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Brown v. McArthur

Brown v. McArthur

Case [2007] QDC 109 15 June 2007

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DISTRICT COURT OF QUEENSLAND

CITATION:

Brown v McArthur [2007] QDC 109

PARTIES:

ROBYN BROWN

Plaintiff

AND

JOHN MCARTHUR

Defendant

FILE NO/S:

BD1692/01

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

15 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

4 May 2007

JUDGE:

McGill DCJ

ORDER:

Judgment that the plaintiff’s claim against the defendant be dismissed; Order the plaintiff pay the defendant’s costs of the action including the costs of this application.

CATCHWORDS:

LIMITATION OF ACTIONS – Personal Injuries – psychiatric injury – when time begins to run – clear psychiatric illness suffered more than three years before action commenced.

Limitation of Actions Act 1974 s 11.

Brisbane Unit Development Corporation Pty Ltd v Robertson [1983] 2 Qd R 105 – applied.
Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 – followed.
Gillespie v Elliott [1987] 2 Qd R 509 – applied.
Pullen v Gutteridge Haskins and Davey Pty Ltd [1993] 1 VR 27 – followed.
Wilson v Horne (1999) 8 Tas R 363 – followed.
Deputy Commissioner of Taxation v Salcedo [2005] QCA 237 – applied.

COUNSEL:

M. Grant‑Taylor SC and C. Heyworth‑Smith for the plaintiff

A. P. J. Collins for the defendant

SOLICITORS:

Maurice Blackburn Cashman for the plaintiff

Woodgate Hughes for the defendant

This is an application by the defendant for summary judgment under r 293, or in the alternative, for certain paragraphs of the further amended statement of claim filed 18 May 2005 to be struck out pursuant to r 171. The application was originally filed in July last year, and has been adjourned on several occasions before it was finally heard by me in May this year. The defendant is applying for summary judgment on the basis that the plaintiff’s action is bound to fail because her cause of action is statute barred. The claim was filed on 6 April 2001.

What limitation period?

The defendant submitted that the plaintiff’s claim was one for damages for personal injury,[1] so that the relevant limitation period was three years.[2] On behalf of the plaintiff, however, it was submitted that the claim was in part one for damages for economic loss, and that insofar as this is so, the relevant limitation period is six years. The claim when filed said that the plaintiff claimed “damages for personal injuries and other loss and damage as a result of the negligence and/or breach of contract and/or breach of statutory duty of the defendant …” That on its face extends beyond a claim for damages for personal injury, but the first difficulty is that the current statement of claim does not it seems to me plead a cause of action separate from one for damages for personal injuries.
[1]See Limitation of Actions Act 1974 s 5(1).
[2]Ibid s 11.

It does allege that the defendant was negligent in the provision of counselling to the plaintiff, that as a result of this (and other things) done by the defendant the plaintiff suffered psychological injury (para 12), and that…

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 Brown v. McArthur

Details

AGLC: Brown v McArthur [2007] QDC 109
Case: [2007] QDC 109
Decision Date: 15 June 2007

CaseChat Overview and Summary

The case of Brown v. McArthur involved a dispute concerning personal injuries, specifically psychiatric injury, and the commencement of legal action. The plaintiff alleged that they suffered a psychiatric illness as a result of an incident involving the defendant. The action was commenced more than three years after the incident, prompting the defendant to argue that the claim was statute-barred due to the limitation period for such claims. The matter was brought before the court to determine the applicability of the limitation period in this context.

The central legal issue before the court was the point at which the limitation period for the plaintiff’s claim began to run. The plaintiff argued that the limitation period should not commence until they were aware of the extent of their psychiatric injury, while the defendant contended that the period began to run from the date of the incident itself. The court was required to determine when the plaintiff’s injury became sufficiently clear to trigger the limitation period.

In delivering judgment, the court found that the plaintiff’s psychiatric injury became apparent and recognisable more than three years before the action was commenced. The court held that the limitation period began to run from the date of the incident, not from the time the plaintiff became aware of the full extent of their injury. Consequently, the court dismissed the plaintiff’s claim as being statute-barred. The court also ordered the plaintiff to pay the defendant’s costs of the action, including the costs of the application.

Orders

Orders of the court

Judgment that the plaintiff’s claim against the defendant be dismissed; Order the plaintiff pay the defendant’s costs of the action including the costs of this application.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Brown v McArthur [2007] QDC 109

Most Recent Citation

Uzsoki v McArthur [2011] QDC 60

Cases citing this decision · 2 of 2 shown

Eastwood and Eastwood v Scenic Rim Regional Council
[2021] QDC 62 Para 32

…It is clear that summary judgment can be granted on a limitations defence in a sufficiently clear case: Brown v McArthur [2007] QDC 109 at [20] – [24] per McGill DCJ.…
Uzsoki v McArthur
[2011] QDC 60 Para 1

…ntiff Turnbull and each of the Pickerings were dismissed for want of prosecution by order of McGill DCJ on 19 March 2010. [11] Brown v McArthur [2007] QDC 109.…

View all 2 citing cases →

Cases cited in this decision · 14 of 14 shown

Jessup v Lawyers Private Mortgages Ltd
[2006] QSC 3 Para 1

…t approach this application on the basis that the defendant must satisfy the General Steel test.[17] [16]See Jessup v Lawyers Private Mortgages Ltd [2006] QSC 3 at [14]. [17] General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125.…
R v Pearl
[2005] QCA 237 Para 1

…the claim or a part of the claim. I interpret that provision in the way explained by the Court of Appeal in Deputy Commissioner of Taxation v Salcedo [2005] QCA 237. The plaintiff relied on the analysis of the approach to an application for summary judgment of Chesterman J in Gray v Morris [2004] 2 Qd R 118. I ha…
Tame v New South Wales
[2002] HCA 35 Para 1

…women’s blood). [6]The breach here was alleged to have occurred during 1996, and no action was commenced until 2001. [7] Tame v New South Wales (2002) 211 CLR 317 at 382 per Gummow and Kirby JJ.…
Cigna Insurance Asia Pacific Ltd v Packer
[2000] WASCA 415 Para 1

…lotin (1957) 97 CLR 465 at 474; Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245 per Wilson J; Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 at 169, 179. [4]Handford “Limitation of Actions” (Law Book Co 2004) p 49. [5]See for example Commissioner for Railways v Stewart (1936) 56 CLR 500 (o…
Crombie v Livingstone Shire Council
[2000] QCA 229 Para 1

…8] [18]See Blatch v Archer (1774) 1 Cowp 64 at 65, 98 ER 969 at 970 per Lord Mansfield, quoted by de Jersey CJ in Crombie v Livingstone Shire Council [2000] QCA 229 at [2].…
Wilson v Horne
[1999] HCATrans 412 Para 1

…ed, the cause of action was not complete, and the limitation period did not run.[12] [10]See for example Martindale v Burrows [1997] 1 Qd R 243. [11] Wilson v Horne (1999) 8 Tas R 363 at [14]-[15] per Cox CJ; [31] per Wright J; [50]-[51] per Evans J (special leave refused: p 389); see also the opinion expressed in Mulla…
Do Carmo v Ford Excavations Pty Ltd
[1984] HCA 17 Para 1

…plaintiff was suffering from a recognisable psychiatric illness. [3] Williams v Milotin (1957) 97 CLR 465 at 474; Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245 per Wilson J; Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 at 169, 179. [4]Handford “Limitation of Actions” (Law Book Co 2004)…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 1

…Steel test.[17] [16]See Jessup v Lawyers Private Mortgages Ltd [2006] QSC 3 at [14]. [17] General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125.…
Williams v Milotin
[1957] HCA 83 Para 1

…te, and the limitation period did not begin to run, until the plaintiff was suffering from a recognisable psychiatric illness. [3] Williams v Milotin (1957) 97 CLR 465 at 474; Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245 per Wilson J; Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 at 16…
Blatch v Archer
98 ER 969 Para 1

…any evidence to suggest that if the matter went to trial there would be evidence to the contrary.[18] [18]See Blatch v Archer (1774) 1 Cowp 64 at 65, 98 ER 969 at 970 per Lord Mansfield, quoted by de Jersey CJ in Crombie v Livingstone Shire Council [2000] QCA 229 at [2].…
[1983] 2 AC 1
[1983] 2 AC 1 Para 1

…ncreased is irrelevant if the limitation period had already commenced to run.[14] [14] Pirelli General Cable Works Ltd v Oscar Faber and Partners [1983] 2 AC 1.…
(1774) 1 Cowp 64
(1774) 1 Cowp 64 Para 1

…lf of the plaintiff nor any evidence to suggest that if the matter went to trial there would be evidence to the contrary.[18] [18]See Blatch v Archer (1774) 1 Cowp 64 at 65, 98 ER 969 at 970 per Lord Mansfield, quoted by de Jersey CJ in Crombie v Livingstone Shire Council [2000] QCA 229 at [2].…
[1963] AC 785
[1963] AC 785 Para 1

…ullany and Handford “Tort Liability for Psychiatric Damage” (2nd ed, 2006) p 388. [12] Central Electricity Generating Board v Halifax Corporation [1963] AC 785 at 806 per Lord Guest.…
General Steel Industries Inc v Commissioner for Railways
1 QB 349 Para 1

…on the basis that the defendant must satisfy the General Steel test.[17] [16]See Jessup v Lawyers Private Mortgages Ltd [2006] QSC 3 at [14]. [17] General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125.…

Legislation cited in this decision · 1

Limitation of Actions Act 1974 (Qld)
11, 5(1) 2 mentions (from Para 1)

CITATION:	Brown v McArthur [2007] QDC 109
PARTIES:	ROBYN BROWN Plaintiff AND JOHN MCARTHUR Defendant
FILE NO/S:	BD1692/01
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	15 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	4 May 2007
JUDGE:	McGill DCJ
ORDER:	Judgment that the plaintiff’s claim against the defendant be dismissed; Order the plaintiff pay the defendant’s costs of the action including the costs of this application.
CATCHWORDS:	LIMITATION OF ACTIONS – Personal Injuries – psychiatric injury – when time begins to run – clear psychiatric illness suffered more than three years before action commenced. Limitation of Actions Act 1974 s 11. Brisbane Unit Development Corporation Pty Ltd v Robertson [1983] 2 Qd R 105 – applied. Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159 – followed. Gillespie v Elliott [1987] 2 Qd R 509 – applied. Pullen v Gutteridge Haskins and Davey Pty Ltd [1993] 1 VR 27 – followed. Wilson v Horne (1999) 8 Tas R 363 – followed. Deputy Commissioner of Taxation v Salcedo [2005] QCA 237 – applied.
COUNSEL:	M. Grant‑Taylor SC and C. Heyworth‑Smith for the plaintiff A. P. J. Collins for the defendant
SOLICITORS:	Maurice Blackburn Cashman for the plaintiff Woodgate Hughes for the defendant