Barnes v Smith[2011] QSC 259

SUPREME COURT OF QUEENSLAND

[1] McMeekin J: Tracey Lee Barnes applies under s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”) to extend the limitation period applicable to the subject proceeding.

[2] Ms Barnes wishes to pursue a claim for damages against the respondents.  The limitation period within which she was permitted to commence such a proceeding expired on 23 December 2008 without action being commenced.

[3] Ms Barnes also seeks leave to commence proceedings pursuant to s 298 of the Workers Compensation and Rehabilitation Act 2003 despite non compliance with s 275 of that Act. The parties argued the application on the basis that leave would automatically follow if Ms Barnes was successful in her application for extension of the limitation period.

The “Incident”

[4] Ms Barnes was employed by the first respondent at the material time at their hardware store. She alleges that on 23 December 2005, and whilst engaged in the course of that employment, she was lifting drums of paint weighing, she says, at least 23 kgs each. She lifted 20 such drums of paint from the floor onto a stool, added tint to the drum, stirred it, then placed the drum “back with the other group of drums behind [her]”.

[5] Ms Barnes says that she had received no training in heavy lifting and “did not know that twisting [her] back while lifting a heavy item was unsafe”. Her affidavit does not expressly state that the work either required that she twist her back while lifting nor that she did so, but I assume that is intended.

[6] Mr Smith, one of the first respondents, has measured the height of the stool at 55 cms and reports that the weight of the drums was between 20.47 kgs and 24.82 kgs.  He says that his records show a sale of 29 paint drums of 15 litres capacity on the relevant date, not 20 litres as Ms Barnes recalls, but with no record of how many required tinting.

[7] In the process of carrying out this work Ms Barnes says that her back became “sorer and sorer”. By the next day she says that she could hardly move.

[8] Ms Barnes has now been diagnosed as having an L5/S1 disc protrusion and has been advised to have surgery. She gave evidence and was in obvious distress.

The Requirements of the Act

[9] In order to succeed on an application to have the limitation period extended the applicant must show that ‘a material fact of a decisive character relating to the right of action was not within [her] means of knowledge’ until a date after, in this case, 23 December 2007:  s 31(2)(a) of the Act.  There must be a prima facie case.[1] Those two matters being shown, I have a discretion to extend the limitation period for 12 months from the time the material fact was within Ms Barnes’ means of knowledge.  Normally that discretion would be exercised in favour of the applicant unless there was relevant prejudice to the respondents.[2]  The onus lies throughout on the applicant.

The Basis of the Application

[10] The relevant material facts that are claimed were not within Ms Barnes’ knowledge are:

(a) that Ms Barnes suffered “from a serious and permanent injury to her lower back that was caused or materially contributed to by the incident of 23 December 2005”;

(b) the incident of 23 December 2005 has caused a permanent injury, an L5/S1 disc protrusion;

(c) Ms Barnes requires surgery as a result of the incident of 23 December 2005.

[11] The reference to the “incident of 23 December 2005” I take from counsel’s submissions – presumably the intended reference is to the work that Ms Barnes described as being performed on that date, as Ms Barnes expressly states that there was no incident of an onset of pain.

[12] There are therefore three relevant facts advanced – the causal contribution of the subject work, the degree of harm suffered, and the consequences of that degree of harm.

[13] The facts relied on are clearly capable of being material facts going as they do to knowledge of the nature and consequences of the injury and the extent to which it was caused by the relevant act: see s 30(1)(a))(iv) and (v) of the Act.

The Respondents’ Case

[14] The respondents argue four issues. First, that the applicant has not established a prima facie case. Second, that the material facts were not of a decisive character in the relevant sense: see s 30(1)(b) of the Act. Third, that the material facts relied on were either within Ms Barnes’s knowledge, or within her means of knowledge, well prior to the relevant date, taken here to be 24 August 2010 – that is one year ago. Fourth, that if the application is allowed they will suffer prejudice such that there cannot be a fair trial.

Subsequent History

[15] Ms Barnes says that she attended on her general practitioner, a Dr Bills, some time between 23 December 2005 and 3 January 2006. Dr Bills’ records are in evidence and make no mention of such a visit. 

[16] Ms Barnes says that Dr Bills advised her to have physiotherapy and she did so, attending on a physiotherapist on 3 January and 6 January 2006.  The records of Discovery Coast Community Health Services confirm those visits.  The history recorded on 3 January is: “Lifting heavy drums of paint at work 23/12/05, next day was sore ++ [?] side buttock, pain referred into lower leg. Aching ++. Taking lots of analgesia to cope. ↓↓ ROM”

[17]  Ms Barnes says that the physiotherapist advised that she had a muscle spasm in her back.  She says that Dr Bills gave her similar advice. She says that the physiotherapy treatment helped but her pain flared up when she was active.

[18] Dr Bills’ notes do record visits on 17 January, 25 January, 31 January, 8 February and 16 February 2006. Ms Barnes says that she can recall discussing her back symptoms with him on 8 February. There is no mention of that in the notes. Only on the last of those visits is there any entry that appears related to any back problem. Dr Bills recorded “right sciatica”. He mentions “CT Head scan” in the same entry. Ms Barnes says that she had that scan but she was also referred for a CT scan of her spine. She produces the report of that scan. That suggests fairly strongly that Dr Bills’ record keeping is not entirely accurate.

[19] Ms Barnes says that at the time she was suffering from a rare and troubling skin condition that was pre occupying Dr Bills. That might explain a failure to record the significant referral for a CT scan of the spine. It also provides some support for Ms Barnes’ allegation that Dr Bills was not recording all that went on in consultations.

[20] The report of the CT scan is addressed to Dr Bills and dated 22 February 2006. It concludes that the images show “a right paracentral disc protrusion at L5/S1 which almost certainly impinges on the right S1 nerve root”.  There is no evidence that Ms Barnes saw the report of the CT scan during the relevant period.

[21] Ms Barnes says that Dr Bills saw her after the CT scan and advised her that her “pain was sciatic and would come and go”. Dr Bills was not called in the case but the defendant put into evidence, and without objection, a file note of a conversation between the defendant’s solicitor and Dr Bills. The note particularly mentions the doctor having no recollection of the matters mentioned in paragraphs 11, 12 and 13 of Ms Barnes affidavit, but makes no mention of paragraph 16 in which Ms Barnes explains the advice she received following the CT scan. Nor is any explanation offered for why Dr Bills failed to record the referral for the CT scan of the spine or the advice that he gave to Ms Barnes about it, if he did so.

[22] There seems no good reason to disbelieve Ms Barnes. In fact she came across in giving her evidence as transparently honest, albeit in such significant pain that I wondered about her capacity to think through the questions asked and to give accurate replies.

[23]  Ms Barnes continued in employment with the first respondent until being laid off on 3 November 2008. A week later she commenced work at the Agnes Water Tavern where she continued in employment until 27 January 2010.  She then ceased work because of pain in her legs.

[24] Between 2006 and 2009 Ms Barnes says that her back pain continued. She says that her pain would be “stirred up from time to time” but that she would not visit her general practitioner as he would only prescribe medication. The general practitioner’s records include an entry on 24 December 2007 of a history of low back pain for two days but has no other record concerning back pain between the February 2006 entry and then.

[25] In her oral evidence Ms Barnes says that she had significant periods in which she was pain free – up to nine months was mentioned. As well she said that over the years the pain in her legs has changed and was centred more in the calves than radiating and that her left sided leg pain has become much more pronounced than her right side – the contrary of the record that Dr Bills made on 16 February 2006.

[26] After ceasing work in January 2010 Ms Barnes sought medical advice. She was told, she says, that her condition could be arthritis, lupus, or fibromyalgia.

[27] A plain X-ray of the lumbar spine taken on 28 January 2010 showed a “significant reduction in L5/S1 disc space”. The GP’s notes (by now a Dr Abu Kamal) records him discussing that result with Ms Barnes and then has the entry “? Fibromyalgia”.

[28] On 8 February 2010 Dr Kamal records a referral for a CT scan of the “L/S spine” and “No H/O any major trauma except for weight lifting 3 years back at hardware store”.  The report of the CT scan is in evidence and it concludes: “There is a prominent and broad posterocentral disc herniation at L5/S1 which is moderately indenting the thecal sac and bilateral S1 traversing nerve roots.”

[29] On 12 February 2010 Dr Kamal records discussing the CT scan results with Ms Barnes in these terms: “showed disc herniation on L5/S1 level with S1 nerve compression. Discussed regarding pain management and back care. Still doing weight lifting job at Tavern. Discussed about switching to appropriate job for her”.

[30]  Dr Kamal referred Ms  Barnes to a specialist, Dr Yang, whom she saw on 18 March 2010. Ms Barnes says that Dr Yang was dismissive, apparently had the CT scan report but said he did not know what was wrong and referred her for an MRI scan. That was carried out in Bundaberg on 1 April 2010. The report of that scan confirms the central disc protrusion and compression of the thecal sac mentioned in the CT scans.

[31] Ms Barnes saw a pain management specialist in Bundaberg on 20 May 2010 who recommended a steroid injection. Ms Barnes received her first injection on 2 July 2010 which provided relief for a couple of weeks.

[32] On 23 September 2010 Dr Yang again saw Ms Barnes and recommended surgery. She says that this is the first time that advice was given to her to the effect that she would need surgery. Ms Barnes had no private cover and could not afford surgery. She was placed on the public list.

[33] On 24 June 2011 she sought a second opinion from a Dr Richard Kahler who confirmed Dr Yang’s advice. Ms Barnes says that he told her that “nothing else will fix my back condition”.

[34] Due to funding constraints Dr Yang cannot perform the surgery in Bundaberg. Ms Barnes is still awaiting surgery.

[35] On 19 July 2011 Ms Barnes’ solicitor had a discussion with Dr Kahler. It is common ground that Dr Kahler had the clinical notes of Dr Bills’ practice. As a result of the discussion Dr Kahler signed a memo on 20 July 2011 in which he states:

(a) Ms Barnes told him on 24 June 2011 that she had a history of a back injury at work in December 2003[3] when she was lifting tins of paint;

(b) That she did not tell him that she had experienced sciatica prior to October 2009;

(c) That it was his opinion that Ms Barnes work injury on 23 December 2005 “was a significant contributing event to her current condition”;

(d) Her work injury on 23 December 2005 caused a marked acceleration of her condition;

(e) If not for the injury on 23 December 2005 he could not say when if ever Ms Barnes may have experienced symptoms at her present level.

[36] Ms Barnes swears that no doctor had previously told her that her current symptoms were related to her work injury of 23 December 2005.

[37] Ms Barnes said in evidence that she did not tell Dr Kahler of the long periods in which she was pain free nor that the pain she presently experiences is different in its location and description to the initial pain experienced in 2005.

[38] No report of injury was made to the first respondent. Mr Smith says that he was unaware throughout her employment with the first respondent that Ms Barnes complained of having a sore back. No report was ever made to him of any problem, nor did he observe any problem with her work performance.

[39] I turn now to the relevant issues.

A Right of Action

[40] In order to satisfy the test in s 31(2)(b) of the Act an applicant must be able to point to the existence of evidence which, it can reasonably be expected, will be available at trial and will, if unopposed by other evidence, be sufficient to prove his or her case:  Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at pp 434-435 per Macrossan CJ.

[41] The respondent has put in evidence a form bearing Ms Barnes’ signature which contradicts Ms Barnes’ claim not to have been told about the danger of twisting when lifting. Accepting that the respondent’s evidence is relevant to the issue – and I think it is not as the quote from Macrossan CJ’s judgment in Wood shows – having an employee sign a document hardly discharges the employer’s duty to provide a reasonably safe system of work and to properly train and supervise.

[42] Nor is it to the point to assert that the respondent claims that Ms Barnes was rushing and hence adopting an inappropriate system of work. Those are matters for the trial, if there is to be one.

[43] More troubling is that the applicant has not advanced any evidence that the repetitive movement of a 20-24 kg weight in the manner that she adopted on the day in question involved forces that were liable to injure the spine of a person of normal fortitude. It is not to the point that in numerous cases over the years plaintiffs have succeeded to awards of damages where the weights involved have been no greater – each case is required to be proved on its own set of facts.

[44] The respondent has put in evidence a document entitled “Manual Handling Management – Injury Prevention” which is said to be an information paper which provides “minimum guidelines on manual handling within the workplace to ensure your safety”. This was the document that the respondent provided to the applicant as part of her induction. It speaks of risk identification including asking “Do I have to twist?” and “Do I do a lot of repetitive actions…?” It points out that the risk of injury increases with frequency of activity and the force required to handle a load.

[45] That is the full extent of the evidence touching on the issue.  The generalisations set out in the first respondent’s document do not advance matters very far. Presumably evidence can be obtained that would support those generalisations. But the crucial issue is: did the work complained of expose the plaintiff to an unnecessary risk of injury that could have been avoided? Does a plaintiff succeed in a case against the employer by proving that they have been required to lift and move weights from the floor to a height of 55 cms and then place those weights behind them when the weights in question were between 20 and 24 kgs, combined with the knowledge that is set out in the employer’s document? I do not think so.

[46] I appreciate that the test here is undemanding and that the standards imposed on an employer at common law to prevent or minimise risk of injury are high. Despite that I am not satisfied that the applicant has established that she has an action on the right of action.

Decisive Character

[47] Section 30(1)(b) of the Act provides:

“(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.”

[48] Section 30(2) of the Act provides that for the purposes of s 30 “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.”

[49] In determining whether a newly learned fact has the necessary quality of decisiveness an applicant ‘must show that without the newly learned 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’:  Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 per Macrossan J at p 333.[4]

[50] Relevant on this point too is the observation of Connolly J in Sugden v Crawford [1989] 1 Qd R 683 at p 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 ...’.

Discussion re Decisiveness

[51] It is relevant to note that there was no loss of income until January 2010.  Ms Barnes says that despite being off work since January 2010 she continued to entertain the belief that she would eventually return to that employment.[5] I note that there is no evidence that she has been yet told that following successful surgery she will not be able to return to her former work.  That seems to me to be significant. The mere fact that one requires surgery would not of itself justify bringing proceedings for damages. While the costs involved are not insubstantial - $20,000 to $30,000 if done privately – that would hardly justify bringing an action for damages given the costs and risks.

[52] Added to those costs must be the prospective loss of income and an award of damages for pain and suffering. I do not know what income Ms Barnes has lost since January 2010. She used to work a 35 hour week at the tavern. She does not say in what capacity. She has now been out of work for 19 months. Presumably the loss of income is now reasonably substantial. And Ms Barnes will be incapacitated for a time after surgery and so her loss is set to continue for at least a reasonable period.

[53] The crucial questions are: what are the prospects of success of the proposed surgery and what will be the impact on Ms Barnes’ working capacity assuming a successful outcome post surgery. There is no evidence about these matters.

[54] I suspect that very few people today, informed as to the costs and risks, would bring proceedings for damages unless there was the prospect of an award of damages for future economic loss. Absent that component very few litigated claims would be worth pursuing. I have no evidence to guide me as to whether there is any realistic component of such future loss here.

[55] The question for me therefore is whether I should speculate, in the absence of evidence, that opinions to the effect that the injury is a permanent one and that it therefore requires surgery, convert an action from one not worth worrying about to one that “a reasonable person knowing those facts and having taken the appropriate advice on those facts” would consider had sufficient prospects of the proceedings “resulting in an award of damages sufficient to justify the bringing of an action”.

[56] An educated guess is that Ms Barnes would have an entitlement to an award in the vicinity of $100,000 - $120,000 assuming that the surgery restored her to a state that enabled her to carry out manual work again with some modest allowance for the risks inherent in every surgical procedure. In the absence of evidence about prospects of success of the contemplated surgery nothing more can be said.

[57] I am not at all sure that a reasonable person appropriately advised would pursue an action of this type with that result given the constraints on recovering costs[6] and the risks involved.

[58] I have been considering the question of whether the opinions in question would justify bringing an action in the monetary sense. There remains the issue of causation.

[59] Significantly, if Ms Barnes was unaware that she could causally link the continuing disabling condition of her spine to the subject injury then, to adapt Connolly J’s approach in Sugden, a reasonable woman, appropriately advised, would not have brought the action on the facts already in her possession.  She relies on the opinion of Dr Kahler to establish credible evidence of a link between her present disabling condition and the employment activities of 23 December 2005.

[60] The significant difficulty for the applicant however is that Dr Kahler had an incomplete history. In fact it is far from clear what history Dr Kahler had. He has not apparently spoken to the applicant with the medico-legal issues in mind. He was consulted solely to advise on current treatment. The respondents argue that being so, his opinion cannot be decisive as it is inherently unreliable.

[61] Whether Dr Kahler assumed continuing back pain or discomfort from 2005 is not evident. He did not know of periods of nine months without pain. He did not know that the location and quality of the pain had changed. While he saw from the GP’s notes that there had been sciatica he apparently had no detail at all of the nature and extent of it. He was unaware that it predated October 2009 save from what he read in the notes – one episode in February 2006. Ms Barnes said that she rarely went to the doctor and so the notes were hardly illuminating. Accurate understanding of these matters would seem to me to be important in determining the aetiology of the condition. That is especially so against a background of Ms Barnes continuing in employment, both at the hardware store and at the tavern, that involved significant lifting activities over a period of four years after the onset of pain in December 2005.

[62] No reasonable person would accept an opinion, uninformed as to crucial facts, as reliable or as determinative of a decision on whether the proceedings had “a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action”.

[63] While I accept that without evidence of the cause of her ongoing pain, and it can only come from medical practitioners, and probably from specialists, an essential link in the applicant’s proof was missing, I cannot accept that she yet has that proof. 

[64] In my view the opinions relied on do not have the necessary quality of decisiveness.

[65] I turn now to the question of whether these opinions were within her means of knowledge.

Means of knowledge

[66] Section 30(1)(c) of the Act provides:

‘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 the 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.’

[67] I note that Ms Barnes did not in fact learn that she would need surgery to her spine until 23 September 2010, that she has not yet been told what the prospects of success are of that surgery and so does not know whether her condition is permanent, nor does she know the likely long term impact of her condition on her employment post surgery. She still does not have a reliable opinion of the causal link between her present debilitating condition and the work of December 2005. Thus the claimed material facts were not within Ms Barnes’ actual knowledge until after the critical date which I take as 12 months ago – 24 August 2010.

[68] The focus here is on whether the relevant material facts were within Ms Barnes’s means of knowledge on a date prior to that critical date.

[69] Until January 2010 Ms Barnes could not be criticised. She maintained her employment, she sought medical advice and treatment, and she was not told any of the three matters that she now relies on.  Her symptoms seem to have come and gone as Dr Bills predicted. Ms Barnes was in an analogous position to the applicant in Healy v Femdale [1993] QCA 210 a case often cited on this issue.  There the court said:

“The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one's health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take "appropriate advice" or to ask appropriate questions if in all circumstances it would not be reasonable to expect the plaintiff to have done so.”

[70] A further relevant matter is that the Act, in s 30(1)(c), does not speak of ‘a reasonable person’.  The significance of this was explained by Keane JA in NF v State of Queensland [2005] QCA 110 at [29]:

‘It is to be emphasised that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of “all reasonable steps”, or by the efforts of a reasonable person.  It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps.  The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries.  Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant.  It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act.  ...’

[71] Ms Barnes is not a sophisticated person. She relied, and was entitled to rely, on her treating medical practitioners. For someone of her background she did all that was reasonable for her until January 2010.

[72] The more difficult issue is whether the forced cessation of her employment in January 2010 due to increasing pain in her legs and her continued incapacity thereafter called for more “prudent enquiry to protect [her] health and legal rights”. The respondents contend that had the applicant taken ‘all reasonable steps’ as required by s 30(1)(c)(ii) of the Act, then she would have discovered the material facts now relied upon at a time prior to 24 August 2010.

[73] In January 2010 it is plain that Ms Barnes’ general practitioner had not himself reached the view that there was any causal link between the symptoms and the work performed in December 2005. Ms Barnes sys that she was told that the cause might have been arthritis, lupus, or fibromyalgia. However in February 2010 a CT scan identified the disc herniation. There had been an earlier CT scan with precisely the same result but there is no evidence that Dr Bills told Ms Barnes what the CT scan meant or portended for her future save that her “pain was sciatic and would come and go”.

[74] As I have mentioned on 12 February 2010 Dr Kamal records discussing the recent CT scan results with Ms Barnes in these terms: “showed disc herniation on L5/S1 level with S1 nerve compression. Discussed regarding pain management and back care. Still doing weight lifting job at Tavern. Discussed about switching to appropriate job for her”. Ms Barnes does not expressly deal with her knowledge of the CT scan results save that she says that she knew that she had an injury to her back at “L5/S1”.[7] Dr Kamal referred Ms Barnes to a specialist neurosurgeon.

[75] Mr Myers, who appeared for the respondents, contended that this was the occasion when prudent enquiry was called for. Ms Barnes knew that she had been forced to give up her employment. Her GP has recorded discussing with her switching jobs to one more appropriate for her. She had been referred to a specialist neurosurgeon. These are certainly cogent matters. The difficulty in accepting that submission is that Ms Barnes was not inactive – she did seek expert opinion. She saw Dr Yang in March 2010. Her difficulty was that the expert opinion she wanted was not immediately forthcoming.

[76] Dr Yang had the CT scan but told her that “he did not know what was wrong”. He referred her for an MRI scan. That tends to confirm that he wanted more information before advising Ms Barnes. 

[77] The GP records indicate that as at 22 March 2010 Ms Barnes’ “pain is somewhat within control”.

[78] The report of the MRI scan records that it was completed on 7 April. The report was addressed to Dr Yang. Dr Kamal evidently received it as his notes indicate that he did so on 14 April. The only advice recorded is that Ms Barnes was put on restricted duties “for [the] next few weeks”. That entry does not suggest that Ms Barnes was given to understand that her condition was serious or permanent.  Given the advices that she had received to this point in time it is not possible to hold that Ms Barnes acted unreasonably in awaiting further opinion.

[79] Ms Barnes saw Dr Yang again on 23 September 2010.  Ms Barnes was unable to afford to see a specialist privately. The public system operates very slowly. As well she had the disadvantage of living at Bundaberg and she waited for an appointment to become available at the Bundaberg Hospital.

[80] I find it difficult to be too critical of Ms Barnes in waiting for the appointment in September that had been arranged. She was not to know whether Dr Yang had the results of the MRI scan, nor whether that resolved matters in his mind and nor could she reasonably be expected to agitate against the system that was supposed to be looking after her.

[81] To this point in time she had not been told that treatment would not assist her in getting back to work. As I have pointed out she has still not been told that.

[82] While there are some who would have more vigorously pursued matters, and not only advice but treatment, Ms Barnes is demonstrably not that type of person. Her station in life, her personality and her expectations of the system in which she was caught up all dictated her response. In my judgement she did not behave unreasonably in awaiting the verdict of the specialist that had been engaged.

[83] It would be difficult however to justify delay much beyond receiving advice that she required surgery. A reasonable person would have made enquiry as to their legal rights and sought advice as to the causation issue and the impact of this injury on their lives and economic future fairly promptly once they learnt that spinal surgery was contemplated and that less invasive forms of treatment were not going to be effective.

[84] In my opinion the material facts were within the applicant’s means of knowledge only after the critical date.

Prejudice

[85] Finally I turn to the question of prejudice. 

[86] Mr Smith has sworn an affidavit on behalf of the first respondent and he does not depose to material prejudice. In fact his affidavit makes clear that he has a lively memory of the applicant, he has the stool onto which she lifted the drums of paint and has measured its height, he has the weights of the drums, he has records of the relevant order for the paint and can swear that there have been other similar orders, and he is obviously familiar with the workplace and system and with the instructions that Ms Barnes was given. There is no allegation of any material witness being unavailable.

[87] I cannot see any basis for concern about the defendant having a fair trial on the liability issue.

[88] On the damages issue the principal concern is the question of causation. While the medical records are sparse none have been lost. Ms Barnes simply did not go to the doctor that often. Physiotherapy records dating back to the first visit are still in existence. The early CT scan report is available. There is no suggestion that witnesses who might speak of her activities in the intervening years are not available.

[89] This is not a case where there is reason to think that there have been subsequent injuries that might have materially impacted on the eventual condition, but which have gone unrecorded. This is not a case like Fuller v Bunnings Group Ltd [2007] QCA 216 where it was held that relevant prejudice was established where a respondent was precluded, by the lateness of notice of the claim, from exploring, by timely medical examination, the significance of injuries subsequent to the subject injury: see Williams JA at [44].

[90] Mr Myers referred to the lapse of time as being significant in its inevitable impact on the “availability and quality of the evidence”. While it is certainly true that a long period has elapsed since the work complained of was performed and the injury allegedly sustained there does not seem to me to be significant grounds for concern that a fair trial cannot be held.

[91] Had I been of the view that the applicant had otherwise made out her case I would not have been persuaded that there was any relevant prejudice.

Summary

[92] The application for the extension of the limitation period is dismissed.

[93] I order the applicant to pay the respondents’ costs on the standard basis.