Carlowe v Frigmobile P/L

SUPREME COURT OF QUEENSLAND

CITATION:

Carlowe v Frigmobile P/L [1999] QCA 527

PARTIES:

CEDRIC CARLOWE
(plaintiff/respondent)
v
FRIGMOBILE PTY LTD ACN 000 196 618
(defendant/appellant)

FILE NO:

Appeal No 1512 of 1999
SC No 8806 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 December 1999

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 1999

JUDGES:

Pincus JA, Thomas JA and Atkinson J
Joint reasons for judgment of Thomas JA and Atkinson J; separate reasons of Pincus JA dissenting.

ORDER:

Appeal dismissed

CATCHWORDS:

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where respondent commenced an action for personal injuries suffered during employment with appellant – where respondent later conclusively diagnosed with psychiatric as well as physical injuries – whether extension of time should be granted to allow respondent to commence an action for psychiatric injuries.

Anti-Discrimination Act 1991 (Qld)
Limitation of Actions Act 1974 (Qld), s 30, s 31

Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541, referred to
Byers v Capricorn Coal Management Pty Ltd [1990] 2 QdR 306, followed
Dick v University of Queensland [1999] QCA 474, CA No 3204 of 1999, 12 November 1999, followed
Hicks v State of Queensland [1998] 1 QdR 644, referred to
Moriarty v Sunbeam Corporation Ltd [1988] 2 QdR 325, followed
Pizer v Ansett Australia Ltd [1998] QCA 298, CA No 6807 of 1998, 29 September 1998, followed
Sugden v Crawford [1989] 1 QdR 683, referred to

Taggart v The Workers’ Compensation Board of Queensland [1983] 2 QdR 19, referred to

COUNSEL:

Mr R J Douglas SC, with him Mr B L P Hoare for the appellant
Mr A G Munt for the respondent

SOLICITORS:

Bradley & Co Solicitors for the appellant
Trilby Misso & Co Solicitors for the respondent

1. PINCUS JA:  The circumstances giving rise to this appeal are set out in the joint reasons of Thomas JA and Atkinson J which I have had the advantage of reading.  As it appears to me, the critical issue is whether the respondent proved that he did not, before 22 September 1997, know or have means of knowing that he had a substantial psychiatric disability caused by his work.  The respondent’s position is that although he knew, years before 22 September 1997, that he had serious psychological difficulties related to his work it was not until he saw Dr Andrew Byth, after 22 September 1997, that he appreciated that his condition was a psychiatric one, of a substantial kind;  I refer to paras 27 and 28 of the respondent’s affidavit and to his statements at pp 33 and 34.  The strength of the respondent’s case lies in the difference between two psychiatric reports:  that of Dr Mayze of 11 October 1996 and that of Dr Byth dated 27 November 1997. Discussing the former report, the primary judge remarked:

“The view was expressed as well that any psychiatric component of the applicant’s symptoms…