Australia: Refusal to extend time limitation period. Plaintiff's claim dismissed.

Curwoods Case Note
Last Updated: 28 September 2011
Article by Andrew Parker

Judgment date: 23 September 2011. Hargans v Kemenes & Anor [2011] QCA 251. Queensland Court of Appeal1

In Brief

  • The mere realisation of a prediction previously made, in terms of the significance of an injury, will not be a sufficient basis to extend the limitation period under s 31 of the Limitation of Actions Act 1974 (Qld) (the Act).
  • An appellate court will only disturb a primary judge's findings in relation to an application to extend time under the Act, where it can be shown there is an error of law or fact, or the judge's discretion miscarried.


The plaintiff sustained significant injuries to her spine and bowel in a motor vehicle accident that occurred on 5 June 2004.

At the time of the accident the plaintiff was 16 years of age. As such, as the plaintiff was not an adult, the limitation period did not expire until 3 years after her 18th birthday.2 Accordingly, prima facie, the plaintiff was required to commence proceedings by 9 April 2009.

However, the plaintiff did not in fact commence her claim until 7 October 2010. Shortly thereafter the plaintiff moved the court to extend the limitation period pursuant to s 31 of the Act.

The basis for the extension, the plaintiff said, was that she did not realise the significance of her spinal condition until 15 October 2009, when she was undertaking a drama rehearsal whilst attending University. She said it was at this time that she realised the injuries she had sustained were likely to impact on her earning capacity in her chosen career.

Legislative Framework

Sections 30 and 31 are relevant to applications to extend limitation periods for personal injury matters.

Section 31 of the Act relevantly provides:

"(2) Where an application to a court by a person claiming to have a right of action to which this section applies, it appears to the court –

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until the date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly."

(Our emphasis)

Section 30 relevantly provides:

"(1) (b) Material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing –

i. that an action on the right of action would (apart from the effect of the expiration of the period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

ii. that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action;

(c) A fact is not within the means of knowledge of a person at a particular time if, but only if –

i. the person does not know the fact at the time; and

ii. as far as the fact is able to be found out by the person – the person has taken all reasonable steps to find out the fact before that time."

(Our emphasis)

Decision at First Instance

At first instance, the trial judge found against the plaintiff and refused to extend the limitation period.

The primary judge surmised the applicable legal test as follows:

"It is clear that material facts will be of a decisive character if a reasonable person knowing those facts and taking appropriate advice would regard the facts as showing that the right of action has a reasonable prospect of success resulting in an award of damages sufficient to justify the action and that the person ought to bring such an action..."3

In refusing the application, the primary judge considered the following factors, amongst others, as being relevant:

  1. The plaintiff knew the defendant was at fault and that liability would not be in issue given she was a passenger.
  2. The plaintiff's injuries were obviously significant. To that end, her Honour considered the fact the plaintiff was hospitalised for nearly 3 weeks as significant, as was the fact the plaintiff was required to wear a body cast for a further 3 months.
  3. The plaintiff knew, at least from the time of discharge from hospital, that she would be prevented from carrying out a wide range of activities, given the doctor's advice that she should consider a 'desk job'.
  4. As a flow on from the above, the plaintiff "must have been aware" that her injuries would preclude her from engaging in a range of physical careers.

In substance, the trial judge concluded that rather than the 'flare up' in October 2009 being 'decisive', it was in fact "the realisation of the prediction that had been made to her in 2004 that she could not undertake unduly strenuous and physical activities".

Further, given the knowledge that the plaintiff was aware of the above facts by at least early 2007, it was not reasonable for her to take no further action, or seek advice for over 5 years.

Issues on Appeal

The primary submission by the plaintiff on appeal was that the trial judge essentially placed too much emphasis on a comment made by a doctor in 2004. The plaintiff, moreover, contended that the primary judge failed to differentiate between her knowledge of the material facts and the time upon which those material facts became "decisive" within the meaning of the Act.

The Court of Appeal rejected the submissions put forth by the plaintiff. The court held that the primary judge:

  1. applied the correct legal principles;
  2. appropriately differentiated between the appellant's knowledge of material facts and when the material facts became "decisive";
  3. was entitled to find that the "[plaintiff] knew at least from the time of her discharge from the hospital that her injuries were going to prevent her from carrying out a wide range of activities";
  4. was entitled to find that it was not reasonable for the plaintiff to take no further action, or seek any advice, given her state of knowledge as at early 2007.

The Court of Appeal also took the opportunity to confirm the very limited circumstances in which an appellate court is entitled to intervene in appeals concerning the extension of a limitation period in personal injury matters.

Specifically, the court endorsed the approach enunciated in Pizer v Ansett Australia Ltd4, which held that "unless the [primary] judgment reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference".5


The case is important as it confirms the factors needed to be considered in determining whether a fact is a "material fact of a decisive character" for the purposes of extending the limitation period under s 31 of the Act.

The case also confirms the very limited times an appellate court has the power to intervene and disturb a primary judge's findings in applications under s 31 of the Act.

1. Fraser JA delivered the leading judgment, with Wilson AJA and Mullins J agreeing.

2. Limitation of Actions Act 1974 (Qld), s 29(2)(c).

3. Per Fraser JA at 8 quoting to the primary judge's reasoning at paragraph 16-17, 19 and 25.

4. [1998] QCA 298 at 20 per Thomas JA.

5. Per Fraser JA at 28 quoting Thomas JA in Pizer v Ansett Australia Ltd [1998] QCA 298 at 20

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