Australia: Limitation Period: Extension upheld

Curwoods Case Note
Last Updated: 1 May 2012
Article by Joseph Vermiglio

Judgment date: 17 April 2012

Suncorp Metway Insurance Limited v Norris [2012] QCA 101

Supreme Court of Queensland1

In Brief

  • Reasonableness of the plaintiff seeking medical attention and exposing the true extent of the injury beyond the limitation period depends on the warning signs experienced by the plaintiff.
  • The fact that a previously unidentified vehicle at fault becomes known by police at a later date will not automatically preclude the plaintiff from an extension to the limitation period. Reasonableness in the circumstances of each case remains the ultimate determination.

Background

On 29 March 2005, the respondent was injured in a motor vehicle accident when the front of her vehicle was struck by a box containing a radiator that fell off the back of the vehicle travelling ahead. The impact of the box caused the respondent to lose control of her vehicle and strike concrete barriers to her right.

The police officer told her at the scene that no one was able to identify the vehicle from which the box had fallen. The officer said there was a shipping label on the box and inquires would be made to attempt to identify the vehicle and its driver. The police officer gave the respondent a business card and reference number which the respondent was to quote in communication with the police.

A week after the accident, the respondent telephoned the police officer, and the police officer said that she had not been able to identify the vehicle, but investigations were ongoing.

A month after the accident, the respondent again telephoned the police, however spoke to a different officer. This officer advised that it appeared investigations were continuing and he told the respondent "that it may take months or even years for the investigation to conclude". The officer told the respondent that they had her contact details recorded and that she would be contacted "if their investigation revealed the identity of the at fault vehicle".

In August 2010, the respondent suffered a significant episode of neck pain of a nature which she had not experienced previously. She was referred for an x-ray. On 19 August 2010, the respondent obtained an x-ray of her cervical spine. The radiologist made the comment that there was a problem with her cervical spine and that it was likely related to the accident. The radiologist made an off hand comment to the effect that it was probably too late for the respondent to take any legal action.

The respondent instructed solicitors on 23 August 2010 and it was at this time that the 3-year limitation period was made known. On 24 August 2010, the solicitors advised the respondent that the identity of the at fault vehicle was determined.

Accordingly, the respondent sought to commence proceedings against the appellant. However, as the limitation period had expired, the respondent sought an extension pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (the Act).

Law

Section 30 of the Act provides:

"(1) For the purposes of this section and sections 31, 32, 33 and 34 –

(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 that 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]

District Court Decision

The primary judge referred to statements of principle stated in Moriarty v Sunbeam Corporation Ltd 2 in the context of a would be plaintiff appreciating that he had a worthwhile action to pursue and it being in his interests to pursue it.

His Honour found nothing unreasonable in the way the respondent managed her treatment. Specifically, the August 2010 flare-up was of a different nature and severity to the symptoms that had preceded over the years. Investigations by radiologists revealed for the first time the significance of the March 2005 injury.

The primary judge held that the additional circumstance of identifying the at fault vehicle qualified as a material fact of a decisive character to support the application before him. He found that the respondent's circumstances were such that it was not reasonable for her to be taking steps to discover that material fact until around August 2010 when she discovered the other material fact to do with the condition of her back.

Supreme Court Decision

The Supreme Court upheld the primary judge's decision to extend the limitation period.

Daubney J referred to Tregelles-Fox v WorkCover Queensland 3 in which his Honour articulated the authorities relevant to the case in which a putative plaintiff receives late medical advice of a link between ongoing pain and previous incident in which injury was suffered:

"[8] A determination on this point requires the plaintiff to demonstrate that, without the newly learned facts, he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and ought in his own interests pursue it.

[9] Moreover, it is for the plaintiff to demonstrate that the fact was not within his means of knowledge. Section 30(1)(c) makes it clear, in express terms, that this requires not only that the plaintiff did not know the fact, but also, as far as the fact is able to be found out by the plaintiff, he had taken all reasonable steps to find out the fact before he did."

The Supreme Court noted the following passage in the judgment of the Court of Appeal in Healy v Femdale Pty Ltd4:

"The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect ones health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take "appropriate advice" or to ask appropriate questions if in all circumstances it would not be reasonable to expect the plaintiff to have done so."5

The Supreme Court held that the primary judge's assessment was made in precisely the sorts of issues addressed in the passage of Healy v Femdale Pty Ltd.

The Supreme Court opined that a judge assessing the merit of an application in such circumstances needs to balance whether, on the one hand, the evidence discloses that the degree of pain and disability was such that the injured person ought to have realised that they were in a position of vulnerability and needed to make appropriate inquiry, or, on the other hand, there was no requirement for the injured person to take appropriate advice or to ask appropriate questions because, in all the circumstances it would not be reasonable to expect the injured person to have done so. The Supreme Court held that this case fell within the latter variety.

With respect to the identity of the at fault vehicle, the respondent was found to have taken all reasonable steps to satisfy s 30(1)(c). She was not to know that she had been given incorrect information by the policeman. There was nothing to suggest that it was unreasonable for her to accept the information given to her by that policeman.

Implications

There is no requirement for a plaintiff to take "appropriate advice" if in the circumstances it would not be reasonable to do so (eg pain was not severe and the plaintiff was able to continue with her life and employment). A failure to ask for medical opinions from her doctors regarding future disability from an accident will be relevant, but only if it was reasonable to do so.

Footnotes

1 Daubney J with McMurdo P and Muir JA agreeing
2 [1988] 2 Qd R 325
3 [2010] QSC 288
4 [1993] QCA 210
5 [1993] QCA 210 at 214

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