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Lee v Star Aged Living Ltd[2023] QSC 49

Lee v Star Aged Living Ltd[2023] QSC 49

SUPREME COURT OF QUEENSLAND

CITATION:

Lee v Star Aged Living Limited [2023] QSC 49

PARTIES:

NANCY FAY LEE

(applicant)

v

Star aged living limited

(respondent)

FILE NO/S:

SC No 10446 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application for Extension of Time

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

10 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2021; 16 November 2021

JUDGE:

Mellifont J

ORDER:

  1. The application to extend time is granted.
  2. I will hear the parties as to costs.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the applicant lodged a Notice of Claim pursuant to the Workers’ Compensation and Rehabilitation Act 2003 after the expiration of the limitation period – where the applicant was employed as an Assistant in Nursing at the respondent’s residential care facility – where the applicant alleges she sustained a back injury at work – where the applicant seeks an extension of the limitation period to a date within one year of the date at least one material fact of a decisive character relating to the injury allegedly came to her knowledge – whether there was a material fact relating to the cause of action not within means of the respondent’s knowledge – whether there was evidence to establish the right of action apart from a defence founded on an expiration of the period of limitation – where the respondent submits that the application should not be granted because the delay has caused significant prejudice – where the respondent submits that evidence has been lost or destroyed – whether prejudice to the respondent would render a fair trial unlikely

Limitation of Actions Act 1974 (Qld), s 11, s 30, s 31

Workers’ Compensation Rehabilitation Act 2003 (Qld), s 236, s 202, Sch 5

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied

Castillon v P & O Ports Limited (No 2) [2008] 2 Qd R 219, cited

Castlemaine Perkins v McPhee [1979] Qd R 469, cited

Dick v University of Queensland [2000] 2 Qd R 476, cited

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, cited

Gail Shaw v Broadbent & Anor [2010] QSC 425, cited

Gillespie v Swift Australia P/L [2009] QCA 316, cited

Healy v Ferndale Pty Ltd [1993] QCA 210, applied

Hertess v Adams [2011] QCA 73, cited

Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (In Liquidation) & Anor [2009] QCA 352, cited

Kambarbakis v G and L Scaffold Contracting P/L [2008] QCA 262, cited

Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, cited

NF v State of Queensland [2005] QCA 110, cited

Pizer v Ansett Australia Ltd [1998] QCA 298, cited

State of Queensland v Stephenson (2006) 226 CLR 197, cited

Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, cited

Watters v Queensland [2001] 1 Qd R 448, cited

Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, applied

Wrightson v State of Queensland [2004] QSC 218, cited

COUNSEL:

C C Heyworth-Smith QC and R Hii for the applicant

B F Charrington for the respondent

SOLICITORS:

Kare Lawyers for the applicant

Cooper Grace Ward for the respondent

TABLE OF CONTENTS

Introduction5

Grounds on which Ms Lee seeks extension 6

Grounds on which SAL resists the application7

The Nature of the Claim7

The Defence of the Claim9

Short form chronology 9

Partial summary of facts and evidence9

ISSUE ONE: IS THERE A MATERIAL FACT RELATING TO CAUSE OF ACTION NOT WITHIN MEANS OF KNOWLEDGE UNTIL AFTER 19 DECEMBER 2017 & IF SO, WAS IT OF A DECISIVE CHARACTER13

General principles13

When will a fact be material?13

When will it be of a decisive character? 15

Alleged material fact one: Ms Lee knowing that it was unlikely that she would be able to work in any capacity17

Introduction 17

Materiality 17

Was it within her means of knowledge at a time before the start of the third year of the limitation period? 17

Was the Notice of Claim filed within 12 months of the acquisition of knowledge?22

Decisive character22

Is the new knowledge actually a legal conclusion to be gleaned from facts, rather than knowledge as to facts22

Alleged material fact two: Becoming aware that the pain post 27 March 2019 was sequelae of her 2019 work injury not medical negligence22

Introduction 22

Materiality 22

Was it within her means of knowledge at a time before the start of the third year of the limitation period? 23

Was the Notice of Claim filed within 12 months of the acquisition of knowledge?23

Is the new knowledge actually a legal conclusion to be gleaned from facts, rather than knowledge as to facts 23

Alleged material fact three: becoming aware that her claim for damages was commercial by reason of damages being significantly due to 2015 work injury, rather than pre-existing work injury 23

Introduction 23

Materiality24

Was it within her means of knowledge at a time before the start of the third year of the limitation period? 24

Was the Notice of Claim filed within 12 months of the acquisition of knowledge?24

Decisive character24

Is the new knowledge actually a legal conclusion to be gleaned from facts, rather than knowledge as to facts25

Ms Avery’s evidence on “decisive character” .25

ISSUE TWO: IS THERE EVIDENCE TO ESTABLISH THE RIGHT OF ACTION APART FROM A DEFENCE FOUNDED ON AN EXPIRATION OF THE PERIOD OF LIMITATION? 27

ISSUE THREE: EXERCISE OF DISCRETION. 27

Issue of prejudice to SAL 27

General principles in respect of the discretion 28

The exercise of the discretion in the context of the rationales for the existence of limitation periods 29

Prejudice as a factor in the exercise of the discretion 31

When is the question of prejudice to be examined? 31

Gravamen of the submissions of the parties on the exercise of discretion 32

Who’s who? 32

The evidence in respect of prejudice33

Hearsay reliance by SAL of communications by and with Mr Qualtrough 52

Resident care plans/special manual handling requirements, and availability of slide sheets53

Staff training records 54

Client specific monitoring worksheets.55

Safety audit reports and schedules 56

Workplace Health and Safety Officer Hazard and Safety reports56

Care manager notebooks 56

Co-worker details and supervisor/manager details – other  witnesses 56

Bed too low57

Conclusion58

Order 58

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for extension of a limitation period in a personal injuries matter.
  2. [2]
    Ms Lee was employed by Star Aged Living Limited (SAL) as an Assistant in Nursing.  Ms Lee alleges that on 19 December 2015 she sustained a back injury at work as a result of workplace lifting duties. Ms Lee intends to claim damages for personal injury from SAL.
  3. [3]
    If the application is granted, WorkCover, as the statutory insurer, will defend the claim on behalf of SAL.
  4. [4]
    Ms Lee was in receipt of Workers’ Compensation from 1 April 2016 to 1 September 2020, at which time she was issued a Notice of Assessment and the compensation ceased. 
  5. [5]
    Section 11(1) of the Limitation of Actions Act 1974 (Qld) (LAA) provides that an action for damages for negligence, or breach of duty, in which damages claimed by the plaintiff consist of, or include, damages in respect of personal injury, shall not be brought after the expiry of three years from the date on which the cause of action arose.
  6. [6]
    Three years from the date on which cause of action arose is 19 December 2018. So, pursuant to s 11(1), and absent an extension, Ms Lee’s limitation period expired on 19 December 2018.
  7. [7]
    By application filed 2 September 2021, Ms Lee seeks an extension of the limitation period pursuant to s 31 of the LAA.
  8. [8]
    Section 31 provides:

31 Ordinary actions

  1. (1)
    This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
  1. (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—
  1. (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
  1. (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.

  1. (3)
    This section applies to an action whether or not the period of limitation for the action has expired—
  1. (a)
    before the commencement of this Act; or
  1. (b)
    before an application is made under this section in respect  of the right of action.
  1. [9]
    In this matter, Ms Lee lodged a Notice of Claim on 6 January 2020, a little over a year after the expiration of the limitation period. This is the date to which an extension of time is sought. This is because Ms Lee lodged the Notice of Claim on 6 January 2020. Time stops running when Ms Lee lodges a Notice of Claim and the insurer (here, WorkCover), waives compliance with s 275 of the Workers’ Compensation Rehabilitation Act 2003 (Qld). Compliance was waived on 6 January 2020.

Grounds on which Ms Lee seeks extension

  1. [10]
    Ms Lee submits that an extension should be granted because:
    1. (a)
      She did not became aware of at least one material fact of a decisive character until after 19 December 2017 (that is, after the commencement of the 3 year limitation period); 
    2. (b)
      That fact or facts was/were not within her means of knowledge until after 6 January 2019 (that is, no longer than one year before the date to which an extension is sought) 19 December 2017;
    3. (c)
      There is evidence to establish the right of action;
    4. (d)
      The extension sought is within one year of the date the material fact came to Ms Lee’s knowledge; and
    5. (e)
      The Court should exercise its discretion to extend time there being no evidence of actual prejudice of a significant kind to the respondent that would preclude the granting of the extension.[1]  
  2. [11]
    The three facts relied upon to ground the application are:
    1. (a)
      Ms Lee found out it would be unlikely she would continue to work in any capacity;[2]
    2. (b)
      Ms Lee’s solicitors (engaged on 24 December 2019) obtained a report by Dr McEntee, following Ms Lee’s back surgery (lumbar fusion) on 27 March 2019 (intended to treat the original back injury of 19 December 2015), which stated Ms Lee had developed a sacral endplate fracture (a known complication of the lumbar fusion). Ms Lee, therefore, found out that the pain that amplified one month after her surgery was not a consequence of medical negligence but of the original back injury;[3] and
    3. (c)
      Ms Lee obtained a significant volume of material during the course of the WorkCover claim that showed a significant component of her impairment was caused by the 19 December 2015 event, as opposed to a pre-existing degeneration.[4]
  3. [12]
    Ms Lee submits these material facts largely speak to the commerciality of the action,[5] that is, whether bringing a common law claim would be worthwhile.

Grounds on which SAL resists the application

  1. [13]
    SAL resists the application on the following grounds:
    1. (a)
      The material matters relied on by Ms Lee are not ‘material facts’ but rather ‘legal conclusions’ that can be drawn from material facts, which were already within Ms Lee’s possession within the normal limitation period;
    2. (b)
      SAL contends that, had Ms Lee undertaken reasonable enquiries within the limitation period, Ms Lee would have been possessed with the critical mass of information that is required to provide her with knowledge that she had a worthwhile right of action; and
    3. (c)
      If the extension is granted, SAL has demonstrable prejudice associated with the loss or destruction of critical documents, and the diminution of recollection of relevant witnesses, to defend a claim for damages by Ms Lee.[6]

The Nature of the Claim

  1. [14]
    By statement of claim, Ms Lee alleges that: 
    1. (a)
      She was working within her usual duties as an Assistant in Nursing;
    2. (b)
      She was working with colleagues to care for residents at the workplace;
    3. (c)
      Her colleagues advised her that there were no slide sheets available to assist in moving residents;
    4. (d)
      She did not know where to obtain slide sheets in the workplace;
    5. (e)
      She moved residents without a slide sheet; and
    6. (f)
      While moving residents, she began to experience back pain.
  2. [15]
    As a consequence of the incident she suffered:
    1. (a)
      Discal protrusion at L4/5 causing cauda equina syndrome;
    2. (b)
      Incisional hernia following corrective surgery; and
    3. (c)
      Adjustment disorder with mixed anxiety and depression.
  3. [16]
    Ms Lee alleges that the injuries were caused by the negligence and/or breach of contract of SAC, particularised as follows:
    1. (a)
      Failing to provide Ms Lee with reasonable plant and equipment, namely any slide sheets;
    2. (b)
      Failing to ensure she used slide sheets to move residents;
    3. (c)
      Failing to take reasonable care for the safety of Ms Lee;
    4. (d)
      Failing to pay due care and attention for the safety of Ms Lee;
    5. (e)
      Exposing Ms Lee to a risk of injury which it knew or ought to have known to have been in existence and which would have been avoided by the exercise of reasonable care;
    6. (f)
      Failure to ensure that any, or any reasonable risk assessments of the tasks undertaken were conducted to identify any potential hazards to which the plaintiff was exposed; and
    7. (g)
      Failing to comply with its obligations pursuant to the provisions of the work Health and Safety Act and associated regulations and codes/standards of practice.
  4. [17]
    Ms Lee alleges that SAL is vicariously liable for the negligence of its employees, servants and/or agents.  
  5. [18]
    Ms Lee alleges that she:
    1. (a)
      Has suffered and will continue to suffer pain and suffering and loss of amenities;
    2. (b)
      Has been left with permanent injuries;
    3. (c)
      Has required and will require future medical and hospital treatment;
    4. (d)
      Has incurred special damages and will do so in the future;
    5. (e)
      Has suffered and will in the future suffer a loss of income;
    6. (f)
      Has suffered and will in the future suffer a loss of superannuation benefits;
    7. (g)
      Has been restricted in her ability to undertake pre-incident recreational activities; and
    8. (h)
      Has required and will in the future require the use of aids and equipment to manage her injuries.
  6. [19]
    SAL submit that, by reference to the affidavit of Ms Lee, the real complaints made against it are that:
    1. (a)
      Slide sheets were not provided;
    2. (b)
      The co-worker on the night of the incident was not properly trained; and
    3. (c)
      That the bed was too short for Ms Lee’s height.[7]

The Defence of the Claim

  1. [20]
    The Defence of the claim states, inter alia, that Ms Lee had a duty to take precautions against the risk of foreseeable risks of injury.
  2. [21]
    In response to Ms Lee’s allegation of fact, allegations of negligence and breach of contract, and causation,[8] SAL does not admit the allegations, asserting they cannot be admitted, on the basis that:
    1. (a)
      It no longer operates or trades, and has sold the subject business;
    2. (b)
      Has no records relating to the allegations;
    3. (c)
      Has not been able to locate any witnesses in relation to the allegations as at the date of the defence;[9]
    4. (d)
      Is prejudiced from any defence given the time which has elapsed since the date of the alleged event; and
    5. (e)
      Remains uncertain as to the truth or falsity of the allegations.
  3. [22]
    The Defence also asserts that Ms Lee is not totally incapacitated from employment and would likely have been incapacitated from employment as a nurse in any event by reason of her pre-existing degenerative disc disease.  

Short form chronology

  1. [23]
    Ms Lee was injured at work on 19 December 2015. This is the date on which the limitation period commenced to run.
  2. [24]
    On 19 December 2017, the year last preceding the expiration of the period of limitation commenced.
  3. [25]
    On 19 December 2018, the limitation period expired.
  4. [26]
    On 6 January 2020, time stopped running on the lodgement of a Notice of Claim. As such, 6 January 2019 marks the date one year before time stopped running.
  5. [27]
    She had lumbar fusion surgery to treat that injury on 4 January 2016.
  6. [28]
    On 20 September 2020, Ms Lee was issued with a Notice of Assessment and compensation ceased.
  7. [29]
    On 2 September 2021, Ms Lee filed an application to extend the limitation period.  

Partial summary of facts and evidence

  1. [30]
    Ms Lee was born on 22 July 1985. She completed High School at Windaroo Valley State High School in 2002 at the age of 17. She obtained a Certificate III in Aged Care from the Australian Professional Training Institute. 
  2. [31]
    Prior to working in the Aged Care industry, she held a number of unskilled positions involved in manual handling and lifting.
  3. [32]
    She was employed by SAL as an Assistant in Nursing from approximately April 2014 until December 2015. Prior positions as an Assistant in Nursing were at three other places of employment: for approximately 15 months from 2007 to 2009; for approximately 17 months from 2009 to 2011; and for approximately 2 years and 7 months from 2011 to 2014.
  4. [33]
    Ms Lee describes the circumstances in which she alleges she sustained her back injury as follows.
  5. [34]
    Ms Lee was working a shift between 2.00pm and 10.00pm on 19 December 2015.  It was her first shift back from maternity leave.  She does not recall at what time she injured her back.
  6. [35]
    During the course of her shift she was required to move residents however there were apparently no slide sheets available for her to use and she was told by her partner that “we did not have any slide sheets”.  Some of the residents were in beds that were too low for Ms Lee to comfortably access and her partner was considerably shorter than her.  She recalls that she was working with a poorly trained colleague who did not assist her with moving a resident and who did not use slide sheets even when they were available. 
  7. [36]
    She recalls that throughout the day she felt pain gradually increasing in her lumbar spine and buttocks.  She completed her shift and then went home. The next morning she woke up feeling an increase in pain in her back and leg. She did not go to work and she spent the day stretching in order to relieve the pain. The pain got worse over the next few days so she contacted a general practitioner at the Beaudesert Family Practice for a home visit on 23 December 2015. The general practitioner prescribed her some pain medication and advised her to rest. 
  8. [37]
    Despite resting the symptoms continued to get worse. She started to experience numbness down both legs. On 30 December 2015, she went to the Beaudesert Family Practice and was referred for a CT scan of her lumbar spine. 
  9. [38]
    She deposes that after her injury on 19 December 2015, she expected that her pain would improve with time and rest as it had done in the past.  She tried to manage her symptoms herself at home until the numbness progressed down her legs and groin area and worsened and the pain became unbearable. She was also concerned that she could not void her bladder.  Having been advised to seek medical treatment if she could not pass urine, she went to the Logan Hospital.
  10. [39]
    After some delays with her CT scan, she was diagnosed with cauda equina syndrome due to L4-5 disc herniation.
  11. [40]
    She had her first surgery at the Princess Alexandra Hospital on 4 January 2016 where the surgeons performed a laminectomy and decompression of her L4-5 disc, central canal and existing nerve roots.
  12. [41]
    On 7 January 2016, she made a claim for WorkCover benefits.  
  13. [42]
    She participated in physiotherapy and felt herself getting stronger.  She was able to participate in a gym strengthening programme.
  14. [43]
    Despite her symptoms improving, her treating orthopaedic surgeon, Dr McEntee considered that she would benefit from further surgery.  He first recommended fusions in June 2016 but WorkCover refused his request for funding so she did not go ahead with that surgery at that time.  She does recall being provided with a copy of Associate Professor Richard Williams’ reports.  She knows she did not read them fully because she remembered trying to start reading them and she felt they were beyond her understanding so did not read them any further.
  15. [44]
    Dr McEntee then resubmitted to WorkCover a request for further surgery approval again in October 2018 because she was continuing to suffer pain and she told Ms Lee that he was worried about future complications if she did not have the surgery.
  16. [45]
    Based on what WorkCover told her, she understood that Dr McEntee’s second request to WorkCover to fund the L4-5 and L5-S1 surgery was approved but that she would need to pay for the L3-4 disc replacement herself.
  17. [46]
    On 27 March 2019, Dr McEntee performed a lumbar hybrid procedure with anterior lumbar interbody fusions of L4-5 and L5-S1 and disc replacement at L3-4.
  18. [47]
    Ms Lee was provided a copy of a report of Dr McEntee dated 12 September 2019 by her solicitors. She can see from that report that as a result of the surgery, Dr McEntee reported that she had developed a sacral end plate fracture which Dr McEntee acknowledged was a known complication of lumbar fusion. She does not recall Dr McEntee explaining this to her at the time of the surgery.
  19. [48]
    Since the surgery on 27 March 2019, her pain improved somewhat but her mobility has remained the same from where it was prior to the March 2019 surgery. In April 2019, she began experiencing leaking from her surgical wound and swelling in her abdomen and pain. She did some of her own research and suspected it sounded like she had an incisional hernia from the surgery. In July 2019 her general practitioner confirmed her suspicions and diagnosed her as having an incisional hernia which had occurred as a result of the surgery.
  20. [49]
    It was a combination of her belief that the complications from her incisional hernia may have been a result of medical negligence and her understanding that she would need legal advice when her WorkCover claim ended which prompted her in late 2019 to seek legal advice about what her rights would be after her WorkCover claim had closed.  As has been noted above, Ms Lee’s WorkCover statutory benefits continued up until 20 September 2020 at which time a Notice of Assessment was issued and compensation ceased.
  21. [50]
    Ms Lee deposed that she knows now that she cannot return to work as an Assistant in Nursing. 
  22. [51]
    She acknowledges that she did not read most of the reports obtained by WorkCover as she did not understand them to be relevant for her to consider other than a report of Dr Dodd on 23 October 2017.  She recalls reading that report because she understood it would determine her percentage impairment which would be relevant to WorkCover’s decision as to whether they would continue paying her weekly benefits.
  23. [52]
    She cannot recall which medical advice alerted her to being unable to return to work as an Assistant in Nursing.
  24. [53]
    She does remember that, though, when she realised she could not return to work, she reached out to a Facebook support group for people with narcolepsy. This was on 29 August 2017. This was to ask what they thought she could do by way of work given her physical disabilities and her narcolepsy. At that time Ms Lee thought she still might be able to work in another capacity. When she began discussing study options with WorkCover she started to realise that working in an alternative capacity would be beneficial. WorkCover was suggesting TAFE courses such as bookkeeping. She believed that she would not be able to do that kind of work because she would not be able to stay awake due to her narcolepsy. However her hope was that with the further surgery on 27 March 2019, her back pain and mobility would improve enough that she could work in a role which was sufficiently physical for her to stay awake without involving heavy manual lifting.
  25. [54]
    Ms Lee is inexperienced with court processes, litigation and the law generally.
  26. [55]
    An occupational therapy report in this case reflects that Ms Lee has limited reading and writing ability.  Until this proceeding, Ms Lee has not had any involvement or experience with lawyers or court litigation before.
  27. [56]
    She recalls that in about early 2017 or 2018, approximately one to two years after the incident, her parents urged her to speak to a lawyer about medical negligence because they thought that it might have been negligence that reports went missing. Her parents also expressed concern to her that the diagnosis and hospital admissions had been mismanaged. She googled “solicitor” and telephoned the number of a local lawyer based in Jimboomba to discuss any potential medical negligence claim. She does not recall who she spoke to or the name of the law firm but recalls the call was short and that male she spoke to told her that making a claim against a large hospital would too hard. She told them that she was on WorkCover and she was told to keep a diary of her symptoms.  The person she spoke to did not say anything about limitation dates or what her rights would be in relation to WorkCover claim or any claim for personal injuries generally (and, as set out above, Ms Lee’s understanding was that she would need legal advice about when her WorkCover claim ended and at this stage her WorkCover claim was still ongoing).
  28. [57]
    She accepted in cross-examination that she did not discuss with him the claim against her former employer in relation to that injury, nor did she discuss at all a claim arising out of her workplace injury.
  29. [58]
    On 29 November 2019, she posted a message on the Beauy Whispers Facebook group page.  That group page is a community page for people living in or working in or visiting the Scenic Rim. She was looking for recommendations for a lawyer who could assist her with her medical negligence and with her WorkCover claim if she needed a lawyer after WorkCover stopped paying her. This evidence indicates that Ms Lee’s understanding was that if she needed a lawyer in respect of her WorkCover claim it was not until after WorkCover stopped paying her.  As we know from the material set out above that did not occur until well after the expiry of the limitation period and in fact some months after the Notice of Claim was filed.
  30. [59]
    She recalled receiving a message from Ms Avery of Kare Lawyers on Facebook Messenger advising Ms Lee that she had seen her post, that she specialised in personal injury law, regularly travelled to Beaudesert and could meet her. She telephoned Ms Avery on 20 December 2019 and explained her incident. 
  31. [60]
    The Notice of Claim was filed shortly thereafter in January 2020.
  32. [61]
    Ms Lee has been experiencing depression consistently since 2016 because of the effect of her back injury and the pain she is experiencing. She tried antidepressant medication for about two weeks but could not tolerate them so she stopped taking any depressants.  As a result of her depression and narcolepsy it was difficult for her to find motivation to do anything, including contact solicitors. In evidence is a report confirming the diagnosis of depression.
  33. [62]
    Ms Lee deposes that:

Until I spoke with Ms Avery, I did not understand what a statutory claim with WorkCover and a personal injury claim for damages were and I still struggle to understand the distinction. I was also not aware of any limitation dates to bring a claim. I had believed that, when my WorkCover claim was closed, if I did not receive a sufficient ‘payout’ from WorkCover, I might a further right to damages. I believed that WorkCover would stop paying me fives years after my accident and that was when I would find out the amount of the ‘payout’ and I would need legal advice about any further rights.

  1. [63]
    As it turned out, WorkCover did stop paying her at approximately five years after her accident.

ISSUE ONE: IS THERE A MATERIAL FACT RELATING TO CAUSE OF ACTION NOT WITHIN MEANS OF KNOWLEDGE UNTIL AFTER 19 DECEMBER 2017 & IF SO, WAS IT OF A DECISIVE CHARACTER

General principles

  1. [64]
    In Do Carmo v Ford Excavations Pty Ltd, Deane J observed that:

The benefit of any extension of the limitation period … is conferred at the cost of a corresponding detriment to the potential defendant in the action.  The legislative policy underlining the sections is plain enough.   It is that the limitation period should be extended only in favour of a person who was, without fault on his part, unaware that he had a worthwhile cause of action until not more than twelve months before the commencement of proceedings.[10] 

  1. [65]
    The effect of the legislation is that time may be extended when knowledge of material facts coincides with the circumstance that a reasonable person with the applicant’s knowledge would regard the facts as justifying and mandating that an action be brought in the applicant’s own interest.[11] As Gummow, Hayne and Crennan JJ stated in State of Queensland v Stephenson:

If this conjunction of circumstances first occurs before the commencement of the last year of the limitation period, no application for an extension can be brought; the applicant has the benefit of at least one year before the limitation period expires and is required to act within that time.  If the conjunction occurs after the commencement of that last year, the court is empowered, if the other criteria in sec. 31 are satisfied, to extend time for one year from the date of that conjunction of circumstances.[12] 

  1. [66]
    In this case, Ms Lee submits that the coincidence of knowledge and circumstance occurred in the twelve months preceding 6 January 2020, the day on which the Notice of Claim to WorkCover stopped time running. 

When will a fact be material?

  1. [67]
    Section 30(2) assists in understanding what might be a material fact. It sets out an inclusive definition in that respect, and provides, relevantly, that:

…..  the material facts relating to a right of action include the following –

….

  1. (iii)
    the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
  1. (iv)
    the nature and extent of the personal injury so caused;
  1. (v)
    the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty.  

When is a fact not within the means of knowledge of the person? (Including consideration of the obligation to take reasonable steps to find out the fact)

  1. [68]
    Whether a material fact is within the means of knowledge of an applicant involves a question of reasonableness. 
  2. [69]
    A fact is only within the means of knowledge when the steady preponderance of opinion or belief of a person who had taken all reasonable steps to ascertain that fact would have believed that that was so.[13]
  3. [70]
    Section 30(2)(c) sets out when a fact is not within the means of a knowledge of a person.   It provides that:

a fact is not within the means of knowledge of a person at a particular time if, but only if –

  1. (i)
    The person does not know the fact at that time; and
  2. (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.  
  1. [71]
    Whether an applicant has taken reasonable steps to ascertain the fact is a question to be considered in the context of the background and circumstances of the particular applicant.[14]
  2. [72]
    In NF v State of Queensland, Keane JA stated 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.[15] (bold added)

  1. [73]
    In Healy v Ferndale Pty Ltd, de Jersey CJ, McPherson JA and Thomas J stated:

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 the 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 affect upon her working capacity. There is no requirement to take “appropriate advice” or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.[16] (bold added)

  1. [74]
    I note, at this juncture, that in the circumstances of this case, I find that it was not reasonable to expect Ms Lee to have taken “appropriate advice” or “ask appropriate advice”.  
  2. [75]
    It is for an applicant to prove that the material fact relied upon would not have been discoverable prior to the critical date if appropriate advice had been sought.[17]

When will it be of a decisive character?

  1. [76]
    The expression “material fact of a decisive character relating to the right of action” is a composite phrase.[18] In State of Queensland v Stephenson, Gummow, Hayne and Crennan JJ stated that:

…. whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial.[19] (bold added)

  1. [77]
    A material fact is not one of a decisive character until a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regards those facts 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 person whose means of knowledge is in question ought, in their interests and taking the person’s circumstances into account, to bring an action on the right of action.[20]
  2. [78]
    Whether that test has been satisfied at a particular point in time is a question for the court.[21]
  3. [79]
    In Wrightson, Helman J observed that the effect of the section:

…. means that even if a claimant could have instituted a claim earlier than the time when a reasonable person would have regarded the facts as showing that he ought to do so, it is only when the reasonable person would regard the facts as showing that he ought to do so that time begins to run under s. 31(2).[22]

  1. [80]
    Section 30(1)(b) provides that:

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 regards those facts as showing –

  1. (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
  2. (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;
  1. [81]
    Section 30(1)(c) involves subjective and objective elements.[23]
  2. [82]
    If, properly advised on the state of the evidence at a particular time, Ms Lee should have pursued an action before the discovery of the material fact, the discovery of the material fact will not be of a decisive character such as to bring it within the section. In Moriarty v Sunbeam Corporation Limited, Macrossan J stated:

In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it.   He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it.[24]

  1. [83]
    In determining whether a fact is of a decisive character, that fact is “not be considered as separate from facts already known”.[25]
  2. [84]
    The quantum of the claim will be relevant: “the question of damages likely to be recovered is properly to be regarded in determining whether the bringing of an action for damages for personal injury is justified.”[26]   
  3. [85]
    The consequences of injury including economic consequences, may be a material fact of a decisive character relating to the right of action.[27]
  4. [86]
    A person, may have regard to the net amount she would receive in determining whether she ought to bother with the risks of litigation and the time and expenses involved.[28]  A newly discovered fact could be regarded as a material fact of a decisive character “if it added substantially to the quantum of damages likely to be recovered”, provided that without the newly discovered fact, the amount would be too small to bother about.[29] 
  5. [87]
    A material fact that simply makes a worthwhile action, “more worthwhile”, will not be of a decisive character. If there was already a critical mass of information within a plaintiff’s knowledge which would have justified the bringing of an action, within the limitation period, then the new fact won’t be of a decisive character.[30]
  6. [88]
    In Pizer v Ansett Australia Ltd, Thomas JA stated:

…when the material fact concerns the nature and extent of personal injury, ... questions of degree are necessarily involved. At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it. At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension … Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff’s knowledge and as to whether the reasonable person contemplated by s. 30(b), endowed with such knowledge and having taken appropriate advice, would have brought proceedings.[31] (bold added, citations omitted)

Alleged material fact one: Ms Lee knowing that it was unlikely that she would be able to work in any capacity

Introduction

  1. [89]
    Ms Lee submits that it was not until after back surgery on 27 March 2019 that she realised that it was unlikely that she would be able to work in any capacity. Prior to that time, she had suspected that she would not be able to return to work as an Assistant in Nursing, but she thought she would be able to return to work in some other capacity.[32] Ms Lee submits that this realisation that she would be unlikely to be able to work in any capacity goes to the commerciality of any cause of action, and is thus a material fact of a decisive character.[33]

Materiality

  1. [90]
    Not being able to return to work at all, compared to not being able to return to certain types of work, is a matter going to “the nature and extent of the personal injury” under section 30(1). I find that becoming aware that she was not likely to be able to return to work at all is a material fact.

Was it within her means of knowledge at a time before the start of the third year of the limitation period?

  1. [91]
    The answer to this question is “no”. 
  2. [92]
    SAL submit, in effect, that Ms Lee knew that she would not be returning to work, or at least, it was within her means of knowledge, at a time before the start of the third year of the limitation period, that is, before 9 December 2017.
  3. [93]
    In that respect, SAL points to a number of matters, including:
    1. (a)
      She knew she had been off work continuously since the date of the accident;
    1. (b)
      Her husband had ceased work, and was on a carer’s pension as her full time carer; and
    2. (c)
      She described high degrees of disability associated with her spinal condition to treating and reporting medical practitioners through the March 2016 to July 2018.  
  4. [94]
    SAL also submits that Ms Lee informed numerous reporters of her understanding that she could not return to work in a manual nursing role or retrain because of her disabilities and narcolepsy, as follows:
  1. a.
    9 May 2016 to Ms Youngberry;
  1. b.
    5 July 2017 to Dr Mistri for insurance forms;
  1. c.
    8 February 2018 to Ms O'Reilly; and
  1. d.
    WorkCover officers on 7 April 2016, 21 June 2016, 22 September 2016 and 6 July 2017.
  1. [95]
    The question arises as to whether this submission that Ms Lee told reporters of her understanding that she could not retrain (and thus, in effect, that she knew she would not be returning to work) overstates the position. None of the documents referred to in the preceding report go so far. At highest, some of those references go to the difficulty of retraining, not the impossibility of it. Others speak to the possibility of recovery and exploration of return to work options.
  2. [96]
    The 9 May 2016 Youngberry reference records that “Ms Lee advised that she is aware her doctors have recommended a more sedentary based role for her in the long term, given her back condition, however she explained that she is required to be mobile given her narcolepsy.” That does not go so far as to say she could not retrain in other work.   
  3. [97]
    That document also records that Ms Lee reported she is anxious and uncertain about seeking out and applying for work given her previous work experience, past experience and current physical abilities but was motivated to obtain further retraining in order to make her competitive in the open labour market. The report set out transferrable skills from her past roles. At the time of assessment she reported employment preferences as being diversional therapist, bookkeeper, veterinary nurse, support worker, community services worker, medication nurse and health promotion. The report also set out a number of jobs that Ms Youngberry considered her to have the physical capacity and transferrable skills:
  • Administration assistant;
  • Medical receptionist;
  • Purchasing officer;
  • Console operator;
  • Tele-nurse;
  • Bank officer;
  • Betting clerk;
  • Call centre operator;
  • Car rental officer;
  • Cashier;
  • Data entry operator;
  • Data base administrator;
  • Sales assistant; and
  • Sales representative or telemarketer.

The recommended options were administration assistant or receptionist. It was also considered she would be well suited to the vocation of bookkeeper if further retraining was completed.

  1. [98]
    The report stated that Ms Lee was open to seeking alternate employment options.
  2. [99]
    The 22 September 2016 WorkCover document describes Ms Lee reporting that she was thinking about other work prospects, including bookkeeping and phlebotomy. The WorkCover document records that it was made more difficult as she has narcolepsy as well. The note records that she can sit for longer than 20 minutes.[34]  It records that it would make retraining and work options “a bit difficult”. The note also records that Ms Lee felt like she was slowly getting better, and that she feels as though she was ready “to move forward now.” 
  3. [100]
    The 6 July 2016 WorkCover reference describes Ms Lee reporting that she had narcolepsy whereby she could not sit for longer than 15 minutes, was unable to return to her pre-injury role as an Assistant in Nursing. Under the heading “training/retraining opportunity”, the record reflects that Ms Lee was looking at bookkeeping.” The record also reflects that she was going to physiotherapy twice weekly, and feeling stronger, and that her balance was improving.  
  4. [101]
    The notes of the surgery consultation with Dr Mistri on 5 July 2012 records:

-  Review of workcover review from march

-  Suggest ongoing rehab, slow recovery, likely further 6-8 months

-  Unable to work as aged carer

 (my italics)

  1. [102]
    SAL further submits that “the material fact alleged in her affidavit as to Dr McEntee’s report providing an understanding that she would not return to work is untenable having regard to the extensive level of disability she reported during her statutory compensation claim, including advice that she would need to re-direct to lighter employment, and her status as someone with a permanent carer. The hope described in paragraph 34 of her affidavit was devoid of realistic foundation.”[35]
  2. [103]
    Paragraph 34 of Ms Lee’s affidavit stated:

My hope was that, with the further surgery on 27 March 2019, my backpain and mobility would improve enough that I could work in a role which was sufficiently physical for me to stay awake without involving heavy manual lifting.

  1. [104]
    The submission that the hope there described is devoid of realistic foundation is put by SAL notwithstanding paragraph 11(a) of the Defence which pleads SAL’s belief that Ms Lee is not totally incapacitated from employment.
  2. [105]
    In the course of cross-examination, Ms Lee accepted that:
    1. (a)
      By 29 August 2017 (the time of reaching out to the Facebook support group):
      1. she was unlikely to return to work as an Assistant in Nursing or any role in a manual context dealing with patients or residents; and
      2. she knew it would be difficult for her to retrain into different kinds of work because her narcolepsy would interfere with her retraining and learning process.
    1. (b)
      By November 2018:
      1. she knew she had suffered a very serious spinal injury;
      2. that she had major spinal injury;
      3. because of that injury, she hadn’t worked for almost three years;
      4. because of the position she was in as a result of that injury, she had to engage her husband as a full-time carer for her and her child;
      5. she couldn’t return to work as an Assistant in Nursing or anything similar;
      6. she had lost three years of income in terms of wages, and had received weekly benefits from WorkCover for that entire time;
      7. that her WorkCover claim was ongoing; and
      8. she would have trouble retraining into other work because she had narcolepsy.
  3. [106]
    Although it was put to Ms Lee that she would have difficulty/trouble retraining into other work because of her narcolepsy, the cross-examination did not go as far as to suggest that she knew that her narcolepsy would mean that she could not return to work. Difficulty and/or trouble retraining would certainly decrease the likelihood of returning but does not equate to impossibility, nor significant improbability.  
  4. [107]
    Ms Lee submits that a theme which ran through the documents in the WorkCover file prior to the expiration of the limitation period was that Ms Lee may improve and return to employment. It is submitted that WorkCover had Ms Lee assessed by Occupational Therapist Ms Lauren Youngberry for just that reason.   
  5. [108]
    Ms Lee points to:
    1. (a)
      A report of Dr McEntee dated 10 March 2017 advising, inter alia, ongoing physiotherapy “and review by an occupational therapist to identify suitable duties so Ms Lee can begin a graduated return to work program.”  Dr McEntee opined that referral to a rehabilitation provider and arrangement of a graduated return to work program was reasonable at that stage; and that her overall prognosis appears to be reasonable. He stated that her overall prognosis appears to be reasonable given she is seeing ongoing improvement and is feeling a lot more positive about the future.  In his view, Ms Lee continues to improve with physiotherapy and given that neural recovery can take 18 to 24 months post-surgery he would not consider Ms Lee to be stable and stationary for another 6 to 8 months.  He is of the view that Ms Lee could participate in a computer based study programme to assist her to find suitable employment in the future;
    1. (b)
      A report of Jimboomba Physiotherapy dated 10 July 2017 noting considerable improvement, and the ability to pick up and walk around holding her toddler, squat fully, lunge well, in addition to other physical movements;
    2. (c)
      A report of Ms Youngberry, dated 25 July 2017, recommending that Ms Lee be given Job Search Assistance to identify roles within her area. That report also stated that in terms of future Ms Lee said she wanted to pursue retraining options explaining that long term she would like to be employed but that she believes she would require further qualifications due to her capacity.  The report noted that the vocational assessment completed on 16 May 2016 identified a number of long term options with the most reasonable being administration assistant and receptionist. The report noted that Ms Lee suffers from narcolepsy and does as such experience overwhelming drowsiness throughout the day which, she reports, impacts on her capacity to perform mundane or repetitive tasks where physical activity is limited.  The author noted that this could have a significant impact on her productivity when undertaking sedentary/administrative based work. Ms Lee expressed a number of preferences for long term employment which would require retraining including bookkeeper, leisure and lifestyle assistant and diversional therapist; and
    3. (d)
      A report of Ms Youngberry, dated 6 September 2017, for vocational assessment for retraining and developing a job seeking plan in the hope of securing employment in the future. The report observes that Ms Lee expressed preferences for long term employment which would require retraining including a bookkeeper working from home, leisure and lifestyle assistant, diversional therapist and teacher’s aide.  The report observed that the options were discussed in detail and it is considered that the leisure and lifestyle assistant, diversional therapist and teacher’s aide role involved lengthy and costly retraining which would impact on the timely transition back into employment. Also these had a substantial amount of standing and walking which appeared outside Ms Lee’s current capacity. A decision was made that a bookkeeping role would be most suitable due to the sedentary based nature of the role as well as the ability to often work from home ensuring she was able to undertake work when her symptoms were not aggravated.  The bookkeeping role was also considered to be a better option given her pre-existing condition of narcolepsy, allowing her to undertake work when she was less tired. The report observed that there were a large number of positions for bookkeeper in her residential location and it was recommended that she commence retraining in the area of bookkeeping as soon as possible and a TAFE course was recommended. 
  6. [109]
    I find that, taking into account all of the evidence, Ms Lee was, until at least 27 March 2019, of the belief that she had some prospects of returning to work, in some capacity, in the future and that it wasn’t until after the 27 March 2019 surgery that she came to the realisation that she would probably never return to work.

Was the Notice of Claim filed within 12 months of the acquisition of knowledge?

  1. [110]
    The answer to this question is “yes”.

Decisive character

  1. [111]
    As stated above, the quantum of the claim is a relevant factor.   
  2. [112]
    The fact that a person is unlikely to ever be able to work has the potential to sound in significantly greater damages than if that person were able to return to work, albeit not in particular jobs. A woman of Ms Lee’s age would, ordinarily, expect to work for quite a number of years yet. In my view, not being able to return to work, at all, would add substantially to the quantum of damages likely to be recovered.
  3. [113]
    I find that a reasonable person, knowing that they are unlikely to return to any work, and having taken appropriate advice on that fact, would regard that fact as showing that an action on the right of 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.
  4. [114]
    I further find that Ms Lee, ought, in her own interest, and taking into account her circumstances, bring an action on the right of action.  
  5. [115]
    In this respect, the evidence of Ms Avery, is relevant. I deal with it in more detail below.

Is the new knowledge actually a legal conclusion to be gleaned from facts, rather than knowledge as to facts.

  1. [116]
    No. The new knowledge was that Ms Lee would not likely ever return to work. This is not a question of law.  

Alleged material fact two: Becoming aware that the pain post 27 March 2019 was sequelae of her 2019 work injury not medical negligence

Introduction

  1. [117]
    After her surgery on 27 March 2019, Ms Lee’s pain improved considerably, but then the following month she started to experience pain associated with what she understood to be an incisional hernia.
  2. [118]
    She thought this might have been caused by medical negligence. However, due to a report prepared by Dr McEntee, who was engaged by Ms Lee’s solicitors on 24 December 2019, she became aware that she had developed a sacral endplate fracture which was a known complication of the lumbar fusion which had been undertaken on 4 January 2016 to treat the original injury.

Materiality

  1. [119]
    It is this discovery that she had developed a known complication of the lumbar fusion, namely a sacral endplate fracture, which Ms Lee submits is a material fact of a decisive character which was not within her means of knowledge until after 6 January 2019. Ms Lee submits that “this is a matter going not only to the economic consequences of her injury (i.e. That the symptoms were not diminished by the surgery) but also the right itself (i.e. That the symptoms are causally connected to the original injury and not to a new cause in medical negligence.)”.[36]
  2. [120]
    I accept that this discovery is a matter going to the extent of the personal injury attributable to the work incident. 

Was it within her means of knowledge at a time before the start of the third year of the limitation period?

  1. [121]
    This fact was not within Ms Lee’s means of knowledge before the third start of the limitation period.  

Was the Notice of Claim filed within 12 months of the acquisition of knowledge?

  1. [122]
    Yes.  

Decisive character

  1. [123]
    The fact that Ms Lee suffered a sacral endplate fracture, and that that is a known compilation of lumbar surgery, goes to the economic consequences of the original injury, as submitted on behalf of Ms Lee.    
  2. [124]
    These facts have the potential to sound in significantly greater damages than if the injuries were not a known complication of the original surgery, but rather the consequence of medical negligence.   
  3. [125]
    I find that a reasonable person, in the circumstances here, knowing these facts would regard that fact as showing that an action on the right of 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.
  4. [126]
    I further find that Ms Lee, ought, in her own interest, and taking into account her circumstances, bring an action on the right of action.  
  5. [127]
    In this respect, the evidence of Ms Avery, is relevant. I deal with it in more detail below.

Is the new knowledge actually a legal conclusion to be gleaned from facts, rather than knowledge as to facts

  1. [128]
    The new knowledge was that she had suffered an injury in consequence of the initial surgery in respect of the workplace injury, rather than as a consequence of medical negligence. This is knowledge as to facts.  

Alleged material fact three: becoming aware that her claim for damages was commercial by reason of damages being significantly due to 2015 work injury, rather than pre-existing work injury

Introduction

  1. [129]
    Ms Lee also submits that material became available which indicated that a claim for damages was commercial. In this respect, Ms Lee observes that during the course of the WorkCover claim, a significant volume was obtained, the effect of which was that Ms Lee’s condition was related to and caused by pre-existing degeneration in her spine, and that this would have caused her to have similar problems in the future event; but that once she engaged legal representatives in late 2019, material obtained by them on her behalf established that there was a significant component of her impairment caused by the 19 December 2015 event, as opposed to pre-existing degeneration. This material meant that her cause of action was commercial.
  2. [130]
    In this respect, a report from Dr Gillett, Orthopaedic Surgeon, dated 8 May 2020,[37]  identified that the vast majority of Ms Lee’s impairment arose from the 19 December 2015 injury and that it is an estimate only as to when pre-existing degeneration might have caused a similar outcome.
  3. [131]
    Further, a report from Dr Labrom, dated 6 July 2020,[38] sourced by SAL, was to the effect that it was more probably than not that she suffered an injury on 19 December 2015; and that 18% to 23% impairment arose from that injury, with 5% attributed to the pre-existing condition. 

Materiality

  1. [132]
    I find that the information provided in these reports goes to the extent of injury caused by the workplace incident, and thus the quantum of damages that might be recovered.

Was it within her means of knowledge at a time before the start of the third year of the limitation period?

  1. [133]
    No. These highly complex medical opinions were not within Ms Lee’s means of knowledge before the start of the third year of the limitation period.   

Was the Notice of Claim filed within 12 months of the acquisition of knowledge?

  1. [134]
    This question does not squarely arise in consideration of this third material fact, given  that the Notice of Claim had already been filed before the reports were obtained.   

Decisive character

  1. [135]
    The fact that a person’s injuries are substantially attributable to a workplace injury rather than a pre-existing condition has the potential to sound in significantly greater damages than if the injuries were largely attributable to the pre-existing condition.
  2. [136]
    I find that a reasonable person, in the circumstances here, knowing that their injuries are substantially attributable to a workplace injury would regard that fact as showing that an action on the right of 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.
  3. [137]
    I further find that Ms Lee, ought, in her own interest, and taking into account her circumstances, bring an action on the right of action.  
  4. [138]
    In this respect, the evidence of Ms Avery, is relevant. I deal with it in more detail below.

Is the new knowledge actually a legal conclusion to be gleaned from facts, rather than knowledge as to facts

  1. [139]
    No. The knowledge of the fact is the existence of medical expert opinion that a significant amount of Ms Lee’s injuries were attributable to the workplace incident, rather than pre-existing conditions.  

Ms Avery’s evidence on “decisive character”

  1. [140]
    SAL submits, that within the limitation period, Ms Lee had a critical mass of information that enabled her to understand, if properly advised, that she had a worthwhile right of action.[39]
  2. [141]
    The evidence of Ms Avery does not support that conclusion.   
  3. [142]
    Ms Avery was aware that by the expiry date in December 2018:
    1. (a)
      WorkCover had accepted that there was a valid claim for WorkCover;
    2. (b)
      WorkCover had paid for initial surgery for a significant spinal injury;
    3. (c)
      WorkCover had paid for part of surgery on 19 March 2019;[40]
    4. (d)
      She had been on WorkCover for three years;
    5. (e)
      She had not received any income from personal exertion;
    6. (f)
      She had raised concerns about her capacity to retrain into any other occupation due to narcolepsy, but was seeking assistance in finding things she may not be aware of,[41] that is she was open to discussions with experts about other opportunities and had reached out for support from medical practitioners and others on areas of retraining that would accommodate both of her disabilities;[42] and
    7. (g)
      Her husband had ceased work quickly after her accident to become her carer,[43] a position which he still undertook at the time of the hearing.
  4. [143]
    Ms Avery accepted, under cross-examination, that had Ms Lee come to her with this information in December 2018, she would have lodged an urgent notice of claim, but “with the proviso to the claimant that I had concerns about further investigations that would be necessary before I could recommend she proceed with it.”[44] Ms Avery later explained that she was not confident, even when she saw Ms Lee 12 months later, that, given the extent of Ms Lee’s disability (narcolepsy) and her pre-existing complaints of back injury, that the medical evidence would show that the 2015 workplace incident was the extent of the problems Ms Lee was reporting.[45]
  5. [144]
    Ms Avery’s most significant concern was the relationship between the degree of permanent impairment and the workplace incident that she described. She explained:

It seems to me … that the incident would be relatively innocuous and that her degree of impairment was so significant that, when seen in combination with her pre-existing spinal injuries, my concern was that the medical evidence wasn’t going to support a sufficient connection between her level of disability and the negligence of the defendant for the potential damages she would recover to exceed the potential statutory benefits that she had and would receive. …

  1. [145]
    Ms Avery had had another situation arise where the medical evidence at the conclusion of the statutory claim did not support the statutory benefits that had been paid.  She stated that:

It hasn’t been my experience that WorkCover has pursued the worker for the difference between the benefits that had been paid and the amount that’s subsequently found to be related to the original injury, but it does cause concern for me as a solicitor for the injured worker if we can’t recover damages in excess of the statutory benefits paid, or sufficiently in excess of the statutory benefits to justify the costs of pursuing a common law claim.[46] 

  1. [146]
    That was a particular concern of hers with respect to Ms Lee, predominantly because of what the medical evidence would be, and the evidence that she had seen on the WorkCover statutory file from the orthopaedic surgeon Dr Williams, namely the reports of 12 February 2016, 18 August 2016[47] and 23 July 2018,[48] as well as from Professor Bruce McPhee, 14 June 2016.[49]
  2. [147]
    Ms Avery was also aware that there had been disagreements throughout the course of the statutory file as to which treatment should be compensable and which was unrelated to the work-related injury.[50]
  3. [148]
    As such, although it is plain that Ms Lee had sufficient information by December 2018 that she had a cause of action, the nature of that information was not such that she ought to have brought a cause of action. The fact that she had pre-existing spinal injuries, and that there was a real possibility that, to at least a large extent, her degree of injury was due to those pre-existing spinal injuries, would rightly give pause for thought in the objective advisor as to whether or not pursing a common law claim would likely result in a monetary benefit over and above that of the statutory benefits. Feeding into that consideration was also the extent to which her narcolepsy would diminish her damages claim, by reason of it being that which prevented retraining and reemployment: at that stage, there was at least some hope of retraining, with Ms Lee remaining open to discussions with experts about other opportunities and reaching out for support from medical practitioners and others on areas of retraining that would accommodate both of her disabilities.
  4. [149]
    As such, I do not accept SAL’s submission that the applicant had a critical mass of information that enabled her to understand, if properly advised, that she had a worthwhile right of action.   
  5. [150]
    As will be apparent from my findings above, prior to Ms Lee reaching the state of knowledge that she would not be returning to work at all, the cause of action was such that it may not have been worthwhile to pursue. The position is the same with respect to prior to Ms Lee reaching the state of knowledge that significant aspects of her ongoing difficulty, rather than medical negligence.   
  6. [151]
    On the basis of Ms Avery’s evidence, the cause of action may not even have necessarily been worth pursuing with that knowledge, although the damages would have likely been more than without those two factors.   
  7. [152]
    The three material facts, when collectively known, brought the matter to a level where a reasonable person would regard the cause of action as having reasonable prospects of success and of resulting in an award of damages sufficient to justify the bringing of an action, and ought to bring the action.

ISSUE TWO: IS THERE EVIDENCE TO ESTABLISH THE RIGHT OF ACTION APART FROM A DEFENCE FOUNDED ON AN EXPIRATION OF THE PERIOD OF LIMITATION?

  1. [153]
    The answer to this question is “yes”. 
  2. [154]
    The onus on an applicant to establish that “there is evidence to establish the right of action” is a low one, and merely requires evidence which can reasonably be expected to be available at trial, and which if unopposed by other evidence is capable of proving Ms Lee’s case.[51] Ms Lee need to do no more than “demonstrate something like a prima facie case.”[52]
  3. [155]
    SAL concedes, solely for the purposes of this application, that if Ms Lee were to prove she sustained her spinal injury on 19 December 2015 because of a failure of SAL to provide her with slide sheets or train co-workers in the manual handling of residents, this would satisfy the test of a prima face case in relation to breach of duty and causation.   
  4. [156]
    SAL submits that “such a claim, in circumstances of spinal fusion surgery, significant permanent impairment, years of chronic disability and incapacity for work of a manual nature, would be likely to attract damages sufficient to render the case worthwhile.”

ISSUE THREE: EXERCISE OF DISCRETION

  1. [157]
    Ms Lee has established the two threshold requirements in s 31(2). As such, the discretion to extend time arises. 
  2. [158]
    For the discretion to be exercised in her favour, she bears an onus:  she must demonstrate that justice is best served by extending the time limit.[53] 

Issue of prejudice to SAL

  1. [159]
    SAL submits that the application should not be granted because the delay has caused significant prejudice.
  2. [160]
    Brisbane South Regional Health Authority v Taylor is the lead authority on the question of prejudice in the exercise of the discretion. In that case, Ms Taylor had an hysterectomy in 1979. She alleged that she underwent that procedure having been advised by Dr Chang that without such an operation she was at risk of death.  She experienced pain ever since. In 1994, through access to her medical records, she discovered that the 1979 diagnosis was pelvic inflammatory disease, a non-operative disease not treatable by hysterectomy.  She then alleged negligence against Dr Chang, and vicarious responsibility for same against the Health Authority, for failure to properly advise. Attempts by the health authority’s representatives to contact Dr Chang, who had since moved to Hong Kong, were unsuccessful. The health authority did have, though, Dr Chang’s notes of a consultation, which read:

long discussion re alternatives of

Do nothing

Hormonal therapy

Hysterectomy

  1. [161]
    If Ms Taylor’s matter proceeded to trial, the critical issue would have been the conversation between Ms Taylor and Dr Chang. 
  2. [162]
    Ms Taylor argued that it might have still been possible to locate Dr Chang, and that in any event he would have to rely on his notes. She further submitted that if he couldn’t be located the medical records would be admissible in evidence pursuant to s 92 of the Evidence Act.  Justice McHugh stated that “the extent to which Dr Chang must rely on his notes must relate to the lapse of time involved.  In all the circumstances it can hardly be gainsaid that there would be some prejudice to the appellant by reason of the delay that has ensued.”[54]
  3. [163]
    Ultimately, the High Court upheld the judge at first instance’s decision that by reason of the delay in commencing the action, the health authority would suffer actual prejudice. In the circumstances, having so held, McHugh J expressed the view that dismissal of the application was inevitable. His Honour stated, “the finding of actual prejudice and the possibility of other prejudice to the defendant gave the defendant a strong – in my view overpowering – case for resisting the application.”[55]

General principles in respect of the discretion

  1. [164]
    The following are some of the principles which emerge from the case law:
    1. (a)
      The discretion is a discretion to grant, not a discretion to refuse;[56]
    2. (b)
      Ms Lee must satisfy the court that grounds exist for exercising the discretion in her favour:[57] 

…s 31 should not be read as giving an applicant a presumptive right to an order once he or she satisfies the two conditions laid down in s 31(2) of the Act.  An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour.  But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.[58] 

  1. (c)
    There is an evidentiary onus on SAL to raise any consideration telling against the exercise of the discretion, but the ultimate onus of satisfying the court that time should be extended remains on the applicant;[59]
  2. (d)
    Where prejudice is alleged by reason of the effluxion of time, it is for the defendant to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice;[60]
  3. (e)
    A material consideration is whether, by reason of the time that has elapsed, a fair trial is possible.  This will be the most important consideration in many cases:[61] the real question is whether the delay has made the chances of a fair trial unlikely;[62]
  4. (f)
    The discretion does not call for weighing the prejudice of to an applicant against prejudice to the respondent;[63]
  5. (g)
    Once the legislature has selected a limitation period, to allow commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation;[64]
  6. (h)
    The discretion must be exercised in the context of the rationales for the existence of limitation periods;[65]  
  7. (i)
    The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice.  In such a situation, actual injustice to one party must occur;[66] and
  8. (j)
    The exercise of discretion is not a mathematical exercise.  As such, comparison between the period of delay in this case and longer (and often much longer) delays in other cases does not assist the Court in the discharge of the exercise of discretion.   

The exercise of the discretion in the context of the rationales for the existence of limitation periods

  1. [165]
    For hundreds of years, the policy of the law has to been to set definite time limits for commencing civil claims, driven by the general perception that where “there is delay the whole quality of justice deteriorates”.[67] The deterioration can be plain, for example, where evidence no longer exists, and sometimes it is not recognisable: “prejudice may exist without the parties or anybody else realising it exists.”[68]  This is why delay gives rise to presumptive prejudice.  In this case, I have proceeded on the basis that, by reason of Ms Lee not commencing within time, there is some presumptive prejudice.
  2. [166]
    In Taylor, McHugh J set out the four perceived broad rationales for limitation periods:
    1. (a)
      As time goes by, relevant evidence is likely to be lost;
    2. (b)
      It is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which rise to it have passed;
    3. (c)
      People should be able to arrange their affairs and utiliser their resources on the basis that claims can no longer be made against them; and
    4. (d)
      Insurers, public institutions and businesses have a significant interest in knowing that they have no liabilities beyond a definite period.[69]                
  3. [167]
    In exercising the discretion in this case, I have had regard to these underlying rationales and the matters within the following paragraph.
  4. [168]
    His Honour observed that a limitation period represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within that period.  As to how limitation periods and exceptions to them operate, his Honour stated:

A limitation provision is the general rule; an extension provision is the exception to it.  The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.  The purpose of a provision such as s 31 is “to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.”  But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action.   The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question.   Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension……   justice includes all the relevant circumstances relating to the application including the various rationales for the enactment of the limitation period involved.  ….. The object of the discretion, to use the words of Dixon CJ in a similar context, “is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.”  In determining  what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstances that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.[70] (bold added)

Prejudice as a factor in the exercise of the discretion

  1. [169]
    In the exercise of the discretion, a defendant being unable to defend themselves, or being otherwise prejudiced in fact, weighs very heavily against the grant of an extension.
  2. [170]
    In Taylor, Justice McHugh stated:

…the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.[71]

  1. [171]
    His Honour explained why this is so in the following way:

Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of the period.   When a defendant is able to prove that he or she will not now be able to fairly defend him or himself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice.   The defendant has then proved what the legislature merely presumed would be the case.    Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action.  When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period.  The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice.  In such a situation, actual injustice to one party must occur.  It seems more to accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it.[72] (bold added, my underlining)  

  1. [172]
    Thus, where a defendant has placed in evidence sufficient facts to lead the Court to the view that actual prejudice would be occasioned, this issue weighs extremely heavily against the grant of the application.  As stated by Atkinson J in Gail Shaw v Broadbent & Anor:

There is no doubt that litigation provides difficulties if it is conducted after the limitation period is past and yet the legislation provides that the court may extend time. The question is whether the applicant has satisfied me that notwithstanding any prejudice caused by the delay it is possible to have a fair trial. To do so the applicant must displace what McHugh J referred to as the general rule in Brisbane South Regional Health Authority v Taylor at 555, that “actions must be commenced within the limitation period” which “should prevail once the defendant has proved the fact or the real possibility of significant prejudice”.[73]

When is the question of prejudice to be examined?

  1. [173]
    Whether prejudice to SAL is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application:  it is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.[74] 
  2. [174]
    As such, courts must not engage in a comparison between the prejudice which might have existed during, including towards the end of, the limitation period and the prejudice which exists at the time of the application.[75] In the words of McMeekin J, “incremental prejudice is not the relevant question”.[76]  
  3. [175]
    As such, in considering the question of prejudice in this case, it is not relevant to ascertain whether or not such records as are said to have been lost or destroyed, were lost or destroyed within the limitation period.

Gravamen of the submissions of the parties on the exercise of discretion

  1. [176]
    SAL submits that:
    1. (a)
      Evidence has been lost;
    2. (b)
      In consequence there is significant actual prejudice rendering a fair trial unlikely; and
    3. (c)
      As such, the discretion to extend time should be refused.
  2. [177]
    Ms Lee submits that:
    1. (a)
      SAL have not adduced in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned;
    2. (b)
      Significant prejudice has not been shown;
    3. (c)
      A fair trial has not been rendered unlikely; and
    4. (d)
      As such, the discretion to extend time should be granted.

Who’s who?

  1. [178]
    To try to piece together what attempts by SAL were made to obtain documents and witness evidence relevant to the defence of the claim, it is necessary to set out something by way of “who is who”. 
  2. [179]
    SAL sold its aged care business, including the subject aged care facility, in March 2018 to Whiddon Group Pty Ltd (“Whiddon”). SAL changed its name in November 2019 to the Eastern Star (Australia) Foundation. Paxton Hall Lawyers acts for Hand Heart Pocket, the charity of Freemasons Queensland, which assists the Order of the Eastern Star, an association incorporated to operate an aged care facility, which later converted to a company limited by guarantee, Star Aged Living Limited. 
  3. [180]
    Mr Robert Qualtrough is the General Manager Commercial and Company Secretary of Hand Heart Pocket. So far as I can glean from the material, he did not work for SAL, nor within the aged care business, at any relevant time, however in the preparation of this case, became somewhat of the “go to” person[77] for the defendant’s solicitor, Ms Moloney, in respect of the tasks associated with finding records and potential witnesses.   
  4. [181]
    As can be seen from the material, precisely where Mr Qualtrough or who Mr Qualtrough spoke to (or, in fact, who those persons spoke to or where they looked) in respect of some of the tasks associated with that undertaking, is not manifest on the face of the records. Mr Qualtrough was not called as a witness for SAL in these proceedings.  The relevance of this to the submissions made by SAL in respect of prejudice is discussed later in this judgment.

The evidence in respect of prejudice

  1. [182]
    As stated above, Ms Lee served a Notice of Claim on WorkCover on 6 January 2020.
  2. [183]
    On 25 March 2020, Ms Moloney emailed Ms Sabado, the Return to Work Coordinator at Whiddon Group Pty Ltd noting a previous conversation they had had regarding another person who had brought a workers’ compensation claim in respect of her employment at Star Aged Living at Beaudesert, and stating that they are now appointed to act on behalf of WorkCover Queensland in defence of a claim for damages brought by Ms Lee for personal injuries sustained on 19 December 2015 during the course of her employment.  She stated that Ms Lee alleges that she injured her lumbar spine whilst moving a patient without a slide sheet.  Ms Moloney stated:

We understand that following the subject accident, Whiddon took over control of the aged care home, which is now called Whiddon Beaudesert Star.

So that we may appropriately respond to Ms Lee’s claim, we would be grateful for your permission to speak with the relevant contact at Whiddon Beaudesert Star to:

  • Obtain a copy of Ms Lee’s personnel file, including her training records;
  • Obtain any risk assessment or safe work procedures in place at that time with respect to moving patients in bed;
  • If they are able to be identified and remain employed at the aged care home, speaking with Ms Lee’s:
    • Co-worker to obtain his-her version of events;
    • Supervisor/manager to obtain their latter’s response to Ms Lee’s allegations regarding the lack of access to slide sheets.
  1. [184]
    Ms Moloney asked Ms Sabado whether she would be happy for her to undertake these investigations directly with Whiddon Beaudesert Star.  
  2. [185]
    Ms Moloney sent a follow up email on 6 April 2020 seeking a response to her email of 25 March 2020.
  3. [186]
    On 8 April 2020, at 11.22 am, Ms Moloney was copied in to an email from Ms Sabado in which she asked the recipients “do you have any information on this person?” Ms Moloney’s affidavit stated that the recipients are various staff members of the Whiddon Group.  It is not clear what roles some of these people held.
  4. [187]
    Ms Browning, Deputy Director Care Services, emailed back just a little over one hour later (at 12.33 pm).  She stated “I can’t give any information about Nancy Lee except to say she has not worked on site since I started at Stargardens in Oct 2016.  I’ve asked other staff and I’ve not been able to find anyone who remembers her at this stage.”[78]
  5. [188]
    At 12.58 pm, Ms Sabado then asked Ms Browning “Would you have any records on file for her ie. Training etc?”.[79]
  6. [189]
    Ms Browning, responded at 5.21 pm “No I’m sorry there aren’t any I am aware off. (sic) 
  7. [190]
    I do not know if anyone interrogated iCare portal. The evidence does not disclose what attempts, if any, were made between 8 April 2020 and 30 October 2020 to find documents and witnesses.
  8. [191]
    On or about 30 October 2020, Ms Moloney, Solicitor of Cooper Grace Ward, caused a Notice of Intention to Defend and Defence to be filed in the Supreme Court.
  9. [192]
    That Notice of Intention to Defend stated (as set out above) that SAL has no records relating to the allegations, has not been able to locate any witness in relation to the allegations, and is prejudiced from any defence given the time which has elapsed since 19 December 2015. 
  10. [193]
    On 10 November 2020, Ms Moloney received an email from Ms Avery asking whether there was any objection to contacting Jennie Greenshields, Robyn Barnes and Sue Guy.   On 12 November 2020, Ms Moloney stated she had no issue with Ms Avery contacting witnesses, on the understanding that any file note of any conversation or statement taken would be disclosed in due course.[80]
  11. [194]
    On 12 January 2021, Ms Moloney wrote to Paxton Hall Lawyers.  Ms Moloney noted that an argument of prejudice would likely be made to defend Ms Lee’s claim for damages, and that it was necessary to show the Court that they had taken all appropriate steps to investigate Ms Lee’s claim. Ms Moloney wrote: 

We understand that Star Aged living sold the aged care home in Beaudesert in 2018 and that entity no longer exists.  We would be grateful however if you would please liaise with the Eastern Star (Australia) Foundation Ltd (or provide us with the contact details of the relevant person that we can speak with) to ascertain if it retained any of the following documents after sale of the business:

  • Personal (sic)  files and training records, particular that of Ms Lee;
  • Copies of any safe work method statements that had been implemented between 2011 and 2015, particularly with respect to manual handling of patients and/or the use of slide sheets;
  • Copies of any risk assessments that had been undertaken between 2011 and 2015, particularly with respect to manual handling of patients and/or the use of slide sheets;
  • Any and all training documentation, particularly with respect to manual handling of patients and/or the use of slide sheets.[81]
  1. [195]
    On 14 January 2021, Ms Moloney received an email from Mr Robert Qualtrough, which stated:

Thanks for taking the time to discuss your letter this morning.

Confirming that I will undertake the following:

  • Review what archive records SAL (ESF) do have to identify relevant supporting documents
  • Contact former SAL CEO – Nigel Faull
  • Attempt to contact Whiddon Exec Mgr HR & CEO
  • Attempt to identify contact details for SAL employees you mentioned.

I will be in touch once I have competed (sic) the first pass of above.

  1. [196]
    The evidence does not disclose the contents of the conversation referred to in the email.
  2. [197]
    The next day, Mr Qualtrough wrote to Ms Moloney advising:

We have found some staff records and payroll information which included the three names you discussed with me yesterday.

What searches were undertaken to discover these records is not disclosed on the evidence.

  1. [198]
    The email then set out the contact details of Shirley Benyon, Co-worker; Ann-Marie Baigent, General Manager Residential Care and Robyn Barnes, Admin.[82]
  2. [199]
    On 20 January 2021, Mr Qualtrough wrote to Ms Moloney, giving her a “brief update”.  He stated:

I have made contact with the former CEO – Nigel Faull, who has contacted Ann-Marie Baigent, and I have spoken with Whiddon (new site owner) HR exec. We have started to locate some of the records you have requested.  I am trawling through archive indexes to identify likely boxes of interest and will recall those shortly in attempt to locate further records you have requested.

I am not overly hopeful, however we will identify and provide what we can.  I will also provide confirmation if records have been destroyed.[83]

  1. [200]
    Ms Moloney deposes that on or about 8 February 2021, she caused correspondence to be sent by email to Whiddon Group, attaching a notice of non-party disclosure.  The exhibit referrable to that statement in Ms Moloney’s affidavit[84] is dated 14 January 2021 and addressed to Whiddon Beaudesert Star Residential Care.  The cover letter noted that “we are attempting to obtain documentation relevant to Ms Lee’s claim, including her personnel file, training records, risk assessments and safe work method statements.”[85]  The documents sought by way of the notice were:
  • All documents relating to the employment of Ms Lee relating to the employment of Ms Lee including, but not limited to:
    1. (a)
      documents regarding review of work performance;
    2. (b)
      documents regarding sick leave, annual leave, long service, study leave or other leave whatsoever;
    3. (c)
      documents relating to any claims for sickness, injury or compensation;
    4. (d)
      documents relating to change of duties, performance of lighter duties, performance of modified duties or special needs because of a medical condition or injury; and
    5. (e)
      documents relating to salary or wages paid.
  • Any and all safe work procedures in place between 2011 and December 2015 with respect to manual handling of patients and/or the use of slide sheets;
  • Any and all risk assessments undertaken between 2011 and December 2015 with respect to manual handling of patients and/or the use of slide sheets; and
  • Any and all documentation evidencing training provided to staff between 2011 and December 2015 with respect to manual handling of patients and/or the use of slide sheets.
  1. [201]
    On or about 8 February 2021, she wrote, by registered post, to Ms Benyon, Ms Baigent and Ms Barnes, stating that they acted for WorkCover Queensland in defence of a claim for damages brought by Ms Lee and that Ms Lee alleged that she sustained injury as a result of moving resident/s without the assistance of slide sheets.   
  2. [202]
    The letter to Ms Benyon stated that they understood “that at the time of the work event you were employed as an assistant in nursing who was working with Ms Lee that day.” I infer from this that in the course of Ms Moloney’s inquiries she ascertained that Ms Benyon was a co-worker of Ms Lee that day. The provenance of that information is not clear to me.  That probably does not matter, however, it is not apparent as to whether enquiries were made at, or before, that time as to the number of co-workers that would ordinarily be at that part of the aged care facility and thus whether or not it would be expected that there would be more of them than Ms Benyon.
  3. [203]
    The letter to Ms Baigent stated that they understood “that at the time of the work event you were employed as the shift manager on duty that day”.  
  4. [204]
    The letter to Ms Barnes stated that “we understand that at the time of the work event you were employed at the employer and was the contact for WorkCover Queensland during the statutory claim.” 
  5. [205]
    Each of the letters stated that they wished to speak with the recipient about the claim, in particular what they recall (if anything) about the incident and generally about training and instruction provided by the employer in relation to manual handling training.
  6. [206]
    On or about 10 February 2021 Ms Moloney received a telephone call from Ms Benyon. Ms Moloney deposes that Ms Benyon informed her that she:
    1. (a)
      Had no recollection of Ms Lee at all;
    2. (b)
      Was still working at the aged care home now run by Whiddon; and
    3. (c)
      Always had available to her, and always used slide sheets when moving patients.
  7. [207]
    On or about 11 February 2021 Ms Moloney received a telephone call from Ms Barnes, who was the WorkCover liaison officer at the time of Ms Lee’s work event. She informed her that she:
    1. (a)
      Recalls Ms Lee and the work event but not in great detail, other than that Ms Lee injured her back;
    2. (b)
      Recalls Ms Lee was a casual employee and had just returned from maternity leave. There had been no previous issues with her back;
    3. (c)
      Worked in the administration at the front office; however, she recalled that the employer had a rigorous training program for new nurses which included six to seven online courses and shadowing another staff member for three days;
    4. (d)
      As well as being educated upon commencement of employment, nurses received manual handling and infections training every year with a physiotherapist;
    5. (e)
      Slide sheets were available for use, but she could not provide information as to the usage of same; and
    6. (f)
      Kare Lawyers had contacted her, and she had given them the same information.
  8. [208]
    As at the date of the affidavit (3 November 2021) date Ms Moloney has not been contacted by Ms Baigent and had not taken any further steps to attempt to contact her.
  9. [209]
    On or about 31 March 2021, she caused an email to be forwarded to Whiddon  pressing for a response to the notice of non-party disclosure served on 8 February 2021.
  10. [210]
    On or about 1 April 2021, she received an email from Ms Cullen, Group Return to Work Coordinator for Whiddon, stating:

As discussed, I had provided everything we could find to Robert Qualtrough, attached are my emails.

Unfortunately the previous owners have archived off-site and we do not have access to a lot of the documents you are requesting.[86]

  1. [211]
    The attached emails referred to in Ms Cullen’s email were:
    1. (a)
      An email from Mr Qualtrough to Ms Cauchi at Whiddon dated 20 January 2021 stating:

Lauren,

I have been contacted by WorkCover's panel lawyer Cooper Grace Ward requesting information that may be held by Whiddon from the original personnel file transfer associated with the sale/purchase of Star Gardens. All our records indicate that Nancy Lee was terminated along with all other staff that were employed by Whiddon Group at time of sale. I am not able to verify from saved records if Nancy was employed by Whiddon and that her personnel file would have likely transferred to Whiddon? Can you please confirm that you hold the personnel file for Nancy Lee? If so would it be possible for you to send me a copy of the relevant records (prior to transfer date only) to enable us to provide to WorkCover lawyers? I am also trying to contact previous employees that would have administered this information to identify its probable location in the Star Gardens archive systems.

Specifically WorkCover have requested the following:

  • Personnel file of Nancy Lee
  • Training records of Nancy Lee with respect to manual handling of patients. (we may have these in archives, but may also be recorded in personnel files?)
  • Safe Work Statements, with respect to manual handling of patients or slide sheets, implemented between 2011- 2015, (not likely transferred to Whiddon?)
  • Any risk assessments undertaken between 2011- 2015, with respect to manual handling of patients and slide sheet use (not likely transferred to Whiddon?)
  • All training documentation, with respect to manual handling of patients and slide sheet use. (Not sure if Whiddon received these?)

I have assumed that most of the former manual handling, training records and safety audit documentation remained with Star Aged Living. I may be incorrect. It would also be helpful to know when the last accreditation audit or spot audit was held prior to the sale date, if you have that information available, would be most helpful?

Thank you in advance for your assistance. (my underlining)

  1. (b)
    An email from Ms Cullen at Whiddon to Mr Qualtrough dated 18 February 2021 stating:

Hi Robert,

We appear to be playing some phone tag this week.

Unfortunately we don’t have a lot, we had been trying to locate the file as it was believed to be at our corporate office, we searched archives and it ended up being at Beaudesert.

Attached is what I have been sent from the personnel file.

  1. (c)
    An email from Ms Cullen to Ms Conca (copied to Ms Cauchi at Whiddon) dated 2 March 2021 stating:

Hi Patricia

Hope you are well.

I sent everything through we could produce on Nancy Lee but have had a further request as follows:

“Have you been able to find any of the previous work processes and staff training records including archived policies and procedures, effective at the date of this injury? They all go to the operating environment and practices in place at the time the injury occurred. The archived policies were all saved in the archive folders of the previous Star Gardens administrator.”

Date of injury is 19 Dec 2015

Any idea where I may be able to find these?

  1. (d)
    An email from Ms Conca to Ms Cullen (copied to Ms Waters, Director of Care, Whiddon Beaudesert) dated 2 March 2021 stating:

Hi Alex,

I have spoken to Deb and she will have a look at what she can find and send this through by the end of the week.

  1. (e)
    An email from Ms Cullen to Ms Conca (copied to Ms Waters) dated 2 March 2021 stating:

Thanks Both - appreciate your help

  1. (f)
    An email from Ms Waters to Ms Cullen and Ms Conca dated 2 March 2021 stating:

We will delve into our archives tomorrow when the full team is here

This year is before any of us

  1. (g)
    An email from Ms Cullen to Ms Waters and Ms Conca dated 2 March 2021 stating:

Thanks Deb, I know a bit of a punish but appreciate you and the team assisting on this.

  1. (h)
    An email from Ms Waters to Ms Cullen and Ms Conca dated 4 March 2021 stating:

We have on our systems the box archived for 2015 staff education however its not onsite

Admin is thinking Grace brothers took it off site to archive storage as this was with Star Gardens

  1. [212]
    It is not expressly in evidence as to whether all archives taken off site by Grace brothers were retrieved and searched through. It is possible that these are the archive boxes Mr Qualtrough later refers to, but it is not clear.
  2. [213]
    On or about 23 April 2021, Ms Moloney received an email from Mr  Qualtrough in which he stated:

I have been compiling information that is available and now attach for your reference the supporting documents that I have been able to identify and locate. 

Unfortunately, as a result of the time that has passed, between the injury of Nancy Lee and your request, a lot of the organisation documents have been destroyed. I spoke with  employer’s former CEO, former Care manager and the former return to work co-ordinator, who had provided the following information:

  • Star Aged Living Ltd (now called Eastern Star (Australia) Foundation Ltd) was a registered aged care provider, and underwent regular certification reviews and process audits conducted through the Aged Care Quality & Safety Commission.  These audits required safe work handling processes, policies and evidence of staff induction and training, as well as evidence of staff competency and verification through resident interview.
  • The Beaudesert facility operated under a two-person lift policy.  This policy was embedded in all staff inductions and training involving lifting of residents.
  • The former business documents, including policies, supporting documents and historic archives were all provided to the Whiddon Group on the sale of the Beaudesert facility in Mar-2018.
  • Whiddon Group have forwarded the entire contents of the personnel file for Nancy Lee.
  • The latest documented policies covering staff handling and safe work practices, have been updated since the time of Nancy Lee’s injury and cannot be assumed to reflect the policy content that was in place at the time of the work event.
  • The policy archives which existed at the time of the business sale, would contain the policy documents that existed at the time of the injury; however, these are no longer able to be located by the current facility owner.
  • Both the CEO and Care Manager confirmed that all staff underwent specific safety inductions relating to the movement and lifting of residents, and the safe use of slide sheets, for those residents who had this method of lifting documented in their care plans.
  • Where it was documented in a care plan that a resident required the use of slide sheets, those slide sheets were always available in the resident's respective wardrobe, which was in their room. If for some reason the slide sheet was not available (laundering) and a replacement slide sheet had not been left in the resident wardrobe, which was highly unusual, there was always another slide sheet available for use in nearby room(s). Further, under no circumstance was a resident to be lifted by any single employee.
  • A thorough investigation of the business archive register and records revealed that a number of relevant records have subsequently been destroyed, given they had exceeded the 7-year retention requirement, these included:
    • detailed client care plans, including specific safe work method instructions for the lifting of residents
    • staff education and training records
    • client specific protective monitoring worksheets
    • safety audit reports and schedules
    • Workplace Health & Safety Officer hazard and safety reports including WH&S committee meeting minutes
    • Care Manager notebooks.
  • There are two archive boxes that MAY contain some relevant information about the injury and staff training records leading up to the Dec-2015 period, however, until we can review the contents, we will not know the extent of the contents. 

Please refer to p. 6 of the WorkPlace Health and Safety Policy.  ‘No-Lift’ practice, this supports the safety conscious environment Star Aged Living created in its aged care facility.   Staff Training Register 2016 (subsequent to injury) shows no training completions by Nancy Lee.  I can find no record of the 2015 training schedule, which I am told remained with all historic business records, with purchase at time of business sale. 

Whiddon have provided all the records they can find that relate to your original enquiry.

I trust this provides you with some context and history relating to the claim by Nancy Lee.  Unfortunately, it is difficult to prove the operating environment without the historical records, most of which have been destroyed or relocated by the current owner.

  1. [214]
    It is not clear what is meant by “original enquiry”. If that is Ms Moloney’s first enquiry to Whiddon, that is the enquiry of 25 March 2020, which was limited to documents expressly requested therein. 
  2. [215]
    From this email, it also appears that the historical records were “destroyed or relocated by the current owner.”  
  3. [216]
    The documents attached to that 23 April 2021 email from Mr Qualtrough are: 
    1. (a)
      An employee/volunteer privacy agreement, on Whiddon Group header, signed by Ms Lee, dated 22 February 2018;[87]
    2. (b)
      A “charter learning and development rights” on Whiddon Group header, signed by Ms Lee, dated 22 February 2018;[88]
    3. (c)
      A media consent authorisation on Whiddon Group header, signed by Ms Lee, dated 22 February 2018;
    4. (d)
      An offer of employment to Ms Lee on Whiddon Group header, dated 6 February 2018;
    5. (e)
      Staff vaccination record on Whiddon Group header, signed by Ms Lee, dated 22 February 2018;
    6. (f)
      A police check consent form, signed by Ms Lee, submitted by the employer/organisation “The Frank Whiddon Masonic Homes of NSW”;
    7. (g)
      Centrelink enquiry about Ms Lee, 2 November 2017, addressed to Star Aged Care;
    8. (h)
      A change of address details form, for Ms Lee, undated, on Star Gardens Residential Aged Care header;
    9. (i)
      A commencement form (new employee) for Ms Lee on Star Gardens Residential Aged Care header for Ms Lee, (undated, but likely to be on or about 8 April 2014);
    10. (j)
      Payroll/direct credit information for Ms Lee on Star Gardens Residential Aged Care, dated 8 April 2014;
    11. (k)
      Job offer from Star Gardens Residential Aged Care to Ms Lee, 8 April 2014;
    12. (l)
      Signed document acknowledging that Ms Lee has received, read and understood the Code of Conduct, on Star Gardens Residential Aged Care, dated 8 April 2014, with “Annmarie Baigent, Care Manager” typed on the document;[89]
    13. (m)
      Vibro trainer safety acknowledgement, on Star Gardens Residential Aged Care, dated 8 April 2014, signed by Ms Lee;
    14. (n)
      Confidentiality agreement with Star Gardens, dated 8 April 2014, signed by Ms Lee;
    15. (o)
      Agreement with respect to time between shifts, dated 8 April 2014, signed by Ms Lee, on Star Gardens Residential Aged Care header;
    16. (p)
      Star Gardens IT and computer policy, acknowledgement document signed by Ms Lee, 8 April 2014, on Star Gardens Residential Aged Care header;
    17. (q)
      Social media consent form, dated 8 April 2014, signed by Ms Lee, on Star Gardens Residential Aged Care header;
    18. (r)
      Tax file number declaration, signed by Ms Lee, 14 April 2014;
    19. (s)
      Curriculum vitae of Ms Lee;
    20. (t)
      Certificate of service by Ms Lee with Jeta Gardens;
    21. (u)
      Statement of Service with Clanwilliam Aged Care;
    22. (v)
      Stargardens new staff administration checklist, referring, inter alia, to “competencies …. Manual handling”, signed by Ms Lee, dated 7 May 2014;
    23. (w)
      Star Gardens signed acknowledgement by Ms Lee that she has completed and understood all the necessary items listed in the orientation program and workbook and have successfully completed the orientation assessment, signed by Ms Lee, and also signed by Helen Castillo as staff member assisting the orientation program, position “Mentor”, dated 7 July 2014.  The program indicated completion of “location of policy and procedure manual”;
    24. (x)
      Star Gardens WHS Personal hand washing unit, signed by Ms Lee, and assessor, Ms Castillo, dated 8 April 2014;
    25. (y)
      Star Gardens WHS removing contaminated gloves, signed by Ms Lee, and assessor, Ms Castillo, dated 8 April 2014;
    26. (z)
      Star Gardens Manual Handling Assessment for Ms Lee, with ticks in “achieved column” for various tasks including with respect to positioning, lifting and transferring of a resident” items, as follows:
      1. Correctly assesses resident’s limitations and need for assistance;
      2. Explains procedure/plan to a resident and clarifies objectives;
      3. Meets resident concerns with diplomacy and encouragement;
      4. Recognises resident’s rights throughout the procedure;
      5. Identifies the number and role of personnel needing for lifting/mobilisation of resident
      6. Correctly demonstrates the following lifting, positioning and transferring procedures with the resident:
  1. A.
    From the chair to the bed
  2. B.
    Wheel/shower chair to toilet
  3. C.
    Lifting and positioning in bed
  4. D.
    Assistance with walking
  5. E.
    Assisting up from floor;
  1. (aa)
    Star Gardens WHS Fire Safety, signed by Ms Lee, and assessor, Ms Castillo, dated 8 April 2014;
  2. (bb)
    Ms Lee’s certificate of completion of training and employment Recognition Council, Queensland Government, 24 September 2009;
  3. (cc)
    Ms Lee’s certificate of completion of Certificate II in Aged Care work 9 September 2009;
  4. (dd)
    Letter from Ms Baigent, General Manager, 3 February 2016, to St Andrews, setting out Ms Lee’s average hours per week and average gross payment, in response to letter requesting same on 28 January 2016, relating to a claim to St Andrews of “initial accident and sickness claim” dated 10 January 2016;
  5. (ee)
    Various medical certificates and applications for sick leave for 2014 and 2015;
  6. (ff)
    National police certificate, April 2014;
  7. (gg)
    Centrelink request for information to Star Gardens, 18 January 2016;
  8. (hh)
    Queensland worker’s compensation medical certificate, dated 1 March 2016;[90]
  9. (ii)
    Centrelink query, including whether Ms Lee will have a position to return to when they are fit for work (answer “yes”); form completed by Ms Greenshields of Star Aged Living Ltd, 2 November 2017; [91]
  10. (jj)
    Star Gardens Hazards: threat to worker safety policy, as at June 2013;[92]
  11. (kk)
    Star Aged Living Ltd staff education policy as at April 2014;[93]
  12. (ll)
    Star Gardens workplace health and safety policy[94] as at July 2015.[95]  (That document is signed on the last page although the signature does not make it plain who approved the policy.) That document sets out a Manual handling policy, as follows:[96]

3.11.1  Star Gardens endorses a “No-Lift” policy

The definition of ‘no lift’ is based on the QNU definition as followed-:

That the manual handling of clients is eliminated in all exceptional circumstances or life threatening situations. Manual handling may only continue if it does not involve lifting most of the residents weight (QNU Journal Sept/Oct 1998)

Manual Handling includes lifting and transferring and encompasses any activity requiring the use of force exerted by a person to lift, lower, push, pull, carry or otherwise move, hold or restrain any object. (National Code of Practice for manual handling, Worksafe, 1990)

3.11.2  All staff must be trained in the appropriate manual handling techniques for the tasks that they are required to perform in their jobs.

3.11.3  All staff must work within their range of comfort and ability when undertaking manual handling tasks and not expose themselves or others to the risk of injury.

3.11.4  In situations in which staff are required to perform new or unfamiliar manual handling tasks, supervisors and managers must assess the risk and implement risk control strategies. E.g. Provision of training for staff who are required to assist with office relocation.

3.11.5 Refer to Manual Tasks Involving the Handling of People Code of Practice 2011 and Hazardous Manual Tasks Code of Practice 2011

3.11.6  Provision for all linen and pad bags to be 2/3 full only and/or the purchase of ¾ bags to be in use; (my underlining)

  1. (mm)
    Star Gardens reporting of workplace incidents as at July 2015; and
  2. (nn)
    Star Gardens audit schedule, with “2015” handwritten on it.
  1. [217]
    On 9 November 2021, day 1 of the application to extend time was heard in the Supreme Court.
  2. [218]
    In an outline of submissions filed before the commencement of the hearing, SAL submitted that:[97]
  • Mr Qualtrough instructed that SAL would have had in existence:
  • aged care quality and safety commission audits relating to safe work; handling processes, policies, staff induction, training and competency records;
  • a two-person lift policy;
  • records relating to specific safety inductions;
  • care plans for residents including in relation to the use of slide sheets;
  • Mr Qualtrough advised that the following documents had been destroyed under retention processes or lost in the sale to the Whiddon Group:
  • detailed resident care plans;
  • staff education and training records;
  • resident specific monitoring worksheets;
  • safety audit reports and schedules;
  • Workplace health and Safety Officer hazard and safety reports including committee meeting minutes; and
  • Care Manager notebooks;
  • Inquiries made of potential witnesses revealed that:
  • Ms Benyon, co-worker has no recollection of the applicant at all
  • Ms Barnes, WorkCover Liaison Officer, recalls Ms Lee and the event but not in detail beyond that she injured her back; and
  • Ms Baigent, General Manager of Residential Care has not responded to written contact.[98]
  1. [219]
    The outline contains the following further submissions:
  • In a case involving the adequacy of training, instruction and the system of manual handling of residents by use of slide sheets, the respondent identifies the following prejudice in the present matter:
  1. a.
    The loss of detailed resident care plans including specific safe work method statements
  1. b.
    the loss of staff training records
  1. c.
    the loss of client specific monitoring worksheets
  1. d.
    The loss of safety audit reports and schedules
  1. e.
    The loss of WHS Office hazard and safety reports
  1. f.
    The loss of care manager notebooks
  1. g.
    The diminution of recollection of relevant co-workers.[99]
  • The effluxion of time resulting from the delay by the applicant in taking any action whatsoever in relation to a claim has rendered a fair trial of the action unlikely, and is sufficient to establish actual as well as presumed prejudice of the kind discussed in Taylor.[100]
  • The balancing of factors discussed by McHugh J in Taylor requires that the respondent not be placed in the position of defending a claim for which the limitation period expired almost three years ago, in circumstances where:
  1. (a)
    Critical evidence has been lost or diminished in quality such that a fair trial of the action is now not available to the defendant; and
  2. (b)
    The delay was entirely and solely attributable to inaction in the part of the applicant to make any inquiry into her legal rights in circumstances that would have readily presented as a worthwhile right of action.
  1. [220]
    In respect of the reference point to “almost three years”, I do note that the Notice of Claim, was, in fact provided to WorkCover on 6 January 2020, a bit more than a year after the expiry of the limitation period and that is when time stopped running. Ms Moloney commenced gathering some evidence from at least 25 March 2020,[101] which continued intermittently since then, including after the time the application for extension of time was filed in this Court in September 2021.
  2. [221]
    In response to these written submissions, Ms Lee filed supplementary submissions on 9 November 2021.[102] These submissions submitted that:
    1. (a)
      The 7 year retention requirement suggests that documents as early as 23 April 2014 (some 20 months prior to the work incident) should exist;
    2. (b)
      There was no evidence indicating that the contents of the two archive boxes referred to in Mr Qualtrough’s 23 April 2021 email. Ms Moloney’s last evidenced communication with Mr Qualtrough;
    3. (c)
      SAL had, through Mr Qualtrough, the contact details of the former Care Manager, Return to Work Coordinator, yet there was no evidence that SAL had tried to contact them or even ask for their names;
    4. (d)
      It is not plain who can speak to the policy with respect to the use of the slide sheets, although in context it may be the CEO and/or Care Manager;
    5. (e)
      Although Mr Qualtrough states that the policies had been updated since the time of Ms Lee’s injury, and cannot be assumed to reflect the policy content that was in place at the time of her injury, no evidence had been adduced to the effect that the extant policies had sought to be obtained, or that the CEO, Care Manager or RTW Coordinator had been asked to say in what respects they had changed from their own recollections. In any event, the “No lift” policy has been provided, with a date reviewed of July 2015, which would appear to be the relevant document; and
    6. (f)
      The email of 4 March 2021 from Ms Waters to Ms Cullen and Ms Conca states that “We have on our systems the box archived for 2015 staff education however its not onsite. Admin is thinking Grace brothers took it off site”, yet no evidence that further steps have been taken to locate that box.
  1. [222]
    Ms Lee’s 9 November 2021 addendum submissions then went on to address, amongst other things, the following:
    1. (a)
      As to detained resident care plans: these are said to be relevant because they would set out how each individual resident ought to be manoeuvred. This is not relevant because the Respondent says that it had a “no lift” policy. Therefore the manner in which the specific patients may have been required to be moved is irrelevant – the respondent’s case will be that its staff should not have been lifting them at all.[103] It is able to adduce evidence of such a policy:
      1. (i)
        The policy itself is exhibited to Ms Moloney’s first affidavit,[104]
      2. (ii)
        It is a business record of the Respondent, and in any event through either:
        1. A.
          The former CEO, the former Care Manager and the former RTW Coordinator of SAL;
        1. B.
          Mr Qualtrough, who is apparently able to say they are records of the undertaking.
    1. (b)
      As to loss of staff training records:
      1. (i)
        There are training records exhibited to the affidavit of Ms Moloney; in each of those records, the assessor/mentor is noted to be Ms Castillo; there is no evidence that SAL has endeavoured to locate Ms Castillo;
      2. (ii)
        SAL has not identified what other staff training records it might have expected to be able to find, but has lost. It just says that it has lost them.
      3. (iii)
        Absent evidence that there were training records that no longer has relevance to this case, no relevant prejudice is shown;
    1. (c)
      As to client specific monitoring worksheets, there is no explanation in the material as to what these might have contained and how they might be relevant to this case.
    1. (d)
      As to safety audit reports and schedules:
      1. (i)
        It is not said how they might be relevant to this case, or that they are lost (referring to the 2 boxes the contents of which are not apparent and the 7 year retention period would mean that they would be available)
      2. (ii)
        There is no evidence that SAL has contacted the Aged Care Quality & Safety Commission for their audits, reports and interviews.
    1. (e)
      As to WHS Officer Hazard and Safety report:
      1. (i)
        There is no evidence that these would have contained any information of relevance;
      2. (ii)
        Under the 7 year retention period, they should be available;
      3. (iii)
        SAL should be able to access the former CEO, the former Care Manager and the former RTW Coordinator, any of whom would be able to advise whether matters such as this might have been recorded in such documents or discussed in committee meetings. No attempt has been made to identify these individuals nor to speak with them.
    1. (f)
      As to care manager notebooks:
      1. (i)
        under the 7 year retention period, notebooks proximate to the relevant date should be available;
      2. (ii)
        they may well be in the 2 archive boxes;
      3. (iii)
        the former Care Manager is available, as is evidenced by Ms Qualtrough’s email of 23 April 2021.
  2. [223]
    At the end of day 1 of hearing, that is, 9 November 2021, a further day was scheduled for resumption of the oral submissions, namely, 16 November 2021.
  1. [224]
    In that time, and with the forewarning by Ms Lee’s Counsel of deficiencies in SAL’s evidence Ms Moloney took some further action, which is set out in her third affidavit, leave to file and read for which was sought by SAL on the resumption of the hearing on 16 November 2021. Leave was granted.
  2. [225]
    On 10 November 2021 at 9.59 am, Ms Moloney emailed Mr Qualtrough making further enquiries as to the identity of relevant witnesses and documentation. That email states:

I refer to previous communications in this matter and confirm that Ms Lee’s application for extension of the limitation period was part heard yesterday. In this regard, Ms Lee’s counsel has identified some gaps in our enquiries to ascertain the existence of relevant evidence. Accordingly, I would be grateful if you would please address the following:

  1. The name and contact details of the former CEO, former care manager and former return to work coordinator;
  2. You have noted in your email 23 April 2021 that a lot of records have been destroyed given they exceeded the seven year retention requirement. Do you have any records with respect to the 2014 and 2015 years which remain within that seven year period?
  3. Do you have copies of any relevant policies updated post-December 2015? If so can you please provide same.[105]
  4. Have you been able to go through the two remaining archive boxes referred to in your email of 23 April 2021 and, if so, were there any relevant documents identified?
  5. Do you have copies of documents evidencing what manual handling training Ms Lee received on commencement of employment on 8 April 2014? This seems to have been in the Orientation Program and Orientation Workbook.
  6. Are you aware of who ‘Helen Castillo’ is (the person who assessed Ms Lee on commencement of her employment). If so, we would be grateful for her contact number.
  7. Do you have contact details for Jennie Greenfields and Sue Guy and if so we would be grateful for provision of same.

The matter is returning to court on Tuesday 16 November 2021, so we would be grateful for your urgent attention to these enquiries.

  1. [226]
    The next day, 11 November 2021, at 6.04 pm (a mere 30 hours later) Mr Qualtrough responded by email as follows:

In response to your email find the below additional information, using your numbering:

  1. CEO Nigel Faull; Care Manager Ann-Marie Baigent and RTW Coordinator Robyn Barnes /Shirley Benyon (Care Worker).[106]
  2. There are business records remaining for the 2014/2015 period which are in archives, that we have reviewed, which do not provide anything relevant for the particular claim. I did review the additional two boxes of interest however they did not include any records specific to Nancy Lee’s injury/claim. The archive records do certainly show the workplace health and safety activity that was undertaken regularly- audits, reviews, incident reports, protective assistance monitoring records, manual handling cards (which include care plan summary information for moving specific residents), food service plans, cleaning plans, medication audits, hazard registers, resident/staff incidents, environment audits etc etc. All of which are required under the Aged Care Quality Standards to achieve accreditation status. My previous email, dated 23 April 2021, did include a Policy 201507 4.5.1 WorkPlace Health & Safety.pdf originating from 2011 and this version, amended in July 2015, also shows the extent of the safety standard/culture within the operating environment. Clause 2.2.1 of this policy Staff Responsibility clearly identifies ‘conducts their activities in a manner which prevents personal injury’, ‘report any … incident…unsafe work practices immediately’ and ‘participate in training … to support the implementation of this policy’. The Staff Training Register 2016, also attached to the previous email shows the level of safety/induction and ongoing mandatory training activities undertaken for each staff member. We are just unable to locate the exact schedule for the periods of interest within the archive systems. It is very improbable to suggest that a particular staff member was improperly trained, or the employer failed to provide a safe workplace, with all of these measures in place, or that a staff member who had not undergone mandatory training would be rostered to work in the facility where lifting and movement of residents would be a standard job function. I am unable to locate or confirm the whereabouts of the historic records that you have requested. They may have been mis-filed, boxes misplaced, or left at the former facility subsequent to the sale of the business, now under the control of Whiddon Group. I am sorry we cannot provide more clarity to the point of specific training records for Nancy Lee.
  3. The policy attached in previous email of 23 April 2021, which was amended as of July 2015, is the latest version of WH&S policy I can locate amongst the current records held by the former owner.
  4. Yes, the contents of the two boxes of interest were reviewed by me personally and found no relevant content to the claims/assertions made by Nancy Lee.
  5. There are no staff orientation records/labels within the Archive registers. However, I will retrieve Box #281 and review its contents as a matter of urgency to ascertain if they are filed under ‘Education Records’.[107]
  6. I am not aware of Helen Castillo, or her role with Star Aged Living. I will access the historic payroll system to identify what contact details are available for her and provide at earliest.
  7. Same as 6, I will access the historic payroll records and provide what contact details I can.

I will aim to provide further response tomorrow. I have left voice messages and text messages for both Nigel Faull and Ann-Marie Baigent to contact you as a matter of urgency. Further I have now spoken with Robyn Barnes and Shirley Benyon who have both agreed to calling you tomorrow.

Hope that helps. I will be in touch again tomorrow once I have accessed the payroll system. (my underlining)

  1. [227]
    On or about 12 November 2021, Ms Moloney had a telephone conversation with Mr Nigel Faull, the CEO of SAL who informed her:[108]
    1. (a)
      The home was a 78-bed facility which offered residential and home care;
    2. (b)
      He was onsite every day but was not involved in the day to day running. Having said that, Ms Baigent, the general manager of residential reported directly to him and they would speak every day;
    3. (c)
      He would be made aware of any “situations” that arose and was aware of this claim;
    4. (d)
      The employer provided quality staff training and its top priority was ensuring the welfare of its staff and residents. In this regard, safety and quality of care was first and money was second;
    5. (e)
      Helen Castillo was involved in the training of staff and he described her as “very particular” about this and “not cutting corners”;
    6. (f)
      Jenny Greenshield was in the accounting department and not involved in the care team;
    7. (g)
      Sue Guy was in administration and may have been involved in the co- ordination of WorkCover claims and managing return to work. She was not a nurse or carer; and
    8. (h)
      Ms Baigent was the key person to speak with.
  1. [228]
    Mr Faull told her that he had some old documents from the employer which he would go through. He would also text Ms Baigent and ask her to call Ms Moloney either after work this afternoon or over the weekend.
  2. [229]
    In cross-examination, Ms Moloney gave evidence that she did not ask for those “old documents” to be provided to her so that she could assess whether or not they had matters of relevance in them. In this regard, she said “No. He simply said that he would have a look and see what he had.”[109] There is no further communication with Mr Faull in evidence.
  1. [230]
    On 12 November 2021, Mr Qualtrough emailed Ms Moloney, further responding to her email of 10 November 2021 stating:

Further to my email yesterday, I have urgently retrieved some additional archived storage boxes and have just been. through them this afternoon. I have looked from the period of Nancy Lee's commencement date, Apr-2014 and through to time of injury. I was able to find the attached documents which include training sessions attended by Nancy within her first 6 months of employment. These sessions are mandatory training sessions for all staff and are repeated annually. You will see from the attendance records this is clearly a systemized practice.

There are a number of training courses that Nancy attended during her first 6 months, I have attached signature sheet for each course that I have been able to find that Nancy attended. I have also included the course content handout for WH&S or Injury prevention related training sessions, where it was available.

You will also find attached an incident report relating to Nancy’s back injury as detailed in her claim. Please note the pre-existing back injury 2010, ongoing working at incorrect heights, the wording around co-worker, 'partner said there were no slide sheets in the room’, Nancy did not appear to check for herself. Also noteworthy, the reference to ‘over a period of time of not raising beds to correct height back began to hurt’. Nancy failed to report the back injury that occurred on the reference date until some 2 months later. She did not obtain medical assistance, or seek treatment at the time of injury and she failed to report to responsible RN on shift. Which is standard practice/policy for work related injuries.

Helen Castillo contact details as they were previously in the HR system: Mobile 0407 139 0222; Home 07 5543 2461.

I hope that helps. (my underlining)

  1. [231]
    The email attached an incident report, an incident register, education sessions reports, and a WHS assessment, each relating to the injury here.
  1. [232]
    Ms Moloney did not ask for the delivery of the additional archive storage boxes referred to in Mr Qualtrough’s email of 12 November 2021, nor did she ask for delivery of the earlier referenced archive storage boxes so that she could review them. She did not, in fact, ask for the delivery of any of the archive storage boxes referred to in her earlier affidavit so that she would be able to review what was in them.
  2. [233]
    On 15 November 2021, Ms Moloney had a telephone conversation with Ms Baigent who informed her:
    1. (a)
      She was the site/facility manager at the time of Ms Lee’s work event. She recalls Ms Lee was working in the rainbow wing and her understanding was that she injured herself while lifting a client’s legs up onto a bed, which was a one-person job;
    2. (b)
      She could not recall being aware that there was another employee involved. If the incident occurred as alleged by Ms Lee, then investigations would have been done immediately and a statement taken from the other employee involved;
    3. (c)
      Every client and/or patient had their own personal slide sheet kept in the wardrobe of their rooms. There was also in each wardrobe a “card” which set out the client/patient’s manual handling requirements and general activities of daily living; and
    4. (d)
      The beds were able to be raised when using a slide sheet.
  1. [234]
    When she noted that Ms Lee could not recall the name of the person she was working with and/or the names of all the patients, Ms Baigent agreed that it would be very difficult to investigate the availability of slide sheets. She suggested attempting to locate the rosters.
  2. [235]
    In cross-examination, Ms Moloney said that the conversation was “not very long”, … “maybe 5 or 6 minutes.” She accepted that this was not an attempt by her to take a full statement from her. She was asked “on the basis of the file note and on what you’ve deposed to in your affidavit, you would not be suggesting that this is a complete and comprehensive recollection of what Ms Bagent may know about this incident, is it?” She answered:

No. I merely spoke with her with respect to not the liability of the claim, but the issues as to prejudice and whether documentation would be located or what her recollection was as she was the site or facility manager at the time .... So… the answer’s no.

Hearsay reliance by SAL of communications by and with Mr Qualtrough

  1. [236]
    SAL has chosen to defend this application by means of affidavits only of Ms Moloney, who set out her communications with others, and provided various emails and file notes. While it can be readily accepted that evidence on information and belief is admissible in proceedings of this nature, the reality is that doing so, in the way in which it has been done in this case, does present some complexities and/or challenges for SAL.
  2. [237]
    In cross-examination, Ms Moloney gave evidence that in the course of communicating with Mr Qualtrough, she did not ascertain whether or not he held any qualifications relevant to assessing what is a relevant or irrelevant document for the purpose of a legal proceeding such as this.
  1. [238]
    Beyond what can be gleaned from the emails of 18 February 2021 to 4 March 2021,[110] the evidence as to who looked for the documents, whether they had sufficient knowledge to know what to look for and where to look for them, and how carefully they looked for documents raises more questions than it answers.
  2. [239]
    I am asked by SAL to find, by inference from the efforts of Mr Qualtrough to locate relevant documents, that there are no other documents relevant to this matter involving Ms Lee.[111]
  1. [240]
    SAL submits, for example, that given that Mr Qualtrough had produced documents, if there had been rosters, he would have regarded them as relevant and produced them. To that end, SAL, in effect, submits that I would find that relevant rosters no longer exist, and thus the identity of co-workers is not able to be ascertained.
  2. [241]
    I do not accept these submissions and I do not draw the inference that SAL ask me to draw that there are no other documents relevant to this matter involving Ms Lee.
  1. [242]
    First, it is not at all clear to me that there has been a methodical search and interrogation for records by people who know where and what to look for. The evidence has not been marshalled in a way which allows me to know and understand all types of relevant categories of documents, where they were held, and whether they have been searched through by a person with adequate knowledge and understanding of the documents relevant to defending this case. By way of example, Mr Qualtrough refers to retrieving “some” archive boxes: whether this is merely some of the potentially relevant archive boxes is not known to me. It is not, however, clear to me that all of the potentially relevant archive boxes have been retrieved, and searched through. They may have, but it is not clear to me that is the case.
  2. [243]
    Secondly, as late as between the hearing days of this application, Ms Baigent, a person said to be “key”, suggested to look to the rosters, yet there is no evidence that that line of enquiry was then pursued. SAL submit that there was no need because Ms Baigent was not made aware (nor should have been made aware) of what investigations Mr Qualtrough had undertaken, nor was she aware of where records might have been. As to the latter, there is no evidence either way. As to the former, had she been made aware of the investigations Mr Qualtrough had undertaken, in the same way this Court has been made aware, one could well understand that she still might make the suggestion to keep looking.
  1. [244]
    Thirdly, SAL submits that “Mr Qualtrough is the only person with knowledge of what records continue to exist and where they are”. That is not at all clear to me on the evidence before me. As stated above, he does seem to be the primary “go to” person for the solicitors representing WorkCover, but the evidence does not elevate beyond that to the submission made by SAL. In any event, as indicated above, it is not at all clear that Mr Qualtrough has obtained and looked through all collections of documents that might be relevant.
  2. [245]
    In this regard, I note the detailed chronology set out above with respect to assertions made at various times as to what documents were and were not available. A consideration of the chronological evidence in this case, for example, indicates that documents said not to be able to be found at one point in time, later become available.[112]
  1. [246]
    Fourthly, I have concerns about reliability. As to this, there is some overlap with the point made immediately above. In addition to that, I queried Counsel for SAL as to how I can accept SAL’s submission that I need to take Mr Qualtrough’s “evidence” as being extremely reliable. The response to that question was that we can only presume that he was referring to older documents, or that perhaps they have been lost due to the sale of the business. The difficulty with that is that Mr Qualtrough positively asserts that relevant records were destroyed because of the seven year retention issue. SAL’s response to that is that the statement in the email was inelegantly worded by someone who is not a legal practitioner. This, with respect, did not allay my concerns as to reliability.
  2. [247]
    I turn now to some specific submissions made by SAL as to prejudice.

Resident care plans/special manual handling requirements, and availability of slide sheets

  1. [248]
    SAL submits that it would be difficult to ascertain the availability of slide sheets some six years after the fact without the names of the patient or patients Ms Lee had provided service to; as too would it be difficult to find their resident care plans/special manual handling requirements.
  2. [249]
    SAL submits that this information is critical.
  1. [250]
    These features, it is said, severely impacts SAL’s ability to defend itself. SAL submits that if the case is truly about the adequacy of provision of slide sheets, that can not possibly be dealt with now – not by documents and not by anyone’s recollection.
  2. [251]
    It is submitted that general evidence that there were always slide sheets there “won’t wash in a case involving what was there on 19 December 2015.” It is submitted that the evidence that SAL would need to produce was the evidence that was there on the particular day. SAL submits that it would not be sufficient to adduce systems evidence that there was general availability in terms of slide sheets, and if there wasn’t a slide sheet in the particular room, then the person would need to go and get one from elsewhere.
  1. [252]
    They submit that Ms Lee’s evidence will be that specific things happened, and SAL won’t be able to respond to that at all.[113]
  2. [253]
    SAL submits that this is not sufficient where Ms Lee alleges that there wasn’t a slide sheet there and the co-worker said “Let’s move the patient anyway”. In that regard, they submit they do not know who the co-worker is, or how that co-worker was trained, or what sessions they went through. As to the latter point, I later discuss the issue as to whether SAL has placed sufficient facts to lead me to the view that the identity of the co-worker, their training and that they would not be able to give relevant evidence, below. (They have not).
  1. [254]
    I do accept that there is likely to be some prejudice arising out of the difficulty SAL may face in defending specific allegations in respect of a specific co-worker, (once proper enquiries have been made). I do not regard this as amounting to significant prejudice in light of the evidence that SAL can adduce as to systems, from persons such as the CEO and the Care Manager, and Ms Benyon that she always used slide sheets (thus leading to the inference that they were available.)
  2. [255]
    As to special manual handling, I note that Mr Qualtrough’s 11 November 2021 email to Ms Moloney, states that within two archive boxes he reviewed, although there weren’t records “specific” to Ms Lee’s claim, the records did include manual handling cards (which include care plan summary information for moving specific residents.) I do not take Mr Qualtrough’s reference to there being no documents ‘specific to Ms Lee’s claim’ as meaning that these manual handling cards for specific residents were not residents which Ms Lee may have assisted on the day in question. It might take some further interrogation and cross-referencing to seek to establish who these residents might have been. On the state of the current evidence, I am not satisfied that SAL has placed in evidence sufficient facts to lead me to the conclusion that relevant manual handling documents for specific residents no longer exist.

Staff training records

  1. [256]
    SAL submits that the absence of training records significantly prejudices them. As I hope is clear from above, I am not satisfied that there has been a methodical and complete search for training records. For example, within 30 hours of an email being sent by Ms Moloney to Mr Qualtrough, (between the two hearing dates), training records for Ms Lee which could not be found previously, were able to be found. Mr Qualtrough’s email begs the question as to what else might be out there with a more methodical approach, assisted first hand by someone with legal training.
  2. [257]
    Ms Lee submits that there is quite a lot of training records, with some emerging only in the week before day 2 of the hearing. In that respect, Ms Lee points to, inter alia:
    1. (a)
      Manual handling assessment,[114] in which the words “positioning, lifting and transferring of a resident” appear, and next to which is a tick for “achieved”, with a signature of Ms Castillo and Ms Lee. Ms Lee submits that if SAL wish to raise evidence to suggest that they had assessed Ms Lee in respect of this, they have a document they can rely on;
    2. (b)
      Orientation module 1 records that as part of induction, Ms Lee completed “location of policy and procedure manuals”;
    3. (c)
      New staff administration checklist, which includes manual handling under “competencies” which was ticked off on 8 March 2014;[115]
    4. (d)
      Elements for education in safe manual handling for care staff, dated 22 October 2014;[116] and
    5. (e)
      Essential WHS Safe Manual Handling for Care Staff.[117]
  1. [258]
    Ms Lee submits that we do not have anything from SAL indicating that there are yet still more staff training documents or records that they would expect to have in existence which they have not now located.[118] Ms Lee submits that that is a fatal problem for SAL.
  2. [259]
    I am not satisfied that SAL have placed sufficient evidence before me to satisfy me that there were further training records which would have assisted the case which are not able to be located.
  1. [260]
    Even if there are some training records which are truly lost to SAL, when one considers the training records which are available, and the oral evidence which will be available to SAL as to the systems in place for training from at least the CEO and Care Manager, and perhaps Ms Castillo, I am of the view that any prejudice does not amount to significant prejudice, either alone or in conjunction with other prejudice SAL alleges in respect of other types of documents and witness evidence.

Client specific monitoring worksheets

  1. [261]
    Ms Lee submits that there is nothing before me as to what these might have contained and how they might be relevant to the case.[119]
  1. [262]
    Again, for reasons as expressed above, I am not satisfied that SAL have placed sufficient evidence before me to satisfy me that there were client specific monitoring worksheets which would have assisted the case which are not able to be located. I also note that Mr Qualtrough refers to “protective assistance monitoring records” in his email 11 November 2021. I do not know if these are or are not client specific monitoring worksheets.
  2. [263]
    In any event, even if there are some client specific monitoring worksheets which are truly lost to SAL, I am not satisfied that there is actual prejudice which flows from that relevant to the claim as pleaded.

Safety audit reports and schedules

  1. [264]
    Ms Lee submits that it is not at all clear that these documents have been lost. Mr Qualtrough stated in his email of 23 April 2021 that the audits were conducted through the Aged Care Quality and Safety Commission and that the audits required safe work handling process policies and evidence of staff induction and training, as well as evidence of staff competency and verification through resident interview.
  2. [265]
    Notwithstanding the fact that Ms Lee’s Counsel had specifically forewarned SAL that Ms Lee would be submitting that there is no suggestion in the material that SAL had contacted the Commission to have their file provided, it seems no attempt to do so was made.
  1. [266]
    Further, Mr Qualtrough’s email of 11 November 2021, does refer to there being records as to “workplace health and safety activity that was undertaken regularly – audits, reviews, incident reports…”
  2. [267]
    In the end, I am not satisfied that SAL have placed before me evidence that this category of documents is lost and/or not able to be obtained; and thus has not established that it is prejudiced in this respect.

Workplace Health and Safety Officer Hazard and Safety reports

  1. [268]
    Ms Lee submitted that these reports, if relevant, should be able to be accessed, if they exist. I am not aware of attempts made to recover these documents to the relevant regulatory authority, or even if such records are remitted to them.
  2. [269]
    Ms Lee submits that there is no evidence to suggest that there were, in fact, workplace health and safety committee meeting minutes kept, or that there might have been something said in those committee meetings about manual handling, the height of beds, the training of staff or any other matter which might be of relevance here. Ms Lee submits “It’s just a broad ranging sort of assertion: something might have been said and we haven’t found those meeting minutes.”
  1. [270]
    I note that in Mr Qualtrough’s email of 11 November 2021, he does refer to his discovery of records going to work health and safety activity – “incident reports, .... Hazard registers, resident/staff incidents etc etc.” (my underlining)
  2. [271]
    I am not satisfied that SAL has placed before me sufficient facts to show that there were committee meeting minutes, that they would have been relevant to have for SAL to defend the matter, or that if they exist, they are lost to SAL.

Care manager notebooks

  1. [272]
    As for each category of documents said to be lost to SAL, I am not satisfied that SAL has placed before me sufficient facts that such documents are in fact lost to SAL (either through actual loss or through destruction).

Co-worker details and supervisor/manager details – other witnesses

  1. [273]
    SAL submit that they have only been able to ascertain the identity of one co-worker of Ms Lee on 19 December 2015, namely Ms Benyon, and she does not recall Ms Lee, let alone what happened, and that these things amount to significant prejudice because SAL is not able to say what might or might not have happened in the particular lifts or movements that are complained of. However, Ms Benyon can give evidence that slide sheets were always available, and she always used them. No attempt has been made to take a full statement from Ms Benyon, but when that does occur, it would seem likely that given Ms Benyon will be able to recall what her usual practise was in respect of the manual handling of patients, and whether she ever departed from that, and in what circumstances. In my view, this goes some significant way to SAL defending the allegations, particularly when it is combined by others such as the CEO and Care Manager about safety systems within the workplace.
  1. [274]
    SAL further submit that even if other co-workers were able to be found, that it is unfathomable that they would be able to recall anything of the circumstances of the duties that led to the onset of pain.[120]
  2. [275]
    I do accept the unlikelihood of such a co-worker being able to recall the specifics of the evening, however, such co-workers may well be able to give relevant evidence as to systems.
  1. [276]
    They may well be able to recall what the systems were with respect to the movement of patients, and the use and availability of slide sheets in that respect, and whether they ever would have said to move a patient in circumstances when a slide sheet was not available. We do not know if they can, because those enquiries have not been pursued, notwithstanding the suggestion to do so by a person who appears to have adequate contemporary knowledge of what the business records were, to check the rosters.
  2. [277]
    When Ms Moloney spoke with Ms Baigent on 15 November 2021, Ms Baigent suggested, in the context of Ms Lee not recalling the name of the person she was working with and/or the names of all the patients, Ms Baigent did agree that it would be very difficult to investigate the availability of slide sheets. She then suggested “attempting to locate the rosters.”[121] Ms Baigent, was, according to Mr Faull, the then CEO, as “key”. There was no evidence of an attempt to locate the rosters thereafter. As well as this, Mr Faull said that he had documents as well, and there is no evidence as to what they are.
  1. [278]
    I am not satisfied that SAL has placed before me evidence from which I would be satisfied that the details of the co-workers are not ascertainable, or that the co-workers would not have relevant information to give on the part of SAL.
  2. [279]
    Ms Lee also points to the staff education attendance sheets, which lists over 40 staff, who, according to the document have been educated in the various staff education items, and who provide a great number of people for SAL to make enquiries as to their knowledge of Ms Lee, and the training of themselves and others, including Ms Lee, yet no evidence of attempts to do so.[122]
  1. [280]
    I am not satisfied that the asserted likely diminution of recollection of Ms Benyon and any other co-workers if sufficient to establish significant prejudice.

Bed too low

  1. [281]
    Although Ms Lee raised the issue about the bed being too low, it appears that SAL is able to adduce evidence that the beds could be raised. It appears that that issue may not be agitated.[123] In the end, I am not satisfied that there is any relevant prejudice to SAL in respect of the issue of the height of the beds.

Conclusion

  1. [282]
    To the limited extent that I have found that SAL has placed in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned, Ms Lee has shown that that prejudice does not amount to material prejudice has persuaded me that a fair trial is possible. I find that the delay has not made the chances of a fair trial unlikely. This is so even taking into account presumptive prejudice which arises by being outside the limitations period.
  2. [283]
    I am satisfied that Ms Lee has demonstrated the onus that the justice of the case requires the extension. She has discharged the onus on her to satisfy the Court that time should be extended.

Order

  1. [284]
    The application to extend time is granted.
  2. [285]
    I will hear the parties as to costs.

Footnotes

[1]  AO [7].

[2]  AO [4], [6].

[3]  AO [4].

[4]  AO [5], [6].

[5]  AO [6].

[6]  RO [3].

[7]   2-36.19.

[8]  Paras 6, 10 and 12 of the statement of claim.

[9]  29 October 2020.

[10]  (1984) 154 CLR 234, 250-251.

[11] State of Queensland v Stephenson (2006) 226 CLR 197, at 208 per Gummow, Hayne, and Crennan JJ.

[12]State of Queensland v Stephenson (2006) 226 CLR 197, 208.

[13]Dick v University of Queensland [2000] 2 Qd R 476, [35]; Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, 441–443.

[14]Castlemaine Perkins v McPhee [1979] Qd R 469, 473E; Randel v Brisbane City Council [1984] 2 Qd R 276, 279; NF v State of Queensland [2005] QCA 110.

[15][2005] QCA 110, [29].

[16][1993] QCA 210.

[17]Kambarbakis v G and L Scaffold Contracting P/L [2008] QCA 262, [48]; Gillespie v Swift Australia P/L [2009] QCA 316, [20]–[21].

[18]State of Queensland v Stephenson (2006) 226 CLR 197.

[19]State of Queensland v Stephenson (2006) 226 CLR 197, [29].

[20]State of Queensland v Stephenson (2006) 226 CLR 197, [29].

[21] State of Queensland v Stephenson (2006) 226 CLR 197, [29].

[22]Wrightson v State of Queensland [2004] QSC 218, [10].

[23]Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (In Liquidation) & Anor [2009] QCA 352, [97] per P Lyons J, with whom Fraser JA agreed.

[24]  [1988] 2 Qd R 325, 333. See also Berg v Kruger Enterprises (Division of Besser Qld Limited) Ltd [1990] 2 Qd R 301.

[25]Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23–24.

[26]Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23–24.

[27]Watters v Queensland [2001] 1 Qd R 448, [11] per Thomas JA.

[28]Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23–24.

[29]Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23–24.

[30]  See Castillon v P & O Ports Limited (No 2) [2008] 2 Qd R 219, [34] per Keane JA.

[31]  [1998] QCA 298, [20].

[32]  AO 4.

[33] AO 6.

[34] It seems likely that this note should have recorded that she could “not” sit for longer than 20 minutes.

[35]  SAL written submission 5 November 2021, [52].

[36]  AO6.

[37]  Obtained after the Notice of Claim was given to WorkCover, but before the Claim and Statement of Claim was filed in this Court.

[38]  Obtained after the Notice of Claim was given to WorkCover, but before the Claim and Statement of Claim was filed in this Court.

[39]  1-15.

[40]  1-12.

[41]   1-13.

[42]  1-20.

[43]  Three months after the incident: evidence of Lee, 1-25.

[44]  1-14.35.

[45]   1-17.

[46]  1-20.

[47]   Applicant bundle 7.

[48]  Applicant bundle 13.

[49]  1-21.

[50]  1-20.

[51]Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, 434–435 per Macrossan CJ.

[52]Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, 434 per Macrossan CJ.

[53]  Brisbane South Regional Health Authority, 544, Dawson J.

[54] Brisbane South Regional Health Authority, 550, Toohey and Gummow JJ.

[55]  Brisbane South Regional Health Authority, 556, McHugh J.

[56]  Brisbane South Regional Health Authority, 547, Toohey and Gummow JJ.

[57] Brisbane South Regional Health Authority, Toohey and Gummow JJ, 547.

[58]  Brisbane South Regional Health Authority, McHugh J, 551.

[59]  Brisbane South Regional Health Authority, Toohey and Gummow JJ, 547.

[60]  Brisbane South Regional Health Authority, Toohey and Gummow JJ, 547 citing Gowans J in Cowie v State Electricity Commission (Vict) [1964] VR 788, 793, which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465, 474.

[61]  Brisbane South Regional Health Authority, Toohey and Gummow JJ, 548. See also at 550.

[62]  Brisbane South Regional Health Authority, Toohey and Gummow JJ, 550.

[63] Brisbane South Regional Health Authority, Toohey and Gummow JJ, 549-550.

[64]  Brisbane South Regional Health Authority, Dawson J, 544.

[65]  Brisbane South Regional Health Authority, McHugh J, 551, and at 553.

[66] Brisbane South Regional Health Authority, McHugh J, 555 (discussed further below). See also NF v State of Queensland [2005] QCA 110, [44].

[67] Brisbane South Regional Health Authority, McHugh J, 551 citing R v Lawrence [1982] AC 510, 517, per Lord Hailsham of St Marylebone LC.

[68]  Brisbane South Regional Health Authority, McHugh J, 551 and see the discussion following, including the reference to the United States Supreme Court pointed out in Barker v Wingo (1972) 407 JUS 514, 531, where the Court stated that “what has been forgotten can rarely be shown.”

[69] Brisbane South Regional Health Authority, McHugh J, 552.

[70] Brisbane South Regional Health Authority, McHugh J, 553–554, bold added, citations omitted.

[71] Brisbane South Regional Health Authority v Taylor, McHugh J, 555.

[72]Brisbane South Regional Health Authority v Taylor, McHugh J, 555.

[73]  [2010] QSC 425, [78].

[74]Brisbane South Regional Health Authority v Taylor, Toohey and Gummow JJ, 548–9.

[75]Hertess v Adams [2011] QCA 73, [11].

[76] Ballingall v WorkCover Queensland et al [2017] QSC 133, [67].

[77]  I hasten to add that he was not the only person Ms Moloney had communications with.

[78]  MFM34.

[79]  MFM34.

[80]  MFM35.

[81]   MFM36.

[82]   MFM38.

[83]  MFM39.

[84]  Para 52 of Moloney’s first affidavit, MFM 40.

[85]  MFM40.

[86]  MFM43.

[87]   p 115 to Moloney first affidavit.

[88]  p 116.

[89]  140.

[90]  189.

[91]  192.

[92]  Review date.

[93]  The document refers to a “review date” of April 2017; and “date reviewed” April 2014.

[94]   201.

[95]  The document refers to a “review date” of Feb 2018 ; and “date reviewed” July 2015.

[96]  205.

[97]  Paras 25-27, SAL outline of submissions.

[98]  In this regard, Ms Moloney wrote to Ms Baigent once, but did not follow up or take any further step.

[99]  Para 47, SAL outline of submissions.

[100]  Para 48, SAL outline of submissions.

[101]  Para 42, Mooney first affidavit.

[102]  Exhibit 12.

[103]   I do not accept that this is a necessary condition from the policy, particularly given the evidence of others will seem to be that patients could be moved and that slide sheets were to be used.

[104]  Page 205.

[105]   The alleged gap was for policies as at 19 December 2015, not after.

[106]  Phone numbers appeared in the email but have been redacted by me for this judgment.

[107]  It is not clear to me if box #281 was retrieved or reviewed prior to resumption on 16 November 2021, although it is possible that it was one of the boxes reviewed on 12 November 2021 by Mr Qualtrough.

[108]  File note of conversation is exhibit 13.

[109]  2-7.

[110]  Exhibited as part of MFM44 to the first affidavit of Ms Moloney.

[111]  2-37.29.

[112]  See for example the points raised by Counsel at 2-20.21-29.

[113]  2-40.7.

[114]  159.

[115]  151.

[116]  17 in third Moloney affidavit.

[117]  23 in third Moloney affidavit.

[118]   2-20.

[119]   2-21.

[120]  2-38.40-2.40.7.

[121]  Exhibit 14.

[122]  2-23.

[123]  2-42.2.

Close

Editorial Notes

  • Published Case Name:

    Lee v Star Aged Living Limited

  • Shortened Case Name:

    Lee v Star Aged Living Ltd

  • MNC:

    [2023] QSC 49

  • Court:

    QSC

  • Judge(s):

    Mellifont J

  • Date:

    10 Mar 2023

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2023] QSC 4910 Mar 2023Application to extend limitation period (Limitation of Actions Act 1974 (Qld) s 31), in respect of injury alleged to have been caused by employer's negligence, granted: Mellifont J.
Appeal Determined (QCA)[2024] QCA 125 Jan 2024Appeal allowed; orders below set aside; application to extend limitation period dismissed: Bowskill CJ (Bond and Flanagan JJA agreeing).

Appeal Status

Appeal Determined (QCA)

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