Burgess v Sanbray Pty Ltd[2017] QDC 132

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application seeking an extension of the limitation period under the Limitation of Actions Act 1974 (“the Act”) in respect of an injury allegedly suffered by the applicant on 20 October 2010as a result of the negligence of the respondent.  The limitation period expired three years later, on 20 October 2013.  A Notice of Claim under the Workers’ Compensation and Rehabilitation Act 2003 (“the WCR Act”) was given on 23 November 2016, and any noncompliance was waived on 25 November 2016.  Accordingly, for the purposes of the WCR Act, what matters is whether the limitation period is extended so that it expires after 25 November 2016. 

2. [2]
   The respondent conceded for the purposes of this application that there was evidence to establish the right of action against it apart from a defence founded on the expiration of the applicable period of limitation. The applicant’s claim is within the monetary limit.^[1]Accordingly, the question is whether 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 20 October 2012, and that situation continued until after 25 November 2016.  If so, a discretion to extend the limitation period arises.

Background

3. [3]
   The applicant was born on 17 March 1980 and was working for the respondent in October 2010, having begun to work for it in 2002.^[2]On 20 October 2010, he and another employee were attempting to move a long, relatively narrow, pallet of aluminium extrusions using fridge trolleys.  As they did so, he experienced what he described as a “weird sensation in my lower back.”  He reported the incident to the first aid officer and continued to work that day, but the following day his lower back was playing up to the point that he could not stand up properly.  On 22 October he attended his general practitioner, was prescribed tablets and referred for physiotherapy.   He made a claim for workers’ compensation which was accepted, and medical certificates were issued from time to time by his doctor.

4. [4]
   On 9 November, while still off work, he suffered severe back pain, as a result of which a CT scan of the spine was undertaken and he was referred to a neurosurgeon, Dr Coyne, who saw him on 2 December 2010. By the time he saw Dr Coyne, his pain had improved considerably. Dr Coyne told him that he would be fine to return to work, as is confirmed by a letter of that date from Dr Coyne to the general practitioner.^[3]The CT scan was said to demonstrate a central left L5/S1 disc prolapse which was consistent with his symptoms, which were expected to improve over the next 2 to 3 months.  The letter said it was unlikely he would require surgery.^[4]Core spinal muscle strengthening exercises were recommended, and his return to work was to be graduated and monitored by the physiotherapist and the employer. 

5. [5]
   The applicant was cleared to return to work by his general practitioner on 15 March 2011, when he was given lighter duties, although his work still involved some lifting. By that stage he was undertaking ordinary household duties, and his expectation was that his back would get better and would not be a problem for him in the future: p 12. That was the effect of Dr Coyne’s advice. There is a reference in the GP notes: “consider moving away from heavy labour”.^[5]It is not clear whether this was directed to the long term but in fact the applicant returned to work on lighter duties, and remained in a section where the work was not as heavy. 

6. [6]
   In June 2011, he felt pain in his upper back on the left side and had a few days off before returning to work. Apart from that however, it appears that there was no continuing difficulty associated with his back until 18 December 2012 when he again suffered sudden low back pain shortly before he was due to go on leave. He saw his general practitioner in January and was given a certificate, and again claimed workers’ compensation, though he was cleared to return to work from 21 January 2013. There was a further flare up in June 2013, when he had some time off, but was able to return to work.

7. [7]
   The applicant said that following the injury in 2010, there was always some continuing low-level soreness in his lower back, but he was generally able to manage it and it had just become part of his life. There was nothing which gave him any concern about his long-term ability to work. In March 2015, there was a further flare up following a sneeze, as a result of which he took some time off work, but an application for workers’ compensation was rejected. A few days later, he was cleared to return to light duties but there were no suitable light duties available for him and he returned to normal work the following week. He was apparently able to continue with his work until October 2015, when there was another flare up after he lifted something at work, and he went off work for a few days. Again he returned to work, although there was another flare up in December 2015.

8. [8]
   The applicant saw the GP again on 5 January 2016 when he was again referred for physiotherapy and another CT scan was ordered, as at that stage he had begun to be concerned about the state of his back: p 20. The applicant was told that the scan showed the back was essentially the same as in October 2010: p 21. Soon after his lower back pain become significantly worse while doing something inconsequential at home, and he developed numbness and weakness in his right leg and foot. He saw his GP on 12 January 2016 concerned about his future, was given some more time off work, and a referral to a specialist was offered.^[6]That was initially declined, but accepted on 19 January when he was referred to specialist Dr Athanasiov, whom he saw on 20 January 2016 and who ordered an MRI.   

9. [9]
   A letter to the GP of that date recorded a history of severe pain and numbness in the right leg for four weeks, and longstanding lower back pain after a work injury in 2010, with flare ups every few months, which settled.^[7]There were abnormalities on examination, and an MRI scan showed a large right paracentral disc prolapse L5/S1, compressing the right L5 and S1 nerve roots.  The prognosis was that the disc prolapse would reduce in size, but may leave lasting neurological impairment.  There was some discussion of the risks and benefits of surgery, which if successful would maximise his neurological recovery.  The applicant said, and I accept, that this was the first time that any doctor had discussed surgery with him, at least as something which was relevant to his condition, and after the consultation he was worried about his prospects for work in the future. 

10. [10]
    The applicant remained off work until April 2016, when WorkCover arranged for him to work at a different worksite, with which he apparently coped, between May and August 2016. On 26 July 2016, the applicant was referred by WorkCover to Dr McPhee, an orthopaedic surgeon, for examination and report. The report of the clinical examination does not appear to be remarkable, but the two CT scans and the MRI were said to show large disc extrusions at L5/S1 level, and were said to be consistent with the history. Dr McPhee concluded there was no evidence of significant functional overlay or over-presentation. He did say however that the radicular symptoms were subjective. He attributed the disc extrusion to an acute rupture of the disc as a result of the injury at work on 20 October 2010. The best that could be expected from non-operative treatment was chronic mechanical lower back pain, likely to cause recurrent exacerbations. The symptoms might progress over time, given the size of the extrusion, which led to the risk of permanent neurological damage. Surgery by discectomy was said to have been always the appropriate treatment option, with the outcome being now less assured than in 2010.^[8]

11. [11]
    Dr McPhee said that it appeared that he had now been given appropriate advice by his treating surgeon and his decision to decline surgery at the present time must be respected, though if the condition worsened surgery would be necessary. Physical treatments were unlikely to be beneficial, but a regular exercise program was advisable. His condition had probably reached maximum medical improvement. He was regarded as unsuitable for long term employment in heavy material handling, and should be confined to work of a semi-sedentary nature.

12. [12]
    In August 2016, his employment with the respondent was terminated on the basis that they had no suitable work to offer him. He received a notice of assessment from WorkCover in September 2016. He engaged solicitors. Thereafter he had obtained causal employment at a supermarket, with which he had been coping so far, but it was less remunerative than his former employment.

13. [13]
    The applicant said that he did not consult solicitors earlier because of the medical advice he received in October 2010. He expected that the situation would continue, as it had done for a number of years, where he was generally able to manage the work he was given with only occasional flare-ups, from which he fairly quickly recovered. The time off work was covered by WorkCover or leave entitlement, or occasionally by leave without pay, but from his point of view this was not a significant problem. The situation really only changed in January 2016 when, as a result of an unusually bad flare-up, he obtained additional specialist advice which revealed a significantly different future.

Approach to the application

14. [14]
    The relevant provisions governing the application are in the Act ss 30, 31. I need not quote them. When dealing with an application of this nature, it is necessary to determine first whether the fact of which the applicant was unaware was a material fact; next, whether it was of a decisive character; and finally, whether it was within the means of knowledge of the applicant before the relevant date. A fact was not within the means of knowledge of the applicant at a particular time only if he did not know that fact, and he has taken all reasonable steps to find it out.^[9]

Material Fact

15. [15]
    One of the matters identified in s 30(1)(a) as material facts is “the nature and extent of the personal injury so caused”, that is, caused by the negligence of the proposed defendant. The seriousness of the plaintiff’s injuries, and their consequences to him, particularly in terms of impact on his ability to work in the future, are plainly material facts.^[10]The material fact relied on here was that the injury to the back had been serious enough to lead in the long term to a reduction in the applicant’s ability to work, so that he could not continue his then current employment.  I accept that that is a material fact for the purposes of s 30(1)(a).  That proposition was disputed on behalf of the respondent, but no significant argument to the contrary was advanced.  In my opinion, the contrast between the medical advice provided in December of 2010 and that provided in January 2016, is substantial, and the latter paints a completely different picture of the applicant’s prognosis, and hence the consequences of the injury he suffered.  It is obviously a material fact where the statutory test is met.

Decisive character

16. [16]
    As to whether the fact was of a decisive character, that depends on whether it is a fact which makes the difference between a situation where it is not worthwhile for the plaintiff to bring a proceeding, and one where an action is worth bringing.^[11]In the present case that in my opinion turns on the question of whether the applicant could reasonably anticipate some significant future economic loss.  It must be remembered that any claim for damages brought against the respondent is regulated by the WCR Act.  The plaintiff suffered his injury after 1 July 2010, so general damages have to be assessed by reference to the provisions in the Workers’ Compensation and Rehabilitation Regulation in force at the relevant time: WCR Act, s 306P.  That regulation, which prescribes injury scale values, is notorious for allowing derisory amounts for back and neck pain.  No proceeding is worth pursuing just to recover general damages for such symptoms as the plaintiff was suffering prior to 2016. 

17. [17]
    There are also severe restrictions on the recovery of damages for gratuitous services in subdivision 1 of division 3 of Pt 9 of Chap 5 of the WCR Act. There are stringent restrictions on the legal costs which are recoverable, particularly in the case of an injured worker such as the applicant where the degree of permanent impairment attributable to the injury has been assessed at less than 20 percent.^[12]This means that s 316 applies, and a successful plaintiff will obtain an order for costs (and then only for costs on the standard basis from the day of the written final offer) if the award is equal to or more than the plaintiff’s written final offer: s 316(2)(a). If the plaintiff would have been better off accepting the insurer’s written final offer, the plaintiff must pay the insurer’s costs from the day of the final offer, otherwise each party bears the party’s own costs. Further, if a proceeding could have been brought in a lower court costs must be awarded on the scale of costs applying in the lower court: s 318. Given that a good deal of the work involved in preparing a claim would occur prior to the time when a written final offer was made,^[13] it is an inevitable consequence of this regime that even a successful plaintiff will suffer a large burden of legal costs even in a case where a costs order is made.^[14]

18. [18]
    A plaintiff who is successful but does not obtain an order for costs will have to recover significant damages in order to make the whole exercise worthwhile, that is, to provide some worthwhile benefit for the plaintiff. What is a worthwhile benefit needs to be assessed bearing in mind the hazards of litigation, and will depend on the apparent strength of the plaintiff’s case. The practical effect of these considerations is that what is required in order to show that a right of action would result in an award of damages sufficient to justify the bringing of an action on the right of action is a much larger award of damages than would have been considered sufficient to satisfy that test prior to the introduction of the statutory restrictions on damages and costs. I note that in Thompson v WorkCover Queensland [2011] QSC 197 McMurdo J (as he then was) said at [19] that awards in the range of $40,000 to $60,000 would not have been sufficient to justify the bringing of an action, because of the costs limitation in s 316 of the Act, a conclusion based on evidence.

19. [19]
    Whether a material fact is decisive is to be decided not by reference to what the particular applicant would regard the facts as showing, but by reference to what a reasonable person knowing those facts and having taken appropriate advice would regard those facts as showing.^[15]It depends on how a hypothetical, reasonable person would respond in the light of appropriate advice, not whether it was reasonable for the particular applicant to respond in a particular way.^[16]It is however relevant to take into account objective considerations, such as the applicant’s limited means.  It would be reasonable to expect that a person in modest circumstances would be wary about litigating, particularly if a significant amount had to come out of anything recovered to cover costs, and where there was a real risk of not recovering costs or of having to pay costs if his claim failed, or if he was awarded less than the amount of the insurer’s final offer. If there is some real risk associated with liability, it is reasonable for such a person to be particularly cautious about litigating.

20. [20]
    In the present case, there was evidence about the decisive character of the additional evidence as to the plaintiff’s future prospects. The plaintiff’s solicitor has practised exclusively in the area of personal injuries litigation for 12 years, and expressed the opinion that, at any time prior to January 2016, it would not have been economically viable for the applicant to commence a claim for damages against his employer, presumably on the evidence available to the applicant at that time.^[17]The solicitor was not cross-examined on this affidavit, and I accept this evidence.  The reasons set out in the affidavit for that conclusion are supported by the evidence of primary facts provided elsewhere, and provide ample justification for the opinion expressed by the solicitor.  It accords with my own assessment of the situation on the evidence, and it was uncontradicted. 

21. [21]
    In my opinion, the proposition that, before the plaintiff obtained the further expert opinion in January 2016, he did not have a claim worth pursuing is plainly correct. Had the position been in any way marginal, this evidence would have provided significant support for the applicant’s case. As it was, in my opinion in the circumstances of this case it was not seriously arguable that, prior to January 2016, the applicant had a cause of action against his employer which, in economic terms, it was worth his while to pursue, bearing in mind the ordinary risks associated with litigation, the limitations on costs imposed, and the difficulties he would be likely to have in such circumstances in obtaining legal assistance to pursue such a claim.^[18]In those circumstances, the material fact relied on by the applicant was clearly decisive.   

Means of Knowledge

22. [22]
    As to whether the fact was within the means of knowledge of the applicant before the specified date; that depends on whether the applicant had taken all reasonable steps to find out that fact previously. That involves the question of what steps are reasonable steps to be taken for the purposes of the test in s 30(1)(c). The position of the applicant prior to January 2016 was that he had obtained specialist medical opinion which indicated that his condition would improve with time, and did not foreshadow any real risk of deterioration. Although he did, from time to time, see a general practitioner thereafter, it was not until January 2016 that he was referred to another medical specialist. There was no evidence that, at any time prior to then, the general practitioner recommended referral to a specialist but the applicant refused.^[19]    In my opinion, it is reasonable for the plaintiff to have left to the GP the initiative on whether it was appropriate for his condition to be referred to a medical specialist for expert opinion, and in the absence of evidence that the GP had recommended such a course prior to January 2016, I am not prepared to find that it was reasonable to expect this applicant to have sought further expert medical opinion prior to that time. 

23. [23]
    There have been a number of previous cases where plaintiffs who were injured but were able to continue to work, sometimes for an extended period, without difficulties beyond those which they could generally manage, have been held not to have a material fact of a decisive character within their means of knowledge until they were first told that they would not be able to continue the work they had been doing, or that they ought not to do so to prevent the condition from becoming worse. Examples include Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306 and Watters v Queensland Rail [2001] 1 Qd R 448, in each of which the plaintiff was, if anything, not coping with the existing work as well as the present applicant was. 

24. [24]
    The requirement that the person have taken all reasonable steps to find out the fact^[20] has to be assessed against what was reasonable for that person. In Healy v Femdale Pty Ltd [1993] QCA 210 the Court in a joint judgment said:

“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.”

25. [25]
    That passage was cited with approval by Muir J, with whom the other members of the Court of Appeal agreed, in Maguire v Plumbing Industry Group Training Scheme Inc & Anor [2001] QCA 248 at [35]. In NF v The State of Queensland [2005] QCA 110, Keane JA at [29] put the proposition in this way:

“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.”

26. [26]
    A more recent example is the decision in Greenhalgh v Bacas Training Ltd [2007] QCA 327,^[21] which was not unlike the present case.^[22]In that case the plaintiff suffered personal injuries in October 2001 when he was struck by a motor vehicle in the course of his work.  He returned to full time duties about a month after the incident, though his injury had not resolved completely and he continued to have pain in the right shoulder area. He was expected to be able to finish the apprenticeship on which he was then engaged, though he had medical advice that he should look for alternative work for a period of about six months thereafter.  He continued to work in that area, generally coping although his symptoms were aggravated “regularly”: [11]. 

27. [27]
    In May 2005 a specialist referred to a degree of permanent impairment, the equivalent of 5 percent whole person permanent impairment, and recommended that he should seek work which reduced repetitive use of the right shoulder girdle, but he was subsequently said by a doctor to be fit for normal duties, though he might want to reconsider his future employment. In June 2006 he was given clear medical opinion that he had restriction in regard to work because of an inability to work above shoulder level, and that he should find alternative employment which did not require such work. The Court of Appeal said that it was not until the report of June 2006 that the plaintiff’s future as a mechanic was said categorically to be permanently at risk, to the extent that work involving “lifting above shoulder level” was a requirement of that occupation: [19].

28. [28]
    Keane JA with whom the other members of the court agreed said at [22]:

“Whether an action for damages is worthwhile is an assessment which must be made having regard to the expense and risks of litigation.  When an assessment of costs, risks and benefits should reasonably have led to a conclusion that an action was worthwhile must be determined having regard also to the plaintiff's previous attempts to overcome any adverse economic consequences of his injuries.  These attempts had largely been encouraged by medical opinion; that the plaintiff persisted with these attempts in these circumstances can hardly be said to have been unreasonable.”

29. [29]
    The court held that it was open to me to regard the June 2006 opinion as providing to the plaintiff for the first time unequivocal evidence proving a level of economic loss which would make an action for damages worthwhile: [24]. That decision was referred to in Castillon v P&O Ports Ltd [2008] 2 Qd R 219, where Keane JA said of it at [36]: 

“There the material fact of a decisive character, namely the existence of ‘unequivocal evidence of unavoidable economic loss’, was not within the means of knowledge of the plaintiff in that case until he received a medical report which stated for the first time that his ‘occupation as a mechanic was ineluctably and permanently jeopardised by his injury.’”

30. [30]
    In HWC v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, Keane JA, with whom the other members of the Court agreed, said at [44]:

“It is not the policy of the courts in the application of s 31 of the Act to penalise an injured person who makes a reasonable decision to try to get on with life rather than a decision to litigate upon a questionable basis.”^[23]

31. [31]
    These decisions were also cited without adverse comment (but distinguished) by the court in Hargans v Kemenes [2011] QCA 251 at [25].  I am not aware of any later decision of the Court of Appeal casting any doubt on that approach, or adopting a different approach in relation to such circumstances.  None was cited to me on behalf of the respondent. 

32. [32]
    In this case I think the position is even clearer. The medical advice the applicant in fact received in 2010 was that his condition would improve and surgery was not then indicated. Nothing he was told at that stage suggested that he might be unable to continue indefinitely to work for his then employer. It is true that flare-ups occurred on occasions, but they were rare before 2015 and proved to be only temporary, and he was able to get back to his normal work after them without too much difficulty. The practical position was that he was generally able to cope with his work, and there was nothing to provide any objective indication that that situation would not continue indefinitely.

33. [33]
    It is true that he did not seek further specialist medical opinion prior to January 2016, but it seems to me that there was nothing which occurred prior to that date which involved any significant departure from the previous pattern, and which would make it reasonable for him to seek further specialist medical opinion. It was only when the condition had significantly deteriorated, in that the symptoms had become significantly worse with another flare up in January 2016, that he obtained appropriate medical advice which indicated that his condition was significantly worse than he had believed it to be in the light of the medical advice he obtained in 2010, and his experience with his back in the interim.

34. [34]
    In my view, it was reasonable for the applicant to follow the medical advice he obtained in 2010. It was submitted that because his back continued to flare up from time to time, he should have questioned that advice and obtained further expert opinion, but that has to be assessed by reference to what was reasonable for the particular applicant. The individual flare ups were not particularly prolonged, and with the passing of time a pattern of individual flare ups then abating again fairly quickly had become established. It appears that on a number of occasions in the interim, after time off work as the result of a flare up, a medical practitioner certified that the applicant was fit to return to ordinary work, and he did so, and until the next flare-up he was able to cope. Overall it does not seem to me that there was anything revealed in the history which indicated that it was reasonable for the applicant to have undertaken more extensive enquiries in the light of the advice he had previously received and his experience that generally he was able to manage his symptoms and cope with his normal work. He had never been told that that situation could not continue until the advice he received in January 2016. In my opinion, it was reasonable for the applicant not to have sought further specialist medical opinion until the different symptoms developed in January 2016, and a referral to a specialist was again offered by his GP.

35. [35]
    It was submitted for the respondent that the applicant’s evidence should not be accepted because the notes of the general practitioner show that, on 3 December 2010, the plaintiff had said he was considering moving away from the heavy labour that he was then performing. That is true, but that was at a relatively early stage, and the plaintiff thereafter continued generally to cope with fairly heavy work for some years. It occurred in the context of a particular flare up, for which he had been referred to the specialist who had given him optimistic advice. Bearing in mind that the test is initially applied by reference to the situation as at 20 October 2012, I do not think that this comment is inconsistent with the conclusion to which I have come. This is nothing like the evidence referred to by the Court of Appeal in Spain v Dipompo Jacs Constructions Pty Ltd [2009] QCA 323 at [60].  I am not persuaded that the material fact of the decisive character was within the means of the knowledge of the applicant prior to when he would have received advice from the specialist in January 2016 if he had taken the referral when it was first offered, one week earlier.  Presumably he would have been given the same advice, 

Discretion

36. [36]
    In those circumstances, the applicant has established the factual basis necessary for the discretion to extend the limitation period to arise. The respondent did not discharge the evidentiary onus of showing that it would suffer any prejudice if the application was successful. Indeed, none was alleged. The applicant’s evidence was that the incident was reported to an appropriate person on the day it occurred, and there was a prompt claim for workers’ compensation which ought to have alerted the respondent (and WorkCover) to the potential for a claim for damages at some time in the future. I accept that the fact that the discretion arises does not necessarily mean that it is to be exercised in favour of an applicant, and there is high authority that there is no presumptive entitlement to an extension arising from the satisfaction of the pre-conditions.^[24]But there are few examples of cases where the discretion arises and the respondent has been unable to show any prejudice but the discretion has not been exercised in favour of the applicant. 

37. [37]
    The purpose of these provisions in the Act is to ensure a fair trial on the merits of the case.^[25]If a plaintiff can establish at a fair trial a good cause of action against the defendant, an extension of the limitation period will prevent injustice in those cases where there was some good reason for the plaintiff not to have taken proceedings within the ordinary time allowed by the Act.  In circumstances where there is no reason to doubt that a fair trial can now be held, it is consistent with that legislative purpose for the discretion to be exercised in favour of an applicant with what appears, for the purposes of the application, to be a good cause of action, so as to enable that to be tested at a trial.   

38. [38]
    Bearing in mind all the circumstances of this case, in my opinion it is appropriate to exercise the discretion. The material fact of a decisive character was not within the means of knowledge of the applicant until 13 January 2016. I therefore order that the limitation period in respect of the applicant’s claim against the respondent for personal injury suffered by the applicant on or about 20 October 2010 be extended so that it expires on 13 January 2017. When these reasons are delivered, I will deal with the question of costs, and any consequential orders which may be sought.