Hargans v Kemenes

[2011] QCA 251

SUPREME COURT OF QUEENSLAND

CITATION:

Hargans v Kemenes & Anor [2011] QCA 251

PARTIES:

ELIZABETH ROSE HARGANS
(appellant)
v
ANTHONY KEMENES
(first respondent)
SUNCORP METWAY INSURANCE LIMITED
ACN 075 695 966
(second respondent)

FILE NO/S:

Appeal No 2030 of 2011
SC No 10890 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

14 June 2011

JUDGES:

Fraser JA and Margaret Wilson AJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

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 the appellant suffered serious injuries to her spine following a motor vehicle accident – where liability for the accident was not in issue – where upon discharge from hospital the appellant was given a medical certificate stating that she could perform “usual activities as tolerated” – where a treating doctor at the hospital had told her to expect back pain from time to time and that she should consider a “desk job” – where the appellant acted upon this advice in abandoning an intended career as a personal trainer – where the appellant subsequently took up physical theatre and suffered severe pain during rehearsals about six months after the expiration of the limitation period – where the appellant brought an application for an extension of the limitation period – where the appellant contended that the onset of these symptoms clothed the facts already known to her about her injury with a decisive character such as to justify an extension of the limitation period – whether the primary judge erred in refusing the application

Limitation of Actions Act 1974 (Qld), s 30, s 31(2)

Castlemaine Perkins Ltd v McPhee [1979] Qd R 469, cited
Gillespie v Swift Australia P/L [2009] QCA 316, cited
Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327, distinguished
Hargans v Kemenes & Anor [2011] QSC 15, affirmed
Healy v Femdale Pty Ltd[1993] QCA 210, considered
HWC v The Corporation of the Synod of the Diocese of Brisbane[2009] QCA 168, considered
NF v State of Qld[2005] QCA 110, cited
Pizer v Ansett Australia Ltd [1998] QCA 298, applied

COUNSEL:

K Wilson SC, with D Atkinson, for the appellant
R Douglas SC, with S T Farrell, for the respondents

SOLICITORS:

Murphy Schmidt Lawyers for the appellant
Bray Lawyers for the respondents

1. FRASER JA: This is an appeal against an order made in the Trial Division refusing the appellant an extension of the limitation period to bring a claim for damages for personal injuries.  She was injured on 5 June 2004 when travelling as a passenger in a car driven by the first respondent.  The appellant suffered…