Flemming v Gibson - [2001] QCA 244

SUPREME COURT OF QUEENSLAND

CITATION: Flemming v Gibson [2001] QCA 244

PARTIES: KYM MAREE FLEMMING
(plaintiff/respondent)
v
NEIL GIBSON
(first defendant/appellant)
THE NOMINAL DEFENDANT
(second defendant)

FILE NO/S: Appeal No 11187 of 2000
SC No 278 of 1995

DIVISION: Court of Appeal Cairns Circuit

PROCEEDING: General Civil Appeal

ORIGINATING COURT:
Supreme Court at Townsville

DELIVERED ON: 22 June 2001

DELIVERED AT: Cairns

HEARING DATE: 20 June 2001

JUDGES: Davies and Thomas JJA and Jones J
Judgment of the Court

ORDER: Appeal dismissed with costs.

CATCHWORDS:
LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – DISABILITIES – UNSOUNDNESS OF MIND – where respondent was injured in a motor vehicle accident when she was 10 years of age – where writ claiming damages issued over three years after respondent turned 18 years of age – whether respondent has at all times been a person "under a disability" within the meaning of s 29 of the Limitation of Actions Act 1974 – where nature of disability relied upon was "unsoundness of mind" – where necessary to establish a mental illness producing incapacity to manage her affairs in relation to the accident in the manner of a reasonable person – where conflicting expert evidence – whether finding of disability was reasonably open on the evidence as a whole

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – GENERAL MATTERS – whether estoppel arose by reason of an earlier unsuccessful application to extend the limitation period – whether present claim barred pursuant to principle in Port of Melbourne Authority v Anshun Pty Ltd

Limitation of Actions Act 1974 (Qld), s 5, s 29
Uniform Civil Procedure Rules (Qld) r 93, r 94

Abalos v Australian Postal Commission (199) 171 CLR 167, considered
Ahmedi v Ahmedi (1991) 23 NSWLR 288, considered
Devries v Australian National Railways Commission (1993) 177 CLR 472, considered
Holtman v Sampson [1985] 2 QdR 472, considered
Kerr v Ipswich Turf Club Inc, Appeal No 12009 of 1998, 17 September 1999, considered
King v Coupland [1981] QdR 121, applied

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, considered
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, considered

COUNSEL: J R Baulch SC for appellant
D B Fraser QC, with C McLennan, for respondent

SOLICITORS: Roberts Nehmer McKee (Townsville) for appellant
Dempseys (Townsville) for respondent

THE COURT: The respondent was injured in a motor vehicle accident in 1984. She was then a 10 year old girl. The present appeal is against an order by the Northern Judge declaring that she has at all times been a person "under a disability" within the meaning of that expression in s 29 of the Limitation of Actions Act 1974. Under that section an action may be brought at any time within three years from the date on which the person ceased to be under…

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.

Continue reading Flemming v Gibson

Details

AGLC: Flemming v Gibson [2001] QCA 244
Case: [2001] QCA 244
Decision Date: 22 June 2001

CaseChat Overview and Summary

The appeal in Flemming v Gibson involved the respondent, who had been injured in a motor vehicle accident at the age of 10, and the appellant, who sought to bar the respondent's claim for damages on the basis that it had been issued over three years after she turned 18. The High Court was asked to determine whether the respondent had been under a disability within the meaning of section 29 of the Limitation of Actions Act 1974, specifically whether she had been mentally incapacitated to the extent that it postponed the bar of the limitation period. The court was also required to consider whether an estoppel arose due to an earlier unsuccessful application to extend the limitation period, and whether the claim was barred under the principle in Port of Melbourne Authority v Anshun Pty Ltd.

The court found that the disability relied upon was "unsoundness of mind," which required the respondent to establish a mental illness that produced incapacity to manage her affairs in the manner of a reasonable person. The court examined conflicting expert evidence and held that the finding of disability was reasonably open on the evidence as a whole. The court further found that there was no estoppel arising from the earlier unsuccessful application to extend the limitation period, and that the claim was not barred under the principle in Port of Melbourne Authority v Anshun Pty Ltd.

The appeal was dismissed with costs, and the respondent's claim was allowed to proceed. The court held that the respondent had been under a disability within the meaning of the Limitation of Actions Act 1974, and that the limitation period had been postponed accordingly. The court's decision highlights the importance of establishing the nature and extent of a disability in order to postpone the bar of the limitation period, and the need for careful consideration of expert evidence in such cases.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Flemming v Gibson [2001] QCA 244
PARTIES:	KYM MAREE FLEMMING (plaintiff/respondent) v NEIL GIBSON (first defendant/appellant) THE NOMINAL DEFENDANT (second defendant)
FILE NO/S:	Appeal No 11187 of 2000 SC No 278 of 1995
DIVISION:	Court of Appeal Cairns Circuit
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	22 June 2001
DELIVERED AT:	Cairns
HEARING DATE:	20 June 2001
JUDGES:	Davies and Thomas JJA and Jones J Judgment of the Court
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – DISABILITIES – UNSOUNDNESS OF MIND – where respondent was injured in a motor vehicle accident when she was 10 years of age – where writ claiming damages issued over three years after respondent turned 18 years of age – whether respondent has at all times been a person "under a disability" within the meaning of s 29 of the Limitation of Actions Act 1974 – where nature of disability relied upon was "unsoundness of mind" – where necessary to establish a mental illness producing incapacity to manage her affairs in relation to the accident in the manner of a reasonable person – where conflicting expert evidence – whether finding of disability was reasonably open on the evidence as a whole LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – GENERAL MATTERS – whether estoppel arose by reason of an earlier unsuccessful application to extend the limitation period – whether present claim barred pursuant to principle in Port of Melbourne Authority v Anshun Pty Ltd Limitation of Actions Act 1974 (Qld), s 5, s 29 Uniform Civil Procedure Rules (Qld) r 93, r 94 Abalos v Australian Postal Commission (199) 171 CLR 167, considered Ahmedi v Ahmedi (1991) 23 NSWLR 288, considered Devries v Australian National Railways Commission (1993) 177 CLR 472, considered Holtman v Sampson [1985] 2 QdR 472, considered Kerr v Ipswich Turf Club Inc, Appeal No 12009 of 1998, 17 September 1999, considered King v Coupland [1981] QdR 121, applied Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, considered State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, considered
COUNSEL:	J R Baulch SC for appellant D B Fraser QC, with C McLennan, for respondent
SOLICITORS:	Roberts Nehmer McKee (Townsville) for appellant Dempseys (Townsville) for respondent