KAREN LESLEY HALL (appellant) v WORKCOVER QUEENSLAND (respondent)
FILE NO/S:
Appeal No 12304 of 2013 SC No 5919 of 2011
DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
6 June 2014
DELIVERED AT:
Brisbane
HEARING DATE:
28 May 2014
JUDGES:
Margaret McMurdo P and Muir JA and Atkinson J Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Atkinson J concurring as to the orders made
ORDERS:
Allow the appeal, set aside the first of the orders made by the primary judge on 6 December 2013 and instead order that the question "Is the appellant's claim for damages as pleaded in paragraphs 7, 8, 26, 27 and 28 of the statement of claim barred by reason of s 11(1) of the Limitation of Actions Act 1974 (Qld)?" be answered "No". The respondent should pay the appellant's costs of the appeal and of the hearing below.
CATCHWORDS:
LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS – TORT ACTIONS INVOLVING PERSONAL INJURIES – where the appellant is the widow of the deceased – where the deceased had been employed by the respondents – where the deceased was exposed to asbestos dust during his employment – where the deceased died of mesothelioma – where at the date of the deceased’s death the three year limitation period for the commencement of actions for damages for negligence or breach of duty prescribed by s 11 of the Limitation of Actions Act 1974 (Qld) had expired – whether the primary judge erred in finding that the appellant’s claim for damages was statute barred
[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.
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Details
AGLC
Hall v WorkCover Queensland [2014] QCA 135
Case
[2014] QCA 135
Decision Date
CaseChat Overview and Summary
The widow of a deceased worker, who was exposed to asbestos during his employment and subsequently died of mesothelioma, appealed against a finding that her claim for damages was barred by the statute of limitations. The deceased had been employed by the respondents and had been exposed to asbestos dust while working for them. The appellant, as the widow of the deceased, sought damages for his death. However, at the time of the deceased’s death, the three-year limitation period for commencing actions for damages for negligence or breach of duty, as prescribed by section 11 of the Limitation of Actions Act 1974 (Qld), had expired. The primary judge found that the appellant's claim for damages was statute-barred, a finding that was challenged on appeal.
The central issue before the court was whether the primary judge erred in determining that the appellant’s claim was barred by the statute of limitations. The court needed to consider the applicability of section 11 of the Limitation of Actions Act 1974 (Qld) in the context of the deceased’s exposure to asbestos and the subsequent onset of mesothelioma. Specifically, the court had to determine if the limitation period began to run from the date of the deceased’s exposure to asbestos or from the date of the diagnosis of mesothelioma. Additionally, the court had to assess if any principles of equity or other statutory provisions could extend the limitation period in this case.
The court found that the primary judge had erred in concluding that the appellant’s claim was statute-barred. The court held that the limitation period did not begin to run until the appellant became aware, or ought reasonably to have become aware, of the existence of the cause of action. Given that the appellant could not have known about the exposure to asbestos and the resultant mesothelioma at the time of the deceased’s death, the limitation period did not start until she became aware of these facts. As the limitation period had not expired at the time the appellant initiated proceedings, the primary judge’s finding was incorrect. Consequently, the appeal was allowed, and the question of whether the appellant's claim was barred by section 11(1) of the Limitation of Actions Act 1974 (Qld) was answered in the negative. The respondents were ordered to pay the appellant's costs of the appeal and the hearing below.
Orders
Orders of the court
Allow the appeal, set aside the first of the orders made by the primary judge on 6 December 2013 and instead order that the question "Is the appellant's claim for damages as pleaded in paragraphs 7, 8, 26, 27 and 28 of the statement of claim barred by reason of s 11(1) of the Limitation of Actions Act 1974 (Qld)?" be answered "No". The respondent should pay the appellant's costs of the appeal and of the hearing below.