Quick v Tyco Australia Pty Limited

[2006] QSC 351

SUPREME COURT OF QUEENSLAND

CITATION:

Quick v Tyco Australia Pty Limited [2006] QSC 351

PARTIES:

GREGORY JOHN QUICK

(Applicant)

AND

TYCO AUSTRALIA PTY LIMITED

(Respondent)

FILE NO/S:

S3 of 2005

DIVISION:

Townsville

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Townsville

DELIVERED ON:

24 November 2006

DELIVERED AT:

Townsville

HEARING DATE:

16 November 2006

JUDGES:

Cullinane J

ORDER:

Application dismissed.

CATCHWORDS:

LIMITATIONS OF ACTION – PERSONAL INJURIES – EXTENSION OF TIME – application for order pursuant to s31 Limitations of Actions Act 1974 that the period of limitation be extended – where the applicant sustained injuries in the course of his employment – whether the applicant can show that the material fact of a decisive nature relied upon was within his means of knowledge prior to the relevant date.

COUNSEL:

Mr M. Drew  for the Applicant

Mr A.T. Moon  for the Respondent

SOLICITORS:

Ruddy, Tomlins and Baxter, Townsville, for the Applicant

Roberts, Nehmer, McKee for the Respondent

1. This is an application for an extension of the limitation period under the Limitationof Actions Act 1974 as amended.

1. The Applicant who was born on 18th September 1969 has instituted proceedings against the Respondent by claim on 6th December 2004.  The relevant date then for a consideration of whether the material fact of a decisive nature relied upon was within his knowledge or means of knowledge is 6th December 2003.

1. There was no argument that the Applicant had not satisfied the requirements of s.31(2)(b) nor was it contended that there was any discretionary considerations which might lead to the refusal of the application if the Applicant otherwise satisfied the requirements of the Act.

1. The Applicant sustained an injury to his lower back on 16th January 2001 in the course of his employment with the Respondent. He was at that time an electrical trades assistant. He has since undertaken an apprenticeship as an electrician and has qualified.  He commenced the apprenticeship some months after the accident.

1. Following the accident he attempted to see the Respondent's medical practitioner but was unable to do so and instead consulted Dr Hasa at Bluewater.  He swears that Dr Hasa told him that he had a muscular injury to his lower back which nothing could be done about and which would in due course resolve.  He was told that because of the heavy elements of the work he was doing this might take a significant period.

1. The Applicant learnt in the first part of 2004 after consulting Dr Jiang and having a CT scan taken that he suffered a disc protrusion at the L5/S1 level which occurred in the accident, the subject of the action.

1. The Applicant had a little earlier been told by a chiropractor who had arranged for x-rays to be taken that there was narrowing of the disc space in his spine and it was as a result of this that he went to see Dr Jiang.

1. Between those two dates, 16th January 2001 and 15th April 2004 when he saw Dr Jiang the Applicant had not seen a medical practitioner. He had however sought treatment from a number of sources.

1. The chronology which was handed to the court shows the number of occasions upon which he consulted masseurs, acupuncturists, osteopaths or chiropractors.  I will attach a copy to these reasons for judgment.

1. As will be seen there were significant periods during which he did not seek any of this treatment (8^th March 2001 to 11^th April 2002; 22^nd June 2002 to 15 April 2003).

1. Dr Maguire, an orthopaedic surgeon saw the Applicant on 27th January 2005 and prepared a report that is before the court.

1. The Applicant successfully appealed to the Industrial Magistrate at Townsville against a refusal to accept his injury for compensation purposes.  He was cross-examined about some of the evidence he gave in these proceedings and he accepted that what was put to him was both correct as to what he had said and factually correct.

1. Initially it would seem that although he suffered significant pain after the accident the pain settled down to being intermittent and not of a particularly severe level.

1. It started to increase in severity in about mid 2002.  At this time he became aware of pain in his left leg and hamstring.

1. The various treatments he sought produced only temporary relief from his symptoms.

1. He says that he nonetheless proceeded upon the basis that what Dr Hasa had told him was correct, namely that he had a muscular injury which nothing could be done about it and in due course would resolve.

1. Dr Maguire says that appropriate investigations made in 2001 would have detected the damage to the disc although the prolapse itself may not have occurred by that time. By the time the symptoms developed in the leg, the damage to the disc would have been quite apparent on appropriate investigation.

1. The material fact of a decisive nature relied upon is that he became aware at the earliest when Mr Bauer, the chiropractor had the x-rays of his back taken and pointed out that there was narrowing of the disc space and that the injury which he had sustained was more than muscular.  He says that he thinks this occurred on the 22nd December 2003.

1. This is of course after the relevant date.

1. The material fact of a decisive nature thus relied upon is the nature of the injury which the Applicant suffered and the fact that it is likely to be permanent in nature rather than a temporary muscular injury which he had previously thought was the case.  He is concerned about the impact of this upon his capacity to work in the trade he has qualifications for.  He is now working for a private contractor.  Dr Maguire has expressed the view in his report that he may require job retraining and alternative employment in the future.

1. Thus any action against the Respondent is likely to be a worthwhile one. The issue which plainly enough arises is whether prior to the relevant date it was within the means of knowledge of the Applicant that he was suffering from a prolapsed disc.

1. Whilst the Applicant placed emphasis upon what Dr Hasa had told him and contended that he was entitled to proceed upon the basis of that advice seeking assistance as and when he found the need to, the Respondent emphasised the deterioration in the Applicant's condition contrary to what Dr Hasa had told him and contended that a reasonable person in the Applicant's position would have taken steps to consult a medical practitioner about this deterioration. Had he done so appropriate investigations would have established that he had a prolapsed disc which in turn would have lead to his seeking legal advice and the institution of proceedings.

1. The Applicant has the onus of showing that the material fact of a decisive character relied upon was not within his means of knowledge prior to the relevant date. 

1. The matter does not involve any unusual question or special point of principle.  Rather it involves the application of established principle to the uncomplicated facts of the case.

1. The onus of proof rests upon the Applicant.

1. Whilst it is possible to sympathise with the Applicant who persisted in his work, notwithstanding what must have been considerable difficulties and did so upon the basis of what he had been told in 2001 it is in my view impossible to avoid the conclusion that once it became apparent that his condition was deteriorating with symptoms in the hamstring and leg rather than improving as he had been led to believe it would, the Applicant ought reasonably to have sought further medical advice as to his condition. His failure to do so is, in my view, fatal to this application.

1. The result is I am not persuaded that the material fact of a decisive nature was not within the Applicant's means of knowledge prior to the relevant date.

1. The application is dismissed.