Limitations of Actions: nil material fact and heaps of prejudice

Feher v Commonwealth; Feher v WorkCover Queensland [2016] QDC 275

Rafter SC DCJ

The plaintiff was employed as a quarantine inspection assistant by the defendant, Workforce Action Pty Ltd (Workforce). The plaintiff was injured in 2006 while working at the Port of Brisbane. The plaintiff had slipped on a rung of a ladder and sustained a knee injury.

In 2014, the plaintiff was granted leave pursuant to s 43 of the Personal Injuries Proceeding Act 2002 to commence proceedings against the Commonwealth and in 2015 the plaintiff commenced proceedings against Workforce, later substituted to WorkCover Queensland.

The Commonwealth and WorkCover contend that the plaintiff’s claim was statute barred as the claims were commenced outside the three year period as stipulated in s 11(1) of the Limitations of Actions Act 1974 (Qld) (“the Act”).

Legislation and Decision

Section 31(2) of the Act relevantly provides:

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.

Accordingly, the issues for Rafter SC DCJ were whether the plaintiff became aware of a material fact of a decisive character in 2013 when he saw a medical practitioner and if so, whether an extension of time would not result in significant prejudice to the Commonwealth or WorkCover.

Material fact of decisive nature

His Honour referred to State of Queensland v Stephenson where Gummow, Hayne and Crennan JJ said:

[21] … A fact is not within the means of knowledge of the applicant if (but only if) the applicant did not know it and in so far as the fact was “able to be found out” by the applicant, the applicant had taken all reasonable steps to find it out

Rafter SC DCJ found that the plaintiff was well aware of his injury and its effect. His Honour stated:

[71] The plaintiff knew well before 15 October 2013 that he had experienced ongoing pain, stiffness, restricted movement and occasional instability in his knee. On 16 April 2008 the plaintiff underwent a right knee arthroscopy which was performed at the Medway Maritime Hospital in the United Kingdom … He was advised by the specialist that the fibres had weakened but there was nothing the surgeons could do until they actually snapped. The plaintiff assumed that if he had further surgery there would be a chance of a full recovery. It follows that the plaintiff must have known that it was by no means certain that he would make a full recovery.

[74] … The plaintiff had a considerable amount of knowledge in relation to his actual injury and there was ample information within his means of knowledge which would have justified bringing an action.


Rafter SC DCJ was satisfied that the Commonwealth and WorkCover would suffer prejudice. His Honour applied Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per Dawson J at 544, Toohey and Gummow JJ at 547 and McHugh J at 551 and 553-554.

His Honour noted its application in the recent High Court decision of Prince Alfred College Inc v ADC (2016) 335 ALR 1 at 20-21 paras [99]-[100]; [2016] HCA 37 at [99]-[100].

His Honour found a fair trial was not possible and the prejudice could not be overcome. There were numerous reasons for this including:

  • An inability to properly investigate the circumstances of the incident, including the important aspect of the ladder the subject of the fall: Fuller v Bunnings Group Ltd [2007] QCA 216.
  • Medical causation following the plaintiff’s subsequent fall in 2007 and arthroscopy in 2008:

[91] The Commonwealth and WorkCover also face potential prejudice arising from the issue of medical causation. The plaintiff fell awkwardly on his knee in 2007 and underwent an arthroscopy in 2008. Dr Peter McMeniman, orthopaedic surgeon expressed the opinion that there is no way of determining exactly which incidents caused the plaintiff’s symptoms in 2013.

[92] The fact that the Commonwealth and WorkCover face difficulties exploring whether earlier events have played a more significant role in the plaintiff’s present symptoms may result in prejudice.

The plaintiff’s applications and claims were dismissed.

David Cormack – Brisbane Barrister & Mediator

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