Macri v Stabilised Pavements of Australia P/L
[2018] QDC 196
•26 September 2018
DISTRICT COURT OF QUEENSLAND
CITATION:
Macri v Stabilised Pavements of Australia P/L [2018] QDC 196
PARTIES:
Angelo Giovanni Macri
(Applicant)
v
Stabilised Pavements of Australia Pty Ltd ABN 90002900736
(Respondent)
FILE NO/S:
396/18
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
26 September 2018
DELIVERED AT:
Brisbane
HEARING DATE:
22 March 2018
JUDGE:
Andrews SC DCJ
ORDER:
Application dismissed.
Order that the applicant pay the respondent’s costs of the application on the standard basis.
Liberty to apply in respect of the order for costs by 4:00pm on 27 March 2018.
CATCHWORDS:
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – where the applicant’s knee injury may prevent his working until retirement age – where that is a material fact relating to his right of action – where the applicant was not told that fact – where the applicant was told that he was likely to suffer early post-traumatic arthritis in his affected knee which may require knee replacement surgery – whether the fact that his knee injury may prevent his working until retirement age was a fact within the applicant’s means of knowledge – whether the fact was of a decisive character
COUNSEL:
Kehoe for the applicant
Morton for the respondent
SOLICITORS:
Maelstrom Lawyers for the applicant
HopgoodGanim Lawyers for the respondent
Background[1]
[1]The background is a summary of significant findings set out below.
The applicant injured his knee at work as a fitter on 12 December 2011. It was an extremely serious leg injury and required surgery. His surgeon told him that she was concerned that he would not be able to return to work as a fitter, but after 7 months he had returned to work. In January 2013, 13 months after his injury he was doing a combined role of fitter and office manager and, when doing a fitter’s duties, he was doing them all satisfactorily. However, he would be in pain most days and suffered at the end of the day. He saw his surgeon that month for the 14th time. She told him deterioration was inevitable sooner or later and that further surgery was highly likely, possibly knee replacement surgery. She did not expressly say to the 39 year old applicant and he did not expressly ask whether he may be unable to maintain employment as a fitter until his retirement age in 26 years.
Heavier work from February 2016 caused increased leg problems. In October 2016 the applicant underwent further surgery. He subsequently received medical opinions that he would have to avoid heavy work and could expect a 20% to 30% impairment of his leg.
The applicant’s action is statute barred unless he obtains relief pursuant to s 31 of the Limitations of Actions Act 1974 (the Act) by way of an extension of his action’s period of limitation. He must establish that a material fact of a decisive character relating to his right of action was not within his means of knowledge until a date after the commencement of the year last preceding the expiration of the period of limitation for the action. Essentially, the applicant must prove that the fact that the knee injury may (and likely will) prevent him from working as a fitter until retirement age was not within his means of knowledge as a result of his surgeon’s advices in January 2013 or was not then of a decisive character.
The applicant applies pursuant to section 31 of the Act. The originating application is expressed to be for “leave to commence proceedings”. The court’s power under section 31 of the Act is to “order that the period of limitation for the action be extended”. I infer that the application is for extension of the period of limitation for the applicant’s action.
The relevant statutory provisions
So far as is relevant, section 31 of the Act provides:
31 Ordinary actions
(1) This section applies to actions for damages for negligence … or breach of duty … where the damages claimed by the plaintiff for the negligence … or breach of duty consist of or include damages in respect of personal injury to 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.
The issues in this application which relate to s 31 of the Act are also affected by provisions of s 30 of the Act. The relevant subsections are referred to in the respondent’s written outline of submissions and in his oral submissions. The extract from the Act attached to the respondent’s written submissions and purporting to set out section 30 of the Act has been superseded. The changes are not material to the merits of this application, but the clauses of the current version of section 30(1) have been assigned different letters from those in the superseded version of section 30 set out in the attachment to the respondent’s outline. The respondent’s counsel’s written outline appears to have been prepared with reference to the current version of section 30, while his oral submissions appear to have been made with reference to the superseded version of section 30. The error makes no difference to the merits of the submissions.
Section 30 of the Act provides and has provided since 1 July 2011, so far as is relevant:
30 Interpretation
(1) For the purposes of this section and sections 31… —
(a) the material facts relating to a right of action include the following—
…
(iv) the nature and extent of the personal injury so caused;
…
(b) 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 regard 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;
(c) 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.
(2) In this section—
appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.
The material fact of a decisive character relating to the right of action is that the knee injury may (and likely will) prevent the applicant from working until retirement age
The applicant’s counsel first identified in writing[2] the relevant material fact of a decisive character. The written submission appeared to argue that two facts are material:
1. “His knee injury may (and likely will) prevent him from working until retirement age”;
2. “He had been left with a considerable level of permanent impairment flowing from the issuing of a notice of assessment on 6 September 2017 and the reports of Doctors Morgan and Ganko”.
[2]Applicant’s outline Part F par 4 and essentially repeated at Part F par 7.
The applicant’s counsel explained in oral submissions that “the two need to be considered in their totality, rather than in isolation. We’re not having two bites of the cherry”.[3] The applicant’s oral submissions clarified that:
[3]T1-11 lines 39-40.
1. Only one material fact is relied upon by the applicant;
2. The material fact is that the knee injury may prevent the applicant from working as a fitter until retirement age;[4]
3. The relevance of the notice of assessment on 6 September 2017 and reports of Doctors Morgan and Ganko, which describe the level of the applicant’s impairment is as evidence to bolster the applicant’s argument that he was not subjectively aware of the material fact in January 2013 or at any material date until after October 2016;[5]
4. The applicant does not argue that the level of his leg’s impairment of which he learned in 2017 is the material fact.
[4]T1-11 lines 22-24.
[5]T1-10 lines 22-33
After it became clear that the applicant relied upon only one material fact this inference was announced by the respondent’s counsel in oral submissions.[6] The inference was not disputed by the applicant’s counsel.
Concessions by counsel
[6]T1-15 lines 30-33 and T1-15 line 44 to T1-16 line 4 and T1-16 lines 11-15.
The respondent concedes that there is “evidence to establish the right of action”. [7] The concession implies that, apart from a defence founded on the expiration of the period of limitation, there is evidence to establish the applicant’s right of action for damages in respect of personal injury for negligence or breach of duty. It follows from that concession that section 31 of the Act applies.
[7]Respondent’s submissions par 3(e).
Concessions about the date for judging the applicant’s knowledge and means of knowledge: The applicant concedes that the period of limitation for the applicant’s action expired on 12 December 2014.[8] It would seem to follow from section 31(2)(a) of the Act that the court’s discretion to extend the period of limitation is conditional upon the applicant establishing that the material fact was not within the means of knowledge of the applicant in the period before 12 December 2013. However, that date was not identified as the relevant date by either counsel. The respondent’s counsel provided a footnote reference to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) when he submitted that an issue is whether the relevant fact was within the applicant’s means of knowledge before 11 August 2016.[9] Disconcertingly, he orally submitted “I think that’s right, isn’t it? Yes. Yes. It must fall after the 11th of August.”[10] The Workers’ Compensation and Rehabilitation Act 2003 at section 302 permits claimants in certain circumstances to bring proceedings for damages for personal injury after the end of the period of limitation allowed under the Limitation of Actions Act 1974. The applicant’s counsel made no submission on the issue.
[8]Applicant’s submissions par 1.
[9]Respondent’s outline par 3 (c) and T1-24 lines 36-45.
[10]T1-24 line 44.
The respondent concedes that if a material fact of a decisive character came to the applicant’s notice after 11 August 2016 and was not within his means of knowledge before 11 August 2016, it is within the court’s discretion to extend the period of limitation.
It may be unnecessary to determine whether the respondent’s counsel is correct about the date in this case. Picking a correct date from the choices of 12 December 2013 and 11 August 2016 would become important if the material fact first came within the applicant’s means of knowledge between those dates. Neither side submits that it was between those dates. It is the applicant’s submission that the material fact first came within the applicant’s means of knowledge in or after October 2016. It is the respondent’s submission that it was within the applicant’s means of knowledge in January 2013. Thus, the applicant’s case is that the fact was first within his means of knowledge after both those dates and the respondent’s case is that it was before both those dates.
The respondent concedes that the applicant gave a compliant Notice of Claim pursuant to the Workers’ Compensation and Rehabilitation Act 2003 on 11 August 2017 and submitted that the notice had the effect of stopping the period of limitation from running further.[11]
[11]Respondent’s outline par 3(c) footnote 2.
The respondent further concedes:
1. The fact that the applicant may suffer economic loss in the future is a material fact;[12]
[12]Respondent’s outline par 3(a)(i).
2. The fact that the applicant’s knee injury may prevent him from working to retirement age is a material fact;[13] and
[13]T1-16 l 26.
3. If the applicant learned a material fact of a decisive nature which was not within his means of knowledge before 11 August 2016 the respondent has no submissions to make against the court’s exercise of its discretion to extend the period of limitation[14] and the court should exercise its discretion.[15]
Issues
[14]Respondent’s outline par 3(d).
[15]Respondent’s oral submission T1-15 lines 15-20.
The parties’ identification of issues passed like ships in the night.
The respondent submitted:
The critical questions in this matter are:
1. Was:
(a) The fact that the Applicant may suffer economic loss in the future a material fact; (it was)
(b) What was conveyed to the Applicant by the assessment of permanent impairment (whether by the Notice of Assessment on 6 September 2017 or the reports of Drs Morgan and/or Ganko) a material fact; (it was not)
2. If the answer to either of those questions is in the affirmative, was that fact “decisive”; (neither was decisive)
3. If the answer to that question is in the affirmative, was that fact within the Applicant’s “means of knowledge” before 11 August 2016[16]; (each was)
[16]One year before the date on which a compliant Notice of Claim pursuant to the Workers’ Compensation and Rehabilitation Act 2003 was given. That had the effect of stopping the running of the limitation period.
4. If those questions are all answered favourably to the Applicant, should the court exercise its discretion to extend the limitation period; (the Respondent does not submit to the contrary)
5. Is there otherwise evidence to establish the right of action. (there is)
The respondent may have anticipated that the applicant would rely upon different material facts when he constructed his maze of critical questions. Critical question 1(a) does not match the material fact identified by the applicant. Critical question 1(b) identifies what appeared to be a material fact relied upon by the applicant but the applicant clarified in oral submissions that it is not. It follows that critical questions 1(a) and 1(b) need not be determined. It follows that I need not determine critical questions 2, 3 or 4 which were premised on critical questions 1(a) and 1(b) being relevant.
With the benefit of the concessions, the issues have reduced to whether the fact that the applicant’s knee injury may prevent him from working until retirement age was:
1. Not within the applicant’s knowledge before 11 August 2016; and
2. Not within the applicant’s means of knowledge before 11 August 2016; and
3. Of a decisive character.
Facts
As a 25 year-old in 1998, the applicant commenced work as a fitter for the respondent.
On 12 December 2011, as a 38 year-old, the applicant suffered an injury to his right knee, in the course of his employment with the respondent. It was a severe Schatzker 6 fracture of his knee involving both the medial and lateral compartments. The fracture was extremely comminuted with multiple loose articular pieces and a significant vertical fracture line running down the plateau. In terms of the Schatzker classification of fractures, a Schatzker 6 fracture is the worst configuration of this type of fracture. The fracture was extremely serious.
Surgery was done on the applicant’s right knee by an orthopaedic surgeon, Dr Watts on 16 December 2011. The applicant received weekly benefits from WorkCover between 13 December 2011 and 1 July 2012.
An infective collection in his right leg was drained on 21 April 2012. That infection complicated his recovery. The fact that the applicant had an infection in his knee increased the overall risk of deterioration.
Between his surgery in December 2011 and his return to work in July 2012, the applicant saw Dr Watts about 11 times.
The applicant returned to work on 2 July 2012. He returned to employment with the respondent. The respondent was aware of the applicant’s injury. The applicant deposed that the respondent “made some allowance for me in the workplace; specifically I performed the role of office manager as well as duties as a fitter rather than just as a fitter as I had done in the past; I still did perform however the role of a fitter but not 100 per cent of the time”.[17] “My knee was not perfect after the initial surgery in 2011 however it was pretty good and I coped quite well with the duties of my employment and there was no worsening of my symptoms; my employer, the respondent, had no difficulties with my employment between the date of accident in 2011 and when they terminated my employment on 11 December 2015”.[18]
[17]Court document 2, affidavit AG Macri paras 14 to 16.
[18]Court document 2, affidavit AG Macri paras 36 to 37.
In the six months after his return to work the applicant also saw Dr Watts on three more occasions, making the total number of consultations 14 by 10 January 2013. Those 3 occasions after returning to work were on:
1. 20 July 2012;
2. 14 September 2012; and
3. 10 January 2013.
Dr Watts deposed that she advised the applicant on a number of occasions while she was treating him that:
(a)He had an extremely serious injury; the most serious grade of this kind of fracture;
(b)He had an infection which increased the overall risks;
(c)She was very concerned that, due to the severity of the injury, the applicant would not be able to return to his pre-injury work role;
(d)It was highly likely that the applicant’s knee condition would inevitably deteriorate in the future but that it was not possible to predict when that would happen as it could happen quickly or slowly in different individuals; and
(e)It was highly likely that the applicant would require further surgery at some time in the future.
Dr Watts did not depose to the dates when she gave those pieces of advice. There is an issue about whether the doctor’s pessimism about the seriousness of the injury lessened by 10 January 2013 and a corresponding issue about whether her advice to the applicant about his future changed on 10 January 2013. Neither the doctor nor the applicant gave oral evidence. Inferences must be drawn from their affidavits. I infer that the advice described in the paragraph above was given during the applicant’s 13 visits to Dr Watts prior to 10 January 2013. The only material consequence of that finding is that the advice at item (c) that “She was very concerned that due to the severity of the injury the applicant would not be able to return to his pre-injury work role” was not established to have been repeated on 10 January 2013. That piece of advice is likely to have been given before 10 January 2013. It is not likely that Dr Watts would have repeated it on 10 January 2013 given that the applicant had been working for seven months at a level not far below his pre-injury level.
On 10 January 2013, the extent of the applicant’s recovery surprised Dr Watts. Notwithstanding the surprising extent of the applicant’s recovery, Dr Watts expected his condition to deteriorate. The applicant had not returned to the same duties that he had performed before his injury. That is clear from the applicant’s affidavit. But I proceed on the basis of his evidence that he told Dr Watts on 10 January 2013 that he was off all medication and had returned to full duties as a fitter and was on his feet all day. If he told Dr Watts those things, it would follow that he omitted to mention that the time he spent on fitter’s duties had lessened as he was also working as office manager. Whether Dr Watts heard the complete version of the facts or the incomplete version, Dr Watts was still concerned about the prospect of future deterioration, which she regarded as inevitable. That day, she told the applicant that it was highly likely that he would need surgery in relation to the knee in the future. Hearing that, the applicant expressed his concern to Dr Watts that WorkCover might refuse to pay for further surgery in the future. I infer that the applicant was then concerned that WorkCover might not realise that his future surgery would be caused by his work injury. Dr Watts told the applicant that:
1. Any surgery in the future would undoubtedly be linked to his original injury;
2. She would write a letter to WorkCover to that effect; and
3. She would send the applicant a copy.
Dr Watts wrote to WorkCover on 10 January 2013 and sent copies of her letter to the applicant’s GP and to the applicant. The letter[19] advised, among other things:
I had the opportunity to review Angelo Macri on the 10th January 2013. It is now over 12 months since his initial surgery for a severe tibial plateau fracture. His recovery was complicated by an infective collection in his right leg which was drained on the 21st April 2012.
Happily Mr Macri has now made a full recovery. He is now off all of his medication and has returned to his full work duties. He works as a mechanic and is on his feet all day. He is required to climb over large machinery and visit work sites and is able to manage all of his activities. Despite his high functionality, he has pain on most days and although it doesn’t limit his activity he “pays the price” at the end of the day. He has a few recreational activities that he is unable to perform, such as kicking over his son’s motorbike and kicking a football.
…
He has had some x-rays today which show good consolidation of the fracture site and some irregularities around the proximal tibia but good preservation of his joint line. He has a few pustules on his skin which has recurred from his long-standing pustular eczema but apart from this there are no other concerning features.
Mr Macri has completed acute treatment for his knee condition. At this stage there is no other treatment available that would improve his outcome. Despite his good outcome, the severity of his fracture makes it likely that he will have longer term problems. The longer term problems are likely to consist of early post-traumatic arthritic arthritis in the affected knee. This may require additional treatment such as knee arthroscopy or even knee replacement surgery. I would attribute future medical treatment directed at post-traumatic arthritis to be directly related to his initial WorkCover injury. I have explained the possibilities to Mr Macri, including the possibility that he may come to further orthopaedic surgery in the future. Obviously it would be better to delay any future treatment as long as possible given his young age (40 years old).
…I have explained to him the likely symptoms that he should experience and when he should seek further intervention.
[19]Court doc 10, Affidavit S Watts exhibit SW-A.
The applicant’s counsel’s chronology for 10 January 2013 observes that the applicant “was said to have fully recovered”. He was referring to the letter, as there was no evidence that Dr Watts gave that advice orally. One sees in the extract from the letter above that Dr Watts wrote the words “Happily Mr Macri has now made a full recovery”. The context in which the sentence appears reveals that the sentence was literally incorrect. I reject the submission that any reader, including the applicant, would reasonably interpret the letter as an opinion that the applicant had fully recovered or that his recovery was permanent. Properly interpreted in the context of the whole of the letter, the written advice was to the effect that the current extent of his recovery was the fullest level he would experience and early post-traumatic arthritis would cause further deterioration.
Dr Watts was not advising that the applicant had recovered to his pre-accident state of health. The context in which the doctor’s written words were to be understood included more than the whole of the letter. It included the record of the doctor’s oral advices to the applicant. The context included the facts that:
1. The applicant has pain on most days;
2. Although his pain does not limit his activity he “pays the price” at the end of the day;
3. There were two former recreational activities he could not perform;
4. The severity of his fracture makes it likely that he will have longer term problems;
5. Longer term problems are likely to consist of early post-traumatic arthritis in the affected knee;
6. This may require additional treatment such as knee arthroscopy or even knee replacement surgery; and
7. It would be better to delay any future treatment as long as possible given his young age.
On 10 January 2013, Dr Watts regarded future deterioration of the knee as “inevitable”, though this word does not expressly appear in her letter.
I accept the affidavit evidence of Dr Watts that her letter accurately records what the applicant told her and the topics about which Dr Watts advised the applicant on 10 January 2013. Dr Watts was not required for cross-examination on her affidavit. I accept the unchallenged affidavit evidence of Dr Watts that she told the applicant on 10 January 2013 that it was highly likely that he would need knee surgery when his knee inevitably deteriorated.[20] Her letter made clear that the surgery may be “even knee replacement surgery.” Whether Dr Watts went on to repeat to the applicant that it was not possible to predict when that deterioration would occur and that it could happen quickly or more slowly is unclear. But it is clear that Dr Watts held that opinion and that she had told the applicant that opinion during the course of his earlier treatment, if not also on 10 January 2013. In essence, her personal opinions were that:
[20]Affidavit S Watts par 9.
1. Early arthritis was likely;
2. Deterioration was inevitable;
3. Deterioration could occur soon;
4. Surgery was highly likely; and
5. Surgery may involve knee replacement.
The applicant’s counsel accepted in oral submissions that the applicant knew that he had sustained a severe injury in 2011 and that he would probably require surgery in the future due to the severity of his injury.[21] The fact that the applicant asked Dr Watts to write the letter confirming that the applicant’s need for future surgery was caused by his work injury is relevant. It emphasises that the applicant knew that further deterioration was likely and that surgery was likely. The applicant did not dispute his receipt of Dr Watt’s letter or depose that he did not read or understand it.
[21]T1-3 ln 47 to T1-4 ln 5.
The applicant’s counsel submitted that Dr Watts did not advise the applicant that he was unlikely to work to retirement age and that the applicant did not ask her this question. There was no evidence placed before me that Dr Watts expressly advised the applicant of that fact or that the applicant expressly asked for an opinion on that fact.
What evidence did the applicant give about the advice received from Dr Watts before and on 10 January 2013 and by her letter? He gave none. He gave no direct evidence of:
1. Advice he received from Dr Watts; or
2. How he interpreted Dr Watts’s advice; or
3. What he knew or believed in January 2013 about his future employability when he was told or when he read that his knee would worsen, would highly likely need surgery and even knee replacement surgery and that it would be better to delay surgery for as long as possible.
Instead of direct evidence, the applicant implied that he had an absence of relevant knowledge in January 2013 by deposing that after a considerable worsening of symptoms in 2016 and further consequent medical advice:
49. My prognosis and future prospects now are very different from when I received a full clearance on 2 July 2012;
50. I was unaware of all this … until I consulted with Dr Watts in late September 2016…
57. At no stage prior to September 2016 … did I have any remote apprehension that my knee may prevent me from working until my retirement age.
Did the applicant know the material fact in January 2013?
The applicant was not required for cross-examination. He was not cross-examined on the extract above from his affidavit at paragraph 57. It is plausible that a person unaccustomed to considering personal injuries and their consequences might honestly have failed to appreciate the risk of early retirement from a fitter’s career. The applicant’s conduct on 10 January 2013 is relevant and of some minor corroborative value. The applicant’s counsel relied upon it. The applicant expressed concern to Dr Watts that WorkCover may not relate his need for future surgery to the injury he had sustained at work. He did not express concern that WorkCover may not relate early retirement to the injury he sustained at work. It is an omission consistent with the applicant’s failure to appreciate his risk of early retirement. Of more significance to me was the failure to challenge the applicant on his sworn evidence.
I accept the applicant’s affidavit evidence as honest that he did not know before 2016 that his knee may prevent his working until his retirement age. I do so because:
1. It is plausible;
2. It is not inconsistent with the evidence of Dr Watts about the advice she gave; and
3. It was not challenged by cross-examination.
On 12 December 2014 the period of limitation for the applicant’s action against the respondent for damages for negligence or breach of duty expired.
On 11 December 2015 the applicant’s employment with the respondent was terminated as a result of the applicant’s loss of his driver licence.
On 1 February 2016 the applicant secured employment as a sandblaster for ProPowder. It was physically harder work for the applicant. He struggled to perform it and experienced a considerable heightening of his symptoms since then.
On 6 June 2016 the applicant consulted a solicitor about the possibility of asking WorkCover Queensland to reopen his claim because he was experiencing increased knee symptoms. On 23 September 2016 the applicant saw Dr Watts about his knee. Dr Watts recommended scans.
On 20 October 2016 Dr Watts recommended further surgery to the applicant’s right knee and further approaches were made to WorkCover to reopen the original statutory claim.
On 22 December 2016 WorkCover accepted the application to reopen the applicant’s claim.
On 9 March 2017 the applicant underwent surgery by Dr Watts.
On 2 May 2017 the applicant returned to work with ProPowder.
On 3 August 2017 the applicant’s solicitors served a notice of claim for damages on WorkCover and the respondent. It included claims for:
1. General damages for a serious knee injury item 137 claiming an ISV of 24 for a total of $40,270.00;
2. Past economic loss being sums paid by WCQ to date ($60,263.99) plus a 25 per cent uplift due to the 15 per cent, 20 per cent and then 25 per cent statutory gap and/or loss of overtime and loss of earnings for the period 7 February 2016 to date, calculated as $53,847.50 net, being a total of $124,746.31;
3. Superannuation on past loss at the rate of 9.25 per cent being $11,539.03;
4. Loss of interest for 5.65 years at 2.75 per cent by $53,847.50 being $8,366.56;
5. Past special damages met by WCQ, Medicare as well as expenses met by the applicant himself being a total of $54,000.00;
6. Interest on past special damages for 5.65 years at 2.75 per cent on $54,000.00 being $8,390.25;
7. Fox v Wood as per payment/recovery history being $4,327.00; and
8. Less statutory refund as per payment/recovery history ($115,816.48).
The claim also included the applicant’s claims for future economic loss of $350,000.00 and for superannuation on that and for future special damages.
On 11 August 2017 the notice of claim became compliant upon the applicant’s agreement to the respondent’s solicitor’s proposed terms and conditions. On 5 September 2017 a draft originating application and affidavit under the hand of the applicant was provided to the respondent’s solicitors. WorkCover issued on 6 September 2017 a notice of assessment of a permanent impairment of 6.5 per cent to the applicant’s knee.
On 22 September 2017 the applicant received a copy of a medico-legal report by Dr Morgan, an orthopaedic surgeon.
On 12 October 2017 the respondent’s solicitors requested that the applicant be examined by a knee specialist, Dr Ganko. On 20 November 2017 the applicant received a copy of the medico-legal report of Dr Ganko.
On 15 January 2018 the respondent’s solicitors advised that the applicant will be required to bring an application under section 31 of the Limitation of Actions Act1974. The applicant filed the originating application and supporting material on 5 February 2018.
Analysis
The applicant’s counsel submitted that the material fact should be considered in the context of:
1. The applicant’s undergoing surgery on 16 December 2011;
2. The applicant’s being advised on 10 January 2013 that he had enjoyed a full recovery. I have found above that this was not what the applicant was advised;
3. The applicant’s working without significant difficulties from 2 July 2012 until he lost his job in December 2015 due to loss of his driver licence. I accept this submission subject to the qualifications that:
· there is no evidence as to what proportion of the applicant’s time was spent working as a fitter and what proportion was spent in his new managerial capacity;
· performance of his work meant that no later than on 10 January 2013, almost 2 years before losing his job, the applicant suffered work pain on most days; and
· although his pain did not limit his activity he would pay “the price” at the end of the day;
4. Before the limitation period expired, the applicant did not receive any notice of assessment of his degree of permanent impairment or any report identifying that he had sustained any degree of permanent impairment; (I accept this submission.)
5. A few months after February 2016, when working for ProPowder, the applicant experienced a heightening in his knee symptoms; (I accept that submission.)
6. After approaching his treating surgeon in September 2016, the applicant was sent for scans and it was not until 20 October 2016 that surgery was recommended;
7. The applicant underwent surgery in March 2017;
8. The condition of the applicant’s knee has not improved since March 2017 and he has been left with a permanent impairment of between 10 per cent according to Dr Ganko and 30 per cent according to Dr Morgan;
9. Dr Ganko says the level of impairment is likely to increase to 22 per cent;
10. Most significantly, Dr Morgan said that the applicant’s ability to work was now “severely compromised” and he was essentially incapable of performing his pre-accident role and would need to consider a move to sedentary work; and
11. Dr Ganko opined that the applicant’s ability to walk and carry loads was likely to reduce and he would have difficulty with heavier work.
I have considered the material fact in that context. The applicant did not explain which issue that context would assist me to resolve. The factual issues are whether the applicant knew of the material fact in January 2013 and whether it was within his means of knowledge then and whether it was of a decisive character then or before 11 August 2016.
The context is consistent with my finding that the applicant did not know in January 2013 that he was at risk of being unable to work as a fitter to retirement age. If Dr Watts had truly held the opinion in January 2013 that the applicant had made a full recovery, that would have assisted me to determine that the material fact was not then within the applicant’s means of knowledge. But Dr Watts did not hold that opinion.
The applicant’s counsel submitted that “the test is what that applicant should reasonably have known on a subjective test, not what I know, not what my GP knows, not what my anaesthetist father knows. It’s what a fitter and turner might reasonably know in the circumstances”. Insofar as section 30(1)(c)(i) of the Act makes the applicant’s knowledge of the material fact a relevant matter, that must be correct. The respondent did not submit otherwise. It follows that the applicant passed the test which his counsel described. But there is another test at section 30 (1)(c)(ii) of the Act which is objective: as far as the fact is able to be found out by the applicant, did he take all reasonable steps to find out the fact?
Was the material fact within the applicant’s means of knowledge?
Section 30 (1)(c)(ii) of the Act operates so that there will be applicants who do not know a fact but will fail to obtain an extension of the limitation period. That occurs if “as far as the fact is able to be found out by the person—the person has (not) taken all reasonable steps to find out the fact” in the relevant time.
The applicant submits that it was not until October 2016, at the earliest, that he learned that he had permanent impairment of his leg and may not be able to work until retirement age.[22] That submission is about the state of the applicant’s knowledge, but it does not directly address the crucial issue of whether the material fact was “within the applicant’s means of knowledge” at an earlier time.
[22]Applicant’s submissions par 25.
The respondent submits that the applicant knew the material fact on 10 January 2013 or that if he did not know it, his treating doctor, Dr Watts, would have told him if he had asked her.[23] The applicant’s counsel agreed that these two facts were crucial facts and the real battleground.[24] That is consistent with his abandoning reliance on knowledge of the degree of disablement as the material fact.
[23]Respondent’s outline par par 15 (m) and (n).
[24]T1-5 lines 33-34 and T1-10 lines 34-36.
The respondent’s written submission was:
1. S.30(1)(c) provides that a fact is not within the person’s means of knowledge only if the person does not know the fact or alternatively the person has taken all reasonable steps to find out the fact before that time.
2. Given what Dr Watts told the Applicant, and what was in the letter of 10 January 2013 from Dr Watts, if in fact the Applicant did not in fact know that his knee injury may (and likely would) prevent him from working until retirement age, it is only because in all the circumstances of the case he failed to take what would be the objectively reasonable step of asking Dr Watts about that.
In the circumstances of this case, it requires a consideration of:
1. Whether the applicant knew the fact (that his knee injury may prevent him from working to retirement age as a fitter) and for reasons expressed above I am not satisfied that he knew;
2. Whether Dr Watts would have advised of that fact if she had been asked by the applicant on 10 January 2013; and
3. Whether it was a reasonable step to find out that fact for the applicant to have asked Dr Watts on 10 January 2013.
I am not satisfied that the applicant asked Dr Watts on 10 January 2013 whether his knee injury may prevent him from working as a fitter until retirement age. Dr Watts did not give evidence of what she would have answered if the applicant had asked her that question in January 2013. There is ample evidence from which to infer what Dr Watts would have advised had she been asked. I refer to evidence set out above of:
1. Her concern prior to the applicant’s return to work that the applicant would not be able to return to his pre-injury work role;
2. Her surprise at the extent of the applicant’s recovery on 10 January 2013;
3. The advice that Dr Watts gave the applicant on 10 January 2013;
4. The letter that Dr Watts wrote on 10 January 2013; and
5. The opinions Dr Watts held on 10 January 2013.
From those matters I am satisfied on the balance of probabilities that, if the applicant had asked Dr Watts in January 2013, it is likely that she would have advised him that he may not be able to work to retirement age as a fitter and that he probably would not be able to.
Was it a reasonable step for the applicant to have asked Dr Watts for her opinion about whether he could continue to work as a fitter until retirement age? The reasonableness must be judged objectively, but on the basis of matters known to the applicant at the time. The applicant’s knowledge included the advice he received orally on 10 January 2013 and by letter of that date that deterioration was inevitable, early post-traumatic arthritis in his knee was likely, surgery was likely and knee replacement was possible. He knew of his reduced duties as a fitter, his pain on most days and at night, his inability to perform two recreational activities and the prior advice of Dr Watts, expressed to him on several occasions, that she was very concerned that due to the severity of the injury the applicant would not be able to return to his pre-injury work role.
Knowing those matters, it would have been an objectively reasonable step to have then asked Dr Watts about the applicant’s ability to work in his occupation as a fitter until retirement age.
Many submissions were on the issue of decisiveness. Unfortunately they were based upon the false premise that the assessments in 2017 of the level of the applicant’s impairment may have been urged as the material fact. It means there was little or no argument about whether the actual material fact was a fact of a decisive character. I should make some findings. The applicant’s case is premised upon persuading the court that the fact that the knee injury “may (and likely will) prevent the applicant from working until retirement age” is of a decisive character within the meaning of section 30(1)(b) of the Act. The respondent’s counsel did not submit that this fact was not of a decisive character. The respondent’s submissions about the lack of decisive character were made on the incorrect assumption that the applicant proposed the degree of impairment of the applicant’s limb as the material fact.
But the applicant’s counsel made a submission[25] to the effect that the material fact did not attain a decisive character until the applicant personally became aware of two matters:
1. That he would not likely be capable of working to retirement age; and
2. That he had a significant degree of permanent impairment.
[25]Written outline par 7.
The submission assumes that decisiveness is measured by the applicant’s awareness. It is not. The submission is rejected. Reference to section 30(1)(b) of the act shows that the characteristic which turns a material fact into a decisive one is based upon what a reasonable person would conclude.
The fact that the knee injury may (and likely will) prevent the applicant from working until retirement age was within the means of knowledge of the applicant in January 2013.
To determine whether that fact then had a decisive character requires one to consider the two matters in section 30(1)(b) of the Act from the point of view of a reasonable person, in January 2013, knowing the material fact (and that there is evidence to establish a right of action) and having taken the appropriate advice of competent persons qualified in their respective fields to advise on the medical and legal aspects of the facts. Would that reasonable person, so advised, then regard the material fact that the knee injury may (and likely will) prevent the applicant from working as a fitter until retirement age as showing:
1. 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; and
2. That the applicant ought, in his own interests and taking his circumstances in January 2013 into account, bring an action on the right of action.
There was no argument based upon objective considerations that the material fact did not have a decisive character in January 2013. The risk of an early retirement from the occupation of a fitter is compensable in an action for common law damages for future economic loss. A sum equivalent to common law damages for future economic loss would not be recoverable as a benefit from WorkCover. It meant that it was in the applicant’s interest in January 2013 to bring an action on his right of action.
The fact that the applicant did not personally know of the material fact in January 2013 means he could not appreciate then that it had a decisive character. That does not prevent the material fact within his means of knowledge from having a decisive character.
The material fact under consideration in this application was within the means of knowledge of the applicant in January 2013 and it then had a decisive character. January 2013 was before 13 December 2013 and before 11 August 2016. January 2013 was before the last day of the year last preceding the expiration of the period of limitation for the action. The applicant has not satisfied the condition in section 31(2)(a) of the Act. The court has no discretion to extend time in this case.
Costs should ordinarily follow the event and be on the standard basis. In an effort to save the parties the expense of a further appearance, I will make that order but preserve the parties’ rights to seek a different order by giving the parties liberty to apply in respect of my order for costs.
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