Limitation of Actions – Limitations of particular actions – Simple contracts, quasi contracts and torts – Tort actions involving personal injuries – Actions for damages in respect of personal injuries to be brought within three years from date of discoverability – Finding that plaintiff did not have actual or constructive knowledge that injuries were sufficiently significant to warrant bringing proceedings – Plaintiff's solicitor wrote letter to statutory insurer indicating had instructions to make a claim for damages – Implications for whether the plaintiff had actual knowledge at that time – Significance of letter when no medical or legal evaluation of injuries – Whether a finding that letter written on instructions was mandated – Whether an inference was open that the plaintiff and his solicitor were at "cross purposes" – Inferences to be drawn from the plaintiff's failure to call his solicitor on the trial – Significance of absence of evidence from the plaintiff as to when actual knowledge was acquired.

Limitation Act 1974 (Tas), ss 2(1)(c), 5A(3)(a).
Civil Liability Act 2002 (Tas), s 27

Allianz Australia Insurance Limited v Mercer [2016] TASFC 2, followed.
Jones v Dunkel (1959) 101 CLR 298; HML v The Queen (2008) 235 CLR 334, referred to.
Aust Dig Limitation of Actions [1024]

REPRESENTATION:

Counsel:
             Appellant:  Mr K Read SC
             Respondent:  Mr B McTaggart SC
Solicitors:
             Appellant:  Dobson Mitchell Allport
             Respondent:  Wallace Wilkinson & Webster

Judgment Number: [2017] TASFC 1
Number of paragraphs: 76

Serial No 1/2017
File No 970/2016

NATASHA RHODES v CRAIG ANDREW O'NEILL

REASONS FOR JUDGMENT FULL COURT

WOOD J
ESTCOURT J (Dissenting)
BRETT J
20 January 2017

Order of the Court

Appeal dismissed.

Serial No 1/2017
File No 970/2016

NATASHA RHODES v CRAIG ANDREW O'NEILL

REASONS FOR JUDGMENT FULL COURT

WOOD J
20 January 2017

I have had the advantage of reading the reasons of Estcourt and Brett JJ. I agree with the conclusion reached by Brett J that none of the grounds of appeal have been made out. I agree substantially with his Honour's comprehensive reasons. I wish to mention a slight departure from his Honour's reasoning regarding the approach to be taken to par (c) of the definition of "date of discoverability" in the Limitation Act 1974, s 2(1), and also make some brief comments of my own regarding par (c) and grounds 1 and 3.
In terms of actual knowledge and the approach to be taken, his Honour refers to a dual consideration by the Court, the second aspect involving an assessment on an objective basis. I would rather emphasise a matter which I expect leads to the same result. Both…

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 Rhodes v O'Neill

Details

AGLC: Rhodes v O'Neill [2017] TASFC 1
Case: [2017] TASFC 1
Decision Date: 20 January 2017

CaseChat Overview and Summary

Rhodes v O'Neill concerned an appeal to the Court of Appeal of Queensland concerning the application of the limitation period for personal injury claims. The appellant, Rhodes, sought to bring an action for damages for personal injuries against the respondent, O'Neill. The central dispute revolved around whether Rhodes' claim was out of time, specifically whether he had the requisite knowledge of his injuries to trigger the three-year limitation period.

The Court of Appeal was required to determine whether the primary judge erred in finding that Rhodes' claim was statute-barred. This involved considering whether Rhodes possessed actual or constructive knowledge that his injuries were sufficiently significant to warrant bringing proceedings within the relevant timeframe. Key to this determination was the significance of a letter written by Rhodes' solicitor to the statutory insurer, indicating instructions to make a claim, and whether this letter implied actual knowledge at that time, particularly in the absence of a medical or legal evaluation of the injuries. The court also had to consider whether an inference of "cross purposes" between Rhodes and his solicitor was open, and the implications of Rhodes' failure to call his solicitor as a witness at trial.

The Court of Appeal upheld the primary judge's decision, finding that the evidence did not mandate a conclusion that Rhodes had actual knowledge of the significance of his injuries at the time the letter was written. The court reasoned that the letter, written on instructions, did not necessarily equate to Rhodes having a full understanding of the extent of his injuries or their potential to found a legal claim. The absence of evidence from Rhodes regarding when he acquired actual knowledge, and the failure to call his solicitor, meant that the inferences drawn by the primary judge were open and supported by the available evidence.

Consequently, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

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.

Citations

AGLC Citation

Rhodes v O'Neill [2017] TASFC 1

Most Recent Citation

AB v Rathjen [2025] TASSC 30

Cases citing this decision · 1 of 1 shown

AB v Rathjen
[2025] TASSC 30

…Cases: Rhodes v O'Neill (2017) 28 Tas R 379 Allianz Australia Insurance Limited v Mercer (2016) 29 Tas R 121 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

Robinson Helicopter Co Inc v McDermott
[2016] HCA 22 Para 11

…In Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, French CJ, Bell, Keane, Nettle and Gordon JJ said at [43]: "The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is…
O'Neill v Rhodes
[2016] TASSC 17 Para 1

…This is an appeal from the decision of Porter J of 30 March 2016 in O'Neill v Rhodes [2016] TASSC 17.…
Allianz Australia Insurance Limited v Mercer
[2016] TASFC 2 Para 3

…to take into account a statutory threshold, such as that found in s 27 of the Civil Liability Act 2002: Allianz Australia Insurance Limited v Mercer [2016] TASFC 2 per Porter J at [84]–[86].The analysis of the law by Porter J in Mercer highlights that the question is answered on a case by case approach. In Merce…
Kuhl v Zurich Financial Services Australia Ltd
[2011] HCA 11 Para 9

…r inferring facts which were unfavourable to the respondent's case. See Brandi v Mingot (1976) 12 ALR 551 at 559 and Kuhl v Zurich Financial Services [2011] HCA 11, 243 CLR 361 at [384]. In HML v The Queen [2008] HCA 16, 235 CLR 334, Heydon J said at [303]: "In civil cases the unexplained failure of a party to g…
Harris v Woolworths Ltd
[2010] NSWSC 25 Para 3

…certain circumstances" the knowledge referred to in par (c) will involve legal and medical information and evaluation: [84]. In Harris v Woolworths [2010] NSWSC 25, R A Hulme J stated at 182: "But the degree to which matters within such expertise [legal and medical] need to be known with precision will depend upon…
HML v The Queen
[2008] HCA 16

…Allianz Australia Insurance Limited v Mercer [2016] TASFC 2, followed. Jones v Dunkel (1959) 101 CLR 298; HML v The Queen (2008) 235 CLR 334, referred to. Aust Dig Limitation of Actions [1024]…
Macedonian Orthodox Community Church St Petka Inc v Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand
[2006] NSWCA 160 Para 14

…hat communication: see Macedonian Orthodox Community Church St Petka Inc v Diocesan Bishop of Macedonian Orthodox Church of Australia and New Zealand [2006] NSWCA 160, per Hodgson JA at [59], and Div 1 of Pt 10 of the Evidence Act 2002. In my view the learned trial judge should, on the basis of Jones v Dunkel (1959…
Fox v Percy
[2003] HCA 22 Para 12

…must be given appropriate weight by an appellate court, whilst not shrinking from its obligation to conduct "a real review of the trial": Fox v Percy [2003] HCA 22, 214 CLR 118 at [25]. In Fox, the majority explained the advantage of the trial judge and its proper role in the process of appellate review as follo…
Dyers v The Queen
[2002] HCA 45 Para 9

…an inference arising from the evidence of the opposing party to be more confidently drawn Azzopardi v The Queen (2001) 205 CLR 50; Dyers v The Queen (2002) 210 CLR 285."…
Azzopardi v the Queen
[2001] HCA 25 Para 9

…equence is that the failure can cause an inference arising from the evidence of the opposing party to be more confidently drawn Azzopardi v The Queen (2001) 205 CLR 50; Dyers v The Queen (2002) 210 CLR 285."…
Louth v Diprose
[1992] HCA 61 Para 12

…In Louth v Diprose (1992) 175 CLR 621 at 639 to 640, Dawson, Gaudron and McHugh JJ had observed in their joint reasons that the trial judge's finding turned not so much on an assessment of credibility as on the assessment of character . Their Honours said that it is precisely because different people may come to diff…
Jones v Dunkel
[1959] HCA 9 Para 3

…bmits that I should draw the inference as 'the only inference that can be drawn', that Mr Barclay's evidence would not have assisted the plaintiff: Jones v Dunkel (1959) 101 CLR 298. 25 The plaintiff relies on his evidence about his state of knowledge and of the nature of the conversation with Mr Barclay. The plaintiff…
Jones v Dunkel
[1959] HCA 8 Para 3

…ould draw the inference as 'the only inference that can be drawn', that Mr Barclay's evidence would not have assisted the plaintiff: Jones v Dunkel (1959) 101 CLR 298. 25 The plaintiff relies on his evidence about his state of knowledge and of the nature of the conversation with Mr Barclay. The plaintiff says that kn…

Legislation cited in this decision · 4

Limitation Act 1974 (TAS)
2(1), 2(1)(c), 5A(3)(a) 4 mentions (from Para 1)
Civil Liability Act 2002 (TAS)
27 2 mentions (from Para 3)
Evidence Act 2002 (NZ)
1 mention (from Para 14)
Fatal Accidents Act 1934 (TAS)
1 mention (from Para 4)