Manning v CSR Ltd[2008] QDC 36

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant, Mr. Daniel Manning suffered an injury to his knee at work on 29 September 2004. He was then employed by the respondent CSR Limited at its PGH Brickworks plant at Cooroy. His knee struck the engine cowling of a forklift that he was using to collect bricks from a drying kiln at about 9pm. The knee swelled immediately and he was unable to complete his shift. By the next day, he was in severe pain and unable to attend work.

2. [2]
   Mr. Manning now applies pursuant to s.31 of the Limitation of Actions Act 1974 to extend the limitation period until 8 December 2007. By reason of s.11 of that Act the limitation period expired on 29.9.2007.

3. [3]
   Mr. Manning did not consult a solicitor about his claim until October 2007, that is after the expiration of the limitation period.

4. [4]
   His claim is governed by the Worker's Compensation and Rehabilitation Act 2003 which was in force at the time of his accident. On 19.11.07 Judge Dodds granted leave to the applicant pursuant to s.298 of that Act to commence proceedings notwithstanding non-compliance with the Act, which leave was with the consent of the respondent subject to a number of conditions, one of which was the making of this application.

5. [5]
   To succeed with this application Mr. Manning must satisfy me “that a material fact of a decisive character relating to the right of action was not within his means of knowledge … until a date after the commencement of the year preceding the expiration of the  limitation period, and that there is evidence to establish the right of action apart from a limitation defence”: s.31(2) of the Limitation of Actions Act 1974.

6. [6]
   As to the “right of action” requirement, Mr. Morton concedes on behalf of the respondent that there is such evidence.

7. [7]
   In Pizer v Ansett Australia Limited QCA 29 [at 16] Thomas JA stated the correct approach as follows:

“If a reasonable (person) knowing what the plaintiff must have known, and having taken appropriate advice on those facts would have regarded them as showing that a right of action would have reasonable prospects of success resulting in an award of damages sufficient to justify the bringing of the action and (that person) ought in (his or her) own interest to bring it,  then the plaintiff fails to show “that a material fact of a decisive nature relating to the right of action was not within the means of knowledge of the applicant” prior to the necessary date”.

8. [8]
   The question is one of fact and there is no dispute as to the relevant facts.

9. [9]
   On the 24.11.04 Mr. Manning consulted Dr. Winstanley on referral from   his general practitioner. On 7.1.05 Dr. Winstanley conducted an arthroscopy on the knee. Mr. Manning had time off work which he accepted in his evidence in chief before me involved being “on and off” work for 10 weeks after the accident. At times the knee became too painful for him to continue and he would go home.

10. [10]
    After working on a “suitable duties” programme he returned to his duties as a firer. He found this work too difficult because of the need to go up and down a steep flight of stairs approximately 30 times a night. As a firer, he was on shift work and received a premium for working nights. At some time in 2006 (the time is not clear) he spoke to his boss about these difficulties and he was given the option of returning to his work as a brick sorter or leaving work altogether. He chose to return to his earlier job as a sorter which involved a loss of income.

11. [11]
    He continued to have knee trouble and in August 2006, he consulted another G.P. and returned to see Dr. Winstanley on 9.10.06 at the request of the respondent. On 24.10.06 he had an MRI scan.

12. [12]
    On 8.12.06 he resigned from CSR Limited and the following Monday he took up his present employment as a greenkeeper at the Cooroy Golf Club.

13. [13]
    On 20.4.07 he had a further arthroscopy undertaken by Dr. Winstanley and on 20.8.07 Dr. Winstanley issued a permanent impairment assessment to CSR Limited which Mr. Manning did not see until after he consulted his solicitors.

14. [14]
    In cross-examination by Mr. Morton, Mr. Manning accepted that in the financial year ending 30.6.06 he earned $36,871 with tax of $6,921 and a similar amount for the 30.6.07 financial year. He accepted that after the 10 week period in the 2005 financial year he did not claim workers compensation until the 2007 tax year. He accepted that on these figures he received $160 per week approximately less in the 2006 year than he had in the 2005 year.

15. [15]
    The point of this cross-examination is that Mr. Manning now asserts “that his resignation from his employment and consequently the first time he suffered a reduction in income as a consequence of the injuries sustained (in the accident)” is the “material fact of a decisive nature” which was not within his means of knowledge until after 29 September 2006 (i.e. two years after the date on which the cause of action arose).

16. [16]
    In a report dated 9.10.06 Dr. Winstanley advised the respondent that the knee injury was such that it was desirable that Mr. Manning have a change in work activity to allow him to avoid climbing stairs, squatting and prolonged standing. He also expressed the opinion that Mr. Manning had a permanent impairment associated with his knee joint. Mr. Manning submits alternatively to the resignation from CSR Limited, that this information which was not made known to him until after he first consulted his solicitors is also decisively material.

17. [17]
    Mr. Morton’s submission on behalf of CSR Limited is that neither of these facts is decisive in the sense of converting the action in terms of damages from one which was not worthwhile into one that was; and in any event, these facts were always within Mr. Manning’s means of knowledge.

18. [18]
    In a long line of authority on s.31, it has been held that the facts relied upon should not be considered as separate from facts already known and it should be regarded in context with other facts: Taggart v The Worker's Compensation Board of Queensland [1985] 2 Qd R 19; Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325.

19. [19]
    With this in mind, and applying the conventional approach referred to in Pizer v Ansett Australia Limited, it could not be said that the resignation from his employment with CSR Limited on 8.12.06 added materially or decisively to Mr. Manning’s knowledge of the nature and extent of his injury so as to enliven the discretion conferred by s.31(2) of the Act. By then, he had already suffered a significant loss of income, because, as a result of his symptoms he had returned to his old job as a sorter which involved significant loss of income from his employment as a firer. Obviously, he was well aware that this was because of his knee symptomatology.

20. [20]
    The other issue is his knowledge of the specialist’s opinion about his condition and in particular that it was a permanent disability. Accepting the facts set out in Mr. Manning’s own affidavit to which Mr. Morton refers at para 14 of his written submission, the question is whether a reasonable person with that knowledge but absent Dr. Winstanley’s opinion of a permanent incapacity, having taken appropriate advice would have regarded them as showing that a right of action would have reasonable prospects of success resulting in an award of damages sufficient to justify the bringing of the action.

21. [21]
    In his report to the respondent dated 10.10.06, Dr. Winstanley expressed his opinion thus (at page 2):

“The discomfort which Mr. Manning has within his knee joint would be more consistent with his osteochondral lesion rather than his small meniscal tear present within his knee joint.

The osteochondral lesion present within his knee joint was present on his previous MRI scan performed on the 2^nd October 2004.

The diagnosis for Mr Manning would be consistent with aggravation of osteochondral lesion present within his left knee joint.

The symptomatology he has within his knee joint relates to irregularity of the articular surface of his knee joint and the repetitive-type use and activity which he performs in his occupation.

The current symptoms are due to his work situation and his underlying osteochondral injury which is associated with his original injury which occurred in late 2004.

I am of the opinion that Mr Manning would benefit from further intervention into his knee joint of arthroscopy. Arthroscopy would allow debridement of his osteochondral injury to allow achievement of a smooth regular surface.

Mr Manning would benefit from a change in his work activity to allow him to avoid climbing the stairs, squatting and prolonged standing.

He has a permanent impairment associated with his knee joint associated with his osteochondral lesion.

Mr Manning seems to be well motivated to continue with work activity. There is no indication in his history that there has been any other injury or accident to precipitate his present findings. Following further arthroscopic surgery, it would take a period of another six weeks before he is able to return to full activities. Once he has returned to full activity, once he has reached maximum improvement providing that he is in suitable employment, he would be able to continue on an indefinite basis”.

22. [22]
    Mr. Manning was not aware of the contents of this report as a copy was not sent to him.

23. [23]
    After the 2^nd Arthroscopy in April 2007, Dr. Winstanley advised the respondent that he assessed Mr. Manning’s permanent impairment of his left knee at 9% and on the 24.8.07 (i.e. still within the limitation period) the respondent gave Mr. Manning a Notice of Assessment under the Worker's Compensation and Rehabilitation Act 2003 and set out a lump sum compensation offer.

24. [24]
    In Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327, the Court of Appeal considered a case with some similarities to the present but where the specialist’s opinion as to the extent of the plaintiff’s injuries was not within the plaintiff’s knowledge until well after the expiration of the limitation period. This was a difference of course as was the fact that despite aggravations of his injury during his original employment as an apprentice motor mechanic, the plaintiff nevertheless persisted in the face of encouraging medical reports as to his prognosis. The court did not interfere with the primary judge’s exercise of discretion in that case to extend the limitation period.

25. [25]
    Keane JA (with whom Cullinane J and Lyon J (with further reasons) agreed) referred to another part of Thomas JA’s judgment in Pizer (at 23- footnotes omitted):

“In the present case leave was granted to appeal, mainly on the Court's perception that the case was reasonably arguable, and that the effect of the decision would produce significant consequences. In appeals of the present kind, when the material fact concerns the nature and extent of personal injury, questions of degree are necessarily involved. At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it. At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension, and an appeal court could likewise readily correct an erroneous decision. Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff's knowledge and as to whether the reasonable person contemplated by s.30(b), endowed with such knowledge and having taken appropriate advice, would have brought proceedings. Appeals involving extensions of periods of limitation commonly raise these particular issues which involve factual assessments. Although the eventual decision is discretionary the determination of these issues is not. They involve findings of fact and a determination whether those facts satisfy the requirements of the statute. It is worth mentioning however that such findings and determinations are made in an area where different minds might reasonably reach different conclusions. In such a situation the appeal court is not free to decide the question according to its own preference. Unless the judgment reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference."

26. [26]
    I regret to say that in my opinion, Mr. Manning’s case falls at the other end of the spectrum of cases described by Thomas JA; namely it was a case of a quite serious orthopaedic injury productive of actual significant economic loss of which he knew during the running of the limitation period. On the facts he also knew soon after 24 August 2007 (just prior to the expiration of the period) that the loss was permanent. In my opinion, the additional knowledge that it was Dr. Winstanley who was expressing that opinion is not decisive in my opinion. Mr. Manning had only ever seen one specialist and he knew that Dr. Winstanley had conducted an arthroscopy in April 2007.

27. [27]
    His application must fail with costs.