SUPREME COURT OF QUEENSLAND
CITATION:
Dent v Langs Building Supplies Pty Ltd [2015] QSC 368
PARTIES:
CHRISTINE DEBBIE DENT
(applicant)
v
LANGS BUILDING SUPPLIES PTY LTD ACN 010 007 315(respondent)
FILE NO/S:
SC No 5420 of 2015
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
21 December 2015
DELIVERED AT:
Brisbane
HEARING DATE:
24 July 2015; Further written submissions from the respondent dated 10 August 2015
JUDGE:
Burns J
ORDER:
Application dismissed
CATCHWORDS:
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE –GENERALLY – where the applicant was employed by the respondent – where the applicant alleges that she sustained personal injury in the course of that employment – where the applicant suffers from chronic pain and impairment – where the applicant did not commence proceedings within the statutory limitation period – whether an extension of time should be granted – whether a material fact of a decisive character was not within the applicant’s means of knowledge prior to the expiry of the limitation period
Limitation of Actions Act 1974 (Qld) ss 30, 31
Baillie v Creber & Anor [2010] QSC 52
Barnes v Smith & Ors [2011] QSC 259
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Castillon v P & O Ports Limited (No 2) [2008] 2 Qd R 219
Dick v University of Queensland [2000] 2 Qd R 476
Honour v Faminco Mining Services Pty Ltd & Anor [2009] QCA 352
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110
Sugden v Crawford [1989] 1 Qd R 683
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431
COUNSEL:
R Myers for the applicant
M T O’Sullivan for the respondent
SOLICITORS:
Shine Lawyers for the applicant
BT Lawyers for the respondent
The applicant, Ms Dent, applies for an extension of a limitation period pursuant to s 31 of the Limitation of Actions Act 1974 (Qld). Between 2000 and 2011, she was employed by the respondent, Langs Building Supplies Pty Ltd, and alleges that, as a result of the work she was required to do in the course of that employment, she suffered personal injuries for which she seeks damages.
For the reasons that follow, the issue for determination is whether Ms Dent has satisfied the onus on her to establish that, within the meaning of the Act, a material fact of a decisive character was not within her means of knowledge until 14 August 2013.
Background
Ms Dent is 35 years of age. She was employed by Langs as a sawyer. Her duties involved hard, physical work which was repetitive in nature.[1]
[1]Ms Dent's duties are described in paragraph 2 of the affidavit she swore in support of her application and which was filed on 2 June 2015.
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- Case
- [2015] QSC 368
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Ms Dent had satisfied the statutory requirement to establish that a material fact of a decisive character was not within her knowledge until 14 August 2013. Under s 31(2)(a) of the Limitation of Actions Act, the court has discretion to extend the limitation period if certain conditions are met: the material fact must have been unknown to the applicant until after the limitation period began, and there must be evidence to establish a right of action. In this case, the court needed to determine if Ms Dent met this burden of proof.
The court found that Ms Dent had not satisfied the onus of proving that a material fact of decisive character was not within her knowledge until 14 August 2013. The court noted that Ms Dent had taken different approaches in seeking legal advice after her motor vehicle accident and the work-related incident in June 2011. Despite the serious effects of the latter incident, Ms Dent did not seek legal advice until after receiving medical advice from Dr Cheung. The court considered this a significant omission, as seeking legal advice earlier could have led to a specialist medical assessment of her injuries, potentially clarifying the extent of her injuries and her rights earlier. Consequently, the application for an extension of time was dismissed.
Orders
Orders of the court
Application dismissed
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Ms Dent confirmed in cross-examination that, at the time of the June 2011 incident, she was employed on a full-time permanent basis by Langs and earning approximately $650 net per week, with a capacity to earn up to $740 net per week.[9] She did not agree that, because she was “losing a considerable sum of money every week – $740 net”, that she should have sought legal advice about her claim. In particular, she said that, although she was “disabled to a certain degree” and “had to be put on a pension”, this was only until she “had that surgery to be put back to 100 per cent.”[10] She accepted though that she was “losing about $35,000 a year” and that, over two years, a loss of “about $70,000” was a “lot of money.”[11] However, she said that such a sum would have only been worth pursuing if she had been “told that [she] was never able to work again”.[12][9]In her Notice of Claim for Damages, Ms Dent sought the higher of those two amounts for past economic loss over the period from 16 June 2011 to the date of the Notice ($115,440). The other claims advanced in the Notice include general damages ($150,000) and past care ($187,200) as well as claims for interest. The claim for past care is calculated with reference to a loss of 40 hours per week at a cost of $30 per hour.[10]Transcript of proceedings 1-21.[11]Ibid.[12]Ibid.Consideration By s 31(2)(a) of the Act, the discretion to extend the limitation period is enlivened if two requirements are met. First, that a material fact of a decisive character relating to the right of action of the applicant was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action. Secondly, that there is evidence to establish a right of action. If those requirements are satisfied then the court has a discretion to extend the limitation period for 12 months from the time when the material fact was within the applicant’s means of knowledge. Usually, the discretion will then be exercised in favour of an extension unless there is relevant prejudice.[13][13]Baillie v Creber & Anor [2010] QSC 52 at [4] per McMeekin J, referring to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 per Dawson J; 555 per McHugh J. Here, it was not submitted that there will be any relevant prejudice if an extension is granted and nor was it submitted that Ms Dent had failed to point to the existence of evidence which, it can reasonably be expected, will be available at trial and will, if unopposed by other evidence, be sufficient to prove her case.[14] As such, this application is concerned with whether Ms Dent has satisfied the onus on her to establish that a material fact of a decisive character was not within her means of knowledge until she received advice from Dr Cheung on 14 August 2013. If so, the limitation period may be extended to 14 August 2014 and, in that event, the Notice of Claim for Damages will have been served within time.[15][14]Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431,434-5 (Macrossan CJ).[15]Further Outline of Argument on behalf of the Respondent (filed 10 August 2015); para 4.