Buchanan-Davies v Broadbent - [2010] QSC 426

SUPREME COURT OF QUEENSLAND

CITATION:

Buchanan-Davies v Broadbent & Anor [2010] QSC 426

PARTIES:

BUCHANAN-DAVIES, Deborah Kathryn (applicant/plaintiff)
v
BROADBENT, Michael Russell Mark
(first respondent/first defendant)
AND
ALLAMANDA PRIVATE HOSPITAL PTY LTD
ACN 098 641 564
(second respondent/second defendant)

FILE NO/S:

BS 9312 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 November 2010

DELIVERED AT:

Supreme Court at Brisbane

HEARING DATE:

6 - 9 April 2010

JUDGE:

Atkinson J

ORDER:

That the time limit for the commencement of proceedings claiming damages for personal injuries by the plaintiff against the first and second defendants be extended to 19 September 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF PERIOD – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – GENERALLY – where applicant claims that she suffered injuries following surgery performed on her by the first respondent at the second respondent hospital – where applicant commenced proceedings beyond the limitation period – where applicant applies to extend the limitation period for the commencement of proceedings – where application is opposed by the first respondent on the basis that the applicant’s material fact of a decisive character relating to her right of action was within her knowledge or means of knowledge more than one year prior to her commencement of proceedings – where application is opposed by the second respondent on the basis of prejudice – whether the limitation period should be extended

Limitations of Actions Act 1974 (Qld), s 11, s 30, s 31

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541, applied
Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360, cited

Carlowe v Frigmobile P/L [1999] QCA 527, cited

Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors [2001] QCA 335, cited
Dick v University of Queensland [1999] QCA 474; [2000] 2 Qd R 476, applied
HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, cited
NF v State of Queensland [2005] QCA 110, applied
Queensland v Stephenson [2006] HCA 20; 226 CLR 197, applied

Raschke v Suncorp Metway Insurance Limited [2005] QCA 161; [2005] 2 Qd R 549, cited

COUNSEL:

G R Mullins for the applicant
G W Diehm SC, with A Luchich, for the first respondent
J H Dalton SC, with J E FitzGerald, for the second respondent

SOLICITORS:

Maurice Blackburn Lawyers for the applicant

Flower & Hart Lawyers for the first respondent
Minter Ellison for the second respondent

This is an application made pursuant to s 31(2) of the Limitations of Actions Act 1974 (Qld) (“the Act”) to extend the time within which to institute proceedings for personal injuries to 19 September 2008.

On 19 September 2008 Deborah Buchanan-Davies filed a claim for…

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: [2010] QSC 426
Decision Date: 18 November 2010

CaseChat Overview and Summary

Buchanan-Davies applied to extend the limitation period for commencing proceedings for personal injuries she claimed to have suffered following surgery performed by Broadbent at the Prince Charles Hospital. The application was opposed by both Broadbent and the hospital. The legal issue before the court was whether the limitation period should be extended beyond the statutory period, given the applicant's knowledge of the material facts of a decisive character. The court had to determine if the applicant's knowledge of the facts was such that it would be just to extend the limitation period.

The court found that the applicant's knowledge of the material facts was not of a decisive character until the day before the limitation period expired. The applicant had not been negligent in failing to discover the facts earlier, and there was no evidence of an oppressive or unconscionable delay on the part of the applicant. The applicant had acted reasonably and promptly once she became aware of the material facts. The court also found that the hospital would not be prejudiced by the extension of the limitation period. The court considered that the extension of the limitation period was appropriate in the circumstances.

The court ordered that the time limit for the commencement of proceedings claiming damages for personal injuries by the plaintiff against the first and second defendants be extended to 19 September 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974. The court found that it was just to extend the limitation period given the circumstances of the case, and that the hospital would not be prejudiced by such an extension.

Orders

Orders of the court

That the time limit for the commencement of proceedings claiming damages for personal injuries by the plaintiff against the first and second defendants be extended to 19 September 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974.

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:	Buchanan-Davies v Broadbent & Anor [2010] QSC 426
PARTIES:	BUCHANAN-DAVIES, Deborah Kathryn (applicant/plaintiff) v BROADBENT, Michael Russell Mark (first respondent/first defendant) AND ALLAMANDA PRIVATE HOSPITAL PTY LTD ACN 098 641 564 (second respondent/second defendant)
FILE NO/S:	BS 9312 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 November 2010
DELIVERED AT:	Supreme Court at Brisbane
HEARING DATE:	6 - 9 April 2010
JUDGE:	Atkinson J
ORDER:	That the time limit for the commencement of proceedings claiming damages for personal injuries by the plaintiff against the first and second defendants be extended to 19 September 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974.
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF PERIOD – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – GENERALLY – where applicant claims that she suffered injuries following surgery performed on her by the first respondent at the second respondent hospital – where applicant commenced proceedings beyond the limitation period – where applicant applies to extend the limitation period for the commencement of proceedings – where application is opposed by the first respondent on the basis that the applicant’s material fact of a decisive character relating to her right of action was within her knowledge or means of knowledge more than one year prior to her commencement of proceedings – where application is opposed by the second respondent on the basis of prejudice – whether the limitation period should be extended Limitations of Actions Act 1974 (Qld), s 11, s 30, s 31 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541, applied Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360, cited Carlowe v Frigmobile P/L [1999] QCA 527, cited Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors [2001] QCA 335, cited Dick v University of Queensland [1999] QCA 474; [2000] 2 Qd R 476, applied HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, cited NF v State of Queensland [2005] QCA 110, applied Queensland v Stephenson [2006] HCA 20; 226 CLR 197, applied Raschke v Suncorp Metway Insurance Limited [2005] QCA 161; [2005] 2 Qd R 549, cited
COUNSEL:	G R Mullins for the applicant G W Diehm SC, with A Luchich, for the first respondent J H Dalton SC, with J E FitzGerald, for the second respondent
SOLICITORS:	Maurice Blackburn Lawyers for the applicant Flower & Hart Lawyers for the first respondent Minter Ellison for the second respondent