Norris v Daniel

[2011] QDC 201

[2011] QDC 201

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1544 of 2011

VANESSA JANE NORRIS	Applicant
and
DANIEL THEOBALD DANIEL & ORS	Respondents

BRISBANE

..DATE 09/08/2011

ORDER

CATCHWORDS

Limitation of Actions Act 1974 s 31

Extension of limitation period for personal injuries claim arising out of a motor vehicle accident attributed to a fast-moving vehicle not identified on the day (from which an item or items fell) - police identified vehicle quickly but never told applicant (indeed told her the contrary upon her inquiry) - a more serious recent "flare up" of symptoms led to applicant's learning that the accident appeared to have caused an injury threatening her employability.
HIS HONOUR: This is an application for extension of the limitation period in section 31 of the Limitation of Actions Act 1974. The would-be plaintiff/applicant complains of injury in an accident which I understand happened on the Logan Motorway on the 29th of March 2005. She was driving her vehicle at around the speed limit when an item or items fell from a truck or utility in front of her, striking her vehicle. In an attempt to deal with the situation she lost control and became involved in a collision which she thought had not injured her in any serious way but which did cause a certain amount of property damage.

The injury is of a whiplash nature.  A story, relatively familiar to the courts, emerges of uncomfortable symptoms experienced by the applicant.  On the evening of the relevant day she was taken to hospital where investigations revealed nothing serious was wrong.  After a few days off work she was able to return to her ordinary activities.  She experienced periodically symptoms which she now, with confidence, attributes to the accident with the support of Dr Todman.

It is unclear whether the medical report of Dr Dubois who made the same comparison of X-rays taken of the applicant on the 19th of August 2010 and in late 2004, that is before the accident, as did Dr Todman is to different effect.  In paragraph 4 of his report at 15th July 2011, he says, "Such deterioration in a 40 year old

female confined to a single intervertebral disc level is most likely to be due to degenerative change following a dramatic disc lesion.  The degree of degenerative change at the C5/6 disc level is quite advanced, much more than would be expected in the normal aging process in a 40 year old.  The change is suggestive of a traumatic event such as whiplash injury sustained more in than a year prior to the date of the CT and X-ray examinations of 2010.  The fact that the appearances at this disc space were normal in 2004 means that most likely the traumatic incident occurred no more than six months before the X-ray was performed.  If it had occurred any earlier, then there would most likely be some loss of disc height or other evidence of most traumatic disc degeneration."

Mr Feely is probably correct that the "no" in the penultimate sentence ought not to be there.  That's perhaps confirmed by Dr Dubois's final paragraph:   "...the date of the injury.  If in fact a single injury caused this disc pathology it would most likely be between mid 2004 and mid 2009."

In mid 2009 the applicant terminated rewarding employment which she valued in circumstances which Mr Matthews, appearing for the respondent, characterises as part of a picture of the applicant being fully aware of the appropriateness of mounting a claim arising out of the accident, given the picture that she presented to Dr Todman of persistent neck pain and over the years since the accident constant and steady pain with minor flare-ups from time to time related to neck movements, postures and activities.  Whereas previously she was very active in sports and other day-to-day physical tasks, he says, she found that she had to be very careful to avoid aggravating her neck pain.  She had periodic treatments with chiropractor and physiotherapy practitioners over the years.  She took analgesics when required.  Mostly, however, she learned to live with pain and its limitations.

Dr Todman then records a spontaneous flare-up in pain in August 2010 which led to further X-rays being performed and the radiologist commenting that there was evidence to suggest a previous neck injury.  There was an MRI scan.  Dr Todman notes that since this flare-up the pain has gone to a higher level.

I don't find the inconsistency which Mr Matthews asserts between what Dr Todman reports on the basis of information from the applicant and what she says in her own affidavit.  The case she presents, in my view, is that it was the August 2010 flare-up which revealed a concerning level of painful and potentially disabling symptoms of a kind to make litigation appropriate when it would not have been before.

The cessation of employment referred to - indeed, employment which started on the very day of the accident, as it happens - has not led to the applicant ceasing her employment.  She's continued to work, tolerating whatever difficulties her back creates for her, albeit in a number of different employments.  The court accepts her explanations for those changes which, in one case, anticipated inability to get on with new owners of an employer business.

The court has been treated to a fairly detailed examination of the applicant's medical history which reveals at certain times flurries of attendances on practitioners of various kinds, GPs, physiotherapists, chiropractors and masseurs.  In addition to that, she says that there were many more treatments, which she regards as medical, from masseurs and the like of the kind operating in locations within shopping centres.  That's done on a cash basis without records being kept and explained by the applicant on the basis of her no longer having private health insurance which would cover the kind of treatment otherwise.

Both counsel refer to the well-known statement of Macrossan J in Moriarty v Sunbeam Corporation Limited [1988] 2 QdR 325 at 333 which refers to the newly learnt fact or facts which the Act focuses on in the context of a would-be plaintiff appreciating that he had "a worthwhile action to pursue and should in his interests pursue it".

I find nothing unreasonable in the way the applicant has managed her treatment over the years. I accept that the August 2010 flare-up was of a different order of severity to those that had preceded it over the years; that investigations by radiologists which had not previously been appropriate or called for did become appropriate and revealed to the applicant for the first time the significance of the March 2005 injury. As it happens, it was the radiographer who introduced the topic of a claim based on the accident and I think ventured the view that it was a pity the applicant was too late. With alacrity she consulted solicitors, something she had not done before. They have done what they could to get a claim underway for purposes of the Motor Accident Insurance Act 1994. Unsurprisingly, they haven't met with cooperation from the respondents in that regard.

A second fact became known to the applicant at about the same time, namely, the identity of the vehicle which can be seen as the cause of the accident, thanks to an improperly secured load, and its driver.  No one was able to identify it at the scene.  The applicant discussed that matter with Constable Poon who left with her her business card endorsed on which was a number identifying the incident.  The purpose of that was so that the topic of identifying the blameworthy vehicle and driver could be pursued.  As it happens, the applicant's interest in those matters at the time when she had no thought of pursuing a personal injury claim was in relation to the damage to her vehicle.  It could be expected that her insurer would want details of other vehicle involved in the incident.  She was concerned to avoid the apparent injustice of having to bear a significant excess in respect of damage in an incident she was not responsible for.  Her insurer, Suncorp, ultimately waived the excess.

The applicant did pursue with Constable Poon by telephone the identification issue but was told nothing had been discovered yet.  I'm satisfied that she's correct in her affidavit when she says that some weeks later she inquired again and spoke to another police officer giving identification details for the incident and was told that nothing had happened.  I'm satisfied that she was given and accepted intimations from the police that she would be notified if anything of interest eventuated.  In fact, the police within a day or so of the accident identified the relevant vehicle and driver.  The applicant was not told.

The applicant's solicitor, Mr McMahon, with his expert knowledge of these matters, had little difficulty with the aid of the information on the business card in obtaining a copy of the police accident report which contained the relevant details.  It may or may not have been the case that a more determined pursuit of the police by the applicant over the years would've unearthed the information that Mr McMahon got so easily.  However, she did not have it in mind to pursue a claim like the present one.  She concedes that over the years she has wondered to herself whether the police ever identified the driver.  I do not think it was incumbent upon her to be aware of the possibility of a claim again the Nominal Defendant.

In my opinion, this additional circumstance of identifying the appropriate defendant does qualify as a material fact of a decisive character to support the present application.  The applicant's circumstances were such that it was not reasonable for her to be taking steps to discover that material fact until around August last year when she discovered the other material fact to do with revelation of the implications of the condition of her back.

We are still within 12 months of the applicant's discovery of those material facts but only by days. For purposes of section 31B there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation. The court ought to order that the period be extended.

...

HIS HONOUR:  Orders as per paragraphs 1, 2, 3 and 4 of the application taking the earlier date in paragraph 2.  Costs reserved.

I might observe of the matter of Staatz v Guillinan [2011] QDC, which was an example among the authorities Mr Matthews placed before the court on which he placed particular reliance, that that seemed to me a very different case because the unsuccessful applicant there had on at least two occasions at early dates been told by a kidney specialist that his troubling symptoms were not as the general practitioner and the applicant surmised attributable to the applicant's kidney problems but rather to his back.

I should've mentioned in the reasons I gave a little while ago that in debate with counsel the proposition was accepted that the real test of whether the court, assuming it has a discretion to grant leave under section 31, ought to grant it at all doesn't come down to comparing relative prejudice to the parties (which obviously befalls the applicant, if she fails, but was not shown to afflict the respondents, should she succeed), but depends on to whether it's possible to have a fair trial on the basis of the delay that has occurred since the accident.

Nothing has been placed before the court to cause it to be troubled about the availability of a fair trial here.  Even some of the evidence that is not presently available to do with the shopping centre practitioners of massage and the like, may to an extent be assembled by the time of trial, if one is necessary, and perhaps strengthen the applicant's claim that it's the 2005 accident that causes her present problems rather than intervening causes mentioned such as playing golf too strenuously or doing too much housework.

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