Green v Taylor[2010] QDC 298

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant, Mr Green, is a professional jockey aged 38 years who sustained a personal injury in a race fall at the Ipswich racetrack on 19 August 2005.  The respondent, Mr Taylor, was riding in the same race.  Mr Green alleges that Mr Taylor caused the incident that injured him by negligence and/or breach of duty.  Mr Taylor was found guilty of careless riding in a steward’s inquiry and suspended from riding.

2. [2]
   This is an application seeking:

1. (i)
   an extension of time under s 31(2) of the Limitation of Actions Act 1974 (Qld) (“the Limitation Act”) for Mr Green to institute proceedings against Mr Taylor in respect of the injury allegedly sustained by him on 19 August 2005 up to and including 11 February 2009; and

2. (ii)
   authorisation under s 18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002 (Qld) (“the PIPA”) for Mr Green to proceed further with the claim in respect of this incident despite his failure to give a complying part 1 notice of claim.

3. [3]
   It is not disputed on behalf of Mr Taylor that Mr Green has, apart from the expiration of the limitation period, a reasonable prospect of success on the issue of liability.

Summary of Evidence^[1]

4. [4]
   After the incident Mr Green was taken to hospital. He cannot recall if he had x-rays but he was informed by a doctor that there was no evidence of a fracture. He was then discharged.

5. [5]
   On 20 August 2005 he obtained a medical certificate stating he was fit to ride horses on that day. The doctor issuing this certificate knew he had suffered an injury from a race fall. After this, he continued riding in races up to 6 days a week. Initially he rode with pain. However this settled down to a reasonable level after some months.

6. [6]
   On 24 April 2007 Mr Green went to his GP because he was losing mobility in his left hip. As a result he had a radiological scan which revealed no significant abnormalities.

7. [7]
   In late April or early May he saw Dr Saunders, a sports physician for a further medical opinion. After an MRI scan, on 12 May 2007 Dr Saunders referred him to Dr Hayes an orthopaedic surgeon for possible surgery. In making the referral Dr Saunders told him that he would probably only be off work for a week or two and be able to return to work as normal.  At this time he had to “ride long” to avoid significant pain.

8. [8]
   On 4 May 2007 he submitted an application for workers’ compensation benefits to WorkCover Queensland (“WorkCover”).  In doing so he described the nature of the injury as “left hip-joint & groin” as the result of a race fall.

9. [9]
   He first consulted Dr Hayes on 4 June 2007. Dr Hayes informed him that surgery would be needed to his left hip to repair a labral tear and to remove a piece of bony spur. Dr Hayes told him that following the surgery he would be unable to return to race riding for six months. Mr Green gave oral evidence that he was not told that this would affect him later on.^[2]  In particular he testified:^[3]

“I was just lead to believe that … once that was finished, I’d return to work and … things would be normal because the pain would be gone.  I was no longer going to be working with the pain.”

He also gave evidence that Dr Hayes said the scan of the damaged area showed some arthritis, but he had never had a problem with his hips until the fall.^[4]

10. [10]
    Dr Hayes’ oral evidence is that at presentation Mr Green had both an acute injury, which was a tear in the peripheral labrum (caused by the fall) and a chronic underlying arthritic condition.^[5]  The arthritis included the bony spur or osteophyte.^[6]  Consistent with Mr Green’s evidence, he said that this kind of chronic underlying condition can be asymptomatic.^[7]  He expanded on this saying:^[8]

“So just because you’ve got the x-ray finding doesn’t mean that you’re going to have pain, but one thing that we do know that when you have an underlying arthritic joint and you injure it, not only will you experience the pain of the injury, but we know that it also exacerbates, accelerates and almost turns on the switch for the onset of the symptoms related to the pre-existing osteoarthritis.  So say if you had someone else who matches Mr Green in an identical way except for the fact that he doesn’t have arthritis of the hip, he may well continue to ride after his acute injury has resolved, if that makes sense.” (my emphasis).

11. [11]
    Dr Hayes also made it clear it is impossible to say with 100% certainty whether the tear to the labrum happened “yesterday or two years ago”,^[9] but the most likely explanation was that there was pre-existing degeneration of the labrum and the fall from the horse caused it to tear.^[10]

12. [12]
    Mr Green continued riding until he underwent the surgical procedure by Dr Hayes involving a left hip arthroscopy and femoral osteomy on 2 August 2007. The procedure removed the torn area of labrum cartilage, some of the surface cartilage (which was lifting off the bone) and the excessive bony spur or osteophyte. The latter two parts of the surgery were for the underlying osteoarthritic condition.^[11]

13. [13]
    He again saw Dr Hayes on 17 August, 15 October, and 6 December 2007.^[12]  On 17 August he was referred for physiotherapy.  On 15 October he was referred for a CT scan on both hips.  On this date Dr Hayes wrote to Dr Saunders in terms that included:^[13]

“As I have previously told him, it will take about four months before the soft tissue component settles.  All the same, I am going to organise a CT scan with 3D reconstructions to assess the adequacy of his debridement.

I have since reviewed Davin with the results of his CT scan and they show that the previous area of bony debridement looks reasonable and I have reassured him that we should continue with his current plan of rehab.  I plan to see him in two months” (my emphasis).

I note that on 29 November 2007 Dr Hayes provided an updated report to WorkCover based on the 15 October consultation.  In this report he stated:

“I would expect stable and stationary status in January 2008”^[14] (my emphasis).

Based on this report Mr Green would be expected to attain this status about 5 months after the surgery.  Consistent with this at the 6 December consultation Dr Hayes informed him that he would be able to commence track work in January for a month and then get back to full racing in February 2008.  Dr Hayes wrote to Dr Saunders on 6 December saying that he had seen Mr Green on that date and advising:^[15]

“It is now 4 months since his hip arthroscopy and femoral ostectomy.  Right on queue at four months his pain become (sic) much better and the catching has virtually stopped.  I looked at him today and he has a full range of motion of the hip and most importantly he was able to reproduce his riding position with minimal discomfort.

It ties in well with the end of the year that he should have a few more sessions of physio to see him through until the end of December if Cameron Lillicrap is happy with that.  He could then get back doing some track work in January for a month and then back to full racing in February.” (my emphasis).

Along similar lines, Dr Hayes reported to WorkCover on that date of a “marked improvement” of Mr Green and of his capacity “commencing in January 2008” to undertake “light trackwork ½ normal hours for the first month:” with the anticipation he could return to his original duties in “Feb 2008.”^[16]

14. [14]
    Mr Green states that on the occasion of the December consultation Dr Hayes did not rearrange to see him. He said in reply to a question in cross examination that there was no conversation about his future as a jockey, adding:^[17]

“… at no stage, like, my thought’s didn’t go to that.  You know, I was just thinking that this injury has been fixed now.  I’m recovering and when it’s over – when I get back to work, there’s no – I won’t have any pain.”

15. [15]
    Mr Green commenced track work in early January 2008 and continued this for the rest of the month. He returned to race riding on 9 February 2008.

16. [16]
    Not long before his return to race riding, he spoke to a WorkCover claims officer. He believes this was on 29 January 2008. She advised Mr Green WorkCover was awaiting confirmation from Dr Hayes that the injury was stable and stationary and permanent impairment would probably be assessed. This is the first time he ever recollects being told by a medical practitioner or someone at WorkCover that he may be left with a permanent impairment.^[18]  However, he was not specifically told that he had any permanent impairment.  He also deposed:^[19]

“I recall saying to her that I did not want to find that I cannot claim in the future.  Her response was that I can either accept the amount or not accept it.  I enquired as to whether I could have the case re-opened and further treatment provided at some time in the future if I required it.  I was informed that unless I suffered another injury to the same area that I would not be able to make a further claim for compensation benefits.”

17. [17]
    Because the claims officer had told him that WorkCover was waiting for an assessment of his injury from Dr Hayes he rang Dr Hayes’ rooms to find out if an assessment had been done and the nature of that assessment.^[20]  On the basis of his telephone records he believed he did this on 7 February 2008.  He does not recall speaking to Dr Hayes but assumes he spoke to his receptionist.  However, he recalls being informed there was no further need for him to see Dr Hayes.^[21]

18. [18]
    Dr Hayes wrote a letter dated 7 February 2008 to Mr Green in the following terms:^[22]

“Thank you for your enquiry about your hip.  At the time of your previous hip surgery you had osteoarthritis prior to the operation.  This has in part been induced by the sustained riding postures that you have had over a long period of time resulting in what we describe as impingement or a butting of bone on bone in the front of the hip.

The purpose of the arthroscopy was to remove the impinging area of bone and cartilage in the front of your hip, however the surgery cannot reduce the arthritis which is already present.  It is likely that over the next 1-2 decades the arthritic process and hence associated pain will worsen and may end up impeding your ability to ride.  However the rate at which this will occur is unknown.

If I can be of any further assistance please do not hesitate to contact me.”  (my emphasis.)

Although Dr Hayes did not recall the nature of the inquiry prompting this letter,^[23] it is likely he did this in response to the phone call Mr Green believes he made to his rooms on that date.  I proceed on this basis.

19. [19]
    However, Mr Green’s evidence was that he did not know the letter had been sent^[24] and did not receive it until 12 December 2008.^[25]  His wife who normally opened the daily mail addressed to him, recalls that around the time he returned to race riding she saw a letter from Dr Hayes which came in the mail to their home address.  She did not read the letter after opening it, but says in accordance with her normal practice she would have placed it on the study table in their house for him to read.  This was the table on which the computer was located.  In February 2008, their children who were aged 8 and 11 years, regularly used this computer.  She recalls him telling her that he had not read the letter.  Her evidence was that this was not the first time an item of mail had disappeared from the table.^[26]

20. [20]
    Consistently with this, Mr Green said he recalled his wife informing him she had opened but not read a letter from Dr Hayes and left it in the usual place. He looked for the letter but was unable to find it. Both he and his wife say that one of them rang the surgery and asked for a further copy of the letter to be sent.^[27]  However, as indicated, his evidence is that the letter was not received until 12 December 2008.

21. [21]
    On 12 May 2008 Mr Green had a further consultation with Dr Hayes to enquire about his hip. This was in circumstances where he realised that his hip had not returned to the completely pain free state it was prior to his fall on 19 August 2005.  He had also suffered a fracture to his left clavicle following a fall from his motor bike in about March 2008.  On the basis of his telephone records he arranged this appointment on 7 April 2008.^[28]

22. [22]
    During cross-examination he said between February 2008 and 12 May 2008 he still had “aggravation, bit of pain” in his hip. He made the appointment because he was concerned about the strength in his leg. He was having trouble picking up his foot to put it in the iron, and this affected him when riding.^[29]

23. [23]
    Dr Hayes medical notes of this consultation refer to “muscle weakness only.”^[30]  Although Dr Hayes’ evidence on the basis of these notes was that Mr Green was suffering sharp referred pain from his hip, he felt that the range of movement was good.^[31]  Consistent with this Mr Green’s evidence was that Dr Hayes told him that it was muscular and as time went by it would strengthen up.  He said that eventually it strengthened up and the problem was gone.^[32]

24. [24]
    However, it was at this consultation Dr Hayes told him for the first time that his riding career may be curtailed as the problem with his hip may eventually affect his ability to ride horses, and that he would require hip replacement surgery at some time in the future.^[33]  He said that although he planned to continue as a jockey to at least the age of 55 or 60, he did not think too much about this because he was back riding, getting a lot of rides again, and feeling on the way to recovery.^[34]

25. [25]
    Mr Green thought about it again later in 2008, when it was starting to affect him again. He said this was around December when he had contact with WorkCover.^[35]  In relation to this he said:^[36]

“I believe that WorkCover was going to be covering any hip operation that I would require and that until I spoke to them in December and she said to me that we want to get the assessment done and you’ll get paid out for it and I asked her, … later on in life when I’ve got problems is WorkCover going to cover that and that was when she said, “No”.”  (my emphasis.)

He further said:^[37]

“ … when I was told they wouldn’t in December and I was still – I was suffering pain when walking and exercising and that, that was when I thought it must – I should look into this because I didn’t want to be the one that’s, you know, going to be stuck with the bill of having to pay for a hip – hip replacement.”  (my emphasis.)

As he said, it all came to a head in December 2008 because he was told WorkCover wasn’t going to cover him if he needed a hip replacement in the future.^[38]

26. [26]
    As a consequence, on 10 December 2008 Mr Green sent Dr Hayes an email asking about the effect of the injury on his riding career, and specifically asking if he would require a hip replacement. This email included the following:^[39]

“You told me that there was a lot of arthritis and deterioration in my hip and as time goes on I will have ongoing problems which would probably affect my riding and length of time that I can continue to ride for.  Could you please tell me what my future holds as a jockey and how this is going to effect me, will I eventually need a hip replacement.”

27. [27]
    On either this date or 12 December 2008 he contacted his current solicitors seeking advice about a potential legal action arising out of the fall.^[40]

28. [28]
    Dr Hayes replied by a letter dated 11 December 2008 and emailed the following day stating that Mr Green’s hip “will eventually be the main factor in causing [his] retirement as a jockey.” Although he could not say exactly when this would occur, he stated that in the longer term a hip replacement would be the only option for him.^[41]

29. [29]
    Mr Green says it was when he received this email on 12 December 2008 that he first received a copy of the letter dated 7 February 2008.^[42]

30. [30]
    Mr Green deposed in his affidavit that, subject to health and injuries, he had intended to continue pursuing his career as a professional jockey as long as it was physically and financially viable to do so. Although he had on occasions worked as a brickie’s labourer and an unskilled worker in a meatworks, he had no qualifications other than his skill as a jockey. He would have liked to have ridden well into his sixties if possible. His evidence was that he considered he had not had any other injuries, apart from the hip injury, that may have been likely to shorten his riding career.^[43]

31. [31]
    He also deposed that:^[44]

“From the time that I had initially consulted with Dr Hayes on 4 June 2007 until some time after I resumed race riding on 9 February 2008, I had formed the view that my hip injury would fully recover and that I would be pain free.  I therefore did not turn my mind to the issue of a potential claim against Jason Taylor, who is a well known acquaintance of mine and with whom I have formed a good working relationship in the past.  I was of the view that my riding career would continue in a similar fashion to how it had prior to the date of the fall.  I did not think therefore that any claim that I may have made against Jason Taylor would have been of any significant financial benefit to me and indeed it may have cost me money if I had proceeded on the information known to me at the time that I returned to race riding on 9 February 2008.”

32. [32]
    Under cross-examination he said he was not really aware of “the whole legal side of things.”^[45]  He knew there were time limits but he wasn’t exactly sure what these were.^[46]  However, he said he did not have any intention of suing anybody until he was advised in December 2008 that WorkCover would not cover him for a hip replacement.^[47]

33. [33]
    He also gave evidence he would ride for as long as his body allowed him to. However, currently his hip was such that he did not think he would be able to continue beyond another three years, by which time he would be 45 years old.^[48]  His evidence was that even if he had been able to work until close to the age of 60 years, he would not like to have retired completely but to have been his own boss in some other industry.  He could possibly have been a horse trainer, but it would never have entered his mind to return to the meatworks.^[49]

34. [34]
    Dr Hayes, in responding without objection to a number of leading questions in re-examination, accepted in summary the effect of his evidence was that the aggravation of the pre-existing degeneration in Mr Green’s hip caused by the fall meant his race career would be over within 5 to 10 years, whereas without the fall it would be over within 10 to 20 years.^[50]  I understand the reference to degeneration to be a reference to his pre-existing osteoarthritis.  This re-examination clarified Dr Hayes’ evidence under cross-examination that the fall had brought forward by half the symptoms Mr Green would have suffered.^[51]

35. [35]
    In Dr Hayes’ opinion it is probable that Mr Green’s ability to ride would be impeded to the extent he couldn’t ride at all, and this would happen somewhere between 5 and 10 years.^[52]  In giving this evidence he said:^[53]

“ … it’s just not good to explain that in that sort of detail and a pessimistic way in a doctor-patient relationship, if you understand what I mean.”

36. [36]
    Dr Hayes accepted that Mr Green’s evidence of thinking he could only go on for another 3 years would be reasonable. He said that although the rate at which this occurs is unpredictable, it wouldn’t surprise him.^[54]

37. [37]
    He confirmed Mr Green is a future candidate for a hip replacement. Although ideally this type of surgery is done at the age of 65 years or above, because of the life span of the artificial hip, he anticipated in the case of Mr Green this would have to happen at sometime during his fifties. His estimate was at 55 years. Although this surgery would relieve the pain, Mr Green would be precluded from heavy work.^[55]

38. [38]
    Dr Hayes considered that if a hip replacement is done at 55 years, a second replacement would normally be required; and the cost of one hip replacement would normally be about $15,000 - $20,000.^[56]

     History

39. [39]
    On 8 January 2009 Mr Taylor was served with a sworn part 1 notice of claim completed on that date pursuant to s 9 of the PIPA.  In paragraph 53 of the part 2 notice of claim, which was also completed on that date, Mr Green’s disabilities from the personal injury were described as:

“Restricted movement and flexibility in hip and pain and discomfort.”

Paragraph 32 stated that his gross earnings were $80,000 to $100,000 per year and his net earnings were $40,000 to $80,000 per year.

40. [40]
    On 3 February 2009 Mr Taylor’s solicitors gave Mr Green’s solicitors notice that he was not satisfied this notice of claim complied with the requirements of the PIPA and requested further information and documents.  Mr Green’s solicitors responded in writing on 4 February 2009 addressing these issues and requesting confirmation that the notice of claim was compliant with the PIPA.

41. [41]
    On 6 February 2009 Mr Green filed an originating application seeking leave pursuant to s 43 of the PIPA to bring proceedings against Mr Taylor in respect of the personal injuries sustained on 19 August 2005 as a result of Mr Taylor’s negligence and for breach of duty, despite non-compliance with Chapter 2, Part 1 of that Act; and an extension of the limitation period pursuant to s 31 of the Limitation Act.

42. [42]
    On 10 February 2009 I ordered by consent that pursuant to s 43 of the PIPA, Mr Green be granted leave to start a proceeding against Mr Taylor based on a liability for such personal injuries, without prejudice to Mr Taylor’s right to plead and rely upon the provisions of the Limitation Act as a bar to the claim for damages.  I also ordered the application for extension of the limitation period be adjourned to a date to be fixed; and the proceedings be stayed until the parties complied with the compulsory pre-court procedures of the PIPA.

43. [43]
    The claim and statement of claim were then filed on 11 February 2009. The claim is for damages in the total sum of $170,000, of which a global sum of $100,000 is particularised as loss of future earnings, $30,000 is particularised as the cost of a total hip replacement, and $10,000 is particularised as the cost of physiotherapy and ongoing care during his recuperation from this surgery. It alleges that his net earnings were then in excess of $1,000 per week.

44. [44]
    On 3 March 2009 Mr Taylor’s solicitors advised Mr Green’s solicitors that in their view the notice of claim was not a complying notice of claim because Mr Green had failed to adequately explain the reasons for the delay between the date of the incident (19 August 2005) and date the notice of claim was served (8 January 2009). It was also observed that the claim was statute barred. Compliance was not waived.

45. [45]
    On 13 May 2009 Mr Green’s solicitors requested confirmation from Mr Taylor’s solicitors that compliance was not waived, and that it would be necessary for them to proceed with the present application.

46. [46]
    On 25 November 2009 the present application was filed. It was served on Mr Taylor’s solicitors on 3 December 2009. On 20 January 2010 they advised of opposition to all aspects of the application.

47. [47]
    The application was heard before me on 25 January 2010. The oral evidence of Mr Green and Dr Hayes was given on this date. On this date, I renewed the claim and statement of claim under r 24(2) of the Uniform Civil Procedure Rules 1999 (Qld) for a period of 12 months from and including 11 February 2010.  This order was not opposed on behalf of Mr Taylor.

Application for extension of time under the Limitation Act

Relevant provisions of the Limitation Act

48. [48]
    Where as in this case an action has been commenced for damages in respect of personal injury for negligence and/or breach of duty, s 31(2) of the Limitation Act empowers the court to extend the period of limitation for the action where, it appears to the court:

“(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;”

49. [49]
    The period of limitation may be extended up to one year after the date on which the material fact of a decisive character first came within the applicant’s means of knowledge.^[57]

50. [50]
    In Greenhalgh v Bacas Training Limited & Ors McGill SC DCJ sets out what must be determined in an application of this nature as follows:

“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.”^[58]

51. [51]
    Section 30(1)(a)(iv) of the Limitation Act includes as material facts:

“the nature and extent of the personal injury so caused.”

52. [52]
    Section 30(1)(b) of this Act makes provision in relation to what is “a material fact of a decisive character” in the following terms:

“material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—

1. (i)
   that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

2. (ii)
   that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action.”^[59]

53. [53]
    Section 30(1)(c) of this Act makes provision for when a “fact is not within the means of knowledge of a person” in the following terms:

“a fact is not within the means of knowledge of a person at a particular time if, but only if –

1. (a)
   the person does not know the fact at that time; and

2. (b)
   so far as the fact is able to be found out by the person – the person has taken all reasonable steps to find out the fact before that time.”

54. [54]
    The effect of these provisions as paraphrased by McGill SC DCJ in Greenhalgh v Bacas Training Limited & Ors is:^[60]

“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. 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.

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. 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.”

55. [55]
    His Honour also held that:^[61]

“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.”

Submissions on behalf of Mr Green^[62]

56. [56]
    In his outline of submissions on behalf of Mr Green, Mr Kelly says that the application for an extension of the limitation period to and including 11 February 2009, is on the basis that Mr Green did not become aware of a material fact of a decisive character within the meaning of s 31(2) of the Limitation Act until either his consultation with Dr Hayes on 12 May 2008 or receipt by email of Dr Hayes’ letter on 12 December 2008.

57. [57]
    However, he based his oral submissions on the material fact being available on 12 May 2008.^[63]  He argues it was only on this occasion that the prospect of his obtaining an award for future economic loss crystallised, because this was the first time he was advised by Dr Hayes that his riding career might be curtailed because of his hip, and he might require hip replacement surgery at some stage in the future.

58. [58]
    He refers to Watters v Queensland Rail^[64] for the proposition that future economic loss that has not previously been considered is a material fact for the purpose of the legislation.

59. [59]
    Reference is made to the period of approximately two years following the fall, when Mr Green continued to ride, although in pain, until the surgery on 2 August 2007. Mr Green was then on WorkCover during his recovery period. However, because this coincided with the time when there was little horse racing in Queensland due to equine influenza,^[65] prior to the 12 May 2008 advice, any action by Mr Green would have been limited to a claim for general damages and care, with no claim for past economic loss.  In these circumstances it was submitted that had Mr Green not been faced with the prospect of deterioration of his symptoms he would not have had a viable claim, because it would amount to about $30,000, from which he would have been required to make WorkCover payments.^[66]  On the basis of the information provided by Dr Hayes the claim became one worth pursuing.

60. [60]
    It is submitted that Mr Green took reasonable steps to ascertain the facts. Mr Kelly argues he had taken reasonable steps with respect to the treatment of his symptoms up to his final consultation with Dr Hayes on 12 May 2008; and it would not have been reasonable for Mr Green to have undertaken any further inquiries given his surgery only took place in August 2007 and he did not return to riding until February 2008.

61. [61]
    Mr Kelly asserts that 12 May 2008 is significant because for practical purposes it falls within the 12 month period prior to the issue of proceedings on 11 February 2009, which is the date up to and including for which the extension of time is sought.

62. [62]
    He submits that I should exercise my discretion to extend the limitation period to the date of commencement of the proceeding on 11 February 2009. He argues in support of this that there is a good case on liability for Mr Green with a significant award of damages to be expected for future economic loss, based on his income. He also relies on there being no doubt that investigations were undertaken at the time of the incident resulting in the race fall because of the stewards inquiry, and the race video being available. On the basis of the availability of this information, he submits there should be no prejudice to Mr Taylor if an extension is granted.

Submissions on behalf of Mr Taylor^[67]

63. [63]
    There is no dispute on behalf of Mr Taylor that for the purposes of the application Mr Green has, apart from the expiration of the limitation period, a reasonable prospect of success on the issue of liability.

64. [64]
    It is also not disputed that medical opinion to the effect that a person’s future ability to work has been impaired would be a material fact.^[68]

65. [65]
    Mr Hubbard accepts in his oral submission for Mr Taylor that when he was given Dr Hayes’ opinion on 12 May 2008, Mr Green knew as much as he usefully could about his condition.^[69]

66. [66]
    In his written submissions, Mr Hubbard contended that this opinion which was given to Mr Green after what he described as “the critical date” was not a material fact of a decisive character, because in essence it was an opinion that the cause of the future impairment of his capacity to work as a professional jockey was a degenerative arthritic condition of his left hip which was caused, or partially caused by, 25 years of adopting a fixed position in the saddle. However, this was predicated on reading Dr Hayes’ medical reports, and Mr Hubbard accepts that as a result of the opinions given by Dr Hayes in his oral evidence, while he is not instructed to withdraw the submission, it may not trouble me as greatly as it might otherwise have done.^[70]  As he conceded, his submissions concerning Dr Hayes’ opinion clearly had to be altered.^[71]

67. [67]
    Mr Hubbard also accepted in these circumstances, 12 May 2008 seemed to be the critical date upon which Mr Green was told about the future impact.^[72]  His reasoning for this was:^[73]

“Because of the impact of having to refund a significant sum by way of workers compensation payments, slightly over $30,000 of which, I think, were entirely devoted to weekly payments in circumstances in which he wouldn’t receive a past award for loss of earning capacity of to anything like that amount because of the EI advice.

The reality is that he was well and truly in the hole or had he pursued a claim for damages it would have been financially disastrous for him.  He would have ended up – he couldn’t pay WorkCover any more than he actually received or would receive by way of damages but clearly with the cost ramifications were likely with very significant risk that he wouldn’t receive any award at all.

Based on the evidence of Dr Hayes he now has a claim for loss of earning capacity in the future.  It’s probably premature to form any conclusive view as a trial Judge, undoubtedly it will at some stage unless the matter was settled beforehand.  Perhaps with the benefit of the effluxion of time, further medical evidence and seeing how the plaintiff goes over a period of time.  You’re not in a position to prove that but clearly he has a claim for loss of earning capacity in the future which he might sustain with respect to riding horses sometime within the next perhaps five – you know, five to 10 years on the basis of what Dr Hayes said.” (my emphasis).

68. [68]
    This is consistent with the concession in the written submissions that absent a likelihood of any, or any substantial award for future loss of earning capacity, it would have been reasonable for Mr Green to consider it was not in his interests to institute legal proceedings against Mr Taylor. It was noted WorkCover would have a first charge over any damages awarded to him under s 207B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) for the payment of his medical expenses and weekly compensation payments.  Reference was made to Stephenson v State of Queensland^[74] where Chesterman J adopted a passage from Taggart v The Workers’ Compensation Board of Queensland^[75] in which Andrews SPJ said that it is:

“… valid to consider in determining what a reasonable man might do, viewed objectively, whether substantial parts of any sum recovered in a judgment would be refunded by a successful plaintiff … [who] is not required to adopt any sympathetic view towards the Workers’ Compensation board for example …”

69. [69]
    However, he maintains his written submission that in circumstances where Mr Green has not provided any assessment of a likely award for damages, or the cost of litigation, or the costs he would be entitled to recover pursuant to the PIPA, Dr Hayes’ opinion, whilst a material fact, is not of a decisive character because it has not been demonstrated that an award of damages based on the opinion would be of such a dimension that he ought to, in his own interest, pursue legal proceedings.

70. [70]
    Although Mr Green’s evidence of his earnings is not disputed for the purpose of the application,^[76] it is submitted that in the absence of further information from him it is still not necessarily a substantial case, having regard to requirements to repay WorkCover.  In support, Mr Hubbard also refers to the absence of detailed evidence about Mr Green’s future earning capacity from alternative work.

71. [71]
    Mr Hubbard also submits that it would have been reasonable for Mr Green to ask Dr Hayes (and perhaps unreasonable for him not to do so) what the future held for him as a jockey before the critical date. This supplements the written submission which states:^[77]

“ … a reasonable person in the applicant’s circumstances would have made the enquiry of Dr Hayes on 4 June 2007, or after the operation and before the critical date.  Had he done so, it is probable that he would have sought legal advice before the critical date.  Had he done so it is probable that a prudent solicitor would have served a PIPA NOC to protect his interests.”

Discussion

72. [72]
    As I have stated s 31(2) of the Limitation Act may be utilised where an action has already been instituted.^[78]  In this case, the action has been commenced out of time and the application under the section has been made subsequently.^[79]

73. [73]
    The limitation period fixed by s 11 of the Limitation Act expired on 19 August 2008.  The action was instituted in the District Court on 11 February 2009.

74. [74]
    Adopting the approach of Gummow, Hayne and Crennan JJ in State of Queensland v Stephenson^[80] the commencement of the last year preceding the expiration of the period of limitation for the action was 19 August 2007; until a date (“the relevant date”) occurring after 19 August 2007, a material fact of a decisive character must not have been within the knowledge of Mr Green; the court may then order an extension to expire on a date (“the expiry date”) being at the end of one year after the relevant date.

75. [75]
    But, in the events that happened, the expiry date could be no later than 11 February 2009. This was when the action was instituted, and it is this action which Mr Green seeks to keep on foot, so that in turn, “the relevant date” could be no later than 11 February 2008. Therefore, Mr Green has to show that until 11 February 2008 a material fact of a decisive character relating to the right of action was not within his means of knowledge.^[81]

76. [76]
    The conjunction of circumstances often attracts the description by Queensland Courts of “the relevant date” of 11 February 2008 as “the critical date”.^[82]  However what makes 11 February 2008 of critical importance, rather than any other date after 19 August 2007, is the date of institution of the action out of time, on 11 February 2009.  This narrowed the relevant or critical date, in a fashion that would not necessarily have obtained, for example, if the extension application had been made in advance of the institution of an action, so that the action was to commence within the extended period.^[83]

77. [77]
    Gummow, Hayne and Crennan JJ (with whom Kirby J agreed)^[84] preferred the interpretation of Davies JA in the Queensland Court of Appeal in Stephenson v State of Queensland^[85] that the question under s 31(2)(2) “is not when all material facts came within the means of knowledge of the applicant.  It is when all material facts of a decisive character relating to the right of action came within his means of knowledge”.^[86]

78. [78]
    As their Honours noted with approval^[87] Davies JA added:^[88]

“One cannot have the means of knowledge of material facts of a decisive character at a time when those material facts do not have that character.  If the correct question is as I have stated it then the answer is that it was after the critical date because the material facts did not acquire a decisive character until after that date.” (my emphasis).

79. [79]
    This is to interpret the critical phrase in s 31(2)(a), “a material fact of a decisive character relating to a right of action” as a composite term as argued on behalf of Stephenson and the other appellants in that case.^[89]

80. [80]
    Their Honours therefore concluded:^[90]

“The practical result of this construction is that an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a)) coincides with the circumstance that a reasonable person with the applicant’s knowledge would regard the facts as justifying and mandating that an action be brought in the applicant’s own interests (as in s 30(1)(b)).  If this conjunction of circumstances first occurs before commencement of the last year of the limitation period, no application for an extension can be brought; the application has the benefit of at least one year before the limitation period expires and is required to act within that time.  If the conjunction occurs after the commencement of that last year, the court is empowered, if the other criteria in s 31 are satisfied, to extend time for one year from the date of that conjunction of circumstances.”  (my emphasis).

81. [81]
    Applying this statutory construction to the case the subject of those appeals, their Honours said:^[91]

“ … if it be accepted that in each case a material fact did not assume its decisive character until after the critical date, then the applications for extension should have succeeded.”

82. [82]
    As the Queensland Court of Appeal said in Greenhalgh v Bacas Training Limited & Ors^[92] when upholding the decision of McGill SC DCJ, the period of limitation may be extended up to a year after the date on which the material fact of a decisive character came within his knowledge.^[93]

83. [83]
    In this case it is conceded on behalf of Mr Taylor that apart from the issue concerning the expiration of the limitation period, Mr Green has a reasonable prospect of success on the issue of liability, or to put this in terms of s 31(2)(b) there is evidence to establish the right of action apart from a defence founded on the expiration of the limitation period.

84. [84]
    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 before the action was instituted, i.e. after 11 February 2008, and whether as a matter of discretion the limitation period ought to be exercised. Both of these aspects are in contention.^[94]  Mr Green has the onus of satisfying the Court on these issues.

What was the material fact?

85. [85]
    As indicated Mr Hubbard does not dispute that medical opinion to the effect that a person’s future ability to work could be impaired is a material fact.

86. [86]
    This is consistent with the statement by Keane JA (with whose reasons Cullinane and Lyons JJ agreed) in Greenhalgh v Bacas Training Limited & Ors:^[95]

“It is settled by the decisions of this Court in Wood v Glaxo Australia Pty Ltd and Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd that the availability of evidence which establishes an aspect of a claimant’s case can itself be a material fact relating to a right of action.”

87. [87]
    It is also consistent with s 30(1)(a)(iv) of the Limitation Act including as material facts relating to a right of action, 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.^[96]

88. [88]
    Consequently Dr Hayes’ medical opinion on the nature and extent of Mr Green’s injury is a material fact for the purpose of s 31(2)(a).

89. [89]
    Dr Hayes gave this opinion on two occasions of which Mr Green was aware prior to instituting this action. The first was in the form of his letter dated 7 February 2008 which Mr Green says he did not receive until 12 December 2008. The second was the oral opinion he gave at the consultation on 12 May 2008.

90. [90]
    As I have observed in the outline of submissions on behalf of Mr Green, the application was based on the receipt of both opinions. However, Mr Kelly’s oral submissions are based on the material fact becoming available at the 12 May 2008 consultation. Mr Hubbard’s oral submission also proceeded on the basis that this was the critical date on which Mr Green knew as much as he could usefully know about his condition. Although he contends that whilst Dr Hayes’ opinion was a material fact, it is not of a decisive character.

91. [91]
    For reasons which will become apparent I consider that the material fact for the purpose of this case is Dr Hayes’ opinion given to Mr Green at the 12 May 2008 consultation. It is on this occasion that Mr Green says Dr Hayes told him for the first time that his riding career may be curtailed as the problem with his hip may eventually affect his ability to ride horses, and that he would require hip replacement surgery at some time in the future. This is consistent with Mr Green’s 10 December 2008 email to Dr Hayes which is set out at para [26] of this judgment. As I have said, Mr Hubbard accepted 12 May 2008 seemed to be the critical date upon which Mr Green was first told about the future impact of the injury.

Was the fact decisive?

92. [92]
    As set out at [54] of this judgment, whether this material fact is of a decisive character, in relation to quantum, depends on when it makes a difference between a situation where an action is worth bringing and a situation where it is not worth bringing;^[97] and is to be decided objectively by reference to how a reasonable person with Mr Green’s knowledge would respond in light of appropriate advice, not how it was reasonable for him to respond.^[98]

93. [93]
    In Pizer v Ansett Australia Limited^[99] Thomas J recognised in cases of the present kind, when the material fact concerns the nature and extent of personal injury, questions of degree are necessarily involved.^[100]  His Honour expressed the question as “whether the reasonable person … endowed with [the plaintiff’s] knowledge and having taken appropriate advice would have brought proceedings”.^[101]

94. [94]
    This approach is also supported by Wood v Glaxo Australia Pty Ltd^[102] where Macrossan CJ said:^[103]

“The body of evidence which a plaintiff collects, or … his assemblage of ‘material facts’, will only constitute a ‘decisive’ collection when an appropriately advised reasonable man in his position is possessed or would, if he had enquired in appropriate fashion, be possessed of what he would regard as reasonable and worthwhile litigation prospects.”

95. [95]
    As stated by Keane JA in Greenhalgh v Bacas Training & Ors, whether an action for damages is worthwhile is an assessment which must be made having regard to the expense and risks of litigation.^[104]

96. [96]
    In the present case, Mr Green continued to ride for a significant time after the injury. He obtained a medical certificate the day after the race fall stating that he was fit to ride horses on that day. After this, he continued to ride horses up to 6 days a week for a period of approximately two years until he underwent the surgical procedure by Dr Hayes. He did this despite losing mobility in his left hip, and having to “ride long” to avoid significant pain. He was a person who coped with pain as part of his occupation. However it was the loss of mobility in his hip which ultimately caused him to seek medical opinions, with the result that he was referred to Dr Hayes and underwent the surgery.

97. [97]
    Consistent with what Dr Hayes told him he was able to recommence trackwork in early January 2008 and race riding on 9 February 2008. His evidence was that there was no conversation with Dr Hayes about his future as a jockey before the 12 May 2008 consultation.

98. [98]
    He received workers’ compensation for the time he had taken off work. If he instituted an action against Mr Taylor he would have been required to make payments to WorkCover from any amount he would have been awarded. However because this coincided with a time when there was little horse racing in Queensland due to equine influenza, prior to the 12 May 2008 advice, any action by him would have been limited to a claim for general damages, and care, with no claim available for past economic loss. As Mr Green deposes in his affidavit:^[105]

“From the time that I had initially consulted Dr Hayes on 4 June 2007 until sometime after I resumed race riding on 9 February 2008, I had formed the view that my hip would fully recover and that I would be pain free … I was of the view that my riding career would continue in a similar fashion to how it had prior to the date of the fall.  I did not think therefore that any claim that I may have made against Jason Taylor would have been of any significant financial benefit to me and indeed it may have cost me money if I had proceeded on the information known to me at the time that I returned to race riding on 9 February 2008.”

I accept Mr Green’s evidence about this.  Having had the opportunity to observe him being cross-examined, I formed the view that he was a witness of credit.  He was prepared to make concessions such that he was aware it was possible to sue another jockey if that jockey’s negligence caused an injury and that there were time limits which applied to doing so.  However, he said he didn’t have any intention of suing anybody, and he never thought of it, Mr Taylor being a work partner of his.  He also said he was not really aware of the whole legal side of things, and wasn’t sure what the time limits were.^[106]  As Mr Hubbard recognised during submissions:^[107]

“Mr Green conceded he was – somewhat reluctantly, but he conceded to his credit, that he was aware that limitations apply to those sorts of prospective actions.”

99. [99]
    I therefore accept Mr Green’s evidence that he did not receive Dr Hayes letter of 7 February 2008 until 12 December 2008, and it was at the 12 May 2008 consultation, and in circumstances where his hip had not completely returned to the pain free state prior to the fall, that Dr Hayes told him for the first time that his riding career might be curtailed as the problem with his hip may eventually affect his ability to ride horses, and he would require hip replacement surgery at sometime in the future.

100. [100]
     Having cross-examined Dr Hayes, Mr Hubbard now accepts that the aggravation of the pre-existing degeneration in Mr Green’s hip caused by the fall on 19 August 2005 had accelerated the rate at which his race career would end. As I have stated, in these circumstances he accepts that 12 May 2008 seems to be the critical date on which Mr Green was told about the future impact of the injury, and based on the evidence he now has a claim for loss of earning capacity in the future, whereas previously because of the impact of having to refund the WorkCover payments it would have been reasonable for him to consider it was not in his interests to institute legal proceedings against Mr Taylor. As Mr Hubbard said in his oral submissions:

“The reality is that he was well and truly in a hole or had he pursued a claim for damages it would have been financially disastrous for him.”

101. [101]
     There are some similarities in the present case to the situation of the plaintiff in Greenhalgh v Bacas Training Limited & Ors in respect of whom McGill SC DCJ said:^[108]

“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.”

(my emphasis).

102. [102]
     In that case the plaintiff, a 20 year old apprentice mechanic, suffered injuries on 11 October 2001 when struck by a motor vehicle in the course of his employment.  He returned to light work five days later and to full work duties after one month.  His injury did not resolve completely.  When he was required to do work above shoulder level he continued to suffer pain in his right shoulder and scalpula area.  Although he aggravated the injury regularly, he did not want to change occupations and he accepted he would suffer aggravations of it from time to time.  Prior to a medical report on 21 June 2006 the advice received by him was equivocal so far as his future as a motor mechanic was concerned.  It was not until this report that his future as a mechanic was categorically said to be permanently at risk to the extent that work involving “lifting above shoulder level” was a requirement of that occupation.  As Keane JA said:^[109]

“Prior to this time, the plaintiff could not have proved that his determination to work around or through his discomfort would not ultimately be crowned with success.  Prior to 21 June 2006, Dr Van der Walt’s opinions and the opinion of Dr Olsen did not unequivocally support a case that the plaintiff’s occupation as a mechanic was ineluctably and permanently jeopardised by his injury.”

103. [103]
     His Honour also said:^[110]

“When an assessment of costs, risks and benefits should reasonably have led to a conclusion that an action was worthwhile must be determined having regard also to the plaintiff’s previous attempts to overcome any adverse economic consequences of his injuries.  These attempts had largely been encouraged by medical opinion; that the plaintiff persisted with these attempts in these circumstances can hardly be said to have been unreasonable.”

He found no error in the conclusion of McGill SC DCJ that the 21 June 2006 opinion was a material fact of a decisive character because it was open to regard this opinion as providing to the plaintiff for the first time, unequivocal evidence enabling him to prove a level of economic loss which would make an action for damages worthwhile.^[111]

104. [104]
     In coming to the same conclusion Lyons J added that she considered the evidence indicated the respondent believed he would be able to continue with his trade until he received the medical advice of 21 June 2006.

105. [105]
     Similarly to that applicant, Mr Green had received workers’ compensation which would have to be deducted from any award of damages received, so he had suffered no significant past economic loss. Although there had been ongoing symptoms, in the sense that his hip had not completely returned to a pain free state, he was coping with this, and he had not been told this situation would not continue.^[112]  Therefore, like Mr Greenhalgh, he believed he was able to continue in his trade until he received the unequivocal medical advice on 12 May 2008 that his riding career might be curtailed and he would require hip replacement surgery in the future.

106. [106]
     This is not affected by the information he received from the WorkCover claims officer, on a date he believes to be 29 January 2008 that WorkCover was awaiting confirmation from Dr Hayes that the injury was stable and stationary and permanent impairment would probably be assessed. As I have observed at para [16] of this judgment he was not specifically told that he had any permanent impairment. Further as McGill SC DCJ said about Mr Greenhalgh:^[113]

“That is not inconsistent with the existence of some permanent impairment, but rather an indication that the permanent impairment was not necessarily inconsistent with continuing work as a mechanic.”

Similarly a permanent impairment of some degree would not necessarily have been inconsistent with Mr Green continuing to work as a jockey.  And as Macrossan J said in Moriarty v Sunbeam Corporation Limited:^[114]

“In any list of injuries it may be possible to classify individual items as relatively more or less serious and extensive but the quality of “permanence” is not, in itself, enshrined as a touchstone in the statutory definitions of either “material facts” or “decisive” material facts in s 30.  Undue concentration upon the presence of the feature of permanence in an injury when deciding whether the statutory test has been satisfied may mislead rather than enlighten.”

107. [107]
     The position is also not affected by the 7 February 2008 letter from Dr Hayes. As indicated I accept Mr Green as a witness of credit. I therefore accept his evidence he did not receive this letter until 12 December 2008. In any event I consider that even if he had received it, it would not have lead to the conclusion his riding career might be curtailed because of the problem with his hip.

108. [108]
     This letter tells him that prior to the operation he had osteoarthritis which had partially been induced by his sustained riding postures over a long period. He was then told, the surgery could not reduce the arthritis “which is already present” and it is this arthritic process and associated pain which may worsen and impede his ability to ride. A reasonable person with this knowledge and appropriate advice would be entitled to interpret this to mean as Mr Hubbard had originally submitted, “it is Dr Hayes’ opinion that the cause of the future impairment of the applicant’s capacity to work as a professional jockey is a degenerative arthritic condition of the applicant’s left hip which was caused, or partially caused, by 25 years of adopting a fixed flexed position ‘in the saddle’”^[115] and therefore “the applicant’s belief that the condition which Dr Hayes predicts will terminate his riding career in 1-2 decades is caused by the subject accident is erroneous.”^[116]  As Mr Hubbard submitted to me following Dr Hayes’ evidence, this was a matter which the respondent responsibly needed to clarify with Dr Hayes, and it was only after cross-examination of him that the submission was altered.^[117]

109. [109]
     Notwithstanding this, Mr Hubbard contends that in the absence of information such as any assessment of a likely award of damages, the cost of litigation, the costs Mr Green would be entitled to recover pursuant to the PIPA or detailed evidence about his future earning capacity from alternative work, it is still not necessarily a substantial case, given his requirement to pay WorkCover.  Therefore, he submits it has not been demonstrated that an award of damages based on Dr Hayes’ opinion would be of such a dimension that Mr Green ought to, in his own interest, pursue legal proceedings.

110. [110]
     However, as stated at para [43] the claim is for damages in the total sum of $170,000, including a global sum of $100,000 for loss of future earnings, $30,000 as the cost of a total hip replacement, and $10,000 as the cost of physiotherapy and ongoing care during his recuperation from this surgery. This may have to be increased because of Dr Hayes’ evidence that he may be a candidate for a second hip replacement and the cost of a replacement would normally be about $15,000 - $20,000. Therefore, the cost of two hip replacements, particularly taking inflation into account, is likely to be at least $40,000. The total sum claimed is exclusive of a specific figure for the expenses paid by WorkCover which will have to be repaid.^[118]

111. [111]
     Although there is no detailed evidence about his future earning capacity from alternative work, Dr Hayes’ evidence is that hip replacement surgery will preclude him from heavy work. This would exclude him from previous occupations he has engaged in as a brickie’s labourer and a meat worker. He has no qualifications other than his skill as a jockey, which on the basis of Dr Hayes’ evidence may be cut short from a career which he had planned to continue until at least the age of 55 or 60, or well into his sixties if possible, to one which could end somewhere between 5 and 10 years, and as early as after 3 years, at the age of 45 years. In these circumstances the only seemingly realistic prospect for future work which he envisages is the possibility of becoming a horse trainer. It is reasonable to expect that he would experience a reduction in his income during the establishment period in a new career; and his earning capacity like that of a jockey, would vary depending on his degree of success.

112. [112]
     In these circumstances, it is reasonable to conclude that Dr Hayes’ opinion of 12 May 2008 provided Mr Green with unequivocal evidence enabling him to prove a level of economic loss which would make an action for damages worthwhile.  In other words it supports an action for future economic loss which had not been considered, such as to make the difference between an action which was previously not worth pursuing and one which is worth pursuing.

113. [113]
     Therefore I consider that a reasonable person in Mr Green’s position, knowing what he knew before 12 May 2008, and with appropriate advice on those facts, would not have regarded them as showing a reasonable prospect of success in obtaining an award of damages sufficient to justify the bringing of an action. However, the appropriate advice would be different with the addition of Dr Hayes’ 12 May 2008 medical opinion, which stated unequivocally that his riding career might be curtailed as the problem with his hip may eventually affect his ability to ride horses, and he would require hip replacement surgery at some time in the future. This is particularly so, when that opinion is clarified by his evidence that the aggravation of the pre-existing degeneration in the hip caused by the fall meant his race career would be over within 5 to 10 years, and it would be reasonable to think it could only continue for another 3 years, whereas without the fall it would have been over within 10 to 20 years. In these circumstances the existence of that medical opinion was a material fact of a decisive character.^[119]

114. [114]
     To put it in the language of the joint judgment of Gummow, Hayne and Crennan JJ in State of Queensland v Stephenson,^[120] 12 May 2008 was the date on which Mr Green’s knowledge of material facts coincided with the circumstance that a reasonable person with his knowledge would regard the facts as justifying and mandating that an action be brought in his own interests.

115. [115]
     As this conjunction of circumstances first occurred on 12 May 2008, the material fact did not assume its decisive character until after the critical date of 11 February 2008.

Means of Knowledge

116. [116]
     Accepting that the material fact did not assume its decisive character until after the critical date of 11 February 2008, before consideration can be given to whether as a matter of discretion the limitation period should be extended, Mr Green must also establish that this was not within his means of knowledge until after this date.^[121]

117. [117]
     As stated in para [55] of this judgment, McGill SC DCJ held in Greenhalgh v Bacas Training Limited & Ors,^[122] with reference to s 30(1)(c) of the Limitation Act, a fact is not within the means of knowledge of a person only if he does not know that fact, and he has taken all reasonable steps to find it out.  His Honour also said in accordance with his earlier decision in JCM v Moore^[123] that the matter is to be approached in the way expressed by Keane JA in NF v State of Queensland:^[124]

“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.”

As his Honour also observed,^[125] essentially the same point was made by the Court of Appeal in Healy v Femdale Pty Ltd where the court in a joint judgment said:^[126]

“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 do so.”

118. [118]
     In Pizer v Ansett Australia Limited Thomas JA also said that the answer to this question, in terms of the joint judgment:^[127]

“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 her employment without significant pain or disability fails the test merely because she fails to ask opinions from her doctor about the prospect of future disability of effect on her working capacity.”

As Thomas J also said the answer “depends upon the primary facts concerning the level of seriousness of the plaintiff’s symptoms and of the warning signs she undoubtedly had.”^[128]

119. [119]
     It was suggested in the submissions on behalf of Mr Taylor that it would have been reasonable for Mr Green to ask Dr Hayes (and perhaps unreasonable for him not to do so) what the future held for him as a jockey before the critical date. It was submitted a reasonable person in his position would have made an inquiry of Dr Hayes on 4 June 2007, or after the operation and before the critical date. However while the test is an objective one, what matters is whether it was reasonable for the applicant to have taken such additional steps.^[129]

120. [120]
     Mr Green’s evidence was that he considered he had not had any other injuries, apart from the hip injury, that may have been likely to shorten his career. He was able to cope with the pain associated with the injury in order to continue his riding career, as demonstrated by his ability to continue riding from the day after the fall until the surgery approximately 2 years later, despite having to adjust his riding position due to the loss of mobility of his hip. And as he deposed in his affidavit:^[130]

“From the time I had initially consulted Dr Hayes on 4 June 2007 until some time after I resumed race riding on 9 February 2008, I had formed the view that my hip injury would fully recover and that I would be pain free.”

As he also said during cross examination, there was to be a 6 month healing process and he wasn’t told the injury would affect him later on.^[131]   In particular he testified:^[132]

“I was lead to believe that … once that was finished, I’d return to work and … things would be normal because the pain would be gone.  I was no longer going to be working with pain.”

121. [121]
     This is consistent with Dr Hayes’ evidence which is contained in his contemporaneous correspondence to Dr Saunders and WorkCover. As set out at para [13] of this judgment, he advised WorkCover on 6 December 2007 that he anticipated Mr Green would return to his original duties, as he subsequently did, in February 2008.

122. [122]
     Mr Green testified that at the 17 August 2007 consultation there was no conversation about his future as a jockey, and:^[133]

“… at no stage, like, my thought’s didn’t go to that.  You know, I was just thinking that this injury has been fixed now.  I’m recovering and when it’s over – when I get back to work, there’s no – I won’t have any pain.”

123. [123]
     Dr Hayes’ oral evidence was not inconsistent with this. He could not specifically recall to what extent he discussed with Mr Green, prior to the operation, the success of the surgery from a long-term prognostic point of view.^[134]  As I have said I accept Mr Green as a witness of credit.  And as Dr Hayes said, with reference to the probability his riding career would end somewhere between 5 and 10 years:^[135]

“… it’s not good to explain that in that sort of detail and or pessimistic way in a doctor-patient relationship, if you understand what I mean.”

124. [124]
     On the occasion of Mr Green’s consultation with Dr Hayes on 6 December 2007, Dr Hayes did not rearrange to see him.  Given that following this consultation he was able to return to riding in February 2008, consistent with Dr Hayes’ prognosis, it was reasonable for Mr Green to believe that his hip would fully recover and it would be pain free.

125. [125]
     In my view, it was reasonable for Mr Green to maintain this view until the consultation on 12 May 2008. Although there had been ongoing symptoms in the sense that his hip had not completely returned to a pain free state, he was coping with this and he had not been told that this situation would not continue. As he said, he was back riding, getting a lot of rides and feeling on the way to recovery.

126. [126]
     The consultation on 12 May 2008 confirmed Mr Green’s view that the problem in his leg which affected him when riding was muscular and would strengthen up.^[136]  Eventually it did so, and the problem was gone.

127. [127]
     Although it was at this consultation that Dr Hayes told him for the first time his riding career may be curtailed due to his hip problem, in circumstances where the actual concern for which he consulted Dr Hayes would not in itself have this effect, it was reasonable for him not to have sought a medical opinion about his future as a jockey before this.

128. [128]
     Consistent with what I have said above this position is not affected by the information he received from the WorkCover claims officer on 29 January 2008 or the 7 February 2008 letter.

129. [129]
     While he was told by the claims office on 29 January 2008 that permanent impairment would probably be assessed by Dr Hayes, he was not specifically told he had any permanent impairment, and impairment to some degree would not necessarily be inconsistent with him continuing to work as a jockey.

130. [130]
     Although this caused him to contact Dr Hayes’ rooms to find out if an assessment had been done and the nature of that assessment, he was informed there was no need to see Dr Hayes. It was reasonable for him to regard this as confirmation of the view that his hip would fully recover and it would be pain free, particularly as this was at a time when his return to race riding was on track, consistent with the medical advice he had received from Dr Hayes to that date.

131. [131]
     The fact the 7 February 2008 letter arrived at his home and was not received and read by him would not have altered this situation, given that this was at about the time he returned to race riding. It was reasonable for him not to follow this up, given he was lead to believe Dr Hayes’ report would be sent to WorkCover,^[137] and there was no evidence he was subsequently contacted by WorkCover after the report had been sent.  Further, as I have said, not only was this letter not received but it was reasonable to interpret it as referring to the pre-existing degenerative arthritic condition as being the cause of Mr Green’s future impairment in working as a professional jockey, and not the injury resulting from the fall.

132. [132]
     In these circumstances it was reasonable for Mr Green to believe that notwithstanding the injury resulting from the fall he would be able to continue working in his chosen career, albeit with some discomfort and pain which he was able to manage. It was reasonable for him to believe this on the basis of his consultations with Dr Hayes until 12 May 2008.

133. [133]
     To adapt the language of McGill SC DCJ Greenhalgh v Bacas Trading Limited & Ors^[138] to the circumstances of this case, overall, it does not seem to me that there was anything revealed in this history which indicated it was reasonable for Mr Green to have undertaken more extensive inquiries, in light of what he had been experiencing and the advice he had been given, in particular the advice of Dr Hayes.  It does suggest that in continuing to work as a jockey, there would likely be flare ups of pain from time to time, but it does not indicate, or provide any basis on which Mr Green would be unable to work as a jockey in the future, or that there was a significant risk of that, as a result of the injury caused by the fall.  Essentially, he was coping, and he had never been told that the situation could not continue.

134. [134]
     The position is different from the plaintiff in Pizer v Ansett Australia Limited,^[139] whose application to extend time was refused by the chamber judge whose decision was upheld in circumstances, of which Thomas JA said at [21]:

“The level of pain, its persistence and recurrence following performance of ordinary duties at work and the continuity of need for ongoing physiotherapy, all over a period spanning several years, suggest that it would have been obvious that this plaintiff had a viable action for very significant pain and suffering and also more than trivial warnings of potentially serious economic loss.”

Therefore, I consider it was not reasonable for Mr Green to have undertaken more extensive investigation than he did, and accordingly the material fact of a decisive nature was not within his means of knowledge prior to 12 May 2008, and therefore not until after 11 February 2008.

The Discretion

135. [135]
     This conclusion does not mean Mr Green will necessarily secure an order for extension of the period of limitation for the action. He still must justify the exercise of the discretion in favour of the order. This is because the making of the order remains dependent on him demonstrating that the justice of the case requires the discretion to be exercised favourably. These observations were made by Kirby J in State of Queensland v Stephenson^[140] with reference to Brisbane South Regional Health Authority v Taylor^[141] where McHugh J said:^[142]

“To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action.  This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent.  But the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.” (my emphasis).

As Kirby J said, it is at the point of determining whether the justice of the case requires the discretion to be exercised favourably, that these concerns may be given weight.^[143]

136. [136]
     In the present case, Mr Hubbard’s submissions on behalf of Mr Taylor are specifically directed to the exercise of the discretion as to whether to authorise Mr Green under s 18(1)(c)(ii) of the PIPA to proceed further with the claim despite his failure to give a complying part 1 notice of claim.  These submissions are set out in relation to my consideration of that issue at paras [158] to [166] of this judgment.  I will also take them into account in determining whether the discretion should be exercised to extend time under s 31(2) of the Limitation Act.  I have previously set out Mr Kelly’s submissions in support of doing so at para [62].

137. [137]
     Mr Hubbard’s submissions are based on Mr Green’s failure to seek legal advice and give notice, even after 12 May 2008, the date on which I have found his knowledge of material facts coincided with the circumstances that a reasonable man armed with this knowledge would regard the facts as justifying and mandating that an action be brought in his own interests. Until his consultation with Dr Hayes on this date it was reasonable to believe he would be able to continue in his chosen career. However, after he was told for the first time on this date that his career may be curtailed due to his hip problem, it is reasonable to expect he would have undertaken a more extensive investigation, including seeking legal advice, to protect his personal interests.

138. [138]
     He did not do so, despite the fact the limitation period to institute an action in respect of the incident which caused the injury did not expire for approximately another three months, on 19 August 2008.

139. [139]
     However, I disagree with Mr Hubbard’s submissions that he did not give an explanation or a reasonable explanation as to why he did not contact a solicitor for another seven months, with the consequence that the notice was not served until 8 January 2009.^[144]

140. [140]
     Mr Green clearly gave an explanation during the following part of the cross-examination about his response to Dr Hayes’ advice on 12 May 2008.^[145]

“ … Did Dr Hayes tell you anything about your future when you saw him on the 12^th of May 2008, that’s future as a jockey?-- He said – he didn’t really say too much.  He said to me, “Eventually you’re going to need a hip replacement” and, you know, like my – your career could be cut short.

Well, were you concerned about -----?-- Well, at the -----

----- your future when he told you that?-- At the time I didn’t sort of think too much more about it.  I was back riding, feeling, you know, like on the way up to recovery, getting a lot of rides again, didn’t think too much about it until later in the year when it was starting to effect me again and that was around December when I had to contact the WorkCover and then I spoke to the solicitors.

[Mr Hubbard then confirmed with Mr Green, the information given to him by Dr Hayes on that occasion.]

So in essence in that context, that information, would you agree with me, is extremely significant, the prediction with respect to the future?-- I guess so.  Like I said, at the time things were healing, he’d done the operation and said everything had gone well -----

Mmm?----- and I didn’t think any more of it.

I suggest to you that – well, I ask you this, why didn’t you consult a solicitor for advice with respect to possible legal proceedings or perhaps what was going on with WorkCover or both, when Dr Hayes told you that your riding career could be curtailed as a result of the hip replacement surgery in the future?-- I didn’t think any more of it, I didn’t think I needed to.

You’re aware -----?-- I believe that WorkCover was going to be covering any hip operation that I would require and that until I spoke to them in December and she said to me that we want to get the assessment done and you’ll be paid out for it and I asked her, well, you know, like later on in life when I’ve got problems, is WorkCover going to cover that and that was when she said, ‘No’.

Well, you’re aware at the time that the – it was possible to sue another jockey if that jockey’s negligence caused an injury, were you not?-- I was, but I never thought of it, he’s a work partner of mine, you know.” (my emphasis).

He then said, as I have previously noted, that while he knew there were time limits he wasn’t exactly sure what they were.  However he emphasised, “I didn’t have any intention of suing anybody”.^[146]  Mr Green then explained:^[147]

“I was to believe that WorkCover would cover any problems in the future that I was going to have with my hip and when I was told that they wouldn’t in December and I was still – I was suffering pain when walking and exercising and that, that was when I thought it must – I should look into this because I didn’t want to be the one that’s, you know, going to be stuck with the bill of having to pay for a hip – hip replacement.” (my emphasis).

He said this all came to a head in December 2008, and what was different from the information given on 12 May 2008, was:^[148]

“Well, I was told that WorkCover weren’t going to cover me for – if I needed a hip replacement in the future.”

141. [141]
     Although it would have been prudent for Mr Green to have made more inquiries from Dr Hayes as to his future, and to have sought legal advice about his options, he nonetheless gave an explanation which I consider to be reasonable as to why he did not do so.

142. [142]
     Dr Hayes had given him the advice on 12 May 2008 that his riding career may be curtailed due to his hip problems and he would require a hip replacement at some time in the future, in the context of otherwise positive advice which confirmed his own thinking that his current problem was muscular and would strengthen up in time. Further Dr Hayes’ advice was in general terms, consistent with his evidence that it is not good in a doctor-patient relationship to explain in detail the probability as to the period of years a patient’s riding career would be curtailed. In fact there is no evidence that Dr Hayes made a specific prediction at this time. On the evidence, the first prediction Mr Green would have received was on 12 December 2008 when he received the 7 February letter for the first time; and this was an opinion that the likely worsening of the arthritic process and the consequence that his riding ability may be impeded, would take place over the next 10-20 years. The upper end of the range, which could not be given with certainty, would take him towards the proposed end of a riding career which he had planned until the age of 55 or 60, or well into his sixties, if possible.

143. [143]
     Further, the 12 May 2008 advice was given in circumstances where his riding career was going well.

144. [144]
     He was also reluctant to consider suing Mr Taylor who was a work partner, and whom he said, “is a well known acquaintance of mine and with whom I have formed a good working relationship in the past”.^[149]

145. [145]
     Against this background, his explanation as to why he did not think any more about what Dr Hayes had told him, is reasonable.

146. [146]
     His explanation is also reasonable that it was the advice from WorkCover, that it would not pay the cost of a hip replacement operation in the future, which made the difference because he had previously believed it would cover this cost. It was as a consequence of this he contacted Dr Hayes, with the result that on 12 December 2008 he received and read the 7 February letter for the first time, together with the advice that his hip would eventually be the main factor causing his retirement as a jockey. It was on this date he contacted his current solicitors seeking advice about a potential legal action arising out of the fall. The part 1 notice was served, 27 days later.

147. [147]
     In addition to this explanation it is relevant to take into account the concession on behalf of Mr Taylor that, apart from the expiration of the limitation period, Mr Green has a reasonable prospect of success on the issue of liability. Further, as I have found, Dr Hayes’ opinion provides unequivocal evidence enabling Mr Green to prove a level of economic loss which makes an action for damages worthwhile.^[150]

148. [148]
     In conjunction with the justice of Mr Green’s claim, this is not a case where there is evidence of Mr Taylor being unable to fairly defend himself, or being otherwise prejudiced in fact. As Mr Kelly submits, having regard to the holding of a steward’s inquiry and the race video being available, there should be no such prejudice. Although, being unable to exclude some as yet unidentified prejudice, Mr Hubbard does not contend Mr Taylor had suffered any specific prejudice as to liability and quantum as a consequence of the delay. This is important because the evidential onus is on Mr Taylor in relation to prejudice. It is not a matter for Mr Green to prove an absence of prejudice, although he does carry the ultimate onus of showing the discretion should be exercised.^[151]  There is no basis for a conclusion that a fair trial could not be held.

Conclusion

149. [149]
     In all the circumstances I exercise my discretion to extend the limitation period under s 31(2) of the Limitation Act for Mr Green to institute proceedings against Mr Taylor in respect of the injury allegedly sustained by him on 19 August 2005 up to and including 11 February 2009.

Applications under the PIPA

Relevant provisions of the PIPA

150. [150]
     Section 9(1) of the PIPA provides:

“Before starting a proceeding in a court based on a claim, a claimant must give written notice of the claim, in the approved form, to the person against whom the proceeding is proposed to be stated.”

The approved form is in two parts, part 1 and part 2 (s 9(1A)).  Section 9(2) provides that the notice must contain the information required by regulation, and Regulation 3 of the Personal Injuries Proceedings Regulations 2002 (Qld) extensively provides for required information.  Section 9(3) provides that the notice must be given within the period ending on the earlier of either the day nine months after the day the incident giving rise to the injury happened, (or if symptoms are not immediately apparent, the first appearance of symptoms of the injury (s 9(3)(a)), or else (s 9(3)(b)) the day one month after the day the claimant first consulted a lawyer about the possibility of seeking damages for the personal injury and the person against whom the proceeding was proposed to be started was identified.  Section 9(5) provides that if the notice is not given within the period provided under sub-section (3), the obligation to give the notice continues and a reasonable excuse for the delay must be given in the notice, or by a separate notice, to the person against whom the proceeding is proposed to be started.^[152]

151. [151]
     Section 18 of the PIPA provides:

“(1) A claimant’s failure to give a complying part 1 notice of claim prevents the claimant from proceeding further with the claim unless-

1. (a)
   the respondent to whom part 1 of a notice of a claim was purportedly given –

1. (i)
   has stated that the respondent is satisfied part 1 of the notice has been given as required or the claimant has taken reasonable action to remedy the non-compliance; or

2. (ii)
   is conclusively presumed to be satisfied the notice is a complying part 1 notice of claim under section 13; or

2. (b)
   the respondent has waived compliance with the requirement; or

3. (c)
   the court, on application by the claimant-

1. (i)
   declares that the claimant has remedied the non-compliance; or

2. (ii)
   authorises the claimant to proceed further with the claim despite the non-compliance.

3. (2)
   An order of the court under subsection (1)(c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant’s failure to comply with the requirement.” (my emphasis).

152. [152]
     The authorisation for Mr Green to proceed further with the claim in respect of this incident despite his failure to give a complying part 1 notice of claim is sought under s 18(1)(c)(ii).

Submissions on behalf of Mr Green^[153]

153. [153]
     Mr Kelly’s oral submissions addressed why this discretion should be exercised. He focused on the basis advanced on behalf of Mr Taylor for non-compliance, being the failure to provide a reason for the delay in giving a complying notice. It is submitted the delay was obvious and reasonable, as deposed to by Mr Green at para [16] of his affidavit, which is set out in full at para [31] of this judgment.

154. [154]
     Emphasis was also placed on Mr Green not finding out until December 2008 that WorkCover would not cover any hip replacement operation he had in the future; and it was on being told this he sought legal advice about pursuing a potential legal action arising out of the race fall.

155. [155]
     In any event he submits that s 18 of the PIPA does not require such an explanation to be given.  The judgment of Jerrard JA in Gillam v State of Queensland & Ors^[154] is relied on to support this proposition.

156. [156]
     Reliance is also placed on Cousins v Mt Isa Mines Ltd^[155] for the proposition that an application should only be refused if it is shown the respondent will suffer significant prejudice.

157. [157]
     It is submitted that while a deliberate delay and refusal to provide an excuse with knowledge of the requirements of the PIPA may justify refusal of leave under          s 18(1)(c)(ii),  Mr Green’s evidence was that although he thought there were time limits, he did not know what these were.

Submissions on behalf of Mr Taylor^[156]

158. [158]
     Mr Hubbard refers to the part 1 notice of claim being served on 8 January 2009, despite the requirement of s 9 of the PIPA for it to have been given to Mr Taylor on or before 19 May 2006, unless a reasonable excuse for the delay is provided, as required under s 9(5).

159. [159]
     He submits that Mr Green has provided no explanation to Mr Taylor, or to the court for his failure to give the notice within the required period and, more significantly, has not explained his failure to do so between early 2007 and 8 January 2009, despite the significant treatment which he obtained from Dr Saunders and the operative treatment on 2 August 2007. He asserted Mr Green had also not explained the failure to provide a notice after the consultation with Dr Hayes on 12 May 2008, by which time he knew he had sustained an injury which was sufficiently serious to require operative treatment, he believed he would suffer adverse financial consequences in the future, and would eventually require a hip replacement. It is emphasised that the reports he received from Dr Hayes in December 2008 did no more than put in writing what he had been told by him in May 2008, at which point he knew as much as he usefully could about his condition.

160. [160]
     In these circumstances it is submitted that if Dr Hayes’ 12 May 2008 opinion was a material fact of a decisive character (as I have now found), Mr Green should at the very latest have given the notice as soon as practicable thereafter. Notwithstanding this, he failed to do so before the expiration of the statutory limitation period for instituting an action, which was 19 August 2008. It is submitted that there is no way to gloss over this, and the failure appears to be no more than a matter of conscious choice or an inexplicable failure to consult solicitors.

161. [161]
     Mr Hubbard submits that in circumstances where Mr Green conceded he was aware that limitations apply to these sorts of actions, although he may have not have known the intricacies of them, acting reasonably he should have sought this legal advice to protect his interests. If he had done so the notice would have been served within the limitation period.

162. [162]
     It is asserted that it is probable Mr Green has not provided an excuse for the delay because in the context of the PIPA there is no reasonable excuse.  With reference to the judgment of Jerrard JA in Gillam v State of Queensland & Ors^[157] it is submitted that existence of a reasonable excuse for delay is a relevant factor; therefore presumably absence of such an excuse is also a relevant factor.

163. [163]
     Reference is also made to Haskins v Gold Coast City Council & Anor^[158] where Robin QC DCJ dismissed an application under s 18(1)(c) of the PIPA, and in doing so said, despite the wide discretion which the court has under that section, “The expiry of the limitation period, in the particular circumstances, makes a very great difference.”

164. [164]
     It is also submitted that in accordance with the decision of Dutney J in Gillam v State of Queensland & Ors^[159] the granting of leave to institute proceedings pursuant to s 43 of the PIPA does not preclude the necessity for the applicant to seek leave pursuant to s 18.

165. [165]
     In conclusion it is submitted the applicant’s delay in providing a part 1 notice was so inordinate that the application under s 18(1)(c)(ii) should be dismissed.

166. [166]
     In making this submission, Mr Hubbard does not contend that Mr Taylor has suffered any specific prejudice as to liability or quantum as a consequence of the delay. Although he does not exclude the possibility of some, as yet unidentified, prejudice. He also makes reference to the decision at first instance in Cousins v Mount Isa Mines Ltd^[160] where a similar application was refused in the context of a notice given two years after an accident, despite there being no significant prejudice or contention the applicant did not have a good cause of action.  However, an appeal was allowed against this decision.^[161]

Discussion

167. [167]
     In this case I have previously ordered by consent that pursuant to s 43 of the PIPA, Mr Green be granted leave to start a proceeding against Mr Taylor based on a liability for personal injuries sustained on 19 August 2005.  This was without prejudice to Mr Taylor’s right to plead and rely upon the provisions of the Limitation Act as a bar to the claim of damages.  I also ordered the proceedings be stayed until the parties complied with the compulsory pre-court proceedings of the PIPA.

168. [168]
     Having ordered the time limit for Mr Green to initiate proceedings as against the respondent be extended to and including the date on which the proceedings were started against Mr Taylor, it falls to me to decide whether to authorise Mr Green to proceed further with this claim, despite his admitted failure to give a complying part 1 notice of claim.

169. [169]
     My granting of leave under s 43 of the PIPA in no way pre-empts my consideration of this application under s 18(1)(c)(ii) to excuse non-compliance with the requirement to provide a reasonable explanation for delay.^[162]

170. [170]
     This issue arises because on 3 March 2009 Mr Taylor’s solicitors advised Mr Green’s solicitors that in their view the part 1 notice of claim was not a complying notice of claim because Mr Green failed to adequately explain the reasons for the delay between the date of the incident (19 August 2005) and the date the notice of claim was served (8 January 2009). As indicated Mr Hubbard relies upon this lack of an explanation in support of his argument that this application be dismissed.

171. [171]
     It is for Mr Green to persuade the court that he should be authorised to proceed with his claim. The determination of an application under s 18(1)(c)(ii) involves exercising a judicial discretion in light of the facts applying in each particular case.^[163]  That discretion is not, in terms fettered, though its exercise would necessarily take into account the stated purpose and objects of the PIPA.^[164] 

172. [172]
     As per McMurdo P in Cousins v Mt Isa Mines Ltd^[165] the main purposes of the PIPA, as outlined in s 4, which are relevant in this case are:

“… to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury … to be achieved generally by –

1. (a)
   providing a procedure for the speedy resolution of claims for damages for personal injury … and

2. (b)
   promoting settlement of claims at an early stage wherever possible; and

3. (c)
   ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and

…

4. (d)
   minimising the costs of claims; …”.

173. [173]
     Other matters which her Honour considered relevant but not exhaustive to the exercise of this discretion were:^[166]

• The fact the refusal of an application under s 18(1)(c)(ii) will deny claimants the opportunity to litigate their common law rights, and which was considered a matter in favour of granting the application.

• A claimant bringing an application under s 18(1)(c)(ii) should ordinarily demonstrate a good reason for non compliance with the provisions of PIPA, but a satisfactory explanation for delay on the part of a claimant is not a pre-requisite to the granting of the application. 

There may, however, be cases where the delay is unexplained, deliberate and occurs with full knowledge of the statutory requirements, that the delay alone warrants the refusal of the application.

• The claimant’s prospects of success in the claim.  A judge would be unlikely to grant an application where these were negligible.  However, it will be an unusual case where that issue could be clearly determined against the claimant at such an early stage.

• The extent of any prejudice to be suffered by the respondent is always a highly relevant factor.

174. [174]
     In that case Jones J, having noted there was no particular guidance as to what considerations are relevant to the court’s discussion on an application under s 18(1)(c)(ii), compared the circumstances in which such an application is made with an application for extension of time under s 32 of the Limitation Act.

175. [175]
     His Honour considered that while in cases seeking an extension of the limitation period there is an intense focus on the need to explain the delay, the circumstances which result in a claimant seeking authorisation pursuant to s 18(1)(c)(ii) are less dramatic.^[167]

176. [176]
     His Honour held that in an application under s 18(1)(c)(ii):^[168]

“… the most significant is the fact that, unless authorised, the claimant will be denied the opportunity to litigate his or her claim.  Against that consideration must be weighed the impact of any prejudice to the respondent and whether such prejudice can be ameliorated.  This would appear to be the object of s 18(2).  It is possible that prejudice due to the claimant’s conduct might be so overwhelming as to deny the prospect of a fair trial and thus count heavily against the granting of authorisation to proceed.” 

(my emphasis).

177. [177]
     He considered the need to maintain the object of the PIPA in providing a speedy trial and an inexpensive resolution of claims to be of lesser importance.^[169]

178. [178]
     Importantly, his Honour followed Dempsey v Dorber^[170] where the Full Court (Connolly J, with whom Carter and Moynihan JJ agreed) held that on an application under the equivalent to r 389 of the Uniform Civil Procedure Rules 1999 (Qld),^[171] while the reason for the delay is a relevant circumstance, a satisfactory explanation for the delay is not a condition precedent to the granting of leave to proceed.  It remained a factor to be considered with all the other relevant factors.  As was recognised in that case, such jurisdictions are not exercised on a punitive or even on a cautionary basis.^[172]

179. [179]
     Therefore Jones J said:^[173]

“… Obviously it is the prejudicial effect of the non-compliance that will assume weight rather than technical non-compliance.  Failure to give an explanation for delay in circumstances where no prejudice flows from the failure might have to be weighed against the objects and purposes of the legislation.  But exercise of the discretion conferred by s 18(1)(c)(ii) to authorise a claim to proceed further requires a consideration of factors of varying relevance and insight  but with a consciousness that not to allow the application will deny a claimant access to the court to litigate his or her cause of action in a court.  In my view, such access would be denied only in circumstances of severest prejudice.” 

(my emphasis).

180. [180]
     The proposition that a satisfactory explanation for a delay in compliance with the notice requirements of the PIPA is not a condition precedent to the granting of the application for authorisation under s 18(1)(c)(ii), is consistent with an earlier decision by Jerrard JA (who agreed with the reasons of Jones J) in Gillam v State of Queensland & Ors.^[174]  In that case his Honour (with whom Dutney and Philippides JJ agreed) rejected as being inconsistent with the PIPA a submission that the discretion given to a court by s 18(1)(c)(ii) would not be exercised in a complainant’s favour in the absence of reasonable excuse for delay.^[175]

181. [181]
     As his Honour said the obvious difficulty with this argument is:^[176]

“Since s 18 does not require a court to declare or find whether a reasonable excuse exists or not, and since the drafting of                     s 18(1)(c)(ii) actually assumes, if anything, the absence of a reasonable excuse for delay where delay is the non-compliance, there appears no need to make an order as to the existence of a reasonable excuse.  Where there has been delay, and where at the time an application under s 18 is heard a reasonable excuse for that delay exists, then whether that excuse has been provided as required by       s 9(5) or not, its existence will be relevant to the exercise of the      s 18(1)(c)(ii) discretion in a claimant’s favour; but demonstrating that one exists is not mandated by the section.”  (my emphasis).

182. [182]
     Therefore while, as Mr Hubbard submits, the absence of a reasonable excuse is a relevant factor, it is not a prerequisite for the granting of the application.

183. [183]
     Although Mr Hubbard points in his written decisions to the refusal of a similar application at first instance in Cousins v Mount Isa Mines Ltd^[177] as I have said an appeal against this decision was allowed by the Court of Appeal in the decision discussed in detail above.^[178]  Reference was made to the notice in that case being given two years after the accident.  The area of alleged non-compliance was identified as not having provided reasonable excuse for the delay in providing the part 1 notice of claim.

184. [184]
     New evidence was received on the appeal. This went to the finding by the hearing judge that there was a risk of prejudice to the respondent. The respondent raised no objection to the court receiving the new evidence and conceded it did not suffer any prejudice from the delay in providing the notice of claim.^[179]  This evidence did not touch upon the sufficiency of the applicant’s explanations for the delay and so did not impact on that part of the evidence upon which the hearing judge exercised his discretion.^[180]

185. [185]
     In deciding there was no basis for denying the claimant the opportunity to litigate his claim, Jones J took into account that the respondent conceded it had suffered no prejudice by reason of the claimant’s failure to give a complying notice, the respondent would inevitably be joined as a party to the proceedings which the claimant intended to institute against his employer, the respondent did not suggest the claimant had no prospects of success or there was any other bar to his pursuit of the claim, and the respondent pointed only to the technical non-compliance with the statutory requirements and to the extent of the delay.^[181]

186. [186]
     In concluding that the application should be granted McMurdo J took into account that while the delay in complying with the PIPA was undesirable and regrettable, he acted on the advice of lawyers who he believed were experienced in this area of law, he did not deliberately delay with knowledge of the time limits of PIPA,^[182] the respondent had not established the claimant had no real prospects of success in his claim for personal injuries, there was no evidence of prejudice to the respondent or the employer, and to refuse the application would deny the claimant the opportunity to pursue his common law rights.

187. [187]
     As I have stated Jerrard JA agreed with both sets of reasons in that case.^[183]  I note the application was instituted in that case before the expiration of the limitation period.  This period had yet to expire at the time of the decision of the Court of Appeal.

188. [188]
     In the present case, for the reasons I have given in deciding to exercise my discretion to extend the limitation period, I consider that Mr Green’s evidence as to why he did not think any more about what Dr Hayes told him on 12 May 2008 and it was the advice from WorkCover in December 2008 which made the difference, provides a reasonable explanation for his delay in seeking legal advice and serving the notice of claim. As Jones J observed there is a more intense focus on the need to explain the delay in an application for the extension of the limitation period than in relation to the circumstances in which an application is made under s 18(1)(c)(ii) of the PIPA.

189. [189]
     Having regard to this, the fact it is not contended as a result of the failure to give a complying notice that Mr Taylor has suffered any specific prejudice on liability and quantum as a consequence of the delay such that there is no basis for a concluding fair trial could not be held, it is not suggested Mr Green has no prospects of success, upon the extension of the limitation period there is no other bar to Mr Green’s pursuit of the claim, and Mr Taylor points only to non-compliance with the statutory requirements and the extent of the delay, I find no basis for denying Mr Green the opportunity to litigate this claim.

190. [190]
     Being conscious that not to allow the application will deny Mr Green access to the court for this purpose, this is not a case where there are “circumstances of the severest prejudice” such as to warrant such denial.

191. [191]
     I also do not consider this a case of deliberate delay by Mr Green. Although he knew there were time limits, and ignorance of the law is no excuse, he was not exactly sure what they were. Again this must be considered in the context that he did not think of suing Mr Taylor, whom he regarded as a work partner, until it all came to a head when he received the WorkCover advice in December 2008.

192. [192]
     The fact this application was made outside the limitation period does not effect this conclusion. Whilst appreciating Robin QC DCJ said in Haskins v Gold Coast City Council & Anor that although the court has a wide discretion to do what is just in an application under s 18, the “expiry of the limitation period, in the particular circumstances, makes a very great difference”,^[184] this must be interpreted in the context of “the particular circumstances” in that case.  Those circumstances were that the second respondent “waived compliance” with the requirements of the PIPA or its Regulations (so that s 18(1)(b) of the PIPA applied) and the Council advised it was a complying notice of claim (so that s 18(1)(a)(i) applied).  Consequently, as his Honour said with reference to the reliance placed on s 18(1)(c)(ii), “Proceeding as if the applicant had failed to give a complying notice of claim flies in the face of the basis on which all parties have treated the matter since February-March this year.”^[185]

Therefore, s 18(1)(c)(i) did not properly arise for consideration, and these were the “particular circumstances” referred to.  Further, the case is distinguishable from the present circumstances where I have extended the limitation period.  Therefore, the expiry of the limitation period does not make a very great difference in this case.

Conclusion

193. [193]
     In all the circumstances I exercise my discretion under s 18(1)(c)(ii) of the PIPA to grant the application that Mr Green is authorised to proceed further with the claim against Mr Taylor in respect of the incident occurring on 19 August 2005.

Order

194. [194]
     Therefore the order of the court is that:

1. The time limit for the applicant to institute proceedings against the respondent in respect of injuries sustained on 19 August 2005 is extended up to and including 11 February 2009 pursuant to s 31 of the Limitation of Actions Act 1974 (Qld).

2. The applicant is authorised to proceed further with a claim against the respondent in respect of an incident occurring on 19 August 2005 pursuant to s 18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002 (Qld).

Costs

195. [195]
     No order as to costs is sought in respect of the application under the Limitation Act because, as Mr Kelly put it, Mr Green sought an exercise of the court’s discretion.

196. [196]
     However, he seeks Mr Taylor pay Mr Green’s costs in respect of the PIPA application.  I will hear the parties in respect of this issue.