Perkins v Cleveland Glass & Aluminium Pty Ltd
[2011] QDC 302
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- Unreported Judgment
- Perkins v Cleveland Glass & Aluminium Pty Ltd[2011] QDC 302
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Perkins v Cleveland Glass & Aluminium Pty Ltd[2011] QDC 302
Perkins v Cleveland Glass & Aluminium Pty Ltd[2011] QDC 302
DISTRICT COURT OF QUEENSLAND
CITATION: | Perkins v Cleveland Glass & Aluminium Pty Ltd [2011] QDC 302 |
PARTIES: | Benjamin PERKINS (Applicant) -v- CLEVELAND GLASS & ALUMINIUM PTY LTD (Respondent) |
FILE NO/S: | D152 of 2011 |
DIVISION: | Civil |
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court, Townsville |
DELIVERED ON: | 06 December 2011 |
DELIVERED AT: | Townsville |
HEARING DATE: | 08 September 2011 |
JUDGE: | Durward SC DCJ |
ORDERS: | 1 Application to extend the limitation period is granted. 2 Respondent to pay the applicant’s costs of and incidental to the application on the standard basis. |
CATCHWORDS: | LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – whether the facts were within the applicant’s means of knowledge before the critical date – where applicant had knowledge of material facts – where the decisive character of the material facts did not crystallise until the occurrence of three significant events after the critical date – where the applicant discharged the onus of proof – where the respondent was not prejudiced. |
LEGISLATION: | Limitation of Actions Act 1974 (Qld) ss 30&31; Workers' Compensation & Rehabilitation Act 2003 (Qld) s 302. |
CASES: | Baillie v Creber [2010] QSC 52; Hargans v Kemenes & Suncorp [2011] QSC 15; Honour v Faminco Mining Services Pty Ltd [2009] QCA 352; Bolitho v Talbot & Anor [2010] QSC 415; Spain v Dipompo Jacs Constructions Pty Ltd & Anor [2009] QCA 323; Sugden v Crawford (1989) 1 Qd R 683; Moriarty v Sunbeam Corporation Limited (1988) 2 Qd R 325; Queensland v Stephenson (2006) 226 CLR 197; NF v State of Queensland [2005] QCA 110; Gillespie v Swift Australia Pty Ltd [2009] QCA 316; Healy v Femdale (1993) QCA 210; Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327; Castillon v P & O Ports Ltd [2007] QCA 364; Watters v Queensland Rail [2001] 1 Qd R 448; HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168; Dick v University of Queensland [2000] 2 Qd R 476. |
COUNSEL: | DM Cormack for the Applicant WFS Elliott for the Respondent |
SOLICITORS: | Connolly Suthers Lawyers as t/a for Hall Payne Lawyers for the Applicant Roberts Nehmer McKee for the Respondent |
- [1]The applicant, so far as is relevant, sustained an injury to his lower back, which was subsequently aggravated. This lower back injury is the subject of his application to extend the limitation period in his personal injury claim to 13 August 2010.
- [2]The application is made pursuant to section 31 of the Limitations of Actions Act 1974 ("the Act").
Legislation
- [3]Section 302 of the Workers' Compensation & Rehabilitation Act 2003 (Qld) provides for an alteration of the traditional period of limitation of three years within which to bring a proceeding for damages for personal injury: see section 11 of the Act.
- [4]Proceedings may be brought by a claimant after the expiration of the limitation period if specified steps have been completed and the claimant has given or is taken to have given, a complying notice of claim.
- [5]In this case, compliance was granted on 29 March 2010. The application in effect seeks a grant of leave by the Court to extend the limitation period to a date beyond the compliance date.
- [6]Section 31 of the Act relevantly provides:
"31. Ordinary actions.
(2) Where an application to a Court by a person claiming to have a right of action to which this section applies, it appears to be 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,
the Court may order that the period of limitation for the action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of the action brought by the applicant in that Court, the period of limitation is extended accordingly."
- [7]Section 30 of the Act describes what constitutes "material facts" relating to a right of action; and "appropriate advice" in relation to facts:
"30. Interpretation
(1) For the purposes of this section and sections 31, 32, 33 and 34 -
(a) the material facts relating to a right of action include the following:
(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
(ii) the identity of the person against whom the right of action lies;
(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
(iv) the nature and extent of the personal injury so caused; and
(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty.
(b) Material facts relating to a right of action are of a decisive character if, but only if, a reasonable man knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing -
(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
(ii) that the person whose means of knowledge is in question ought in his interests in taking his circumstances into account to bring an action on the right of action;
(c) 'Appropriate advice', in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts, as the case may require;
(d) A fact is not within the means of knowledge of a person at a particular time if, but only if:
(i) he does not at that time know the fact; and
(ii) so far as the fact is capable of being ascertained by him, he has before that time taken all reasonable steps to ascertain the fact."
Onus of Proof
- [8]The onus of proof is on the applicant to establish that the material fact would not have been discoverable prior to, or have obtained the decisive characterisation, one year from the critical date: Baillie v Creber & Anor [2010] QSC 52 per McMeekin J at [46].
The Issues
- [9]The respondent conceded that there was evidence to establish the right of action; and did not raise any prejudice. Hence the issues in the application are:
a. Is the fact relied on material and does it relate to the right of action?
b. Is the fact one of a decisive character?
c. Is the "material fact" and its "decisive character" not within the means of knowledge of the applicant until a date after the commencement of the year last preceeding the period of limitation?
Relevant Chronology
- [10]07.12.85 Applicant's date of birth
18.10.04 Commencement of apprenticeship with respondent
22.06.05 Date of lifting injury at respondent's workplace and commenced light duties
27.06.05 Returned to full duties with lower back ache
11.07.05 Awoke with left-sided lower back pain and off-work 3 days
30.03.06 Attendance upon Dr Guazzo and Dr Guazzo's report to the GP
24.11.06 Application for workers compensation
11.12.06 Dr Guazzo's report to WorkCover
10.10.08 WorkCover weekly compensation because applicant is unable to work
14.10.08 Second CT Scan
18.10.08 Applicant qualifies as a glazier, completing his trade certificate
Oct 08 Off-work about 2 months
13.11.08 MRI Scan
24.11.08 Dr Guazzo’s further report to WorkCover
03.12.08 Dr Ness’ report to WorkCover
05.12.08 Cessation of workers compensation
06.12.08 Commencement of Centrelink payments
11.12.08 Attendance upon GP Dr Thakur
27.03.09 Cessation of Centrelink payments
29.03.09 Respondent’s ‘on or after’ date for a ‘material fact of a decisive character’ (three years after first attendance on Dr Guazzo and the report)
12.05.09 Back brace provided to applicant by GP
19.06.09 Aggravation to lower back
July 09 RTW on restricted duties
13.08.09 Employment terminated by respondent
17.08.09 Receipt of Dr Shaw's medico legal opinion dated 5 August 2009
29.03.10 Notice of Claim
29.03.10 Date of compliance
TheEvidence
- [11]The applicant in his affidavits referred to his father, through his father's trade union, having sought legal advice on his behalf on 8 January 2009, about the statutory claim with WorkCover. The applicant said he did not know about common law damages claims at that time. However, after the lawyers had reviewed his workers' compensation file, he was told in correspondence from the lawyers that he could apply to extend the limitation period in a common law claim, "but that as I was working in a foreman role my compensation would be minimal and possibly not worth proceeding with."
- [12]The applicant believed his back would get better, but after the incident on 15 June 2009 he realised the seriousness of his condition and consulted Dr Shaw. That incident was a pain that he felt in his back whilst standing on top of a trestle, bending forward and reaching to seal a window. The applicant was made redundant from his employment in August 2009.
- [13]He deposed that those two events were critical in his forming a belief that his back condition was permanent and would interfere with his ability to continue to work in his trade.
- [14]There are a number of relevant medical reports, provided variously by Dr Guazzo, Dr Ness and Dr Shaw.
- [15]Dr Guazzo in a report dated 30 March 2006 addressed to the applicant's referring doctor, made reference to "an ongoing back problem since a work injury in June of last year" and "I did reassure them (a reference to the applicant and his mother) that it is very unlikely he will need surgery and also that if he looks after his back by way of not re-aggravating the problem, he would most likely be able to continue in his career as a glazier".
- [16]Dr Guazzo also made a report dated 11 December 2006 addressed to WorkCover, where he said the following:
"… it is my opinion that the diagnosis of Mr Perkins is a lumbar disc protrusion with left sciatica. From the history available to me, it would seem that the original injury occurred at work while lifting glass and he had a further exacerbation of the symptoms when he developed an upper respiratory tract infection …with the coughing, the sciatic symptoms worsened"
and
"The mechanism of injury is a lifting and twisting injury while at work lifting glass"
and
"When last seen, Mr Perkins had a capacity to work in suitable duties" (the date when last seen was 30 March 2006)
and
"… there was pre-existing asymptomatic disc degeneration."
- [17]Dr Guazzo made a further report dated 24 November 2008 addressed to WorkCover where he stated:
"It is not possible to directly attribute his disc protrusion to his work. However, on balance of probabilities, it is reasonable to assume that his work is the principle (sic) cause to the recurrence of his disc protrusion. There is no other event that has caused the symptoms and he has not had a work-related disc protrusion in the past."
- [18]Dr Ness in a report dated 03 December 2008 addressed to WorkCover, stated as follows:
"The claimant stated that he had no history of back pain prior to the injury on the 22.06.05. However, I note that on the 11.12.06 Dr Guazzo reported 'he told me that he may have had some back pain in the past'."
and
"His current clinical picture in my opinion is due to his pre-existing disease and there is no work-related component."
and
"I conclude that the development of the prolapse causing sciatic pain is not work-related. It came on around the start of 2006 and was exacerbated by a respiratory illness at the time."
and
"When seen on the 03.12.08 the claimant had symptoms and signs consistent with degenerative disease of the lumbar spine with a left-sided disc prolapse. There were insufficient clinical signs to diagnose the level of the prolapse but imaging studies indicate that the prolapse responsible for the left-sided sciatic pain is at the L4-5 level with a degenerative disease at this level and the L3-4 level. X-rays in January 2006 demonstrate that the claimant had pre-existing disc degeneration at the two levels."
and
"I regard his current and any further treatment as being for an underlying condition and not for the work injury that occurred in June 2005."
and
"The claimant is currently incapacitated due to his underlying condition."
and
"The work-related aggravation of the claimant's underlying lumbar spine condition that occurred on 22.06.05 has ceased."
- [19]The four statements last-mentioned are quoted in the WorkCover letter to the applicant dated 5 December 2008. That letter advised the applicant of the cessation of WorkCover payments. The applicant commenced receiving Centrelink payments from the following day.
- [20]The applicant subsequently obtained a medical report from Dr Shaw, dated 05 August 2009. In that report, Dr Shaw referred to:
"Pre-existing, though asymptomatic, disc degeneration at L3-4 and L4-5 … On 22.06.2005 he aggravated the pre-existing degenerative changes resulting in a disc protrusion, most likely at L4-5. Several weeks later, he developed a left L5 sciatica … Subsequent to this injury, Mr Perkins has experienced mechanical low back pain aggravated by bending and lifting and associated with mild but chronic left L5 lateral stenosis."
and
"Mr Perkins sustained acute low back pain with a subsequent development of left L5 sciatic (sic) in the work incident on 22.06.05 … The long term consequence of his injury is mechanical low back pain easily aggravated by bending and lifting and associated with a chronic low grade L5 lateral stenosis."
and
"The client's current symptoms are related to the incident in June 2005."
The legal principles
- [21]The relevant test for a material fact of a decisive character has been expressed in a number of ways in the case authorities.
- [22]In Sugden v Crawford (1989) 1 Qd R, the Full Court referring to section 30(b) at 685, wrote:
"Implicit in the legislation is a negative proposition that time will not be extended where the requirement of s. 30(b) are satisfied without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action."
- [23]In Moriarty v Sunbeam Corporation Limited (1988) 2 Qd R 325, Kelly SPJ at 331 wrote:
"In my opinion, a reasonable man knowing those facts and having taken the appropriate advice on them would have regarded them as showing that if he were to bring an action it would have a reasonable prospect of success and it resulting in an award of damages sufficient to justify the bringing of an action."
And Macrossan J wrote, at 333:
"… he must show that without the newly learned fact or facts, he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interest pursue it. That is what the application of the test of decisiveness under s. 30(b) comes down to."
- [24]In the Queensland v Stephenson [2006] 226 CLR 197, the High Court held that the phrase "material fact of a decisive character relating to a right of action" in the relevant section was a composite expression, each element of which must be within the means of knowledge of an applicant at any particular time. Hence the mere circumstance that a material fact relating to a right of action was within the knowledge of an applicant before the relevant date was insufficient to prevent the applicant from satisfying s 31(2)(a).
- [25]Accordingly, whilst an applicant may have knowledge of material facts prior to the relevant date, the decisive character of those facts is the critical issue and if they were not within the applicant's means of knowledge then the applicant has the benefit of the section extending the limitation period. See the joint judgment of Gummow, Hayne and Crennan JJ at paras 27 to 31.
- [26]In Honour v Faminco Mining Services Pty Ltd [2009] QCA 352, two requirements were laid down to qualify the test to which I have referred above:
1. The fact that an action would have a reasonable prospect of success: that is, result in an award of damages that justified bringing the action; and
2. The fact that the potential applicant should, in his or her own interest, taking that person's circumstances into account, bring an action.
- [27]Both requirements are to be regarded from the point of view of a reasonable person: that is, a person who has taken the appropriate advice on the facts: Bolitho v Talbot & Anor [2010] QSC 415. Both requirements must be satisfied if the material fact is said to have a decisive character: Honour at [73]. A fact going to an increase in potential damages could meet the requirements: that is, a fact converting a claim not worth pursuing into one that was: Watters v Queensland Rail [2001] 1 Qd R 448.
- [28]In Spain v Dipompo Jacs Constructions Pty Ltd & Anor [2009] QCA 323, the applicant had a back injury that forced him to cease working in the construction injury and to seek and start a new career which he maintained for a period of time until that employer became insolvent. Keane JA observed at [60] that the applicant's account was "undeniably an acknowledgement of a firm appreciation on his part that his back problems were such as to limit the range of work open to him and to place him in a situation at real risk in the labour market".
- [29]The test of reasonableness is objective, in the context of an applicant's circumstances: Gillespie v Swift Australia Pty Ltd [2009] QCA 316. That context shifts the focus onto what can reasonably be expected from an applicant rather than from the notional, reasonable person: Dick v University of Queensland [2000] 2 Qd R 476; and NF v State of Queensland [2005] QCA 110.
- [30]The reasonableness of enquiry requires a consideration of numerous factors: for example, the assessment of costs, risks and benefits in litigation; advice from doctors about coping mechanisms and light duties; and the prospect of having continued employment through rehabilitative measures and such like: Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327 at [20] - [22].
- [31]In Healy v Femdale (1993) QCA 210, the following passage appears in the judgment in the Court of Appeal:
"The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be brought to call for prudent enquiry to protect one's health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability, fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take 'appropriate advice' or to ask appropriate questions if in all the circumstances that would not be reasonable to expect the plaintiff to have done so."
- [32]Keane JA in HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, iterated this in the following passage:
"[44] … it is not the policy of the Courts in the application of s 31 of the Act to penalise an injured person who makes a reasonable decision to try and get on with life rather than a decision to litigate upon a questionable basis."
- [33]Counsel referred to cases where an application to extend the limitation period was dismissed.
- [34]In the first, Mr Elliott referred to the courts view in Baillie v Crebor (supra) that ’it is inescapable “that the appellant” was aware that he had a serious condition of his spine, that he could not persist in heavy work, and hence that he was not fit to continue his trade as a welder’. Mr Cormack sought to distinguish the case on the basis that the judge in that case had been troubled by the medical history given by the appellant to doctors.
- [35]In the second, Hargans v Kemenes & Anor [2011] QSC 15, the applicant was a ‘personal trainer’. The applicant had been seriously injured in a motor vehicle accident. The court considered that she knew at least from he discharge from hospital, after three weeks, that her injuries were going to prevent her from carrying out a wide range of activities given medial advice that she should consider a ‘desk job’. The court found that she must have been aware that her injuries precluded physical careers. Mr Cormack sought to distinguish the case on the basis that the appellant had been ‘put on notice’ at an early time.
- [36]Mr Cormack also sought to distinguish Spain v Dipompo Jacs Construction Pty Ltd (supra) on two bases: the factual circumstances; and that the judges in the appeal had differing views.
Submissions: Material Fact of a Decisive Character?
- [37]The applicant relied on a number of successive events:
- A change of work role from a foreman to glazier in May 2009
- The aggravation of the original injury on 15 June 2009
- His attendance on Dr Shaw on 30 July 2009 for advice
- The termination of his employment on 13 August 2009
- His receipt of Dr Shaw's advice on 18 August 2009
- [38]The applicant submitted that the following factual matters were determinative of the existence of a material fact of a decisive character at the relevant time:
- Workers' Compensation claim terminated on 05 December, 2008, based on the MRI of 13 November 2008, the report of Dr Ness dated 03 December 2008 and the report of Dr Guazzo dated 24 November 2008.
- Discussion between the applicant and Dr Thakur, about the report of Dr Ness, on 11 December, 2008.
- The cumulative effect of these events was to raise doubt as to the mechanism of injury, causation and quantum (that is, economic liability) and led to the applicant modifying his work role (going on to lighter duties) in May 2009 and his back condition ameliorating.
- Attendance by applicant’s father Neil Perkins, through the Electrical Trades Union on the applicant’s behalf, upon a lawyer on 08 January 2009.
- Incident aggravating the original injury - 15 June 2009.
- Only on 30 July 2009 did the applicant have further advice from Dr Shaw that the injury was a work related disc protrusion and was not merely a degenerative condition.
- Termination of his employment, on 13 August 2009.
- [39]It was submitted that the successive events led the applicant to the view that his injury was permanent and was likely to adversely impact upon his capacity to return to employment for which he was skilled and experienced; or, as was submitted on his behalf, their combined effect was to transform "an uneconomical claim into a viable claim".
- [40]Counsel approached this issue on a slightly different basis, although at the end of the day it is probably not significant: Mr Cormack referred to the "successive development" of the these material facts to a "composite" and "critical mass of information" to the extent that it would be reasonable for the applicant to have the requisite knowledge no earlier than the requisite point in time - namely, 29 March 2009. Mr Elliott submitted that each of the successive events, could in their own right, have amounted to a material fact of a decisive character, but that each of them did not amount to that.
- [41]Counsel each referred to the period October 2008 to December 2008 as the critical period, but characterised the events that occurred in that period differently.
- [42]The respondent submitted that Dr Guazzo had always linked the injury to the 2005 original incident and that there was nothing in his reports that would cause a person to doubt that the original injury was work related. He submitted that Dr Shaw’s report did not state any ‘new view’ of the cause of the applicant’s injury.
- [43]He submitted that whilst the applicant was in receipt of Centrelink payments he had other health issues and complaints. The facts were no different today as to what was known in December 2008, namely that the applicant could not do heavy work because of the June 2005 incident.
- [44]Mr Elliott submitted that, in any event, the applicant had a worthwhile or viable action to bring in December 2008, particularly in respect of future economic loss, given his relative youth and prospective working life.
Discussion
- [45]The applicant’s position is different from that described in Spain. There the applicant had to cease working in his career employment and commence a new career path. He was fundamentally and unequivocally in a position of vulnerability in the labour market. The same cannot be said of the applicant here, at least not until after the aggravation of his back injury on 15 June 2009 followed by the redundancy in August 2009.
- [46]The applicant’s position is also different from that of the applicants in Baillie and in Hargans. In Baillie the injury was more serious and disabling from an early time. His medical history was also equivocal. In Hargans the applicant was ‘on notice’ from her discharge from hospital that her career was in jeopardy from her serious injury.
- [47]In this case there was a continuum of events in the period of seven months or so prior to the end of March 2009. The applicant consulted Dr Thakur on numerous occasions prior to that date, particularly from September 2008 and it must have been readily apparent and known to him that he had a troublesome back condition.
- [48]Whilst he knew facts, that I consider were material facts, the issue is when those known material facts acquired a decisive character. The applicant says that did not occur until after March 2009 and specifically not until the June 2009 aggravation to his back and the redundancy in August 2009, confirmed by Dr Shaw’s report in July 2009.
- [49]In the October 2008 – December 2008 period several significant events occurred: WorkCover payments ceased, particularly as a result of Dr Ness’ report in December 2008 which referred to a degenerative condition unrelated to work and expressed a non-work related cause of the disc lesion; Dr Guazzo’s opinion in November 2008 that it was not possible to directly attribute the disc protrusion to the applicant’s work; and the applicant’s move to a supervisory position where his back settled. He also had advice from lawyers in January 2009 to the effect that a common law claim was not worth pursuing.
- [50]The applicant’s consultations with Dr Thakur must be considered in that context and from the applicant’s own view of relevant matters. It seems to me that, as a young man, he had prior to the end of March 2009 done all that could be reasonably expected of him.
- [51]There followed the three events that seem to me to have crystallised the known material facts into facts of a decisive character: the aggravation in June 2009, upon his return to his tradesman role at work, of his back condition; Dr Shaw’s report in July 2009, expressed in unequivocal terms – unlike the earlier reports of Dr Guazzo, particularly the report in late 2008 – and obtained after consulting lawyers in June 2009; and the redundancy in August 2009.
- [52]It was only then, in an holistic sense, that the full impact of the injury upon the applicant’s capacity for work was known. A common law action was then able to be properly assessed as being viable. Those events are, in effect, the ‘critical mass of information’ referred to in the authorities, expressed in a composite sense as described in Castillon v P& O Ports Ltd [2007] QCA 364.
Conclusion
- [53]The decisive character of the known material facts did not crystallise until after the critical date in March 2009. The applicant has discharged his onus of proof. He is entitled to the relief sought pursuant to s 31 of the Act. The application will be granted.