Lee v Star Aged Living Limited - [2023] QSC 49

SUPREME COURT OF QUEENSLAND

CITATION:

Lee v Star Aged Living Limited [2023] QSC 49

PARTIES:

NANCY FAY LEE

(applicant)

v

STAR AGED LIVING LIMITED

(respondent)

FILE NO/S:

SC No 10446 of 2020

DIVISON:

Trial Division

PROCEEDING:

Application for Extension of Time

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

10 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2021; 16 November 2021

JUDGE:

Mellifont J

ORDER:

1. The application to extend time is granted.

2. I will hear the parties as to 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 – GENERALLY – where the applicant lodged a Notice of Claim pursuant to the Workers’ Compensation and Rehabilitation Act 2003 after the expiration of the limitation period – where the applicant was employed as an Assistant in Nursing at the respondent’s residential care facility – where the applicant alleges she sustained a back injury at work – where the applicant seeks an extension of the limitation period to a date within one year of the date at least one material fact of a decisive character relating to the injury allegedly came to her knowledge – whether there was a material fact relating to the cause of action not within means of the respondent’s knowledge – whether there was evidence to establish the right of action apart from a defence founded on an expiration of the period of limitation – where the respondent submits that the application should not be granted because the delay has caused significant prejudice – where the respondent submits that evidence has been lost or destroyed – whether prejudice to the respondent would render a fair trial unlikely

Limitation of Actions Act 1974 (Qld), s 11, s 30, s 31
Workers’ Compensation Rehabilitation Act 2003 (Qld), s 236, s 202, Sch 5

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied
Castillon v P & O Ports Limited (No 2) [2008] 2 Qd R 219, cited
Castlemaine Perkins v McPhee [1979] Qd R 469, cited
Dick v University of Queensland [2000] 2 Qd R 476, cited
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, cited
Gail Shaw v Broadbent & Anor [2010] QSC 425, cited
Gillespie v Swift Australia P/L [2009] QCA 316, cited
Healy v Ferndale Pty Ltd [1993] QCA 210, applied
Hertess v Adams [2011] QCA 73, cited
Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (In Liquidation) & Anor [2009] QCA 352, cited
Kambarbakis v G and L Scaffold Contracting P/L [2008] QCA 262, cited
Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, cited
NF v State of Queensland [2005] QCA 110, cited
Pizer v Ansett Australia Ltd [1998] QCA 298, cited
State of Queensland v Stephenson (2006) 226 CLR 197, cited
Taggart v The Workers’ Compensation Board of…

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: [2023] QSC 49
Decision Date: 10 March 2023

CaseChat Overview and Summary

In the case of Lee v Star Aged Living Limited, the applicant sought an extension of the limitation period for a personal injury claim against her former employer, a residential care facility. The applicant, who was employed as an Assistant in Nursing, alleged that she sustained a back injury at work and lodged a Notice of Claim after the statutory limitation period had expired. The primary legal issue before the court was whether there existed a material fact of decisive character that came to the applicant's attention after the limitation period had expired, thereby justifying an extension of time. The court also had to consider whether the applicant had taken all reasonable steps to ascertain the material facts and whether any delay in bringing the claim had prejudiced the respondent.

The court examined the definition of a material fact under Section 30(2) of the relevant legislation, highlighting that a material fact includes the fact that negligence causes personal injury, the nature and extent of the injury, and the extent to which it was caused by negligence. The court noted that a fact is not within the means of knowledge of a person if they are unaware of it and have taken all reasonable steps to ascertain it. The court further clarified that whether a fact is within the means of knowledge depends on what a reasonable person in the applicant's circumstances would have believed. The court held that if the applicant had taken all reasonable steps to discover the fact but still remained unaware, the fact was not within her means of knowledge.

Given the evidence presented, the court found that the applicant had taken all reasonable steps to ascertain the material facts relating to her injury. The court concluded that the applicant had not been aware of the full extent of her injury and that this fact was not within her means of knowledge until a later date. The court also noted that the respondent had not demonstrated significant prejudice due to the delay and that the prejudice, if any, did not render a fair trial unlikely. Consequently, the court granted the application to extend the limitation period.

The final orders of the court were that the application to extend time was granted, and the court would hear the parties regarding costs. This decision underscores the importance of understanding the circumstances of the applicant and the reasonableness of their actions in determining whether an extension of the limitation period is warranted.

Orders

Orders of the court

1. The application to extend time is granted.

2. I will hear the parties as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 30(2) assists in understanding what might be a material fact. It sets out an inclusive definition in that respect, and provides, relevantly, that:….. the material facts relating to a right of action include the following – ….(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury; (iv)the nature and extent of the personal injury so caused; (v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty. When is a fact not within the means of knowledge of the person? (Including consideration of the obligation to take reasonable steps to find out the fact) Whether a material fact is within the means of knowledge of an applicant involves a question of reasonableness. A fact is only within the means of knowledge when the steady preponderance of opinion or belief of a person who had taken all reasonable steps to ascertain that fact would have believed that that was so.[13][13]Dick v University of Queensland [2000] 2 Qd R 476, [35]; Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, 441–443. Section 30(2)(c) sets out when a fact is not within the means of a knowledge of a person. It provides that: a fact is not within the means of knowledge of a person at a particular time if, but only if – (i)The person does not know the fact at that time; and (ii)As far as the fact is able to be found out by the person – the person has taken all reasonable steps to find out the fact before that time. Whether an applicant has taken reasonable steps to ascertain the fact is a question to be considered in the context of the background and circumstances of the particular applicant.[14][14]Castlemaine Perkins v McPhee [1979] Qd R 469, 473E; Randel v Brisbane City Council [1984] 2 Qd R 276, 279; NF v State of Queensland [2005] QCA 110. In NF v State of Queensland, Keane JA stated that: …s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of “all reasonable steps”, or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act.[15] (bold added)[15][2005] QCA 110, [29]. In Healy v Ferndale Pty Ltd, de Jersey CJ, McPherson JA and Thomas J stated: The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for the prudent enquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or affect upon her working capacity. There is no requirement to take “appropriate advice” or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.[16] (bold added) [16][1993] QCA 210.