Jacob Wade Maguire v Plumbing Industry Group Training Scheme Inc and Shaw Plumbing Pty Ltd ACN 010 708 586

[2000] QSC 287

SUPREME COURT OF QUEENSLAND

CITATION:

Jacob Wade Maguire v Plumbing Industry Group Training Scheme Inc and Shaw Plumbing Pty Ltd ACN 010 708 586 [2000] QSC 287

PARTIES:

JACOB WADE MAGUIRE
(Plaintiff)

v

PLUMBING INDUSTRY GROUP TRAINING SCHEME INC (First Defendant)

and

SHAW PLUMBING PTY LTD ACN 010 708 586
(Second Defendant)

FILE NO/S:

S 3668 of 2000

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

29 August 2000

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2000

JUDGE:

Wilson J

ORDER:

Plaintiff’s application for extension of limitation period dismissed;  first defendant’s application for summary judgment granted.

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF A DECISIVE CHARACTER – Plaintiff plumber suffered back injury at work – knowledge of facts showing cause of action worthwhile in terms of quantum – time when actual knowledge acquired – whether such facts within plaintiff’s means of knowledge

Pizer v Ansett Australia Ltd [1998] QCA No 6807 of 1998;  29 September 1998, Foll
Taggart v WCBQ [1983] 2 Qd R 19, Foll
Watters v Queensland Rail [2000] QCA No 51 of 2000;  3 March 2000, Cons

Limitation of Actions Act 1974 (Qld) s 30(2)

COUNSEL:

DJ Kelly for the plaintiff
C Wilson for the first Defendant

SOLICITORS:

Ehrich Monahan & Tisdall for the plaintiff
Hopgood Ganim Lawyers for the first defendant

1. By a proceeding commenced on 27 April 2000 the plaintiff claims damages for personal injuries sustained on or about 26 May 1995.  There are two applications before me -

1.          by the first defendant for summary judgment;  and

2.          by the plaintiff for an extension of the limitation period.

The second defendant is in liquidation.  Although the application filed by the plaintiff sought also leave nunc pro tunc to commence the proceeding against the second defendant, that was not pursued before me.  It is convenient to deal with the plaintiff’s application first.

1. The plaintiff claims that it was not until 27 July 1999, when he was told by an orthopaedic surgeon Dr Downes that his injury was permanent and that he would be unable to continue his employment as a plumber because of it, that material facts of a decisive character were within this knowledge or means of knowledge.  He seeks an extension of the limitation period to 27 April 2000 (the date the proceeding was commenced).

1. The plaintiff was born on 16 December 1976.  He was working as an apprentice plumber and drainer, employed by the first defendant or alternatively the second defendant.  On 26 May 1995 he was required to carry lead flashing from ground level to the roof of a building.  This involved carrying it up a ladder.  He had to lift a roll of lead flashing to his shoulder and transport it up the ladder balanced on his shoulder.  It weighed approximately 50 kilograms.  In doing this, he sustained an injury to his spine.  He continued working for a short time, but went off work later that day.

1. On 30 May 1995 the plaintiff consulted a general practitioner at the Hyperdome Medical Centre at Loganholme.  He made a worker's compensation claim and underwent a physiotherapy rehabilitation programme arranged by the Workers Compensation Board of Queensland.  After some weeks, he resumed to work initially on light duties and for a reduced number of hours.  He resumed full duties on 26 August 1995 (three months after the incident).

1. At the request of the Workers Compensation Board, the plaintiff was examined by Dr James Downes, orthopaedic surgeon, on 29 August 1995.  Dr Downes provided a written report to the Board in which he said –

“1.          I believe this young man is genuine.

2.I think he has had an acute back dysfunction.  I do not know the diagnosis because the condition has now essentially settled to the extent the lad is now at work.

3.Prognostically, it is not a good outlook because backache usually starts in adolescence or early adulthood in most people and such people are usually prone to suffer from backache independent of the type of job they do.

4.At present time, I believe he is suffering from a condition of the back which would have to be accepted as being brought on by work if I am to accept the history he gave me.

5.At present time, the condition is stable and stationary and he has recovered and I have no objections to him staying at work even if he is restricted to light duties only for another six weeks.

I have no rehabilitation to offer him at present but should he have continuing troubles with his back further investigations may become mandatory.  At present, there is no permanent partial disability arising out of his accident.”

1. It was not suggested that the plaintiff received a copy of that report at any time before he engaged solicitors (which was sometime after July 1999).  He has sworn that Dr Downes –

“.....  told me that it looked like my problem had healed and I should be fine.  He told me that the pain I was experiencing should fade away as time went on.”

The plaintiff's evidence in this regard was not challenged, and I accept it for present purposes.

1. According to the plaintiff –

“8)From 1995 onwards I had niggling pain in my back which would occasionally flare up to a level that I felt was significant but I continued to go to work and didn't take days off.  At times the pain became more regular and stayed for longer periods of time, each time it flared up.  I continued to attend at the Hyperdome Medical Centre for the pain.

9)Around Christmas 1996 one of the doctors at the Hyperdome Medical Centre told me I could have an operation but there was no guarantee that it would fix the problem.

10)In about May 1997 I was experienced [sic] excruciating back pain which radiated into my buttocks and all the way down my legs into my feet.  Some days it would be in both legs and on other days only one.  The pain was so bad that when it was at its worst I could no longer walk, sit, stand or lay [sic] down let alone go to work.  At that time I was working for Steve Wilson, a plumber.  On about 13 May 1997 that pain was so bad I had to have Steve drive me home.”

1. The plaintiff went off work on 22 May 1997 and lodged a claim for worker's compensation on 29 May 1997.  He clearly considered his problem to be related to the injury he had sustained in 1995, and apparently his general practitioner told him that he thought so, too.  X-rays revealed an annular disc bulge at L4/5, but it was common ground that that was something different from the injury sustained in 1995.  The precise time he had off work is not clear, but it seems to have been a couple of months.  His apprenticeship was cancelled on 20 June 1997 (although it was subsequently resumed with another employer and completed in March 1999).  He attended the Hyperdome Medical Centre and another physiotherapy course.

1. On 7 February 1998 the plaintiff consulted another general practitioner, Dr Islam at the Oxenford Medical Centre, complaining of lower back pain related to work incidents in 1995 and 1997.  According to Dr Islam, clinical examination revealed partial disc prolapse (L5/S1) associated with sciatica symptoms (left).  He referred to a CT performed on 14 May 1997 which revealed central disc bulge at L5/S1 level.

1. In May 1999 the plaintiff stopped work and rested because of back pain, but his back did not feel any better.  By June he was finding it really hard to go to work but he kept going because he knew his employer’s work would run out in the short term.  He consulted Dr Islam again on 22 June 1999 about recurrent back pain.  On 28 June he made another application for worker's compensation, and on 27 July 1999 he was again examined by Dr Downes at the request of WorkCover.  According to the plaintiff –

“17)....... At that stage Dr Downes told me that I had a significant problem and it would be best if I found a new career as it was something that I would have to live [sic] and he did not know of any way to fix it.  This was the first time that any medical practitioner had told me that I had a problem which was likely to be permanent and one which did not respond to treatment such as physiotherapy….

20)…… Before I saw Dr Downes in July 1999 1 thought that my back pain was just simply part of being a plumber.  Every plumber I knew struggled from time to time with back pain but they would get over it and would be alright and they would be able to work normally.  If anyone had ever said to me that I was going to have a permanent problem and that I should have got out of the job being a plumber before Dr Downes did, I would have.  I would not have persevered with finishing my trade, I would have gone out and tried something else.

21)As a result of what Dr Downes had told me, I went to see Mr Peter Tisdall of Ehrich Monahan & Tisdall about my matter........”

1. Dr Downes reported to WorkCover that while he did not have a diagnosis, he accepted that the plaintiff had a mechanical backache related specifically and only to the episode in 1995, and that his prognosis was poor.  He went on –

“3.…..I do recognise that between 1995-1997 there were periods and days when he had no pain and even after the acute attack had settled in 1997, he had good days and bad but whatever was causing the pain. 1995 appears to still be causing it today.

4.It follows that I attribute that patient's present symptoms to whatever diagnosis was arising from the injury of 1995 and no other.”

1. The plaintiff's counsel submitted that the fact that he would be unable to continue in employment as a plumber was a material fact, and that it was of a decisive character because it would be productive of financial loss. A newly discovered fact going to an enlargement of the prospective damages can be a material fact of a decisive character within s 31(2)(a) of the Limitation of Actions Act if it adds substantially to the quantum of damages likely to be recovered, assuming that without it the amount otherwise would be too small to bother about pursuing.  Taggart v WCBQ [1983] 2 Qd R 19. In Pizer v Ansett Australia Ltd [1998] QCA No 6807 of 1998; 29 September 1998 Thomas JA said at para 20:

“...... In appeals of the present kind, when the material fact concerns the nature and extent of personal injury, questions of degree are necessarily involved, At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it.  At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension, and an appeal court could likewise readily correct an erroneous decision.  Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff s knowledge and as to whether the reasonable person contemplated by s 30(b), endowed with such knowledge and having taken appropriate advice would have brought proceedings.  Appeals involving extensions of periods of limitation commonly raise these particular issues which involve factual assessments.  Although the eventual decision is discretionary the determination of these issues is not.  They involve findings of fact and a determination whether those facts satisfy the requirements of the statute.  It is worth mentioning however that such findings and determinations are made in an area where different minds might reasonably reach different conclusions.”

See also Watters v Queensland Rail [2000] QCA No 51 of 2000; 3 March 2000 at paras 1 per McPherson JA and 11 and 23 per Thomas JA.

1. The plaintiff’s application cannot succeed if facts showing that he had a cause of action which was worthwhile in terms of quantum were known to him or within his means of knowledge more than a year before the proceeding was commenced.  See s 31(2).  Thus it is necessary to focus on the extent of his knowledge or means of knowledge before 27 April 1999.

1. In my view he knew enough to base a worthwhile cause of action at least by late July 1997.  After the original incident he had not resumed full duties for three months, having physiotherapy in the meantime.  In about December 1996 he had been told that he could undergo surgery, but that there was no guarantee of success.  In May 1997 he had experienced an acute episode of back pain which he and his doctor attributed to the incident in 1995.  His apprenticeship had been cancelled in June 1997. By late July 1997 he had had a couple of months off work as a result of the acute episode two months earlier.

1. Even if he did not have sufficient actual knowledge, any missing information was within his means of knowledge.  In considering this issue, I must have regard to what could be expected of a reasonable person in his position.  Although Dr Downes had told him in 1995 that the pain would fade away with time, that had not happened.  He had had ongoing niggling pain since 1995, and had maintained fairly regular contact with general practitioners and physiotherapists.  He had been told in about December 1996 that surgery was an option, although success could not be guaranteed.  I am conscious of his youth and his impression that all plumbers suffered back pain from time to time.  Nevertheless, given the intensity of the flareup in 1997, I consider that a reasonable person in his position would, at that time, have inquired as to the likely future course of his condition.  Further, such a reasonable person would have sought legal advice and been advised to obtain a specialist report with a view to commencing a proceeding before the expiration of the limitation period in May 1998.

1. I dismiss the plaintiff’s application, and I uphold the first defendant's application.