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  • Unreported Judgment

Oldfield v Verrocchi

 

[2017] QSC 84

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Oldfield v Mario Verrocchi & East Yarra Friendly Society Pty Ltd t/a Chemist Warehouse [2017] QSC 84

PARTIES:

LOUISE KELLY OLDFIELD

(applicant)

v

MARIO VERROCCHI and EAST YARRA FRIENDLY SOCIETY PTY LTD trading as CHEMIST WAREHOUSE

(respondent)

FILE NO/S:

No 10368 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2016; 16 May 2017

JUDGE:

Burns J

ORDER:

The orders of the court are that:

  1. The application is dismissed;
  2. The parties are directed to file and serve written submissions as to costs by 4.00 pm on 6 June 2017.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE – GENERALLY – where the applicant was employed by the respondent – where the applicant alleges that she sustained a compensable personal injury in the course of that employment – where the applicant alleges that the personal injury was in the nature of a psychiatric condition which developed over time during that employment in consequence of bullying and harassment – where the applicant gave a Notice of Claim for Damages pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – where the Notice of Claim for Damages was deemed compliant pursuant to s 278 of that statute on 12 May 2016 – whether a material fact of a decisive character was not within the applicant’s means of knowledge prior to 12 May 2015 – whether an extension of time should be granted pursuant to s 31 of the Limitation of Actions Act 1974 (Qld)

Limitation of Actions Act 1974 (Qld) s 30, s 31

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 132, s 278, s 302

Baillie v Creber & Anor [2010] QSC 52, cited

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited

Castillon v P & O Ports Limited (No 2) [2008] 2 Qd R 219, cited

Charlton v WorkCover Queensland [2006] QCA 498, cited

Dent v Langs Building Supplies Pty Ltd [2015] QSC 368, cited

Dick v University of Queensland [2000] 2 Qd R 476, followed

Handover v Consolidated Meat Group Pty Ltd [2009] QSC 41, cited

Honour v Faminco Mining Services Pty Ltd & Anor [2009] QCA 352, followed

HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, cited

Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, followed

NF v State of Queensland [2005] QCA 110, followed

Sugden v Crawford [1989] 1 Qd R 683, followed

Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, cited

COUNSEL:

G A Hampson for the applicant

S T Farrell for the respondent

SOLICITORS:

Schultz Toomey O’Brien Lawyers part of the Slater and Gordon Group for the applicant

  1. The applicant, Louise Kelly Oldfield, seeks an extension of the statutory limitation period within which a proceeding for damages for personal injuries must be commenced. Her application is brought pursuant to s 31 of the Limitation of Actions Act 1974 (Qld).
  2. The applicant’s damages are said to arise in consequence of a psychiatric condition (Adjustment Disorder with Anxiety) which allegedly developed when working for the respondent, a partnership trading as “Chemist Warehouse”. This condition was claimed to have been caused, in part at least, by “bullying and harassment” at her place of work.
  3. The “material fact” of a decisive character relied on by the applicant in support of an extension of time is a report prepared by a psychiatrist, Dr Relan, dated 6 April 2016. It was contended on the applicant’s behalf that she only became aware of the true nature and extent of her psychiatric condition on receipt of that report, despite the taking of reasonable steps and appropriate advice up until that point in time.
  4. Ordinarily, the onus would be on the applicant to establish, inter alia, that the “material fact” was not within her means of knowledge until a date after the commencement of the year last preceding the expiration of the limitation period for the proceeding. However, because of the modifying effect of s 302 the Workers’ Compensation and Rehabilitation Act 2003 (Qld), the critical date for the purposes of this application is 12 May 2015, being the date that is 12 months prior to when the applicant’s Notice of Claim for Damages was deemed compliant pursuant to s 278 of that statute.
  5. As such, if prior to 12 May 2015 the applicant was already possessed of such facts as would be regarded by a reasonable person, properly advised, to justify the bringing of the action, the application must fail. That is because, in that circumstance, the contents of Dr Relan’s report could only have gone to an enlargement of the applicant’s prospective damages and could not be said to have the quality of decisiveness required by s 30(1)(b) of the Limitation of Actions Act.

Facts

  1. The applicant is 39 years of age. She commenced employment as a “picker and packer” for the respondent on 29 September 2011. Initially, the applicant was based at a distribution warehouse for the business in Geebung but, on or about 22 October 2012, she was assigned to duties at a distribution warehouse in Banyo and was, from that time on, required by the respondent to work from those premises.
  2. According to the applicant, her workplace problems commenced when she moved to Banyo. However, it should not be thought that the applicant did not suffer from anxiety until then. In that regard, on 12 March 2012, the applicant attended on her general practitioner, Dr Spurling, complaining of being “tired and stressed”. She had been caring for her mother following the death of her father and developed anxiety issues in consequence. It appears that she then had a short period of time off work. The applicant returned to see Dr Spurling eight days later and, on that occasion, said that she was “not ready to cope with work yet”. She complained of insomnia and was prescribed medication including an antidepressant (Endep). She was followed up by Dr Spurling on 10 April 2012. On that occasion, she told Dr Spurling that, although she had by then returned to work, she was “more emotional on Endep and weepy” so she had stopped taking that medication. She was given counselling about her mother and prescribed a benzodiazepine (Serepax). At further follow-ups on 4 and 29 May 2012, the applicant told Dr Spurling that she was feeling a lot better but, on 8 August 2012, Dr Spurling referred her to a psychologist, Ms Hitzke. In the referral letter, Dr Spurling noted that the applicant had suffered from “ongoing anxiety issues” for two years. Dr Spurling did not think that the applicant was depressed. At subsequent consultations, the applicant was encouraged by Dr Spurling to “start with the psychologist” but it is unclear whether she did so.
  3. That said, it cannot be doubted that the move in the applicant’s place of employment had a significant effect on her. At Banyo, the staff from another distribution warehouse were amalgamated with the staff (including the applicant) who had previously worked at the Geebung warehouse. Some of the staff the applicant had not previously encountered, and one in particular, made the performance of the applicant’s duties difficult and otherwise conducted themselves in ways that the applicant interpreted as bullying.
  4. The effect on the applicant was not immediate, but it built up over time.[1] On 16 April 2013, she returned to see Dr Spurling. The applicant complained that she was “getting bullied at work” and that it had “probably [been] happening” since October 2012. She said that her manager was “not helpful”, and nor was her area manager. The applicant told Dr Spurling that things had been said to her which had “a nasty undercurrent”. In the first of her affidavits read in support of this application, the applicant swore that her manager would not allow her to take morning tea breaks, that her team leader spoke to her “in rude and condescending ways in front of other staff members”, that she had been belittled in front of other staff members, that she had been isolated and that information had been deliberately withheld from her in order to “set [her] up to fail”. At Dr Spurling’s request, the applicant completed a “GP Mental Health Treatment Plan” in which she identified “bullying at work” as the source of her problems. She was referred to another psychologist, Dr Newrick, for advice about coping strategies.
  5. The applicant reported the bullying to the respondent’s State manager, Mr Hughes. That occurred on 15 March 2013. Then, on the day after Dr Spurling referred the applicant to Dr Newrick (17 April 2013), she reported it to the respondent’s Human Resources manager, Mr Clancy. She also tried to keep working but was clearly finding things difficult.
  6. The applicant returned to Dr Spurling on 1 May 2013. She said that she was “terribly stressed” by the “same work issues”, and confirmed that she had been “harassed at work” on an ongoing basis by her manager. The applicant gave the example of “being addressed by [the] manager as Forest Gump”. She felt humiliated. Dr Spurling prescribed an antidepressant (Pristiq) and advised the applicant to start seeing Dr Newrick. The applicant reported at a follow-up consultation on 21 May 2013 that she had acted on this advice.
  7. At around this time, the applicant also consulted a firm of solicitors, Trilby Misso. She later swore that this was “simply for advice on the process of pursuing a damages claim should I wish to do so”.[2] On 23 May 2013, she received a letter from Trilby Misso. It contained this confirmation:

“[You] do not want us to take action on your behalf at this stage.”[3]

  1. The letter of 23 May 2013 continued:

“We should stress the fact that the following steps must be undertaken or you will lose all your rights to pursue your claim:

 You are required to lodge a Notice of Claim with WorkCover and it must be accepted as compliant within 3 years of the date of accident. Please be aware that at some stage WorkCover may issue you with a Notice of Assessment containing a lump sum offer. If you are assessed as having a work-related impairment (WRI) under 20% and accept the offer, you will lose your entitlement to seek damages. It is therefore very important that you obtain legal advice before you make any decisions regarding the offer.

Even once the above procedural step has been complied with, you must still commence court proceedings:

  • within three (3) years from the date of the accident or incident causing injuries; or
  • by the twenty-first birthday of a person injured when they were minor; or
  • within two (2) years in the [sic] case involving watercraft and aircraft accidents.

If you do not commence court proceedings within the timeframe that applies to your case, you will lose all rights to pursue your claim no matter how serious your injury.

We confirm that since we do not act for you, we have not done any of these things on your behalf and will not be retaining any records in relation to your matter”.[4]

  1. On 5 June 2013, the applicant returned to Dr Spurling. She said that she was “not coping back at work” and that her “support manager had been more aggressive, vindictive and covert since she realised [the applicant] had made a complaint”. A whole segment of the respondent’s staff was no longer talking to her. The applicant said that she was “too scared to go into work”. Dr Spurling certified the applicant as being unfit to work from 5 June 2013 to 28 June 2013.
  2. On the same day (5 June 2013), the applicant completed an Application for Compensation pursuant to s 132 of the Workers’ Compensation and Rehabilitation Act. In it, she recorded that her symptoms were first experienced by her on 1 October 2012 and that the nature of her “injury” was “psychological … as a result of ongoing bullying”. She said this had been occasioned:

“Through bullying over a period of 7 months. Bullied by support manager and fellow team members.”[5]

  1. The application was accepted by the respondent’s workplace insurer, WorkCover, and the applicant was paid benefits until November 2013. In a “Psychological and psychiatric injury” claim form signed by the applicant a little under two weeks later (17 June 2013), the following appears in answer to a question whether (and when) there had been any change to her symptoms:

“They have increased since the beginning of May 2013 when I began trying to inform HR about my situation. My support manager … made a threat that I may lose my job due to excessive time away from work. The time I have taken as sick leave has actually been due to her bullying. Also around this time, another employee who was being bullied moved on to a new job and [W] (my bully) hired 2 more of her friends so the focus has shifted entirely back to myself”.[6]

  1. The applicant forwarded the “Psychological and psychiatric injury” claim form by email to WorkCover. In that email, she provided some “additional information regarding [her] situation”. Relevantly to this application, she wrote:

“The lady at work who has been bullying me for the past 7 months is my support manager, [W]. [W] has employed many of her family and friends so my situation has become increasingly difficult. I work with [W’s] husband, daughter, son-in-law and many of her friends.

The bullying began in October of 2012. This is also when I first mentioned it to my doctor. The first serious complaint that I made was to the state manager, Travis Hughes on 15/03/2013. No action was taken so I then brought the issue to the attention of Darren Clancy who is the HR manager on 17/04/2013. Darren from HR and the logistics manager Mark Simms, came up from Melbourne to deal with the issue on 07/05/2013 as other staff members had made similar complaints.

The bullying subsided for a couple of weeks following their visit and then it began again in late May. I am given impossible tasks so that I am constantly being set up to fail, I have information withheld from me so that I am unable to perform my job properly and I am also called names and made to feel intimidated. It has gotten to the point where I am afraid that I will be falsely accused of theft, blamed for errors that I am not responsible for, or at the very worst, physically assaulted as I am leaving work.”[7]

  1. The applicant was away from work between 5 June 2013 and 16 July 2013. When she returned, she did so on a graduated basis. In the meantime, the applicant attended two sessions with Dr Newrick (on 2 and 9 July 2013), after which Dr Newrick provided a written report to WorkCover on 15 July 2013. Dr Newrick reported:

“[The applicant] is currently suffering from Adjustment Disorder with mixed anxiety and depressed mood … as a result of being the victim of severe bullying that occurred in her workplace. Basic psychometric assessment indicated that she is currently experiencing a high level of anxiety and depression.

[The applicant] reports that she is highly motivated to return to work but has some concerns about her ability to return in a full-time capacity. I support a short-term graduated return to work plan and believe this may help to minimise [her] anxiety level in relation to her return to work as well as minimising the chances of [the applicant] experiencing further psychological trauma.

Subsequent sessions will focus on teaching [the applicant] cognitive behavioural strategies to manage her symptoms of anxiety and low mood (including relaxation strategies and cognitive restructuring) and develop coping strategies to aid her return to work.”[8]

  1. I interpolate that, when giving evidence on the hearing of this application, the applicant was asked whether she was aware of Dr Newrick’s diagnosis at the time when it was made. She said that she was not provided with a copy of the report and was not informed of the diagnosis contained within it.[9] I have no reason to doubt the applicant in this or, indeed, any other regard. She was an honest witness.
  2. After returning to work, the applicant was next seen by Dr Spurling on 26 July 2013. She told Dr Spurling that she was “not enjoying being back at work” and described it as an “uncomfortable situation”. When reviewed on 2 August 2013, the applicant was “still having problems going to work”. She said that she liked her job and that she knew that “she is good at it”. She was content to continue working on a part-time basis. She was still on medication and still seeing Dr Newrick. A week later (9 August 2013) the applicant told Dr Spurling that she was “coping most days” although she received “smart remarks and the jeering” on one day and “couldn’t cope” on another. She told Dr Spurling that she was “not scared at work any more”.
  3. On 30 September 2013, the applicant attended on Dr Spurling. She said that she was “not so good” and that “going back [to work] was a big mistake”. She could not “face work” on the previous Friday. The applicant was encouraged to return to work and, by 16 October 2013, she found herself working with a new supervisor. On that day, she told Dr Spurling that she “doesn’t feel [the] need to take any time off”. Then, on 29 October 2013, the applicant reported to Dr Spurling that she was “very happy with work”, that she was “coping really well lately”, that she was “finding her new boss excellent”, that the “bully has no power any longer” and that the “team leader has changed towards her and seems to be happy to relate like a normal person”. On the same day, the applicant also saw Dr Newrick for treatment. She told her “she had been coping well” and Dr Newrick noted a “significant improvement in mood”.
  4. In the meantime, the applicant took further steps to seek legal advice. Initially, on 13 September 2013, she telephoned another firm of solicitors, Maurice Blackburn. She was told that the fee for an initial consultation would be $605. The applicant could not afford to pay that and therefore did not pursue advice from that firm. She did, however, speak with Trilby Misso again. That seems to have occurred at around the same time as the applicant consulted Maurice Blackburn.[10] Subsequently, on 29 November 2013, Trilby Misso forwarded a letter to the applicant to thank her for her “recent enquiry”. The letter continued:

“On this occasion, we are unable to act for you on a speculative no win, no fee basis. Please note that our decision to decline your instructions in this matter should not in any way be interpreted as an opinion by us as to your prospects of success in a claim. We offer no opinion on your prospects of success.  We strongly suggest you seek a second opinion if you wish to pursue the matter.”[11]

  1. In one of the affidavits sworn by the applicant in support of this application, she recalled:

“As I understood (and understand) the pursuit of such a claim for damages is an expensive process costing potentially tens of thousands of dollars and I did not have the financial means to pursue a legal action on my own, I decided not to pursue the possibility of a damages action any further at that time.

Despite the advices given in the letter of Trilby Misso Lawyers dated 29 November 2013 that I could seek a second opinion, I considered that as they were experienced in the area of personal injuries law and did not consider my case worthwhile pursuing on a no win/no fee basis, that it was not worthwhile me pursuing the matter further.

By December 2013 I was also feeling much better and as one of the employees who had been bullying me had been fired, I felt I would be able to cope at work in the future.”[12]

  1. In much the same vein, on 5 December 2013 the applicant told Dr Spurling that “all of her problems [were] over”. She said that the “bully was fired 2 weeks ago”. It is also to be observed that, by that time, the applicant had received seven sessions of treatment from Dr Newrick.[13] Furthermore, WorkCover ceased paying the applicant any benefits on 11 November 2013.
  2. As to the benefits that were paid, the applicant was initially away from work for six weeks but, after she returned, she appears to have been working for three days each week. In her words, the applicant was “trying a gradual return to work”. When giving evidence, the applicant recalled that she also “ended up leaving work again for a little while” because she was involved in “another incident” with her supervisor. She then returned to work when a new supervisor was appointed in, she recalled, November 2013.[14] Thus, the statutory benefits she received would appear to have been referable to the period when she was initially away from work and, thereafter, because of her inability to work on a full time basis.
  3. In late January 2014, the applicant attended on Dr Spurling complaining of “problems with mum”. She told Dr Spurling that she and her mother “fell out after Christmas” but that they were “over it”. Further consultations took place on 18 March and 16 April 2014. On the second of those occasions, the applicant reported that she was “happy and enjoying work again”. However, on 8 May 2014 she told Dr Spurling that she was “feeling really depressed” and was “stressed and guilty about mum again”. She told Dr Spurling that she “would consider seeing a counsellor again, [especially] to resume contact with mum”. At a consultation on 30 June 2014 the applicant told Dr Spurling that she was “feeling well and happy” but, on 18 August 2014, she reported being “down for the last week” for “no obvious reason”. She was depressed again.
  4. In early September 2014, the applicant attended an “off-site work course” to obtain a licence to operate a type of forklift called an “order picker”. Throughout the course, she felt that her trainer (an external provider) was “putting [her] down”. She said that this “just completely broke” her[15] and that, in consequence, she made an attempt on her life on 7 September 2014. She had stockpiled a number of repeat prescriptions for Serepax. She visited a number of pharmacies to have the prescriptions filled and then travelled to the Gold Coast. There, she booked into a hotel and consumed around 500 tablets. When she came to the following day (8 September 2014), the applicant contacted her partner who called emergency services. She was taken to the Gold Coast Hospital and placed on an involuntary treatment order, although she was held in the respiratory ward because she had gotten into a bathtub after taking the tablets and, presumably after losing consciousness, ingested a large quantity of water. She had also fractured an ankle which was reduced and placed in a cast. The applicant was seen by a psychiatrist periodically[16] before being discharged from hospital on 17 September 2014.
  5. A week later, the applicant was reviewed by Dr Spurling. She was given supportive counselling. She was followed up on 29 October 2014. By then, the cast had been removed from the applicant’s ankle and she was exercising. She was not seen again by Dr Spurling until 11 February 2015. By then, the applicant was back at work, but on a part-time basis. She told Dr Spurling that she could “feel herself getting depressed” and said that “going back to work has been very difficult”. She was referred to Ms Genevieve Smith, a psychologist, for assessment and was prescribed Pristiq. She attended on Ms Smith on 3 March 2015. The applicant requested “assistance in managing anxiety and depression in [the] context of work-related stress”. She gave a history of “mood dysregulation and managing mood with excessive doses of medication” and told Ms Smith that she believed “addiction has been an overriding theme in the past”.
  6. Subsequently, the applicant reduced her hours of work, initially to 25 hours per week and then to 20 hours per week on a permanent basis. She was working at that level at the time she was seen by Dr Relan.[17]
  7. In January 2016, the applicant sought advice from her current solicitors, Schultz Toomey O’Brien. She did this because she believed her “symptoms still had not resolved”.[18] After taking instructions, her solicitors requested a Permanent Impairment Assessment from WorkCover on 14 January 2016 and, for this purpose, the applicant was examined by Dr Relan on 23 March 2016.
  8. As previously mentioned, Dr Relan provided a report on 6 April 2016 In it, the following opinions are expressed:

“[The applicant] is a 38-years-old woman who lives in Kallangur along with her same-sex partner. She works as a warehouse packer with Chemist Warehouse where she has been working since the last 5 years. She described facing bullying from her warehouse manager and support manager from late year 2012 to mid-year 2013. This was predominantly in [the] form of feeling quite isolated, being spoken to in a rude and critical manner, being picked on and not being given clear information. She had reported these matters to her manager, which she did not find helpful.

[The applicant] lodged a WorkCover claim in June 2013 and also lodged a complaint in this matter to the workplace, which led to the termination of [the] support manager. [The applicant] took 6 weeks off work at the time due to the stress and anxiety that she experienced and later she attended a psychologist and was also prescribed antidepressant medication, which she continued for about 6 months. She was able to return to work after having 6 weeks off in mid July 2013; however only on a part time basis, working 3 days a week.

[The applicant] described a pattern of abuse of Oxazepam and Panadeine Forte during this time, which gradually worsened over time as she continued to experience some degree anxiety symptoms in [the] context of being at the workplace. She described an incident in September 2014 when she had been experiencing extreme anxiety and dysphoria in the context of heavy abuse of Oxazepam and Panadeine Forte that she ended up taking an overdose as a suicide attempt. Unfortunately she sustained a fracture of the ankle, which [was] required to be placed in a plaster cast and she also required physiotherapy for the same.

After that incident [the applicant] had an involuntary admission at the mental health unit at the Gold Coast University Hospital. Subsequently she did not attend any particular psychological or psychiatric treatments on an ongoing basis. She had to take time off work for her ankle injury up until February 2015, when she returned to work on a part-time basis. Subsequently she was allowed to reduce her work, initially to 25 hours per week and then to 20 hours per week on a permanent basis. She continues to work at that level at the present time.

[The applicant]'s previous history has been characterised with at least 2 periods when she experienced anxiety and depression in the past when she even required treatments with antidepressant as well at least on 1 occasion. She was not consistent in taking the antidepressant medication at [the] time. Also her history suggested her as being a person of highly anxious nature from very early on, which over time appeared to have developed as Generalised Anxiety Disorder. She also had a family history of both parents suffering from alcoholism, anxiety and depression and specifically her mother receiving treatments with antidepressant medication.

I consider that [the applicant] had suffered from an Adjustment Disorder with Anxiety due to the workplace issues when she lodged a WorkCover claim in June 2013. I consider that she largely improved from that; however subsequently got involved in the benzodiazepine and opiate abuse and dependence, which subsequently led to a deterioration of her mood and the subsequent suicide attempt as well. I consider that this is on the background of her suffering from generalised anxiety and anxious avoidant personality.

I consider that largely the work related psychological issues of Adjustment Disorder have settled down and her current issues appear to be in the context of her constitutional disorders of Generalised Anxiety and Anxious Avoidant Personality Disorder. I consider that she still suffers from some chronic residual symptoms of the work related psychological component.

I consider that overall she would benefit from receiving treatments with an antidepressant medication as well as intensive psychological treatments, preferably provided by a treating consultant psychiatrist. However I note that these treatments would be predominantly for the underlying constitutional disorders of Generalised Anxiety and her Anxious Avoidant Personality as well as prescribed drug abuse. I consider that the work related component of the psychological issues appear to be in the partial remission and she should be preferably referred to the medical assessment tribunal for an assessment of any permanent impairment due to the work related component.” [Emphasis added][19]

  1. According to the applicant, Dr Relan’s report “brought to [her] attention the fact that [she] was suffering from a ‘Permanent Impairment’”. After reading the report, she became aware that her “current capacity to work part time only, would be a permanent state of affairs”.[20]  She was also concerned that she was “continuing to lose a significant amount of money” given that her employment capacity had been reduced from “full time to part time”.[21] In a subsequent affidavit, the following appears:

Prior to receiving Dr Relan’s report of 6 April 2016:

  1. I had never consulted a psychiatrist;
  2. I had never been informed that I had suffered from an Adjustment Disorder with Anxiety and in fact had never been informed of any psychiatric diagnosis;
  3. I had no appreciation that my psychiatric impairment was permanent in nature;
  4. I had never appreciated that I may not be able to work in a full time capacity again;
  5. I did not appreciate that I was still suffering from chronic residual problems of my work-related psychological injury”[22]
  1. On 5 May 2016, the applicant executed a Notice of Claim for Damages. In it, she specified that the “date of injury” was 3 June 2013 and that, on this date, she “suffered a decompensation to the extent that she was incapable of going to work”. Although there were initially some compliance issues raised by the solicitors for WorkCover, any such non-compliance was waived on 12 May 2016.[23]
  2. Thus, the applicant’s Notice of Claim for Damages was deemed compliant pursuant to s 270 of the Workers’ Compensation Rehabilitation Act on that date.

The legislation

  1. Section 31 of the Limitation of Actions Act is in these terms:

31 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—

  1.  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 year last preceding the expiration of the period of limitation for the action; and
  1.  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.

(3)  This section applies to an action whether or not the period of limitation for the action has expired—

  1. before the commencement of this Act; or
  1. before an application is made under this section in respect of the right of action.
  1. Section 302 of the Workers’ Compensation and Rehabilitation Act provides as follows:

302 Alteration of period of limitation

(1)  A claimant may bring a proceeding for damages for a personal injury—

  1.  within the period of limitation (the general limitation period) allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974; or
  1.  if schedule 5 provides for a different period for bringing the proceeding—within the period mentioned in schedule 5.

(2)  A claimant may bring a proceeding for damages for personal injury after the end of the period mentioned in subsection (1) only if—

  1.  before the end of that period—
  1.  the claimant gives, or is taken to have given, a complying notice of claim; or
  1.  the claimant gives a notice of claim for which the insurer waives compliance with the  requirements of section 275 with or without conditions; or
  1.  a court makes a declaration under section 297; or
  1.  a court gives leave under section 298; and
  1.  the claimant complies with section 295.

(3) However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held.”[24]

Consideration

  1. It was observed at the outset that the critical date for the purposes of this application is 12 May 2015, being the date that is 12 months prior to when the applicant’s Notice of Claim for Damages was deemed compliant pursuant to s 278 of the Workers’ Compensation and Rehabilitation Act.[25] Such a conclusion follows from the combined effect of the two statutory provisions set out above (at [35] and [36]) when applied to the facts just footnoted.[26]
  2. That said, as I observed in Dent v Langs Building Supplies Pty Ltd,[27] by s 31(2)(a) of the Act, the discretion to extend the limitation period is enlivened if two requirements are met. First, that a material fact of a decisive character relating to the right of action of the applicant was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action (or, as in a case such as this, after the date that is 12 months prior to when the applicant’s Notice of Claim for Damages was deemed compliant pursuant to s 278 of the Workers’ Compensation and Rehabilitation Act). Secondly, that there is evidence to establish a right of action. If those requirements are satisfied then the court has a discretion to extend the limitation period for 12 months from the time when the material fact was within the applicant’s means of knowledge. Usually, the discretion will then be exercised in favour of an extension unless there is relevant prejudice.[28]
  3. Here, it was not submitted that there will be any relevant prejudice if an extension is granted and, although it was submitted that the applicant had failed to point to the existence of evidence which, it can reasonably be expected, will be available at trial and will, if unopposed by other evidence, be sufficient to prove her case,[29] I am unable to accept that submission. In my view, there is enough to make out a right of action.
  4. As such, this application is concerned with whether the applicant has satisfied the onus on her to establish that a material fact of a decisive character was not within her means of knowledge until 12 May 2015, at the earliest. To the point, if prior to 12 May 2015 the applicant was already possessed of such facts as would be regarded by a reasonable person, properly advised, to justify the bringing of the action, the application must fail.
  5. As Thomas J held in Dick v University of Queensland,[30] the correct approach to deciding an application such as this is to first inquire whether the facts of which the applicant was unaware were material facts. If they were, the next step is to ascertain whether they were of a decisive character. If so, it must be ascertained whether those facts were within the means of knowledge of the applicant before the specified date.
  6. In the present case, the applicant relies on s 30(1)(a)(iv) of the Limitation of Actions Act, which informs that a material fact relating to a right of action includes the “nature and extent of the personal injury”. For the applicant, the “material fact” relied on is Dr Relan’s report. In particular, it was submitted that an extension of time should be granted because, until the applicant was made aware of the contents of that report, she had no idea that she was suffering from a diagnosable psychiatric condition, let alone one that was permanent.
  7. I accept that the applicant was unaware until receipt of Dr Relan’s report that she suffered from an Adjustment Disorder with Anxiety in consequence of her employment with the respondent or that she was still suffering “some chronic residual symptoms” referable to this condition. Of course, Dr Relan reported also that the applicant’s condition had “largely improved” and that “her constitutional disorders of Generalised Anxiety and Anxious Avoidant Personality Disorder” were mostly responsible for her then “current issues”. Nevertheless, the diagnosis of her Adjustment Disorder and the opinion expressed that there was a degree of permanency regarding some of its residual symptoms must be regarded as “material facts” regarding the nature and extent of her work-related injury.
  8. However, the more substantial question to the determination of this application is the one that comes next, that is to say, whether the material facts were of a decisive character.
  9. Section 30(1)(b) of the Limitation of Actions Act provides that material facts relating to a right of action are of a decisive character if, and only if, a reasonable person knowing those facts and having taken the appropriate advice on those facts would regard those facts as showing:

“(i)     that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

  1. that the person whose means of knowledge is in question ought in the person’s own interest and taking the person’s circumstances into account to bring an action on the right of action.”
  1. Both conditions must be satisfied before a material fact may properly be regarded as “decisive”. Each condition must be considered from the point of view of a reasonable person who has taken appropriate advice on those facts.
  2. In determining whether a newly learned fact has the necessary quality of decisiveness an applicant “must show that without the newly learned fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it”.[31] As Connolly J said in Sugden v Crawford:

“Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s 30(b) are satisfied. Without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action.”[32]

  1. To similar effect are these observations of the Court of Appeal in Honour v Faminco Mining Services Pty Ltd & Anor:

“It follows that the material fact is not of a decisive character if, before knowing that fact a reasonable person would know facts that that person would regard (having taken appropriate advice) as showing that an action would (ignoring the effect of limitation period) have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and that the potential claimant ought, in that person’s own interests and taking that person’s circumstances into account, bring an action on the right of action. However, if, without knowledge of that fact, a reasonable person, having taken appropriate advice, would not regard the facts known to that person as showing that an action would (ignoring the effect of the limitation period) have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of an action, then the fact is of a decisive character. Further, if, without knowledge of the material fact, a reasonable person, having taken appropriate advice, would not regard the facts known to that person as showing that the potential claimant ought in that person’s own interest and taking that person‘s own circumstances into account, bring an action, then the material fact is not of a decisive character.”[33]

  1. For the applicant, it was submitted that until Dr Relan’s report was received:

“… the applicant was not in the possession of a ‘critical mass of information’ that was relevant to her determining whether or not she had a reasonable prospect of recovering an award of damages sufficient to justify the bringing of an action.”[34]

  1. In support of these submissions, it was argued that, although the applicant had suffered psychological symptoms which she associated with workplace bullying prior to becoming aware of the contents of Dr Relan’s report, had time off work and had been in receipt workers’ compensation, she “felt, towards the end of 2013, that she had recovered” and no one had told her that she was suffering from a permanent impairment. Nor had she been advised to seek an opinion to determine whether she was permanently impaired. Thus, it was submitted, the true nature and extent of her condition as disclosed in Dr Relan’s report was very much a “material fact” of a decisive character.
  2. I am afraid I cannot agree.
  3. Properly considered, the opinions expressed by Dr Relan in his report were to the effect that the applicant’s work-related condition had “largely improved with mild residual symptoms”. The main cause of the applicant’s ongoing issues could be put down to her pre-existing and constitutional disorders of Generalised Anxiety and Anxious Avoidance Personality Disorder. Although her residual symptoms were described by Dr Relan as “chronic”, they are also described as “mild”. The future treatment recommended by Dr Relan reflected this reality – the treatment proposed by Dr Relan was to “be predominantly for the underlying constitutional disorders”. Shortly stated, I do not think that Dr Relan’s report was capable of doing much to enhance the applicant’s appreciation of the seriousness of her work-related condition. Indeed, the applicant accepted as much when being cross-examined at the hearing:

“See, I suggest that in that context Dr [Relan’s] opinion only diminishes the view that you had previously held in terms of your claim.  It didn’t amplify it.  It didn’t improve your prospects.  It diminishes the nature of your claim?Yes

Do you agree?Yes.”[35]

  1. Furthermore, I am not persuaded that the applicant’s ignorance of the precise nature of her work-related condition was at all decisive. Whatever label was applied, prior to 12 May 2015, the applicant experienced, and had received treatment (including prescribed medications) from Dr Spurling as well as Dr Newrick for her symptoms of stress, anxiety and, at times, depression. Between late 2012 and 12 May 2015, these symptoms had a significant effect on the applicant’s capacity to undertake full-time work. She had time away from work and was forced to reduce her hours. The applicant suffered economic loss in consequence. In part at least, this loss was offset by the successful claim for workers’ compensation that she made. It is true that, at times, the applicant’s condition improved, and that was certainly the case at the end of 2013, but overall it fluctuated.  Then there was the attempt the applicant made on her own life, resulting in an Involuntary Treatment Order, a period in hospital and further time off work. Simply put, the seriousness of the applicant’s ongoing symptoms, and their effect on her capacity to undertake full-time employment, should have been readily apparent. After all, the applicant regarded her plight as serious enough to take steps to retain solicitors to consider a claim against the respondent and, to that end, consulted with Trilby Misso on two occasions.
  2. In any event, I must consider the discretion from the point of view of a reasonable person who has taken appropriate advice on the facts I have summarised in the preceding paragraph. To my mind, a reasonable person, taking appropriate advice on those facts, would have appreciated that he or she had a worthwhile action to pursue and should in his or her own interests pursue it. To adopt the expression alluded to by counsel for the applicant and used by Keane JA in Castillon v P & O Ports Limited (No 2), there was already a “critical mass of information” within the applicant’s means of knowledge prior to 12 May 2015 which justified bringing the action.[36] I am accordingly not persuaded that the material facts on which the applicant relies were of a “decisive character” within the meaning of s 30(1)(b) of the Limitation of Actions Act. If anything, they could only have gone to an enlargement of her damages.
  3. In summary, prior to 12 May 2015, the applicant was already possessed of such facts as would be regarded by a reasonable person, properly advised, to justify the bringing of an action. I therefore conclude that the material facts on which the applicant relies were not of a “decisive character” within the meaning of s 30(1)(b) of the Limitation of Actions Act.
  4. That conclusion is sufficient to dispose of this application but, for completeness, I add that I am also unpersuaded that the material facts on which the applicant relies were outside her means of knowledge prior to 12 May 2015.
  5. By s 30(1)(c) of the Limitation of Actions Act, a fact will be outside a person’s means of knowledge if, but only if:

“(i)   the person does not know the fact at that time; and

  1.  as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.”
  1. This provision does not import a “reasonable person” test. As Keane JA explained in NF v State of Queensland:

“It is to be emphasised that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of “all reasonable steps”, or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act.”[37]

  1. With those principles in mind, I cannot agree that the applicant took all reasonable steps to find out the facts revealed by Dr Relan’s report. It was open to the applicant to enquire of either Dr Spurling or Dr Newrick about the true nature of her condition, including whether it was likely to have any permanent effect on her employment, but she chose not to do so. Of course, if such an enquiry had been made of Dr Spurling, it may have led to a referral to a psychiatrist for an opinion but, either way, the facts revealed by Dr Relan’s report could have been ascertained. The position is even worse for the applicant in the case of Dr Newrick because, had an enquiry been made of Dr Newrick, she already had an answer, having diagnosed the applicant as suffering from an Adjustment Disorder and reduced that opinion to writing in her letter to WorkCover of 15 July 2013.

Disposition

  1. For these reasons, the application must be dismissed.

Costs

  1. Subject to hearing from the parties, my present inclination is to order either that the respondent’s costs of and incidental to the application be its costs in any proceeding that is subsequently commenced by the applicant or that there be no order as to costs. There are several reasons for this.
  2. First, WorkCover required the applicant to make this application. That was a condition WorkCover insisted on as part of its agreement to waive compliance with the requirements of the Workers’ Compensation Rehabilitation Act. Second, the applicant may still have a claim, albeit one that cannot rely on any breach prior to 11 May 2013. If, therefore, a proceeding is subsequently commenced that relies on later breaches, the applicant may very well succeed in recovering damages from the respondent. In that circumstance, she will be entitled to set off the costs of this application against her costs in that proceeding or, indeed, against her award of damages. Third, the application was brought and maintained without any attempt by the applicant to exaggerate or embellish the facts. The applicant gave a forthright account when giving evidence, and regardless of whether doing so assisted her case. Such an approach is not only to be commended, it enabled the application to be efficiently heard and determined. Last, it cannot be doubted that the applicant has been afflicted by the conditions diagnosed by Dr Relan (being a mix of constitutional disorders and some residual, work-related symptoms) and that they have resulted in a substantial impact on her capacity for work (at least in the past). It is therefore unlikely that she has the means to satisfy a costs order.
  3. The parties will nevertheless be directed to file and serve written submissions on the issue of costs.

Footnotes

[1]  According to an affidavit sworn by the applicant on 2 November 2016 and filed by leave at the hearing, although she was “concerned and upset about workplace bullying and harassment from the time it began in approximately October 2012, [her] psychological symptoms were not significant at that time and [she] was able to continue work”: par 27. Indeed, when the applicant attended on Dr Spurling on 21 December 2012 it was to complain about another conflict with her mother. There was no mention of any problems at work despite having stated at a previous consultation (on 1 November 2012) that she was “moving to a new warehouse”. The first mention of bullying at work was not made to Dr Spurling until 16 April 2013.

[2]   Affidavit of the applicant sworn on 2 November 2016 and filed by leave; par 35.

[3]   Ibid Exhibit LK09.

[4]   Affidavit of the applicant sworn on 2 November 2016 and filed by leave; Exhibit LK09.

[5]   Ibid Exhibit LK06.

[6]   Ibid Exhibit LK07.

[7]   Affidavit of the applicant sworn on 2 November 2016 and filed by leave; Exhibit LK08.

[8]   Ibid Exhibit LK04.

[9]   T. 1-24 to 1-25

[10]   T.1-27.

[11]   Affidavit of the applicant sworn on 2 November 2016 and filed by leave; Exhibit LK011.

[12]   Affidavit of the applicant sworn on 2 November 2016 and filed by leave; pars 45-47.

[13]  Between 21 May 2013 and 29 October 2013: T. 1-23.

[14]  T.1-21.

[15]   T. 1-32 l 40.

[16]   T 1-31.

[17]  Affidavit of the applicant filed on 11 October 2016; Exhibit LOD1, page 14.

[18]   Affidavit of the applicant filed on 11 October 2016; par 20.

[19]   Affidavit of the applicant filed on 11 October 2016; Exhibit LOD1.

[20]   Ibid par 25.

[21]   Ibid par 26.

[22]   Affidavit of the applicant sworn on 2 November 2016 filed by leave; par 53.

[23]   See affidavit of Rachel Willmott filed 3 November 2016; par 3 and Ex RW-1.

[24]   The version of the Act current as at 14 August 2012 applies to this case.

[25]  The applicant executed the Notice of Claim for Damages on 5 May 2016. Five days later, the applicant was advised by WorkCover that the Notice was non-compliant but conditions were offered upon which WorkCover was prepared to waive non-compliance. Although there was some discussion between the respective solicitors about the conditions, they were finally agreed on 12 May 2016, and non-compliance was therefore waived from that date. A waiver by WorkCover of non-compliance in a Notice of Claim for Damages under s 278 of the Workers’ Compensation and Rehabilitation Act occurs only upon acceptance of the condition by the claimant: Handover v Consolidated Meat Group Pty Ltd [2009] QSC 41 at [23].

[26]  At fn 25. Also, it is to be observed that the “period of limitation” referred to in s 302(1) of the Workers’ Compensation and Rehabilitation Act includes the otherwise applicable limitation period as extended by an order of the court under s 31 of the Limitation of Actions Act: Charlton v WorkCover Queensland [2006] QCA 498 at [42]-[43].

[27]   [2015] QSC 368 at [40].

[28]Baillie v Creber & Anor [2010] QSC 52 at [4] per McMeekin J, referring to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 per Dawson J; 555 per McHugh J.

[29]  As to which, see Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431,434-5 per Macrossan CJ.

[30]  [2000] 2 Qd R 476.

[31]Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, 333 (Macrossan J).

[32]  [1989] 1 Qd R 683, 685.

[33]  [2009] QCA 352, [74].

[34]   Applicant’s Outline of Submissions; par 34.

[35]   T. 1-49.

[36]  [2008] 2 Qd R 219, [34], [41].

[37]  [2005] QCA 110, [29]. And see HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168.

Close

Editorial Notes

  • Published Case Name:

    Oldfield v Mario Verrocchi & East Yarra Friendly Society Pty Ltd t/a Chemist Warehouse

  • Shortened Case Name:

    Oldfield v Verrocchi

  • MNC:

    [2017] QSC 84

  • Court:

    QSC

  • Judge(s):

    Burns J

  • Date:

    23 May 2017

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 84 23 May 2017 -

Appeal Status

No Status