Brease v State of Queensland[2007] QSC 43

SUPREME COURT OF QUEENSLAND

Introduction

1. The plaintiff seeks an order that the limitation period for his claim against the defendant for injuries suffered in the course of his employment by the defendant, be extended pursuant to s 31 of the Limitations of Actions Act 1974 (the Limitations Act).

2. On 16 July 2004 the plaintiff sued the defendant for breach of contractual, common law (negligence) and statutory obligation during his employment by the defendant from 6 April 1987 to 25 October 2002.  Section 11 of the Limitations Act fixes a limitation period of three years from the date on which the cause of action arose in such cases. 

3. Paragraph 8 of the defence pleads to the effect that “as much as any event giving rise to the cause of action or any damages suffered by the plaintiff occurred on or before 9 July 2000” the action was barred by the operation of s 11 of the Limitation Act. 

4. At the hearing of the application counsel for the plaintiff sought an extension of the limitation period for any cause of action “insofar as concerns injury to the plaintiff’s shoulders, biceps or forearms”^[1] which arose between 1 February 1997 (the date the WorkCover Queensland Act came into force) and 9 July 2000.  That is the date pleaded in paragraph 8 of the defence and is the date three years prior to delivery, on 9 July 2003, of a notice required by s 280 of the WorkCover Queensland Act 1996.^[2]  The requirement of the service was a condition of the plaintiff pursuing a claim under that legislation.

5. Section 31 of the Limitations Act requires a successful applicant to satisfy two requirements, apart from the expiration of the limitation period, to obtain an extension.  First, there is evidence to establish the right of action sued on apart from a defence founded on the expiration of the period of limitation.

6. Secondly, it must appear to the court, in the circumstances of this case that:

a material fact of a decisive character relating to the right of action was not within the plaintiff’s means of knowledge until a date on or after 9 July 2002 (the commencement of the year last preceding the service of the s 280 notices).^[3]

Background

7. The facts deposed to by the plaintiff are largely uncontroversial. He was born on 4 September 1955.  He first worked for the defendant (the Main Roads Department) in his early twenties as a soil tester.  After a short break the plaintiff resumed working for the Department on 6 April 1987 and worked there until his employment was purportedly terminated in late 2002 in circumstances considered later. 

8. The plaintiff’s work as a soil tester involved repetitive activities such as collecting and bagging soil samples, loading and unloading heavy vehicles, carrying out various tests using heavy equipment involving heavy physical effort.

9. The nature of the activities are particularised in paragraph 9 of the statement of claim and in the affidavits. The work routinely involved repetitive bending, heavy lifting and hammer blows to compact soil sample moulds or to drive a heavy spear through soil to test for moisture.

10. It was, generally speaking, foreseeable that the plaintiff’s work was capable of exacerbating any pre-disposition to or cause or contribute to causing the injuries and disabilities the plaintiff now complains of.

11. The defendant’s breaches of duty are particularised in paragraph 10 of the statement of claim. Essentially it is alleged the defendant should have known of the nature of the activities and likelihood of them causing injury but failed to take particularised precautions to avoid consequent injury.

The plaintiff’s right of action

12. I turn to the issue of whether, limitation issue aside, the plaintiff has a right of action. It was submitted for the defendant that there was justifiable scepticism about the plaintiff having a cause of action that might otherwise be successful but for the limitations defence. Reference was made to Raitilava v Gold Coast City Council;^[4] Quintano v Cablemakers of Australia Pty Ltd.^[5]

13. The point is not without merit. As was said in Quintano, an employer might envisage that an employee carrying out the kind of work the plaintiff was engaged in might sustain physical injury but that it was a non sequitur to ascribe the happening of  such an event to breach of duty – rather such cases are dealt with by statutory compensation schemes.

14. Raitilava is authority, if authority be needed, that an employer had no duty to prevent a healthy employee from working within his capacity: see also Quintano.^[6] 

15. There are also issues about the relationship between any breach of duty by the defendant, the plaintiff’s injuries and consequent damage. These include the extent to which the plaintiff’s disabilities are a consequence of naturally occurring degenerative changes, perhaps aggravated by the defendant’s breaches, or in the normal course of his work, or of breaches of duty of care which are in any event statute barred.

16. These issues appear open for consideration in this case but cannot be resolved here. They are matters for trial. The issues probably include whether the plaintiff’s disabilities are a consequence of one or a combination of one or more of or all of the considerations mentioned.

17. I am nevertheless satisfied there is evidence capable of establishing that the defendant was in breach of duty in respect of injuries suffered by the plaintiff during any extended liability period.^[7]  That is of course subject to the plaintiff proving the facts necessary to support Mr Kahler’s opinion and that opinion prevailing over any contrary opinions at the trial.  It is also subject to what is said in the following paragraph.

18. It is also noteworthy that it is safe to infer that the appreciation of the risk of injury and the precautions to be taken to diminish it evolved during the period of the plaintiff’s employment – what was acceptable and hence not a breach at one time but may well have constituted a breach at a later time.

19. It follows that it is at least arguable that the plaintiff has a number of causes of action which accrued progressively during the course of his employment.

20. Those things said, broadly speaking, there is evidence which if accepted at trial, is capable of founding a conclusion of causal links between alleged breach of duty, consequent injury and damage during any extended limitation period.

21. As I have said the considerations canvassed raise complex and formidable issues for the plaintiff, which can only be resolved at a trial but there is a sufficient basis for this application to proceed.

     The course of events

22. The evidence for the plaintiff is, at least from the perspective of this application, largely uncontroversial. Not least for that reason the following summary is not comprehensive or exhaustive.

23. I note that throughout the course of events the plaintiff was strongly motivated to retain his employment with the defendant. He appears to be of somewhat stoic disposition.

24. The plaintiff started suffering pain in his shoulders “in approximately 1999” but was able to carry on working. Nevertheless, on 2 February 2000 he consulted his general practitioner. X-rays of the plaintiff’s shoulders were normal and his G.P. informed him of that.

25. The plaintiff continued working until in “approximately July 2001”, however both his shoulders “were becoming painful” while he was lifting bags of soil. He told the safety and training officer at his depot that he had hurt his shoulders but, being confident that he could continue to work with the pain, he did not ask for time off.

26. In October 2001 the plaintiff was working on Palm Island; he developed pain in both shoulders. He arranged with his laboratory supervisor to send him painkillers and continued working until he returned to Townsville.

27. When he returned from Palm Island the plaintiff was experiencing pins and needles in his wrists and hands and shoulder pain. His general practitioner referred him to a neurologist. On 1 November 2001 the plaintiff lodged a workers’ compensation claim form in relation to bilateral shoulder pain.

28. On 8 November 2001 the neurologist confirmed that the plaintiff had lateral carpal tunnel syndrome in his wrists and hands. He lodged a claim for compensation in respect of that injury on 19 November 2001.

29. On 11 November 2001 the plaintiff ceased work and commenced receiving workers’ compensation benefits. He was treated for the pain in his shoulders and his carpal tunnel syndrome, initially conservatively by physiotherapy and steroid injections but this was not successful.

30. On 18 January 2002 the plaintiff underwent surgery to his right shoulder and for decompression of the carpal tunnel of his right wrist. He deposes that he thought the surgery would “fix all my problems” with his right shoulder and arm and that he would be able to go back to work after a period of physiotherapy and rehabilitation.

31. The operating orthopaedic surgeon told the plaintiff that he would require the same operation on his left shoulder and the plaintiff was prepared to undertake it so that he “could continue in my employment”.

32. Notwithstanding the surgery and post operational rehabilitation, the symptoms in the plaintiff’s right shoulder and wrist continued; the physiotherapy was stopped.

33. In July 2002 WorkCover arranged for the plaintiff to undergo a “functional capacity evaluation and workplace assessment”. As a consequence of the assessment, on 31 July 2002, he was told he could not continue to work as a soil tester. 

34. The plaintiff had discussions on 31 July 2002 with officers of the Department and the therapist who had carried out the assessment with a view to the Department finding acceptable alternative employment arrangements so the plaintiff could continue to work for the Department notwithstanding his disabilities.

35. The plaintiff deposes that he was confident that this would be done and there is no occasion to doubt that thereafter the defendant’s officers explored the prospect of finding duties which he could carry out. In the event no suitable alternative could be found, the plaintiff was told of this in October 2002.

36. I am satisfied that the plaintiff reasonably believed suitable alternative employment would be found up until he got that advice and that the defendant made genuine efforts to find it.

37. I note that department officers involved in the discussions depose that the possible outcome of retirement on the ground of ill health was mentioned following the assessment of July 2002; the plaintiff denies this. This issue cannot be resolved on this application. In the circumstances insofar as the issue is relevant I assume it in the plaintiff’s favour.

38. On 4 September 2002 the plaintiff consulted his solicitor for the first time. The plaintiff was still receiving WorkCover benefits for his right shoulder condition and his employer was trying to find him suitable employment within its operations. He told the solicitor that in the event that this occurred he may choose not to pursue a common law claim.

39. From the perspective of suing, the solicitor would not have advised is; he did not have all the documents and the alternative work arrangement issue was then unresolved.

40. On 1 October 2002 his solicitor advised the plaintiff to reject an offer from WorkCover concerning his shoulder and sue at common law. The plaintiff did not indicate he wanted to pursue “such a claim” at that time.

41. On 2 October 2002 however the plaintiff informed his solicitor he wished to pursue a common law claim in circumstances where his employment and his WorkCover payments were to be terminated and no alternative work was available.

42. The plaintiff’s solicitor deposes that he received a copy of the WorkCover file under cover of a letter of 24 September 2002 together with any medical reports prior to that date. The solicitor did not consider the material immediately. He took annual leave from 7 October 2002 returning to work on 14^th and read and considered the material after speaking to the plaintiff on 28 October 2002 when the plaintiff instructed him to pursue a common law claim.

43. The plaintiff received a copy of the vocational assessment of 31 July 2002 carried out on behalf of WorkCover under cover of a letter of 17 October 2002.

44. The plaintiff’s employment was terminated by letter in October 2002. This was later withdrawn so that the plaintiff could seek voluntary early retirement but his attempt was unsuccessful. His employment was terminated on account of ill health in January 2003.

45. The solicitor deposes that he would not have advised the plaintiff to pursue a common law damages claim based on Dr McEwan’s report of 3 June 2002^[8] because it was unfavourable.

46. So far as the assessment of July 2002 is concerned the solicitor deposes he would have advised a common law claim be considered in the event that the employer was unable to find suitable alternative work but not to sue until that alternative had been exhausted. The solicitor considered that making a common law claim before then that might have been detrimental to the plaintiff’s prospects of obtaining alternative employment.

47. The solicitor’s advice in respect of these issues seems to me to have been reasonable in the circumstances and the plaintiff justifiably acted on it.

48. The plaintiff’s solicitor arranged for his client to be examined by Dr James Price, an orthopaedic surgeon, on 5 November 2002 and received Dr Price’s report^[9] on 24 January 2003.  He sought Dr Price’s report essentially because the medical reports obtained by WorkCover were ambivalent or did not support the plaintiff’s case.  

49. The solicitor deposes that Dr Price’s report was consistent with the report by Dr McEwan^[10] and contradicted a report by Dr Gibberd.^[11]  The differences between those two doctors was as to the relationship between natural degenerative changes, work related matters and the plaintiff’s injuries and other issues.

50. The solicitor deposes to the effect that although he recommended that the plaintiff pursue a common law claim once his employment had been terminated he could not properly advise as to issues of causation and the amount of damages on the information then available.

51. The solicitor further deposes that he was not in a position to advise as to causation and quantum until he had received Dr Price’s report some time after 9 January 2003. 

52. In my view the solicitor’s advice was reasonable in the circumstances and the plaintiff acted reasonably in taking and acting on it. The advice constituted appropriate advice in terms of s 30(2) of the Limitations Act.

53. A compulsory conference pursuant to the WorkCover Act was held on 7 June 2004 but obviously did not resolve the matter. The proceedings were commenced on 16 July 2004.

The Limitations Act considerations

54. There are some matters to be referred to before turning to the Limitations Act provisions. 

55. Prior to 1 January 1996 the plaintiff’s entitlement to pursue an action in respect of the injuries suffered in the course of his employment was not regulated save for the operation of the Limitations Act. 

56. The period from 1 January 1996 to 31 January 1997 was regulated by the Workers’ Compensation Amendment Act (No 2) 1995.  That legislation it would appear required a certificate from the Workers Compensation Board as a condition precedent to an action for damages.  It seems that the plaintiff did not have one and it is submitted for the defendant that any proceedings commenced in respect of the period are incompetent. 

57. As has previously been indicated the period between 1 February 1997 and 1 July 2001 is regulated by the WorkCover Queensland Act 1996.  In this context it is submitted for the defendant that the plaintiff held Notices of Assessment required by that legislation for injuries and consequent damage in the period 1 July 2001 to 11 November 2001 and the action is properly justiciable in respect of that period. 

58. The plaintiff also has a complying notice of damages given prior to 1 July 2004 preserving his right to action in respect of the issues covered by the notice to bring a claim within s 308(1)(a)(I) of the Act.  It was submitted no extension of limitation period is required for the commencement of proceedings. 

59. It seems to me that the appropriate place of the resolution of the issues arising as a consequence of those considerations is at trial. That is where the issues will be defined and the facts relevant to them will be determined; until they are the issues are hypothetical. I turn to the legislation.

60. Section 31(2) of the Limitations Act relevantly provides:

“…

(2) Where … 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)…;

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.”

61. Section 30 provides as to the terms used in s 31(2) as follow:

“(1) …

(a) 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;

(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 the 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 on the right of action; and

(ii) 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;

(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

(ii) 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.”

62. A material fact for the purpose of s 30(2)(a), is within the means of knowledge of a plaintiff when the “steady preponderance of … opinion or belief” is that the fact would have been so and that is usually in the form of a professional opinion: see Wood v Glaxo.^[12]

63. In the circumstances the plaintiff’s retaining a solicitor and the solicitor’s obtaining a report from Dr Price were reasonable steps in terms of determining facts “within (the plaintiff’s) means of knowledge.”

64. These statutory provisions and their application have been the subject of much judicial consideration and exposition, notably by the High Court in Reeman & Ors v State of Queensland.^[13]

65. The High Court majority emphasised the “composite nature” of a “material fact of a decisive nature relating to the cause of action”. Both the fact and its decisive character should be outside a plaintiff’s knowledge during the period contemplated by s 31(2)(a).

66. A known material fact may acquire its characteristic of a decisive nature only after it became known. It is only with the coincidence of knowledge of a material fact and the characteristic of a decisive nature that s 31(2) comes into play.

67. The material in Dr Price’s report^[14] dealt with material facts relating to the plaintiff’s right or rights of action in issue on this application; s 30(1)(a)(ii)(iv)(v) of the Limitations Act.  It bears favourably on the plaintiff’s prospects of success and the issue of an award sufficient to justify an action for breach at the time in issue in this application.

68. Accepting, as I do, that the plaintiff’s solicitor was not in a position to properly advise earlier as to the issues of causation and quantum, it cannot be said that those matters were “within the plaintiff’s means of knowledge” and “of a decisive nature” before Dr Price’s report was received and the solicitor gave the plaintiff advice based on it.

69. Once Dr Price’s report was received on 23 January 2003, but not before, the requirements of s 31 of the Limitations Act as to material facts were satisfied.  Subject to the court being persuaded to grant an extension the plaintiff had a year after that date to sue and he sued on 16 July 2004.

70. Put another way the plaintiff could have sued before Dr Price’s report was received but it was not advisable for him to do have done for the reasons canvassed. Once it was received a reasonable person would have concluded an action should be instituted.

71. There is therefore a basis to exercise the power to extend the limitation period. The material does not raise prejudice on any other consideration against it.

72. I therefore order that the limitation period under s 11 of the Limitations Act is extended for any cause of action insofar as it concerns injury to the plaintiff’s shoulders and biceps or forearms which arose between 1 February 1997 and 9 July 2000.

73. The costs of this application are costs in the cause.