Krueger v Dart Trading Company Pty Ltd
[2003] QSC 311
•13 August 2003
SUPREME COURT OF QUEENSLAND
CITATION:
Krueger v Dart Trading Company Pty Ltd [2003] QSC 311
PARTIES:
ANNETTE CARMEN KRUEGER
(Applicant)
v
DART TRADING COMPANY PTY LTD
(ACN 054 341 310)
(Respondent)FILE NO/S:
54 of 2002
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Cairns
DELIVERED ON:
13 August 2003
DELIVERED AT:
Cairns
HEARING DATE:
15 July 2003
JUDGE:
Jones J
ORDER:
1. That the period of limitation for the bringing of this action in respect of her claim for breach of duty between the period 28 March 1994 to 20 February 2001, be extended up to and including 29 October 2002.
2. That the costs of and incidental to this application, to be assessed on the standard basis, be costs in the cause.
CATCHWORDS:
LIMITATIONS 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 – where injury sustained in the course of the plaintiff’s employment – whether a material fact of a decisive character was within her means of knowledge not earlier than 12 months before she commenced her action.
Limitation of Actions Act 1974 (Qld), s 31
Moriarty v Sunbeam Corporation Ltd (1988) 2 QdR 325
COUNSEL:
Mr M Glen for the applicant
Mr G Houston for the respondentSOLICITORS:
O’Reilly & Stevens Lawyers for the applicant
On 29 October 2002 the applicant commenced an action to claim damages for breach of duty for a work related injury which she suffered over the course of her employment between March 1994 and February 2001. She seeks, by this application, an extension of time within which to bring these proceedings pursuant to s 31 of the Limitation of Actions Act 1974 (“the Act”). Her success in the application depends upon her identifying a material fact of a decisive character which was within her means of knowledge not earlier than 12 months prior to 29 October 2002.
It is not contested that the plaintiff did suffer a work related injury and that there is evidence available to establish the right of action for the purposes of s 31(2) of the Act.
Background facts
The plaintiff worked as a manager of the fruit and vegetable department of a large supermarket at Gordonvale in the State of Queensland. In her affidavits, and in her evidence before me, she described the physical nature of the work, which included moving a pallet jack containing boxed fruit and vegetables for distribution to various parts of the section within the supermarket. She referred to a variety of activities which suggested a great deal of heavy lifting daily throughout her shift. Before her employment with the present respondent, she worked in a similar capacity in a different supermarket. The plaintiff was born on 16 June 1959 and was, therefore, at the time of her relative employment aged between 34 years and 41 years.
In her evidence she referred to a specific incident that occurred on or about 5 January 1996 following which she manifested symptoms of severe pain in her lower back. She consulted a general practitioner who prescribed painkillers and cleared her to return to work the next day.[1] She did not make any claim for Workers’ Compensation in respect of this incident. Prior to this incident the applicant had not experienced such pain in her lower back in the course of this employment or of her earlier employment.
[1]Affidavit of Krueger sworn 1 April 2003 para 22
Between January 1996 and February 2001, when the applicant finally ceased work, she did not suffer any discreet injury and she continued to perform her duties without any time off. She did, however, experience constant pain in her lower back. She managed this pain by taking analgesics and anti-depressants. In late 2000 she developed right sided sciatica.
She first sought medical advice about these increasing symptoms on 20 February 2001 when she consulted Dr McCaldin. He arranged for her to take a CT scan and certified her unfitness for work. She claimed Workers’ Compensation payments and was referred by WorkCover to an orthopaedic surgeon Dr Thomas. The applicant’s purpose in seeking medical help was so that she could continue to work. She expected after treatment that she would be able to do this. Dr Thomas’ report supports her hope that she would be able to return to work. He said in his report:-
“At this stage she does appear to be totally incapacitated for work and obviously needs some form of active treatment measures. One hopes with conservative treatment measures that she would settle and within a period of six or so weeks be able to get back to some form of suitable duties programme.”[2]
[2]See ex “D” to affidavit of Tania Russo sworn 2 April 2003
In June 2001 the applicant was referred to a neuro-surgeon Dr Rossato who, after undertaking radiological investigation, decided on surgery which was performed on 14 August 2001. After surgery the applicant noted an improvement in her lower back condition for the next three months. She believed that she would return to work and was strongly motivated to this end.
She had been in receipt of workers’ compensation payments until December 2001 at which time these payments stopped. The applicant was still suffering pain and she became concerned about her future. She then sought legal advice with a view to having the workers’ compensation payments reinstated. On legal advice further medical investigations were undertaken ultimately leading to advice from Dr Curtis, orthopaedic surgeon, who expressed the view:-
“At the moment this lady is moderately disabled, largely from symptoms of instability and to a lesser extent symptoms of associated radiculopathy. She is not fit to resume any pre-injury work whatsoever at this point.
Without a stabilisation procedure, she is likely to continue in her present miserable state, such that the matters needs urgently addressing.”[3]
[3]See ex “Q” to the affidavit of Russo 2 April 2003, p 6
Prior to the receipt of this report, WorkCover had the benefit of reports from Dr Guasso, neurologist, dated 7 March 2002 which expressed the opinion that “it was unlikely [the applicant] will return to physically demanding work…”.[4]
[4]See ex “N” to the affidavit of Russo 2 April 2003, p 2
In support of her application, the applicant points to the fact that, prior to the cessation of workers’ compensation benefits on 14 December 2001, she did not have any worthwhile cause of action to pursue. To that point in time she had not lost income and the expenses of her treatment had all been met by WorkCover. Moreover her own view was that she would be able to return to her pre-injury employment. She contends in evidence that, prior to this time, the advice that she had received from the various medical experts, particularly from Dr Rossato, was that she would be able to return to work. There was certainly no medical evidence available at that time to indicate that she would suffer permanent impairment precluding her return to work.
On behalf of the respondent it is argued that by the time the applicant faced surgery in August 2001 she had already been off work for six months whilst receiving treatment for chronic back pain. The respondent points to the fact that she had suffered the pain for some years before ceasing work. By this time it was argued she ought to have, as the respondent submits a reasonable person would have, sought legal advice which would have resulted in a claim for damages being pursued. When this suggestion was put to her during cross-examination she said:-
“Mr. Houston: At that time did you think to consult a lawyer about making a claim for damages? – No.
Why is that? – The doctors were optimistic to say that I was going to go back to work after the surgery, so I didn’t find any reason to consult a lawyer.
But you said – I thought you said that you realised that you might not be able to return to the same type of work you had, and you wouldn’t be able to physical work – heavy physical work, so you knew at that time that your working capacity would be restricted, didn’t you? – I knew at that time my work capacity would be restricted, but not to the extent that I would not go back to my own job in some manner.”[5]
[5]Transcript 19/50 – 20/2
The applicant has shown herself to be something of a stoic by nature. The fact that she was able to continue working for a number of years with increasing pain demonstrates that. It also demonstrates that she was keen to pursue her work on which she was dependent. I accept that the applicant believed that she would return to her previous work in some capacity until that belief was dispelled by the mounting medical opinion to the contrary which came to her knowledge in the first part of 2002.
Prior to November 2001 there was no worthwhile basis for her to pursue a claim for damages. She was in receipt of weekly compensation payments and her treatment expenses had been met by WorkCover. The interruption in her employment, which she believed was temporary, would not have justified her undertaking the inconvenience and financial risk of pursuing a claim for damages that would have arisen from the circumstances as she believed them to be. The decisive fact was the realisation that she would not be employable for heavy physical work to which was accustomed which fact did not arise until 2002. She quickly thereafter sought appropriate legal advice. I find that a reasonable person in her position would have acted in precisely that manner.
These circumstances are completely in accord with the principles which have been identified in a number of cases to which I have been referred, particularly the remarks of Macrossan J in Moriarty v Sunbeam Corporation Ltd[6]:-
“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 C.L.R 234, 251 per Deane J.”
[6](1988) 2 QdR 325 at p 333
I am satisfied in this case that the applicant has identified a material fact of a decisive character within the 12 months prior to the commencement of the action. I am further satisfied that, prior to the concerns expressed about her future employment prospects in the first part of 2002, the plaintiff could not have appreciated that she had a worthwhile action to pursue and, further, that appropriate advice sought at that time would only have confirmed that fact. I would therefore allow the application.
Orders
1. That the period of limitation for the bringing of this action, in respect of her claim for breach of duty between the period 28 March 1994 to 20 February 2001, be extended up to and including 29 October 2002.
2. That the costs of and incidental to this application, to be assessed on the standard basis, be costs in the cause.
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