Gilmont and Anor –v- The State of Queensland
[2000] QSC 95
•27 April 2000
SUPREME COURT OF QUEENSLAND
CITATION: Gilmont and Anor –v- The State of Queensland [2000] QSC 095 PARTIES: ANN PATRICE GILMONT
(first plaintiff)
MICHAEL GORDON GILMONT
(second plaintiff)
-v-
THE STATE OF QUEENSLAND
(defendant)FILE NO/S: 2509 of 2000 DIVISION: Trial Division ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 27 April 2000 DELIVERED AT: Brisbane HEARING DATE: 10 April 2000 JUDGES: Dutney J ORDER: Application dismissed.
Applicants to pay the Respondent’s costs of and incidental to the application to be assessed.CATCHWORDS: LIMITATION OF ACTIONS – PERSONAL INJURIES – EXTENSION OF TIME – Application for extension of time to bring action – discovery of connection between multiple sclerosis and work–related stress – whether this was “a material fact of a decisive character”.
Limitation of Actions Act 1974 s30, 31
Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, considered
Moriarty v The Sunbeam Corporation Limited [1988] 2 Qd R 325, considered
Sugden v Crawford [1989] 1 Qd R 683, considered
Clarke v Harpier Acoustics (Unreported, QSC No 2678 of 1988, Mackenzie J, 20 May 1991), considered
Bradford v Darling Downs Bacon Co-Op Assn Ltd (Unreported, QSC No. 7716 of 1999, Atkinson J, 14 October 1999), considered
Brisbane South Regional Health Authority v Taylor (1996-97) 186 CLR 541, consideredCOUNSEL: P J Favell for the Applicant
R Whiteford for the RespondentSOLICITORS: Baker Johnson Lawyers for the Applicant
Crown Solicitor for the Respondent
This is an application pursuant to s31 of the Limitation of Actions Act 1974 (Qld) for an extension of time within which to bring an action for a stress related disability said to have originated in an incident on 7 January 1990.
On 7 January 1990 the first plaintiff was a probationary correctional officer at Brisbane Correctional Centre (Female Division). The first plaintiff had been on a shift but was on her lunch time when an inmate was attacked and later died in hospital.
Shortly after the attack the first plaintiff attended upon the manager of the prison who allegedly accused her of causing the incident by not following procedure and taking an inventory of sharp objects in the “sharps cupboard” before handing over to the relieving officer when going to the lunch break.
The first plaintiff took several days off of work after the murder before returning. On her return she was informed by two inmates that rumours were circulating that she was to blame for the death and certain threats to her safety were being made. A note was found in the maximum security area that said “Gilmont, watch your kids”.
The first plaintiff took four weeks leave to allow things to settle but her stress related state deteriorated and she has never returned to work.
The first plaintiff was initially treated with Xanax to aid in coping with the stress, but as her condition deteriorated she was referred by her general practitioner to a psychiatrist. She was ultimately diagnosed with multiple sclerosis on 19 October 1998.
On 17 May 1999 the first plaintiff attended a neurologist, Dr Paul Sandstrom, who told her for the first time that stressful events such as those on 7 January 1990 could exacerbate the condition of multiple sclerosis. On or about 16 February 2000 the first plaintiff was informed by Dr Sandstrom that it was more likely than not that her condition of multiple sclerosis was related to the 1990 event.
The second plaintiff’s intended claim is for loss of consortium as a result of his wife’s condition.
The plaintiffs say that the discovery of a connection between stress and multiple sclerosis was “a material fact of a decisive character relating to the right of action”[1] which they could not have discovered within the relevant time and which is the basis of their application for an extension.
[1]Limitation of Actions Act 1974 s 31(2)(a).
The cause of action became statute barred on 7 January 1993.
For the purposes of this application Mr Whiteford for WorkCover Queensland quite properly does not challenge the cause of action apart from the limitation period. He submits however that the new information does not satisfy the test of being of a “decisive character” as those words are defined in s30(1)(b) of the Act and have come to be understood and submits further that to extend the limitation period so as to permit the bringing of an action arising out of events now more than 10 years old would be unfairly prejudicial.
Section 31 of the Limitation of Actions Act provides:
“(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) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court-
(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
(3)This section applies to an action whether or not the period of limitation for the action has expired –
(a)before the commencement of this Act; or
(b)before an application is made under this section in respect of the right of action.”
Section 30 of the Act provides:
For the purposes of this Section and Sections 31,32,33 & 34 –
(a)the material facts relating to a right of action include the following –
i) . . . .
ii) . . . .
iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
iv)the nature and extent of the personal injury so caused;
v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
(b)Material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing –
i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
ii)that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
(c)A fact is not within the means of knowledge of a person at a particular time if, but only if –
i) the person does not know the fact at that time; and
ii)as far as the fact is able to be found out by the person – the person has taken all reasonable steps to find out the fact before that time.
(2) In this section –
“appropriate advice”, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”
While each application for an extension of time needs to be considered on it’s own facts it is now established that where the newly discovered fact goes only to an enlargement of prospective damages, it is not of “a decisive character”; Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19 at 23-24; Moriarty v The Sunbeam Corporation Limited [1988] 2 Qd R 325 at 329; Sugden v Crawford [1989] 1 Qd R 683 at 685; Clarke v Harpier Acoustics (Unreported, QSC No. 2678 of 1988, Mackenzie J, 20 May 1991); Bradford v Darling Downs Bacon Co-Op Assn Ltd (Unreported, QSC No. 7716 of 1999, Atkinson J, 14 October 1999).
In Sugden v Crawford (supra) at 685 it was 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.”
On this first aspect of the application, therefore, it seems to me that I need to be satisfied that without knowledge of the alleged fact, namely, the connection between multiple sclerosis and the events of January 1990, the Plaintiffs were aware of facts that, had they been properly advised, would have justified the bringing of an action. Whether an action is justified must take into account those relevant factors which must always be considered before commencing proceedings, such as the risk of losing balanced against the likely return and the costs of any proceedings including costs awarded against an unsuccessful plaintiff.
In this case at the time the limitation period expired in January 1993 the first plaintiff had been off work for a period of approximately three years. Had she brought a claim at that time and had no further facts emerged and had she been successful she might have anticipated receiving a reasonable amount by way of compensation for lost earnings quite apart from any amount for general damages and other ancillary heads. Nonetheless, at that time the claim was purely one for a stress-related condition which would not necessarily have been considered permanent and in relation to which the particular evidentiary difficulties inherent in establishing the cause of action in cases of pure psychiatric injury would have rendered the prospects rather speculative.
The connection between multiple sclerosis and the stress related condition adds, in my view, a different element to the action. Apart from potentially increasing the award of damages quite considerably, so as to provide a more substantial counter balance to the obvious risks associated with the action and which still remain, the effect of the onset or exacerbation of the multiple sclerosis is that the condition from which the plaintiff suffers is permanent with physical symptons.
This is sufficient, in my view, in the light of all the facts of this case to make the discovery of the connection between multiple sclerosis and stress arising from the events of January 1990 a material fact of a decisive character. In my view the risks associated with the action prior to the discovery of that connection and the likely quantum of any award of damages was such that it was not an unreasonable decision on the part of the plaintiff not to have commenced proceedings earlier.
In the circumstances I am satisfied that my discretion to consider whether or not to extend the time for the bringing of the action has been enlivened.
In determining whether or not to exercise my discretion in favour of the applicant, I must consider the prejudice likely to be suffered by the proposed defendant if the action is now brought so far out of time.
In this case a solicitor employed by the Crown Solicitor, Lara Rega, in an Affidavit which I gave leave to read and file identified some potential witnesses in the action. Of the six witnesses apparently present at the meeting at which the first plaintiff was blamed Ms Rega identifies three who do not remember any meeting between the plaintiff and Mrs Stack, the then manager of the prison, one who cannot be located, one who is not prepared to assist and Mrs Stack herself whose version of the meeting is inconsistent with that of the first plaintiff.
Two then prisoners are identified as giving relevant evidence. One is now dead.
Mr Dean Bax, the solicitor for the plaintiffs, has also attempted to contact the same witnesses to the meeting. He was able to locate five. Apart from Mrs Stack only one could recall the incident and her version was very similar to that of the plaintiff.
The lack of positive response from persons approached as potential witnesses is perhaps not surprising given a lapse of ten years since the events in question.
In Brisbane South Regional Health Authority v Taylor (1996-97) 186 CLR 541 Dawson J said at 544:
“The onus of satisfying the court that the discretion should be exercised in favour of the applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation.”
To similar effect Toohey and Gummow JJ in a joint judgment at 547 said:
“The discretion conferred by the sub-section is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant 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. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) ([1964] VR 788 at 793) in a passage which was endorsed by Gibbs J in Cambell v United Pacific Transport Pty Ltd ([1966] Qd R 465 at 474):
“It is for the respondent 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”. ”
In this case it would always be difficult where such a long period of time has elapsed for the plaintiffs to show that the defendant is not going to be prejudiced. This is particularly so where the condition is a psychiatric injury which is substantially attributed to a particular event in relation to which the two principle players, namely Mrs Stack and the first plaintiff, give entirely contradictory accounts but where there were a number of other persons present only one of whom has any recollection.
Since I am required as a consequence of the decision of the High Court in Brisbane South Regional Health Authority v Taylor (supra) to consider the question of prejudice on the basis of looking at the whole of the period since the cause of action accrued and not simply at the period since the limitation expired I must conclude that the plaintiffs have not satisfied me that the defendant’s position is not prejudiced by reason of their not having commenced the proceedings earlier.
The first plaintiff’s condition is alleged to have been caused not merely by reason of the fact that she was admonished by the manager of the prison, but by the unreasonable manner in which that admonishment was given and the consequences of that admonishment becoming known to prisoners. This is not something that is assisted by documentary evidence or any report of the incident that has been drawn to my attention. This is a matter that depends substantially on the recollection of witnesses as to what transpired at a meeting and subsequently. The length of time since the events in question is such that it is unreasonable to expect witnesses who may have assisted the defence to have a clear (or indeed any) recollection.
In the circumstances I must dismiss the application.
I therefore order that the application be dismissed and that the applicants pay the respondents’ costs of and incidental to the application to be assessed.
0
0
1