In Queensland, there are strict time limits (limitation dates) in place for an injured person to bring a claim for damages for personal injuries. The standard time limit (not including dust-related or most child abuse matters) is the earlier of either 3 years after the incident occurred if the person is an adult or by 21 years of age if the injury occurred when they are a child.
A person can, however, apply to the Court to extend their limitation date by one year if they can establish that there is a material fact of a decisive character relating to the claim, which was not within the means of knowledge of that person until a later date;
Case Overview
The recent decision of Wilson v Mackay Hospital and Health Service1 is a very recent example where such an application to the Court has been successful;
Ellie Wilson was three years of age when her two-year-old sister, Kate, fell ill with vomiting and diarrhoea. Kate was taken to the Mackay Base Hospital by her mother but was discharged a short time later by the treating doctor. She sadly died only three hours after her discharge; Ellie's parents brought successful claims against the hospital, which settled in 2002 after court proceedings had commenced. A coronial inquest was held;
Ellie has continued to suffer difficulties over the years since her sister's death, but despite this, managed to succeed at school; In late 2012 or early 2013, Ellie sought treatment with a psychologist on one occasion for anxiety. She went on to university completing a bachelor's degree and master's course over 5 years.
Between late 2013 and early 2014, she sought treatment from a doctor via her university who referred her to a psychologist for anxiety and flashbacks; Her three-year limitation period to claim damages for her injuries expired on her 21st birthday in August 2016. She had not commenced any claim by that time; She completed her university studies in 2017 and commenced working as a teacher;
In 2020, when Ellie was 25 years of age, she attended upon her GP complaining of headaches due to an unrelated concussion. At the time of that review, she disclosed suffering PTSD, due to her sister's death. Her symptoms worsened in the year that followed, which resulted in further treatment with a psychologist and eventually led her to obtaining a report from a psychiatrist. The psychiatrist concluded that her future work capacity had been significantly affected by the incident;
Ellie attended upon a lawyer and filed court proceedings on 18 June 2021; Ellie subsequently applied to the Supreme Court to extend the limitation period to bring a claim for damages. The hospital argued that it would suffer prejudice if the application was successful, as a claim would distress the treating doctor responsible for discharging Kate;
Key Factors Taken into Consideration
Despite the extended period that had passed, His Honour Justice Crow again considered the 5 steps he had previously identified2 as necessary before a Court is enlivened to exercise its discretion to extend the limitation period, those being:
- All material facts;
- Of a decisive character;
- Are not within the applicant's (i.e. Ellie's) knowledge until a date no more than 12 months prior to commencing the claim for damages;
- There is evidence that the applicant has a right of action (i.e. a reasonable case); and
- There would be no prejudice to the defendant in allowing the limitation extension.
Supreme Court Decision
His Honour considered Ellie's knowledge of her condition, having regard to various communications with her treating psychologist in August 2020 as to her prognosis. Those communications led Ellie to engage with the solicitor who had acted for her parents in their respective claims, who advised that pending detailed and proper reports being obtained from a psychologist and a psychiatrist, she had a "possible claim for damages". Subsequently, with the assistance of her lawyer, Ellie obtained a report from both a psychologist and a psychiatrist;
His Honour found that Ellie receiving the psychiatrist's report in 2021, was a material fact of a decisive character and therefore approved her application to extend the limitation date so that she could proceed with her claim against the hospital. His Honour noted that whilst the treating doctor may suffer trauma by revisiting the sad events and there was some minor prejudice to the hospital as it could not obtain the records from Ellie's psychologist visit in 2013, this needed to be balanced against the rights of Ellie, who faces an uncertain future due to the actions of the hospital;
Key Takeaway
The case highlights the factors a court will take into account when determining an application to extend the limitation period. It is a timely reminder that losses and associated claims can crystallise many years after the negligent events have occurred.
The full decision can be viewed here
Footnotes
1 [2021] QSC 178.
2 See Ferrier v WorkCover Qld [2019] QSC 11 at [23].
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.
