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- Unreported Judgment
O'Halloran v Visy Board Pty Ltd QSC 123
SUPREME COURT OF QUEENSLAND
O'Halloran v Visy Board Pty Ltd  QSC 123
O'HALLORAN, Shaun Thomas
VISY BOARD PTY LTD ACN 58 005 787 913
SC No 3969 of 2002
Application – Extension of Time
Supreme Court at Brisbane
21 May 2004
24 March 2004
Application dismissed; applicant plaintiff to pay the respondent defendant’s costs
LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – where the applicant plaintiff claims damages for negligence, breach of contract of employment and breach of statutory duty under the Workplace Health and Safety Act 1995 in respect of back injuries that were allegedly sustained in the course of his employment with the respondent defendant – whether material facts of a decisive nature were within the applicant’s means of knowledge during the relevant period
Limitations of Actions Act 1974, s 30, s 31
Berg v Kruger Enterprises (Division of Besser Qld) Ltd  2 Qd R 301
Byers v Capricorn Coal Management Pty Ltd  2 Qd R 306
Dick v University of Queensland  QCA 474
Moriarty v Sunbeam Corporation Limited  2 Qd R 325
Pizer v Ansett  QCA 298
Taggart v Workers’ Compensation Board of Queensland  2 Qd R 19
Watters v Qld Rail  QCA 51.
M Burnett for the applicant plaintiff
AS Kitchin for the respondent defendant
Kevin Bradley Solicitor for the applicant plaintiff
Dibbs Barker Gosling for the respondent defendant
- On 2 May 2002, the applicant plaintiff filed a claim and statement of claim alleging negligence, breach of contract and breach of statutory duty on the part of his employer, the respondent defendant. More particularly, he pleads in the statement of claim that he has suffered “progressive permanent damage and excessive degenerative changes to the structures of his lumbar spine” as a result of his work for the defendant. The statement of claim alleges two distinct periods of damage: between 1983 and 1992, when the plaintiff worked as a machine operator, feeding sheets of cardboard into a machine, a job which involved repetitive bending and twisting; and a further period, from 1992 to the end of 1996, when, although the feeding of the machine was automated, there were periods of breakdown during which he had still to feed the cardboard in manually, and had also to lift and carry buckets of ink and pour their contents into the machine. By this application, the plaintiff seeks an extension of the limitation period to 26 July 2002. Why that date is chosen is not clear, because the plaintiff identifies 8 November 2001 as the date on which material facts of a decisive character - the nature and extent of the injury he had suffered and the fact that his condition was causally linked to the defendant’s system of work – became known to him.
The history of the plaintiff’s back problems
- The plaintiff is 47 years old; he left school at 15. In 1983 he began working for the defendant as a stacker and feeder. According to his affidavit, he first felt back pain in 1984, while feeding cardboard into the machine he operated. He went to a naturopath, who told him that he had strained muscles. He returned to work shortly after, but continued, between 1984 and 1990, to have what he estimated at 3 or 4 episodes of severe back pain per year. His affidavit does not go into detail as to their effects, but according to a history he gave Dr Bruce McPhee in May 2001, he had, since 1984, had “recurrent episodes of acute back pain which have rendered him periodically totally incapacitated.” Over the 1984-1990 period, the plaintiff said, on those occasions when his back pain was severe enough to stop him from working, his sick leave entitlements were adequate to cover his absences, and he did not need to claim workers’ compensation. At some unspecified time before 21 August 1990 he consulted an orthopaedic specialist, but he does not say with what result. On 21 August 1990, he suffered a lower back injury for which he claimed workers’ compensation. A general practitioner at this time diagnosed his back condition as “a rotational injury”.
- Between 1990 and 1996, the plaintiff said, he relied on workers’ compensation when back pain stopped him from working. He had back pain “on most days to some extent”. On 31 May 1994, he suffered a specific back injury for which he claimed workers’ compensation. On 28 June 1994, Dr Brazel, an orthopaedic surgeon, reported to the plaintiff’s general practitioner his view that the plaintiff was suffering from degenerative disc disease, which was producing mild episodes of symptoms. He concluded that report by saying,
“I have also mentioned to him that a more supervisory role in his job would be more appropriate for his spine and he is happy to pursue these options”.
The plaintiff has said in an affidavit that he has no recollection of that remark by Dr Brazel, although he has a general recall of speaking with Dr Brazel about his condition. Nor can he recall discussing Dr Brazel’s report with the doctor who referred him. However, while I accept that the plaintiff has no recollection of these matters, it seems to me more likely than not that the two salient matters in Dr Brazel’s report – that he was suffering from a degenerative spine and that it was advisable that he seek work of a supervisory kind – were conveyed to him by Dr Brazel, or by his general practitioner, or, more probably, by both.
- The plaintiff suffered further identifiable back injuries in the course of his work on 16 January 1995, 28 August 1995 and 22 January 1996. Between 1997 and December 1999, he worked for the defendant in New Zealand. During that period, he says, he had three further episodes of low back pain for which he was given medical treatment. At no stage did any medical practitioner or physiotherapist advise him to give up work or change his job. However, from 1997 onwards, his duties were much lighter, and he had no workers’ compensation claims between 1997 and mid-June 2000.
- After returning to work at the defendant’s Brisbane plant in December 1999, the plaintiff next had an episode of pain on 1 June 2000, which he does not attribute to any specific event, but which for the first time extended to his left leg. He went off work on 10 June; and on 14 June, he had a CT scan, the appearance of which suggested a large extruded disc fragment, probably from L4-5, impinging on the left L4 nerve root. An MRI scan was recommended and took place; the report on it records a herniation at L4-5, impinging on the thecal sac and displacing and compressing the nerve root, and comments that “there is multi level discogenic degenerative change in the lumbar spine.”
- Presumably as a result of those findings, on 26 October 2000, the plaintiff underwent a discectomy and laminectomy at L4-5. That surgery, which Dr McPhee performed, was evidently funded by WorkCover. After it, the plaintiff resumed work with reduced hours, but continued to experience severe back pain which prevented him, for some months, from returning full time. In January 2001, according to the plaintiff’s affidavit, Dr McPhee told him to avoid any heavy lifting or repetitive bending, and to continue on reduced hours. By 2 May 2001, when the plaintiff next saw Dr McPhee, he was back to full-time work. Dr McPhee advised him that he should be able to continue to work indefinitely and that he required no changes to the work he was then doing (which was supervisory), although he might suffer the occasional temporary aggravation if he undertook heavy manual tasks.
- At some point in 2001, the plaintiff consulted a firm of solicitors in connection with an offer by WorkCover of a lump sum payment. On 8 November 2001 they sent him to see Dr Greg Gillett, who, the plaintiff says, told him that he should not undertake any manual activities. Dr Gillett’s report is an exhibit to the plaintiff’s affidavit. His opinion expressed in that report includes the following:
“The aetiology of his degenerative changes of the 3/4, 4/5 and 5/1 levels reflect the ageing process and, in general terms, working practices over a long period of time with specific episodes of exacerbation of his back pain.
At present, I would assess him as a 12% impairment of bodily function related to his overall working practices over time ... In relation to his future employment, he is at risk in the longer term regarding exacerbations of his pain and needs to maintain his weight at a normal level, maintain fitness and undertake supervised re-apployment. ... He is certainly not able to return to any manual activities.”
- Dr Ian Low, a medical practitioner specialising in occupational medicine, has now added his view that the plaintiff’s work with the defendant would have placed significant loading on his lumbo-sacral spine’ likely to have significantly contributed to the degenerative change apparent on CT scan. He says, too, that alternative work systems were available which would have avoided spinal damage.
The competing arguments
- The plaintiff’s position, in summary, is that it was not until he consulted Dr Gillett that he became aware of the connection between his employment and his condition, or the latter’s likely consequences for his employability. Although the plaintiff had done all that he could in consulting orthopaedic specialists, Dr Brazel’s report did not say anything as to whether his employment had caused his injury or whether it had any effect in accelerating or exacerbating degenerative change. Similarly, Dr McPhee did not link the degenerative changes shown on CT and MRI scans, resulting in his surgery, with his employment. There was no reason for him to suppose that they were other than naturally occurring. It was not until 8 November 2001, when Dr Gillett spoke to him and subsequently reported, that the plaintiff became aware of the connection between the system of work and his condition.
- The defendant, on the other hand, said that the plaintiff had received sufficient specialist advice to have realised that his future earning capacity was likely to be impaired because of the restriction in his capacity to perform manual activities and the resulting disadvantage he would suffer in the labour market. He had been told by Dr Brazel as early as 1994 that a more supervisory role would be appropriate. He must therefore, have known that he was at risk of a loss of future earning capacity; although he has not in fact lost income to date because he retains his position with the defendant. In any event, his history of pain and suffering, together with any Griffiths v Kerkemeyer claim, would alone have warranted the bringing of an action; in his statement of claim the plaintiff had sought damages of $80,000 for pain, suffering and loss of amenities and $40,000 for gratuitous care.
The Limitation of Actions Actprovisions
- Section 31 (2) of the Limitation of Actions Act 1974 provides:
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.”
For the purposes of this application it is not disputed that there is evidence to establish a right of action apart from a limitation defence. The defendant conceded also that it would not suffer any particular prejudice were the application to be allowed.
- Relevantly for present purposes, s 30 of the Act includes as material facts, “the fact that the negligence, trespass, nuisance or breach of duty causes personal injury”, “the nature and extent of the personal injury so caused” and “the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty”. It deems such facts “of a decisive character” only if a reasonable person, knowing those material facts and having taken the appropriate advice on them, would regard them as showing that an action would have a “reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action” and that the plaintiff ought in his own interests and taking his circumstances into account, to bring an action. The section goes on to provide that a fact is not within a plaintiff’s means of knowledge only if, firstly, he does not know it, and secondly, if it is able to be discovered, he has taken all reasonable steps to find it out.
- Although the legal consequences of the particular fact or facts unknown to a plaintiff cannot themselves constitute a material fact for the purposes of s 31, the discovery that an injury is more serious that the plaintiff has previously understood it to be may amount to a material fact of a decisive character if it is such as to make an action not worth bringing, one that is viable. Thus a plaintiff may be aware that he has suffered an injury, but not aware of its true nature and extent in terms of its economic consequences.
Were the “material facts of a decisive character” within the plaintiff’s knowledge?
- From 1984 on, the plaintiff was subject to episodic incapacitating back pain related to work activities. That work was having at least an exacerbating effect on his condition was implicit in what Dr Brazel told him about seeking a more supervisory role; and in any event the plaintiff himself by applying for workers’ compensation clearly related his back pain to his employment. Dr Brazel had provided the information that he had degenerative disc disease. What was not known until 2000 was the precise nature of the damage to his spine; but in the middle of that year that was revealed by radiological processes.
- As at the end of October 2000, the plaintiff knew that he had a long standing spinal condition, productive of pain, which had now required surgery. He knew too that there was a connection between his back pain and the work he performed, in the sense that his work had in the past produced symptoms; although he did not then know that his work had at least contributed to the underlying condition producing the symptoms. The last seems to me a material fact; the question is whether it was within the plaintiff’s means of knowledge.
- That in turn raises the question of whether the plaintiff took all reasonable steps to ascertain the connection between the underlying degenerative condition of his spine and the work he had performed. The answer to the question of what advice it is reasonable to expect the plaintiff to take “depends upon the primary facts concerning the level of seriousness of the plaintiff’s symptoms and of the warning signs which [he] had”. Although the plaintiff was not a highly educated man, it seems to me that in the circumstances of this case, where the condition clearly was serious and there was a relationship at least between its manifestation and the work performed, he ought, acting reasonably, to have made the enquiry as to whether the work itself had produced or contributed to the condition.
- I do not think one can say, as his counsel suggested, that the plaintiff had, by consulting orthopaedic specialists, made all reasonable enquiries. Nothing is known of the consultation prior to August 1990; in 1994, the plaintiff had consulted Dr Brazel, who had given him the indication that supervisory work was preferable for him, but between the time of that consultation and his seeing Dr Gillett it does not seem that he had actually sought orthopaedic advice. Dr McPhee was reporting to the workers’ compensation board at its request, and was not called on to address questions going to any common law liability of the defendant, such as how the plaintiff’s spinal condition, as opposed to its symptoms, had been produced.
- Thus, in my view, the fact that the plaintiff’s underlying degenerative condition was produced, at least to some extent, by his work was a material fact discoverable at least by the end of 2000, had he taken all reasonable steps. But there is a further material fact which he says he did not discover until November 2001; that is, Dr Gillett’s opinion that he was unable to return to manual activities. In the first instance, I have some doubt that this is a material fact not within the plaintiff’s means of knowledge, in the sense that he could not have found it out had he taken reasonable steps to enquire. It seems to me that Dr Brazel’s advice and the plaintiff’s awareness that manual activities produced symptoms were sufficient to put him on inquiry as to whether he might be precluded from work of a manual nature.
- But in any case, I do not think that the advice ultimately given in November 2001, although material, was of a decisive character. The question is whether the plaintiff before May 2001 ought to have known from his symptoms, their effects on his general lifestyle and working activities, and the information he had received from medical practitioners that he had a worthwhile cause of action; that there was a “prospect of monetary damages sufficient to justify the bringing of an action against his employer”.
- This is not a factual scenario such as that in Byers v Capricorn Coal Management Pty Ltd,[10in which the plaintiff was advised that he had no more than a muscular strain that would resolve, but was later told that he would have to change his occupation to far less remunerative work, so as to convert an action in which no financial loss was demonstrable into one in which a substantial award for future economic loss was likely. Here the plaintiff was aware from 1984 that he had a symptomatic back condition; from 1994 that he was suffering degenerative disc disease; and as at October 2000 that there was radiologically demonstrated disc damage requiring surgery. Thus he knew, at least as at late 2000, that he had a condition which had produced significant pain and suffering; he had, one infers from the statement of claim, required gratuitous care to a substantial degree; and he was aware, at least, that he suffered from limitations in terms of his capacity to perform heavy work.
- What the plaintiff was told in November 2001 was something which would have done no more than enlarge the damages in an already viable action; that is to say, that he not only should not undertake manual activity but could not expect to maintain an occupation which involved such work. That, however, was in a context in which he was not currently being required to perform such work, and had by then worked for almost 20 years for the same employer, with no indication that state of affairs would cease. Realistically, all that was compensable by way of economic loss was the contingency that he would find himself unemployed with a limitation on his employability.
- Dr Gillett’s advice, in that context, does not seem to me such as to make the difference between bringing an action and not proceeding with that action. Or to put it another way,
“prior to the [plaintiff’s] learning that fact, there were sufficient material facts of a decisive character which would have led a reasonable man appropriately advised to regard those facts as showing that there was a good cause of action and that in his own interests [he] ought to have brought proceedings”.
- I do not, therefore consider that the plaintiff has discharged the onus upon him of establishing what s 31(2)(a) requires, and I dismiss the application. I order that the applicant plaintiff pay the respondent defendant’s costs of and incidental to the application, including reserved costs.
 S 30 (a)(iii)
 S 30 (a)(iv)
 S 30 (a)(v)
 S 30 (b)
 S 30 (d)
 Berg v Kruger Enterprises (Division of Besser Qld) Ltd  2 Qd R 301 at 302; Dick v University of Queensland  QCA 474 at para 59.
 Taggart v Workers’ Compensation Board of Queensland  2 Qd R 19; Moriarty v Sunbeam Corporation Limited  2 Qd R 325; Byers v Capricorn Coal Management Pty Ltd  2 Qd R 306; Watters v Qld Rail  QCA 51.
 Pizer v Ansett  QCA 298.
 Watters v Qld Rail  QCA 51 at para 30.
  2 Qd R 306.
 Moriarty v Sunbeam Corporation Ltd  2 Qd R 325 at 336.
- Published Case Name:
O'Halloran v Visy Board Pty Ltd
- Shortened Case Name:
O'Halloran v Visy Board Pty Ltd
 QSC 123
21 May 2004