Horsfall v Brisbane City Council
[1998] QDC 175
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- Unreported Judgment
- Horsfall v Brisbane City Council[1998] QDC 175
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Horsfall v Brisbane City Council[1998] QDC 175
Horsfall v Brisbane City Council[1998] QDC 175
DISTRICT COURT | No 4991 of 1997 |
CHAMBERS
JUDGE ROBIN QC
BEVERLY THOMAS HORSFALL | Plaintiff |
and
BRISBANE CITY COUNCIL | Defendant |
BRISBANE
DATE 22/06/98
ORDER
CATCHWORDS: | Limitation – extension of limitation period – material fact of a decisive character was medical advice that a respiratory condition of some years' duration necessitated the plaintiff's ceasing employment – defendant in difficulty identifying date when the limitation period expired. |
HIS HONOUR: On 8 June 1991 the plaintiff commenced proceedings against his employer, the Brisbane City Council, claiming that breach of duty by it has led to his suffering from a complaint which I will simply identify as a respiratory one.
In a defence delivered in September 1992 the defendant pleaded the statute of limitations. The action has progressed towards trial over the years and been transferred to the District Court. The plaintiff understandably does not wish to have the prospect of the limitations point defeating his claim on what might be called technical grounds hanging over him and has applied for a declaration that his cause of action is not statute barred and alternative kinds of relief such as an extension of the limitation period.
The plaintiff engaged solicitors at the suggestion of his union only a couple of days before the writ was issued. He is a man born on 13 February 1930 who was employed continuously by the defendant as a leading hand carpenter from 4 July 1969 until 12 March 1991.
He became aware of respiratory problems in 1988 and attended the Mater Hospital where medication which seems to have proved efficacious to an extent was prescribed for him. He was required to and did return for further assessment at six monthly intervals.
He continued in his employment with the defendant. Mr Stenson concedes there is, for the purposes of today, an arguable case made against the defendant. He resists the application on a single issue defined Mr Stenson's words as “whether the plaintiff made proper attempts to find out what his condition was and how it will affect him.”
He was aware of certain relevant symptoms in his daily life including his work life. His case, it seems to me, is very difficult to distinguish from one such as Byers v. Capricorn Coal Management Pty Ltd [1990] 2 QdR 306 in which advice as to the necessity to change employment was held a material fact of a decisive character warranting an extension of time in the case of a plaintiff who, like Mr Horsfall, knew how he was feeling.
Mr Atkinson says that this indeed is a stronger case because Mr Horsfall has been advised to cease work entirely. That happened only on the date indicated and with medical support. It is the approach of the Courts these days, it seems to me, that a considerate latitude ought to be shown in applications like the present towards persons who are stoical in the sense of putting up with what seemed to them minor inconveniences rather than rush off to Court as soon as events occur which might warrant the view there is a cause of action.
The Courts have also taken a realistic view where medical advice “firms up” over the years as happened, for example, in Wood v. Glaxo Australia Pty Ltd [1994] 1 QdR 431; see in particular per the Chief Justice at 436 and Davies JA at 442. I hasten to say there is not the slightest suggestion that Mr Horsfall was told his working capacity from the point of view of lasting till ordinary retirement was in jeopardy. It is an unusual case in which understandably Mr Stenson has been in some embarrassment when asked to say when the limitation period did expire. He has foreshadowed that if I gave the intimation which I now do give that in the Court's opinion the case is a clear one for the granting of an extension of the limitation period, if any be necessary, to 8 June 1991, he might offer a certain undertaking with respect to an amendment of the defence.
MR STENSON: Your Honour, I do undertake to amend the defence by deleting paragraph 4 of the defence which is the paragraph which currently pleads limitation.
HIS HONOUR: That suits what you want, Mr Atkinson?
MR ATKINSON: I certainly accept my friend's undertaking.
HIS HONOUR: Well, I am grateful to counsel in particular Mr Stenson as it has turned out for efficiently getting to the point and circumscribing the Court's task.
...
HIS HONOUR: I will order that the costs be plaintiff's costs in the cause.