Haslam v Queensland Alumina Ltd

[1993] QCA 523

IN THE COURT OF APPEAL	[1993] QCA 523
QUEENSLAND

C.A. No. 162 of 1993

Brisbane

Before The Chief Justice
Mr Justice McPherson
Mr Justice Mackenzie

[Haslam v. Queensland Alumina Limited]

BETWEEN:

PETER LACHLAN HASLAM

(Plaintiff) Appellant

- and -

QUEENSLAND ALUMINA LIMITED

(Defendant) Respondent

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 15/12/93

The applicant sought an extension of time pursuant to s. 31(2) of the Limitation of Actions Act 1974 for the purpose of suing the respondent for damages for negligence causing personal injury. The application, brought before a judge of District Courts, was refused. The applicant has not yet commenced an action against the respondent.

This appeal, which is now brought against the order refusing an extension of time, faces certain preliminary obstacles.

The appeal itself has not been commenced in time. It was not contested that the order made below was not a final judgment and that accordingly leave to appeal is required pursuant to s. 92 of the District Courts Act. That leave is granted only if "some important question of law or justice is involved". This major hurdle must be confronted by the applicant if leave is to be obtained pursuant to s. 92 but, also, time limits are prescribed for the filing of the application for leave to appeal: see D.C.R. 334 R.S.C. O. 70 r. 34. The application for leave to appeal was not in fact filed until 2 September, 1993. However, both the District Court and this Court have jurisdiction to extend the time for appealing in a proper case: see Jiminez v. Jayform Contracting Pty. Ltd. [1993] 1 Qd. R. 610.

It is accepted that the failure to file the present application within time occurred because of a mistaken view taken by the applicant's legal advisers as to the time limit which governed the matter and that no disadvantage has been suffered by the respondent due to the delay in seeking leave to appeal. It was common ground before us that if the applicant could show that it was a proper case for leave to appeal, that is that an important question of law or justice is involved, then time for bringing this appeal could appropriately be extended.

The relevant injury, one affecting the applicant's back, occurred in the course of his employment on 5 January, 1990 (or it may have been 3 January, 1990, the material is not clear). This meant that on his application for an order for extension of the statutory limitation period the applicant was obliged to show that some material and decisive fact was not within his knowledge or means of knowledge until after 3 or 5 January, 1992. That date would mark the commencement of the last year of the limitation period ordinarily applicable: cf. s. 31(2)(a) of the Act. The learned District Court judge correctly identified this requirement and described it as the "critical matter" for his determination. Further, since no action had been commenced at the date of the decision of the District Court judge on 6 August, 1993, and since the power of the court to extend time is limited to a period of one year after knowledge or means of knowledge of the relevant decisive material fact is gained (see s. 31(2)) an additional practical burden was placed upon the applicant. He could not be assisted unless he showed that decisive material knowledge was gained after 6 August, 1992 - cf. Moriarty v. Sunbeam Corporation Limited [1988] 2 Qd. R. 325 at 334-5.

No issue arose on the availability of evidence to establish a cause of action apart from the difficulty caused by the time limitation. This difficulty the applicant attempted to overcome by showing that, although at earlier times he had known of the nature of his injury, it was not until 17 November, 1992 that it was apparent to him that the extent and consequences of the injury were such as to justify his bringing an action (this shortened description of the test under s. 30(b) can conveniently be adopted here).

The judge in addressing the issue raised made his assessment of the evidence. He was obliged to consider whether prior to January 1992 and indeed prior to August 1992 in light of what had occurred and what had been suffered by the applicant he should be regarded as being in a position where he should have appreciated that an action would have had reasonable prospects of success and of bringing an award of damages which would justify it: s. 30(b)(i).

In October 1991 the applicant had a fusion operation to deal with his condition. In the first half of 1992 symptoms were suffered anew and in July of that year they became so severe that he sought medical advice including advice from Dr Redmond. The result was that a second surgical operation was performed on 11 August, 1992.

I consider that the judge's task of assessment was one essentially of fact and that the judge approached it in this fashion. Whether another judge confronted with the same task would have arrived at the same conclusion and whether that conclusion should be regarded as a reasonable one are not particularly relevant questions until the applicant has shown that he ought to have leave to appeal. He is not entitled to this leave without showing the involvement of an important question of law or justice.

The reality is that the decision below was one made in a very familiar area and it was of a kind which quite frequently has to be made by judges exercising the jurisdiction conferred by this statute. From the judge's reasons I do not detect an error of law which affected his approach. The judge could with advantage more explicitly have stated why he was giving attention to the symptoms experienced and matters brought home to the appellant after January and during the course of the year 1992 but it was correct that the judge should take into account matters within the appellant's knowledge and presumed knowledge up to 6 August, 1992. It seems to me that his reasons reveal that he made his factual assessment on a correct basis. Just prior to 6 August, 1992 the appellant after all that had gone before was experiencing a recurrence of symptoms severe enough to call for a second operation and was in the run up period to it. The judge sufficiently clearly has rejected the critical character claimed for the opinion conveyed to the appellant by Dr Redmond in November 1992 and he has concluded that the appellant should be taken to have been aware at an earlier time of the worthwhile nature of the legal proceedings which were available to him and even if in November they were seen as being even more worthwhile: cf. the observations made concerning mere enlargement of damages in Taggart v. The Workers' Compensation Board of Queensland [1983] 2 Qd. R. 19.

The judge here has recorded his view of the appellant's state of knowledge in this fashion:-

"The information he got on 17 November, 1992, if correct, would operate, it seems to me, only to indicate that his damages would be more substantial, even perhaps significantly so, than he'd earlier expected."

In interpreting and applying the words of the statute in these cases judges now have the advantage of a number of judicial pronouncements. Even if in some respect which is not readily apparent an error of law has occurred in the present case it could not be said to raise an important legal principle.

The judge gave attention to the fact that workers' compensation payments received by the applicant would go to reduce the amount of any damages which might have been recovered and so to that extent diminished the attractiveness to the applicant of undertaking an action but the judge concluded that the applicant's symptoms at relevant times "were substantial" and that anyone in the applicant's position "should readily have expected that his disabilities related to this accident would yield not insubstantial damages for pain and suffering". Nothing erroneous occurs in the judge's identification of this relevant question arising for his consideration and his conclusion in respect of it, adverse to the applicant, simply represents an assessment which he was called upon to make.

The judge later added a reference to "exceptional cases" a phrase which he took from some remarks of Thomas J. in McKenna (unreported O.S. No. 92 of 1986). The separate consideration which the judge seems to have given to the question whether there was exceptionality in the case before him did not affect the decision at which he had already arrived by applying the correct statutory test.

The judge in his reference to "exceptional" took it from another context where it may have been intended to reflect a view of situations which are, in a statistical sense, exceptional. If the judge was indicating that had the case been "exceptional" he would have granted an extension even though under the test made relevant by the statute the applicant would have failed then he would have been unjustifiably ameliorating the statute's effect. If he meant that although the discretion to extend was in the case before him enlivened on the application of the statutory test in ss. 30(b) and 31(2) he still would not grant the extension unless the case was further shown to be "exceptional" he would have been improperly narrowing his discretion but it must be said that his reasons do not indicate that occurred here. His reference to considerations of exceptionality, added as something of a postscript, do not appear to have affected his decision.

Although the application for extension of the statutory period was of great importance for the applicant since failure to secure it meant that, in a practical sense, he would lose his right of action, it cannot be said that the case was in any way different from other cases in the same category.

Accordingly it should not be concluded that some important question of justice was involved. The judge's application of the statutory test produced the result, however unwelcome it was for the applicant.

The application for leave to appeal against the decision should be refused with costs.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 162 of 1993

Brisbane

Before The Chief Justice
Mr Justice McPherson
Mr Justice Mackenzie

[Haslam v. Qld. Alumina Ltd.]

BETWEEN

PETER LACHLAN HASLAM

(Plaintiff) Appellant

- and -

QUEENSLAND ALUMINA LIMITED

(Defendant) Respondent

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & MACKENZIE J.

Judgment delivered the 15th day of December 1993

This is an application for leave to appeal against an order of a District Court judge dismissing an application under s.31(2) of the Limitation of Actions Act 1974 for an extension of the limitation period within which to bring an action for damages against the applicant's former employer. Briefly, the applicant injured his back at work at Gladstone on about 5 January 1990. There is a question whether the date of injury may not have been 3 January 1993; but that difference does not affect the fate of the application. During the period that followed he received and acted on medical and specialist advice, undergoing surgical operations on two occasions, once in October 1991 and again in August 1992. On 17 November 1992 the applicant was informed by his specialist Dr Redmond that he would have a permanent disability. He did not, however, consult a solicitor until 15 January 1993, which was a few days after the limitation period of three years had expired on 5 January 1993.

In March 1993, the applicant's solicitors advised the Workers' Compensation Board of his intention to apply for an extension of that time. The application for extension was filed on 12 July 1993, and was dismissed on 6 August 1993 after a hearing on 23 July 1993.

Leave to appeal to this Court from that decision is

necessary because of s.92(2) of the District Courts Act 1967.
That is because s.92 confers a right of appeal only in the case
of a "final judgment" of one of the four descriptions in paras.
(a) to (d) of s.92(1). The section then goes on in s.92(2) to
authorise a party to apply for leave to appeal in the case of a
judgment "other than one hereinbefore mentioned". The refusal
of an application for extension of the limitation period was
held in Meddings v. Gold Coast City Council [1988] 1 Qd.R. 528
not to be a "final judgment" under s.92(1). The decision of
the Full Court in Meddings was recently referred to in the
Court of Appeal in Lillicrap v. Strange (App. 113 of 1993;
unrep. 4.10.1993); however, the Court there said it was the
decision of the New South Wales Court of Appeal in Merton
Enterprises Pty Ltd. v. Nelson (1988) 13 N.S.W.L.R. 454, that
it found "persuasive" and influenced it to proceed on the basis
that leave is necessary in a case like this.

Those three decisions make it clear that leave is needed

to appeal against the decision refusing this application.
Section 92(2) provides that leave to appeal may be granted on
terms, but:

"such leave shall not be granted unless some
important question of law or justice is involved."

The derivation of this provision, which simply repeats the corresponding paragraph in s.143 of the previous District Courts Act of 1958, was considered by Williams J. in Johns v. Johns [1988] 1 Qd.R. 138, in reasons with which the other members of the Full Court agreed. As appears from the earlier statutory provisions and authorities considered by his Honour, there are decisions of the High Court that regard the existence of "an important question of law" as a reason for granting leave to appeal under comparable provisions (as they then were) of the Judiciary Act 1903. See Dalgarno v. Hannah (1903) 1 C.L.R. 1, 3; Johansen v. City Mutual Life Assurance Socy Ltd. (1904) 2 C.L.R. 186, 188.

The judgments in those cases show that the expression "important question of law" is traceable to the practice of the Privy Council in granting leave to appeal : see Prince v. Gagnon (1882) 8 App.Cas. 103, 105. For a question of law to attract leave to appeal in the Privy Council or the High Court it is safe to assume that it would need to be more important than for leave to appeal to this Court from the District Court.

Furthermore, the addition to s.92(2) of the words "or justice" can only have been intended to have a liberalising effect on the discretion exercisable under that subsection. Bearing these differences in mind, decisions of those two appellate courts are capable of affording some guidance in considering applications for leave to appeal under s.92(2).

The purpose of requiring leave to appeal against an order that is interlocutory was said in ex parte Bucknell (1936) 56 C.L.R. 221, 223, to be "to check appeals which will not result in final determination of the parties' rights". Their Honours went on to say that in an application for leave to appeal in such a case, the first question is whether the interlocutory order against which it is sought to appeal is one from which, if it was final, an appeal would lie as of right (56 C.L.R. 221, 225). The reference there was to sub-paras. 1, 2 and 3 of s.35(1)(a) of the Judiciary Act 1903 which specified the kinds of judgments or orders from which an appeal then lay as of right to the High Court. One of them was a judgment given in respect of a matter at issue amounting to £300. It was, their Honours said, difficult to imagine an interlocutory order relating for example to procedural matters like interrogatories, discovery or particulars that would ever prejudice a party to the extent of £300. But, their Honours continued (56 C.L.R. 221, 225):

"there is one class of case which raises little difficulty. If the interlocutory order, being an order of the character specified in sub-paras. 1, 2, or 3 of s.35(1)(a), has the practical effect of finally determining the rights of the parties, though it is interlocutory in form, a prima facie case exists for granting leave to appeal."

The example then given is of a judgment for either party on demurrer, which although it is said to be "often interlocutory", might nevertheless be decisive in determining the issue between the parties; in a case like that the High Court said that leave would be granted "almost as of course".

The present case falls squarely within the class described by their Honours as raising "little difficulty". Although in law interlocutory, the order dismissing the application for extension of the limitation period has the practical effect of finally determining the rights of the parties. Without an extension of the limitation period, the applicant's claim for damages for personal injuries is at an end. Under s.92(1)(a) the amount in respect of which an appeal lies to this Court as of right from a final judgment in the District Court is $10,000. The question of liability was not put in issue in the present application. As regards quantum, the medical evidence is that the applicant has sustained a permanently disabling injury of the spine. It may force him to give up his present employment as a purchasing officer, which is said to involve work that is "the very worst" in view of the conditions, the surgical operations undergone, and the symptoms the applicant is now experiencing. This strongly suggests that, as a result of the order dismissing his application, the applicant is likely to be worse off than he was before to the extent of considerably more than $10,000.

Having regard to the approach adopted in ex parte Bucknell, matters so far may be thought to justify at least a slight predilection in favour of the application which, although interlocutory in character, is final in its impact on his cause of action. To qualify for leave to appeal under s.92(2), it is, however, necessary for the applicant to show that some important question of law or justice is involved. To see whether this requirement is satisfied it is necessary first to look more closely at the facts, and then at the reasons given by the judge for refusing the application below.

The applicant was injured in the oxalate section of the Gladstone alumina refinery in the course of attempting to pull a moving cloth back into alignment. The cloth, which functioned as a conveyer belt, was covered with slurry and was very heavy. While standing in an awkward position, the applicant had to pull on the cloth and lean back. He had to execute this movement several times, and in doing so felt a severe stabbing sensation in his neck and shoulders and a lesser pain in his lower back. Eventually he stopped work and sought medical attention. Dr Hough, who examined him that day at the defendant's medical centre, diagnosed lower back strain.

The applicant's own medical practitioner Dr Diefenbach advised that he was suffering from strained muscles and gave him a certificate for three days absence from work.

After returning to work the applicant was moved from the plant to purchasing duties, where he remained until November 1990, when he transferred his services to I.C.I. as a purchasing officer. During that time he suffered intermittent headaches, pain and stiffness, which were relieved by pain killers, neck massage and rest. His impression during this period was that stress at work was aggravating his injuries.

In May 1991, which was some six months after starting work at I.C.I., he began to suffer headaches and shoulder and neck pain. Dr Hough recommended pain killers, and in the same month Dr Diefenbach prescribed a relaxant for symptoms he diagnosed as stress related.

The pain persisted and became worse. In August 1991, the applicant was referred by Dr Hough's locum for x-rays to be taken. On receiving the results the applicant was advised to consult a neurosurgeon because of damage in the C6-C7 spinal area that showed up in the x-rays. In August 1991 he was referred to Dr Michael Redmond, neurosurgeon, in Brisbane who recommended surgical treatment to effect a spinal fusion. The applicant says he was advised that the prospects of success were very high and that after the operation he ought to be free of symptoms.

The operation took place in October 1991. A report from Dr Redmond, which is dated 15 February 1993 says that a cervical CT myelogram was first performed on 7/10/91; the surgery itself was carried out on 8/10/91. Dr Redmond reviewed the applicant post-operatively on 20 November 1991. He described as "significant" the improvement that had taken place since the surgery, reflected in relief of the neck and arm symptoms, and only slight residual numbness at the tip of the right index finger.

The applicant returned to work, experiencing only minimal symptoms over the next five to six months. However, in about July 1992, he suddenly began to lose feeling in the fingers of his right hand; his right arm developed a "dead" sensation; and he began to suffer headaches, neck pain, and sensory disturbances in the right hand. He consulted Dr Fraser in Gladstone, who referred him back to Dr Redmond, who saw again him on 31 July 1992.

Dr Redmond arranged for further x-rays to be taken.

According to his report dated 15 February 1993, a cervical C.T. myelogram on 10 August 1992 disclosed a residual bony spur on the right C6-7 level. This seems to be the bony "nodule" of which the applicant says he was informed (he says) after the first operation in October 1991; but Dr Redmond's report shows that this condition was identified from another myelogram performed on 10 August 1992. It was followed on 11 August 1992 by the second surgical operation which was designed to relieve compression of the C7 nerve root. It seems likely that the applicant is here confusing two different occasions.

On 18 September 1992 the applicant attended Dr Redmond for post-operative review. According to his report the applicant said he had made a good recovery. Although continuing to have occasional headaches and neck twinges, he said he was no longer experiencing pain in the arm. On that occasion Dr Redmond records that he considered the applicant's symptoms "would gradually improve, and arrangements had been made for him to return to work on 28/09/92". At this point there is evidently some inconsistency between Dr Redmond's report and para. 29 of the applicant's affidavit, in which the applicant says that after the operation he continued to suffer the dead sensation in his right fingers, hand and arm, and that he had a discussion with Dr Redmond "on or about" 2 November 1992.

Dr Redmond reports that it was on 17 November 1992 (which tallies with the date given in para. 31 of the plaintiff's affidavit) that the applicant was again referred to him, and Dr Redmond says that it was then he was told there had been remission of the right arm pain, neck and shoulder pain, accompanied by constant and abnormal headaches, limitation of neck and right arm movements, and occasional weakness in the right arm.

The applicant deposes that it was in the course of this interview that he was first advised that he would have a permanent disability, with restricted head and arm movement, and that his work as purchasing officer was not good for him. The permanence of his condition is confirmed by Dr Redmond in his report of 15 February 1992, where he provides what he describes as the medically assessable impairment of the applicant's spine.

In para. 29 of his affidavit the applicant says that Dr Redmond has told him that the cause of his present condition may be "scar tissue from the second operation building upon scar tissue from the first". This corresponds with Dr Redmond's opinion in his report dated 15 February 1992, where the original problem is said to have been disruption and protrusion of the C6-7 intervertebral disc, which needed the two surgical procedures to correct. He offers the opinion that the applicant's present symptoms stem from an "underlying problem of cervical spondylosis and two surgical procedures on the neck", and that further neurosurgical treatment is not likely to be beneficial.

We have set out details of the material available in the record because, although the judge who heard the application referred both to evidence from the plaintiff's affidavit and to Dr Redmond's report, he did not advert to the inconsistencies between the two, and in consequence he made no effort to reconcile them in his reasons for judgment. For our part we would prefer Dr Redmond's version in view of the known practice among medical practitioners of making notes of their consultations, which the applicant himself seems not to have done. It may in any event not affect the result very much because under s.31(2)(a) of the Limitation of Actions Act 1974 the critical prerequisite for obtaining an extension of the limitation period is 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 relevant limitation period. In the case of an action like this for damages for personal injuries the relevant period is 3 years from the date when the cause of action arose : see s.11.

That period expired on 5 January 1993, so that under s.31(2)(a) it is necessary that the material fact should not have become known to the applicant, or have been within his means of knowledge, before 5 January 1992. By virtue of s.30(a)(iv) of the Act, the extent of the personal injury is declared to be a material fact. In the present case it is the extent of his injury that the applicant asserted was beyond his knowledge or means of knowledge at the relevant date.

In refusing the application, his Honour began by recounting the facts we have recited here, which he said he was prepared to find established. His reasons then proceed:

"It seems to me clear, as unfortunate as it may be
for the applicant, that this application must fail.
Even although he was paid Workers' Compensation for
time off work, the symptoms were substantial such as,
it seems to me, anyone should readily have expected
that his disabilities related to his accident would
yield not insubstantial damages for pain and
suffering, not just reimbursement in respect of
Workers' Compensation payments.

The information he got on 17 November 1992, if correct, would operate, it seems to me, only to indicate to him that his damages would be more substantial, even perhaps significantly so, than he'd earlier expected. The matter, it seems to me, is a case akin to that contemplated by Thomas J. in McKenna OS No 92 of 1986 where His Honour said,

'Exceptional cases aside, an applicant who suffers an overt condition, and who knows the facts which produced the condition, will not normally succeed in an application of this kind unless his or her symptoms during the defined period were relatively trivial. Applications of this kind are in my experience relatively common, and a question of degree is always involved when the application is based upon the applicant's knowledge of the nature and extent of the injury, as distinct from the occurrence of an injury. Only a few such instances have been reported, and for that reason it may be appropriate to include reference to two unreported instances in which similar problems have arisen.'

His Honour then referred to re Moshnogorsky OS 137 of 1984 and re Devenish OS 147 of 1984. It seems to me this is not an exceptional case. The applicant had suffered severe symptoms, had had two serious operative procedures and, as I have said, it seems to me, having regard to those matters, the application must fail. Had matters been otherwise, I would not have refused the application on the basis only of delay from 17 November 1992 onwards in all the circumstances, and I should say that I have relied upon for this view the affidavit of the applicant sworn on 23 July 1993. Also, I have had regard to the fact that in that time the Court vacation intervened."

At the hearing before the judge below the applicant had submitted that it was not until 17 November that the material fact (being the extent of his personal injury) first came within his means of knowledge. It was only then that the applicant learnt from Dr Redmond of the permanent disability of his spine and its likely impact on his future employability.

As appears from his Honour's reasons, it was because he rejected that submission that he refused the application. Unfortunately, it is by no means clear precisely when it was that the judge considered that the extent of the injury had come within the applicant's means of knowledge.

If it was not on 17 November 1992, then conceivably it could have been in July 1992, when (as his Honour found) the applicant experienced loss of feeling in his right arm, severe headaches, and neck pain - symptoms which his Honour described as "worse than the symptoms had been prior to the first operation", which took place in October 1991. However, if it was on some date in July 1992 that the extent of the injury first came within the plaintiff's means of knowledge, that date too was still within the relevant "preceding" year, which began on 5 January 1992. The same would, of course, hold good of any other such date after the commencement of that year on 5 January 1992. It would only be if the extent of the injury had first come within the applicant's knowledge before 5 January 1992 that his application would be bound to fail. This is because, in a case involving a limitation period of 3 years like this, the practical effect of s.31(2)(a) is to restrict the inquiry to the applicant's state of knowledge or means of knowledge during the first two years after the cause of action arose, and to exclude the third year from consideration.

It was his Honour's failure to appreciate or give effect to this distinction that led him to refuse the application. In doing so he disregarded or misapplied s.31(2)(a). His critical finding was that:

"The applicant had suffered severe symptoms, had two serious operative procedures, and, as I have said, it seems to me, having regard to these matters, the application must fail."

Now, it was true that the applicant had had two serious operative procedures. One was in October 1991 and the other in August 1992. However, the second operation was within what we have called the third year, and so could not defeat the application. If it was only in August 1992 that the extent of the injury first came within the applicant's knowledge or his means of knowledge, then it was at a date "after the commencement of the year last preceding the expiration of the period of limitation for the action", which was 5 January 1992.

In the search for a "material fact of a decisive character" the second operation ought to have been excluded from consideration; instead it was a matter to which his Honour said he had regard. It may be that, in a sense, the "material fact" comprised the combined impact of both operations on the underlying cervical spondylosis. There is a sound basis for that conclusion in what Dr Redmond is reported to have told the applicant in November 1992; his advice to that effect is set out earlier in these reasons. In para. 29 of his affidavit, the applicant dates this advice to 2 November 1992. He may be mistaken about that date; it was probably 17 November, but on any view the advice must have followed the second operation in August 1992. It is difficult to see how the applicant could have been alerted any earlier to a condition that, at least in part, resulted from scar tissue produced by the first and second operations, and so necessarily followed them in chronological sequence.

Besides the "two serious operative procedures" which the judge treated as relevant, he also identified as a matter to which he specifically had regard the "severe symptoms" suffered by the applicant. The most severe symptoms suffered by the applicant - which his Honour described as "worse than the symptoms had been prior to the first operation" - were those experienced in and after July 1992, when his right arm developed a dead sensation, and there were headaches and neck pain. That condition had disappeared or at least diminished by the time of the post-operative review on 18 September 1992; but by November 1992 it had re-asserted itself. Even so, all of these events took place well within the third year beginning on 5 January 1992. Before that time, the only phenomenon in any way comparable manifested itself during the period running from May 1991 until the operation in October 1991. It is described in para. 21 of the applicant's affidavit as "headaches, shoulder and neck pain", which were relieved by the surgical procedure carried out in October 1991. In speaking of the applicant's "severe symptoms", the judge must therefore have been intending to refer particularly to those experienced in 1992 rather than in 1991. Even if he meant to include both, the later and more severe symptoms were not observed by the applicant until the third year, and so should have been excluded from consideration.

In deciding the application to extend time the judge has thus erroneously had regard to two matters (the 1992 symptoms and the 1992 operation) both of which were irrelevant. It is we think not difficult to see how this error came about. At the hearing the submission for the applicant was, as we have said, that the material fact was the extent of the injury, which it was submitted first came within the applicant's knowledge or means of knowledge when he was advised on 17 November 1992 of the permanent disability of his spine. The only rational explanation of his Honour's reasons is that he somehow mistook that date (17 November 1992) for the commencing date (5 January 1992) of the third year. Only by making a mistake like that could he have regarded matters like the second set of symptoms in July 1992, or the second operation in August 1992, as relevant in determining the application.

That is, however, not the only fallacy in the reasoning.

As appears from the extract quoted earlier, his Honour set out a passage from an unreported judgment in Re McKenna, which, he pointed out had been repeated in another decision, also unreported, of the same judge in Re Moshnogorsky. The passage in question begins with the words "Exceptional cases aside ...". After quoting it, the learned judge below went on to say that the present application was not an exceptional case. We are satisfied that in the remarks he made in Re McKenna, Thomas J. was not intending to lay down any general principle of law, nor was he suggesting any kind of factual presumption that could be applied in deciding applications like this for an extension of the limitation period. To do so would be to fetter the general discretion which s.31(2) so plainly confers.

On the contrary, we feel confident that Thomas J. was simply recording his own experience or impression of particular cases which had come before him in the past.

We nevertheless are persuaded that what Thomas J. said in Re McKenna was viewed by the District Court judge as embodying some form of general principle operating to defeat applications of this kind unless they could be considered to answer the description "exceptional cases". The impression that the matter was viewed in that light at the hearing is strengthened by the fact that counsel for the respondent provided copies of those unreported decisions to his Honour, and evidently invited him to follow them. There would have been no point in his citing them simply as illustrations of decisions on matters of fact. In deciding to refuse this application, his Honour was in our opinion influenced by what he erroneously believed to be the principle laid down in Re McKenna. Otherwise there would have been no point in his quoting from the judgment in Re McKenna in his own reasons before going on to characterise the application before him as one that was "not an exceptional case".

There is thus no doubt that in refusing the application the judge made two separate and critical errors of law. He applied what was said in Re McKenna as if it were a principle of general application having the effect of preventing an extension of the limitation period in a case like this because it was not "exceptional". In addition, he misapplied or perhaps entirely ignored s.31(2)(a) by having regard to matters that occurred only after the commencement of the year last preceding the expiration of the cause of action, when what s.31(2)(a) requires is that they be excluded from the search for a "material fact of a decisive character".

To my mind both errors involve points of law of general importance. Section 31 of the Limitation of Actions Act is designed to function as an antidote to the specially reduced limitation period that is applied by s.11 to the enforcement of claims for damages for personal injuries in cases like this.

It has its genesis in Cartledge v. E. Jopling & Sons Ltd. [1963] A.C. 758, which revealed the problems encountered by plaintiffs in commencing proceedings to recover damages for injuries which, at the time they are sustained, are not readily perceptible either at all or as being compensable at law. Back injuries are a notorious instances of that kind.

In cases within this category it would obviously stultify the discretion to displace s.11 that is conferred in s.31 if judges of District Courts (where the majority of serious personal injury claims are now heard) came to regard themselves as bound to exercise that discretion in accordance with a general principle that is erroneously believed to have been laid down in the Supreme Court. In addition, it is plain that in dismissing the application in the present case the judge misconceived the operation and effect of s.31. The misconception is one that goes to the entire foundation of the application and raises an important question not only of law but of justice. The applicant in this case was entitled to expect that his application would be determined in accordance with s.31 and with a proper appreciation of its operation. As it is, if leave to appeal is not granted, he will, through no fault of his own, forfeit peremptorily and finally a claim for compensation for a permanent disability that may in the course of time render him unemployable. In Jiminez v. Jayform Contracting Pty. Ltd. [1993] 1 Qd.R. 610, 612, 605, this Court held that an injustice of that character was sufficient to justify the grant of leave to appeal under s.92(2). It should do so here too.

Once leave is granted, the appeal inevitably succeeds because of the errors of law that were made. The order dismissing the application must be set aside and it must be considered afresh. His Honour held that he would not have refused the application on account of the delay after 17 November 1992. This conclusion was challenged on appeal, but we consider it to be correct. After returning to Gladstone the applicant consulted his local medical practitioner, who recommended him to Dr Wilson, who is a pain specialist in Rockhampton. On his advice the applicant approached the Workers' Compensation Board to pay for a "pain blocking" or "nerve blocking" operation. In late December 1992 he received a letter from the Board refusing to pay for that treatment.

After allowing a few days for the Christmas - New Year break to come to an end, the applicant first consulted a solicitor on 15 January 1992. He chose one in Brisbane, so as to avoid any possibility of conflict with the defendant, which he suggests has a pervading presence in Gladstone; but, as it happened, the Brisbane solicitors he selected were unable to act and referred him on to another. Because of this it was not until a week later on 22 January 1993 that he was able to consult his present solicitors. They wrote to the Board on 8 March 1993 notifying the applicant's intention to make this application. Dr Redmond's report, which is dated 15 February 1993, was obtained, and also a report, which is dated 1 April 1993, from an occupational therapist. Correspondence between solicitors followed in April and June, and the application was filed on 12 July 1992. Perhaps things might have been done more swiftly, but the material had to be gathered and prepared for the application, and the fact that the applicant lived in Gladstone would have added considerably to the delays naturally encountered. We would not upset the judge's decision on this aspect of the matter.

Section 31(2) enables the limitation period to be extended
so that it in effect expires at the end of one year after the
date in the third year on which the material fact first came
within the knowledge or means of knowledge of the applicant.
In my view that date was 17 November 1992, which was when the
applicant learned for the first time that his spine was subject
to a permanent disability that was likely to affect his future
employment. Previously the optimistic prognoses of the
specialist, the advice of his general practitioners, and his
own impression that an improvement had taken place after the
operative treatment in 1991 had naturally tended to override
any suspicion the applicant might otherwise have had about the
extent of his injury. In our opinion he acted reasonably in
not taking legal advice before he knew the condition was
permanent. Indeed, if the injury was in part the result of
surgical scar tissue he could not have been given any useful

advice about it much sooner than he was.

We would allow the appeal, set aside the order below, and
in lieu order that the period of limitation referred to in the
notice of application no. 143 of 1993 in the District Court at
Brisbane be extended so that it expires on 17 November 1993.
We would order that the respondent pay the costs of this
appeal, but that the costs of the application be reserved to
the trial judge or until further order. We would also order
that there be a certificate under the Appeal Costs Act.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 162 of 1993

Brisbane
[Haslam v. Qld. Alumina Ltd.]

BETWEEN

PETER LACHLAN HASLAM

(Plaintiff) Appellant

- and -

QUEENSLAND ALUMINA LIMITED

(Defendant) Respondent

The Chief Justice
Mr Justice McPherson

Mr Justice Mackenzie

Judgment delivered 15/12/93

Joint reasons by McPherson J.A. and Mackenzie J. Separate reasons by Macrossan C.J. dissenting.

APPEAL ALLOWED. ORDER BELOW SET ASIDE, IN LIEU, ORDERED THAT
THE PERIOD OF LIMITATION REFERRED TO IN APPLICATION NO. 143 OF
1993 IN THE DISTRICT COURT AT BRISBANE BE EXTENDED TO EXPIRE ON
17 NOVEMBER 1993. RESPONDENT ORDERED TO PAY COSTS OF APPEAL.
COST OF APPLICATION BE RESERVED TO THE TRIAL JUDGE OR UNTIL
FURTHER ORDER. CERTIFICATE UNDER THE APPEAL COSTS ACT BE
ISSUED.

CATCHWORDSPERSONAL INJURIES - Negligence - Employment related injury - Leave to appeal against dismissal of application under s.31(2) Limitation of Actions Act 1974 (Qld) - Extension of Limitation period for personal injuries action - Section 92(2) District Courts Act 1967 (Qld) - Important question of law or justice needed for leave to appeal - Whether a material fact of a decisive character was within the plaintiff's knowledge at the requisite time - Material fact being the extent of the injury

Counsel:	K. Fleming Q.C., with him A. Wilson, for the appellant
P. Bickford for the respondent
Solicitors:	McInnes, Wilson Jensen for the appellant Clayton Utz for the respondent

Hearing Date: 29 October 1993