Faix v Nominal Defendant (Queensland) [1992] QSC 430

.:,'/;~l!~~ Iz~~~.~ State Reporting Bureau........... TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold \\ithout the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CULLINA:NE J No 45 of 1991 GUNTHER JAMES FAIX and THE NOMINAL DEFENDANT (QUEENSLAND) BRISBANE .. DATE 24/11/92 .ORDER 1 REVISED COPIES ISSUED State Reporting Bureau Date3o, ll 1 Cf.J... Plaintiff Defendant -- 1 of 5 -- ~-- -- ~-~- -- -----~~----~--~---------~---~-~--~~~-~- 241192 HIS HONOUR: :rhese qre -two ..: applications. on behalf of the applicant, Gunther J~~es Faix. The first is for an order _that t~,e .~time for tl)e instittition·:of proceedings against . the .. l)lominalDefendant,be e_xtE;:!nded pursuant to section 31 of the_Limitations of Action Act until on or after 15 April 1991, the. date upon.which_a· writ of summons was issued. The second is for a~;appl~cation to extend the time within which.to notify .the No~inal Defendant. pursuant to the provisions of. section 4F(4) of the Motor Vehicles Insurance Act 1936 as amended . .· I,t is, I think_, appropriate that the first application be considered first. Before 9oing on, I should say that the ar_plications in each case were not consented to but wer.e not the ~ubject of any substantial opposition. The applicant was inju,red on 13 September 1987 in circumstances which would satisfy the provisions of section 31(2)(b) of the Act. There are statements by two eyewitnesses and as well as evidence from the applicant himself. .It app~ars that .he was struck by an unlit trailer being towed behind a vehicle in a.car park. There are two material facts . , . . ~ of a decisive natur~.which it is said were not within the means of knowledge of the applicant prior to a date less than 12 months prior to the institution of proceedings. The first is the nature and extent of the injury which he sustained and the second is its relationship to the accident in question. Following the ,~~cident, that is on the next day, the applicant ORDER 2 10 20 30 40 50 60 -- 2 of 5 -- 241192 was taken to th~ Matkay Base Hospital suffering from a contusion and an·oedema to the brain. He was treated with medidation, whibh i§ described in some of the·material whfch has been filed a~ steroids. Within a short period of time, he made what appears to have been a complete recovery for all practical purposes with Only quite minor residual complaints: Then apparently in late 1989 he consulted a chiropractor because of pain irt his hip wh~ch he had at that time for a few weeks. The chiropractor, Dr Baxter, told him, according to the applicant, he had a pinched nerve, something which is probably a fair description of what appears in Dr Baxter's report of 12 July 1991 which is also before me. Dr Baxter did not mention to the applicant· that he may suffer from the· condition which has since been "identified, namely,· .avascular necrosis. This is, I think, clear not only from what the applicant says, but also from the contents of Dr Baxter·, s report. In March 1990, he resigned from his employment and travelled around Australia and I think it is a fair inference from this that he was not suffering significant problems from his hip or hips at that time. In late 1990, he consulted his general practitioner in-resp~ct of the complaints which he-was suffering from his hips-and he was referred by him to Dr White, an orth6paedic surgeon of Mackay. In November 1990, he was informed by Dr WhiteAthat he had · av.asc:uilar necrosis. One of the possible causes of this, apparently, was consid~red to be that at tiking steroids ORDER 3 10 20 30 40 50 60 -- 3 of 5 -- 241192. '·. -~--. administered at the time of his initial admission'to hospital. Dr White referred·him to Dr Dickinson who, _in fact, performed surgery" on him ·in Deqember 1990. Dr Dickinson has provided a report and also ati affidavit .filed on behalf of the respondents. Dr Dickinson confirmed the diagnosis o_f avascular necrosis and,is of the view which he expressed that the probable cause of this is the .steroids which the applicant administered to:him at the·relevant time. It was drawn to my attention that Dr Dickinson thought that the applicant would have been likely to have. suffered. from pain in the hips in 1989 and the material suggests that this, in fact, was the case and that was what led him to see the chiropractor, Dr Baxter. I am sati~fied that the applicant ~cted in relation to thi~ reasonably, and acted .reasonably in relation tp t.."lis and -also to· his _· subsequent conduct and his consultation with doctors. In the result then, so far as the first application is concerned, I am-satisfied that each of the material facts of a decisive nature were not within the means of knowledge of the applicant until the latter part of 1990 or, perhaps, even as early as 1991. Accordingly, I make an order extending the time for the institution of proceedings against the defendant under the provisions of the Limitation of Actions Act so that it expires on 16 April 19910 So far as the second application is concerned, I think that, ~- for similar reasons to those I have expressed in relation to the first, the extension of time should be granted. ORDER 10 20 30 40 50 60 -- 4 of 5 -- 241192 The applicant consulted a solicitor in early 1991, and on 11 February 1991, ·which was, I should say, prior to obtaining reports of Di Whit~ and Dr Dickinson but after the surgery to which I have already referred had been·perform~d, notice to 10 the nominal defendant was given. · I think until about the time of the notice being given, there was.no basis for believing that the applicant had a serious condition which was the consequence of the accident and, therefore, any basis upon which to institute proceedings against the nominal defendant .. 20 I, therefore, exercise my discretion in favour of the applicant to extend the time provided for in section·4F(4) of the Motor Vehicles Insurance Act and do so so that the time for the giving of such notice is extended until 12 February 30 1991 . HIS HONOUR: I make an order in terms of the draft initialled - by me and placed with the file. 40 50 60 ORDER 5 -- 5 of 5 --