Roseneder v Roseneder[2014] QDC 268

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application pursuant to s 31 of the Limitations of Actions Act 1974 (Qld) (‘LAA’) for the period of limitation in relation to a personal injuries action to be extended in respect of a motor vehicle accident that occurred on 15^th August 2008. The applicant accepts that before an order can be made pursuant to s 31, it must be shown 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 after 15^th August 2010,^[1] and no earlier than 18 September 2012.^[2] The 2^nd respondent opposes the application.

The relevant Law

2. [2]
   Section 31(2) of the LAA provides:

“(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—

1. (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

2. (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 1 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.”

3. [3]
   In order to understand the operation of s 31, regard must be had to s 30 of that Act, which provides:

“(1) For the purposes of this section and sections 31, 32, 33 and 34—

1. (a)
   the material facts relating to a right of action include the following—

1. (i)
   the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

2. (ii)
   the identity of the person against whom the right of action lies;

3. (iii)
   the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

4. (iv)
   the nature and extent of the personal injury so caused;

5. (v)
   the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

2. (b)
   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;

3. (c)
   a fact is not within the means of knowledge of a person at a particular time if, but only if—

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

2. (ii)
   as 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.

3. (2)
   In this section—

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.”

4. [4]
   Section 31(2) of that Act provides that the court may order the period of limitation for an action be extended if it appear to the court ‘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 period of limitation for the action; and that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation. The section allows for an extension of the limitation period for one year only after the relevant point.

5. [5]
   It is agreed between the parties that it must be shown by the applicant that the material fact of a decisive character relating to the applicant’s right of action to make his claim contended for, was not within his means of knowledge until after 15^th August 2010 and not before 18^th September 2012.

Material fact of a decisive character contended for

6. [6]
   It is submitted on behalf of the applicant that it was not until December 2012 (when he resigned from his employment with DLK Concreting), and no earlier than the end of October into November 2012, that there was a conjunction of subsequent events that made the applicant’s knowledge of materials facts, including his knowledge of his lower back injury and its symptoms and disabilities, coincident with the circumstances that a reasonable person with that knowledge would have regarded those facts then as justifying and mandating that an action be brought in the applicant’s own interest. It is submitted that the conjunction of events reached ‘critical mass’, so as to be decisive, only when the applicant (who had not been informed by any medical expert, either clearly or at all, by who he had seen previously that he would have to give up full time work) in fact reached the point where he could no longer work full time as a concreter and resigned from his employment. It was submitted that this conjunction of circumstances falls within s 30(1)(a)(iv) of the LAA (‘the nature and extent of the personal injury so caused’).

7. [7]
   In State of Queensland v Stephenson,^[3] the High Court in effect held that ‘decisiveness’ may arise in respect of an already existing known body of facts at some later point in time by a subsequent event or events occurring that made an already known existing body of fact/s ‘decisive’. That is what is submitted here on behalf of the applicant.

8. [8]
   It is not in dispute that it is the applicant who must demonstrate that, without that newly learned fact which he now contends, he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and ought to have, in his own interests, pursued it.

9. [9]
   It is also not in dispute that the onus lies on the applicant to demonstrate that the fact was not within his means of knowledge. Section 30(1)(c) of the LAA makes it clear, in express terms, that this requires not only that the applicant did not know the fact, but also, as far as the fact is able to be found out by him, he had taken all reasonable steps to find out the fact before he did.^[4]

10. [10]
    Helpful written submissions have been provided by both counsel (marked Exhibits 2 and 3 respectively, in the proceedings). A helpful and comprehensive chronology of a summary of the documentation contained in Volumes 1-3 inclusive tendered by the 2nd Respondent (marked Exhibit 4) has also been provided for my assistance. Attached to the applicant’s submissions is another helpful chronology which has also been provided for my assistance.

Relevant background facts

11. [11]
    The applicant has sworn 3 affidavits in this application (Exhibit 1 Tab 1, 6 and 10) and was required for cross-examination for the purpose of this application.

12. [12]
    The applicant says that he has suffered personal injury while travelling as a passenger in a single motor vehicle accident which occurred on 15th August 2008. The driver of that vehicle was his brother Deon who provided a statement regarding that event (exhibit 4 Volume 1 Doc 1). In effect, Deon says that he was driving along a country road at night, between 7 and 8pm, when a kangaroo suddenly jumped out from the long grass on the front passenger side of the vehicle onto the dirt road. In response, he swerved to the right in an attempt to avoid hitting it, then to the left to correct the vehicle’s line of travel, at which time the rear left wheel of the vehicle ‘gripped’ in off the side of the dirt ride which caused the vehicle to roll over onto its roof.

13. [13]
    That version of events is not dissimilar to that given by the applicant in his first affidavit, or the brief account which Jordan Sinclair and Joshua Moffitt also said occurred (Exhibit 1 Tab 1, 3 and 5 respectively). Everyone involved in the accident deposed to the fact that no one was seriously or significantly injured, and as such the police were not called.

14. [14]
    The applicant said in his 1st affidavit (Exhibit 1, document 1) that immediately following the accident, he was in a lot of pain on the right side of his body. That pain was much worse the next morning and he was experiencing pain in his right shoulder, right hip and lower back. He says he thought at that time that his injuries would resolve with rest and the passage of time. He continued to experience ongoing pain and discomfort. At the time of the subject accident he says that he was employed by Lyles Concreting. He was a concreter by trade. He stated that he was able to continuing working as a concreter immediately following the accident by taking painkillers and found that if he moved throughout the day his injury improved. He deposed that he would however experience pain the evenings when he would get home from work but he was still able to cope (at work) nevertheless. In his evidence to the court, the applicant admitted that he didn’t consult a doctor for any of those complaints leading up to Christmas of that year. Indeed, he said that he just took (over the counter) pain medication during this time because he honestly believed he had just pulled a hamstring, which he believed would hopefully resolve itself in time (T1-25).

15. [15]
    He admitted that in December 2008 however, that after he had got involved in a ‘competition’ with his brother whilst performing a BEEP test, ‘it got really bad after that’ (T1-25). He said it was at that point that he then realised it wasn’t just a pulled hamstring he had suffered as a result of the motor vehicle accident, but that the prior symptoms which he had been experiencing since that time (which were made worse after he had been involved in the BEEP test) were actually related to his lower back. That was subsequently confirmed to him on 24th February 2009 after a CT Scan was performed (T1-37 and 2nd affidavit paragraph 5). That scan and a subsequent MRI (31st March 2009) revealed a lumbar disc protrusion involving L4, L5 and S1 with pressure on L5 and S1 nerve roots and an annular tear in disc with tear in contact with nerve root causing excessive irritation respectively. Nerve block injections initially provided some relief (5th March 2009 entry) however the pain soon returned. The entry of 31st March 2009 noted severe back pain at that time, noted in the entry of 29th April 2009, as the pain being so severe that it was ‘making his work as a concreter virtually impossible’. Surgical intervention was then proposed however a delay arose due to the waiting list for surgery on the public hospital list. That was noted as such by Dr Saunders (Sports Physician) in the entry dated 7th August 2009, who confirmed that a discussion was had regarding the options that were available to the applicant. Dr Saunders expressed concern about the delay and the prospect that the applicant might well become an addict in the meantime (referring to his ongoing use of (over the counter) pain medication). He also expressed his view that the only thing that would really make a difference to his management would be surgical intervention.

16. [16]
    A close examination of the chronology of his medical records summary confirms the various attendances upon medical providers and treatment received post the subject accident. Those records reveal that the first time he attended upon the Rosewood General Practice was on 24th February 2009. In his 2nd affidavit at paragraph 6, and in his evidence to this court, the applicant says he had informed the consulting doctor at the time that he had told him about the subject motor vehicle as being the cause of his ongoing symptoms. He also maintained that he had told the doctor about having lifted a heavy log a few months prior to the subject accident at that consultation but had felt no pain when doing so. He also deposed to that latter fact in his 3rd affidavit (paragraph 8). Indeed, in that affidavit he deposed that he had experienced significant pain immediately after the subject accident which had remained ongoing and was still present.

17. [17]
    A close examination of the chronology and notes taken reveal the following. That when the applicant first attended upon the Rosewood General Practice on 24th February 2009 he reported pain only in his hamstring and hip regions for the last 2 months. That is consistent with the immediate preceding entry of the 16th February 2009, and indeed the applicant’s own evidence at hearing, which was that he thought he had always thought it was a hamstring problem. There is no notation however that he informed the doctor on that occasion about the matters he now asserts. I have no reason not to accept the accuracy of the medical notes. I reject the applicant’s assertion at hearing that he had in fact gone to the Rosewood General Practice on the 24th February 2009 about his back because he knew it was his back (T1-37). That evidence simply cannot be reconciled. The subsequent 2 attendances 25th February 2009 and 5th March 2009 with Dr Daoud also do not suggest that the applicant ever mentioned the subject accident as being a possible cause, or indeed any lifting of a heavy log prior to the subject accident. Therefore, even making allowances for lack of memory now due to time that has past, I am unable to accept the assertion made by the applicant at hearing that he thought he was sure he had told that doctor and/or that he did tell either both Drs Saba and Nesic also about those facts (T1-38). The explanation which the applicant gave regarding the lack of any note in the medical records to that effect was a suggestion that doctors (more specifically Dr Saba) have a habit of falling asleep on him during consultations, and that Dr Saba has a ‘condition’ (T1-39). That explanation is rejected. The suggestion that the doctor may simply have not taken a note of it because he doesn’t write down everything when they talk about is also rejected. I am unable to accept that suggestion in view of the applicant’s own evidence that when he went to the Rosewood General Practice for the first time he could barely walk at that time and was in a lot of pain (T1-31). In those circumstances, it beggars belief to find that any doctor in those circumstances would not make a note of any significant probable cause for such an injury being proffered and would not have, had it been mentioned, make a note of any subject motor vehicle accident or indeed lifting of a heavy log (even if untrue) or the like as a probable cause.

18. [18]
    The medical notes also reveal that the first consultation with Dr Saba was in fact on the 31^st of March 2009 and the subsequent attendances upon him do not reveal any such notations. Dr Saba’s affidavit sworn the 2^nd day of October 2014 (exhibit 4 Tab 5, page 3) also confirms that no such communication was made to him personally from the applicant. Indeed, Dr Saba confirms that the first time he knew about a car accident or log incident was from a letter under the hand of Sheryl Pahor (Musculoskeletal psychotherapist at the Princess Alexandra Hospital) dated the 1^st of March 2010, who had informed him of that fact.

19. [19]
    The applicant in any event agreed under cross-examination that the first time he actually told a medical provider that he believed his ongoing back complaints were attributable to the subject motor vehicle accident was on 24th February 2010 when he saw Ms Pahor (Musculoskeletal psychotherapist at the Princess Alexandra). Notwithstanding that he already come to that realisation after a CT scan was performed in February 2009, he did not tell any of the medical providers attending upon him about the motor vehicle accident being a likely attributable cause until he saw Ms Pahor on the 22^nd of February 2010 (Exhibit 1, tab 1, page 6).

20. [20]
    The explanation which the applicant gave regarding this omission on his part is set out in his 3rd affidavit, and in evidence at hearing. He says that when he attributed a log lifting incident to his ongoing pain and symptoms which he was reporting to various doctors, in particular, Dr Redmond (consultation on 19^th of August 2009) it was simply not true. The reason why the applicant says he had not been truthful on those occasions to the various medical providers (and presumably had been silent as to the real cause of his pain even prior to that time) was because he had wanted to protect his brother (presumably from police action as he was the driver) and didn’t want his brother to feel guilty about his injuries. While I willing to accept the applicant’s explanation regarding why he may have wanted to protect his brother initially from police action, even to the extent that he didn’t want to make his brother feel bad, it is nevertheless difficult to reconcile his explanation with the continued failure on his part, over the course of many years, to tell the medical providers what he believed to be the reason for his back injury. That is particularly so, in light of the fact the applicant’s own evidence was that he always knew he hadn’t hurt himself at all during any log incident, that he was already suffering significant pain even prior to the BEEP test as a result of the subject accident and that the pain had been ongoing and was getting significantly worse. There is no reason in my mind why the applicant would not have confided in his own general practitioner well before he did and then only in February 2010 only tell Dr Pahor (Musculoskeletal psychotherapist at the Princess Alexandra). His explanation which he gave at hearing that he needed to ‘tell the truth’ to the doctors and the surgeons that were going to be fixing him at that time is rejected (T1-30). 

21. [21]
    Counsel for the applicant submits that the applicant has been forthright in his explanation on this issue, and that he should be commended for his honesty before this court. Even making allowances for the applicant and the explanations which he has posited, it cannot be said that his evidence should be accepted on this issue with any great certainty or to any great degree. This is not a case where the applicant has said that the reason he had lied to the doctors about the log incident being the cause for his injury was simply because it untrue, that is nothing like that had ever happened or even remotely happened. The applicant has in fact deposed and given evidence at hearing that a log incident did in fact happen in which he was involved even on his own account of up to 30 kgs lifts with another person (David Novelly), Nevertheless his evidence was that because he was only lifting ‘twigs’ and the like presumably on his own, he could not and in fact did not suffer any injury (or pain) at all under those circumstances.

22. [22]
    While any question of how ultimately the applicant’s veracity for truth at any trial on this issue or a general assessment of his credit overall might be made before the trial judge can never be decisive on an application such as this, it is still of some real relevance on an application such as this where the onus of proof always lies with the applicant to persuade this court to grant the application. As such, counsel’s submission as to the overall applicant’s credit on this application made on his behalf, namely that he was a credible witness, overlooks other evidence which the applicant gave which was of concern. For example, he attempted to shift the blame onto Dr Saba regarding the doctor’s (alleged) failure to make appropriate notes during consultation regarding the matters discussed. I observed he was less than forthright when questioned at hearing about what he had told Dr Saba during his consultation on 29th April 2009, which was that he had not told the doctor that his pain was making his work as a concreter virtually impossible. His denial at hearing regarding this issue was less than satisfactory (T1-58). His reluctant acceptance, that he in fact told the doctor but didn’t believe he would have said that because he would have stopped working by then as a concreter had that been the case, is difficult to reconcile particularly when he tried to then suggest that he was working for his brother in law at that time, who wouldn’t have let him continue working for him had that been in fact the position (T1-59). That evidence smacks of invention particularly in circumstances where the only evidence available before this court is that he only commenced working for his brother in law in June 2010 (DLK Concreting) and that prior to that he was self employed laying house slabs and had been working for Lyle Concreting. In other words, the applicant was not even working for his brother in law when he saw Dr Saba on 29^th April 2009.

23. [23]
    The applicant was also less than forthright regarding how much time he was in fact having off from work at the time he saw Ms Pahor on 22nd February 2010. At that time the medical records show that he had told her he was having 4 to 5 days off every one to two months. While he agreed at hearing he may have said that, he maintained that even though his condition had progressively gotten worse, he did not agree that he was having that much time off at the time he saw Ms Pahor as she had been recorded. He then stated in his evidence a little later on however that while he may have been taking that much time off around the time he saw her, it was a ‘up and down thing’ and dependant upon what he was doing (T1-43). His evidence on this issue was less than satisfactory.

24. [24]
    It also appears that the applicant also failed to tell Dr Campbell, Neurosurgeon who examined that he had in fact suffered from lower back pain in 2004. (see entry 29^th January 2004 where it was noted right lower back pain after lifting at work). While it is accepted that the pain suffered on that occasion may well have been less severe or of a difficult type, he nevertheless did not specifically tell Dr Campbell about any prior history of lower back pain. Dr Campbell said as much in his evidence. The reference to a mid back injury in 2004 at page 3 of Dr Campbell’s report (Exhibit 1 tab 8) was explained by Dr Campbell as meaning that he had in fact extracted it from the medical records himself and/or that the applicant had referred to only having what he believed was a mid back injury in 2004. (T1-70).

25. [25]
    The applicant has also consistently stated in his affidavit evidence and before this court that the significant pain which he immediately suffered after the subject motor vehicle accident has in effect, been consistent and ongoing. Indeed, he said in evidence that it had gotten progressively worse over time. He had simply managed it with pain relief and treatment while awaiting surgery. The applicant told this court how that pain and his ongoing symptoms had affected his ability to work as a concreter but that he had nevertheless managed to continue working (by using large amounts of pain relief and pain injections on occasion and by dealing with the pain when he got home). Significantly, he accepted during cross-examination that by June 2010, when he went to work for his brother in law, he knew he had a back injury from the 2008 motor vehicle accident which caused him to be unable to perform the full time duties of a contract concreter (T1-62). His evidence at hearing was that those duties included wheelbarrowing concrete and raking back concrete which he then couldn’t do, so being employed with his brother in law to just laying the concrete insofar as making sure everything was done right seemed better for his back at that time.

26. [26]
    The applicant also suggested to the court that the main reason he went to work for his brother in law was because they were sympathetic to him, because he was a single parent, and found it hard to get to his jobs on time (due to family commitments such having to take son to school) (T1-63). That evidence is difficult to reconcile with the evidence available from that employer which says that because of his injury, the company had adjusted or excused him from particular work activities in order to enable his employment with them work (1st affidavit of Tiffany ‘TMM 4’ Exhibit 1 tab 2 page 143). As no financial records were provided by the applicant for the purpose of this application, the table contained in that annexure provides some insight into the applicant’s ability to work during that time. While it is accepted that some of the weeks not worked may have been attributable to rain days, it is also clear that the applicant was not working to full potential as a concreter, and that in the 6 months prior to his resignation being tendered, the hours worked ironically may suggest he was working most of that time. Notwithstanding this fact, his employer nevertheless says that they did, on a regular basis, in fact pay the applicant for a full day’s work even on days where he was unable to sustain the full day at work due to his back pain. It is difficult to reconcile based on the limited evidence available therefore whether it was only in the several months prior to his resignation with DKL concreters on 24th December 2012, that the pain in his back at that time which had caused him to realise that he simply could not work anymore, only got so bad at that point as he asserted (T1-65 and 66). In this regard, the applicant said at hearing that it was probably two/three months leading up to December (2012) that his pain had progressively gotten worse and there was a number of times he had to go home early from work. He described how he could only sit on a roller in the months leading up to his resignation but that the pain had even got to a point where he knew he couldn’t even do that. In his 1st affidavit at paragraph 55 however, the applicant deposes that he had already commenced performing supervision duties with his employer in August 2012 and that it had enabled him to delegate the duties to other employees which he had difficulty performing, as a result of his injury. The evidence alone shows that even by that point the applicant was clearly aware that he was suffering from his injury sufficiently enough again that it was significantly interfering with his role as full time concreter. This is particularly so where the applicant previously stated that his work as a concreter had involved laying house slabs and the like.

27. [27]
    The submission made on the applicant’s behalf is that the applicant had always managed to continue to work, albeit with pain, up to a time preceding a matter of months just prior to his resignation being tendered in December 2012. It is difficult however to accept the submission made. The medical records show that even prior to the September 2012 (the second critical date proposed by the applicant), the applicant had continued to suffer from significant flare ups of sciatica pain sufficient enough for him to seek medical help (entry 25^th May 2011, entries of 2^nd and 3^rd January 2012 where it was noted that the pain was so severe on any movement whatsoever and that a MRI performed on the 4^th January 2012 revealed ‘exactly the same situation as it had previously shown (years before)’. While the entry of the 3^rd January 2012 notes that the applicant had reported that he had (apparently) been able to get off pain relief and had been going ‘well’ for 18 months, that evidence in my mind is merely consistent with the applicant having being required to perform a lesser arduous role as a concreter (by his employment with DLK Concreters which commenced June 2010) and by being able to take time off whenever he needed to due to his inability to carry out his work as a concreter. His own employer said as such. It is also somewhat inconsistent with his own evidence at hearing which was that he had only gotten through his working days by either adjusting what he was doing, moving around a lot or by taking painkillers. It is also somewhat inconsistent with his own evidence which was that his pain has never gone away, noted many times at various times by numerous medical providers. Even if it accepted that the applicant had in fact improved during any intervening period, to a degree that he could reduce his own pain relief medication, it is evident from the medical records that further contact was still made in any event with a medical provider again in 2 July 2012 relating to lower back pain, at which point Endone was prescribed. Again the 7^th July 2012 entry also reveals that a Centrelink medical certificate was issued. Then in August and even well before 18^th September 2012 (the second critical date), the applicant had been attending for lower back pain at which time significant pain killers had been prescribed in order to manage his pain. He had also remained on the waiting list for surgery.

28. [28]
    It is submitted on behalf of the applicant that it was only at a point sometime shortly before the applicant was forced to tender his resignation on the 24^th of December 2012 (approximately several months before), that things had reached ‘critical mass’ for the applicant, so as to be ‘decisive’.

29. [29]
    In support of that submission, counsel referred to the fact that applicant was never told by any of the medical providers that he had seen, that his condition would progress such that he would have to give up full time work. Counsel also submitted that it was always the expectation of the applicant at least that he thought or believed that with surgery he expected he could return eventually to full time work. It was submitted that the applicant deposed to the fact that he had been advised by some medical providers to remain active to increase his strength and mobility and had done so by continuing to work as best as he could. It was submitted that during the ‘extraordinary delay unsuccessfully awaiting surgery’, his condition progressed to the point where he could no longer work full time and he was forced to resign. The applicant, who had a son to financially support, had nevertheless continued to work until eventually his pain simply prevented him from being able to continue on working.

30. [30]
    It was submitted that the existing body of knowledge of the applicant, that his lower back complaints may well be linked to the subject accident in 2008, did not acquire the necessary quality of ‘decisiveness’ within the meaning of s 30(1)(b) of the LAA until December 2012. In this regard, it was submitted that the conjunction of events which subsequently made the existing body of knowledge decisive were clearly not actually known to the applicant prior to their occurrence culminating in December 2012.

31. [31]
    Nor under the circumstances, it was submitted, has the applicant not taken all reasonable steps to find out earlier what those conjunction of events revealed in December 2012. In this regard, it was submitted that the applicant should not be penalised for trying to get on with his life while awaiting surgery. It was submitted that the applicant had no reason to know, or to ask, whether his lower back condition would prevent him from being able to work as a concreter before surgery or even afterwards. This was because he was able to continuing working, albeit with pain and considerable medication, prior to that point in time and the applicant himself expected he would be able to do so and was not told to the contrary by any medical provider he had seen. This was particularly so, it was submitted, where many of the medical providers knew of his occupation and the type of injury which he had suffered as early as March 2009, it was not unreasonable for the applicant, in his particular circumstances to continue working until he was told otherwise.

32. [32]
    The 2^nd respondent on this issue submits that there is insufficient evidence to establish the material fact contended for was of a decisive character, insofar as the applicant has appeared to have difficulty with work, including periods of time off for treatment, due to his diagnosed back condition for some years and, in so doing, suffered loss which would have been reflected in an award of damages. The 2^nd respondent submits that the fact of the applicant’s resignation in December 2012 merely added to the quantum of damages which he may well have had upon what was already a worthwhile cause of action that had accrued by that time.

33. [33]
    The 2^nd respondent also says that the material fact relied upon by the applicant, if of a decisive character, was not only within his actual knowledge, but within his means of knowledge prior to the relevant date, insofar as he did not take steps as were reasonably open to him to ascertain it.

Was the material fact contended for of a ‘decisive character’?

34. [34]
    Having regard to the whole of the evidence available for consideration to which I have already referred and the helpful submissions made respectively by counsel, I am unable to conclude that the material fact contended for is of a decisive character. In arriving at my conclusion, I have taken into account the following matters.

35. [35]
    It is perfectly plain from the evidence available that the applicant has always regarded his ongoing back problems as having their origin to the subject accident of 15^th August 2008, from at least the 24^th February 2009. He said as much in his evidence. He specifically disavowed a causal link related to a log incident in which he was involved, and admitted that he certainly knew by the 24^th February 2009 that any hamstring pain which he was suffering prior to that time, had its source from his lower back. The CT scan performed at that time confirmed that fact. Indeed, the applicant has never suggested that there is in fact any other cause as being responsible for his back pain other than the subject accident since that time other than the falsehoods which he said he had told to various medical practitioners in order to protect his brother.

36. [36]
    It is also open on the evidence to find that the applicant in this case well knew prior to either of the critical dates contended for that he had suffered a significant injury with consequent severe and disabling pain and had only been able to continue in the duties of his trade as a concreter with difficulty and adjustment. It is also open on the evidence that his condition did not change, that while there may have been some temporary improvement according to his own self report of being able to reduce his pain relief medication, his back pain nevertheless, in his own words to this court, had been persistent and ongoing ever since the accident. That is also consistent with the applicant continuing to remain on the surgical waiting list and why he had in fact sought out a sympathetic employer such as his brother in law in June 2010.

37. [37]
    It is apparent from the chronology of medical records provided, that as early as February 2009, the applicant knew he had suffered a serious and debilitating injury to his back or at the very least, an aggravation of a pre existing injury to his back (currently not pleaded).. He was also advised that surgical intervention was recommended (Dr Redmond, Neurosurgeon entry 19^th August 2009). He gave evidence himself of significant pain immediately after the subject accident which was persistent and ongoing. When he first sought medical attention in early 2009, his complaint of back pain was that it was severe. In April 2009 it was noted that his work as a concreter was ‘virtually impossible’. His denial that he did not make that statement to the doctor is rejected. He was reporting at that time and even prior, of severe sciatica and back pain. The medical records also show that he was managing his pain by taking large doses of opiates.

38. [38]
    Other evidence available also shows that the applicant has been accommodated significantly in his working life since June 2010 by sympathetic employers. I have no reason whatsoever to believe that the main reason he took work with them was because of his family commitments with his young son. His own employers say otherwise even though they were obviously understandably sympathetic towards him as a single parent.

39. [39]
    Having regard to the helpful authority of Suncorp Metway Insurance Ltd v Norris,^[5] which refers to Tregelles-Fox v WorkCover Queensland,^[6] Baillie v Creber & Anor,^[7] and Healy v Femdale Pty Ltd,^[8] it is evident that what an applicant needs to establish in an application such as this, is that without the fact that his employment may have to cease due to the nature of extent of the injury so caused, he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and ought in his own interests pursue it. 

40. [40]
    I find that the applicant ought to have in his own interests pursued appropriate advice from a specialist or a solicitor well before he did. The body of evidence available shows that he has always had a worthwhile action to pursue, particularly if his back symptoms were truly attributable to the subject accident. This is particularly so when his trade was that was of a full time concreter. This is also particularly so when he was forced to change employment in June 2010 as a result of his inability to carry out his full time duties as a self employed concreter. This is not a case where a person has been injured at work and workers compensation benefits have been paid to him leaving little to pursue in reality. The applicant was self employed as concreter, which by its very nature required heavy and intensive work. He knew by then he could not keep on performing that work. It is also not a case where his injury had in fact significantly resolved in the short term and only much later in time then became painful again to a different level or degree which in turn had then caused him to become completely incapacitated for work only at that point.

41. [41]
    I also find that the material fact contended for on behalf of the applicant, was within his means of knowledge.

42. [42]
    As summarised in Suncorp Metway Insurance Ltd v Norris,^[9] a number of relevant principles to the application of this section (section 30(1)(c) LAA), makes it clear, in express terms, that this requires not only that the applicant himself did not know the fact, but also, as far as the fact is able to be found out by him, he had taken all reasonable steps to find out the fact before he did.

43. [43]
    As helpfully set out by McMeekin J in Baillie v Creber & Anor,^[10] an applicant who suffers significant pain and disability commencing with the subject incident, pain with which he eventually could not cope, and a disability sufficient enough to restrict his working ability and which forced him to seek work with a known sympathetic employer amounted to facts which ‘call for prudent inquiry to protect his health and legal rights’. Justice McMeekin also noted that an applicant who has ongoing pain and disability affecting his employability ought to realise that he is in a position of vulnerability and needs to make appropriate inquiry.

44. [44]
    I find those relevant principles are particularly relevant here. The applicant has on his own evidence, had significant warning signs of the injury and its extent. That is evident by his reported ongoing pain and disability and the investigations carried out which recommended surgical intervention. The applicant knew that there would be a long waiting time on the public surgical list. There was a delay even in getting an initial appointment at the relevant hospital where the operation was to be performed (Exhibit 4, entry 20^th may 2009). He was still waiting on the surgical list in August 2009 (Exhibit 4, entry 13^th August 2009). He knew by the 11^th of January 2010 (Exhibit 4, entry 11^th January 2010) he still remained on the waiting list. While it is true that a person should not be punished for getting on with their life, as submitted on behalf of the applicant, this is not a situation such as in Healy v Femdale,^[11] where the plaintiff in that case had returned to employment without significant pain or disability.^[12] In that case it was held that there was no requirement in those circumstances 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.

45. [45]
    The degree of pain and disability here was in my mind such that the applicant ought to have realised that the applicant was in a position of vulnerability and needed to make appropriate inquiry. Counsel for the applicant submits on this point that the applicant had no reason to know, or to ask, whether his lower back condition would prevent him from being able to work as a concreter before surgery or even afterwards. I cannot accept that submission. That submission overlooks the overwhelming body of evidence available to which I have already referred.

46. [46]
    The fact that he was not told by any medical provider that he may not be able to work overlooks the evidence which was that no doctor has still, even at this point, ever told the applicant that he cannot work as a concreter. The applicant said as much in his own evidence (T1-65). The submission also overlooks the fact that the applicant at no stage ever asked whether the injury would eventually cause him to have to give up full time work as a concreter. It was submitted that the applicant himself had no reason not to believe that just prior to him tendering his resignation, once he underwent (successful) surgery, he would be able to return to his full time duties as a concreter as he had before. I cannot accept that submission. The applicant had been advised by Dr Redmond (Neurosurgeon) that even if the operation was undertaken, it was likely his leg symptoms would not completely resolve (Exhibit 4, entry 19^th August 2009). He knew his back symptoms were not temporary as early as the CT scan being performed in February 2009. He knew that the pain was significantly interfering with his ability to work at his full duties as a concreter. The applicant said as much in his evidence, and this is implied by the fact that he had to take up other lighter work and take time off regularly, even with a sympathetic employer. He continued to suffer ongoing debilitating episodes of pain that apparently was being controlled with excessive use of pain medication. He continued to remain on the public surgery list.

47. [47]
    Regrettably on the evidence available for my consideration, it cannot be said that it was only when he began to suffer another episode of debilitating pain in the several months just prior to him deciding to tender his resignation (24^th of December 2012) that the material facts of which he was already aware, only became decisive at that point. This is particularly so when even on the applicant’s own best case, he was already in a supervisory role as a concreter only even from August 2012 and had been unable to fulfil his full time role as a concreter (whether self employer or otherwise) well before that time.

48. [48]
    For the reasons already stated, the application must therefore fail. I dismiss the application and order the applicant pay the defendant’s costs of this application on a standard basis unless the parties otherwise agree.

49. [49]
    Right of Action and Prejudice

50. [50]
    While it is not necessary for me now to specifically address any question of whether or not the applicant has established a right of action apart from a defence founded on the expiration of a period of limitation (section 31(2)(b) LAA) or whether prejudice has resulted in light of the application being dismissed, I wish to make the following brief comments by observation only.

51. [51]
    The submission made on behalf of the applicant regarding the question of whether or not the circumstances which gave rise to the motor vehicle accident occurring are quite properly left for the trial judge in their determination of whether negligence has been established. Nevertheless, the submissions made by the applicant’s counsel regarding the evidence which may support the pleaded grounds of negligence is a valid one and ultimately would have required a determination at trial.

52. [52]
    It is also accepted by me, as evident by my own remarks regarding my impression of the applicant’s overall credit as it related to this application, that some question may well be raised and perhaps be ultimately successful as to the causal link or otherwise of the subject accident and if so, to what degree it relates to the applicant’s injury and any ongoing pain and disability. Again however, those are matters properly left for a trial judge.

53. [53]
    Finally, the onus always lies upon an applicant to persuade the court that any prejudice raised for consideration can be overcome. The issue regarding the logging incident which the applicant and another person were involved in, it is said on behalf of the 2^nd respondent, cannot be now adequately addressed by the 2^nd respondent at this point. There is no evidence on this application that actually points to the witness (David Novelly) being available to give evidence at any trial of this matter. The applicant submits it does not matter because ultimately this issue will be resolved by reference to the acceptance or otherwise of the applicant’s own version of events as it related to the log incident. While that may be so, it still nevertheless cannot be ignored that the 2^nd respondent has been denied an early opportunity to explore this alleged incident at a time closer to when it is said to have occurred.

54. [54]
    Finally, no financial records were annexed to any of the applicant’s affidavits for the purpose of this application. If they are still in existence, these documents will be required to be disclosed to the 2^nd respondent prior to any trial commencing. The failure to produce such evidence at any trial would be to this applicant’s peril especially in light of the pleadings seeking a large amount of damages for economic loss.

55. [55]
    Accordingly, I make the following orders:

1. The application is dismissed.
2. The applicant pay the defendant’s costs of this application on a standard basis unless the parties otherwise agree.