Bust v Charles Porter and Sons Pty Ltd - [2010] QSC 317

SUPREME COURT OF QUEENSLAND

CITATION:

Bust v Charles Porter and Sons Pty Ltd [2010] QSC 317

PARTIES:

NATALIE THERESE BUST
(applicant)
v
CHARLES PORTER AND SONS PTY LTD
ACN 009 659 232
(respondent)

FILE NO:

S 64 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Mackay Supreme Court

DELIVERED ON:

30 August 2010

DELIVERED AT:

Rockhampton

HEARING DATE:

5 August 2010

JUDGE:

McMeekin J

ORDERS:

1. The application for the extension of the limitation period is allowed and the limitation period extended to 8 October 2010.
2. Counsel will be heard as to costs.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – where applicant injured her lower back at work – where there is evidence to establish a right of action – whether the applicant knew or had within her means of knowledge the fact that her back condition was permanent

Limitation of Actions Act 1974 (Qld), s 11, s 30, s 31
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 295

Healy v Femdale Pty Ltd [1993] QCA 210
Jocumsen v Thiess P/L & Anor [2005] QCA 198
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110
Sugden v Crawford [1989] 1 Qd R 683

COUNSEL:

G.F. Crow for the applicant
G.C. O'Driscoll for the respondent

SOLICITORS:

Macrossan & Amiet for the applicant
WorkCover Queensland for the respondent

[1] eekin J: McMNatalie Therese Bust was employed as a “casual merchandiser” by the respondent. On 2 November 2005 she hurt her back at work when she struck her lower back or sacral area on the edge of an RHS section. She now wishes to pursue a claim for damages against the respondent alleging that her injury was a result of their breach of duties owed to her as their employee. She did not commence proceedings within the limitation period applicable.[1] She applies under s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”) to extend that limitation period to 8 October 2010.
[1]Three years: see s 11 of the Limitation of Actions Act 1974 (Qld).

[2] The respondent concedes that there is evidence to establish a right of action apart from the limitation period and that there is no relevant prejudice.

[3] In those circumstances, in order to succeed on this application to have the limitation period extended, Ms Bust must show that “a material fact of a decisive character relating to the right of action was not within [her] means of knowledge” until a date after, in this case, 2 November 2007: s 31(2)(a) of the Act.

[4] The court has power to extend the limitation period for 12 months from the time the relevant material fact was within the applicant’s means of knowledge.[2] The parties are agreed that time ceased to run on 22 January 2010 when a compliant Notice of Claim for Damages under s…

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 317
Decision Date: 30 August 2010

CaseChat Overview and Summary

In the case of Bust v Charles Porter and Sons Pty Ltd, the applicant, Bust, sought an extension of the limitation period in which to commence proceedings against the respondent, Charles Porter and Sons Pty Ltd, for personal injuries sustained in a workplace accident. The matter was heard in the Supreme Court of New South Wales. The primary dispute was whether the applicant had knowledge of material facts that would have indicated her back condition was permanent, which could have triggered the commencement of the limitation period.

The court was required to determine if Bust had actual knowledge, or was it within her means of knowledge, that her lower back condition was permanent. The applicant claimed that she was not aware of the permanency of her injury until medical evidence confirmed it in May 2009. The respondent argued that Bust should have known earlier due to her medical history and symptoms.

The court found that the applicant did not have knowledge of the material facts of decisive character until the medical evidence in May 2009. The court noted that the applicant's previous experiences with back pain did not necessarily indicate that her condition was permanent. The limitation period was therefore extended to 8 October 2010, allowing Bust to commence her proceedings within the extended timeframe. The court also indicated that it would hear submissions on costs at a later date.

Orders

Orders of the court

1. The application for the extension of the limitation period is allowed and the limitation period extended to 8 October 2010.

2. Counsel will be heard as to costs.

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:	Bust v Charles Porter and Sons Pty Ltd [2010] QSC 317
PARTIES:	NATALIE THERESE BUST (applicant) v CHARLES PORTER AND SONS PTY LTD ACN 009 659 232 (respondent)
FILE NO:	S 64 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Mackay Supreme Court
DELIVERED ON:	30 August 2010
DELIVERED AT:	Rockhampton
HEARING DATE:	5 August 2010
JUDGE:	McMeekin J
ORDERS:	1. The application for the extension of the limitation period is allowed and the limitation period extended to 8 October 2010. 2. Counsel will be heard as to costs.
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – where applicant injured her lower back at work – where there is evidence to establish a right of action – whether the applicant knew or had within her means of knowledge the fact that her back condition was permanent Limitation of Actions Act 1974 (Qld), s 11, s 30, s 31 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 295 Healy v Femdale Pty Ltd [1993] QCA 210 Jocumsen v Thiess P/L & Anor [2005] QCA 198 Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 NF v State of Queensland [2005] QCA 110 Sugden v Crawford [1989] 1 Qd R 683
COUNSEL:	G.F. Crow for the applicant G.C. O'Driscoll for the respondent
SOLICITORS:	Macrossan & Amiet for the applicant WorkCover Queensland for the respondent