Castensen v Frankipile Australia - [2004] QSC 145

SUPREME COURT OF QUEENSLAND

CITATION:

Castensen v Frankipile Australia [2004] QSC 145

PARTIES:

ANDREW NATHAN CASTENSEN

and

FRANKIPILE AUSTRALIA (ACN 000 842 240)

FILE NO/S:

S 10007 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

18 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

4 May 2004

JUDGE:

Atkinson J

ORDER:

Application allowed.

Period of limitation for bringing proceedings extended to 1 November 2002.

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF A DECISIVE CHARACTER – where plaintiff suffered injuries at work – where knowledge of permanent impairment constitutes material fact of a decisive character – whether knowledge of worthwhile cause of action – whether within plaintiff’s knowledge or means of knowledge – whether all reasonable steps taken

Limitations of Actions Act 1974, s 11, s 30, s 31

Buckton v BHP Coal Pty Ltd [2001] QCA 35, cited
Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, cited
Dick v University of Queensland [2000] 2 Qd R 476, applied
Dixon v Australia Meat Holdings P/L [2002] QCA 25, cited
Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697, cited
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, applied
Healy v Femdale Pty Ltd (unreported, QCA no. 37 of 1992, 9 June 1993), followed
King v Queensland Corrective Services Commission [2000] QSC 342, cited
McNanamny v Hadley [1975] VR 705, cited
Maguire v Plumbing Industry Group Training Scheme Inc [2001] QCA 248, cited
Muir v Franklins Limited [2001] QCA 173, cited
Pizer v Ansett [1998] QCA 298, cited
Taggart v The Workers’ Compensation Board of Qld [1983] 2 Qd R 19, cited
Watters v Queensland Rail [2000] QCA 51, cited

COUNSEL:

GJ Cross for the Applicant / Plaintiff
RT Whiteford for the Respondent / Defendant

SOLICITORS:

Shine Roche McGowan for the Applicant / Plaintiff
Tresscox Lawyers for the Respondent / Defendant

This is an application pursuant to s 31 of the Limitations of Actions Act 1974 (Queensland) (“the Act”) to extend the time within which to institute proceedings for personal injuries to 1 November 2002. The plaintiff commenced an action in this court on that date claiming damages for personal injuries alleged to have been sustained by him in the course of his employment with the defendant.

The plaintiff, Andrew Castensen, was a fit man in his mid-thirties who was employed as a diesel and heavy earthmoving equipment fitter by the defendant, Frankipile Australia (“Frankipile”). He was injured on 5 June 1998 in circumstances which raise a prima facie case of negligence against the defendant. He suffered an injury to his neck (the “first injury”). Mr Castensen took one or two weeks off work and was treated conservatively with massage by a physiotherapist at the Logan Hyperdome Medical Centre. His injury gradually improved and he did not think…

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: [2004] QSC 145
Decision Date: 18 May 2004

CaseChat Overview and Summary

The case of Castensen v Frankipile Australia concerned the plaintiff, who had suffered personal injuries in the course of employment, and sought to bring a claim against the defendant, the employer. The dispute centred on the limitation period for bringing such claims and whether the plaintiff had knowledge of the material facts necessary to initiate the proceedings within the prescribed time. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the limitation period for the plaintiff to bring a claim could be extended beyond the statutory period due to a lack of knowledge of certain material facts. Specifically, the court needed to determine whether the plaintiff's knowledge of the material facts that constituted a worthwhile cause of action was a decisive factor in assessing when the limitation period began. Furthermore, it was necessary to consider whether the plaintiff had taken all reasonable steps to ascertain the material facts in question.

The court held that the limitation period could indeed be extended. It was determined that the plaintiff did not possess knowledge of the material facts of a decisive character until a later date, which was outside the statutory limitation period. This lack of knowledge constituted a valid reason for postponing the bar of the limitation period. The court found that the plaintiff had taken all reasonable steps to ascertain the material facts, and thus, the extension was warranted. Consequently, the application to extend the limitation period was allowed, and the period was extended to 1 November 2002.

The court's order was that the period of limitation for bringing proceedings was extended to 1 November 2002, thus allowing the plaintiff to proceed with their claim despite the initial expiry of the limitation period.

Orders

Orders of the court

Application allowed.

Period of limitation for bringing proceedings extended to 1 November 2002.

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:	Castensen v Frankipile Australia [2004] QSC 145
PARTIES:	ANDREW NATHAN CASTENSEN and FRANKIPILE AUSTRALIA (ACN 000 842 240)
FILE NO/S:	S 10007 of 2002
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	18 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	4 May 2004
JUDGE:	Atkinson J
ORDER:	Application allowed. Period of limitation for bringing proceedings extended to 1 November 2002.
CATCHWORDS:	LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF A DECISIVE CHARACTER – where plaintiff suffered injuries at work – where knowledge of permanent impairment constitutes material fact of a decisive character – whether knowledge of worthwhile cause of action – whether within plaintiff’s knowledge or means of knowledge – whether all reasonable steps taken Limitations of Actions Act 1974, s 11, s 30, s 31 Buckton v BHP Coal Pty Ltd [2001] QCA 35, cited Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, cited Dick v University of Queensland [2000] 2 Qd R 476, applied Dixon v Australia Meat Holdings P/L [2002] QCA 25, cited Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697, cited Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, applied Healy v Femdale Pty Ltd (unreported, QCA no. 37 of 1992, 9 June 1993), followed King v Queensland Corrective Services Commission [2000] QSC 342, cited McNanamny v Hadley [1975] VR 705, cited Maguire v Plumbing Industry Group Training Scheme Inc [2001] QCA 248, cited Muir v Franklins Limited [2001] QCA 173, cited Pizer v Ansett [1998] QCA 298, cited Taggart v The Workers’ Compensation Board of Qld [1983] 2 Qd R 19, cited Watters v Queensland Rail [2000] QCA 51, cited
COUNSEL:	GJ Cross for the Applicant / Plaintiff RT Whiteford for the Respondent / Defendant
SOLICITORS:	Shine Roche McGowan for the Applicant / Plaintiff Tresscox Lawyers for the Respondent / Defendant