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 295Healy 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 683COUNSEL:
G.F. Crow for the applicant
G.C. O'Driscoll for the respondentSOLICITORS:
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…
Keep reading for free
Create a free CaseChat account to read Bust v Charles Porter and Sons Pty Ltd 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2010] QSC 317
- Decision Date
CaseChat Overview and Summary
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.