DISTRICT COURT OF QUEENSLAND
CITATION:
Switzer v Qantas Airways Limited [2011] QDC 52
PARTIES:
JASON TROY SWITZER
(Applicant/Plaintiff)
v
QANTAS AIRWAYS LIMITED
(Respondent/Defendant)
FILE NO/S:
BD 249/11
DIVISION:
Civil
PROCEEDING:
Application to extend limitation period
ORIGINATING COURT:
District Court Brisbane
DELIVERED ON:
21 April 2011
DELIVERED AT:
Brisbane
HEARING DATE:
6 April 2011
JUDGE:
Dorney QC DCJ
ORDER:
1. That the period of limitation for the proceeding be extended so it expires on 10 February 2010.
2. Reserve the issue of costs, subject to submissions.
CATCHWORDS:
Limitation of actions – where initial specialist advice negates causal relationship – when increasing symptoms should have initiated reasonable inquiry, for particular applicant, where sole medical recourse for advice had been to work-based general medical practitioners – whether different medical specialist advice given too late to justify successful application
Limitation of Actions Act 1974, s 30, s 31, s 32
Workers’ Compensation and Rehabilitation Act 2003, s 276, s 302(1)(a)(ii)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Castillon v P&O Ports Ltd(No. 2) [2008] 2 Qd R 219
Hertess v Adams [2011] QCA 73
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110
Weeks v Pioneer Building Products(Qld) Pty Ltd [2003] QSC 024
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431COUNSEL:
B Charrington for the Applicant
M O’Sullivan for the Respondent
SOLICITORS:
Maurice Blackburn Lawyers for the Applicant
HWL Ebsworth Lawyers for the Respondent
Introduction
By application filed 10 February 2011 the applicant/plaintiff seeks that the court make orders that, pursuant to s 31(2) of the Limitation of Actions Act 1974 (the Act), the limitation period for the proceeding in question be extended until 10 February 2010, as well as such further or other orders as the court deems appropriate, including costs. The extension sought is in relation to a claim for damages for personal injuries arising out of the applicant’s employment with the respondent/defendant concerning an incident that is alleged to have occurred on 17 January 2006.
The applicant and his instructing solicitor both swore affidavits (the latter deposing twice). Further, the respondent sought, and was granted, leave to cross-examine the applicant. In its case, the respondent relied upon an affidavit of a solicitor in the employ of the solicitor for the defendant. The deponent was Kyle John Norton.
The Claim and Statement of Claim were filed 28 January 2011. The solicitors’ affidavits exhibited relevant claims, letters and medical reports.
Issues
While the applicant’s examination of the issues ranged much wider, the respondent’s primary approach was to identify the “critical question” as being: whether or not the applicant was in “possession” of a “critical mass of information” more than one year “prior to” 10 February 2010. That question relied upon an examination of the use of that term in Castillon v P&O Ports Ltd(No. 2) [2008] 2 Qd R 219, particularly in the decision of Keane JA, with whom Holmes JA and…
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- Case
- [2011] QDC 52
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the plaintiff's claim was time-barred by the limitation period. The plaintiff had consulted only general practitioners at work for medical advice, and it was not until much later that he sought specialist advice. The court had to determine if the plaintiff's increasing symptoms should have triggered an earlier inquiry into the causal relationship between his disability and his employment. Furthermore, the court needed to consider if the later specialist advice could justify the delay in filing the claim.
The court held that the plaintiff's initial reliance on general practitioners for medical advice was reasonable, given the circumstances of his employment. However, as his symptoms progressed, a reasonable person in his position should have sought specialist advice. The court concluded that the plaintiff's increasing symptoms should have prompted a more diligent inquiry, and that the specialist advice obtained later was insufficient to justify the delay. Nonetheless, the court found that the plaintiff's claim was not entirely time-barred and ordered an extension of the limitation period, allowing the plaintiff to proceed with his claim.
The final orders of the court were to extend the limitation period for the proceeding to expire on 10 February 2010 and to reserve the issue of costs, subject to further submissions from the parties.
Orders
Orders of the court
1. That the period of limitation for the proceeding be extended so it expires on 10 February 2010.
2. Reserve the issue of costs, subject to submissions.
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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