Hargans v Kemenes & Anor [2011] QCA 251

I refer to my earlier posting regarding the decision in first instance. His Honour Fraser JA delivered the leading judgment. His Honour did not interfere with the facts or the application of the law by the primary judge and applied Pizer v Ansett Australia Ltd [1998] QCA 298:

[26] In HWC v The Corporation of the Synod of the Diocese of Brisbane,[16] upon which the appellant also relied, Keane JA observed that “it is not the policy of the courts in the application of s 31 of the Act 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.” Keane JA referred also to the reference by Thomas JA in Pizer v Ansett Australia Ltd to the earlier observations of the Court in Healy v Femdale Pty Ltd[17] that:[18]

“The question whether such a person has taken all reasonable steps to ascertain the nature and extent of the injury

‘.. depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights. 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, actual or notional, to take ‘appropriate advice’ or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the plaintiff to have done so. The answer to this then depends upon the primary facts concerning the level of seriousness of the plaintiff’s symptoms and of the warning signs which she undoubtedly had.”

[27] The primary judge referred to Healy v Femdale Pty Ltd in the passage extracted in [8] of these reasons. Of significance here was that the doctor’s advice to focus upon a “desk job” was a fact which, in addition to the warning signs in the seriousness of the injury itself and the ongoing pain it produced, was relevant in deciding whether or not it was reasonable to expect a reasonable person in the appellant’s shoes to take advice to protect her legal rights.

[28] There being no identifiable error of principle in the primary judge’s reasons, the issue concerns only the application of the law to the facts found by the primary judge. In Pizer v Ansett Australia Ltd Thomas JA said:[19]

“In appeals of the present kind, when the material fact concerns the nature and extent of personal injury, questions of degree are necessarily involved. At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it. At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension, and an appeal court could likewise readily correct an erroneous decision. Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff’s knowledge and as to whether the reasonable person contemplated by s. 30(b), endowed with such knowledge and having taken appropriate advice, would have brought proceedings. 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.” (footnotes omitted)

[29] The appellant’s case fell between the extreme ends of the spectrum described by Thomas JA. The appellant’s case for an extension of time was not insubstantial but it was not such a clear case that its rejection itself evidences error. I am not persuaded that the primary judge’s conclusion was affected by any error of law or fact which justifies appellate correction.

Brisbane Barrister – David Cormack


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