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Wood v Safe Places Community Services Ltd[2024] QDC 92

Wood v Safe Places Community Services Ltd[2024] QDC 92

DISTRICT COURT OF QUEENSLAND

CITATION:

Wood v Safe Places Community Services Ltd [2024] QDC 92

PARTIES:

KIRSTY SUZANNE WOOD

(Applicant)

v

SAFE PLACES COMMUNITY SERVICES LTD

(Respondent)

FILE NO:

132 of 2023

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

14 June 2024

DELIVERED AT:

Townsville

HEARING DATE:

9 April 2024

JUDGE:

Coker DCJ

ORDER:

  1. That the period for an action for personal injuries by the Applicant, Kirsty Suzzane Wood against the First Respondent, Safe Places for Children be extended so that it expires on 22 November 2022.
  2. The Applicant’s costs of the application are reserved to the final determination of these proceedings.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – where the applicant brings a claim for damages for personal injuries for negligence caused by the negligence of the Respondent – where a part of the claim is not commenced within the statutory limitation period – where that part of the claim is an over a period of time claim (OPT) – whether an extension of time should be granted – whether a material fact of a decisive character was not within the applicant’s means of knowledge prior to the expiry of the limitation period

LEGISLATION:

Limitation of Actions Act 1974 (Qld) ss 30(1), 30(1)(a)(iv), 30(1)(b)(i), 30(1)(b)(ii), 30(1)(c)(i), 30(1)(c)(ii), 30(2), 31, 31(2)(a)

CASES:

Steele & Anor v John Holland Group Pty Ltd [2020] QSC 37, cited

Ferrier v WorkCover Queensland [2019] QSC 11, cited

Watters v Queensland Rail [2000] 1 Qd R 448, cited

Taggart v Workers' Compensation Board of Queensland [1983] 2 Qd R 19, cited

Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, cited

NF v State of Qld [2005] QCA 110, cited

Healy v Femdale Pty Ltd [1993] QCA 210, cited

Dick v University of Queensland [2000] 2 Qd R 476, considered

HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, cited

COUNSEL:

P F Mylne for the Applicant

R D Green for the Respondent

SOLICITORS:

O'Shea Dyer Solicitors for the Applicant

Cooper Grace Ward for the Respondent

Introduction

  1. [1]
    On the 26th of September 2023, Kirsty Suzanne Wood, whom I shall hereafter refer to as the applicant, commenced proceedings in this Court against Safe Places Community Services Limited, whom I shall hereafter refer to as the respondent.  The claim was in these terms: 

The plaintiff claims the following relief: 

  1. $750,000.00 damages for personal injuries for negligence caused by the negligence of the Defendant;
  1. Interest pursuant to the Civil Proceedings Act 2011;
  1. Costs. 
  1. [2]
    Thereafter, the statement of claim attached to the claim detailed the basis upon which the applicant suggested that the respondent had breached a non-delegable duty of care to take reasonable care to avoid foreseeable risks of injury in the course of her employment, and, of course, specifically in relation to the psychiatric or psychological wellbeing of the applicant. 
  2. [3]
    On the 28th of November 2023, as will become apparent as necessary, an application was filed in this Court to the following effect: 

TAKE NOTICE that the applicant is applying to the Court for the following orders: 

  1. That the period for an action for personal injuries by the Applicant, Kirsty Suzanne Wood against the First Respondent, Safe Places for Children be extended so that it expires on 22 November 2022. 
  2. The Defendant should pay the Applicant’s costs to be assessed. 
  1. [4]
    In support of that application, an affidavit by the applicant was also filed.  That affidavit detailed at some length the basis upon which the relief sought in the application was to arise.  It noted, in paragraphs 2 through 7 under the heading “The Incident”, the following:

The Incident

  1. I suffered injuries in the course of employment with Safe Places as a result of a number of significant events.
  1. On 15 May 2018, I was hit on the left side of my face by a water bottle being held by an aggressive client that I was assisting.
  1. On or around 10 July 2018, I witnessed a client that I was assisting self-harm with a razor.  I received very little support from my employer following this event.
  1. In or around late January/early February 2019, I was working a 24-hour shift and at 8:00am two teenage residents were involved in a series of escalating behaviours which significantly damaged the residential facility and put me in a vulnerable position.  I was required to remain at work that day until I was required to accompany the young female resident to the Townsville University hospital with police as she was suicidal.  I was required to have two weeks off work following this incident due to my emotional symptoms.
  1. On 2 September 2019, I was supporting two young clients who I regularly assisted.  One of the young male clients’ behaviour started to escalate and I used techniques to attempt to calm him down.  Whilst doing so, the young male screamed in my face and pushed me out of the way by palming my shoulder aggressively.  I finished my shift with considerable difficulty.  I was not offered a debrief by my employer following this altercation.
  1. Between 15 May 2018 and 15 September 2019, I was involved in various other incidents which resulted in the police being called due to the escalating behaviour.
  1. [5]
    The affidavit by the applicant goes on to note that following the incident detailed in paragraph (6) relating to the exchange with the two young clients, an application with WorkCover was lodged, which was dated the 30th of September 2019. 
  2. [6]
    It notes that, whilst there was a delay in WorkCover accepting the application, the application to WorkCover was finally accepted on the 21st of May 2020.  The applicant goes on specifically to note that she: 

Developed significant psychological symptoms from late 2018 and then attended upon her general practitioner regularly.

  1. [7]
    She notes also that she was placed on a mental health plan and was prescribed psychotropic medication to assist with her symptoms.  She states further that she, despite attempts to return to her employment with the respondent, resigned from that employment due to her ongoing psychological symptoms. 
  2. [8]
    The applicant says in her affidavit that following her resignation from the respondent, she was experiencing financial hardship as the WorkCover application had not been approved. She also was of the mind that not only was there financial hardship, but that she thought that finding employment in an alternative field would assist with her psychological symptoms. 
  3. [9]
    She attained employment as a retail assistant at a store called Honey Birdette and worked there from the end of 2019 until about November of 2020.  She indicated, however, that her mental state did not improve, and she found it difficult working with the general public as this made her extremely anxious.  She recalled that she finished work due to her ongoing psychological symptoms. 
  4. [10]
    Thereafter, the applicant states that she commenced employment with North Queensland Employment Services as a disability employment consultant in a full-time capacity, in April of 2021.  She describes that role as assisting clients with disabilities, including physical, emotional and intellectual difficulties and disabilities in obtaining employment. 
  5. [11]
    The applicant indicates that she continued in this employment for a period, it would seem, of about seven months.  Though, as she put it: 

I continued to experience significant psychological symptoms including frequent nightmares, depressed mood, suicidal thoughts, anxiety and hypervigilance.

  1. [12]
    She indicated that her symptoms deteriorated to the extent that on the 22nd of November 2021, she was admitted to the Townsville Private Clinic for psychiatric treatment.  She, thereafter, indicates that she underwent a variety of treatments, including dialectical behaviour therapy to assist with her mood and ongoing mental health, and she also underwent 20 sessions of transcranial magnetic stimulation. 
  2. [13]
    Upon her discharge, on or about the 17th of December 2021, she says that she was still suffering from frequent nightmares, depressed mood, suicidal thoughts, anxiety and hypervigilance.  Specifically, she recalls that towards the end of the time of admission between the 22nd of November 2021 and the 17th of December 2021, that in conversation with her treating psychiatrist, Dr Jane Hay, there were discussions centred around her having a plan upon being discharged from hospital. 
  3. [14]
    In particular, the applicant notes that it was during these discussions, during that period of hospitalisation, that Dr Hay advised her against returning to her employment as a disability employment consultant and also told her:

Given the severity of my symptoms, she did not think that I would be able to ever return to full-time employment.

  1. [15]
    The applicant indicates that prior to these conversations with Dr Hay, she had not ever contemplated not being able to return to full-time work.  Thereafter, she notes that she continued to struggle with her mental health after her discharge in December 2021, finding it as she described it: 

Difficult just managing my day-to-day life.

  1. [16]
    On the 25th of February 2022, the applicant was readmitted to the Townsville Private Clinic for a further period of about four weeks, then being discharged on the 24th of March 2022.  During this period of hospitalisation, there were continued sessions between the applicant and Dr Hay and, as the applicant describes it, there were further discussions in relation to her future ability to work, with Dr Hay emphasising to the applicant that she would be unable to work in the future. 
  2. [17]
    The applicant indicated that she was upset by the prospect of not being able to work and financially contribute to her family.  However, it was at that time that she was more accepting of what Dr Hay was saying about her future ability to work.  The applicant notes in her affidavit that since November 2021, when she was first admitted to the Townsville Private Clinic, she has not been able to return to work in any capacity and has, as a result, made application through her superannuation for assistance.
  3. [18]
    The applicant acknowledged that her solicitors arranged for her to be assessed by a psychiatrist, Dr Michael Likely, and that report is available to the Court.  In particular, Dr Likely assessed the applicant as having a seven per cent permanent impairment with respect to psychological injuries, noting, as he does in his report, that he diagnosed the injuries as post-traumatic stress disorder and a major depressive episode.  Dr Likely assessed that the applicant was totally and permanently incapacitated from engaging in any form of remunerative employment or any potential occupation for which she had previously been trained or qualified. 
  4. [19]
    Dr Likely in that report provides some significant background, albeit coming from self-reporting of the applicant, as to the workplace injuries which occurred whilst the applicant was employed by the respondent.  Dr Likely notes in particular at page 4 of his report of the 24th of May 2022, the following: 

Ms Wood has been subject to assaults, physical threats and verbal abuse from the young people in her care.  Ms Wood describes an occasion in or around July 2018 where she was hit in the side of the head with a water bottle by one of her clients which resulted in a concussion.  This event was a result of Ms Wood attempting to stop a youth lighting the care house on fire.

  1. [20]
    The report goes on to note other incidents that were recalled by the applicant to Dr Likely, and on page 5 of the same report he says: 

As noted above, Ms Wood was involved in a cumulative series of extremely stressful work incidents involving verbal and physical abuse. Of the incidents discussed above, Ms Wood told me that three caused her considerable distress.

  1. [21]
    Thereafter, Dr Likely notes that these included the occasion where she was hit on the head with a water bottle and when she was threatened with a sharpened pencil by an agitated client.  However, the most distressing work related stressor occurred on the 2nd of September 2019, when she was assaulted in the course of attempting to verbally deescalate an extremely agitated young male client.  The importance of that report arises particularly in respect of the indication by Dr Likely of the applicant being involved in a: 

Cumulative series of extremely stressful work incidents.

  1. [22]
    That background is appropriate in relation to this particular matter, so as to put in place some clear understanding of the nature of the application. 
  2. [23]
    The application brought by the applicant is brought pursuant to the provisions of section 30(1) of the Limitation of Actions Act 1974 (Qld)(the ‘LAA’).  The outline of argument provided by the applicant’s legal representatives sets out the relevant sections in relation to the proceedings.  Particularly relevant here in my assessment, and I shall come to why, are the provisions of section 30(1)(b) relating to material facts of a decisive character.  Section 30(1)(b) of the LAA is in these terms: 

30  Interpretation

  1. For the purposes of this section and sections 31, 32, 33 and 34—
  1. …
  1. material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts would regard those facts as showing— 
  1. 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
  1. that the person whose means of knowledge is in question ought in the person’s only interest and taking the person’s circumstances into account to bring an action on the right of action;

…

  1. [24]
    Appropriate advice is also defined in section 30(2) as follows: 
  1. In this section—

appropriate advice, in relation to facts means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts. 

  1. [25]
    What is necessary, therefore, of course, is to facilitate an assessment of the application brought in this matter and to consider the circumstances that give rise to the application.  Of assistance in relation to the matter is the guidance provided in the more recent decisions of the Supreme Court.  Specifically, in Steele & Anor v John Holland Group Pty Ltd [2020] QSC 37, Burns J said at paragraph 2: 

[2]  By s 31 LAA, where a material fact of a decisive character relating to a right of action was not within the means of knowledge of the applicant for such an extension until a date after the commencement of the year last preceding the expiration limitation period, and there is evidence to establish that right of action, the Court may order that the limitation period be extended so that it expires at the end of one year after that date.

  1. [26]
    His Honour, at paragraph 59, went on specifically to note that:

[59] …the correct approach to deciding an application such as this is to first inquire whether the facts of which [the applicant] was unaware were material facts and, if so, whether they were of a decisive character within the meaning of section 31(2)(a) LAA.

  1. [27]
    Of particular assistance in that regard is the guidance provided by Crow J in Ferrier v WorkCover Queensland [2019] QSC 11, where His Honour helpfully sets out the matters that need to be shown by an applicant in order to bring a successful application for an extension of time.  At paragraphs 23 and 24, the following was said: 

[23] In order to succeed in an application to extend the time period pursuant to s 31 of the Act, the applicant bears the onus of showing: 

  1. that a material fact;
  1. of a decisive character;
  1. was not within his or her means of knowledge until a date no more than 12 months prior to the date to which the extension is granted;
  1. there is evidence to establish a right of action; and
  1. that no prejudice, in the relevant sense, would be occasioned to the respondent that would justify disallowing the application.

[24]  The step by step approach, that is, considering each of the above elements sequentially, is required as a matter of construction of the statute.

  1. [28]
    The guidance provided by Crow J goes on to note that the step by step approach that is detailed in the judgment needs to be considered sequentially, in order to reach a determination in relation to the proceedings.  It also goes on specifically to note that in the event that the Court is satisfied of a material fact of a decisive character, not within the means of knowledge of the applicant until a date no more than 12 months prior to the date on which the extension is granted, and that there is evidence to establish a right of action, then there also needs to be consideration given to whether there is prejudice in the relevant sense, which would be occasioned to the respondent, if leave was granted, such that there would be justification to disallow the application. 
  2. [29]
    In other words, if the Court is satisfied that those matters detailed as (a), (b), (c) and (d) above are shown, then there is a discretion to extend the period of limitation from 12 months, from the time that the material fact was within the applicant’s means of knowledge.  As such, it is necessary to consider each of those points, sequentially, as indicated by His Honour.
  3. [30]
    Firstly, there is the need then to consider the nature and extent of a personal injury caused by an incident.  As defined in section 30(1)(a)(iv) of the LAA, it is also necessary, however, to consider the economic consequences of the injury.  In that respect, assistance is available in relation to an assessment arising from the physical as well as the economic consequences of an injury.  In Watters v Queensland Rail [2000] 1 Qd R 448, Thomas JA, as His Honour then was, noted at paragraph 11: 

[11]  This court has consistently treated the consequences of injury including economic consequences, as a potentially material fact of a decisive character relating to the right of action. 

  1. [31]
    His Honour, at paragraph 11, also went on to note that: 

[11]  …Such cases are almost invariably concerned with assessments of degree as to whether the plaintiff’s actual knowledge of physical injuries and its warning signs and consequences had by a given date already afforded sufficient information to have justified the commencement of proceedings.

  1. [32]
    His Honour noted that facts of that nature need to be weighed in context with facts already known and reasonably capable of being known.  In particular, reference was made by His Honour to the decision of Taggart v Workers' Compensation Board of Queensland [1983] 2 Qd R 19 when His Honour said, at page 454, the following: 

In Taggart the fact that the plaintiff’s injury was more serious than he had hitherto realised was regarded as capable of being a material fact.  The plaintiff failed on the footing that in the light of what he already knew the additional information could not be regarded as of a decisive character. By necessary implication a fact of this kind going to enlargement of damages could be a material fact of a decisive character if it converted such a person’s claim for one that was not worth bringing into one that was.

  1. [33]
    That is a significant consideration here.  It appears clear that there were indications given to the applicant of the difficulties that would be inherent in her continued work.  In particular, the applicant’s medical records at the Douglas Family Medical Centre record that the plaintiff was reporting extreme financial hardship and that further reporting, including that of Dr Alexandra Simpson, a psychiatrist, noted that in a report of the 17th of April 2020: 

Ms Wood presents with a constellation of mood, anxiety and trauma symptoms in the context of repeated exposure to abuse and assaultive behaviour in her workplace over a three-year period culminating her putting in a WorkCover claim in September 2019.

  1. [34]
    That report was the subject of a supplementary report on the 20th of May, 2020 where Dr Simpson noted that the September 2019 incident was the major contributing factor, and it was outlined in that report that the previous assaults were a factor but that the plaintiff was working adequately up until the September event.  That is a significant consideration in relation to this matter noting, as I do, that the very clear evidence of the applicant was that it was her desire to continue at work.
  2. [35]
    And, in fact, she did so, changing employment on at least two occasions and only finally accepting, as I have detailed, after further discussions with Dr Hay that her ability to continue in employment had been seriously curtailed as a result of the incidents that had preceded the event of the 2nd of September 2019.  That, if you like, gives rise to the application for an over a period of time injury arising.
  3. [36]
    Certainly, the economic consequences that flowed as a result of the applicant being unable to continue in any form of employment, let alone that which had previously been the subject of her employ and training and skills, is a significant economic consequence that came to her knowledge after the discussions were conducted with Dr Hay. That certainly, in my assessment, can be characterised as a material fact. 
  4. [37]
    The question, however, then, is whether or not it is a material fact of a decisive character. As noted in Taggart:

The fact that the plaintiff’s injury was more serious than he had hither to realise was regarded as capable of being a material fact.

  1. [38]
    The question, then, was whether the information then to hand was of a decisive character.
  2. [39]
    Section 30(1)(b) of the LAA, as detailed already, specifically makes reference to the question of what constitutes a decisive character, and explains that it only arises if a reasonable person knowing those facts and having taken appropriate advice on those facts, would regard those facts as showing 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 and a right of action.
  3. [40]
    I have already commented upon the second part of section 30(2) of the LAA relating to appropriate advice, being described as the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.  As such, the applicant here has the onus of showing that, without the newly learnt fact or facts, she would not, even with the benefit of appropriate advice, have previously appreciated that she had a worthwhile action to pursue. 
  4. [41]
    That arises in this situation where there was certainly advice received by the applicant in relation to the bringing of proceedings and how that might have come about.  In particular, it’s noteworthy that on the 12th of April 2021, solicitors previously consulted by the applicant, McDonald Leong Lawyers, communicated with WorkCover Queensland.  That communication noted, in particular, the telephone communications between the applicant’s then legal representatives and a Mr Loos of WorkCover, and that there would be communications between WorkCover and those solicitors in respect of whether or not there would be acceptance of the fact that the applicant’s date of injury was to be amended to reflect that it was an over a period of time from the 15th of May 2018 to the 22nd of October 2019.
  5. [42]
    That correspondence went on specifically to note: 

We wish to put you on notice that should we not receive a response from you by close of business on Thursday, 15 April 2021, we hold instructions to attend to the following without further notice to you:-

  1. Lodge an application pursuant to section 132A of the ‘Workers' Compensation and Rehabilitation Act 2003 (Qld)(“the Act”) for our clients over a period of time injury to be assessed under section 179 of the Act;
  2. File an application in the Queensland Supreme Court pursuant to section 298 of the Act for leave to bring proceedings despite non-compliance with the requirements of section 275 of the Act.
  1. [43]
    What is suggested, understandably, therefore, is that the applicant had received appropriate advice in relation to the proceedings and the consequences that might flow were she not to bring the proceedings.  However, it is noteworthy that the applicant indicates in her affidavit of the 28th of November 2023, as follows: 

However, I do recall advising them that I did not want them to take any further action including any application to the Court.  Because of advice I had received from a solicitor at McDonald Leong, I was aware that, if I was able to continue working, any claim for compensation I had would not be significant.

  1. [44]
    That is relevant here because although the letter was dated the 12th of April 2021, the exchange between McDonald Leong and WorkCover was by way of telephone communication on the 31st of March 2021.  However, the applicant returned to work on the 6th of April 2021 and, as such, had, she said, proper reason to believe that she would be able to continue work and, more particularly, that she would, therefore, not have a significant claim for compensation, and she had been advised of that by those solicitors.  The applicant says, therefore, that the knowledge, finally and emphatically imparted to her by Dr Hay during her period of hospitalisation in November and December of 2021, was information of a decisive character. 
  2. [45]
    In that regard, assistance can be drawn from the comments of Macrossan J, as His Honour then was, in Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325 where His Honour says: 

In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it.  He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it.  This is what the application of the test of the decisiveness under s. 30(b) comes down to.

  1. [46]
    It is an important consideration, as is the consideration of the basis upon which a reasonable person would act. In NF v State of Qld [2005] QCA 110, Keane JA, as His Honour then was, noted the following at paragraph 29:

[29]  It is to be emphasised 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.

  1. [47]
    His Honour then goes on specifically to explain that the determination of whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered as reference to what can reasonably be expected from the actual person in the circumstances of the applicant.  Here, there needs then to be a clear appreciation of the applicant herself and the nature of her circumstances.  In that regard, it is clear that the applicant is stoic in her disposition and was determined to continue work, both for her own psychological wellbeing and for the meeting of the financial needs of her family. 
  2. [48]
    In particular, the reports in relation to this matter noted improvements in relation to the applicant’s disposition and her determination to move forward with work.  As such, there is still a need to consider whether the information provided by Dr Hay was, in all the circumstances, of a decisive character.  In that respect, the applicant indicated in cross-examination during the conduct of the proceedings before me that she did not initially accept the advice of Dr Hay because of her overarching determination to continue with employment, both for its rehabilitative and financial benefits to she and the family. 
  3. [49]
    She indicated that it was only perhaps on the second occasion in early 2022 that she finally considered the cold hard facts that related to her being unable to return to work.  In that regard, it is important that her disposition there be considered, and I am mindful of the comments of the Court of Appeal in Healy v Femdale [1993] QCA 210, where the following is said on page 4: 

The question whether an injured person has taken all reasonable steps to ascertain the nature and extent 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 and disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or affect 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. 

  1. [50]
    That is the circumstance here, where the applicant has clearly heard what has been said, but has shown just as directly a determination to return to work in some form or another, noting, as I have, her concern both for the rehabilitative and beneficial effects of employment, as well as the financial benefits that come from such employment. 
  2. [51]
    As such, whilst having received some advices, the indications including the very nature of the actions taken by the applicant were not reflective of an acceptance of that information, nor could it be suggested as being unreasonable not to have accepted such information or advice when she clearly continued obtaining employment.  I am satisfied, therefore, that the information conveyed more directly by Dr Hay during the hospitalisations, either in November or December of 2021 or early 2022, were of a decisive character.
  3. [52]
    That then leads to the third of the considerations, as suggested by Crow J, as a consideration of the means of knowledge being available or not within the knowledge of the applicant until a date no more than 12 months prior to the date on which the extension is granted.  In that respect, it is noted that section 30(1)(c) of the LAA specifically indicates that:

30  Interpretation

...

  1. a fact is not within the means of knowledge of a person at a particular time if, but only if—
  1. the person does not know the fact at that time; and
  1. 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.
  1. [53]
    In that regard, the applicant argues in the outline provided to the Court that such a determination is a question of issues of fact and that it is an assessment which is done upon a consideration of the means of the knowledge of the applicant herself, not of ‘a hypothetical reasonable man’.  In that respect, I note the guidance provided by Dick v University of Queensland [2000] 2 Qd R 476 and, in particular, the fact that, as was noted in Healy v Femdale Pty Ltd [1993] QCA 210 on page 5: 

There is no requirement to take “appropriate advice” to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.

  1. [54]
    In that regard, I note also the guidance importantly detailed in HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, where, at paragraph 44, the following was said:

[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 and get on with life, rather than a decision to litigate upon a questionable basis. 

  1. [55]
    That is a significant consideration here.  The applicant clearly set out to continue to work in one form or another.  She gave evidence to the effect that she saw it as therapeutic but also as an essential to contribute financially to her family and to the needs of the family. 
  2. [56]
    To suggest that she should have considered litigation in relation to over a period of time injuries fails to properly recognise her awareness of the indication given by the former lawyers, McDonald Leong, to the effect that a claim for compensation would not be significant if she were to have continued working, and that was her desire.  Clearly, therefore, the means of knowledge was not directly available until such time as the clear medical advices of Dr Hay given in November or December of 2021, or even perhaps later in early 2022.  There is, therefore, in my view clear, evidence of the material fact of a decisive character not within the applicant’s means of knowledge until a date no more than 12 months prior to the date on which the extension here is sought, and that there is evidence there which establishes a right of action.
  3. [57]
    The position of the respondent in relation to the matter is to note that the application is opposed.  In particular, the legal representatives for the respondent submit that the circumstances of this case give rise to a need to consider whether there is evidence to establish a right of action, apart from that which would arise simply by way of an expiration of limitation period.  Here, the respondent argues that if the applicant is to be successful in satisfying the onus that falls upon her in relation to this matter, the material fact sought to be relied upon is one that:

…transforms the applicant’s appreciation of the possible cause of action to one that would result in a substantial award of damages. 

  1. [58]
    In that regard, the respondent then says there is no such material fact, it already having been communicated in various ways and by various medical advices of the difficulties inherent in continuing in employment as was previously undertaken or, in fact, in any form of employment in light of the diagnoses, particularly by Dr Likely.  In this case, it is argued by the respondent that the information communicated finally by Dr Hay was reflective of that which had previously been said, and that it was therefore not a material fact which was previously unknown.  That, however, does not seem to be the case, particularly in circumstances where there are clear indications of the applicants attempts to return to work in various capacities and, in fact, the clear evidence that she did so, and that there is reference in the medical reports and communications to the benefits seen as inherent in relation to that. 
  2. [59]
    Further, the respondent, in relation to the issue of indecisiveness of the information provided by Dr Hay is in question. As put by the respondent’s legal representatives: 

It is submitted that the material before the Court suggests that it was reasonable to adopt a position consistent with a not granting of relief sought.

  1. [60]
    As such, the respondent argues that it is not open to the Court to make findings consistent with the information provided by Dr Hay being of a decisive character.  In particular, the respondent refers to the comments, previously noted by me, on the part of Dr Likely with regard to the cumulative effect rather than the individual effects of the various incidents.  The respondent, therefore, argues that there is nothing of a decisive character in relation to the information finally accepted by the applicant in her exchanges with Dr Hay.  As I have indicated, however, I am not of that view, particularly in light of clear knowledge held by various medical practitioners of the character and demeanour of the applicant, and her reasons for continuing with all efforts as she did to continue in her employment. 
  2. [61]
    In light of those considerations, it is not really necessary in my assessment to proceed to the argument on the part of the respondent with regard to the question of means of knowledge.  Here, the applicant’s own actions were clearly indicative of her intention to keep at work and, therefore, not a basis on which it could properly be suggested that she had a means of knowledge of knowing that she should have brought proceedings in relation to the over a period of time injuries at an earlier time.
  3. [62]
    The submission on the part of the respondent that information known to the applicant, or within her means of knowledge prior to the relevant date, was sufficient for her to assess that she had a valid course of action or cause of action to pursue rather than to await the further information falls short of what might properly be required.  I am satisfied, as I have indicated, therefore, that leave should be granted for an extension of time in terms of the application brought. 
  4. [63]
    As such, I make orders in terms of order 1 of the application and reserve the applicant’s costs of the application to the final determination of these proceedings.
Close

Editorial Notes

  • Published Case Name:

    Wood v Safe Places Community Services Ltd

  • Shortened Case Name:

    Wood v Safe Places Community Services Ltd

  • MNC:

    [2024] QDC 92

  • Court:

    QDC

  • Judge(s):

    Coker DCJ

  • Date:

    14 Jun 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ferrier v WorkCover Queensland [2019] QSC 11
2 citations
Jump To
Cite 1 - [2019] QSC 11
Cite 2 - [2019] QSC 11
Healy v Femdale Pty Ltd [1993] QCA 210
3 citations
Jump To
Cite 1 - [1993] QCA 210
Cite 2 - [1993] QCA 210
Cite 3 - [1993] QCA 210
HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168
2 citations
Jump To
Cite 1 - [2009] QCA 168
Cite 2 - [2009] QCA 168
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
2 citations
Jump To
Cite 1 - [1988] 2 Qd R 325
Cite 2 - [1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110
2 citations
Jump To
Cite 1 - [2005] QCA 110
Cite 2 - [2005] QCA 110
Steele v John Holland Group Pty Ltd [2020] QSC 37
2 citations
Jump To
Cite 1 - [2020] QSC 37
Cite 2 - [2020] QSC 37
Taggart v Workers' Compensation Board of Queensland [1983] 2 Qd R 19
2 citations
Jump To
Cite 1 - [1983] 2 Qd R 19
Cite 2 - [1983] 2 Qd R 19
University of Queensland v Dick[2000] 2 Qd R 476; [1999] QCA 474
2 citations
Jump To
Cite 1 - [2000] 2 Qd R 476
Cite 2 - [2000] 2 Qd R 476

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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