Wyatt v AAI Limited[2021] QDC 188

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant claims to have a right of action against the respondent. Apart from a defence founded on the expiration of the period of limitation, this is not contested.  The applicant seeks an order extending the period of limitation under s 31 of the Limitation of Actions Act 1974 (Qld) (‘the Act’).  He claims that a material fact relating to the right of action, namely the nature and extent of the injury,^[1] was not within his means of knowledge until after the commencement of the year preceding the expiration of the period.  The applicant claims the material fact was of a decisive character. The respondent says it was not and also says the fact was within the applicant’s means of knowledge within the relevant time.
2. [2]
   By s. 30(1)(b) of the Act, material facts relating to a right of action of a decisive character if 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. [3]
   “Appropriate advice” means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts. ^[2]
4. [4]
   Subsection 30(1)(c) provides that 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.

5. [5]
   The material fact that the applicant says he did not know and was not within his means of knowledge is the assertion that his injury will endure and adversely affect his ability to fulfil his reasonably expected working life.  The applicant says the fact materialised in early 2020 when, although he had worked in the interim, he returned for the first time to his pre-accident role; when the Medical Assessment Tribunal found that his injury amounted to a 5% permanent impairment and when a psychiatrist told him he had a 7% impairment.
6. [6]
   The limitation period expired on 7 October 2019.  The applicant’s Notice of Claim was served on 1 April 2020. Section 31(2) of the Act permits only an extension of the limitation period by 12 months. The respondent submits, and it is not contested, that if a material fact of a decisive character came into the applicant’s knowledge after 7 October 2019 but before 1 April 2019, even in the exercise of its discretion, the Court could not extend the limitation period to 1 April 2020. The respondent submits that the applicant had sufficient facts to substantiate a worthwhile cause of action within his means of knowledge prior to 1 April 2019.
7. [7]
   The question becomes whether the applicant learned a material fact of a decisive character on or after 1 April 2019.

The accident and personal injury

8. [8]
   The claim relates to a motor vehicle accident which occurred on 7 October 2016.  The applicant was travelling to work in a vehicle together with his wife and two daughters at approximately 7:45am. His wife was driving. As his wife turned right at an intersection, a silver Ford Focus came from behind and collided with the front driver’s side bumper of the applicant’s vehicle. The applicant’s vehicle turned 180 degrees and came to a halt a short distance on the other side of the intersection. The applicant’s wife and one of his daughters were rendered unconscious. The applicant remained conscious and saw the Ford Focus collide with a power pole and catch fire.  It was torn in half. Its driver, the sole occupant, died. In his affidavit, the applicant describes witnessing the driver’s fatal injuries as ‘extremely distressing’.
9. [9]
   The applicant and his family were taken by ambulance to Hervey Bay Hospital. He was diagnosed with whiplash, prescribed analgesia, and discharged. The applicant attended his regular GP, Dr Rudd, who diagnosed ‘post trauma stress’ and ‘soft tissue injury’ to the neck. On 10 October 2016, the applicant lodged a compensation claim with WorkCover Queensland, which was accepted. He reports in his affidavit that the injury to his neck resolved after about one week and that he resumed his work as a teacher as normal.
10. [10]
    It was approximately 6 months after the accident that the applicant claims he began to experience symptoms of the psychiatric injury upon which his claim is based. These symptoms included insomnia, nightmares, and flashbacks.

Effect on career

11. [11]
    An agreed chronology before the Court suggests that in or about March 2017 the applicant took personal leave from his work and consulted Dr Rudd.  The applicant successfully applied for WorkCover to re-open his claim in September 2017.  At this time Dr Carter, a new GP, prescribed Zoloft and provided a referral for counselling.  From about October 2017, the applicant consulted with psychiatrist, Dr Gilbert, who diagnosed posttraumatic stress disorder and a major depressive disorder and prescribed Lyrica and Seroquel, the latter being an anti-psychotic medication.
12. [12]
    In or about July 2018, the applicant commenced a ‘return to work program’, working three half-days per week as a teacher at a different school.  In 2019, the applicant returned to his original school.  He describes the role as ‘a relief capacity’ which was primarily administrative and did not involve classroom teaching.  From April 2019 he continued this role on a fulltime basis. He resumed full-time teaching in a classroom environment on 28 January 2020. It was only at this time that the applicant reports becoming ‘concerned’ about his ‘ongoing employability as a teacher’.
13. [13]
    In his affidavit the applicant reports experiencing a myriad of workplace difficulties arising in 2020.  These include trouble concentrating, thinking on his feet, quickly recalling core curriculum concepts and policies, and dissociating. Noises in the work environment, including children screaming, cracking sounds, tapping on desks, movement of chairs, loud responses from children, yelling, and teacher whistles exacerbated his anxiety and often triggered flashbacks of the accident. On two occasions recorded in his affidavit, the applicant raised his voice or verbally abused others. He describes this as out of character. From about 30 March 2020 to 13 July 2020, due to COVID-19, his work did not entail classroom teaching. This, he says, assisted him in coping with his role.
14. [14]
    The applicant first consulted solicitors in December 2019 in relation to a scheduled Medical Assessment Tribunal hearing.  He swears he was unaware of an entitlement to claim damages until the firm advised him so.  He engaged his present solicitors on 18 February 2020, after the first firm recommended that he consult a firm with expertise in personal injury claims.
15. [15]
    On 1 September 2020 GP, Dr Yim provided the applicant with a referral to psychiatrist, Dr Brand. The earliest available appointment was 5 January 2021, a date after the applicant’s affidavit was sworn. On 3 November 2020, Dr Yim provided a script for Seroquel, the anti-psychotic medication previously prescribed by Dr Gilbert.
16. [16]
    Under cross-examination at the hearing of the application, the applicant agreed he lodged an application with WorkCover immediately after the accident, describing his injury as “psychological system in general, short term shock from a disturbing situation”, but said the words used were written by his GP.  His own description was “emotionally disturbing”.  He confirmed he worked for about 6 months before increasing symptoms interfered.  He agreed he consulted doctors on numerous occasions through to 2020 and had suffered symptoms from 6 months after the accident, reopening his WorkCover claim in September 2017. His psychological condition deteriorated during 2017.  He consulted Dr Gilbert from September 2017.  Dr Gilbert diagnosed him with post-traumatic stress disorder and increased his medications.  The applicant acknowledged his symptoms in the second half of 2018, after his return to work for 12 hours a week.  Dr Yim discussed Dr Harding’s report with him on 14 November 2018.  The applicant insisted that he was not told he had a permanent injury - he was never told he would not recover.  He did not recall being advised by Dr Yim that he might never be 100 per cent well.  His focus had been on recovery and getting back to work.

Medical evidence

17. [17]
    The medical material before the Court includes the following:

Independent Medical Examination Report of Dr Harding, 8 November 2018

18. [18]
    Dr Harding examined the applicant at the request of WorkCover Queensland.  Dr Harding diagnosed the applicant with Posttraumatic Stress Disorder complicated by the development of a Major Depression with Melancholia, ‘significantly affecting his ability to function both in the workplace and at home’. Noting that he had received appropriate treatment to date she considered he required treatment of increased intensity.  She characterised the applicant as ‘ultimately likely to have a good prognosis given his high premorbid functioning’. Dr Harding thought the applicant had ‘a very tenuous capacity to be working at all at present’, although he was ‘demonstrating the capacity to work 12 hours per week in suitable duties’. She considered his condition ‘likely to considerably improve with further medical treatment or hospitalisation’.

Medical Assessment Tribunal

19. [19]
    The MAT decision of 24 January 2020 includes clinical evaluations and findings about the applicant’s injury. The report noted that the applicant had resumed full-time work and was performing higher duties as Head of the Department. The tribunal considered the applicant’s symptoms to be consistent with a diagnosis of Posttraumatic Stress Disorder and Major Depressive Disorder and characterised the condition as stable and stationary. While noting the applicant had no employability deficit, the Tribunal found that his injury amounted to a 5% permanent impairment. 

Independent Medico Legal Report of Dr Caniato 16 July 2020

20. [20]
    On 18 June 2020 Dr Riccardo Caniato conducted a medico-legal assessment of the applicant at the request of his solicitors. Dr Caniato affirmed the diagnosis of Post-traumatic Stress Disorder and Major Depressive Disorder with melancholia, expressing the view that his major depression ‘is in partial remission’. Dr Caniato reported that ‘it is unclear’ whether the applicant’s employment is ‘sustainable over the long term’, and noted that his injury ‘has resulted in long periods of time off work, failing to advance in his career, and reduced efficacy and enjoyment’. Dr Caniato finds that the applicant’s injuries ‘were directly caused by the accident’.
21. [21]
    Dr Caniato’s prognosis is mixed. He explains that both disorders are ‘remitting and relapsing’ in nature. He considers that the applicant ‘would struggle in a new or different position’ and will likely ‘have ongoing needs for time off work’, significantly affecting his career.

Report of Dr Chalk 25 August 2020

22. [22]
    The respondent asked Dr John Chalk to examine the applicant. In his report, Dr Chalk details the applicant’s symptoms as at that date - difficulty concentrating, panic attacks at times, sleeping for three to four hours, not eating during the day, fatiguing easily, and experiencing emotional detachment. The applicant’s previous treatment had ceased, and he could not afford to take it up again. Dr Chalk expresses the view that the applicant’s condition ‘has reached maximum medical improvement’. He notes the applicant’s significant difficulties at work in the aftermath of the accident but opines that ‘he is certainly capable of continuing to work’.  He expresses the view that, had the applicant made inquiries at the time that he saw Dr Harding, he would have been advised ‘that he was more vulnerable to the probability of relapse in the future, that he was certainly vulnerable to significant triggers, and that…whilst he would continue to work…he may have difficulties in the future, although these are clearly unpredictable’.

A material fact of decisive character?

23. [23]
    In my respectful opinion, the ‘fact’ that an injury is permanent may be a material fact of a decisive nature.  It may be a material fact precisely because that term is defined to include “the nature and extent” of the injury.  It may be of a decisive character if a reasonable person knowing the fact and taking advice on it would regard it as showing the right of action has reasonable prospects of an award of damages sufficient to justify bringing the action and the person ought to bring the action in their own interests.
24. [24]
    The relevance of the ‘fact’ that the injury would permanently affect the applicant is that it may convert unworthwhile proceedings into a right of action that would result in damages sufficient to justify bringing an action and be within his interests to bring the action.^[3]  The applicant’s circumstances included that he had been assessed by the MAT and awarded a lump sum.  He was securely employed.  Mr Blane, the applicant’s solicitor, deposed that he would not have advised the applicant to prosecute a claim unless there were reasonable prospects of a substantial assessment of damages for future loss. The applicant has shown, that in the circumstances of this case, the enduring nature and extent of the psychological injury is a decisive material fact because of the effect that might have on the extent of his loss.^[4]  As Ann Lyons J said in Thompson v DP World Australia [2011] QSC 406 after referring to Macrossan J in Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325 at 333,

There is no doubt therefore that material facts of a decisive character can include the discovery that the applicant’s condition is much worse than initially considered, including the fact that the applicant’s capacity to carry out employment might be significantly affected.^[5]

25. [25]
    This is not a case of newly discovered facts merely going to an enlargement of prospective damages beyond a level which, without the newly discovered facts, would have been sufficient to justify bringing the action.

Was a material fact of a decisive character not within the applicant’s means of knowledge at the relevant time?

26. [26]
    The court may extend the limitation period if, on the application, it appears the relevant fact was not within the applicant’s means of knowledge at the particular time, that is, that he did not know the fact at that time; and as far as he was able to learn the fact – he took all reasonable steps to find out the fact before that time.
27. [27]
    The respondent submits, generally, that the applicant had available to him sufficient facts, including a firm diagnosis and knowledge of his symptoms and their connection with his work, to support a cause of action worth pursuing well prior to 1 April 2019.
28. [28]
    The applicant is an intelligent, educated person who might be expected to know that firms of lawyers will give advice about the prospects of personal injury claims.
29. [29]
    The respondent points out that, before 1 April 2019, the applicant had:

• applied for, and received, extensive compensation through the statutory scheme;
• received years of treatment from a psychologist and psychiatrist;
• taken many months off work because of his injury, from March 2017 to July 2018, only resuming full-time in April 2019;
• received Dr Harding’s grim psychiatric expert assessment; and
• suffered ‘substantial symptoms’ which directly impacted his ability to function as a teacher, including memory and concentration issues.

30. [30]
    Soon after the accident, in October 2016, in the applicant’s WorkCover claim, he described the nature of his injury as “psychological system in general, short term shock from disturbing situation”.  The applicant’s work began to deteriorate, and he started to experience serious symptoms such as insomnia, nightmares, and flashbacks, 6 months after the event. The applicant has had his diagnosis of Posttraumatic Stress Disorder and Major Depressive Disorder as early as 25 October 2017.
31. [31]
    Dr Harding, in her report of 8 November 2018, commented that the applicant was “extremely unwell” and had “a very tenuous capacity to be working at all at present”.
32. [32]
    The respondent submits the applicant was aware of the way his injury could interfere with his capacity to function as a teach “well prior” to January 2020, that the applicant had actual, personal knowledge of the difficulties he had experienced at work because of his injury and that his failure to investigate the likely longevity of his condition, and his legal position, was “wholly unreasonable” in the circumstances.
33. [33]
    In particular, the respondent refers to Dr Chalk’s opinion that, had the applicant asked in late 2018, he would have been advised about the potential long-erm effects of his injury.
34. [34]
    The applicant submits a reasonable person in the applicant’s position, taking appropriate advice, would not have considered an action worthwhile until the permanent impairment became evident.
35. [35]
    Thomas JA, in Pizer v Ansett Australia Limited [1998] QCA 298 at [20], spoke of a spectrum between the extremes of which “is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff’s knowledge and as to whether the reasonable person contemplated by s. 30(1)(b), endowed with such knowledge and having taken appropriate advice, would have brought proceedings.”
36. [36]
    Although I think this case is close to mid-spectrum, taking into account all of the medical and other material, including the applicant’s evidence at the hearing, which I accept, I am satisfied the application should be granted.
37. [37]
    I accept the applicant’s evidence that it was only after he resumed full-time classroom teaching on 28 January 2020 that it became apparent that his injury would likely prevent him from performing his full duties until a normal retirement age. The MAT finding of 24 January 2020 of the permanent character of the injury and Dr Caniato’s opinion, although it was not obtained until July 2020, that the applicant’s ‘ability to work has been markedly affected’ and ‘there are likely to be significant effects on his career’, confirmed the existence of the permanent disability.
38. [38]
    The respondent refers to the statement of Connolly J in Berg v Kruger Enterprises (Division of Besser Qld Ltd) that the diagnoses of a particular percentage impairment, without more, merely gave ‘a spurious air of mathematical accuracy to an estimate which is of its nature qualitative’.  But in this case, the MAT assessment was important because it concluded the applicant suffered from a permanent incapacity, not because it put a number on it.
39. [39]
    I notice Dr Chalk’s opinion, recorded in a note of a conference with a barrister then briefed by the respondent, that the applicant suppressed his symptoms in the first six months after the accident, that he has done well to still be working and that he is more vulnerable now than the average person because of the accident.
40. [40]
    Similarly, Dr Harding noted in November 2018 that the applicant demonstrated a strong work ethic, but for which she would having considered placing him on further sick leave.
41. [41]
    The material compels the conclusion that the applicant was struggling against serious illness but held a focus on recovery and continuing to work.  Dr Harding’s opinion was that the applicant would continue to improve with further medical treatment or hospitalisation.  In the treatment setting, and even as the independent doctors report, it is credible that he was never told he would not recover.  In fact, in his oral evidence, the applicant said he was told frequently, by a treating psychologist, that it was possible ‘to get back to pre-injury state’.^[6]
42. [42]
    Relevantly, the applicant refers to the statement of Keane JA in HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 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.

43. [43]
    The question, which arises under s. 30(1)(c)(ii), whether ‘the person has taken all reasonable steps to find out the fact before that time’, is to be addressed ‘as far as the fact is able to be found out by the person’. 
44. [44]
    Whether a 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’: Healy v Femdale Pty Ltd CA No 37 of 1992. The Court, in a joint judgement, said,

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.

45. [45]
    How far was the relevant fact discoverable?  As I have noticed, Dr Harding, whose opinion was, as the respondent describes it, ‘to say the least, grim’, also said the applicant would continue to improve with further medical treatment or hospitalisation.
46. [46]
    Dr Chalk’s opinion, on which the respondent relies, was not unequivocal.  Asked his prognosis for the applicant upon the examination in August 2020, he wrote,

He certainly seems to have had significant difficulties in the aftermath of the accident. As I noted in the body of the report he has been off work for a significant period of time. However it would appear that he is highly motivated and that his personality has some protective factors. In my view, whilst he is likely to have enduring symptoms of this condition, his prognosis is for some further improvement but not resolution of his condition.

47. [47]
    Asked what advice he would have given in November 2018 as to the probability that the applicant would return to and remain in full-time work until normal retirement age, Dr Chalk wrote,

I think that at the time he saw Dr Harding, Mr Wyatt would have been given the advice that he was more vulnerable to the probability of a relapse in future, that he was certainly vulnerable to significant triggers, and that the advice would be that whilst he would continue to work he may have difficulties in the future, although these are clearly unpredictable.  However, as I have indicated, he is more vulnerable as a consequence of this and post-traumatic stress disorder is not a condition that is known to remit without issue.  The advice would be that he should remain on treatment for a longer period of time as it provides some form of safety net.

48. [48]
    The information within the applicant’s means of knowledge, including Dr Chalk’s opinion as relied by the respondent, may be contrasted with the position from January 2020, when it became clear upon the applicant’s experience returning to classroom teaching, when the MAT made its assessment and with the opinion of Dr Caniato, that he would not return to his pre-accident condition.
49. [49]
    Keeping in mind that the question is whether the applicant had within his means of knowledge (as defined) facts which would show the claim had reasonable prospects of success and bring an award of damages sufficient to justify bringing it and that in his own interests and in his circumstances he ought to bring it, I am satisfied the applicant has shown he did not, before January 2020.
50. [50]
    The applicant submits and the respondent accepts that (i) save for the operation of the limitation period, the plaintiff has a meritorious claim; and (ii) the respondent has suffered no particular prejudice by reason of the applicant’s delay.
51. [51]
    I will receive submissions in writing from the parties as to the form of orders.