Byfield v Hertess - [2011] QDC 256

DISTRICT COURT OF QUEENSLAND

CITATION:

Byfield v Hertess [2011] QDC 256

PARTIES:

CAROL ANNE BYFIELD

(Applicant)

v

ISOLDE HERTESS
(Respondent)

FILE NO/S:

BD773/10

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

25 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

21 September 2010 and Supplementary Written Submissions.

JUDGE:

Tutt DCJ

ORDERS:

1. The application is granted that the time for commencement of the proceedings claiming damages for personal injuries by the applicant against the respondent be extended to 11 March 2010 pursuant to s 31(2) of the Limitations of Actions Act 1974.

2. The parties have leave to make written submissions to the court within 28 days on the question of costs failing agreement between them.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION (OR POSTPONEMENT) OF LIMITATION PERIOD(S) – (EXTENSION OF PERIOD) – EXTENSION OF TIME IN PERSONAL INJURY MATTER(S) – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – GENERALLY – where applicant claims that she suffered injuries following surgery performed on her by respondent – where applicant commenced proceeding beyond limitation period – where applicant applies to extend limitation period for the commencement of proceedings – where application is opposed by respondent on the basis that the applicant has no cause of action against the respondent and the respondent would be prejudiced by the delay in allowing the matter to proceed – whether the limitation period should be extended.

Limitation of Actions Act 1974 (Qld) ss 11, 30, 31

Civil Liability Act 2003 (Qld) ss 12, 21

Brisbane South Regional Health Authority v Taylor [1996] HCA 25
Castlemaine Perkins v. McPhee [1979] Qd R 469
Campbell & Anor. v. Bleakley [2007] QSC 351;
Dick v University of Queensland [1979] Qd R 469
Do Carmo v. Ford Excavations Pty Limited (No. 5) [1983] 154 CLR 234
Elbourne v Gibbs [2006] NSWCA 127
Ervin v. Brisbane North Regional Health Authority (Appeal No. 267 of 1993) Court of Appeal, Queensland
Hertess v Adams [2011] QCA 73
HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168
NF v. State of Queensland [2005] QCA 110
Opacic v Patane (1997) 1 Qd R 84
Queensland v Stephenson (2006) HCA 20; 226 CLR 197
Raschke v Suncorp Metway Insurance Limited [2005] 2 Qd R 549
Royal North Shore Hospital v. Henderson (1996) 7 NSWLR 283
Wood v Glaxo Australia Pty Ltd (1994) 2 QDR 431

COUNSEL:

Mullins G R for the applicant

Dalton SC, J H for the respondent

SOLICITORS:

Trilby Misso Lawyers for the applicant

Minter Ellison for the respondent

Introduction:

The plaintiff, Carol Anne Byfield (“the applicant”) applies to the court for the primary order “that the time for commencement of proceedings claiming damages for personal injuries by the plaintiff be extended to 11 March 2010 pursuant to s 31(2) of the Limitations of Actions Act 1974”.[1]

[1]Application filed 10 June 2010.

The applicant filed her claim on 11 March 2010 naming as first defendant Isolde Hertess (“the respondent”) and second defendant Ramsay Health Care Australia…

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 Byfield v Hertess

Details

AGLC: Byfield v Hertess [2011] QDC 256
Case: [2011] QDC 256
Decision Date: 25 August 2011

CaseChat Overview and Summary

The case of Byfield v Hertess involved a claim by the applicant, Byfield, against the respondent, Hertess, for damages resulting from personal injuries sustained during a surgical procedure performed by Hertess. The court was asked to determine whether the limitation period for the initiation of legal proceedings should be extended beyond the statutory deadline. Byfield argued that she did not discover the material facts of her injury until a later date, warranting an extension under the relevant legislation. Hertess opposed the application, asserting that Byfield had no valid cause of action and that permitting the extension would prejudice him.

The court had to decide whether the applicant's lack of knowledge of the material facts of her injury, which she discovered later, justified an extension of the limitation period. This decision hinged on whether Byfield's ignorance of these facts was such that it could be considered of decisive character. The court considered whether the applicant's delayed awareness of her injury was sufficient to warrant an extension of the limitation period under the statutory provisions.

The court granted the application for an extension, finding that Byfield's delayed awareness of her injury due to the nature of her condition was of a decisive character. The court held that the statutory limitation period could be extended to accommodate Byfield's late discovery of the material facts concerning her injury. This decision allowed Byfield's claim to proceed, despite the statutory limitation period having expired.

The court's final orders included granting the application for an extension of the limitation period, allowing the proceedings to commence by 11 March 2010. Additionally, the court permitted the parties to submit written arguments on the issue of costs within 28 days, should they be unable to agree on the matter themselves.

Orders

Orders of the court

1. The application is granted that the time for commencement of the proceedings claiming damages for personal injuries by the applicant against the respondent be extended to 11 March 2010 pursuant to s 31(2) of the Limitations of Actions Act 1974.

2. The parties have leave to make written submissions to the court within 28 days on the question of costs failing agreement between them.

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:	Byfield v Hertess [2011] QDC 256
PARTIES:	CAROL ANNE BYFIELD (Applicant) v ISOLDE HERTESS (Respondent)
FILE NO/S:	BD773/10
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	25 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	21 September 2010 and Supplementary Written Submissions.
JUDGE:	Tutt DCJ
ORDERS:	1. The application is granted that the time for commencement of the proceedings claiming damages for personal injuries by the applicant against the respondent be extended to 11 March 2010 pursuant to s 31(2) of the Limitations of Actions Act 1974. 2. The parties have leave to make written submissions to the court within 28 days on the question of costs failing agreement between them.
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION (OR POSTPONEMENT) OF LIMITATION PERIOD(S) – (EXTENSION OF PERIOD) – EXTENSION OF TIME IN PERSONAL INJURY MATTER(S) – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – GENERALLY – where applicant claims that she suffered injuries following surgery performed on her by respondent – where applicant commenced proceeding beyond limitation period – where applicant applies to extend limitation period for the commencement of proceedings – where application is opposed by respondent on the basis that the applicant has no cause of action against the respondent and the respondent would be prejudiced by the delay in allowing the matter to proceed – whether the limitation period should be extended. Limitation of Actions Act 1974 (Qld) ss 11, 30, 31 Civil Liability Act 2003 (Qld) ss 12, 21 Brisbane South Regional Health Authority v Taylor [1996] HCA 25 Castlemaine Perkins v. McPhee [1979] Qd R 469 Campbell & Anor. v. Bleakley [2007] QSC 351; Dick v University of Queensland [1979] Qd R 469 Do Carmo v. Ford Excavations Pty Limited (No. 5) [1983] 154 CLR 234 Elbourne v Gibbs [2006] NSWCA 127 Ervin v. Brisbane North Regional Health Authority (Appeal No. 267 of 1993) Court of Appeal, Queensland Hertess v Adams [2011] QCA 73 HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 NF v. State of Queensland [2005] QCA 110 Opacic v Patane (1997) 1 Qd R 84 Queensland v Stephenson (2006) HCA 20; 226 CLR 197 Raschke v Suncorp Metway Insurance Limited [2005] 2 Qd R 549 Royal North Shore Hospital v. Henderson (1996) 7 NSWLR 283 Wood v Glaxo Australia Pty Ltd (1994) 2 QDR 431
COUNSEL:	Mullins G R for the applicant Dalton SC, J H for the respondent
SOLICITORS:	Trilby Misso Lawyers for the applicant Minter Ellison for the respondent