DISTRICT COURT OF QUEENSLAND
CITATION:
Feher v Commonwealth; Feher v WorkCover Queensland [2016] QDC 275
PARTIES:
TIMOTHY MARTIN FEHER
(applicant/plaintiff)
v
THE COMMONWEALTH OF AUSTRALIA
(respondent/defendant)
DC No 2717 of 2014
TIMOTHY MARTIN FEHER
(applicant/plaintiff)
v
WORKCOVER QUEESLAND
(respondent/defendant)
DC No 141 of 2015
PROCEEDING:
Applications for extension of time pursuant to s 31 Limitation of Actions Act 1974 (Qld)
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
11 November 2016
DELIVERED AT:
Brisbane
HEARING DATE:
30 September 2016
JUDGE:
Rafter SC DCJ
ORDERS:
Matter no. 2717/14
1. The plaintiff’s application is dismissed
2. The plaintiff’s claim is dismissed
Matter no. 141/15
1. The plaintiff’s application is dismissed
2. The plaintiff’s claim is 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 – REASONABLE STEPS TAKEN TO ASCERTAIN FACTS – where plaintiff slipped on ladder at work in 2006 – where plaintiff diagnosed as having suffered a rupture of the right anterior cruciate ligament – where, prior to surgery, plaintiff informed that typical recovery was between six to nine months – where surgical repair performed – where plaintiff experienced ongoing symptoms in his knee – where plaintiff only saw doctor about persistent symptoms in May 2013 – where plaintiff underwent second arthroscopy in June 2013 – where plaintiff informed, following 2013 arthroscopy, that he may never make full recover – where plaintiff informed there is a chance of developing arthritis in his right knee – where plaintiff claims this was first time he realised he would not make full recovery – whether reasonable for plaintiff to continue to be optimistic about recovery despite persistent symptoms – whether plaintiff was informed of a material fact of decisive nature following arthroscopy in 2013
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – PRINCIPLES ON WHICH DISCRETION IS EXERCISED – where plaintiff injured at work in 2006 – where plaintiff employed by company that has since been deregistered – where employment records of company no longer available – where health and safety procedures of company no longer available – where witnesses cannot provide accurate recollection of events due to passing of time – whether defendants would not be significantly prejudiced by extension of limitation period
Limitation of Actions Act 1974 (Qld), ss 11, 30, 31
Personal Injuries Proceedings Act 2002 (Qld), s 43
Workers Compensation and Rehabilitation Act 2003 (Qld), s 300(2)(b)Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied
Castillon v P&O Ports Ltd (No 2) [2008] Qd R 219, cited
Fuller v Bunnings Group Ltd [2007] QCA 216, considered
Hargans v Kemenes & Anor [2011] QCA 251, cited
Healy v Femdale Pty Ltd [1993] QCA 210, consideredHWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, cited
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd…
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- Case
- [2016] QDC 275
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether it was reasonable for the plaintiff to continue to be optimistic about his recovery despite persistent symptoms and whether the plaintiff was informed of a material fact of decisive nature following the arthroscopy in 2013. The court was also required to decide whether an extension of the limitation period would cause significant prejudice to the defendants.
The court found that the plaintiff had been informed of the risks and the typical recovery period following the first arthroscopy and that it was reasonable for the plaintiff to continue to be optimistic about his recovery despite persistent symptoms. The court found that the plaintiff was informed of a material fact of decisive nature following the arthroscopy in 2013 and that the plaintiff knew or ought to have known of this fact. The court found that the defendants would be significantly prejudiced by an extension of the limitation period due to the unavailability of employment records, health and safety procedures, and witnesses who could provide an accurate recollection of the events. The plaintiff's application for an extension of the limitation period was dismissed, and the plaintiff's claim was dismissed.
Orders
Orders of the court
Matter no. 2717/14
1. The plaintiff’s application is dismissed
2. The plaintiff’s claim is dismissed
Matter no. 141/15
1. The plaintiff’s application is dismissed
2. The plaintiff’s claim is 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
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