Hawkins v Bridgestone Australia Ltd
[2016] QDC 321
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- Hawkins v Bridgestone Australia Ltd[2016] QDC 321
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Hawkins v Bridgestone Australia Ltd[2016] QDC 321
Hawkins v Bridgestone Australia Ltd[2016] QDC 321
[2016] QDC 321 | |
DISTRICT COURT OF QUEENSLAND | |
CIVIL JURISDICTION | |
JUDGE HARRISON | |
No 184 of 2016 | |
JASON HAWKINS | Applicant |
and | |
BRIDGESTONE AUSTRALIA LTD | Respondent |
CAIRNS | |
2.28 PM, FRIDAY, 18 NOVEMBER 2016 | |
JUDGMENT |
HIS HONOUR: Yes. I’ll give my decision. The applicant in this matter is now 44 years of age, having been born on the 14th of February 1972. He has applied, pursuant to section 31 (2) of the Limitation of Actions Act 1974 (the LAA) to extend the limitation period for the bringing of an action against the respondent in respect of damages for personal injuries, regarding an injury to his right shoulder sustained during the course of his employment with the respondent on the 11th of July 2012. I note that from the correspondence exhibited to the material, the parties effectively agree that if this application is successful, the limitation period should be extended to the 18th of May 2016. To succeed in his application, the applicant must show: (a) that a material fact of a decisive character was not within his means of knowledge until after 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; in other words, you would have to show that there was a prima facie case. The relevant date, in terms of the first requirement under the subsection in this case, would be the 11th of July 2014.
Prima Facie Case
It is not necessary to consider that matter any further, nor go into the details of the incident on the 11th of July 2012, because a prima facie case has effectively been conceded.
Material Fact Relied Upon
The material fact relied upon is set out in paragraph 56 of the affidavit of the applicant sworn on the 2nd of November 2016. He says that he was told by Dr Sheppard, an orthopaedic specialist, during the course of a consultation on the 25th of May 2015 that he would continue to suffer flare ups in relation to his right shoulder if he continued working as a wheel aligner, and that he should consider different, lighter work which did not involve overhead duties. He says that he gradually realised, after being given that information, that he would eventually not return to his previous occupation as a wheel aligner. It was submitted that the material facts relied upon were, in fact, material because they went to the nature and extent of the injuries sustained in the subject incident, for the purposes of section 30 (1) (a) (v) of the LAA.
History of the Matter
It was accepted that the applicant made a successful statutory claim in relation to the injuries sustained on the incident or in the incident on the 11th of July 2012 and that there were also further successful statutory claims in relation to right shoulder injuries, which occurred at work on the 17th of December 2012, the 8th of October 2013, the 3rd of June 2014 and more importantly, on the 2nd of March 2015. In relation to the three claims prior to the one arising from the injuries sustained on the 2nd of March 2015, in each case, he had his statutory claim accepted. Where necessary, WorkCover met the relevant outlays. Following his initial injury in 2012, he was referred to another orthopaedic specialist, Dr Mansfield, who undertook surgery on the 6th of September 2012. In his report of the 10th of September 2012, he confirmed that an arthroscopy revealed a deep, partial thickness tear of the supraspinatus.
He also found that in the subacromial bursa, there was evidence of impingement. He debrided the partial thickness tear and performed an arthroscopic acromioplasty and an arthroscopic AC joint arthroplasty. When he provided that report, he was hopeful that the applicant would return to full function in three months. I note that the applicant actually commenced working for the respondent on the 13th of September 2004 and that that employment ceased on the 9th of December 2014. After the operation performed by Dr Mansfield, he returned to part time duties in October 2012 and then returned to full time duties in November 2012. On the 17th of December 2012, he actually took a week off work after further shoulder pain, but returned to full duties on the 4th of January 2013.
WorkCover paid for all of the relevant outlays and for his loss of wages for that week. On the 11th of October 2013, he developed further right shoulder pain. On this occasion, he saw his general practitioner and he received cortisone injections on the 28th of October 2013. He returned to full time duties about two weeks later. He had, in fact, not ceased work at all, but had worked in the interim on lighter duties, and did not suffer any economic loss. He suffered further persistent right shoulder pain on the 3rd of June 2014, which again, required him to see his general practitioner, who referred him for x-rays and an ultrasound. He again returned to full time duties about two weeks after that and did not suffer any loss of wages per se. He actually left the respondent on the 15th of December 2014, and after that, obtained a similar position with Jax Tyres.
In the incident 2nd of March 2015 he suffered further injury during the course of his employment that day when attempting to move a rusty bolt, applying substantial downward force using the an overhead tool. As it turned out, he never ever returned to his trade after that incident. He, again, made a successful WorkCover claim in relation to that, and in the course of this, was referred to another orthopaedic specialist, Dr Sheppard on the 17th of August 2015. Dr Sheppard performed an operation on that date and dealt with this in his report of the 25th of September 2015. He said that there was some partial tearing of the articular surface in the supraspinatus.
He also found that insufficient bone had been removed in the previous surgery. I presume from that, that he refers to the surgery undertaken by Dr Mansfield back in 2012. It is not clear when, but by early 2016, the applicant was convinced that he could never return to his former trade, and he obtained much lighter courier work on a casual basis. This work paid about $300 net per week less than what his earlier work had paid. In evidence today, he conceded that about 10 weeks ago, he obtained another position doing courier work, where the hours varied between 36 and 55 hours per week and that it was being paid at a rate of $24 per hour. This, in fact, meant that he was being paid even more than what he had been back when he worked in his trade, although he stressed that that position was casual.
Report of Dr Shaw, Dated The 14th of October 2016
In relation to the causal link between his now condition and the incidents on the 11th of July 2012 and the 2nd of March 2015, the plaintiff relied on this report from Dr Shaw. He diagnosed the applicant as having suffered rotator cuff tendonitis, subacromial bursitis and impingement in the incident on the 11th of July 2012, and diagnosed him as having suffered an aggravation of rotator cuff tendinitis, subacromial bursitis and impingement in the incident on the 2nd of March 2015. He then provided assessments of permanent impairment relating to each of the subject incidents. He allowed a 10 per cent whole of limb, which equated to six per cent whole of person impairment to the restriction of the right AC joint. He attributed that six per cent assessment to the injuries sustained in the incident on the 11th of July 2012.
He then went on to assess a further two per cent whole of person impairment in respect of what he described as restricted movement in the right shoulder and he allocated that two per cent whole of person assessment to the injury sustained in the incident on the 2nd of March 2015. He confirmed that as a result of the injury on the 2nd of March 2015, the applicant was unable to continue his pre-injury duties and that he was restricted to light work at and below bench height. By then, the applicant was working as the courier driver, presumably with Jax and he also pointed out that he should avoid any activities which involved pulling, as well as those above head height, and that he also should be careful when dealing with any pallet jacks in the course of that employment.
It is well accepted that in matters such as this, the Court should have regard to the evidence available to the applicant at its best. See Wood v Glaxo, Australia Pty Ltd [1994] 2 Qd R 431 at 434. In view of the opinions of Dr Shaw, particularly what he said about the injuries being sustained on the second occasion, having been an aggravation of the injuries sustained on the first occasion, and in view of his assessments, it seems to me that the material fact relied upon, i.e. what he was told by Dr Sheppard on the 25th of May 2015, does go to the nature and extent of the injury sustained in the incident on the 11th of July 2012. For the purposes of section 30(1)(a)(iv) of the LAA.
Decisive Character
Section 30(b) of the LAA provides:
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.
The proper approach in matters such as this when the court is required to determine whether a newly learned fact has the necessary quality of decisiveness, is that ‘an applicant’ must show that without the newly learned 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. See Moriarty v Sunbeam Co Ltd [1998] 2 Qd R 325 at 333. The converse proposition is contained in the decision of Connolly J in Sugden v Crawford [1989] 1 Qd R 683 at page 685 where he said:
Implied in the legislation is the negative proposition that –
time will not be extended whether requirements of sec 30(b) are satisfied, without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely went to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action.
What needs to be considered is what the applicant in this case knew as at the relevant date, which I’ve already identified as the 11th of November 2014. By that stage, he had made a number of successful WorkCover statutory claims. He had, at different times, placed himself in the hands of doctors and had undergone the treatment, as recommended by those doctors, and also had accepted their advice in terms of when he could return to full-time duties as a wheel aligner.
There is nothing to suggest that he knew, from any of that contact with the doctors, that his capacity to continue on with that work would be restricted. Further, the solicitor for the applicant, Ms Knox, in her affidavit sworn on the 17th of November 2016, indicated that to bring a claim under the WorkCover regime and to take that claim to the statutory conference stage, or compulsory conference stage, would cost in the region of $55,000.
Without the newly acquired facts, it seems to me that he would not have had any claim worth pursuing. He may have had a small claim for general damages, but they are limited in accordance with the relevant scales that now apply. Furthermore, this would not have been the type of injury where he could have, as of right, recovered any costs. So he would have to have an action worth in excess of what it would cost to take it to that stage to make it worthwhile. It would be difficult to allow anything for future economic loss on the strength of what he knew prior to the relevant date. It would also seem that he would not have had any claim, perhaps other than a nominal amount, for any past economic loss because when he was forced to take time off work, he did receive the necessary periodic payments from WorkCover.
The real issue in this case stems from his situation in the aftermath of the injuries sustained on the 2nd of March 2015. The respondent submits that any potential allowance for future economic loss was occasioned by the injuries sustained on the 2nd of March 2015 because they were the ones that brought about the limitation of his ability to continue on in his trade. In particular, the respondent referred to the relevant passage from the report of Dr Shaw where he described how he was unable to return to his duties because of the injuries sustained in the incident.
I believe, however, Dr Shaw’s report has to be looked at in its entirety, and as I read it, he is not saying that the injury sustained on the 2nd of March 2015 was a discrete one. His diagnosis that I referred to earlier clearly is to the effect that what was sustained in the 2nd of March 2015 incident was an aggravation of the injuries sustained in the subject incident, and this is supported even further by the fact that he allows, effectively, six per cent whole of person out of a total of eight per cent whole of person to the subject incident.
The respondent also relies on a report of an occupational specialist, Mr Morris, which was obtained during the course of the statutory claim for the incident on the 2nd of March 2015. He there spoke of knee injuries and back injuries which he said could have impacted in the future on whether or not the applicant was capable of continuing on in his trade. I note that there are no specialist reports in relation to those particular matters.
The applicant also argues that his current employment is relevant in the sense that he’s now earning more than what he did in his trade and was not suffering any loss. The real issue is whether on his case, at best, he would now be in a position to recover damages which would be substantial enough to justify the bringing of an action after allowing for the fact that $55,000 would be expended by way of costs up to the compulsory conference stage.
It seems to me that on the evidence as it stands, there would still be a very substantial component for future economic loss. He has considerable experience in his trade and he is still only 44 years of age. I note that the trend these days is for people to work longer and that even the changes that are being made in terms of pensions are gradually going to push back the age when people can realistically retire.
It seems to me that there would be a very substantial component for economic loss into the future to be assessed on a global basis, and that could easily be well into the six figures. At this stage, it’s not clear whether he is going to bring any action in relation to the incident on the 2nd of March 2015. If he did not, the fact that what happened constituted an aggravation would probably be sufficient in any event for him to recover his damages in respect of his now condition. Even if he did, and the assessments of Dr Shaw were accepted, he has effectively allowed three quarters of the overall condition to the subject incident. So again, the allowance for future economic loss would be substantial.
There may also be a reasonable allowance for past economic loss for the period during which he was earning $300 less, and there would be also some allowance for general damages based on the current assessments, although that would be limited depending on what the appropriate scale said. It seems to me, however, that he now has an action on the opinion of Dr Shaw, which would justify the bringing of an action, even after allowing for the substantial costs that would be incurred.
Means of Knowledge
Section 30(1)(c) provides:
A fact is not within the means of knowledge if 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 that fact before that time.
What is meant by that subsection has been explained in a number of cases. Firstly, in Healy v Femdale [1993] QCA 210 at page 4, where the court said:
The question then is whether it can be said that in the circumstances the plaintiff took all reasonable steps to ascertain the facts that her injury was serious enough to justify the bringing of an action. She did not ask her doctor questions of this kind. 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 to test merely because she fails to ask for questions 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.
I’ve also had regard to the comments of Keane JA, as he then was, in NF v Queensland [2005] QCA 110 at paragraph 29 where he said:
It is to be emphasized that section 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 section 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 section 30(1)(c) of the Act.
In this case, it is worthwhile noting that he, at all times, placed himself in the hands of appropriate medical professionals. Time and time again, even though he had problems, he was told that he could return to his work and could return to work on full duties. It seems to me that he took all reasonable steps and that it was not encumbent upon him to make any further enquiries in terms of whether or not his ability to continue working in his trade would be affected. Therefore, I find that the material fact of a decisive character relied upon here was not within his means of knowledge as at the relevant time.
Prejudice
The only other matter is to consider whether or not there is any relevant prejudice to the respondent. In fairness, the respondent has conceded that point and has not sought to introduce any material, and I find that there would not be any relevant prejudice.
In the circumstances, I will make the necessary orders as per paragraph 1 of the draft orders provided to me. I just wanted to check on that. I said the 19th this morning and you said the 19th. When I read the material, it looked like the 18th.
MR GLENN: Yes, your Honour. That’s why we needed to seek leave for amendment, but ‑‑‑
HIS HONOUR: So I’ll make that the 18th?
MR GLENN: No. It’s 19th, your Honour. The 19th is the correct date.
HIS HONOUR: The 19th is the proper one.
MR GLENN: That’s correct.
HIS HONOUR: All right. Well, I’ll just note in the record that you both agree that 19th is the appropriate date.
MS SORBELLO: That’s correct, your Honour.
HIS HONOUR: Thank you. So I’ll make orders as per paragraph 1 of the draft order.
...
HIS HONOUR: I also have before me an application for costs. The matter is complicated by the fact that under the current regime, this is not the type of matter where costs are normally recoverable in terms of the actual personal injuries claim. I’m aware that back when I was doing these prior to the statutory change, the common order was to make them costs in the cause, so that if the plaintiff did succeed, then the costs in relation to this application were recoverable. That would not be a feasible order in this case, in view of the way the statutory scheme is now structured and what can and can’t be recovered in relation to costs. It seems to me that I have to look at my discretion and what is particularly relevant in this case is that a decision was made to contest the application and the applicant has been successful in this application.
It seems to me, therefore, that this would be an appropriate matter whereby costs should follow the event, and I make orders as per paragraph 2 of the draft initialled by me, although I have added the words to that draft, at the end of the word “application”, “on a standard basis”. Nothing else?
MR GLENN: No. Nothing further. Thank you, your Honour.
HIS HONOUR: All right. Thank you, both.
MS SORBELLO: Nothing. Thank you, your Honour.
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