Rose v Central Queensland University
[2002] QSC 304
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- Unreported Judgment
- Rose v Central Queensland University[2002] QSC 304
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Rose v Central Queensland University[2002] QSC 304
Rose v Central Queensland University[2002] QSC 304
SUPREME COURT OF QUEENSLAND
CITATION: | Rose v. Central Queensland University [2002] QSC 304 |
PARTIES: | GABRIELLE ROSE |
FILE NO/S: | 4835 of 2000 |
DIVISION: | Trial |
DELIVERED ON: | 3 October 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 August 2002 |
JUDGE: | Helman J. |
CATCHWORDS: | LIMITATION OF ACTIONS – PERSONAL INJURIES – EXTENSION OF TIME – application for extension of time for commencement of action – where applicant suffered from mental disorder – whether material fact of a decisive character was within the applicant’s means of knowledge Berg v. Kruger Enterprises [1990] 2 Qd.R. 301, referred to Byers v. Capricorn Coal Management Pty Ltd [1990] 2 Qd.R. 306, referred to Ipswich City Council v. Smith (Court of Appeal, appeal no. 5443 of 1997, unreported, 29 August 1997), referred to Moriarty v. Sunbeam Corporation Limited [1988] 2 Qd.R. 325, referred to Peabody Resources Ltd v. Norton (Court of Appeal, appeal no. 200 of 1994, unreported, 16 June 1995), referred to Sugden v. Crawford [1989] 1 Qd.R. 683, referred to Taggart v. The Workers’ Compensation Board of Queensland [1983] 2 Qd.R. 19, referred to Limitation of Actions Act 1974 (Qld), s.30, s. 31 |
COUNSEL: | Mr P.J. Goodwin for the applicant Mr A.M. Arnold for the respondent |
SOLICITORS: | Hall Payne Lawyers for the applicant Corrs Chambers Westgarth as town agents for Swanick Murray Roche Lawyers for the respondent |
- This is an application by the plaintiff under s.31 of the Limitation of Actions Act 1974 for the extension of a period of limitation. The plaintiff began the proceeding by a claim issued out of this court on 2 June 2000. Her claim was for damages for negligence, breach of statutory duty, and breach of a contract of employment. The damages claimed were in respect of personal injury. In a defence filed on 17 September 2001 the defendant pleaded inter alia that the plaintiff’s claim is statute-barred. The plaintiff seeks the extension to 2 June 2000.
- In an affidavit filed on 21 June 2002 the plaintiff swears she was born on 10 February 1952, and was employed by the defendant as a lecturer in its faculty of Health Sciences from 1991 until she resigned in July 1996. Early in the first semester of 1995 she was elected to a university research committee. She swears that the dean of the faculty was openly opposed to her election, and she became the subject of ‘extreme harassment’ in her position at the university, beginning at a meeting on 27 March 1995. She swears that in March 1995 she took stress leave for a week, but, on her return to work, ‘the stress levels remained and a continuing campaign of harassment as set out in [her] Statement of Claim resulted’. She swears that on 11 October 1995 she reported to the personnel department of the university that she could not work under the prevailing conditions within the faculty and that she had been told by her doctor to go on stress leave until her allegations in relation to her treatment at the university were investigated and a safer workplace was provided. On 9 October 1995 the plaintiff had made an application for worker’s compensation ‘due to mental and physical fatigue associated with the stress and treatment [she] had been subject to at the university’. On 22 December 1995 she received a medical certificate showing that she was fit to return to work provided she worked from home, and she swears that from 22 December 1995 until 7 June 1996 she continued to work for the university from home. Her application for worker’s compensation was approved, and she received compensation until 7 June 1996. She swears that when she was due to return to ‘normal working conditions’ in June 1996 she was unable to do so because her stress levels had not abated and she resigned on or about 1 July 1996.
- The plaintiff swears that in 1997 she was diagnosed as suffering from fibromyalgia and ‘thought that this had something to do with the abuse [she] had suffered at University of Central Queensland’. She swears that because by 1997 she was too ill to return to full-time work she applied for a scholarship to enable her to undertake preparation for the degree of Doctor of Philosophy and was awarded a scholarship, but deferred beginning her work for the degree until March 1997 ‘so that [she] would have time to recover from [her] stress and other conditions’. She swears that throughout 1997 and 1998 her physical and mental health continued to deteriorate but she continued to carry out research for the Ph.D., ‘but remained particularly vigilant in the work environment and was extremely anxious about the work environment in which [she] was placed’. She swears she continued to suffer from flashbacks, bad dreams, and poor sleep patterns with dreams resulting in her feeling as she had when she was subject to the stress at Central Queensland University. The flashbacks ‘reciprocated numerous episodes of crying and tears’, and her memory and concentration, which had become very poor during the period of greater stress at Central Queensland University and in mid- and late 1995 during her time on stress leave, continued to be ‘very much below par’. She had however, she swears, always been convinced that her diagnosed condition would heal with time and that her symptoms would resolve and so she would be able to resume her full-time career in lecturing and research.
- When the plaintiff was working for the Ph.D. she underwent a cholecystectomy for a chronically inflamed gall bladder and she developed a condition of chronic blepharitis requiring daily treatment. She swears she developed a whole range of allergies that she had not previously had and her asthma became more severe. The medication she was taking for depression resulted in her developing high blood pressure and her physical condition continued to deteriorate. She swears that she continued ‘throughout this period of time’ to believe that in due course, with the passage of time, her condition would improve, and that she would be able to get on with her life.
- In 1999 the plaintiff moved to Melbourne to continue her research. She swears she became extremely depressed and suicidal as she could not manage all her symptoms and continue her work on the Ph.D. at the same time. She swears she came to realise she was not recovering to her ‘pre stress capacities’ and that her future work prospects were very poor because of her continued mental and physical deterioration with no apparent improvement. She was referred by Dr Sally Clarke, the general practitioner she was consulting, to a psychologist Ms Leah Goldman and to a psychiatrist Dr Nicole Phillips. The plaintiff refers to Dr Phillips’s diagnosis as follows:
- Dr Phillips the psychiatrist diagnosed me as suffering from post traumatic stress disorder and it was then that I realised that my chances of recovery to lead a normal and productive life in academia were non existent and that instead of having the previously diagnosed Fibromyalgia and having good prospects of recovery I now realised that I was suffering a permanently disabling condition that was not responding to treatment.
…
- Following the diagnoses by Dr Phillips I felt profoundly depressed by my financial insecurity and my diminished or non existent career prospects but more importantly the realisation that I was suffering a more serious condition as a result of the treatment I received from the University of Central Queensland was a revelation to me.
- The diagnosis of unresolved and chronic post traumatic stress disorder in September 1999 explained to me a lot of what had been a mystery to me with respect to my inability to halt the downward trend in my physical and mental health up to that time and it was not until September 1999 when I was prescribed a high dose of Effexor and anti depressant that I became sufficiently clear headed to appreciate the seriousness of my health problems and with the new diagnosis of chronic post traumatic stress disorder together with chronic fatigue syndrome and chronic gall bladder disease it was the first time that I really was aware of the true nature and extent of my illness and that this illness was in my view directly attributable to the workplace bullying that I have suffered at Central Queensland University …
- In an affidavit filed on 24 June 2002 the plaintiff summarizes the part of her history of particular relevance on this application as follows:
- In late 1999 I became aware I had post traumatic stress disorder as a result of the conditions of employment. This injury was diagnosed by my general practitioner Dr Sally Clarke, a Psychiatrist Nicole Phillips and Psychologist Leah Goldman. Until this diagnosis I was not aware I had suffered such a serious condition.
In that affidavit she also recounts her application for worker’s compensation made on 9 October 1995, the awarding of compensation and the payment of benefits, and then, after her consulting her current solicitors on or about 11 October 1999, her application to WorkCover to reopen her case.
- A report dated 6 and 8 September 1999 by Ms Goldman confirms the plaintiff’s evidence that Ms Goldman diagnosed her condition as post-traumatic stress disorder. She recorded her conclusion as follows:
I believe that Gabrielle is experiencing unresolved PTSD from the harassment she experienced at CQU. Even though she found it difficult, she was able to deny her emotional distress, believing that she had to get on with her life. I believe Body Work could facilitate her recovery. Van der Kolk (1999) reported that people who experience PTSD can be helped with a Body Work technique. I have recommended that she make an appointment with Gillian Zaks who is a Trager practitioner.
Since Gabrielle’s post traumatic stress has become chronic, she will require at least six months of weekly sessions with a review following.
In oral evidence called at the hearing of the application, however, Ms Goldman agreed that that diagnosis was incorrect and that the plaintiff’s symptoms were ‘more akin to an adjustment disorder’. Ms Goldman also agreed that at no stage did she tell the plaintiff that she was suffering from a ‘life long illness’. She agreed that she had told the plaintiff that there were good chances of her recovering.
- In a report dated 16 March 2000 Dr Phillips recorded her having seen the plaintiff ‘approximately monthly’ after an initial assessment on 27 September 1999. She recorded her assessment as follows:
My assessment of Gabrielle when I first saw her was that she was still significantly depressed and had fairly classic symptoms of fibromyalgia/chronic fatigue syndrome. Many symptoms of depression and these other two syndromes overlap and it is often difficult to tease out which symptoms belong to which diagnosis. I changed her medication to efexor which she is still currently on and has lead [sic] to a significant improvement in her mood. We have also worked together with respect to her insomnia and although this is still a major difficulty, there have been some improvements with the addition of several other medications at night time.
Despite the improvement in her depression, Ms Rose still remains significantly disabled with the symptoms of fibromyalgia/chronic fatigue syndrome. She is extremely fatigued, continues to have generalised body aches and pains and is still having problems with her memory and concentration. At this stage the prognosis for full recovery from her medical conditions is looking less and less likely although the natural history of these conditions is that they do improve as the years go on.
Ms Rose is still severely traumatised about the events that occurred at Queensland University [sic] and these concerns are affecting her ability to feel safe and trust in other work places. It appears quite obvious that Ms Rose was functioning well in her work place prior to 1995 and there is no doubt that both her physical and mental health have been severely impacted upon by the events of that year.
When she gave oral evidence at the hearing Dr Phillips agreed that she had seen the plaintiff on approximately fifteen occasions in the period beginning on 27 September 1999 and ending on 12 July 2000. She agreed that she had never diagnosed the plaintiff as suffering from a post-traumatic stress disorder. In the plaintiff’s oral evidence she said that Dr Phillips had given that diagnosis orally but not in writing. I do not accept that, however, since I see no reason to doubt Dr Phillips. Dr Phillips agreed that she had never told the plaintiff that she was suffering from ‘a permanent life-long disorder’, and that the plaintiff’s ability to work had been impaired since 1995.
- In the plaintiff’s oral evidence at the hearing she said that ‘[a]t the start in ’97’ she was working as a tutor at the University of the Sunshine Coast for two hours a week, and later, when she moved to Brisbane, she tutored for four hours a week at the University of Queensland, and when she went to Melbourne she tutored for two hours a week at the University of Melbourne ‘plus [her] Ph.D.’ She said she worked towards the Ph.D. ‘full-time to specified and required levels’.
- Section 31 of the Limitation of Actions Act is as follows:
31Ordinary actions
(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)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—
(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
(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.
(3)This section applies to an action whether or not the period of limitation for the action has expired—
- before the commencement of this Act; or
- before an application is made under this section in respect of the right of action.
Section 30 is an interpretation section which applies to s.31:
30Interpretation
(1)For the purposes of this section and sections 31, 32, 33 and 34–
- the material facts relating to a right of action include the following–
(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
(ii)the identity of the person against whom the right of action lies.
(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
(iv)the nature and extent of the personal injury so caused;
(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
- 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–
- 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
- 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;
- a fact is not within the means of knowledge of a person at a particular time if, but only if–
- the person does not know the fact at that time; and
- 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.
(iii)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.
(2) 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.
- It was argued on behalf of the defendant that the plaintiff had failed to satisfy the requirement of s.31(2)(b). I think there is some merit in that contention, but it is not necessary for me to come to a final view on that subject because of the conclusion I have reached on the main focus of the submissions I heard, the requirement of s.31(2)(a). The remaining questions before me then come down to two: whether the requirement of s.31(2)(a) has been satisfied, and, if so, whether the discretion of the Court can or should be exercised in favour of the plaintiff in the way she seeks.
- One must bear in mind the negative proposition implicit in the legislation (see Sugden v. Crawford [1989] 1 Qd.R. 683 at p.685 per Connolly J., with whom Shepherdson J. agreed) explained by Macrossan J. in Moriarty v. Sunbeam Corporation Limited [1988] 2 Qd.R. 325 at p.333:
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. That is what the application of the test of decisiveness under s.30(b) comes down to: Taggart v. The Workers' Compensation Board of Queensland [1983] 2 Qd R. 19, 23, 24 and Do Carmo v. Ford Excavations Pty Ltd (1984) 154 C.L.R. 234, 251 per Deane J.
Those words were referred to with approval by Connolly J., with whom Ryan and Cooper JJ. agreed, in Berg v. Kruger Enterprises [1990] 2 Qd.R. 301 at p.305, and by Lee J., with whom McPherson and de Jersey JJ. agreed, in Byers v. Capricorn Coal Management Pty Ltd [1990] 2 Qd.R. 306 at p.309.
- In a proper case, a newly-learnt fact that a claimant's injury is more serious than previously thought can be described as a material fact of a decisive character if it adds substantially to the quantum of damages likely to be recovered and if, without the newly-learnt fact, the amount would be too small to bother about. In determining what a reasonable person might do in such circumstances it is valid to consider whether substantial parts of any sum to be recovered in a judgment would be refundable by a successful plaintiff: Taggart v. The Workers' Compensation Board of Queensland at pp.23-24 per Andrews S.P.J., with whom Macrossan J. agreed. Generally however, a material fact which merely increases a claimant's damages is unlikely to be decisive: Peabody Resources Ltd v. Norton (Court of Appeal, appeal no. 200 of 1994, unreported, 16 June 1995); and see also Ipswich City Council v. Smith (Court of Appeal, appeal no. 5443 of 1997, unreported, 29 August 1997).
- On behalf of the plaintiff, Mr Goodwin argued that a material fact of a decisive character relating to her right of action was not within her means of knowledge until her visit to Dr Phillips on 27 September 1999. ‘It’s that or nothing. It’s as simple as that’, Mr Goodwin said; it was only then that she became aware that she was suffering from a chronic condition. It was common ground that the limitation period that applied to the plaintiff’s proceeding was three years, and that that period expired in 1998 – Mr Goodwin submitted in October 1998, and Mr Arnold for the defendant submitted March 1998. It would follow then that if the newly-learnt fact relied on was not within her means of knowledge until 27 September 1999 it became so on a date after the commencement of the year last preceding the expiration of the period of limitation for the action and that the proceeding was begun within a year after that date.
- Dr Phillips’s diagnosis was not, I find, that the plaintiff was suffering from post-traumatic stress disorder, because, as I have said, I accept Dr Phillips’s evidence on that subject. I accept however that Dr Phillips probably gave the plaintiff to understand that her condition would take considerable time to improve, although Dr Phillips did not tell the plaintiff that she was suffering from ‘a permanent life-long disorder’. Whether that advice could really be regarded as advice of something of which the plaintiff was previously unaware is doubtful I think, because it must have been obvious to the plaintiff long before 27 September 1999, and well before June 1999, that her condition was chronic. But, leaving that difficulty with the plaintiff’s application to one side, I am not persuaded that the contended-for material fact was of a decisive character.
- Assuming that the plaintiff could satisfy the requirement of s.31(2)(b) and that Dr Phillips’s advice was of something of which the plaintiff was previously unaware, I am not persuaded that without the newly-learnt fact she would not, even with the benefit of appropriate advice, have previously appreciated that she had a worthwhile claim to pursue. Well before June 1999 she would have been aware that, even if allowance were made for any refunds she might be required to make, she had a worthwhile claim to pursue based on the impairment of her ability to work from 1995 and the other alleged effects of the alleged wrongdoing. Well before June 1999 it was clear that her disability was serious and showed no sign whatever of improvement. I therefore conclude that the plaintiff has failed to satisfy the requirement of s.31(2)(a). It follows that the question of exercising the court’s discretion does not arise.
- The application will be refused.