Collard v Parry [1995] QSC 236

26~~ ~c q~~~ _I+, State Reporting Bureau "- TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or .sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINANE J No 14 of 1994 DONNA MICHELLE COLLARD and JOHN CHARLES PARRY REVISED COPIES ISSUED State Reporting Bureau Date ;i.7 / ·/ / 1S- Applicant Respondent ~ 1 TOWNSVILLE .. DATE 27/07/95 .. ORDER - - - ·- ,.,.,,,.. - .. .. ---· --- ... ,. .... -- 1 of 6 -- 270795 HIS HONOUR: The applicant was involved in a motor vehicle accident on 10 September 1990. It is conceded that there is evidence to establish the right of action in so far as the element of negligence is concerned, and it is not necessary for me to deal any further with that subject. The applicant was taken to the Townsville General Hospital where she remained for some days. In her affidavit, she describes the pain from which she, at that time suffered, and she says that the symptoms which were essentially, headaches, resolved. There is evidence from Dr Callanan who was called, and who was a deponent, that the description of the headaches which appears in the records relating to the applicant's treatment is, in his view, of an occipital type. There were, however, not diagnosed as such but rather diagnosed as post-concussional headache. There is evidence that about a month later, the notes reveal that these symptoms were 10 20 30 C resolving and this, in my view, supports the course of events l~ 40 that the applicant describes. Subsequently, in about June or July of the following year, the applicant started to develop headaches of increasing frequency and severity. It would appear from records of Dr Keyes, who is a general practitioner she attended, that this was in June 1991 and the notes 50 describe her as then suffering from left-sided occipital neuralgia. She says that in about October of that year, she was still having problems and attempted to see Dr Reimers but was not ORDER 2 60 -- 2 of 6 -- 270795 able to see him until approximately March 1992 when he told her that she had a condition which I take to be occipital neuralgia, although it is described in somewhat slightly different terms in her affidavit. He referred her to Dr Callanan at the Pain Clinic at the Townsville General Hospital. She says, and I have no reason to doubt, that no-one suggested to her at this time that her condition was a consequence of the accident of September 1990 and she says that she herself read a good deal about the subject and had no reason to reach such a conclusion. I should add that the applicant is now an invalid pensioner and says that her invalid pension is the result of occipital neuralgia from which she suffers. Dr Callanan first saw her in March 1992 and she was treated over the following couple of years until in December 1993, Dr Callanan raised with her the question of a motor vehicle accident and says that he mentioned to her the possibility that her occipital neuralgia was related to the accident which she had been involved in. It was shortly after this that the writ was issued and this application was made. Dr Callanan has given evidence before me that having regard to the symptoms which are described in the notes four days after the accident, and notwithstanding the fact that the symptoms appear to have resolved for a significant number of months, that it is likely, putting his evidence at its highest, that her occipital neuralgia is the consequence of the accident. There is some evidence that she suffered occipital neuralgia some years before the accident. She denies this and says that 10 20 30 40 50 60 ORDER 3 -- 3 of 6 -- 270795 the symptoms which she at that time was suffering from are different to those from which she presently suffers. However, Dr Callanan, in an affidavit sworn by him is of the view that assuming she was in fact suffering from occipital ~ neuralgia, then if, as she says, she did not have any symptoms of the kind which led her to see Dr Patroni for a very significant time prior to the accident, then it is likely that that condition had resolved itself and she has suffered the occipital neuralgia of which she presently complains in the accident. Alternatively he says that she had been suffering from a mild type of occipital neuralgia, and the absence of symptoms for a significant period prior to the accident would suggest that if that condition was continuing, the accident exacerbated it and has left her with a much more serious problem. In either event, it seems to me that the applicant has established the existence of evidence which links the occipital neuralgia from which she presently suffers, to the accident. The resolution of that is a question of fact which will be a matter for the trial judge. I am satisfied that the applicant did not before the date which is relevant here, namely, 2 February 1993, that she suffered from occipital neuralgia which was a consequence of the accident in question. I am also satisfied that no criticism can be made of the steps taken by the applicant to ascertain the nature of the condition from which she suffered, and on the evidence, the persons who she saw in relation to ORDER 4 10 ( 20 ( 30 ( L 40 50 -- 4 of 6 -- 270795 this did not at any time raise with her or suggest to her that the occipital neuralgia was the consequence of the accident. I am satisfied therefore that no criticism can be made of the steps taken by the applicant in relation to her condition up · 10 until the time that the applicant was informed by Dr Callanan of the possibility of the link between the accident and the occipital neuralgia. It may well be that what Dr Callanan told the applicant at that time would not have necessarily justified the taking of action. However, I think, for present purposes, all that I have to concern myself with is being satisfied that prior to 2 February 1993, the relevant material factor of a decisive nature was not within the applicant's means of knowledge. Whilst there were some submissions directed towards the question of whether the applicant had the relevant means of knowledge prior to today and thus whether the application itself might have been premature, ultimately, counsel for the ~_, respondent did not contend that view ought to be taken of the facts. In the circumstances, I order that the time for the institution of proceedings by the applicant against the respondent in respect of damages for personal injuries sustained in a motor vehicle accident on 10 September 1990 be extended so that the limitation period expires on 3 February 1994. ORDER 5 20 30 40 50 -- 5 of 6 -- 270795 HIS HONOUR: I make no order for costs in respect of the sums, save that in respect of the adjournment of 30 June 1995, I order the applicant to pay the respondent's costs occasioned by that adjournment to be taxed. ORDER 6 10 20 30 40 50 60 ( ( ('--.._/ -- 6 of 6 --