Jocumsen v Thiess P/L

Case [2005] QCA 198

SUPREME COURT OF QUEENSLAND

CITATION:

Jocumsen v Thiess P/L & Anor [2005] QCA 198

PARTIES:

LANCE NOEL JOCUMSEN
(applicant/respondent)
v
THIESS PTY LTD ACN 111 540 982
(first respondent/first appellant)
SUNCORP METWAY INSURANCE LIMITED
ACN 075 695 966
(second respondent/second appellant)

FILE NO/S:

Appeal No 8339 of 2004  SC No 88 of 2004 

DIVISION:

Court of Appeal

PROCEEDING:

General Civil appeal

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

10 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2005

JUDGES:

McPherson and Williams JJA and Muir J  Separate reasons for judgment of each member of the Court, each concurring as to orders made 

ORDER:

Appeal dismissed with costs

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – WHETHER REASONABLE STEPS TAKEN TO ASCERTAIN FACTS – MATERIAL FACTS OF A DECISIVE CHARACTER – where respondent diagnosed with post-traumatic stress disorder following a workplace accident – where respondent refused to avail himself of counselling - where respondent continued work despite suffering a range of medical and psychiatric symptoms – whether the respondent’s inability to continue employment was a material fact - whether it was reasonable for the respondent to persist with his employment considering the factual circumstances - whether after obtaining appropriate advice the respondent  would have been advised or himself concluded that he was unable to continue in his employment

Limitation of Actions Act 1974 (Qld), s 31

Berg v Kruger Enterprises [1990] 2 Qd R 301, cited
Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, cited
Castlemaine Perkins Limited v McPhee [1979] Qd R 469, followed
Di Carlo v Dubois [2003] QSC 204; SC No 1281 of 1996, 16 July 2003 cited
Healy v Femdale Pty Ltd [1993] QCA 210, applied
Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, applied
NF v State of Queensland [2005] QCA 110; Appeal No 1032 of 2004, 15 March 2005, followed
Pizer v Ansett Australia Limited [1998] QCA 298; CA No 8648 of 2004, 15 April 2005, distinguished

COUNSEL:

S C Williams QC, with G F Crow, for the appellant
D V C McMeekin SC for the respondent

SOLICITORS:

Grant & Simpson Solicitors for the appellant
Murphy Schmidt (Brisbane) acting as Town Agents for Taylors Solicitors (Mackay) for the respondent

  1. McPHERSON JA: I agree with the reasons of Muir J for dismissing this appeal with costs. It was reasonably open to the primary judge to reach the conclusion which he did, which was one of fact. It has not been shown that his Honour exercised his discretion wrongly in extending the period of limitation.

  1. WILLIAMS JA: I will not repeat facts and circumstances material to this appeal set out in the reasons for judgment of Muir J, which I have had the advantage of reading.

  1. The incident allegedly giving rise to the cause of action on which the respondent wishes to sue occurred on 17 November 2000.…

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Details
AGLC
Jocumsen v Thiess Pty Ltd [2005] QCA 198
Case
[2005] QCA 198
Decision Date

CaseChat Overview and Summary

The appellant, Jocumsen, brought an appeal against Thiess P/L, the respondent, in the Supreme Court of Queensland. The dispute centered around the applicability of the limitation period in respect of personal injury claims under the Limitation of Actions Act 1974 (Qld). The respondent, a former employee, had sustained a workplace accident that resulted in a diagnosis of post-traumatic stress disorder. The respondent refused to avail himself of counselling and continued to work despite experiencing various medical and psychiatric symptoms. The primary issue was whether the limitation period for the respondent to bring a claim was postponed due to the material facts that he was unable to continue employment and whether it was reasonable for him to persist with his employment under the circumstances.

The court examined whether the respondent took reasonable steps to ascertain the facts that would have led him to conclude that he was unable to continue his employment. The court found that the respondent's refusal to seek counselling and his continued employment despite symptoms suggested he had not taken reasonable steps. The court held that the material facts of the respondent's inability to continue employment did not automatically postpone the limitation period. Instead, the court required the respondent to demonstrate that, after obtaining appropriate advice, he would have concluded he could not continue in his employment. The court held that the respondent had not met this standard, and therefore, the limitation period was not postponed.

In conclusion, the court dismissed the appeal and ordered the appellant to pay costs. The court determined that the respondent's refusal to seek professional help and his continued employment despite symptoms did not constitute reasonable steps to ascertain the relevant facts. The court found that the material facts did not automatically postpone the limitation period, and the respondent had not demonstrated that, after obtaining appropriate advice, he would have concluded he was unable to continue in his employment. The appeal was dismissed with costs awarded to the respondent.

Orders

Orders of the court

Appeal dismissed with costs

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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