Flemming v Gibson

(2001) 34 MVR 40; [2001] QCA 244

Queensland Court of Appeal

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Interrogate

Catchwords

1. Limitation of Actions
2. › Postponement of the bar
3. › Disabilities
4. › Unsoundness of mind
5. › Whether brain damage causing intellectual deficit and social phobia constituted unsoundness of mind
6. › Whether person capable of managing affairs in relation to accident in manner of reasonable person
7. › Limitation of Actions Act 1974 (Qld), ss 5(2), 29
1. Limitation of Actions
2. › Postponement of the bar
3. › Disabilities
4. › Unsoundness of mind
5. › Appellate review of finding based on conflicting expert evidence
6. › Whether finding of disability reasonably open on the evidence
1. Estoppel
2. › Res judicata and issue estoppel
3. › Anshun estoppel
4. › Whether earlier unsuccessful application to extend limitation period barred subsequent application based on disability
5. › Whether unreasonable not to have raised disability in earlier proceeding
1. Appeal
2. › Standard of appellate review
3. › Findings of fact based on expert evidence
4. › Whether appellate court in equally good position to draw inferences

Quick Take

A person of borderline intellect with social phobia may be found to be of 'unsound mind' for the purposes of s 5(2) and s 29 of the Limitation of Actions Act 1974 (Qld), even where they demonstrate significant outward functioning including employment, relationships, and making a workers' compensation claim, provided expert evidence establishes incapacity to manage litigation affairs. An earlier unsuccessful application to extend the limitation period under s 31 does not create an Anshun estoppel barring a subsequent disability application where the grounds for the disability claim were not previously evident.