Separate reasons for judgment of each member of the Court; each concurring as to the orders made.
APPLICATION FOR LEAVE TO APPEAL GRANTED. APPEAL DISMISSED WITH
COSTS.
CATCHWORDS:
CIVIL PROCEDURE - Section 31 Limitation of Actions Act1974 - extension of time to bring negligence action - whether appellant had means of knowledge at a material time of a material fact of a decisive nature - whether sufficient pain and suffering prior to expiry of limitation period to indicate seriousness of the injury - statement of appropriate test (para 16) - observations on difficulty of appellate interference with findings in such cases (paras 20-21).
of s. 31(2)(a), to which it is complementary. But the general intention of these provisions is perhaps
clear enough. Section 30(b) provides tests for answering the question: by what date should ". . . a reasonable man, appropriately advised . . . have brought [an] action on the facts already in his
possession . . ." (Sugden v. Crawford [1989] 1 Qd.R. 683 at 685); call that date D1. Then s. 31(2)
must be applied; so that the application cannot succeed unless D1 falls on or after the day which begins
the last year of the period of limitation of an action to recover damages for the injury; call that date D2.
The plaintiff’s application may be granted if D1 is later than…
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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AGLC
Pizer v Ansett Australia Ltd [1998] QCA 298
Case
[1998] QCA 298
Decision Date
CaseChat Overview and Summary
The matter before the court involved the appellant, Pizer, suing Ansett Australia Ltd for negligence. The appellant sought an extension of time to bring his negligence action under Section 31 of the Limitation of Actions Act 1974. The appellant alleged that he did not have the means of knowledge of a material fact of a decisive nature at a material time, and that his pain and suffering prior to the expiry of the limitation period was sufficient to indicate the seriousness of his injury. The case was heard in the Court of Appeal.
The central legal issue before the court was whether the appellant had the means of knowledge of a material fact of a decisive nature at a material time. The court also had to consider whether the appellant's pain and suffering prior to the expiry of the limitation period was sufficient to indicate the seriousness of his injury. The appellant argued that he did not have the means of knowledge of a material fact of a decisive nature at a material time, and that his pain and suffering prior to the expiry of the limitation period was sufficient to indicate the seriousness of his injury. The respondent, Ansett Australia Ltd, argued that the appellant had the means of knowledge of a material fact of a decisive nature at a material time, and that his pain and suffering prior to the expiry of the limitation period was not sufficient to indicate the seriousness of his injury.
The court found that the appellant had the means of knowledge of a material fact of a decisive nature at a material time. The court held that the appellant's pain and suffering prior to the expiry of the limitation period was not sufficient to indicate the seriousness of his injury. The court stated that the appropriate test for determining whether the appellant had the means of knowledge of a material fact of a decisive nature at a material time is whether the appellant had knowledge of the fact or whether the fact was such that it could be inferred that the appellant had knowledge of the fact. The court also observed that it is difficult for appellate courts to interfere with findings in such cases. The court found that the appellant had the means of knowledge of a material fact of a decisive nature at a material time, and that his pain and suffering prior to the expiry of the limitation period was not sufficient to indicate the seriousness of his injury.
The court dismissed the appeal and held that the appellant's claim was statute-barred. The court found that the appellant had the means of knowledge of a material fact of a decisive nature at a material time, and that his pain and suffering prior to the expiry of the limitation period was not sufficient to indicate the seriousness of his injury. The court held that the appellant's claim was statute-barred and dismissed the appeal.