Pinnow v Koala Studios Pty Ltd
[1998] QDC 204
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- Unreported Judgment
- Pinnow v Koala Studios Pty Ltd[1998] QDC 204
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Pinnow v Koala Studios Pty Ltd[1998] QDC 204
Pinnow v Koala Studios Pty Ltd[1998] QDC 204
DISTRICT COURT | No 2308 of 1997 |
CIVIL JURISDICTION
JUDGE FORDE
GLENDA MERLE PINNOW | Plaintiff |
and
KOALA STUDIOS PTY LTD (ACN 010 586 160) | Defendant |
BRISBANE
DATE 08/07/98
ORDER
HIS HONOUR: This is an application on the part of the plaintiff for an order pursuant to the Limitation of Actions Act 1974 that the period of limitation for the action herein be extended to and including 5 June 1997.
The plaint was in fact issued on 5 June 1997. The plaintiff suffered an injury to her back on 5 June 1993 whilst in the course of her employment with the defendant, Koala Studios Pty Ltd. She was lifting a poser box weighing about 30 kilograms into the back of a utility when she suffered the injury to her back.
Under the relevant legislation, the Limitation of Actions Act 1974 (“the Act”), the applicant is required to show to the Court under section 31(a) that a material fact of a decisive character relating to the right of action is not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration period of limitation of the action - for these purposes, some date after 5 June 1996 is relevant - secondly, that there is evidence to establish the right of action apart from the defence founded upon the expiration of the period of limitation.
In relation to the latter point, this matter was adjourned from last week to allow further material to be placed before the Court.
A report from Dr Ian Low, an Occupational Health and Safety expert, has been provided. He noted the dimensions of the box and the weight of around 20 to 30 kilograms. He referred to the fact that the Code of Practice for Manual Handling was published to employers in February 1991 and that it reflects the National Code of Practice for Manual Handling, published under the auspices of the National Occupational Health and Safety Commission of 1990.
According to the Code, it is advisable to keep the load from the standing position below or within the 16 to 20 kilogram range and the need for bending, twisting and reaching should be avoided. Although he conceded that the plaintiff may not have lifted the full weight of the box, Dr Low stated that it was an awkward lift and the risk of a back injury would have been increased due to the jerking motion that the plaintiff apparently used.
A further affidavit was read by the applicant this morning relating to the events of the day in question. It seems that the plaintiff/applicant was left on her own on the occasion in question, although subsequently the defendant has a more modified practice to avoid heavy lifting.
It seems that she was not given the necessary assistance, in my view, on the date in question. She had not been warned in relation to her work about lifting a box or removing the contents thereof at any time.
The relevant approach in matters of this nature can be found in the principles espoused in Wood v. Glaxo Australia Pty Ltd [1994] 2 QdR 431. In that case, Macrossan CJ said that to satisfy the requirement under section 31(2)(b) there should be evidence to establish a right of action and the applicant need only point to the existence of evidence which it can reasonably be expected to be available at trial and, if opposed by other evidence, be sufficient to prove her case.
The matters to which reference has been made are sufficient, in my view, for the purpose of this application, for the applicant to establish the requirements under section 31(2)(b).
The chronology of this matter has been set out in the affidavit material, particularly that of Mr Michael Vincent Baker which establishes that the plaintiff was employed by the defendant from February 1986 and she suffered the injury on 5 June 1993, but that originally on 8 July 1993 Dr Shanahan diagnosed a torn gluteus maximus muscle and a clearance to work was given. There was, thereafter, a report of 1 September 1993 where Dr Shanahan said:
“I form the opinion that the patient had a torn gluteus maximus muscle. The patient was advised to have physiotherapy for her condition.”
She was allowed to return to work. On 16 August 1996 Dr Shanahan said:
“Examination on that occasion”, referring to 8 July 1993, “revealed normal straight leg raising and deep tendon reflexes. The patient was tender in the superior lateral aspect of the gluteus maximus muscle. I form the opinion that the patient had a torn gluteus maximus muscle.”
On that occasion he formed the view that the patient should see Dr Blue.
Dr Hazelton, in a report of 8 July 1996, referred to the incident and the fact that he saw the plaintiff in July 1993 and he formed the view that it was a condition that may give rise to discomfort but should not prevent normal duties. It was not until the MRI of the lumbar spine, Exhibit E, which was made available to Dr Blue, which established to his satisfaction that there was a right-sided L3/4 disc protrusion and he was of the view that the incident in June 1993 was responsible for that protrusion.
The material fact of a decisive character relied upon by the applicant is that discovery and information which would have been provided by Dr Blue, such information being given to the plaintiff on 29 August 1996, thereafter in October 1996 the plaintiff received legal advice and on 5 June 1997 the plaint was filed.
The plaintiff was able to work until 20 September 1996 when she stopped work because of the worsening pain in her back. She thought her condition would improve. It was not until the report of 30 August 1996 that Dr Blue expressed the view about the disc protrusion and that opinion was confirmed in his report of 30 May 1997.
It is submitted by the applicant that the material shows that the facts of which the applicant was unaware - namely, that she had a significant lateral right-sided L3/4 disc protrusion - were material facts within the meaning of section 31(a), that those facts were of a decisive character and that they were not within her knowledge before 5 June 1996. They were the submissions put by the applicant.
I am satisfied of those matters and, therefore, that those facts were not within her knowledge prior to 5 June 1996 by virtue of the MRI which was obtained by Dr Blue and referred to in his report, the MRI being obtained on 22 August 1996.
There are certain principles which have been applied, and I mention those for completeness. The fact that this fact was not known to the plaintiff/applicant, in my view, was something which would have added substantially to her damages (see Taggart v. Workers' Compensation Board of Queensland [1993] 2 QdR 129). Up until that time, both she and her medical practitioners seemed confident that she would return to work. It is clear that the nature and extent of “personal injury” may be a material fact for the purposes of the Act (see section 30(a)).
The real questions in the present case are whether the nature and extent of her injury resulting from the lifting was or was not within her means of knowledge until August of 1996 and whether such facts were of a decisive character; see, for example, Moshnornogrsky OS 137 of 1994, Thomas J, 4 June 1995, where His Honour referred to certain matters. His Honour stated in that case that if the plaintiff does show that a material fact was not within her means of knowledge until after the defined period is past, one then has to ask whether such a fact was of a decisive character, but within the meaning of section 30(b), if the unknown nature and extent of her symptoms were within the means of knowledge, then she cannot rely upon it. Justice Thomas stated that this follows in determining the issues under section 31(2)(a), 30(d) and 30(b):
“...will often be met by considering whether a reasonable person or reasonable man (woman) having the actual knowledge of the plaintiff would have thought it worthwhile to bring an action if he (she) had taken appropriate advice on those facts”. (my additions)
In my view, given the advice that the applicant had prior to August 1996 and the belief that she had in relation to her ability to return to work, leads one to the finding that it would be reasonable to find, and I so find, that she probably thought she did not have a worthwhile action as she was keen to get back to work and supported by her medical practitioners.
In argument, reference was made to the relevant case of Byers v. Capricorn Coal Management Pty Ltd [1990] 2 QdR 306, which was referred to by counsel for the defence. However, nothing in that case detracts from the view which I have taken in this matter.
There was also reference to Moriarty v. Sunbeam Corporation [1988] 2 QdR 325. There is nothing in that case which detracts from the orders which I propose to make in this case. I refer to those for completeness, including Sudgen v. Crawford [1989] 1 QdR 603, particularly the passages at 685 and 686.
Finally, even if the requirements of the Act are met, a discretion still vests in the Court, as the High Court have stated in Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541. There has been nothing pointed to in this case, apart from the obvious delay which would otherwise affect the discretion not to extend the time, and no particular prejudice has been pointed to which would detract from one exercising a discretion in favour of the applicant.
Leave is granted to read and file the affidavit of Mr Earl and Ms Pinnow, the applicant, sworn 5 July 1998.
The orders are as follows: order in terms of the summons; further order that the costs of and incidental to the application be costs in the cause.