March 7, 2011

Elizabeth Hargans was in year 11 at Somerville House school when she was injured in June 2004 when her then-boyfriend drove into parked cars on a bottle shop run from a Graceville party they were attending.
Seated in the back and wearing a lap belt only, she sustained serious spinal and abdominal injuries requiring three weeks hospitalisation and a body cast to be worn for three months after discharge.

Despite an optimistic interpretation to the warnings given at the hospital concerning her future occupational and recreational prospects, she knew it would be unlikely that she could pursue her chosen career in personal training.
She took an additional year to complete year 12 and then enrolled in 2007 at QUT in drama, a course that required rehearsals at least twice weekly.

She was taken to be aware of the possibility of making a claim because her father had showed her a solicitor’s letter in October 2004 but none of the other passengers had claimed compensation and she was anxious that her ex-boyfriend might have some personal liability.

The coming of her 21st birthday on 9 April 2009, meant that because of s29(2)(c) of the Limitation of Actions Act 1974, she could no longer seek compensation for her injuries unless she obtained a limitation extension under s30 or Suncorp agreed not to defend on that ground.

When Suncorp’s compassion failed to materialise, her s31 application was grounded on the extent of her injuries not coming to her knowledge until 15 October 2009 when she began to experience significant back pain and physical limitations from strenuous rehearsals for a theatrical production.

She had “got on with her life and did not experience any significant pain or restriction in her activities” including when working “part-time in various casual jobs”.

She first consulted her lawyers, Murphy Schmidt, on 29 November 2009. The lawsuit was filed on 7 October 2010.
The pertinent questions before the Supreme Court* were, therefore, those under s30(1)(c):-

  • did any material facts of a decisive nature come to her knowledge of within the 12 months following 7 October 2009 (the year before the commencement of the proceedings)?
  • if known to her before then, would a reasonable person have taken appropriate advice, commenced proceedings at that earlier time?

Her Honour was of the view that Ms Hargans “knew at least from the time of her discharge from the hospital that her injuries were going to prevent her from carrying out a wide range of activities given the doctor’s specific advice”

The October 2009 symptoms “were, in fact, the realisation of the prediction that had been made to her in 2004” and did not themselves qualify as material decisive facts. Further, in Her Honour’s view, with “all the knowledge that the applicant had it was not reasonable for her to take no further action or seek further advice given the state of her knowledge from at least early 2007”.

Ms Hargans failed in her quest for a limitation extension and barring an appeal, all avenues to her for compensation have been closed.

The court accepted that she had a “tumultuous personal life until at least 2007” when she commenced her studies at QUT. It does not seem to have been contended however that such factors constituted any additional disability that might have itself extended the relevant period under s29.

One wonders the extent to which the naivete as to her legal rights was contributed to by government censorship of personal injury statements and the legal services commission enforcement of un-legislated “guidelines”.

Suncorp is certainly not complaining.

* Hargans v Kemenes & Anor [2011] QSC 015 (10/10890)  Ann Lyons J 14/02/2011

Categories: Law practice , Personal Injury , Opinonian , Litigation & Law Practice

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