Handyside v Sunshine Coast Regional Health Authority

[1996] QSC 114

IN THE SUPREME COURT

OF QUEENSLAND

No. 390 of 1995

[Handyside v. Sunshine Coast Regional Health Authority]

BETWEEN:

SUZANNE SCHROLL HANDYSIDE
  Plaintiff

AND:
  SUNSHINE COAST REGIONAL HEALTH AUTHORITY
  Defendant

JUDGMENT  -  DERRINGTON J.

Delivered:3 July 1996

CATCHWORDS:     LIMITATIONS OF ACTION - Extension of time - Plaintiff's belief on medical advice that injury was minor and not capable of objective physical demonstration; serious injury later detected - Extension granted.

Counsel:Mr R Dickson for the Plaintiff

Mr A Wilson for the Defendants

Solicitors:Graham and Associates for the Plaintiff

Corrs Chambers Westgarth for the Defendants

Hearing date :   28 June 1996.
IN THE SUPREME COURT

OF QUEENSLAND

No. 390 of 1995

[Handyside v. Sunshine Coast Regional Health Authority]

BETWEEN:

SUZANNE SCHROLL HANDYSIDE
  Plaintiff

AND:
  SUNSHINE COAST REGIONAL HEALTH AUTHORITY
  Defendant

JUDGMENT  -  DERRINGTON J.

Delivered 3 July 1996

This is an application for the extension of the time for bringing an action for damages for personal injury alleged to have been caused by the negligence of the defendant as the employer of the plaintiff.  The application is necessary because the time limited for bringing the action has expired.
           The plaintiff was a nurse who claims to have injured her back when handling a very heavy patient at the time of a medical emergency.  The defendant concedes that for the purpose of the present application there is evidence of a prima facie cause of action, apart from a defence founded on the expiration of the limitation period. 
           After her injury the plaintiff received workers' compensation for a period in excess of five months, but was able to return to work and continued to do so until she underwent an operation for a laminectomy and spinal fusion on about 1 August 1994.  After that she was largely disabled from work until 26 January 1995 when she ceased it completely.
           Between the time of her injury and the time of her operation, she suffered several occasions when her condition of minor disability was exacerbated by pain, and she received treatment which ameliorated it.  Medical advice led her to believe that she had only a minor injury which was vulnerable to occasional temporary agitation.  However, her medical advisers were unable to identify any physical foundation for her claims, and after consulting her brother, a solicitor, with a report from her specialist, on his advice she decided that it was not worthwhile to proceed with any action.  In the meantime she continued with her work with some difficulties but was advised by her specialist to persist.
           Troubled by the regular reappearance of her symptoms, she changed her medical adviser.  At first there was little variation in the advice she received, but finally she persuaded her new adviser to provide a myelogram, which revealed that there was indeed a physical cause of her complaints, and this led to her operation.  The limited nature of the benefit that it provided was not determinable until after she tried to return to work.
           On this material, it is fair to say that the lady was reasonably dissuaded from the pursuit of her legal remedies by the medical advice which she received until at least it was revealed that she required a laminectomy and spinal fusion.  Although prior to that time she had knowledge of some injury, she showed admirable restraint from rushing into litigation over what she reasonably believed was a minor injury, not capable of objective verification.  She took the precaution of obtaining legal advice which properly confirmed her decision at that time.  It was only shortly prior to her operation that she learned of the serious nature of the injury and that it could be objectively demonstrated. 
           The authorities are clear that she should not be disadvantaged by the statute for behaving very reasonably during the time of her limited knowledge of her condition;  and the true facts in that regard were material facts of a decisive character relating to her right of action:  cf. Byers v. Capricorn Coal Management Pty Ltd [1990] 2 Qd.R. 306; Moriarti v. Sunbeam Corporation Ltd [1988] 2 Qd.R. 325; Berg v. Kruger Enterprises Ltd [1990] 2 Qd.R. 301. The principles are further discussed in my reasons in Elkin v. Irish Linen & Textiles Wholesale Pty Ltd (unreported 14.2.96).
           The defendant claims some prejudice in experiencing difficulty in locating a witness identified on the plaintiff's workers' compensation form following the accident.  It is not established that this witness cannot be found, and in any case, the employer should have provided some details of the plaintiff's version of the event at that time.  Further, it is not established that in the present circumstances the witness would have been located if the action had been brought within the limitation period.  For these reasons, the prejudice to the defendant should not deflect a favourable exercise of the Court's discretion for the plaintiff.
           There is no other impediment because the writ was issued within the period required by the statute, notwithstanding that the precise time of the acquisition of knowledge of the relevant fact is not clearly made out by the plaintiff.
           It is therefore ordered that the limitation period within which this action may be brought be extended to 10 March 1995.  Costs are reserved.