Kitchener v A E Atherton & Sons Pty Ltd
[2004] QSC 30
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- Unreported Judgment
- Kitchener v A E Atherton & Sons Pty Ltd[2004] QSC 30
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Kitchener v A E Atherton & Sons Pty Ltd[2004] QSC 30
Kitchener v A E Atherton & Sons Pty Ltd[2004] QSC 30
SUPREME COURT OF QUEENSLAND
CITATION: | Kitchener v A E Atherton & Sons Pty Ltd [2004] QSC 030 |
PARTIES: | MICHAEL JOHN KITCHENER |
FILE NO: | SC No 3076 of 2003 |
DIVISION: | Trial |
PROCEEDING: | Application for extension of limitation period |
ORIGINATING COURT: | Supreme Court, Brisbane |
DELIVERED ON: | 27 February 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 February 2004; 3 February 2004 |
JUDGE: | Chesterman J |
ORDER: |
|
CATCHWORDS: | LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – whether certain facts are material facts of a decisive character – whether facts were within the applicant’s means of knowledge prior to the relevant date |
COUNSEL: | J R Webb for the plaintiff/applicant D V C McMeekin SC, with B Hoare, for the defendant/respondent |
SOLICITORS: | Suthers Lawyers for the plaintiff/applicant Bradley & Co Solicitors for the defendant/respondent |
- On 29 April 2003 the applicant commenced proceedings against the respondent in this court seeking damages for personal injury allegedly caused by the negligence of the respondent or its employees. The applicant’s case is that on 24 February 1998, he was employed by the respondent as a sheet metal worker. The respondent had contracted with Griffith University to install air conditioning into the fifth floor of the social science building at its Mount Gravatt campus. The plaintiff was fitting some made up ducting into the ceiling. To do this he stood on an aluminium ladder at a height of about five feet above the floor. Other employees, when they fitted brackets to hold the ducting in place, had inserted screws through a partition and into some electrical cabling. When the applicant brought the duct which he was fitting into contact with the brackets he received an electric shock and was thrown from the ladder.
- The facts I have described are not contested. Nor does the respondent dispute that the applicant has a good arguable case in that it failed to take reasonable care for his safety. What is in contest is the extent to which the applicant suffered any injury from the mishap and whether the applicant should be allowed to prosecute his claim. It will be appreciated that proceedings were commenced more than five years after the applicant fell from the ladder.
- By an application filed on 4 April 2003 the applicant seeks an order that the period of limitation in respect of the incident on 24 February 1998 be extended to
9 May 2003 pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (‘the Act’).
- Section 30 of the Act provides:
‘(1)For the purposes of this section and sections 31, 32, 33 and 34 –
(a)the material facts relating to a right of action include the following –
(i)…
(ii)…
(iii)the fact that the negligence … 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…;
(b)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 appropriate advice on those facts, would regard those facts as showing –
(i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action …
(ii)that the person whose means of knowledge is in question ought in (his) own interests and taking (his) circumstances into account to bring an action …
(c)a fact is not within the means of knowledge of a person at a particular time if, but only if –
(i)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.’
- 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 … aspects of the facts …;
Section 31 provides:
‘(1)This section applies to actions for damages for negligence … where the damages claimed … consists of … damages in respect of personal injury …
(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 … the period of limitation is extended accordingly.
(3)This section applies … whether or not the period of limitation for the action has expired –
(a)…
(b)before an application is made under this section …’
- The respondent accepts that the applicant has established the requirements described in s 31(2)(b).
- As I mentioned the applicant commenced his action on 29 April 2003. The condition that the court may only extend a limitation period for one year after the date on which an applicant first becomes aware of a material fact of decisive character means that the fact had first to be within the applicant’s means of knowledge on or after 29 April 2002.
- Though rather cumbersomely expressed the legislative scheme set out in s 30 and s 31 of the Act is clear enough. According to Deane J in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 250:
‘… the limitation period should be extended only in favour of a person who is, without fault on his part, unaware that he had a worthwhile cause of action until not more than 12 months before the commencement of proceedings.’
In Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 Macrossan J said at 333:
‘… 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 tests of decisiveness under s 30(b) comes down to …’
- To the same effect was the judgment of Connolly J in Sugden v Crawford [1989] 1 Qd R 683 at 685:
‘Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s 30(b) are satisfied without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action.’
- The applicant is 35 years of age. He left school at 16. His only gainful employment has been as a manual worker. He was employed by the respondent as a sheet metal worker and had similar jobs with other construction and steel manufacturing companies. He has no training or aptitude for sedentary work. Following his fall at work on 24 February 1998 the applicant was taken to a local hospital where he was observed for two hours and then sent home. It was not at first appreciated that he had been electrocuted. It was thought he had fallen from the ladder. He returned to work after a week’s rest. According to his affidavit at that time he suffered daily headaches and nausea and had developed a limp. His memory had become defective and he suffered diffuse pain. He remained with the respondent until August 1998 when he obtained work with Northside Trusses and Frames where he worked until March 2000. While in that employment he continued to suffer pain, headaches and psychological disturbance which he described as ‘mood swings’. He had not experienced any of these symptoms prior to suffering the electric shock in February 1998. Between March 2000 and 29 October 2001 the applicant worked for a steel fabricator, Fabtech Constructions. While there he continued to suffer the same symptoms. They have in fact continued to date, increasing in severity over time.
- The applicant ceased employment with Fabtech Constructions because of his physical disabilities. The work was manual and caused such pain in his back that he was unable to continue. He attempted to find less strenuous work and for some months he worked as a real estate salesman, but without success. He made no sales and earned no income. He has not worked since 30 May 2002. He has had no gainful employment since October 2001.
- On 18 February 2003 the applicant consulted Dr Andrews who is both a general medical practitioner and a highly qualified engineer. He has a particular interest in injuries caused by electric shock. For the purposes of the consultation the applicant ‘provided (Dr Andrews) with the history of the symptoms (he) had suffered since (his) electric shock.’ In a report dated 3 March 2003 Dr Andrews said:
‘It is thus quite apparent that there was a highly significant electrical pathway through the duct portion to (the applicant’s) arms, through his body … and via the aluminium ladder to earth … In summary, this man presents describing an environment and consequences that are entirely plausible in supporting his suffering a severe electric shock. As well as the electric shock sequelae … the possibility of significant traumatic injury also exists due to his “throw” from a height onto the floor.
Symptoms
(The applicant) apparently fell to his right side and noticed severe right sided pain. He had a headache and felt hot. He had an immediate metallic taste in his mouth. … The symptoms immediately after the shock were:
Skin blotches and peeling, a rash … over his posterior left calf.
He dragged his left leg, feeling “dead patches” within in and patches of loss of feeling around his thigh. He felt areas of dull sensation, and areas of hyper-sensation.
He felt loss of muscular control generally, and he found it “hard to think” to achieve work.
Both arms and shoulders were sore and achy with minimal relief from analgesics.
Both legs … fatigued easily and had the bruised and patchy feelings … mentioned. Spasms were pronounced and … there were colour changes in his skin.
The symptoms are entirely in keeping with electrical injury. They are explicable as documenting damage to motor, sensory, and autonomic nerves.
Ongoing Symptoms
… The symptoms have stabilised … He feels subjectively weaker and fatigues easily. … abnormal sensation, with abnormal weakness and easy fatiguing in the muscles in the path of the shock are common in electrical injury.
He finds his vision is now much worse with blurring and soreness and slower focus. He notes unilateral headaches … (The applicant) reports left tinnitus which had never appeared before the accident … Short term memory function is poor … Concentration … is very poor … (The applicant) reports much more anger than usual.
Assessment
I consider that (the applicant) has sustained a significant shock. He present entirely typical consequences of electrical injury …’
- The applicant submits that there are two material facts, each of a decisive character, within the meaning of s 30 of the Act which were not known to him and were not within his means of knowledge until after 29 April 2002. The first fact is that his ongoing disability and symptomatology was a consequence of the accident in February 1998. It is said that it was only with the receipt of Dr Andrews’ report that he had proof of the causal connection between negligence and symptoms. The second fact is that he did not know that his condition was so serious that he could not work until the manifestation of his failure as a real estate salesman in May 2002.
Fact II
- It is convenient to deal with the second fact first because the argument based upon it can be shortly disposed of.
- The applicant was not qualified by training or experience for any work other than physical activity involving metal fabrication or manufacture. He appears to have been a good worker and was well regarded by at least one employer. He was given positions of responsibility which involved oversight of other workers. Apart from that field of endeavour the applicant had no education, training, skills or aptitude. When he was unable to continue in his accustomed employment he knew that his situation was serious. He was unable to follow the only occupation realistically open to him. He had no reason to believe he would be employable in any clerical or sedentary post.
- Apart from these facts which are uncontentious the applicant admitted in cross-examination that he knew his employment prospects were blighted when he left Fabtech. The evidence was:
‘… You had worked in the construction industry for … 18 years before 2002? – Yes. That’s right.
Had you carried out any other form of work other than in the construction industry up until 2002? – Sheet metal work.
… Anything apart from that? – No.
At the time this opportunity came along at the end of February 2002, you, of course, were well aware that you had these memory and concentration problems? – Yes.
And you must have had real concerns about how well you would go in a totally new environment, a new type of work? – Absolutely.
I suppose, when you finished up your work on 29 October 2001 … you would have been pretty worried about what the future held for you? – Very.’
- The application, so far as it turns on this point, falls within the remarks quoted from Sugden and Moriarty. Time will not be extended where it is apparent, without the facts said to be material and of a decisive character, that a reasonable man advised appropriately would have brought the action on the facts already in his possession. A ‘newly discovered’ fact which goes ‘merely … to an enlargement of … prospective damages’ does not have the requisite, decisive, character at least if without that fact it appeared that it was reasonable to sue. As Deane J put in
Do Carmo the applicant must be unaware that he had a worthwhile cause of action until the discovery of the new facts.
- It cannot be said that the applicant did not have worthwhile prospects of recovering substantial damages without the knowledge that he had failed as a real estate salesman. When he left his last employment as a metal fabricator he knew that he could not perform any manual work which was all he knew. His earning capacity had been substantially if not completely impaired. An award of damages on that basis would have been sufficient to justify commencing an action.
Fact I
- The applicant submits that Dr Andrews’ opinion, expressed in his report, was a material fact relating to his right of action because it was credible, admissible, evidence that his injuries were caused by electric shock. It was already known that the electrification of the duct was caused by negligence by the respondent’s employees.
- The respondent was disposed to argue that the content of Dr Andrews’ report, being an expression of his professional opinion, could not be a fact for the purposes of the Act. I cannot accept this. When the Act speaks of a ‘fact’ it is speaking of an ultimate fact, proof of which is necessary to make out a cause of action. In those cases where an expert opinion is admissible the opinion goes to prove some fact in issue. The fact presently in contention is whether the applicant’s exposure to an electric shock by his employer’s carelessness caused injuries which made him unfit to work. If Dr Andrews’ opinion were accepted by the trial judge it would prove that fact. For the purposes of the application the opinion is a fact and it is a material fact relating to the right of action because it provides proof of the causal link. This approach appears to have been endorsed by Davies JA in Wood v Glaxo Australia Pty Ltd (1994) 2 Qd R 431 at 440.
- The respondent’s real resistance to the application has two bases. First it contends that Dr Andrews’ opinion was not of a decisive character because the facts which were known to the applicant prior to the expiration of the limitation period in February 2001 showed that he had reasonable prospects of succeeding in an action against the respondent and of obtaining an award of damages sufficient to justify bringing the action and that, in his own interests, he should have brought the action. In other words the argument is that Dr Andrews’ opinion was merely confirmation of, or amplification of, what the applicant already knew.
- The respondent’s second ground is the submission that Dr Andrews’ opinion was within the means of the applicant’s knowledge prior to 29 April 2002.
Was Dr Andrews’ Opinion of a Decisive Character?
- The applicant’s case was that in the years following his accident he consulted at least twelve doctors with respect to his physical and psychological symptoms all of whom, within one irrelevant exception, ‘informed (the applicant) that (his) problems were not related to any electric shock (he) suffered.’ He did not become aware of Dr Andrews’ unique combination of qualifications until late 2002. He consulted the doctor early in 2003. The applicant deposed that ‘until seeing Dr Andrews (he) was quite unaware (his) problems could be related to the electric shock … sustained on 24 February 1998.’
- It is clear from the evidence that the applicant himself knew on 24 February 1998 that he had suffered an electric shock which had caused him to fall from the ladder. He himself attributed his subsequent symptoms to that event. The connection appeared plain. The symptoms commenced immediately after the shock and fall. Before that he had enjoyed complete good health.
- The evidence does not support the applicant’s depiction of his case. He set out in a document which became exhibit 2, the considerable detail of his symptoms and his attempt to obtain treatment for them. He consulted a number of general practitioners, some of whom, contrary to his assertion, corroborated his own opinion that the accident at work was their cause. On 11 March 1998 the applicant consulted Dr Callum who advised that his ‘problems were related to the fall’. There may be a distinction between the fall and the electric shock which precipitated it. Dr Andrews’ opinion is that the applicant’s symptoms were caused by the electric shock itself. For the purposes of the application the distinction may be ignored. Dr Callum’s opinion was that it was the event of 24 February 1998 which caused the applicant’s injuries, whatever the precise mechanism might have been.
- The applicant consulted Dr Norman on 10 March 2000 complaining of severe headaches and nausea. The doctor asked the applicant if he had suffered an accident or head injury. The applicant told him of the electric shock and being thrown from the ladder. Dr Norman ‘tried to reopen the case with WorkCover’ from which I infer that Dr Norman believed, and told the applicant he believed, that his symptoms were a consequence of the shock and/or fall.
- On 23 August 2000 the applicant consulted Dr Skinner who, having heard the applicant describe his symptoms told him ‘that it was quite possible for these symptoms to be from the electric shock …’.
- The applicant consulted Dr McArthur, a general practitioner, on 14 January 2001 complaining of headaches and back pain. He told Dr McArthur of his work accident. Dr McArthur referred the applicant to a radiologist for a brain scan and for a series of blood tests, all of which were normal. Dr McArthur was concerned that the applicant’s fall, rather than the electric shock, might have damaged his spine. He referred him to a physiotherapist and to Dr Bradfield, a neurologist.
- The applicant’s symptoms worsened over time. He suffered constant pain as well as headaches, nausea, tinnitus and impaired balance. He became increasingly forgetful and moody. His condition deteriorated to the extent where he was unable to continue work on 29 October 2001.
- It is true that the applicant did consult some medical practitioners who advised him that his symptoms could not be ascribed to the work accident. There were three in number, a general practitioner Dr Rath, Dr Blue the orthopaedic surgeon, and
Dr Bradfield.
- The plaintiff consulted Dr Rath on a number of occasions between May 1988 and March 2000. On one occasion only – on 18 February 2000 when he attended for treatment to a severe injury to his right thumb sustained at work – did the applicant mention his electric shock and fall. He did so, incidentally, according to Dr Rath, whose records show that the applicant said he had not lost consciousness, had hit the back of his head and had problems with vision as well as short term forgetfulness. The applicant did not give Dr Rath the history of symptomology which he provided to Dr Andrews. He did not describe the same number of symptoms or severity. Dr Rath thought that the electric shock had been minor and was not the cause of his symptoms.
- The applicant was examined by Dr Blue at the request of WorkCover in November 2001 in connection with a claim for workers’ compensation made when the applicant ceased work at Fabtech. The applicant complained to Dr Blue of back pain caused by constant lifting and bending in the process of manufacturing steel frames. He said that he had had ‘back complaints since the accident (at) the respondent’s’. In his report of 3 December 2001 Dr Blue noted that the applicant complained of ‘back problems’ dating from his electrocution. He complained ‘of a multitude of symptoms … memory loss, headaches, neck pain and constant back pain which has now been present for the last five years and steadily getting worse. He complains of pins and needles in all four limbs.’ X-rays of the lumbar spine showed no abnormality. Nor did a CAT scan of the brain and spine. An MRI of the brain was also normal. Dr Blue thought there was ‘no true organic or physical basis for his widespread spinal pain … His lumbar spine is functioning normally and the incident of 1996 (sic) … had not produced any true physical back disability.’ Dr Blue surmised that the origin of the applicant’s complaints was psychiatric.
- Two things are said about this. The first is that Dr Blue was an orthopaedic surgeon whose opinion was, obviously, limited to his specialty. He could find no orthopaedic injury for which the 1998 event might be responsible. He did, however, suggest that there may be a functional or psychiatric explanation for the symptoms which the applicant himself attributed to the accident.
- The applicant was examined by Dr Bradfield in January 2001, 27 February 2001 and 12 February 2002. He had been referred by Dr McArthur. In a report to Dr McArthur of 19 February 2001 Dr Bradfield ‘very much doubted’ whether the applicant’s symptoms were ‘a legacy of the shock injury’. Dr Bradfield recommended further inquiries to exclude the possibility that ‘pathology has been overlooked’. The results of those further inquiries were negative, and in a report of 27 February 2001 to Dr McArthur Dr Bradfield expressed the view that the cause of the plaintiff’s symptoms were emotional or psychological: he thought that stress and overwork were responsible. This diagnosis was repeated in his letter of 12 February 2002 to Dr McArthur.
- The contents of Dr Bradfield’s reports were discouraging for the applicant. They provided no basis for the formation of an opinion that the applicant should commence proceedings against the respondent. However, it must be borne in mind that the account of his symptoms the applicant gave to Dr Bradfield differ considerably from the account given to Dr Andrews. The discrepancy is pointed out in Dr Bradfield’s letter to the respondent’s solicitors of 15 September 2003. Dr Bradfield wrote:
‘I note on page 2 of Dr Andrews’ report that (the applicant) remembers ascending a ladder and then his memory goes blank. The next thing he remembers waking up on the ground some five metres away from the ladder and on the floor.
When I initially saw (the applicant) … I questioned him very carefully … and he did remember all details of the accident and remembers being thrown back off the ladder a distance of five metres … and he stated … he was not rendered unconscious.
I note on page 3 of Dr Andrews’ report that following his accident he developed a headache, and had an immediate metallic taste in his mouth. He did not mention a metallic taste … to me until I saw him on 21 January 2002.
He made no mention to me of skin blotches and peeling, a rash or heat rash … He also made no mention of dragging his left lower limb and feeling dead patches and patches of loss of feeling in his left eye.
When I did examine him on the 21 January 2002, some eleven months after my initial assessment, during that period … he had developed lumbar pain which had developed eight months prior to my seeing him on the 21st January 2002. He stated that in association with his lumbar pain he did develop an aching numbness in his left buttock … His only mention of paresthesia to me … was … over the medial aspect of both forearms … No mention was made to be of fatiguing of his lower limbs nor was there any mention made to me of muscle spasms.’
- The point which the respondent, rightly I think, takes from this is that the applicant cannot point to Dr Bradfield’s opinion as justifying his decision not to commence proceedings when it is clear that he did not give Dr Bradfield an accurate or complete account of his symptoms or their temporal relationship to his accident. It is not appropriate, nor is it possible, to determine in this application what the applicant’s symptoms were and when they became manifest. Taking at face value the applicant’s account given to the doctors it is clear that Dr Bradfield’s pessimistic assessment (in terms of proving causation) could not reasonably have been relied upon by the applicant as an excuse for inaction when he had not given him a true account and must have known that Dr Bradfield’s opinion was based on a false premise.
- The present question is whether a reasonable man, appropriately advised, would have brought an action against the respondent on the facts in his possession prior to the receipt of Dr Andrews’ opinion. If a reasonable man would have commenced an action then the additional, ‘newly discovered facts’ constituted by Dr Andrews’ opinion would not have been of a decisive character.
- The question is not an easy one, but I think, should be answered in the affirmative. The applicant himself knew of the immediate temporal juxtaposition of the accident and his symptoms. He had the opinion of four general practitioners that there was a causal connection. The contrary opinions could be discounted because (i) Dr Blue disputed only the mechanism of causation, he thought the symptoms had a psychological rather than an organic basis but did not contend that the symptoms had not been precipitated by the accident. (ii) Dr Bradfield’s opinion was vitiated by the fact that it was predicated upon wrong facts. (iii) Dr Rath had not been consulted seriously on the point.
- Given the state of affairs it is, I think, right, as the respondent submits, that a reasonable person knowing those facts and having taken the appropriate advice would regard them as showing that an action would have reasonable prospects of success and resulting in an award sufficient to justify bringing the action. Dr Andrews’ opinion provided additional proof and more cogent evidence in support of the action, but it is not right to say that it would have made the critical difference between not regarding the facts as justifying bringing an action and regarding it as justified.
When was Dr Andrews’ Opinion Within the Applicant’s Means of Knowledge?
- This conclusion is enough to dispose of the application but I will deal with the further argument that Dr Andrews’ opinion was within the means of the applicant’s knowledge prior to 29 April 2002. The point of inquiry is when would the applicant have obtained Dr Andrews’ opinion, having taken all reasonable steps to obtain it? Before dealing with the argument it is necessary to mention some further facts.
- The applicant’s attempt to reopen his claim for workers’ compensation in December 2001 was unsuccessful. As part of its process for dealing with the application WorkCover sent Mrs Winkel, an area service officer, to speak to the applicant and obtain a statement from him. She went to his house on 12 December 2001 where ‘he produced a folder of documents relating to electrical shock injury which he indicated he had researched from the internet.’ The applicant told Mrs Winkel that he had encountered Dr Andrews’ name and something of his curriculum vitae on the internet. He knew that he was an electrical engineer with a degree in medicine and with an interest in electrical shock injuries. In a memorandum dated 18 December 2001 to the claims assessor dealing with the applicant’s request for compensation Mrs Winkel recommended that ‘you obtain the previous file … Once this is to hand I would recommend that you send a copy of this file, the previous file and the report from Dr McArthur to Dr Chris Andrews for an examination and report. Dr Andrews is an electrical engineer who also has a degree in medicine.’ The ‘previous file’ was that which pertained to the applicant’s initial claim for compensation in 1998.
- Mrs Winkel deposed that it was no part of her duties to recommend that an injured worker be referred to any particular doctor for assessment but she did so for the applicant because he ‘expressed a wish to see Dr Andrews, but said that he could not afford to pay for the review himself.’ Mrs Winkel explained in oral evidence that she wished to help the applicant, no doubt because of his evident stress and inability to work. WorkCover did not accept Mrs Winkel’s recommendation.
- On 17 December 2002, a year later, the applicant attempted to telephone Mrs Winkel. He rang her mobile telephone number and left a message. Her evidence is that she did not respond because her ‘involvement in (the applicant’s) claim had long since concluded. The file was no longer (her) responsibility.’ Telstra records corroborate Mrs Winkel’s evidence that she did not use her mobile telephone to return the applicant’s call.
- The applicant’s evidence was that he obtained a copy of the WorkCover file on 7 February 2002 as part of his attempt to review the rejection of his claim. He noticed Mrs Winkel’s recommendation that he be referred to Dr Andrews but he ‘was quite unaware whether he could do anything for (him).’ He did, however, make inquiries of the Australian Medical Association and of the Department of Health in an endeavour to contact the doctor. They suggested, not surprisingly, that he consult the telephone book. He did, and without much difficulty, made contact with Dr Andrews’ surgery. He said ‘it was not until late 2002 that the significance of the referral in the WorkCover file to Dr Andrews struck (him).’ It will be remembered that the applicant saw Dr Andrews on 18 February 2003.
- The applicant denied that he provided Dr Andrews’ name and qualifications to Mrs Winkel. He further deposed that when he received the WorkCover file in February 2002 he looked at Dr Blue’s report but ‘did not peruse the rest of the file carefully.’ He did read the file carefully in December when he realised, ‘the possible significance of the reference to Dr Andrews.’ He rang Mrs Winkel on 17 December and left a message ‘in relation to (his) inquiry regarding (Dr) Andrews.’ He asserts that Mrs Winkel rang him about two weeks later when she said that she could not recall where she had obtained the information about Dr Andrews.
- The respondent asked me to find that it was the applicant who told Mrs Winkel of Dr Andrews and that, consequently, he knew of his potential importance as a witness in December 2001. Taking reasonable steps to ascertain the facts he would have consulted Dr Andrews at about that time and obtained his opinion a year earlier than he did. The applicant contends that he did not know about Dr Andrews until December 2002. Having reflected upon the point I prefer the evidence of Mrs Winkel and accept that the applicant knew of Dr Andrews by 12 December 2001. Mrs Winkel impressed me as a witness. I thought she was straightforward in her answers and appeared genuine in her account that she had tried to help the applicant. She said she knew of Dr Andrews only because she had been told of him by the applicant. There are some points of corroboration for her testimony: (i) It is clear that the applicant had undertaken a deal of investigation into the consequences of electrical shock injuries on the internet and he had compiled a dossier of documents as a result of that research. He had such a file when Mrs Winkel visited him, as she said. (ii) The phone records also support Mrs Winkel. The applicant rang her mobile number and left a message. It was her habit to respond to calls on that phone by that phone. She did not use it to reply to the applicant. (iii) Moreover one of the applicant’s complaints is of poor memory and bouts of forgetfulness. (iv) In addition the applicant compiled a chronology of relevant events which he entitled ‘Total History of Accidents’ and which became exhibit 2. The entry for 17 December 2002 is that he rang Mrs Winkel’s ‘mobile asking for information about Dr Andrews and was told that she does not know where she would have got the info from.’ This is clearly wrong. Both the applicant and Mrs Winkel swear that they did not speak on 17 December. The account is inconsistent with the applicant’s own affidavit.
- Dr Andrews’ opinion was within the applicant’s means of knowledge by the end of December 2001, more than a year before he commenced his proceedings. Section 31 of the Act allows an extension of time only for a year from the date on which the material fact of the decisive character was within an applicant’s means of knowledge.
- One further fact should be noted. The applicant received a letter from Messrs Trilby Misso Lawyers dated 13 February 2002 advising him that they were not prepared to act ‘in relation to (the applicant’s) personal injury matter … on a speculative basis.’ This is submitted by the applicant to show that he had taken appropriate advice and had been told that he should not commencing proceedings. However, the letter was addressed to the applicant’s wife and the evidence does not disclose what information she gave to the solicitors or what she requested them to undertake. The letter stated that the solicitors’ ‘refusal to accept … instructions in this matter is not to be in any way interpreted as being an indication of an opinion … as to your prospects of success in a claim.’ Without knowing what instructions were given it is not possible to conclude that the letter constitutes ‘appropriate advice’ for the purposes of the Act.
- For these reasons the applicant has not made out a case for an extension of time and the application should be dismissed with costs to be assessed on the standard basis.