Hawkins v Bridgestone Australia Ltd - [2016] QDC 321

[2016] QDC 321

DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE HARRISON
No 184 of 2016
JASON HAWKINS Applicant
and
BRIDGESTONE AUSTRALIA LTD Respondent
CAIRNS
2.28 PM, FRIDAY, 18 NOVEMBER 2016
JUDGMENT

HIS HONOUR: Yes. I’ll give my decision. The applicant in this matter is now 44 years of age, having been born on the 14^th of February 1972. He has applied, pursuant to section 31 (2) of the Limitation of Actions Act 1974 (the LAA) to extend the limitation period for the bringing of an action against the respondent in respect of damages for personal injuries, regarding an injury to his right shoulder sustained during the course of his employment with the respondent on the 11^th of July 2012. I note that from the correspondence exhibited to the material, the parties effectively agree that if this application is successful, the limitation period should be extended to the 18^th of May 2016. To succeed in his application, the applicant must show: (a) that a material fact of a decisive character was not within his means of knowledge until after a date after the commencement of the year last preceding the expiration of the period of limitation for the action, and (b) that there is evidence to establish the right of action, apart from a defence founded on the expiration of a period of limitation; in other words, you would have to show that there was a prima facie case. The relevant date, in terms of the first requirement under the subsection in this case, would be the 11^th of July 2014.

Prima Facie Case
It is not necessary to consider that matter any further, nor go into the details of the incident on the 11^th of July 2012, because a prima facie case has effectively been conceded.

Material Fact Relied Upon
The material fact relied upon is set out in paragraph 56 of the affidavit of the applicant sworn on the 2^nd of November 2016. He says that he was told by Dr Sheppard, an orthopaedic specialist, during the course of a consultation on the 25^th of May 2015 that he would continue to suffer flare ups in relation to his right shoulder if he continued working as a wheel aligner, and that he should consider different, lighter work which did not involve overhead duties. He says that he gradually realised, after being given that information, that he would eventually not return to his previous occupation as a wheel aligner. It was submitted that the material facts relied upon were, in fact, material because they went to the nature and extent of the injuries sustained in the subject incident, for the purposes of section 30 (1) (a) (v) of the LAA.

History of the Matter
It was accepted that the applicant made a successful statutory claim in relation to the injuries sustained on the incident or in the incident on the 11^th of July 2012 and that there were also further successful statutory…

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.

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Details

Case: [2016] QDC 321
Decision Date: 18 NOVEMBER 2016

CaseChat Overview and Summary

The case of Hawkins v Bridgestone Australia Ltd concerns an application by the applicant, Jason Hawkins, to extend the limitation period for bringing an action against the respondent, Bridgestone Australia Ltd, for damages related to personal injuries sustained during employment. Hawkins seeks an extension under section 31(2) of the Limitation of Actions Act 1974 due to an alleged material fact that was not within his means of knowledge until after the limitation period began. The applicant argues that he was informed by his doctor in May 2015 that continuing his job as a wheel aligner would exacerbate his shoulder injury, leading him to realize he could not return to his previous occupation. The legal issues in the case revolve around whether the material fact Hawkins relied upon was of a decisive character, not within his means of knowledge, and whether there is any prejudice to the respondent if the extension is granted.

The court found that the material fact Hawkins relied upon—his doctor's advice that he should avoid work involving overhead duties—was indeed of a decisive character as it pertained to the nature and extent of his injury. The court also found that this fact was not within Hawkins' means of knowledge as he had taken all reasonable steps to ascertain his condition, including consulting medical professionals. Furthermore, the court determined there was no prejudice to the respondent in granting the extension. Consequently, the court granted the application and ordered that the limitation period be extended to May 18, 2016. Additionally, the court ruled that costs of the application should follow the event, awarding costs to Hawkins on a standard basis.

Orders