Reeves v Thomas Borthwick & Sons (Australia) Pty Ltd

[1995] QCA 339

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 96 of 1995

Brisbane

BeforeFitzgerald P.

McPherson J.A.

Moynihan J.

[Reeves v. Borthwick & Sons (Aust.) P/L.]

BETWEEN

LEO ALAN REEVES

(Plaintiff) Respondent

AND

THOMAS BORTHWICK & SONS (AUSTRALIA) PTY. LTD.

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 11th day of August 1995

This is an appeal by the defendant against an order in favour of the plaintiff

extending until 15 February 1995 (which was the date on which the writ issued) the

period of limitation for commencing an action against the defendant for damages for

personal injury arising from an incident that occurred on 10 April 1991.

The defendant conducts meatworks at Baker Creek near Mackay, at which the

plaintiff has been employed as a boner and slicer since about 1985. In the course of

his work on 10 April 1991 he went to pick up a bull brisket which had come off a side

of beef which he was boning. The brisket weighed about 20 to 25 kgs. and he picked

it up by bending down and forward, placing his left hand underneath and his right hand on top if it, and then attempting to throw it to another employee whose job it was to slice

it.

In executing this manoeuvre the plaintiff felt a sudden pain in his lower back. He

reported to the nursing sister at the meatworks, and later consulted his medical

practitioner. He was referred to physiotherapy and after receiving workers

compensation for some days he returned to work on 18 April 1991. Apart from

discomfort, he did not have further trouble with his back until he slipped at work on 27

June 1994, as a result of which he was absent from work again for some time. He was

involved in a further incident in which he hurt his back at work in December 1994,

resulting in his being off work again until January 1994. At the date of his affidavit in

April 1995, he was, contrary to medical advice, still working as a boner, but was

experiencing pain.

The plaintiff was examined by Dr David White, an orthopaedic specialist on 14

March 1995, and x-rays were taken of the lumbosacral spine. According to Dr White's

report of the same day, the x-rays showed severe lumbar spondylosis, which was long

standing and severe, and appeared to antedate the plaintiff's first complaints in 1991.

The report went on:

"The incident of 1991 and subsequent injuries would have caused an aggravation of his pre-existing degenerative change and may, in view of his lower limb symptoms, have caused a degree of protrusion of the lumbosacral disc.

This however could only be established by further investigations which, in the absence of considerations of surgical treatment, are not indicated.

I would regard him as permanently unfit for the type of work that he is doing and any other physical labour involving prolonged bending, prolonged standing, prolonged sitting or heavy lifting. He would be suitable for some lighter, semi-sedentary duties."

Dr White estimated the permanent partial disability of the plaintiff's body as a

consequence of his back condition to be of the order of 20%.

In making the order extending the limitation period the learned primary judge

said:

"It seems to me that until Mr Reeves saw Dr White's report he thought that the incident in 1991 had no lasting effect. Doctor White's opinion is that it possibly had lasting effect that this is sufficient to constitute that as a material fact within the definition that I've referred to."

On appeal the defendant submitted that, accepting the judge's finding to that

effect, the plaintiff had failed to establish his right to have the limitation period extended

under s.31 of the Limitation of Actions Act 1974. The ordinary limitation period for a

case of this kind is three years; but s.31(2) enables the period to be extended in the

following circumstances:

"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 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."

As can be seen, s.31(2) applies to a person "claiming to have a right of action".

However, in order to attract a favourable exercise of the discretion conferred by the

subsection, it is necessary that both of the matters specified in paras.(a) and (b) should

appear. In the present case, the effect of the judge's finding was that in Dr White's

opinion the 1991 incident had "possibly" had a lasting effect on the plaintiff's spinal condition; that it was this "lasting effect" that was "a material fact of a decisive character

relating to the right of action"; and that it was a fact which was not within the plaintiff's

knowledge or means of knowledge until he found out about it from Dr White's report.

That being so, it was submitted on appeal that the plaintiff's application ought to have

failed because, on the judge's finding, the 1991 incident was no more than a possible

cause of the plaintiff's back condition, and so was incapable of constituting a "material

fact" for the purpose of s.32(2)(a): cf. Broken Hill Proprietary Company Ltd. v. Waugh

(1988) 14 N.S.W.L.R. 360, 369, where Clarke J.A. said that:

"the possibility of the occurrence of negligence, or the possibility of a causal nexus, is not sufficient of itself to qualify as a material fact relating to a cause of action ...".

The defendant's argument on appeal assumed that a person who applies for an

extension is bound under s.32(2)(a) to prove affirmatively both that a material fact

existed and that it was outside his means of knowledge at the relevant time; and

consequently that the application to extend time must fail unless the material fact is, on

the balance of probabilities and not as a mere possibility, proved to have existed.

Another and not implausible approach to the subsection is that the present question

arises under s.31(2)(b), which requires an applicant for an extension to show that there

is "evidence to establish the right of action apart from a defence founded on the

expiration of a period of limitation". As to that, Macrossan C.J. has observed that it is

"probably accurate enough to say that an applicant will meet the requirements imposed

by s.31(2)(b) if he can point to the existence of evidence which it can reasonably be

expected will be available at the trial and which will, if unopposed by other evidence, be

sufficient to provide his case". See Wood v. Glaxo Australia Pty. Ltd. [1994] 2 Qd.R.

431-435.

If the test propounded by Macrossan C.J. is applied, then the plaintiff in this

instance has failed to satisfy it. The opinion of Dr White, on which the primary judge

acted, was that it was no more than possible that the incident in 1991 had a lasting

effect on the condition of the plaintiff's back. His opinion to that effect is related to the

issue of causation of the injury and as such is something which the plaintiff would have

to establish at trial. Merely proving at trial that the 1991 incident was a possible cause

of the plaintiff's prevailing back condition would, even if it were not opposed by any

other evidence, not suffice to prove his case. He would need to establish that element

of his cause of action on the balance of probabilities. Dr White's opinion would, on the

view which the learned judge formed of it below, not satisfy that requirement in para.(b)

of cl.31(2).

It is, however, probably not helpful in a case like this to consider the

requirements of paras.(a) and (b) of s.31(2) in isolation from each other. Section

31(2)(a) requires that it be shown that "a material fact of a decisive character relating

to the right of action" was not within the means of knowledge of the applicant. Section

30(b) explains that material facts relating to a right of action are of a decisive character

only if a reasonable person knowing those facts, and having taken appropriate advice,

would regard them as showing:

"(i) that an action on the right of action would ... have a reasonable
prospect of success ...".

Knowing that Dr White considered that the present disabled condition of the plaintiff's

back was "possibly" caused by the 1991 incident would not lead a reasonable person

to regard it as showing that an action on any right of action which the plaintiff might

posses would have a reasonable prospect of success. It would, on the contrary, lead or tend to the conclusion that the plaintiff's prospect of success in an action against the

defendant was, on the material presented in support of the application, slender.

It is not a function of s.31(2) to enable such an action to be instituted or

prosecuted when, quite apart from any defence of limitation that may be raised, it will

probably not succeed. In consequence, the plaintiff's application to extend time ought

not to have been granted.

The appeal should be allowed; the order appealed from should be set aside; the

plaintiff's application should be dismissed with costs. The plaintiff is ordered to pay the

costs of the appeal. Because, however, the point involved is novel and, to some extent

at least, one of law, there should be a certificate under the Appeal Costs Act.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 96 of 1995

Brisbane

[Reeves v. Borthwick & Sons (Aust.) P/L.]

BETWEEN

LEO ALAN REEVES

(Plaintiff) Respondent

AND

THOMAS BORTHWICK & SONS (AUSTRALIA) PTY. LTD.

(Defendant) Appellant

Fitzgerald P.
McPherson J.A.

Moynihan J.

Judgment delivered 11/08/95

Reasons for judgment by the Court

APPEAL ALLOWED. ORDER APPEALED FROM SET ASIDE. PLAINTIFF'S APPLICATION DISMISSED WITH COSTS. PLAINTIFF ORDERED TO PAY COSTS OF THE APPEAL; AND CERTIFICATE GRANTED UNDER THE APPEAL COSTS ACT.

CATCHWORDS	PERSONAL INJURIES - Application for extension of time - Section 31(2) Limitation of Actions Act 1974 - Whether there was a material fact of a decisive character - Whether action would have a reasonable prospect of success - Wood v. Glaxo Australia Pty. Ltd. [1994] 2 Qd.R. 431.
Counsel:	M.A. Wilson Q.C. for the respondent
I. Molloy for the appellant
Solicitors:	Macrossan & Amiet for the respondent
Wallace & Wallace for the appellant
Hearing Date:	2 August 1995