Williams v Martyn[2022] QDC 206

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On the 19^th of July 2022, an application was filed in this Court by Erin Lillian Jane Williams.  For convenience, I shall refer to her during these reasons as the applicant.  The orders that were sought in the application were in these terms:

1. 1.
   That the period of limitation for the action be extended pursuant to section 31 of the Limitations of Actions Act 1974.
2. 2.
   Pursuant to section 57(2)(b) of the Act, the Applicant be given leave to bring a proceeding based on a motor vehicle accident claim.
3. 3.
   Such proceeding be stayed until the Applicant has complied with the following:-

1. i.
   a conference being held pursuant to section 51A or 51B of the Act and mandatory final offers being exchanged in accordance of section 51C of the Act;
2. ii.
   the date of agreement, if parties dispense with the compulsory conference by agreement pursuant to section 51A (4) of the Act;
3. iii.
   an Order of the court, pursuant to section 51(A)(5)(b) of the Act, with the compulsory conference.

1. 4.
   Pursuant to section 39(5)(c) of the Motor Accident Insurance Act 1994 (‘the Act’), that the Applicant has remedied the noncompliance or authorises further proceedings based on the claim despite the noncompliance.
2. 5.
   Each party have liberty to apply by giving three (3) business days notice in writing to the other party.
3. 6.
   That there be no Order as to costs.

2. [2]
   In support of that application, affidavits were filed under the hand of the applicant, and also by her solicitor, Michael Allen Pannach.  A subsequent affidavit by Mr Pannach was also filed on the 24^th of August 2022.
3. [3]
   The respondent to the application is the second respondent.  The first respondent takes no part in the application.  In support of the position of the second respondent, an affidavit was filed under the hand of Ross Alexander McConaghy.  Mr McConaghy is a member of the firm of Jensen McConaghy Lawyers, and they are the solicitors for the second respondent in these proceedings.
4. [4]
   The matter proceeded before me on the 26^th of August 2022, and at the conclusion of argument in relation to the matter, I indicated the orders that I intended to make in respect of the proceedings.  The orders were in these terms:

1. 1.
   That the period of limitation for the action be extended pursuant to section 31 of the Limitation of Actions Act 1974 so as to conclude on the 7^th of April 2023;
2. 2.
   That pursuant to section 39(5)(c) of the Motor Accident Insurance Act 1994 (“the Act”), that the applicant has remedied the noncompliance or authorises further proceedings based on the claim despite the noncompliance;
3. 3.
   That each party have liberty to apply by giving three business days notice in writing to the other party;  and
4. 4.
   That there be no order as to costs.

5. [5]
   At the time of making those orders, I indicated that I would give brief reasons subsequently in relation to the matter, and these are now those reasons.

Background

6. [6]
   On the 24th of August 2014, the applicant was the front-seat passenger in a car driven by her mother.  The vehicle was driven south on the Bruce Highway from Townsville towards Alligator Creek.  On that day, a car driven by the first respondent in these proceedings and insured by the second respondent entered the highway and attempted a right-hand turn from the intersection of the highway and Muntalunga Drive.  As a result of that manoeuvre, the first respondent’s car failed to give way to the car driven by the applicant’s mother, and therefore, it caused a collision between the two vehicles.  As a result, it is said that the applicant sustained an injury to her lower back.
7. [7]
   The applicant at the time was 14 years of age.  She had been born on the 18th of June 2000, and as a result of that minority, and pursuant to the provisions of section 29(1)(c) of the Limitation of Actions Act 1974 (Qld), the period of limitation within which the applicant was permitted to commence proceedings for damages for personal injuries arising from the accident expired on her 21st birthday, the 18th of June 2021. 
8. [8]
   The application, is brought pursuant to the originating application filed on the 19^th of July 2022, and therefore, is outside the timeframe which is provided for, pursuant to the normal limitation of actions requirements. As such, the applicant now seeks, pursuant to the provisions of section 31 of the Limitation of Actions Act, an order extending the period of limitation.  Section 31 of the Limitation of Actions Act is in these terms:

31 Ordinary actions

1. (1)
   This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
2. (2)
   Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—

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.

1. (3)
   This section applies to an action whether or not the period of limitation for the action has expired—

1. (a)
   before the commencement of this Act; or
2. (b)
   before an application is made under this section in respect of the right of action.

9. [9]
   In order to succeed in relation to the proceedings, it is necessary for there to be a number of conditions or requirements met.
10. [10]
    There must be shown to be a material fact of a decisive character relating to the right of action, which was not within the applicant’s means of knowledge until a date after the 24th of August 2020.  A requirement arising pursuant to the provisions of section 31(2)(a) of the Limitation of Actions Act.  Additionally, the applicant must show that there is evidence to establish a right of action, and there is also required to be an exercise by the Court of its discretion to extend the limitation for period for 12 months from the time that the material fact was within the applicant’s means of knowledge.  It must also be shown that the exercise of that discretion is warranted.
11. [11]
    Helpfully, in relation to the determination of this matter, the legal representatives for both the applicant and the second respondent acknowledge that there was, as it was described, some narrowing of the issues that were in dispute, such that there was no issue now as to there being a material fact of a decisive character.  The argument more particularly centred on when the material fact of a decisive character relating to the right of action came to the knowledge of the applicant and secondly, in respect of consideration of the area of prejudice to the second respondent should leave be granted, pursuant to the application.
12. [12]
    As such, the argument in relation to this matter relates firstly to the question of the material fact of a decisive nature coming to the attention of the applicant.  In light of the concessions that have been made in relation to the matter, it is clear that the material fact sought to be relied upon is the medico-legal assessment provided by Dr Doug King, an orthopaedic surgeon practicing in Spring Hill in Brisbane.  Dr King’s report is dated the 7^th of April 2022, and in that report, it canvasses matters relating to the inquiries that were conducted, in order to enable him to provide his opinion.
13. [13]
    Dr King is also noted as indicating that the accident, the subject of this application, was the event which caused the whole of person impairment which has been sustained by the applicant.  The whole of person impairment is said to have incapacitated the applicant for work of an active type, particularly work that would involve bending, lifting, carrying or manual handling.  And that as such, the applicant is limited in the work that she can do, and in fact, the injury is such that it would also significantly reduce her capacity for even what might be described as sedentary types of employment.
14. [14]
    What is relevant in relation to the determination of this matter is the consideration of when the applicant became aware of the material fact of a decisive character.  The argument that is relied upon by the applicant is based upon an approach which is to be taken by the Court, in determining the state of knowledge of the applicant.  It is emphasised that it is the state of knowledge of this applicant and not of a reasonable person.  In that regard, counsel for the applicant emphasised the comments of Justice of Appeal Keane, as his Honour then was, in NF v the State of Queensland [2005] QCA 110 at paragraph 29, where the following is said:

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. This view is supported by the text of s 30(1)(c)(ii) which is, as I have said, in marked contrast to s 30(1)(b). The authorities do not afford conclusive support for this view; but they do not foreclose its acceptance, and it may be noted that in Young v The Commissioner of Fire Service Williams J, as his Honour then was, accepted that a psychiatric condition which prevents an applicant from appreciating the nature and significance of the injury he has suffered was relevant for the purposes of s 30(1)(c)(ii). I note that it appears that this decision was not cited to McGill DCJ in Hopkins.

15. [15]
    What is also sought to be relied upon by the applicant in relation to this consideration, is the fact that the applicant was a child at the time that the accident occurred, and thus was, as is argued, without independent means to take any steps to ascertain the seriousness of her injury, until such time as she attained her adulthood.  What is argued on the part of the respondent however, is that the applicant’s mother, until the applicant attained her majority, would have had knowledge of the difficulties experienced by the applicant, and therefore, the applicant would have and should have been able to act more quickly than has been the case here. 
16. [16]
    As such, it is argued that the material fact of a decisive character, the nature of the injury that is more specifically described by Dr King in his report would have been known by the applicant at an earlier time.
17. [17]
    To assist in relation to the consideration of that particular aspect of the matter, particularly with regard to the experience of the applicant following the accident, counsel for the second respondent sought the opportunity to cross-examine the applicant in relation to her evidence with regard to limitations in respect of her life and activities.  In her affidavit filed on the 19^th of July 2022, the applicant said the following:

1. 15.I did not experience any significant symptoms immediately following the accident, although I did begin to notice back pain upon physical exertion.
2. 16.For example, I was playing netball recreationally leading up to the time of the accident but I was unable to resume playing netball following the accident because of back pain when training or playing. I quit the team and never returned.
3. 17.I was in grade 9 at the time and I also recall having trouble with my lower back whenever I engaged in Health & Physical Education activities. I was excused from some of the sports activities for the remainder of that year, particularly anything that was physically demanding, such as netball, basketball and exercise sessions.
4. 18.I never returned to playing netball or any other sport during grades 10, 11 & 12, and I continued to be excused from the more physical HPE classes and school sports.
5. 19.I never really complained about my back pain at home, I said the odd thing to Mum and Dad, but I never made a big deal about it and neither did they.
6. 20.I graduated from school in 2017 and I relocated to Melbourne aged 17.
7. 21.Since then I have lived continuously in Melbourne aside from a few months when I worked on a cattle station out at Richmond in North West Queensland.
8. 22.My first job was at the age of about 13 when I packed mangoes for a couple of weeks while living in Townsville.
9. 23.My first real job was in 2017 working at Caulfield Racecourse in Melbourne as a stable-hand employed by John Sadler Racing. I worked there from 18 December 2017 to 5 December 2018.
10. 24.While I was in Richmond I worked for Jed McCoy as a station-hand from 18 February 2019 to 26 April 2019. I was assisting with fencing duties mostly. I worked as part of a crew of 7-8 and it was not physically demanding work and much easier than stable-hand work. Mostly we were repairing star-picket barbed-wire fencing on the cattle station. My duties entailed holding the star-picket posts while others drove them into the ground, tying wires and driving around in vehicles inspecting fences. Most of the heavy work was done either by machine or by the more experienced farm hands.
11. 25.Upon returning to Melbourne I initially returned to work with John Sadler racing at Caulfield, from 29 May 2019 to 17 July 2019, before I moved to Flemington Racecourse and started working for Mark Kavanagh as a stable-hand.
12. 26.I worked for Mark Kavanagh for the next 18 months from 27 July 2019 to 7 February 2021.
13. 27.I then worked for Anthony Freedman as a stable-hand, still at Flemington Racecourse, from 15 February 2021 until 19 October 2021.
14. 28.My work as a stable-hand involved lifting feed buckets, cleaning up after horses, saddling, un-saddling and washing horses. I walked horses around but I never rode them.
15. 29.My three stable-hand roles were all virtually identical, although while working for Mark Kavanagh I was additionally required to mix horse-feed by hand, which was done in large 20 litre buckets twice a day for about 30 horses. That was probably the most physical and time-consuming task that I performed while working as a stable-hand, and after the first year or so I modified the way that I did this by lifting the buckets up off the ground so that I could work at waist height and avoid bending over.
16. 30.I left employment with Mark Kavanagh to work for Anthony Freedman in order to secure better conditions, to work with a better crew and to manage fewer horses; they had about 25 horses in their stable. I also went from working over 40 hours per week to working about 30 hours per week and for better money.
17. 31.While the work was slightly easier with Anthony Freedman, I was still finding things difficult and I was exhausted by the end of each week.
18. 32.I suffered from a sore lower back while working over the years. I would not say that I was significantly affected, but would describe the symptoms as more of a nuisance.
19. 33.I mostly had difficulty with tasks such as mixing the horse feed and lifting heavy bags and buckets of feed. I was never excused from those tasks but I found those to be the most difficult, and over the years, I found those tasks increasingly difficult.
20. 34.I would say the odd thing while at work about my sore back, either to colleagues or to my employers, and it was usually dismissed or laughed-off mostly on account of my youth.
21. 35.I never played sports outside of work.
22. 36.I never took any time-off work due to the back pain.
23. 37.I never sought any treatment for back pain and I only ever took the occasional pain-killer such as Panadol and Nurofen.
24. 38.I was usually dismissive of the symptoms myself, putting them down to either period pains or growing pains. I always felt as though I would either grow out of it or it would resolve with time.

18. [18]
    The applicant was cross-examined in relation to those particular matters, and I thought rather openly and frankly answered the questions that were put to her in relation to the experience that she had, as a result of the accident.
19. [19]
    She acknowledged that she had never been free of back pain, that it was ongoing and that it had become worse after she left school.  She said, however, that she had worked in the horse racing industry, apart from a period of a few months in 2019, where she travelled to Richmond to work as a station hand, and assisted in various tasks, where although she says in her affidavit she was assisting with fencing duties mostly, it was not, as was acknowledged by her, the most physically demanding aspects of the fencing duties, but that she was performing other tasks.  She acknowledged that it was not as physically demanding set of work circumstances as was required when she was working as a stable hand.
20. [20]
    She did indicate, however, that she had taken this work, not because of pain that was being suffered by her, but rather simply because she was seeking a break and she felt that it would be of benefit to her to do something different.  In any event, after that period of only a few months, she returned to work in the racing industry, and continued to work in a manner that required the physical aspects of her employment to be met by her.  She did say, however, that she did modify the way that she did some of the work, including lifting buckets up and off the ground so that she would be able to work at waist-height and avoid bending over.
21. [21]
    What the applicant also acknowledged, however, was that she did continue to use pain relief at all times, and that this was perhaps as regularly as two or three times a week, and that the quantity that she took of any pain relief medication was increased.  She indicated, however, that some weeks, the pain was more significant than on other occasions, including at times when she at least assessed that she was experiencing her period, and therefore, she took more significant amounts of pain relief.  She indicated that whilst she did take pain relief, she never sought any specific treatment for back pain, nor did she attend with a doctor, as she said in her affidavit at paragraph 38, she was usually dismissive of the symptoms, putting them down to either period pain or growing pains, and always felt that she would grow out of it, or it would resolve with time.
22. [22]
    The applicant gave me the distinct impression that she was a stoic young woman, and that she dealt with any pain that was experienced by her simply the taking of pain relief medication, and that, as she said, she thought that it would be something that would eventually be grown out of.  However, her evidence contained within her affidavit was then that on the 19^th of October 2021, her back was particularly sore to the extent where, for the first time, as I understand the evidence, she left work halfway through a shift, and took the opportunity to consult with her general practitioner at her usual treating medical practice, the Moonee Ponds Super Clinic.
23. [23]
    She says that this was the first time that she ever sought any advice about her lower back pain.  Thereafter, she details in her affidavit the course that was followed after she saw a doctor at the Moonee Ponds Super Clinic, being referred for a CT scan for her lower back, and then returning a week later, on the 26^th of October 2021 to consult with her usual general practitioner, Dr Jabbarpour.  It was then that the applicant and her doctor spoke about the findings contained within the CT scan, and the applicant discussed with Dr Jabbarpour the extent of back pain that she experienced, and the difficulties that she experienced, particularly with work.
24. [24]
    The applicant says that following those discussions, she was referred for physiotherapy, and she decided not to return to work as a stable hand, but made the decision on account of ongoing back pain, but also, she acknowledged reluctance to be vaccinated for COVID-19.  The applicant indicates that these attendances with her doctor, and then also with a physiotherapist, led her to make other inquiries, and as she says in her affidavit, she commissioned a medico-legal assessment by Dr King. 
25. [25]
    In that report, Dr King considered the extent of the injuries and provided an opinion in respect of causation for the injuries, as she puts it in paragraph 52 of her affidavit, reaching the conclusion that:

It is medically probable that injury to her lumbar spine occurred in the motor vehicle accident on the 20^th of August 2014.

Thereafter, it would seem clear that the applicant moved with all haste in relation to appropriate notices being given, and the commencement of these proceedings. 

26. [26]
    The argument before this Court, then, relates to what steps were taken by the applicant and when, and whether there was in fact an earlier opportunity and expectation that arose from that opportunity to consider her injuries.  Interestingly, both the applicant’s counsel and counsel for the second respondent referred me specifically to the observations of the Court in Healy v Femdale [1993] QCA 210, where the following is 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 inquiry 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.

27. [27]
    What is argued for the applicant here is that exactly that situation existed, and that, noting the stoic character of the applicant and the fact that she attributed any pain that she might have had to other factors, such as growing pains or period pains exacerbated as a result of the sort of work she was doing, that there was no reason to expect that there was any link between the accident some years before and the pain that she was then experiencing.
28. [28]
    The applicant’s argument, therefore, is that the episode of back pain on the 19^th of October 2021 was what gave rise to her commencing inquiries in relation to the pain she was suffering, and from there, only became aware of the material facts of a decisive character when, having conducted certain inquiries, and in particular, obtained the report from Dr King, she became aware of the more significant nature of the injury, the more significant character of any impediment it might throw up in relation to her employment, and the causal link between the accident and the injuries now being suffered. 
29. [29]
    From the perspective of the second respondent, however, the argument is simply that knowledge was, in fact, held by the applicant for some considerably greater time.  Referring to Healy v Femdale Pty Ltd, the second respondent referred specifically to the following quotation form the case:

The question then is whether it can be said that in the circumstances the plaintiff took all reasonable steps to ascertain the fact 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 fact might be thought to call for prudent inquiry to protect ones health and legal rights.

30. [30]
    The argument for the second respondent is that the applicant had significant indicators of there being underlying difficulties over a considerable period of time, noting especially that the applicant had been a keen netball player but after the accident she was unable to resume playing netball because of back pain when training or playing and, therefore, quit the team.  She did not also participate in a number of health and physical education activities and was excused from some of the sporting activities for the remainder of the year and, in fact, never returned to playing netball or involving herself in other sporting activities during grades 10, 11 and 12.  In other words, the second respondent says that there were a multitude of indicia from an early stage that there were underlying issues in relation to her pain.
31. [31]
    What is argued, therefore, is that at this time and certainly after obtaining her majority, the applicant had but to seek medical attention at an earlier stage in relation to the recurring pain and that if that was the case, an MRI could have been obtained at an earlier stage and then the appellant would have been appraised of the material facts that are relied upon and, therefore, been able to bring her proceedings within time. 
32. [32]
    I am not so inclined, as is clear from the orders that I have made, however, to that view in relation to this matter.  In particular, I note being referred by counsel for the applicant to the decision of Justice McMeekin as his Honour then was in Ballingall v WorkCover Queensland and others [2017] QSC 133 where his Honour, dealing with a situation quite similar to this where information came to the attention of the applicant only after time had expired and the consideration that was given by his Honour to the facts relevant there.  In particular, I was referred to the comments in paragraph 46 of the decision as follows:

Up until April 2015 the facts in Mr Ballingall’s possession were that he had had successful treatment in the past, that he had maintained his employment and suffered no or no significant loss of income.  No reasonable person would have seen any need to seek to advice medical or legal at that point.  His understand was that he had a “bulging disc” and that it would go away.

33. [33]
    Whilst it is acknowledged here that the applicant in this particular matter had not sought medical attention or advice, there were similar beliefs held on her part with regard to the causes of pain not relating in any way to the accident having previously occurred.  Justice McMeekin went on to note, again, similar to the situation in this matter at paragraph 49, the following:

Whatever the level of symptomology from June 2015, clearly, it was not impacting significantly on Mr Ballingall.  He was getting on with his life.  He maintained his employment and in physical work.  He sought not medical treatment.  He took no medication.  His treating doctor had not seen the to volunteer any cautionary advice.  In my view, it was not reasonable that he seek any further advice at this stage. 

34. [34]
    Whilst again I acknowledge that there is a distinction to be drawn here in that the applicant in this case was, as she acknowledged, regularly taking medication, it was certainly the case that she was getting on with life and until the 19^th of October 2021 saw no need or requirement for her to take a step in relation to this matter.  I am certainly satisfied that the appropriate date in relation to any consideration of when something became at least obvious to the applicant was when she sought assistance from her doctor and thereafter appropriate inquiries were made culminating in the report which gives rise to this application provided by Dr King on the 7^th of April 2022.  I am satisfied, therefore, that the material fact of a decisive character came to the applicant’s attention at that time. 
35. [35]
    The next consideration then is consideration of the issue of prejudice. The applicant notes in the outline provided the comments of Justices Toohey and Gummow in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547 where the following is said:

The discretion conferred by the subsection is to order an extension of the limitation period.  It is a discretion to grant, not a discretion to refuse and on well-established principles an applicant must satisfy the Court that grounds exist for exercising the discretion in his or her favour.

36. [36]
    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 Commissioner Victoria 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, therefore, to show that these facts do not amount to material prejudice.

37. [37]
    Justice of Appeal Keane, in fact, as his Honour then was in NF v State of Queensland in fact commented upon that specific issue at paragraph 44 where the following is said:

The Brisbane South decision is concerned to ensure that an extension of time under this Act should not become the occasion for a trial which is unfair to the defendant.  It is authority for the following propositions: 

(a) the onus is upon the applicant who has satisfied the conditions in section 31, sub (2) of the Act to show good reason for the exercise in his or her favour of the discretion vested in the Court by that provision:

(b) the principal consideration which guides the exercise of that discretion is the concern whether a claim which is prima facie out of time may yet be fairly litigated;

(c) if a fair trial is unlikely, the discretion conferred by section 31(2) should not be exercised in the applicant’s favour.

38. [38]
    What is, therefore, argued by the second respondent in relation to this matter is that there is prejudice to the second respondent which would not be able to be overcome so as to result in a situation where it would not be a fair trial.  At paragraph 32 of the affidavit of Mr McConaghy filed on the 23^rd of August 2022 the following is said:

.... I verily believe that the second respondent has suffered significant prejudice due to the undue delay in bringing the claim, most notably:

1. (i)
   The Second Respondent has lost the forensic ability in having the Applicant medically examined and in particular, radiologically investigated at an early stage in the claim. Since the accident the Applicant has been involved in a further four motor vehicle/motorbike accidents occurring on or around 29 April 2015, 27 December 2015, 2 August 2016 and 28 August 2016 respectively;
2. (ii)
   The Second Respondent has been deprived of the opportunity to investigate and fund reasonable and appropriate rehabilitation services to the Applicant pursuant to s. 51 of the Act, at an early stage in order to mitigate the long-term effects of the Applicant’s alleged injuries;
3. (iii)
   The Second Respondent has been unable to obtain copies of the Applicant’s employment records from John Sadler Racing, where was employed between 18 December 2017 and 5 December 2018 and further on 29 May 2019 to 17 July 2019, due to the company being placed into voluntary administration. Exhibited to this Affidavit and marked “RAM-15” and commencing at page 45 of the attached Exhibit Book is a true and correct copy of my firm’s attempts to obtain the records of John Sadler Racing.
4. (iv)
   The Second Respondent has requested, and is yet to receive copies of, the Applicant’s records from Railway Estate State School, St Margaret’s Mary’s College, Freedman Racing, Townsville GP Super Clinic, Townsville Family Medical Centre and Townsville & Suburban Medical Practice.

39. [39]
    The applicant says in relation to those matters and there are four specific complaints as to the prejudice that is said to arise commencing with the lost forensic opportunity to have the applicant medically examined and, in particular, to radiologically investigate at an early stage the claim that is made.  That is particularly noteworthy, it is suggested, in line with the fact that the applicant had been involved in a significant motor vehicle accident in 2011 when as a passenger in a vehicle that was involved in a serious accident as well as various other motor vehicle or motorcycle accidents which occurred in April of 2015, December of 2015 and on two occasions in August of 2016.  What the applicant notes in that regard is that the opportunity for an early examination in respect of the applicant and the injuries sustained by her it is said in June of 2014 was lost to both parties long before the limitation period which expired on the 18^th of June 2021.
40. [40]
    The applicant through her counsel also notes, that because of the stoicism shown by her in relation to dealing with issues with regard to pain that she might have been experiencing meant that there was no real opportunity for an early examination and that, therefore, the complaint here is one which cannot be relied upon as justifying a finding of prejudice.  The second respondent, however, argues that had the claim been made in a timely way, the second respondent would have had the opportunity to have the applicant examined and for radiological examinations to be undertaken prior to previous motor vehicle accidents.  It is argued that that is a prejudice that cannot be remedied.  However, I am not so inclined to that view, noting that the second respondent would have been in the same position that they find themselves in now even if proceedings were commenced within the limitation period. Of course, in that regard, I am mindful of the guidance of the High Court in Brisbane South Regional Authority v Taylor that the fact is that the situation is what it is and is not as a result of any failure on the part of the applicant to act, in relation to the proceedings. 
41. [41]
    Secondly, it is argued that the second respondent is deprived of the opportunity to investigate and fund reasonable and appropriate rehabilitation services which is acknowledged, but as argued on the part of the applicant, it is not a matter which in any way would prejudice the conduct of a fair trial.  It may be that there could have been earlier intervention and, therefore, some mitigation as to loss but I would not think that it could be said in this matter that the loss of that opportunity is such as would affect the opportunity for the conduct of a fair trial. 
42. [42]
    In relation to the last of two concerns with regard to the passing of time and, therefore, the possibility of difficulties in obtaining copies of employment records and other records, including school and medical records, the fact is that the inquiries can continue and whilst there may be some specific difficulty that arises as a result of the employer, John Sadler Racing going into liquidation, it does not again seem to me to give rise to a prejudice that would ultimately mean that there could not be a fair trial. 
43. [43]
    Accordingly, as I indicated on the day, I am not satisfied that there is such prejudice arising as would preclude the opportunity being given to the plaintiff to extend the limitation period and to proceed in relation to this particular matter.  As such, leave was granted in terms of the orders made on the 26^th of August 2022.