Rodgers v Chinsee [2024] QDC 55 (Link to JADE).
The applicant commenced proceedings for medical negligence claiming damages for personal injuries associated with breast augmentation surgery, where the limitation period for any claim against the respondent has expired.
In the context of a limitation extension application the court was required to consider whether a material fact of a decisive character was not within the means of knowledge of the applicant.
The court noted that relevant to this claim, the court has the discretion to extend the limitation period pursuant to s 31(2) of the Act, provided the applicant has established that: (i) there is a material fact of a decisive character relating to the right of action which was not within her means of knowledge until on or after 30 November 2022; and (ii) there is a right of action against the respondent (apart from the limitation issue); and (iii) there can be a fair trial.
In considering whether a material fact of a decisive character was not within the means of knowledge of an applicant prior to the expiration of a limitation period, the applicant must not have then known the fact, and so far as the fact was able to be found out, the applicant must have taken all reasonable steps to find that fact out.
Ultimately the applicant satisfied the requirements of ss 30-31 of the Limitation of Actions Act 1974 and the limitation period was extended.
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