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Wolverson v Todman

Wolverson v Todman

Case [2015] QCA 74 1 May 2015

Civil Litigation & Procedure

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SUPREME COURT OF QUEENSLAND

CITATION:

Wolverson v Todman; Wolverson v Lisle & Hooper & Ors [2015] QCA 74

PARTIES:

In Appeal No 4576 of 2014:
JULIA KAY WOLVERSON

(appellant)v
DONALD HENRY TODMAN
(respondent)

In Appeal No 4577 of 2014
JULIA KAY WOLVERSON
(appellant)
v
DAVID ANTHONY LISLE
(first respondent)
TIMOTHY ROSS HOOPER
(second respondent)
PAUL THOMAS O’CONNELL
(third respondent)
JOHN CARLYLE MCGUIRE
(fourth respondent)
QUEENSLAND DIAGNOSTIC IMAGING PTY LTD
ACN 070 000 654
(fifth respondent)

FILE NO/S:

Appeal No 4576 of 2014
Appeal No 4577 of 2014
DC No 2770 of 2013
DC No 1552 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA Civil
General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

1 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2014

JUDGES:

In Appeal No 4576 of 2014:
Holmes and Gotterson JJA and McMeekin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

In Appeal No 4577 of 2014:
Separate reasons for judgment of each member of the Court, Holmes and Gotterson JJA concurring as to the orders made, McMeekin J dissenting

ORDERS:

In Appeal No 4576 of 2014:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   The orders made on 17 April 2014 in proceeding No 1552 of 2010 in the District Court be set aside and in lieu thereof, there be orders that:

(a)     The limitation period for the commencement of proceedings by the applicant Julia Kay Wolverson, against the respondent, Donald Henry Todman, be extended so that it expires at the time of closure of the Registry on 27 May 2010;

(b)     The costs of the application for extension of the limitation period be costs in the cause;

(c)     The application filed by the applicant on 21 January 2014 otherwise be dismissed;

(d)     The application filed by the respondent on 7 March be dismissed.

4.   The respondent pay the appellant’s costs of the application for leave to appeal and of the appeal on the standard basis.

In Appeal No 4577 of 2014:

1.   Appeal dismissed.

2.   The appellant pay the respondents’ costs of the application for extension of the limitation period filed in proceeding No 2770 of 2013 in the District Court on the standard basis.

3.   The appellant pay the respondents’ costs of the appeal on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – OTHER MATTERS – where the appellant lodged an application and appeal against an order of the District Court dismissing two applications for an extension of the limitation period under s 31(2) of the Limitation of Actions Act 1974 in respect of separate proceedings for personal injury in the District Court – where the appellant claimed damages for negligence and/or breach of contract against the respondent – where the negligence and/or breach of contract arose in misdiagnosing the appellant’s medical condition as multiple sclerosis, treating her…

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 Wolverson v Todman

Details

AGLC: Wolverson v Todman [2015] QCA 74
Case: [2015] QCA 74
Decision Date: 1 May 2015

CaseChat Overview and Summary

The appeal before the court involved Julia Kay Wolverson, who sought to extend the limitation period for her personal injury claims against Donald Henry Todman and several other respondents. The District Court had dismissed Wolverson's applications for an extension of the limitation period under section 31(2) of the Limitation of Actions Act 1974. The primary dispute was whether Wolverson's claims were time-barred and if the District Court's decision to deny the extension was correct.

The legal issues before the court included the interpretation and application of section 31(2) of the Limitation of Actions Act 1974, specifically whether the District Court had discretion to extend the limitation period, and if so, whether that discretion was exercised appropriately. The court also had to consider the principles of fairness and justice in determining whether an extension should be granted.

The court found that the District Court had indeed exercised its discretion under section 31(2) of the Limitation of Actions Act 1974, but the decision to deny the extension was unreasonable. The court held that the appellant's delay in bringing the proceedings was not inordinate and that there were compelling reasons for the extension, including the appellant's reasonable ignorance of the cause of action and the difficulty in obtaining medical evidence. As a result, the court allowed the appeal against the respondent Todman, set aside the District Court's orders, and granted an extension of the limitation period. In contrast, the appeal against the other respondents was dismissed, and the appellant was ordered to pay their costs.

The court's final orders were that leave to appeal was granted, the appeal against Todman was allowed with the limitation period extended, and costs were awarded to Wolverson for the leave to appeal and the appeal itself. Conversely, the appeal against the other respondents was dismissed, and Wolverson was ordered to pay their costs on the standard basis.

Orders

Orders of the court

In Appeal No 4576 of 2014:

1. Leave to appeal granted.

2. Appeal allowed.

3. The orders made on 17 April 2014 in proceeding No 1552 of 2010 in the District Court be set aside and in lieu thereof, there be orders that:

(a) The limitation period for the commencement of proceedings by the applicant Julia Kay Wolverson, against the respondent, Donald Henry Todman, be extended so that it expires at the time of closure of the Registry on 27 May 2010;

(b) The costs of the application for extension of the limitation period be costs in the cause;

(d) The application filed by the respondent on 7 March be dismissed.

4. The respondent pay the appellant’s costs of the application for leave to appeal and of the appeal on the standard basis.

In Appeal No 4577 of 2014:

1. Appeal dismissed.

2. The appellant pay the respondents’ costs of the application for extension of the limitation period filed in proceeding No 2770 of 2013 in the District Court on the standard basis.

3. The appellant pay the respondents’ costs of the appeal on the standard basis.

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

Wolverson v Todman [2015] QCA 74

Most Recent Citation

Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital) [2022] QCA 189

Cases citing this decision · 7 of 7 shown

Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital)
[2022] QCA 189

…Queensland [2005] QCA 110, cited Wolverson v Todman [2016] 2 Qd R 106; [2015] QCA 74, considered COUNSEL: P J Dunning QC, with R D Green, for the appellant B F Charrington QC for the respondent SOLICITORS: Meneghello Law Pty Ltd for the appellant Corrs Chambers Westgarth Lawyers for the respondent…
Heathcote v Oaky Creek Coal Pty Ltd (No 2)
[2021] QSC 218

…21] QSC 178, cited Wilson v Mackay Hospital and Health Service (No 2) [2021] QSC 214, applied Wolverson v Todman [2016] 2 Qd R 106; [2015] QCA 74, considered COUNSEL: C C Heyworth-Smith QC for the applicant A S Mellick for the respondent SOLICITORS: Macrossan & Amiet Solicitors for the applicant Minter Ellison f…
Heathcote v Oaky Creek Coal Pty Ltd
[2021] QSC 184

…e of Brisbane [2009] QCA 168, cited Opacic v Patane [1997] 1 Qd R 84, cited Wolverson v Todman [2016] 2 Qd R 106; [2015] QCA 74, followed Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431; [1993] QCA 114, cited COUNSEL: C C Heyworth-Smith QC for the applicant A S Mellick for the respondent SOLICITORS: Macrossan &…
Walker v Tucker
[2019] QSC 141 Para 4

…n circumstances where the Court found that deferring the obtaining of the opinions was not reasonable. The same cannot be said of Mr Walker. [45] [2015] QCA 74; (2015) 2 Qd R 106. [46] At [4]-[5] per Holmes JA and at [73]-[75] per Gotterson JA. [47] At [59] per Gotterson JA.…
Lang v McArthur
[2019] QSC 119 Para 15

…evidence, be sufficient to prove his case”. [56] Dwan v Farquhar [1988] 1 Qd R 234. [57] (1994) 2 Qd R 431 at 434-435; adopted by Gotterson JA in Wolverson v Todman (2015) 2 Qd R 106 at [32].…
Beer v State of Queensland
[2016] QDC 14

…te L [1988] 1 Qd R 706 – cited. TB v State of New South Wales [2015] NSWSC 575 – considered. Wolverson v Todman [2015] QCA 74 – cited. Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 – applied. COUNSEL: R A I Myers for the plaintiff. D J Kelly for the defendant. SOLICITORS: Shine Lawyers for the plaintiff. Crow…
Milling v Fraser Coast Regional Council
[2015] QDC 291

…r Queensland [2011] QSC 197 – followed. Watters v Queensland Rail [2001] 1 Qd R 448 – cited. Wolverson v Todman [2015] QCA 74 – cited. Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 – applied. COUNSEL: H Blattman for the applicant R C Morton for the respondent SOLICITORS: Shine Lawyers for the applicant Jensen…

View all 7 citing cases →

Cases cited in this decision · 10 of 10 shown

NF v State of Queensland
[2005] QCA 110 Para 1

…aken on her behalf between the discovery of the Chiari Type 1 malformation in April 2009 and the critical date. In that period Ms Wolverson: [101][2005] QCA 110, at [29].…
Fox v Percy
[2003] HCA 22

…238, considered Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190, considered Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, considered Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419, considered NF v State of Queensland [2005] QCA 110, considered Nicolia v Commissioner for Railways (NSW) (1970)…
Seltsam Pty Ltd v McGuiness
[2000] NSWCA 29

…idered Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17, considered EMI Australia Ltd v Bes [1970] 2 NSWR 238, considered Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190, considered Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, considered Neilson v Peters Ship Repair Pty Ltd […
Dick v University of Queensland
[1999] QCA 474

…5, cited Castlemaine Perkins Limited v McPhee [1979] Qd R 469, cited Dick v University of Queensland [2000] 2 Qd R 476; [1999] QCA 474, considered Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17, considered EMI Australia Ltd v Bes [1970] 2 NSWR 238, considered Fernandez v Tubemakers of Austr…
Brisbane South Regional Health Authority v Taylor
[1996] HCA 25

…edure Rules 1999 (Qld), r 280, r 280(1), r 280(2) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited Castlemaine Perkins Limited v McPhee [1979] Qd R 469, cited Dick v University of Queensland [2000] 2 Qd R 476; [1999] QCA 474, considered Do Carmo v Ford Excavations Pty Lt…
Reeves v Thomas Borthwick & Sons (Australia) Pty Ltd
[1995] QCA 339 Para 1

…ficiency of proof, of itself, meant that the applications for extension of the limitation period could not succeed, in his Honour’s view.[35] [33][1995] QCA 339 at [7]-[11]. [34]Reasons [47]. [35]Reasons [48].…
Wood v Glaxo Australia Pty Ltd
[1993] QCA 114

…, considered Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, cited Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431; [1993] QCA 114, considered COUNSEL: K Fleming QC, with R King-Scott, for the appellant G Diehm QC, with M Zerner, for the respondent in Appeal No 4576 of 2014 and for the second respondent in Ap…
Do Carmo v Ford Excavations Pty Ltd
[1984] HCA 17

…s Limited v McPhee [1979] Qd R 469, cited Dick v University of Queensland [2000] 2 Qd R 476; [1999] QCA 474, considered Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; [1984] HCA 17, considered EMI Australia Ltd v Bes [1970] 2 NSWR 238, considered Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190, considered Fox v Percy (20…
Warren v Coombes
[1979] HCA 9

…s of Australia (Ltd) v Fernandez (1976) 50 ALJR 720; (1976) 10 ALR 303, considered Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, cited Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431; [1993] QCA 114, considered COUNSEL: K Fleming QC, with R King-Scott, for the appellant G Diehm QC, with M Zerner, for the…
Ramsay v Watson
[1961] HCA 65

…110, considered Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465, cited Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65, cited Reeves v Thomas Borthwick & Sons (Australia) Pty Ltd [1995] QCA 339, considered Tubemakers of Australia (Ltd) v Fernandez (1976) 50 ALJR 720; (1976) 10 ALR 303, considered…

Legislation cited in this decision · 5

District Court of Queensland Act 1967 (Qld)
118(2) 2 mentions (from Para 1)
Health Quality and Complaints Commission Act 2006 (Qld)
79 2 mentions (from Para 1)
Limitation of Actions Act 1974 (Qld)
11(1) 2 mentions (from Para 1)
Personal Injuries Proceedings Act 2002 (Qld)
43 2 mentions (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
280 2 mentions (from Para 1)

CITATION:	Wolverson v Todman; Wolverson v Lisle & Hooper & Ors [2015] QCA 74
PARTIES:	In Appeal No 4576 of 2014: JULIA KAY WOLVERSON (appellant)v DONALD HENRY TODMAN (respondent) In Appeal No 4577 of 2014 JULIA KAY WOLVERSON (appellant) v DAVID ANTHONY LISLE (first respondent) TIMOTHY ROSS HOOPER (second respondent) PAUL THOMAS O’CONNELL (third respondent) JOHN CARLYLE MCGUIRE (fourth respondent) QUEENSLAND DIAGNOSTIC IMAGING PTY LTD ACN 070 000 654 (fifth respondent)
FILE NO/S:	Appeal No 4576 of 2014 Appeal No 4577 of 2014 DC No 2770 of 2013 DC No 1552 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA Civil General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	1 May 2015
DELIVERED AT:	Brisbane
HEARING DATE:	3 November 2014
JUDGES:	In Appeal No 4576 of 2014: Holmes and Gotterson JJA and McMeekin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made In Appeal No 4577 of 2014: Separate reasons for judgment of each member of the Court, Holmes and Gotterson JJA concurring as to the orders made, McMeekin J dissenting
ORDERS:	In Appeal No 4576 of 2014: 1. Leave to appeal granted. 2. Appeal allowed. 3. The orders made on 17 April 2014 in proceeding No 1552 of 2010 in the District Court be set aside and in lieu thereof, there be orders that: (a) The limitation period for the commencement of proceedings by the applicant Julia Kay Wolverson, against the respondent, Donald Henry Todman, be extended so that it expires at the time of closure of the Registry on 27 May 2010; (b) The costs of the application for extension of the limitation period be costs in the cause; (c) The application filed by the applicant on 21 January 2014 otherwise be dismissed; (d) The application filed by the respondent on 7 March be dismissed. 4. The respondent pay the appellant’s costs of the application for leave to appeal and of the appeal on the standard basis. In Appeal No 4577 of 2014: 1. Appeal dismissed. 2. The appellant pay the respondents’ costs of the application for extension of the limitation period filed in proceeding No 2770 of 2013 in the District Court on the standard basis. 3. The appellant pay the respondents’ costs of the appeal on the standard basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – OTHER MATTERS – where the appellant lodged an application and appeal against an order of the District Court dismissing two applications for an extension of the limitation period under s 31(2) of the Limitation of Actions Act 1974 in respect of separate proceedings for personal injury in the District Court – where the appellant claimed damages for negligence and/or breach of contract against the respondent – where the negligence and/or breach of contract arose in misdiagnosing the appellant’s medical condition as multiple sclerosis, treating her…