Birch v AAI Limited [2017] QDC 066 Durward SC DCJ 21 March 2017

It took more than 3 years for Toni Birch injuries to manifest as serious anxiety and depression after witnessing a head-on highway collision, that by then prevented her from working.

In February 2012 she had been heading south on the Bruce Highway towards Townsville when she saw the approaching headlights lights of a Toyota land cruiser speeding towards her on the wrong side of the road. She took evasive action but the preceding Mitsubishi collided in “an explosion” with the northbound 4WD.

Toni pulled over and went to assist. The driver of the Toyota died at the scene. She provided assistance to the occupants of the other car. She reported to work the next morning as normal and continued her duties to June 2015 without so much as a day off work. As a clinical audiologist, she was required to travel by car to regional centres throughout Queensland.

On receipt of advice from a lawyer she eventually consulted in late 2015, she began a claim for compensation for the resulting loss of income.

Because she did not commence legal proceedings within the required 3 years from the date of accident. She was required to bring an application for an extension of the limitation period based on the discovery of a material fact of a decisive nature, and had 12 months to bring the necessary application was required by the relevant legislation.

Suncorp’s opposed the application for an extension of time.

Her GP had after all prescribed antidepressants and told her she had post-traumatic stress disorder as early as 2013. She also had 8 face-to-face sessions with a counsellor. While some of the stress was work-related, including an increased road travel requirement, Birch was aware that she was “still feeling affected by the fatal accident”. The court accepted though, that it wasn’t until May 2015 that it became clear that things, stress headaches, disturbed sleep and heart palpitations, were getting worse rather than better.

An admission to emergency in June due to chest pain excluded heart attack but was indicative of hypertension.

And it wasn’t until July 2016 that Birch attended her first consultation with a psychologist who diagnosed aggravated post-traumatic stress disorder relating back to the accident to February 2012.

She resigned her position in August 2015,  after realising she could no longer continue, but not before witnessing a further highway accident while travelling for work. She pulled over to the side of the road “crying uncontrollably”.

It was those two events around July 2016, realising she couldn’t continue her job; and the PTSD diagnosis, that she contended were the new material facts that alerted her to the possibility of a viable personal injury claim.

Judge Stuart Durward of the District Court in Townsville agreed.

Her continuity of employment until then and relatively minimal expenses meant that the cost of bringing proceedings would have outweighed any benefit from damages that might have been recovered. But the loss of her weekly pay packet and the adverse development of her psychiatric condition at that time put her into a “quite different” position than before, making out the necessary elements to fit the statutory limitation extension test.

Suncorp claimed the extension should nevertheless be refused because of “prejudice”. It contended the “delay in bringing the proceedings had caused an irreparable element of unfairness and prejudice which could not be cured”.

That argument was rejected and the time extension granted.

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