Limitation Application: failure to take all reasonable steps

Morgan v JBS Australia PTY Limited [2016] QDC 226

The plaintiff / applicant sustained a fracture and laceration to his right index finger at work. After the ordinary limitation period expired, the plaintiff sought an extension of the limitation period based on a  material fact of decisive nature not being within his means of knowledge under section 31 of the Limitation of Actions Act 1974.

The material fact relied upon by the plaintiff was that Dr Goh predicted his finger would make a full recovery, and it was reasonable for him not to make other investigations while relying on the prognosis. Despite reservations as to the apparent conflict in the report by Dr Goh to WorkCover Qld, Judge Emerson accepted the version of the plaintiff and his former girlfriend as to what Dr Goh said, namely that Dr Goh did provide a positive prognosis for recovery.

Nevertheless, Judge Emerson was not prepared to accept that the plaintiff did not pursue further investigations despite the ongoing pain and lack of mobility:

[13] It is therefore necessary to consider not only the symptomatology and difficulties with function that presented themselves to the applicant, but also whether there was sufficient basis for assuming that they warranted the bringing of an action. Given the importance of the index finger to a person employed in the capacity the applicant was employed, and the reasonable prospects of success of an action for negligence apart from the limitation period, I am of a view that the particular focus of the inquiry of the court is whether the applicant took all reasonable steps to find that his finger was not making a full recovery as predicted, and that this full recovery was not a trivial matter from the perspective of his economic wellbeing.

[14] Although I have sympathy for the plight of the applicant, it stretches credulity that he would blindly rely upon a prognosis from Dr Goh in circumstances where, by September 2014, he now not only had pain in the finger but also swelling of the joint and a locking of the joint such that he was provided with a medical certificate stating he was unfit for work. It also stretches credulity that he would blindly follow the prognosis given by Dr Goh in circumstances he was referred to Dr Goh by his general practitioner for “reconstruction” in light of his symptomatology.

[15] In these circumstances, I am of the view that it cannot be said that a material fact of a decisive character relating to his cause of action was not within his means of knowledge until after the commencement of the year last preceding the expiration of the period of limitation for the action, because he had not taken all reasonable steps to find out that fact before that time.

David Cormack – Brisbane Barrister and Mediator

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