Hargans v Kemenes

The appellant, Hargans, was injured in a motor vehicle accident and brought a claim against the respondent, Kemenes, for damages arising from the injuries sustained. The claim was brought outside of the limitation period. Hargans' argument for an extension of the limitation period was based on her claim that she was unaware of the full extent of her injuries until she experienced severe pain during rehearsals for a physical theatre performance some six months after being discharged from hospital. The primary judge dismissed Hargans' application for an extension of time.

The central issue for determination by the court was whether the appellant's knowledge of the material facts of decisive character occurred outside of the limitation period. This required the court to consider whether Hargans had taken reasonable steps to ascertain the full extent of her injuries. The court was also required to determine whether the onset of the appellant's symptoms about six months after her discharge from hospital could be said to have clothed the facts already known to her about her injury with a decisive character such as to justify an extension of the limitation period.

The court held that the appellant's knowledge of the material facts of decisive character occurred when she was discharged from hospital and given a medical certificate that stated that she could perform "usual activities as tolerated." The court found that the appellant had taken reasonable steps to ascertain the full extent of her injuries, and that she was not negligent in failing to discover the full extent of her injuries sooner. The court concluded that the onset of the appellant's symptoms did not clothe the facts already known to her about her injury with a decisive character such as to justify an extension of the limitation period. The court dismissed the appeal with costs.