Cummings v Visy Paper Pty Ltd
[2016] QDC 208
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- Unreported Judgment
- Cummings v Visy Paper Pty Ltd[2016] QDC 208
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Cummings v Visy Paper Pty Ltd[2016] QDC 208
Cummings v Visy Paper Pty Ltd[2016] QDC 208
DISTRICT COURT OF QUEENSLAND
CITATION: | Cummings v Visy Paper Pty Ltd & Anor [2016] QDC 208 |
PARTIES: | DARREN LEE CUMMINGS (applicant/plaintiff) v VISY PAPER PTY LTD (ACN 005 803 234) (first respondent/defendant) and WORKCOVER QUEENSLAND (second respondent/defendant) |
FILE NO/S: | BD979/12 |
DIVISION: | Civil |
PROCEEDING: | Application for extension of time |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 22 July 2016 |
DELIVERED AT: | Brisbane |
PUBLISHED ON: | 19 August 2016 |
HEARING DATE: | 13 July 2016 |
JUDGE: | Ryrie DCJ |
ORDERS: |
|
CATCHWORDS: | LIMITATIONS OF ACTIONS – EXTENSION OF PERIOD – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF A DECISIVE CHARACTER – where applicant suffered a psychiatric injury whilst employed by the 1st respondent – where applicant applies for an extension of the limitation period under s 31(2) Limitation of Actions Act 1974 (Qld) – whether material fact of a decisive nature was within the means of knowledge of the plaintiff – whether limitation period should be extended Limitations of Actions Act 1974 (Qld) ss 30, 31 Baillie v Creber & Anor [2010] QSC 52 - applied Charlton v WorkCover QLD & Ors [2007] 2 Qd R 421 - applied State of Queensland v Stephenson (2006) 226 CLR 197 – applied Leigh v State of Queensland [2010] QSC 227 – applied NF v State of Queensland [2005] QCA 110 – applied |
COUNSEL: | S Anderson for the applicant/plaintiff M T O'Sullivan for the respondents/defendants |
SOLICITORS: | Shine Lawyers for the applicant/plaintiff Cooper Grace Ward for the respondents/defendants |
Introduction
- [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 work place injury that occurred over a period during 1996 to 2001 with symptoms commencing in 1999. Both parties accept 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 the 22nd February 2010.
- [2]A notice of claim for damages was lodged by the applicant in respect of a psychiatric injury dated 10th February 2011 as it related to the 1st respondent. On the 22nd February 2011, WorkCover Queensland waived compliance in respect of that notice however maintained its’ right to rely upon the limitation defence. As such, the respondents now oppose this application.
Relevant background
- [3]The applicant had made an application for workers compensation dated 18th September 2001 in respect of a psychiatric injury which he said he had suffered during the course of his employment with the 1st respondent as a result of bullying, harassment and intimidation which he had been subjected to in the workplace. The application was initially accepted by WorkCover Queensland however upon a subsequent review of that decision by Q Comp, it advised that his claim was one for rejection. An appeal was lodged against that decision which was heard by the Industrial Magistrate’s Court. That hearing was conducted over a number of days during late 2002 and August 2003. On the 19th December 2003, the learned magistrate overturned the decision of Q Comp and found that the applicant’s claim was one of acceptance. It is accepted between the parties that it was only at that point that the applicant actually had a ‘gateway’ available to him under the relevant legislation (WorkCover Queensland Act 1996 (Qld)) to pursue a common law claim for damages against the 1st respondent if he so chose.[1]
- [4]The applicant deposed in his affidavit (Court Doc 2), and again reaffirmed during his evidence before me (T1-23,24), that at no stage did the solicitors then acting for him in respect of the appeal before the industrial magistrate, advise him that he also had a right to pursue a common law claim for damages in respect of that injury against the 1st respondent. Annexure DLC 8 of court document 2 in my mind supports what the applicant says in this regard; namely that he had been led to believe at that time that the matter was in fact at an end once the industrial magistrate had given her decision in his favour.
- [5]On the 27th February 2007, the applicant suffered another workplace injury. That related to his shoulder. An application for workers compensation was lodged in respect of that injury dated 25th June 2007 and it was accepted. Statutory payments however were only paid in respect of that claim up until 17th September 2007. The applicant sought a review from Q Comp of that decision on 15th May 2008 (ALP 19 of Court Doc 7). The applicant had initially attended upon his current solicitors for advice in respect of his shoulder injury in July 2007. On the 1st August 2007, the applicant’s current solicitors also wrote to the applicant’s former solicitors (who had acted for him in respect of his appeal before the industrial magistrate in respect of the psychiatric injury), telling them that they had instructions to investigate a possible common law claim arising out of those same events (ALP13 of Court Doc 7). A notice of claim for damages was subsequently lodged in respect of the shoulder injury dated 13th October 2009 by his current solicitors. That claim ultimately settled between the parties on the 17th June 2010 at which time a release and discharge was executed. In the meantime, his solicitors had also arranged for the applicant to attend upon Dr Byth (Psychiatrist) on the 29th January 2008, in order that Dr Byth could prepare a medico legal report in respect of a common law claim for damages in respect of the psychiatric injury which had been suffered by the applicant during his employment with the 1st respondent from 1996 to 2001. Annexure ALP 16 of Court Document 7 sets out the solicitors’ detailed instructions forwarded to Dr Byth for his information.
- [6]The applicant recalled speaking to his current solicitor (Ms Gordon) in respect of his right to pursue a common law claim for damages against the 1st respondent in 2008 (T1-32). He also recalled being told by her that it was something worth following up (T1-33). While the applicant could not specifically remember the exact date in 2008 when he spoke to Ms Gordon about his claim for damages at a point after Dr Byth had completed his report dated 8th February 2008 (T1-38), it became evident during the course of his evidence, that the conversation had in fact taken place because as he stated he had remained in contact with her and she had contacted him regarding his claim (T1-38). He also stated during his evidence that even after he had been diagnosed with cancer (November 2008) and was undergoing treatment for it commencing early 2009 he had communicated with Ms Gordon about pursuing his claim for damages in respect of the psychiatric injury (T1-39).
The respective parties’ contentions
- [7]Those background facts just set out are relevant insofar as no notice of claim for damages was in fact lodged by the applicant in respect of the psychiatric injury until 10th February 2011. It was submitted on behalf of the applicant that the evidence available supports a conclusion being made that the applicant simply did not know that he did in fact have a right to pursue a common law claim for damages against the 1st respondent until such time that Ms Gordon spoke to him about that in 2008. It was also submitted that even if it is accepted that Ms Gordon had told him that he did have such a right which was worthwhile pursuing, that the applicant was not in effect ‘well enough’ psychiatrically speaking, to be in a position to pursue such a claim until about early 2010. In this regard, it was pointed out that on the 27th January 2010, his current solicitors had in fact applied to WorkCover Queensland to ‘reopen’ his 2001 statutory psychiatric injury claim and have it reinstated. Certain processes then took place which finally lead to a Notice of Assessment being issued by WorkCover Queensland in respect of the 2001 psychiatric injury (assessed as NIL impairment) on 16th July 2010. It was submitted on behalf of the applicant that the nature of the applicant’s psychiatric injury even up to, but more particularly from and after 2008, had made it simply impossible for him to bring the common law claim for damages any earlier than when he in fact did. That fact, it was submitted, is borne out by the medical opinion of Dr Byth, which was that had the applicant attempted to pursue any claim for damages against the 1st respondent any earlier than early 2010, that would have in turn had had the effect of exacerbating his underlying psychiatric condition (see Court Doc 3, annexure AB 3).
- [8]It was also submitted on behalf of the applicant that having regard to all of the available medical evidence, especially that of Dr Byth, it supports a conclusion being made that the applicant was simply not ‘well enough’ to pursue his rights until a point after early 2010 which was the time which Dr Byth opined that the applicant would have then reached a point that he could engage in the legal processes associated with bringing such a claim.
- [9]The respondents on the other hand argues that the applicant was well apprised of all the materials facts in respect to his rights to pursue an action for damages against the 1st respondent even at the point when he first left their employment in 2001. It was also pointed out that the applicant had subsequently given evidence himself in respect of the alleged stressors before the Industrial Magistrate’s Court in late 2002, and that it is evident then that as early as 19 December 2003, (the industrial magistrate’s decision), he was already in possession of a critical mass of information that a reasonable person in the position of the applicant, given the facts of the case and taking appropriate advice, would then have had regard to them as justifying and mandating that he should commence his claim against the 1st respondent. The respondents also argue that there has been no adequate reason of a psychiatric or psychological nature that has in any way prohibited or restricted the applicant from pursuing a common law claim for damages even during the period 2001 up to 2008. In support of that submission reference was made to Dr Byth’s concession during the hearing that at the time he examined the applicant on the 29th January 2008 the applicant was only suffering from a mild impairment of functioning and that Dr Byth had agreed that the applicant’s impairment as to functioning would have been much the same in his view, even during the period 2001 to 2008. Put another way, he would have only had mild impairment of functioning during that period.
- [10]The respondents also submitted that even after the applicant had received clear advice from Ms Gordon in 2008, to the effect that he could pursue a claim for damages against the 1st respondent for any psychiatric injury suffered which was worthwhile, that the applicant nevertheless did nothing to further that right until he lodged his notice for a claim for damages in February 2011. As such, the applicant was out of time under the LAA. The respondents’ also submitted that there was simply no evidence to support a conclusion being made that any material facts of a ‘decisive character’ only arose after 22nd February 2010 as contended for. The respondents submitted that in this case there was simply no evidence or insufficient evidence to support a conclusion being made that there was a sufficient psychiatric impediment operating upon the applicant during 2008 or thereafter prior to the 22nd February 2010 which had in turn had the effect of actually preventing or prohibiting the applicant from pursuing his claim before he actually did. As such, it was submitted that the application should be dismissed.
Medical assessment and treatment
- [11]On or about September 2001 the applicant first attended upon his general practitioner, Dr Novic, for treatment in relation to his psychiatric injury. He received a WorkCover medical certificate from Dr Novic on 16th October 2001 which stated that he was suffering from depression with anxiety as a result of workplace bullying and stress. The available medical records from the Manly Family Practice only shows that stress/depression was recorded in November 2008, anxiety/depression in 2009 and 2011 respectively and depressive anxiety disorder noted in 2012 (DLC 14 of Mr Cumming’s affidavit and ALP 4 of Mr Park’s affidavit). Those records also noted that testicular cancer had been diagnosed in November 2008. Medication prescribed over the years included Murelax (a sedative) and Avanza (an anti-depressant) during a brief period in 2009 before it was ceased. Other medication also included pain killers (Endone).
- [12]The initial summary psychological report prepared on 19th November 2003 by Dr Whitelaw noted that it was considered by him at that time that the applicant was suffering from an adjustment disorder with mixed anxiety and depression and needed 5 to 6 counselling sessions. The available records show that the applicant did in fact participate with Dr Whitelaw in 5 counselling sessions over the period 19th November 2003 and 7th October 2004.
- [13]The job capacity assessment report from Centrelink issued on 8th of December 2006 (ALP 8 of Court Doc 7) indicated anxiety as impacting upon the applicant’s ability to work however also indicated that he reported he felt the best he had for more than five years. The applicant also reported that the initial onset of anxiety and depression had occurred as a result of severe workplace bullying and harassment issues which went through court, but that he had not received any finalisation or closure in respect of it. He reported that he would like to follow that up with Legal Aid. It was also observed during the assessment that the applicant had engaged in breathing exercises in order to relax himself. The anxiety noted however was the assessor’s observation only (see Medical Conditions – Source)
- [14]The job capacity assessment report (referral date 10/4/08) (DLC 9 of Court Doc 2)) refers to ‘barriers to be addressed’ and these included an anxiety disorder which may impact upon his ability to maintain suitable employment. It was also noted that even though the applicant reported that he had anxiety, he was however not medicated. It also noted that the applicant stated that he had previously undergone counselling in the past, however that he stated he was able to self-manage his symptoms now. Again, under Medical Conditions – Source, the only medical condition noted was musculo-skeletal disorder (temporary).
- [15]The job capacity assessment report (referral date 16/07/08 (DLC 9 of Court Doc 2)) notes under ‘barriers to be addressed’ a ‘psychological/psychiatric condition’ stating that the applicant experiences ongoing depression and anxiety symptoms and this impacts on his ability to function and interact with others. It is also noted that the applicant did not live in stable accommodation and he was currently trying to source suitable accommodation which was impacting on his stress levels and psychological status. It is also noted that legal action was pending regarding a sinus condition that the applicant had sustained via an assault. In the same assessment report, under ‘Medical Conditions’ anxiety is noted as a permanent medical condition, and the ‘source’ is the treating doctor’s report. It was noted that the condition had not been fully diagnosed, treated and stabilised.
- [16]On the 15th May 2008 the applicant lodged an application for review in respect of a cessation of his statutory shoulder injury claim by WorkCover Queensland (ALP 19 of Court Doc 7) which attached a 2-page comprehensive letter setting out his grievances at that time. That letter is typewritten and signed in typewritten form under the hand of the applicant.
- [17]The applicant had also presented to Dr Byth for the purpose of a medico legal report on the 29th January 2008 at the request of his current solicitors. Under current psychological symptoms reported to Dr Byth, the applicant continued to complain of feeling very anxious and depressed and that he could not cope with his anxiety symptoms. It detailed how those symptoms were impacting upon his general wellbeing and overall functioning. Under past psychiatric history, the applicant reported that after he left work in 2001, the applicant had sought counselling with a psychologist at Interlock and that he had also attended a Buddhist retreat. In 2003, it is reported that the applicant indicated that he had attended with Dr Brian Whitelaw and that he had found the psychotherapy helpful ‘over 18 months up to June 2005’. Medication prescribed by his GP at that time was Murelax for insomnia. He also admitted to using alcohol and cannabis.
- [18]Dr Byth opined in that report (his 1st report dated 8th February 2008 (AB 1 of Affidavit of Dr Byth, Court Doc 3)) that the diagnosis was ‘adjustment disorder’ with anxiety and depressed mood and that his anxiety and depression had fluctuated in the mild to moderate range of severity. His prognosis was that he considered that the applicant’s problems with anxiety and depression had been following a chronic course despite treatment since 2001, however he assessed the applicant as only having a mild impairment using the relevant AMA Guidelines. Dr Byth also did not consider that the shoulder injury suffered in 2007 or breaking up with his partner that same year, or losing his house, car, going bankrupt or his unhappiness about being unable to work consistently since 2001, were contributing factors to his already established anxiety and depression.
- [19]During the hearing, Dr Byth confirmed both in examination in chief and cross-examination that the applicant only had a mild impairment at the time of his examination on 29th January 2008 however by the time he saw him again on the 25th May 2010 (AB2 of Court Doc 3) Dr Byth considered that his condition had deteriorated and he had found that his adjustment disorder had worsened to be of moderate severity and that he had moderately severe symptoms which were interfering with his social life, occupation and functioning. Dr Byth stated that he therefore considered that there had been a worsening of his psychiatric condition over that two-year period (T1-48).
- [20]Dr Byth also stated before me that he considered that by early 2010 the applicant’s psychological state would have partially improved with treatment, particularly after the applicant had managed to control his use of marijuana and therefore would have been able to commence legal proceedings with respect to the workplace bullying claim without exacerbating the psychiatric condition at that stage (T1-48 and AB3 of Court Doc 3). Dr Byth said that by early 2010 he understood that the applicant had already reduced his use of marijuana and he had had some treatment with an anti-depressant and a minor tranquiliser (T1-50). Dr Byth also considered that even though he didn’t examine the applicant again until 25th May 2010, he had inferred that from 29th January 2008 up until he saw him again on the 25th of May 2010, that he had had continuing symptoms as there was evidence of psychological treatment (such as his GP prescribing an antidepressant and the applicant having attended a drug program) and as such, he therefore considered that the applicant would had only been well enough from about early 2010 to bring his common law claim without causing any exacerbation of it. Dr Byth also considered that the diagnosis and treatment for testicular cancer (November 2008 and during early 2009 respectively) would have added temporarily to his anxiety and depression at that time (T1-53). Dr Byth also believed that the applicant had significantly reduced his marijuana use by the time he saw him on 25th May 2010 to mild use or low level use by that stage (T1-54). He noted that the applicant had undertaken a drug rehabilitation program as well since the time he had first seen him on 29th January 2008.
- [21]Dr Byth however also agreed during cross-examination that as at the 29th January 2008 (which was the date of the examination and not the date of his report) that he still nevertheless considered that the applicant was still able to prosecute his claim for damages against the 1st respondent without causing any real aggravation of his underlying psychiatric condition at that time (T1-52).
- [22]The applicant had also been examined by Dr Apel on the 4th March 2010, which was only shortly before Dr Byth saw the applicant on the 2nd occasion. He noted the applicant to be unhappy but not significantly depressed or significantly anxious. Dr Apel noted there was a significant absence of evidence of a mood disorder at the time of his assessment. It was opined by Dr Apel at that time that he considered the adjustment disorder with depressed mood as a result of working with the 1st respondent had fully resolved by the time he had seen him. Dr Apel also noted that the applicant had only related occasional use of cannabis to him yet his urine drug screen testing belied that suggestion and in fact indicated quite significant continuous usage (ALP of Court Doc 7).
- [23]On the 16th June 2010, the applicant also appeared before the Medical Assessment Tribunal in respect of the injury suffered while working at the 1st respondents’ workplace. It is noted on that occasion that he admitted to a long history of chronic heavy cannabis use, although denied any current use. The Tribunal members found that the applicant was suffering from a psychotic disorder with features of paranoid schizophrenia, which was not related to his employment.
- [24]Dr Varghese examined the applicant on the 16th September 2011 and 21 February 2012. Dr Varghese provided 2 reports dated 7th December 2011 and 19th April 2012 respectively (‘A’ and ‘B” of Affidavit of Dr Varghese, Court Doc 6). The first report reveals that the applicant advised Dr Varghese that he had stopped using cannabis ‘last year’. He considered that his mental state findings at that time were not consistent with current major depression and may be more consistent with schizophrenia. He also considered substance dependence also needed to be considered. It was noted however by Dr Varghese, with reference to Psychologist Challee O'Reilly (page 9 of his report), that it may have been that at the time the applicant left his employment in 2001 he may have been suffering from major depression but if so, that it would not have been present for more than one year.
- [25]Dr Varghese also rejected Dr Byth’s diagnosis of adjustment disorder with anxiety and depressed mood as Dr Varghese had noted that Dr Steinberg’s report dated 11 December 2001 referred to that any adjustment disorder with depressed mood had resolved by that time. Dr Varghese also noted that Dr Byth did not even himself consider that the applicant was suffering from major depression when he saw him on 29th January 2008. Dr Varghese further noted Ms Britton’s (psychologist) observations in her report dated 28th November 2002 regarding testing which was perhaps more indicative of a psychotic illness with paranoid features (page 9 of Dr Varghese’s report). Dr Varghese also referred to Dr Byth’s 2nd report (page 11 of Dr Varghese’s 1st report). Dr Varghese noted that Dr Byth had not considered any contribution of the shoulder injury suffered by the applicant in 2007 regarding any relationship to social or occupational impairment when Dr Byth had examined him on 29th January 2008. He also noted that Dr Byth’s observation regarding the reduction of cannabis use as reported by the applicant to him at the time of his 2nd examination on 25th May 2010 was not borne out in light of Dr Apel’s 4+ for cannabinoids noted when Dr Apel had examined the applicant in March 2010. Dr Varghese did however accept that if any exacerbation of any pre-existing adjustment disorder had arisen in 2010 as stated by Dr Byth, then the testicular tumour diagnosis and its after effects were likely to be of greater significance (page 12 of Dr Varghese’s 1st report).
- [26]Dr Varghese did not consider that even if it is accepted that the applicant has been suffering from schizophrenia or indeed any psychological condition of such severity, then it had not reached the point where that was of such a severity that the commencement of a common law claim by the applicant against the 1st respondent would have caused any exacerbation of it (page 19 of Dr Varghese’s 1st report).
- [27]In Dr Varghese’s 2nd report he essentially confirms his suspicion regarding a possible diagnosis of schizophrenia but states that collateral information was also required in order to be more certain of the diagnosis.
- [28]Dr Varghese also gave evidence before me. He confirmed that the fact that the applicant had engaged solicitors to act for him in 2008 in respect of a common law claim for the psychiatric injury and was able to provide comprehensive instructions for that purpose, that was consistent with his opinion, which was that the applicant’s psychiatric condition subsisting at that time was insufficient to have caused any exacerbation of that condition had he pursued his claim against the 1st respondent at that time (T1-58). That opinion was in fact consistent with that of Dr Byth. During cross-examination, Dr Varghese agreed that at the time he first saw the applicant in September 2011 he even considered that he had a reasonably serious impairment. He also accepted that he did not see the applicant during 2008 to 2010. Dr Varghese also accepted that while an adjustment disorder doesn’t necessarily even result in severe impairment it can ‘morph’ into major depression (T1-61). He confirmed that he had thought himself that the applicant may well have had major depression when he had initially first left work in 2001, a fact he had already noted in his report. Dr Varghese also emphatically rejected the proposition put to him during cross-examination that an adjustment disorder can evolve into schizophrenia over time (T1-62).
- [29]The admission hospital records in 2012 note that the applicant was admitted for depression with psychosis following a suicide attempt. It also notes that the applicant denied any past or present substance use. It further notes that the applicant was transferred under an involuntary transfer order ‘after the suicide attempt secondary to underlying untreated psychotic illness with persecutory beliefs and thought disorder’.
The applicant’s evidence
- [30]The applicant provided affidavit evidence (court doc 2 and court doc 10) and was required for cross-examination. In his 1st affidavit the applicant in effect confirms that he received no legal advice from his solicitors at the time of the industrial magistrate’s hearing or at any point, even after the decision was given by the court in his favour regarding his statutory claim, that he could pursue a common law claim against the 1st respondent in respect of his psychiatric injury. He confirmed as much again in his evidence before me.
- [31]He also explained in his affidavits of the impact and effect that the psychiatric injury has had upon him over the years. He deposes that it has impacted not only upon his ability to work but has impacted greatly upon his social and day to day functioning. He deposes how he felt he couldn’t cope and how he was living on occasions with an unstable lifestyle as a consequence of not being able to work. He deposed that after he saw Dr Byth in January 2008, his functioning became worse. In November 2008, he deposes that he was diagnosed with testicular cancer and had surgery in February 2009. He also deposes to having attended at Quinn Rehab Centre to get his medication addiction under control. He stated that after he attended at the Medical Assessment Tribunal in January 2010 his health went further downhill. He says he currently lacks energy and motivation and finds it difficult to enjoy life. He deposes that he has been extremely unwell both physically and psychologically for the past 10 years and that commencing an action prior to now, he believed, would have exacerbated his psychiatric disability. The applicant also deposes in his recent affidavit (Court Doc 10) that he attempted to take his own life by jumping of the Story Bridge in 2012.
- [32]During his evidence, the applicant spoke in a flat tone. Although at times, he was a little vague and wandered in thought, the applicant overall struck me as nevertheless having a good understanding of what was being asked of him during questioning. He accepted that he had provided detailed instructions to his current solicitors regarding his psychiatric injury as to what had caused it and that they had obtained a report from Dr Byth in respect of a common law claim for damages against the 1st respondent. He confirmed that he had understood that he could do that once he had been told that by Ms Gordon sometime in 2008. He also agreed that he had given evidence at the Industrial Magistrate’s Court hearing in August 2002 himself about the workplace stressors which had led to him developing a psychiatric illness. He agreed that he had also given comprehensive details to his current solicitor of those facts and again reiterated those again to Dr Byth when he first saw him in January 2008.
- [33]It was put to the applicant during cross-examination that once he had been told by his solicitor in 2008 that he could pursue a common law claim for damages against the 1st respondent and that it was worth pursuing, that he had simply ‘let it slide’ until 2011. The applicant stated in effect that ‘I just waited for what they requested him to do and that’s why there might have been a gap there as I was waiting for more information of what I needed to do or what we were going to do following Dr Byth’s …’ (T1-36). It was also put to the applicant during cross-examination that during the period from 2003 to 2009 there was no condition that he had suffered, psychiatric or otherwise that would have stopped him from bringing a common law claim. The applicant’s reply was ‘it wasn’t until, like I said, I’d talked to Ms Gordon’ (T1-37).
- [34]During re-examination it was elicited from the applicant that at the time he saw Ms Gordon in 2008 he wasn’t really living anywhere in stable accommodation, that he wasn’t really coping with things in his life and that he had only got more clarity when he got crook with cancer (November 2008). He stated that by that time he had made up with his family or his sister who had taken him back in after a period of time and that leading up to his cancer diagnosis and treatment he wasn’t well and the way his life was, it was a total mess (T1-39). He confirmed nevertheless that he still remained in contact with Ms Gordon even after the cancer diagnosis and treatment process about pursuing his claim for damages, either by phone and/or by letters (T1-39).
- [35]The applicant also said that the reason that he had ‘let it slide’ after he had first seen Dr Byth in January 2008, was that he was having to deal with trying to get better, both physically and psychiatrically, and that particularly after the cancer operation in February 2009 it was very tough and he just needed to get better and get himself into better living arrangements as he was living in a shed with no facilities. He stated that he wanted to have more stability in his life where ‘we’ (which I took that to mean himself and his solicitor) could ‘forward the process to the claim’ (T1-39 L30 – 40). He stated in effect that he didn’t have anywhere ‘she’ (his solicitor) could meet or where he might have been available to correspond and progress the claim (T1-39).
The applicant’s sister
- [36]Ms Galbraith gave evidence by affidavit (Court Doc 11) and during the hearing. She confirmed that her brother had resided at their family home while her family were in Sydney during 2000 to 2005. They returned in 2006 at which time her brother moved out. She confirmed that she and her brother had had a falling out at which time she did not speak to him until 2008. She confirmed during her evidence before me that her brother returned to live with her again in early 2008 in the family’s shed and that he would come up to the house for meals and use the bathroom facilities but that at some time in 2009, he moved out again but had returned again to live with her during 2010 (T1-44). Ms Galbraith confirmed in effect during re-examination that her brother had been ‘full of life’ before he had worked for the 1st respondent and that her observations of him were that he has never returned to his old self since that time during the time she had been in contact with him. She described him particularly as shutting the family out.
- [37]It is submitted on behalf of the respondents that the applicant was apprised of all material facts, even during the period 2001 up to 2008, which would have shown to a reasonable person, having taken the appropriate advice on those facts, that an action would have a reasonable prospect of success resulting in an award of damages sufficient to justify it. In support of this submission, the respondents’ refer to the concessions made by the applicant himself which was that he knew what had caused his psychiatric injury, namely the workplace stressors he had encountered at the 1st respondent’s workplace, that he had spoken about it in correspondence to WorkCover Queensland as part of its’ review, he had given evidence about it before the industrial magistrate which he reiterated again to his current solicitors and again to Dr Byth in early 2008 when he saw him and had ultimately received legal advice of his right to pursue a common law claim for damages against the 1st respondent when he spoke to Ms Gordon during 2008 which he was told was worthwhile. While I accept the submission made by the respondents on this issue, that submission in my mind overlooks the following considerations.
- [38]Firstly, I had no real reason to reject the applicant when he tells me he was never told of his common law right to pursue damages against the 1st respondent prior to speaking to his current solicitors. The letter sent to him from his former solicitors (Court Doc 2, DLC 8) supports a conclusion being made that until the applicant spoke to his current solicitor, he did not know he could bring a common law claim for damages against the 1st respondent. Reference was made to the Centrelink document (page 136 of Mr Park’s affidavit) regarding the applicant considering seeking Legal Aid in respect of his psychiatric injury. That entry however is in my mind equally consistent with WorkCover Queensland simply not having reinstated his statutory benefits after the Industrial Magistrate in December 2003 found his claim was one for acceptance. Indeed, the letter written by his current solicitors in January 2010 to WorkCover also confirms that position as it is clear from the contents of that letter that they had attempted to have the statutory claim re-opened and his statutory benefits reinstated. (Court Doc 7, ALP 22).
- [39]There was however the correspondence sent by his solicitors to his former solicitors on 1st August 2007 indicating that they had received instructions in respect of a possible common law claim for damages in respect of the same events which the former solicitors had represented the applicant before the Industrial Court which might well be highly suggestive of a discussion regarding a possible claim for damages against the 1st respondent having already been discussed between the applicant and his current solicitor even at that stage. However the fact remains the same; the issue to be determined in this case is, even if the applicant was well and truly apprised of a critical mass of information concerning his claim and had been advised of his right to pursue a common law claim for damages which was worthwhile, particularly after he had spoken to his current solicitors, either in 2007 or 2008, whether those material facts within his knowledge relating to the right of action were not of a ‘decisive character’ until after the critical date namely the 22nd February 2010. That date is in effect one year prior to the date on which the applicant received notice from WorkCover Queensland (dated 22nd February 2011) that it would waive compliance in respect of the lodged Notice of Claim for Damages dated 10th February 2011.
- [40]In this regard, the applicant argues that even if it is found that the applicant was clearly apprised of his rights regarding a common law action for damages against the 1st respondent at the point he spoke to Ms Gordon in 2008, he was nevertheless still unable to bring his claim any earlier than he did (that is, until a point after the critical date) due to the nature and progression of his underlying psychiatric injury and the likelihood that the bringing of such a claim any earlier would have exacerbated it. The applicant refers in particular to the authority of State of Queensland v Stephenson[2] in support of its’ submission. In that case although that applicant knew that he was permanently incapacitated for police work and was in possession of all of the material facts relating to his right of action against the State which were within his means of knowledge which would have shown to a reasonable person, having taken the appropriate advice on those facts, that an action would have a reasonable prospect of success resulting in an award of damages sufficient to justify it prior to the expiry of the relevant limitation date, an earlier commencement of his action would have in turn exacerbated his psychiatric disability which meant that those material facts were not of a decisive character until after the critical date namely until after his medical retirement from the police service.
The relevant law
- [41]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—
- (a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
- (b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 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.”
- [42]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 –
- (a)the material facts relating to a right of action include the following –
- (i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
- (ii)the identity of the person against whom the right of action lies;
- (iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
- (iv)the nature and extent of the personal injury so caused;
- (v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
- (b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing –
- (i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
- (ii)that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
- (c)a fact is not within the means of knowledge of a person at a particular time if, but only if –
- (i)the person does not know the fact at that time; and
- (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.
- (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.”
- [43]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.
- [44]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, was not within his means of knowledge until after 22nd February 2010. It is not necessary to point to any specific date as long as it was not before 22nd February 2010.
- [45]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’. The facts of that case illustrates how known material facts may take on a decisive character in the light of subsequent events.
- [46]It is not in dispute that the onus is on 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. 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]
- [47]In Baillie v Creber & Anor,[5] Justice McMeekin noted that 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 the particular personal injuries.[6] This approach is consistent also with NF v State of Queensland,[7] as Keane JA (as he then was) explained:
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 he is able to take to find out the fact, and has not found it out, that fact is not within his or her means of knowledge for the purpose of s 30(1)(c) of the Act.
Should the limitation period be extended as contended for?
- [48]In considering whether a material fact of a decisive character relating to the applicant’s right of action was not within his means of knowledge until after 22nd February 2010, it is relevant to have regard to the fact that the applicant is seeking damages for a psychiatric injury.[8] As such, it was necessary for me to conduct a detailed examination of the available medical evidence. In arriving at my ultimate conclusion, I have carefully considered this, having regard also to the affidavit and oral evidence available for consideration.
- [49]Regrettably, I have come to the conclusion that the extension of the limitation period should not be granted. Put another way, the applicant has not discharged the onus of proof which lies upon him. In arriving at that conclusion I have taken into account the following matters and have arrived at the following findings.
- [50]In either 2007 or 2008, the applicant was given certain advice from his current solicitor in respect of his right to pursue a common law action for damages against the 1st respondent. The applicant conceded as much in his evidence before me that he fully understood the advice that he had received in that regard from Ms Gordon, which he thought was in 2008, which was that he could pursue an action for damages against the 1st respondent and that it was worthwhile to do so. I find that the applicant was in possession of all material facts relating to his right of action against the 1st respondent which was within his means of knowledge at least by that point in time. I also find that it is more likely than not that the applicant was advised of that right either just prior to Dr Byth being engaged to examine the applicant for the first time on the 29th of January 2008 in respect of a medico legal report, or shortly after the report was prepared. There was no affidavit or oral evidence tendered at hearing by his current solicitors to suggest otherwise.
- [51]The applicant relies on the opinion of Dr Byth, which in effect was that the applicant simply was not ‘well enough’ to pursue his claim until a point sometime in early 2010 at which time Dr Byth then considered the applicant could do so without exacerbating his underlying psychiatric condition. That opinion however must be tempered by the evidence which Dr Byth actually gave at hearing before me, which was that at the time he saw the applicant on 29th January 2008, the applicant was only suffering from a mild impairment of functioning and that he expected that his level of impairment of functioning would have been much the same during the period 2001 up to when he first saw him in 2008. Significantly Dr Byth stated during his evidence before me that at the time he first saw the applicant, he considered that the applicant was in fact able to prosecute his claim for damages without any real risk of aggravation of his psychiatric condition (T1-52).
- [52]Even notwithstanding that concession to which I have just referred, I still had some difficulty in accepting Dr Byth’s opinion in any event. I shall now explain. Firstly, the opinion was that the applicant was only ‘well enough’ from early 2010 onwards to progress his claim without exacerbating his psychiatric condition. However, Dr Byth found that the applicant’s level of impairment of functioning at the time of his second examination (May 2010) was in fact far worse than when he had first seen him (January 2008) (T1-48 L 45). It seems odd then that Dr Byth would consider that the applicant would only have been in fact well enough by early 2010, which is only several months before he saw him in May 2010, to prosecute his claim for damages at that time without it exacerbating his psychiatric condition.
- [53]Secondly, Dr Byth placed great importance upon the fact that by the time he saw the applicant on the second occasion, he felt that because the applicant had reduced his use of marijuana to a low level, had received some treatment with an antidepressant prescribed by his GP, had undertaken a drug rehabilitation program in 2009 and also had been prescribed a minor tranquiliser, that those facts may well have allowed the applicant to have had a partial improvement enough to commence legal proceedings from early 2010 without it exacerbating his psychiatric condition (T1-50 and T1-52). A careful examination of the available medical evidence however shows that the applicant was in fact taking a minor tranquiliser even at the time Dr Byth first saw him in January 2008, that the applicant had been even prior to 2007, to see a psychologist and had been prescribed an antidepressant previously (page 6 of AB 2 court doc 3) and that the applicant’s reported reduction regarding his drug use to Dr Byth during the May 2010 consultation was questionable in light of the independent evidence noted by Dr Apel during his examination in March 2010.
- [54]Thirdly, Dr Byth did not in fact examine the applicant during the period January 2008 and May 2010, a fact not dissimilar to Dr Varghese. Relevantly, the evidence shows that during this period, the applicant had been able to prepare a comprehensive grievance against WorkCover Queensland regarding his shoulder injury statutory claim in May 2008, had also been able to give instructions to his current solicitors to commence an action for damages in respect of his shoulder injury in Oct 2009, had stable accommodation during the whole of 2008 at his sister’s home (even though he was living in her shed with limited facilities), and conceded that he had been communicating by phone and/or letter with Ms Gordon about his claim for damages against the 1st respondent even after his diagnosis of cancer and subsequent treatment. While it is accepted by me, and more particularly by both Doctors Byth and Varghese, that the diagnosis of testicular cancer in November 2008 and the subsequent treatment of it from early 2009 would have exacerbated his psychiatric condition at that time, at least temporarily, the evidence to which I have already referred does little to support a conclusion being made as contended for, that the applicant only became ‘well enough’ in early 2010 to pursue his claim for damages against the 1st respondent and that if he had done so any earlier it would have exacerbated his psychiatric condition. As Dr Byth himself even opined, the applicant’s psychiatric condition had over the years, fluctuated, between mild to moderate severity, before it took a more serious turn in 2012 when the applicant attempted to take his own life.
- [55]I have also had regard to the fact that Dr Byth has also said in his 2nd report that the shoulder injury suffered by the applicant in 2007 and the difficulties he experienced from WorkCover in respect to the progress of that statutory claim had in fact played a significant part in the aggravation of his underlying condition. However in his 1st report, I note that Dr Byth did not even consider at the time he saw the applicant in January 2008, that the shoulder injury suffered by the applicant in the previous year had played any significant role in his mental presentation at that time even though the statutory benefits in respect of that shoulder injury had already been initially ceased in September 2007, and it had presumably been causing him physical pain and difficulty which had been impacting upon his ability to work.
- [56]Finally, I have taken into account and had particular regard to all of the available records to which I have already referred to in this decision and in particular from 2008 onwards annexed to the various affidavits. While I accept the applicant has been suffering mentally for a very long time, which sadly had progressed to a point where the applicant even attempted to take his own life in 2012, I am nevertheless regrettably unable to be satisfied, that the applicant has discharged the necessary burden of proof placed upon him, based on the material that was available to me for my consideration upon this application, that the applicant’s psychiatric injury did in fact make it impossible for him to bring his claim any earlier than he did and that had he done so, that in turn would have exacerbated his psychiatric condition.
- [57]Accordingly, the application is dismissed.
Prejudice
- [58]I do not intend to address any question of prejudice in my reasons as it is in my view now unnecessary to do so in light of the reasons just set out.
Orders
- The application is dismissed.
- The applicant is to pay the respondent’s costs on a standard basis unless the parties otherwise agree.