Maguire v Plumbing Industry Group Training Scheme Inc
[2001] QCA 248
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- Unreported Judgment
- Appeal Determined (QCA)
- Maguire v Plumbing Industry Group Training Scheme Inc[2001] QCA 248
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Maguire v Plumbing Industry Group Training Scheme Inc[2001] QCA 248
Maguire v Plumbing Industry Group Training Scheme Inc[2001] QCA 248
SUPREME COURT OF QUEENSLAND
CITATION: | Maguire v Plumbing Industry Group Training Scheme Inc & Anor [2001] QCA 248 |
PARTIES: | JACOB WADE MAGUIRE (plaintiff/appellant) v PLUMBING INDUSTRY GROUP TRAINING SCHEME INC (first defendant/respondent) SHAW PLUMBING PTY LTD ACN 010 708 586 (second defendant/not a party to the Appeal) |
FILE NOS: | Appeal No 8369 of 2000 S3668 of 2000 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 29 June 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 June 2001 |
JUDGES: | McPherson JA, Williams JA, Muir J Separate reasons for judgment of each member of the Court, each concurring as to the orders made. |
ORDER: | Appeal allowed. Order that the respondent pay the appellant’s costs of and incidental to the appeal to be assessed. Order that the limitation period be extended so as to expire on 27 April 2000. |
CATCHWORDS: | LIMITATION OF ACTIONS – WHEN TIME BEGINS TO RUN LIMITATION OF ACTIONS – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF DECISIVE CHARACTER – where appellant given conflicting medical opinions – where pain emanated from different sources – where appellant able to continue work – whether medical advice received would cause a reasonable person to seek legal advice Limitation of Actions Act 1974 (Qld), s 31(2)(a). Healy v Femdale Pty Ltd, Appeal No 37 of 1993, 9 June 1993, referred to Pizer v Ansett [1998] QCA 298; Appeal No 6807 of 1998, 29 September 1998, referred to |
COUNSEL: | M Grant-Taylor SC, with D J Kelly, for the appellant C Wilson for the respondent |
SOLICITORS: | Ehrich, Monahan & Tisdall for the appellant Hopgood Ganim for the respondent |
- McPHERSON JA: For the reasons given by Muir J supplemented by what is said by Williams JA in his reasons, I agree that this appeal should be allowed with costs.
- Orders should be made as follows:
- Appeal allowed. Order that the respondent pay the appellant’s costs of and incidental to the appeal.
- That the limitation period be extended so as to expire on 27 April 2000.
- WILLIAMS JA: The relevant facts are fully set out in the reasons for judgment of Muir J which I have had the advantage of reading. The considerations relevant to extending the limitation period are in this case finely balanced, and it is clearly one of those cases where "different minds might reasonably reach different conclusions".
- The matter is complicated because the appellant has experienced pain at two different levels of his back during the relevant period. The report of Dr Downes of 30 August 1995 clearly establishes that the incident in May 1995 occasioned pain at the thoraco lumbar junction. It was an injury at that level of the spine which Dr Downes considered significant in his report of 27 July 1999. In that report he attributed the appellant's present symptoms at that level to the injury of 1995 and no other. He regarded the prognosis as poor.
- It is the report of Dr Downes of 1999 on which the appellant relies to establish facts relating to his injury of which he was previously unaware. Dr Downes does refer to "a continuity of pain from 1995 onwards" at the thoraco lumbar junction, but it is also clear from the material that from time to time between 1995 and 1999 the appellant suffered pain at the L5-S1 level resulting from a bulge in the disc at that level. That would appear to have been the source of pain in May 1997; that conclusion can be reached because of the sciatica then experienced by the appellant.
- For present purposes I am prepared to assume, as did the learned judge at first instance, that the reference to surgery in December 1996 was probably related to pain at the thoraco lumbar junction. It is clear that the appellant had some months off work in mid-1997 because of back pain. The learned judge at first instance placed great weight on that. The significance of the time then off work was highlighted by the fact that it coincided with the cancellation of his apprenticeship. The critical statement in the reasoning of the learned judge at first instance is the following:
"Nevertheless, given the intensity of the flare-up in 1997, I consider that a reasonable person in his position would, at that time, have inquired as to the likely future course of his condition".
There is force in that observation, but it loses much of its impact once it is appreciated that the significant pain in mid-1997 was not related to the injury sustained at work in 1995 which is the subject of the proposed action. The reasoning of the learned judge at first instance would be more compelling if all of the appellant's back complaints were associated with an injury sustained at work in 1995.
- Further, though the learned judge at first instance referred specifically to the youth of the appellant and his impression that all plumbers suffered back pain from time to time, I am satisfied that insufficient weight was attached to his youth in particular. Given the age of the appellant at the material time, and his attitude to life as detailed by Muir J in his reasons, it is reasonable to conclude that this appellant believed that his back condition would not affect his lifestyle or working capacity in the long term. The medical advice he was given was not specific enough to make him understand the reality of his situation. Perhaps understandably the doctors were recommending that he return to work and that only helped to fortify him in his belief that his problems were transitory.
- I agree with the reasons of Muir J and with the order he proposes.
MUIR J:
The nature of the appeal
- The appellant appeals from an order of a judge of the Trial Division of this Court dismissing his application for an extension of the limitation period. The appellant contends that her Honour erred in finding that there was no material fact of a decisive character unknown to him after July 1997 and in finding that the relevant material facts were within his means of knowledge prior to the expiration of the limitation period on 26 May 1998.
Relevant facts
- The appellant was employed by the respondent as an apprentice plumber when, on 26 May 1995, after carrying lead piping from the ground up a ladder to the roof of a two storey building, he felt a pain in his back. He was able to continue working for some time that day and on subsequent days. He did not go to work on 30 May and saw a general practitioner about his pain. He was then off work for a period, the length of which is not clear from the material.
- There is evidence that he had about five weeks of physiotherapy treatment from 17 July 1995 and during that period was at work on light duties. A medical certificate provided by a Dr Wright, who examined him on 24 August 1995, states that the appellant was fit to return to work from 26 August but required treatment from that date to 4 September 1995.
- The appellant was seen by Dr Downes in August 1995 who records in a report to WorkCover Queensland of 27 July 1999, that at that time the appellant was back at work on light duties still suffering from intermittent back ache. He observed, “.. I noticed that the range of movement of his spine was normal but produced a discomfort in the thoracolumbar junction of the back”. He said also that “… he had recovered significantly for his return to work without restrictions and there was no rehabilitation I could offer him”.
- The appellant swears that Dr Downes told him at this time that it looked as if his problem had healed, that he “should be fine” and that his pain should fade away as time went on.
- The appellant continued working as a plumber’s apprentice. He played basketball for Queensland and surfed frequently. He said that he had what he described as “niggling pain” in his back which would occasionally flare up to a level which he regarded as significant. On those occasions he was not prevented from working but he did seek medical attention for the pain. Around Christmas 1996, presumably, as a result of a flare up, he saw a doctor who, as the appellant described it, “wanted to operate but suggested rest first”.
- In about May 1997, he started feeling a different pain to that previously experienced. He described it as pain which started in the mid-back area and then radiated down into the legs. On 13 May 1997 he was unable to continue working because of the pain and was driven home. A CT scan was taken of his lumbar spine revealing a central bulge of the L5-S1 disc. He was off work for two to three months before being certified as being fit to return to work. After working for about six months, his “back began playing up again” and he had physiotherapy. He reports that the physiotherapy improved his condition gradually but that the pain “never really went away”.
- Throughout this time, and subsequently, the appellant was engaged in quite heavy work such as digging trenches, lifting oxyacetylene cylinders, bags of concrete and in concreting.
- After both the initial incident in 1995 and the flare up in 1997 there were days when the appellant had little pain and days in which he had no pain at all.
- He experienced another particularly severe bout of pain at the end of 1998 when mixing and pouring concrete and lifting and moving the steel frames into which the concrete was poured. He took medication for the pain and continued with his physiotherapy. He was also obliged to take some time off work.
- Dr Downes, in his July 1999 report to WorkCover Queensland, expressed the opinions that –
- the bulging disc at L5-S1 level shown on the CT scan was not the cause of the back ache;
- the backache was located in the thoracolumbar junction “which seems mechanical in that the pain is produced by movements of the spine”;
- any physiological basis for the pain could not be identified;
- as the appellant appears to have a mechanical backache his prognosis is poor;
- the appellant’s symptoms arose from the injury in 1995.
- In July 1999, Dr Downes told the appellant that he had a significant problem and that it would be best if he found a new career. That was the first time a medical practitioner had advised him that he had a condition which was likely to be permanent and which may impede his ability to follow his chosen occupation.
- Before speaking to Dr Downes in July 1999, the appellant put his back pain down to the work performed by him as an apprentice plumber. He swore that –
“Every plumber I knew struggled from time to time with back pain but they would get over it and would be alright and they would be able to work normally.”
- It is by no means clear that the pain suffered by the appellant at relevant times emanated from the same source. At different times the appellant’s injury and/or its source was described as “an L4/5 disannular bulge”, “a disc protrusion”, an “L5/S1 disc”, “the thoracic lumbar junction”, “the lower back”, “the middle back” and “the back”.
- Given the nature of the work performed by the appellant, it is hardly remarkable that he would suffer different back pains from time to time. Also the nature of back pain is often such, as is the case here, that a discrete physiological source is difficult to identify.
- The appellant was born on 16 December 1976 and was thus 18 at the date of the accident and 20 at the time of the 1997 flare up. It is apparent from the evidence that on those occasions before 1999 when he was unable to work he wished to go back to work as soon as reasonably possible and did not contemplate being unable to pursue a career as a plumber.
Relevant findings of the primary judge
- The learned primary judge found that the appellant had sufficient knowledge on which to base a worthwhile cause of action at least by late July 1997. In that regard she observed –
“In about December 1996 he had been told that he could undergo surgery, but that there was no guarantee of success. In May 1997 he had experienced an acute episode of back pain which he and his doctor attributed to the incident in 1995. His apprenticeship had been cancelled in June 1997. By late July 1997 he had had a couple of months off work as a result of the acute episode two months earlier.”
- In relation to her conclusion that a cause of action was within the appellant’s knowledge before the expiration of the limitation period in May 1998, her Honour said –
“Although Dr Downes had told him in 1995 that the pain would fade away with time, that had not happened. He had had ongoing niggling pain since 1995, and had maintained fairly regular contact with general practitioners and physiotherapists. He had been told in about December 1996 that surgery was an option, although success could not be guaranteed. I am conscious of his youth and his impression that all plumbers suffered back pain from time to time. Nevertheless, given the intensity of the flareup in 1997, I consider that a reasonable person in his position would, at that time, have inquired as to the likely future course of his condition. Further, such a reasonable person would have sought legal advice and been advised to obtain a specialist report with a view to commencing a proceeding before the expiration of the limitation period in May 1998.”
This action was commenced on 27 April 2000.
Principles relevant to an appeal form a determination involving the exercise of a discretion.
- As Thomas J observed in Pizer v Ansett [1] -
“Appeals involving extensions of periods of limitation commonly raise these particular issues which involve factual assessments. Although the eventual decision is discretionary (S.31(2) “… the Court may order …”) the determination of these issues is not. They involve findings of fact and a determination whether those facts satisfy the requirements of the statute. It is worth mentioning however that such findings and determinations are made in an area where different minds might reasonably reach different conclusions. In such a situation the appeal court is not free to decide the question according to its own preference. Unless the judgment reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference. (Cf. Zuvela v Cosmarnan Concrete Pty Ltd (1996) 71 ALJR 29, 31).”
Were the primary judge’s findings affected by appellable error?
- The appellant, at relevant times, was a young man engaged in vigorous physical activities both at work and in his recreational pursuits. I think it fair to say that he was inclined more to the physical than the cerebral. Even so, he saw a number of medical practitioners about his back pain, and before 1999 none of them suggested to him that his complaints were such as to impede or curtail his ability to follow his chosen calling.
- The advice he received in 1995 from Dr Downes and the pattern of his discomfort between May 1995 and May 1997 were not such as to cause him, or a reasonable person in his position, to seek advice which may have led to his becoming aware that he had a cause of action which was worthwhile pursing.
- The escalation of his pain in mid-1997 was certainly significant but he was able to continue work and the pain was spasmodic. He was understandably reluctant to reach the conclusion that his disability could not be overcome. In this regard it is relevant to take into account not only the physical nature of the appellant’s lifestyle but the absence of an identifiable organic cause of his complaint as Dr Downes said of the backache in his July 1999 report -
“I can not explain this pain and I do not believe that any of the investigations he has had performed explain his pain.
You will appreciate that it is frequently the case that we can not diagnose the cause of backache. It is one symptom that remains a mystery to us all in a large percentage of patients.”
- In 1999, Dr Downes was able to offer a reasonably confident prognosis by virtue of the history provided by the appellant and his reliance on the appellant’s veracity. In other words, his ability to express an opinion upon which the appellant could become aware of the existence of a worthwhile cause of action was based on symptoms reported over time. On the other hand, Dr Law who saw the appellant in February 2000, and had access to the same information as Dr Downes, was able to classify the appellant’s complaint as “a musculo-ligamentus strain on the thoraco-lumbar spine … which gave rise to no permanent impairment”. Another medical practitioner may well have given an opinion which differed from those of Dr Downes or Dr Law.
- The appellant was required to show that “a material fact of a decisive character relating to [his] right of action was not within [his] means of knowledge” before 26 May 1997.[2] On 14 May 1997 he had had the CT scan which revealed a bulge to which Dr Downes subsequently attributed no great significance. He ceased work as a result of the pain suffered by him on 22 May but he intended returning to work and did so in late July 1997.
- In those circumstances, I am unable to accept that the primary judge’s finding that the appellant knew enough to base a worthwhile cause of action, at least by late July 1997, is sustainable. The finding, in my view, has been arrived at as a result of the primary judge’s overlooking or giving insufficient weight to the considerations I have detailed.
- For generally the same reasons, I conclude that the finding that “a reasonable person in his position, would, at that time, have enquired as to the likely future course of his condition … (and) sought legal advice and been advised to obtain a specialist report with a view to commencing a proceeding before the expiration of the limitation period in May 1998” cannot be sustained.
- The following passage from the reasons for judgment of the Court of Healy v Femdale Pty Ltd [3] is apposite –
“The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take ‘appropriate advice’ or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.”
- Certainly, the 1995 advice of Dr Downes may be thought to have been falsified to a degree in mid 1997 but medical practitioners were certifying the appellant as fit for work without qualification or warning. He continued to work and as the factors I have mentioned, including the heavy work being undertaken by him, and the lack of any obvious organic source for his discomfort, the variable nature of his complaints were not such as to render a failure to enquire further into his medical condition and legal rights at all unreasonable.
- I would allow the appeal and order that the limitation period be extended so as to expire on 27 April 2000. I order that the respondent pay the appellant’s costs of and incidental to the appeal to be assessed.