Fury v Doedens - [1987] TASSC 72

Serial No B2/1987
List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: Fury v Doedens [1987] TASSC 72; B2/1987

PARTIES:  FURY, MICHAEL
  v
  DOEDENS, DANNY

FILE NO/S:  MA 111/1986
DELIVERED ON:  9 February 1987
JUDGMENT OF:  Cox J

Judgment Number: B2/1985
Number of paragraphs: 11

Serial No B 2/1987
List "B"
File No MA 111/1986

MICHAEL FURY v DANNY DOEDENS

REASONS FOR JUDGMENT COX J

9 February 1987

This is an appeal from a decision of the Master granting, pursuant to S.5(3) of the Limitation Act 1974, the respondent to the appeal an extension of time within which to commence proceedings at common law against the appellant for damages for personal injuries arising out of an accident which occurred on 11th September 1980.

The respondent was a passenger in a motor vehicle being driven by the appellant on that day on the Southern Expressway between Hobart and Kingston. The appellant who was travelling at the maximum speed limit braked heavily and swerved suddenly to avoid a possum crossing the highway. The road was damp and the appellant lost control of his vehicle. As a result the vehicle left the road surface and rolled (bonnet to boot) down an embankment. The respondent said that he suffered two fractured vertabrae in the upper cervical spine, a fractured collar bone and other less serious injuries. He said that he injured his head in the collision and still suffered pain, but that it was not bad enough to prevent him from engaging in employment. At the conclusion of the hearing before the Master, counsel for the appellant conceded that there was prima facie an arguable case of negligence against his client. That concession has been repeated before me.

The injury suffered by the respondent did not require his hospitalisation but he was unable to work for a period of some weeks. On 25th September 1980 having been told to do so by “medical personnel” he filled out and submitted to the Motor Accidents Insurance Board an application for benefits. In it he gave details of his injuries as “fractured vertabra – fractured collar–bone”, advised that he had received Outpatient treatment at the Royal Hobart Hospital and stated that his probable term of disability for work (as a salesman) was four weeks. Details of the accident were given sufficient to alert the Board to the possibility at least of a claim that the appellant had been negligent. The Board received and paid an ambulance account for $32.80 and an account from the Royal Hobart Hospital for X–rays to chest, shoulder and spine amounting to $89.80 and paid to the respondent a disability allowance of $428.57 in respect of the period 18th September 1980 to the 12th October 1980.

Nothing further was heard by the appellant or the Board until 3rd July 1986 when the respondent’s solicitor wrote to the Board advising that he intended to claim damages. At the time of the accident the respondent was 20 years of age and his parents were in Papua…

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 Fury v Doedens

Details

AGLC: Fury v Doedens [1987] TASSC 72
Case: [1987] TASSC 72
Decision Date: 9 February 1987

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Fury v Doedens involved an appeal by Michael Fury against the decision of the Master to grant Danny Doedens an extension of time to commence proceedings for damages for personal injuries sustained in a car accident. The respondent, Doedens, was a passenger in a vehicle driven by the appellant, Fury, who lost control of the vehicle on the Southern Expressway in 1980. The incident resulted in Doedens suffering fractured vertebrae, a fractured collar bone, and other injuries. Despite receiving benefits from the Motor Accidents Insurance Board, Doedens did not initiate legal action until 1986, prompting the Master's decision to extend the time limit for legal proceedings. The central legal issue before Cox J was whether it was just and reasonable to extend the time limit for Doedens to commence legal action against Fury for damages.

The court considered several factors in determining the justness and reasonableness of extending the time limit. Cox J examined whether Doedens had made a positive case for extending the time limit, noting that Doedens had not sought advice or treatment for his injuries for nearly six years. Cox J also considered the potential prejudice to Fury, including the loss of opportunity to obtain early medical advice on Doedens's condition, which could have potentially aided in his rehabilitation. Despite the continual pain Doedens experienced, the court found that his delay in seeking legal advice and treatment was not satisfactorily explained. Cox J concluded that the delay was too substantial and that extending the time limit would not be just and reasonable, thus upholding the appeal and refusing the application for an extension of time.

The final outcome of the case was that the appeal was upheld, and the application for an extension of time was refused. Consequently, Doedens's claim for damages against Fury was not permitted to proceed beyond the statutory time limit, barring him from recovering damages for the injuries sustained in the accident.

Orders