Material fact of a decisive character – when is it reasonable not to have taken medical advice


Gillespie v Swift Australia P/L [2009] QCA 316

Gillespie’s decision discusses whether reasonable steps did not require the taking of further medical advice prior to a certain point in time.

In determining the meaning of section 31(2)(a)-(c) of the Limitation of Actions Act 1974 it was held at paragraph 20:

In considering whether reasonable steps necessitated an enquiry, the test of reasonableness is objective, with regard being had “to the background and situation of the applicant”: Castlemaine Perkins Limited v McPhee [1979] Qd R 469 at 473. Or, as Keane JA expressed it in NF v State of Qld [2005] QCA 110 at paragraph 29 :

“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.”

Accordingly, the case of Healy v Femdale Pty Ltd [1993] QCA 210 was more applicable and it was open for the primary judge to find it was not unreasonable the plaintiff did not consult a medical practitioner.

The appeal was dismissed.

For discussion of related issues:  Mason v Toowoomba City Council [2005] QCA 46 (thanks Jim Grevell).

Brisbane Barrister – David Cormack

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