Vivian v Gameover Pty Ltd[2024] QSC 263

SUPREME COURT OF QUEENSLAND

1. [1]
   By way of an originating application, the Applicant seeks an order that the Applicant’s period of limitation to commence proceedings against the Respondent be extended so that it expires on 8 December 2023 pursuant to s 31(2) of the Limitations of Actions Act 1974 (Qld) (LA Act).
2. [2]
   The Applicant contends that a material fact of a decisive character was not within the means of his knowledge until 8 December 2022, being the date of an expert report of neurologist, Dr Don Todman.  The Applicant says that Dr Todman’s expert opinion was the first time that he had been advised that his combined physical and psychological injuries would preclude him from working.
3. [3]
   In these circumstances the relevant material facts relied upon by the Applicant are:

   1. the nature and extent of the injury suffered (s 30(1)(a)(iv) of the LA Act); and
   2. the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty of the defendant (s 30(1)(a)(v) of the LA Act).
4. [4]
   Further, the Applicant contends that these facts were not within the means of knowledge of the Applicant for the purposes of s 30(1)(c)(i) and (ii) of the LA Act prior to 8 December 2022. 
5. [5]
   That is, prior to 8 December 2022:

   1. the Applicant believed that with adequate treatment (possibly including surgery) he would return to the workforce; and
   2. the Applicant had no reason to believe that it would be in his interest to make a claim for damages as he expected to return to the workforce.
6. [6]
   The Applicant contends that the physical and psychological injuries sustained by the Applicant were far more serious than he had realised, in that they would prevent him from ever returning to work.  The opinion of Dr Todman that combined injuries would exclude him from employment made the Applicant aware that, if successful, a negligence claim would probably result in a substantial award of damages previously not contemplated.
7. [7]
   The Respondent contends that:

   1. At least by early 2022, and most likely earlier, a reasonable man appropriately advised would have brought an action on the facts in his possession at that time.
   2. The Applicant has not established that he has an action on the right of action, for the purposes of s 31(2)(b) of the LA Act.
8. [8]
   In these circumstances, the Respondent contends that the requirements of s 31 of the LA Act are not met and the discretion to extend the limitation period does not arise.  Accordingly, the Respondent submits that the Applicant has not established an entitlement to an extension of the limitation period pursuant to s 31(2) of the LA Act and the application should be dismissed.
9. [9]
   At the hearing on 3 October 2024, the Respondent acknowledged that if the Applicant does establish the requirements of s 31 of the LA Act such that the Court’s discretion arises, the Respondent does not point to any factors against the Court exercising the discretion to extend the limitation period.

Legislative provisions and key issues

10. [10]
    The relevant legislative provisions are ss 30 and 31 of the LA Act which state as follows:

1. “30Interpretation

1. (1)
   For the purposes of this section and sections 31, 32, 33 and 34—

1. (a)
   the material facts relating to a right of action include the following—

1. (i)
   the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
2. (ii)
   the identity of the person against whom the right of action lies;
3. (iii)
   the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
4. (iv)
   the nature and extent of the personal injury so caused;
5. (v)
   the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

1. (b)
   material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—

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. (c)
   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. (2)
   In this section—

appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.

1. 31Ordinary 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.
2. (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
2. (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
2. (b)
   before an application is made under this section in respect of the right of action.”

11. [11]
    These sections have been considered extensively and the authorities provide some assistance as to the approach to the application.
12. [12]
    Relevantly, the Court of Appeal in Dick v University of Queensland,^[1] considered the operation of the provisions. Thomas JA stated at [26] the approach to the application for an extension of a limitation period under s 31 of the LA Act as follows:

“The legislation in question, ss 57 and 58 of the Limitation Act 1969 (N.S.W.), is in pari materia with the Queensland legislation, ss 30 and 31 of the Limitation of Actions Act 1974. In quoting further passages from Dawson J.’s judgment I have interpolated the relevant Queensland sections:

‘The form of the legislation requires, I think, a step-by-step approach. The first step is to inquire whether the facts of which the appellant was unaware were material facts: s. 57(1)(b) [Qld s. 30(1)(a)]. If they were, the next step is to ascertain whether they were of a decisive character: s. 57(1)(c) [Qld s. 30(1)(b)]. If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date: s. 58(2) [Qld s. 30(1)(c)].’”

13. [13]
    Generally, the provisions operate such that the three year limitation period in respect of a claim for personal injuries may be extended for one year if:

    1. material facts of a decisive character were not within a plaintiff’s means of knowledge at the relevant time; and
    2. there is evidence to establish the cause of action.
14. [14]
    Section 31(3) of the LA Act operates whether or not the limitation period has expired before the application for an extension of the limitation period.
15. [15]
    Accordingly, the key issues to be determined are:

    1. For the purposes of s 31(2)(a) of the LA Act, was a material fact of a decisive character in relation to the right of action not within the Applicant’s means of knowledge until a date within a year before the limitation period expires?
    2. For the purposes of s 31(2)(b) of the LA Act, is there evidence to establish the right of action, apart from a defence founded on limitation?
    3. If it arises, how should the discretion be exercised?
16. [16]
    Before considering these issues, it is appropriate to consider some of the background facts.

Factual background

17. [17]
    The relevant background facts include:

    1. In 2005 the Applicant suffered a back injury when he slipped and fell at work as a kitchenhand.
    2. On 21 January 2018, the Applicant allegedly suffered an injury at work when he was employed by the Respondent.  The Applicant alleges that in the course of refitting a go-kart with new batteries weighing approximately 20 kgs each and carrying the new batteries and “dead” batteries a distance of approximately 20 metres from the go-kart to a storage shed he suffered a lumbar spine injury (2018 Incident).
    3. On 27 February 2018, the Applicant lodged an application for compensation for injuries, being “lower back, disc displacement, prolapse, hernia”, in relation to the 2018 Incident.
    4. The Applicant’s claim was accepted and WorkCover benefits commenced.
    5. On 22 February 2019, the Applicant advised WorkCover that he was on a mental health plan and was seeing a psychologist.
    6. Following the physical injury allegedly suffered in the 2018 Incident, the Applicant was diagnosed with a “secondary psychological injury” on 30 March 2019.^[2]
    7. On 1 March 2019, WorkCover commenced paying for the Applicant’s psychological treatment, in addition to the previously approved benefits.
    8. Between 31 March and 9 May 2021, the Applicant was seen by various doctors who provided opinions on the extent of the Applicant’s injuries.^[3]
    9. On 13 May 2021, WorkCover informed the Applicant:
       1. That the physical and psychological injury related to the 2018 Incident had ceased.
       2. No further medical treatment or wages would be funded after 14 May 2021 on the basis that the work injury would not improve with further treatment and did not continue to incapacitate him.
    10. On 14 May 2021, Dr Greg Hunter, the Applicant’s general practitioner, advised WorkCover that he disagreed with the psychiatric opinion provided on 9 May 2021^[4] and that the psychological injury had not ceased.
    11. On 23 July 2021, a Review Decision was provided by the Workers’ Compensation Regulator.  The Review Decision relevantly included:
        1. Confirmation of the decision of WorkCover to terminate entitlement to compensation from 31 March 2021.
        2. Reliance upon the opinion of Dr Gregory Day, orthopaedic surgeon, that the Applicant’s back injury had ceased and was stable and stationary.
        3. As a consequence of that opinion, the Applicant’s incapacity due to the accepted work-related injury (arising out of the 2018 Incident) had ceased.
        4. The treatment for the psychological injury would continue, together with funding of the Spendlove Pain Management Program.
    12. On 12 November 2021, the medical assessment Tribunal Psychiatrist found that the Applicant had developed features of a Major Depressive Disorder, which was not stable and stationary.
    13. On 10 March 2022,^[5] the Applicant made an application for total and permanent disability benefits to Sunsuper (Sunsuper TPD Application).^[6]
    14. On 10 March 2022, the Applicant made an application for total and permanent disability benefits to QSuper (QSuper TPD Application).^[7]
    15. On 23 September 2022, Dr Khaldoon Alsaee (treating psychiatrist) provided a report to WorkCover in which the Applicant was diagnosed with a major depressive episode.  Dr Alsaee’s opinion was that in his current state the Applicant had very little capacity for any type of employment.
    16. On 30 September 2022, the Applicant was assessed by Ian Johnson (psychologist) including as follows:
        1. The Applicant’s functioning was decreasing due to the “accumulative” effect of the physical and psychological injury.
        2. It was unreasonable to expect the Applicant to be considering any form of work at that stage due to the nature of his injury and the associated pain.
    17. On 8 December 2022, Dr Don Todman, neurologist, provided a report:
        1. Confirming that the Applicant had made a full recovery from his 2005 back injury.
        2. In relation to the 2018 Incident, the Applicant had suffered an 8% whole impairment rating.
        3. Physical pain and psychological distress were impacting the Applicant’s daily life and there was no prospect of return to any employment, unless there was some breakthrough treatment.
    18. On 25 January 2023, Dr Malcolm Foxcroft, psychiatrist, provided an opinion that the Applicant was totally incapacitated for all forms of employment due to his combined injuries.
18. [18]
    On 1 June 2023, the Applicant served a Notice of Claim for damages pursuant to s 275 of the Worker’s Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) in relation to the 2018 Incident.
19. [19]
    By letter dated 7 June 2023 the Applicant was notified that the Notice of Claim served on WorkCover was non-compliant with s 275 of the WCR Act.  WorkCover further indicated that it was willing to waive compliance with the provisions of s 275 of the WCR Act on certain conditions.^[8]
20. [20]
    By letter dated 14 August 2023 compliance of the Notice of Claim was confirmed as at 14 August 2023.^[9]  By operation of s 302 of the WCR Act, at 14 August 2023 “time stopped running”.^[10]
21. [21]
    Accordingly, it is necessary for the current application for the Applicant to establish a material fact of a decisive character no earlier than 14 August 2022 (Relevant Date).

Was a material fact of a decisive character not within the Applicant’s means of knowledge until a date after the Relevant Date?

22. [22]
    The material facts relied upon by the Applicant are:

    1. the combined physical and psychological injuries were permanent as a result of the 2018 Incident; and
    2. the combined physical and psychological injuries precluded the Applicant from working again.
23. [23]
    Section 30(1)(a) of the LA Act provides that material facts relating to a right of action include the various listed factors.
24. [24]
    Here the two relevant factors are:

    1. the nature and extent of the personal injury; and
    2. the extent to which the injury was caused by the negligence, trespass, nuisance or breach of duty.
25. [25]
    The authorities recognise that consideration of these factors involves considerations of degree and significance, including:

    1. The fact that that an injury is far more serious than realised may be a material fact, particularly where the injury was reasonably believed to be “trifling” and not worth claiming for.^[11]
    2. However, it may not be a material fact if the injury was sufficiently serious from the outset to be worthwhile bringing an action.^[12]
    3. Further, the economic consequences of an injury are capable of being a material fact.^[13]
26. [26]
    Subject to the matters discussed below, the matters relied upon by the Applicant are capable of being material facts.
27. [27]
    It is not controversial that material facts are of a decisive character if a reasonable person with knowledge of those facts and appropriate advice on them, would regard them as showing:

    1. that the action, apart from the expiration of the limitation period, have a reasonable prospect of success and of resulting in an award of damages sufficient to justify bringing the action; and
    2. that the plaintiff ought to bring an action, taking into account his or her own interests and circumstances.^[14]
28. [28]
    Lyons J in Honour v Faminco Mining Services Pty Ltd^[15] held that both limbs need to be satisfied to establish that a material fact is of a decisive character.
29. [29]
    In Byers v Capricorn Coal Management Pty Ltd^[16] the Court considered the nature and extent of injury factor.  On the facts of that case advice that was given three years after the injury, that the plaintiff would have to cease employment in a highly paid role as a miner and seek alternative employment, was found to be a material fact of a decisive character.
30. [30]
    It has also been recognised that a material fact may be of a decisive character if it enhances the prospects of success in an action for damages from a “possibility” to a “real likelihood”.^[17]
31. [31]
    “Appropriate advice” for the purposes of s 30(b) of the LA Act may be advice in relation to medical, legal or other fields.  This may include expertise in areas such as workplace safety.^[18]
32. [32]
    The Respondent accepts the following propositions:

    1. The consequences of an injury, including economic consequences, can be a material fact of a decisive character.  However, a new fact that merely bears upon the nature and extent of the injury or that would cause a new quantitative or qualitative assessment to be made is not enough.^[19] 
    2. The Applicant must show that without the newly learnt fact he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and in his own interest it should be pursued.
33. [33]
    It was recognised by Thomas J in Mills v Comalco Aluminium Limited^[20] that once an applicant -

“gains knowledge of sufficient material facts of a decisive character to satisfy the definition of s 30(1)(b), he cannot say that any further fact is a “material fact of a decisive nature relating to the cause of action” under s 31(2)(a), “no matter how additionally persuasive that fact may be”.

34. [34]
    The more recent decision of Star Aged Living Limited v Lee^[21] considers “the critical mass of information” required to give knowledge of a worthwhile right of action, if properly advised.  Bowskill CJ^[22] referred to the decision of Keane JA in Castillon v P&O Ports Ltd (No 2)^[23] as the starting point for the concept of a “critical mass of information”.
35. [35]
    Bowskill CJ notes the following statements of Keane JA in Castillon v P&O Ports Ltd (No 2):

“The notion of a ‘critical mass of information’ comes from the decision of Keane JA in Castillon v P&O Ports Ltd (No 2) [2008] 2 Qd R 219, where his Honour said:

1. ‘[34]
   In the plaintiff’s second application at first instance, the plaintiff argued successfully that the material fact of a decisive character was the fact of the termination of the plaintiff’s employment with the defendant on 17 December 2004. In my respectful opinion, quite apart from the circumstance that this fact was obviously known to the plaintiff at the time his first application was heard and determined, the plaintiff had ample basis for concluding that his inability to work as a crane driver and the uncertainty attending his prospects of re-assignment were such as to give rise to a worthwhile cause of action prior to 27 November 2001. That later information may have enabled the plaintiff to show that his right of action was ‘more worthwhile’ than it might have previously been thought to be, but it does not alter the circumstance that, in accordance with the evidence supporting the findings of Rackemann DCJ, there was a critical mass of information within the plaintiff’s means of knowledge prior to 27 November 2001 which justified bringing the action.
2. [35]
   That the critical mass of information available to the plaintiff may have been augmented by knowledge about the defendant’s views of the prospects of the termination of his employment was beside the point. In Moriarty v Sunbeam Corporation Limited, Macrossan J said:

‘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. This is what the application of the test of decisiveness under s 30(b) comes down to: Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23, 24 and Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 251 per Deane J.’

1. [36]
   In Sugden v Crawford, Connolly J said:

‘Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s 30(b) are satisfied without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action …’”

36. [36]
    On the facts in Star Aged Living Limited v Lee Bowskill CJ concluded in respect of one of the alleged material facts of a decisive character:

1. “[39]
   In my view, that further contention should also be accepted. Having regard to the relevant principles, in light of what the respondent knew, by November 2018, it must be said that there was, at that time, a critical mass of information within the respondent’s knowledge which justified bringing the action. Had it been established, that may have been augmented by knowledge that she would not be able to return to work in any capacity. But, even before that, her circumstances were such that to adopt the words of Keane JA from Spain v Dipompo Jacs Constructions P/L & Anor [2009] QCA 323 at [61]:

‘… a reasonable person in [the respondent’s] position would have appreciated that [she] was in a situation of vulnerability in the labour market. This limitation of [her] earning capacity, together with the pain and suffering and loss of amenities [she was experiencing], would have been regarded by a reasonable person who took appropriate advice as showing that an award of damages by way of compensation would be sufficient to justify the bringing of an action at that time.’”

37. [37]
    In the current case the key issue is whether the Applicant can show that one of the alleged material facts of a decisive character were not within the Applicant’s means of knowledge until after the relevant date, being 14 August 2022.  Or put a different way, prior to 14 August 2022 was there a critical mass of information within the Applicant’s knowledge which justified bringing the action?
38. [38]
    Pursuant to s 30(1)(b) of the LA Act, a fact is not within a person’s means of knowledge if:

    1. the person does not know the fact at that time; and
    2. the person has taken all reasonable steps to find out the fact before that time.
39. [39]
    Accordingly, here both the material fact and its decisive character must be established to be outside the knowledge of the Applicant until after 14 August 2022.^[24]
40. [40]
    The second limb is not the means of knowledge available to the reasonable person.  Rather it is the means of knowledge available to the Applicant.  Further, the test of whether reasonable steps have been taken is objective but with regard to the Applicant’s background and understanding, including age and condition in life.^[25]
41. [41]
    The Applicant contends that:

    1. The expert opinion of Dr Todman on 8 December 2022 was the first time that he had been advised that the combined physical and psychological injuries would preclude him from working.
    2. The physical and psychological injuries he sustained were far more serious than the Applicant had realised, in that they would prevent him from ever returning to work.
    3. Prior to this, the Applicant believed that with adequate treatment, including possible surgery, he would return to the workforce.
    4. The fact that the combined injuries would exclude him from employment made the Applicant, then aged 37 years, aware that if successful his negligence claim would probably result in a substantial award for damages previously not contemplated.
42. [42]
    These facts are capable of being material and decisive depending on what was within the means of knowledge of the Applicant prior to 8 December 2022.
43. [43]
    The Respondent points to a number of matters relevant to this issue:

    1. In 2019 the Applicant was referred to Dr Grice, a pain management physician and anaesthetist, for treatment. 
    2. Dr Grice prepared a report for WorkCover dated 11 May 2020^[26] which included the following opinions:
       1. (i)
          In either the short or the long term the Applicant could not return to his previous job as a track supervisor of 25 hours a week or to complete his ordinary hours in that job.
       1. (ii)
          Dr Grice did not believe that the Claimant would ever return to his previous full duties.
    3. Dr Jacqueline Evans, pain specialist, prepared a report dated 3 November 2020^[27] which included the following opinions:
       1. (i)
          The Applicant was taking a morphine equivalent far in excess of safe doses of opioid.
       1. (ii)
          The Applicant had minimal functional capacity in a substantive or an alternate role.
       1. (iii)
          The Applicant’s prognosis was poor.
    4. Dr McEntee, orthopaedic spine surgeon, prepared a report dated 1 April 2021^[28] which included the following:
       1. (i)
          On 1 April 2021 the Applicant had struggled to walk “with any fluency”, was diagnosed with a chronic injury to his L4/5 disc and was suffering from on-going “discogenic law back pain”.
       1. (ii)
          The Applicant presented with “significant ongoing pain and disability”.
       1. (iii)
          Further tests were arranged including an MRI with standing x-ray and an EMG examination of his lower limbs.  Treatment options would be discussed following those investigations.
    5. The Applicant’s affidavit identifies at [15] that:
       1. (i)
          Dr McEntee made a recommendation that the Applicant would benefit from a muscle stimulator prior to considering disc replacement surgery.
       1. (ii)
          This was the first time any additional treatment options and surgery had been recommended.
       1. (iii)
          The Applicant believed that these further interventions would assist with his pain and enable him to return to work.
    6. On 10 March 2022 the Applicant made the Sunsuper TPD Application,^[29] including:
       1. (i)
          The Applicant stated that he did not plan to return to work and was unable to return to work in any capacity.
       1. (ii)
          The Applicant stated that the nature of his illness or injury was a physical injury to his back along with a subsequent adjustment disorder with major depression.
       1. (iii)
          The Applicant recorded the cause of his illness or injury as being a workplace injury.
       1. (iv)
          The Applicant relied upon a letter from his solicitors dated 8 April 2022 which were consistent with the Applicant’s position in the Sunsuper TPD Application that:
       1. (A)
          The Applicant believed that he was injured on 21 January 2018 while moving two heavy batteries.
       1. (B)
          The Applicant believed that despite treatment his condition had continued to deteriorate, with the Applicant developing an adjustment disorder with major depression secondary to his physical injury.
    7. On 10 March 2022 the Applicant made the QSuper TPD Application,^[30] including:
       1. (i)
          The Applicant stated that he did not plan to return to work and was unable to return to work in any capacity.
       1. (ii)
          The Applicant stated that the nature of his illness or injury was a physical injury to his back along with a subsequent adjustment disorder with major depression.
       1. (iii)
          The Applicant recorded the cause of his illness or injury as being a workplace injury “as per the covering letter from his solicitors.”^[31]
    8. On 24 February 2022 Dr Hunter, the Applicant’s General Practitioner, completed a doctor’s statement^[32] in relation to the QSuper TPD Application which relevantly included:
       1. (i)
          The Applicant’s symptoms first occurred on 21 January 2018.
       1. (ii)
          The Applicant had minimal pain resolution and the pain level was such that the Applicant could only function minimally.
       1. (iii)
          The Applicant was unable to work in any occupation.
       1. (iv)
          The Applicant’s injury had prevented a return to any work.
       1. (v)
          The Applicant suffered from a chronic pain and mood disorder from his injury.
44. [44]
    It is necessary to consider the Applicant’s affidavit further and also the evidence the Applicant gave under cross-examination and re-examination.
45. [45]
    The Applicant’s evidence in his affidavit includes the following:

    1. The Applicant was injured at work on 21 January 2018 when he suffered a significant back injury.^[33]
    2. The Applicant visited Dr Hunter, his general practitioner, on 22 January 2018 who diagnosed a L4-5 disc prolapse.^[34]
    3. The Applicant ceased work and lodged an application for WorkCover benefits on 27 February 2018 in relation to the physical injury, which was accepted.^[35]
    4. The Applicant saw Dr Gregory Day, Orthopaedic Surgeon on 27 June 2018.  In the report dated 20 August 2018 Dr Day diagnosed a temporary strain to the Applicant’s lumbar spine, the incapacity due to the work-related injury had stopped and no further treatment was required.^[36]
    5. The Applicant saw Dr Day again on 13 February 2019 who advised the Applicant that he did not have a permanent impairment and that the Applicant should have a full recovery and return to work.^[37]
    6. At that time the Applicant “had no reason to believe” he would not make a full recovery.  This is also in the context of the 2005 previous back injury from which he had made a full recovery after approximately one month.^[38]
    7. On 22 February 2019 the Applicant advised WorkCover that he was on a mental health plan and had starting to see a psychologist as he was struggling to cope with his physical injury.^[39]
    8. On 1 March 2019 WorkCover commenced paying for the Applicant’s psychological treatment in addition to the benefits of the physical injury.^[40]
    9. On 3 April 2020 the Applicant was seen by Dr James Whan,^[41] Psychiatrist, who advised the Applicant that:^[42]
       1. (i)
          the Applicant was suffering from depression secondary to the work-related injury;
       1. (ii)
          the Applicant would be able to return to employment in approximately three months; and
       1. (iii)
          the Applicant’s psychological injury would be stable in approximately 6 months and the Applicant would be able to return to his full-time pre-injury employment.
    10. On 24 February 2021 the Applicant again saw Dr Day^[43] who advised the Applicant that his incapacity for work had ceased, he had reached maximum medical improvement and the Applicant could return to work.^[44]
    11. On 31 March 2021 WorkCover ceased benefits for the physical injury on the basis that the physical injury was stable and stationary.^[45] The Applicant was still in considerable pain so was confused by Dr Day’s opinion.^[46]
    12. On 1 April 2021 the Applicant sought a second opinion from Dr Laurence McEntee, Orthopaedic Surgeon.^[47]  Dr McEntee recommended a muscle stimulator be inserted prior to consideration of disc replacement surgery.^[48] 
    13. This was the first time that any additional treatment options and surgery had been recommended to the Applicant.  The Applicant was of the belief that these interventions would assist his pain and enable him to return to work.^[49]
    14. On 30 April 2021 the Applicant advised WorkCover that he disagreed with the closing of his claim and informed WorkCover that Dr McEntee recommended further treatment, including disc replacement surgery.^[50]
    15. On 4 May 2021 the Applicant lodged an Application for Review of the physical injury based on Dr McEntee’s opinion.^[51]  On 23 July 2021 the Application for Review was rejected by WorkCover.^[52]
    16. On 9 May 2021, the Applicant saw Dr Amitava Sarkar, Psychiatrist.^[53]  Dr Sarkar’s opinion was that the Applicant did not suffer from any current psychological injury related to the 2018 Incident and that the Applicant’s incapacity due to the work-related psychological injury had stopped.^[54]
    17. On 12 November 2021 the Applicant attended the Medical Assessment Tribunal – Psychiatric.^[55]  The Tribunal assessed the Applicant with a Major Depressive Disorder and also assessed that the psychological injury was not stable and stationary and further treatment was required.^[56]
    18. The assessment of the Tribunal surprised the Applicant and was contrary to Dr Sarkar’s advice.^[57]
    19. On 4 March 2022 the Applicant began seeing Ian Johnson, Psychologist for treatment of the Major Depressive Disorder.^[58]
    20. At this point in time the Applicant was continuing to suffer pain and incapacity to work and was no longer receiving assistance from WorkCover.  “Out of desperation and necessity for [his] financial situation” the Applicant decided to lodge the Sunsuper^[59] TPD Application and the QSuper TPD Application.^[60]
    21. On 10 March 2022 the Sunsuper TPD Application and the QSuper TPD Application were lodged “in an attempt to access some monies that would assist me with day-to-day expenses and fund further treatment for [his] physical and psychological injuries”.^[61]
    22. On 30 September 2022, Ian Johnson informed the Applicant that assuming surgery was successful, it was highly likely the Applicant would be able to return to some form of work as the surgery would decrease the Applicant’s pain and increase his level of physical and psychological functioning.^[62]
    23. On 4 October 2022, QSuper advised they were unable to decide the claim within six months as further medical evidence was required.^[63]
    24. On 1 November 2022, Sunsuper (then Australian Retirement Trust) advised that they were unable to decide the claim within six months as they required further evidence about the applicant’s employment capacity.^[64]
    25. The Applicant saw Dr Todman, Neurologist, on 8 December 2022 and Dr Foxcroft, Psychiatrist, on 25 January 2023.^[65]
46. [46]
    In respect of the report of Dr Todman provided on 8 December 2022 the Applicant’s evidence is:

    1. On 8 December 2022 the Applicant was informed that:^[66]
       1. (i)
          he had suffered an 8% whole impairment as a result of the 2018 Incident; and
       1. (ii)
          both the physical pain and psychological distress were impacting the Applicant to the extent that he was permanently precluded from returning to work.
    2. it was only after reading and considering the opinion of Dr Todman that he became aware, for the first time, that he had suffered permanent physical and psychological injuries and there was no prospect of returning to employment.^[67]
47. [47]
    In respect of the report of Dr Foxcroft provided on 25 January 2023 the Applicant’s evidence is:

    1. Dr Foxcroft diagnosed the Applicant with persistent Depressive Disorder, assessed at 17% on the PIRS scale.^[68]
    2. Further, Dr Foxcroft assessed the Applicant as “incapacitated for work” and concluded that the Applicant’s “combined physical and psychological injuries [were] causing him to be totally incapacitated for all forms of work”.^[69]
48. [48]
    The Sunsuper TPD Application and the QSuper Application were approved after consideration of the expert reports from Dr Todman and Dr Foxcroft, being approximately one year after the initial applications.^[70]
49. [49]
    The Applicant’s affidavit also addresses his beliefs in respect of his injuries and his ability to return to work, including:

    1. In the three year period he was on WorkCover benefits, the medical specialists had repeatedly said he would be able to return to work after appropriate treatment.^[71]
    2. Dr Day, Dr McEntee, Dr Whan and Dr Sarkar all informed the Applicant of the expectation that he would be able to return to work.
    3. The Applicant believed Dr Day’s opinion that he had aggravated a pre-existing back injury, suffering a minor 1% whole person impairment due to the 2018 Incident and that his incapacity for work had ceased.
    4. These opinions were confirmed by Ian Johnson, Psychologist who informed the Applicant that his condition would improve with surgery and his ability to return to work was dependent on having the surgery.
    5. Consequently, the Applicant believed that after successful treatment, including surgery, he would recover from his physical injury and secondary psychological injury as he had previously in 2005 and that he would be able to return to employment.
    6. Prior to the report of Dr Todman dated 8 December 2022 the Applicant did not know the full extent of his injuries on his work capacity and had expected to be able to return to work after appropriate treatment.^[72]
    7. Even at 8 December 2022 the Applicant did not know the full extent of his psychological injuries until he saw Dr Foxcroft on 25 January 2023.^[73]
    8. Dr Foxcroft’s report dated 25 January 2023 confirmed that the Applicant’s combined physical and psychological injuries had caused the Applicant to be totally incapacitated for all forms of work.^[74]
50. [50]
    Accordingly, the Applicant’s ultimate evidence is that it was only on 8 December 2022 that for the first time he became aware of a material fact of a decisive character, being that his combined injuries prevented him from returning to work in any capacity.^[75]
51. [51]
    The Respondent cross-examined the Applicant extensively in respect of his knowledge at the time of the Sunsuper TPD Application and the QSuper TPD Application.  In cross-examination the Applicant’s evidence relevantly included:

    1. The 2018 Incident occurred on 21 January 2018 and the Applicant ceased work on that day.
    2. The Applicant saw his general practitioner, Dr Hunter the following day and was diagnosed with a L4/5 disc prolapse.
    3. The Applicant never returned to work since the day of the 2018 Incident due to consistent pain.
    4. Despite referrals by Dr Hunter for various treatments the Applicant continued to experience pain and could not work.  The treatments did not really help.
    5. In early 2022 the Applicant lodged the Sunsuper TPD Application and the QSuper TPD Application.
    6. In relation to the Sunsuper TPD Application:^[76]
       1. (i)
          The Applicant signed the declaration that the document was true and correct.
       1. (ii)
          In respect of the “main medical condition you are claiming for” the Applicant answered in the application form “Physical injury to back and adjustment disorder with major depression”.
       1. (iii)
          In respect of the “current symptoms” the Applicant answered in the application form:

“Lumbar pain with left sciatica; impaired mobility and lumbar strength.  From a pyschological (sic) point of view – anhedonia, emotional liability; lack of motivation; anxiety; disorganisation”.

4. The Applicant confirmed this was an accurate statement of his symptoms at the time.
5. In respect of whether the “medical condition result[ed] from an injury” the Applicant completed the form “Workplace injury. Whilst moving batteries, as I place the batteries onto the ground, I felt left sided lower back pain that radiated to my left buttock + hamstring.  As a result of physical injury, I went on to develop adjustment disorder with major depression”.
6. The Applicant listed the medical practitioners he had seen on the application form: namely Dr Hunter, Dr McEntee, Dr Grice and Mr Mark Day (physiotherapist).  The Applicant also lists that he was hospitalised at the Tweed Hospital and St Vincent’s Private Hospital and refers to attached clinical records.
7. In respect of what duties the Applicant could and could not do with his condition the Applicant stated in the application form: “I am unable to return to work in any capacity due to the combination of my physical + psychological conditions”.
8. The Applicant confirmed in cross-examination that this had been his condition at that time and for some time before filling in the form.
9. The Applicant confirmed that he was not currently able to pursue any of his hobbies and social activities he listed in the application form: being surf life saving volunteer, volunteer marine rescue, photography, fishing, basketball, walking and four-wheel driving.
10. The Applicant stated in the application form “unable to undertake household duties + chores” and he was living with his parent who provided care and assistance.
11. The Applicant’s statement in the Sunsuper TPD Application that he was “not able to return to work in any capacity” was his view at the time because of the injuries he had sustained “at that current state”.
12. Dr Hunter had expressed this view to him.
13. Dr McEntee had expressed that view to him “in his current state”.
14. The Applicant could not recall his conversation with Dr Grice.
15. The Applicant confirmed that he had made the declaration on the application form that everything he had said in it was true and correct to the best of his knowledge.

7. In relation to the QSuper TPD Application:^[77]
   1. (i)
      The signature on the application form is the Applicant’s.
   1. (ii)
      The Applicant had declared everything in the form true and correct.
   1. (iii)
      In respect of “what was the cause of the illness or injury” the Applicant completed the application form ‘Workplace injury.  See covering letter of Attwood Marshall Lawyers for full details”.
   1. (iv)
      In respect of “treatment information” the Applicant completed the application form by referring to Dr Hunter and also referring to the covering letter of Attwood Marshall Lawyers “which provides details of all medical practitioners consulted”.
   1. (v)
      The Applicant was taken to the letter of Attwood Marshall Lawyers dated 9 April 2022^[78]  and confirmed this was the letter referred to in the QSuper TPD Application.
   1. (vi)
      The Attwood Marshall letter refers to:
   1. (A)
      a “CT guided epidural steroid injection” on 14 September following a referral from Dr McEntee that made no change to the Applicant’s symptoms. The Applicant confirmed this.
   1. (B)
      Intensive two-month period of physiotherapy but no remarkable changes made.  The Applicant confirmed this.
   1. (C)
      In March 2019 the Applicant saw Dr Grice who recommended “a medical branch block and radio frequency neurotomy” but no improvements.  The Applicant confirmed this.
   1. (D)
      The Applicant was referred to the Spendlove Pain Management program but the Applicant’s condition continued to deteriorate.  The Applicant confirmed this.
   1. (E)
      The Applicant suffered from chronic pain at the time of the letter.  The Applicant confirmed this.
   1. (F)
      At that time the Applicant was taking the seven listed medications.
   1. (G)
      The Applicant’s injuries and disabilities “cause[d] significant disruption to his daily life”.
   1. (H)
      The letter states the Applicant’s physical injury as “limited mobility and impaired lumbar strength.” The psychological injury states the Applicant as suffering the eight listed matters.^[79]
   1. (I)
      States that the Applicant “has been unable to return to work in any capacity due to the severity of his physical and psychological injuries”.  The Applicant confirmed this as correct.
   1. (vii)
      In respect of whether the Applicant planned “to return to work”, the Applicant stated in the application form “unable to return to work in any capacity”.  The Applicant confirmed that was “in [his] current state” and that statement was true when he answered it in the form.
   1. (viii)
      The Applicant completed the form in the relevant sections that he had not returned to work in any form since the injury and had ceased all work and been certified by Dr Hunter as being unable to work due to the injury.  The Applicant confirmed this as correct.
   1. (ix)
      All of the matters in the QSuper TPD Application form were true and correct at the time the Applicant signed it.
   1. (x)
      Dr Hunter completed a Doctor’s Statement as part of the QSuper TPD Application.^[80]  Dr Hunter noted that the effectiveness of treatment was “minimal”.^[81]  Further, the effectiveness of medication is noted to be “Minimal pain reduction to a level whereby he can only function minimally”.  The Applicant confirmed this was accurate.
   1. (xi)
      Dr Hunter also answered the question that the Applicant was not preforming usual work duties and explained “Injury has prevented return to any work”.  The Applicant confirmed this was accurate.
   1. (xii)
      Dr Hunter answered the question of “How do the symptoms affect the patient” by stating “Constant pain, reduced mobility, psychological effects, and chronic pain incapacity”.  The Applicant confirmed this was accurate.
   1. (xiii)
      Further, Dr Hunter answered the question of “How do the symptoms impact on the patient’s functional ability to undertake work” by stating “Unable to work in any occupation”.  The Applicant confirmed this was accurate.
   1. (xiv)
      These were issues the Applicant had discussed with Dr Hunter over time.
8. As at May 2020 Dr Grice had stated that:
   1. (i)
      The Applicant “cannot return to a track supervisor role of 25 hours a week or complete ordinary hours with his normal job in the short or long term.”^[82]  The Applicant confirmed this was an accurate statement of his view at the time.
   1. (ii)
      That he did “not believe [the Applicant] will ever return to his previous full duties”.  The Applicant can recall speaking with Dr Grice but can not recall what was actually discussed.
9. The Applicant believes he discussed Dr Grice’s opinion with Dr Hunter but does not remember the words verbatim.
10. From the time of the Sunsuper TPD Application and the QSuper TPD Application in early 2022 the Applicant believed as a result of the 2018 Incident that he was unable to return to work “in [his] current state”.
11. The Applicant’s belief as to his “current state” was based on what he had been told by his treating doctors and specialists.

52. [52]
    In re-examination the Applicant gave evidence as to what he meant by “his current state” as follows:

“With my injury and pain levels being what they are, I couldn’t return to work, and I have conflicting medical reports with doctors.  One saying I will never work, and another one saying he could possibly fix me, but I don’t know, and in my current state I couldn’t work.  But I would like to.”^[83]

53. [53]
    Further, the Applicant in re-examination gave a clarification in respect of what his understanding was at the time of the Sunsuper TPD Application and the QSuper TPD Application as follows:

“I obviously am not a medical practitioner, so I just go off what I’ve been told by doctors, and that being that, in my current state with my injury and pain levels, I would not be able to work again.  Um, that my understanding from one doctor is a – there’s nothing that can be done, and another doctor saying that he could possibly help me, so I don’t – I don’t know.  That’s why I say in my current state, because I am hopeful that I could be fixed.”^[84]

54. [54]
    The two opinions referred to by the Applicant would be Dr Day and Dr McEntee.  The Applicant’s evidence was that Dr McEntee’s opinion was that the Applicant could not work but he was “optimistic he could be able to fix [the Applicant].”^[85]
55. [55]
    The Applicant’s evidence was that he would “like to be treated” and “would like to have no more pain” but in his current state he cannot work, which is what “doctors have all said”.^[86]  Dr McEntee had said a surgical intervention could possibly get the Applicant “back to being pain-free”.  The surgery would be private and expensive, and the Applicant cannot afford it.  Dr McEntee’s opinion was that in the Applicant’s “current state” he could not work.^[87]
56. [56]
    The Applicant submits that he had taken reasonable steps to find out the true nature and extent of his injuries, and had in fact “exceeded” what could reasonably be expected from someone in his circumstances.  It was the Applicant who sought the second opinion from Dr McEntee and sought WorkCover’s assistance to obtain the recommended treatment.
57. [57]
    Further, the Applicant contends that it was not in his interests to make a claim for damages in relation to the back injury when it was assessed by Dr Day at 5% of the Applicant’s 6% impairment related to his previous back injury.  Further, it was not in the Applicant’s interest to make a claim for his psychological injury when Dr Sarkar had provided an opinion that the work-related psychological injury had ceased.
58. [58]
    Conversely the Respondent contends that by at least early 2022,^[88] a reasonable man appropriately advised would have brought an action on the facts in his possession at that time.  Further, at that time there was a “critical mass of information” within the Applicant’s knowledge which justified bringing the action.
59. [59]
    The facts of this case are similar in a number of respects to the facts in Star Aged Living v Lee.^[89]   In that case:

    1. The plaintiff (respondent to the appeal) was working as a nurse in a nursing home.
    2. In a workplace incident in December 2015 she suffered injuries including discal protrusion at L4/5 causing cauda syndrome, incisional hernia following corrective surgery and adjustment disorder with mixed anxiety and depression.
    3. This was not the plaintiff’s first back injury and she had suffered a disc protrusion at L4/5 in 2007.  She had suffered “flare-ups” but had fully recovered in a short period of time.
    4. Following the 2015 incident the plaintiff expected the pain would improve with time and rest as it had in the past, but it did not.
    5. The plaintiff was diagnosed with a serious spinal condition requiring surgery.  The first surgery was performed in January 2016 and she applied for WorkCover benefits afterwards.
    6. The plaintiff was treated with physiotherapy and she felt she was improving.  Dr McEntee considered she would benefit from further surgery and recommended “fusions” in June 2016.  Workcover refused funding so this did not proceed.
    7. Dr McEntee submitted a request to WorkCover in October 2018 as the plaintiff was still suffering pain.  WorkCover agreed to fund the L4/5 surgery but the plaintiff had to pay for the L3/4 disc replacement herself.  The surgery went ahead in March 2019.
    8. The plaintiff never returned to work after the incident in December 2015.
60. [60]
    Further, in that case by November 2018 (which was just prior to the expiry of the limitation period) the plaintiff knew:^[90]

    1. That she had suffered a very serious spinal injury, which required major spinal surgery.
    2. She believed that she had suffered the injury because her employer had not provided proper equipment, the system of work was inadequate and her co-worker had not been properly trained in proper manual handling techniques;
    3. Because of that injury, and since that injury, she had not been able to work and required her husband as a full-time carer for herself and their child;
    4. She had not been able to return to work as an assistant in nursing, or anything similar, and would not be able to do so in the future;
    5. She would have trouble retraining into other work because of her narcolepsy;
    6. Her injury had been accepted as work-related by WorkCover; and
    7. She was continuing to receive weekly compensation payments from WorkCover.
61. [61]
    In Star Aged Living v Lee three material facts were relied upon:

    1. An inability to return to work;
    2. Pain after the March 2019 surgery was not due to medical negligence but the original 2015 injury; and
    3. The commerciality of the claim, due to a change in medical opinions about causation.
62. [62]
    On appeal the issues included whether the evidence established the three material facts and also whether the plaintiff had within her knowledge, by the expiry of the limitation period on 19 December 2018, a critical mass of information sufficient to apprise her, had she undertaken reasonable and proper inquiries, of the existence of a worthwhile right of action against the Appellant.
63. [63]
    The analysis of the evidence on the appeal concluded that the material facts were not established.  There was no evidence of the first alleged material fact and the plaintiff already had within her means of knowledge a “critical mass of information” which was sufficient to justify bringing the action.  Further, there was no evidence of the second alleged material fact and the evidence did not support the finding as to the third alleged material fact.
64. [64]
    Similar issues arise for consideration here.
65. [65]
    The evidence establishes, on the balance of probabilities, that:

    1. By at least the time of the QSuper TPD Application and the Sunsuper TPD Application in early 2022,^[91] the Applicant knew:
       1. (i)
          He had combined physical (his back) and psychological (adjustment disorder with major depression) injuries as a result of the 2018 Incident.
       1. (ii)
          The treatments that had been tried to that time did not help and the Applicant continued to experience pain and could not work.
       1. (iii)
          The combined physical and psychological injuries precluded the Applicant from working again in any capacity.
       1. (iv)
          Further, the Applicant did not plan to return to work.
    2. In making the QSuper TPD Application and the SunSuper TPD Application, the Applicant:
       1. (i)
          Did so accepting at least the medical advice of his general practitioner Dr Hunter, who had received the opinions from other medical practitioners who had seen and/or treated the Applicant.
       1. (ii)
          Had legal advice at least in respect of the QSuper TPD Application which included the covering letter from Attwood Marshall Lawyers dated 9 April 2022.
       1. (iii)
          Had knowledge of and accepted that he had been unable to return to work since the 2018 Incident and was unable to return to work in any capacity.
       1. (iv)
          Knew that Dr Hunter had confirmed that he was unable to return to work due to the injury as a result of the 2018 Incident.
66. [66]
    The Applicant’s evidence is that he had some hope that there was a possible treatment or surgery but this can only be properly understood in the context of what the Applicant knew as identified above and including:

    1. The Applicant had fully recovered from the previous back injury suffered by the Applicant in 2005 in a relatively short period of time, in contrast to the physical and psychological injuries as a result of the 2018 Incident.
    2. Even the letter of Dr Todman dated 8 December 2022, relied upon by the Applicant, contains an expression of some hope: “There is no prospect of return to any employment unless there is some breakthrough in treatment”.^[92]
67. [67]
    Chief Justice Bowskill in Star Aged Living v Lee noted that the plaintiff in that case articulated in her affidavit a “hope” that with surgery she would improve enough to be able to work in a suitable role.  Her Honour, however, went on to observe that “that statement has implicit within it an appreciation prior to that of her inability to do so”.^[93] 
68. [68]
    A similar implication arises here.  The Applicant contended that “in his current state” at the time of the QSuper TPD Application and the Sunsuper TPD Application he could not return to work in any capacity but “would like to” if he could be “fixed”.  This is consistent with him having knowledge at the time of the Applications that he was unable to return to work in any capacity as a result of the physical and psychological injuries sustained as a result of the 2018 Incident.
69. [69]
    Consequently, the Applicant already had within his means of knowledge a “critical mass of information” which was sufficient to justify bringing the action prior to the Relevant Date of 14 August 2022.
70. [70]
    Further, a reasonable man with the means of knowledge of the Applicant and appropriately advised would have brought an action on the facts in his possession at that time.
71. [71]
    Accordingly, the Applicant has not established for the purposes of s 31(2)(a) of the LA Act that a material fact of a decisive character in relation to the right of action was not within the Applicant’s means of knowledge until a date after the Relevant Date.^[94]  The prerequisite to the exercise of the Court’s discretion pursuant to s 31 of the LA Act has therefore not been established.

Is there evidence to establish the right of action, apart from a defence founded on limitation?

72. [72]
    The second issue requires that the Applicant establish that he has a right of action in negligence for the purposes of s 31(2)(b) of the LA Act.^[95]
73. [73]
    To establish this, the Applicant:

    1. Relies on the factual circumstances, namely that he suffered a lower back injury in the course of lifting, twisting and bending in order to refit a go-kart with new batteries weighing approximately 20 kilograms each and carrying the new batteries and “dead” batteries a distance of approximately 20 metres from the go-kart to a storage shed.
    2. Relies on the particulars of negligence set out in the Notice of Claim for damages.^[96]  In particular, the Applicant relies on:
       1. (i)
          A failure to provide a safe system of work by requiring the Applicant to repetitively lift, twist, bend and carry 20 kilograms batteries.
       1. (ii)
          A failure to provide the Applicant with a trolley, trolley jack, instructions, supervise, warnings and a risk assessment.
       1. (iii)
          A breach of the Manual Handling Code under the Workplace Health and Safety Act 1995 (Qld).^[97]
       1. (iv)
          The employer exposed the Applicant to a reasonably foreseeable risk of injury.
74. [74]
    The Respondent relies on the statement of Macrossan CJ in Wood v Glaxo Australia Pty Ltd^[98] as to what is required to satisfy s 31(2)(b) of the LA Act, namely:

“The evidence need not at the stage at which the application is brought be in a form which would be admissible at trial and may indeed be hearsay.  It will not be possible to predict whether the plaintiff’s evidence will prevail at trial when it will be subjected to challenge and forced to confront the opposing evidence of the defendant, but it is probably accurate enough to say that an applicant will meet the requirement imposed by s 31(2)(b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case.” (emphasis added)

75. [75]
    The Respondent points to the Applicant’s evidence as set out in his affidavit^[99] as the only evidence regarding the 2018 Incident.  The Respondent contends that this is not sufficient to establish an action on the right of action, particularly in light of the observations of McMeekin J in Barnes v Smith at [43].^[100]
76. [76]
    Barnes v Smith concerned an employee of a hardware store who allegedly had to lift 20 drums of paint weighing “at least 23 kgs each” from the floor onto a stool, add tint to the drum, stir it and the place the drum back with the other drums “behind her”.  McMeekin J noted in the reasons that the applicant’s “affidavit does not expressly state that the work either required that she twist her back while lifting nor that she did so” but his Honour assumed that was intended.^[101]
77. [77]
    Further, in that case the respondent put in evidence that the height of the stool was 55cms and the drums weighed between 20.47 kgs and 24.82 kgs.  Further, the respondent indicated that the records showed sales of 29 drums of 15 litre capacity, rather than 20 litres capacity as alleged.  The records, however, did not show how many drums required tinting.
78. [78]
    In dealing with the issue of whether the applicant had established the right of action McMeekin J referred to Wood v Glaxo Australia Pty Ltd and stated as follows:

1. “[41]
   The respondent has put in evidence a form bearing [the applicant’s] signature which contradicts [the applicant’s] claim not to have been told about the danger of twisting when lifting.  Accepting that the respondent’s evidence is relevant to the issue … having an employee sign a document hardly discharges the employer’s duty to provide a reasonably safe system of work and to properly train and supervise.

1. [42]
   Nor is it to the point to assert that the respondent claims that [the applicant] was rushing and hence adopting an inappropriate system of work.  Those are matters for the trial, if there is to be one.

1. [43]
   More troubling is that the applicant has not advanced any evidence that the repetitive movement of a 20-24 kg weight in the manner that she adopted on the day in question involved forces that were liable to injure the spine of a person of normal fortitude.  It is not to the point that in numerous cases over the years plaintiffs have succeeded to awards of damages where the weights involved have been no greater – each case is required to be proved on its own set of facts.

1. [44]
   The respondent has put in evidence a document entitled ‘Manual Handling Management – Injury Prevention’ which is said to be an information paper which provides ‘minimum guidelines on manual handling within the workplace to ensure your safety’.  This was the document that the respondent provided to the applicant as part of her induction.  It speaks of risk identification including asking ‘Do I have to twist?’ and ‘Do I do a lot of repetitive actions …?’.  It points out that the risk of injury increases with frequency of activity and the force required to handle a load.

1. [45]
   That is the full extent of the evidence touching on the issue.  The generalisations set out in the first respondent’s document do not advance matters very far.  Presumably evidence can be obtained that would support those generalisations.  But the crucial issue is:  did the work complained of expose the plaintiff to an unnecessary risk of injury that could have been avoided?  Does a plaintiff succeed in a case against the employer by proving that they have been required to lift and move weights from the floor to a height of 55 cms and then place those weights behind them when the weights in question were between 20 and 24 kgs, combined with the knowledge that is set out in the employer’s document?  I do not think so.

1. [46]
   I appreciate that the test here is undemanding and that the standards imposed on an employer at common law to prevent or minimise risk of injury are high.  Despite that I am not satisfied that the applicant has established that she has an action on the right of action.”

79. [79]
    The Respondent relies on this analysis to support its contention that the Applicant has similarly not established an action on the right of action. 
80. [80]
    In oral submissions, the Respondent contended that:

    1. There is not any evidence showing that the particular activity complained of involved forces that were liable to injure the spine of a person with normal fortitude.^[102]
    2. Whilst there is evidence of what the Applicant says happened^[103] that does “not go far enough”.
    3. Some evidence of an expert nature would be expected, that if uncontradicted and admissible, would go far enough to prove the claim.^[104]
    4. The Applicant here merely says what happened on the day.  The Notice of Claim sets out some allegations of negligence but they are of no assistance in proving the case.^[105]
    5. Where proceedings have not been commenced within the three-year limitation period the legislature has imposed a condition for getting the Court to extend the limitation period that does not apply to anyone that has brought proceedings within time.^[106]
    6. Not everyone who wants to make a claim of this nature would be expected to get expert evidence.  This issue only arises because the Applicant did not commence proceedings within the three year limitation period.^[107]
    7. The issue is whether the Applicant has established on evidence a breach of duty because there is some foreseeable risk of injury presented by the activity.
81. [81]
    At the hearing, the Applicant expanded his submissions in respect of this issue, and sought to distinguish Barnes v Smith, including as follows:^[108]

    1. The comments of McMeekin J in Barnes v Smith and other authorities did not intend that an applicant would need to have expert opinion to establish that they have a cause of action at the commencement of the claim.
    2. McMeekin J identified the crucial issue as whether the work complained of exposed the plaintiff to an unnecessary risk of injury that could have been avoided.
    3. Carrying 40 kgs of an awkward heavy weight, that involves bending, lifting and carrying the weight 40 metres deals with the requirement.
    4. In Barnes v Smith the plaintiff did not report an injury, the respondent denied there was an incident and the weight was lifted 55cm.
    5. Here the Applicant went to the doctor the next day and confirmed the activity.
    6. The Notice of Claim sets out the particulars of negligence relied upon, including that there was no adequate mechanical or manual assistance and carrying 40kgs 40 metres exposed the Applicant to unnecessary risk.
82. [82]
    The level of satisfaction required by s 31(2)(b) of the LA Act does not require proof on the balance of probabilities of the cause of action.    Nor does it require the evidence on which it is intended to rely at trial. To do so would require a mini-trial at the application stage.
83. [83]
    What is required is the applicant/plaintiff establishes to the Court’s satisfaction that evidence exists and can be adduced at trial and that the Court is able to be satisfied that the applicant/plaintiff has a right of action.
84. [84]
    Keane JA in Raschke v Suncorp Metway Insurance Limited^[109] stated:

1. “[21]
   …It is quite clear from the authorities in relation to s 31(2)(b), to which I shall refer below, that the information available to establish all the facts material to a right of action does not have to satisfy the court on the balance of probabilities as to the existence of that fact.”

85. [85]
    Further at [27] Keane J observed:

“… the importance of this passage for present purposes is the endorsement of an approach which does not involve the consideration of the ‘requirements of para. (a) and para. (b) of s. 31(2) in isolation from each other”.  It is by considering these requirements together that the courts can ensure that s. 31(2) is not allowed to facilitate the prosecution of hopeless cases”.

86. [86]
    The earlier authorities referred to by Keane J include the following:

    1. Wood v Glaxo Australia Pty Ltd^[110] where Macrossan CJ observed:
       1. (i)
          “.. the extent to which an applicant must show a case on the hearing of the application to extend time will frequently depend on the impression on the judge’s mind of the material which the applicant presents or the existence of which he demonstrates or points to.  It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions…. The Court should be cautious in shutting out a party from the opportunity to make his case at the appropriate time … “evidence to establish the right of action”.  These words will be construed according to the evident policy of the legislation.”
       1. (ii)
          “A number of decisions in the past have endeavoured to make clear the onus which, under the formula just quoted, the applicant for extension must discharge … One way in which the onus has been expressed is that the applicant must demonstrate something like a prima facie case.”^[111]
    2. Dwan v Farquhar^[112], including the statement by Ambrose J as follows:

“It was clearly not required of the appellant that he place before the Chamber Judge evidence to establish the right of action based upon the allegations particularised in paras 17, 18 and 19 of his statement of claim.  He was required only to satisfy the judge that evidence existed which could be adduced and which might establish and enable him to enforce the right of action.  Obviously one way of showing that there was evidence that could be adduced was for the appellant to give such evidence as he could to support the right of action based on his pleadings.  However, it was also open for him to place before the Chamber Judge evidence from his solicitor or from other persons retained to search for and procure evidence … that there was evidence available that could be called to establish facts which might establish the right of action pleaded.

It was also open to the appellant to place before the Chamber Judge material from which it might be inferred that there existed evidence to support his claim that could properly be called at trial.”

3. Scanlon v American Cigarette Company (Overseas) Pty Ltd and Another (No 1)^[113] where Nicholson J observed:^[114]

“No doubt the legislature included a provision that the applicant must establish that there is evidence to establish the cause of action to prevent the launching of frivolous or hopeless claims out of time, but I do not think that a full-scale investigation by the respondents of the applicant’s evidence was ever contemplated by the legislature; all that the statute requires is that there does exist evidence to establish the cause of action, and no more.”

4. Arnold v Baco Foods Pty Ltd^[115] where Brooking J stated:^[116]

“To my mind, the natural meaning of the words ‘evidence to establish the cause of action”, in the context in which they appear, is evidence which a tribunal of fact may reasonably regard as establishing the cause of action.  As a matter of grammar, the infinitive (“to establish”) is used adjectivally, as an epithet, so as to describe the evidence that must be shown to be available, “to establish” being the equivalent of “establishing” or “which establishes”.  One would not ordinarily regard evidence as establishing a fact if it was insufficient to enable a reasonable man to find that the fact had been proved, and the context in which the words “evidence to establish the cause of action” are used does not warrant the giving of a more attenuated effect to them.  The section is remedial, but an enabling order under it exposes a respondent to a claim which the general policy of the law would otherwise bar as too stale”.^[117]

5. Cuthill v State Electricity Commission of Victoria^[118] including the statement by Starke J as follows:

“The truth of the facts stated is not provided but on the probabilities the existence of such facts is proved.”^[119]

6. Martin v Abbott Australasia Pty Ltd ^[120] where Hunt J stated:^[121]

“… the plaintiff must make it appear that the evidence to establish his cause of action exists and that it is available to be adduced at the trial.  The test is thus somewhat less exact than that which is applied by a judge at the conclusion of the evidence at the trial itself in deciding whether there is a conclusion of the evidence at the trial itself in deciding whether there is a case to go to the jury.  A certain amount of speculation as to the precise nature of the evidence which will be called at the trial necessarily must be permitted”.

7. Kosky and Anor v The Trustees of the Sisters of Charity^[122] where Tadgell J stated:^[123]

“… the claimant obviously need not necessarily establish that his claimed cause of action will succeed… If it is made to appear on the application that there is evidence on which the claimed cause of action could be established at a trial sub-s.(2)(b) is in my opinion satisfied.  It follows that, where the claimed cause of action is negligence, the applicant… must make it appear on the application the there is evidence which, if called at a trial, could establish a set of circumstances from which, in law, a duty of care arises…. It is not incumbent on him to satisfy the court upon the application that a duty of care did arise, just as it is not encumbent on him to establish a breach of any such duty or to establish that a breach caused or contributed to the personal injuries for which he claims damages.”

8. Minoque v Bestobel Industries Pty Limited^[124] where the Full Court^[125] confirmed that it must appear to the Court that there is evidence which can be adduced from which the Court could form an opinion that the applicant has a right of action.
9. Smith v Browne & Ors^[126] where Kaye J stated:^[127]

“To succeed in his application, it must appear to the Court that there is evidence to establish that the applicant has a cause of action.  This does not require the Court to conduct a preliminary hearing to satisfy itself that evidence available to the applicant would enable him to prove his case.  For these purposes it is sufficient that the applicant should adduce evidence from which the Court is able to form an opinion that he has a cause of action against a party for damages in respect of personal injuries suffered by him.”

87. [87]
    The finding of McMeekin J in Barnes v Smith is a decision on the particular facts in that case.  The decision does not establish a principle of law that any particular evidence is required to meet the level of satisfaction required by s 31(2)(b) of the LA Act.
88. [88]
    The nature of the injury and the nature of the alleged cause of the injury will impact what is required to establish the requisite level of satisfaction.  Each case is to be considered on its own facts.  It is not necessary to establish that a cause of action is proved on the balance of probabilities as if at trial, but something more than a “hopeless case” is required.
89. [89]
    Here, there is evidence of the Applicant’s employment, the 2018 Incident and also an articulation of the particulars of negligence relied on.   It can be inferred that evidence, including expert evidence, could be lead at trial to establish the matters identified.  In these circumstances, there is sufficient evidence to discharge the requirement in s 31(2)(b) to establish the action on the right of action.
90. [90]
    If I am incorrect in respect of the finding in relation to issue 1 and it is necessary to consider issue 2, there is a sufficient basis to be satisfied to the requisite level of satisfaction that the Applicant, in the particular circumstances of this case, has an action on the right of action.

If it arises, how should the discretion be exercised?

91. [91]
    The Applicant has the persuasive onus of establishing that the discretion to extend the limitation period would not result in any significant prejudice to the Respondent.  However, the Respondent has the evidentiary burden to show prejudice.^[128]
92. [92]
    At the commencement of the hearing, the Respondent expressly indicated that no particular matter was relied upon by the Respondent against the exercise of the discretion, if the discretion does arise.
93. [93]
    The Applicant acknowledges that the key issue in respect of the exercise of the discretion is whether the delay has made the chances of a fair trial unlikely.^[129]
94. [94]
    The Applicant contends that no prejudice is suffered in the circumstances where:

    1. The Respondent and WorkCover were on notice of the 2018 Incident since 21 January 2018. 
    2. The Applicant was on WorkCover benefits up to 14 March 2023.
    3. The Respondent had ample opportunity to investigate the 2018 Incident.
95. [95]
    The High Court in Brisbane South Regional Health Authority v Taylor^[130] held that the applicant for an extension of time has the legal onus of showing that the justice of the case requires the discretion to be exercised favourably and must establish that an extension of time beyond the ordinary limitation period would not result in significant prejudice to the prospective defendant.
96. [96]
    Keane JA in HWC v Corporation of Synod of Diocese of Brisbane^[131] articulated this test from a different perspective: namely, the question of whether there would be significant prejudice can be considered by asking whether the plaintiff can show that a fair trial can take place notwithstanding the delay that has occurred.  This is the question that the Applicant has addressed in his submissions.
97. [97]
    Relevant considerations going to potential prejudice and whether a fair trial would be possible include:

    1. The length of the lapse of time.
    2. Whether medical records and witnesses are unavailable.^[132]
98. [98]
    Other than the general lapse of time there is no evidence of any specific prejudice.  The length of time here is not significant and any issues arising as a result of the delay could be dealt with by the trial judge.
99. [99]
    If I am wrong about the requirements of s 31(2) of the LA Act being met and the Court’s discretion does arise, then I am satisfied that there is no basis to refuse the extension of time sought by the Applicant.  Accordingly, if the discretion does arise then it should be exercised to extend the limitation period as sought by the Applicant.

Orders

100. [100]
     Accordingly, the orders of the Court are as follows:

1. The application is dismissed.
2. I will hear further from the parties as to costs.