Roseneder v Roseneder – The importance of early engagement of legal services

Published 19 Jul 2017

Roseneder v Roseneder [2014] was an application heard by Justice Ryrie, pursuant to section 31 of the Limitations of Actions Act 1974 (Qld). The section allows a claim to be made outside the statutory limitation by extending the limitation by one year.

The applicant in these proceedings suffered personal injury while travelling as a passenger in a motor vehicle accident which occurred on 15 August 2008. The driver of the vehicle lost control resulting in the car falling off the side of the road and rolling over on top of its roof.

As a result of the accident the applicant sustained injuries predominantly to his lower back which resulted in ongoing pain which got progressively worse as time went on. Ultimately on 24 December 2012, some four years after the accident, the applicant stopped his employment as a concrete and faced prospect of never working again.

The barrister for the applicant submitted that while the applicant was aware of his lower back injuries it was not until he lost his job and faced prospects of being unable to work due to the accident that he sought legal action. The barrister for the applicant submitted that it wasn’t until this point in 2012 that the applicant became aware in his mind that legal action should be sought and as such section 31 should apply giving the applicant until December 2013 to commence proceedings.

The barrister for the respondent, the insurance company, submitted that there was insufficient evidence to establish that the applicant became aware as late as 2012, and in fact became aware long before this date. As such the applicant should not have the limitation period extended.

Ultimately Justice Ryrie held that the application should be dismissed as a reasonable person in the applicant’s position would have sought legal advice earlier than the applicant had.

In coming to this decision his honour considered the chronology of medical records which showed that following the accident the applicant’s suffered a series of debilitating injuries which were directly related to the motor vehicle accident. Surgical intervention was recommended and the applicant was prescribed large amounts of opiate painkillers.

His honour applied Justice McMeekin in Baillie v Creber & Anor.  Where it was found that an applicant who suffers significant pain disabilities as a result of an accident, where pain is one where eventually he could not cope and a disability is suffering enough to restrict his working ability amounted to facts which call for “prudent enquiries to protect his health and legal rights.” 

At Gerard Malouf & Partners we are not a giant publicly listed law company, but a highly specialised and focused personal injury specialist law firm.  To protect your interests we recommend early legal advice and legal action to ensure that you obtain the best outcome following your injuries.

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