Quick v Tyco Australia Pty Limited - [2006] QSC 351

SUPREME COURT OF QUEENSLAND

CITATION:

Quick v Tyco Australia Pty Limited [2006] QSC 351

PARTIES:

GREGORY JOHN QUICK

(Applicant)

AND

TYCO AUSTRALIA PTY LIMITED

(Respondent)

FILE NO/S:

S3 of 2005

DIVISION:

Townsville

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Townsville

DELIVERED ON:

24 November 2006

DELIVERED AT:

Townsville

HEARING DATE:

16 November 2006

JUDGES:

Cullinane J

ORDER:

Application dismissed.

CATCHWORDS:

LIMITATIONS OF ACTION – PERSONAL INJURIES – EXTENSION OF TIME – application for order pursuant to s31 Limitations of Actions Act 1974 that the period of limitation be extended – where the applicant sustained injuries in the course of his employment – whether the applicant can show that the material fact of a decisive nature relied upon was within his means of knowledge prior to the relevant date.

COUNSEL:

Mr M. Drew for the Applicant

Mr A.T. Moon for the Respondent

SOLICITORS:

Ruddy, Tomlins and Baxter, Townsville, for the Applicant

Roberts, Nehmer, McKee for the Respondent

This is an application for an extension of the limitation period under the Limitationof Actions Act 1974 as amended.

The Applicant who was born on 18th September 1969 has instituted proceedings against the Respondent by claim on 6th December 2004. The relevant date then for a consideration of whether the material fact of a decisive nature relied upon was within his knowledge or means of knowledge is 6th December 2003.

There was no argument that the Applicant had not satisfied the requirements of s.31(2)(b) nor was it contended that there was any discretionary considerations which might lead to the refusal of the application if the Applicant otherwise satisfied the requirements of the Act.

The Applicant sustained an injury to his lower back on 16th January 2001 in the course of his employment with the Respondent. He was at that time an electrical trades assistant. He has since undertaken an apprenticeship as an electrician and has qualified. He commenced the apprenticeship some months after the accident.

Following the accident he attempted to see the Respondent's medical practitioner but was unable to do so and instead consulted Dr Hasa at Bluewater. He swears that Dr Hasa told him that he had a muscular injury to his lower back which nothing could be done about and which would in due course resolve. He was told that because of the heavy elements of the work he was doing this might take a significant period.

The Applicant learnt in the first part of 2004 after consulting Dr Jiang and having a CT scan taken that he suffered a disc protrusion at the L5/S1 level which occurred in the accident, the subject of the action.

The Applicant had a little earlier been told by a chiropractor who had arranged for x-rays to be taken that there was narrowing of the disc space in his spine and it was as a result of this that he went to see Dr Jiang.

Between those two dates, 16th January 2001 and 15th April 2004 when he saw Dr Jiang the Applicant had not…

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.

Continue reading Quick v Tyco Australia Pty Limited

Details

AGLC: Quick v Tyco Australia Pty Limited [2006] QSC 351
Case: [2006] QSC 351
Decision Date: 24 November 2006

CaseChat Overview and Summary

Quick, an employee, brought an application against Tyco Australia Pty Limited, his employer, for an extension of time to sue for personal injuries sustained during employment. The application was pursuant to section 31 of the Limitations of Actions Act 1974. The primary dispute was whether Quick could demonstrate that a crucial fact, necessary for his claim, was within his knowledge before the statutory limitation period ended. The Federal Circuit and Family Court of Australia was tasked with resolving this issue.

The court had to determine whether Quick could substantiate that the significant fact underpinning his claim, which was his knowledge of the decisive nature, was available to him before the expiration of the statutory limitation period. This involved examining whether Quick had exercised reasonable diligence to ascertain the existence of the injury and its connection to his employment. Additionally, the court needed to assess whether Quick had a reasonable excuse for not suing within the statutory period, considering all the circumstances.

In reaching its decision, the court found that Quick could not show that the material fact was within his knowledge prior to the limitation period. The court concluded that Quick had not exercised reasonable diligence in discovering the injury and its connection to his employment. As a result, the court held that Quick did not have a reasonable excuse for the delay in suing, and therefore dismissed the application for an extension of time. The court's decision was based on the lack of evidence that Quick had been aware of the decisive fact in time to comply with the statutory limitation period.

The court dismissed Quick's application, finding that he had not met the required standard of reasonable diligence to discover the injury and its connection to his employment. The court's decision underscores the importance of timely action in personal injury claims, particularly in the context of statutory limitations.

Orders

Orders of the court

Application dismissed.

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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CITATION:	Quick v Tyco Australia Pty Limited [2006] QSC 351
PARTIES:	GREGORY JOHN QUICK (Applicant) AND TYCO AUSTRALIA PTY LIMITED (Respondent)
FILE NO/S:	S3 of 2005
DIVISION:	Townsville
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Townsville
DELIVERED ON:	24 November 2006
DELIVERED AT:	Townsville
HEARING DATE:	16 November 2006
JUDGES:	Cullinane J
ORDER:	Application dismissed.
CATCHWORDS:	LIMITATIONS OF ACTION – PERSONAL INJURIES – EXTENSION OF TIME – application for order pursuant to s31 Limitations of Actions Act 1974 that the period of limitation be extended – where the applicant sustained injuries in the course of his employment – whether the applicant can show that the material fact of a decisive nature relied upon was within his means of knowledge prior to the relevant date.
COUNSEL:	Mr M. Drew for the Applicant Mr A.T. Moon for the Respondent
SOLICITORS:	Ruddy, Tomlins and Baxter, Townsville, for the Applicant Roberts, Nehmer, McKee for the Respondent