Fuller v Bunnings Group Ltd[2007] QDC 198

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for an extension of the limitation period under the Limitations of Actions Act 1974.

2. [2]
   On 2 October 2006 the applicant was granted leave to start a proceeding for damages for personal injuries despite non-compliance with the Personal Injuries Proceeding Act of 2002.  The proceeding was evidently commenced on 9 October 2006.

3. [3]
   The applicant was born on 12 July 1953. The applicant was employed by Ajax Fasteners. The incident the subject of the action occurred on 23 June 2003 while she was rearranging her employer’s stock at the respondent’s Southport store.  The applicant’s description of the incident taken from the affidavit of Maria Skordou filed 21 September 2006 at paragraphs 3 and 4 is as follows:

“The applicant alleges that on 23 June 2003 between 10 and 11 am she was working at the respondent’s premises at Olsen Avenue, Southport in the State of Queensland.  The applicant, an employee of Nylex (which is the business that subsequently acquired Ajax Fasteners) was rearranging Nylex stock.  She was using a type of ladder in the performance of her duties which was the property of the respondent.  The applicant was required to stand on a ladder and reach above shoulder height into a shelf which was approximately two metres above floor level and drag five kilogram tubs of nails towards her and place them on the rungs of the ladder before carrying them down to the floor.

The applicant had carried two tubs of nails weighing 10 kilograms in total down the ladder in her left arm cradling them against the left side of her body.  The floor area in the vicinity of the shelf was covered in stock.  The injury to the applicant’s left shoulder and neck occurred as she was bending and twisting in order to place the two tubs of nails on the floor.”

4. [4]
   The applicant provides a much more detailed account of the incident in her affidavit filed 22 January 2007 and the circumstances of the incident were explored further in cross-examination of her today.

5. [5]
   The applicant said in evidence that she mentioned the incident to a female staff member at Bunnings in the bathroom. She also reported the matter to Ajax Fasteners.

6. [6]
   On the following day, that is 24 June 2003, she saw her general practitioner, Dr McPhillips. His progress notes state that on examination he found a painful arc, painful external rotation and normal internal rotation. Dr McPhillips issued a medical certificate recommending restricted work duties in relation to lifting and carrying with the left arm and no left arm movements above shoulder level.

7. [7]
   The applicant returned to see Dr McPhillips on 1 July 2003. Dr McPhillips says at paragraph 4 of his affidavit filed by leave today that when the applicant returned on 1 July 2003 he noted considerable improvement in her condition and full movement of the applicant’s left shoulder. He says that accordingly he provided her with a full clearance to return to her pre-injury duties.

8. [8]
   The applicant did not consult Dr McPhillips again in relation to the left shoulder problems until 22 June 2006. Dr McPhillips says that when the applicant consulted him in relation to those ongoing problems he noted limited movement in her left shoulder. He, therefore, recommended that she undergo X-ray and ultrasound investigations of the left shoulder which were performed on 3 July 2006.

9. [9]
   The applicant returned to Dr McPhillips’ practice on that date, with the results of the X-ray and the ultrasound. Dr McPhillips says that he confirmed a diagnosis of calcific tendonitis in the applicant’s left shoulder. He says that over a period of time calcium had been deposited in the tendon and he says that it is probable that the original injury suffered on 23 June 2003 was the triggering factor for the development of the calcific tendonitis. He says that in his opinion the applicant was not aware of any ongoing calcific tendonitis developing in her rotator cuff.

10. [10]
    It was accepted by the parties that the issues for decision are as follows.

1. Is there evidence to establish a right of action apart from a defence founded on the expiration of the period of limitation?

2. The applicant must show that a material fact of a decisive character came to her knowledge after 23 June 2005.

3. Should the extension of time be refused on the ground of prejudice to the respondent?

11. [11]
    Having regard to the circumstances of the incident, and in particular to the evidence relating to it, given by the applicant under cross-examination, I consider that she has established a sufficiently arguable right of action, so I will immediately turn to consider the next question.

12. [12]
    In order to obtain an extension of the limitation period the applicant must show that a material fact of a decisive character was not within her means of knowledge until after the relevant date. See s 31(2) of the Limitations of Actions Act and Queensland v Stephenson (2006) 80 ALJR 923.

13. [13]
    The interpretation of the expressions “material fact of a decisive character” and “means of knowledge” are governed by s 30.

14. [14]
    Mr Myers identified the material fact as being the diagnosis of calcific tendonitis in the left shoulder which Dr McPhillips told the applicant about on 3 July 2006.

15. [15]
    At para 9 of his affidavit Dr McPhillips said that over a period of time calcium has been deposited in the tendon. It is probable that the original injury suffered on 23 June 2003 was the triggering factor for the development of the calcific tendonitis.

16. [16]
    Mr Myers helpfully referred in his written outline to the following passage in decision of the Full Court in Healy v Femdale Pty Ltd, appeal number 37 of 1993, judgment delivered 9 June 1993 at pp 4 and 5:

“The question then is whether it can be said that in the circumstances the plaintiff took all reasonable steps to ascertain the fact that her injury was serious enough to justify the bringing of an action.  She did not ask her doctor questions of this kind.  The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights.  It is difficult to say that a person who finds herself able to get on with her life and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity.  There is no requirement to take ‘appropriate advice’ or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.”

17. [17]
    The applicant has made a number of statements concerning the effect of the injury on her. In her affidavit filed 29 September 2006 she said at paragraph 7:

“Following the incident on 23 June 2003 I continued to experience problems with my left shoulder and neck.  I would not, however, describe my ongoing level of pain as acute.  However, the pain was present all the time.  It was evident to me that I had hurt my shoulder on 23 June 2003.  I subsequently came to realise that I could no longer move my left shoulder/arm in the way that I could prior to 23 June 2003.  However, despite the injuries I was able to continue work.”

18. [18]
    In her affidavit filed 7 December 2006 the applicant said as follows at paragraphs 4 and 5:

“Notwithstanding the symptoms suffered by me as a result of the accident on 23 June 2003, I continued at work even in spite of the flare-ups caused by other work-related activities.  I was of the belief my symptoms would not worsen to the extent that I would ever be precluded from working.

My belief that I would continue to work was reinforced by the fact that even after exacerbations of my condition the symptoms that would initially arise would abate whereby no economic loss was occasioned to me.”

19. [19]
    I should also mention that the applicant gave an account of the impact of her injury to Dr Livingstone, and in his report which is part of Exhibit REM2 to the affidavit of Rachel Miller filed 8 December 2006 Dr Livingstone says at page 2:

“However, since that time she has always complained of an ache in the left shoulder region with certain activities, particularly any overhead activities or reaching behind her back with her left shoulder.  She continued to work on, however, but had a second injury in June 2005 when she tripped and fell onto the left side, taking most of the weight on her left buttock but also some strain on the left shoulder region which became a little more painful at the time but within a week had returned to the long-term grumbling ache described above following her 2003 incident.”

20. [20]
    It is necessary to bear in mind that a material fact is not decisive simply because it would result in a larger award of damages.

21. [21]
    In JMC v Moore [2006] QDC 418 McGill SC DCJ said at paragraph 36:

“It is well established that a material fact is not of a decisive character if it merely serves to enlarge the award of damages which would otherwise have been made, unless, without the newly learnt fact or facts the plaintiff would not even with the benefit of appropriate advice have previously appreciated that she had a worthwhile action to pursue which it would be in her own interest to pursue.”

22. [22]
    The plaintiff’s evidence here sought to downplay the symptoms that she had experienced following the incident in June 2003 but I think a more reliable guide as to those symptoms is provided by what she said in her affidavits referred to above and what she told Dr Livingstone.

23. [23]
    In those circumstances, it is clear that she experienced ongoing symptoms.

24. [24]
    By section 30(1)(c) of the Act, a fact is not within the applicant’s means of knowledge if but only if the applicant did not know it and had taken all reasonable steps to find out the fact.

25. [25]
    In the end I accept the argument of the respondent at paragraph 20 of the written submissions that a reasonable person in the position of the applicant should have sought medical advice and investigation as to the reason for her on-going pain.

26. [26]
    That really suffices to result in the dismissal of the application but I should go on to discuss the prejudice issue which was raised by the respondent as a further ground upon which the application should be refused.

27. [27]
    In that respect the respondent relies upon the affidavits of Mr Wayne Thomas, the operations manager at Bunnings, Mr David Brandt, the complex manager at Bunnings Southport, and Mr Frank Chio, an employee of Quinlan Miller and Treston.

28. [28]
    In cross-examination today the applicant raised a number of issues concerning the respondent’s potential liability for the incident. She said Bunnings staff advised her when they wanted a reload done and said it had to be done as quickly as possible. She said she was unable to say who had said that.

29. [29]
    She said that she was told she must do her job efficiently and not take more space than necessary and not to inconvenience customers. She also said that there were at least a dozen five kilogram boxes of nails at the base of the ladder. She said she had not placed the boxes there and nor had her co-worker from Ajax Fasteners, Mr Adrian Brown. By inference the applicant must be contending it was an employee of Bunnings who placed those boxes at the base of the ladder since it is unlikely to have been a customer of the store. It is obviously dangerous to place objects at the base of a ladder when a person is on it, which seems to be the way in which it must have been done in the circumstances described by the applicant here.

30. [30]
    She also said that the ladder itself was wobbly. She said it was not very safe.

31. [31]
    The applicant also gave evidence here that the incident was mentioned by her to a female employee of Bunnings in the bathroom later the same day. The ladder itself, I think is a potentially significant piece of evidence.

32. [32]
    The unchallenged evidence of Mr Thomas in his affidavit is that there were three different types of ladders available for use at Bunnings Warehouse as at 23 June 2003. Mr Thomas says that more than three years after the fact it is impossible to identify the ladder being used by the applicant at the time she allegedly suffered her injury.

33. [33]
    I also see difficulties in responding to the contention implicit in the applicant’s evidence that Bunnings’ staff placed boxes of nails at the base of the ladder at a time when it was obviously dangerous for anyone to have done so.

34. [34]
    The respondent also points to the fact that Bunnings Warehouse Southport has been reconfigured on at least two occasions since June 2003. That presents further obstacles meeting the applicant’s case, in my view.

35. [35]
    The parties accepted that it was for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it was then for the applicant to show the facts do not amount to material prejudice. See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547.

36. [36]
    Although the respondent has led such evidence, I am not persuaded that the applicant has demonstrated that the facts do not amount to material prejudice.

37. [37]
    In examining the impact of potential prejudice in Jackson v Claric Ninety Five Pty Ltd [2005] QSC 374 Douglas J had regard to a number of factors.  His Honour said at paragraph 28 that the lapse of time itself is prejudicial because of its effects on the availability and the quality of the evidence.  In that particular case his Honour said the delay between the alleged injury and the report by the plaintiff to his foreman was significant because of the inability to investigate the facts at the time.

38. [38]
    In the end, his Honour, in finding that there was prejudice in that particular case said that the defendant would have been substantially prejudiced by the lack of a contemporaneous investigation, the limited memories of potential witnesses and the destruction of potential records of the employer at the time.

39. [39]
    His Honour also said, referring to Brisbane South Regional Health Authority v Taylor, that the fact that the defendant would have been substantially prejudiced in some of these ways if the action had been brought within the limitation period is irrelevant.

40. [40]
    In these circumstances I consider that the case of prejudice has been established and has not been refuted by the applicant.

41. [41]
    In all of the circumstances the application for extension of the limitation of period is refused.

42. [42]
    It was agreed between Mr Myers and Mr Matthews that if that was the outcome that the applicant would pay the respondent’s costs to be assessed on the standard basis.