O'Brien v Supreme Lounges[1996] QDC 315

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REASONS FOR JUDGMENT - McGILL S.C., D.C.J.

Delivered the 5th day of December 1996

This is an application for an extension pursuant to s.31 of the Limitations of Actions Act 1974 of the period of limitation applicable to the claim of the plaintiff for damages for personal injuries alleged to have been received by her during the course of her employment from about 1991. By a plaint filed on 6 October 1995, the plaintiff claimed that in or about 1991 she was employed as a leather cutter and machinist by the first defendant, which was wound up in 1993, after which she was employed as a leather cutter and machinist by the second defendant. The Workers Compensation Board of Queensland is joined as third defendant in the action. Indeed, the plaint alleges that the first defendant has ceased to exist, but this is disputed: affidavit of G.W. Manteit (Exhibit G). Counsel appeared before me on behalf of all three defendants, to oppose the application. The plaintiff alleges that she suffered personal injuries caused by the negligence of the first defendant during her employment when she hurt her back by lifting and spreading a heavy leather hide for the purpose of sewing it. She also alleges that on or about 23 June 1993 in the course of her employment with the second defendant, while trying to manoeuvre heavy pieces of leather and dacron, she suffered further injury or an aggravation of her earlier injuries, which was caused by the negligence of the second defendant. The plaint also alleges that mere were further injuries, or further aggravation of her existing injuries, between June 1993 and February 1995, through the further negligence of the second defendant. To the extent that the plaintiff's injuries occurred prior to 6 October 1992, she requires an extension of the limitation period.

An entry of appearance and defence of the second defendant was filed on 5 June 1996. It does not plead any defence under the Limitation Act, as on the face of the plaint the claim against the second defendant is within time. No appearance has been entered on behalf of the first or third defendant. The first issue is whether a material fact of a decisive character relating to the right of action was not within the means of knowledge of the plaintiff until a date after the commencement of the year last preceding the expiration of the period for limitation for the action: s.31(2)(a).

Material Fact: Extent of Injury

The material fact primarily relied upon was the extent of the injury to the plaintiff's back in the first incident. The plaintiff, in her affidavit, said that some time during 1991 or 1992, the date of which she was unsure, she felt a sharp pain in her lower back, although it did not prevent her from working. The pain subsided over a period of two to three months during which she received physiotherapy. She did not believe she had suffered any permanent injury, and remained symptom free until the second incident on 23 June 1993 while she was employed by the second defendant.

Under cross-examination the plaintiff said that the incident during her employment with the first defendant occurred about three months after she commenced work with it, (p.4) but could not say whether that was during 1991 or 1992. She saw a Dr Torbey who prescribed physiotherapy which helped, and the treatment continued for two to three months, twice a week. (p. 6-7) She was then symptom free until the incident in 1993. The medical evidence referred to (affidavit of G.W. Mainteit - Exhibit A) indicates that it was after a further incident in May 1995 that a doctor (Dr Bentley) expressed the view that her long time prognosis was poor and she should consider a change of job and rehabilitation. So far as the medical evidence before me revealed, this is the first occasion on which any doctor had expressed the view that the plaintiff was facing long term problems which would have some significant effect on her future employment. The fact that the plaintiff had some permanent disability attributable to the incident during her employment with the first defendant does not appear to have been actually ascertained until a report was obtained by her solicitors from Dr Pentis on 10 September 1996 (affidavit G W Manteit - Exhibit J). Presumably, however, that information could have been obtained had inquiries been made of the doctor in June 1995. The conclusion from the material before me is that this was not a matter which was within the means of knowledge of the plaintiff until June 1995.

The extent of the injury is a material fact relating to her right of action: s.30(5)(iv). It will be of a decisive character if that fact would, to a reasonable person in the plaintiff's position, make the difference between not suing and suing: s.30(v). The 1991 incident did not result in any time off work, and the back appeared to clear up within a fairly short time, after which the plaintiff was able to continue to work without any further difficulty for perhaps two years. A reasonable person could well take the view that that was not worth litigating. On the other hand, once it appeared that the plaintiff had then suffered an injury to her spine which left her with some permanent disability in the spine, which would or could interfere with her ability to continue to work in the sort of work she had been doing, I think a reasonable person would regard the injury as one worth suing for if there were reasonable prospects of success. I find that this material fact was of a decisive character.

The plaintiff has to show that she did not actually know the material fact and that so far as that fact was capable of being ascertained by her, she had before the relevant date taken all reasonable steps to ascertain the fact: Castlemaine Perkins Pty Ltd v. McPhee [1979] QdR 469 at 472. It is desirable that the plaintiff swears positively that she did not know the material fact at the relevant time: Home v. Commissioner of Main Roads [1991] 2 QdR 38 at 44. However, as that case demonstrates, the failure to do so is not fatal. In the present case the plaintiff was seen by Dr Morris on 9 June 1995: affidavit of G W Manteit filed 27/9/96 Exhibit B. His report, which apparently attributes the 1993 injury to 1992, indicates that the back pain has recently recurred, and the plaintiff in her oral evidence at page 9 said that she was told by Dr Morris after an examination that there was nothing he could do. In the circumstances, I think it is a reasonable inference that it was not until then at the earliest that the plaintiff in fact knew the material fact.

The question of whether the plaintiff has taken all reasonable steps to ascertain the fact is something which has to be assessed taking into account the background and situation of the plaintiff, the information she had and her experience with the back condition from time to time. The Court of Appeal has said:

In my opinion, in the circumstances here it would not have been reasonable to expect the plaintiff to have made inquiry of appropriate medical experts prior to June 1995. Accordingly, she had, in my opinion, taken all reasonable steps to ascertain the fact, in the sense that in the circumstances it was not reasonable to have expected the plaintiff to have made inquiries to ascertain that fact prior to that date. I am therefore satisfied that the requirements of paragraph (a) are made out, on the assumption that the injury occurred in 1991 or the first three months of 1992.

Material Fact: Other Matters

There are two other matters referred to in the plaintiff's affidavit, and the submissions on behalf of the plaintiff. The plaintiff in paragraph 6 said that she was not aware that she might have a common law claim against the former employer prior to seeing a solicitor on 17 August 1995. It seems to be clearly established that that is not in itself a material fact of a decisive nature: Do Carmo v. Ford Excavations Pty Ltd (1984) 154 CLR 234; Berg v. Kruger Enterprises Ltd [1990] 2 QdR 301 at 302. The legislation presupposes that the plaintiff has taken appropriate advice which includes legal advice, and so long as the point has been reached where a reasonable person would be prompted by the circumstances to seek legal advice, the fact that the applicant for an extension of time did not become aware of the possibility of a common law action thereafter would be irrelevant.

The plaintiff's affidavit also refers to the obtaining of an industrial safety report which sets out various criticisms of the defendant's work practices. It is true that the discovery of additional evidence of negligence on the part of the proposed defendant may well be a material fact of a decisive character: see e.g., Wood v. Glaxo Australia Pty Ltd [1994] 2 QdR 431. In the present case, however, it was apparent from the plaintiff's oral evidence that she was aware at about the time of the incident in 1991 or 1992 that the pain in the back had been caused by dragging or lifting items that were too heavy (page 8) and that her employer had not given her proper assistance to do the task which she had been required to do (page 12). This is not a situation where the risks involved in the system of work were apparently unavoidable and it was not until the expert was able to suggest an alternative safer means that an apparent case of negligence could be established. It seems to me that the position is similar to that discussed in the Berg v Kruger (supra) at page 303. In my opinion, paragraph (a) cannot be satisfied on either of these bases.

Cause of Action

With regard to paragraph (b), it seems to me that the evidence of the plaintiff is sufficient to indicate that there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation, bearing in mind the discussion of what an applicant needs to show to satisfy this paragraph in the judgment of Macrossan CJ in Wood v. Glaxo Australia Pty Ltd (supra) at page 434-5. Indeed, the contrary was not argued.

Discretion

It follows that the discretion in ss. (2) is enlivened in the present case, and I may extend the period of limitations so that it expires at the end of one year after the material fact was first within the means of knowledge of the plaintiff. The earliest such date suggested on the materials is the date on which the plaintiff attended Dr Bentley, 3 May 1995 (affidavit of G W Manteit Exhibit A) but she was referred to a specialist, Dr Morris, whom she saw on 9 June 1995, and I consider that that was the date at which the material fact was within her means of knowledge. An extension of 12 months from that date would be more than adequate for the plaintiff's requirement, since the plaint was filed on 6 October 1995 and it is apparent that the third defendant has been served (affidavit of G W Manteit Exhibit G). It seems to me that on any view of the evidence, if the discretion is to be exercised in favour of the plaintiff, it can be exercised so as to extend the period of limitation until 9 June 1996. In those circumstances the date on which the period of limitation in respect of the first incident actually expired does not matter.

The question then is whether the discretion should be exercised in favour of the plaintiff. Such an order should not be made lightly, nor should the discretion be approached on the basis that the plaintiff is entitled to an extension unless the defendant can show prejudice as a result of the delay: Brisbane South Regional Health Authority v. Taylor (High Court of Australia, 2/10/96). Nevertheless, any prejudice to the defendant is relevant, and that decision also demonstrates that, when considering the question of prejudice, it is inappropriate to look merely at any additional prejudice suffered during the period between the expiration of the limitation period and the date to which it is to be extended.

No prejudice was alleged in argument before me, but obviously the time which has elapsed since the date of the first injury at work, and the plaintiff's inability to be precise about the occurrence of that injury, will make it difficult for the relevant defendant to defend the plaintiff's claim. I think the position would be overall that the defendant would suffer some prejudice as a result of the delay in bringing the proceedings, but that there has not been so much delay that it could be said to be unlikely that a trial could be conducted which would be fair to the first and third defendants.

The extension of the limitation period required is relatively short. The plaintiff, in fact, consulted solicitors in August 1995, reasonably promptly after seeing Dr Morris in June 1995, and the proceedings were commenced reasonably promptly thereafter in October 1995. The plaintiff is entitled to litigate the claim arising out of the incident at work on 23 June 1993, and the further claim in respect of the plaintiff's employment subsequent to 23 June 1993, and one would expect therefore that the trial would be likely to involve a good deal of consideration of the consequences of the 1991 (or 1992) incident on the plaintiff's back. Whether or not the plaintiff is able to pursue a claim in respect of it, it would be somewhat artificial if the trial proceeded on the basis that the third defendant had an incentive to show that the substantial cause of the plaintiff's current problems was the first injury at work.

In my opinion this is the sort of situation where the statute was intended to provide relief against the hardship which a plaintiff could otherwise suffer from the rigid application of the three year limitation period. Although there are considerations both ways, on the whole I think those favouring the exercise of the discretion outweigh those indicating to the contrary, and I am prepared to order that the period of limitation for the plaintiff's action against the first and third defendants be extended so that it expires on 9 June 1996. In the circumstances of this case, in my opinion, the costs of and incidental to the application should be the plaintiff's costs in the cause.