SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I am satisfied the primary judge's finding, that a material fact of a decisive character relating to the right of action, was not within the means of knowledge of the claimant^[1] by 22 October 1997, was open on the evidence for the reasons given by Thomas JA and Mullins J.

2. The discretion under s 31(2) Limitation of Actions Act 1974 (Qld) must be exercised afresh because of the primary judge's error in exercising that discretion.

3. I am also satisfied that, for the reasons given by Mullins J, the claimant has shown that grounds exist for exercising that discretion in her favour; the applicant will not be materially prejudiced by the extension of time under s 31(2) Limitation of Actions Act 1974 (Qld) and the justice of the case requires the extension: see Brisbane South Regional Health Authority v Taylor.^[2]

4. I agree with the orders proposed by Mullins J.

5. THOMAS JA:  I have the advantage of having read the proposed reasons of Mullins J which make it unnecessary for me to state the facts at any length.  As I regard the case as a marginal one I will state my own conclusions.

6. The present proceedings are for leave to appeal against a decision in the District Court which extended the limitation period for the bringing of a claim for damages. It will be convenient to refer to the parties as the claimant and the defendant.

7. In my view two errors appear in the reasons of the learned District Court judge. On the issue of prejudice resulting from the failure to sue within the prescribed time, his Honour hypothesised that she had the right to commence her proceedings just before the expiry of the three year period, to wait for a further year before serving the proceedings, and thereby to preclude the defendant from receiving notice of the claim until December 1996. His Honour then observed that the prejudice in October 1997, which was accepted as the material date, would not be shown to have been any greater than it might have been in December 1996. This reveals the use of an invalid argument which would favour the position of claimants. The fallacy of such an approach was exposed in Brisbane South Regional Health Authority v Taylor.^[3]  I agree with what Mullins J has written on this point.  I also consider that his Honour's statement that "it could not be concluded that the person Tina Wilson … is not available to confirm the plaintiff's version of events" is at least suggestive of an erroneous approach as to onus on this point. 

8. Whilst the above errors do not necessarily impinge on the correctness or otherwise of his Honour's determination of the primary issue (i.e. whether a material fact of a decisive character relating to the right of action was not within the means of knowledge of the claimant by 22 October 1997), I think it desirable to reconsider the evidence de novo on all issues and to reach my own conclusions if this can satisfactorily be done on the available material.

9. In undertaking this task I have reached the same view as that which his Honour took of the claimant as an "obliging" and "laidback" person who was prepared to get on with her life and continue working despite symptoms which might have deterred persons of less determination. I also note his Honour's description of the claimant as "cheerful".

Means of knowledge of material facts

10. It is necessary to focus upon the applicant's position as at 22 October 1997. Was the nature and extent of her injury known or within her means of knowledge by that time?

11. The essential feature of the case is that the claimant is a somewhat stoical person who took considerably longer than many other claimants might take to find out what was wrong with her and to conclude that she ought to sue the defendant.     I infer that the material fact relied on by the claimant as not being within her means of knowledge by 22 October was that her injury was serious enough to produce economic consequences making legal action worthwhile.  The claimant's case was that she did not have the necessary information, nor was it within her means of knowledge until 27 October 1997, when a specialist, Dr Ho, informed her that she was suffering from a fairly serious condition requiring surgery.

12. Mr R Douglas SC for the defendant submitted two propositions – first, that by 13 October 1997 the claimant knew the material facts; and second, that even prior to 13 October she was in a position to ascertain the facts that she actually ascertained through medical consultations on 13 October and 27 October 1997.

13. The evidence clearly demonstrates that the initial injury (in December 1992) produced some pain for which she initially consulted an acupuncturist and remedial therapist. She believed she had sustained only soft tissue damage to her neck and shoulders. She continued to go to work and did not find it necessary to take any time off. Indeed over the ensuing five years the only time she could recall having taken time off work was three days in 1996. The history includes the recurrence of varying symptoms including pins and needles in the shoulder, headaches and other symptoms, some of which were diagnosed as hormonal in origin. It is unnecessary to recount the history further. It is clear that on the information obtained from the medical and paramedical persons whom she actually consulted, she did not have actual knowledge or advice that her injury was of a serious enough nature to make it prudent to commence legal action, until at least some time in 1997.

14. Mr Douglas submitted that the advice she received from her naturopath, Mr Henry, on 20 June and 3 July 1997, and the further advice she received from Dr Tan on 13 October 1997 were of themselves sufficient to induce a reasonable person to take legal action. Mr Douglas submitted that the claimant delayed unreasonably in getting qualified medical advice after Mr Henry had expressed the view to her on 3 July 1997 that something was seriously wrong with her neck, particularly as headaches at work were at that time starting to be a problem for her. About three months went by before she saw a general practitioner, Dr Tan. Dr Tan was the first practitioner who arranged for the taking of x-rays, and on 13 October, when she brought the x-rays to him, stated that there was a problem with two vertebrae in her neck that were crushed. The claimant asked what could be done to remedy the problem and was told that she should see an orthopaedic specialist who would presumably order an MRI scan which would show a much clearer image of the extent of damage to her neck. He added that if the damage was severe enough the specialist might recommend surgery. Dr Tan's advice could reasonably be seen as provisional and subject to further advice from a specialist. The claimant immediately proceeded to endeavour to obtain an appointment with the specialist. She states that she "couldn't get in for a couple of weeks" which is hardly surprising. The serious condition was then clearly diagnosed when she had that consultation.

Tests to be applied

15. The evidence shows that this claimant did not have actual knowledge or belief that her condition was serious enough to warrant legal action until 27 October 1997. However she must also show that this was not within the means of knowledge of a reasonable person knowing what she knew. That issue falls to be determined on the footing that the claimant had before that time taken all reasonable steps to ascertain the material facts.^[4]  Whether the claimant has taken all reasonable steps is to be determined from the viewpoint of a reasonable person endowed with the knowledge and experience of the plaintiff.^[5]  The answer to the question whether a reasonable person, knowing what the claimant knew, would have taken appropriate advice that would have shown a right of action with reasonable prospects of success resulting in an award of damages sufficient to justify the bringing of the action and that she ought in her own interests bring it,^[6] is rightly influenced by the attitude and character of the claimant.  In the end of course the conduct must be reasonable.    Further,

"There is no requirement, actual or notional to take 'appropriate advice' or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the plaintiff to have done so."^[7]

16. Tests which are sometimes of help in this difficult area are stated in Dick v University of Queensland,^[8] and Carlowe v Frigmobile Pty Ltd.^[9]

"The test for whether or not a fact was within his means of knowledge depends on whether the respondent took all reasonable steps to find out that fact.  This test has both subjective and objective elements. What is relevant is the means of knowledge of the respondent and not of some hypothetical reasonable person."^[10]

…

"In making a finding of fact on this important question, the reasonableness of the steps taken by the claimant needs to be considered, and of course a claimant will not succeed if he or she has unreasonably delayed in obtaining the necessary advice or information.  … The gathering of the necessary information and awareness which will make it reasonable for a claimant to bring an action may well involve progressive stages of awareness."^[11]

…

"In cases where a potential claimant lacks a material fact, and reasonably needs the help of a solicitor or someone else to obtain it, some further time may reasonably elapse before it should be held that such facts are within the claimant's means of knowledge.  Such time will include the time which would reasonably elapse if the claimant, taking all reasonable steps to do so, consults solicitors or other persons, and those solicitors or those other persons undertake the necessary inquiries to ascertain the necessary additional facts to show whether or not there is a worthwhile cause of action."^[12]

Discussion

17. In the present case I do not see anything unreasonable in the conduct of the claimant in waiting for three months before consulting with a GP, and then in deferring the making of any decision as to legal action until she had the benefit of the recommended specialist's opinion. The claimant is a person who was reluctant to litigate, and who tried to cope with her problems without making a claim for damages until it emerged that she had a serious problem that involved significant economic loss. It is true that after seeing Dr Tan she thought she would probably need an operation, that she was then told by a solicitor that she "could claim around $100,000 for medical costs", and that she then personally wrote a letter to the defendant foreshadowing a claim. She explained, however:

"I wasn't interested in taking Franklins to court.  I just wanted assistance in the operation.  I didn't want to sue them for hundreds of thousands of dollars and go through all this stress and strain.  I just wanted help with the operation that I thought I would have to have."

18. Taking into account the claimant's conservative attitude towards endeavouring to cope without the launching of a legal claim, I see nothing unreasonable in the claimant's conduct in the sequence of events that has been described. As already indicated, she acted reasonably in waiting for the views of the specialist even though the general practitioner had provided some worrying information to her. The evidence does not show the claimant to have been a person who was wilfully blind, negligent or even excessively casual. Rather, it suggests that she was a stoical claimant with a higher than average reluctance to be involved in legal proceedings. Although the present case falls close to the borderline, I consider that the evidence justifies a finding that a material fact of a decisive character namely, the nature and extent of her personal injuries, was not within the claimant's means of knowledge before 27 October 1997, and that she had before that time taken all reasonable steps to find out that fact.

Prejudice

19. I agree with Mullins J's reasons on this subject and conclude that on the evidence a fair trial may still be had between the parties. I would add that the prejudice suggested on behalf of the defendant is of a speculative character. The defendant's submissions are that there has been an impairment of the proof of something that might or might not be the case. The exercise seems based upon a suspicion by the defendant's advisers that perhaps nothing of the kind alleged by the claimant occurred on the day in question, and if that is so, then the defendant might have been able to advance such a case if it had been able to establish the negative proposition that no report of accident was ever made to any of its servants or agents. On the whole of the evidence I do not think that there is sufficient reason to fear that such speculative prejudice or any other consequence of the claimant's delay would impair the holding of a fair trial.

20. I agree with the orders proposed by Mullins J.

21. MULLINS J:  The applicant, Franklins Limited, applies for leave to appeal against the order of His Honour Judge Samios granting the respondent, Christine Anne Muir, an extension of time under s 31 of the Limitation of Actions Act 1974 ("the Act") until 23 October 1998 with respect to her claim against the applicant.  The relevant findings made were that:

1. a material fact of a decisive character, namely the nature and extent of the personal injuries suffered by the respondent, was not within her means of knowledge before 27 October 1997 and that the respondent had taken all reasonable steps to find out the fact before that time; and

2. there was no prejudice or sufficient prejudice to the applicant to prevent the exercise of discretion in favour of granting the extension.

22. The issues on this application were whether the learned District Court Judge:

1. erred in his fact finding and evaluation of the evidence in failing to conclude that prior to 22 October 1997 the point had been reached where the respondent knew or, alternatively, a reasonable person in the position of the respondent would have known, facts which ought to have required the commencement of the action;

2. misapplied the onus in relation to the question of prejudice to the applicant in allowing the action to proceed; and

3. should have exercised the discretion against the respondent on the evidence on the question of prejudice, if the onus had been correctly applied.

23. Both parties were content to treat the hearing of this application, if the court were disposed to grant leave, as the hearing of the appeal.

24. In order to deal with whether there was an error in the learned District Court Judge's evaluation of the evidence and fact finding, it is necessary to summarise the relevant evidence. There was no issue as to the relevant law to be applied to the facts to determine whether a material fact of a decisive character was not within the respondent's means of knowledge or within the means of knowledge of a reasonable person knowing what the respondent knew: Sugden v Crawford [1989] 1 QdR 683, 685; Pizer v Ansett Australia Ltd [1998] QCA 298 (29 September 1998) at paragraphs 15 and 16. 

Facts relating to lack of knowledge of material fact of a decisive character

25. The respondent was born on 29 December 1956. She commenced her action against the applicant by Supreme Court writ of summons issued on 22 October 1998. Her cause of action is for negligence arising out of an injury alleged to have been sustained on or about 17 December 1992 while the respondent was shopping at the applicant's supermarket situated at the shopping centre known as "Kawana Shoppingworld". The respondent has identified the date of the accident by working back from the date she sought treatment. She conceded that the accident could have occurred weeks or months earlier than the date which has been nominated as the date of the accident in the statement of claim.

26. The respondent alleged that she was intending to purchase some muesli bars and that two young male employees of the applicant were working in the aisle in the vicinity of the shelves where the muesli bars were kept. The respondent alleges that one of these employees was standing on a mobile trolley with his feet at approximately her shoulder height stacking boxes of product on top of the shelves, while the other employee was standing on the ground throwing the boxes of product up to that employee.

27. The respondent stated that as she approached the employees, she waited for them to stop throwing the boxes and then leant in to obtain a packet of muesli bars from the shelves. The applicant states that, as she did so, one of the employees threw another box of product up to the employee standing on the trolley who did not catch it and the box fell, striking the respondent directly on the top of her head which forced her neck downwards and backwards. The respondent alleged that the box was reasonably heavy and that she was subsequently told by a supervisor of the applicant that it contained a product called "Two Fruits".

28. The respondent stated that she did not lose consciousness, but was dazed and informed another employee of the applicant with whom she was slightly acquainted, one Tina Wilson, about the incident. She stated that Ms Wilson directed her to the supervisor of the applicant who took details from the respondent for an accident report.

29. The respondent stated that the two young male employees were called into the office to give their account of what happened and apologise to the respondent. The respondent does not know the names of the supervisor or the two employees involved in the incident. The applicant has been unable to identify those employees.

30. After the incident the respondent states that she suffered from pain and discomfort in her neck and shoulders and headaches. She consulted an acupuncturist and natural remedial therapist David Pentland on 22 December 1992. He records that the respondent presented "with headaches, the sensation of pins and needles and a sore neck after a blow on the top of the head" and that he gave her treatment on four occasions between July and November 1993, five occasions in March 1994, twice in May 1994, three occasions in September and November 1994 and on 10 February 1995. 

31. Some months after the incident and when the headaches had not subsided, the respondent stated that she telephoned a solicitor to inquire whether she should take legal action against the appellant and that she was advised by this solicitor that she would need to obtain medical evidence of the injury sustained before proceeding any further. The respondent stated that as she believed she had only sustained soft tissue damage to her neck and shoulders, she did not take the matter further at that stage.

32. The respondent stated that she also saw a general medical practitioner for treatment for her headaches in September 1993. According to the respondent, that doctor told her that the headaches could be due to hormonal problems. The respondent stated that she underwent a tubal ligation in or about March 1997, when other treatment of the diagnosed hormonal problems had been unsuccessful.

33. Between February 1995 and July 1996 the respondent consulted Currimundi Chiropractic Centre for treatment. In early 1996 the respondent also consulted a naturopath Mr Geoffrey Henry. According to the respondent, by mid 1997 Mr Henry advised her that he thought there was something quite wrong with her neck and he suggested that she seek further medical advice. According to the schedule of medical expenses exhibited to the respondent's affidavit, she consulted Mr Henry on 20 June and 3 July 1997. The latest that she received that advice was therefore 3 July 1997.

34. The respondent stated that she acted on the advice of Mr Henry by consulting Dr LMK Tan at Caloundra on 9 October 1997. In the respondent's schedule of medical expenses the only treatment sought by the respondent between consulting Mr Henry on 3 July 1997 and consulting Dr Tan on 9 October 1997 was chiropractic treatment from Mr Zropf on 9 July, 11 September and 2 October 1997. Dr Tan sent the respondent for x-rays which were done on 10 October 1997. The x-ray report in relation to the cervical spine stated:

"There is loss of the cervical lordosis indicating a degree of muscle spasm.  There is significant disc space narrowing at the C6/7 level.  The other disc spaces and the exit cannels appear to be well maintained.  No paraspinal or other abnormalities is seen."

35. The respondent returned to see Dr Tan on 13 October 1997 with the x-rays and stated that she was informed by him that the x-rays indicated that there was a problem with two of the vertebrae in her neck in that they were crushed which could be causing all the pain in her neck, head and shoulders and that Dr Tan would send her to an orthopaedic specialist who would be able to order an MRI scan (which Dr Tan as a general medical practitioner could not do). According to the respondent, Dr Tan also told her that he could not fully assess the extent of the damage to her neck without the MRI scan, but that if the damage were severe enough, the specialist may recommend surgery.

36. The respondent stated in her affidavit that prior to 1998 she had taken only three days off work in 1996. She stated that between January and August 1998 she took several days off due to headaches and her painful condition. The respondent was cross-examined during the hearing of the application. She stated that her pain and headaches did settle over periods, but then came back. She stated:

"As time progressed I forgot all about the accident.  It wasn't until it got much worse and the problem was actually diagnosed that I specifically related it to the accident because it is the only accident I have ever had of that sort and it has to be caused by an impact to the head."

The following was also elicited in cross examination:

“And knew that your neck and shoulder pain, head pain was not improving?--  No, it was deteriorating.

It was getting to the stage then by the time you saw Dr Henry on 3 July ’97, that it was starting to be a problem for you at work because you had the debilitating headaches?-- Yes.

It was interfering with your day-to-day life and the care of your children?--  Yes.

So you eventually went and saw Dr Tan then on 13 October ’97?--  Yes.”

37. The respondent stated that in view of Dr Tan's advice which made her greatly concerned as to how she was going to pay for an operation, she immediately contacted a solicitor to ascertain if anything could be done to obtain financial assistance for the anticipated surgery. The respondent stated that she was advised that if she had physical evidence of the injury, she stood a good chance of a successful claim against the appellant and that the solicitor estimated she could claim around $100,000 to assist with medical costs.

38. The respondent stated that because of her concern after consulting Dr Tan and his raising the possibility of an operation and her not being comfortable with the idea of legal action against the appellant, she wrote the letter dated 15 October 1997 to the appellant. This letter is relied on by the appellant to show that by that stage the respondent knew or should have known that she had a good cause of action against the appellant for substantial damages. The letter was written before the respondent had consulted the orthopaedic surgeon to whom she was referred by Dr Tan. The letter identified the date of the accident as 1994. The letter stated:

"Not realising the extent of physical damage this accident had caused to my neck, I have been attempting to obtain relief from the consistent pain in my neck and head from Chiropractors, Physiotherapists, Accupuncturists (sic) and Masseurs (all visits over the past couple of years, and there are many, can be documented).  However, the pain has reached a level where consultations with these practitioners is no longer giving me any relief and I have had to consult with an Orthopaedic Surgeon who has confirmed that the 6^th and 7^th vertebra in my neck have been crushed."  

39. In that letter the respondent made a request of the appellant for assistance with the increasing burden of medical expenses.

40. The respondent consulted orthopaedic surgeon Dr T K Ho on 27 October 1997. According to the respondent Dr Ho told her that she had ruptured discs in her cervical spine at levels C5/6 and C6/7 and that surgery was an option which he would not recommend at that stage because of the high risk/low success rate of an operation. The respondent stated that Dr Ho also told her that she would have to live with the condition for the rest of her life and that was the first time that she had been told that she had a problem from which she was likely to suffer for the rest of her life.

41. In November 1997 the appellant through its solicitors appointed Mr Carl Christensen of Astute Investigations Pty Ltd to investigate the respondent's claim. According to Mr Christensen's records, he first interviewed the respondent on 27 November 1997 and made inquiries until 24 February 1998 when he closed his file. According to Mr Christensen he was instructed by the appellant by letter dated 2 July 1998 to make contact with the respondent and attempt to settle the matter, but after having a conversation with the respondent in August 1998 in which he informed her the appellant intended to make an offer of settlement, he was then instructed by the appellant on 26 August 1998 to close his file.

42. The respondent wrote a further letter to the applicant on 29 September 1998 again requesting assistance and threatening to sue the applicant for compensation. The applicant responded by letter dated 9 October 1998 declining the claim for compensation raising both the limitation period for the claim and its view that it had been prejudiced in investigating the claim.

43. The plaintiff's statement of claim was delivered on 18 June 1999 at the same time as the writ was served. The appellant's notice of intention to defend was filed on 26 August 1999. Paragraph 6 of that defence pleaded that the respondent failed to commence proceedings within the time prescribed by section 22 of the Act and that the action was therefore statute barred.

44. In September 1999 the parties by consent agreed to remitting the action to the District Court held at Maroochydore. The respondent's application for an order extending the period of limitation was filed on 22 November 1999. When the application first came on for hearing on 16 December 1999, it was adjourned to enable the applicant to undertake further inquiries. The application was finally heard on 4 October 2000.

Decision at first instance on issue of lack of knowledge of material fact of a decisive character

45. With respect to the letter of 15 October 1997, the learned District Court Judge accepted the respondent's explanation that she did not mean to mislead anyone by making reference to the orthopaedic surgeon whom she had not at that stage seen, but she mentioned the orthopaedic surgeon in the letter because she was going to see him and she wanted to move things along. The learned District Court Judge expressly stated that he formed a favourable impression of the respondent during her evidence including her cross-examination.

46. The learned District Court Judge found that one could not divorce what Dr Tan advised the respondent on 13 October 1997 and the respondent's subsequent actions on 14 and 15 October 1997 from the fact that Dr Tan gave the respondent a referral to an orthopaedic specialist and expressly qualified his own advice on the basis that the orthopaedic surgeon would be in a better position to assess the extent of the respondent's injury. He also found that the reasonable person, notwithstanding the respondent's own view about what had been revealed to her by Dr Tan, would wait for the outcome of the orthopaedic specialist's opinion. The learned District Court Judge therefore found that the material fact of a decisive character relating to the respondent's action, namely the nature and extent of her personal injuries, was not within her means of knowledge before 27 October 1997 and that she had taken all reasonable steps to find out the facts before that time.

47. The learned District Court Judge expressly found that when Mr Henry advised the respondent that there was something seriously wrong with her neck some time before July 1997, the time which elapsed before the respondent saw Dr Tan was not excessive, having regard to the view which the learned District Court Judge formed of the respondent when he observed her while she gave her evidence. He particularly had regard to the fact that it was reasonable for the respondent, if she were not losing time off work to a significant extent and were having periods where all the symptoms were not affecting her, to delay consulting Dr Tan.

Whether there was an error in fact finding at first instance

48. Although on the hearing of the application to this Court the applicant did not abandon the submission that prior to 22 October 1997, the respondent knew facts which ought to have required the commencement of the action, the applicant submitted as its stronger argument that the respondent was in a position prior to 13 October 1997 to ascertain the facts which ought to have required the commencement of the action, as a result of Mr Henry advising her on or before 3 July 1997 to consult a medical practitioner about her neck. The applicant submitted that a reasonable person would have ascertained the material fact in July, August or September 1997 or at least before 13 October 1997 and relied on excerpts of the evidence given by the respondent before the learned District Court Judge.

49. There is no doubt that this was a marginal case. There were some parts of the respondent’s evidence during cross examination which gave support to the applicant’s contentions. The learned District Court Judge had the advantage, however, of hearing the respondent's evidence and made findings having regard to the whole of her evidence and the observations which he made of her. This makes it difficult to challenge his conclusion that the nature and extent of the respondent's personal injuries was not a fact within her means of knowledge before 27 October 1997.

50. The critical issue is whether a reasonable person with the knowledge and experience of the respondent would have delayed over 3 months after receiving the advice of Mr Henry before consulting with Dr Tan. A reasonable person would firstly consider Mr Henry's expertise as a naturopath, so that his advice did not have the same quality as that of a trained medical practitioner. In considering how quickly to act on that advice, the reasonable person would also take into account that person's present level of suffering. At that stage the respondent was working as national credit controller for a business five days per week for nine hours each day. Between receiving Mr Henry's advice and consulting Dr Tan, the respondent did not have any days off work. The reasonable person would also consider that during that period only three chiropractic treatments were sought: one consultation a week or so after Mr Henry's advice, the next consultation two months later and the third consultation one week before the respondent actually consulted Dr Tan. That pattern of consultation was consistent with the fact that the respondent was still able to work. The reasonable person would also consider that when the respondent had previously sought medical advice in relation to her headaches they were attributed to hormonal problems. These factors would suggest that even for a reasonable person in the respondent's circumstances it was not unreasonable to allow slightly over three months to elapse before implementing Mr Henry's advice.

51. The summary of the relevant evidence set out earlier in these reasons shows that the learned District Court Judge's finding that the relevant material fact of the nature and extent of the respondent to personal injuries was not within her means of knowledge before 22 October 1997 and that she had taken all reasonable steps to find out the facts before that time was not such that it could be shown to be the result of any misuse of advantage in seeing the witnesses, any material error, glaring improbability or inconsistency with other incontrovertible evidence: Woodman v Maher [2001] 1 QdR 106, 108.  The applicant therefore has no prospects of successfully appealing on this issue. 

Prejudice

52. In the course of giving his reasons on the question of prejudice, the learned District Court Judge made the following statement:

"It also seems to be the case that if the plaintiff had commenced her proceedings just before the three years had expired and waited a further year before service, as she would have been entitled to do, that the position may have been reached that the defendant may not have had notice of the claim until about December 1996.

The defendant has not shown, in terms of prejudice, that its prejudice was any greater in October 1997 than it might have been in December 1996 or is any greater now than it would have been as at December 1996."       

53. That approach on the issue of prejudice of comparing the respective positions of a plaintiff who had commenced proceedings just before the expiration of the limitation period and deferred service of the writ until the latest possible time and a plaintiff who gave actual notification of the claim to the defendant outside the limitation period was rejected by the majority of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 ("Taylor").  Toohey and Gummow JJ stated at 548-549:

"A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible.  Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application:  Akermanis v Melbourne and Metropolitan Tramways Board [1959] VR114 at 116-117; Posner v Roberts [1986] WAR 1 at 6.  It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period expired."

McHugh J (with whom Dawson J agreed) stated at 554-555:

"The learned Judges of the Court of Appeal met the prejudice point by holding that the test for prejudice was whether an order extending time would make the defendant any worse off than it would have been if the action had been commenced within, but towards the end of, the limitation period.  But this analysis, with respect, treats the limitation period as little more than a point of reference.  It suggests that all that is ordinarily relevant is the marginal prejudice created by the delay.  It downplays, if it does not overlook, the second, third and fourth rationales of limitation periods to which I have referred.  It treats the parties, subject to the question of prejudice, as if they were on an equal footing.  The analysis gives no weight to the fact that the defendant's potential liability expired at the end of that period and that to extend the period may result in the imposition of a new legal liability on the defendant.  Indeed, it seems to indicate that a limitation period is a provisional rather than a rigid limit.

If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chang might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself.  But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important.  To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action.  This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent.  But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action."

54. Because of this error, it is necessary to consider the third issue raised on this application that if the onus had been correctly applied, the learned District Court Judge should have exercised the discretion against the respondent on the evidence on the question of prejudice.

55. In Taylor, Dawson J stated at 544:

"The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant.  To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant."

In the course of their reasons in Taylor Toohey and Gummow JJ stated that a weighing process of the prejudice to an applicant against prejudice to the respondent is not called for and at 550 stated:

"The real question is whether the delay has made the chances of a fair trial unlikely."

That was also reflected in the passage from the judgment of McHugh J set out above.  In addition McHugh J stated at 555:

"When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period.  The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice."

56. In accordance with Taylor, therefore, the issue is whether in absolute terms the proposed defendant can obtain a fair trial, if the extension of the limitation period were granted.  If there is the possibility of significant prejudice to the proposed defendant, then a fair trial is not attainable and the extension should not be granted.

Time at which prejudice is considered

57. The applicant submitted that in accordance with Taylor the relevant date for assessing prejudice is the date of the application.  This is a reference to the statement quoted above from the judgment of Toohey and Gummow JJ at 548. 

58. Taylor was a case where the application pursuant to s 31 of the Act was made prior to commencing the action.  The two authorities relied on by Toohey and Gummow JJ to support the proposition that prejudice is considered at the time of the application for extension of the limitation period were both instances where the application was being made before any action had commenced.  There was therefore no consideration given in Taylor or these other two authorities as to what should be the date of assessing prejudice, when the action was commenced prior to the filing of the application for extension. 

59. In this matter, however, not only was the action commenced prior to the bringing of the application for the extension, but the respondent had engaged in correspondence with the applicant and its investigator from 15 October 1997 and the applicant had defended the action.  

60. The learned District Court Judge proceeded on the basis that prejudice was to be assessed in October 1997 when there was the first notification by the respondent to the applicant of her claim for assistance in meeting her medical expenses. The problem with this notification was that it incorrectly identified the date of the accident as 1994. It is arbitrary to require the question of prejudice to be assessed, when the applicant is not given accurate details about the claim. When the applicant did obtain additional information about the claim, as a result of its appointment of an investigator, it then was able to draw some comfort from the fact that, without an extension of the limitation period being obtained, the respondent's claim was statute barred.

61. The applicant received notice that the claim was being seriously pursued by the respondent when the writ and statement of claim were served on 18 June 1999. In this matter that is the appropriate time for prejudice to be assessed rather than the subsequent date of 22 November 1999 when the application for the extension was filed. The fact that the applicant prior to 18 June 1999 did carry out investigations into the respondent's claim is relevant to the question of prejudice. It may be that, if there is notification of a claim prior to issuing proceedings and making an application for an extension of the limitation period, the quality of notification by the claimant to the proposed defendant can be such as to make it appropriate to assess the question of prejudice at the date of such notification.

Other evidence relating to prejudice

62. After Mr Christensen commenced his investigation and caused inquiries to be made of the respondent, the respondent ascertained that her injury had occurred in 1992 or 1993. Mr Christensen drafted authorities which the respondent signed and obtain reports from Mr Pentland, Dr Tan, physiotherapist Tresna Stokes and chiropractor Mr Marcus Soane of the Currimundi Chiropractic Centre. These reports were obtained in February 1998.

63. Mr Christensen visited the Kawana store of the applicant on several occasions during December 1997 and was unable to locate any staff member who recalled anything about the incident involving the respondent in December 1992. Mr Christensen was unable to locate any information in relation to the circumstances of the accident either at the Kawana store or at the Sydney office of the appellant which handled public liability claims.

64. The applicant ascertained that the manager of the Kawana store in December 1992 was Ms Donna Hick. She was the store manager from 20 August 1992 until 1994. Her assistant manager was Mr Jason Obrist. Ms Hick stated that the procedure for reporting accidents was that either the manager or assistant manager would complete the accident report. It was then kept on file at the store for a period of 12 months, after which it was forwarded to the applicant's head office in Brisbane where it would remain for 6 years. According to the applicant's health and safety team leader for Queensland, all accident records from 1992 of the applicant were destroyed in November 1999. Even though the applicant had been served with the respondent's written statement of claim in June 1999, it does not appear that any attempt was made to locate the Kawana store records amongst the records at the applicant's head office, before destruction occurred in November 1999.

65. The applicant has been able to locate its staff roster for the Kawana store from payroll records for the week 14 to 20 December 1992 that showed that 43 staff were rostered to work in that week. The applicant's solicitors managed to locate and speak to 33 of those staff and 12 of the 14 male staff members rostered on that day. None of the staff recalled any involvement in connection with the incident or witnessing the incident as described by the respondent.

66. The articled clerk from the applicant's solicitors who contacted the rostered staff members described to each of them the incident as alleged by the respondent and then asked each the following questions:

"(a)Were you involved in the incident?

2. Did you witness the incident?

3. Do you have any recollection of the persons who were involved in the incident?

4. Can you indentify (sic) any of the 'unknown persons' whose names appear on the roster?  (And/or the current whereabouts of those people with no contact details).

5. Even if you are unable to identify the names or whereabouts of the unknown persons, can you identify which of those persons are male or female?"

No question was asked about whether the manner in which the incident was alleged to have occurred by the respondent conformed to a method used by any employee for stacking shelves with stock.   

67. One of the staff whom the applicant's solicitors contacted was Ms Tina Wilson, who did recall the complaint made to her by the respondent about being hit in the head by a box and that Ms Wilson called a supervisor, but she could not now recall the supervisor involved.

68. What Ms Wilson did inform the applicant's solicitors was that there were staff members that she had seen throwing up boxes to stack the shelves and made some suggestion as to the identity of those staff members, but that has not resulted in the relevant staff members being located.

69. If this action did proceed to trial, the broad issues would be whether the accident occurred in the manner which the respondent claimed or at all and whether the injuries of which the respondent complains were attributable to the accident.

70. In determining prejudice, it must be relevant to consider the alleged circumstances of the accident. If the accident occurred in the manner claimed by the respondent, there would be a strong claim for negligence against the applicant. What would be critical to the issue of whether the accident had occurred was whether stacking of shelves took place at all in the manner which the respondent alleged and whether the injuries alleged to have been sustained by the respondent were consistent with an accident occurring in the manner alleged.  On the basis of the material disclosed by the applicant on this application, these issues can be addressed by the applicant, whether or not the two staff members which the respondent alleged were involved in the incident can be identified.  Not only has the applicant access to the manager and assistant manager of the relevant store in order to pursue the manner of stacking of shelves, it also has about another 30 staff members who have not yet been asked the pertinent questions which it can pursue. 

71. On the issues of the consistency of the injuries with the manner in which the accident is alleged to have occurred and the causation of the injuries which the respondent attributes to the accident, the applicant can pursue the persons who have provided treatment to the respondent.  The schedule of medical expenses produced by the respondent for the purpose of the application shows meticulous recording of all consultations.  The applicant also has the information obtained on its behalf by Mr Christensen in early 1998.

72. The applicant did not seriously contend that it was prejudiced by its own destruction of records after it had notice of the respondent's action.

73. Notwithstanding that at this stage neither party has been able to identify the two male employees which the respondent claims were involved in the incident, it is apparent on the applicant's own material that it is in a position to adduce substantial evidence relative to the issue of whether the accident was likely to have occurred in the manner in which the respondent alleged it occurred.  Having regard to all the evidence that was before the learned District Court Judge, I consider that the respondent did discharge the onus that the applicant would still be able to receive a fair trial, if the limitation period were extended.            

74. Even though there was the error identified in the learned District Court Judge's approach to the question of prejudice, I am of the opinion that the same conclusion would have been reached, if the onus had been correctly applied.

75. Although the appeal from the learned District Court Judge's decision would not be successful, the application for leave to appeal raised issues that deserved consideration on appeal.

ORDERS:

1. The application for leave to appeal is granted.

2. The appeal is dismissed.

3. The applicant is to pay the respondent's costs of the application and the appeal to be assessed.