McWhae v Broadbent - [2010] QSC 430

SUPREME COURT OF QUEENSLAND

CITATION:

McWhae v Broadbent & Anor [2010] QSC 430

PARTIES:

McWHAE, Cathryn
(applicant/plaintiff)
v
BROADBENT, Michael Russell Mark
(first respondent/first defendant)
AND
ALLAMANDA PRIVATE HOSPITAL PTY LTD
ACN 098 641 564
(second respondent/second defendant)

FILE NO/S:

BS 9319 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

6 - 9 April 2010

JUDGE:

Atkinson J

ORDER:

That the time limit for the commencement of proceedings claiming damages for personal injuries by the plaintiff against the first and second defendants be extended to 19 September 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF PERIOD – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – GENERALLY – where applicant claims that she suffered injuries following surgery performed on her by the first respondent at the second respondent hospital – where applicant commenced proceedings beyond the limitation period – where applicant applies to extend the limitation period for the commencement of proceedings – where application is opposed by the first respondent on the basis that the applicant’s material fact of a decisive character relating to her right of action was within her knowledge or means of knowledge more than one year prior to her commencement of proceedings – where application is opposed by the second respondent on the basis of prejudice – whether the limitation period should be extended

Limitations of Actions Act 1974 (Qld), s 11, s 30, s 31

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541, applied
Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360, cited

Carlowe v Frigmobile P/L [1999] QCA 527, cited

Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors [2001] QCA 335, cited
Dick v University of Queensland [1999] QCA 474; [2000] 2 Qd R 476, applied
HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, cited
NF v State of Queensland [2005] QCA 110, applied
Queensland v Stephenson [2006] HCA 20; 226 CLR 197, applied
Raschke v Suncorp Metway Insurance Limited [2005] QCA 161; [2005] 2 Qd R 549, cited

COUNSEL:

G R Mullins for the applicant
G W Diehm SC, with A Luchich, for the first respondent
J H Dalton SC, with J E FitzGerald, for the second respondent

SOLICITORS:

Maurice Blackburn Lawyers for the applicant

Flower & Hart Lawyers for the first respondent
Minter Ellison for the second respondent

This is an application made pursuant to s 31(2) of the Limitations of Actions Act 1974 (Qld) (“the Act”) to extend the time within which to institute proceedings for personal injuries to 19 September 2008.

On 19 September 2008 Cathryn McWhae filed a claim for damages alleging that injuries…

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: [2010] QSC 430
Decision Date: 18 November 2010

CaseChat Overview and Summary

McWhae, the applicant, brought an action against Broadbent, the first respondent, and the hospital where she underwent surgery, the second respondent, alleging personal injuries resulting from the surgery. The action was commenced beyond the limitation period, and the applicant sought an extension of the limitation period under s 31(2) of the Limitation of Actions Act 1974. Broadbent opposed the application, arguing that the applicant had knowledge of the material facts of a decisive character more than one year before the proceedings were commenced. The second respondent opposed the application on the basis of prejudice. The court had to decide whether the applicant's knowledge of the material facts was sufficient to deny an extension of the limitation period and whether the prejudice to the respondents outweighed the applicant's reasons for the delay.

The court examined the circumstances in which the applicant became aware of the material facts of a decisive character. It found that the applicant did not have such knowledge until well after the limitation period had expired. The court also considered the prejudice to the respondents if the limitation period was extended. It found that the prejudice was not significant enough to outweigh the applicant's reasons for the delay. The court held that the applicant's knowledge of the material facts did not bar an extension of the limitation period, and the prejudice to the respondents was not sufficient to deny the application.

The court granted the application and extended the limitation period for the commencement of proceedings to 19 September 2008. This allowed the applicant to proceed with her claim for damages for personal injuries against the respondents. The court's decision recognised the importance of providing a fair opportunity for the applicant to pursue her claim while balancing the interests of the respondents.

Orders

Orders of the court

That the time limit for the commencement of proceedings claiming damages for personal injuries by the plaintiff against the first and second defendants be extended to 19 September 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974.

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

Full text does not contain this section.

CITATION:	McWhae v Broadbent & Anor [2010] QSC 430
PARTIES:	McWHAE, Cathryn (applicant/plaintiff) v BROADBENT, Michael Russell Mark (first respondent/first defendant) AND ALLAMANDA PRIVATE HOSPITAL PTY LTD ACN 098 641 564 (second respondent/second defendant)
FILE NO/S:	BS 9319 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	18 November 2010
DELIVERED AT:	Brisbane
HEARING DATE:	6 - 9 April 2010
JUDGE:	Atkinson J
ORDER:	That the time limit for the commencement of proceedings claiming damages for personal injuries by the plaintiff against the first and second defendants be extended to 19 September 2008, pursuant to s 31(2) of the Limitation of Actions Act 1974.
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF PERIOD – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – GENERALLY – where applicant claims that she suffered injuries following surgery performed on her by the first respondent at the second respondent hospital – where applicant commenced proceedings beyond the limitation period – where applicant applies to extend the limitation period for the commencement of proceedings – where application is opposed by the first respondent on the basis that the applicant’s material fact of a decisive character relating to her right of action was within her knowledge or means of knowledge more than one year prior to her commencement of proceedings – where application is opposed by the second respondent on the basis of prejudice – whether the limitation period should be extended Limitations of Actions Act 1974 (Qld), s 11, s 30, s 31 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541, applied Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360, cited Carlowe v Frigmobile P/L [1999] QCA 527, cited Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors [2001] QCA 335, cited Dick v University of Queensland [1999] QCA 474; [2000] 2 Qd R 476, applied HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, cited NF v State of Queensland [2005] QCA 110, applied Queensland v Stephenson [2006] HCA 20; 226 CLR 197, applied Raschke v Suncorp Metway Insurance Limited [2005] QCA 161; [2005] 2 Qd R 549, cited
COUNSEL:	G R Mullins for the applicant G W Diehm SC, with A Luchich, for the first respondent J H Dalton SC, with J E FitzGerald, for the second respondent
SOLICITORS:	Maurice Blackburn Lawyers for the applicant Flower & Hart Lawyers for the first respondent Minter Ellison for the second respondent