Written by Peter CarterAugust 30, 2013
A self-represented wellness consultant – injured when passing by Santos House in Turbot St on her way to give evidence at the since decommissioned Law Courts complex at North Quay – has gained a limitation extension to pursue a personal injury damages claim against the Brisbane City Council and the building’s owners.
Margaret Hernandez, 64, was injured on 10 June 2010 when her head struck a protrusion from the recently completed barrister chamber building. Shaken, the single mother-carer managed to complete her character testimony at unrelated trial, breaking to apply ‘magnetic water’ for pain relief to an egg-sized lump that had appeared on her forehead.
Things got worse for the sexagenarian when she later fell and injured her shoulder when climbing out of bed to attend to her disabled and high-needs adult son. This was, she claimed, a result of the Santos House head strike.
Despite contacting the building’s insurer in 2010, Hernandez didn’t notify the Council of her claim until February 2013. In the meantime, she approached two law firms for advice but they both declined help on suitable terms. She suffered a minor stroke in July 2012 which she also attributes to stress added by the footpath accident.
On 3 June 2013, she received legal advice that recommended an originating application to allow urgent proceedings to be commenced before the expiration of the limitation period. Unable to afford the quoted $5000 in fees, the resourceful Ms Hernandez filed the application herself the next day.
Set down for hearing on Tuesday 11 June 2013 – one day after the third anniversary of the event – his Honour published his ex tempore judgment that day. The BCC opposed the leave to commence proceedings application on the grounds that the claimant had provided no reasonable excuse for her delay in serving a complying PIPA notice.
The District Court ruled in her favour considering the delay and her excuse for it – attributed to her full-time carer obligations – to be reasonable. The BCC also contended that the application should be refused because the substantive claim had poor prospects of success.
Hernandez, it said, had an obligation to look where she was going. It was not an unreasonable expectation that she should look to see what lay ahead in broad daylight, rather than periodically glancing down at her phone.
His Honour dismissed this argument at the threshold level too, noting that the Council is not absolved from its duty of care merely because a pedestrian may look down from time to time as they proceed along a thoroughfare: “A duty of care arises for authority and building owner to ensure that there is no hazard that might strike a pedestrian who is momentarily inattentive”.
Leave to commence proceedings within 60 days was granted. Ms Hernandez has cleared the first obstacle but unless a settlement is agreed, has several more to meet before she ultimately gains a win.