SUPREME COURT OF QUEENSLAND

[1]  FRASER JA: This is an appeal against an order made in the Trial Division refusing the appellant an extension of the limitation period to bring a claim for damages for personal injuries.  She was injured on 5 June 2004 when travelling as a passenger in a car driven by the first respondent.  The appellant suffered serious injuries to her spine and bowel in the accident, was hospitalised for two to three weeks after the accident, and was required to wear a body cast for three months.  She has a good cause of action to recover damages for her personal injuries apart from a defence that the limitation period expired before she brought her claim.

[2] The appellant was born on 9 April 1988, and was 16 years of age at the time of the accident.  The limitation period expired on 9 April 2009, three years after she turned 18.[1]  She filed her claim for personal injuries in the Supreme Court on 7 October 2010 and she filed her application for an extension of the limitation period on 20 December 2010.

The legislative framework

[3]  The appellant brought her application pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”), which relevantly provides:

“(2)Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—

(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.”

[4] It is paragraph (a) which is in issue.  The respondents did not submit that the appellant’s delay in bringing proceedings resulted in any prejudice.  It is apparent that in the circumstances of this case the discretion to extend the limitation period should be exercised if the appellant satisfied the court that “a material fact of a decisive character” was not “within the means of knowledge of” the appellant until after 9 April 2008.  As to those terms, s 30 relevantly provides:

“(1)For the purposes of this section and sections 31, 32, 33 and 34—

(a)the material facts relating to a right of action include the following—

…

(iv)the nature and extent of the personal injury so caused;

…

(b)material facts relating to a right of action are of a decisive character if but 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

(ii)that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;

(c)a fact is not within the means of knowledge of a person at a particular time if, but only if—

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

(ii)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.

(2)In this section—

appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”

The proceedings in the Trial Division

[5] The primary judge summed up the critical evidence as follows:[2]

“The applicant states in her affidavit that after she returned to school she did not consider that her injuries would restrict her in anyway. On discharge the medical certificate given to her stated ‘Elizabeth is able to return to school and perform usual activities as tolerated.’

The applicant’s recollection is that the treating doctor at the PA Hospital had a conference with her mother and herself just before she was discharged and she was told that she might expect some [back] pain from time to time.  When she told the doctor that when she finished her studies she was considering being a personal trainer his response to her was ‘I would consider a desk job’. The applicant states that she was not told she could not play sport or that she could not engage in any other vigorous activities like dancing or running. She stated in her evidence that ‘It wasn’t a strict, “you cannot do this” statement that he was making.’

In her affidavit the applicant states ‘The job of being a personal trainer is particularly taxing because you are expected to lead by example with your clients and I certainly understood that he was advising against that and other strenuous full-time jobs. He did not go into any further details, and nor was he emphatic in his tone. I believed that I would be able to lead a normal life but should be cautious about choosing a full-time job’. The applicant however conceded that she was specifically told that she ‘would not be able to do that and other full-time strenuous jobs’.

After the accident the applicant was able to go to the gym and was able to work as a supervisor in after school care activities at a local primary school. Whilst studying at Kenmore High the applicant took speech and drama as an elective subject and then decided to study drama at QUT Kelvin Grove. The applicant enrolled in the QUT drama course in 2007. The applicant was fully involved in that course for the following 3 years and that involved performances of physical theatre. She was required to undertake performance subjects and was fully engaged in these activities which involved rehearsing twice a week.

The applicant says that it was not until the second semester of the third year in 2009 that she began to experience significant back pain and physical limitations as a result of the increased physical intensity of rehearsals which were required for a non verbal interpretation of a novel called ‘The Story of the Eye’. The applicant states that for the first time she experienced shooting pains down her leg during the extensive rehearsals for that production which sometimes lasted 20 hours a week. The applicant stated that in the six years prior to seeing the orthopaedic surgeon in June 2010 she had only experienced constant and significant pain in the period since the rehearsals commenced in October 2009 because it was more physical and featured a lot of ‘static posturing and rolling around on the ground’.”

[6] The appellant’s contention was that on or about 15 October 2009, when she experienced back pain at the drama rehearsals, she discovered a material fact of a decisive nature, namely “that her injuries were likely to inhibit her [earning] capacity or, more particularly, that they were likely to inhibit her earning capacity in her chosen career.”  The appellant argued that the medical practitioner’s suggestion to “consider a desk job” and the medical certificate which permitted her to perform normal activities “as tolerated” meant that “whether or not she had any limitations would be a matter of trial and error.”  The result was that the appellant only became aware that the injury would affect her in a relevantly significant way on or about 15 October 2009. 

[7] The respondents argued that this “fact” was within the appellant’s means of knowledge prior to 7 October 2009 (the date which was one year before the commencement of proceedings), and was of a decisive character before that time.

The primary judge’s reasons

[8] The primary judge described the applicable legal tests as follows:[3]

“It is clear that material facts will be of a decisive character if a reasonable person knowing those facts and taking appropriate advice would regard the facts as showing that the right of action has a reasonable prospect of success resulting in an award of damages sufficient to justify the action and that the person ought to bring such an action. In Stephenson v State of Queensland the High Court emphasised the two-fold test in s 30(b). Accordingly time will run because material facts of a decisive nature are known to the applicant when (a) the claimant knows facts showing that a right of action has a reasonable prospect of success and would result in an award of damages sufficient to justify bringing an action and (b) the claimant ought in the [person’s] own best interests and taking a [person’s] circumstances into account bring an action. The High Court endorsed the view of Davies JA where his Honour stated;

‘Thus the question is not when all material facts came within the means of knowledge of the applicant. It is when all material facts of a decisive character relating to the right of action came within his means of knowledge.

...The correct question in construing s 31(2) (a) is: when did all material facts (which were then) of a decisive character come within the means of knowledge of the applicant. One cannot have the means of knowledge of material of a decisive character at a time when those material facts do not have that character.’

The critical question therefore is when did all the material facts which were then of a decisive character come within the means of knowledge of the applicant. It is then clearly a question of whether it was reasonable for the applicant not to sue.

…

In Russell v State of Queensland Williams JA referred to the earlier Court of Appeal decision of Healy v Femdale Pty Ltd where the court held;

‘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 a test merely because she fails to ask for opinions from doctors about the prospect of future disability or affect [sic] on her working capacity. There is no requirement to take “appropriate advice” or to ask appropriate questions if in all of the circumstances it would not be reasonable to expect the plaintiff to have done so.’ (my emphasis)

…

The applicant can only succeed in this application if the material fact was not known to her until after 7 October 2009 (1 year before she commenced this action) or if known to her before then the reasonable person having taken appropriate advice would not have then regarded the fact as justifying the commencement of the proceedings.” (citations omitted)

[9] In refusing the application, the primary judge reasoned as follows:[4]

“In my view having considered both the applicant’s affidavit and her statutory declaration dated 3 December 2010 I consider that the applicant knew at least from the time of her discharge from the hospital that her injuries were going to prevent her from carrying out a wide range of activities given the doctor’s specific advice that she should consider a ‘desk job’. It is significant that the applicant was hospitalised for almost three weeks and that she wore a body cast for three months. The applicant obviously had significant injuries. According to her statutory declaration she had ‘lost her physical fitness’ and felt her back ‘was still weak’. She therefore felt she ‘was not physically capable of returning to play competitive netball at that time.’

In my view the applicant must have been aware that her injuries precluded physical careers given that specific advice about needing to consider a desk job. This is not a case where she … has ‘failed to ask for opinions from doctors about the prospect of future disability or affect on her working capacity’ but rather she specifically knew the prospect of future disability in certain careers and that it could affect her working capacity because she was told in blunt terms to ‘consider a desk job’.

In my view the onset of the symptoms in October 2009 could not be characterised as decisive as she already knew of the very real possibility of the restriction on her employment prospects to ‘desk jobs’. She obviously knew that her employment prospects were significantly restricted and that she had to preclude anything that was physically demanding. I consider that the symptoms in October 2009 were in fact the realisation of the prediction that had been made to her in 2004 that she could not undertake unduly strenuous and physical activities.

…

In my view given all the knowledge that the applicant had it was not reasonable for her to take no further action or seek further advice given the state of her knowledge from at least early 2007. I can see no basis therefore why the application should be allowed and accordingly the application should be dismissed.”

The contentions on appeal

[10]  The grounds of appeal were that the primary judge erred in: finding that the appellant failed to satisfy the criteria set out in s 31(2) of the Act; finding that the onset of symptoms in October 2009, and the knowledge of the impact they might have, was not then a material fact of a decisive character; finding that the applicant knew by 2004 and, in any case, before October 2009 that her employment prospects were significantly restricted and that she would be precluded from jobs that were physically demanding; and failing to find that the appellant acted reasonably in refraining from commencing proceedings until it became apparent that her injuries would impede her chosen career path and be causative of economic loss.  The appellant contended that the primary judge “failed to properly analyze all of the evidence, and placed undue emphasis on the plaintiff’s recall of a comment by a doctor in 2004” and “failed to differentiate between the appellant’s knowledge of material facts, and when those material facts became decisive, within the meaning of s. 30(1)(b) of the Act.”

[11]  The respondents contended that: the primary judge engaged in a proper analysis of the evidence; the primary judge’s characterisation of the deterioration of the appellant’s symptoms as “mere realisation of the earlier medical advice” was correct; and the appellant’s construction too narrowly confined the relevant “material fact” to one particular occupation, physical theatre, and overlooked the strenuous nature of that occupation.  The respondents also contended that, insofar as the primary judge’s findings concerned matters upon which reasonable minds might differ, the Court was not permitted to decide the question according to its own preference unless the primary judge’s conclusion involved “some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried”.[5]

Consideration

[12]  The essence of the appellant’s case was that the effects upon her of the rehearsals in her drama course around about 15 October 2009 clothed the facts already known to her about her injury with a decisive character such as to justify an extension of the limitation period.  The primary judge addressed that case.  Her Honour accurately summarised the applicable legal tests in the passage extracted in [8] of these reasons and applied those legal tests in the passage extracted in [9] of these reasons.  Her Honour differentiated between the appellant’s knowledge of material facts and when those material facts became decisive in framing the “critical question” as being when the material facts “which were then of a decisive character” came within the appellant’s means of knowledge. 

[13]  The primary judge did not misstate the appellant’s case merely by her Honour’s observation that the appellant sought the extension on the basis “that she did not begin to experience specific symptoms until 15 October 2009 and she realised that this would prevent her from carrying out a wide range of activities.”[6]  That was not intended as a comprehensive statement of the appellant’s case; rather it was a re-statement of the appellant’s submission that “[i]t was only on 15 October 2009 that she became aware that the injury would in fact affect her in a significant way.”  The primary judge accurately summarised the appellant’s submission as to the nature of the alleged material fact of a decisive nature as being her discovery on 15 October 2009 “that those injuries were likely to inhibit her earning capacity and that they were likely to inhibit her earning capacity in her chosen career.”[7]

[14]  The primary judge addressed the correct question in concluding that: the appellant knew “at least from the time of her discharge from the hospital that her injuries were going to prevent her from carrying out a wide range of activities”; that the appellant “must have been aware that her injuries precluded physical careers given that specific advice about needing to consider a desk job”; that the onset of the appellant’s symptoms in October 2009 could not be characterised as decisive because “she already knew of the very real possibility of the restriction on her employment prospects to ‘desk jobs’”, and that “it was not reasonable for her to take no further action or seek further advice given the state of her knowledge from at least early 2007.” 

[15]  The appellant submitted that there was no basis for selecting “at least early 2007” as the relevant date because no material decisive event occurred between February 2005 and October 2009.  I do not accept the submission.  It was relevant that the appellant had ceased to be under the “disability” of childhood, so as to set the three year limitation period running, when she turned 18 about nine months before the beginning of 2007.  The primary judge accepted the appellant’s evidence that she commenced her study of drama at the Queensland University of Technology in early 2007 after having earlier abandoned her intended career in personal training, and her Honour found that the appellant had a “tumultuous personal life until at least 2007 when she commenced her studies at QUT.”[8]  Those matters justified the primary judge’s selection of “at least early 2007” as the time by which a reasonable person in the appellant’s position, having taken appropriate advice, would regard the facts known to the appellant as showing that the appellant should take action in her own interests.

[16]  The appellant challenged the primary judge’s conclusions that the onset of the symptoms in October 2009 could not be characterised as decisive because the appellant already knew of the very real possibility of the restriction on her employment prospects to “desk jobs”, and that she had to preclude anything that was physically demanding.  In the extract from the primary judge’s reasons quoted in [8] above, her Honour set out the passage in Healy v Femdale Pty Ltd[9] in which the Court held that “[t]here 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.”  The appellant submitted that the reference to “if in all the circumstances” was particularly apposite in this case because: the appellant was not told that she had a disabling injury; she reasonably believed that she had found her vocation and would be able to pursue it; she had enrolled in the drama course and was undertaking it without difficulty; she was working part-time; she was not seeking medical treatment; and she was getting on with her life until after 7 October 2009 (the “relevant date” after which the material fact of a decisive character came within the appellant’s means of knowledge).  The appellant submitted that it was not unreasonable for her to fail to appreciate until the rehearsals on about 15 October 2009 that physical theatre would amount to a strenuous job against which she had been advised by her treating doctor.

[17]  The critical evidence was accurately summarised in the passage extracted in [5] of these reasons, but it is necessary now to refer in more detail to the evidence which the appellant emphasised:

(a) The appellant deposed in her affidavit as follows:

“My recollection is that the treating doctor at the PA Hospital had a conference with my mother and me just before, or soon after, I was discharged. My recollection is that he told me that I might expect some back pain from time to time. I told him that I was thinking that, when I finished my studies, I would like to be a personal trainer. In response he said words to the effect of, ‘I would consider a desk job’.

The doctor did not tell me that I could not play sport or that I could not engage in other vigorous activities, like dancing or running. I expected that I could engage in all of those activities. The job of being a personal trainer is particularly taxing because you are expected to lead by example with your clients and I certainly understood that he was advising against that and other strenuous full-time jobs. He did not go into any further detail, and nor was he emphatic in his tone. I believed that I would be able to lead a normal life but should be cautious about choosing a full-time job. I was, of course, 16 at the time and I did not give the doctor’s comment great thought.”

(b) The appellant deposed that around the time of her discharge from the PA Hospital her treating doctor provided her with a medical certificate to take to school upon her return, which she thought was consistent with the medical advice she recalled being given.  The medical certificate referred to a fracture of the L4 and it noted that the appellant was to attend the Out-Patient Department and was “able to return to school & perform usual activities as tolerated”.  A medical report referred to an out-patient note by Dr Williams (who was noted on the hospital discharge report as being the responsible consultant) that he had discharged the appellant from his care as “there was no likelihood of any further intervention required with regards her spinal column.”

(c) The appellant deposed that from when she commenced studying drama in High School through to her enrolment in the drama course at the Queensland University of Technology in 2007, her chosen career path was in drama and there was nothing to suggest that she could not pursue that career, until the onset of her severe and disabling back pain that radiated down her leg after rehearsing for a physical theatre performance in October 2009.  Up until the second semester of the third year of her course (in 2009) she did not have any trouble in complying with the drama course, including rehearsals of physical theatre (her preference) which commenced in the first semester of the second year (in 2008).   In cross-examination during the hearing she gave evidence that physical theatre “can encompass any range of things but the performance we were doing was definitely on the lighter end of it.”

The appellant had not realised that it was within the category of strenuous activity that she should not engage in, which the appellant had understood to mean, in effect, full-time strenuous activity.  It was not until 15 October 2009, when she started physical rehearsals involving about 20 hours of physical activity per week, that she began to experience significant back pain and physical limitations as a result of the increased physical intensity of the rehearsals.  The appellant’s evidence was that these rehearsals were “at the most modest end of physical theatre”, but she could barely cope with them. 

(d) The relevant evidence also included evidence of the appellant’s background situation.[10]  In that respect, the appellant gave evidence that in the period after the accident she did not have a good relationship with either of her parents, which was stressful; she was not sure where she was going to live; she was worried about having a roof over her head and food on the table; she decided to repeat Grade 11; and although she was aware she had sustained a “significant injury”, she did not believe it was too bad because she did not require surgery. 

[18]  Aspects of that evidence provided substantial support for the application for an extension of time, but the primary judge also took other evidence into account.

[19]  The appellant swore her affidavit on 31 January 2011.  In an earlier statutory declaration dated 3 December 2010, she declared that following the accident “I was advised by my doctor to focus on obtaining a desk job upon leaving school, and consequently I did not pursue a career in personal training.”  The primary judge referred to the appellant’s evidence that her treating doctor’s advice “wasn’t a strict, ‘you cannot do this’ statement”,[11] but her Honour was not bound to accept that characterisation.  The appellant’s description of the advice in her statutory declaration suggested that it was unequivocal.  It was open to the primary judge to describe the advice as “specific” and “blunt”.

[20]  In a schedule concerning past economic loss attached to the statutory declaration the appellant referred to her original intention to become a personal trainer once she finished school.  She stated that after the accident:

“I was advised by my doctor to focus on a desk job.  Accordingly, I did not pursue a career in personal training.

…

If not for my injury I would have begun studying a degree in this area [exercise physiology or human movement] …

Given I had been advised by my doctor following the accident not to focus on personal training as a career, once I finished school I commenced studying a Bachelor of Creative Industries in Drama at Queensland University of Technology.  I commenced this degree because I was not interested in obtaining a desk job.”

This evidence provided substantial support for a conclusion that a reasonable person in the appellant’s position would have appreciated that the pursuit of a career of the kind she contemplated in drama was contrary to her medical advice to focus on a desk job. 

[21]  There was also no error in the finding that the appellant “specifically knew the prospect of future disability in certain careers and that it could affect her working capacity”.  In addition to the evidence already mentioned, that finding reflected the appellant’s evidence that: the subjects she had studied in senior school before the accident “were geared toward entering University to study an Exercise Physiology or Human Movement type degree”; she abandoned that intended career because of the doctor’s advice; and, as she agreed in cross-examination, in 2007 she was aware that “I could not obtain a strenuous job.”  The treating doctor’s advice was apparently of such importance for the appellant that its significance should not have been materially diminished by her status as a child when it was given or by the subsequent passage of years.  I note also that the loss which the appellant quantified in the schedule to her statutory declaration was calculated on the basis that she was unable to pursue a career in personal training.  The respondent submitted without contradiction that analysis of the schedule reveals that, for past economic loss alone  up to 30 June 2009, the asserted loss was about $50,000.

[22]  Furthermore, the appellant deposed in her affidavit that whilst that she was living with her father after her discharge from hospital, he showed her a letter from which she understood that she might have a claim, and it was left to her to decide whether to pursue it.  The appellant deposed that she did not give consideration to bringing a legal claim because “it did not seem important”, she had more immediate issues dealing with her education, and her family, and she came to believe that the injuries would have little effect on her life.  She deposed that she was:

“conscious that none of the other passengers in the car had taken legal action.  I did not know whether I would recover moneys if I sued or if the amount I recovered might be so small that it was swallowed up by lawyers’ fees or retained by my father.  To some extent, I was also concerned that if I sued, Anthony Kemenes would have to personally pay.” 

[23]  The primary judge referred to that evidence and observed:[12]

“The difficulty is that a lot of questions clearly arose in the applicants [sic] mind about the utility of pursuing legal action. The applicant however took no step to have any of those questions answered for a period of over five years. The applicant knew she had suffered a serious injury even if further surgery was not required. She knew the first respondent was at fault and liability would not be in issue as she was a passenger. It would also have been obvious to the applicant that she should have completed senior in late 2005 but in fact was unable to do so until late 2006 due no doubt to missing significant periods of school in grade 11 due to her hospitalisation and the impact of her injuries which included wearing a body cast for three months. She clearly knew therefore that the accident had already had an economic impact on her given that her working life had been delayed by a year. She also knew she had been told in specific terms to consider undertaking a desk job given her back injuries. …

Whilst I accept that the applicant may have been unsure whether it would be worthwhile to sue she took no steps to seek legal advice or to obtain a further medical opinion for over five years. She in fact did nothing about it until she undertook the strenuous activities which she had been advised against five years earlier.”

[24]  In my respectful opinion it cannot be said that the primary judge erred in adopting that approach rather than in finding that it was not unreasonable for the appellant not to seek further elaboration upon her prognosis and its likely impact on her employability. 

[25]  The appellant referred to Greenhalgh v Bacas Training Limited & Ors,[13] in which Keane JA (with whose reasons Cullinane and Lyons JJ agreed) observed that: whether an action for damages was worthwhile must be assessed having regard to the expenses and risks of litigation; when such an assessment should reasonably have led to a conclusion that an action was worthwhile “must be determined having regard also to the plaintiff’s previous attempts to overcome any adverse economic consequences of his injuries”; and in that case, those attempts had largely been encouraged by medical opinion, and the fact that the plaintiff had persisted with his attempts in those circumstances could hardly be said to have been unreasonable.  In that case the plaintiff’s doctor did not recommend that the plaintiff change his employment or make any statement that he was unfit to work in his occupation (as a mechanic).[14]  Ultimately the Court decided simply that no error of law or fact could be discerned in the primary judge’s conclusion that the doctor’s subsequent opinion (that the plaintiff was restricted in regard to work and career options because of his inability to work above shoulder level and should find alternative employment) was a material fact of a decisive character.[15]  The decision does not advance the appellant’s argument in the different circumstances of this case.

[26]  In HWC v The Corporation of the Synod of the Diocese of Brisbane,[16] upon which the appellant also relied, Keane JA observed that “it is not the policy of the courts in the application of s 31 of the Act to penalise an injured person who makes a reasonable decision to try to get on with life rather than a decision to litigate upon a questionable basis.”  Keane JA referred also to the reference by Thomas JA in Pizer v Ansett Australia Ltd to the earlier observations of the Court in Healy v Femdale Pty Ltd[17] that:[18]

“The question whether such a person has taken all reasonable steps to ascertain the nature and extent 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, 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. The answer to this then depends upon the primary facts concerning the level of seriousness of the plaintiff’s symptoms and of the warning signs which she undoubtedly had.”

[27]  The primary judge referred to Healy v Femdale Pty Ltd in the passage extracted in [8] of these reasons.  Of significance here was that the doctor’s advice to focus upon a “desk job” was a fact which, in addition to the warning signs in the seriousness of the injury itself and the ongoing pain it produced, was relevant in deciding whether or not it was reasonable to expect a reasonable person in the appellant’s shoes to take advice to protect her legal rights.

[28]  There being no identifiable error of principle in the primary judge’s reasons, the issue concerns only the application of the law to the facts found by the primary judge.  In Pizer v Ansett Australia Ltd  Thomas JA said:[19]

“In appeals of the present kind, when the material fact concerns the nature and extent of personal injury, questions of degree are necessarily involved.  At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it.  At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension, and an appeal court could likewise readily correct an erroneous decision.  Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff’s knowledge and as to whether the reasonable person contemplated by s. 30(b), endowed with such knowledge and having taken appropriate advice, would have brought proceedings.  Appeals involving extensions of periods of limitation commonly raise these particular issues which involve factual assessments.  Although the eventual decision is discretionary the determination of these issues is not.  They involve findings of fact and a determination whether those facts satisfy the requirements of the statute.  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.” (footnotes omitted)

[29]  The appellant’s case fell between the extreme ends of the spectrum described by Thomas JA.  The appellant’s case for an extension of time was not insubstantial but it was not such a clear case that its rejection itself evidences error.  I am not persuaded that the primary judge’s conclusion was affected by any error of law or fact which justifies appellate correction.

Order

[30]  I would dismiss the appeal with costs.

[31]  MARGARET WILSON AJA: I agree with the order proposed by Fraser JA and with his Honour’s reasons for judgment.

[32]  MULLINS J: I agree with Fraser JA.