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Green v Taylor

Green v Taylor

Case [2010] QDC 298 6 August 2010

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DISTRICT COURT OF QUEENSLAND

CITATION:

Green v Taylor [2010] QDC 298

PARTIES:

DAVIN MARTIN GREEN

(Applicant)

V

JASON TAYLOR

(Respondent)

FILE NO/S:

360/09

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

6 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

25 January 2010

JUDGE:

Irwin DCJ

ORDER:

1. The time limit for the applicant to institute proceedings against the respondent in respect of injuries sustained on 19 August 2005 is extended up to and including 11 February 2009 pursuant to s 31 of the Limitation of Actions Act 1974 (Qld).

2. The applicant is authorised to proceed further with a claim against the respondent in respect of an incident occurring on 19 August 2005 pursuant to s 18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002 (Qld).

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the applicant has applied under section 31 of the Limitations of Actions Act 1974 (Qld) for the limitation period relating to his claim for damages for personal injuries to be extended – where the applicant was a jockey who suffered an injury to his left hip after a race fall – where the applicant alleges the respondent is responsible for the injury – where the respondent concedes there is evidence to establish a right of action apart from a defence founded on the expiration of the limitation period –where the applicant argues he did not know a material fact of a decisive character until a date within the 12 months preceding 11 February 2009 – whether in all the circumstances, the limitation period should be extended

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 has applied under section 31 of the Limitations of Actions Act 1974 (Qld) for the limitation period relating to his claim for damages to be extended – where the plaintiff was a jockey who suffered an injury to his left hip after a race fall – where the applicant alleges the respondent is responsible for the injury – where the applicant argues he did not know a material fact of a decisive character until a date within the 12 months preceding 11 February 2009 – whether the applicant took all reasonable steps to ascertain the material fact of a decisive character – whether in all the circumstances, the limitation period should be extended

LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where plaintiff wishes to recover damages for personal injury – where the plaintiff was a jockey who suffered an injury to his left hip after a race fall – where the applicant failed to provide a complying notice of claim under section 9(1) of the Personal Injuries Proceedings Act 2002…

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 Green v Taylor

Details

AGLC: Green v Taylor [2010] QDC 298
Case: [2010] QDC 298
Decision Date: 6 August 2010

CaseChat Overview and Summary

The matter before the Court involved an application by the applicant, a jockey, to extend the limitation period for instituting proceedings against the respondent, who is alleged to be responsible for injuries sustained during a race fall. The applicant sought relief under section 31 of the Limitation of Actions Act 1974 (Qld), arguing that he did not become aware of a material fact of decisive character until within 12 months preceding 11 February 2009. The applicant also faced a challenge regarding non-compliance with the Personal Injuries Proceedings Act 2002 (Qld), specifically the failure to provide a notice of claim within the prescribed timeframe.

The primary legal issues the Court had to address were whether the applicant had taken all reasonable steps to ascertain the material fact of decisive character and whether the limitation period should be extended under the relevant legislation. Additionally, the Court needed to determine if the applicant could proceed with the claim despite the failure to provide a complying notice of claim under the Personal Injuries Proceedings Act 2002 (Qld).

The Court found that the applicant did not take all reasonable steps to ascertain the material fact of decisive character. However, in the overall circumstances, the Court considered it just to extend the limitation period. The Court noted that the respondent did not contend that he suffered any specific prejudice from the delay and exercised its discretion to allow the applicant to proceed with the claim. Consequently, the Court granted the application to extend the limitation period and authorised the applicant to proceed with the claim against the respondent.

The Court's orders were to extend the time limit for the applicant to institute proceedings against the respondent in respect of injuries sustained on 19 August 2005 up to and including 11 February 2009, pursuant to section 31 of the Limitation of Actions Act 1974 (Qld). Additionally, the Court authorised the applicant to proceed further with a claim against the respondent in respect of the incident occurring on 19 August 2005 under section 18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002 (Qld).

Orders

Orders of the court

1. The time limit for the applicant to institute proceedings against the respondent in respect of injuries sustained on 19 August 2005 is extended up to and including 11 February 2009 pursuant to s 31 of the Limitation of Actions Act 1974 (Qld).

2. The applicant is authorised to proceed further with a claim against the respondent in respect of an incident occurring on 19 August 2005 pursuant to s 18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002 (Qld).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Green v Taylor [2010] QDC 298

Most Recent Citation

McGowan v Hills Limited (Ruling No 2) [2016] VSC 331

Cases Citing This Decision

McGowan v Hills Limited (Ruling No 2) [2016] VSC 331
Citation 1

…v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, 437 (Macrossan CJ), cited in Greenhalgh v Bacas Training Limited [2007] QCA 327 [21] and Green v Taylor [2010] QDC 298 [94].…

See all citing cases →

Cases Cited

Greenhalgh v Bacas Training Ltd [2007] QCA 327
Citation 1 (Para 1)

…the material fact of a decisive character first came within the applicant’s means of knowledge.[57] [57] Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327 per Keane JA (with whom Cullinane and Lyons JJ agreed at [6] on appeal from the decision of McGill SC DCJ at [2007] QDC 056. The application for leave…
Barac v Director of Public Prosecutions [2007] QCA 112
Citation 2 (Para 18)

…[95][2007] QCA 112 at [18] (footnotes omitted). Wood v Glaxo Australia Pty Ltd is reported at [1994] 2 Qd.R. 431. In Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 McMurdo J (with whom Homes J agreed) held that the material fact of a decisive character was the existence of a medical opi…
JMC v Moore [2006] QDC 418
Citation 3 (Para 1)

…Moore [123] that the matter is to be approached in the way expressed by Keane JA in NF v State of Queensland :[124] [122][2007] QDC 056 at [11]. [123][2006] QDC 418. [124][2005] QCA 110 at [29]; see Greenhalgh v Bacas Training Limited and Ors [2007] QDC 056 at [20].…
Cousins v Mt Isa Mines Ltd [2006] QCA 261
Citation 4 (Para 1)

…Mines Ltd [155] for the proposition that an application should only be refused if it is shown the respondent will suffer significant prejudice. [155][2006] QCA 261.…
State of Queensland v Stephenson [2006] HCA 20
Citation 5 (Para 1)

…the action has been commenced out of time and the application under the section has been made subsequently.[79] [78] State of Queensland v Stephenson (2006) 80 ALJR 923 at [30] per Gummow, Hayne and Crennan JJ at [12]. [79]Although an application for extension of the limitation period was filed on 6 February 2009 and…
Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112
Citation 6 (Para 1)

…action was to commence within the extended period.[83] [82]Ibid at [16]; see also Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 per McMurdo J at [33]. [83]Ibid at [16] is adopted for this purpose.…
Cousins v Mount Isa Mines Ltd [2005] QSC 349
Citation 7 (Para 1)

…ignificant prejudice or contention the applicant did not have a good cause of action. However, an appeal was allowed against this decision.[161] [160][2005] QSC 349. [161] Cousins v Mt Isa Mines Ltd [2006] QCA 261.…
Wrightson v State of Queensland [2005] QCA 367
Citation 8 (Para 1)

…on and the other appellants in that case.[89] [89]This is also in accord with the view expressed by Jerrard JA in Wrightson v State of Queensland [2005] QCA 367 at [43]-[45]. Wrightson was another of the appellants to the High Court in that case. An example of this approach is also found in the judgment of Jerrar…
NF v State of Queensland [2005] QCA 110
Citation 9 (Para 1)

…matter is to be approached in the way expressed by Keane JA in NF v State of Queensland :[124] [122][2007] QDC 056 at [11]. [123][2006] QDC 418. [124][2005] QCA 110 at [29]; see Greenhalgh v Bacas Training Limited and Ors [2007] QDC 056 at [20].…
Stephenson v State of Queensland [2004] QCA 483
Citation 10 (Para 1)

…n all material facts of a decisive character relating to the right of action came within his means of knowledge”.[86] [84]Heydon J dissented. [85][2004] QCA 483. [86]Ibid at [13]. See State of Queensland v Stephenson (2006) 80 ALJR 923 per Hayne, Gummow and Crennan JJ at [19] and Kirby J at [57].…
Gillam v State of Queensland [2003] QCA 566
Citation 11 (Para 1)

…uch an explanation to be given. The judgment of Jerrard JA in Gillam v State of Queensland & Ors [154] is relied on to support this proposition. [154][2003] QCA 566, particularly at [29].…
Haskins v Gold City Council [2003] QDC 551
Citation 12 (Para 1)

…ich the court has under that section, “The expiry of the limitation period, in the particular circumstances, makes a very great difference.” [158][2003] QDC 551.…
Pizer v Ansett Australia Ltd [1998] QCA 298
Citation 13 (Para 1)

…] [92][2007] QCA 327. [93]Ibid per Keane JA at [6] and per Lyons J at [29]. See also the explanation by Pincus JA in Pizer v Ansett Australia Limited [1998] QCA 298 at [1]-[4]; and Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 per Jerrard JA at [6] and McMurdo J at [33].…
Healy v Femdale Pty Ltd [1993] QCA 210
Citation 14

…Gold Coast City Council & Anor [2003] QDC 551, distinguished Healy v Femdale Pty Ltd [1993] QCA 210, cited JCM v Moore [2006] QDC 418, cited Moriaty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, cited NF v State of Queensland [2005] QCA 110, cited Nicol v Caboolture Shire Council [2003] QDC 033, cited Pizer v Ans…
QDC 551, this is a wide discretion. Earlier in Nicol v Caboolture City Council [2003] QDC 033
Citation 15 (Para 1)

…ted by Robin QC DCJ in Haskins v Gold Coast City Council & Anor [2003] QDC 551, this is a wide discretion. Earlier in Nicol v Caboolture City Council [2003] QDC 033, Robin QC DCJ observed at [10] that, “except that a declaration under s 18(1)(c)(ii) would depend on a sufficient factual basis [s 18(1)(c) and s 43]…
Greenhalgh v Bacas Training Limited & Ors [2007] QDC 056
Citation 16 (Para 1)

…Training Limited & Ors [2007] QCA 327 per Keane JA (with whom Cullinane and Lyons JJ agreed at [6] on appeal from the decision of McGill SC DCJ at [2007] QDC 056. The application for leave to appeal was refused.…

Legislation Cited

Limitation of Actions Act 1974 (Qld) 30(1)
2 mentions
Personal Injuries Proceedings Act 2002 (Qld) 9
2 mentions
Uniform Civil Procedure Rules 1999 (Qld) 24(2)
2 mentions (from Para 1)
Workers’ Compensation and Rehabilitation Act 2003 (Qld) 207B
2 mentions (from Para 1)
Limitations of Actions Act 1974 (Qld)
1 mention

CITATION:	Green v Taylor [2010] QDC 298
PARTIES:	DAVIN MARTIN GREEN (Applicant) V JASON TAYLOR (Respondent)
FILE NO/S:	360/09
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	6 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	25 January 2010
JUDGE:	Irwin DCJ
ORDER:	1. The time limit for the applicant to institute proceedings against the respondent in respect of injuries sustained on 19 August 2005 is extended up to and including 11 February 2009 pursuant to s 31 of the Limitation of Actions Act 1974 (Qld). 2. The applicant is authorised to proceed further with a claim against the respondent in respect of an incident occurring on 19 August 2005 pursuant to s 18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002 (Qld).
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the applicant has applied under section 31 of the Limitations of Actions Act 1974 (Qld) for the limitation period relating to his claim for damages for personal injuries to be extended – where the applicant was a jockey who suffered an injury to his left hip after a race fall – where the applicant alleges the respondent is responsible for the injury – where the respondent concedes there is evidence to establish a right of action apart from a defence founded on the expiration of the limitation period –where the applicant argues he did not know a material fact of a decisive character until a date within the 12 months preceding 11 February 2009 – whether in all the circumstances, the limitation period should be extended 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 has applied under section 31 of the Limitations of Actions Act 1974 (Qld) for the limitation period relating to his claim for damages to be extended – where the plaintiff was a jockey who suffered an injury to his left hip after a race fall – where the applicant alleges the respondent is responsible for the injury – where the applicant argues he did not know a material fact of a decisive character until a date within the 12 months preceding 11 February 2009 – whether the applicant took all reasonable steps to ascertain the material fact of a decisive character – whether in all the circumstances, the limitation period should be extended LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where plaintiff wishes to recover damages for personal injury – where the plaintiff was a jockey who suffered an injury to his left hip after a race fall – where the applicant failed to provide a complying notice of claim under section 9(1) of the Personal Injuries Proceedings Act 2002…