Suncorp Metway Insurance Limited v Norris
[2012] QCA 101
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- Unreported Judgment
- Appeal Determined (QCA)
- Suncorp Metway Insurance Limited v Norris[2012] QCA 101
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Suncorp Metway Insurance Limited v Norris[2012] QCA 101
Suncorp Metway Insurance Limited v Norris[2012] QCA 101
SUPREME COURT OF QUEENSLAND
CITATION: | Suncorp Metway Insurance Limited v Norris [2012] QCA 101 |
PARTIES: | SUNCORP METWAY INSURANCE LIMITED |
FILE NO/S: | Appeal No 7932 of 2011 DC No 1544 of 2011 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 17 April 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 February 2012 |
JUDGES: | Margaret McMurdo P and Muir JA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | The appeal is dismissed with costs. |
CATCHWORDS: | LIMITATION OF ACTIONS – EXTENSIONS OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURY MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE – REASONABLE STEPS TAKEN TO ASCERTAIN FACTS – where the respondent was involved in a motor vehicle accident in March 2005 – where the respondent was unaware of the identity of the driver at fault until August 2010 – where the identity of the driver at fault was in fact discovered by police prior to May 2005 – where the respondent was also unaware of the nature and severity of her ‘accident caused neck injury’ until August 2010 – where the respondent relied on these two matters to justify an extension of time under s 31 Limitation of Actions Act 1974 (Qld) – where the learned primary Judge accepted these two matters amounted to ‘material facts of a decisive character’ under the Act – where an extension of time was granted – where the appellant submits that the learned primary Judge applied the wrong test when approaching the exercise of discretion under s 31 – where the appellant submits in the alternative that the learned primary Judge misapplied the facts to the correct test under s 31 – where the appellant submits that the identity of the at fault driver was within the respondent’s means of knowledge within the limitation period – whether the learned primary Judge committed any error of fact or law Limitation of Actions Act 1974 (Qld), s 31 Baillie v Creber & Anor [2010] QSC 52, cited Gillespie v Swift Australia Pty Ltd [2009] QCA 316, cited Healy v Femdale Pty Ltd [1993] QCA 210, cited Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262, cited Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, cited NF v State of Queensland [2005] QCA 110, cited Pizer v Ansett Australia Ltd [1998] QCA 298, cited Spain v Dipompo Jacs Constructions Pty Ltd & Anor [2009] QCA 323, cited Tregelles-Fox v WorkCover Queensland [2010] QSC 288, cited Van der Merwe v Arnott’s Biscuits Limited [2010] QSC 145, cited Watters v Queensland Rail [2001] 1 Qd R 448; [2000] QCA 51, cited |
COUNSEL: | T Matthews for the appellant G W Diehm SC for the respondent |
SOLICITORS: | Quinlan Miller and Treston for the appellant McInnes Wilson for the respondent |
- MARGARET McMURDO P: I agree with Daubney J's reasons for dismissing this appeal with costs.
- MUIR JA: I agree the appeal should be dismissed with costs for the reasons given by Daubney J.
- DAUBNEY J: On 9 August 2011, a number of orders were made by a District Court judge, including an order pursuant to s 31 of the Limitation of Actions Act 1974 (“LAA”) that the period of limitation for the respondent’s claim for damages against the appellant be extended to 19 August 2011. The appellant now appeals against that order.
Background
- The evidence before the learned primary judge consisted of:
(a)An affidavit by the respondent;
(b)An affidavit by the respondent’s solicitor, Mr McMahon;
(c)An affidavit by Dr Don Todman, specialist neurologist, to which was exhibited copies of his reports dated 17 November 2010 and 22 November 2010;
(d)An affidavit by Mr Stephen Hoey, occupational therapist, exhibiting his report dated 24 May 2011;
(e)An affidavit by the appellant’s solicitor, Ms Miller, exhibiting copies of physiotherapy and other treatment records relating to the respondent;
(g)An affidavit of Ms Catherine Meffe, practice manager, exhibiting medical records of a Nerang medical practice attended by the respondent on various occasions from May 2009 to April 2011;
(h)A copy of a further report from Dr Todman dated 27 June 2011;
(i)A copy of a report from Dr Philip Dubois, specialist radiologist, dated 15 July 2011.
- The respondent was made available at the hearing below, and was cross-examined before the learned primary judge.
- From this evidence, the relevant background can be stated as follows.
- On 29 March 2005, the respondent was driving her car on the Logan Motorway when the front of her car was struck, initially by a sheet of plasterboard, and then by a box containing a radiator. This box had dropped off the back of a vehicle ahead of the respondent in the traffic. The impact of the box caused the respondent to lose control of her car and strike concrete barriers to her right. This caused her car to spin back into the path of following traffic, and the rear of her car was hit by a following vehicle which shunted her back into the concrete barrier.
- The vehicle from which the items had fallen did not stop, and was not identified at the time.
- The respondent said that she was “stunned and shocked by the incident”, in which her body was thrown around despite being restrained by a seat belt.
- Police and ambulance attended the scene. The respondent declined assistance from the ambulance officers. She said that she was shaken up by the incident but was not in intense pain, nor did she have any obvious injuries.
- The respondent was interviewed at the scene by a police officer. She gave her version of events to the police officer. She said that the police officer told her that the police officer had spoken to others who had stopped at the scene and no one was able to identify the vehicle from which the box had fallen. The police officer said there was a shipping label on the box, and that inquiries would be made to attempt to identify the vehicle and its driver. The police officer gave the respondent a business card, on which the officer had written a reference number which the respondent was to quote in communications with the police.
- The respondent was driven home after the incident. Later that day she started to feel the effects of the injuries suffered in the incident – stiffness in the neck and mid back region, soreness in the left side of the chest and in the right shoulder region, and a weak sensation in her left leg. Her husband took her to the emergency department of the Gold Coast Hospital, where she was examined and x-rays were taken. She said that she was told by the hospital doctor that there were no obvious fractures or other major injuries. She was given pain medication and told to rest at home and seek medical attention if her injuries did not settle or got worse. A report dated 29 March 2005 from the hospital doctor who examined the respondent confirmed that all observations and x-ray results were normal, that the doctor told the respondent that she would feel bruised for a few days and prescribed pain relief, and that the doctor made a diagnosis of “sprain and strain of parts of the thorax”.
- The respondent took several days off work, on sick leave. She said that she was in a lot of pain and discomfort, with stiffness in the lower back and neck, sore ribs, and headaches.
- Between April and November 2005, the respondent attended a chiropractor at the Coomera Wellness Centre for chiropractic treatment in respect of her lower back, rib soreness, stiffness and swelling in her neck, and headaches. She had attended this chiropractor for some previous episodes of neck pain and stiffness prior to the incident on 29 March 2005. The respondent said that she got good relief from these treatments and her symptoms gradually became less frequent and severe. She said that in early 2006 there were some residual aches and pains for which she sought chiropractic treatment over several months. She put these ongoing matters down to stress and diet issues, and said that she found that the massage and chiropractic treatment was relieving those symptoms as well. She said that by about September 2006, she found that the effects of the injury she had sustained in the accident had settled to a degree that did not warrant her seeking medical treatment. In particular, the pain in her lower back had gone. After September 2006, but before August 2010, she would be aware of discomfort in her neck and shoulder region, and that certain activities would aggravate these areas and increase her level of discomfort. She generally tried to live her life as normally as possible, but did modify her activities to avoid flare-ups. When flare-ups did occur, they appeared to the respondent to be muscular in origin, and she would either take over-the-counter pain relief medication or seek treatment from the Coomera Wellness Centre or a physiotherapist.
- In August 2010, the respondent suffered a significant episode of neck pain of a nature which she had not experienced previously. She described the following in her affidavit:
“31.In mid August 2010, I suddenly began to experience more severe pain and discomfort in my neck region, which was accompanied by a pins and needles sensation in my left arm (which I had not ever experienced before). I do not know what caused it. There was no other incident (fall, collision or anything) that I could put down as a cause.
- On 18 August 2010 I sought treatment from Jeneene Evans, who had intermittently treated me since the accident. Jeneene told me that she thought my symptoms were not consistent with having a muscular or soft tissue flare up but it was more likely to be related to a problem in my cervical spine. She referred me for an x-ray and recommended that I rest for two days.
- On 19 August 2010 I attended South Coast Radiology at Nerang for an x-ray of my cervical spine. The radiologist (or radiographer) who took the x-ray showed me the film after it had been developed. He told me that the x-ray reveals that I have a problem with my cervical spine. He asked me if I had injured my neck previously. I told him that I had been in this accident. His reply was that the problem in my cervical spine was probably related to the accident and made an off hand comment to the effect that it was probably too late for me to take any legal action.
- On 20 August 2010, I returned to Jeneene Evans. Jeneene had the x-ray films. She too showed me the films and told me that they confirm there was, as she had suspected, an abnormality with my cervical spine.”
- The plaintiff said that she continues to suffer:
(a)stiffness and pain in the neck;
(b)pain from the neck across into her scapula;
(c)pins and needles/tingling down her left arm;
(d)headaches.
She takes various forms of strong pain relief, and undergoes physiotherapy and remedial massage. She has a daily home exercise and stretching program, and also regularly applies anti-inflammatory gels and heat packs.
- The respondent was seen by Dr Todman in November 2010. In his report dated 17 November 2010, Dr Todman reported the respondent’s present symptoms and treatment as follows:
“Ms Norris has continued to suffer from symptoms from this accident. There has been persistent neck pain with symptoms extending into the left shoulder girdle and into the left upper limb.
Over the years since the accident she has had constant and steady pain with minor flare-ups from time to time related to neck movements, postures and activities. Whereas previously she was very active in sports and other day-to-day physical tasks, she found that she had to be very careful to avoid aggravating her neck pain. She had periodic treatments with chiropractor and physiotherapy over the years. She took analgesics when required. Mostly however she learned to live with the pain and its limitations.
In August this year she had spontaneous flare-up in pain. She woke with an increase in symptoms extending form the left side of the cervical spine to the left shoulder girdle. She had further Xrays performed and the radiologist commented that she had evidence to suggest a previous neck injury. She later had an MRI scan performed which was arranged by her local doctor. Surgery was not recommended and further treatment has been with physiotherapy and chiropractic treatment.
Since this flare-up the pain has gone to a higher level. It is still affecting her in day to day activities. It restricts her in movements and is aggravated by certain postures. It is still disturbing sleep. She is taking Voltaren when required for pain. Headaches have been infrequent.”
- Dr Todman’s conclusions in that report included:
“Ms Vanessa Norris sustained injuries in the motor vehicle which occurred on 29.03.2005. At the time she was the driver of a vehicle which struck some debris on the road. Her vehicle went out of control and struck a barrier and was hit by another car. Afterwards she was quite shaken and began to experience neck and shoulder girdle pain. These symptoms have continued and can be directly attributed to this accident.
The mechanism of injury has been a severe whiplash injury to the cervical spine. The structures that may be affected could include muscles, ligaments, cervical facet joints and intervertebral discs.
Ms Norris had quite severe symptoms initially, but had appropriate treatment. There was only partial improvement however and she has had continuous pain since then with minor flare-ups associated with certain activities or tasks. There has been a more significant flare-up in pain from August this year and investigations, particularly the plain Xrays have shown retrolisthesis of C5/C6 which suggests previous cervical spine trauma. There has been no new injury to account for this significant flare-up in pain. From her history and supported by the radiological findings, I conclude that her current symptoms are related to the original whiplash injury of 29.03.2005 and that this has resulted in a significant disc injury at C5/6 with internal disruption of the disc and retrolisthesis.”
- In his report dated 27 June 2011, Dr Todman compared recent radiological investigations of the respondent with x-rays which had been taken of the respondent’s spine in November 2004, i.e. prior to the accident. He was of the view that the 2004 x-rays showed normal contour of the cervical spine with no significant degenerative changes, which was in contrast to the imaging taken in September 2010 which showed a disc height reduction at C5/6 and plain x-rays of the respondent’s cervical spine taken in August 2010 which showed disc height narrowing at C5/6 with slight retrolisthesis. He said that the prior imaging suggested that there was no pre-existing condition and that the ongoing symptoms suffered by the respondent were related to the motor vehicle accident which occurred on 29 March 2005.
- For completeness, I note that Dr Dubois, who conducted a similar comparative study between the 2004 x-rays and the subsequent radiological investigations, was also of the view that the changes in the respondent’s spine were suggestive of a traumatic event such as a whiplash injury.
- As noted, the police at the accident scene were unable to identify the vehicle from which the box had fallen, and the respondent had been given the police officer’s card with a reference number. About a week after the accident, the respondent telephoned the police officer to inquire whether the vehicle had been identified. The respondent needed this information for the purposes of her insurance claim relating to her vehicle. The police officer said that she had not been able to identify the vehicle, but investigations were ongoing. The police officer told the respondent that it may take some time for the investigations to conclude, and that the police officer would contact the respondent after investigations were finished to let the respondent know the outcome.
- The respondent’s unchallenged evidence was that, about a month after the accident, she again telephoned the police to inquire about the outcome of the investigations. She was unable to speak with the particular police officer with whom she had previously dealt, and spoke with a male police officer. She asked whether police had identified the other vehicle and its driver. She quoted the reference number which had been given to her. The police officer with whom she spoke said that it appeared from the computer system that investigations were continuing. He told the respondent “that it may take months or even years for the investigation to conclude”. The officer told the respondent that the police had her contact details recorded and that she would be contacted “if their investigation reveal the identity of the at fault vehicle”.
- The respondent said that she did not take the matter further with police; she lost interest in finding out who the driver of the other vehicle was because her insurer had paid out her claim for the damage done to her vehicle. The respondent said:
“19.I have never been contacted by the police as to the outcome of the investigation. As they had already told me they would contact me if they found out something I assumed that their enquiries were unsuccessful.
- Prior to speaking with my lawyers on 23 August 2010, I was not aware of the existence of the Nominal Defendant nor that I would have had an entitlement to bring a claim for damages for personal injury against that body or that a time limit applied to such claims.”
- The respondent said that, after the radiographer made the comment to her on 19 August 2010 about the problems in her spine probably being related to the accident, she decided to investigate matters further and did a search for lawyers on the internet. She said:
“39.I made contact with McInnes Wilson Lawyers and spoke to Chris McMahon of that firm on 23 August 2010. Mr McMahon told me that if the police were able to identify the vehicle then I may have grounds to make a claim against the compulsory third party insurer of that vehicle even though the claim may be outside the usual 3 year limitation period that applies. Mr McMahon told me that he would conduct a search of the police traffic incident report to find that out.
- On 24 August 2010 I received a call from Mr McMahon during which he informed me that he had conducted that search which confirms that the police did in fact identify the vehicle involved in the accident. I subsequently engaged McInnes Wilson Lawyers to investigate the prospects of my bringing a claim.”
- The respondent’s affidavit then describes the obtaining, on her solicitor’s advice, of various medical certificates and reports.
- The respondent’s solicitor confirmed speaking for the first time with the respondent on the afternoon of 23 August 2010 and advising her, inter alia, that a search for the traffic incident report for the accident could be obtained and might reveal whether police were ever able to identify the vehicle. He then obtained the report, which disclosed that the police had, in fact, followed up on the despatch information on the box which had struck the respondent’s car, and had been able to identify the courier company, and the relevant courier van and its driver which had been carrying the box. There is no suggestion, however, that this information was ever passed on to the respondent by the police, and there is no evidence to contradict the respondent’s version as to the information and advice she was given by police officers on the several occasions she contacted the police.
- In her affidavit, the respondent also gave some detail about her work history since the accident. The day of the incident was, in fact, her first day at work for Haines Group Pty Ltd, where she was employed as marketing co-ordinator. This was an office-based position at the employer’s office at Wacol. The respondent was living at Hope Island at the time, and had a significant commute to and from work. She said that, whilst she found her job there enjoyable, she started to experience more regular episodes of stiffness in her neck and lower back after sitting for long periods at her desk working on the computer. This sometimes resulted in headaches. She also found that constant travel to and from work each day was taxing, so she decided to resign from the position in July 2009. She subsequently worked for an international sourcing company as marketing manager. This position was based on the Gold Coast, near her home. The respondent said that because this position required her to be based at a desk in front of a computer for long periods, she suffered some discomfort in her neck and headaches. The respondent resigned from this position, because she was offered a new position with another company, Eaton Services Group. This position offered more variety of work and less time sitting at the computer. She commenced in the role of business development manager with Eaton Services Group in about February 2010. The work was office-based, but there was also a significant amount of time out of the office. The respondent said in her affidavit:
“51.I was more able to cope with the work at Eaton Services Group until there were several changes. Firstly, I experienced a significant flare up of my symptoms in August 2010 and then there was a sale of the business (and the new owners of the business were people that I was not prepared to work for).
- Subsequent to the flare up in my condition, I have had constant symptoms in my neck. I have had tingling sensation down my left arm.
- I found that I was experiencing the neck pain on a more frequent and intense basis. It was a different type of discomfort too. Prior to mid August 2010, my symptoms felt more like muscle tightness whereas after the flare up, it was accompanied by the tingling.
- I found that I was not able to work at my desk on a computer or drive a car for as long before the symptoms would come on.”
- The respondent subsequently obtained employment as Queensland accounts manager for Nutrition Systems. This sales-based role enables the respondent to work from home. She travels to visit clients.
- The respondent was cross-examined about, amongst other things, her employment history. She denied that her resignation from Eaton Services Group was related to the fact that she had just received legal advice in relation to her potential claim, and said that her resignation arose from advice she had received from her employer that it was being restructured. She also confirmed that, prior to resigning from Eaton Group Services, she had secured employment as an account manager for Nutrition Systems.
- The respondent was also cross-examined at some length on her history of medical treatment. The tenor of the cross-examination and the respondent’s answers can be gained from the following passage of evidence:
“You went to Ms Evans on the 18th of August 2010 and said that your symptoms had flared up after playing golf? -- I thought this may have been the case because I had significant flare-ups since after the accident on and off, on and off, but this was more significant than the others.
Right. So since March 2005, you had a number of flare-ups and, in fact, I think you told Dr Todman in November last year that over the years since the car accident, you had had constant and steady pain with minor flare-ups from time to time related to neck movements, postures and activities? – Correct.
It is certainly not the case that after this accident, the initial flare-up, your symptoms you felt had resolved, is it? -- They had subsided with treatment.
They had not resolved, had they? -- I felt they had subsided with treatment. I felt that they were muscular and not spinal.
Leaving aside what you felt, you still had symptoms continually, so you told Dr Todman, from the end of March 2005 until at least you saw him in November last year? -- Correct. The pain has never gone away.
Right. And you told him that whereas previously you were very active in sports and other day to day physical tasks, you found you had to be careful to avoid aggravating your neck pain; is that so? -- Correct.
And that had been the case, had it, since March 2005? -- Correct.
And you had periodic treatment you told Dr Todman from a chiropractor and physiotherapy with Ms Evans over all the years since 2005? -- More so in the early part after the accident. I didn’t have as regular treatments until two or three years after – only periodically when I felt necessary.
When you felt necessary, okay. And Dr Todman records, and I take it he was told this by you, that you’ve learned to live with the pain and its limitations. That’s what you told him? -- Correct.”
- Under further cross-examination, the respondent consistently maintained that, after a year or so from the time of the incident, she found that the muscular symptoms she experienced had subsided and she did not have to continue with the regular treatment she had been receiving. The respondent gave the following evidence in re-examination:
“MR FEELY: Ms Norris, a number of matters. You were asked some questions and gave some evidence about the physiotherapy treatments and the chiropractic treatments, I think, that you may have had after this accident in March 2005 and I think you at one stage mentioned that there were a course of treatments over approximately one year following the accident. Do you recall that? -- Yes.
All right. Now, after that period of a year or so, did you associate the whatever symptoms remained in your neck with the car accident or not? -- Yes, I did.
And in what way? -- I felt that I’d sustained some muscular injury to my neck and certain areas of my back and I was just seeking treatment based on what the physio and chiropractic people thought I should be getting at the time.
Right. And what caused you to seek that further treatment in August 2010 from the physiotherapist which led to the X-rays and the other events which unfolded from there? You mentioned a significant flare-up. What form did that take and what was happening? -- Over the years after the accident a lot of my – a lot of pain and my little flare-ups felt very muscular whereas in August 2010, I – my neck almost seized up for a couple of days. It was actually over the weekend. I was actually – couldn’t get out of bed and I had tingling down my left arm.
Mmm-hmm. Had you ever experienced that before? -- No.
No. And the inability to get out of bed and to – and the neck seizing up, had you had that before? -- No, nothing like – not that severe, no.
And what – how did you feel about suffering those symptoms? What was your response? – Well, it had – it’s hard to explain but had a very different feeling than just your standard muscular soreness.
Yes? – And I was concerned – I’d had pain in my neck before but I was quite concerned that the pain running from my shoulder down into my hand, the weakness, the tingling and the numbness all the way down my arm. So, yeah, I knew that I had to seek treatment straightaway or go and see what it was – what was happening.
Well, after getting the – seeing the physiotherapist Evans and having the X-ray taken, what was your understanding then about what was wrong with your neck? -- Well, I was quite – I was very shocked because I always thought that my injury was more muscular. That’s why I just got regular treatment and massages and that kind of thing, just to relieve the pain.
Yes? -- And just taking your standard painkillers and so forth. But once I actually found out it was something more serious and actual spinal pain not just a muscular thing, then I thought, “Well, hang on a minute, I’ve got a serious spinal injury here that I’m going to have to live with for the rest of my life.”
Right, and off you went to see the doctors and the lawyers and so forth. Why didn’t you go and see a lawyer back sometime in – any time in 2005? -- Because I didn’t believe I had a case to bring forth to anyone.
Right? – I was told by the police that they were investigating.
Yes? -- I followed up on those investigations a couple of times and I’d been told that these investigations can take a long time. They’ve got my details on the file, and that they will continue their investigations and contact me when and if they find the car, the vehicle, the driver.
Right. Okay. And did you think about chasing them up later? -- Well, it’s one of those things, it was always on the back of my mind, well, I wonder if they ever found that guy, I wonder if they ever found the vehicle. It’s something that is always in the back of your mind thinking, well, I might get a phone call in six months, 12 months, I don’t know. A lot of people had mentioned to me that these investigations take a long time.”
The application before the District Court
- The respondent submitted before the learned primary judge that there were two features of this case which justified an extension of the limitation period under s 31 of the LAA, namely:
(a)The fact that the respondent was unaware of the identity of the vehicle at fault until her solicitors discovered this information in August 2010; and
(b)The fact that the respondent was unaware of the nature and severity of her accident caused neck injury until the episode in August 2010 which caused her to seek medical attention and which brought to light the more serious condition of her neck.
- In his reasons for judgment, the learned primary judge reviewed the medical evidence, particularly of Dr Todman and Dr Dubois, and summarised the case advanced on behalf of the respondent. He found no inconsistency between the reports given to Dr Todman and the respondent’s evidence, finding that the case presented by the respondent was that “it was the August 2010 flare-up which revealed a concerning level of painful and potentially disabling symptoms of a kind to make litigation appropriate when it would not have been before”.
- The learned primary judge found that the respondent had not ceased her employment, saying:
“She’s continued to work, tolerating whatever difficulties her back creates for her, albeit in a number of different employments. The court accepts her explanations for those changes which, in one case, anticipated inability to get on with new owners of an employer business.”
- His Honour referred to the respondent’s medical history, including what he described as “flurries of attendances on practitioners of various kinds”. The learned primary judge referred to the statements of principle in Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, in the context of a would be plaintiff appreciating that he had “a worthwhile action to pursue and should in his interests pursue it”. His Honour then said:
“I find nothing unreasonable in the way the applicant has managed her treatment over the years. I accept that the August 2010 flare-up was of a different order of severity to those that had preceded it over the years; that investigations by radiologists which had not previously been appropriate or called for did become appropriate and revealed to the applicant for the first time the significance of the March 2005 injury. As it happens, it was the radiographer who introduced the topic of a claim based on the accident and I think ventured the view that it was a pity the applicant was too late. With alacrity she consulted solicitors, something she had not done before. They have done what they could to get a claim underway for purposes of the Motor Accident Insurance Act 1994. Unsurprisingly, they haven’t met with cooperation from the respondents in that regard.
A second fact became known to the applicant at about the same time, namely, the identity of the vehicle which can be seen as the cause of the accident, thanks to an improperly secured load, and its driver. No one was able to identify it at the scene. The applicant discussed that matter with Constable Poon who left with her her business card endorsed on which was a number identifying the incident. The purpose of that was so that the topic of identifying the blameworthy vehicle and driver could be pursued. As it happens, the applicant’s interest in those matters at the time when she had no thought of pursuing a personal injury claim was in relation to the damage to her vehicle. It could be expected that her insurer would want details of other vehicle involved in the incident. She was concerned to avoid the apparent injustice of having to bear a significant excess in respect of damage in an incident she was not responsible for. Her insurer, Suncorp, ultimately waived the excess.
The applicant did pursue with Constable Poon by telephone the identification issue but was told nothing had been discovered yet. I’m satisfied that she’s correct in her affidavit when she says that some weeks latter she inquired again and spoke to another police officer giving identification details for the incident and was told that nothing had happened. I’m satisfied that she was given and accepted intimations from the police that she would be notified if anything of interest eventuated. In fact, the police within a day or so of the accident identified the relevant vehicle and driver. The applicant was not told.”
- The learned primary judge then referred to the ease with which the respondent’s solicitor had been able to ascertain the information from the police incident report, but concluded:
“It may or may not have been the case that a more determined pursuit of the police by the applicant over the years would’ve unearthed the information that Mr McMahon got so easily. However, she did not have it in mind to pursue a claim like the present one. She concedes that over the years she has wondered to herself whether the police ever identified the driver. I do not think it was incumbent upon her to be aware of the possibility of a claim again the nominal defendant [sic].”
- His Honour held that this additional circumstance of identifying the appropriate defendant qualified as a material fact of a decisive character to support the application before him. He found that the respondent’s circumstances were such that it was not reasonable for her to be taking steps to discover that material fact until around August 2010 when she discovered the other material fact to do with the condition of her back.
The present appeal
- It was submitted on behalf of the appellant:
(a)that the learned primary judge applied the wrong test when approaching the exercise of discretion under s 31, or alternatively misapplied the facts to the correct test, and
(b)erred in finding that reliance by the respondent on advice from an unidentified police officer was not sufficient warrant for the learned primary judge to hold that the identity of the other vehicle was not within the respondent’s means of knowledge within the limitation period.
- The first of these submissions focused on the statement by the learned primary judge that his Honour found “nothing unreasonable in the way the [respondent] has managed her treatment over the years”, in conjunction with his Honour’s finding that the August 2010 flare up revealed symptoms “of a kind to make litigation appropriate when it would not have been before”. It was submitted that his Honour erred in applying a test as to the “reasonableness” of the respondent’s “management” of her injury and symptoms, when he ought have asked whether a person in the position of the respondent ought have taken steps to ascertain the significance of the injury. Counsel for the appellant developed this argument by reference to the evidence, including:
- the respondent’s evidence that she had not been pain-free since 2005 and had constant treatment of one sort or another since that time;
- her employment history, including her evidence of symptoms of pain which interfered with her work;
- the fact that the respondent herself attributed her ongoing symptoms to the motor vehicle accident;
- her continuing to seek treatment by physiotherapy and chiropracty.
- Counsel for the appellant submitted that consideration of whether her “management” of her symptoms of pain and disability was “reasonable” was plainly the wrong test and that, if the learned primary judge had applied the correct test in accordance with the authorities, he would have found on the evidence that within the relevant period (i.e. the period expiring 12 months before August 2010) the respondent’s injury required constant treatment of one kind or another, and interfered with her recreational and social activities, and had interfered with her employment. An application of the proper test to those facts would have led to a conclusion that the respondent should have made prudent inquiry to protect both her health and legal rights. Accordingly, the material fact alleged was “within her means of knowledge” before both the expiry of the limitation period, or at least by August 2009 (given that, on the appellant’s argument, the evidence disclosed that the respondent’s symptoms had forced her resignation from employment with the Haines Group in July 2009).
- Section 31(2) of the LAA 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.”
- In order to understand the operation of s 31, one needs to have regard to s 30, which provides:
“30Interpretation
(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 –
(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
(ii)the identity of the person against whom the right of action lies;
(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
(iv)the nature and extent of the personal injury so caused;
(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
(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.”
- In Tregelles-Fox v WorkCover Queensland [2010] QSC 288, I sought to articulate the propositions, derived from the authorities, relevant to a case such as the present, in which a putative plaintiff receives late (i.e. after the expiration of the limitation period) medical advice of a link between ongoing pain and a previous incident in which injury was suffered. In that case I said:
“[7]The defendant submitted that, to the extent that the advice from Dr Cooke might be regarded as a ‘material fact’ (and in that regard, it would appear to fall within the ambit at least of s 30(1)(a)(v)), it did not possess the necessary ‘decisive character’ in the sense that it did not convert a case which was not worthwhile in terms of liability into one that was.[1]
[8]A determination on this point requires the plaintiff to demonstrate that, without the newly learned facts, he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and ought in his own interests pursue it.[2]
[9]Moreover, it is for the plaintiff to demonstrate that the fact was not within his means of knowledge. Section 30(1)(c) makes it clear, in express terms, that this requires not only that the plaintiff did not know the fact, but also, as far as the fact is able to be found out by the plaintiff, he had taken all reasonable steps to find out the fact before he did.
[10]A number of relevant principles to the application of this section were essayed by McMeekin J in Baillie v Creber.[3] His Honour made the following points:
(a)It is for the applicant plaintiff to establish that the material fact would not have been discoverable prior to the critical date.[4]
(b)An applicant who suffers significant pain and disability commencing with the subject incident, pain with which he eventually could not cope, and a disability sufficient enough to restrict his working ability and which forced him to seek work with a known sympathetic employer amounted to facts which “call for prudent inquiry to protect [his] health and legal rights”.[5]
(c)An applicant who has ongoing pain and disability affecting his employability ought to realise that he is in a position of vulnerability and needs to make appropriate inquiry.[6]
[11]McMeekin J referred to the following passage in the judgment of the Court of Appeal in Healy v Femdale:
‘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 circumstances it would not be reasonable to expect the plaintiff to have done so.’
[12]Further, in considering the application of s 30(1)(c), it must be recalled that this subsection calls for an inquiry into the conduct of the particular plaintiff because the actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps is the particular person who has suffered the particular personal injuries.[7]”
- Contrary to the appellant’s submissions, I do not consider that the learned primary judge’s statement that he found “nothing unreasonable in the way the [respondent] has managed her treatment over the years” to have been a manifestation of an application of the wrong test. Read properly in context, this statement was an assessment of precisely the sorts of issues addressed in the first sentence in the passage from Healy v Femdale quoted above. The learned primary judge committed no error in principle in addressing that question in the way he did.
- Moreover, it is clear that a judge assessing the merits of an application in circumstances such as this needs to balance whether, on the one hand, the evidence discloses that the degree of pain and disability was such that an applicant ought have realised that the applicant was in a position of vulnerability and needed to make appropriate inquiry, or whether, on the other hand, it is a case, on its facts, in which there was no requirement for the applicant to take appropriate advice or to ask appropriate questions because, in all the circumstances, it would not be reasonable to expect the applicant to have done so.
- It is quite clear that the learned primary judge in this case formed the view, on the evidence before him, that this case fell within the latter variety, i.e. it was one in which it would not be reasonable to expect the respondent to have taken appropriate advice or asked appropriate questions. So much is clear from his Honour’s finding that this was a case in which “the August 2010 flare-up ... revealed a concerning level of painful and potentially disabling symptoms of a kind to make litigation appropriate when it would not have been before”, together with his finding that the August 2010 flare up was “of a different order of severity to those that had preceded it over the years”, and his finding that “investigations by radiologists which had not previously been appropriate or called for did become appropriate and revealed to the [respondent] for the first time the significance of the March 2005 injury”. Each of these findings was clearly open on the evidence before the learned primary judge.
- Accordingly, I am not satisfied that the appellant has demonstrated that the learned primary judge erred in his consideration as to whether the advice received by the respondent in August 2010 about the severity of her neck condition was a material fact of a decisive character relating to her cause of action which was not within her means of knowledge until that time, for the purposes of s 31(2) of the LAA.
- Similarly, I consider that the appellant’s criticism of the learned primary judge’s consideration of the fact that the respondent was unaware of the identity of the vehicle until August 2010 was misplaced. Section 30(1)(c) of the Act provides, in terms, that a fact is not within a person’s means of knowledge at a particular time only if –
(a)the person does not know the fact at that time; and
(b)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.
- The uncontroverted evidence before the learned primary judge in this case was to the following effect. At the time of the incident, the other vehicle was unidentified. The police officer at the scene informed the respondent that the police officer would make inquiries to try and ascertain the identity of the other vehicle. The respondent was given a particular reference number relevant to the inquiry. She contacted that police officer about a week later, and was told that the other vehicle had not been identified and that inquiries were continuing. Some weeks later, she spoke with another police officer, and identified the incident by reference to the reference number she had been given. She was informed that investigations were continuing, that it may take many months or even years for the investigation to conclude, that police had the respondent’s contact details, and that she would be contacted if the police investigation revealed the identity of the other vehicle. It was not suggested that the respondent knew of the ability to make inquiries by accessing the traffic incident report, as her solicitors ultimately did. It was not suggested that there was any way that the respondent could have known, as appears actually to have been the case, that the police in fact knew of the identity of the other vehicle within some days after the incident. She was not to know that she had, in fact, been given incorrect information by the policeman with whom she spoke in the second phone call. There was nothing to suggest that it was unreasonable for her to accept the information given to her by that policeman, i.e. that she would be contacted by the police if and when the vehicle was ever identified. It is quite clear that the learned primary judge regarded the respondent as having taken all reasonable steps available to her in the circumstances to find out the identity of the vehicle. No error on the part of the learned primary judge has been identified.
- To the extent that the learned primary judge’s considerations in respect of both of these questions involved an assessment of the particular facts of the case, it is appropriate to recall the degree of caution which is exercised in this Court when called on to review cases of this sort. It is sufficient to cite the following observations by Thomas JA in Pizer v Ansett Australia Ltd [1998] QCA 298 at [20]:
“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.” (Emphasis added)
- For the reasons I have given above, I am not satisfied that the learned primary judge committed any error of law or fact. Nor has the appellant demonstrated any basis for a conclusion that the learned primary judge’s discretion miscarried.
- Accordingly, I would order that the appeal be dismissed with costs.
Footnotes
[1] See Watters v Queensland Rail [2001] 1 Qd R 448; [2000] QCA 51 per Thomas JA at [9].
[2] Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 per Macrossan J at 333.
[3] [2010] QSC 52.
[4] At [46], citing Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262 per Holmes JA at [48] and Gillespie v Swift Australia Pty Ltd [2009] QCA 316 at [20] – [21].
[5] By which his Honour paraphrased observations made in Healy v Femdale [1993] QCA 210.
[6] Referring to Spain v Dipompo Jacs Constructions Pty Ltd [2009] QCA 323, per Keane JA at [61].
[7] NF v State of Queensland [2005] QCA 110 per Keane JA at [29]; Baillie v Creber (supra) per McMeekin J at [32]; Van der Merwe v Arnotts Biscuits [2010] QSC 145.