The one year for potential extension to the limitation period
contained in s 31 of the Limitation of Actions Act 1974
(Qld) (the Act), does not commence until the
plaintiff realises that if they do not take the proposed defendants
to court, he or she may not have a successful action at all.
An objection to the grant of an extension of time, on the
grounds of prejudice, will fail where, without more, the CTP
insurer has obtained a liability report prepared soon after the
On 26 May 2007, the plaintiff was seriously injured in a motor
vehicle accident when the brakes of his employer's truck failed
to engage. He instructed solicitors in January 2008 to otherwise do
all that was necessary to protect his interests.
The plaintiff's solicitors originally filed a notice of
claim with WorkCover within the limitation period. However, on 6
October 2010, they received a letter from WorkCover advising that
the matter was governed by the Motor Accident Insurance Act 1994
(Qld), and that notices should be sent to the proposed defendant. A
formal denial was issued on 3 November 2010.
Accordingly, following that notice, the plaintiff sought to
commence proceedings against the defendant. However, as the
limitation period had expired, the plaintiff sought an extension
pursuant to s 31 of the Act.
Section 31 of the Act relevantly provides:
"(2) Where on application to a court by a person claiming
to have a right of action to which this section applies, it appears
to the court —
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 a date after the commencement of the year last
preceding the expiration of the period of limitation for the
that there is evidence to establish the right of action
apart from a defence founded on the expiration of a period of
the court may order that the period of limitation for the
action be extended so that it expires at the end of 1 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
The plaintiff's solicitor provided an affidavit to the
effect that he inspected a case file relating to the prosecution by
the Department of Transport of the employer of the plaintiff. The
plaintiff knew of the prosecution of his employer and believed that
his employer was pleading guilty and so accepting liability.
The plaintiff argued that he had assumed he had a good claim
against the employer, and so had not pursued any claim against the
defendant directly. He submitted it was not until 3 November 2010,
when WorkCover formally advised his solicitors that they would be
denying liability, that he realised that a claim would have to be
made against the defendant.
Atkinson J held that until 3 November 2010, the plaintiff was
justified in believing that he had a good cause of action against
his employer and demonstrated circumstances for an extension to the
limitation period pursuant to s 30(1)(b) of the Act. Atkinson J
followed the approach enunciated in the High Court decision of
Queensland v Stephenson2 which held that:
"... an applicant always has at least one year to commence
proceedings from the time when his or her knowledge of material
facts (as defined in s 30(1)(a), coincides with the circumstances
that a reasonable person with the applicant's knowledge would
regard the facts as justifying and mandating that an action be
brought in the applicant's own interests (as in s
It was held that, in the circumstances where the plaintiff only
becomes aware of a serious claim for contribution against a CTP
insurer, without necessarily excluding the plaintiff's claim
against their employer, the one year period of time does not
commence until the alternate claim is extinguished.
Atkinson J also took the opportunity to address the issue of
prejudice to the insurer caused by the extension of time. He held
that in circumstances of this case, in which the insurer has
obtained a factual report within a short period of the accident, no
such prejudice can arise.
When contesting a notice of motion to extend the limitation
period, an insurer will face difficulties if the plaintiff's
delay was on account of pursuing an employer under the belief that
the claim was actionable pursuant to the Workers Compensation
and Rehabilitation Act 2003 (Qld).
1 Atkinson J 2  HCA 20 3 Per Atkinson J at 8-9 quoting Gummow, Hayne and
Crennan JJ in Queensland v Stephenson  HCA 20 at
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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