Hargans v Kemenes - [2011] QSC 15

SUPREME COURT OF QUEENSLAND

CITATION:

Hargans v Kemenes & anor [2011] QSC 15

PARTIES:

ELIZABETH ROSE HARGANS
(plaintiff)
v
ANTHOMY KEMENES
(first defendant)

and
SUNCORP METWAY INSURANCE LIMITED
(second defendant)

FILE NO/S:

10890/10

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2011

JUDGE:

Ann Lyons J

ORDER:

1. The application is dismissed

CATCHWORDS:

LIMITATIONS OF ACTIONS – EXTENSION OF PERIOD – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF A DECISIVE CHARACTER – where applicant injured in a motor vehicle accident on 5 June 2004 – where the limitation period to make a claim for damages in respect of her injuries expired on 9 April 2009 – where a claim was filed on 10 October 2010 – where the applicant argues she only became aware that her injuries would obstruct her in her chosen career around 15 October 2009 – whether the applicant had knowledge of the material fact of a decisive character before the limitation period expired – whether an extension of the period for commencing legal proceedings pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) should be granted

Limitation of Actions Act 1974 (Qld) ss 30, 31.

Healy v Femdale Pty Ltd [1993] QCA 210

Russell v State of Queensland [2004] QCA 370
Spain v Dipompo Jacs Constructions P/L & anor [2009] QCA 323
Stephenson v State of Queensland (2006) 226 CLR 197

COUNSEL:

D Atkinson for the applicant (plaintiff)
S Farrell for the respondents (first and second defendants)

SOLICITORS:

Murphy Schmidt Solicitors for the applicant
Bray Lawyers for the respondents

ANN LYONS J:

The applicant seeks, by an application filed on 20 December 2010, an extension of the period for commencing legal proceedings pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld).

The plaintiff filed a claim for damages for negligence in the sum of $738,301.25 on 7 October 2010.

Background

The applicant will shortly turn 23 years of age having been born in April 1988. On 5 June 2004 when she was 16 years old she was injured in a motor vehicle accident whilst she was in year 11 at Somerville House. She was a passenger in a vehicle driven by her previous boyfriend Anthony Kemenes when the vehicle collided with some parked cars. She had been attending a party at Graceville when a number of people decided to go to a bottle shop to buy some alcohol. The applicant was sitting in the back middle seat of the car and was only restrained by a lap seatbelt and not a full lap sash seatbelt. The applicant sustained personal injuries in the accident which included the following:

(a) a burst fracture at the L4 spine;

(b) fracture of the L4 spinous process;

(c) fracture of the left L3 and L4 transverse processes;

(d) ruptured secum requiring laparotomy surgery;

(e) loss of a significant portion of bowel; and

(f) scarring.

The applicant required hospitalisation for…

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 Hargans v Kemenes

Details

AGLC: Hargans v Kemenes [2011] QSC 15
Case: [2011] QSC 15
Decision Date: 11/02/2011

CaseChat Overview and Summary

The case of Hargans v Kemenes involved a dispute concerning the limitations period for bringing a claim for damages resulting from injuries sustained in a motor vehicle accident. The claimant, who was injured on 5 June 2004, filed a claim on 10 October 2010, well beyond the three-year limitation period that expired on 9 April 2009. The court was required to determine whether the claimant's knowledge of the material facts of a decisive character, which would have warranted extending the limitation period under section 31(2) of the Limitation of Actions Act 1974 (Qld), occurred before the statutory deadline for commencing legal proceedings.

The court meticulously examined the evidence and submissions presented to ascertain whether the claimant had knowledge of the material facts that would have led a reasonable person to commence legal action within the limitation period. The claimant contended that she only became aware of the full extent of her injuries and their impact on her career around 15 October 2009. The court evaluated the significance of this knowledge in determining whether the claimant had the requisite awareness of the decisive facts before the limitation period lapsed.

After considering the arguments and evidence, the court concluded that the claimant did not have knowledge of the material facts of a decisive character before the limitation period expired. The claimant's awareness of her injuries' full impact did not constitute the decisive knowledge required under the statute. Consequently, the court determined that an extension of the limitation period was not warranted. The application to extend the limitation period was dismissed, and no further legal proceedings could be commenced beyond the original limitation period.

Orders

Orders of the court

1. The application is dismissed

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:	Hargans v Kemenes & anor [2011] QSC 15
PARTIES:	ELIZABETH ROSE HARGANS (plaintiff) v ANTHOMY KEMENES (first defendant) and SUNCORP METWAY INSURANCE LIMITED (second defendant)
FILE NO/S:	10890/10
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 February 2011
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2011
JUDGE:	Ann Lyons J
ORDER:	1. The application is dismissed
CATCHWORDS:	LIMITATIONS OF ACTIONS – EXTENSION OF PERIOD – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF A DECISIVE CHARACTER – where applicant injured in a motor vehicle accident on 5 June 2004 – where the limitation period to make a claim for damages in respect of her injuries expired on 9 April 2009 – where a claim was filed on 10 October 2010 – where the applicant argues she only became aware that her injuries would obstruct her in her chosen career around 15 October 2009 – whether the applicant had knowledge of the material fact of a decisive character before the limitation period expired – whether an extension of the period for commencing legal proceedings pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) should be granted Limitation of Actions Act 1974 (Qld) ss 30, 31. Healy v Femdale Pty Ltd [1993] QCA 210 Russell v State of Queensland [2004] QCA 370 Spain v Dipompo Jacs Constructions P/L & anor [2009] QCA 323 Stephenson v State of Queensland (2006) 226 CLR 197
COUNSEL:	D Atkinson for the applicant (plaintiff) S Farrell for the respondents (first and second defendants)
SOLICITORS:	Murphy Schmidt Solicitors for the applicant Bray Lawyers for the respondents