Hart v WorkCover Queensland[2012] QDC 247

DISTRICT COURT OF QUEENSLAND

1. [1]
   By his application dated 31 May 2012 the applicant seeks an order pursuant to s 31(2) of the Limitations of Actions Act 1974 that the end of the limitation period for an action for damages for personal injury suffered by him on or about 4 January 2009 at Centenary State High School be extended to 1 June 2012.

History of the matter

2. [2]
   The applicant was born on 3 June 1972. On 31 October 2002 he commenced employment with Education Queensland at Centenary State High School.  Since then, but prior to the injury the subject of this application, the applicant suffered two other work related injuries. First occurred on 10 November 2005 when he pulled a neck muscle when lifting a bag of rubbish out of a bin. The second occurred on 27 October 2008 when he sprained his shoulder lifting the lid of an industrial bin.  He lodged an application for compensation for each of these injuries on 15 November 2005 and on 31 October 2008 respectively. 

3. [3]
   On 6 January 2009 the applicant lodged his application for compensation for a neck injury resulting from 4 January 2009.  This is the injury which is the subject of this application.  On 11 February 2009 the applicant’s employer completed an employer’s report noting an injury of left shoulder sprain suffered in January 2009 and caused by repetitive lifting over a period of time and cleaning of windows. On 23 February 2009 WorkCover advised the employer it had accepted the applicant’s claim for left shoulder strain sustained on 4 January 2009.

4. [4]
   In accepting the applicant’s application for compensation, WorkCover considered:

1. (a)
   A medical certificate of Dr Claire Jackson dated 6 February 2009 regarding a condition of acute/chronic right shoulder pain which the applicant reported to Dr Jackson was caused by a longstanding work injury from 2006; and

2. (b)
   A medical certificate from Dr Raymond Chan dated 11 February 2009 for a sprained left shoulder which the applicant reported to Dr Chan was caused by repetitive lifting/cleaning of windows and wherein it was noted that there had been a similar injury in late 2008.

5. [5]
   Pursuant to acceptance of his claim for compensation WorkCover paid medical expenses and weekly benefits to the applicant from 11 February 2009 to 30 June 2009. On 5 May 2009 the applicant was administered a nerve root injection/C6 block by Dr Gatehouse which provided temporary relief, but on 11 May 2009 the applicant advised Dr McCartney that symptoms of neck pain, and intermittent symptoms in the thumb radiating from the scapular region were ongoing.

6. [6]
   On 1 July 2009 he was certified by Dr Gatehouse, an Orthopaedic Surgeon as fit to return to normal duties. Despite this certification, on 24 August 2009 the applicant resigned from working at Centenary State High School due to “ongoing injury”. He continues consulting his general practioner, Dr Chan of Inala Medical Centre, and on 20 November 2009 Dr Chan’s notes recorded that pain radiating down the left thumb, and “decreased sensation L C5 and C6 dermatomes noted”. On 1 March 2011 Dr Chan noted “still sore L shoulder” and “L C6 radiculopathy”. Dr Chan referred the applicant to Dr Gatehouse.

7. [7]
   In March 2011 the applicant advised WorkCover of the reoccurring symptoms and sought to reopen his claim.

8. [8]
   On 5 April 2011, the applicant saw Dr Gatehouse who noted that the impingement could be a further aggravation of the C5/6 level degenerative changes and there was possibly a need for surgery. He said the symptoms could be apportioned between the original disc prolapse and subsequent degenerative change. Dr Gatehouse also opined that the disc prolapse arose out of a bin lifting incident in 2009.

9. [9]
   On 11 April 2011 WorkCover organised for the applicant to attend an independent medical examination, by Dr Walters, an Orthopaedic Surgeon. The applicant advised Dr Walters that he sought reopening of the original claim as the area had been aggravated in mid 2010. Dr Walters opined that the diagnosis was probably C5/6 disc degeneration and intervertebral foraminal narrowing with degeneration probably present since at least 2006. Importantly Dr Walters reported that the thumb pain was due to the 2009 incident and could be a new development. WorkCover then sought further clarification from Dr Walters regarding his report, and on 20 April 2011 Dr Walters stated that the applicant has a continuing incapacity from 2009 and should be looking at a permanent impairment assessment. Dr Walters opined that the applicant had been suffering an aggravation of the 2009 injury, but it could not be work related as he had not been employed for over a year.

10. [10]
    On 17 May 2011 WorkCover wrote to the applicant advising that it had rejected the reopening of his claim, and that his file had been closed as he was given full clearance to return to work on 1 July 2009 by Dr Gatehouse. The letter included assessment summaries from both Dr Gatehouse and Dr Walters. It is submitted by the applicant that on receiving this letter he became aware for the first time that:

1. (a)
   His ongoing thumb pain may be directly caused by the injury sustained in 2009, not simply an aggravation of a pre-existing condition; and

2. (b)
   The injury in 2009 was a continuing cause of incapacity which may have caused or contributed to a permanent impairment.

11. [11]
    Consequently it is submitted that this was a discovery of a material fact of a decisive character, which is the issue for determination in this matter.

The Law

12. [12]
    Section 31(2) of the Limitations of Actions Act 1974 (Qld) (LAA) provides:

13. [13]
    The injury suffered by the applicant is of the kind regulated by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA).  It is agreed that Section 302 of WCRA does not preclude the operation of section 31(2) LAA, and in light of the authorities^[1], I agree.

14. [14]
    I intend to focus firstly on the second limb of s 31(2), before considering the more lengthy submissions on s 31(2)(a).

Right of Action – s 31(2)(b) LAA

15. [15]
    It is submitted by the respondent that it is unclear on the evidence what the actual incident giving rise to the applicant’s injury was; whether it was either of the bin-lifting incidents which the statutory claim records support to have occurred on 10 November 2005 and on 27 October 2008, or an event of 4 January 2009 caused by repetitive cleaning or bin lifting. Further the respondent submits that there is no allegation that any such incident occurred because of any breach of duty of care on the part of the employer or evidence to support any such allegation.

16. [16]
    The applicant submits that there is medical evidence that suggests he could have been injured while working in 2009, and therefore prima facie a case to answer in a cause of action for negligence.

17. [17]
    As can be observed in the reasons of Moynihan J in Brease v Queensland [2007] QSC 043; the requirement to show evidence of a right of action is not onerous:

18. [18]
    I am not convinced that an action does not exist. There is evidence that a series of events have given rise to injury, whether it be the bin-lifting incident of 10 November 2005 or 27 October 2008, or an event of 4 January 2009 caused by repetitive cleaning or bin lifting. At all material times, on the statements of the applicant, he was employed as a cleaner by Education Queensland. His employment required manual work such as lifting, and he was lifting at the time he was injured on each of these occasions. Of course evidence will need to be adduced at trial with respect to the lifting mechanisms. But I am satisfied that, subject to the applicant proving the alleged facts, there is evidence capable of establishing that the defendant was in breach of duty in respect of injuries suffered by him during his employment in 2009.

Material Fact of a Decisive Character – s 31(2)(a) LAA

19. [19]
    The applicant states that he was not aware of the true nature and extent of the injury he sustained on 4 January 2009 until 17 May 2011 when WorkCover provided him with a letter summarising the medical evidence it obtained relating to his injury, and that until he received that information he was not in a position to reasonably comprehend that he had a cause of action for personal injury in respect of his 2009 injury. It is submitted that he did not know that the injury which occurred in January 2009 was an independent cause of an ongoing disability and potentially permanent impairment.

20. [20]
    The respondent submits that the material fact of a decisive kind was know by the applicant in August 2009, as the applicant, had before that time, been informed of the causative relationship between the pain in his neck/shoulder/left arm/thumb, pre-existing degenerative condition and the injury in 2009, whether it be a new injury or aggravation. The respondent submits that the applicant’s awareness of his injuries coupled with the economic impact of his injuries, being that as of 24 August 2009 he is of the opinion that he is no longer able to be employed and resigns, forms a material fact of a decisive character.

21. [21]
    The respondent submits that the applicant had an orthopaedic injury which he believed was productive of economic loss well before May 2011. There is nothing about his condition as at May 2011, where he has claimed belated realisation that he had a cause of action in relation to his 2009 injury, which justifies an extension of the limitation period. It was submitted that the applicant knew prior to 17 May 2011 the relevant material facts that were of a decisive character and he has failed to demonstrate any new fact with the requisite decisive character.

22. [22]
    The respondent points to s 31(c) of the Limitations of Actions Act 1947 where it states:

23. [23]
    In light of the above section the respondent submits that in 2009 the applicant, armed with the knowledge that he is unable to work due to his symptoms, falls short of taking the steps that a reasonable person would have, to determine the true nature of his injury.

Conclusion - Material Fact of a Decisive Character

24. [24]
    In this particular case, when identifying the material fact, one must look to the nature and extent of the injury so caused.^[2]As per section 30(1)(b) LAA, “decisiveness” then depends upon the reasonable prospects of success, damage sufficient to justify the bringing of the action, and the applicant’s own interests and circumstances. The evidence relied upon by the applicant with respect to establishing a material fact of a decisive kind, is the summarised medical report of May 2011 where reference is made to the applicant’s ongoing thumb pain, and where it is suggested that that pain was a due to an injury sustained in 2009 and not in 2006, as suggested by other medical practitioners. The applicant then relies on a further statement in the May 2011 report to the effect that the 2009 injury was a continuing cause of incapacity and which may cause/contribute to permanent incapacity. It must be kept in mind that testing Dr Walters evidence is a matter for trial, and I am not in a position to assess that evidence.

25. [25]
    When Dr Walters speaks of permanent incapacity, the only logical explanation is that he is referring to the thumb and symptoms associated with the thumb, as he agrees that all other symptoms experienced by the applicant are a result of the 2006 injury.

26. [26]
    The question really then focuses around the applicants awareness of the material fact, and whether it was within his means of knowledge 12 months before 4 January 2012, being 12 months before the expiration of the limitation period. As per s 30(1)(c) LAA, the material fact will not be within the means of knowledge of the applicant if he has taken all reasonable steps to find out the significance of his injury.^[3]

27. [27]
    In considering the expression “means of knowledge” in State of Queensland v Stephenson (2006) 226 CLR 197 at para [30], Gummow, Hayne and Creenan JJ held:

“The practical result of this construction is that an applicant always has at least 1 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 the commencement of the last year of the limitation period, no application for an extension can be brought; the applicant has the benefit of at least 1 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 1 year from the date of that conjunction of circumstances.”

28. [28]
    It is clear that the applicant’s thumb symptoms were within his means of knowledge in 2009.^[4]The question then becomes whether the applicant took all reasonable steps to ascertain the significance and cause of his injury. As for what is encompassed by the taking of all reasonable steps within the meaning of s 30(1)(c)(ii), Keane JA, as he then was, in NF v Queensland [2005] QCA 110, said:

“[29] It is to be emphasized that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of "all reasonable steps", or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. 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. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act. This view is supported by the text of s 30(1)(c)(ii) which is, as I have said, in marked contrast to s 30(1)(b).”

29. [29]
    I am not convinced that the applicant was unaware of the permanent nature of his injury. The first reported complaint of thumb pain was on 11 May 2009^[5], and from that time the applicant is reported to have complained of thumb pain to a number of medical practitioners right up until January 2012^[6], a period of almost three years. Dorney DCJ in Barker v Coles Supermarkets Australia P/L [2012] QDC 7 at para 47 said:

“While it is true that the surgery performed by Dr Treffene has led to an alleviation of at least the worst aspects of the pain, what is crucial is that before that operation the knowledge that she did have was that the pain was not improving in any permanent way, that the pain had lead to her obtaining jobs which required lighter duties, and that there appeared to be no avoidance of the continuing difficulties. Therefore there was permanence to the effects of the injury.”

30. [30]
    Similarly it can be said that the applicant has been aware of the thumb symptoms for a period of time that would cause a reasonable person to infer that there is permanency to the injury, or at least make inquires in that regard. Consistent with that view is the fact that the applicant has had to terminate his employment as a cleaner, as opposed to taking a period of leave or a similar arrangement. However a material fact will not become decisive unless a reasonable person would consider that it has a reasonable prospect of success if an action were brought. This question encompasses the second issue of whether the applicant knew that his thumb injury was derived from a work place event in 2009, as opposed to some earlier injury.

31. [31]
    Until 17 May 2011 the applicant is unaware of the possible correlation between his thumb pain and the injury in 2009. Until that point the applicant had been advised by a number of medical practitioners that the symptoms in his thumb were due to a present aggravation of the injury sustained on either 10 November 2005, or 27 October 2008, and he certainly was not advised to the contrary at any stage. I am satisfied that the applicant took all reasonable steps that a person, in his circumstances, would have taken to ascertain the nature and extent of the injury, more particularly from what injury his pain is derived. The applicant was paid medical expenses and weekly benefits until 30 June 2009, and his file was closed on 1 July 2009. It is reasonable that the applicant would not consider that a cause of action existed, being under the belief that his symptoms, whether they be permanent or otherwise, pertained to an earlier injury, for which he has been compensated, and for which the file has been closed.

32. [32]
    The point at which the material fact became decisive is the time at which the applicant first learnt that the thumb pain may be due to the injury sustained in 2009, at which point a reasonable person in the applicant’s circumstances would consider that a right of action would have a reasonable prospect of success.^[7]The time at which that occurs is 17 May 2011, being within 12 months from expiration date.

33. [33]
    Accordingly I order that the period of limitation for a claim by the applicant for negligence in connection with the injury he sustained on 4 January 2009 be extended by 1 year to 4 January 2013.