Bolitho v Talbot[2010] QSC 415

SUPREME COURT OF QUEENSLAND

Philippides J:

The application

1. The applicant seeks an extension of the limitation period under s 31 of the Limitation of Actions Act 1974 (“the Act”) in respect of his claim for damages for personal injury arising out of a motor vehicle accident which occurred on 15 October 2004.

2. The applicant was the Principal of Fairview Heights State School at Glenvale near Toowoomba, operated by the Department of Education. On 15 October 2004, the applicant was required to assist in the aftermath of a horrific motor vehicle accident at the school in which a father ran over his child, resulting in the death of the child. The applicant developed a psychiatric illness, described variously as adjustment disorder with depressed mood, post traumatic stress disorder (“PTSD”) and major depression.

3. The applicant commenced proceedings on 31 August 2009 after the expiry of the limitation period. The critical question for determination is whether the applicant has demonstrated that a material fact of a decisive character came within his means of knowledge on a date on or after 31 August 2008, which is the relevant date for the purposes of s 31 of the Act.

Factual background

4. The applicant is now 47 years of age. He commenced employment as Principal at Fairview Heights State School in 2001, having begun his teaching career in 1984.

5. As mentioned, the motor vehicle accident in which the student was killed occurred on 15 October 2004. The applicant attended the scene when CPR was being performed on the child and was responsible for dealing with the aftermath of the accident including organising counselling and providing support.

6. On 26 October 2004, the applicant discussed the death of the child with his GP, Dr Macdermott, when attending an appointment for an unrelated matter. The applicant did not, however, start to suffer from the symptoms associated with the accident until the beginning of 2005. Up until then, the applicant believed he was coping well.

7. From the beginning of 2005, the applicant had been experiencing symptoms including poor sleep, thinking about the incident, holding himself accountable, fatigue, social withdrawal, increased irritability and anxiety. On 10 May 2005, the applicant was diagnosed with adjustment disorder with depressed mood by Dr Macdermott. The applicant decided that he needed some time away from work and took a few weeks holiday. Upon his return, he was still feeling low in energy, but completed the school year expecting that after the school holidays he would return feeling reenergised.

8. The applicant commenced the 2006 school year in his position as Principal, but by March 2006, he felt he was not coping with the demands of his job and was experiencing anxiety and needed a break to recover. He therefore took long service leave. In fact, the applicant did not return to his work as a Principal at Fairview Heights State School after March 2006. 

9. During the three months long service leave, the applicant went on a driving holiday with his family. He felt some improvement in his well-being, but his behaviour caused difficulties for his relationship with his wife, which experienced ongoing strain that had predated the accident. (Subsequently, the applicant and his wife divorced in April 2009). On his return from long service leave, the applicant found that he was feeling panicky about returning to work. He experienced various symptoms including increased heart rate, increased breathing, shaking, intolerance to loud noise and difficulty sleeping.

10. On 1 August 2006, the applicant consulted Dr Macdermott. The applicant reported that he could not cope with returning to his previous position at Fairview Heights State School.  Dr Macdermott noted that the applicant dated his symptoms from the time of the accidental death of the student at his school.  The applicant was advised to continue psychologist support and was given a certificate for leave. 

11. The applicant presented to Dr Macdermott on 17 November 2006, requesting further time off after the termination of the certificate. Dr Macdermott noted that the applicant seemed “incapable of returning to his school as Principal” and was having great difficulty making a decision about where his career choices lay. Dr Macdermott opined that the applicant did not, however, fulfil the medical criteria for PTSD, although he was still clinically depressed. Nevertheless, the applicant was referred to Dr Matthews for a psychiatric assessment.

12. The applicant’s evidence was that until then, he believed he did not have a psychiatric illness and did not really understand the seriousness of his illness, thinking that he would be able to get better on his own. While he accepted that he was suffering from depression, he was very reluctant to accept that he was suffering from a mental illness.

13. On 8 December 2006, the applicant was seen by Dr Matthews, who diagnosed PTSD. On 13 December 2006, the applicant advised the department of the nature of his illness.

14. On 2 February 2007, the applicant lodged an application for WorkCover benefits, specifying PTSD from 30 May 2005. He had delayed making the application because he believed he would recover. He lodged the application after being persuaded to do so by Dr Matthews.

15. In March 2007, Dr Khoo of the Toowong Private Hospital (“TPH”) diagnosed the applicant as suffering from chronic PTSD with co-morbid major depressive disorder.  The applicant was commenced on antidepressant medication and assessed for the PTSD programme at TPH, which he commenced on 28 May 2007 with some improvement to his condition. 

16. The applicant’s evidence was that in May 2007 he had completed an application form with respect to the Department’s Primary Teachers Career Change Program. The purpose of the program was to identify existing employees who may be considering a change in career, to facilitate the employment of new teachers. The applicant stated that he was at his lowest point at this stage and had very little understanding of his illness and of what his future might hold and what employment options may be open to him. At this stage, the applicant had utilised his long service leave and sick leave. He applied to access income protection insurance payments under his policy with Q-Super, which he received from early June 2007.

17. The applicant received a letter on 5 June 2007 from the Department, advising that his application for participation in the Career Change program had been successful. However, the applicant declined to proceed with the offer, as he wished to continue with his position in the Department. In August 2007, the Department advised the applicant that they were considering unattaching him from his position as Principal of Fairview Heights State School, but that they would ensure an appropriate placement would be found for him. The applicant sought a deferment of the decision and in mid September the Department agreed to delay its decision until December 2007.

18. The applicant’s evidence was that by October 2007 he was feeling more optimistic about his ability to return to work and informed the Department that he was looking at returning to work towards the end of the year.

19. On 12 November 2007, Dr Matthews reported to the Senior Rehabilitation Coordinator that:

“in keeping with my previous correspondence … in September, I wish to advise that [the applicant] continues to make progress in treatment, and he has now received a range of therapeutic interventions, although his treatment is ongoing.

[The applicant] has explained to me that he would understand the need of Education Queensland to potentially make him Principal (unattached), given his time away form the Fairview School.   Should this be the ultimate decision of Education Queensland, I would recommend that it may then be reasonable for [the applicant] to have a trial of return to work, ideally located in your district office in the role of Principal (unattached).  This should initially be for no longer than 3 shifts of 4 hours each per week, and these should be on Mondays, Wednesdays and Fridays.

…

I would suggest this period of rehabilitation could commence on Monday the 21^st January, 2008.”

20. According to Dr Matthews’ report of 26 February 2008, the applicant’s condition remained reasonably stable in the latter part of 2007, such that by December 2007 it was decided that a trial of a graduated return to work program be undertaken in early 2008 in a non-teaching environment.

21. At the beginning of the 2008 school year, the applicant relinquished his position as Principal at Fairview Heights State School.  At this stage, it was proposed that the applicant remain in the position of Principal, but that he be unattached.

22. On 25 January 2008, the applicant commenced a suitable duties program as an unattached Principal. He participated in a graduated return to work plan through WorkCover within the District Office of Education Queensland. The applicant’s affidavit and oral evidence, which I accept, was that the aim of the plan was to return the applicant to the position of Principal at a school.

23. The applicant’s affidavit evidence was that he had doubts as to whether he was able to return to work as a Principal or teacher, but that he was supported by his rehabilitation supervisor and Dr Matthews and others, whose opinion he respected and who were encouraging to him about his future return to the work force. He accepted that they had a more informed view of his prospects of rehabilitation. The applicant’s evidence was that from the beginning of his suitable duties program, the intention was that he would be able to return to the position of Principal of a school (although not necessarily Fairview Heights State School) at the end of the program and that his supervisor, Phil Cook, told him on a number of occasions that this was the intention and that it was confirmed by the graduated return to work plan.

24. The applicant’s hours went from an initial three days per week to two days per week and then back to three days per week.

25. On 26 February 2008, Dr Matthews reported that the defendant had returned to work for three days per week for a total of five hours per day. He stated that it had become clear that during this return to work program it would not be possible for the applicant to return to his previous work as Principal at Fairview State School, although working elsewhere remained open.  Dr Matthews concluded:

“It is currently unclear as to the outcome of the applicant’s return to work program.  It is conceivable that he may ultimately be able to return to active teaching duties in a Principalship away from his previous school, but similarly it may not be possible for him to return to active teaching duties and he may need to consider alternative positions within Education Queensland.  It is also possible that return to any work within Education Queensland may not be possible as a result of [the applicant’s] medical condition, and consideration may need to be given to retirement based on ill health.  However, as the return to work program has only been in place for one month, it is impossible at this stage to foresee its ultimate success or otherwise.”

26. Dr Matthews noted that although the applicant had been successful in returning to 15 hours of work per week, it was clear that the applicant was struggling with his return to work program and that he was particularly troubled by returning to any school environment “in the context of his rehabilitation”. Dr Matthews was of the view that the applicant would be unable to return to the Fairview State School in the future, but was guarded about offering any concluded view beyond that, stating:

“In essence, it is indeterminate as to whether his rehabilitation program will be successful, but the only way to be definite as to prognostic issues is for him to proceed with this program.

It will become apparent over the ensuing months as to whether [the applicant] will be able to return to teaching duties, or whether he will need to consider alternative occupational endeavours.”

27. The applicant’s evidence was that the view that the applicant may be able to return to a position of Principal at another school was consistent with his advice to him at the time, as was the advice that the applicant’s condition was stable.

28. The applicant was assessed by Dr McIntyre on 6 May 2008, who diagnosed chronic PTSD with co-morbid major depressive disorder in partial remission. Dr McIntyre opined in his report that the applicant was totally incapacitated for work as a school Principal, but fit to continue with his suitable duties programme with progressive increases in work hours. Dr MacIntrye was guarded about prognosis and stated that more probably than not some symptoms of the applicant’s PTSD would persist in the longer term, although at reduced intensity, and that the applicant’s depressive illness should remit fully. Dr McIntyre opined that the applicant’s condition was “to all intents and purposes stable and stationary”, noting that while further fluctuations in well-being could be expected over time, there was little likelihood of substantial remission of symptoms within the next year. He concluded that the applicant should be referred to the Medical Assessment Tribunal (“MAT”) for assessment of permanent impairment.

29. The applicant saw Professor Whiteford on 26 June 2008. In his report of 27 June 2008, Professor Whiteford noted that with treatment the applicant’s PTSD was in partial remission and that his depression had largely remitted.  He considered that the applicant would continue to require psychiatric treatment for at least another year.  Professor Whiteford stated that the applicant would not be able to return to a school environment in 2008, but was fit to continue his graduated return to work.  While he considered it unlikely that the applicant would be able to sustain a return to a school environment in the future, he reserved his opinion, observing that, “a decision on that would be best made at the end of 2008”.  In this regard, he opined that the applicant would need a “further six months in graduated return to work programme, during which time his hours could be increased from 2.5 days per week to full-time, before its success could be determined”.  Professor Whiteford stated that it “may well be that [the applicant] would never be able to return to duties of a Principal or any teaching position if he continues to have ongoing symptoms of post traumatic stress disorder”.  He opined that it was likely that the applicant would be left with a permanent disability as a result of his psychiatric condition, but that the extent of it “would only be able to be determined after a further period of six months treatment and vocational rehabilitation”.  The applicant stated in his affidavit that he understood from Professor Whiteford’s report that Professor Whiteford did not know whether or not he would be able to return to work as a Principal or teacher.

30. On 3 July 2008, Dr Khoo provided a more pessimistic report to WorkCover, indicating the TPH team were of the opinion that a return to the applicant’s original workplace was unlikely to be successful in the foreseeable future.

31. On 17 July 2008, the applicant attended at the MAT. In its decision of 17 July 2008, the MAT accepted that, as a result of an incident on 15 October 2004, the applicant had developed chronic PTSD and a co-morbid major depressive disorder with ongoing symptoms. It noted that the applicant had been “started on a new anti-depressant medication only several months ago”, which the applicant felt had helped him, and that the applicant felt he was continuing to improve. The MAT considered that the applicant’s condition was not yet stable and stationary and concluded that his incapacity for work was “partial and temporary”, and that the applicant’s condition should be reviewed in six months with an updated report from his treating psychiatrist. It determined that the degree of permanent impairment that could result was 20 per cent.

32. The applicant stated in his affidavit that he was advised to continue with his rehabilitation plan and be reassessed in six months. He stated that the view of the doctors at the Tribunal was similar to that expressed to him by Dr Matthews and that he believed that it was appropriate to follow their advice and make every effort at rehabilitation with a view to returning to his former position or one of similar seniority. The applicant also stated that when he started the suitable duties program he was told by his supervisor that normally two terms were allocated for participation in the program, and that if a person was thereafter unable to return to work, they were medically retired from the Department. The applicant felt that this placed significant time pressure on him to “get better”, and sought and was granted an extension of the program until the end of 2008.

33. I pause here to note that, in the circumstances of this case, it was on or after 31 August 2008 that a material fact of a decisive character must have come within the applicant’s knowledge.  The following day, on 1 September 2008, an incident occurred at work which had a great impact on the applicant. 

34. On 1 September 2008, the applicant had a disagreement with Mr Cook. It seems to have revolved around the applicant’s perception as to work timeframes being imposed on him and his being placed in the complaints management section of the department. It took the applicant over a week to recover from the effects of the confrontation. This caused the applicant to realise that, if a confrontation over a comparatively minor issue had taken such a toll on his health, he would not be able to handle more difficult and serious confrontations. His evidence was that until this point, he had believed that he could return to work as a school Principal at some time in the future, but that after the confrontation he formed the view that he would not recover sufficiently to work as a Principal or teacher. Thereafter, his condition deteriorated markedly. The applicant stayed on the program for a further short period until 19 September 2008. On 9 October 2008, Dr Matthews provided a medical certificate stating that the applicant was totally incapacitated from work until 31 December 2008. The applicant did not resume the program.

35. On 23 October 2008, Dr Khoo provided a report, reiterating the TPH team’s opinion previously provided that a return to the applicant’s original workplace was unlikely to be successful in the foreseeable future.

36. Dr Matthews provided a report on 3 November 2008, having seen the applicant on 18 occasions since his last report, on a weekly or fortnightly basis. Dr Matthews stated:

“Unfortunately, [the applicant] has struggled significantly with his return-to-work program.

…

while [the applicant] was being engaged in a return-to-work rehabilitatory program, he was instructed to attend an independent psychiatrist for a Section 85 review for possible forced medical retirement.  This further led to [the applicant] feeling unsupported in the workplace during his rehabilitatory process, as he felt there was a drive to remove him from work via medical retirement.

The net result of this has been that [the applicant’s] rehabilitatory experiences have been suboptimal, and often countertherapeutic. This culminated in September, when his rehabilitation program involved him in complaints management, an area that would be likely to increase his subjective experience of work stress, rather than contain it.  At this time I was grudgingly agreeable to him following this rehabilitation program, but it was clear that [the applicant’s] mental state was progressively deteriorating in the context of his workplace rehabilitation.  He was experiencing a deterioration in mood with more pervasive depression, subjective feelings of being ‘desperate’ (without suicidality), impairments of sleep, energy, motivation and concentration, as well as PTSD phenomena of re-experiencing trauma in the form of work-related nightmares, together with hyperarosal, irritability, decreased frustration tolerance and ongoing avoidance phenomena.

Thus, on 10 October 2008, after discussion with [the applicant], I provided him with a medical certificate for ongoing time away from work.  This effectively ended his rehabilitation program, and it is pleasing to note that there has been some progressive improvement in mood and functionality away from the workplace.

I am thus of the opinion that he has experienced a failed trial of workplace rehabilitation, and he is best considered to be totally and permanently disabled from his work in Education Queensland as a school principal, the position for which he is qualified by virtue of his training and experience.”

37. On 7 January 2009, the MAT reconvened to consider the applicant’s application for compensation. It noted its previous determination, in July 2008, that the applicant’s condition was not then stable or stationary and that the applicant was “managing reasonably well with his rehabilitation program, with project work and conference planning.” It stated that in September 2008 the applicant’s work included complaints management, which he found difficult to manage and that there were also some reported interpersonal difficulties with his supervisor. The Tribunal noted that the applicant ceased work in October 2008 and felt that it was unlikely that he would return to work with Education Queensland. The Tribunal stated that there had been little change in the applicant’s condition since his appearance before it in July 2008, and accepted that the applicant’s condition was now stable and stationary, with the applicant suffering a permanent and partial incapacity for work of 20 per cent.

38. On 10 February 2009, Professor Whiteford reported that since late 2008 the applicant’s condition had deteriorated. He opined that the applicant was unfit to recommence a return to work program and was permanently unfit to return to work as a Principal or in any other position with Education Queensland. Moreover, Professor Whiteford considered that the applicant was unfit to undertake remunerated employment in the private or public sector and that it was unclear when he may be able to undertake alternative employment.

39. The applicant was retired from Education Queensland on the grounds of ill health. Until then, he had received payments from Q-Super based on his position in the Department of Education as an unattached Principal.

40. The applicant’s evidence was that it was not until his WorkCover claim was finalised that he was capable of addressing other issues or making other plans. He then made inquiries about the possibility of a civil claim. On 24 March 2009, the applicant was provided with advice from Macrossans Lawyers indicating that it was unlikely that he would be able to establish that his injury was negligently caused by his employer. The applicant was not advised of the possibility of a CTP claim. On 23 April 2009, the applicant consulted his present lawyers and was advised that he could bring a CTP claim. Even after receiving advice, the applicant stated that the idea of bringing a claim, especially against the father of the deceased child, was distressful and that he was not sure that he was prepared to deal with all that it entailed. He stated in his affidavit that he did not believe he was capable of making the best decisions regarding his health and employment from the beginning of about 2006 and onwards. He stated that until he was retired on medical grounds, he had not experienced a loss of income that was significant.

41. On 24 June 2009, the applicant completed a Notice of Accident Claim Form. On 31 August 2009, he filed a claim and statement of claim pursuant to leave given under s 43(1) of the Personal Injuries Proceedings Act 1974 .

The legislative provisions

42. Section 31(2) of the Act provides:

“(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.”

43. Section 30 of the Act provides:

“30Interpretation

(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 -

...

(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv)the nature and extent of the injury so caused;

...

(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.”

The material facts of a decisive character relied upon by the applicant

44. The material facts relied on by the applicant are:

(a)the applicant’s realisation about a week after an incident on 1 September 2008 that he would not recover sufficiently to return to the position of a Principal;

(b)the opinion given by the applicant’s treating psychiatrist, Dr Matthews, on 3 November 2008 that the applicant would never be able to return to a full-time role in an educational environment;

(c)the ruling of the MAT on 7 January 2009 that the applicant had a permanent partial incapacity for work;

(d)the opinion given by Professor Whiteford, on 10 February 2009 that the applicant was unfit to return to work as a Principal or in any other position with Education Queensland, and that he was currently unfit to undertake remunerated employment in the private or public sector and may not be fit in the future.

Relevant considerations

45. It is apparent that s 31 of the Act, read with s 30, requires the applicant to establish the following matters:

(a)the fact relied on is material and is one which relates to the right of action;

(b)the fact is of a decisive character;

(c)the material fact and its decisive character were 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;

(d)there is evidence to establish the right of action apart from a defence founded on the expiration of the limitation period;

5. the discretion to extend the limitation period should be exercised in favour of the applicant. (See Dick v University of Queensland [2000] 2 Qd R 476 at [26], Queensland v Stephenson (2006) 226 CLR 197 at [10] – [11], [15], [19], [21] – [22]).

46. It was not in issue in the present application that there was evidence to establish the right of action, apart from a defence founded on the expiration of the limitation period. Furthermore, in relation to the question of the exercise of the discretion, the respondents conceded that they could not point to any prejudice resulting from the delay in bringing the action.

47. It is clear that the economic effects of the injury can be material facts relating to the right of action. In Watters v Queensland Rail [2001] 1 Qd R 448, Thomas JA explained at 453:

“This court has consistently treated the consequences of injury including economic consequences, as a potentially material fact of a decisive character relating to the right of action.  In Byers the material fact was that the plaintiff's injury was such as to necessitate his changing to a different and lighter job.  The court (Lee J, with whom McPherson and de Jersey JJ (as their Honours then were) agreed) observed that ‘this new fact transformed his case into one which would then probably result in a substantial award of damages’ and held that it was a sufficient basis for extending the limitation period.  Such cases are almost invariably concerned with assessments of degree as to whether the plaintiff’s actual knowledge of physical injury and its warning signs and consequences had by a given date already afforded sufficient information to have justified the commencement of proceedings.  The fact that a plaintiff’s injury was more serious than he or she had hitherto realised has long been recognised as capable of being a material fact.  Such a fact of course needs to be weighed in context with facts already known and reasonably capable of being known.” (citations omitted)

48. His Honour further stated at 456:

“The essential requirement for an extension of time is set out in s 31(2)(a) which requires proof that ‘a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant ... ’.  That composite test is extrapolated by definitions of its three main components in s 30(1)(a), s 30(1)(b) and s 30(1)(c).  The section contemplates analysis of the character of the material fact.  One particular matter that s 30(1)(b) specifically requires the material fact to bear is an economic characteristic.  It must produce the conclusion that the action would result in an award of damages sufficient to justify the bringing of an action.  In this context it would seem inappropriate to limit the connotation of ‘the nature and extent of the personal injury so caused’ to medical concepts or to the mere consequences to the person of the plaintiff. The economic effects of the injury are encompassed, whether one adverts to s 30(1)(a)(iv) or to the residuum of s 30(1)(a).”

49. In relation to the issue of the decisive character of a material fact, as was observed in Honour v Faminco Mining Services Pty Ltd [2009] QCA 352 at [73], s 30(1)(b) formulates two conditions for determining whether a material fact relating to a right of action is of a decisive character:

(a)that the fact (along with other facts known to the potential claimant) would be regarded 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 the action;

(b)that the fact (along with other facts known to the potential claimant) would be regarded as showing that the potential claimant should, in that person’s own interest and taking that person’s circumstances into account, bring an action on the right of action.

50. Each of these conditions is to be regarded from the point of view of a reasonable person; and that person is taken to be a person who has taken “the appropriate advice on those facts”.  Both conditions must be satisfied if the material fact is said to have a decisive character (Honour v Faminco Mining Services Pty Ltd [2009] QCA 352 at [73]).

51. A material fact is not of a decisive character if, before knowing that fact a reasonable person would know facts that that person would regard (having taken appropriate advice) 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 on the right of action;  and that the potential claimant ought to, in the person’s own interest and taking the person’s circumstances into account, bring an action on the right of action (Honour v Faminco Mining Services Pty Ltd [2009] QCA 352 at [74]).  If, without knowledge of that fact, a reasonable person, having taken the appropriate advice, would not regard the facts known to that person as showing that a right of action would (ignoring the effect of the limitation period) have a reasonable prospect of success, and resulting in an award of damages sufficient to justify the bringing of an action, then the fact is of a decisive character (Honour v Faminco Mining Services Pty Ltd [2009] QCA 352 at [74]).

52. In other words, where the fact relied upon is the economic effect of the injury:

“By necessary implication a fact of this kind going to the enlargement of damages could be a material fact of a decisive character that converted such a person’s claim from one that was not worth bringing into one that was”. (Watters v Queensland Rail [2001] 1 Qd R 448 at 454).

Whether the extension should be granted

53. The applicant relied on Watters’ case in contending that the facts relied upon were material facts.  I accept the submission that the matters put forward by the applicant were material facts.  Each of the facts relied upon concerned the economic consequences of the applicant’s psychiatric injury and its impact on his ability to continue his employment. 

54. It was the issue of the decisive character of the material facts relied upon and when they were within the means of knowledge of the applicant that was the focus of the dispute between the parties. In respect of those matters, the applicant made the following submissions. On 31 August 2008, a reasonable person, having taken advice from a competent legal practitioner, would not have regarded the right of action as resulting in an award of damages sufficient to justify the bringing of an action. At that time, the following state of affairs existed:

(a)While the applicant had a psychiatric injury, it had improved to the point where he was working three days per week in a graduated return to work plan.  The aim of the plan was to return the applicant to work as a school Principal.  The applicant believed that he could return to work as a school Principal in the future.  The applicant was encouraged in that belief by his treating doctor, Dr Matthews, the staff at the TPH and his rehabilitation officer, Mr Cook.

(b)    Dr Matthews and Professor Whiteford, while doubtful, had both indicated that it was too early to say whether the applicant would be able to return to work as a Principal.  Dr Whiteford had indicated that the applicant should be able to undertake alternative duties with Education Queensland in any event.

(c)The MAT had rejected Dr McIntyre’s view that the applicant was totally incapacitated for work as a school Principal, the MAT holding that the applicant had only a “partial and temporary incapacity for work”.  The MAT had found that the applicant’s condition was not stable and stationary, so it could be expected to improve.

55. The applicant also contended that a solicitor advising the hypothetical reasonable person on 31 August 2008 would have taken into account the following:

(a)The applicant had sustained little loss of income to date because he had used up sick leave and long service leave, had received disability insurance benefits and, indirectly, WorkCover benefits.  The applicant had had most of the medical and rehabilitation expenses paid by WorkCover Queensland.

(b)It was not clear whether the applicant had a permanent incapacity for work (the view of the MAT was that he did not);  but if he did, he would receive a lump sum permanent impairment benefit from WorkCover Queensland (probably on the basis of a 20 per cent whole person impairment).  The total amount of the benefits paid by WorkCover Queensland could be in excess of $100,000 (the amount in fact paid was $123,200.37). The amount of the WorkCover benefits paid would have to be refunded to WorkCover Queensland pursuant to s 270B of the Workers’ Compensation & Rehabilitation Act 2003 (“the WCRA”) and this would operate to reduce the amount of any damages received.

(c)Because of the uncertainty as to whether the applicant would be able to return to work as a school Principal, or in some other equivalent position in Education Queensland, the applicant would receive a global assessment for future economic loss, but the amount was very difficult to assess at present.  The quantum of the applicant’s future economic loss would be more easily assessable after his condition stabilised and the result of the graduated return to work plan was known.

(d)The applicant had an obligation to mitigate his damages by continuing with the graduated return to work plan approved by Dr Matthews.  If the applicant completed the graduated return to work plan and was unable to return to a Principal’s position or an equivalent position within Education Queensland, his damages for future economic loss would be high.  If he recovered damages, he would have no further entitlement to workers’ compensation benefits because of s 119 of the WCRA.  There would be a refund to make to Medicare Australia.

(e)The amount of unrecovered costs and outlays to take the matter to a settlement conference could vary from about $40,000 to $55,000, depending upon whether the third party insurer insisted on an application to extend the limitation period being made.  The unrecovered costs involved in proceeding to a trial would be substantially higher.  Costs could be awarded against the applicant if his application to extend the limitation period was unsuccessful.

(f)Litigation is extremely stressful, particularly for someone with a psychiatric illness.  He would have to sue the father who had killed his child.  He would have to be satisfied that the amount recovered would be sufficient to make it worthwhile proceeding.

56. Accordingly, the applicant submitted that the advice that would have been given to a reasonable person prior to 31 August 2008 (leaving aside the limitation period) would have been that it was too early to tell whether the right of action would result in an award of damages sufficient to justify the bringing of the action. Any advice as to the quantum of damages could not properly be given until the applicant’s condition had stabilised and it was clearer as to whether he would be able to return to work either as a Principal or in an equivalent position within Education Queensland. Furthermore, the issue of quantum should be reconsidered after his condition stabilised and he completed the return to work plan.

57. The applicant contended that after 31 August 2008 the situation changed because:

(a)The applicant realised that he would not be able to return to work as a Principal, whereas he had previously believed that he would be able to return to that role.

(b)The applicant’s condition did become stable and stationary and he was assessed by the MAT as having a permanent and partial incapacity for work;

(c)Dr Matthews now expressed the opinion that the applicant was unable to return to his former work as a Principal.

(d)Professor Whiteford now also expressed the opinion that the applicant would be unable to return to work as a Principal or in any other position within Education Queensland and was currently unfit to undertake remunerated employment in the private or public sector and it was uncertain whether he would be able to return to such work.

58. The proceeding then, it was said, became one which would result in an award of damages sufficient to justify the bringing of the action and one that the reasonable person, in the person’s own interests and taking the person’s circumstances into account, ought to bring. Therefore, the material facts relied upon were of a decisive character. I accept these submissions made by the applicant.

59. I accept that it was only after 31 August 2008 that the applicant appreciated that his psychiatric condition was such that he was incapable of resuming employment as a Principal.

60. The fact that the applicant’s psychiatric injury was so severe as to render him unable to continue to work as a Principal was clearly a material fact of a decisive nature, converting a claim that was previously not worth pursuing, into one that was. It was not until the aftermath of the incident of 1 September 2008, and the additional medical advice of Dr Matthews that the applicant discontinue the return to work program, that he appreciated that he was permanently incapable of resuming a position of Principal.

61. Until 31 August 2008, on the information available to the applicant, a reasonable person, even with the benefit of appropriate advice, would not have appreciated that an action in relation to the motor vehicle incident would have reasonable prospects of resulting in damages sufficient to justify the bring of an action and that it was in his interests to pursue it. Before 31 August 2008, the applicant’s rehabilitation supervisor and his treating psychiatrist considered that it was too early to rule out the applicant being able to resume the role of Principal, as the applicant was still undertaking the return to work program. Moreover, the applicant’s expenses during this period had been covered and he was in receipt of payments from Q-Super, and from the Department in addition to payment for work done under the rehabilitation program.

62. In submitting that the matters relied upon by the applicant did not qualify as material facts of a decisive character, the respondent relied upon Spain v Dipompo Jacs Constructions P/L & Anor [2009] QCA 323, and the following extract from the judgment of Keane JA (with whom Holmes JA agreed) at [61]:

“Whether or not the limitation on Mr Spain’s earning capacity was likely to be immediately productive of economic loss, a reasonable person in Mr Spain’s position would have appreciated that he was in a situation of vulnerability in the labour market.  This limitation of his earning capacity, together with the pain and suffering and loss of amenities referred to in the President’s reasons, would have been regarded by a reasonable person who took appropriate advice as showing that an award of damages by way of compensation would be sufficient to justify the bringing of an action at that time.  Reasonable advice in mid-2006 would have been that a successful action would result in an award of substantial damages sufficient to justify commencing proceedings at that time.”

63. That extract must be read in the light of the account given by the applicant in that case, that the back injury sustained by him had forced him to cease working in the construction industry and to look for and commence a new career, which he pursued for some time until his employer became insolvent. As Keane JA observed (at [60]), the applicant’s account in that case was “undeniably an acknowledgment of a firm appreciation on his part that his back problems were such as to limit the range of work open to him and to place him in a situation of real risk in the labour market”.

64. In the present case, the applicant had continued in his position as a Principal, albeit unattached, and was, on the recommendation of Dr Matthews, proceeding with rehabilitation in the nature of a graduated return to work program with the aim of resuming the position of Principal of a school. Notwithstanding Dr McIntrye’s view, there was a body of medical opinion that supported the approach of pursuing such rehabilitation, as did the first MTA, which concluded that the situation of the applicant in terms of any permanent inability to resume his position was not yet ascertainable. Until the return to work program failed the applicant did not and could not reasonably have had any firm appreciation as to whether his psychiatric illness would ultimately prevent him from resuming his career.

65. Of course s 31(1) of the Act only allows a period of limitation to be extended so that it expires at the end of one year after the date the material fact of a decisive character came within the means of knowledge of the applicant. Under s 30(1)(c), 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 the 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.

66. It is apparent that, although the applicant was struggling with the return to work program, until 1 September 2008 he believed that he would be able to return to work as a school Principal in the future, having been encouraged in that belief by various experts. Moreover, the applicant actively participated in a graduated return to work plan that had the stated aim of returning him to a position as a Principal. In my view, the applicant had taken all reasonable steps to find out the material facts before 31 August 2008, as is evidenced by the various reports of psychiatrists and supported by the first decision of the MAT, which suggested that the applicant might be able to return to work as a school Principal or another equivalent position with Education Queensland.

67. I note that the respondent sought to rely on the fact that the applicant had applied to enter into a programme for career change for primary teachers for which he was accepted on 5 June 2007 and was offered a retraining grant. However, the applicant changed his mind and did not accept the offer. Not only did the applicant change his mind, but he actively participated in the graduated return to work plan as advised by his doctor.

68. Each of the material facts relied upon by the applicant came within the means of knowledge of the applicant after 31 August 2008, that is, the 12 month period before the proceedings were commenced. The material facts also came within the applicant’s means of knowledge on dates after the commencement of the year last preceding the expiration of the limitation period, which on the applicant’s case was May 2008 and on the respondent’s case was October 2007.

69. I am satisfied that the applicant has demonstrated that the requirements of s 31 of the Act are met and that the limitation period for the proceeding should be extended to 31 August 2009.

70. I shall hear submissions as to costs.