Lee v Star Aged Living Limited
[2023] QSC 49
•10 March 2023
SUPREME COURT OF QUEENSLAND
CITATION:
Lee v Star Aged Living Limited [2023] QSC 49
PARTIES:
NANCY FAY LEE (applicant)
v
STAR AGED LIVING LIMITED (respondent)
FILE NO/S:
SC No 10446 of 2020
DIVISON:
Trial Division
PROCEEDING:
Application for Extension of Time
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
10 March 2023
DELIVERED AT:
Brisbane
HEARING DATE:
9 November 2021; 16 November 2021
JUDGE:
Mellifont J
ORDER:
1. The application to extend time is granted.
2. I will hear the parties as to costs.
CATCHWORDS:
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the applicant lodged a Notice of Claim pursuant to the Workers’ Compensation and Rehabilitation Act 2003 after the expiration of the limitation period – where the applicant was employed as an Assistant in Nursing at the respondent’s residential care facility – where the applicant alleges she sustained a back injury at work – where the applicant seeks an extension of the limitation period to a date within one year of the date at least one material fact of a decisive character relating to the injury allegedly came to her knowledge – whether there was a material fact relating to the cause of action not within means of the respondent’s knowledge – whether there was evidence to establish the right of action apart from a defence founded on an expiration of the period of limitation – where the respondent submits that the application should not be granted because the delay has caused significant prejudice – where the respondent submits that evidence has been lost or destroyed – whether prejudice to the respondent would render a fair trial unlikely
Limitation of Actions Act 1974 (Qld), s 11, s 30, s 31
Workers’ Compensation Rehabilitation Act 2003 (Qld), s 236, s 202, Sch 5Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied
Castillon v P & O Ports Limited (No 2) [2008] 2 Qd R 219, cited
Castlemaine Perkins v McPhee [1979] Qd R 469, cited
Dick v University of Queensland [2000] 2 Qd R 476, cited
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, cited
Gail Shaw v Broadbent & Anor [2010] QSC 425, cited
Gillespie v Swift Australia P/L [2009] QCA 316, cited
Healy v Ferndale Pty Ltd [1993] QCA 210, applied
Hertess v Adams [2011] QCA 73, cited
Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (In Liquidation) & Anor [2009] QCA 352, cited
Kambarbakis v G and L Scaffold Contracting P/L [2008] QCA 262, cited
Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, cited
NF v State of Queensland [2005] QCA 110, cited
Pizer v Ansett Australia Ltd [1998] QCA 298, cited
State of Queensland v Stephenson (2006) 226 CLR 197, cited
Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, cited
Watters v Queensland [2001] 1 Qd R 448, cited
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, applied
Wrightson v State of Queensland [2004] QSC 218, cited
COUNSEL:
C C Heyworth-Smith QC and R Hii for the applicant
B F Charrington for the respondent
SOLICITORS:
Kare Lawyers for the applicant
Cooper Grace Ward for the respondent
TABLE OF CONTENTS
Introduction
Grounds on which Ms Lee seeks extension
Grounds on which SAL resists the application
The Nature of the Claim
The Defence of the Claim
Short form chronology
Partial summary of facts and evidence
ISSUE ONE: IS THERE A MATERIAL FACT RELATING TO CAUSE OF ACTION NOT WITHIN MEANS OF KNOWLEDGE UNTIL AFTER 19 DECEMBER 2017 & IF SO, WAS IT OF A DECISIVE CHARACTER
General principles
When will a fact be material?
When will it be of a decisive character?
Alleged material fact one: Ms Lee knowing that it was unlikely that she would be able to work in any capacity
Introduction
Materiality
Was it within her means of knowledge at a time before the start of the third year of the limitation period?
Was the Notice of Claim filed within 12 months of the acquisition of knowledge?
Decisive character
Is the new knowledge actually a legal conclusion to be gleaned from facts, rather than knowledge as to facts.
Alleged material fact two: Becoming aware that the pain post 27 March 2019 was sequelae of her 2019 work injury not medical negligence
Introduction
Materiality
Was it within her means of knowledge at a time before the start of the third year of the limitation period?
Was the Notice of Claim filed within 12 months of the acquisition of knowledge?
Is the new knowledge actually a legal conclusion to be gleaned from facts, rather than knowledge as to facts
Alleged material fact three: becoming aware that her claim for damages was commercial by reason of damages being significantly due to 2015 work injury, rather than pre-existing work injury
Introduction
Materiality
Was it within her means of knowledge at a time before the start of the third year of the limitation period?
Was the Notice of Claim filed within 12 months of the acquisition of knowledge?
Decisive character
Is the new knowledge actually a legal conclusion to be gleaned from facts, rather than knowledge as to facts
Ms Avery’s evidence on “decisive character”
ISSUE TWO: IS THERE EVIDENCE TO ESTABLISH THE RIGHT OF ACTION APART FROM A DEFENCE FOUNDED ON AN EXPIRATION OF THE PERIOD OF LIMITATION?
ISSUE THREE: EXERCISE OF DISCRETION
Issue of prejudice to SAL
General principles in respect of the discretion
The exercise of the discretion in the context of the rationales for the existence of limitation periods
Prejudice as a factor in the exercise of the discretion
When is the question of prejudice to be examined?
Gravamen of the submissions of the parties on the exercise of discretion
Who’s who?
The evidence in respect of prejudice
Hearsay reliance by SAL of communications by and with Mr Qualtrough
Resident care plans/special manual handling requirements, and availability of slide sheets
Staff training records
Client specific monitoring worksheets
Safety audit reports and schedules
Workplace Health and Safety Officer Hazard and Safety reports
Care manager notebooks
Co-worker details and supervisor/manager details – other witnesses
Bed too low
Conclusion
Order
REASONS FOR DECISION
Introduction
This is an application for extension of a limitation period in a personal injuries matter.
Ms Lee was employed by Star Aged Living Limited (SAL) as an Assistant in Nursing. Ms Lee alleges that on 19 December 2015 she sustained a back injury at work as a result of workplace lifting duties. Ms Lee intends to claim damages for personal injury from SAL.
If the application is granted, WorkCover, as the statutory insurer, will defend the claim on behalf of SAL.
Ms Lee was in receipt of Workers’ Compensation from 1 April 2016 to 1 September 2020, at which time she was issued a Notice of Assessment and the compensation ceased.
Section 11(1) of the Limitation of Actions Act 1974 (Qld) (LAA) provides that an action for damages for negligence, or breach of duty, in which damages claimed by the plaintiff consist of, or include, damages in respect of personal injury, shall not be brought after the expiry of three years from the date on which the cause of action arose.
Three years from the date on which cause of action arose is 19 December 2018. So, pursuant to s 11(1), and absent an extension, Ms Lee’s limitation period expired on 19 December 2018.
By application filed 2 September 2021, Ms Lee seeks an extension of the limitation period pursuant to s 31 of the LAA.
Section 31 provides:
31 Ordinary actions
(1)This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
(2)Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—
(a)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 period of limitation for the action; and
(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
(3)This section applies to an action whether or not the period of limitation for the action has expired—
(a) before the commencement of this Act; or
(b)before an application is made under this section in respect of the right of action.
In this matter, Ms Lee lodged a Notice of Claim on 6 January 2020, a little over a year after the expiration of the limitation period. This is the date to which an extension of time is sought. This is because Ms Lee lodged the Notice of Claim on 6 January 2020. Time stops running when Ms Lee lodges a Notice of Claim and the insurer (here, WorkCover), waives compliance with s 275 of the Workers’ Compensation Rehabilitation Act 2003 (Qld). Compliance was waived on 6 January 2020.
Grounds on which Ms Lee seeks extension
Ms Lee submits that an extension should be granted because:
(a)She did not became aware of at least one material fact of a decisive character until after 19 December 2017 (that is, after the commencement of the 3 year limitation period);
(b)That fact or facts was/were not within her means of knowledge until after 6 January 2019 (that is, no longer than one year before the date to which an extension is sought) 19 December 2017;
(c)There is evidence to establish the right of action;
(d)The extension sought is within one year of the date the material fact came to Ms Lee’s knowledge; and
(e)The Court should exercise its discretion to extend time there being no evidence of actual prejudice of a significant kind to the respondent that would preclude the granting of the extension.[1]
[1]AO [7].
The three facts relied upon to ground the application are:
(a)Ms Lee found out it would be unlikely she would continue to work in any capacity;[2]
(b)Ms Lee’s solicitors (engaged on 24 December 2019) obtained a report by Dr McEntee, following Ms Lee’s back surgery (lumbar fusion) on 27 March 2019 (intended to treat the original back injury of 19 December 2015), which stated Ms Lee had developed a sacral endplate fracture (a known complication of the lumbar fusion). Ms Lee, therefore, found out that the pain that amplified one month after her surgery was not a consequence of medical negligence but of the original back injury;[3] and
(c)Ms Lee obtained a significant volume of material during the course of the WorkCover claim that showed a significant component of her impairment was caused by the 19 December 2015 event, as opposed to a pre-existing degeneration.[4]
[2]AO [4], [6].
[3]AO [4].
[4]AO [5], [6].
Ms Lee submits these material facts largely speak to the commerciality of the action,[5] that is, whether bringing a common law claim would be worthwhile.
[5]AO [6].
Grounds on which SAL resists the application
SAL resists the application on the following grounds:
(a)The material matters relied on by Ms Lee are not ‘material facts’ but rather ‘legal conclusions’ that can be drawn from material facts, which were already within Ms Lee’s possession within the normal limitation period;
(b)SAL contends that, had Ms Lee undertaken reasonable enquiries within the limitation period, Ms Lee would have been possessed with the critical mass of information that is required to provide her with knowledge that she had a worthwhile right of action; and
(c)If the extension is granted, SAL has demonstrable prejudice associated with the loss or destruction of critical documents, and the diminution of recollection of relevant witnesses, to defend a claim for damages by Ms Lee.[6]
[6]RO [3].
The Nature of the Claim
By statement of claim, Ms Lee alleges that:
(a)She was working within her usual duties as an Assistant in Nursing;
(b)She was working with colleagues to care for residents at the workplace;
(c)Her colleagues advised her that there were no slide sheets available to assist in moving residents;
(d)She did not know where to obtain slide sheets in the workplace;
(e)She moved residents without a slide sheet; and
(f)While moving residents, she began to experience back pain.
As a consequence of the incident she suffered:
(a)Discal protrusion at L4/5 causing cauda equina syndrome;
(b)Incisional hernia following corrective surgery; and
(c)Adjustment disorder with mixed anxiety and depression.
Ms Lee alleges that the injuries were caused by the negligence and/or breach of contract of SAC, particularised as follows:
(a)Failing to provide Ms Lee with reasonable plant and equipment, namely any slide sheets;
(b)Failing to ensure she used slide sheets to move residents;
(c)Failing to take reasonable care for the safety of Ms Lee;
(d)Failing to pay due care and attention for the safety of Ms Lee;
(e)Exposing Ms Lee to a risk of injury which it knew or ought to have known to have been in existence and which would have been avoided by the exercise of reasonable care;
(f)Failure to ensure that any, or any reasonable risk assessments of the tasks undertaken were conducted to identify any potential hazards to which the plaintiff was exposed; and
(g)Failing to comply with its obligations pursuant to the provisions of the work Health and Safety Act and associated regulations and codes/standards of practice.
Ms Lee alleges that SAL is vicariously liable for the negligence of its employees, servants and/or agents.
Ms Lee alleges that she:
(a)Has suffered and will continue to suffer pain and suffering and loss of amenities;
(b)Has been left with permanent injuries;
(c)Has required and will require future medical and hospital treatment;
(d)Has incurred special damages and will do so in the future;
(e)Has suffered and will in the future suffer a loss of income;
(f)Has suffered and will in the future suffer a loss of superannuation benefits;
(g)Has been restricted in her ability to undertake pre-incident recreational activities; and
(h)Has required and will in the future require the use of aids and equipment to manage her injuries.
SAL submit that, by reference to the affidavit of Ms Lee, the real complaints made against it are that:
(a)Slide sheets were not provided;
(b)The co-worker on the night of the incident was not properly trained; and
(c)That the bed was too short for Ms Lee’s height.[7]
[7]2-36.19.
The Defence of the Claim
The Defence of the claim states, inter alia, that Ms Lee had a duty to take precautions against the risk of foreseeable risks of injury.
In response to Ms Lee’s allegation of fact, allegations of negligence and breach of contract, and causation,[8] SAL does not admit the allegations, asserting they cannot be admitted, on the basis that:
(a)It no longer operates or trades, and has sold the subject business;
(b)Has no records relating to the allegations;
(c)Has not been able to locate any witnesses in relation to the allegations as at the date of the defence;[9]
(d)Is prejudiced from any defence given the time which has elapsed since the date of the alleged event; and
(e)Remains uncertain as to the truth or falsity of the allegations.
[8]Paras 6, 10 and 12 of the statement of claim.
[9]29 October 2020.
The Defence also asserts that Ms Lee is not totally incapacitated from employment and would likely have been incapacitated from employment as a nurse in any event by reason of her pre-existing degenerative disc disease.
Short form chronology
Ms Lee was injured at work on 19 December 2015. This is the date on which the limitation period commenced to run.
On 19 December 2017, the year last preceding the expiration of the period of limitation commenced.
On 19 December 2018, the limitation period expired.
On 6 January 2020, time stopped running on the lodgement of a Notice of Claim. As such, 6 January 2019 marks the date one year before time stopped running.
She had lumbar fusion surgery to treat that injury on 4 January 2016.
On 20 September 2020, Ms Lee was issued with a Notice of Assessment and compensation ceased.
On 2 September 2021, Ms Lee filed an application to extend the limitation period.
Partial summary of facts and evidence
Ms Lee was born on 22 July 1985. She completed High School at Windaroo Valley State High School in 2002 at the age of 17. She obtained a Certificate III in Aged Care from the Australian Professional Training Institute.
Prior to working in the Aged Care industry, she held a number of unskilled positions involved in manual handling and lifting.
She was employed by SAL as an Assistant in Nursing from approximately April 2014 until December 2015. Prior positions as an Assistant in Nursing were at three other places of employment: for approximately 15 months from 2007 to 2009; for approximately 17 months from 2009 to 2011; and for approximately 2 years and 7 months from 2011 to 2014.
Ms Lee describes the circumstances in which she alleges she sustained her back injury as follows.
Ms Lee was working a shift between 2.00pm and 10.00pm on 19 December 2015. It was her first shift back from maternity leave. She does not recall at what time she injured her back.
During the course of her shift she was required to move residents however there were apparently no slide sheets available for her to use and she was told by her partner that “we did not have any slide sheets”. Some of the residents were in beds that were too low for Ms Lee to comfortably access and her partner was considerably shorter than her. She recalls that she was working with a poorly trained colleague who did not assist her with moving a resident and who did not use slide sheets even when they were available.
She recalls that throughout the day she felt pain gradually increasing in her lumbar spine and buttocks. She completed her shift and then went home. The next morning she woke up feeling an increase in pain in her back and leg. She did not go to work and she spent the day stretching in order to relieve the pain. The pain got worse over the next few days so she contacted a general practitioner at the Beaudesert Family Practice for a home visit on 23 December 2015. The general practitioner prescribed her some pain medication and advised her to rest.
Despite resting the symptoms continued to get worse. She started to experience numbness down both legs. On 30 December 2015, she went to the Beaudesert Family Practice and was referred for a CT scan of her lumbar spine.
She deposes that after her injury on 19 December 2015, she expected that her pain would improve with time and rest as it had done in the past. She tried to manage her symptoms herself at home until the numbness progressed down her legs and groin area and worsened and the pain became unbearable. She was also concerned that she could not void her bladder. Having been advised to seek medical treatment if she could not pass urine, she went to the Logan Hospital.
After some delays with her CT scan, she was diagnosed with cauda equina syndrome due to L4-5 disc herniation.
She had her first surgery at the Princess Alexandra Hospital on 4 January 2016 where the surgeons performed a laminectomy and decompression of her L4-5 disc, central canal and existing nerve roots.
On 7 January 2016, she made a claim for WorkCover benefits.
She participated in physiotherapy and felt herself getting stronger. She was able to participate in a gym strengthening programme.
Despite her symptoms improving, her treating orthopaedic surgeon, Dr McEntee considered that she would benefit from further surgery. He first recommended fusions in June 2016 but WorkCover refused his request for funding so she did not go ahead with that surgery at that time. She does recall being provided with a copy of Associate Professor Richard Williams’ reports. She knows she did not read them fully because she remembered trying to start reading them and she felt they were beyond her understanding so did not read them any further.
Dr McEntee then resubmitted to WorkCover a request for further surgery approval again in October 2018 because she was continuing to suffer pain and she told Ms Lee that he was worried about future complications if she did not have the surgery.
Based on what WorkCover told her, she understood that Dr McEntee’s second request to WorkCover to fund the L4-5 and L5-S1 surgery was approved but that she would need to pay for the L3-4 disc replacement herself.
On 27 March 2019, Dr McEntee performed a lumbar hybrid procedure with anterior lumbar interbody fusions of L4-5 and L5-S1 and disc replacement at L3-4.
Ms Lee was provided a copy of a report of Dr McEntee dated 12 September 2019 by her solicitors. She can see from that report that as a result of the surgery, Dr McEntee reported that she had developed a sacral end plate fracture which Dr McEntee acknowledged was a known complication of lumbar fusion. She does not recall Dr McEntee explaining this to her at the time of the surgery.
Since the surgery on 27 March 2019, her pain improved somewhat but her mobility has remained the same from where it was prior to the March 2019 surgery. In April 2019, she began experiencing leaking from her surgical wound and swelling in her abdomen and pain. She did some of her own research and suspected it sounded like she had an incisional hernia from the surgery. In July 2019 her general practitioner confirmed her suspicions and diagnosed her as having an incisional hernia which had occurred as a result of the surgery.
It was a combination of her belief that the complications from her incisional hernia may have been a result of medical negligence and her understanding that she would need legal advice when her WorkCover claim ended which prompted her in late 2019 to seek legal advice about what her rights would be after her WorkCover claim had closed. As has been noted above, Ms Lee’s WorkCover statutory benefits continued up until 20 September 2020 at which time a Notice of Assessment was issued and compensation ceased.
Ms Lee deposed that she knows now that she cannot return to work as an Assistant in Nursing.
She acknowledges that she did not read most of the reports obtained by WorkCover as she did not understand them to be relevant for her to consider other than a report of Dr Dodd on 23 October 2017. She recalls reading that report because she understood it would determine her percentage impairment which would be relevant to WorkCover’s decision as to whether they would continue paying her weekly benefits.
She cannot recall which medical advice alerted her to being unable to return to work as an Assistant in Nursing.
She does remember that, though, when she realised she could not return to work, she reached out to a Facebook support group for people with narcolepsy. This was on 29 August 2017. This was to ask what they thought she could do by way of work given her physical disabilities and her narcolepsy. At that time Ms Lee thought she still might be able to work in another capacity. When she began discussing study options with WorkCover she started to realise that working in an alternative capacity would be beneficial. WorkCover was suggesting TAFE courses such as bookkeeping. She believed that she would not be able to do that kind of work because she would not be able to stay awake due to her narcolepsy. However her hope was that with the further surgery on 27 March 2019, her back pain and mobility would improve enough that she could work in a role which was sufficiently physical for her to stay awake without involving heavy manual lifting.
Ms Lee is inexperienced with court processes, litigation and the law generally.
An occupational therapy report in this case reflects that Ms Lee has limited reading and writing ability. Until this proceeding, Ms Lee has not had any involvement or experience with lawyers or court litigation before.
She recalls that in about early 2017 or 2018, approximately one to two years after the incident, her parents urged her to speak to a lawyer about medical negligence because they thought that it might have been negligence that reports went missing. Her parents also expressed concern to her that the diagnosis and hospital admissions had been mismanaged. She googled “solicitor” and telephoned the number of a local lawyer based in Jimboomba to discuss any potential medical negligence claim. She does not recall who she spoke to or the name of the law firm but recalls the call was short and that male she spoke to told her that making a claim against a large hospital would too hard. She told them that she was on WorkCover and she was told to keep a diary of her symptoms. The person she spoke to did not say anything about limitation dates or what her rights would be in relation to WorkCover claim or any claim for personal injuries generally (and, as set out above, Ms Lee’s understanding was that she would need legal advice about when her WorkCover claim ended and at this stage her WorkCover claim was still ongoing).
She accepted in cross-examination that she did not discuss with him the claim against her former employer in relation to that injury, nor did she discuss at all a claim arising out of her workplace injury.
On 29 November 2019, she posted a message on the Beauy Whispers Facebook group page. That group page is a community page for people living in or working in or visiting the Scenic Rim. She was looking for recommendations for a lawyer who could assist her with her medical negligence and with her WorkCover claim if she needed a lawyer after WorkCover stopped paying her. This evidence indicates that Ms Lee’s understanding was that if she needed a lawyer in respect of her WorkCover claim it was not until after WorkCover stopped paying her. As we know from the material set out above that did not occur until well after the expiry of the limitation period and in fact some months after the Notice of Claim was filed.
She recalled receiving a message from Ms Avery of Kare Lawyers on Facebook Messenger advising Ms Lee that she had seen her post, that she specialised in personal injury law, regularly travelled to Beaudesert and could meet her. She telephoned Ms Avery on 20 December 2019 and explained her incident.
The Notice of Claim was filed shortly thereafter in January 2020.
Ms Lee has been experiencing depression consistently since 2016 because of the effect of her back injury and the pain she is experiencing. She tried antidepressant medication for about two weeks but could not tolerate them so she stopped taking any depressants. As a result of her depression and narcolepsy it was difficult for her to find motivation to do anything, including contact solicitors. In evidence is a report confirming the diagnosis of depression.
Ms Lee deposes that:
Until I spoke with Ms Avery, I did not understand what a statutory claim with WorkCover and a personal injury claim for damages were and I still struggle to understand the distinction. I was also not aware of any limitation dates to bring a claim. I had believed that, when my WorkCover claim was closed, if I did not receive a sufficient ‘payout’ from WorkCover, I might a further right to damages. I believed that WorkCover would stop paying me fives years after my accident and that was when I would find out the amount of the ‘payout’ and I would need legal advice about any further rights.
As it turned out, WorkCover did stop paying her at approximately five years after her accident.
ISSUE ONE: IS THERE A MATERIAL FACT RELATING TO CAUSE OF ACTION NOT WITHIN MEANS OF KNOWLEDGE UNTIL AFTER 19 DECEMBER 2017 & IF SO, WAS IT OF A DECISIVE CHARACTER
General principles
In Do Carmo v Ford Excavations Pty Ltd, Deane J observed that:
The benefit of any extension of the limitation period … is conferred at the cost of a corresponding detriment to the potential defendant in the action. The legislative policy underlining the sections is plain enough. It is that the limitation period should be extended only in favour of a person who was, without fault on his part, unaware that he had a worthwhile cause of action until not more than twelve months before the commencement of proceedings.[10]
[10](1984) 154 CLR 234, 250-251.
The effect of the legislation is that time may be extended when knowledge of material facts coincides with the circumstance that a reasonable person with the applicant’s knowledge would regard the facts as justifying and mandating that an action be brought in the applicant’s own interest.[11] As Gummow, Hayne and Crennan JJ stated in State of Queensland v Stephenson:
If this conjunction of circumstances first occurs before the commencement of the last year of the limitation period, no application for an extension can be brought; the applicant has the benefit of at least one year before the limitation period expires and is required to act within that time. If the conjunction occurs after the commencement of that last year, the court is empowered, if the other criteria in sec. 31 are satisfied, to extend time for one year from the date of that conjunction of circumstances.[12]
[11]State of Queensland v Stephenson (2006) 226 CLR 197, at 208 per Gummow, Hayne, and Crennan JJ.
[12]State of Queensland v Stephenson (2006) 226 CLR 197, 208.
In this case, Ms Lee submits that the coincidence of knowledge and circumstance occurred in the twelve months preceding 6 January 2020, the day on which the Notice of Claim to WorkCover stopped time running.
When will a fact be material?
Section 30(2) assists in understanding what might be a material fact. It sets out an inclusive definition in that respect, and provides, relevantly, that:
….. the material facts relating to a right of action include the following –
….
(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
(iv)the nature and extent of the personal injury so caused;
(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty.
When is a fact not within the means of knowledge of the person? (Including consideration of the obligation to take reasonable steps to find out the fact)
Whether a material fact is within the means of knowledge of an applicant involves a question of reasonableness.
A fact is only within the means of knowledge when the steady preponderance of opinion or belief of a person who had taken all reasonable steps to ascertain that fact would have believed that that was so.[13]
[13]Dick v University of Queensland [2000] 2 Qd R 476, [35]; Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, 441–443.
Section 30(2)(c) sets out when a fact is not within the means of a knowledge of a person. It provides that:
a fact is not within the means of knowledge of a person at a particular time if, but only if –
(i)The person does not know the fact at that time; and
(ii)As far as the fact is able to be found out by the person – the person has taken all reasonable steps to find out the fact before that time.
Whether an applicant has taken reasonable steps to ascertain the fact is a question to be considered in the context of the background and circumstances of the particular applicant.[14]
[14]Castlemaine Perkins v McPhee [1979] Qd R 469, 473E; Randel v Brisbane City Council [1984] 2 Qd R 276, 279; NF v State of Queensland [2005] QCA 110.
In NF v State of Queensland, Keane JA stated that:
…s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of “all reasonable steps”, or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act.[15] (bold added)
[15][2005] QCA 110, [29].
In Healy v Ferndale Pty Ltd, de Jersey CJ, McPherson JA and Thomas J stated:
The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for the prudent enquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or affect upon her working capacity. There is no requirement to take “appropriate advice” or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.[16] (bold added)
[16][1993] QCA 210.
I note, at this juncture, that in the circumstances of this case, I find that it was not reasonable to expect Ms Lee to have taken “appropriate advice” or “ask appropriate advice”.
It is for an applicant to prove that the material fact relied upon would not have been discoverable prior to the critical date if appropriate advice had been sought.[17]
[17]Kambarbakis v G and L Scaffold Contracting P/L [2008] QCA 262, [48]; Gillespie v Swift Australia P/L [2009] QCA 316, [20]–[21].
When will it be of a decisive character?
The expression “material fact of a decisive character relating to the right of action” is a composite phrase.[18] In State of Queensland v Stephenson, Gummow, Hayne and Crennan JJ stated that:
…. whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial.[19] (bold added)
[18]State of Queensland v Stephenson (2006) 226 CLR 197.
[19]State of Queensland v Stephenson (2006) 226 CLR 197, [29].
A material fact is not one of a decisive character until a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regards those facts as showing that an action would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action and that the person whose means of knowledge is in question ought, in their interests and taking the person’s circumstances into account, to bring an action on the right of action.[20]
[20]State of Queensland v Stephenson (2006) 226 CLR 197, [29].
Whether that test has been satisfied at a particular point in time is a question for the court.[21]
[21]State of Queensland v Stephenson (2006) 226 CLR 197, [29].
In Wrightson, Helman J observed that the effect of the section:
…. means that even if a claimant could have instituted a claim earlier than the time when a reasonable person would have regarded the facts as showing that he ought to do so, it is only when the reasonable person would regard the facts as showing that he ought to do so that time begins to run under s. 31(2).[22]
[22]Wrightson v State of Queensland [2004] QSC 218, [10].
Section 30(1)(b) provides that:
material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regards those facts as showing –
(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
(ii) that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
Section 30(1)(c) involves subjective and objective elements.[23]
[23]Honour v Faminco Mining Services Pty Ltd as Trustee for the Faminco Trust (In Liquidation) & Anor [2009] QCA 352, [97] per P Lyons J, with whom Fraser JA agreed.
If, properly advised on the state of the evidence at a particular time, Ms Lee should have pursued an action before the discovery of the material fact, the discovery of the material fact will not be of a decisive character such as to bring it within the section. In Moriarty v Sunbeam Corporation Limited, Macrossan J stated:
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.[24]
[24][1988] 2 Qd R 325, 333. See also Berg v Kruger Enterprises (Division of Besser Qld Limited) Ltd [1990] 2 Qd R 301.
In determining whether a fact is of a decisive character, that fact is “not be considered as separate from facts already known”.[25]
[25]Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23–24.
The quantum of the claim will be relevant: “the question of damages likely to be recovered is properly to be regarded in determining whether the bringing of an action for damages for personal injury is justified.”[26]
[26]Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23–24.
The consequences of injury including economic consequences, may be a material fact of a decisive character relating to the right of action.[27]
[27]Watters v Queensland [2001] 1 Qd R 448, [11] per Thomas JA.
A person, may have regard to the net amount she would receive in determining whether she ought to bother with the risks of litigation and the time and expenses involved.[28] A newly discovered fact could be regarded as a material fact of a decisive character “if it added substantially to the quantum of damages likely to be recovered”, provided that without the newly discovered fact, the amount would be too small to bother about.[29]
[28]Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23–24.
[29]Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23–24.
A material fact that simply makes a worthwhile action, “more worthwhile”, will not be of a decisive character. If there was already a critical mass of information within a plaintiff’s knowledge which would have justified the bringing of an action, within the limitation period, then the new fact won’t be of a decisive character.[30]
[30]See Castillon v P & O Ports Limited (No 2) [2008] 2 Qd R 219, [34] per Keane JA.
In Pizer v Ansett Australia Ltd, Thomas JA stated:
…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 … 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.[31] (bold added, citations omitted)
Alleged material fact one: Ms Lee knowing that it was unlikely that she would be able to work in any capacity
[31][1998] QCA 298, [20].
Introduction
Ms Lee submits that it was not until after back surgery on 27 March 2019 that she realised that it was unlikely that she would be able to work in any capacity. Prior to that time, she had suspected that she would not be able to return to work as an Assistant in Nursing, but she thought she would be able to return to work in some other capacity.[32] Ms Lee submits that this realisation that she would be unlikely to be able to work in any capacity goes to the commerciality of any cause of action, and is thus a material fact of a decisive character.[33]
[32]AO 4.
[33]AO 6.
Materiality
Not being able to return to work at all, compared to not being able to return to certain types of work, is a matter going to “the nature and extent of the personal injury” under section 30(1). I find that becoming aware that she was not likely to be able to return to work at all is a material fact.
Was it within her means of knowledge at a time before the start of the third year of the limitation period?
The answer to this question is “no”.
SAL submit, in effect, that Ms Lee knew that she would not be returning to work, or at least, it was within her means of knowledge, at a time before the start of the third year of the limitation period, that is, before 9 December 2017.
In that respect, SAL points to a number of matters, including:
(a)She knew she had been off work continuously since the date of the accident;
(b)Her husband had ceased work, and was on a carer’s pension as her full time carer; and
(c)She described high degrees of disability associated with her spinal condition to treating and reporting medical practitioners through the March 2016 to July 2018.
SAL also submits that Ms Lee informed numerous reporters of her understanding that she could not return to work in a manual nursing role or retrain because of her disabilities and narcolepsy, as follows:
a.9 May 2016 to Ms Youngberry;
b.5 July 2017 to Dr Mistri for insurance forms;
c.8 February 2018 to Ms O’Reilly; and
d.WorkCover officers on 7 April 2016, 21 June 2016, 22 September 2016 and 6 July 2017.
The question arises as to whether this submission that Ms Lee told reporters of her understanding that she could not retrain (and thus, in effect, that she knew she would not be returning to work) overstates the position. None of the documents referred to in the preceding report go so far. At highest, some of those references go to the difficulty of retraining, not the impossibility of it. Others speak to the possibility of recovery and exploration of return to work options.
The 9 May 2016 Youngberry reference records that “Ms Lee advised that she is aware her doctors have recommended a more sedentary based role for her in the long term, given her back condition, however she explained that she is required to be mobile given her narcolepsy.” That does not go so far as to say she could not retrain in other work.
That document also records that Ms Lee reported she is anxious and uncertain about seeking out and applying for work given her previous work experience, past experience and current physical abilities but was motivated to obtain further retraining in order to make her competitive in the open labour market. The report set out transferrable skills from her past roles. At the time of assessment she reported employment preferences as being diversional therapist, bookkeeper, veterinary nurse, support worker, community services worker, medication nurse and health promotion. The report also set out a number of jobs that Ms Youngberry considered her to have the physical capacity and transferrable skills:
·Administration assistant;
·Medical receptionist;
·Purchasing officer;
·Console operator;
·Tele-nurse;
·Bank officer;
·Betting clerk;
·Call centre operator;
·Car rental officer;
·Cashier;
·Data entry operator;
·Data base administrator;
·Sales assistant; and
·Sales representative or telemarketer.
The recommended options were administration assistant or receptionist. It was also considered she would be well suited to the vocation of bookkeeper if further retraining was completed.
The report stated that Ms Lee was open to seeking alternate employment options.
The 22 September 2016 WorkCover document describes Ms Lee reporting that she was thinking about other work prospects, including bookkeeping and phlebotomy. The WorkCover document records that it was made more difficult as she has narcolepsy as well. The note records that she can sit for longer than 20 minutes.[34] It records that it would make retraining and work options “a bit difficult”. The note also records that Ms Lee felt like she was slowly getting better, and that she feels as though she was ready “to move forward now.”
[34] It seems likely that this note should have recorded that she could “not” sit for longer than 20 minutes.
The 6 July 2016 WorkCover reference describes Ms Lee reporting that she had narcolepsy whereby she could not sit for longer than 15 minutes, was unable to return to her pre-injury role as an Assistant in Nursing. Under the heading “training/retraining opportunity”, the record reflects that Ms Lee was looking at bookkeeping.” The record also reflects that she was going to physiotherapy twice weekly, and feeling stronger, and that her balance was improving.
The notes of the surgery consultation with Dr Mistri on 5 July 2012 records:
- Review of workcover review from march
- Suggest ongoing rehab, slow recovery, likely further 6-8 months
- Unable to work as aged carer
(my italics)
SAL further submits that “the material fact alleged in her affidavit as to Dr McEntee’s report providing an understanding that she would not return to work is untenable having regard to the extensive level of disability she reported during her statutory compensation claim, including advice that she would need to re-direct to lighter employment, and her status as someone with a permanent carer. The hope described in paragraph 34 of her affidavit was devoid of realistic foundation.”[35]
[35] SAL written submission 5 November 2021, [52].
Paragraph 34 of Ms Lee’s affidavit stated:
My hope was that, with the further surgery on 27 March 2019, my backpain and mobility would improve enough that I could work in a role which was sufficiently physical for me to stay awake without involving heavy manual lifting.
The submission that the hope there described is devoid of realistic foundation is put by SAL notwithstanding paragraph 11(a) of the Defence which pleads SAL’s belief that Ms Lee is not totally incapacitated from employment.
In the course of cross-examination, Ms Lee accepted that:
(a)By 29 August 2017 (the time of reaching out to the Facebook support group):
(i)she was unlikely to return to work as an Assistant in Nursing or any role in a manual context dealing with patients or residents; and
(ii)she knew it would be difficult for her to retrain into different kinds of work because her narcolepsy would interfere with her retraining and learning process.
(b)By November 2018:
(i)she knew she had suffered a very serious spinal injury;
(ii)that she had major spinal injury;
(iii)because of that injury, she hadn’t worked for almost three years;
(iv)because of the position she was in as a result of that injury, she had to engage her husband as a full-time carer for her and her child;
(v)she couldn’t return to work as an Assistant in Nursing or anything similar;
(vi)she had lost three years of income in terms of wages, and had received weekly benefits from WorkCover for that entire time;
(vii)that her WorkCover claim was ongoing; and
(viii)she would have trouble retraining into other work because she had narcolepsy.
Although it was put to Ms Lee that she would have difficulty/trouble retraining into other work because of her narcolepsy, the cross-examination did not go as far as to suggest that she knew that her narcolepsy would mean that she could not return to work. Difficulty and/or trouble retraining would certainly decrease the likelihood of returning but does not equate to impossibility, nor significant improbability.
Ms Lee submits that a theme which ran through the documents in the WorkCover file prior to the expiration of the limitation period was that Ms Lee may improve and return to employment. It is submitted that WorkCover had Ms Lee assessed by Occupational Therapist Ms Lauren Youngberry for just that reason.
Ms Lee points to:
(a)A report of Dr McEntee dated 10 March 2017 advising, inter alia, ongoing physiotherapy “and review by an occupational therapist to identify suitable duties so Ms Lee can begin a graduated return to work program.” Dr McEntee opined that referral to a rehabilitation provider and arrangement of a graduated return to work program was reasonable at that stage; and that her overall prognosis appears to be reasonable. He stated that her overall prognosis appears to be reasonable given she is seeing ongoing improvement and is feeling a lot more positive about the future. In his view, Ms Lee continues to improve with physiotherapy and given that neural recovery can take 18 to 24 months post-surgery he would not consider Ms Lee to be stable and stationary for another 6 to 8 months. He is of the view that Ms Lee could participate in a computer based study programme to assist her to find suitable employment in the future;
(b)A report of Jimboomba Physiotherapy dated 10 July 2017 noting considerable improvement, and the ability to pick up and walk around holding her toddler, squat fully, lunge well, in addition to other physical movements;
(c)A report of Ms Youngberry, dated 25 July 2017, recommending that Ms Lee be given Job Search Assistance to identify roles within her area. That report also stated that in terms of future Ms Lee said she wanted to pursue retraining options explaining that long term she would like to be employed but that she believes she would require further qualifications due to her capacity. The report noted that the vocational assessment completed on 16 May 2016 identified a number of long term options with the most reasonable being administration assistant and receptionist. The report noted that Ms Lee suffers from narcolepsy and does as such experience overwhelming drowsiness throughout the day which, she reports, impacts on her capacity to perform mundane or repetitive tasks where physical activity is limited. The author noted that this could have a significant impact on her productivity when undertaking sedentary/administrative based work. Ms Lee expressed a number of preferences for long term employment which would require retraining including bookkeeper, leisure and lifestyle assistant and diversional therapist; and
(d)A report of Ms Youngberry, dated 6 September 2017, for vocational assessment for retraining and developing a job seeking plan in the hope of securing employment in the future. The report observes that Ms Lee expressed preferences for long term employment which would require retraining including a bookkeeper working from home, leisure and lifestyle assistant, diversional therapist and teacher’s aide. The report observed that the options were discussed in detail and it is considered that the leisure and lifestyle assistant, diversional therapist and teacher’s aide role involved lengthy and costly retraining which would impact on the timely transition back into employment. Also these had a substantial amount of standing and walking which appeared outside Ms Lee’s current capacity. A decision was made that a bookkeeping role would be most suitable due to the sedentary based nature of the role as well as the ability to often work from home ensuring she was able to undertake work when her symptoms were not aggravated. The bookkeeping role was also considered to be a better option given her pre-existing condition of narcolepsy, allowing her to undertake work when she was less tired. The report observed that there were a large number of positions for bookkeeper in her residential location and it was recommended that she commence retraining in the area of bookkeeping as soon as possible and a TAFE course was recommended.
I find that, taking into account all of the evidence, Ms Lee was, until at least 27 March 2019, of the belief that she had some prospects of returning to work, in some capacity, in the future and that it wasn’t until after the 27 March 2019 surgery that she came to the realisation that she would probably never return to work.
Was the Notice of Claim filed within 12 months of the acquisition of knowledge?
The answer to this question is “yes”.
Decisive character
As stated above, the quantum of the claim is a relevant factor.
The fact that a person is unlikely to ever be able to work has the potential to sound in significantly greater damages than if that person were able to return to work, albeit not in particular jobs. A woman of Ms Lee’s age would, ordinarily, expect to work for quite a number of years yet. In my view, not being able to return to work, at all, would add substantially to the quantum of damages likely to be recovered.
I find that a reasonable person, knowing that they are unlikely to return to any work, and having taken appropriate advice on that fact, would regard that fact as showing that an action on the right of action would have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action.
I further find that Ms Lee, ought, in her own interest, and taking into account her circumstances, bring an action on the right of action.
In this respect, the evidence of Ms Avery, is relevant. I deal with it in more detail below.
Is the new knowledge actually a legal conclusion to be gleaned from facts, rather than knowledge as to facts.
No. The new knowledge was that Ms Lee would not likely ever return to work. This is not a question of law.
Alleged material fact two: Becoming aware that the pain post 27 March 2019 was sequelae of her 2019 work injury not medical negligence
Introduction
After her surgery on 27 March 2019, Ms Lee’s pain improved considerably, but then the following month she started to experience pain associated with what she understood to be an incisional hernia.
She thought this might have been caused by medical negligence. However, due to a report prepared by Dr McEntee, who was engaged by Ms Lee’s solicitors on 24 December 2019, she became aware that she had developed a sacral endplate fracture which was a known complication of the lumbar fusion which had been undertaken on 4 January 2016 to treat the original injury.
Materiality
It is this discovery that she had developed a known complication of the lumbar fusion, namely a sacral endplate fracture, which Ms Lee submits is a material fact of a decisive character which was not within her means of knowledge until after 6 January 2019. Ms Lee submits that “this is a matter going not only to the economic consequences of her injury (i.e. That the symptoms were not diminished by the surgery) but also the right itself (i.e. That the symptoms are causally connected to the original injury and not to a new cause in medical negligence.)”.[36]
[36]AO6.
I accept that this discovery is a matter going to the extent of the personal injury attributable to the work incident.
Was it within her means of knowledge at a time before the start of the third year of the limitation period?
This fact was not within Ms Lee’s means of knowledge before the third start of the limitation period.
Was the Notice of Claim filed within 12 months of the acquisition of knowledge?
Yes.
Decisive character
The fact that Ms Lee suffered a sacral endplate fracture, and that that is a known compilation of lumbar surgery, goes to the economic consequences of the original injury, as submitted on behalf of Ms Lee.
These facts have the potential to sound in significantly greater damages than if the injuries were not a known complication of the original surgery, but rather the consequence of medical negligence.
I find that a reasonable person, in the circumstances here, knowing these facts would regard that fact as showing that an action on the right of action would have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action.
I further find that Ms Lee, ought, in her own interest, and taking into account her circumstances, bring an action on the right of action.
In this respect, the evidence of Ms Avery, is relevant. I deal with it in more detail below.
Is the new knowledge actually a legal conclusion to be gleaned from facts, rather than knowledge as to facts
The new knowledge was that she had suffered an injury in consequence of the initial surgery in respect of the workplace injury, rather than as a consequence of medical negligence. This is knowledge as to facts.
Alleged material fact three: becoming aware that her claim for damages was commercial by reason of damages being significantly due to 2015 work injury, rather than pre-existing work injury
Introduction
Ms Lee also submits that material became available which indicated that a claim for damages was commercial. In this respect, Ms Lee observes that during the course of the WorkCover claim, a significant volume was obtained, the effect of which was that Ms Lee’s condition was related to and caused by pre-existing degeneration in her spine, and that this would have caused her to have similar problems in the future event; but that once she engaged legal representatives in late 2019, material obtained by them on her behalf established that there was a significant component of her impairment caused by the 19 December 2015 event, as opposed to pre-existing degeneration. This material meant that her cause of action was commercial.
In this respect, a report from Dr Gillett, Orthopaedic Surgeon, dated 8 May 2020,[37] identified that the vast majority of Ms Lee’s impairment arose from the 19 December 2015 injury and that it is an estimate only as to when pre-existing degeneration might have caused a similar outcome.
[37]Obtained after the Notice of Claim was given to WorkCover, but before the Claim and Statement of Claim was filed in this Court.
As to special manual handling, I note that Mr Qualtrough’s 11 November 2021 email to Ms Moloney, states that within two archive boxes he reviewed, although there weren’t records “specific” to Ms Lee’s claim, the records did include manual handling cards (which include care plan summary information for moving specific residents.) I do not take Mr Qualtrough’s reference to there being no documents ‘specific to Ms Lee’s claim’ as meaning that these manual handling cards for specific residents were not residents which Ms Lee may have assisted on the day in question. It might take some further interrogation and cross-referencing to seek to establish who these residents might have been. On the state of the current evidence, I am not satisfied that SAL has placed in evidence sufficient facts to lead me to the conclusion that relevant manual handling documents for specific residents no longer exist.
Staff training records
SAL submits that the absence of training records significantly prejudices them. As I hope is clear from above, I am not satisfied that there has been a methodical and complete search for training records. For example, within 30 hours of an email being sent by Ms Moloney to Mr Qualtrough, (between the two hearing dates), training records for Ms Lee which could not be found previously, were able to be found. Mr Qualtrough’s email begs the question as to what else might be out there with a more methodical approach, assisted first hand by someone with legal training.
Ms Lee submits that there is quite a lot of training records, with some emerging only in the week before day 2 of the hearing. In that respect, Ms Lee points to, inter alia:
(a)Manual handling assessment,[114] in which the words “positioning, lifting and transferring of a resident” appear, and next to which is a tick for “achieved”, with a signature of Ms Castillo and Ms Lee. Ms Lee submits that if SAL wish to raise evidence to suggest that they had assessed Ms Lee in respect of this, they have a document they can rely on;
(b)Orientation module 1 records that as part of induction, Ms Lee completed “location of policy and procedure manuals”;
(c)New staff administration checklist, which includes manual handling under “competencies” which was ticked off on 8 March 2014;[115]
(d)Elements for education in safe manual handling for care staff, dated 22 October 2014;[116] and
(e)Essential WHS Safe Manual Handling for Care Staff.[117]
[114]159.
[115]151.
[116]17 in third Moloney affidavit.
[117]23 in third Moloney affidavit.
Ms Lee submits that we do not have anything from SAL indicating that there are yet still more staff training documents or records that they would expect to have in existence which they have not now located.[118] Ms Lee submits that that is a fatal problem for SAL.
[118]2-20.
I am not satisfied that SAL have placed sufficient evidence before me to satisfy me that there were further training records which would have assisted the case which are not able to be located.
Even if there are some training records which are truly lost to SAL, when one considers the training records which are available, and the oral evidence which will be available to SAL as to the systems in place for training from at least the CEO and Care Manager, and perhaps Ms Castillo, I am of the view that any prejudice does not amount to significant prejudice, either alone or in conjunction with other prejudice SAL alleges in respect of other types of documents and witness evidence.
Client specific monitoring worksheets
Ms Lee submits that there is nothing before me as to what these might have contained and how they might be relevant to the case.[119]
[119]2-21.
Again, for reasons as expressed above, I am not satisfied that SAL have placed sufficient evidence before me to satisfy me that there were client specific monitoring worksheets which would have assisted the case which are not able to be located. I also note that Mr Qualtrough refers to “protective assistance monitoring records” in his email 11 November 2021. I do not know if these are or are not client specific monitoring worksheets.
In any event, even if there are some client specific monitoring worksheets which are truly lost to SAL, I am not satisfied that there is actual prejudice which flows from that relevant to the claim as pleaded.
Safety audit reports and schedules
Ms Lee submits that it is not at all clear that these documents have been lost. Mr Qualtrough stated in his email of 23 April 2021 that the audits were conducted through the Aged Care Quality and Safety Commission and that the audits required safe work handling process policies and evidence of staff induction and training, as well as evidence of staff competency and verification through resident interview.
Notwithstanding the fact that Ms Lee’s Counsel had specifically forewarned SAL that Ms Lee would be submitting that there is no suggestion in the material that SAL had contacted the Commission to have their file provided, it seems no attempt to do so was made.
Further, Mr Qualtrough’s email of 11 November 2021, does refer to there being records as to “workplace health and safety activity that was undertaken regularly – audits, reviews, incident reports…”
In the end, I am not satisfied that SAL have placed before me evidence that this category of documents is lost and/or not able to be obtained; and thus has not established that it is prejudiced in this respect.
Workplace Health and Safety Officer Hazard and Safety reports
Ms Lee submitted that these reports, if relevant, should be able to be accessed, if they exist. I am not aware of attempts made to recover these documents to the relevant regulatory authority, or even if such records are remitted to them.
Ms Lee submits that there is no evidence to suggest that there were, in fact, workplace health and safety committee meeting minutes kept, or that there might have been something said in those committee meetings about manual handling, the height of beds, the training of staff or any other matter which might be of relevance here. Ms Lee submits “It’s just a broad ranging sort of assertion: something might have been said and we haven’t found those meeting minutes.”
I note that in Mr Qualtrough’s email of 11 November 2021, he does refer to his discovery of records going to work health and safety activity – “incident reports, …. Hazard registers, resident/staff incidents etc etc.” (my underlining)
I am not satisfied that SAL has placed before me sufficient facts to show that there were committee meeting minutes, that they would have been relevant to have for SAL to defend the matter, or that if they exist, they are lost to SAL.
Care manager notebooks
As for each category of documents said to be lost to SAL, I am not satisfied that SAL has placed before me sufficient facts that such documents are in fact lost to SAL (either through actual loss or through destruction).
Co-worker details and supervisor/manager details – other witnesses
SAL submit that they have only been able to ascertain the identity of one co-worker of Ms Lee on 19 December 2015, namely Ms Benyon, and she does not recall Ms Lee, let alone what happened, and that these things amount to significant prejudice because SAL is not able to say what might or might not have happened in the particular lifts or movements that are complained of. However, Ms Benyon can give evidence that slide sheets were always available, and she always used them. No attempt has been made to take a full statement from Ms Benyon, but when that does occur, it would seem likely that given Ms Benyon will be able to recall what her usual practise was in respect of the manual handling of patients, and whether she ever departed from that, and in what circumstances. In my view, this goes some significant way to SAL defending the allegations, particularly when it is combined by others such as the CEO and Care Manager about safety systems within the workplace.
SAL further submit that even if other co-workers were able to be found, that it is unfathomable that they would be able to recall anything of the circumstances of the duties that led to the onset of pain.[120]
[120]2-38.40-2.40.7.
I do accept the unlikelihood of such a co-worker being able to recall the specifics of the evening, however, such co-workers may well be able to give relevant evidence as to systems.
They may well be able to recall what the systems were with respect to the movement of patients, and the use and availability of slide sheets in that respect, and whether they ever would have said to move a patient in circumstances when a slide sheet was not available. We do not know if they can, because those enquiries have not been pursued, notwithstanding the suggestion to do so by a person who appears to have adequate contemporary knowledge of what the business records were, to check the rosters.
When Ms Moloney spoke with Ms Baigent on 15 November 2021, Ms Baigent suggested, in the context of Ms Lee not recalling the name of the person she was working with and/or the names of all the patients, Ms Baigent did agree that it would be very difficult to investigate the availability of slide sheets. She then suggested “attempting to locate the rosters.”[121] Ms Baigent, was, according to Mr Faull, the then CEO, as “key”. There was no evidence of an attempt to locate the rosters thereafter. As well as this, Mr Faull said that he had documents as well, and there is no evidence as to what they are.
[121]Exhibit 14.
I am not satisfied that SAL has placed before me evidence from which I would be satisfied that the details of the co-workers are not ascertainable, or that the co-workers would not have relevant information to give on the part of SAL.
Ms Lee also points to the staff education attendance sheets, which lists over 40 staff, who, according to the document have been educated in the various staff education items, and who provide a great number of people for SAL to make enquiries as to their knowledge of Ms Lee, and the training of themselves and others, including Ms Lee, yet no evidence of attempts to do so.[122]
[122]2-23.
I am not satisfied that the asserted likely diminution of recollection of Ms Benyon and any other co-workers if sufficient to establish significant prejudice.
Bed too low
Although Ms Lee raised the issue about the bed being too low, it appears that SAL is able to adduce evidence that the beds could be raised. It appears that that issue may not be agitated.[123] In the end, I am not satisfied that there is any relevant prejudice to SAL in respect of the issue of the height of the beds.
[123]2-42.2.
Conclusion
To the limited extent that I have found that SAL has placed in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned, Ms Lee has shown that that prejudice does not amount to material prejudice has persuaded me that a fair trial is possible. I find that the delay has not made the chances of a fair trial unlikely. This is so even taking into account presumptive prejudice which arises by being outside the limitations period.
I am satisfied that Ms Lee has demonstrated the onus that the justice of the case requires the extension. She has discharged the onus on her to satisfy the Court that time should be extended.
Order
The application to extend time is granted.
I will hear the parties as to costs.
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