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- Unreported Judgment
Morgan v JBS Australia Pty Limited QDC 226
DISTRICT COURT OF QUEENSLAND
Morgan v JBS Australia PTY Limited  QDC 226
BILLY RAY DAVID MORGAN
JBS AUSTRALIA PTY LIMITED
4957 of 2015
6 September 2016, ex tempore
6 September 2016
LIMITATIONS OF ACTIONS – Application for extension of time – Personal Injury to employee – whether material fact of a decisive character – whether within means of knowledge of applicant.
Limitation of Actions Act 1974, ss 11, 30, 31.
Watters v Queensland Rail  1 Qd R 448
J Kimmins for the applicant
G Cross for the respondent
Maurice Blackburn Lawyers for the applicant
Meridian Lawyers for the respondent
- This is an application seeking an order that the limitation period in respect of the applicant’s claim for damages for personal injuries arising on 27 August 2012 be extended, pursuant to section 31 of the Limitation of Actions Act 1974 (“The Limitation Act”) to 18 December 2015.
- In the course of his employment as a meat worker at the respondent’s Dinmore abattoir, the applicant sustained an injury to his right index finger, which is described in a report to WorkCover from his treating surgeon, Dr Goh, dated 8 October 2012 (“Dr Goh’s Report”) as a fracture of his right index finger, as well as proximal interphalangeal joint capsule laceration and extensor tendon laceration. The applicant underwent surgery and the damaged joint and tendon were repaired. In Dr Goh’s report, he stated:
“My predicted prognosis of Mr Morgan is that he will have near full return of function of his affected hand and return to a full capacity of work. This can be anticipated by mid October, 2012… At this point in time, the work related injury has not reached maximal medical improvement and it is anticipated that he will continue to improve with time”.
- It is alleged by the applicant that during his final appointment with Dr Goh, which took place on 26th March 2013, he was advised that it would take “approximately two to three years for [his] injury to resolve, and [his] finger to return to normal”. The allegations of the applicant, that he was advised in these terms are essentially corroborated by his former partner, Ms Bishop, who stated that she recalled Dr Goh telling the applicant that “his finger would be back to normal within three years, provided he participated in physiotherapy.”
- It appears that the applicant diligently attended his rehabilitation program. He ultimately returned to full duties and was promoted to a boner. However, he appears to have experienced problems with the injured finger and the problems seemed to be such that he explored requesting a permanent impairment assessment, although he did not proceed with it, in October 2013. By early 2014, the symptomatology in respect of the injured finger appears to have become more acute. The applicant asked the respondent how he would re-open his claim in respect of his injured finger on 27 March 2014. He was advised to consult his general practitioner and get a referral to see Dr Goh. On 11 September 2014, the applicant attended an appointment with his general practitioner, Dr Ghaed and informed him that he had injured his finger three years ago, that he had pain, that there was swelling and tenderness over the joint line and that his finger locked when bending. It appears uncontentious that the symptomatology recorded by Dr Ghaed represented a deterioration in the finger in terms of function and a worsening of the symptomatology associated with it. It is uncontentious that for the first time the applicant had been provided with a medical certificate by the respondent stating that he was unfit for work as a consequence of these issues associated with this finger. The applicant was referred to Dr Goh for “reconstruction” via a referral letter dated 11 September 2014. The applicant did not, however, attend Dr Goh, for reasons which he asserts are relevantly, that he “remained hopeful [his] injury would resolve”.
- It was not until September 2015, approximately two and a-half years from when he received the advice from Dr Goh on 26 March 2013, that the applicant sought advice from his solicitors. After he did so, things moved expeditiously and this application was filed on 29 June 2016, after appropriate investigations were undertaken by the applicant’s solicitors.
- It is submitted on behalf of the applicant that the applicant was entitled to follow the verbal advice he received from Dr Goh and other verbal advice which he had received via his employer in the intervening period, when he was told that another orthopaedic surgeon, Dr Duke, had informed the respondent that it was unlikely he would have an impairment as a consequence of the injury sustained to his finger. Unsurprisingly, the respondent submits otherwise.
- In order to weigh the respective arguments, it is necessary to have regard to the relevant provisions of the Limitation Act. Pursuant to section 11, there is a three year limitation period in respect of a claim for damages for personal injuries. This period can be modified pursuant to section 31, which applies to actions for damages for negligence, amongst other things. Relevantly, it is stated:
“(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.”
In the Limitation Act, section 30 provides for the interpretation of various concepts set out in section 31. Relevantly, pursuant to section 30(1)(a)(iv), the material facts relating to a right of action include “the nature and extent of the personal injury so caused”. The balance of section 30 is comprehensive in placing limits on the court’s discretion, pursuant to section 31. It is in the following terms:
“(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.”
- It is uncontentious that there is evidence to establish an action in negligence, but for the expiration of the period of limitation, which would have a reasonable prospect of success, and which would result in an award of damages sufficient to justify the bringing of the action in this regard. The respondent also submits that there is no issue of prejudice to it should the period of limitation be extended. The material fact of a decisive character that is under consideration by me is that the applicant’s finger was not making a full recovery as allegedly predicted by Dr Goh, and whether, in the event that this fact was not known by the applicant at the time, he took all reasonable steps to find out this fact, which included obtaining the advice of competently qualified medical practitioners.
- Although Dr Goh was somewhat guarded in his prognosis, quoted in Dr Goh’s letter above, this is unsurprising given that this was a formal report to WorkCover. The verbal advice allegedly given to the applicant in more positive terms, and corroborated by his former girlfriend, Ms Bishop, is contested by the respondent.
- Both the applicant and Ms Bishop were cross-examined as to the veracity of their allegations in this regard. I accept that they both apprehended the advice in the terms alleged by them. I do not find this surprising, given that Dr Goh was presumably seeking to reassure the applicant in circumstances where he was unlikely to have any reason to doubt Dr Goh’s positive prognosis. I therefore accept the assertion by the applicant that he was given advice by Dr Goh in the terms he alleges. The issue before me is whether it was reasonable for him to continue to be optimistic in respect of this prognosis despite the deterioration of the function and symptomatology which occurred in the finger which had been operated on by Dr Goh.
- In Watters v Queensland Rail  1 Qd R 448, at 453, Thomas JA stated, inter alia:
“The fact that a plaintiff's injury was more serious than he or she had hitherto realised has long been recognised as capable of being a material fact. Such a fact of course needs to be weighed in context with facts already known and reasonably capable of being known.”
- Subsequently, his Honour further stated at 456:
“One particular matter that s 30(1)(b) specifically requires the material fact to bear is an economic characteristic. It must produce the conclusion that the action would result in an award of damages sufficient to justify the bringing of an action. In this context it would seem inappropriate to limit the connotation of “the nature and extent of the personal injury so caused” to medical concepts or to the mere consequences to the person of the plaintiff.”
- It is therefore necessary to consider not only the symptomatology and difficulties with function that presented themselves to the applicant, but also whether there was sufficient basis for assuming that they warranted the bringing of an action. Given the importance of the index finger to a person employed in the capacity the applicant was employed, and the reasonable prospects of success of an action for negligence apart from the limitation period, I am of a view that the particular focus of the inquiry of the court is whether the applicant took all reasonable steps to find that his finger was not making a full recovery as predicted, and that this full recovery was not a trivial matter from the perspective of his economic wellbeing.
- Although I have sympathy for the plight of the applicant, it stretches credulity that he would blindly rely upon a prognosis from Dr Goh in circumstances where, by September 2014, he now not only had pain in the finger but also swelling of the joint and a locking of the joint such that he was provided with a medical certificate stating he was unfit for work. It also stretches credulity that he would blindly follow the prognosis given by Dr Goh in circumstances he was referred to Dr Goh by his general practitioner for “reconstruction” in light of his symptomatology.
- In these circumstances, I am of the view that it cannot be said that a material fact of a decisive character relating to his cause of action was not within his means of knowledge until after the commencement of the year last preceding the expiration of the period of limitation for the action, because he had not taken all reasonable steps to find out that fact before that time.
- I therefore dismiss the application.
- I appreciate that costs normally follow the event, however the applicant is a manual worker who is a man of limited means. He has been unsuccessful in this action in circumstances where he had a prima facie claim in negligence against the respondent, but for the limitation defence relevant to this application. Accordingly, in the exercise of my discretion, I decline to award costs.
- I further order that the claim and statement of claim filed in District Court proceeding 4959 of 2015, is dismissed.
- Published Case Name:
Morgan v JBS Australia PTY Limited
- Shortened Case Name:
Morgan v JBS Australia Pty Limited
 QDC 226
06 Sep 2016