AAI Limited t/as Suncorp Insurance v Birch  QCA 232
Geoffrey Diehm QC appeared for the respondent in this case.
The respondent had been returning from a work-related visit to another town in February 2012 when a motor vehicle accident occurred in front of her. She stopped and went to the aid of one of the motorists. The other motorist died of his injuries. The insurer of his motor vehicle was the appellant. The respondent was very distressed by these events. She consulted a doctor who advised her that she suffered from post-traumatic stress and referred her to a psychologist. She began to have trouble at work in 2014, and found she was not coping with the travel required, especially when that travel was doubled in January 2015. In June 2015 she resigned.
In order for the respondent to be granted an extension of limitation period the respondent had to show that a material fact of a decisive character relating to the right of action was not within her means of knowledge until after the limitation period had expired, that there was evidence to establish the right of action and that there was no prejudice to the defendant. Of the three favourable findings made by the Judge, only that related to the material fact was challenged.
The respondent relied on the material fact that she could no longer continue in her employment because of her PSTD, aggravated over time by her employment. This fact was discovered between mid-July and August 2015. The primary judge described this circumstance as a combination of facts and that they placed her into a different position in relation to her prospects and right to claim, and that she had no reason to know these facts before.
The Court of Appeal held that what the primary judge had found was one material fact, that her PSTD, attributable to the accident in 2012, had been aggravated by work over time. Therefore, the appellant’s contention that two material facts could not be relied upon was groundless.
The appellant contended that, for a number of reasons, the primary judge erred in the finding. These reasons included that the respondent had stated in her resignation that it was due to the pressure of managerial directions placed on her and that she had alternative employment arranged. Gotterson JA found that the resignation did not have to give an exhaustive list of reasons, and that the respondent had explained that there was no employment for her.
Another ground of appeal contended that the respondent had knowledge of her condition as early as March 2014, and thus finding out that her PSTD had been aggravated was not a ‘material fact of decisive character’. The Court found that simply because she was having trouble coping in 2014 did not mean she was aware she had a worthwhile claim.
The appellant also argued, alternatively, that had she acted reasonably in the circumstances, she would have learned of the material fact earlier. In support of this the appellant alleged that at the time of diagnosis in 2012 she should have sought information in regard to her symptoms and how they might worsen. The court found this was answered by the respondent’s affidavit in regard to her doctor’s visit, where she stated that the visit was short, and nothing was said in relation to how the symptoms might affect her in future. Given that her condition improved a few months after that accident, there was no reason why she should have pursued it.
The appellant also argued that events in 2014 and January 2015 should have led to the respondent reasoning that her PSTD had been aggravated. The court said that given that her concern at the time revolved around the travel she was being expected to do, there was no reason for her to pursue that line of reasoning.
Gotterson JA, with whom Holmes CJ and Flanagan J agreed, dismissed the appeal.