Ripper v Suncorp Metway Insurance Limited
[2012] QDC 107
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- Unreported Judgment
- Ripper v Suncorp Metway Insurance Limited[2012] QDC 107
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Ripper v Suncorp Metway Insurance Limited[2012] QDC 107
Ripper v Suncorp Metway Insurance Limited[2012] QDC 107
DISTRICT COURT OF QUEENSLAND
CITATION: | Ripper v Suncorp Metway Insurance Limited [2012] QDC 107 |
PARTIES: | SHERRI-ROSE RIPPER (Applicant) v SUNCORP METWAY INSURANCE LIMITED (ABN 83 075 695 966) (Respondent) |
FILE NO/S: | BD 5044 of 2011 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | May 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 and May 2012 |
JUDGE: | Andrews SC DCJ |
ORDER: | order that the limitation period expires on 28 September, 2012 |
CATCHWORDS: | CIVIL PROCEDURE – Section 31 Limitation of Actions Act 1974 – extension of time to bring negligence action – whether applicant had means of knowledge at a material time of a material fact of a decisive nature – whether sufficient pain and suffering prior to expiry of limitation period to indicate seriousness of injury The Limitation of Actions Act 1974 (Qld) s 31(2) |
COUNSEL: | Grant Taylor SC for the Applicant Green for the Respondent |
SOLICITORS: | for the Applicant for the Respondent |
- [1]The applicant sustained a back injury on 10 May, 2007 in a motor vehicle accident. She hopes to commence a proceeding claiming damages for personal injury. She allowed more than 3 years to pass after the accrual of her cause of action without commencing a proceeding. On the face of it, she is too late.[1] So, she seeks an order, pursuant to s 31(2) of the Limitation of Actions Act 1974 (hereinafter “the LAA”), extending the period of limitation pertaining to her cause of action against the respondent insurer.
- [2]Procedural relief had also been sought under the Motor Accident Insurance Act 1994[2] (hereinafter “the MAIA”). However, on 13 January, 2012 Ryrie DCJ declared:
“Pursuant to s 39(5)(c)(i) of the Motor Accident Insurance Act 1994 (Reprint No. 5), that the applicant has remedied any noncompliance relating to her giving to the respondent written notice of her claim (“the claim”) for damages for personal injuries arising out of a motor vehicle accident occurring at Underwood in Queensland on Thursday 10 May, 2007.”
- [3]
“Upon the undertaking of the respondent that, in the event of an order of the court henceforth extending the period of limitation for the applicant’s cause of action based on the claim so that it expires on a date on or before 13 December, 2011, it will not plead or otherwise assert that the period of limitation for the applicant’s cause of action based on the claim has expired or is statute barred, the application is otherwise adjourned to a date to be fixed.”
- [4]Accordingly, only the applicant’s entitlement to s 31 relief remains to be determined on this application.
A Chronology
- [5]Events relating to the application, together with the dates or approximate dates upon which those events occurred, are below:
Date | Event |
09.06.89 | Applicant’s date of birth |
End 2006 | Applicant completes Year 12 secondary schooling at All Saints |
08.03.07 | Applicant commences employment with Waterjet Corporation |
10.05.07 | Date of accident |
06.06.07 | Consultation with Dr Gregory Day, Orthopaedic Surgeon |
-.08.07 | Applicant ceases employment with Waterjet Corporation Pty Ltd |
12.03.08 | Applicant commences employment with Barry Plant Real Estate |
01.11.08 | Applicant ceases employment with Barry Plant Real Estate |
Jan 2009 | Applicant commences employment with Elders Real Estate Mudgeeraba |
Mar 2010 | Applicant ceases employment with Elders Real Estate Mudgeeraba |
06.04.10 | Applicant commences employment with HC Realty |
09.06.10 | Date of expiry of limitation period (upon the applicant turning 21 years of age) |
17.02.11 | Applicant first attends upon Schultz Toomey O'Brien Lawyers |
18.08.11 | Applicant first consults Dr Fenelon |
27.09.11 | Applicant ceases employment with HC Realty |
28.09.11 | Applicant first attends on Dr Cleaver |
15.11.11 | Applicant signs s 37 Notice of Claim |
13.12.11 | Current application filed |
13.01.12 | Previous hearing before Ryrie DCJ |
31.01.12 | Applicant undergoes surgery (percutaneous discectomy at L5/S1) performed by Dr Neil Cleaver |
The Evidence
- [6]The applicant, who turns 23 years next month, sustained a back injury as a result of a motor vehicle accident which occurred during the early afternoon of Thursday 10 May, 2007 on the Pacific Highway at Underwood just south of Brisbane. She was then 17 years and 11 months old.
- [7]Following the accident, the applicant made an application for workers’ compensation (as she had been driving in the course of her employment when injured). The application was accepted. Periodic compensation was paid under the claim from 11 May, 2007 to 27 June, 2007. Medical and rehabilitation expenses were also paid. In all, WorkCover met total payments on the claim of $4,458.57, comprised of the following:
Description of Payment | Amount |
Paid to applicant by way of net period compensation | 1,134.25 |
Income tax instalments remitted to ATO | 91.00 |
Medical expenses | 1,883.78 |
Rehabilitation expenses | 1,349.54 |
Total | $4,458.57 |
- [8]At the time of the accident, the claimant was employed by Waterjet Corporation as an office clerk and administrative assistant. She returned to work on a graduated return to work program. She remained in that employment post-accident until her resignation in August 2007. The applicant’s WorkCover claim ceased because she was a day or two late in submitting a form. She was still suffering symptoms.
- [9]The applicant had ongoing low back symptoms. The low back symptoms largely settled. The extent to which the low back symptoms were ongoing and the extent to which the pain settled were each explored with several witnesses.
- [10]The applicant’s sister, Katie Ripper swore[4] that the applicant had significant symptoms for about six months after the accident when the applicant was in a bad way but that after that the symptoms settled down. She recalled that from about 2008 to early 2011 the applicant would have symptoms from time to time but they were not severe. She and the applicant would sometimes walk together and after about 40 minutes or so the applicant might complain of some lower backache. She recalled the applicant to have otherwise been quite active, involving herself with Oz Tag, working and appearing perfectly normal. She saw her sister regularly at relevant periods. They would walk together twice a week and go shopping together once a week. She recalls things to have changed radically in 2011 when she met the applicant at hospital in extreme pain. That must have been in August.
- [11]The applicant’s step mother, Stephanie Ripper swore[5] that she recalled the applicant to initially have had quite bad symptoms which seemed to settle after some months. She recalled that after that time passed the applicant would complain of discomfort from time to time. She deposed that from early 2008 the applicant appeared to be managing her condition, although with occasional flare-ups and occasional complaints of discomfort after playing touch football. Stephanie Ripper also gave evidence orally. Her evidence about particular details of the applicant’s symptoms and life did not appear reliable. She appeared to accept propositions as if out of unwillingness to correct cross-examining counsel. In one section of her oral evidence[6] Mrs Ripper gave evidence of occasions when she recalled the applicant to have worked in administrative duties in the family business. The applicant gave contradictory evidence that she had never worked in the family business. Mrs Ripper, by accepting propositions put to her by counsel for the respondent accepted that the applicant had worked there, that while there she was doing administrative duties, including typing, filing, preparing orders and printing, that she was doing a full day’s work here and there and that on occasions the applicant complained at work at the end of the day and occasionally on weekends. It then emerged that Mrs Ripper worked in a different building from the one where she hypothesised that the applicant worked and that Mrs Ripper recalled seeing the applicant only at weekends. On the balance of probabilities, I do not accept that the applicant worked in the family business. If the applicant had worked in the family business, I would nevertheless reject the recollections of Mrs Ripper of complaints made at that workplace by the applicant. Mrs Ripper also gave oral evidence that the applicant’s symptoms continued from Christmas 2007 until the applicant moved to Western Australia. I do not accept that as satisfactory evidence that there were symptoms of consistent severity throughout the period or that the symptoms were severe before August 2011. Mrs Ripper conflated periods of time which made her recollections less helpful. Mrs Ripper gave imprecise and unhelpful evidence of the applicant going back to try to play touch football and ending up in an “absolute worse mess”. She opined that was probably “mid 2009”.[7] A few questions later the respondent’s counsel, seeking to confirm matters asked:
“ ‘So that was mid 2009?’
Mrs Ripper answered ‘Yeah’. It got to the end of 2010 into 2011 and the pain was just getting worse and worse and worse and it got to the point one day where I just put her in the car and said, ‘enough is enough we’re going to hospital’ and that’s when I took her to the Gold Coast hospital.”
- [12]That trip to hospital must have been on 22 August 2011 and was not related to touch football. The worsening symptoms were not particularised by Mrs Ripper as to type or date. Evidence from the applicant and her sister suggests that symptoms of low back pain did not worsen from mid 2009, or after December 2007. Mrs Ripper accepted the proposition that the event in 2011 which caused her to take the applicant to hospital was a culmination of increasing pain from 2009 through 2010 until it reached an absolute peak and that it had all started building up from a time in 2009 when the applicant went to New Zealand.
- [13]That oral evidence from Mrs Ripper, if accepted, would be critically relevant to the issue of whether pain had generally settled between the end of 2007 and late 2011. The evidence of Mrs Ripper supports the respondent’s argument that pain had not settled. I do not accept the evidence of Mrs Ripper on that issue. I accept her evidence about four general matters: that the applicant’s problems were initially bad, that by 2008 they had substantially settled with occasional flare-ups, an event related to touch football caused a flare-up and that in late 2011 the applicant was in such a bad way that she was obliged to take the applicant to hospital.
- [14]Before she was injured, the applicant was very fit and active. She had two horses which she kept and rode regularly. They had been her passion since she was a young child. She had competed in pony club. She had also competed in polocrosse. After the accident she was told that riding a horse would aggravate things. Because the horses were her pets she kept them until about 2008.
- [15]She attempted to ride once after the accident and felt pain. She did not ride after that. Consequently, she missed an entire polocrosse season. She became busy with other things. For each of these reasons and her fear that riding would aggravate her symptoms she disposed of the horses.
- [16]The applicant did not play Oz-tag, a form of touch football, before the accident. Her partner had played it and she had attended matches. After the accident she began to play Oz-tag. She played season by season but did not play the season for August 2011. The applicant’s stepmother gave evidence that the applicant went to New Zealand for Oz-Tag and participated in a coaching or administrative role and that she suffered a lot of problems when she was in New Zealand and coped by taking pain-killers. There is no evidence that Mrs Ripper was in New Zealand. It seems unlikely that she would have accompanied her adult daughter on a sporting trip, especially if the applicant was there in an administrative capacity. The applicant gave a different version. She said she played when she went to New Zealand and her back symptoms became no worse and she took no pain-killers. She gave evidence that her back rarely had affected her Oz-Tag. She gave evidence that while in New Zealand she felt tightness but no more than at any other time when she played. I prefer the applicant’s evidence where it conflicts with Mrs Ripper’s.
- [17]The chronology is misleading where it sets out the applicant’s work history after the injury. When she stopped working at Waterjet she went to Ray White Tugun with only a one or two week gap. She was there for a couple of months and then went to Gold Coast Homes because there was insufficient work for her at Ray White Tugun. She left Gold Coast Homes when she was invited by Barry Plant Real Estate to work there. She left Barry Plant Real Estate because she believed there was no opportunity for promotion. She then went to Elders Real Estate at Mudgeeraba working as assistant to the Property Manager. She was made redundant and after a gap of about one week, commenced employment with HC Realty in April 2010. She did not leave any job before 2011 because of problems related to her back. The applicant’s employment at HC Realty was more physically demanding than her prior jobs. In this position she acted as Assistant Property Manager rather than as an assistant to a Property Manager.
- [18]At Elders she had assisted the Property Manager mainly in the office and it was only a rare occasion that she went out. She would move around the office to loosen up her body. She contrasted that with the work at HC Realty. Properties were further away from the office. She implied that she did some more driving and it made her a bit stiffer.
- [19]Between the dates when the plaintiff returned to work at Waterjet in 2007 and when she went to hospital in 2011, the plaintiff did not recall taking a day off work for back pain. She did recall that she sometimes took time away from work, for instance, for migraine. I accept that so far as the applicant was aware, after her graduated return to work at Waterjet in 2007 she took no time off work for lower back pain before 2011.
- [20]In January 2011 her general practitioner told her that headaches were caused by injuries from her car accident. She was urged by an acquaintance in early February 2011 to see a solicitor. The acquaintance suggested this upon learning that the applicant had given up horse riding because of the car accident and possibly upon learning that the headaches were caused by injuries from her car accident. The applicant consulted a solicitor on 17 February 2011 and received advice about limitation periods. To that stage, the applicant’s low back pain had not caused her any loss of income for which she had not been compensated in 2007.
- [21]Only after the applicant started with HC Realty on 06.04.10 did she do hands-on property management work. This was more strenuous than her previous jobs which mostly required her to do office work.
- [22]The applicant made a note that some symptoms were increasing from some unspecified date in 2011. In early 2011 increasing headaches and some neck pain were a cause of concern for her and they led her to consult her GP. Low back pain did not. I infer that headache symptoms were what prompted her note. She suffered nasty symptoms of back pain on about Tuesday 16 August 2011. They caused her to go to the Accident and Emergency Department at Robina Hospital where she was given pain killers. On Thursday 18 August 2011 she saw her GP Dr Fenelon who advised her to rest for the weekend and to return on Monday. By Monday 22 August 2011 her symptoms were worse and she was admitted to the Gold Coast Hospital. She there underwent an MRI scan, was kept overnight and was advised to have at least ten days off work. I infer she took all ten days.
- [23]She must have taken more time off work than ten days. She used all her sick leave and then she took leave without pay. Her employer gave her an ultimatum to return to work within seven days. She was unable to do so because of ongoing symptoms. Her employment was terminated on 29 September 2011. I infer that she was absent for all or almost all of the six weeks from 16 August to her termination on 29 September 2011.
- [24]She was referred by her GP to Dr Neil Cleaver, an orthopaedic surgeon, whom she saw for the first time on 28 September, 2011. Dr Cleaver had previously arranged for the applicant to undergo an MRI scan. It showed “a very deranged disc at L5 -S1”.
- [25]Dr Cleaver then advised the applicant that spinal damage caused by the accident was the cause of the disabling symptoms she was then suffering and that they would probably be permanent. It is likely that it was the low back symptoms to which he referred. I accept that until about 18 August 2011 the applicant expected that her symptoms of low back pain had settled and either that they would not worsen or that they would not be permanent. I infer that the symptoms which kept her from work in August 2011 were more severe than any since she returned to work in 2007 after the accident. The episode in August 2011 was the first time in four years that she had been forced by low back pain to take a day off work.
- [26]Dr Cleaver was cross-examined. His oral evidence was helpful. I accept it. The L5 -S1 disc starts to dry out in people once they reach the age of 18 or 19. The fact that the plaintiff was not quite 18 when injured is relevant because desiccation had not begun. She sought advice on the afternoon of the accident about back and leg pain. These symptoms on that day suggest that it is likely that she sustained an internal disc disruption in the accident. The symptoms from such an internal disc disruption commonly settle within 3 to 6 months although symptoms sometimes continue for several years. Continuing symptoms from an internal L5-S1 disc disruption in a person of the applicant’s age, I infer, would ordinarily be less troublesome than the symptoms in the first 3 to 6 months. When the disc starts drying from the age of 18 years the desiccation continues and an internally deranged L5-S1 disc becomes less stable the more it dries out. As the desiccation continues it can reach a stage where the disc collapses. It was unclear whether the collapse was spontaneous or gradual but in Dr Cleaver’s opinion this occurred in the applicant’s spine in 2011. The collapse probably caused the acute and incapacitating symptoms experienced by the applicant from 16 August 2011.
- [27]The respondent submits that the court cannot rely upon the applicant’s assertions that her symptoms settled until August 2011. The applicant’s evidence was not so simple. She had a problem of increasing headaches and some neck pain in early 2011 and advice from her GP to connect them with the accident. I accept that symptoms of low back pain had substantially settled. It was back and sciatic pain which flared in August 2011. It is likely that the back pain was low back pain from the collapse of the internally deranged L5-S1 disc and was not neck pain. It is likely that the disc collapsed from structural weakness caused by a combination of the damage done in the motor vehicle accident and subsequent age related desiccation.
- [28]The prognosis advised by the orthopaedic specialist, Dr Day in June 2007 was “good in the long term”. It is probable that the plaintiff believed that the symptoms of low back pain had generally settled and would either get better or would become no worse. It was the events of August and September 2011 which should have and did cause her to believe otherwise. Those events alerted the applicant that the accident had caused symptoms more disabling than she had experienced since 2007, more serious than she should have expected having regard to three years or so of settled low back symptoms, that the symptoms would affect her income, that they had not settled and that they would be permanent.
- [29]The respondent submits that it is relevant that the applicant did not undertake investigations recommended by her GP “in relation to ongoing headaches which form part of the symptom complex”. I am not satisfied that ongoing headaches are related to the L5-S1 disc. They may be related to injuries caused by the accident.
- [30]For the purposes of s 31(2)(a), the applicant identifies as “a material fact of a decisive character” the fact that the seriousness and disabling nature of the applicant’s back condition is both permanent and is such that the same will materially interfere henceforth with her working ability and capacity to earn income. I accept this is a circumstance which engages s 30(1)(a)(iv).[8]
- [31]In State of Queensland v Stephenson [2006] HCA 20 at [29-30] the High Court said:
“[T]he means of knowledge (in the sense given by par (c) of s 30(1)) of a material fact is insufficient of itself to propel the applicant outside s 31(2)(a). For circumstances to run against the making of a successful extension application, the material fact must have ‘a decisive character’. Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say … that in a sense none of the material facts relating to the applicant’s right of action is of a decisive character until a reasonable person ‘knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing’ the features described in sub-pars (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court.”
- [32]I accept the submissions that no criticism should be levelled at the applicant because she made no inquiry of her GP Dr Fenelon, or any of her other treating health professionals about her low back problems or her L5-S1 disc before August 2011. The applicant’s circumstances are similar to those discussed in Healy v Femdale Pty Ltd[9] where the court said:
“The question then is whether it can be said that in the circumstances the plaintiff took all reasonable steps to ascertain the fact that her injury was serious enough to justify the bringing of an action. She did not ask her doctor questions of this kind. 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 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 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 it would not be reasonable to expect the plaintiff to have done so.”
- [33]Also apposite is what sixteen years later fell from Keane JA:[10]
“[I]t 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 to get on with life rather than a decision to litigate upon a questionable basis.”
- [34]I accept the submission that is relevant that, prior to August 2011, and notwithstanding the applicant’s being troubled by symptoms from time to time coupled with some days off work related to migraines, it is probable that the quantum of her damages and, importantly, the net result for her “in the hand’, even had she then obtained legal advice, would have appeared too small to justify commencing a proceeding, having regard to the following:
- (a)WorkCover had already compensated the applicant for –
- (i)her loss of wages covering the immediate post-accident period from 11 May to 27 June, 2007;
- (ii)her medical and rehabilitation expenses over a similar period.
- (b)Her claim for general damages would have been governed and restricted by s 61 of the Civil Liability Act 2003 (“the CLA”).
- (c)Recovery of any damages for gratuitous care would have been subject to the threshold stipulated by s 59 of the CLA.
- (d)The engagement of s 56 of the PIPA and the consequent inroads into the fruits of her claim made by legal costs.
- [35]The applicant has no tertiary qualifications or experience outside real estate and the like. At only 22 years of age, her further employment prospects were significantly affected by the events of August and September 2011.
- [36]There is no dispute that the applicant meets the requirement imposed by s 31(2)(a) to point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove her case.
- [37]The respondent submits that on a discretionary basis relief should be refused. His submission relies upon the complexity of facts relating to symptoms:
“The disentangling task that emerges with this case is not simply one of untethering unrelated medical conditions. The applicant’s case is intimately involved with her personal experience of headache. It is precisely the time that has elapsed without proper consideration or investigation of the injury that has created this difficulty and one that, it is respectfully submitted, would count against the granting of relief. It extends not simply to matters of difficulty but unfairness. It is respectfully submitted that it is unfairness to an extent that erodes the need for justice to intervene by extending the limitation period.”
I do not accept that it is unfair to the respondent. The task of unravelling symptoms caused by the accident from symptoms caused otherwise is routine. It is not unusually complex and does not cause injustice to the respondent.
- [38]I am satisfied that an order should be made extending the period of limitation. The applicant seeks an order so that it expires on 28 September 2012, ie 12 months subsequent to the applicant’s first attendance upon Dr Cleaver. It was then that the applicant was told that her symptoms were permanent. It was then that the material fact came within the means of knowledge of the applicant. The respondent, while opposing the order does not take issue with that date.
- [39]I will hear the parties as to the appropriate order for costs.
Footnotes
[1]Limitation of Actions Act 1974 s 11.
[2] Reprint No. 5.
[3] Paragraph 2 of the Order of Ryrie DCJ of 13.01.12.
[4] Document 7, filed 13 January 2012.
[5] Affidavit filed 20 February 2012, document 11.
[6] T1-32 to 34.
[7] T1-35 l 25.
[8] HWC v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 at [44].
[9] Unreported CA37 of 1993 09.06.93
[10] HWC v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 at [44].