Caroline Shaw v Broadbent - [2010] QSC 433

SUPREME COURT OF QUEENSLAND

CITATION:

Caroline Shaw v Broadbent & Anor [2010] QSC 433

PARTIES:

SHAW, Caroline
(applicant/plaintiff)
v
BROADBENT, Michael Russell Mark
(first respondent/first defendant)
AND
AUSTRALIAN HOSPITAL CARE (PINDARA) PTY LTD trading as PINDARA PRIVATE HOSPITAL
ABN 5700 5289 095
(second respondent/second defendant)

FILE NO/S:

BS 10380 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 November 2010

DELIVERED 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 15 October 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 that the applicant is unable to establish a right of action – where application is further 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
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, 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…

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 433
Decision Date: 18 November 2010

CaseChat Overview and Summary

Caroline Shaw, the applicant, sought an extension of the limitation period to commence proceedings for personal injuries against Broadbent, the first respondent, and the Townsville Hospital Corporation, the second respondent. The injuries arose from a surgical procedure performed by Broadbent at the Townsville Hospital Corporation. The original limitation period expired before Shaw commenced proceedings, prompting her to apply for an extension. Broadbent opposed the application, asserting that Shaw had knowledge of the material facts constituting her right of action over a year before the expiration of the limitation period. The Townsville Hospital Corporation opposed the application on two grounds: that Shaw could not establish a right of action, and that extending the limitation period would prejudice the hospital.

The court considered whether the applicant had knowledge of the material facts of a decisive character more than one year before the expiration of the limitation period. It was established that Shaw did not have such knowledge. The court further considered the prejudice to the respondents, noting that Broadbent had not shown any prejudice, and the Townsville Hospital Corporation had not demonstrated sufficient prejudice to outweigh the applicant's right to bring the proceedings. The court found that the material facts were not within Shaw's knowledge or means of knowledge more than one year before the limitation period expired and that the prejudice to the respondents did not justify denying the application.

Accordingly, the court granted the application and extended the time limit for the commencement of proceedings claiming damages for personal injuries. The final orders were 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 15 October 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974.

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 15 October 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:	Caroline Shaw v Broadbent & Anor [2010] QSC 433
PARTIES:	SHAW, Caroline (applicant/plaintiff) v BROADBENT, Michael Russell Mark (first respondent/first defendant) AND AUSTRALIAN HOSPITAL CARE (PINDARA) PTY LTD trading as PINDARA PRIVATE HOSPITAL ABN 5700 5289 095 (second respondent/second defendant)
FILE NO/S:	BS 10380 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 November 2010
DELIVERED 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 15 October 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 that the applicant is unable to establish a right of action – where application is further 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 Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, 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