Hale v Ross

DISTRICT COURT OF QUEENSLAND

CITATION:	Hale v Ross [2004] QDC 533
PARTIES:	GAVIN JOHN HALE (Applicant) v ROBERT ROSS (Respondent)
FILE NO/S:	1019 of 2004
DIVISION:	Civil jurisdiction
PROCEEDING:	Chamber application
ORIGINATING COURT:	District Court
DELIVERED ON:	22 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	12 August 2004
JUDGE:	Tutt DCJ
ORDER:	The application for an extension of the time within which to institute proceedings pursuant to the provisions of s 31 of the Limitation of Actions Act 1974 (Qld) is dismissed; and The applicant pay the respondent’s costs of and incidental to this application as agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.
CATCHWORDS:	Extension of time limitation within which to initiate proceedings – claim for personal injuries arising out of treatment received by respondent – failure to diagnose an Achilles tendon injury – whether material fact of decisive character not within applicant’s means of knowledge at the relevant time. Limitation of Actions Act 1974 (Qld) ss. 11, 20 & 31. Healy v Femdale Pty Ltd [1993] QCA 210 (9 June 1993) Moriarty v Sunbeam Corporation Limited [1988] 1 Qd R 325 Pizer v Ansett Australia Limited [1998] QCA 298. South Regional Health Authority v Taylor (1996) 186 CLR 541
COUNSEL:	Mr D A Reid for the applicant. Mr G W Diehm for the respondent.
SOLICITORS:	Clewett, Corser & Drummond for the applicant. Harry McCay for the respondent.

Introduction

1. This is an application for an extension of time within which to institute proceedings in this court pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”). Proceedings were in fact instituted by consent on 27 April 2004 but stayed until the applicant complies with Part 1 Chapter 2 of the Personal Injuries Proceedings Act 2002 and leave is granted to proceed otherwise with the claim which was commenced several years after the expiration of the limitation period within which actions of this nature must be commenced.

1. The applicant’s claim arises out of the respondent’s alleged mis-diagnosis of the applicant’s injury which he suffered on 12 October 1997 and for which he sought treatment from the respondent on 13 and 17 October 1997 respectively.

Legislation

1. Pursuant to s 11 of the Act an action for damages in respect of personal injuries “... shall not be brought after the expiration of three years from the date on which the cause of action arose.”

1. Section 31(2)(a) of the Act in effect provides that where a person claims to have a right of action a court may extend the limitation period within which a claimant may bring an action for damages in respect of personal injuries so that it expires one year after the date upon which “a material fact of a decisive character relating to the right of action” came to the knowledge of the applicant “… after the commencement of the year last preceding the expiration of the period of limitation for…