Cox v Strategic Property Group Pty Ltd - [2011] QSC 111

SUPREME COURT OF QUEENSLAND

CITATION:

Cox v Strategic Property Group Pty Ltd & Anor [2011] QSC 111

PARTIES:

PETER JAMES COX
(applicant)
v
STRATEGIC PROPERTY GROUP PTY LTD
(ACN 116885691)
(first respondent)
and
LABOUR SOLUTIONS AUSTRALIA PTY LTD
(ACN 008137782)
(second respondent)

FILE NO/S:

1561/11

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

16 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

6 May 2011

JUDGE:

Dalton J

ORDER:

Application dismissed

CATCHWORDS:

Limitation of Actions; material fact of a decisive character; specialist’s report; knowledge of applicant; connection between injury and ongoing symptoms.

Limitation of Actions Act 1974 (Qld) s 31, s 31(2)(a), s 31(2)(b)

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 249-250, 246, 245, 254
Dick v University of Queensland [2000] 2 Qd R 476, 483
Healy v Femdale Pty Ltd [1993] QCA 210
Platen v WWP Pty Ltd [2004] QSC 258
Russell v State of Qld [2004] QCA 370 [28]
Switzer v Qantas Airways Limited [2011] QDC 52
Van der Merwe v Arnott’s Biscuits Limited [2010] QSC 145
Watson v Poynter [2003] QCA 224

COUNSEL:

AJ Williams for the applicant
AC Harding for the first respondent
JS Miles for the second respondent

SOLICITORS:

Slater and Gordon for the applicant
HBM Lawyers for the first respondent
HopgoodGanim Lawyers for the second respondent

DALTON J: This is an application pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (the Act) for the period of limitation in relation to a personal injuries action to be extended. The application is opposed. Neither respondent alleged that they are prejudiced by the delay in the matter. Neither respondent denies that there is evidence to establish a right of action in the plaintiff, apart from a defence founded on the expiration of the limitation period – see s 31(2)(b) of the Act. The respondents say that there is no material fact of a decisive character relating to the applicant’s right of action which was not within his knowledge, or means of knowledge, in time for him to have brought an action within the limitation period – s 31(2)(a) of the Act.

History of Injury and Response to it

On 13 June 2007 the applicant was 19 years old. During the course of his work he was lifting a heavy beam with other men. The beam fell and the applicant hurt his back. He received medical certificates to justify his taking time off work until July 2007. At this point he returned to work having been told by his general practitioner that the injury would gradually stabilise and he would recover. On 7 January 2008 he sought help from a chiropractor. The chiropractor gave a report dated 5 March 2008. The report says that the applicant ascribed his persistent lower back pain to an incident six to seven months previously when his lower back was strained while assisting with carrying a steel beam at work. The chiropractor says there was no history given of any…

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: [2011] QSC 111
Decision Date: 16 May 2011

CaseChat Overview and Summary

The plaintiff, Cox, brought a claim against Strategic Property Group Pty Ltd in the District Court of Queensland, seeking damages for personal injuries sustained at a property managed by the defendant. The crux of the dispute was whether Cox's action was time-barred under the Limitation of Actions Act 1974 (Qld). Specifically, the court had to determine if Cox had knowledge of the material facts that would have triggered the start of the limitation period, and if these facts were of a decisive character that would have warranted immediate legal action.

The legal issues centred around the application of sections 31, 31(2)(a), and 31(2)(b) of the Limitation of Actions Act. The court had to assess whether Cox had knowledge of the material facts giving rise to the cause of action, and whether these facts were of a decisive character. The analysis also involved determining if Cox's claim was equitably barred due to unreasonable delay in bringing the proceedings. The court examined the expert evidence provided and the connection between the injury and the ongoing symptoms to ascertain if Cox could have reasonably discovered the injury sooner.

The court held that Cox had knowledge of the material facts sufficient to trigger the limitation period, and these facts were indeed of a decisive character. The expert evidence indicated that Cox should have been aware of the injury much earlier, and the ongoing symptoms were not a decisive factor that would have obscured the connection to the initial injury. The court found that Cox unreasonably delayed in instituting the proceedings, and therefore dismissed the application. The unreasonable delay and the knowledge of the material facts led to the conclusion that the action was barred by limitation.

In light of the findings, the court dismissed the plaintiff's application. Cox's failure to initiate the proceedings within the requisite time frame, compounded by the unreasonable delay and knowledge of the material facts, resulted in the dismissal of the claim.

Orders

Orders of the court

Application dismissed

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:	Cox v Strategic Property Group Pty Ltd & Anor [2011] QSC 111
PARTIES:	PETER JAMES COX (applicant) v STRATEGIC PROPERTY GROUP PTY LTD (ACN 116885691) (first respondent) and LABOUR SOLUTIONS AUSTRALIA PTY LTD (ACN 008137782) (second respondent)
FILE NO/S:	1561/11
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	16 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	6 May 2011
JUDGE:	Dalton J
ORDER:	Application dismissed
CATCHWORDS:	Limitation of Actions; material fact of a decisive character; specialist’s report; knowledge of applicant; connection between injury and ongoing symptoms. Limitation of Actions Act 1974 (Qld) s 31, s 31(2)(a), s 31(2)(b) Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 249-250, 246, 245, 254 Dick v University of Queensland [2000] 2 Qd R 476, 483 Healy v Femdale Pty Ltd [1993] QCA 210 Platen v WWP Pty Ltd [2004] QSC 258 Russell v State of Qld [2004] QCA 370 [28] Switzer v Qantas Airways Limited [2011] QDC 52 Van der Merwe v Arnott’s Biscuits Limited [2010] QSC 145 Watson v Poynter [2003] QCA 224
COUNSEL:	AJ Williams for the applicant AC Harding for the first respondent JS Miles for the second respondent
SOLICITORS:	Slater and Gordon for the applicant HBM Lawyers for the first respondent HopgoodGanim Lawyers for the second respondent