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Birch v AAI Limited QDC 66
DISTRICT COURT OF QUEENSLAND
Birch v AAI Limited  QDC 066
TONI LEE BIRCH
AAI LIMITED T/AS SUNCORP INSURANCE (ABN: 48 005 297 807)
157 of 2016
Application for extension of limitation period
District Court at Townsville
21 March, 2017
25 August 2016
Durward SC DCJ
1. Application granted
2. I will hear the parties as to costs on a date to be fixed.
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the applicant has applied under section 31 of the Limitations of Actions Act 1974 (Qld) for the limitation period relating to her claim for damages for personal injuries to be extended – where the applicant seeks leave to commence proceedings pursuant to the Motor Accident Insurance Act 1994 (Qld) – where the applicant was an audiologist involved in a fatal motor vehicle accident – where applicant suffering injury due to the fatal accident – where applicant witnessed subsequent accident – where applicant submits subsequent accident triggered applicant’s injuries – where unrelated subsequent accident occurred three years after initial fatal accident – where fatal accident outside the limitation period – whether applicant took all steps to ascertain the material fact of a decisive character – whether in all the circumstances the limitation period should be extended.
Civil Proceedings Act 2011 (Qld) sections 39(5)(c)(ii), 52(2) and 57(2)(b); sections 11, 30 and 31 Limitation of Actions Act 1974 (Qld).
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234; State of Queensland v Stephenson (2006) 226 CLR 197; Greenhalg v Bacas Training Limited and Ors  QCA 327; Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (in Liquidation) and Anor  QCA 352; NF v State of Queensland  QCA 110; Healy v Femdale  QCA 210; HWC v The Corporation of the Diocese of Brisbane  QCA 168; Wood v Glaxo Australia Pty Ltd (1994) 2 Qd R 431; Cousins v Mt Isa Mines Ltd  QCA 261; Limpus v State of Queensland  2 Qd R 161; Page v The Central Queensland University  QCA 478; Baillie v Creber & Anor  QSC 52; Limpus v State of Queensland  2 Qd R 161; Sugden v Crawford (1989) 1 Qd R 683; Sunbeam Corporation Limited v Moriarty (1988) 2 Qd R 325; Castillo v P & O Ports Ltd  QCA 364.
Mr M Glen for the Applicant.
Mr G Crow QC for the Respondent.
Maurice Blackburn Lawyers for the applicant.
Jensen McConaghy Lawyers for the respondent.
- The applicant seeks an extension of the limitation period for commencing a proceeding in respect of a nervous shock [psychiatric] injury sustained by the applicant as a result of a motor vehicle accident that occurred on 03 February 2012. The plaintiff did not suffer any physical injury. The application is made pursuant to section 31 (2) of the Limitation of Actions Act 1974 (“the Act”).
- The applicant is aged 51 years (Date of Birth: 08 July 1965). She is married and has two daughters in their late teens - early 20’s. Her husband was a shift worker, although he underwent serious surgery in recent years. The family reside together. She was employed at material times as a clinical audiometrist with ‘Active Hearing Pty Ltd t/as Bloom Hearing Specialists’ (“Bloom”). She commenced that employment on or about 13 July 2009 and was employed full-time from about 18 September 2011. Her work included diagnostic assessment and rehabilitation and the fitting of hearing aids and ‘assistive devices’. She worked in Townsville and was required to travel by motor vehicle to regional centres in NQ and FNQ, initially one week per month, although that travel regime increased over time.
- The primary issue in this application is said to be ‘means of knowledge’: that is, whether the applicant knew the ‘material fact’ (the post-traumatic stress disorder and her inability to continue in employment as an audiometrist) of a ‘decisive character’ relating to a ‘right of action’ before 03 February 2014 or has taken all reasonable steps to find out the fact before that time.
The motor vehicle accident
- The applicant was implicated in a motor vehicle accident on 03 February 2012. On that date she was driving south on the Bruce Highway near the Helen’s Hill locality, towards Townsville. She saw the lights of a [Toyota] vehicle approaching on the wrong side of the road. She swerved to miss it. There had been a [Mitsubishi] vehicle in front of her and a collision occurred between that vehicle and the oncoming northbound vehicle that was on the incorrect side of the road, there being pretty much an explosion at that point. She alighted from her vehicle and went to assist the driver of the Mitsubishi vehicle. The driver of the Toyota vehicle died from the injuries he sustained in the collision.
- There had previously been an issue of delay and non-compliance with the provisions of the Motor Accident Insurance Act 1994, before this application was made. However, those issues were resolved by orders made by his Honour Judge Morzone QC on 17 June 2016, on another application. The orders included the filing of proceedings, subject to the defendants’ right to rely on the expiry of the limitation period.
- This application was filed on 03 June 2016.
- At the hearing of this application Mr Glen for the applicant sought leave to amend the applicant’s Claim. Leave was granted. Mr Glen also objected to material in Affidavits of the defendant’s solicitor Mr Guppy, on the ground that it contained recitations of evidence and was objectionable on that basis. I gave leave for the Affidavits to be filed subject to that qualification and I have resolved it simply by the weight I give to the matters deposed in the Affidavits, whether evidence or opinion.
- After the incident, the applicant developed a post-traumatic stress disorder arising from that experience. After the accident the plaintiff returned to work the following day. She had no time off work. She continued to work from February 2012 to June 2015 without a day off work.
- The relevant sequence of facts and circumstances are as outlined in the following Table, drawn from the chronologies provided by each of the parties and by my avoiding repetition. This chronology provides a sequential factual matrix of the relevant history and complements the other evidence upon all of which I am to determine the application. Taken together with the Affidavits and the oral testimony of the applicant, the following Table reflects the principal factual matters in contention that inform the exercise of my discretion.
03 February 2012
Applicant witnesses fatal motor vehicle accident (‘the incident’).
February 2012 – August 2015
Applicant continued to drive the northern and southern routes in order to attend the regional clinics following the incident.
3 March 2012
Applicant attends her General Practitioner, Dr Barry at the Aitkenvale Family Health Centre, and is advised that she is suffering from ‘Post-Traumatic Stress Disorder’ (‘PTSD’).
Exhibit ASW1 of the Affidavit of Amber Wang filed 15 June 2016, being the applicant’s clinical records, note the following in relation to this consultation:
16 March 2012
Applicant attended Dr Barry and her Cymbalta dosage was increased to 60mgs.
21 March 2014
Applicant attended a new General Practitioner, Dr S Pawar at the Health and Wellbeing Wulguru Medical Centre, for the purposes of general health matters.
Exhibit ASW2 of the Affidavit of Amber Wang filed 15 June 2016, being the applicant’s clinical records, note ‘depression’ but do not elaborate further.
9 May 2014
Applicant attended Dr S Pawar and was given a prescription for anti-depressants.
29 May 2014
On referral by Dr S Pawar applicant attends Endocrinologist, Dr Shenoy, and advised to either cease or gradually reduce and then cease her antidepressant medication.
Ms Dendra Cole commences as Queensland Manager for Bloom.
17 September 2014
Applicant takes one day sick leave.
20 October 2014
Applicant emailed an Allegation of Misconduct made by Ms Cole regarding sick leave taken 17 September 2014.
On unknown dates the applicant lodged a comprehensive response to the Allegation and the Allegation was later withdrawn.
Sometime between November and December 2014
Applicant’s appointment diary is amended so that her regional clinic visits are doubled.
6 January 2015
Applicant emailed Ms Cole and two other staff members regarding her doubled number of regional visits and the Allegation of Misconduct against her – Exhibit TLB6 of the Affidavit of Toni-Lee Birch filed 3 June 2016.
4 March 2015
Applicant attends meeting in Brisbane with employer.
April 2015 – May 2015
Applicant takes 4 weeks of Carer Leave; she experiences anxiety with her impending return to work.
May 2015 – June 2015
Applicant attends regional clinics along the northern and southern routes.
16 June 2015
Applicant attends Atherton Medical Centre because she feels her heart is racing and is told by staff that her blood pressure is high at 181.
24 June 2015
Applicant attended Dr S Pawar.
Exhibit ASW2 of the Affidavit of Amber Wang filed 15 June 2016, being the applicant’s clinical records, note the following in relation to this consultation:
26 June 2015
Applicant admitted to emergency department of Townsville Hospital due to chest pain; the ECG had mild problems but did not confirm myocardial infarction.
27 June 2015
Applicant attends General Practitioner, Dr D Pawar regarding her attendance at the emergency department.
Exhibit ASW2 of the Affidavit of Amber Wang filed 15 June 2016, being the applicant’s clinical records, note the following in relation to this consultation:
16 July 2016
Applicant attends first appointment with Ms L Heilbronn, psychologist.
Applicant is advised by Ms Heilbronn that she is suffering aggravated Post-Traumatic Stress Disorder relating back to her accident on 3 February 2012. Ms Heilbronn does not recommend that the applicant return to work at this time.
3 August 2015
Applicant returns to work following leave.
9 August 2015
Applicant emailed Ms Cole her resignation letter.
10 August 2015 – 14 August 2015
Applicant tells Bloom that she will finish her current regional clinics as she was already en route.
14 August 2015
Applicant witnesses further motor vehicle accident whilst travelling during the course of her employment and pulls over to the side of the road, crying uncontrollably.
The oral testimony of the applicant
- The applicant was earning about $70,000.00 or more net per annum when working for Bloom.
- She made a Fair Work Commission claim on 24 August 2015 against her former employer. She saw a lawyer, Mr Raffles, after 09 August 2015 when she had finished her employment. He was the first lawyer she consulted. Shortly after she consulted another lawyer, Mr Ken Taylor, about a Work Cover claim and a Third Party Insurance claim. Mr Raffles did not work in that area. However she did not have the money to pursue the Third Party claim further as Mr Taylor was not very optimistic about the prospects of success of a Third Party claim.
- She confirmed that she had no prior history of anxiety or depression and no prior problems with driving motor vehicles.
- She agreed in cross-examination that between 03 February 2012 and 04 March 2012 she was having difficulties and was quite upset. She consulted her general practitioner and on his advice took eight face-to-face counselling sessions with a counsellor. The doctor had prescribed anti-depressants, which was the first time she had taken a course of these, and she continued to take them through to 2014. She said her condition had “plateaued”. She was still feeling anxious “but nowhere near how I was previously”. Her doctor told her that she had post-traumatic stress disorder, but he did not tell her how long it would last. Nevertheless she knew (by reference to the experience of Vietnam veterans) that post-traumatic stress disorder potentially was a long-term condition. She had undertaken some further studies and completed two university subjects in 2014 but abandoned those studies thereafter.
- In her work she was required to travel to country centres for up to a week at a time and that began to make her “feel a little bit anxious” and made her cranky. She said that she was not her normal self.
- In July 2012 her employer required her to travel more frequently but she declined, citing her difficulty coping physically and mentally with the existing travelling regime. She was “very tired”, but not struggling to cope. The travelling was a challenge and made her miserable.
- She agreed that by March 2014 the shock and the problems that she suffered from the motor vehicle accident were all affecting her to a degree. She said that was not the only matter that affected her.
- She explained that it was not simply the post-traumatic stress disorder that made life challenging. It was also her workload – she was doing in effect the work of two people because she was the only clinician. She found this very tiring. There was also another employee whom the applicant described as being “an incredibly incompetent receptionist” who was disorganised, made double appointments, did not have files in place and made the job harder for the applicant, in effect. There was also issues with the applicant’s boss whom she described as being “extremely intimidating” and made her feel “incredibly bullied by her” in the workplace.
- She was upset by events at work in early 2015 including non-consultation about changes to appointment bookings that required more travelling and that type of incident made her very upset.
- She agreed that she had told Bloom that she was “still feeling affected by the fatal accident”.
- Her problems continued at work. She took some carer’s leave to care for her husband when he was unwell. When this finished she was anxious about returning to work, including the travelling requirements. This was in early May 2015 and things were “pretty bad”.
- By 15 May 2015 it was clear to her that things were getting worse rather than better. She suffered stress headaches, disturbed sleep, heart palpitations and on one occasion had been taken to the hospital because she felt that she had had a heart attack. She agreed that she was “incredibly stressed”. She agreed that prior to the motor vehicle accident she was coping quite well, but this was not the case after the accident.
- Section 11 of the Limitation of Actions Act 1974 (Qld) (“the Act”) provides that an action by a plaintiff for damages for negligence or breach of duty in which damages are claimed for personal injury, “shall not be brought after the expiration of 3 years from the date on which the cause of action arose.”
- The motor vehicle accident happened on 03 February 2012. The limitation period thus expired on 02 February 2015
- Section 30 (1) (a) of the Act provides interpretation or definition for, inter alia, section 31(see infra).
- Section 31 of the Act provides:
“31 Ordinary actions
- (1)This section applies to actions for damages for negligence… or breach of duty… where the damages claimed by the plaintiff for the negligence… or breach of duty consist of or include damages in respect of personal injury to any person….
- (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 –
- (a)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 action; and
- (b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
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 accordingly.
- (3)This section applies to an action whether or not the period of limitation for the action has expired –
- (a)before the commencement of this Act; or
- (b)before an application is made under this section in respect of the right of action.”
- In summary, in order to succeed in the application, the applicant must show that:
- (a)a material fact;
- (b)of a decisive character;
- (c)was not within her means of knowledge until a point one year prior to the institution of proceedings;
and there is
- (d)evidence to establish a right of action;
and there is
- (e)no prejudice, in the relevant sense, that would be occasioned to the respondents that is serious enough to justify disallowing the application.
- The first three considerations constitute the three step process outlined by the High Court in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, at 256. See also State of Queensland v Stephenson (2006) 226 CLR 197 at , regarding construction of the phrase “material fact of a decisive character relating to the right of action.”
Onus of Proof
- The onus of proof is on the applicant to establish that the material fact would not have been discoverable prior to, or have obtained the decisive characterisation, one year from the critical date: Baillie v Creber & Anor  QSC 52, per McMeekin J at .
- In Limpus v State of Queensland  2 Qd R 161, Jerrard JA wrote at 169, that where the passage of time may prevent a defendant from being able to fairly defend a proceeding, there is:
“…an evidential onus on a potential defendant to identify the prejudice to it of which the defendant is aware and which makes a fair trial no longer possible or creates a significant chance of that result.”
- Keane JA in HWC v Corporation of the Synod of the Diocese of Brisbane  QCA 168 at  agreed inferentially, but observed that the burden remains on an applicant plaintiff who is seeking a favourable exercise of discretion to extend the limitation period:
“…to show good reason for the favourable exercise of the discretion. An applicant who is unable to show that a fair trial can take place notwithstanding the delay which has occurred will not discharge that burden.”
- For the applicant it was submitted that following the motor vehicle incident, the applicant demonstrated a capacity to continue in her employment and cope with the motor vehicle driving role that it involved. She was never advised by health or medical professionals that she should not be driving in the course of her employment, or continuing in employment, or that she may suffer relapses of post-traumatic stress disorder or that the condition might become so much more difficult as to render her incapable of continuing in employment.
- It was submitted that it was not reasonable to expect the applicant to make further inquiry regarding future potential disability or impact on her capacity to work. Any failure to make further enquiry about her post-traumatic stress disorder condition was not unreasonable. It was submitted that those workplace stressors clouded or disguised the fact that the applicant was suffering a gradual increase in her post-traumatic stress disorder symptomology, the initial onset of which was directly related to the motor vehicle incident.
- It was submitted that the applicant would be ‘severely prejudiced’ by the refusal of the application and that no actual prejudice has been shown by the respondent. It was submitted that the respondent had not seriously pursued witness enquiries to the extent that made that a relevant consideration.
- The respondent asserts that it now suffers a significant forensic disadvantage in being obliged to investigate and defend a claim after the expiration of four or more years. Both factual and presumptive prejudice is claimed. It is asserted that there is a difficulty in locating witnesses and a potential loss of evidence. The respondent also asserts that it has been deprived of the prospects of having the applicant undergo rehabilitation which might have ameliorated her symptoms. It was submitted that the ongoing delay in bringing the proceedings had caused an irreparable element of unfairness and prejudice which cannot be cured.
The relevant considerations
- Section 30 (1) (a) of the Act provides:
“1 (a) the material facts relating to a right of action include the following—
- (i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
- (ii)the identity of the person against whom the right of action lies;
the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
- (iii)the nature and extent of the personal injury so caused;
the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty.”
- The applicant relies on a combination of two material facts:
- The applicant could no longer continue in her employment as an audiometrist with Bloom. This material fact is said to have come to the applicant’s knowledge in or about the period between mid July 2015 to 09 August 2015; and
- The applicant was diagnosed as having suffered an aggravation of a post-traumatic stress disorder (“PTSD”) which had been originally caused by her involvement in the motor vehicle accident on 03 February 2012. The diagnosis was made and the applicant advised with respect to it on 16 July 2015.
- With respect to any alleged failure to make further enquiries in respect of the post-traumatic stress disorder condition and whether it was unreasonable so to do, depends on the circumstances. Whether the plaintiff, given her circumstances and background, had taken “all reasonable steps”, requires an assessment focused on the plaintiff personally rather than on some fictitious person.
- In NF v State of Queensland  QCA 110, Keane JA at  wrote:
“The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. Whether an Applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the Applicant.”
- Lyons J (with whom Fraser JA agreed) at  wrote:
“Section 30(1)(c) does not make the conduct of the hypothetical reasonable person the standard by which it is to be determined whether a fact is in the means of knowledge of a particular applicant. Nor does it posit the taking of appropriate advice, unlike s 30(1)(b). The focus is clearly on the potential Claimant… and the making of reasonable enquiries by [her].”
- The Court in Healy v Femdale  QCA 210 wrote:
“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 the circumstances it would not be reasonable to expect the plaintiff to have done so.”
- Similarly, in HWC (supra), Keane JA wrote at :
“…it is not the policy of the courts in the application of s 31...to penalise an injured person who makes a reasonable decision to try to get on with life rather than a decision to litigate upon a questionable basis.”
- Section 30 (1) (b) of the Act provides:
- “(b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—
- (i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
- (ii)that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action.”
- There are two key components in section 30 (1) (b) of the Act: the expressions “reasonable person” and the taking of “the appropriate advice”. Determining whether an action is worthwhile commencing of necessity involves an assessment of the expense, cost and risks of litigation and their potential quantum and benefits of a successful proceeding: Greenhalgh v Bacas Training Ltd & Ors  QCA 327 per Keane JA (with whom Cullinane and Lyons JJ agreed), at .
- Was it in the interests of the applicant to bring an action prior to 17 June 2015, upon appropriate advice and considering her circumstances and the facts then known to her? Would she have regarded an action as being likely to result in an award of damages sufficient to justify the bringing of the action and that it was in her interests so to do? See Sugden v Crawford (1989) 1 Qd R 683; and Sunbeam Corporation Limited v 325 (1988) 2 Qd R 325, at 331 and 333.
- It seems to me that prior to that date, the applicant had not suffered any absence from employment as a result of her psychiatric condition. Her treatment requirements and expenses had been relatively minimal and the quantum of damages would have been fairly modest, perhaps something in the order of $20,000 to $50,000: see Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (in Liquidation) & Anor  QCA 352 at  – .
- The cost of bringing the claim, including a compulsory conference and going to trial, would likely have outweighed the benefit from the damages that may have been recovered which would have been, it seems to me, very much less than the likely quantum. That regime of costs would have been adverse to a decision to bring a claim as at that date. The risks and uncertainties involved in the litigation at that time would have been significant.
Means of knowledge:
- Section 30 (1) (c) of the Act provides:
- “(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.”
- In my view the new material facts placed her “into a position where for the first time she had reasonable prospects and should in her own interests commence her proceedings”: Wood v Glaxo Australia Pty Ltd (1994) 2 Qd R 431 per Macrossan CJ at 437. Those material facts would not have been known to the applicant prior to 17 June 2015. See the discussion of a ‘critical mass of information’ in Castillo v P & O Ports Ltd  QCA 364.
- When the applicant became unable to continue in her employment and her psychiatric condition had developed adversely, together with the diagnoses of an aggravation of her post-traumatic stress disorder attributable to the motor vehicle incident, her position was quite different: she was medically unfit to continue in employment, she sustained a significant weekly economic loss and she was then aware that her inability to work related to the post-traumatic stress disorder attributable to the motor vehicle incident.
Right of action: negligence:
- The applicant is able to establish that the respondent’s insured driver crossed into the incorrect side of the carriage way and collided with another motor vehicle and that she had witnessed the accident, as a driver of another motor vehicle not directly implicated in it and suffered a recognisable psychiatric injury (post-traumatic stress disorder). The plaintiff was able to explain the circumstances of the incident with particularity. She is also able to detail the difficulties that she suffered post-incident in a compendious manner, including her work duties and her workplace issues. She is also able to set out the damage or injury suffered, as she alleges, by the psychiatric sequela that followed upon the motor vehicle incident.
- In those circumstances it seems to me that she is able to prima facie establish a cause of action in negligence that is sufficient to satisfy this requirement. The negligence causing the motor vehicle accident, together with the conduct of the applicant’s employer, materially contributed to the aggravation of her post-traumatic stress disorder. The respondent remains responsible for that.
- The question of whether any prejudice of the kind contemplated by the Act will prevent the respondent from having a fair trial, falls to be determined upon an exercise of discretion by the Court.
- Since it is for the plaintiff to show good reason for the favourable exercise of the discretion to extend the limitation period, if she cannot show that a fair trial can take place notwithstanding the delay that has occurred, she will not have discharged the onus of proof.
- In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, Toohey and Gaudron JJ wrote, at  – , with respects to the exercise of the discretion:
“Once an applicant satisfies [paragraphs] (a) and (b) [of s 31(2) of the Limitation of Actions Act], the Court has a discretion to extend the time for the bringing of an action. A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.”
- McHugh J wrote at  –  by way of observation that:
“Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability re-imposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.”
- The emphasis, in the expressions “opportunity for a fair trial” or “so as to prevent a fair trial”, in the context of the issue of substantial prejudice against a defendant, is upon the words ‘fair trial’: Page v The Central Queensland University  QCA 478, per Keane JA at . For example, there was no actual prejudice suffered by the respondent “so as to render a trial unfair” in Brisbane South Regional Health Authority (supra), at 551 – 552.
- The respondent has not established that it will suffer prejudice or that it cannot have a fair trial.
- It seems to me that in the course of the period during which the proceedings could have been commenced, the applicant was preoccupied with workplace issues and other adverse health conditions for which she was seeking treatment. The workplace issues were the alleged significant and unreasonable conduct at the hands of her employer, which it is said caused stress and a requirement to work long hours and undertake significant driving commitments. I am satisfied that it was only over time and with the gradual adverse progression of her symptoms that the applicant came to the realisation that she could no longer cope with her employment.
- I am satisfied that having regard to her capacity to cope at work for the time after the motor vehicle incident, the medical advice she received and her personal and work circumstances, the applicant took all reasonable steps to find out the material facts.
- In my view there will be severe prejudice to the applicant by a refusal of the application: Cousins v Mt Isa Mines Ltd  QCA 261 at . It follows that the issue litigated on this Application should be resolved in favour of the applicant.
- The applicant has met the test required in s 31 (1) of the Act. The limitation period for her claim for damages for personal injuries is extended. The Amended Claim was filed by leave on 25 August 2016.
- Application granted
- I will hear the parties as to costs on a date to be fixed.
- Published Case Name:
Birch v AAI Limited
- Shortened Case Name:
Birch v AAI Limited
 QDC 66
21 Mar 2017
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QDC 66||21 Mar 2017||-|
|Appeal Determined (QCA)|| QCA 232||13 Oct 2017||-|