Enkelmann v Queensland Windows Pty Ltd - [2002] QSC 318

SUPREME COURT OF QUEENSLAND

CITATION:

Enkelmann v Queensland Windows Pty Ltd [2002] QSC 318

PARTIES:

MALCOLM DOUGLAS ENKELMANN
(plaintiff/applicant)
v
QUEENSLAND WINDOWS PTY LTD ACN 009 810 496
(defendant/respondent)

FILE NO:

S11319 of 2000

DIVISION:

Trial Division

DELIVERED ON:

11 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2002

JUDGE:

Mullins J

ORDER:

That the period of limitation for proceeding S11319 of 2000 be extended, so that it expires at the end of 1 year after 14 April 2000.

CATCHWORDS:

LIMITATION OF ACTIONS – APPLICATION FOR EXTENSION – Limitation of Actions Act 1974 (Q), s30(1)(c), s31(2) – damages claim for negligence by plaintiff who developed occupational asthma through inhalation of Akwa wood dust in course of employment – whether being incapacitated amounting to permanent impairment of the whole person of 50% was within means of knowledge of plaintiff 1 year prior to commencing proceeding – whether plaintiff took all reasonable steps to find out relevant material fact relating to permanency and extent of impairment – not reasonable in all the circumstances to expect plaintiff to ask advice or question on this aspect when plaintiff’s return to the same employment on basis that Akwa dust was to be avoided was endorsed by those treating and dealing with him in relation to his occupational asthma

LIMITATION OF ACTIONS – APPLICATION FOR EXTENSION – Limitation of Actions Act 1974 (Q), s30(1)(c), s31(2) – no significant prejudice to defendant from extension of time – time limit extended

Limitation of Actions Act 1974

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Carlowe v Frigmobile Pty Ltd [1999] QCA 527
Castlemaine Perkins Limited v McPhee [1979] QdR 469
Healy v Femdale Pty Ltd (Appeal No 37 of 1993, 9 June 1993)
Maguire v Plumbing Industry Group Training Scheme Inc [2001] QCA 248
Muir v Franklins Limited [2001] QCA 173

COUNSEL:

GJ Cross for the plaintiff/applicant
M Grant-Taylor SC for the defendant/respondent

SOLICITORS:

Turner Freeman for the plaintiff/applicant
Hunt & Hunt for the defendant/respondent

MULLINS J: Malcolm Douglas Enkelmann (“the applicant”) who is the plaintiff in this proceeding is applying pursuant to s 31(2) of the Limitation of Actions Act 1974 (“the Act”) for an order that the period of limitation for the action pursued in this proceeding be extended for 1 year from 14 April 2000. The defendant in the proceeding, Queensland Windows Pty Ltd (“the respondent”), opposes the application.

The action which the applicant seeks to pursue in this proceeding is one for damages for negligence against the respondent as his employer arising out of the applicant’s claim that he contracted occupational asthma in the course of his employment with the respondent up until 31 December 1995. It was common ground between the parties that the latter date was the relevant date as the cut off for any liability at common law on the part of the respondent to the applicant, because that date immediately precedes the date of commencement on 1 January 1996 of relevant amendments…

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: [2002] QSC 318
Decision Date: 11 October 2002

CaseChat Overview and Summary

The case of Enkelmann v Queensland Windows Pty Ltd involved a dispute between the plaintiff, Mr. Enkelmann, and the defendant, Queensland Windows Pty Ltd, regarding a claim for damages due to negligence. The plaintiff alleged that he developed occupational asthma through inhalation of Akwa wood dust during his employment. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issues for the court to decide were whether the plaintiff's incapacity, amounting to a permanent impairment of the whole person of 50%, was within the plaintiff's knowledge one year prior to initiating the proceeding, and whether the plaintiff took all reasonable steps to ascertain this relevant fact. Additionally, the court had to consider whether it was reasonable for the plaintiff to seek advice on the permanency and extent of his impairment when his return to employment was contingent on avoiding Akwa dust, as advised by his treating professionals.

The court examined the plaintiff's knowledge and actions in light of the statutory provisions under the Limitation of Actions Act 1974 (Q), specifically sections 30(1)(c) and 31(2). The court found that it was not reasonable to expect the plaintiff to seek further advice on the permanency and extent of his impairment given the assurances from his treating professionals regarding his return to work under specific conditions. The court also noted that there was no significant prejudice to the defendant if the time limit for the proceeding was extended. Based on these findings, the court determined that an extension of the limitation period was warranted.

As a result, the court made an order extending the limitation period for proceeding S11319 of 2000, so that it expires at the end of one year after 14 April 2000. This decision allowed the plaintiff to proceed with his claim despite the limitation period having initially expired, recognising the unique circumstances surrounding his knowledge and the reasonable steps taken to address his condition.

Orders

Orders of the court

That the period of limitation for proceeding S11319 of 2000 be extended, so that it expires at the end of 1 year after 14 April 2000.

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:	Enkelmann v Queensland Windows Pty Ltd [2002] QSC 318
PARTIES:	MALCOLM DOUGLAS ENKELMANN (plaintiff/applicant) v QUEENSLAND WINDOWS PTY LTD ACN 009 810 496 (defendant/respondent)
FILE NO:	S11319 of 2000
DIVISION:	Trial Division
DELIVERED ON:	11 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2002
JUDGE:	Mullins J
ORDER:	That the period of limitation for proceeding S11319 of 2000 be extended, so that it expires at the end of 1 year after 14 April 2000.
CATCHWORDS:	LIMITATION OF ACTIONS – APPLICATION FOR EXTENSION – Limitation of Actions Act 1974 (Q), s30(1)(c), s31(2) – damages claim for negligence by plaintiff who developed occupational asthma through inhalation of Akwa wood dust in course of employment – whether being incapacitated amounting to permanent impairment of the whole person of 50% was within means of knowledge of plaintiff 1 year prior to commencing proceeding – whether plaintiff took all reasonable steps to find out relevant material fact relating to permanency and extent of impairment – not reasonable in all the circumstances to expect plaintiff to ask advice or question on this aspect when plaintiff’s return to the same employment on basis that Akwa dust was to be avoided was endorsed by those treating and dealing with him in relation to his occupational asthma LIMITATION OF ACTIONS – APPLICATION FOR EXTENSION – Limitation of Actions Act 1974 (Q), s30(1)(c), s31(2) – no significant prejudice to defendant from extension of time – time limit extended Limitation of Actions Act 1974 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Carlowe v Frigmobile Pty Ltd [1999] QCA 527 Castlemaine Perkins Limited v McPhee [1979] QdR 469 Healy v Femdale Pty Ltd (Appeal No 37 of 1993, 9 June 1993) Maguire v Plumbing Industry Group Training Scheme Inc [2001] QCA 248 Muir v Franklins Limited [2001] QCA 173
COUNSEL:	GJ Cross for the plaintiff/applicant M Grant-Taylor SC for the defendant/respondent
SOLICITORS:	Turner Freeman for the plaintiff/applicant Hunt & Hunt for the defendant/respondent