To bring a claim for personal injury outside the usual three
year limitation period in Queensland, the main thing a Plaintiff
needs to show is that a material fact of a decisive character
occurred within the previous 12 months.
Usually, the fact that a Plaintiff's injury is more serious
than he or she had initially recognised is capable of constituting
a "material fact".
However this case demonstrates that even when a judge is
sympathetic to the plight of a Plaintiff, to obtain an extension, a
Plaintiff must show that they have taken reasonable steps to
ascertain the "material fact" before the expiration of
the three year period.
The Plaintiff was a meat worker who on 27 August 2012 suffered
a reasonably serious injury to his right index finger. It was
common ground that the Plaintiff would have had reasonable
prospects of establishing negligence and the Defendant did not
allege that it was prejudiced by the delay in bringing a
The Plaintiff promptly consulted a surgeon who provided a
report stating that his predicted prognosis was that by mid-October
2012 the Plaintiff would have returned to a full capacity for work.
The court also accepted that the surgeon in March 2013 the surgeon
told the Plaintiff that it would take 2 to 3 years for his injury
to return to normal.
However, crucially in September 2014 the Plaintiff attended his
GP reporting significant symptomology, following which he was given
a certificate stating he was not fit for work and referred to the
surgeon for "reconstruction". The Plaintiff did nothing
in respect of the advice he received and the referral.
It was not until around one month after the expiry of the
limitation period that the Plaintiff consulted solicitors,
following which he brought an application for an extension of the
In rejecting the Plaintiff's application, Judge Everson
The fact that a Plaintiff's injury turns out to be more
serious than he or she had previously realised has long been
recognised as capable of being a "material fact" capable
of enlivening a courts discretion to grant an extension.
The "material fact" must produce the conclusion that
the action would result in an award of damages sufficient to
justify the bringing of an action which was previously not worth
In weighing the factors relevant to the last issue, his Honour
noted the importance of the index finger to a manual worker and the
fact that he had reasonable prospects of success in a negligence
action. His Honour therefore found that although he had sympathy
for the Plaintiff's plight that it stretched credulity that he
was justified in blindly relying on the previous prognosis from his
surgeon when by September 2014 he had increased symptoms, had been
provided with a medical certificate stating that he was unfit for
work and had been referred for a "reconstruction". In
particular the court found that the Plaintiff needed to take
reasonable steps to investigate his medical condition after
consulting his GP in September 2014
In recent years Defendants could be forgiven for thinking that
it has become much easier for Plaintiff's to obtain extensions
of the limitation period. However, this case demonstrates that even
in a matter where a judge concedes sympathy for a Plaintiff he will
not obtain an extension of the limitation period unless he has
taken reasonable steps to ascertain the extent of his medical
condition prior to the expiration of the limitation period.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Advocate's immunity remains part of the Australian common law— but in a narrower way than may have previously appeared.
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