SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Spain v Dipompo Jacs Constructions Pty Ltd [2009] QSC 50 PARTIES: JOHN SPAIN Applicant v WORKCOVER QUEENSLAND First Respondent and FILE NO/S: No of 2008 DIVISION: PROCEEDING: ORIGINATING COURT: DIPOMPO JACS CONSTRUCTIONS PTY LTD (ACN ) Second Respondent Trial Division Application Supreme Court DELIVERED ON: 12 March 2009 DELIVERED AT: Brisbane HEARING DATE: 27 February 2009 JUDGE: ORDER: A Lyons J Extend the limitation period CATCHWORDS: LIMITATION OF ACTIONS PROCEEDINGS INSTITUTED AFTER EXPIRY OF LIMITATION PERIOD APPLICATION FOR EXTENSION OF LIMITATION PERIOD Under s 31(2)(a) of the Limitation of Actions Act 1974 (Qld) ( the Act ) a court may extend a limitation period if a material fact of a decisive character relating to the right of action was not within the applicant s means of knowledge until a date after the commencement of the year last preceding the expiration of the limitation period ( the relevant date ) where a material fact of a decisive character relating to the right of action was not within the means of his knowledge, until a date after the commencement of the year last preceding the expiration of the period of limitation for the action Limitation of Actions Act 1974 (Qld) s 31 WorkCover Queensland Act 1996 (Qld) s 203

2 2 COUNSEL: SOLICITORS: Workers Compensation and Rehabilitation Act 2003 (Qld) Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327, followed Healy v Femdale Pty Ltd [1993] QCA 210, followed Muir v Franklins Ltd [2001] QCA 173, cited Pizer v Ansett Australia Limited [1998] QCA 298, followed Queensland v Stephenson (2006) 226 CLR 197, followed Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, followed R Lynch for the applicant K Holyoak for the respondent Nathan Lawyers for the applicant McInnes Wilson Lawyers for the defendant A LYONS J: The application [1] John Spain is 35 years old and he seeks, by this application, to extend the limitation period for the action for personal injuries he wishes to pursue against his former employer, Dipompo Jacs Constructions Pty Ltd, so that the limitation period expires on 8 July His application is brought pursuant to s 31 of the Limitation of Actions Act 1974 (the Act). The application is opposed by the respondent. Factual background [2] Mr Spain began working for Dipompo Jacs Constructions Pty Ltd in April 2002 as a form worker. On 22 November 2002, he consulted a doctor in relation to an injury he suffered lifting timbers from one area to another. What started as a slight ache in his lower back on 8 November 2002, developed into severe pain and on 22 November, he was unable to dress or get out of bed. When he consulted his medical practitioner, Dr Stevens, he referred Mr Spain for x-rays and prescribed anti-inflammatory medication. He also started physiotherapy treatment. Mr Spain indicated that Dr Stevens told him that he was having muscle spasms in his lower back. An x-ray report dated 25 November 2002 by Dr Kwok indicated: There is mild scoliosis of the lumbar spine convex to the left, can be due to muscle spasm. No bone or disc lesion is noted. Narrowing of L5/S1 disc is most likely developmental and of no clinical significance. The partes inter articulares are intact. The posterior facet joints are normal. (my emphasis) [3] Dr Stevens provided a Q-Comp Workers Compensation Medical Certificate with the diagnosis muscular trauma to lower back. It is clear that Mr Spain was initially diagnosed with a temporary incapacity from 22/11/02 to 29/11/02. A perusal of the workers compensation file also indicates that the application was lodged in November and processed in December 2002 and that liability was accepted for the injuries which were considered to be most likely due to back muscle strain. A file review by Dr Sutherland on 11 December 2002 indicates: It is possible that he has suffered a musculo ligamentus injury to his lower back lifting as claimed. The x-ray suggests only muscular spasm. GP seems to believe this is soft tissue in origin. In that

3 3 case it should settle in 4-6 weeks and if it fails to do so an E and R with an orthopaedic surgeon is indicated. [4] Mr Spain then completed a recommended injury rehabilitation course of physiotherapy for 20 sessions over two weeks. He then had a total period of temporary incapacity for a period of three months, after which he returned to full pre-injury duties. [5] Mr Spain experienced chronic lower back pain, with brief periods of exacerbation over the next two years. Mr Spain indicates that he managed the pain by resting on his rostered days off and annual holidays. [6] In November 2004, Mr Spain was concerned with the exacerbation of his lower back pain through jogging activities and sought a further appointment with his local doctor, Dr Wong who recommended a CT scan of the lumbar spine. Mr Spain states that he was told to stop running. The report of Dr King to Dr Wong, dated 4 November 2004, records in the body of the report a history of low back ache after running and then states: CT SCAN OF THE LUMBAR SPINE FINDINGS L3/4 and L4/5 levels: There is no disc protrusion, canal stenosis nor exiting nerve root impingement. No bony abnormality seen. L5/S1 level: There is a subtle retrolisthesis on L5 on S1. There is a broad based posterior disc bulge most marked on the left posteriolaterally where it abuts and appears to posteriorly displace the descending portion of the left S1 nerve root (image 27). The L5 nerve root exit unimpeded. Incidental finding of mild bony scalloping at the medial aspect of the left L5/S1 facet joint suggesting a synovial cyst. No further abnormality seen. [7] Mr Spain indicates that he did not read that report and in any event he states that the envelope indicates that it should be opened only by the doctor. The medical notes indicate that Mr Spain next saw Dr Wong on 6 December 2004 for an unrelated matter and there is no reference to his back or any reference to the report by Dr King in relation to the scans. [8] Mr Spain indicates that he considered that the pain in 2004 was an exacerbation of his earlier muscular spasms. He states that at that stage he thought his injury was still muscular and that it would settle as it had done last time if he stopped jogging. From May 2005 until May 2008 a perusal of Mr Spain s medical file with Dr Wong and his medical practice indicates that he attended on 16 occasions but did not receive any further treatment or undergo any further investigations or rehabilitation with respect to his chronic lower back pain. Mr Spain states that all he was told by Dr Wong was to stop running and that he was not told to stop heavy manual handling activities. [9] On 14 May 2008, Mr Spain attended at the Ipswich office of WorkCover and advised that he has had ongoing pain since his claim in 2004 and that he wished to reopen his claim.

4 4 [10] By letter dated 8 July 2008, Mr Spain received a notice of assessment pursuant to s 203 of the WorkCover Queensland Act His injury was described as a lumbo sacral spinal injury with a work-related impairment assessed at six per cent. He was offered a lump sum payment of $12, [11] Mr Spain states that after he received this letter he went to see a different General Practitioner and was sent for further tests. He was advised of bulges in his spine and referred to a neurosurgeon, Dr Sarah Olsen, who advised him that he could no longer work as a construction worker. Mr Spain states that at all times until July 2008 he considered that his injury was a musculo-ligamentous injury which was causing muscle spasms and that it was not until July 2008 that he was advised that the injury he sustained was more serious and involved his spine. Claim against Dipompo Jacs Constructions [12] Mr Spain now wishes to make a claim against the respondent, Dipompo Jacs Constructions Pty Ltd, for personal injuries suffered over a period of time whilst in the employ of the respondent between April 2002 and 22 November It is clear that, given the effluxion of time since the injury in 2002, the limitation period for the institution of his action has expired. [13] I consider that there is evidence that Mr Spain has a right of action against the respondent, apart from a defence founded on the expiration of the limitation period, and there is an arguable case against Mr Spain s employer for negligence or breach of statutory duty. [14] A Notice of Claim seeking access to common law damages under the Workers Compensation and Rehabilitation Act 2003 was given on 23 January The extension of the limitation period under the Limitations of Actions Act [15] It would seem that the limitation period applicable to his claim expired somewhere between 18 April 2005 and 22 November [16] However, pursuant to s 31 of the Act, the Court may order that the period of limitation be extended. Section 31(1) and (2) of the Limitation of Actions Act 1974 provides: Ordinary actions (1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person. (2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the

5 5 year last preceding the expiration of the period of limitation for the action; (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly. [17] An order under s 31 of the Limitations of Actions Act 1974, can be supported only on the footing that a material fact of a decisive character relating to the right of action, was not within the means of knowledge of Mr Spain until after the period 18 April 2004 to November 2004 and no earlier than 23 January 2008 or 8 July [18] Mr Spain indicates that at no time prior to 8 July 2008 was the actual extent and severity of his injury communicated to him. However, on the basis of information he has now received, he now understands that the injury he sustained is significantly more serious than he was told subsequent to his application for compensation, which was dated 2 December The assessment of WorkCover Queensland, dated 8 July 2008, clearly now indicates that the injury is a spinal injury which prevents him working in the construction industry. [19] Mr Spain is essentially arguing that a material fact of a decisive character relating to the right of action was not within the means of his knowledge until a date after the commencement of the year last preceding the expiration of the period of limitation for the action. Essentially, Mr Spain indicates that he did not realise he suffered a spinal injury until the notice of assessment from WorkCover on 8 July [20] The respondent submits however, that if Mr Spain knew of the content of the CT scan of 4 November 2004, then the notice of assessment of 8 July 2008 is incapable of being a material fact and there are questions as to whether it was a decisive character and was within the reasonable means of knowledge of Mr Spain. [21] In the High Court decision of Queensland v Stephenson 1 the Court adopted the dissenting reasoning of Davies JA from the Queensland Court of Appeal where he stated: The subject of the verb was in s 31 is the compound phrase material fact of a decisive character relating to the right of action one cannot have the means of knowledge of material facts of a decisive character at a time when those material facts do not have that character. If the correct question is as I have stated it then the answer is that it was after the critical date because the material facts did not acquire a decisive character until after that date. [22] The majority of the High Court added the following to the construction of Davies JA: At what the particular applicant puts forward as the relevant date, a certain fact must not have been within the means of knowledge of 1 (2006) 226 CLR 197

6 6 the applicant (s 31(2)(a)). A fact is not within the means of knowledge of the applicant if (but only if) the applicant did not know it and in so far as the fact was able to be found out by the applicant, the applicant had taken all reasonable steps to find it out. the fact which is identified must answer the description in para (a) of s.31(2) a material fact of a decisive character relating to the right of action. It is a fact of this particular quality which, until the relevant date, must not have been within the means of knowledge of the applicant. What must not have been within the means of knowledge of the applicant until the relevant date is not merely a material fact relating to the right of action in question. The material fact must be of a decisive character. The provision is so drawn as to assume that there may be material facts which are not of a decisive character. Awareness before the relevant date of a material fact, of itself, will be of no significance for the operation of para (a) of s.31(2). However, awareness of a material fact of a decisive character before that date will be fatal to an application to the court if that is what is relied upon to satisfy para (a). (supra at paragraphs [21-22]). [23] The respondent submits, that Mr Spain has not established that he found out for the first time after July 2008 that he had a spinal injury, because the report of Dr Harding, of 1 July 2008, states that Mr Spain told Dr Harding that his local medical practitioner had advised him to permanently give up running or heavy manual handling activities. In an affidavit sworn on 26 February 2009, Mr Spain indicates that he did not recall having provided Dr Harding with a copy of a CT scan dated 4 November He also indicated that he was advised by Dr Wong not to run and that he told Dr Harding he was advised to give up running. He stated that he did not recall ever telling Dr Harding that I was advised to permanently avoid heavy manual handling activities. [24] Mr Spain gave evidence at the hearing of the application. He stated that he was unaware of the serious nature of his injury until July 2008 when he was told by Dr Sarah Olsen that he had a disc protrusion and that he would not be able to return to his previous work as a construction worker. I have accepted Mr Spain s evidence. I consider that it was not until this point that Mr Spain realised that his back condition was such that he would be prevented from returning to employment for which he was qualified and for which he had received reasonable remuneration in the past. [25] I consider that the medical notes support his version of events. In particular, the medical notes in 2002 confirm that he had a muscular injury, that it was temporary and should resolve. In 2004 there is no indication in Dr Wong s notes that he ever told Mr Spain to give up construction work. It is clear that Dr Wong s notes and Dr King report record pain while running. I accept Mr Spain s evidence that he was told to discontinue running. In particular, I accept Mr Spain s evidence that, if he had been told in November 2004 that he should give up construction work, he would have had a longer period off work at that time. There is no evidence of a follow up appointment with Dr Wong in relation to the CT scan or any concern at that time by Dr Wong in relation to Mr Spain s back. It is clear, however, that he returned to work and worked for a further four years without any serious concerns.

7 7 [26] Furthermore, the notes indicate that Dr Wong did not see Mr Spain after the CT scan until 6 December 2004 and that appointment was in relation to another matter. It is clear that Mr Spain went back to see Dr Wong on a number of occasions and there is no record in any of Dr Wong s notes that he checked on his back or that he queried what work he was doing. If Mr Spain had been counselled to give up manual work one would expect this would have been noted and followed up. It is clear that Mr Spain did not cease heavy manual work and in fact, continued to work in the building industry as a form worker until the 06/07 financial year, when he began an apprenticeship as a plumber. [27] I do not consider that the commencement of an apprenticeship as a plumber is an indication that he was told to give up manual work. I think it is very clear that a plumber, particularly an apprentice plumber, would be involved in heavy manual work. Furthermore, he commenced an apprenticeship because he envisaged that, among other things, his earning capacity would be enhanced. Mr Spain, in his affidavit, stated: At all times prior to July 2008 I believed that I was suffering from a muscular problem in my back which caused me ongoing pain especially when required to engage in heavy lifting. However, I did not believe my back problem was a sinister one which was going to force me to stop work. Indeed, I believed that the plumbing option was a perfect resolution to the issue as it allowed me to continue working generally in the construct ion industry, however in a lighter role which would afford me better remuneration, better opportunities and a better lifestyle than working as a form worker.i now find myself in the position where I do not believe I can work as a form worker or complete my plumbing apprenticeship. [28] I accept that Mr Spain did not read the report of the CT scan as it is very clear that the report is addressed to Dr Wong. In any event, I consider it is unlikely that he would have understood what the report actually indicated given the reference to subtle retrolisthesis and broad based posterior disc bulge most marked on the left posteriolaterally. I also note that even if one read the report the final sentence of each paragraph says No abnormality seen or No further abnormality seen. I do not consider that even if the report and scans were in Mr Spain s possession he would have understood the significance of what was indicated in the report. [29] Furthermore, Mr Spain s injury did settle down with physiotherapy, analgesics and anti-inflammatories. He was, therefore, entitled to believe it was, in fact, a simple soft tissue injury. I consider that when Mr Spain saw Dr Olsen, this was the first time he really understood the significance of his back injury. [30] I consider that this is clear from the letter of Dr Olsen to Mr Spain s treating doctor, dated 21 August In that letter she outlined: I think he is really going to struggle in his job as a construction carpenter. I have explained to John that surgery really only helps with leg function and not back pain. He should manage I hope with simple analgesia as required and he is taking Neurofen intermittently. Heat packs will also help with the lower back pain and he should mobilise as he is able and as his back dictates. Ideally he shouldn't lift anything more than 20 kilograms and of course this is very difficult for John in his vocation.

8 8 [31] Neither do I consider that this fact was within Mr Spain s means of knowledge prior to July In Healy v Femdale Pty Ltd 2 the Court of Appeal said: The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability, fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. [32] In the present case, Mr Spain managed his pain and was able to continue with his work without significant time off work. He did not have any return visits to his doctor about his back for a period of some three years and there is no indication in the medical notes about any monitoring of Mr Spain s back condition. I am satisfied that a reasonable person in Mr Spain s position, knowing the facts he knew about his condition, their cause and the effect on his capacity for work, would not necessarily have taken any different or additional advice on those facts before July [33] In the 1998 Court of Appeal decision in Pizer v Ansett Australia Limited 3 Thomas JA said: "In appeals of the present kind, when the material fact concerns the nature and extent of personal injury, questions of degree are necessarily involved. At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it. At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension, and an appeal court could likewise readily correct an erroneous decision. Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff's knowledge and as to whether the reasonable person contemplated by s.30(b), endowed with such knowledge and having taken appropriate advice, would have brought proceedings. Appeals involving extensions of periods of limitation commonly raise these particular issues which involve factual assessments. Although the eventual decision is discretionary the determination of these issues is not. They involve findings of fact and a determination whether those facts satisfy the requirements of the statute. [34] Furthermore, as Macrossan CJ said in Wood v Glaxo Australia Pty Ltd: 4 The body of evidence which a plaintiff collects, or his assemblage of material facts, will only constitute a decisive [1993] QCA 210 [1998] QCA 298 at [20] [1994] 2 Qd R 431 at 437

9 9 collection when an appropriately advised reasonable man in his position is possessed or would, if he had enquired in appropriate fashion, be possessed of what he would regard as reasonable and worthwhile litigation prospects. The policy detectable in this legislation does not suggest that a potential plaintiff with the limitation period running against him must necessarily always commence his proceedings when he has no more than a hint of the existence of a necessary link in his chain of proof but, of course, if being at that point he delays he will do so at his peril because he will only subsequently save himself if he can persuade a judge that he did not know enough or would not, even if he had undertaken appropriate enquiries, have known enough to justify commencing proceedings at an earlier time. [35] I consider that the change in circumstances in July 2008 changed the situation from one where it was reasonable for Mr Spain not to commence an action to one where he had a worthy action. Mr Spain now considers that because of the advice he has been given in relation to his back that he faces the prospect of substantial economic loss in the future. Prior to understanding the full nature and extent of his injury Mr Spain was clearly unaware that his earning capacity would be substantially impaired and that he would be facing the prospect of this future economic loss. [36] I consider that this knowledge obtained in July 2008 was a material fact of a decisive nature because it converted a cause of action, for pain and suffering and loss of amenity due to the chronic but intermittent pain, to an action which now included a substantial component for lost earning capacity. In the 2007 decision of Greenhalgh v Bacas Training Limited & Ors, 5 which involved a consideration of whether an apprentice who had suffered a shoulder injury in 2001 should have realised at that stage that his career was over, Keane JA said: I can discern no error of law or fact in the learned primary judge s conclusion that Dr Van der Walt s opinion of 21 June 2006 was a material fact of a decisive character. In my respectful opinion, it was open to the learned primary judge to regard the 21 June 2006 opinion of Dr Van der Walt as providing to the plaintiff, for the first time, unequivocal evidence enabling the plaintiff to prove a level of economic loss which would make an action for damages worthwhile. [37] I consider that the applicant has established that there should be an extension of time. Is there prejudice to the respondent? [38] The respondent argues that, even if it is established that there are grounds to grant the extension of time, the discretion should not be exercised because of prejudice to the respondent. [39] It is clear that the onus is on the applicant to establish that the commencement of the action beyond the limitation period would not result in significant prejudice to the respondent. The respondent submits that significant time has now passed since the 5 [2007] QCA 327 at [24]

10 10 lifting incidents in 2002 and that the lifting and the way in which the weights were lifted will be in issue. The respondent submits that the witness who has been nominated is vague and has declined to assist. In addition, the respondent submits that there are obviously concerns about fading memories and recollections. [40] It is clear that the issue is whether: the proposed Defendant can obtain a fair trial, if the extension of the limitation were granted. If there is a possibility of significant prejudice to the proposed Defendant, then a fair trial is not obtainable and the extension should not be granted. 6 [41] Having perused the WorkCover file, it is clear that a witness to the incident was nominated in 2002 and that witness is still available. Furthermore, the owner and director of the insured company, is currently available and he has already given a detailed statement. In addition, details about the training given to Mr Spain are annexed to that statement. I consider that a perusal of the WorkCover file indicates very clearly that the events were fully documented at the time and indeed, were the subject of an inquiry through the Workers Compensation claims process. [42] I do not consider there is evidence of significant prejudice to the respondent such that a fair trial cannot be obtained. [43] Accordingly, there should be an extension of time. [44] I will hear the parties with respect to the form of order. 6 Muir v Franklins Ltd [2001] QCA 173 per Mullins J at [56]