Palmer v Peninsula Care Pty Ltd
[2000] QDC 2
•21 January 2000
DISTRICT COURT OF QUEENSLAND
CITATION: Palmer & Anor v Peninsula Care Pty Ltd [2000] QDC 002 PARTIES: CAROL MARY PALMER & Anor.
PENINSULA CARE PTY. LTD.
FILE NO/S: 141 of 1997 DELIVERED ON: 21 January 2000 DELIVERED AT: BRISBANE HEARING DATES: 13 and 19 January 2000 JUDGE: SKOIEN S.J.D.C. ORDER: Extend limitation period; leave to amend claim.
CATCHWORDS: Pre-existing back disability; whether plaintiff/applicant should have known of it. COUNSEL: Farrell for plaintiff/applicant; Downes for defendant/respondent.
SOLICITORS: Murphy Schmidt for plaintiff/applicant
Bain Gasteen for defendant/respondent
This is an application by the plaintiff for orders that:
(i) The time limited for the institution of proceedings with respect to a cause of action for damages for personal injury arising out of her employment with the respondent/defendant between March 1992 and 2 March 1995 be extended;
(ii) That she have leave to amend the statement of claim accordingly;
The Legislation
The legislation which permits in appropriate circumstances the Court to extend the limitation period is, relevantly, contained in s.30 and 31(2) of the Limitation of Actions Act 1974. Those provisions are:
“30 For the purposes 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) ‘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, as the case may require;
(d) 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) as 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.”
“31 (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 the 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 one 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 Chronology
The plaintiff was employed by the defendant from in or about March 1992. On 2 March 1995 she suffered an injury to her spine during a lifting incident. She consulted a general medical practitioner who told her that the lift she performed caused a bulge in an inter-vertebral disc, and she accepted that.
The plaintiff consulted solicitors in regard to her injury on 9 September 1995. A medical report dated 8 February 1996 was obtained in regard to her injury from Dr. Gillett, orthopaedic surgeon. Dr. Gillett expressed the opinion that the plaintiff suffered an injury to the spine as a result of the incident of 2 March 1995. I set out excerpts from his report:-
“It is my opinion that Carol Palmer sustained injury to her lumbar spine in a work related accident on the above date. The history of lifting is consistent with putting stress on the spine causing injury to the spine.”
“In my view, the source of her ongoing symptoms can be regarded as derangement of the lumbro-sacral disc. It is my view that the disc was degenerate, related to the normal ageing process at the time of the injury.”
“Had she not had this accident on this date, she was at risk at any stage in the future for this to occur in this type of work. If she was involved in normal lifting practices regarded in the safe range, she may have gone some time before her back became symptomatic. It may have been some three to five years before she developed some back symptoms, then some five to seven years before she would have had to seek lighter employment. This would date from the time of the accident. She may have been able to obtain lighter employment within her career path.”
“Based on her current assessment, I believe she has been left with a permanent partial disability from the effects of this accident of 7.5% loss of bodily function and I would assess overall her disability at this point would be some 10% loss of bodily function.”
Proceedings were commenced in this Court on 15 January 1997. The plaint alleged negligence in relation to the system of work provided by the defendant as it related specifically to the accident of 2 March 1995. The defendant delivered its entry of appearance and defence on 19 June 1997. The plaintiff delivered her statement of loss and damage on 14 September 1998.
The plaintiff consulted various other doctors and health professionals for rehabilitation purposes and medico-legal purposes. She was not told anything to cause her to suspect anything other than that the lift she performed on 2 March 1995 was the sole cause of her severe and disabling back condition.
On 15 October 1998 the plaintiff provided a further statement to her solicitors. The apparent reason for this was the caution of her solicitor who was experienced in cases of this type. This statement dealt, for the first time, with the intensity of the plaintiff’s pre-accident work load. The plaintiff instructed her solicitors that she estimated her daily workload to include 400 “double-lifts” (lifts with another nurse) per day. In view of those instructions, her solicitors obtained a further report by Dr. Gillett, dated 14 January 1999 dealing specifically with her pre-accident work history. I set out some excerpts from this report:
“… this repetitive lifting would certainly contribute to the overall degeneration within her spine. This would account for some of the pre-existing degeneration within her spine.”
“Taking into account in relation to these factors, I would suggest that had she not had these factors as well as the injury, then it is probable that she would not have had any symptoms relating to her spine just due to the ageing and degenerative process for a period of probably five to seven years. She could then seek lighter employment at seven to nine years from the date of the injury.”
“I would still assess her impairment of function as some 10% and perhaps a further 0.5% of her overall impairment would be related to the working events as described at that level of activity. That is, 2% relate to pre-existing problems prior to commencement of employment at that institution and the rest remains to the effects of the injury and its contributions of the working practices.”
Thus Dr. Gillett’s revised opinion is that the onset of disabling symptoms was advanced some two years because of the heavy nature of the work she was called in to perform in her occupation. The proposed amendment is sought because any action based on breach of duty by the defendant for events prior to 2 March 1995 is statute barred by s.11 of the Limitation of Actions Act 1974 which provides for a maximum three year period between the date of the arising of the cause of action and the commencement of litigation.
The plaintiff was cross examined during the application before me with a view to establishing when she first became aware of any trouble in her back. She said that late in 1994 (probably about September) she arranged to alter her geriatric nursing duties from the men’s ward to the women’s ward. The male patients were generally much heavier than the women patients. She also arranged to take her leave in February 1995.
The cross-examination included this:-
“All right. So end of 1994 or just before you went on your holidays you arranged to change from the men’s ward to the women’s ward?—Yep.
And that was because you were experiencing pain in your back and you could no longer tolerate lifting men?— I was having trouble with some of the taller men. They were just leaning – we had to walk and they were leaning on you. I was just tired, yeah.
Well, see, do you agree that you told Dr. Donald grant, the psychiatrist, that your soreness in your back was sufficient to arrange to change from the men’s ward to the women’s ward?-- Possibly, yeah.
So is that statement true?-- Yeah, well, yeah, I think so, yes.
All right. And that the soreness in your back was enough to prompt you to take one month’s holiday at that time?-- I took my annual leave in February.
. . . . . . . . . . .
But the reason for that – one of the reasons for that was the soreness in your back? -- Well, one of the reasons was I was tired, yeah.
No, one of the reasons was the soreness in your back?-- Possibly, yeah.
Is that what you told Dr. Grant?—Well, yeah, I guess I did. I don’t know. I can’t remember.
Well, did you take the holiday because of the soreness in your back?— I would have just taken it because it was annual leave and I was just tired.
So, what you told Dr. Grant is incorrect? -- I can’t remember what I told him actually.
. . . . . . . . .
Well, you saw Dr. Grant, the psychiatrist? -- Yeah.
That was for non-medical problems I assume and you told him that you’d had some back pain for about six months in your lower back, six months prior to 2 March 95? -- Mmm, right.
That prompted you to change from the men’s ward to the women’s ward, that prompted you to take a holiday?- - Mmm.
Why didn’t you tell any of the other doctors that, or did you?-- Well, I don’t know. Maybe they didn’t ask him. I don’t know.
Well, did they take -------
HIS HONOUR: Excuse me. You did actually tell the psychiatrist those things, did you? -- Well, I probably did but I just can’t – it’s quite a ways ago and I’ve been to a lot of doctors and I was on a lot of medication and I was very, very sore.”
. . . . . . .
Yes, Your Honour, thank you. Now you state there in paragraph 7, ‘Dr. McArthur told me and I believed it to be true that my back pain had been caused by a disk in my back bulging due to lifting the resident on 2 March 1995.’ This sentence, ‘This seemed to me to be a reasonable and logical explanation as that was when I started getting lower back pain’, did you start getting lower back pain six months prior to that?-- Yes, that’s right – well, no, I – when you’re working and you’re lifting up people that are heavy you are going to get soreness. It was just from, you know – I mean everyone has it. Everyone was the same with ----
Sorry, go on? -- It would just sort of, you know, lift, be a bit sore, have a cup of coffee, go back and we would feel a bit better and we would do it again.
But you weren’t a bit sore, you had enough soreness and a heavy aching feeling to make you change from the men’s ward to the women’s ward and take a holiday?-- Well, the holiday would have been just my annual leave. I would have had that.
All right. You have agreed with the contents of Dr. Grant’s report where it says it being your back pain was enough to prompt you to take one month’s holiday. So do you agree with that or not?-- Well, I mean, I don’t know. I guess so, but. As for the holiday, that was just annual leave. ……..
But you told Dr. Grant that your back pain was enough to prompt you to take that holiday?-- Well, I don’t know. I mean, I was talking to him and I probably – I don’t know if I said it in that context, I just don’t know – in that context, I don’t know.
So you are not sure if you said this to him or not?-- Look, I really can’t remember.
Can you remember -------?-- I can’t even really remember where he is, I’m sorry.
I’m sorry, you can’t remember when -----?-- I can’t even remember him, I’m sorry.
All right. So we will just go back. Looking at the paragraph on page 5 in Dr. Grant’s report, do you agree with it or not? -- I suppose so, yeah.
So you do agree with it? -- Well, I have to, yes.
So your back soreness was enough to prompt you to take one month’s holiday at the end of 1994? -- I guess so, yeah.
HIS HONOUR: Except the holiday was in February 1995? -- That’s right.
MISS DOWNES: I’m sorry, so the back soreness was enough to prompt you to take some leave, your annual leave?-- Yeah, I guess so, yeah.
So you didn’t start getting lower back pain on 2 March 1995, you started getting lower back pain three months earlier in September 1994 – sorry, not three months earlier, six months earlier?-- Yeah – Oh well, I had the soreness in my back, I guess, a heavy feeling in my back but it wasn’t like the injury pain, it was completely different.
All right, and that came on during the shifts?—Yes.
When you were lifting 100 kilo men or 80 kilo men? -- And women.
And woman, without mechanical aid? – Yes.
. . . . . . .
So going back to your affidavit, your affidavit in paragraph 7, 1 December, where it says 2 March 1995 is when you started getting lower back pain, that statement is not quite right, is it?-- Well, the back pain that I had on March the second when I hurt my back was different to the tiredness I felt when I was working. The pain is two different things.
Yes. Could the witness please see her affidavit - it is sworn 10 January 2000.
. . . . . . . .
Paragraph 8, ‘Prior to 2 March 1995, I had never consulted a doctor or anyone concerning back pain as I didn’t consider there was anything wrong with my back.’? -- Yes.
“Any soreness I felt was minor and temporary and not such as to cause me concern or to require treatment.’? -- Yes.
That statement is not quite true, is it? -- It is as far as I can justify, yes.
Are they your words in the paragraph – not such as to cause you concern but you change from the men’s ward to the women’s ward? – Because I was tired.
So, so you didn’t change because of your back pain, you changed because you were tired? -- Yes.
All right. So what you told Dr. Grant is incorrect?-- I sort of – the tiredness in my back and shoulders and my legs, I just put it down to being just tired. I mean, I was due for a holiday, and, yeah, that was it.
That’s what you put it down to but you changed from the men’s ward to the women’s ward because of the pain in your back. That was one of the reasons?-- I can’t remember. I know I was tired and I had – I had a sore back and sore legs.”
. . . . . .
“Nowhere in either of those documents does it say you were tired. In Dr. Grant’s report it says you changed wards because of the soreness in your back and in this affidavit you say your back – ‘any soreness I felt was minor and temporary and not such as to cause any concern’. Have you told Dr. Grant that you changed wards and you told Dr. Grant that you took a holiday because of this back pain? So it did cause you concern, didn’t it?-- I don’t know. I guess so a little bit but I changed because I was – I had a sore back, I had – I was tired.
So it was such to cause you concern?-- A little bit, I guess.
In re-examination she said:
MR. FARRELL: Mrs. Palmer, could you describe in your own words now the pain that you experienced in your back prior to the lifting accident on 2 March 1995?-- Tiredness, sometimes a little bit of numbness in my back but that was just it. Just tiredness. I guess that’s the way I thought of it at the time, yeah.
. . . . . .
And what time would that ache dissipate, what time would it disappear?-- Sometimes as soon as I finished work, you know, and I’d walk out the door and think, oh, great, that’s over, yeah. Sometimes when I went home and had a shower, you know, that sort of thing.
Did you see a doctor, to your recollection, about that ache?-- No.
Why not?-- After I’d finished work it usually – you know, if I had a shower or just sort of rested for a few minutes it would pass, and I thought it – everyone had it.
When you say everyone had it, did you discuss it with anyone else?-- Well, not really. You’d be just sort of sitting around and everyone would say, oh, I’ve got a sore back today or I’m tired – you know, I’m tired or I’ve got sore legs or whatever. We worked hard. We worked very, very hard.
How many years experience as an assistant nurse do you have in total?-- In total I would say about 15, maybe a bit – oh, probably a bit – 16, 17 years.
In your experience are complaints of that nature – in your experience are back complaints of that nature unusual with geriatric nurses? -- No, not as tiredness, no, not as soreness.”
She also said that on taking her leave she and her husband drove to Sydney for a holiday, the drive taking two days and that nothing about her health prevented her from taking and enjoying her holiday. She had taken very little sick leave in the period September 1994 to May 1995 and none because of a sore back.
From all of the above, that is the history and the plaintiff’s oral evidence, I conclude on the balance of probabilities that the plaintiff experienced tiredness and soreness in her back at the end of her working day. I conclude that it was never sufficiently troubling for her to take time off work nor to consult a doctor or obtain any form of treatment. Rest and a hot shower removed the pain. Such symptoms were experienced by many of the nursing staff and I accept that the plaintiff thought they were part and parcel of the physical nature of her work.
It is noteworthy that Dr. Sampson, an orthopaedic specialist retained by the Workers Compensation Board, in his report dated 29 May 1995 (exhibited to an affidavit of M.E. Edwards filed on 12 January 2000) accepts without comment her report that ‘during her 25 years in nursing she had had mild attacks of mechanical-type backache, not requiring time off work. These were often associated with the heavy nature of her work at the old people’s home.” And he said that in his opinion the recent lifting injury had stirred up her “chronic degenerative backache” without suggesting that this condition was work-related. He thought she would get better and that her return to work would be “an excellent idea”.
That indicates to me that Dr. Sampson, as did Dr. Gillett in February 1996, accepted that a history of non-disabling aches and tiredness in the back for one doing the work the plaintiff did was unsurprising and did not call for further investigation. From a lay background it would not surprise me if the average person, doing that kind of work, experienced the symptoms which the plaintiff described. So the plaintiff’s belief, before March 1995 that she had no specific problems with her back was not only genuinely held by her, it was also the belief of orthopaedic surgeons.
In her submissions Miss Downes, counsel for the defence, did not specifically argue that Dr. Grant’s statement that the plaintiff told him that the back soreness was enough to prompt her to take a month’s holiday indicated knowledge by her that she was experiencing more than mere routine muscular aches and fatigue. In my view, on the evidence, it would not be proper to reach that conclusion. The plaintiff impressed me as truthful, trying to recall accurately. Her evidence was not that the back trouble “prompted” the taking of the holidays. She simply took them as they were due. She was able to enjoy her holidays without any restriction because of back pain which supports her denial of any need to take the holiday to recuperate. Dr. Grant was not called and cross-examined so I could not find positively that the word “prompted” (which I think was probably his word rather than hers) was the word which fitted her description of the events to him. No doubt she was happy to take the break to give her back a rest but that is not at all the same thing. When Dr. Grant’s recorded comment was put to her, her reaction as I gauged it, fell into the ‘well, if the doctor says that I suppose it must be true” category. Despite that, her overall position, I am satisfied, remained that she merely appreciated the opportunity to rest her weary body.
Miss Downes accepted that the plaintiff had established the existence of a material fact relating to the plaintiff’s cause of action, within s.30(a). And she also accepted that the material fact (that the plaintiff’s duties exposed her to the risk of back injury and caused spinal deterioration between March 1992 and March 1995) was of a decisive character. However she submitted that the material fact was within the means of knowledge of the plaintiff at least during the period September 1994 to March 1995.
Whether a fact is within the means of knowledge of a person is governed by the provisions of s.30(d). It is not suggested that before she heard of Dr. Gillett’s revised opinion the plaintiff actually knew that she had an employment-related back disability dating back to before March 1995 but it is submitted that she had failed to “take all reasonable steps to ascertain the fact” as s.30(d)(ii) requires. Read with s.30(b) and (c) this incorporates a failure to have sought appropriate advice and acted upon it. Here, the appropriate advice could only be advice from a solicitor and from an orthopaedic surgeon. The test is an objective one, to be assessed according to the standards of the reasonable person.
I fail to see how a reasonable person in the plaintiff’s position can be said to have failed to meet that statutory test. She had experienced backaches but not, as I have found, of sufficient severity or persistence as to warn her that they suggested the presence of anything sinister. So her failure to consult a solicitor or an orthopaedic surgeon before March 1995 was not an unreasonable omission by her at that stage. Then in March 1995 she suffered a traumatic injury. She promptly sought medical attention (including Workcover retained specialists) and within six months went to solicitors. Thereafter she has acted on solicitors’ advice and has seen medical specialists as required by her solicitors as well as by the defence.
The further statement she gave in October 1998 because of the exercise of caution by her solicitor went into great detail on the work she did. I note that even in that statement she did not complain of any substantial or significant pre-March 1995 back difficulty. It was only when Dr. Gillett read the statement that he (or anyone else) concluded that the degenerative spine was related to the pre-March 1995 work.
So the plaintiff, as would a reasonable person, went promptly to solicitors and to doctors in relation to an injured back. A reasonable person would then surely consider that her legal and orthopaedic investigations were properly in train. She was questioned by solicitors and doctors and nothing suggests to me that she was not frank with them. I do not consider that a reasonable person in those circumstances would try to direct the course of the investigations of her solicitors and the retained doctors and if any of these professional people failed to be as vigilant as they might have been that fault is not to be laid at the plaintiff’s door. See Randell v. Brisbane City Council (1984) 2 Qd.R.276; Neilson v. Peters Ship Repair Pty. Ltd. (1983) 2 Qd.R.419. Unlike the usual case of this type, where an applicant has not sought legal or medical advice within time, or who seeks to bring into an action, out of time, a new and unrelated complaint, this plaintiff had done what any reasonable person in her position would do.
Counsel told me that I could accept 8 March 1999, when the plaintiff was forwarded a copy of Dr. Gillett’s revised opinion, as the date when the material fact of a decisive nature became known to her.
It was not argued that the plaintiff, other than for the limitation point, had no arguable cause of action.
Conclusion
The plaintiff has satisfied the requirements of ss.30 and 31. The limitation period should be extended for one year after she first became aware of “the material fact of a decisive character”, that is, until 8 March 2000. I give leave to amend the claim within that time.
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