Scott v State of Queensland[2014] QSC 306

SUPREME COURT OF QUEENSLAND

[1] Alan Wilson J:  Mr Scott alleges that, during a visit to his elderly mother in Ipswich Hospital on 16 April 2008, he slipped and fell on an unsigned wet floor and injured his back.

[2] He did not take steps to commence an action for damages for his injury before the statutory limitation period of three years expired in April 2011.[1]  He says he was unaware of the extent of the injury, and that he had a potentially actionable claim, until he was provided with some advice from a neurosurgeon on 30 September 2013.

[3] His application is for an extension of that three year limitation period, pursuant to s 31 of the Limitation of Actions Act 1974 (Qld), to a date 12 months after the date he alleges he first discovered facts that made him aware that he had a potential cause of action – i.e., 30 September 2014.

[4] Orders were made by consent on 24 September 2014 granting Mr Scott leave to commence his personal injury proceeding pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (Qld) despite his noncompliance with Chapter 2, Part 1 of that Act.  The proceeding is, however, stayed under s 43(3) until that Part is complied with – i.e., pending the determination, in this application, of the question whether he should have an extension of the limitation period.

[5] To succeed, Mr Scott must establish, in short, that a material fact of a decisive character relating to his right of action was not within his means of knowledge before the expiry of the limitation period (LAA, s 31(2)(a)). 

[6] As the following narrative of his medical, employment and personal history after his fall in 2008 shows, his application cannot succeed.  He had, from the time of the fall, continuing quite serious and recurring symptoms to a degree that meant any reasonable person would, in his circumstances, have taken steps to prosecute an action within the limitation period.  He also had, I accept, other unrelated health problems and personal obligations in his life which distracted him but, as will be seen, they do not create circumstances sufficient to attract the discretion the legislation extends to those who, without error or fault, fail to prosecute an action in time. 

Mr Scott’s medical history after the fall

[7] Mr Scott first visited his general practitioner the day after the incident, 17 April 2008.  He was prescribed various pain medications, and physiotherapy.

[8] Despite that treatment, his pain continued to increase.  He consulted a different GP on 13 June 2008, who referred him for a CT scan.  It showed a moderate diffused disc bulge at the L5/S1 level with a left paracentral disc protrusion, directly next to the descending left S1 nerve root.  It was observed that this may have been the cause of his ongoing left-sided pain.

[9] Mr Scott was referred to Dr Simon Gatehouse, an orthopaedic surgeon, in July 2008.  Dr Gatehouse arranged for an MRI and a left S1 CT guided root block after which Mr Scott noticed some improvement, over one week, of symptoms he had been suffering in his left leg. 

[10] Dr Gatehouse found that the left paracentral disc protrusion at L5/S1 was likely to be significant, given that it produced a distortion of the left S1 nerve in its lateral recess; and, that further protrusions revealed at L3/L4 and L4/L5 may have potentially distorted the L4 nerve root.  Dr Gatehouse recommended a decompression at that level.  Mr Scott did not pursue that option because of his personal commitments at the time which, primarily, involved caring for his mother. 

[11] Within three months, then, of his fall Mr Scott knew that he had at least one disc protrusion in his spine; had undergone treatment which had not permanently relieved his symptoms; and, had been recommended a further treatment of, on any view, quite a significant kind.

[12] It is clear Mr Scott’s symptoms persisted at some level over the next year because he was referred to Dr Jefferson Webster, a neurosurgeon, in July 2009.  Dr Webster advised Mr Scott that he had three options to help alleviate his ongoing pain: a repeat S1 nerve root block, a left L5/S1 microdisectomy and rhizolysis, or spinal fusion surgery.[2]  He advised Mr Scott of the statistical risks of the microdiscectomy and rhizolysis procedure by providing him with an educational pamphlet.[3]  Those risks included a 5 per cent chance of failed surgery syndrome.  The specialist advised Mr Scott’s GP that if that occurred, and Mr Scott’s pain continued, he would require a more invasive spinal fusion procedure.[4] 

[13] Mr Scott denies that those risks were individually discussed with him, despite Dr Webster confirming in a letter to Mr Scott’s GP that he had both provided that educational material, and explained the specific risks of the procedure, to Mr Scott.[5]

[14] In any event Mr Scott underwent the microdiscectomy and rhizolysis procedure on 29 July 2009.  He noted that his pain decreased immediately, and following his discharge experienced ‘only minimal localised pain from the operation, no leg pain, no headaches and very little pain in [his] lumbar spine’.[6]

[15] His lumbar spine symptoms gradually began, however, to return from around June 2010.  He again consulted Dr Webster a number of times in the following years.  The neurosurgeon recommended a CT guided facet block in October 2010,[7] which Mr Scott underwent in November 2011. 

[16] Dr Webster also recommended, in June 2011, a transverse lumbar interbody fusion or a posterior lumbar interbody fusion at L5/S1, if Mr Scott felt that his pain symptoms were worsening.  Mr Scott did not elect to undergo that procedure.  In September 2011, Dr Webster advised Mr Scott to continue with core stabilisation exercises, weight loss and psychotherapy.

[17] When the time limit expired after three years in April 2011 Mr Scott had, then, suffered recurring symptoms for some years albeit, it appears, with periods of respite; undergone several forms of minor surgical intervention and a range of various treatments; and, on Dr Webster’s evidence, been told that if the microdiscectomy did not succeed the next available step involved an invasive, spinal fusion procedure.

[18] Mr Scott’s symptoms persisted, and he undertook swimming and physiotherapy in 2012.  He asked his GP to issue a medical certificate to suspend his gym membership in July 2013.  That certificate states that Mr Scott ‘has been advised to cease all physical training pending further investigations and treatment’ for his ‘complex back issues’,[8] but it is unclear who gave that advice, and Mr Scott attests to having requested that certificate himself ‘when things really quite significantly deteriorated’.[9] 

[19] He sought assistance, in the nature of treatment and exercise, from a musculo-skeletal therapist in August 2013.

[20] Mr Scott maintains that he was first alerted to the extent of his injuries, and the possibility of a personal injuries claim, after receiving certain advice from Dr Webster in September 2013.  Dr Webster had referred Mr Scott for an MRI of his lumbrosacral spine and for a whole body bone scan, both of which were performed on 12 September 2013. 

[21] Dr Webster’s advice following those tests was to the effect that Mr Scott had ‘failed surgery syndrome’; that the microdiscectomy and rhizolysis procedure performed by him on Mr Scott in July 2009 had been unsuccessful; and, that Mr Scott’s remaining option, the spinal fusion, would be invasive, was not guaranteed to reduce his symptoms, and carried significant risks.

[22] Mr Scott claims that it was upon receiving this information that he became aware that his condition would be permanent, rather than manageable; that it would affect his future employment and quality of life more generally; and, that he may have a viable legal claim. 

[23] He first sought legal advice about commencing legal proceedings on 15 November 2013.

Mr Scott’s employment, educational and personal history

[24] It is relevant, and necessary, to consider how Mr Scott alleges his injury has impacted upon his employment and education since April 2008.

[25] He had commenced a part-time Masters of Public Health degree in 2006.  From 2006, he worked at the Centre for Military and Veterans Health on a part-time contract for 10 hours a week, in a clinical data extraction role.  In 2007, he also obtained full-time employment with the same employer as a chief interviewer, working 38.5 hours a week, plus on average around 10 hours of overtime a week.  Mr Scott says that he would ordinarily complete the work required for his full-time contract, but saw the part-time contract as a ‘casual job… there if [he] … wanted to earn some extra’ on top of what he received for his full-time hours, and that he did not usually perform ‘very much’ of that additional work.[10]

[26] Immediately following the slip and fall at Ipswich Hospital in April 2008 Mr Scott advised his employer that he was unable to work, and claimed annual leave, sick leave, and time in lieu.  Those entitlements under his full-time contract were exhausted by mid-June 2008.  He had performed his 10 hour part-time contract from home from some point in May 2008, but his employer requested that he resume working part-time at the premises from mid-June 2008. 

[27] Mr Scott did so, but ‘found it difficult to concentrate and work with other co-workers’.[11]  He resigned from both roles in August 2008 confident, he said, that his employer had made it clear that it was ‘open to [him]’ to return to work on a new contract once his symptoms had improved.[12]  Mr Scott also deferred his Masters program, in August 2008.

[28] Within four months of his accident, then, Mr Scott had apparently been obliged to give up his full-time work and temporarily abandon his studies because of back symptoms.  It was also within this period, it will be remembered, that a specialist orthopaedic surgeon diagnosed a disc protrusion and recommended a spinal decompression.

[29] In cross-examination Mr Scott revealed a number of further matters related to his work, education and personal circumstances which had not been mentioned in the affidavit he filed in support of this application.

[30] First, despite having sworn in his affidavit that he had ‘not returned to paid employment’,[13] Mr Scott said that he had in fact worked in a casual, paid capacity as a carer for an elderly gentleman for ‘maybe eight months or so’ in 2012 or 2013.[14]

[31] Secondly, he presently receives a disability pension and, before that, was in receipt of a carer’s pension for a period of time when he was caring for his mother until around the time she went in to a nursing home in early 2011.[15]

[32] Thirdly, Mr Scott suggested that although he may have been physically capable of returning to work after his mother went in to care in early 2011, he was not mentally capable of doing so.  He said that when he applied for the disability pension Centrelink organised discussions with someone to assess his mental capacity to return to full-time work, and that the outcome of those discussions was that he was not ready.[16]

[33] Fourthly, Mr Scott has resumed his studies.  In his affidavit, Mr Scott explains that he took a Diploma in Public Health in August 2010, hoping to later finish his Masters.[17]  He had applied to do that, he said, in early or mid-2013 but was unable to because of administrative complications.[18]  He said that he has, since the beginning of 2014, instead been working towards completing his Honours year from a previous degree completed at Deakin University.[19]

Extension of limitation period under s 31 LAA

[34] In order for the limitation period to be extended so as to enable Mr Scott to commence his action he must prove, first, that some ‘material fact of a decisive character relating to the right of action was not within [his] means of knowledge’ before the expiry of the limitation period (s 31(2)(a)); and, secondly, that there is some evidence to establish that right of action (s 31(2)(b)).

[35] The respondent concedes that Mr Scott has a prima facie cause of action for the purposes of s 31(2)(b), but argues that his application must fail on all three elements of the first part of the test, as it is set out in s 31(2)(a) of the LAA, and as some of the terms in it are defined in s 30.[20]  The respondent contends that the facts upon which Mr Scott purports to rely were neither material nor of a decisive character; and that, even if they were, they were in any event within Mr Scott’s means of knowledge.

[36] Applications of this kind require what Thomas JA has previously described as a ‘step-by-step approach’ – considering, first, whether the fact(s) relied upon were material; if so, whether they were of a decisive character; and then, if they were, whether they were within the applicant’s means of knowledge before the specified date.[21] 

[37] Section 30 defines each of those elements in greater detail and the relevant parts of that section are included in the discussion of each limb, in turn, below.

‘Material facts’

[38] Section 30(1)(a) sets out a number of factors touching the question whether a fact is material for the purposes of s 31(2)(a).  A material fact can include the nature and extent of an injury, known to have been suffered: s 30(1)(a)(iv).  That is what is alleged to be the case here. 

[39] An applicant must show that there is a new fact which has shifted the applicant’s perception of the injury and its extent such that, without knowledge of it, they would not have appreciated the viability of commencing a proceeding.[22]  Classically, these are cases where the applicant discovers that his or her ‘condition is much worse than initially considered, including the fact that the applicant’s capacity to carry out employment might be significantly affected’.[23]

[40] Mr Scott argues that his material fact of a decisive character is that, until his condition deteriorated in 2013, precipitating his appointment with Dr Webster on 30 September 2013, he was unaware that his condition was permanent, rather than manageable; or, of the impact that it would have upon his ability to return to work.

[41] The first part of that contention requires a finding that Mr Scott’s symptoms had, in fact, deteriorated in 2013.  The respondent points to gaps in Mr Scott’s evidence which, it argues, tell against that conclusion.  Although Mr Scott claimed in cross-examination that he was ‘in a lot of pain’ and his condition had ‘significantly deteriorated’ by September 2013,[24] he did not depose in his affidavit that his condition worsened acutely in that year; rather, he said that it gradually worsened from mid-2010.[25] 

[42] Mr Scott also claimed, during his cross-examination, that there had been a catalytic incident at Stafford City where he suddenly suffered severe pain that was so disabling he required assistance from a stranger to use public transport.[26]  The date of this incident was not provided, and there is no evidence corroborating it.

[43] The difficulty confronting Mr Scott is that the evidence points to a continuous stream of medical consultations and procedures, alongside other treatments such as physiotherapy, and suggests a reasonable inference that Mr Scott was suffering pain to a greater or lesser degree, most of the time, from the day the incident occurred. 

[44] He spoke of improvements at some junctures, such as following the guided root block and the microdiscectomy and rhizolysis procedure.  However, his evidence suggested he would inevitably see his symptoms return, and that he would then seek alternative treatments.  That, coupled with the lack of clear evidence of an acute deterioration in 2013, suggests that his level of pain had fluctuated since the date of his injury in 2008, but never entirely abated or disappeared – or, at least, done so for a period which might reasonably indicate that he was better.

[45] The respondent also argues that there is no evidence that Dr Webster explicitly told Mr Scott that his injury was permanent, or that it meant that he would not be able to return to work, during the consultation on 30 September 2013.  Mr Scott’s solicitor contacted Dr Webster for copies of medical records to clarify what was said during that appointment, but received no response.  However, she attests that Mr Scott informed her after a more recent consultation with Dr Webster, on 2 September 2014, that the doctor had confirmed that he did not have those records but recalled their discussion – and, by implication, confirmed it.[27] 

[46] Mr Scott deposes that the discussion involved Dr Webster telling him that he was suffering from failed surgery syndrome but had the option of undergoing a spinal fusion procedure with, however, no guarantee of any improvement in symptoms and a risk of further operation.  

[47] This advice, it is said, meant that Mr Scott became aware for the first time of the permanency of his condition and its impact on his employment.[28] 

[48] That is a reasonable inference to draw from learning that invasive surgery is all that might now be offered, and that it carried both significant risks and no guarantee of alleviating ongoing pain.  It was a ‘material fact’ which certainly had the capacity to affect Mr Scott’s perception of his injury.

[49] The conclusion is also supported by Mr Scott’s apparent confidence, prior to 30 September 2013, that he would be able to return to work full-time.  That confidence was based on a combination of assurances given by his employer that he would be rehired as a supervisor and, more importantly, on his belief that his pain could ultimately be managed.  The extensive evidence of Mr Scott’s attempts to relieve his pain is testament, in a sense, to that belief.  His counsel also pointed to the further education he undertook to increase his likelihood of employment in his field once his pain had decreased, and his evidence that he did not seek legal advice earlier because of his belief that the pain would resolve.

[50] His evidence also suggests other unrelated reasons for his scaled-back employment.  Mr Scott explained that his resignation from full-time employment in 2010 was partly due to his pain and irritability but, also, so that he could act as his mother’s primary carer.  He claims that his disability pension was granted mostly because of his psychiatric troubles, and only ‘in a very small part’ because of his back injury.[29]  Certainly, medical records from his GP reveal an extensive history of psychiatric issues.[30]  He attributed his particular difficulties at that time to his mother’s illness, his brother-in-law’s death, and his sister’s struggle with brain cancer.[31]

[51] Mr Scott gave much of the detail about those things for the first time during cross-examination.  His evidence nonetheless paints a picture of a man who was experiencing considerable difficulties in his personal life.  It is unsurprising that he attributed his inability to work full-time in part to his pain from his injury, but largely to those other problems, particularly in light of his belief that his physical pain could be managed, and was not permanent. 

[52] Being told, in September 2013, that further surgery is all that could be offered for his pain, but with no guarantee of success, can reasonably be seen as material. 

[53] Mr Scott’s evidence was, intending no disrespect, disjointed and presented piecemeal.  While the evidence leaves it uncertain whether he knew, or ought to have known at some earlier time, that his injury was likely to involve quite serious medical treatment and would also likely affect his ability to work, I think he should be given the benefit of the doubt on this first arm of the test.  As will be seen, however, it makes little difference; his extensive medical history – plainly, associated with ongoing symptoms – means he cannot surmount the other elements of the statutory hurdle which confronts him.

‘Decisive character’

[54] Whether a material fact is of a decisive character is ascertained with reference to s 30(1)(b), which provides:

‘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 …’.

[55] ‘Appropriate advice’ is defined in s 30(2) as meaning ‘advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts’.

[56] The High Court has interpreted the test of ‘decisive character’ as looking to ‘the response of a reasonable person’ to obtaining knowledge of a material fact.[32] 

[57] Mr Scott’s otherwise difficult personal circumstances are relevant to this assessment insofar as they may affect the question of what was reasonable, for him, at that time: Keane JA (as he then was) has noted that ‘it is not the policy of the courts in the application of s 31 of the Act to penalise an injured person who makes a reasonable decision to try to get on with life rather than a decision to litigate upon a questionable basis’.[33]  On the other hand Mr Scott’s mature age, intelligence and high level of education must also factor into that assessment.

[58] The earlier recital of Mr Scott’s medical history and personal circumstances compel the conclusion that a reasonable person in his position would, indeed must, have known a considerable time before 30 September 2013 that he may have a viable claim against the hospital. 

[59] He had consulted various doctors, specialist surgeons and other professionals to try to alleviate his pain, which appears to have responded to some treatments, but continued to fluctuate.  Despite his insistence that he had not been told by Dr Webster of the risk to him that previous procedures would fail, the evidence suggests that he was.  He had been informed that he may need a more invasive spinal fusion if his symptoms worsened by Dr Webster.  He had to cease full-time work in 2010 partly, at least, because of the pain caused by his injury.  All of those events had occurred before the end of 2011.

[60] The impact of his injury by that stage is clear from his extensive medical history, and its at least partial effect on his employment.  Prior to the consultation on 30 September 2013, there were sufficient material facts of a decisive character for a reasonable person in Mr Scott’s position to be alert to the prospect that there may be a worthwhile claim, and to have sought appropriate legal advice. 

[61] In those circumstances, the discovery of a new fact, ‘although it might be described as material, could not be said to be of a decisive character’.[34]  That is because once an applicant

‘gains knowledge of sufficient material facts of a decisive character to satisfy the definition in [s 30(1)(b)] he cannot say that any further fact is a “material fact of a decisive nature relating to the cause of action” under s 32(1)(a), no matter how additionally persuasive that fact may be’.[35]

[62] The information Mr Scott received from Dr Webster on 30 September 2013, therefore, in light of his long plight to eliminate his pain, cannot be seen as decisive in character.

‘Means of knowledge’

[63] The material fact that Mr Scott’s condition is permanent and is likely to affect his future employment was also, the evidence shows, within his means of knowledge before that appointment.

[64] Facts are not within an applicant’s means of knowledge at an earlier time if the person did not know of the fact at that time, and, ‘as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time’: s 30(1)(c). 

[65] Whether an applicant has taken all reasonable steps ‘can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant’.[36] 

[66] Where the alleged material fact of a decisive character is the discovery of the seriousness of a personal injury, whether the

‘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’.[37]

[67] Mr Scott denies knowledge of those facts before 30 September 2013.  It is difficult to accept that he was unaware of the extent of his injury and its impact on his ability to work, even if only by inference, given the large number of appointments he attended and the procedures he had undergone.

[68] (Mr Scott also failed to address Dr Webster’s recent evidence that it was his usual practice to discuss future work capacity with patients at an initial attendance.  The respondent invites me to draw a Jones v Dunkel[38] inference that, had Mr Scott given evidence on that matter, it would not have assisted him.)

[69] What Mr Scott did or did not know is, in my view, of little import because the evidence also compels the conclusion that he did not take all reasonable steps, in any event, to ascertain the extent of his injury.  Given the number and frequency, and nature, of the consultations and treatments Mr Scott attended and sought, it would have been reasonable (and sensible, and appropriate) for him to request that the degree of permanency of his injury, if any, and its likely impact on his capacity to work be discussed on any one of those many occasions – and, indeed, surprising for him not to do so.  His recurring symptoms after his numerous and varied treatments would have alerted any reasonable person to the possibility that further, more invasive procedures may have to be performed and that things were not, as it were, promising or rosy.

[70] It was not reasonable for Mr Scott not to take some steps to ascertain how his injury would impact on his goals, given his expressed determination to further his education, to return to work and to resolve his symptoms.  There were countless opportunities for him to instigate that discussion.  According to Dr Webster, it was most likely initiated by him at Mr Scott’s first visit in 2009. 

[71] Mr Scott has failed to prove this third part of the test in s 31(2)(a), in addition to the second.  The evidence establishes that it was well within Mr Scott’s means of knowledge, inside the statutory limitation period, that his injury and its consequences were of sufficient seriousness to warrant taking legal advice and instigating proceedings.  This is a case in which an applicant has, regrettably, failed to take appropriate steps in his own interests in circumstances where the warning signs were vivid, and compelling.  In the result, he has not established that the statutory discretion ought to be exercised in his favour.

Prejudice

[72] Given my conclusion that Mr Scott has not made out the first limb of the test in s 31(2)(a), it is not necessary to consider whether prejudice to the respondent ought to curtail the exercise of the discretion to extend the limitation period. 

Conclusion

[73] Mr Scott has failed to prove that the information regarding his injury’s permanency and its impact on his capacity to work was of a decisive character and outside his means of knowledge, even though it may fairly be seen as a material fact.  The application to extend the limitation period must be refused.