In our October 2011 Insurance Update, we alerted you to the Queensland District Court decision of Norris v Daniel & Ors1, which involved a claimant being granted a 3 year extension to the usual 3 year limitation period applying to personal injuries claims.
The CTP insurer appealed that decision. The appeal has been heard and the Court of Appeal has delivered its decision2, which was to dismiss the appeal and to confirm the extension of the limitation period.
The CTP insurer’s grounds of the appeal will be examined in this article, but first, we will remind you of the facts.
The claimant was driving home from work on the Logan Motorway on 29 March 2005.
Her vehicle was travelling at the speed limit when an item or items fell from a truck or utility in front of her, striking her vehicle.
In attempting to deal with the situation, the claimant lost control and became involved in a collision, which she thought had not injured her in any serious way but which did cause a certain amount of property damage.
The vehicle from which the item(s) fell was not immediately identifiable. Police attended the accident and spoke with the claimant.
The claimant said an attending police officer gave her a business card on which was written the traffic incident number and that the officer told her that investigations would be carried out in an effort to identify the offending vehicle.
On the evening of the accident the claimant experienced uncomfortable symptoms and attended a hospital; investigations showed nothing serious was wrong. After a few days off work, she returned to her ordinary activities.
The claimant contacted police on two later occasions to follow up on their investigations and was told that nothing had happened and that she would be notified if anything of interest eventuated.
The claimant’s reason for following up the police was to obtain information for the purposes of a property damage insurance claim. She had no intention of pursuing a personal injuries claim. She had no knowledge of the possibility of a claim against the Nominal Defendant.
In fact, the police, within a day or so of the accident had identified the relevant vehicle and its driver. The claimant was not told of this.
Although the claimant returned to her ordinary activities, she suffered periodic symptoms for which she consulted chiropractors and/or physiotherapists for treatment. She took analgesics when required. Mostly, she learned to live with the pain and its limitations.
In August 2010, there was a spontaneous flare up of pain in the claimant’s neck, which led to x-rays being performed and the radiographer commenting that there was evidence to suggest a previous neck injury.
The x-rays confirmed that the claimant has sustained a significant trauma to her cervical spine. The claimant’s pain has been constant and more intense than before the August 2010 flare up.
Shortly after having the x-rays, the claimant made contact with solicitors, who conducted a search and discovered that the police had identified the relevant vehicle.
The claimant subsequently issued a Notice of Accident Claim form to the CTP insurer of that vehicle.
The CTP insurer raised the limitation defence.
The claimant brought an application before the District Court at Brisbane seeking an order extending the limitation period.
The Limitation of Actions Act 1974 (Qld) (Act) contains the relevant legislative provisions.
Section 11 of the Act provided the insurer with an absolute defence to the claimant’s claim; that defence being the prohibition on legal proceedings being brought after the expiration of 3 years from the date the cause of action arose (i.e. not after 29 March 2008).
Section 31 of the Act provides an exception to the absolute defence; though the exception is conditional upon a court being satisfied that a material fact(s) of a decisive character relating to the right to bring an action was not within the means of knowledge of the applicant until after the expiration of the limitation period, and, there is evidence to establish a prima facie case in the applicant’s favour except for the limitations defence.
Section 30(a) of the Act lists examples of facts that could amount to being a material fact of a decisive character (however, the list is not definitive).
Section 30(b) of the Act requires a court to determine (when considering whether a particular fact is of a decisive character) whether a reasonable person, knowing of the particular fact(s) and after taking steps to obtain appropriate advice, would consider that they have reasonable prospects of successfully bringing a claim that would result in a sufficiently large enough award of damages to justify bringing the claim, and, knowing this, then a reasonable person would take steps to bring a claim.
Primary Judge’s decision
His Honour Judge Robin QC JDC heard the claimant’s application and found in her favour.
His Honour found that the claimant’s discovery of the seriousness of her neck injury (after having her neck x-rayed) was a material fact of a decisive character.
His Honour found that the additional circumstance of identifying the relevant vehicle and its driver also qualified as a material fact of a decisive character and that the claimant’s circumstances were such that it was not reasonable for her to take steps to discover that material fact until August 2010, when she discovered the implications of the condition of her neck injury.
CTP Insurer’s appeal
The CTP insurer appealed the primary judge’s decision.
The bases of the CTP insurer’s appeal were that the primary judge:
- applied the wrong test when approaching the exercise of discretion under section 31 of the Act, or alternatively, he misapplied the facts to the correct test; and
- erred in finding the reliance by the claimant on advice of an unidentified police officer was sufficient for his finding that the identity of the at fault vehicle was not within her knowledge within the limitation period.
Court of Appeal’s decision
The Court of Appeal dismissed the CTP insurer’s appeal.
Justice Daubney wrote the leading judgment and found that the primary judge committed no error in addressing the issues in the way he did and when the primary judge’s reasons are read in context, the primary judge’s finding that the claimant had not acted unreasonably was an assessment of precisely the sort of issues addressed in the leading decision of Healy v Femdale3.
His Honour found that it is clear that a judge assessing the merits of an application in these applictions need to balance whether, on the one hand, the evidence discloses that the applicant’s degree of pain and disability was such that they ought to realise that they were in a position of vulnerability and needed to have made enquiry about a claim within the limitation period or on the other hand, the evidence establishes that there was no requirement for the applicant to have made that the enquiry because it would not be reasonable to expect them to have done so4.
Justice Daubney also found that the claimant’s evidence about the identification of the at fault vehicle was uncontroverted before the primary judge and the primary judge’s assessment that the claimant had taken reasonable steps at the time to attempt to identify the at fault vehicle did not amount to an error.
Justice Daubney then noted the observations of Thomas JA in Pizer v Ansett Australia Ltd:
“Appeals involving extensions of periods of limitation commonly raise these particular issues which involve factual assessments. Although the eventual decision is discretionary the determination of these issues is not. They involve findings of fact and a determination whether those facts satisfy the requirements of the statute. It is worth mentioning, however, that such findings and determinations are made in an area where different minds might reasonably reach different conclusions. In such a situation the appeal court is not free to decide the question according to its own preference. Unless the judgment reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference.”
Conclusion and Implications
This case serves as a useful reminder that a personal injury claim does not automatically lapse at the expiration of the 3 year period and that any claim involving an extension of the usual limitation period must be assessed on the facts of that individual claim.