Morrison v Broadbent - [2010] QSC 429

SUPREME COURT OF QUEENSLAND

CITATION:

Morrison v Broadbent & Anor [2010] QSC 429

PARTIES:

MORRISON, Carolyn Deanne
(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 9318 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 defendant 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 not opposed by the first respondent – 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
HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, cited
Queensland v Stephenson [2006] HCA 20; 226 CLR 197, cited
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 Carolyn Morrison (née Brough) filed a claim for damages alleging that injuries that arose following her undergoing surgery were caused or contributed to by the negligence and breach of contract of the first defendant, Dr Russell Broadbent, and the second defendant, the Allamanda Private Hospital (“the hospital”).

However, s 11(1) of the Act precludes the bringing of an action for damages for personal injury due to negligence after the expiration 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: [2010] QSC 429
Decision Date: 18 November 2010

CaseChat Overview and Summary

Morrison, the plaintiff, brought an action against Broadbent, the first defendant, and his employer, the second defendant, a hospital. The plaintiff alleged that she suffered injuries following a surgery performed by the first defendant at the second defendant hospital. The plaintiff commenced proceedings beyond the statutory limitation period. The plaintiff applied for an extension of the limitation period under section 31(2) of the Limitation of Actions Act 1974. The first defendant did not oppose the application, but the second defendant opposed the application on the basis of prejudice.

The court had to decide whether the limitation period for the commencement of proceedings should be extended. The plaintiff claimed that she did not know of the material facts of a decisive character until after the limitation period had expired, and that the delay in commencing the proceedings was not attributable to her. The court had to consider whether the plaintiff had acted with reasonable diligence in ascertaining the material facts and whether the delay in commencing the proceedings caused any prejudice to the defendants.

The court found that the plaintiff did not know of the material facts until after the limitation period had expired and that the delay in commencing the proceedings was not attributable to her. The court found that the plaintiff had acted with reasonable diligence in ascertaining the material facts and that the delay in commencing the proceedings did not cause any prejudice to the defendants. The court extended the limitation period for the commencement of proceedings by the plaintiff against the first defendant to 19 September 2008.

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 defendant 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:	Morrison v Broadbent & Anor [2010] QSC 429
PARTIES:	MORRISON, Carolyn Deanne (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 9318 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 defendant 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 not opposed by the first respondent – 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 HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, cited Queensland v Stephenson [2006] HCA 20; 226 CLR 197, cited 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