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  4. Pettiford v Wide Bay Burnett Electricity Corporation - [2002] QDC 76

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Pettiford v Wide Bay Burnett Electricity Corporation[2002] QDC 76

Pettiford v Wide Bay Burnett Electricity Corporation[2002] QDC 76

DISTRICT COURT OF QUEENSLAND

CITATION:

Pettiford v. Wide Bay Burnett Electricity Corporation [2002] QDC 076

PARTIES:

ROBERT JOHN PETTIFORDPlaintiff

And

WIDE BAY BURNETT ELECTRICITY CORPORATION
(ACN 078 849 206) Defendant

FILE NO/S:

Maryborough D121 of 2001

DIVISION:

Civil

PROCEEDING:

 

ORIGINATING COURT:

 

DELIVERED ON:

11 April 2002

DELIVERED AT:

Brisbane

HEARING DATE:

21 and 26 March 2002

JUDGE:

Samios DCJ

ORDER:

 

CATCHWORDS:

Limitations of Actions – Workers’ Compensation – personal injuries – extension of time.

WorkCover Queensland  Act 1996;

Limitation of Actions Act 1974;

Tanks v. WorkCover Queensland (2001) QCA 103;

Hawthorne v. Thiess Contractors Pty Ltd & Anor (2001) QCA 223;

Sugden v. Crawford (1989) 1 QdR 683, 685;

Moriarty v. Sunbeam Corporation Limited (1988) 2 Qd R 325, 333;

Taggart v. The Workers’ Compensation Board of Queensland (1983) 2 QdR 19, 23, 24;

DoCarmo v. Ford Excavations Pty Ltd (1984) 154 CLR 234, 251;

Berg v. Kruger Enterprises (1990) 2 QdR 301, 305;

Byers v. Capricorn Coal Management Pty Ltd (1990) 2 QdR 306 309;

Ex Parte Bolewski (1981) QdR 84;

Pizer v. Ansett (1998) QCA 298;

Dick v. University of Queensland (2000) 2 QdR 476;

Muir v. Franklins Ltd (2001) QCA 173;

Carlowe v. Frigmobile Pty Ltd (1999) QCA 257

Johnson v Hill & Ors (2002) QCA 52

COUNSEL:

Mr Given for the applicant

Mr T Mathews for the defendant

SOLICITORS:

Morton & Morton for the plaintiff

Bell Dixon Butler for the defendant

  1. [1]
    This is an application in which the applicant seeks the following orders:-
  1. That the period within which the plaintiff may commence and prosecute proceedings for personal injuries arising out of an incident during the course of his employment on or about 20 January 1998 be extended to run for the period of one year from 2 April 2001 or such time as the court may deem meet.
  1. That leave be granted to the applicant, if needed, to commence and prosecute the said proceedings despite non-compliance with the “WorkCover Queensland Act 1996” (the WorkCover Act).
  1. Such further or other and consequential orders as the court may deem meet.
  1. [2]
    At the same time as filing this application the applicant filed a claim and statement of claim in which the applicant as plaintiff claimed against his former employer as defendant, damages for personal injuries and other loss arising out of the breach of contract, negligence and/or breach of statutory duty and/or common law duty by the defendant, its servants and agents, on or about 20 January 1998.
  1. [3]
    The applicant’s claim and statement of claim and the application seeking the abovementioned orders were filed herein on 10 October 2001.
  1. [4]
    Any claim by the applicant against his former employer for damages for personal injuries had to be brought before the expiration of three years from 20 January 1998 (s. 11 Limitation of Actions Act 1974) (the Limitations Act). That is, on or before 20 January 2001.
  1. [5]
    On the hearing of this application counsel for the respondent submitted these proceedings could not be started. That is because the court had not given leave to bring the proceedings despite non-compliance with the requirements of s. 280 of the WorkCover Act.  That is, s. 280(1) of the WorkCover Act provides:-

“(1) Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for the damages under the Limitation of Actions Act 1974”.

Further, s. 305(1) of the WorkCover Act provides :-

“(1) Subject to s. 303, the claimant may start the proceeding if the court, on application by the claimant, gives leave to bring the proceeding despite non-compliance with the requirements of s. 280”.

  1. [6]
    There is no issue in this application that the applicant did not, before the expiration of three years from 20 January 1998, give the notice required by s. 280 of the WorkCover Act.  Further, the court has not given leave pursuant to s. 305(1) of the WorkCover Act for these proceedings to be commenced. The relevant section is s. 380(1)(a)(iv) of the WorkCover Act which provides:-

“(1) A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitations of Actions Act 1974 only if –

  1. (a)
    before the end of the period of limitation –
  1. (iv)
    a court gives leave under s. 305”.
  1. [7]
    The limitation period for the bringing of these proceedings having, at this stage expired, the effect of the court not having given leave under s. 305 is that these proceedings cannot be started by the applicant. (see Tanks v. WorkCover Queensland (2001) QCA 103 and Hawthorne v. Thiess Contractors Pty Ltd & Anor (2001) QCA 223).
  1. [8]
    Counsel for the applicant accepted this is the effect of the WorkCover Act in the circumstances.
  1. [9]
    However, Counsel for the applicant submitted the court nevertheless has the power to order the limitation period to be extended. Therefore, using its powers under the Uniform Civil Procedure Rules, in particular, r. 11(c) and r. 13, the court can order in terms of paragraphs 1 and 2 of the application. Further, the court can order that the current proceedings continue as if started by application and the applicant be granted leave to file a fresh claim and statement of claim. Further, if the limitation period were extended then there would be no impediment to fresh proceedings being instituted.
  1. [10]
    In my opinion, notwithstanding the provisions of the WorkCover Act not having been complied with by the applicant to date, an applicant may nevertheless apply for an extension of the limitation period pursuant to s. 31(2) of the Limitations Act. In Tanks v. WorkCover Queensland it was held that the proposition that the provisions of the Workcover Act abolished the common law cause of action of a worker against his employer for negligence and substituted a cause of action which came into existence only upon compliance with prescribed steps, was not one that was correct for all purposes. It was not correct for the purpose of the application of the Limitation of Actions Act. (see Johnson v Hill & Ors (2002) QCA 52 per Davies JA para 23). Therefore, in my opinion the applicant can apply for an extension of the limitation period notwithstanding he has not to date complied with the provisions of the Workcover Act.
  1. [11]
    The applicant was born on 7 July 1943 and for many years had been employed by the respondent as a labourer/truck driver.
  1. [12]
    He states in October 1994, whilst exiting a truck in the course of his employment, he fell and struck his left elbow. After this he developed immediate pain in his left shoulder and he believes that a rotator cuff rupture was detected. Surgery was undertaken in December 1994 and after further treatment he returned to his employment.
  1. [13]
    He states on 20 January 1998 it was necessary for him to use a large industrial drill in the course of his employment. He was laying down and attempting to drill upwards into the timber while using the drill (which weighed approximately 5 kg),  it came loose from the timber he was boring causing him to jolt his left arm and shoulder. He immediately felt a sharp pain in his left shoulder and upper left arm. He continued to have pain in his left shoulder since that time.
  1. [14]
    The applicant consulted Messrs. Quinlan Miller & Treston with respect to this injury. Although the applicant does not specifically identify which injury he intended to refer to in his affidavit, I assume from the context of his affidavit he meant to refer to the injury suffered by him on 20 January 1998. Exhibited to his affidavit is a copy of the letter of advice from Quinlan Miller & Treston to the applicant dated 10 August 1998.
  1. [15]
    The applicant states his symptoms continued and on 16 February 2001 he had an interview with Mr Land, a solicitor, during which the incident in the course of his employment was discussed. He was informed by Mr Land at that time that he may have a “common law” claim with respect to this incident. He states that at no time prior to consulting Mr Land was he ever aware that he may have a possible claim against his former employer in addition to one for workers’ compensation which he has been advised is known as “common law” proceedings.
  1. [16]
    The applicant states that as a result thereof, Mr Land arranged for further medical examinations. As the evidence on this application shows, the applicant was examined by Dr Pentis, orthopaedic surgeon, on 27 March 2001. Dr Pentis’ report to the applicant’s solicitor dated 2 April 2001 stated that a more specific test would be an MRI study. A MRI study was performed subsequently upon the applicant. The MRI report to Dr Pentis is dated 20 June 2001. Dr Pentis reviewed the MRI report. The report concluded that there was a full thickness tear in an area of degenerative change in the supraspinatus tendon of the shoulder left side. Dr Pentis states in his report to the applicant’s solicitors, dated 24 July 2001, that the incapacity that the applicant has has got to be re-assessed in the light of the MRI findings and he would assume that somewhere in the vicinity of a 12.5% loss of the efficient function of the left upper limb with respect to the injury 20 January 1998.
  1. [17]
    The applicant states that at all times he relied upon the advices of Quinlan Miller & Treston and WorkCover and that at no time realised that he had suffered a further injury and/or an aggravation of a pre-existing injury to such an extent that he had been left with a significant permanent disability in his left shoulder as a result of the accident on 20 January 1998.
  1. [18]
    Further, at no time prior to his consultations with Mr Land was he ever informed that any conduct of his former employers in requiring him to undertake work with the heavy drill when they had knowledge of his previous shoulder injury, could amount to negligence upon which he could establish a common law cause of action.
  1. [19]
    The applicant’s solicitor, Mr Land, has also sworn an affidavit in support of the application. After the consultation with the applicant on or about 16 February 2001 Mr Land caused an FOI application to be delivered to WorkCover in relation to any workers’ compensation claims made by the plaintiff. He obtained a number of documents including reports from medical practitioners following the plaintiff’s injury in 1994, and the plaintiff’s injury in 1998. Mr Land also arranged for further medical consultations which have resulted in the reports of Dr Pentis and the MRI report I have already mentioned. Mr Land also exhibits to his affidavit the notice of assessment from WorkCover to the applicant dated 14 May 1998.
  1. [20]
    As the evidence in support of the application shows, following the October 1994 injury the applicant was seen by Dr Keays, an orthopaedic surgeon. It was Dr Keays opinion, as expressed to the Workers’ Compensation Board in his letter to the Board dated 25 January 1995, that the applicant was thought to have rotator cuff rupture of his left shoulder both clinically and radiologically. Accordingly, his left shoulder was explored on 8 December 1995 and a decompression performed. Dr Keays stated that the applicant injured his left shoulder on 25 October 1994 when he fell whilst getting out of a truck. He had typical features of rotator cuff rupture of his left shoulder. The problem was work-related.
  1. [21]
    Dr Keays wrote to a rehabilitation counsellor at the Workers‘ Compensation Board by a letter dated 19 April 1995 in which he expressed his view that he thought it was reasonable for the applicant to return gradually to his work activities. Dr Keays also thought that the applicant had a large rotator cuff rupture and he thought there was likely to be residual problems with overhead activities and heavy manual labour.
  1. [22]
    Following the injury on 20 January 1998, the applicant underwent an ultra-sound of the left shoulder. The report, dated 11 February 1998, states:-

“The features suggest previous rotator cuff  trauma or surgery rather than an acute recent injury. No fractures were identified. No abnormality of the humoral head or glenoid could be identified. There was no obvious calcification of the rotator cuff. No significant abnormality identified.”

  1. [23]
    Dr Keays saw the applicant on 19 March 1998. In Dr Keays’ letter to WorkCover dated 1 April 1998 Dr Keays stated:-

“This patient has had a rotator cuff repair in the past following a work-related injury and then returned to heavy labouring work in his job as a labourer and truck driver. Most of the activities that he has been doing are completely inappropriate for someone who has had a cuff rupture and it is not unexpected that as a consequence he has now re-injured his left shoulder with a recurrence of pain in his shoulder. The rotator cuff seems to be intact and there is evidence of a painful arc and this was injected with hydrocortisone and he was advised to continue with Naprosyn. I really feel that it is inappropriate and unrealistic for him to do heavy labouring work with such a shoulder problem and lifting concrete blocks and jackhammering is guaranteed to stir up his shoulder problems. I feel that he has sustained a 12% permanent physical impairment and loss of function of the left upper limb as a result of the injury that occurred on October 1994 which required surgery (PI code 1402). I do not think any further permanent physical impairment has resulted from his latest injury on 20 January 1998 which has been classified as a major significant aggravation of a pre-existing problem. I do not think that further surgical intervention is appropriate but I do feel that he should try and modify his working activities in order to avoid significant aggravating factors such as lifting of concrete blocks and jack-hammering, which have significantly aggravated his problems.”

  1. [24]
    The notice of assessment from WorkCover to the applicant following the injury on 20 January 1998 is dated 14 May 1998. Against the expression “injury” appears “aggravation of left shoulder injury”. The notice states that it has been determined as a result of the applicant’s medical assessment that he has not sustained permanent impairment from his injury. It states the degree of permanent impairment attributable to the injury (code 1402) is “0%”. The WRI (work-related injury) is stated to be “0%”. The notice states the amount of lump sum compensation to which the applicant is entitled is “$0”. It then states that this is a “non-certificate injury”. The applicant has ticked the box that he agreed with the degree of permanent impairment and signed it and dated it 19 May 1998.
  1. [25]
    As the evidence shows, Quinlan Miller & Treston advised the applicant, amongst other things

“In some cases a claim can still exist if there has been an aggravation of a pre-existing injury causing further loss and damage. The medical evidence in your case is that the injury of 20 January 1998 was an aggravation of your left shoulder injury and it was a major significant aggravation, however, you suffered no further permanent impairment from the January 1998 incident. Certainly, Dr Keays in his report of 1 April 1998 advises that you should modify your working activities. Without any further disability and effect on you we just cannot see how any claim can be brought.”

  1. [26]
    Further, the solicitors advised the applicant:-

“It appears clear to us that you have no common law rights for the injury of 20 January 1998 in terms of being entitled to any funds from suing. It might be that a case could have been established that the employer was aware of your limitations and should not have caused you to be further injured, but on the medical evidence that there is to date, you have suffered no further permanent impairment.”

  1. [27]
    David John Hinton, the respondent’s solicitor, has sworn an affidavit on behalf of the respondent. By and large his evidence is the result of investigations he has made regarding files relevant to the plaintiff and records regarding the plaintiff. Mr Hinton has also made enquiries from the applicant’s immediate supervisor who has remained employed by the respondent.
  1. [28]
    Hence, the evidence before me is that the applicant returned to work following the 1994 injury on about 8 March 1995 working initially four hours per day, three days per week, which gradually increased until the plaintiff was certified fit to return to normal duties by Dr Keays on 26 June 1995.
  1. [29]
    Further, records held by the applicant’s general medical practitioners contain no reference between 27 February 1997 and 21 January 1998 of any shoulder problem and there are no references to left shoulder problems between June and October 1995. Further, the applicant received regular physiotherapy treatment following both the 1994 and 1998 injuries. In respect of the 1994 injury the applicant received regular physiotherapy until 23 June 1995 and then there were no further entires until 22 January 1998.
  1. [30]
    Further, when the applicant returned to his normal duties after the 1994 injury his work involved primarily working with the underground crewing laying cables, and the applicant’s main tasks were driving the truck, assisting with unloading and laying electrical cables from large drums on the back of the truck into the ground, and shovelling sand. Further, the applicant’s immediate supervisor was not aware of the applicant experiencing any problems or having any restrictions in carrying out his normal duties after his return to full duties in June 1995, and he does not recall the applicant requiring any time off work from June 1995 until the 1998 injury. The applicant did not have any time off work after June 1995 until the 1998 injury as a result of left shoulder problems.
  1. [31]
    Mr Hinton’s affidavit shows that the applicant’s statutory workers’ compensation file in respect of the 1994 injury was finalised in about 1995. However, subsequently and as a result of the report of Dr Keays of 1 April 1998 the claim in respect of the 1994 injury was effectively re-opened and the applicant was offered, and accepted, a permanent partial disability payout on the basis of a 16% loss of efficient use of the left upper limb. The discharge declaration signed by the applicant on 19 May 1998 states “I, Robert John Pettiford declare that as a result of injury on 25/10/94, I suffered 16% loss of (“loss of” includes permanent loss of the efficient use of) left arm”. The letter from WorkCover dated 14 May 1998 which was the covering letter to the discharge states:-

“With reference to your claim for compensation I advise that your injury has been assessed and the degree of your disability is shown on the attached discharge.” 

  1. [32]
    Finally, the letter from WorkCover to the applicant dated 14 May 1998 states

“Based on Dr Keays’ report (copy attached) it is considered that your permanent physical impairment has resulted from the original incident on 25.10.94. The incident on 20.01.98 has aggravated the injury but has not caused any further impairment.”

  1. [33]
    The applicant was given “important information” by WorkCover and as required was provided with a copy of ss. 11, 259, 260 and 325 of the WorkCover Act for his information.
  1. [34]
    Mr Hinton’s evidence is that following 20 January 1998 the plaintiff attempted to return to work on alternative, light duties on about 17 March 1998. However, the plaintiff never resumed normal duties, and his return to work on altered duties was unsuccessful. The plaintiff resigned his employment effective from 21 January 1999 based on advice received from his superannuation fund (the fund), so that the applicant could obtain a payout for total and permanent disability from the fund. The letters exhibited to Mr Hinton’s affidavit show that the applicant made an application to the fund for disablement. That application was dated 9 June 1998. The trustee of the fund had determined, at its meeting on 19 January 1999, that he was totally and permanently disabled for the purpose of the trust deed of the fund. He was advised to enable the fund to finalise his claim he should then resign from the respondent. That is what the applicant did.
  1. [35]
    The evidence shows the applicant signed a statement claiming his disablement benefit from the fund. In that statement he stated the nature of his disability to be permanent left shoulder injury. To the question “Had he, as a direct result of his disability, been totally incapable of working”, he stated, “Yes & no”. The applicant stated that his left shoulder and arm were incapable of any reasonable use. In further answer to the questions in the statement the applicant said-

“From Jan 21/98 I was incapable of doing any work and was attending a physiotherapist until I was able to carry out light duties. Light duties started 3.3.98 and ceased 28.5.98 and I am unable to continue with the job I was employed to do.”

  1. [36]
    The applicant’s employer provided a report on the applicant’s claim to total disablement. This report is dated 4 June 1998. The applicant’s employer was satisfied that the applicant was unable to perform his normal duties.
  1. [37]
    The applicant was examined by Dr Olsen, a consultant in occupational medicine, on 6 October 1998 for the purposes of his claim to the fund. Apparently the applicant told Dr Olsen that the applicant worked some 2.5 years approximately with difficulty as the left shoulder pain never subsided completely. In that 2.5 years he would rely much more on the right shoulder and in fact he was right-handed. In those 2.5 years approximately the applicant began progressively to develop right shoulder pain. Dr Olsen concluded in his report that there might be a 10% impairment of the whole person on the basis of bi-lateral shoulder pain and therefore using the combined tables there was 19% impairment whole person.
  1. [38]
    The applicant was also examined on 28 July 1998 by Dr Winstanley, an orthopaedic surgeon, at the request of the fund. In Dr Winstanley’s opinion the applicant sustained an injury to his right rotator cuff in 1994 for which he was able to rehabilitate himself and return to heavy labouring type activity. When Dr Winstanley saw the applicant he thought the applicant’s symptomatology related to rotator cuff tendonitis. He thought the applicant’s condition was such that he had a permanent partial disability associated with his shoulder. He thought the applicant would not be capable of returning to his duties as described in the file as an electrical labourer/truck driver. He thought the applicant would require extensive re-education and re-training to enable him to return to workforce in any activity. Therefore, he thought the applicant qualified for total and permanent disablement under the definition that had been provided to him.
  1. [39]
    Finally, Dr Keays provided a report dated 7 July 1998 to the superannuation fund. In that report Dr Keays states:-

“On 20.1.98, he re-injured his shoulder while retracting a drill. He was seen by myself on 19.3.98 and he had a painful arc of abduction and possible rupture of the long head of biceps and ultrasound suggests that the previous surgery was in tact.

It was thought that he had a recurrence of problems mainly related to his heavy labouring work which was most inappropriate given the severity and size of his cuff tear which had previously required surgery.”

  1. [40]
    In answer to specific questions Dr Keays said:-

“2. His injury on 20.1.98 has resulted in a recurrence of his rotator cuff problems of the left shoulder possibly with a further tear or rupture of the repair that was previously performed.

  1. As his injury is permanent, I do not think that it is appropriate that he returns to his former duties which have been a significant factor in aggravating and causing a flare-up of his rotator cuff rupture which previously required surgery in 1994.
  1. I feel he has sustained a 12% permanent physical impairment of the loss of function of the left arm following his rotator cuff rupture which occurred on 25.10.94.”
  1. [41]
    The applicant ceased employment on 29 January 1999 and elected to receive his benefits under the superannuation fund. As the evidence shows he received $55,914.92.
  1. [42]
    In a further affidavit from the applicant he states when he ticked box A in the WorkCover Notice of Assessment, agreeing with the 0% disability, he did so because he believed at the time of signing the document that the accident on 20 January 1998 did not cause any further injury to his shoulder, but rather aggravated the injuries suffered by him in 1994. He formed that belief based on the advice given to him by a doctor (whose name he cannot recall) who examined him at the offices of WorkCover at Maryborough. He states that doctor advised him that nothing further could be done for him in relation to his shoulder, that WorkCover would send out a notice of assessment and that all he needed to do was tick box A. At no stage was he informed by WorkCover, nor is it stated in the letter from WorkCover, enclosing the notice of assessment, that he was not required to sign either box. Further, prior to receiving he notice of assessment he was examined by Dr Keays for WorkCover. Dr Keays advised him that he had simply aggravated the injury sustained in 1994. He states the letter received from WorkCover dated 14 May 1998 which was delivered at the same time as the notice of assessment reinforced his belief that he had no new injury, but rather the accident of January 1998 aggravated the injury sustained by him in 1994.
  1. [43]
    Dr Pentis’ report to the applicant’s solicitors dated 2 April 2001 concluded that the applicant had sustained an injury to his left shoulder in accident on 20 January 1998. Dr Pentis was of the view that the applicant had aggravated the previous rotator cuff problems. However, the ultrasound did not show any specific pathology. It was in his report that Dr Pentis suggested a more specific test would be the MRI study. The MRI study concluded that there was a full thickness tear within an area of extensive degenerative change in the supraspinatus tendon, with a diameter of 1.5 cm. When Dr Pentis reported on this to the applicant’s solicitors by letter dated 24 July 2001, he stated the report concluded that there was full thickness tear in an area of degenerative change in the supraspinatus tendon of the left shoulder. In Dr Pentis’ opinion this was in keeping with the findings. He therefore re-assessed the applicant’s incapacity from 7.5% loss of the efficient function of the affected left upper limb to 12.5%.
  1. [44]
    Section 30(1) and s. 31(2) of the Limitations Act provided as follows:-

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

  1. (a)
    the material facts relating to a right of action include the following –
  1. (i)
    the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
  1. (ii)
    the identity of the person against whom the right of action lies;
  2. (iii)
    the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
  3. (iv)
    the nature and extent of the personal injury so caused;
  4. (v)
    the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty.
  1. (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 -
  1. (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
  2. (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;
  1. (c)
    a fact is not within the means of knowledge of a person at a particular time if, but only if -
  1. (i)
    the person does not know the fact at that time; and
  2. (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.

…..

31.(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 -

  1. (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
  1. (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.”

  1. [45]
    Although the applicant claims that at no time prior to consulting Mr Land was he ever aware he may have a possible claim against his former employer, in addition to one for workers’ compensation which he has been advised is known as common law proceedings, I do not accept this is a material fact of a decisive character that was not within the means of knowledge of the applicant. In my opinion, the letter from Quinlan Miller & Treston to the applicant explained the two options available to the applicant. In any event, failure of solicitors, possessed with full knowledge of all relevant circumstances, to advise a client that he has a right of action, is not a material fact of a decisive character relating to the right of action within the meaning of s. 31(2) of the Act (ex parte Bolewski (1981) QdR 54).
  1. [46]
    A further matter relied upon by the applicant in his affidavit is that at no time prior to his consultations with Mr Land was he ever informed that any conduct of his former employers in requiring him to undertake work with the heavy drill when they had knowledge of his previous shoulder injury could amount to negligence upon which he could establish a common law cause of action (see paragraph 9, applicant’s first affidavit). Again with respect to this aspect of the application, in my opinion the letter from Quinlan Miller & Treston to the applicant clearly shows that the solicitors considered this possible basis for a claim. In my opinion, this does not amount to a material fact of a decisive character that was not within the means of knowledge of the applicant.
  1. [47]
    What remains, is the applicant’s claim that after he consulted Mr Land he realised he had suffered a further injury and/or an aggravation of a pre-existing injury to such an extent that he had been left with a significant permanent disability in his shoulder as a result of the accident on 20 January 1998.
  1. [48]
    The effect of Dr Keays report to WorkCover dated 1 April 1998 is that the plaintiff’s rotator cuff in his left shoulder which was repaired by Dr Keays in December 1994 was, notwithstanding the accident of 20 January 1998, intact. Although Dr Keays states the applicant had evidence of a painful arc he felt the applicant had sustained a 12% permanent physical impairment and loss of function of left upper limb as a result of the injury that occurred in October 1994, which required surgery (PI code 1402). He then expressed the view he did not think any further permanent physical impairment had resulted from the applicant’s latest injury on 20 January 1998. Dr Keays did add though that this could be classified as a major and significant aggravation of a pre-existing problem. The opinion that there was no further permanent physical impairment resulting from the latest injury on 20 January 1998 and that any permanent physical impairment and loss of function of left upper limb was a result of the injury that occurred in October 1994, which required surgery (PI code 1402) was reiterated in the correspondence from WorkCover to the applicant dated 14 May 1998 and the notice of assessment dated 14 May 1998.
  1. [49]
    The nature and extent of the personal injury so caused can be a material fact. The opinion of Dr Pentis based on the MRI investigation that the applicant had a full thickness tear in an area of degenerative changes in the supraspinatus tendon of the left shoulder and that he had an incapacity in the vicinity of 12.5% loss of efficient function of left upper limb with respect to the injuries 20 January 1998 is in my opinion, a material fact relating to the applicant’s right of action.
  1. [50]
    However, the material fact must also be shown to be of a decisive character and 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. That is, until after 20 January 2000.
  1. [51]
    Regarding decisiveness, Connolly J. in Sugden v. Crawford (1989) 1 QdR 683 at 685 said:-

“Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s. 30(b) are satisfied without the emergence of a newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action.”

  1. [52]
    In Taggart v. Workers’ Compensation Board of Queensland (1983) 2 QdR 19 at 23, Andrews SPJ said:-

“With respect it was correctly decided to the effect that the newly discovered facts should not be considered as separate from facts already known and that it should be regarded in context with such other facts. 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.”

  1. [53]
    Further, in Moriarty v. Sunbeam Corporation Limited (1988) 2 QdR 325 at 333, Macrossan J, as he then was, said:-

“In cases like the present, an applicant for extension discharges his onus not merely 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 shown 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 QdR 19, 23, 24 and DoCarmo v. Ford Excavations Pty Ltd (1984) 154 CLR 234, 251 per Deane J.”

  1. [54]
    The statement of Macrossan J. that I have quoted from Moriarty was adopted in Berg v. Kruger Enterprises (1992) 2 QdR 301 at 305 and in Byers v. Capricorn Coal Management Pty Ltd (1992) 2 QdR 306 at 309.
  1. [55]
    I accept that after the January 1998 accident the applicant was incapable of doing any work and attended a physiotherapist until he was able to carry out light duties which he started on 3 March 1998. I accept he ceased work on 28 May 1998 and because he was unable to continue with the job he was employed to do. I accept he applied to his superannuation fund for total and permanent disablement on 9 June 1998 on the basis he could not carry out his duties or any other work for which he was employed to do because his left shoulder and arm were, as stated by him, incapable of any reasonable use. Further, he presented to Dr Winstanley on 28 July 1998 and to Dr Olsen on 6 October 1998 for the purposes of his claim to the superannuation fund trustee for total and permanent disablement. Further, that he resigned his employment on 29 January 1999 and was paid out his total and permanent disablement benefits by the trustee on 8 February 1999.
  1. [56]
    The applicant was not cross-examined. There is no evidence he was aware of the contents of the medical reports received by the trustee of the superannuation fund from Dr Keays, Winstanley and Olsen. However, I proceed on the basis that the applicant fully supported his application to be granted total and permanent disablement benefits.
  1. [57]
    I accept following the 1994 accident the applicant would appear to have made no complaint to his doctor about any left shoulder problems. He would also appear to have taken no time off work specifically for any left shoulder problems. However, I cannot conclude he had no left shoulder problems following the 1994 accident. That is because Dr Olsen in his report states that although the applicant returned to work he was doing so with considerable difficulty as he was experiencing pain aggravations through the work.
  1. [58]
    I consider this evidence was put forward by the respondent to support the contention that the applicant must have known or should have believed he had a permanent impairment to his left shoulder caused by the January 1998 accident despite Dr Keays’ opinion to the contrary. I do not accept that contention.
  1. [59]
    In my opinion, the applicant could reasonably form the belief, based on Dr Keays’ report which was relied upon by WorkCover and the advice from the doctor who examined the applicant at the offices of WorkCover at Maryborough who advised him that there was nothing further that could be done for him in relation to his shoulder, that the accident in January 1998 aggravated the injury suffered by him and that his impairment was due to the accident in 1994 and that he had no permanent impairment from the 1998 accident.
  1. [60]
    In my opinion, there is nothing inconsistent in the applicant applying to his superannuation fund for total and permanent disablement payment. That is, if it was the applicant’s belief that any permanent impairment he had was as a result of the 1994 accident, if that qualified him for total and permanent disablement, then that was his entitlement. In my opinion, that did not mean the applicant had to come to a conclusion that his permanent and total disablement was as a consequence of the January 1998 accident.
  1. [61]
    In my opinion, the effect of what the applicant was informed by Dr Pentis’ report was that he had suffered a specific injury in the January 1998 accident rather than an aggravation of the injury he suffered in October 1994. Therefore, rather than having suffered no permanent impairment as a consequence of the January 1998 accident, he suffered a permanent impairment of the order of 12.5% relating to the January 1998 accident. In my opinion, without these new facts, had the applicant sought to bring proceedings against his former employer, those proceedings would have faced the criticism that at best he had suffered an aggravation of a pre-existing injury and at worst it had left him with no permanent impairment. In my opinion, after Dr Pentis’ report of 24 July 2001 the applicant’s position became one of having a worthwhile cause of action rather than one that faced an uncertain result with the prospect of little damages, if any.
  1. [62]
    Therefore, I find the applicant became aware of material facts after the receipt of the report of Dr Pentis and those material facts were of a decisive character.
  1. [63]
    However, the Limitations Act requires that the material fact of a decisive character relating to the right of action must not be 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. As I said the date in this respect is 20 January 2000. It is clear the applicant did not know the newly discovered facts before 20 January 2000. Section 30(1)(c) provides that a fact is not within the means of knowledge of a person at a particular time if, but only if 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.
  1. [64]
    It was submitted by the respondent that clearly the applicant had failed to take all reasonable steps to find out these facts before 20 January 2000. That is, the respondent submitted that between 21 January 1999 and 20 January 2000 the applicant was aware of sufficient facts to have sought further advice earlier than he did. Further, that in all the circumstances the applicant could and should have sought further advice well prior to 16 February 2001. It was submitted that he did not and he did not explain why he did not. It was submitted that the applicant had shown a patent lack of forthrightness or a lack of full disclosure in the evidence relied upon by the applicant in support of this application. Hence, it was submitted this should adversely affect any exercise of discretion in his favour.
  1. [65]
    As the applicant was not cross-examined it is difficult to assess what he believed regarding the application to the superannuation fund in all the circumstances. I find it difficult to come to a conclusion about the extent to which the applicant ought to have put forward details of a kind put forward by the respondent’s solicitor in his affidavit filed and read on this application. I do not conclude that the applicant has been guilty of any lack of forthrightness or lack of full disclosure. In my opinion, tests that may guide me are:-

“1. The test for whether or not a fact was within his means of knowledge depends on whether the respondent took all reasonable steps to find out that fact. This test has both subjective and objective elements. What is relevant is the means of knowledge of the respondent and not of some hypothetical reasonable person.”

…

“2. In making a finding of fact on this important question, the reasonableness of the steps taken by the claimant needs to be considered, and of course will not succeed if he or she has unreasonably delayed in obtaining the necessary advice or information. … The gathering of the necessary information and awareness which will make it reasonable for a claimant to bring an action may well involve progressive stages of awareness.”

…

“3. In cases where a potential claimant lacks a material fact, and reasonably needs the help of a solicitor or someone else to obtain it, some further time may reasonably elapse before it should be held that such facts are within the claimant’s means of knowledge. Such time will include the time which would reasonably elapse if the  claimant, taking all reasonable steps to do so, consults solicitors or other persons, and those solicitors or those other persons undertake the necessary inquiries to ascertain the necessary additional facts to show whether or not there is a worthwhile cause of action.”

(per Thomas JA Muir v. Franklins Ltd (2001) QCA 173 para. 16 referring to Dick v University of Queensland (2000) 2 Qd. R 476 at 487-8 and Carlowe v Frigmobile Pty Ltd (1999) QCA 257, para 39).

  1. [66]
    Applying the tests I have mentioned above to the evidence on this application, the applicant has satisfied me that he took all reasonable steps to find out the nature and extent of the injury suffered by him before 20 January 2000. That is because I accept his evidence that he did not realise that he had suffered a further injury and/or an aggravation of the pre-existing injury to such an extent that he had been left with a significant permanent disability in his shoulder as a result of the accident in January 1998. In my opinion, the applicant’s application to be paid for total and permanent disablement by his superannuation fund is not inconsistent with his evidence. In my opinion it was reasonable for the applicant to believe the accident in January 1998 did not cause any further injury to his shoulder but rather aggravated the injury suffered by him in 1994 because there was a specific incident in October 1994 followed by surgery and an opinion expressed after the accident in January 1998 by the same doctor (Dr Keays) who performed that operation. Further, the correspondence from WorkCover to the applicant later in 1998 repeated Dr Keays’ opinion. Finally, the applicant consulted solicitors in about August 1998 and received their advice to the effect he could not take any useful action against his employer.
  1. [67]
    There is nothing in the evidence , in my opinion, to warrant a conclusion the applicant ought to have in all the circumstances sought another opinion from a lawyer or another opinion from a doctor about his left shoulder. Therefore, in my opinion the applicant took all reasonable steps to find out the nature and extent of the injury suffered by him in the January 1998 accident before 20 January 2000, and between that date and when Dr Pentis expressed his opinion based on the MRI investigation on 24 July 2001.
  1. [68]
    I am satisfied there is sufficient evidence to establish the right of action apart from the defence founded on the expiration of the period of limitation.
  1. [69]
    There were no submissions made by the respondent regarding prejudice. On the evidence before me I conclude that the applicant has satisfied the onus that rests upon him to satisfy me that the respondent would not suffer significant prejudice if the limitation period were extended.
  1. [70]
    Therefore, I do consider in all the circumstances, that it is appropriate to order that the application filed 10 October 2001 be treated as an application for an extension of the limitation period. I therefore order that the application filed 10 October 2001 and bearing No. D121 of 2001 Maryborough Registry be treated as an application for an extension of the limitation period.
  1. [71]
    I order that the period within which the applicant may commence and prosecute proceedings for personal injuries arising out of an incident during the course of his employment on or about 20 January 1998 be extended to 24 July 2002.
  1. [72]
    I order that the claim and statement of claim filed herein bearing No D121 of 2001 filed in the Registry of the Maryborough District Court be struck out.
  1. [73]
    I will hear the parties on the question of costs.
Close

Editorial Notes

  • Published Case Name:

    Pettiford v Wide Bay Burnett Electricity Corporation

  • Shortened Case Name:

    Pettiford v Wide Bay Burnett Electricity Corporation

  • MNC:

    [2002] QDC 76

  • Court:

    QDC

  • Judge(s):

    Samios DCJ

  • Date:

    11 Apr 2002

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Berg v Kruger Enterprises (1992) 2 Qd R 301
1 citation
Jump To
Cite 1 - (1992) 2 Qd R 301
Berg v Kruger Enterprises (Division of Besser Qld Ltd) Ltd[1990] 2 Qd R 301; [1989] QSCFC 34
1 citation
Jump To
Cite 1 - [1990] 2 Qd R 301
Byers v Capricorn Coal Management Pty Ltd[1990] 2 Qd R 306; [1990] QSCFC 6
1 citation
Jump To
Cite 1 - [1990] 2 Qd R 306
Byers v Capricorn Coal Management Pty Ltd (1992) 2 Qd R 306
1 citation
Jump To
Cite 1 - (1992) 2 Qd R 306
Carmo v Ford Excavations Pty Ltd (1984) 154 C.L.R 234
2 citations
Jump To
Cite 1 - (1984) 154 C.L.R 234
Cite 2 - (1984) 154 C.L.R 234
Ex parte Bolewski [1981] Qd R 54
1 citation
Jump To
Cite 1 - [1981] Qd R 54
Hawthorne v Thiess Contractors P/L[2002] 2 Qd R 157; [2001] QCA 223
2 citations
Jump To
Cite 1 - [2001] QCA 223
Cite 2 - [2001] QCA 223
Johnson v Hill[2002] 2 Qd R 486; [2002] QCA 52
2 citations
Jump To
Cite 1 - [2002] QCA 52
Cite 2 - [2002] QCA 52
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
2 citations
Jump To
Cite 1 - [1988] 2 Qd R 325
Cite 2 - [1988] 2 Qd R 325
Muir v Franklins Limited [2001] QCA 173
2 citations
Jump To
Cite 1 - [2001] QCA 173
Cite 2 - [2001] QCA 173
Pettiford v Wide Bay Burnett Electricity Corporation (1981) Qd R 84
1 citation
Jump To
Cite 1 - (1981) Qd R 84
Pizer v Ansett Australia Ltd [1998] QCA 298
1 citation
Jump To
Cite 1 - [1998] QCA 298
Secpro Holdings Pty Ltd v KBK Enterprises Pty Ltd [1999] QCA 257
2 citations
Jump To
Cite 1 - [1999] QCA 257
Cite 2 - [1999] QCA 257
Sugden v Crawford [1989] 1 Qd R 683
2 citations
Jump To
Cite 1 - [1989] 1 Qd R 683
Cite 2 - [1989] 1 Qd R 683
Taggart v Workers' Compensation Board of Queensland [1983] 2 Qd R 19
3 citations
Jump To
Cite 1 - [1983] 2 Qd R 19
Cite 2 - [1983] 2 Qd R 19
Cite 3 - [1983] 2 Qd R 19
Tanks v WorkCover Queensland [2001] QCA 103
2 citations
Jump To
Cite 1 - [2001] QCA 103
Cite 2 - [2001] QCA 103
University of Queensland v Dick[2000] 2 Qd R 476; [1999] QCA 474
2 citations
Jump To
Cite 1 - [2000] 2 Qd R 476
Cite 2 - [2000] 2 Qd R 476

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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