Silvester Brothers (Amhuk) Ltd v Evans
[1999] QCA 111
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Silvester Brothers (Amhuk) Ltd v Evans[1999] QCA 111
- Add to List
Silvester Brothers (Amhuk) Ltd v Evans[1999] QCA 111
Silvester Brothers (Amhuk) Ltd v Evans[1999] QCA 111
COURT OF APPEAL
de JERSEY CJ
DAVIES JA
THOMAS JA
Appeal No 9819 of 1998
SILVESTER BROTHERS (AMHUK) LIMITED Appellant
(First Defendant)
and
ANTHONY JAMES EVANS Respondent
(Plaintiff)
BRISBANE
DATE 09/04/99
JUDGMENT
THE CHIEF JUSTICE: The appellant appeals against an order made under section 31 of the Limitations of Actions Act extending a limitation period in respect of a cause of action by the respondent against his employer, the appellant, arising out of an incident on 21 November 1989. The respondent injured his left shoulder. The learned primary Judge extended the limitation period until 6 February 1998 when the writ issued.
The relevant material fact grounding the extension was a favourable specialist opinion as to the existence of a causal link between the actual and prospective left shoulder symptomatology and the 1989 injury. That came to the actual knowledge of the respondent on 16 October 1997 through an orthopaedic surgeon, Dr Shaw.
The only matter pursued before His Honour was the issue of jurisdiction to entertain an extension application in context of failure to take all reasonable steps to find out that fact before the commencement of a period of 12 months prior to the issue of the writ, that is 6 February 1997. His Honour found that a person acting reasonably in the position of and with the understanding of the respondent would not have taken further steps earlier than October 1997 to ascertain that fact.
The test under section 30 paragraph C is an objective one to be applied to a person in the position and with the understanding of the plaintiff (see Castlemaine Perkins Limited and McPhee [1979] QdR 469).
The factual issues before His Honour were first whether the respondent unreasonably failed to obtain proper medical advice in that he chose to rely on the, in a sense, adverse reports of Drs MacFarlane and Liebowitz in circumstances where he had previously consulted and gained some arguable support the other way from Dr White to whom he had been referred by his general practitioner; and second, any significance of his failure to produce for further medical opinion X-rays which were obtained in January 1990 but which he had mislaid until after he obtained legal advice in 1994. As to the first of those matters, the learned Judge said:
"The applicant was entitled to rely on the expressions of opinion of Dr MacFarlane, an orthopaedic surgeon, and Dr Liebowitz. It is relevant to that conclusion that his reliance was against a background of legal advice which he had sought and accepted and in circumstances in which he was well able to continue working and was, in fact, continuing to work without any material difficulty. In my view it is expecting rather too much of a person acting reasonably `in the position and with the understanding' of the applicant. to question the advice of specialist medical practitioners and to advert to the desirability of a further opinion."
As to the second of those issues, the Judge was influenced in favour of the applicant/plaintiff by the circumstance that the applicant had been presented with the opinions of two medical specialists and as he concluded:
"There was nothing which would cause him to form the view that a reference back to Dr White or a referring of Dr White's report to another medical practitioner would be of any particular assistance."
He said, in addition:
"he was entitled to have regard to the fact that although Dr Liebowitz did not have access to the X-rays he had given his 1994 report with the benefit of the report which accompanied the X-rays."
His Honour concluded:
"A person in the position of the applicant could not reasonably be expected to think that the showing of the X-rays to yet another medical practitioner or to Dr Liebowitz would be likely to bring about any change in the opinions earlier expressed."
He was influenced by his assessment of the applicant as he gave evidence and Mr Douglas, who appeared today for the appellant, sought to draw support from some of the answers given in cross-examination by the applicant but as to that His Honour said:
"It is necessary to have regard to the applicant's relative lack of education and relevant sophistication when assessing the reasonableness of his conduct. In cross-examination he conceded an awareness of the reference to the missing X-rays and Dr Liebowitz's report and that the X-rays were relevant to the forming of a relevant medical opinion. However, it is not necessarily unreasonable for a person not to have constantly at the front of his mind the desirability of reviewing and upgrading prior advice when another piece of relevant information comes to hand. The applicant was an accommodating witness. In my view he was inclined to give unqualified answers to questions in circumstances in which a more sophisticated, but truthful witness, would have given a qualified answer. The applicant did not turn his mind to the significance of the X-rays when rediscovered and his inaction in that regard was not unreasonable."
I consider that there was reasonable ground for those conclusions and that for us to depart from them would be contrary to the approach an appellate Court should take conscious of the limitations expressed in such cases as Deveries and Australia National Railways Commission (1993) 177 Commonwealth Law Reports 472. Taking the view that those findings and that approach were reasonably open, I would dismiss the appeal.
DAVIES JA: I agree.
THOMAS JA: I agree.
THE CHIEF JUSTICE: The appeal is dismissed with costs to be taxed.