Feher v Commonwealth[2016] QDC 275

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff was employed by Workforce Action Pty Ltd (Workforce) as a quarantine inspection assistant. Workforce contracted with the Commonwealth of Australia (the Commonwealth) or Australian Quarantine Inspection Services (AQIS) to provide personnel at the Port of Brisbane. The plaintiff was injured at work at the Port of Brisbane on 6 June 2006.

2. [2]
   On 20 June 2014 the plaintiff was granted leave pursuant to s 43 Personal Injuries Proceeding Act 2002 to commence proceedings against the Commonwealth.^[1]On 17 July 2014 the plaintiff commenced proceedings against the Commonwealth.

3. [3]
   On 14 January 2015 the plaintiff commenced proceedings against Workforce. However Workforce was deregistered on 17 April 2012.^[2]On 18 February 2015 an order was made substituting WorkCover Queensland (WorkCover) as the defendant in matter 141/15.^[3]

4. [4]
   The Commonwealth and WorkCover contend that the plaintiff’s claims have been commenced outside the three year limitation period provided by s 11(1) of the Limitation of Actions Act 1974 (the Act) and are therefore statute barred.

5. [5]
   The plaintiff has filed applications seeking orders pursuant to s 31(2) of the Act that in each case the limitation period be extended until 15 October 2014.

Limitation of Actions Act 1974

6. [6]
   The Act provides in s 31(2) that:

“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.”

7. [7]
   A number of expressions in s 31 are defined in s 30(1) which provides:

“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—

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.”

8. [8]
   The term “appropriate advice” used in s 30(1)(b) is defined in s 30(2) to mean in relation to facts, “the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”

The issues

9. [9]
   The Commonwealth and WorkCover concede that there is evidence to establish the plaintiff’s right of action, apart from a defence based on the expiration of the limitation period: s 31(2)(b) of the Act.^[4]The concession was properly made. The test simply requires that an applicant, “…point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case.”^[5]

10. [10]
    The issues to be determined are:

Factual background

• Whether the plaintiff became aware of material facts of a decisive character on 15 October 2013 when he saw a medical practitioner and was informed that he was unlikely to make a full recovery and it was likely that he would suffer from the onset of arthritis in the future; and

• If so, whether the plaintiff can establish that an extension of the limitation period would not result in significant prejudice to the Commonwealth and WorkCover.

11. [11]
    The plaintiff commenced employment with Workforce in March 2005.^[6]He was advised that he would be working as a quarantine inspection assistant for AQIS (Department of Agriculture, Fisheries and Forestry) at Patricks Wharf at the Port of Brisbane.^[7]

12. [12]
    The plaintiff’s role required him to visually inspect freight containers that were loaded on trucks for external foreign material and contaminants. This was done by the use of a CCTV camera and monitor. The plaintiff was required to attempt to remove any foreign material or contaminants that were identified. This task involved the plaintiff climbing an aluminium A-frame ladder and utilising a platform to access the upper parts and roof of the freight containers. The task was performed in the open and subject to the elements.^[8]

13. [13]
    The plaintiff commenced work at about 10.00 pm on 6 June 2006. He says that there were showers on and off from the commencement of the shift.^[9]

14. [14]
    At approximately 1.15 am he observed on the CCTV monitor that there may have been foreign material on the roof of a container. He decided that a visual inspection was required.^[10]

15. [15]
    The plaintiff says that it had been raining previously but was only spitting at the time that he ascended the ladder.^[11]

16. [16]
    After inspecting the roof of the freight container the plaintiff began descending the ladder. His foot slipped and his right leg was caught on a rung. He sustained an injury to his right knee.^[12]

17. [17]
    On 14 June 2006 the plaintiff lodged an application for compensation with WorkCover. The application was accepted and WorkCover paid his treatment costs and provided income benefits.^[13]

18. [18]
    In about mid-August 2006 the plaintiff was diagnosed as having suffered a rupture of his right anterior cruciate ligament (ACL). He was told by Dr Mark Dekkers, orthopaedic surgeon, that the injury required surgical repair.^[14]The plaintiff says that before the surgery was performed he was told by Dr Dekkers that most young people make a good recovery from ACL surgery and that at six to nine months post-surgery he should enjoy full function and capacity without any significant ongoing pain or restriction.^[15]

19. [19]
    The plaintiff underwent the ACL repair on 23 August 2006. After the surgery Dr Dekkers informed him that the procedure had gone well and there had been no complications.^[16]

20. [20]
    By the end of 2006 the plaintiff says that he had not suffered any real financial loss and had made an almost complete recovery. He expected that he would make a full recovery. He says that he did not believe and had no reason to believe that he would suffer from any adverse effects or loss in the future.^[17]

21. [21]
    In late 2006 the plaintiff’s mother who lived in England became ill. The plaintiff decided that he would move to England to care for her.^[18]The plaintiff moved to England in January 2007.^[19]

22. [22]
    In about May 2007 the plaintiff was working as a storeman at a warehouse. He says that the role involved a lot of lifting and bending and he found that at times he experienced some pain and swelling in his right knee, particularly after a heavy day at work. He attended a physiotherapist and was informed that there was no instability in the ACL. He was told that he had some weakness in his quadriceps and hamstrings and that he should continue with exercises to build them up. After a month or two his symptoms settled. The plaintiff says that he was able to undertake all of his employment tasks throughout this period and did not require any significant time away from work.^[20]

23. [23]
    On 6 November 2007 the plaintiff fell awkwardly when he missed a step. His knee gave way and he experienced a sharp pain and some swelling. He attended hospital and had an x-ray. The plaintiff says that he was told that it was likely to be just a sprain and to apply ice and take some ibuprofen and see a doctor if his symptoms continued.^[21]

24. [24]
    The plaintiff was referred to a knee clinic. He attended the clinic on or about 13 December 2007. He was told that it was possible that he may have re-torn the ACL. He was told that an arthroscopy would be able to determine if the ACL was damaged. He was placed on a waiting list. The plaintiff says that his symptoms settled after December 2007. Throughout the period December 2007 to April 2008 he says that he was able to undertake full employment duties and experienced only some mild symptoms including occasional feelings of instability.^[22]

25. [25]
    The plaintiff underwent the arthroscopy in April 2008 and was told that the ACL graft was intact and that his knee was stable. He was told that there was some fraying of the fibres but there was no need for any intervention and that his knee was structurally sound. He was advised to continue strengthening exercises to build his muscles.^[23]

26. [26]
    The plaintiff says that after the arthroscopy his symptoms settled. He was able to undertake all of his employment duties. He would intermittently experience pain and swelling in the evening if he had a big day at work that involved a lot of squatting and carrying of boxes. He says that at this time he could go for two months without any symptoms and then have “a little flare up” where he experienced some swelling and pain. He says that this always settled within 24 to 48 hours.^[24]

27. [27]
    The plaintiff says that throughout 2008 to 2010 he had very few issues with his knee. He says that occasionally every couple of months he would experience some soreness after a heavy day at work.^[25]He says that on one occasion in 2010 he experienced sharp pain in his knee while at work. He went to the hospital where an x-ray was taken. He was advised that his knee was fine and that he should rest and apply ice. The pain did settle down and he was able to undertake all of his employment duties.^[26]

28. [28]
    The plaintiff continued to work throughout 2011 and 2012. He returned to Australia in April 2012 and obtained employment working in a night club. From mid-2012 the plaintiff noticed that he started to get pain and swelling in his knee more frequently. From mid-2012 and into 2013 the symptoms became more frequent and would occur every couple of weeks. By 2013 the symptoms were more severe in that the pain was worse and the plaintiff was having to take pain killers and ibuprofen when he experienced flare ups.^[27]

29. [29]
    By early 2013 the plaintiff had become concerned about the worsening symptoms. He contacted WorkCover and his claim file was reopened. He was referred back to see Dr Dekkerswho had performed the initial ACL repair.^[28]

30. [30]
    An MRI was performed after which Dr Dekkerstold the plaintiff that there was scar tissue in the knee. The plaintiff was told that it was likely that the scar tissue was rubbing within the joint and that was causing his symptoms. It was recommended that an arthroscopy be performed to debride the scar tissue and that would, in all likelihood, relieve the plaintiff of his symptoms.^[29]

31. [31]
    The arthroscopy was performed on 19 June 2013.^[30]The plaintiff’s symptoms did not resolve.

32. [32]
    The plaintiff attended a follow up appointment with Dr Dekkers on 15 October 2013. He told Dr Dekkersthat he still experienced pain and swelling, as well as locking in the knee. The plaintiff says that Dr Dekkersinformed him that there was nothing more that could be done and that while young people generally make a full recovery there is a small percentage of people who do not do so. The plaintiff says that he asked Dr Dekkersif another ACL repair could be done and was told that it would not make any difference. Furthermore the plaintiff says that he was advised by Dr Dekkersthat there was a chance that he could develop arthritis in his knee because of the injury and surgeries.^[31]

33. [33]
    The plaintiff says that it was after this consultation that he realised for the first time that his knee was never going to get any better and that there was nothing else that could be done. He says that, as he was only 28 years old at that time, the injury was likely to have a long term impact upon his life and future employment.^[32]

The relevant principles

34. [34]
    The material facts relating to a right of action include the nature and extent of the personal injury so caused: s 30(1)(a)(iv) of the Act.

35. [35]
    In State of Queensland v Stephenson Gummow, Hayne and Crennan JJ said:^[33]

“[21]At what the particular applicant puts forward as the relevant date, a certain fact must not have been "within the means of knowledge of the applicant" (s 31(2)(a)). A fact is not within the means of knowledge of the applicant if (but only if) the applicant did not know it and in so far as the fact was "able to be found out" by the applicant, the applicant had taken all reasonable steps to find it out. This reading of para (a) of s 31(2) follows from the exegesis provided in para (c) of s 30(1). The fact which is identified must answer the description in para (a) of s 31(2) "a material fact of a decisive character relating to the right of action". It is a fact of this particular quality which, until the relevant date, must not have been within the means of knowledge of the applicant. What must not have been within the means of knowledge of the applicant until the relevant date is not merely a material fact relating to the right of action in question. The material fact must be "of a decisive character". The provision is so drawn as to assume that there may be material facts which are not of a decisive character.

[22]Awareness before the relevant date of a material fact, of itself, will be of no significance for the operation of para (a) of s 31(2). However, awareness of a material fact of a decisive character before that date will be fatal to an application to the court if that is what is relied upon to satisfy para (a). These cases turn upon neither of those circumstances.”

36. [36]
    In Moriarty v Sunbeam Corporation Ltd Macrossan J (as His Honour then was) said:^[34]

“In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s 30(b) comes down to: Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd.R. 19, 23, 24 and Do Carmo v Ford Excavations Pty Ltd (1984) 154 C.L.R. 234, 251 per Deane J.”

37. [37]
    An injured person will not necessarily be disadvantaged by making a reasonable decision to avoid risky litigation on a dubious basis.^[35]In Healy v Femdale Pty Ltd the court said:^[36]

“The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take “appropriate advice” or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.”

38. [38]
    In relation to the requirement that an applicant has taken all reasonable steps to find out the material fact, Keane JA (as His Honour then was) said in NF v State of Queensland at [29]:^[37]

“It is to be emphasized that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of "all reasonable steps", or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act.”

The submissions of the parties in relation to the plaintiff’s state of knowledge

39. [39]
    The plaintiff contends that when he saw Dr Dekkers on 15 October 2013 he became aware that he was unlikely to make a full recovery and that he was likely to suffer from the onset of arthritis in the future.^[38]He submits that it was only then that he became aware 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”: s 30(1)(b)(i) of the Act.^[39]

40. [40]
    The plaintiff submitted that prior to 15 October 2013 he did not believe he would suffer significant loss which would justify bringing a claim.^[40]

41. [41]
    The plaintiff submitted that the fact that he was unlikely to make a full recovery and would in all likelihood suffer arthritis in the future was not within his means of knowledge until after the expiration of the limitation period.^[41]

42. [42]
    The plaintiff submitted that he took reasonable steps to ascertain the extent of his injury and was informed as late as June 2013 that his ACL was structurally sound.^[42]

43. [43]
    The Commonwealth and WorkCover submitted that the plaintiff’s evidence that his symptoms changed significantly after he returned to Australia in April 2012 should not be accepted. They submit that the plaintiff’s evidence is inconsistent with a significant body of evidence consisting of what he said about his symptoms to Dr Dekkers, orthopaedic surgeon, Dr Gillett, orthopaedic surgeon and Ms Barratt, a WorkCover employee.^[43]

44. [44]
    The Commonwealth and WorkCover also submitted that the plaintiff said nothing about a change in symptoms following his return to Australia when he swore an affidavit on 10 June 2014 in relation to his application for leave to commence proceedings against the Commonwealth.^[44]

45. [45]
    Furthermore the Commonwealth and WorkCover submitted that the medical evidence is consistent with the plaintiff experiencing a continuation of symptoms from 2007 onwards. They submitted that all of the medical practitioners diagnosed arthrofibrosis which developed in the post-operative period after the surgery in 2006.^[45]

46. [46]
    The Commonwealth and WorkCover submitted that prior to 15 October 2013 the plaintiff had experienced persistent symptoms from 2007. He had received medical advice in 2008 that his ACL fibres were frayed and may tear again, necessitating further surgery with only a “chance” of a full recovery.^[46]They submitted that the advice given to the plaintiff by Dr Dekkers on 15 October 2013 was not a “material fact of a decisive character”.^[47]

47. [47]
    The Commonwealth and WorkCover submitted that by April 2012 the plaintiff had been suffering symptoms in his knee which he related to the original injury since 2006. They submitted that he had undergone two operations and on his own evidence, his symptoms were worsening. They submitted that the plaintiff’s failure to seek advice from Dr Dekkers between April 2012 and May 2013 was unexplained.^[48]They submitted that the plaintiff did not take reasonable steps to consult Dr Dekkers following his return to Australia, or another orthopaedic surgeon while he was living in the United Kingdom. They therefore submitted that the plaintiff did not take reasonable steps to ascertain the fact upon which he now relied as being a “material fact of a decisive character”.^[49]

Findings of fact

48. [48]
    On the hearing of the applications the plaintiff gave evidence and was cross-examined. Dr Mark Dekkers, orthopaedic surgeon, Dr Greg Gillett, orthopaedic surgeon and Ms Michelle Barratt, a former employee of WorkCover, also gave evidence.

49. [49]
    The plaintiff said that by early 2013 he had become concerned about his worsening symptoms and contacted WorkCover.^[50]

50. [50]
    Ms Barratt, who was then employed at WorkCover, said that the plaintiff telephoned and spoke to her on 24 April 2013.^[51]Ms Barratt said that the plaintiff told her:

1. (a)
   He had been in constant pain for the six or seven years while he was in the UK.

2. (b)
   He had been taking over-the-counter pain killers and wearing a knee brace.

3. (c)
   His knee had been getting worse the whole time.^[52]

51. [51]
    In cross-examination by Mr Atkinson, for the Commonwealth, the plaintiff denied telling Ms Barratt that he was in constant pain. He said that he told Ms Barratt that he “had flare-ups every couple of months”.^[53]

52. [52]
    Ms Barratt’s account of her conversation with the plaintiff is based on her notes made at the time. She typed her notes during the conversation.^[54]She said that if the plaintiff had told her that he had “flare-ups” she would have made a note of that.^[55]

53. [53]
    Dr Dekkers saw the plaintiff on 30 May 2013. His notes of what the plaintiff said are as follows:

“He is now seven years following his right anterior cruciate ligament reconstruction. Since that time he has had ongoing pain and stiffness in his knee. He also states that he has had one or two episodes of instability. He is unable to play any sport. His knee does ache at night time”.^[56]

54. [54]
    Dr Dekkers said that the plaintiff did not report any sudden or recent decline in his symptoms. He said that the plaintiff reported “ongoing pain and stiffness in his knee” while he had been in the United Kingdom.^[57]

55. [55]
    In cross-examination Dr Dekkers agreed that having regard to the long interval between the review in 2007 and seeing the plaintiff in 2013 he would have questioned him about the development of his symptoms. He would have been particularly interested in that evidence to inform his diagnosis.^[58]

56. [56]
    In cross-examination of the plaintiff by Mr Atkinson for the Commonwealth the plaintiff said that he told Dr Dekkers that he was having flare-ups and they got worse when ­­­he returned to Australia.^[59]

57. [57]
    Dr Gillett saw the plaintiff on 4 March 2014. The history given by the plaintiff set out in Dr Gillett’s report is as follows:

“Post (the ACL reconstruction) he advises that he struggled in regard to his rehabilitation and had persistent ongoing pain. He was off work before his surgery and remained off work after his surgery and then returned to work a few months after his surgery on office work duties for the labour hire company and returned to so-called full duties towards the end of 2007 when he went overseas. When he was in the United Kingdom he worked as a nightclub manager and had pain and discomfort. He had persistent issues with the knee and undertook further surgery to the knee in the form of an arthroscopy in the United Kingdom. He was told that there was some early failure of the ACL graft by the arthroscopist. There was no other internal derangement. He then kept working putting up with the pain using Nurofen and trying to do exercises. He then returned to Australia at the end of 2012 and sought advice from Dr Dekkers”.^[60]

58. [58]
    Dr Gillett said that he did not take a history of the plaintiff’s condition deteriorating. He agreed that the plaintiff’s condition seemed to be consisted or persistent.^[61]

59. [59]
    The plaintiff was asked in cross-examination, by Mr Atkinson for the Commonwealth, whether he had given Dr Gillett a history of persistent issues with his knee. The plaintiff replied “[o]ngoing flare-ups, persistent, yes.” Mr Atkinson then asked the plaintiff, “Well, I’m interested in what you told him. You told him that you had persistent problems including pain and discomfort?” The plaintiff replied “Which were the flare-ups. Pain and discomfort is part of that.”^[62]

60. [60]
    I am satisfied that Ms Barratt, Dr Dekkers and Dr Gillett accurately recorded what each was told by the plaintiff in relation to his symptoms. Ms Barratt made notes of her conversation with the plaintiff as it was occurring.^[63]Dr Dekkers was particularly interested in the development of the plaintiff’s symptoms and was therefore likely to have accurately recorded what he was told.^[64]Dr Gillett said that his assessment of the plaintiff involved close questioning of him in relation to his symptoms.^[65]

61. [61]
    Furthermore, I accept that the plaintiff provided an accurate description of the symptoms he was experiencing when speaking to Ms Barratt, Dr Dekkers and Dr Gillett. The plaintiff’s evidence that his symptoms worsened considerably following his return to Australia is inconsistent with his accounts to Ms Barratt, Dr Dekkers and Dr Gillett.

62. [62]
    The plaintiff clearly experienced significant difficulties when he was in the United Kingdom. For example he saw a physiotherapist, Ben Hodgson at the Medway Maritime Hospital on 16 May 2007. Mr Hodgson records the history given to him by the plaintiff as follows: “Mr Feher arrived in the United Kingdom 10 weeks ago and has since developed pain and restricted movement in the knee. He is now having difficulty walking. He is also getting disturbed sleep and he reports giving way in the knee”.^[66]

63. [63]
    The plaintiff accepted that these symptoms would have been debilitating but said that was only when he had flare-ups, which would last for one to two days at the most.^[67]

64. [64]
    The plaintiff did not say in his affidavit, filed in the application for leave to commence proceedings against the Commonwealth, that his symptoms worsened after he returned to Australia in April 2012.^[68]

65. [65]
    The plaintiff was seen by Dr Christopher Cunneen, occupational and environmental physician on 16 January 2014. The history taken by Dr Cunneen includes the following:

“2009: Whilst overseas in the UK, working as a Venue Manager, he noted persistent pain, discomfort and swelling about his right knee. This was in a background of no further injury or specific trauma to his right knee”.^[69]

66. [66]
    The plaintiff agreed that he had given that history to Dr Cunneen. However when asked whether he experienced persistent pain from 2007 all the way through to 2014 he said “[a]nd they were flare-ups that could be months apart”.^[70]

67. [67]
    The plaintiff said in his notice of claim for damages, dated 18 February 2014, that he made a global claim of $50,000 economic loss to reflect a reduction in income while he was living in England because he was forced to turn down labouring jobs that he could not undertake because of his injuries.^[71]

68. [68]
    In cross-examination by Ms McClymont for WorkCover, the plaintiff said that he could not recall having given those instructions to his solicitors and nor could he recall having refused labouring jobs in England because of his injuries.^[72]In any event he said that he would not have told his solicitors something that was not true.^[73]

69. [69]
    It is therefore clear that the plaintiff experienced significant ongoing symptoms that affected his ability to perform certain types of employment.

Consideration of issues relating to the plaintiff’s knowledge of a material fact of a decisive character

70. [70]
    The facts discovered by the plaintiff on 15 October 2013 when he saw Dr Dekkers must be considered in the context of the facts already known by him. If a reasonable person having taken appropriate advice on the known facts would have taken action, the additional facts discovered on 15 October 2013 would not be material facts of a decisive character: Taggart v The Workers’ Compensation Board of Queensland.^[74]

71. [71]
    The plaintiff knew well before 15 October 2013 that he had experienced ongoing pain, stiffness, restricted movement and occasional instability in his knee. On 16 April 2008 the plaintiff underwent a right knee arthroscopy which was performed at the Medway Maritime Hospital in the United Kingdom. He says that the arthroscopy revealed that the anterior fibres had frayed. He was advised by the specialist that the fibres had weakened but there was nothing the surgeons could do until they actually snapped.^[75]The plaintiff assumed that if he had further surgery there would be a chance of a full recovery.^[76]It follows that the plaintiff must have known that it was by no means certain that he would make a full recovery. In cross-examination by Mr Atkinson for the Commonwealth, the plaintiff agreed that he understood that by June 2007 he had not made a full recovery.^[77]However he maintained that his ongoing problems were sporadic flare-ups.^[78]

72. [72]
    The plaintiff’s injuries had caused him to turn down positions such as labouring jobs, while he was living in England. His global claim of $50,000 for past economic loss as set out in his notice of claim for damages is not insignificant.^[79]

73. [73]
    By s 30(1)(c) of the Act a fact is not within the means of knowledge of a person if, but only if, the person does not know the fact at the time and as far as the fact is able to be found out by the person, the person had taken all reasonable steps to find out the fact before the relevant date.

74. [74]
    In my view the advice received by the plaintiff from Dr Dekkers on 15 October 2013 was not a material fact of a decisive character. The plaintiff had a considerable amount of knowledge in relation to his actual injury and there was ample information within his means of knowledge which would have justified bringing an action.^[80]

The contention of the parties in relation to the issue of prejudice

75. [75]
    The plaintiff submitted that the passage of time would not have any impact on the fairness of a trial. It was submitted that contemporaneous records exist which record the incident and the subsequent affixing of non-slip treads to the ladder.^[81]

76. [76]
    The Commonwealth submitted that after the passage of more than ten years it was not possible for a fair trial to be held.^[82]

77. [77]
    WorkCover submitted that the plaintiff’s further amended statement of claim made a number of specific allegations of breach of duty, including the failure by Workforce to undertake risk assessments, the failure to inspect and re-inspect the premises, system of work and plant and equipment as well as a failure to warn the plaintiff of the risk of using a ladder in wet conditions. It was submitted that the loss of documentation affected WorkCover’s ability to answer these allegations.^[83]It was further submitted that WorkCover faced difficulties disentangling issues of medical causation.^[84]

The applicable principles in relation to prejudice

78. [78]
    The plaintiff has the onus of establishing that the limitation period should be extended: Brisbane South Regional Health Authority v Taylor.^[85]

79. [79]
    In Brisbane South Regional Health Authority v Taylor Toohey and Gummow JJ said:^[86]

“There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd:

“It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.””

80. [80]
    In Prince Alfred College Inc v ADC the High Court recently considered the principles in Brisbane South Regional Health Authority v Taylor.^[87]  French CJ, Kiefel, Bell and Keane and Nettle JJ said:^[88]

“[99]In considering the exercise of the discretion under s48(3) of the Limitations Act, two fundamental propositions established by this Court's decision in Brisbane South Regional Health Authority v Taylor must be borne in mind. First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre‑conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge's decision. In Brisbane South Regional Health Authority v Taylor, McHugh J said:

“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’.”

[100]Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor, the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced. His Honour had earlier observed that, in cases of long delay, prejudice may exist without the parties or anyone else realising that it exists.”

Consideration of the issue of prejudice

81. [81]
    There are a number of aspects of the plaintiff’s case that give rise to potential difficulties for the Commonwealth and WorkCover, and which may affect the prospects of a fair trial.

82. [82]
    The plaintiff’s statement of claim against WorkCover makes a number of specific allegations of breach of duty including:

• That Workforce failed to undertake any, or any adequate, risk assessments;^[89]
• That Workforce failed to inspect and reinspect the work premises, systems of work and plant and equipment supplied by the Commonwealth and AQIS;^[90]
• That Workforce failed to warn the plaintiff of the risk of using a ladder in wet conditions;^[91] and
• That Workforce failed to instruct the plaintiff to dry the ladder before using it.^[92]

83. [83]
    Workforce was deregistered on 17 April 2012.^[93]The solicitor for WorkCover has made enquires with a former employee of Workforce who remains employed by Workforce International Group Pty Ltd. The employee has advised that she does not know what instructions would have been given to the plaintiff and nor does she know what risk assessments were performed by Workforce at the premises prior to June 2006. She does not know whether Workforce inspected the premises, system of work or plant and equipment supplied by the Commonwealth or AQIS prior to June 2006.^[94]

84. [84]
    The plaintiff says that after the initial site induction he was introduced to Mike Cantrell who was his supervisor. He says that Mr Cantrell explained to him the tasks that he was required to undertake and the methods by which they were to be undertaken.^[95]

85. [85]
    WorkCover’s solicitor has spoken to Mr Cantrell and been advised that:

1. (a)
   He worked with Australian Quarantine at the Port of Brisbane from approximately 2001, when the contract was held by Skilled International, until approximately 2006;

2. (b)
   Mr Cantrell cannot remember the date he ceased employment with Workforce;

3. (c)
   He is now a Plain Clothes Senior Constable with the Queensland Police Service;

4. (d)
   He supervised the Workforce staff on site and reported to the AQIS Quarantine Supervisor, a person whom he recalls by the name of Marty;

5. (e)
   He recalled that staircases were occasionally used to access the top of containers, when the CCTV cameras detected material;

6. (f)
   He recalled receiving a safety briefing about the staircases from Marty but cannot recall when that occurred or who was present. The information conveyed included instructions to use the handrails and take care;

7. (g)
   It was part of his job to induct new employees to site. He cannot recall if he inducted the (plaintiff). Paperwork was completed when the induction was carried out, but he cannot recall if the paperwork included a list of the topics covered in the induction;

8. (h)
   It was Mr Cantrell’s usual practice to inform new employees to use the handrails and take care when going up and down the staircases. It was his usual practice to convey that information orally, and then when he was giving the new employees a tour of the premises, to show the employees the staircases and demonstrate their use, holding onto the handrails;

1. (i)
   Mr Cantrell recalled that the treads of the staircases had a grip or tread on them;

10. (j)
    Mr Cantrell cannot recall any person, including the (plaintiff), suffering an injury at the Port of Brisbane site, whether using the staircases or at all. ^[96]

86. [86]
    The plaintiff said that he was required to write down his version of events. However he does not know where that document is.^[97]There is an AQIS notification of incident report which states:^[98]

“On the 6^th of June 2006 Workforce employee Tim Feher was conducting External container inspections at Terminal 8 (T8) gate Fisherman Islands, Tim was required to clean the top of a container using the hard stand in the fixed position. While descending the ladder Tim’s left foot slipped from the tread causing his right knee to twist. Tim was able to walk unassisted though he required to raise his leg and apply a cold press from the first aid kit.”

87. [87]
    The plaintiff says that it had been raining prior to the incident although it was only spitting at the time that he ascended the ladder. However, Bureau of Meteorology records show that there was minimal rainfall on 6 June 2006 and none at all the previous day.^[99]Michael Christie is the team leader of the Inspections Service Group for the Commonwealth Department of Agriculture. He did not witness the incident but recalls it being reported to him.^[100]He does not recall whether or not it was raining on the day of the incident and says that to his knowledge the Department does not retain rainfall records at the Port of Brisbane.^[101]

88. [88]
    Andrew Christie is the Director of People Services for the Commonwealth Department of Agriculture, North East and Northern regions. As a result of his investigations he believes that the Department does not keep records in relation to rainfall at the Port of Brisbane. Furthermore he believes that it is unlikely that any further searches will locate any relevant risk management or workplace health and safety policy and procedure documents that were in place at the time of the incident.^[102]

89. [89]
    The plaintiff’s allegation that the ladder was a slip hazard when wet is difficult to refute without an opportunity to examine it. The steps on the ladder had grips or treads.^[103]In Fuller v Bunnings Group Ltd^[104]the applicant was rearranging stock on shelves. She alleged that she sustained a shoulder injury when stepping off a ladder. The plaintiff alleged that the ladder was unsuitable for the task she was carrying out. The Court of Appeal considered that the fact that the respondent could not examine the ladder meant that it was impossible to answer the applicant’s allegations.^[105]

90. [90]
    Mr Morris for the plaintiff pointed out that there is an email dated 14 June 2006 referring to the incident. The sender of the email refers to the fact that arrangements had been made for a representative of Statewide Matting to attend and apply non-slip surfaces to the steps by the end of the week.^[106]However, the sender and recipients of the email are all AQIS employees. There is no evidence that Workforce received the email. In any event, the email certainly does not diminish the potential prejudice to the Commonwealth and WorkCover.

91. [91]
    The Commonwealth and WorkCover also face potential prejudice arising from the issue of medical causation. The plaintiff fell awkwardly on his knee in 2007 and underwent an arthroscopy in 2008. Dr Peter McMeniman, orthopaedic surgeon expressed the opinion that there is no way of determining exactly which incidents caused the plaintiff’s symptoms in 2013.^[107]

92. [92]
    The fact that the Commonwealth and WorkCover face difficulties exploring whether earlier events have played a more significant role in the plaintiff’s present symptoms may result in prejudice: Fuller v Bunnings Group Ltd.^[108]

93. [93]
    In Ward v Wiltshire Australia Pty Ltd & Anor Fraser JA said at [87]:^[109]

“As was submitted for the second respondent, one example of the possible prejudice concerns the possibility that the appellant might now make a larger claim on the premise that her incapacity has increased beyond that reported in the early medical reports. The second respondent might be held liable for such a claim if it could not introduce evidence that showed that the appellant’s additional incapacity was attributable to some cause other than the accident: Watts v Rake; (1960) 108 CLR 158, 160, 164; [1960] HCA 58; Purkess v Crittenden; (1965) 114 CLR 164, 167-168, 171; [1965] HCA 34. The second respondent might in such a case be prejudiced by the appellant’s delay in pursuing her claim, because it might be difficult for it now to obtain such evidence.”

94. [94]
    The plaintiff has not demonstrated that this combination of factors has not resulted in material prejudice to the Commonwealth and WorkCover.

Orders

95. [95]
    Accordingly the plaintiff’s applications and claims must be dismissed.

Costs

96. [96]
    I will hear submissions from the parties in relation to the issue of costs.