Van der Merwe v Arnott's Biscuits Limited - [2010] QSC 145

SUPREME COURT OF QUEENSLAND

CITATION:

Van der Merwe v Arnott’s Biscuits Limited [2010] QSC 145

PARTIES:

CAROL VAN DER MERWE
(plaintiff)
v
ARNOTT'S BISCUITS LIMITED
ACN 008 435 729
(defendant)

FILE NO/S:

BS 4938 of 2008

DIVISION:

Trial

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

28 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

27 April 2010

JUDGE:

Daubney J

ORDER:

That the limitation period for this proceeding against the first defendant and the second defendant for damages for personal injuries sustained on 19 October 2001 be extended to 29 May 2008;

The plaintiff’s costs of and incidental to this application be costs in the cause as against the first defendant;

No order as to costs against the second defendant.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – GENERALLY – where plaintiff has applied under section 31 of the Limitations of Actions Act for the limitation period relating to her claim for damages to be extended – where the plaintiff was employed as a laundry processor since early 2000 and was injured on 19 October 2001, allegedly removing a load of heavy workman’s overalls from an industrial washing machine – where she initially consulted her general practitioner who diagnosed her as suffering from sciatica – where the plaintiff lodge a claim for Workers Compensation which was accepted for the period
23 October 2001 to 22 January 2002 –where the plaintiff consulted a neurosurgeon who advised she did not need any neurosurgical intervention and said words to the effect “there’s nothing wrong with you” – where the neurosurgeon provided advice that the medical condition was not attributable to an aggravation of a pre-existing condition – where the plaintiff continued to suffer back pain – where the plaintiff was referred to another consultant neurosurgeon on 29 May 2007 who advised she undergo surgery and advised that the condition related back to the first incident in 2001 – where the applicant first consulted solicitors regarding a potential claim for damages in October 2007 – whether in all the circumstances, the limitation period should be extended

Limitation of Actions Act (1974) Qld, s30, s31

Baillie v Kreber [2010] QSC 52, cited
Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541, cited
Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, applied
Muir v Franklins Limited [2001] QCA 173, cited
NF v State of Queensland [2005] QCA 110, cited
Watters v Queensland Rail [2000] QCA 51, cited

COUNSEL:

G O’Driscoll for the plaintiff
ST Farrell for the first defendant
R Whiteford for the second defendant

SOLICITORS:

Murphy Schmidt Lawyers for the plaintiff
Bray Lawyers for the first defendant
McCullough Robertson Lawyers for the second defendant

HIS HONOUR: The plaintiff in this proceeding has applied

under section 31 of the Limitation of Actions Act 1974 ("LAA")

for the limitation period relating to her claim for damages

said to have been sustained on…

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 145
Decision Date: 28 April 2010

CaseChat Overview and Summary

The case of Van der Merwe v Arnott’s Biscuits Limited involves the plaintiff, who was employed as a laundry processor, seeking an extension of the limitation period for her claim for damages resulting from an injury sustained at work. The plaintiff was allegedly injured on 19 October 2001 while removing a load of heavy workman's overalls from an industrial washing machine. Initially, she consulted her general practitioner who diagnosed her with sciatica. After lodging a claim for Workers Compensation which was accepted, she subsequently consulted a neurosurgeon who provided a conflicting diagnosis, stating that there was nothing wrong with her and that her condition was not attributable to an aggravation of a pre-existing condition. Despite this, the plaintiff continued to suffer from back pain and was eventually referred to another consultant neurosurgeon in May 2007, who diagnosed her condition and recommended surgery, linking it back to the 2001 incident. The plaintiff first consulted solicitors regarding a potential claim in October 2007.

The central legal issue before the court was whether the limitation period for the plaintiff’s claim should be extended. The plaintiff applied under section 31 of the Limitations of Actions Act for the limitation period to be extended, arguing that she was not aware of the full extent of her injury until the second neurosurgeon's diagnosis in May 2007. The court had to consider whether the circumstances warranted an extension of the limitation period, taking into account the conflicting medical advice and the plaintiff's lack of knowledge regarding the full extent of her injury.

The court held that the limitation period should be extended to 29 May 2008, the date on which the plaintiff first consulted the second neurosurgeon. The court reasoned that the plaintiff was not aware of the full extent of her injury until this point and, as such, could not be expected to commence proceedings within the standard limitation period. The court found that the conflicting medical advice and the plaintiff’s ongoing symptoms warranted an extension of the limitation period. Additionally, the court awarded the plaintiff’s costs of and incidental to this application against the first defendant, with no order as to costs against the second defendant.

In summary, the court granted the plaintiff's application for an extension of the limitation period and ordered that the period be extended to 29 May 2008. The plaintiff’s costs of and incidental to the application were awarded against the first defendant, with no order as to costs against the second defendant.

Orders

Orders of the court

1. That the limitation period for this proceeding against the first defendant and the second defendant for damages for personal injuries sustained on 19 October 2001 be extended to 29 May 2008;

2. The plaintiff’s costs of and incidental to this application be costs in the cause as against the first defendant;

3. No order as to costs against the second defendant.

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:	Van der Merwe v Arnott’s Biscuits Limited [2010] QSC 145
PARTIES:	CAROL VAN DER MERWE (plaintiff) v ARNOTT'S BISCUITS LIMITED ACN 008 435 729 (defendant)
FILE NO/S:	BS 4938 of 2008
DIVISION:	Trial
PROCEEDING:	Hearing
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	28 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	27 April 2010
JUDGE:	Daubney J
ORDER:	That the limitation period for this proceeding against the first defendant and the second defendant for damages for personal injuries sustained on 19 October 2001 be extended to 29 May 2008; The plaintiff’s costs of and incidental to this application be costs in the cause as against the first defendant; No order as to costs against the second defendant.
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – GENERALLY – where plaintiff has applied under section 31 of the Limitations of Actions Act for the limitation period relating to her claim for damages to be extended – where the plaintiff was employed as a laundry processor since early 2000 and was injured on 19 October 2001, allegedly removing a load of heavy workman’s overalls from an industrial washing machine – where she initially consulted her general practitioner who diagnosed her as suffering from sciatica – where the plaintiff lodge a claim for Workers Compensation which was accepted for the period 23 October 2001 to 22 January 2002 –where the plaintiff consulted a neurosurgeon who advised she did not need any neurosurgical intervention and said words to the effect “there’s nothing wrong with you” – where the neurosurgeon provided advice that the medical condition was not attributable to an aggravation of a pre-existing condition – where the plaintiff continued to suffer back pain – where the plaintiff was referred to another consultant neurosurgeon on 29 May 2007 who advised she undergo surgery and advised that the condition related back to the first incident in 2001 – where the applicant first consulted solicitors regarding a potential claim for damages in October 2007 – whether in all the circumstances, the limitation period should be extended Limitation of Actions Act (1974) Qld, s30, s31 Baillie v Kreber [2010] QSC 52, cited Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541, cited Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, applied Muir v Franklins Limited [2001] QCA 173, cited NF v State of Queensland [2005] QCA 110, cited Watters v Queensland Rail [2000] QCA 51, cited
COUNSEL:	G O’Driscoll for the plaintiff ST Farrell for the first defendant R Whiteford for the second defendant
SOLICITORS:	Murphy Schmidt Lawyers for the plaintiff Bray Lawyers for the first defendant McCullough Robertson Lawyers for the second defendant