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Manuel v Commonwealth Bank of Australia[2007] QDC 376

Manuel v Commonwealth Bank of Australia[2007] QDC 376

DISTRICT COURT OF QUEENSLAND

CITATION:

Manuel v Commonwealth Bank of Australia [2007] QDC 376

PARTIES:

JAYACEELOA MANUEL

(Applicant)

AND

COMMONWEALTH BANK OF AUSTRALIA (ABN: 48 123 123 124)

(Respondent)

FILE NO/S:

BSD1989/07

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane 

DELIVERED ON:

7 November 2007

DELIVERED AT:

Brisbane 

HEARING DATE:

13 September

JUDGE:

Searles DCJ

ORDER:

  1. The period of limitation for the applicant’s action against the respondent for damages for personal injuries sustained over a period of time from 1 July 2001 be extended to 6 June 2007, pursuant to s 31(2) of the Limitations of Actions Act 1974;
  2. Costs of and incidental to this application be costs in the cause.

CATCHWORDS:

APPLICATION FOR EXTENSION OF LIMITATION PERIOD – S. 31 [2] LIMITATION OF ACTIONS ACT 1974

COUNSEL:

Mrs J O McClymont for the applicant

Mr M T O'Sullivan for the respondent

SOLICITORS:

Murphy Schmidt for the applicant

Home Wilkinson Lowry for the respondent

  1. [1]
    This is an application for an order that the period of limitation for the applicant’s action against the respondent for damages for personal injuries sustained over a period of time from 1 July 2001 be extended to 6 June 2007 pursuant to s 31(2) of the Limitation of Actions Act 1974.
  1. [2]
    Section 31 of the Limitation of Actions Act 1974 provides:

“31 Ordinary actions

  1. (1)
    This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provisions made by or under a statute or independently of a contract or such provision) whether damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death or any person.
  1. (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)
    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. (3)
    This section applies to an action whether or not the period of limitation for the action has expired:
  1. (a)
    before the commencement of this Act; or
  1. (b)
    before an application is made under this section in respect of the right of action.”
  1. [3]
    Section 30 defines, by inclusive definition, the meaning of “material facts” relating to a right of action and provides:

“30 Interpretation

  1. (1)
    For the purposes of this section and ss 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;
  1. (iii)
    the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
  1. (iv)
    the nature and extent of the personal injury so caused;
  1. (v)
    the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty; and
  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
  1. (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
  1. (ii)
    as far as the fact is able to be found out the person – the person has taken all necessary steps to find out the fact before that time.
  1. (2)
    In this section:
  1. (a)
    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.”
  1. [4]
    Before addressing the facts, I mention the short history leading up to the application. The applicant worked for the respondent for a lengthy period and claims damages for negligence during that period. The relevant starting date for the damages being the date from which the respondent accepts that the applicant sustained a work-related injury, is 1 July 2001. She ceased employment on 9 June 2006 so that, limitation issues aside, the only damages she could recover from the respondent is for the period 1 July 2001 to 9 June 2006.
  1. [5]
    On 10 January 2007 two Notices of Claim were delivered by the applicant to the respondent, in accordance with s 276 of Workers Compensation and Rehabilitation Act 2003 and s 280A of the Work Cover Queensland Act 1996 (as amended) respectively.
  1. [6]
    On 22 January 2007 the respondent, through its solicitors, and as a Licensed Self Insurer, confirmed with the applicant in relation to both Notices, that it agreed there was an urgent need for the applicant to start proceedings for damages but that it was not satisfied that the respective Notices of Claim were compliant.
  1. [7]
    In that letter the respondent’s solicitors set out conditions the applicant was required to agree to in relation to each Notice to allow the respondent in each case to waive compliance with s 278 (2) (b) of the Workers Compensation and Rehabilitation Act and s 282 (2) (b) of the Work Cover Queensland Act respectively. By a letter dated 14 February 2007 the applicant’s solicitors agreed to the two sets of conditions on behalf of the applicant.
  1. [8]
    The abovementioned two pieces of legislation contain mechanisms to avoid having to issue court proceedings in circumstances where a limitation period is about to expire. In simplified terms, s 280A of the Work Cover Queensland Act 1996 and s 276 of the Workers Compensation and Rehabilitation Act 2003 provide that, if:-
  1. (a)
    A claimant serves a Notice of Claim within the limitation period; and
  1. (b)
    An insurer agrees to waive compliance of the Notice of Claim; and
  1. (c)
    The parties agree to certain conditions;

then the claimant can later commence court proceedings after the expiration of the limitation period once the pre-court requirements have been completed.[1]

As a result of the service of the Notices of Claim on 10 January 2007, the respondent agreeing to waive compliance as above-outlined by notice of 22 January 2007, the effect is that, if the limitation period is extended to 6 June 2007, the claimant is treated as having served the two Notices of Claims within the (extended) limitation period thus enabling her to issue proceedings at a later date if the claim is not settled. That then is the backgrounds to the present application which I need not go into any further.

  1. [9]
    The applicant worked for the respondent as a bank teller from 24 October 1997 to 9 June 2006 when she was involuntarily retired on the grounds of ill health. She alleges that during the time working with the bank she developed carpal tunnel syndrome as a result of being exposed to using numeric keypads and a computer trackball mouse of at least six hours a day with no wrist support. She complains that the trackball mouse would get stuck and in that event required a very awkward posture with her right hand to manipulate it. She says that the respondent did not provide her with a separate mouse by which I take it to mean a mouse which was operable without the difficulty she encountered. She said when the respondent offered to fix the “sticking mouses,” its maintenance team would merely clean the pads resulting in the mouse again malfunctioning within a couple of days. She said that the respondent did not rotate her tasks or change her tasks so that she could avoid overuse of her right hand. She started wearing a splint and bought herself a gel pad to assist with pain management at work. On 23 September 2002 while working at Bulimba she injured her right palm, wrist and thumb while opening a stiff draw and said her thumb and right hand have never been the same since. She filed an incident report in relation to that but did not claim Workers Compensation benefits.
  1. [10]
    The applicant says that the teller drawers were always stiff, so stiff that the drawer on her left hand side had to be pulled out with her right hand. Her complaints to the respondent resulted in the maintenance team regreasing the drawer, which according to the applicant would be stiff again within a week or so.
  1. [11]
    From the beginning of 2003 the applicant was suffering numbness in her fingers and hand to the extent that she was waking up a number of times during the night and would have to clap her hands to regain feeling. On 24 February 2004 Dr John Cameron performed a nerve conduction test on her and diagnosed bilateral carpal tunnel syndrome.
  1. [12]
    As a result of that diagnosis she began wearing a wrist splint day and night and, as mentioned above, bought a gel pad for support for her wrist at work whilst using the computer. She also started using her left hand for the numeric keypad but was told by the respondent that this was unacceptable because she was not processing transactions fast enough.
  1. [13]
    On 13 November 2004 she consulted Dr Gregory Couzens, an orthopaedic surgeon, who, on 16 June 2005, performed an endoscopic release of the right carpal tunnel. He told her that the recovery time would be between four to six weeks.
  1. [14]
    She was reviewed by Dr Couzens post‑operatively on 27 June 2005 and given a certificate of unfitness for work (certificate) for six weeks. Dr Couzens again reviewed her on 8 August 2005, eight weeks after surgery, when she had significant swelling and severe pain and could still not use her right hand. He issued her with a certificate for a further eight weeks.
  1. [15]
    On 9 September 2005 Dr Couzens reviewed her again and her hand remained swollen. He issued another certificate for six weeks. He saw her again on 3 October and she told him that she was still troubled by palm pain and weakness. He issued a further certificate for six weeks.
  1. [16]
    On 28 November 2005 the applicant returned to Dr Couzens with ongoing severe palm pain and he told her on that occasion that the pain would eventually settle. He issued a further certificate for two weeks.
  1. [17]
    By 8 December 2005 the applicant had decided to lodge a Workers’ Compensation claim and she further consulted with Dr Couzens to request a Workers’ Compensation medical certificate to support her claim. Dr Couzens issued the certificate noting that the applicant had work related carpal tunnel syndrome. He issued her with a certificate covering the period 16 June 2005 to 16 February 2006, the expiration of which was some two months after the consultation date of 8 December 2005.
  1. [18]
    In the event, the applicant says, she did not submit the Workers’ Compensation application to the bank because, whilst having trouble filling out the details in the relevant form she spoke to the respondent’s manager with whom she worked, one Rocky Hoffman, who told her there was no need to submit a claim for workers’ compensation benefits because she would continued to get paid by the respondent in terms of its generous unlimited sick leave policy.
  1. [19]
    On 23 January 2006, some three weeks before the expiration of the current medical certificate on 16 February 2006 she sought a further certificate. She asked Dr Couzens why her recovery was taking so long. He explained to her that recovery time after such surgery was different for different individuals and that her recovery was very slow. He issued her with a certificate for a further two months to 28 March 2006 and told her that he would consider further surgical exploration of her palm if it had not improved at the 12 months post‑operative date, 16 June 2006.
  1. [20]
    In early February 2006, at the request of the respondent she attended the Hands On Therapy clinic for an assessment. The principal of that clinic, Ms Barbra Watson, provided a report to the respondent dated 10 March 2006 in which she summarised the applicant’s condition in these terms:

“This lady has had a long history of hand problems with her report of ‘RSI’ related to her thumb prior to the carpal tunnel. She reported that she had difficulty at work with her thumb prior to the carpal tunnel, particularly pushing doors open. On observation she was unable to take weight on the heel of her hand and indeed was unable to weight-bear to push up off a chair or off the floor. She demonstrated a poor tolerance in all tasks undertaken with a report of pain after 1-2 minutes, sufficient to cause her to cease the tasks. When attempting to use her hand she used exaggerated postures in her arm and neck. The poor grip strength in the unaffected left hand would demonstrate a lack of sincerity of effort.

As Jaya has reported that she no longer undertakes any significant homemaking duties with the right hand and combined with her poor endurance of all assessment tasks, the indicators for an easy transition to return to work are not good. Realistically it is unlikely that she would manage any aspect of bank teller operations involving continual hand use.”

The applicant was not given a copy of this report at the time and did not become aware of its contents until 23 June 2006, 17 days after her termination.

  1. [21]
    On 13 March 2006 she again consulted Dr Couzens who noted that the swelling in her hand was reducing. He issued a further certificate for three months to expire on 16 June 2006, the anniversary of her surgery.
  1. [22]
    On 17 March 2006 the respondent wrote to her, advising that it was considering initiating her ill‑health retirement from the bank, and enclosing certain authorities for the release of medical information. She was asked to nominate two individual treating doctors, one a specialist and one a general practitioner, and provide their addresses and contact phone numbers on each of the authority forms enclosed. She signed those authorities, filling in the details of Dr Couzens and her GP Dr Anand Patel.
  1. [23]
    On 4 May 206 the applicant was again reviewed by Dr Couzens who advised her that she should expect to return to work by 16 June 2006, the anniversary of her surgery.
  1. [24]
    The following month on 6 June 2006 when again consulting Dr Couzens, he showed her a letter he had received from the respondent’s superannuation fund indicating that the applicant had been retired from the respondent employment on the grounds of ill health. He gave her a further certificate for two months to 16 August 2006. On her arrival home from that consultation, she found a letter from the respondent dated 2 June 2006 notifying her that her application for ill‑health retirement from the respondent had been approved effective close of business 9 June 2006.
  1. [25]
    She had made no such application and that was later clarified in a letter from the respondent’s solicitor Mr Mullumby in a letter to the applicant’s solicitors of 21 June confirming the applicant’s ill‑health retirement had been initiated by the respondent not the applicant and apologising for the poorly worded letter of 2 June.
  1. [26]
    The applicant’s case is that, upon receipt of the respondent’s first letter of 17 March 2006 foreshadowing consideration by the respondent of her possible retirement on ill health grounds, she did not believe that she would be retired on the grounds of ill health. She based that belief upon the fact that she was still being assured by Dr Couzens, during her various consultations, that that her condition continued to improve and was such as would enable her to return to work. . She said she had always relied upon his advice that her post‑operative symptoms would settle down and she would be able to return to her pre‑injury duties as a teller with the respondent. .
  1. [27]
    As to her signing the medical records access forms sent by the respondent on 17 March 2006, she said she first contacted her regular solicitor, Mr John Monteith of John Monteith and Associates of Bulimba. He referred her to another solicitor, Wayne Richardson in Balmoral because he, Monteith, did not practice in that area of work.
  1. [28]
    Shortly after speaking with Mr Monteith, the applicant and her husband went overseas and she asked her son to contact Mr Richardson. He did so and was told by Mr Richardson that he was too busy to assist. Upon her return from overseas she again contacted Mr Monteith who advised her to sign the forms so there could be no repercussions from failing to return them.
  1. [29]
    At that stage she said she had not received a copy of the Hands On Therapy report of10 March 2006, and was under the impression the respondent had asked her to attend that clinic for the purpose of facilitating the applicant’s return to work, rather than in relation to any decision it may have had in mind to impose involuntary retirement upon her. As I have said, did not become aware of the contents of the Watson report until 22 June 2006.
  1. [30]
    It was not until her receipt on 6 June 2006 of the respondent’s of 2 June 2006 letter that she became aware she would be involuntarily retired. She asserts that the 2 June 2006 letter from the respondent received on 6 June 2006 constituted “a material fact of a decisive character relating to the right of action” upon which her application rests.
  1. [31]
    At the conclusion of the cross-examination of the applicant by the respondent’s counsel Mr O'Sullivan, the latter submitted that, based on the evidence the applicant had given, there was no material fact of a decisive nature sufficient to found an extension of the limitation period. Mr O'Sullivan said[2]:-

“If the evidence from the applicant was this, that, “I’ve had the surgery, I was suffering the condition. I’ve had pain that she described and disability and I always believed that I was going to return to work, but when I got the notice from the bank, and about the question of involuntary retirement, and when I was notified by the bank my services were no longer required, that if they were terminated, I then realised that the condition was such that I can no longer perform my duties”. In those circumstances, I’d certainly concede that that’s a material fact and it would be decisive, if, in fact, that bit was correct and she believed it to be correct….

Here you have the converse of that situation.

The applicant….. says, “Well, look, I have all the problems. I had the surgery. I was advised that I was going to be better and I would be able to return to work. The bank sent me the address for the parties and certainly the advice about that. I was involuntarily retired. I protested about that. I didn’t agree with that and in fact, it did improve as I believed it would, as I had been advised it would, by Dr Couzens consistently and as testified by other written reports provided and then back to work with this chicken franchise”.” [I have made minor grammatical amendments]

  1. [32]
    In short, the respondent’s position is that there was no material fact of a decisive nature because the applicant believed at all times that her medical condition would improve and that she would return to work and that is precisely what happened, albeit not to work with the respondent.
  1. [33]
    Ms McClymont for the applicant acknowledged that for the application to succeed the applicant must show that:
  1. (a)
    she first became aware of a “material fact” within the previous one year;
  1. (b)
    the material fact was of a “decisive character”;
  1. (c)
    the material fact was not within the applicant’s knowledge or means of knowledge any earlier;
  1. (d)
    there is evidence to establish a right of action against the respondent; and
  1. (e)
    in all the circumstances, the court should exercise its discretion in favour of the applicant.

I agree with that.

Material fact relied upon by applicant

  1. [34]
    As I have stated above, the material fact of a decisive nature upon which the applicant relies is that which she first became aware of on 6 June 2006, namely that she was to be involuntarily retired on the grounds of ill health. I have already set out in paragraph 3 above, s 30 of the Limitation of Actions Act 1974, which is an exclusive definition of the term “material facts” for the purpose of ss 31, 32, 33, and 34. The applicant submits that the material fact she relies upon falls within s 30(1)(iv) and (v) as being a material fact relevant to the nature and extent of the personal injury suffered by the respondent and the extent to which that personal injury was caused by the negligence, trespass, nuisance or breach of duty on the part of the respondent.
  1. [35]
    On the issue of materiality, in Wrightson v State of Queensland[3] her Honour McMurdo P addressed that issue in paragraphs 12 and 13 of her reasons in these terms:

“12. But is this fact ‘material’ under the Act?  A fact is material to an applicant’s case if it is both relevant to the issues to be proved if the applicant is to succeed in obtaining an award of damages sufficient to justify bringing the action and it is of sufficient importance to be likely to have a bearing on the case:  Sola Optical Australia Pty Ltd v Mills (1987) 16R CLR 628, Wilson, Deane, Dawson, Toohey, Gaudron JJ, 636-637.

  1. Damages are an essential element of a right of action for negligence so that facts relevant to the economic effects of the injury are material facts under s 30(1)(a)(iv) of the Act:  Watters v Queensland Rail [2000] QCA 51; [2001] 1 Qd R 448, Thomas JA with whom McPherson JA and Byrne J agreed.”
  1. [36]
    The respondent’s counsel alerted me to the fact that Wrightson’s case was the subject of an appeal to the High Court.[4] I have read decision. Importantly the majority (Gummow, Hayne, Crennan and Kirby JJ) confirmed as correct the approach of Davies JA in Stephenson v State of Queensland[5] to the interpretation of the phrase “a material fact of decisive character relating to the right of action”. His Honour held that that term was a composite term not to be dissected into the two concepts of “material fact” and “of a decisive character”, when determining the point at which an applicant becomes possessed of the relevant knowledge upon which an application is founded.
  1. [37]
    Notwithstanding that McMurdo P had taken a different view of that issue in her decision, there is nothing in the High Court decision which affects the correctness of her honour’s approach to the meaning of ‘material’ as outlined in the above statement.
  1. [38]
    On the authority of Wrightson and the authorities upon which it is based, I am satisfied that the applicant’s forced termination was a material fact in that it was clearly relevant to the issue of damages in any action against the defendant. It heralded the cessation of an income stream which the applicant had enjoyed for almost nine years since 24 October 1997.
  1. [39]
    Under s 30(1) (b) of the Limitation of Actions Act a material fact relating to a right of action only qualifies as being of a decisive character if the following is satisfied:
  1. (a)
    If, but only if, a reasonable person knowing those material facts and having taken 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
  1. (ii)
    that the applicant ought in her own interests in taking her personal circumstances into account to bring an action on the right of action.
  1. [40]
    The applicant says that the involuntary retirement is of a relevantly decisive character because, until she became aware of her involuntary retirement on 6 June 2006, she had not and would not have suffered economic loss as a result of her injuries, and that no reasonable legal advisor would have considered that she had a claim which had a reasonable chance of recovering sufficient damages to make it worthwhile bringing the claim.
  1. [41]
    In Jocumsen v Theiss Pty Ltd and Anor[6] the Court of Appeal considered an appeal from a successful application of the type here under consideration. The applicant was a heavy equipment plant operator who backed a 120 tonne bulldozer he was driving on to a Toyota troop carrier, badly crushing it and causing him to immediately fear that he had killed the driver. Fortunately he had not. Nevertheless, he suffered post‑traumatic stress disorder as a result of the incident. Rather than ceasing work, however, he persevered, thinking that he could beat the condition himself by continuing to work. Unfortunately, whilst the condition did improve to some extent, his treating psychiatrist came to the view and notified the applicant’s general practitioner that perhaps the most important factor in the reduction of the applicant’s symptomatology would be getting him away from heavy dangerous machinery which he had worked in for many years.
  1. [42]
    It was that fact, namely, that his medical condition rendered it unlikely that he could continue in the mining industry as an operator of heavy machinery, which the applicant relied upon as a material fact of a decisive character. The court upheld the trial judge’s decision to grant the application extending the limitation period and agreed that the above fact as to the applicant’s realisation of the limitation on his future working prospects, was a material fact of a decisive character. At paragraph 38 Muir J (as he then was), with whom McPherson JA and Williams JA agreed, said:

“The material fact on which the respondent relies, if established on trial, has the potential to increase substantially an award of future economic loss, thereby making litigation a reasonable option. The fact relied on was therefore ‘a material fact of a decisive character’ within the meaning of s 31(2):  Moriarty v Sunbeam Corporation Ltd (1988) 2 Qd R 325.”

  1. [43]
    In the previously mentioned case of Wrightson v State of Queensland, the applicant was a former undercover police officer who suffered psychiatric injury in the course of his employment. He underwent treatment with some improvement. For a period of sick leave brought about by his unfitness for duty he received medical advice that he should consider retiring. Because his application for early retirement on medical grounds was by no means certain of approval by the Queensland Police Service (QPS), he did not commence proceedings until after he received formal approval. It was that acceptance by the QPS of his application for retirement on medical grounds which he relied upon as being a “material fact of a decisive nature” in seeking an extension of the limitation period. The court at first instance granted the application for three reasons, the third of which was said to be the most important. They were firstly that even as late as December 2000, two months before his application was approved on 22 February 2001, he may have been able to continue his police career, notwithstanding his medical condition. Secondly, his application for early retirement may have failed, and if that had happened his progress in the police service from then on would probably have been jeopardised by the fact that his having sought retirement on the grounds of a mental disorder. Finally, and the most important point, was that the pressure of instituting proceedings against an employer from whose employment he had not been released could have caused a further deterioration in his mental health. The appeal against the trial judge’s decision was dismissed.
  1. [44]
    On the issue of decisive character Her Honour McMurdo P said:[7]

“(13) Damages are an essential element of a right of action for negligence so that facts relevant to the economic effects of the injury are material facts under s 30(1)(a)(iv) of the Act:  Watters v Queensland Rail.[2000] QCO 51; [20001] Qd. R 448,Thomas J with whom McPherson JA and Byrne J agreed. The fact that the appellant regarded Mr Wrightson as medically unfit for psychiatric reasons to carry out his work as a police officer had a direct bearing on the extent of the economic effects of the personal injury caused to Mr Wrightson, and so was a material fact under s 30(1)(a)(iv) of the Act. It follows this is not then a case where an applicant has been aware of a material fact which only later becomes of a decisive character after the expiration of the timeframe provided for in s 30(1)(a) of the Act. It was of both new material fact and a new material fact of a decisive character within the meaning of those terms under the Act.”

Was the material fact within the applicant’s knowledge any earlier?

  1. [45]
    Section 30(1)(c) of the Limitations of Actions Act provides:
  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
  1. (ii)
    as far as a 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. [46]
    Williams JA in Jocumsen v Theiss Pty Ltd said[8]:

“Since the decision in Castlemaine Perkins Ltd v McPhee (1979) Qd R 469, especially at 472-3, it has been recognised that, in applying what is now s 30(1)(c) of the Act, the test of reasonableness to be applied is an objective one relevant to a person in the position of the claimant with his background and understanding. As Keane JA said in NF v State of Queensland [2005] QCA 110 at [29]:

‘Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from that actual person in the circumstances of the applicant.’

That decision of this court clearly confirms the approach which must be taken in circumstances such as exist here.”

  1. [47]
    The affidavit evidence of the applicant from her affidavit establishes the following:
  1. (a)
    she had been employed by the respondent since 24 October 1997;
  1. (b)
    she began to experience problems with her right hand and thumb related to her work duties in 2002;
  1. (c)
    she was diagnosed with bilateral carpal tunnel syndrome on 24 February 2004;
  1. (d)
    she consulted Dr Gregory Couzens, orthopaedic surgeon, on 30 November 2004;
  1. (e)
    Dr Couzens performed an endoscopic release of the right carpal tunnel of her right hand on 16 June 2005;
  1. (f)
    Dr Couzens informed her that she would recuperate following her surgery;
  1. (g)
    in early February 2006 at the request of the respondent she attended the Hands On therapy clinic and underwent an assessment which, as I have previously set out in paragraph [29] she regarded as related to her prospective return to work rather than any action by the respondent to initiate involuntary retirement.
  1. (h)
    she was notified by the respondent that she was being considered for ill‑health retirement by letter of 17 March 2006 and asked to sign authorities to release her treating medical practitioners’ records;
  1. (i)
    she signed those authorities and was told nothing more by the respondent on the issue of ill‑health retirement until she received the respondent’s letter of 2 June 2006 on 6 June 2006;
  1. (j)
    prior to receiving that letter on 6 June 2006 she did not believe that she would be involuntarily retired by the respondent given that Dr Couzens had continued to inform her that she would improve and would eventually be able to return to work;
  1. (k)
    until that same date 6 June 2006 she was not aware that the respondent would make the decision to terminate her employment on the grounds of ill health.
  1. [48]
    Having regard to the above, I find the fact of the applicant’s termination from her employment on the grounds of ill health was not within her knowledge or means of knowledge any earlier than 6 June 2006.

Did the applicant have a right of action?

  1. [49]
    Another prerequisite to obtaining an extension of the limitation period pursuant to s 31 of the Limitation of Actions Act (Qld) 1974 is that the applicant had a right of action against the respondent apart from any defence by the latter founded on the expiration of limitation (s 30(2)(b)).
  1. [50]
    The applicable test for this issue was described by his Honour Macrossan CJ in Woods v Glacso Australia Pty Ltd[9] in the following terms:

“It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions. A judge may harbour a feeling that there is a strong chance that particular applicants will fail at trial but, in my opinion, he should not act on the basis of his impression both because that is a question reserved for another occasion and because he cannot know and should not insist on being able to see in all of its ramifications the full strength of the case which will eventually be presented at trial. There are some resemblances in this to the situation of a defence who resists a summary judgment application. The court should be cautious in shutting out a party from the opportunity to make his case at the appropriate time. In any situation where proof of a case is difficult and very far from straightforward, it would be very expensive to require a party applying to extend time to demonstrate his case with any high degree of elaboration. Fundamentally, the standard required on an application for extension of time under the Act comes from the literal words of s 31(2)(b): ‘Evidence to establish the right of action’. These words will be construed according to the policy of the legislation …

The evidence need not at the stage at which the application is brought be in a form which would be admissible at trial and it may indeed be hearsay. It will not be possible to predict whether the plaintiff’s evidence will prevail at trial when it will be subjected to challenge and forced to confront the opposing evidence of the defendant, but it is probably accurate enough to say that an applicant will meet the requirements imposed by s 31(2)(b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case.”

  1. [51]
    On this issue the applicant deposed to the following in relation to her work duties with the respondent:
  1. (a)
    she worked as a part-time teller at the respondent’s Bulimba branch;
  1. (b)
    she was required to spend at least six hours per day using numeric keypads and a trackball which was awkward and often became stuck, without a wrist support;
  1. (c)
    her tasks were not rotated;
  1. (d)
    she suffered a discrete injury on 23 September 2003 when opening a stiff teller’s drawer;
  1. (e)
    she attempted to use her left hand when her symptoms became worse in her right hand, but was informed that she was not fast enough in processing transactions using that method.”
  1. [52]
    I am satisfied that, if the above evidence was uncontested at trial, the applicant would have sufficient evidence to establish negligence against the respondent in failing to provide a safe system of work.
  1. [53]
    The respondent argued that the evidence did not establish a material fact of a decisive nature because the applicant always believed that her condition would improve and she would return to work which in fact she did in May 2007 when she and her husband purchased a Nandos franchise in St Lucia, Brisbane. In relation to that business the applicant deposed: -

“As a result of being terminated from my employment my husband and I purchased a Nandos franchise at St Lucia in May 2007. I managed the business and tried to avoid using my injured hand as much as possible. At times when I attempt to physically prepare, carry and serve food, I find that my right hand and wrist are weak and sore and I am unable to do so. I therefore have to rely on my employees to undertake all the physical tasks in the store.”[10]

That evidences that the work presently being undertaken by the applicant in the Nandos business is quite different from that undertaken for the respondent and that the injury sustained during employment with the latter has much reduced her capacity for physical work in her new business.

  1. [54]
    As I understand the respondent’s case, what it says is that because the applicant at all times was optimistic of recovery and a return to work, and because further she in fact did return to the workforce in her own business, then the fact of her forced retirement cannot bear the description of a material fact of a decisive character.
  1. [55]
    I do not agree with that. The fact that the respondent returned to the workforce in her own business some 11 months after termination by the respondent does not, in my opinion, impact on the significance of the termination. Its significance in this application lies in the fact that prior to such termination, whereas the applicant was suffering pain and had, in my view, a right of action against the respondent in negligence, no reasonable legal advisor would have advised her to commence proceedings against the respondent pre‑termination. That advice would rest upon the following grounds. Firstly, that her medical advice was that, despite the slowness in the healing process, she would one day return to her work. Secondly, she continued to be paid by the respondent from June 2005 until the date of termination, so that she had, to that point, no economic loss. Thirdly, as was the case in Wrightson v State of Queensland previously referred to, the commencement of proceedings to pursue damages for the pain and suffering alone, but not economic loss, may well have triggered an earlier forced retirement by the respondent relying upon the applicant’s inability to work based upon the particulars of the plaintiff’s disability which she would have to plead. Just as in Wrightson, the risk was that premature proceedings by him based on his psychiatric condition may have jeopardised his employment, so here, albeit for a different medical condition, the applicant would have faced the same exposure. It was the forced termination on 6 June 2007 which crystallised the economic loss component of the applicant’s damages which then made the right of action quite a different proposition in dollar terms than it was prior to the termination.
  1. [56]
    In all the circumstances I am satisfied that the applicant has made out her case and order:
  1. That the period of limitation for the applicant’s action against the respondent for damages for personal injuries sustained over a period of time from 1 July 2001 be extended to 6 June 2007, pursuant to s 31(2) of the Limitations of Actions Act 1974;
  1. That the costs of and incidental to this application be costs in the cause.

Footnotes

[1] Section 308(1)(a)(ii) Work Cover Queensland Act 1996; and s 302(1)(a)(ii) Workers Compensation and Rehabilitation Act 2003.

[2] Transcript p 24, line 13.

[3] [2005] QCA 367.

[4] [2006] HCA 20; (2006) 227 ALR 17; (2006) 80 ALJR 923.

[5] [2004] QCA 483 at 12-13

[6] [2005] QCA 198

[7] [2005] QCA 367 at 13.

[8] [2005] QCA 198 at 9

[9] (1994) 2 Qd R 431 at 434

[10] Applicants Affidavit paragraph 46

Close

Editorial Notes

  • Published Case Name:

    Manuel v Commonwealth Bank of Australia

  • Shortened Case Name:

    Manuel v Commonwealth Bank of Australia

  • MNC:

    [2007] QDC 376

  • Court:

    QDC

  • Judge(s):

    Searles DCJ

  • Date:

    07 Nov 2007

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
Castlemaine Perkins Ltd v McPhee [1979] Qd R 469
1 citation
Jump To
Cite 1 - [1979] Qd R 469
Jocumsen v Thiess Pty Ltd [2005] QCA 198
2 citations
Jump To
Cite 1 - [2005] QCA 198
Cite 2 - [2005] QCA 198
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
1 citation
Jump To
Cite 1 - [1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110
1 citation
Jump To
Cite 1 - [2005] QCA 110
Sola Optical Australia Pty Ltd v Mills (1987) 16R CLR 628
1 citation
Jump To
Cite 1 - (1987) 16R CLR 628
State of Queensland v Stephenson (2006) 227 ALR 17
1 citation
Jump To
Cite 1 - (2006) 227 ALR 17
State of Queensland v Stephenson (2006) 80 ALJR 923
1 citation
Jump To
Cite 1 - (2006) 80 ALJR 923
State of Queensland v Stephenson & Anor (2006) HCA 20
1 citation
Jump To
Cite 1 - (2006) HCA 20
Stephenson v State of Queensland [2004] QCA 483
1 citation
Jump To
Cite 1 - [2004] QCA 483
Watters v Queensland Rail[2001] 1 Qd R 448; [2000] QCA 51
3 citations
Jump To
Cite 1 - [2000] QCA 51
Cite 2 - [2000] QCA 51
Cite 3 - [2001] 1 Qd R 448
Watters v Queensland Rail [2001] Qd R 448
1 citation
Jump To
Cite 1 - [2001] Qd R 448
Wood v Glaxo Australia Pty Ltd[1994] 2 Qd R 431; [1993] QCA 114
1 citation
Jump To
Cite 1 - [1994] 2 Qd R 431
Wrightson v State of Queensland [2005] QCA 367
2 citations
Jump To
Cite 1 - [2005] QCA 367
Cite 2 - [2005] QCA 367

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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