Madsen v State of Queensland
[2000] QSC 41
•7 March 2000
SUPREME COURT OF QUEENSLAND
CITATION: Lynette Eileen Madsen v State of Queensland [2000] QSC PARTIES: LYNETTE EILEEN MADSEN
(plaintiff)
v
STATE OF QUEENSLAND
(defendant)FILE NO/S: S5961 of 1999 DIVISION: Trial Division DELIVERED ON: 7 March 2000 DELIVERED AT: Brisbane HEARING DATE: 22 February 2000 JUDGE: Atkinson J ORDER: That the time for commencement of the action be extended to 25 June 1999. CATCHWORDS: LIMITATION OF ACTIONS – PERSONAL INJURIES – EXTENSION OF TIME – application for extension of time for commencement of action – where applicant suffered from progressive degenerative changes to her lumbar spine due to excessive loading and stress to spine in employment as assistant nurse – whether material fact of a decisive character was within the applicant’s means of knowledge.
Limitation of Actions Act 1974 (Qld), s 30, s 31
Byers v Capricorn Coal Management Pty Ltd [1990] 2 QdR 306, followed
Carlowe v Frigmobile P/L [1999] QCA 527, considered
Dick v University of Queensland [1999] QCA 474; CA No 3204 of 1999, 12 November 1999, followed
Eustace v State of Queensland [1999] QCA 502; CA No 8143 of 1999, 3 December 1999, considered
Healy v Femdale Pty Ltd CA No 37 of 1992, 9 June 1993, considered
Ipswich City Council v Smith CA No 5443 of 1997, 29 August 1997, distinguished
Katene v George Weston Foods Ltd CA No 8158 of 1997, 26 March 1998, distinguished
Moriarty v Sunbeam Corporation Limited [1988] 2 QdR 325, followed
Peabody Resources Ltd v Norton CA No 200 of 1994, 16 June 1995, distinguished
Pizer v Ansett Australia Limited CA No 6807 of 1998, 29 September 1998, considered
Sugden v Crawford [1989] 1 QdR 683, followed
Taggart v The Workers’ Compensation Board of Queensland [1983] 2 QdR 19, followedCOUNSEL: P O Land for the applicant
P D Lane for the respondentSOLICITORS: Kevin Bradley for the applicant
Hunt & Hunt for the respondent
This is an application pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (the “Act”) that the time for commencement of the action be extended to 25 June 1999. This was the date on which the plaintiff commenced an action claiming damages for personal injuries caused by the negligence and/or breach of statutory duty of the defendant over the period from approximately January 1969 to 25 September 1998 at the Challinor Centre, Ipswich and at Wolston Park Hospital at Wacol.
The present application for extension of the limitation period was filed on 20 December 1999. The application for extension of time was made pursuant to s 31 of the Limitation of Actions Act 1974 which provides:
“Ordinary actions
31.(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.”
The interpretation of s 31 is governed by s 30 which provides:
“Interpretation
30.(1) For the purpose of this section and sections 31, 32, 33 and 34(a)the material facts relating to a right of action include the following -
(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
(ii) the identity of the person against whom the right of action lies;
(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;
(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 at that time know the fact; and
(ii) so far as the fact is capable of being ascertained by the person, the person has before that time taken all reasonable steps to ascertain the fact.
(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 Court of Appeal has recently remarked unfavourably on the complex and technical nature of these provisions and the fact that they have been a fertile source of litigation: see Carlowe v Frigmobile P/L [1999] QCA 527 at [9]. Applications such as this one are expensive for the parties and use up valuable court resources both at first instance and on appeal. The need for law reform is clear and it has already been the subject of a Queensland Law Reform Commission Report.[1]
[1]Report No 53, September 1998.
The question to be determined in this case is whether a material fact of a decisive character was within the means of knowledge of the plaintiff, earlier than one year before the date of commencement of the action.[2] It was conceded by the defendant that there was otherwise evidence to support a cause of action and that it had not suffered sufficient prejudice to prevent any discretion being exercised in the plaintiff’s favour. The relevant fact may be material to a right of action if the fact relates to whether negligence, breach of duty or breach of contract by the defendant caused the personal injury; the extent to which the personal injury was caused by the negligence, breach of duty or breach of contract by the defendant; or the nature and extent of personal injury caused by the negligence or breach of duty by the defendant.
[2]Moriarty v Sunbeam Corporation Limited [1988] 2 QdR 325 at 334 per Macrossan J; Byers v Capricorn Coal Management Pty Ltd [1990] 2 QdR 306 at 307 per Lee J.
A material fact will be of a decisive character if, but only if, firstly under subsection 30(1)(b)(i) of the Act, a reasonable person knowing those facts and having taken appropriate advice on those facts would regard those facts 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; and secondly, pursuant to subsection 30(1)(b)(ii) of the Act 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, bring an action on the right of action. Appropriate advice means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.
In this case a material fact of a decisive character relating to the right of action must not have been within the means of knowledge of the plaintiff until 25 June 1998 being one year before the commencement of the action. It would not have been within her means of knowledge if she did not know the fact at the time and so far as the fact was able to be found she had taken all reasonable steps to find out the fact before that time.
The plaintiff says that the three material facts of a decisive character in this case are the fact that the negligence or breach of duty or breach of contract caused the personal injury[3]; the nature and extent of the personal injuries so caused[4]; and the extent to which the personal injury was caused by the negligence or breach of duty or breach of contract[5]. In order to determine whether there are such material facts of a decisive character it is necessary to examine the history of Ms Madsen’s employment with the defendant.
[3]Section 30(1)(a)(iii).
[4]Section 30(1)(a)(iv).
[5]Section 30(1)(a)(v).
Lynette Madsen was employed by the State of Queensland as an assistant nurse from 1971. From 1971 to 1973 she worked in the Challinor Centre as an assistant nurse. There were 45 children in the centre some of whom were quite big and heavy and only one other person assisting Ms Madsen. The children had to be bathed which involved lifting them in and out of a bath which was quite low. The children had to be dressed and undressed and had to be lifted in and out of bed and had to be toileted. They were not able to provide any assistance with dressing, undressing, bathing or carrying and the work was hard, heavy and continuous.
In 1975 after a period working at Karala House, a maximum security ward for adolescents, Ms Madsen went back to working in other wards at the Challinor Centre until 1980. The work was similar except that she also worked during 1978 and 1979 in the Charles Pavilion which included disabled patients where the ratio was one nurse to 14 patients. Some of the patients were kept in caged cots. Ms Madsen had to lift the patients from out of their cots, unassisted, carry them to a trolley, place them on a trolley and wheel it to the bath, lift them from the trolley and place them in the bottom of a high sided bath and then repeat the whole process to get them back to their cots. She also had to feed those patients who in many cases could not swallow food properly or control their limbs and as a result had to be fed in small portions at a time with Ms Madsen continuously bending forward into the cots.
While she worked at the Challinor Centre there were no domestics, so assistant nurses such as Ms Madsen had to carry out cleaning duties every day which included washing and polishing floors using large industrial polishers which were heavy and unwieldy. She was also obliged to perform laundry duties carrying or dragging laundry bags which weighed more than 30 kilograms to a bay for pick up by truck drivers. She also had to lift full laundry bags onto shelves in the laundry room which were about waist or shoulder height. She was obliged to drag four or five bags of dirty laundry and four or five bags of clean laundry every day.
At the beginning of 1980 Ms Madsen transferred to Wolston House. From 1981 to 1994 the plaintiff worked exclusively in the geriatric wards at Wolston Park. These wards were Jenner House, Wacol C and the chronic end of the Medical Centre.
At Jenner House there were approximately 40 patients most of whom were disabled adults who were invariably heavy, unable to co-operate or support their own weight or provide any assistance with lifting themselves. There were approximately six assistant nurses who did all the heavy lifting.
The patients had to be lifted from their beds into wheelchairs, wheeled to the bathroom, lifted from wheelchairs and placed in the bath. The baths had high sides and were low to the ground requiring Ms Madsen to bend right forward into the bath so as to place the patients in the bottom of the bath. After the patients were bathed the process had to be reversed so the patients could be placed in their beds.
Apart from bathing the patients, Ms Madsen frequently had to lift patients in and out of bed and in and out of wheelchairs during the course of the shift for the purposes of toileting them. Because of staff shortages she invariably worked alone and it was only in the case of a patient being particularly heavy that she was able to get assistance.
In addition to this patient care work, Ms Madsen had to wash and polish the floors and also to work in the kitchen. The system of work and the equipment used for the washing and polishing of the floors was the same as had been used and provided when Ms Madsen was working in the Challinor Centre.
In Wacol C the patients were all male. Ms Madsen performed similar work to the work she performed in Jenner House. In addition many of the patients in this ward were incontinent which required changing their clothes and toileting which involved a significant amount of lifting. Many patients were violent and abusive. In addition to the patient care work Ms Madsen had to attend to washing and polishing of the floors and cleaning of the ward as well as dragging bags of laundry.
At the chronic end of the Medical Centre, the patients were all bed ridden. The pattern of work and system of work was the same as the pattern and system at Jenner House and Wacol C. The level of staffing was the same as at Jenner House. Because of staff shortages, lifting was performed by Ms Madsen alone unless a patient was particularly heavy. In such cases assistance was obtained. Most of the patients were large and uncooperative as they had little control of their limbs and were largely unable to support their own weight or provide any assistance during lifting. Many of these patients had to be turned on a regular basis whilst in bed and this was also heavy work. In addition to patient care the plaintiff had to wash and polish the floors and do laundry duty.
In 1994 the system of work substantially changed. The patient/nurse ratio substantially improved so there was one nurse for about five patients. Domestics were employed to do the serving and preparation of meals and cleaners were employed to do the cleaning and polishing of the floors. Laundry bags were only half filled; hoist and lifting aids were provided; sliding sheets and baths having sides which could be raised or lowered with a press of a button were introduced; bath beds which could be lowered into the bath with the patient on top were also introduced; “a no lifting policy” was introduced. As a result most of the heavy lifting was eliminated.
On 25 September 1998 whilst working at the Wolston Park Hospital the plaintiff felt a sudden and severe pain in her lower back and a shooting pain down her left leg. This was the first time the plaintiff had ever experienced symptoms of this type in all of the years that she had worked at the Challinor Centre and later at the Wolston Park Hospital. Prior to that time she had from time to time experienced niggles and stiffness in her lower back but as every assistant nurse had these symptoms she assumed that this was part and parcel of the work. If the symptoms were particularly bad Ms Madsen would take a “sickie” but otherwise she would carry out her work. Although she had complained to her general practitioner occasionally about a sore back she did not receive any physiotherapy or any chiropractic treatment. Her back had not been x-rayed. Once or twice she may have been prescribed anti-inflammatory drugs. She never applied for workers’ compensation in respect of any of these symptoms.
It appears likely that the work that the plaintiff performed at the Wolston Park Hospital and the Challinor Centre until 1994 caused excessive loading and stress to the plaintiff’s lumbar spine at L4/5 level. This excessive loading and stress caused, at least in part, the large degenerative changes which the plaintiff has in her lumbar spine at that level and made her lumbar spine at that level more vulnerable. Before September 1998, Ms Madsen was not aware of what was happening to her lumbar spine progressively over the time referred to.
Dr Ian Low, a specialist in occupational medicine, whose affidavit was not challenged, testified that the excessive loading and stress to the applicant’s spine would have caused the marked degenerative changes that he observed in her spine. In his experience the plaintiff would not necessarily have been aware of the progressive degenerative changes to her lumbar spine. Dr Coroneos told her shortly after he first saw her in October 1998 that she would never be able to go back to nursing work. She did not know this before October 1998. These were the material facts of which she was unaware.
Not only was the plaintiff unaware of the material facts, but the material facts were not within her means and knowledge before September 1998. The test for whether or not a fact was within her means of knowledge depends on whether she took all reasonable steps to find out that fact[6]. This test has both subjective and objective elements[7]. What is relevant is the means of knowledge of the plaintiff and not of some hypothetical reasonable person[8]. She had no lasting symptoms which would have led a person in her position reasonably to make enquiries of a medical practitioner. To require her to do so would involve a degree of hindsight.[9] There was, in those circumstances, no requirement for her to seek medical advice about what was happening to her lumbar spine on a progressive basis.[10]
[6]Moriarty v Sunbeam Corporation Limited (supra) at 329; Taggart v The Workers’ Compensation Board of Queensland [1983] 2 QdR 19 at 23-24; Sugden v Crawford [1989] 1 QdR 683 at 685.
[7]Dick v University of Queensland [1999] QCA 474; CA No 3204 of 1999, 12 November 1999 at [36] per Thomas JA.
[8]Dick v University of Queensland (supra) at [30] per Thomas JA.
[9]Eustace v State of Queensland [1999] QCA 502; CA No 8143 of 1999, 3 December 1999, per McMurdo and Davies JA at [14].
[10]Healy v Femdale Pty Ltd CA No 37 of 1992, 9 June 1993; Pizer v Ansett Australia Limited CA No 6807 of 1998, 29 September 1998 at [18].
All of these matters reveal that the plaintiff was not aware of the fact of her injury; the nature and extent of that injury; or that it was caused by the defendant’s negligent system of work earlier than one year before 25 June 1999. This is not a case where the facts discovered after 25 June 1998 would go only to the quantum of damages.[11] This is a case where the newly discovered facts, that is that she had suffered from progressive degenerative damage to her lumbar spine which would prevent her from working again as an assistant nurse, meant that she had a worthwhile action to pursue.[12] Without the newly learnt facts she would not, even with the benefit of appropriate advice, have previously appreciated that she had a worthwhile action which she should in her own interests pursue.
[11]cf Peabody Resources Ltd v Norton CA No 200 of 1994, 16 June 1995; Ipswich City Council v Smith CA No 5443 of 1997, 29 August 1997; Katene v George Weston Foods Ltd CA No 8158 of 1997, 26 March 1998.
[12]Moriarty v Sunbeam Corporation Ltd (supra) at 33.
As no prejudice is alleged by the respondent, it is appropriate in all of the circumstances to extend the time for commencement of the action to 25 June 1999.
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