Greenhalgh v Bacas Training Limited
[2007] QDC 56
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- Unreported Judgment
- Appeal Determined (QCA)
- Greenhalgh v Bacas Training Limited[2007] QDC 56
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Greenhalgh v Bacas Training Limited[2007] QDC 56
Greenhalgh v Bacas Training Limited[2007] QDC 56
DISTRICT COURT OF QUEENSLAND
CITATION: | Greenhalgh v Bacas Training Limited & Ors [2007] QDC 056 |
PARTIES: | JOHN ROBERT GREENHALGH Applicant AND BACAS TRAINING LIMITED First Respondent AND BUNDABERG TOYOTA Second Respondent |
FILE NO/S: | D21/06 |
DIVISION: |
|
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 30 March 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 January 2007 |
JUDGE: | McGill DCJ |
ORDER: | Extend the limitation period, in respect of a claim against the respondents for damages for injuries received by the applicant on or about 11 October 2001, to 21 June 2007 |
CATCHWORDS: | LIMITATIONS OF ACTIONS – Personal injuries – extension of time – whether material fact decisive – whether within means of knowledge of applicant – discretion. Limitation of Actions Act 1974 s 30(1)(b), 31(2). Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306 – applied. Dick v The University of Queensland [2000] 2 Qd R 476 – cited. Do Carmo v Ford Excavation Pty Ltd (1984) 145 CLR 234 – cited. Healy v Femdale Pty Ltd [1993] QCA 210 – followed. JMC v Moore [2006] QDC 418 – followed. Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 – applied. NF v State of Queensland [2005] QCA 110 – followed. Pizer v Ansett Australia Ltd [1998] QCA 298 – cited. State of Queensland v Stephenson (2006) 80 ALJR 923 – applied. Watters v Queensland Rail [2001] 1 Qd R 448 – applied. |
COUNSEL: | R. B. Dickson for the applicant A. S. Mellick for the respondents |
SOLICITORS: | Payne Butler and Long for the applicant McInnes Wilson for the first respondent Carter Newell for the second respondent |
- [1]This is an application seeking an extension of time under the Limitation of Actions Act 1974 in respect of an injury allegedly suffered by the applicant as a result of the negligence of the first or second respondent or both of them on 11 October 2001. The applicant alleges that a material fact of a decisive character was advice that he received in June 2006 from an orthopaedic specialist that he should find alternative employment. The application also seeks leave to commence a proceeding under the WorkCover Queensland Act 1996 in respect of the proceeding against the first respondent, and under the Personal Injuries Proceedings Act 2002 in respect of the proceeding against the second respondent. The respondents do not oppose the orders sought for leave to commence proceedings under those Acts, if the extension of the limitation period sought by the applicant is granted, provided that the proceeding is then stayed until the applicant has complied with all pre‑court procedures.
- [2]In relation to the application under the Limitation of Actions Act, the respondents concede that there is evidence to establish the right of action against each respondent apart from a defence founded on the expiration of the applicable period of limitation. Accordingly, the question is whether 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 within the last 12 months, and whether as a matter of discretion the limitation period ought to be exercised. Both of these aspects are in contention.
History
- [3]In October 2001 when the applicant was 20, he was accepted for apprenticeship as an automobile mechanic.[1] For the purposes of that apprenticeship, he was employed by the first respondent, but the work was actually carried out at the premises occupied by the second respondent’s business. On the fourth day at work, 11 October 2001, he was fitting a towbar to a new vehicle which had been backed on to stands so that the rear wheels were well off the ground. He was assisting a mechanic, and for this purpose was underneath the back of the vehicle. The mechanic he was assisting turned on the ignition in order to test some wiring which he had installed, and the car which was in reverse moved backwards off the stands, as a result of which the towbar hit him in the chest, and part of the car body hit him on the head. He also suffered injuries to his forehead, face and hand.
- [4]The applicant’s affidavit identifies the mechanic he was working with, the workshop foreman and service manager who were nearby, along with another employee of that business. He was taken to the Bundaberg Base Hospital by another employee, where he was treated and allowed to go home after four hours. He was given a certificate for time off work, but returned to light work five days later, having taken analgesics in the meantime. He was assisted by the first respondent’s workplace health and safety officer to complete an application for workers’ compensation; the officer also submitted an incident report to WorkCover. He returned to full work duties within one month of the accident.
- [5]The main area which was injured was the right shoulder, and after the accident he was able to continue to do work above the shoulder level. He did have occasional symptoms in the right shoulder, but did not take any regular medication, and there was no great interference with his work; he did not lose any pay. He expected that the symptoms would gradually resolve. In August 2004, while helping to lift a gearbox, he felt pain in his right shoulder. He saw his GP and was given time off work, for a few weeks. By 3 September 2004, his symptoms had completely settled.[2] In November 2004, the pain came on again when he was opening the shower door after a shower, and only lasted for a relatively short time. A workers’ compensation claim was made, and was paid.
- [6]He was sent by his GP to an orthopaedic surgeon, Dr Van der Walt, who on 30 November 2004 provided a report to WorkCover. Dr Van der Walt diagnosed a musculo ligamentous strain to the cervico‑thoracic area of the spine. He suggested physiotherapy for about six weeks, but believed he would be able return to work and complete his apprenticeship, though the prognosis was said to be guarded. He recorded that he advised the applicant to look for alternative work for a period of about six months after he finished his apprenticeship. The applicant recalls that he was told that after finishing his apprenticeship he should work for a time at something that did not involve above shoulder movements or repetitive use of the right shoulder. The applicant said in his affidavit that he then thought the shoulder would improve, and he did not think that a court action was worthwhile.
- [7]On 29 November 2004 he consulted a solicitor, but says he had not then decided to start a damages claim. The solicitor sent him back to Dr Van der Walt for a report, dated 5 May 2005. The report recorded that when seen previously the applicant had stated that he had felt he had never completely recovered from the 2001 incident, and that when required to do work above shoulder level he continued to suffer pain in the right shoulder. That is not necessarily inconsistent with the applicant’s affidavit. At the time of that examination, he felt that he had got over the symptoms caused in August 2004. He was then taking Voltaren, but not analgesics. At that stage, Dr Van der Walt diagnosed him as suffering 4 per cent impairment to the right arm, and a further 5 per cent whole person impairment because of soft tissue injury to the thoracic spine.
- [8]This report confirmed the earlier advice in relation to alternative employment for a period of time following completion of his apprenticeship. In fact, the apprenticeship finished at about that time, and the applicant took up employment with a different company, where he continues to work as a mechanic, servicing and doing repairs to motor vehicles. He said that the work was not as heavy as with his previous employer,[3] and he had not lost any time off work while working for that new employer. There was still difficulty when working above shoulder level,[4] and occasional back pain, and his ability to lift heavy objects was limited.
- [9]After about 12 months the applicant went back to see Dr Van de Walt again, and he provided a further report dated 21 June 2006.[5] Dr Van der Walt confirmed that the injury from 2001 was the primary cause of his impairment[6] which had led to a restriction in his work and career options because of an inability to work above shoulder level, and he recommended finding alternative employment where lifting above shoulder level was not required. The applicant said that he took this advice as meaning that he should find alternative employment on a long term or indefinite basis, and in the light of that decided that he should pursue a claim for damages.
Material fact of a decisive character
- [10]Under s 31(2)(a) of the Limitation of Actions Act 1974, the first issue is whether “a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until the date after the commencement of the year last preceding the expiration of the period of limitation for the action.” Because the jurisdiction of the court in such circumstances is to extend the period of limitation so that it expires at the end of one year after “that date”, for practical purposes, in circumstances where an action has not already been commenced, the issue is whether a material fact of a decisive character relating to the right of action was not within her means of knowledge until the period of one year prior to the date on which the application is determined: cf Pizer v Ansett Australia Ltd [1998] QCA 298 per Pincus JA.
- [11]When dealing with the application, it is necessary to determine first whether the facts of which the applicant was unaware were material facts; next, whether they were of a decisive character; and finally, whether they were within the means of knowledge of the applicant before the specified date.[7] A fact is not within the means of knowledge of a person at a particular time only if he does not know that fact, and he has taken all reasonable steps to find it out.[8]
- [12]As to whether the relevant fact was a material fact, by s 30(1)(a) material facts relating to a right of action include, among other things, “the nature and extent of the personal injuries so caused”, that is, caused by the negligence of the proposed defendant. The seriousness of the plaintiff’s injuries, and their consequences to him, including the extent to which they will impact on his ability to work in the future, and in that way cause economic loss, are plainly material facts.[9] As to whether they were of a decisive character, that depends on the test in s 30(1)(b), which in this context may be paraphrased by saying that a material fact is of a decisive character, in relation to quantum, only when it makes the difference between a situation where an action is not worth bringing, and a situation where an action is worth bringing.[10]
- [13]Whether a material fact is decisive is to be decided not by reference to what the particular potential plaintiff would regard the facts as showing, but by reference to what a reasonable person knowing those facts and having taken appropriate advice on those facts would regard those facts as showing.[11] This is an objective test, and assumes that appropriate advice has been taken, and the test is applied by reference to how a hypothetical, reasonable person with the applicant’s knowledge would respond in the light of that appropriate advice, not in terms of how it was reasonable for the particular applicant to respond.[12]
- [14]There have been a number of previous cases where plaintiffs who were injured but who were able to continue to work, sometimes for an extended period, have been treated as coming upon a material fact of a decisive nature only when they were first told, perhaps some time later, that they were not going to be able to continue to work in their chosen field, or that they ought not to do so to avoid making their condition worse. In Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, the plaintiff had a condition caused by an injury at work which continued to be painful and which showed no signs of improving and was if anything deteriorating, but continued to work for a time, having been told initially by doctors that his condition would probably clear up, until he was told by an orthopaedic surgeon three months after the expiration of the limitation period that he would have to give up work. This was held to be a material fact of a decisive character.
- [15]A similar result is achieved in Watters v Queensland Rail [2001] 1 Qd R 448. Again, the plaintiff was aware of his injury, but it was not until some time afterwards that it became apparent that he would not be able to continue in his ordinary employment, when he was stood down because of it by his employer.
- [16]In the present case, the applicant had received workers’ compensation payments for the period when he was off work, and the amount of those payments would have been deductible from any award of damages received. In those circumstances, the applicant had suffered no significant past economic loss. Although there had been some ongoing symptoms, with flare‑ups from time to time, in general the applicant had not had any prolonged and particularly painful symptoms, and so long as the condition was unlikely to deteriorate in the future, general damages would not have been all that great. Accordingly, I think it is a fair inference that the question of whether there is to be significant future economic loss is the factor which makes the difference between an action which is not worth pursuing and one which is worth pursuing.
- [17]The applicant had taken Dr Van der Walt’s advice, which was in effect to complete his apprenticeship and then change to lighter work for a time, and had then allowed a reasonable time to pass before consulting Dr Van der Walt again. That work, although lighter, was still work within the applicant’s trade, consistent with the training the applicant had received, and so was the sort of work which the applicant could well have been doing anyway. It was actually more remunerative than the work he had been doing for his former employer, so that so long as he could continue in that sort of work indefinitely there would have been no economic loss, unless perhaps some small allowance were made for the risk of future deterioration. Even then, the action would probably be one not worth pursuing.[13]
- [18]The applicant’s case was that it was only when he was told in effect that he ought not to be continuing even the lighter work that he had been doing after he completed his apprenticeship that he faced the prospect of being unable to work in his trade, and also being unable to do other skilled manual work, because of the same difficulties. Being unfitted by background and training for more sophisticated work,[14] he would then be thrown back on basic unskilled and undemanding manual work, which would be less remunerative. In all the circumstances, in my opinion the material fact in the present case was of a decisive character.
The respondents’ submissions
- [19]The principal submission on behalf of the respondents was that the material facts were within the means of knowledge of the applicant prior to June 2006. It was submitted that if the facts were not within his knowledge, it was only because of the applicant’s failure to take all reasonable steps to find out those facts previously. That involves the question of what steps are reasonable steps to be taken for the purposes of the test in s 30(1)(c).
- [20]I looked at this question, and the effect of a recent decision of the Court of Appeal, in JMC v Moore [2006] QDC 418. For reasons I set out there, in my opinion the matter is to be approached in the way expressed by Keane JA 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 the actual person in the circumstances of the applicant.”
- [21]Essentially the same point was made by the Court of Appeal in Healy v Femdale Pty Ltd [1993] QCA 210, where the court in a joint judgment said at p 5:
“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.”
- [22]The respondents in their submissions suggested that aspects of the applicant’s evidence should not be accepted. However, the applicant was not cross‑examined on his affidavit, and I doubt if it would be proper for me to reject things said in that affidavit on the basis of things contained in other documents without those documents having been put to the applicant in cross‑examination. In any case, it seems to me that the various statements are not necessarily inconsistent. It was submitted on behalf of the respondents that a reasonable person suffering ongoing right shoulder pain, more particularly with respect to above shoulder work that was a significant part of his duties as an apprentice mechanic, should have taken all reasonable steps to find out the cause and significance of this condition.[15] That, however, does not I think correctly state the test, as indicated in the authorities to which I have referred. What matters is whether it was reasonable for the applicant to have taken additional steps.
- [23]The respondents relied on a number of factors to indicate that the applicant in fact knew that he would not be able to work in the long term as a mechanic prior to June 2006, or that there were circumstances such that it was reasonable for him to have made further inquiries which, had they been made, would have revealed that that was the situation prior to that time. In August and September 2004, the applicant was seen by a physiotherapist who said he responded well with manual therapy to problems that arose after he was pushed down some stairs and slammed into a door injuring his neck and right shoulder.[16] He presented again in November 2004 with further problems, and the physiotherapist suggested further investigation but noted that “in his present state I think he will struggle with regular mechanic duties …” This was in a letter to the applicant’s general practitioner, and there was no evidence that the contents of this letter came to the attention of the applicant.
- [24]Even so, this was soon after the event referred to earlier, on 5 November 2004, when there was a further aggravation of the condition as a result of which the applicant was sent to Dr Van der Walt, who had given the advice that the applicant continue with his apprenticeship and, once finished, work for a time in something which did not involve above shoulder movements or repetitive use of the right shoulder. The opinion of the physiotherapist was predicated on the applicant remaining in “his present state”, which obviously did not occur, and it was reasonable for the applicant to act on what he was told by the orthopaedic surgeon rather than what he was told by the physiotherapist, assuming that the physiotherapist did tell him something to this effect.
- [25]It was suggested that the entry in the GP’s note from 19 April 2005 was significant, but it is not at all clear to me on the copy of the notes[17] that anything happened on 19 April 2005 other than recording of blood pressure. The GP’s notes are generally hard to read and more difficulty to interpret.
- [26]The effect of the visit to Dr Van der Walt in November 2004, although confirming that there were some continuing symptoms, did not result in a recommendation that the applicant change his employment at once, or any statement to the effect that he was unfit to work as a mechanic. That there were some continuing problems was obvious, but Dr Van der Walt thought that there were still prospects of further improvement, and in effect recommended that the applicant continue with and complete his apprenticeship, and then try to find some less demanding work to see if that helped. It was reasonable for the applicant to follow that advice. The position at that stage appears to have been that the applicant was generally able to cope with his work, but there were problems on occasions if he had to lift anything heavy, or work above shoulder height. That is not necessarily incompatible with continuing to work indefinitely as a mechanic; it may be that these problems can be minimised in the sort of work he is doing, and it may also be that the applicant was willing to put up with some pain from time to time providing that he could continue at work.[18] If that is an acceptable regime for him, it is one which will lead to an award of much lower damages than if he is unable to work as a mechanic. That is not inconsistent with the existence of some permanent impairment,[19] but rather an indication that the permanent impairment was not necessarily inconsistent with continuing work as a mechanic. Having been given this advice, it seems to me that it was reasonable for the applicant to act upon it before seeking further orthopaedic opinion, at least in the absence of some significant deterioration in the meantime, which did not occur.
- [27]When he saw a physiotherapist in February 2005, his intention was consistent with the recommendation of Dr Van der Walt, namely to finish his apprenticeship and then do less demanding work for a few months to help him get over it. That does not suggest that it was reasonable for him at that time to be undertaking more extensive inquiries. In April 2005, the applicant saw Dr Van der Walt again, but the situation really had not changed since November 2004. At that stage the applicant was still completing his apprenticeship, and there had been no real developments since the earlier occasion. There does not appear to have been any significant change in Dr Van der Walt’s assessment, or in his recommendation. At that stage, of course, he was preparing a medico‑legal report rather than recommending treatment or some course of conduct. Nevertheless, there is nothing in the report which would have reasonably led the applicant to disregard the earlier advice given to him, or to conclude that he would be unable to work on a long-term basis as a mechanic, albeit in a less strenuous type of such work and with intermittent pain. That also appears to have been recognised when he was speaking to the rehabilitation coordinator in April 2005, also relied on by the respondents.
- [28]In May 2005, the applicant saw Dr Olsen at the request of WorkCover. His report dated 25 May 2005[20] recorded a problem dating from October 2001, which had been aggravated as a result of working with both arms above his head while standing under a car on a hoist for an extended period. He gave a history which seems to me essentially consistent with the history referred to earlier. Ultimately, Dr Olsen concluded that at the present time the applicant was fit for his normal duties.[21] There was said to be a high risk of recurrence and the applicant “may wish to reconsider his future employment options given that he is still a young man and given that he does have a four year history of recurrent muscular pain at the right shoulder blade, that is certainly likely to continue with his working as a mechanic which does involve working with both hands above head and also laying on steel layboards on the workshop floor.” That report was provided to WorkCover rather than the applicant or his solicitors, but he was told about the contents of the report, or at least that part of it, on 1 June 2005, and indicated that he was already aware of this.[22] That was because what was being said there was essentially consistent with the advice he received some time earlier from Dr Van der Walt. This was quite soon after the applicant had completed his apprenticeship, at the end of April 2005.
- [29]Overall, it does not seem to me that there was anything revealed in this history which indicated that it was reasonable for the applicant to have undertaken more extensive inquiries, in the light of what he had been experiencing and the advice he had been given, in particular the advice from Dr Van der Walt. It does suggest that in continuing to work as a mechanic, there would be likely to be flare‑ups of pain from time to time, particularly if certain types of work were undertaken which would be likely to aggravate the shoulder, but it does not indicate, or provide any basis on which reasonably the applicant would have concluded or might have been concerned, that he would be unable to work as a mechanic in the future, or that there was a significant risk of that. Essentially, he was coping, and he had never been told that that situation could not continue.
- [30]Indeed, even the most recent advice from Dr Van der Walt is not dramatically different from that, it is just that, once that advice was given, the applicant reasonably did begin to have serious doubts about his prospects in the future as a mechanic. In my opinion, it was not reasonable for the applicant to have undertaken more extensive investigations than he did, and accordingly the material fact of a decisive character was not within his means of knowledge prior to June 2006. Accordingly, the discretion arises to extend the limitation period.
The discretion
- [31]In relation to the question of whether that discretion should be exercised, it is now a considerable time since the incident occurred, but the applicant has been able to identify, in material which was filed in September last year, most of the people who were in a position to be aware of what was going on at the time. The incident was brought to the knowledge of the employer and the second respondent at the time, as was the fact that there was some injury, a report was made to WorkCover and workers’ compensation was claimed. I appreciate that more investigations may well have been undertaken in response to a damages claim than were undertaken in relation to a compensation claim, but to some extent at least there was an investigation, and there exists documentation in the WorkCover files, and presumably in the respondents’ own files.
- [32]There is no evidence of prejudice put forward on behalf of either respondent. The respondents submit that the applicant has not provided details of whether relevant witnesses are available, but an evidential onus is on the respondents in relation to prejudice. It is not a matter for the applicant to prove an absence of prejudice, although the applicant does carry the ultimate onus of showing that the discretion should be exercised. There is no basis for a conclusion that a fair trial could not now be held.
- [33]On the face of it, the applicant appears to have a reasonably good case on liability, and there may well now be grounds for a significant award of damages, by District Court standards. I do not consider there has been any unreasonable delay in making the application. Although there was some delay between the time when the applicant consulted the solicitors and the time when he decided to proceed with the claim, that is explained by the fact that it was not until the most recent advice from Dr Van der Walt that there were circumstances that he thought made it worthwhile to pursue such a claim. The application was then filed promptly, on 4 July 2006. In all the circumstances, I am prepared to exercise my discretion so as to extend the limitation period, in respect of a claim for injuries received by the applicant on or about 11 October 2001 to 21 June 2007.
- [34]In these circumstances, the respondents do not oppose the orders sought in paragraphs 2 and 3 of the application, provided that the action is stayed until the pre‑litigation procedures are completed. I do not think there is now time to complete the pre‑litigation procedures in accordance with the Acts before the extended limitation period expires, so that provides sufficient urgency to justify making those orders, on that condition. I will hear submission as to costs.
Footnotes
[1]Affidavit of Greenhalgh filed 10 July 2006, para [4]. The rest of the applicant’s history is taken from his affidavit, except where otherwise stated.
[2]Affidavit of Beetge Exhibit PB1, entry for 3 September 2004.
[3]He was not doing any heavy lifting: Affidavit of Nielsen Exhibit JAN2 para 12.
[4]According to the report of Dr Van der Walt of 21 June 2006, this was when working overhead for about five minutes.
[5]Affidavit of applicant Exhibit D.
[6]Dr Olsen was of the same opinion: Affidavit of Nielson Exhibit JAN6 p 10.
[7]Do Carmo v Ford Excavation Pty Ltd (1984) 145 CLR 234 at 256; Dick v The University of Queensland [2000] 2 Qd R 476 at [26].
[8]Act s 30(1)(c).
[9]Watters v Queensland Rail [2001] 1 Qd R 448 at 451.
[10]Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 at 333 per Macrossan J, pp 336‑338 per Derrington J; Watters v Queensland Rail (supra) at [9] per Thomas JA.
[11]NF v State of Queensland [2005] QCA 110.
[12]State of Queensland v Stephenson (2006) 80 ALJR 923 at [30] per Gummow, Hayne and Crennan JJ.
[13]As to whether an action is worth pursuing, it is necessary to bear in mind restrictions on damages and costs under the relevant legislation such as WorkCover Queensland Act 1996 ss 315, 325, 327; Personal Injuries Proceedings Act 2002 s 56.
[14]He had only average results at school, and described himself as a “hands on” type of person.
[15]Outline of argument on behalf of the respondents para [11].
[16]Affidavit of Nielson filed 7 September 2006, Exhibit TAN5.
[17]Affidavit of Beetge filed 9 November 2006, Exhibit PB1.
[18]As he told Ms King in April 2005, that was the sort of work he was trained for and wanted to do: Affidavit of King filed 7 September 2006, para [4].
[19]And note the caution of Macrossan J in Moriarty v Sunbeam Corporation Ltd [1998] 2 Qd R 325 at 322 line 55.
[20]Affidavit of Nielson filed 7 September 2006, Exhibit TAN6.
[21]If this came to the notice of the applicant, it would have supported the impression given by the advice of Dr Van der Walt.
[22]Affidavit of Lewis Exhibit KL1.