Leach v Workers' Compensation Board of Queensland

[1995] QCA 229

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 235 of 1994.

Brisbane

[Leach v. The Workers' Compensation Board]

BETWEEN:

JOSEPH LEACH

(Applicant)

AND:

THE WORKERS' COMPENSATION

BOARD OF QUEENSLAND

(Respondent)

__________________________________________________________________

___

Fitzgerald P.
McPherson J.A.
Pincus J.A.
__________________________________________________________________

___

Judgment delivered 09/06/1995

Joint reasons for judgment of Pincus J.A. and McPherson J.A.; separate concurring
reasons of Fitzgerald P.
__________________________________________________________________
___

THE APPLICATION FOR LEAVE TO APPEAL WILL BE GRANTED, THE APPEAL ALLOWED, AND THE ORDERS MADE BY THE LEARNED PRIMARY JUDGE SET ASIDE. IN LIEU IT IS ORDERED THAT THE PERIOD OF LIMITATION FOR THE ACTION INSTITUTED IN THE DISTRICT COURT OF QUEENSLAND BY THE APPLICANT ON 25 MAY 1994 BE EXTENDED TO 31 AUGUST 1994 PURSUANT TO S. 31 OF THE LIMITATION OF ACTIONS ACT 1974, AND THAT THE APPLICANT PAY THE RESPONDENT'S COSTS OF AND INCIDENTAL TO THE APPLICATION FOR EXTENSION, TO BE TAXED. THE RESPONDENT IS ORDERED TO PAY THE APPLICANT'S COSTS OF THE PROCEEDINGS IN THIS COURT, TO BE TAXED.

__________________________________________________________________
____

CATCHWORDS: LIMITATION OF ACTIONS ACT 1974 - application for extension of time - personal injuries - whether extent of personal injury a material fact of a decisive character - time that extent of injury came within means of knowledge - whether reasonable for applicant to take the view, prior to becoming aware of full extent of injury, that he was being sufficiently compensated and the seriousness of the injury did not justify litigation - no suggestion that delay prejudicial to respondent.

Ss. 30, 31 Limitation of Actions Act 1974

Counsel:	Mr G O'Grady for the appellant. Mr K Wilson for the respondent.
Solicitors:	Czaus Blank for the appellant. O'Shea Corser & Wadley for the respondent.

Hearing date:7 February 1995.

IN THE COURT OF APPEAL	[1995] QCA 229
SUPREME COURT OF QUEENSLAND	Appeal No. 235 of 1994
Brisbane
Before	Fitzgerald P. McPherson J.A. Pincus J.A.

[Leach v. The Workers' Compensation Board]

BETWEEN:

JOSEPH LEACH (Applicant)

AND:

THE WORKERS' COMPENSATION

BOARD OF QUEENSLAND (Respondent)

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 09/06/1995

The circumstances giving rise to this matter are set out in the joint reasons for judgment of Pincus and McPherson JJ.A.

This appeal, which can only be brought by leave, is against the exercise of a discretion, and the applicant and/or his solicitor might well have contributed to the delay which has occurred and the somewhat confused circumstances. Nonetheless, the order below effectively deprives the applicant of a substantial claim, there is no indication of any disadvantage to the respondent from the delay, and, most importantly in my view, the primary judge's reasons leave the basis for his decision obscure; thus, for example, on one version all material facts relating to the applicant's right of action were known by him prior to the expiration of the period of limitation and, on another, he did not know until after that time that he had sustained "a permanent disability of ... a nature and degree warranting legal proceedings".

It is on the footing that the latter finding was correct and that the action was commenced within a year from the date when the applicant acquired that knowledge that I agree that the appeal should be allowed and join in the orders proposed by Pincus and McPherson JJ.A.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 235 of 1994.

Brisbane

Before Fitzgerald P.
McPherson J.A.
Pincus J.A.

[Leach v. The Workers' Compensation Board]

BETWEEN:

JOSEPH LEACH

(Applicant)

AND:

THE WORKERS' COMPENSATION

BOARD OF QUEENSLAND

(Respondent)

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND McPHERSON J.A.

Judgment delivered 09/06/1995

This is an application for leave to appeal from a District Court order refusing an

application made under s. 31(2) of the Limitation of Actions Act 1974. The applicant

has sued in that court and the plaint complains of two injuries the applicant suffered to

his left wrist, one about 5 December 1990 and the other about 1 June 1991. The action

commenced on 25 May 1994, so that the action is in time so far as it relates to the

second injury, but not as to the first.

The applicant relied before the primary judge, according to the recollection of

counsel on both sides, on the allegation that there was a "material fact of a decisive

character relating to the right of action" which was not within his means of knowledge

until after 5 December 1992 and that material fact was the extent of the personal injury
consequent upon the incident which occurred on 5 December 1990.

The date 5 December 1992 was that on which there commenced "the year last

preceding the expiration of the period of limitation for the action" within the meaning of

s.31(2)(a) of the Act. Apart from satisfying the requirements of that provision the

applicant had to show that there was evidence to establish his right of action, under s.

31(2)(b), but there is no dispute about that second aspect of the matter. If satisfied of

the existence of the two conditions just mentioned, then the court had a discretion to

extend the period of limitation for a year after the date upon which the material fact

became one within the applicant's means of knowledge; on the applicant's case that

date was 7 February 1994. The court therefore, if the two conditions were satisfied,

had a discretion to extend the limitation period sufficiently to bring the action which has

been mentioned within time.

When the matter came before this Court, it was suggested and the parties

agreed that there should be prepared and filed submissions additional to those which

had been advanced with respect to the question of leave, so that the extra submissions

could be used to determine the fate of the appeal, if leave were granted.

This course was taken because it was thought that to dispose of the appeal it

would not be necessary to consider any matters very different from those which would

be looked at in deciding whether to grant leave.

Nevertheless, it is convenient to consider the question of leave first, separately.

The primary judge described the case as being one "where the plaintiff knew at all times that he had sustained an injury to his left wrist on or about December 5, 1990", but

his Honour said "it is also a case in which the full extent of that injury came to light with

the passage of time". This implies that his Honour had in mind the point which has

been mentioned above as that which was put forward as the material fact relied on - the

full extent of the injury. The judge then set out some aspects of the evidence which may

be summarised briefly. His Honour noted that the applicant's orthopaedic surgeon, a Dr

Stabler, did an operation in August 1992 which involved arthrodising one of the joints of

the left wrist of the applicant. The judge remarked:

"The plaintiff's prognosis was described as good but Dr Stabler considered that he would certainly have stiffness of the left wrist and a small permanent disability, the extent of which could be assessed later".

After referring to a report of another surgeon, Dr Gilpin, the judge said that he

accepted the applicant's evidence that "he cannot recall and does not believe" that Dr

Gilpin discussed with him the question of a formal arthrodesis of the wrist; that was the

ultimate fate of the applicant's left wrist.

Then the judge recorded that by 16 December, 1992 when the applicant was

discharged from attendance by Dr Stabler there was no pain in the left wrist and

function was good, but there were some minor problems relating to the wrist. The judge

mentioned that the applicant decided not to seek legal advice with a view to suing as he

thought it would not be worthwhile; he expected the disability would be minor and his

expenses, together with compensation, had been paid to him from the Workers'

Compensation fund. The judge referred to certain signs of worsening in the condition of

the wrist in July 1993 which caused the applicant to contact Dr Stabler again; injections

were given. The applicant said that at the time of the third injection in September 1993, for the first time he was told that the only way to be sure to be rid of the pain was to have

the left wrist "locked", that being a reference to the "formal arthrodesis" mentioned

above. The judge also accepted that it was not until 7 February, 1994 that the applicant

was told that he was going to suffer a serious permanent disability. His Honour went on:

"By that the plaintiff clearly means 'a permanent disability of such a nature
and degree warranting legal proceedings'".

The judge mentioned that the applicant was concerned about the cost of litigation and

whether or not it would be worthwhile to pursue any claim; on 8 November, 1993 he told

his solicitor he did not wish to pursue the matter. He changed his mind shortly after that,

on 13 December 1993, and gave further instructions to his solicitor.

There follows a passage in the reasons, which need not be set out in full but is

sufficiently summarised by saying that the judge held that the applicant had discovered

the full extent of his injury by mid-September 1993 and that nothing which happened

after that affected the extent of that knowledge. When the matter was argued before us,

counsel for the applicant, Mr O'Grady, suggested that the reasons given by the judge

imply that the condition mentioned in s. 31(2)(a) had been shown to exist: that there

was a material fact of the requisite kind which was not within the means of knowledge of

the applicant until September 1993, being a date after 5 December 1992, the

significance of the latter date being explained above. But that is not altogether clear;

what immediately follows in the judgment is a reference to two passages in Taggart v.

The Workers' Compensation Board of Queensland [1983] 2 Qd.R. 19, in the former of

which there appears a statement of circumstances in which it cannot be held that a

newly discovered fact is a material fact of a decisive character within the meaning of the

relevant provision.

There follows discussion (in para. 14 of the reasons) to the effect that by

September 1993 or November 1993 the applicant had been given "appropriate advice"

within the meaning of s. 30(c) of the Act. That is consistent with a view that on or about

those dates a material fact of a decisive character, namely the extent of the injury, came

to be within the applicant's knowledge. But it is, unfortunately, also consistent with the

view that the judge intended no more than to say that, without deciding whether the

condition in s. 31(2)(a) was satisfied, the applicant had no reasonable excuse not to

sue towards the end of 1993. The last sentence of para. 14 of the reasons, which need

not be set out, seems to imply that the condition being spoken of was not satisfied.

An element of confusion is added by the terms of paragraph 15 of the reasons,

which conclude with a statement that the discretion should be exercised against the

applicant. It is desirable to quote part of that paragraph:

"Firstly, I regard the date of the first injury as a fact known to the plaintiff prior to the expiry of the limitation period and the circumstance that he gave Mr Blank an incorrect date as beside the point. Alternatively, if his prior knowledge had lapsed, the circumstance was that the date was a fact always capable of being ascertained by him...".

Mr Blank was the applicant's solicitor at relevant times.

It has to be said that the passage just quoted seems to be written on the

assumption that the question is not that which, counsel agreed, fell for decision under s.

31(2)(a), but another question altogether - whether the applicant could succeed under

that provision on the basis that the date of the relevant accident did not come within his

means of knowledge until after 5 December 1992. Paragraph 15 reads as if,

momentarily, the judge has overlooked that the material fact relied on had to do with the extent of the injury. That is a subject mentioned in s. 30(a)(iv), whereas the date of the

injury is not listed there and one would hardly expect it to be, since it is improbable that

an applicant would not become aware of the date of his injury until years after it

occurred.

The difficulty with the judge's reasons are, then, two. His Honour does not make

it clear whether or not the condition in dispute was satisfied and he seems, when

explaining in the end why the applicant lost, to have based that explanation on a

misapprehension as to what was the material fact relied on.

It is not in every case that reasons which do not adequately explain the basis

upon which an application of this kind has been disposed of provide a ground for

granting leave to appeal. It may be, for example, that it is clear enough that the decision

is correct. But that is not this case; regrettably, it has to be said that despite evidently

taking some trouble over the reasons, his Honour has not made it clear on what basis

the case was dealt with; nor can one avoid a suspicion that the reasons given in the

critical last paragraph were based on a misapprehension as to the nature of the issue

raised. It was argued that in these circumstances, the application being plainly a

properly arguable one, it has not yet been properly dealt with.

It is important in the interests of justice that litigants' claims be disposed of in a

comprehensible way. There must be taken into account also that, although interlocutory,

the application is one whose refusal absolutely prevents the pursuit of what is, on the

evidence, likely to be a substantial claim. The apparent injustice here is of such a

character as to justify the grant of leave: cf. Haslam v. Queensland Alumina Limited

(unreported, Court of Appeal, 15 December 1993) per McPherson JA and Mackenzie J

at p. 17. There remains to be considered whether the appeal itself should be allowed.

There appears, with respect, to be little room for argument about the applicant

having fulfilled the condition with respect to the material fact of a decisive character: s.

31(2)(a). If the primary judge had rejected the applicant's contentions on that subject or

there were any reasons shown for us to do so, a different conclusion might be

warranted; but the primary judge seems to have accepted the assertion by the

applicant to the effect that it was not until September 1993 that he found out that, in

effect, it would be likely that his wrist would have to be "locked", and not until even later

that he was told there was a serious permanent disability. It is true that before

September 1993 there were, on the evidence, grounds of action, but on the evidence it

was by no means unreasonable on the part of the applicant to incline to the view, before

September 1993, that he was being sufficiently compensated and that the seriousness

of his injury was not such as to require that he bring suit. It must be kept in mind that

s. 30(b) implies that material facts are not of a decisive character unless, among other

things, the person in question "ought in the person's own interests and taking the

person's circumstances into account to bring an action..." (emphasis added). It is one

thing to say that some people, perhaps less apprehensive about being involved in

litigation than the applicant is, might have sued on what was known before September

1993, and quite another to say that material facts of a decisive character were within knowledge before September 1993, on the basis that the applicant positively ought to

have sued before then. In putting the matter in this way, the introductory part of s. 30(b)

with its reference to "a reasonable person knowing those facts and having taken the

appropriate advice on those facts" has not been overlooked; the conclusion that a

hypothetical reasonable person must come to is that the applicant ought to have sued.

It remains to be considered whether the discretion to extend time should be

exercised in favour of the applicant. Of the matters relevant to the exercise of discretion

referred to by the primary judge, it is necessary to make particular mention of two. One

is that, as appears from para. 12 of the reasons, the judge perhaps held it against the

applicant that after he received Dr Stabler's advice in September 1993 he did not

institute proceedings for some months - not until May 1994. During that time, as his

Honour recognised, more definite knowledge was acquired: the "locking" operation

was definitely advised and was in fact carried out. There is no suggestion that this

further deliberation caused any prejudice to the respondent. A second point made by

the judge is that there was a period, from 8 November 1993 until 13 December 1993,

during which nothing was being done because the applicant had withdrawn his

instructions. But as Mr O'Grady pointed out, he reversed that decision soon enough,

and again there is no suggestion, nor any reason to think, that this small delay

disadvantaged the respondent.

It should be added, perhaps repetitively, that other matters the judge appears to

have taken into account in exercising his discretion had to do with the applicant's

knowledge of the date of the first injury, a subject dealt with above.

In summary, the conditions mentioned in s. 31(2) were satisfied and the learned

primary judge should have held them to have been satisfied. No sufficient reason

appears to deny the applicant the extension of time which s. 31(2) makes available and

the just course is to make an order under that section in his favour.

The application for leave to appeal will be granted, the appeal allowed, and the

orders made by the learned primary judge set aside. In lieu it will be ordered that the

period of limitation for the action instituted in the District Court of Queensland by the

applicant on 25 May 1994 be extended to 31 August 1994 pursuant to s. 31 of the

Limitation of Actions Act 1974, and that the applicant pay the respondent's costs of and

incidental to the application for extension, to be taxed. The respondent must pay the

applicant's costs in this Court, to be taxed.