Ross v Peter Lockhart Motors Pty Ltd
[1999] QDC 71
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- Unreported Judgment
- Ross v Peter Lockhart Motors Pty Ltd[1999] QDC 71
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Ross v Peter Lockhart Motors Pty Ltd[1999] QDC 71
Ross v Peter Lockhart Motors Pty Ltd[1999] QDC 71
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 3729 of 1996 |
BETWEEN:
NICOLA ROSS | Plaintiff |
AND:
PETER LOCKHART MOTORS PTY LTD | Defendant |
REASONS FOR JUDGMENT - SAMIOS D.C.J.
Delivered the 22nd day of April 1999
This is an application by the plaintiff for an order that the period of limitation in respect of the plaintiff's cause or causes of action referred to in the plaint filed herein, in which the plaintiff claims damages which consist of or include damages in respect of personal injury to the plaintiff, and which arose prior to 9 October 1993 be extended to 9 October 1996.
The plaintiff relies upon s.31(2) of the Limitation of Actions Act 1974 (Queensland) (the Act).
That section provides as follows:
“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 one 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.
Section 30 of the Act provides as follows:
- (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 feet at that time; and
- (ii)as far as the feet 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 plaint was issued on 9 October 1996. It was not served until 26 September 1997. The Entry of Appearance and Defence was filed on 5 November 1997. In the Entry of Appearance and Defence, the defendant pleads that the plaintiff's cause of action did not accrue within three years before the commencement of the action and the defendant will rely on s.11 of the Limitation of Actions Act 1974.
The plaintiff was born on 15 April 1967. The plaintiff commenced employment with the defendant in or about March 1991. The major part of her duties consisted of manual bookkeeping with some key-boarding and typing of invoices. There was a large amount of repetitive manual bookkeeping. In January 1993 she started experiencing attacks of pain in her right wrist which spread down to her right fingers and thumb and up to the front of her forearm to her shoulder. In June 1993 the plaintiff developed the same symptoms in both wrists and developed spasm of muscles in her right thumb, causing the thumb to be drawn across her palm. She experienced these symptoms for about one week. She stopped work for about two days. She resumed work and thereafter experienced recurrent pain in both hands and forearms.
The plaintiff continued working until she married on 5 October 1993 when she had three weeks off work. During the three week period the pain went from her hands and forearms, but her hands still felt weak. About three weeks after resuming work, she had the same symptoms again in both hands, which spread up both her forearms. She continued working.
As a result of the symptoms in her hands, she consulted a general medical practitioner, Dr. Bartels on or about 13 December 1993. He put her off work and referred her to an orthopaedic surgeon, Dr. Stabler. The plaintiff had been prescribed an anti-inflammatory agent and had been treated by an injection of steroid into her right wrist by Dr. Stabler. As a consequence the plaintiff felt perhaps her symptoms had improved as a result of that.
Dr. Stabler arranged for the plaintiff to continue with the anti-inflammatory agent but neither this nor the injection appeared to be helping the plaintiff. She was only able to sleep if she were her splints at night. Dr. Stabler put the plaintiff off work and referred her for nerve conduction studies. As she was unable to have the nerve conduction studies performed until February 1994, Dr. Stabler injected her left wrist with Celestine hydro Cortisone and local anaesthetic. The plaintiff's left hand showed improvement in that it became numb and this relieved the pain. The same treatment was administered to her right wrist. On or about 17 January 1994, the plaintiff was advised by Dr. Stabler that it was likely that she would require surgical release of both median nerves of her wrist if his diagnosis of bilateral carpal tunnel syndrome was confirmed by nerve conduction studies. Dr. Stabler confirmed that the plaintiff's symptoms and signs were consistent with having been caused by the nature of her work activities. However, he ultimately did not recommend any surgery. Further, the nerve conduction studies did not confirm Dr. Stabler's diagnosis and instead attributed the symptoms to “writer's cramp” or focal dystonia.
The plaintiff returned to work in February 1994. She continued to suffer the same symptoms in both hands and her forearms. This interfered with her ability to perform her usual employment duties. Despite this, the plaintiff persisted in the performance of her usual employment duties in the belief that over time the pain would desist.
On or about 28 March 1994, the plaintiff consulted diagnostic radiologist, Dr. Burgess, on referral from Dr. Shinn. An examination of her chest, cervical spine and left shoulder showed no abnormalities, according to Dr. Burgess, and the examination was declared normal.
In the middle of May 1994, due to the continuing nature of the symptoms in both hands and her forearms, she consulted Dr. Bartels and he put her off work again. On 18 May 1994, the plaintiff consulted a neurologist, Dr. Adams on referral from Dr. Shinn. The plaintiff was advised by Dr. Adams that the problem was a type of “repetitive strain injury” and not any specific neurological problem. Apparently Dr. Adams believed that the plaintiff's office activities made her symptoms come on and exacerbated them. He suggested changing some of the factors at work but advised that there was no particular management that would be useful. He advised that overall the long term prognosis should be excellent. On 7 July 1994, the plaintiff consulted Dr. Cohen, a musculo-skeletal medicine and pain management specialist. Dr. Cohen believed there was no specific “treatment” for the plaintiff's problem. He suggested the use of a tricyclic agent and stressed it was important that she maintain physical activity such as walking. He also believed that the plaintiff would not be able to return to the same or similar work tasks for the foreseeable future, or perhaps ever. However, over an earlier four week period, her symptoms had begun to settle. Dr. Cohen noted this and suggested that this may recur. He recommended consulting an occupational therapist.
The evidence is that the plaintiff worked until about the middle of May 1994 when Dr. Bartels again put her off work. The plaintiff did not work after that time and her employment with the defendant was terminated from 21 October 1994.
In July 1995, the plaintiff underwent a Commonwealth Rehabilitation Service functional capacity evaluation to measure her physical capabilities and limitations in relation to broadly defined work demands. She was diagnosed with reflect sympathetic dystrophy developing from an occupation overuse injury affecting both wrists. The Commonwealth Rehabilitation Service occupational therapist was of the opinion that the plaintiff was only capable of light sedentary work, possibly limited to part time. The plaintiff was advised to avoid repetitive use of her hands or lifting heavy weights and resisted use of the hands, prolonged group and regular lifting and carrying, and was also advised not to return to clerical work. She recommended that she continued to have assistance with house cleaning. The plaintiff has continued to have assistance for house cleaning. The plaintiff continues to have this assistance for approximately four hours per week.
The plaintiff says that the conclusions regarding her permanent partial disability and incapacity to return to clerical work referred to earlier was confirmed by a report of Dr. Hadley obtained by her solicitors. The report of Dr. Hadley is dated 28 May 1996. In the report Dr. Hadley states he saw the plaintiff at the request of the solicitors on 9 May 1996. The plaintiff refers to a passage in Dr. Hadley's report wherein he states his opinion as follows:
“Her above injuries will have a considerable impact upon her future capacity to earn in the occupation for which she is currently experienced, trained or capable of performing. She is not fit to perform her pre-injury work, or any other work which put repeated strains on her wrists, right thumb and right and left elbow.”
The plaintiff first consulted her solicitors in relation to her injuries on 28 July 1995 by telephone. The plaintiff states that on or about 1 December 1995 she attended the firm of solicitors to provide initial instructions. The solicitor having the care and conduct of the matter on behalf of the plaintiff states that upon receiving Legal Aid on or about 1 December 1995, the plaintiff first attended at the firm to provide instructions in respect of the claim. He states that since 1 December 1995, the firm have obtained further instructions from the plaintiff regarding liability, damages and the general nature of the incident. The plaintiff states that she would estimate that the recurring and intermittent pain in her hands and her forearms resulted in her being absent from work for a total period of approximately two months out of her three years and seven month period of employment. She states that she was on workers' compensation during the periods of absence from work.
The plaintiff also states that she has no medical or legal training and during the period between January 1993 and May 1994 did not consider the recurring and intermittent pain in her hands and forearms to be symptoms of a permanent partial disability as she had not received any medical advice that that were so. She states she consulted Dr. Bartels, Dr. Stabler, Dr. Burgess and Dr. Adams during this period and was advised that her progress was good. She states that until she consulted Dr. Hadley she did not appreciate that the extent of her injuries was such that she would not even be fit to perform her pre-injury work, or any other work which would put repeated strains on her wrists, right thumb and right and left elbow.
The plaintiff states that throughout the period of her employment with the defendant she requested consideration of her work situation. She states despite this her work environment was not modified, her workload was not reduced, her methods of work and duties were not changed, and no other assistance was otherwise provided.
The plaint issued by the plaintiff is based on the facts and circumstances referred to earlier. That is, the plaintiff makes allegations in her plaint she commenced to experience attacks of pain in her right wrist which spread down to her right fingers and thumb and up to the front of her forearm to her shoulder in January 1993, that in June 1993 she developed the same symptoms in both wrists and she developed spasm of muscles in her right thumb, causing the thumb to be drawn across her palm, and that thereafter she experienced recurrent pain in both hands and forearms until she had three weeks off work commencing at the beginning of October 1993. Consequently the effect of the limitation period would be to bar a cause of action the plaintiff may have had which arose prior to 9 October 1993.
However, a material fact relating to a right of action is of a decisive character if but only if a reasonable person knowing the feet and having taken the appropriate advice on the fact, would regard that feet 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.
See s.30(1)(b).
As I understand the applicant's submissions, the plaintiff was not aware of the nature and extent of her personal injuries arising out of her employment during the relevant period referred to in the plaint starting in January 1993 until she consulted Dr. Hadley on 9 May 1996. That is when the plaintiff claims she appreciated that the extent of her injuries were such that she would not even be fit to perform her pre-injury work or any other work which would put repeated strains on her wrists, right thumb, and right and left elbow.
It has been held that the so-called “newly discovered feet” should not be considered as separate from facts already known, and that it should be regarded in context with such other facts. Further, that the question of damages likely to be recovered is properly to be regarded in determining whether the bringing of an action for damages for personal injury is justified - Taggart v. The Workers' Compensation Board of Queensland (1983) 2 Qd.R. 19, 23) In that case at p.23, Andrews SPJ accepted as accurate the statement from the reasons for judgment for the primary judge in that case which were as follows:
“It follows, in my judgment, that if a reasonable man, appropriately advised would have brought the action on the facts already in his possession and the newly discovered feet merely goes to an enlargement of his prospective damages, the newly discovered fact cannot be described as a material fact of a decisive character within the meaning of s.31(2)(a)”.
Further, in Moriaty v. Sunbeam Corporation Ltd (1988) 2 Qd.R. 325, a shearer sustained an injury to his right mist and hand which was alleged to have been caused by malfunction of the hand piece manufactured by the proposed defendant which he was then using. The applicant in that case, following his injury, was in receipt of workers' compensation and although he endeavored to resume work as a shearer, he was unable to shear for more than an hour owing to the pain in his hand. He engaged in other work until he received unemployment benefits. He was then employed in various occupations and undertook a rehabilitation program for many months. Following the injury he was examined and advised by a number of medical advisors. A year after his accident his hand had quite markedly deteriorated and he underwent surgery and physiotherapy and returned to work. He continued to have difficulties with the hand. About two years after his accident he consulted three specialists, two of whom considered that the condition could be improved upon, while a third considered that it could not. He ultimately underwent another operation well after the limitation period expired. After that operation he was advised that his hand was permanently damaged and he was advised to seek legal advice which he did for the first time since he had suffered the injuries. He contended that he was not aware of the possibility of permanent damage to his hand until well after the limitation period expired. He applied for an extension of the period of the limitation period for the bringing of the action. It was held by the Full Court that an injured person aware, before the expiry of the limitation period, of material facts of a decisive character sufficient to support a substantial action for damages was not entitled to an extension of time within which to bring an action merely on the ground that he was not aware of the full extent or seriousness of his injuries. In this respect the Full Court followed Taggart and referred to the decision of the High Court in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234. At p. 331, Kelly SPJ said:
“In my opinion a reasonable man knowing those facts and having taken the appropriate advice on them would have regarded them as showing that if he were to bring an action it would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action. There was no evidence as to the respondent's earnings as a shearer before he suffered the injury or of his subsequent earnings in other occupations, nor was there evidence of the amounts which he had received by way of workers' compensation or unemployment benefits.
However, on the material I would think it is reasonable to assume that prior the expiration of the limitation period the respondent had suffered such economic loss and had also undergone such pain and suffering that had a reasonable man knowing these facts and having taken appropriate legal advice in addition to the medical advice which the respondent already had would have considered that he had a compensable injury sufficiently serious that, to use the words of Taggart's case the amount of damages likely to be recovered would not be “too small to bother about”.
I am further of the opinion that a reasonable man in those circumstances would also regard those facts as showing that the respondent ought in his own interests and taking his circumstances into account have brought an action. In my opinion the circumstances were not such as to come within the qualification suggested by Hope JA in Royal North Shore Hospital v. Henderson that it would nonetheless have been reasonable not to sue.
The only additional material feet which subsequently came to the respondent's knowledge, the “newly discovered feet” to adopt the language of Taggart's case, was that the injury to his hand would have more serious consequences than he had previously believed in that the damage would be permanent and so would go to enlarge his prospective damages. The material shows that this additional feet was not known to the respondent until 16 June 1996 which was well after the date which is relevant for the purposes of s.31(2)(a) and in view of the fact that he was continually seeking medical advice in my view it could properly be said that prior to becoming aware of it he had taken all reasonable steps to ascertain it. Consequently, the additional feet was not within the respondent's means of knowledge at any relevant time. However, applying Taggart's case and also the passage in Do Carmo' case to which I have referred and which is to the same effect, this additional feet is not a material feet of a decisive character within the meaning of s.31(2)(a). That being so, no basis is shown for extending the period of limitation.”
Further, at p.333, Macrossan J (as he then was) said:
“In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s.30(b) comes down to: Taggart v. The Workers' Compensation Board of Queensland [1983] 2 Qd.R. 19, 23, 24 and Do Carmo v. Ford Excavations Pty Ltd (1984) 154 CLR 234, 251 per Deane J.”
These considerations were again confirmed as relevant by the Full Court in Berg v. Kruger Enterprises (Division of Besser Qld Limited) Ltd (1990) 2 Qd.R. 301.
In this matter, the plaintiff started experiencing attacks of pain in her right wrist which spread down to her right fingers and thumb and up to the front of her forearm to her shoulder in January 1993. In June 1993 she developed the same symptoms in both wrists and developed spasm of muscles in her right thumb, causing the thumb to be drawn down across her palm. Although at that time she stopped work for about two days, she resumed work and thereafter experienced recurrent pain in both hands and forearms. She then married on 5 October 1993 and had three weeks off work. During the three week period the pain went from her hands and forearms but her hands still felt weak. About three weeks after resuming work she had the same symptoms again in both hands which spread up both her forearms. She then visited her general medical practitioner on 13 December 1993 and saw Dr. Stabler on 31 December 1993. Dr. Stabler referred the plaintiff for nerve conduction studies. He explored the possibility of performing a carpel tunnel release, although ultimately he did not recommend any surgery. The nerve conduction studies did not confirm Dr. Stabler's diagnosis and instead the plaintiff's symptoms were attributed to “writer's cramp” or focal dystopia. Even though the plaintiff returned to work in February 1994, she continued to suffer the same symptoms in both hands and her forearms. This interfered with her ability to perform her usual employment duties. In March 1994 she consulted the diagnostic radiologist, however the examination was declared normal. In mid May 1994 due to the continuing nature of the symptoms in both hands and her forearms she consulted Dr. Bartels who put the plaintiff off work again. Then on 18 May 1994 the plaintiff consulted the neurologist, Dr. Adams who advised plaintiff that the problem was a type of “repetitive strain injury” and not any specific neurological problem. Dr. Adams apparently advised the plaintiff that overall the long term prognosis should be excellent. However, on 7 July 1994, the plaintiff consulted Dr. Cohen. Dr. Cohen advised the plaintiff that he believed that she would not be able to return to the same or similar work tasks for the foreseeable future or perhaps ever. He recommended consulting an occupational therapist. The plaintiff did see an occupational therapist, Ms. Elli O'Leary who made an assessment of the plaintiff at her home on 27 July 1994 for the Workers' Compensation Board of Queensland. At that time the plaintiff reported that pain in both wrists and forearms had increased gradually over the past 18 months. Further, the plaintiff reported that her increasing symptoms necessitated a reduction to part time work which did not involve key board duties, however she remained unable to cope physically and ceased work after only 1½ weeks. Further, that she had been off work since that time (approximately two months earlier). She did not work after about May 1994.
In July 1995, the plaintiff was diagnosed with reflex sympathetic dystrophy developing from an occupation overuse injury affecting both wrists. The advice from the occupational therapist was that she was only capable of light sedentary work, possible limited to part time. She was given advice to avoid repetitive use of her hands and advised not to return to clerical work.
I find the plaintiff was aware that she had symptoms that were preventing her from working at her occupation, at first during 1993 for short periods of time. However, from the beginning of 1994 and certainly by the middle of 1994, the plaintiff was aware these symptoms were not abating and if anything had continued to increase and had prevented her from working. Although one medical practitioner (Dr. Adams) in May 1994 thought the plaintiff's prognosis should be excellent, he nevertheless believed her office activities made the symptoms come on and exacerbated them. Earlier of course in February 1994, although Dr. Stabler thought that the plaintiff was possibly suffering bilateral carpal tunnel syndrome, the nerve conduction studies at least attributed the symptoms to “writer's cramp” or focal dystopia rather than no cause at all. Further, Dr. Stabler did confirm that the plaintiff's symptoms and signs were caused by the nature of her work activities. Then two months after Dr. Adams advised that the overall long term prognosis should be excellent, Dr Cohen advised the plaintiff in his belief the plaintiff would not be able to return to the same or similar work tasks for the foreseeable future, or perhaps ever, and although the plaintiff's symptoms had begun to settle which Dr. Cohen noted, he suggested that this may recur, Finally, in the middle of 1995 the opinion of an occupational therapist, Debra Maiden, was that the plaintiff was only capable of light sedentary work, possibly limited to part time. Therefore, even though the plaintiff claims in this application it was not until the plaintiff had consulted Dr. Hadley on 9 May 1996 that the plaintiff appreciated the extent of her injuries was such that she would not even be fit to perform her pre-injury work, or any other work which would put repeated strains on her wrist, right thumb and right and left elbow, in my opinion this additional feet is not a material feet of a decisive character within the meaning of s.31(2)(a) of the Act. In my opinion, a reasonable person knowing the facts known to the plaintiff between the end of 1993 and the middle of 1995 and appropriately advised, would have regarded those facts as showing that an action on the right of action would 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 that the person ought, in their own interests and taking that persons's circumstances into account, bring an action on the right of action. In the present matter, the so called “newly discovered feet” following the consultation with Dr. Hadley I find on the evidence before me could only go to an enlargement of the plaintiff's prospective damages, and consequently this newly discovered fact is not a material feet of a decisive character within the meaning of s.31(2)(a) of the Act.
In my opinion, once the plaintiff had consulted with Dr. Cohen in about July 1994 she was aware that she had symptoms that were not abating, that previous medical practitioners had given a label to her problems, and that they had associated these problems with the plaintiff's work and the plaintiff was aware Dr. Cohen believed the plaintiff would be unable to return to the same or similar work tasks for the foreseeable future, or perhaps ever. Further, the plaintiff did not work after about the middle of May 1994, and her employment was terminated in October 1994. She must have been aware, at least by October 19941 find, that there was something seriously wrong with her despite Dr. Adam's optimism for the future. Further, the plaintiff does not provide a satisfactory explanation about what the plaintiff did for a period of about one year between the middle of 1994 and the middle of 1995 to further her cause. The middle of 1995 was when the plaintiff was seen by the occupational therapist for the Commonwealth Rehabilitation Service, who provided the plaintiff with a pessimistic outlook concerning her capacity for work.
That being so, in my opinion, the plaintiff did not become aware of a material fact of a decisive character after the expiration of the limitation period and therefore there is no basis for extending the period of limitation.
Even if I were wrong in that regard, I would not exercise my discretion in favour of the plaintiff (Brisbane South Regional Health Authority v. Taylor (1996-1997) 186 CLR 541) because of what I consider to be the significant delays which have not been satisfactorily explained. These are the delays between the date the plaintiff first consulted solicitors (although that was by telephone) in the middle of July 1995 and the issue of the plaint on 9 October 1996, and the further delay between the issue of the plaint and service of the plaint upon WorkCover Queensland on 26 September 1997. In my opinion, it is inevitable that the defendant would be prejudiced by these delays. It is a considerable period of time between the events allegedly occurring in 1993 upon which the plaintiff would rely in these proceedings and the date service was effected upon WorkCover. There is no explanation at all for why the plaintiff delayed service of the plaint until almost a year after the plaint had been issued.
I therefore dismiss the application. I will hear submissions with respect to the appropriate order for costs.