Linke v Esk District Co-Operative Society Ltd

[2000] QSC 74

SUPREME COURT OF QUEENSLAND

CITATION:	Linke & Anor v Esk District Co-Operative Society Ltd [2000] QSC 074
PARTIES:	CHERYL JOY LINKE (First plaintiff) and NEVILLE GREGORY LINKE (Second Plaintiff) v THE ESK DISTRICT CO-OPERATIVE SOCIETY LIMITED (Defendant)
FILE NO/S:	S1283 of 1999
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	3 April 2000
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2000
JUDGE:	Wilson J
ORDER:	Application dismissed
CATCHWORDS:	LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – Application for extension of the limitation period pursuant to s 31 Limitation of Actions Act 1974 – personal injuries claim – whether material facts of a decisive character relating to the right of action were within the applicant’s knowledge or means of knowledge during the limitation period.
Berg v Kruger Enterprises [1990] 2 Qd R 301 Pizer v Ansett Australia Ltd [1998] QCA No 6807 of 1998; 29 September 1998 Taggart v WCBQ [1983] 2 Qd R 19
Limitation of Actions Act 1974 s 31
COUNSEL:	Mr R J Oliver for the applicant first plaintiff Mr RC Morton for the respondent defendant
SOLICITORS:	Jon Kent Lawyers for the applicant first plaintiff Bain Gasteen for the respondent defendant

1. This is an application by the first plaintiff pursuant to s31(2) of the Limitation of Actions Act 1974. The proceeding was commenced by writ issued on 12 February 1999 by which the first plaintiff claims damages for negligence and or breach of statutory duty and or breach of contract. The claim arises out of an incident during the course of her employment by the defendant on 24 May 1990.

2. The applicant claims that it was not until she received a letter from WorkCover Queensland dated 23 March 1998 advising her of a determination by the Medical Assessment Tribunal that material facts of a decisive character were within her knowledge or means of knowledge. She seeks an extension of the limitation period until 13 February 1999.

3. The applicant was employed by the defendant at Esk as a shop assistant. On 24 May 1990 she injured her back while lifting a milk crate at work. She suffered a disc prolapse at L5/S1. She sought medical attention the following day and was subsequently referred to Dr Leigh Atkinson, neurosurgeon, who performed a lumbar disectomy at L5/S1 on 9 October 1990. Thereafter she participated in a rehabilitation programme, including physiotherapy, and she made a gradual return to work in February 1991. She received worker’s compensation payments while she was off work.

4. In October 1994 the applicant suffered pain in her back while moving groceries at work. Again she sought medical attention and she was off work, in receipt of worker’s compensation payments, until early 1995.

5. She remained in the respondent’s employ until 19 January 1996, when she resigned in order to move to Ipswich where her husband was seeking work. She looked for work in Ipswich unsuccessfully. Pain in her lower back interfered with the type of work she could apply for and with her job prospects. In about 1997 she consulted Centrelink about the possibility of receiving a disability pension; someone there advised her to approach the Workers Compensation Board of Queensland. In cross- examination the applicant agreed that at the time of her discussion with Centrelink she knew that she could not take on a job which involved bending, lifting or standing on her feet for a period of time, and that pain in her back could be set off by anything such as turning the wrong way, lifting, standing in the wrong position or sitting in the wrong type of chair. In the seven years from the accident to her conversation with Centrelink, she had experienced pain in her back on and off; and from at least October 1994 she had believed that this was something she had to live with.

6. From mid-October 1997 she underwent physiotherapy at the Ipswich Hospital for about a month. By the time this was finished, she knew that she would always have to be careful about how she moved and what she lifted, but this was something she had known long before commencing the physiotherapy.

[7] The applicant wrote to WorkCover in November 1997; the letter bears a date
received stamp of 12 November 1997. She wrote:

“I wish to apply for a permanent partial disability for my back injury.

DATE

Claim	no. 940918882	21.10.94
Claim	no. 890850666	24.5.90

Yours faithfully
… … … … … … … … ..”

In cross-examination she gave evidence to the effect that she was seeking a “pension” (presumably a periodic payment). She said that before writing the letter she spoke to someone at Centrelink and WorkCover by telephone and was told what to write.

1. WorkCover arranged for the applicant to be examined by Dr Atkinson. She agreed in cross-examination that she knew this was so that she could be assessed for a level of payout. He did not tell her the results of his examination; he wrote to WorkCover on 9 December 1997, but she did not receive a copy of his report.

2. On 2 January 1998 a general practitioner, Dr Gaulton, gave the applicant a certificate that she was incapacitated from work by reason of sciatica for three months from 29 December 1997 to 29 March 1998.

[10]	The applicant attended before the Medical Assessment Tribunal. By letter dated 23 March 1998 WorkCover advised her –
“The tribunal determined that you have suffered a permanent partial disability assessed at 10% LOSS OF BODILY FUNCTION.”
[11]	The applicant claims that it was not until she received that letter that she knew that her disability was permanent or that it amounted to 10% loss of bodily function.

1. A newly discovered fact going to an enlargement of the prospective damages can be a material fact of a decisive character within s31(2)(a) of the Limitations of Actions Act if it adds substantially to the quantum of damages likely to be recovered, assuming that without it the amount otherwise would be too small to bother about pursuing: Taggart v WCBQ [1983] 2 Qd R 19. In Pizer v Ansett Australia Ltd [1998] QCA No 6807 of 1998; 29 September 1998. Thomas JA said at para 20:

   “… .In appeals of the present kind, when the material fact concerns the nature and extent of personal injury, questions of degree are necessarily involved. At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it. At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension, and an appeal court could likewise readily correct an erroneous decision. Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff’s knowledge and as to whether the reasonable person contemplated by s30(b), endowed with such knowledge and having taken appropriate advice would have brought proceedings. Appeals involving extensions of periods of limitation commonly raised these particular issues which involve factual assessments. Although the eventual decision is discretionary the determination of these issues is not. They involve findings of fact and a determination whether those facts satisfy the requirement of the statute. It is worth mentioning however that such findings and determinations are made in an area where different minds might reasonably reach different conclusions.”

2. The application cannot succeed if facts showing that she had a cause of action that was worthwhile in terms of quantum were known to her or within her means of knowledge more than a year before the writ was issued. See s31(2). Thus it is necessary to focus on the extent of her knowledge or means of knowledge before 12 February 1998.

3. After the incident on 24 May 1990 the plaintiff underwent surgery and then rehabilitation. There was a further incident in 1994 which caused her to be absent from work several months. She continued to experience pain on and off, but believed that she had to live with it. In November 1997 she applied to WorkCover for a “permanent partial disability for [her] back injury”. I do not accept that she did not know what was meant by those very words which she used in her letter, even if someone at WorkCover had suggested that she use them. I find that she knew enough then to base a worthwhile cause of action in terms of quantum. Her case is similar to Berg v Kruger Enterprises [1990] 2 Qd R 301. Even if she did not have actual knowledge of sufficient facts, any missing information was within her means of knowledge. The applicant was born on 14 June 1951. She has worked hard all her life and is a stoical soul. She clearly had contact with doctors down the years, and a reasonable person in her position could be expected to have asked a doctor whether her disability was permanent. Further, had she acted reasonably she would have sought legal advice earlier and would either have been advised to commence proceedings on the material then available or to have obtained a specialist report with a view to doing so.

4. The respondent asserted that it would be prejudiced if it had to defend the action so many years after the incident in which the applicant injured her back. It sought to establish that none of the potential witnesses could recall anything about the incident. However, material filed by the applicant countered this, at least with respect to the witness Hobbs. It is not necessary for me to consider the issue of prejudice in light of my findings with respect to the applicant’s knowledge.

5. The application is dismissed.