dismissed. This appeal was heard together with the appeals in Stephenson v State of Queensland[2] and Reeman v State of Queensland[3] and judgment in this appeal is given on the same day as and following judgment in each of those appeals.
[1]Her Honour plainly meant 6 November 1998, the date on which the action…

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.

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Details

Case: [2004] QCA 485
Decision Date: 17 December 2004

CaseChat Overview and Summary

The case of Bougoure v State of Queensland involved a claim for damages by a former police officer who had sustained psychological injuries due to his covert police work. The dispute centred on whether the respondent was aware of the material facts necessary to establish his cause of action before the limitation period expired. The appeal was heard in the Court of Appeal in Queensland. The court was tasked with determining whether the respondent's knowledge of the material facts was sufficient to trigger the limitation period, as per the provisions of the Limitation of Actions Act 1974 (Qld). Additionally, the court needed to consider whether the respondent's psychological injuries were of a nature that would reasonably excuse the delay in bringing the action.

The court closely examined the respondent's knowledge of the material facts as of the critical date, focusing on whether these facts were of a decisive character that should have alerted him to the possibility of a cause of action. The court also considered relevant precedents, including Do Carmo v Ford Excavations Pty Ltd, Reeman v State of Queensland, and Stephenson v State of Queensland, which set out criteria for determining when a cause of action accrues. It was established that the material facts of decisive character must be known or ought to have been known by the plaintiff for the limitation period to start. The court concluded that, given the respondent's covert work and the nature of psychological injuries, he did not have the requisite knowledge of the material facts by the critical date, thus postponing the accrual of his cause of action.

In light of the above reasoning, the court granted the application for an extension of time, allowing the respondent to commence proceedings despite the expiration of the limitation period. The appeal was dismissed, and the respondent was awarded costs of the appeal. The orders included amending the date in the original judgment and dismissing the appellant's costs claim. This decision reinforces the importance of understanding when a cause of action accrues in cases involving personal injuries and the impact of psychological trauma on the limitation period.

Orders

Orders of the court

1. Amend the order made below by deleting "6 November 1997" and inserting in lieu "6 November 1998"

2. Dismiss the appeal

3. The appellant to pay the respondent's costs of the appeal to be assessed

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 Qld [2004] QCA 485
PARTIES:	PAUL GERARD BOUGOURE (plaintiff/respondent) v STATE OF QUEENSLAND (defendant/appellant)
FILE NO/S:	Appeal No 6094 of 2004 SC No 10372 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	Personal Injury
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	14 October 2004
JUDGES:	Davies and Williams JJA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Amend the order made below by deleting "6 November 1997" and inserting in lieu "6 November 1998" 2. Dismiss the appeal 3. The appellant to pay the respondent's costs of the appeal to be assessed
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 DECISIVE CHARACTER - where the application for extension of time within which to commence proceedings was granted by the learned primary judge - where the respondent was formerly a police officer who performed covert police work - where the respondent sustained psychological injury as a result of that work - where a cause of action existed except for the fact that the action was not commenced within time - whether all material facts relating to the right of action were within the means of knowledge of the respondent before the critical date Limitation of Actions Act 1974 (Qld), s 30(1)(b)(ii), s 31(2)(a) Do Carmo v Ford Excavations PtyLtd (1984) 154 CLR 234, discussed Moriarty v Sunbeam Corporation Limited [1988] 2 QdR 325, discussed Reeman v State of Queensland [2004] QCA 484; Appeal No 8239 of 2004, 17 December 2004, followed Stephenson v State of Queensland [2004] QCA 483; Appeal No 7621 of 2004, 17 December 2004, followed Sugden v Crawford [1989] 1 QdR 683, cited
COUNSEL:	R J Douglas SC, with D J Campbell, for the appellant D B Fraser QC, with G R Mullins, for the respondent
SOLICITORS:	C W Lohe, Crown Solicitor, for the appellant Gilshenan & Luton for the respondent