Ryan v Japin

[1998] QSC 268

IN THE SUPREME COURT

OF QUEENSLAND
  No. 6532 of 1998

Before Mr Justice Ambrose

[Ryan v Japin & Anor]

BETWEEN:

MICHAEL THOMAS RYAN
  Plaintiff

AND:

ISOBEL JAPIN
  First Defendant

AND:

FAI GENERAL INSURANCE COMPANY LIMITED
  Defendant by Election

CATCHWORDS: CIVIL LAW - Application for extension of time under s. 31 of the Limitation of Actions Act 1974 - whether plaintiff had acted reasonably in refraining from instituting proceedings until after he received fresh specialist advice.

Limitation of Actions Act 1974
Moriarty v. Sunbeam Corp [1988] 2 Qd.R. 325

Ipswich City Council v. Smith (unreported Court of Appeal No. 5443   of 1997 delivered 29 August 1997)

Counsel:Mr D. Rangiah for the plaintiff

Mr G. Mullins for the defendant

Solicitors:Maurice Blackburn & Co for the plaintiff

Clayton Utz for the defendant

Hearing Date:              20 November 1998

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Delivered the 27th day of November 1998

1. This is an application by a plaintiff for an extension of time under s.31 of the Limitation of Actions Act 1974.

2. The plaintiff commenced his action by Writ of Summons issued on 17 July 1998.

3. Pleadings have been delivered and a defence is raised based on the Limitation of Actions Act hence this application.

4. The plaintiff suffered injury when a motor vehicle was driven by the first defendant  into a stationary car in which he and other persons were occupants on 28 January 1993. The impact was a quite severe one and the plaintiff and two others in the stationary car were subjected to forces which apparently left each of them with some discomfort.

5. The plaintiff had suffered an injury to his neck when playing football in 1985. On 8 April 1985 he attended Royal Brisbane Hospital. It is clear that he received a significant injury to the neck and he obtained treatment for it over subsequent years. On 5 November 1990 he again attended Royal Brisbane Hospital with neck pain attributable to his football injury five years previously.

6. The plaintiff had received treatment for various ailments - including neck pain - from his local general practitioner, Dr Costello.

7. Although the plaintiff was conscious of a continuation of symptoms from his injured neck for a few months subsequent to his involvement in the motor collision on 28 January 1993, they  were not significantly more discomforting than they had been for years before that motor vehicle accident. He spoke to Dr Costello on a number of occasions informing him of the “shake up” he had received in the motor collision in March 1994. Dr Costello advised him that the pain from which he was then suffering was simply the result of  disc degeneration which he suffered as a consequence of his 1985 football injury.

8. The plaintiff was receiving treatment from various masseurs, physiotherapists, acupuncturists, etc. for  relief of his neck symptoms; it was suggested to him by one or more of them, that those symptoms might be due in part to injury he received in the motor vehicle accident. Doctor Costello however advised that the neck symptomology simply resulted from the continued disc degeneration resulting from the 1985 injury.

9. Eventually the plaintiff obtained a copy of hospital x-rays that had been taken of his neck condition after his football injury in 1985. He took these x-rays to Dr Costello who compared them with later x-rays taken and advised that consideration of all x-rays simply indicated that there was an advancing arthritic condition in the plaintiff’s cervical spine.

10. As a matter of interest, one of the other persons in the motor vehicle injured in the collision took action in the District Court against the first defendant and the solicitor for that person obtained a statement from the plaintiff as a witness. There was a discussion briefly as to whether the plaintiff had suffered any injury and he informed that solicitor that in fact he had suffered a bad neck injury in a football accident and the solicitor expressed the view that it would be pointless for the plaintiff to institute proceedings against the defendant in that event. I would regard this off  the cuff “advice” from the solicitor acting for another person in the car who suffered injury as merely confirming the advice which the plaintiff had already received from Dr Costello and which he subsequently received from him about a year later.

11. Eventually on 19 July 1996 a masseur Baden Pobjoy  from whom the plaintiff sought relief for his neck problems advised that in the course of his professional work he had treated police officers who had suffered neck injury as the result of motor vehicle accidents and suggested that he obtain a referral to a specialist for an opinion as to what, if any, impact the motor vehicle accident in January 1993 had on his neck pain in July 1996. This was the first occasion on which any person had suggested even a possibility of a connection between the plaintiff’s neck pain and his involvement in the motor collision in January 1993.

12. Armed with this advice the plaintiff went back to see Dr Costello who however was on holidays.  Dr Morris another practitioner at the centre from which Dr Costello practised ordered a CT scan of the plaintiff’s neck. Doctor Morris then advised that the CT scan showed a “disc prolapse” and that his neck problems had probably been aggravated to an unspecified extent and referred the plaintiff to see a specialist, Dr Redmond and said that he would be guided by him as to the prognosis for the plaintiff.

13. On 18 September 1996, Dr Redmond examined the plaintiff.

14. On 26 September 1996, a physiotherapist, Mr Mahoney treated the plaintiff and suggested that the plaintiff’s neck pain  may have been aggravated by forces applied in the motor collision.

15. On 28 September 1996 the plaintiff attended the offices of FAI to enquire about his legal position and was advised that it was too late for him at that stage to attempt to pursue any claim against its insured.

16. While all this was proceeding, the plaintiff had attempted to obtain workers’ compensation. At the time of the collision in 1993 he was in fact in the course of his employment with other occupants of the car. Doctor Redmond was retained to supply a report to the Workers’ Compensation Board and he expressed the view that the cause of the plaintiff’s neck symptomology in 1996 was a degenerative condition of cervical spondylosis - perhaps I infer resulting from the injury he had sustained in 1985 playing football - and that if the motor collision had any effect at all, it was a minor one. He noted that radiographs taken in March 1996 indicated “degenerative disc disease at C6-7 level” and referred to a “left sided disc protrusion” at this level. He attributed that it seems to “degenerative disc disease”. It is not clear from the terms of his report whether Dr Redmond attributes any neck pain suffered by the plaintiff to his 1985 football injury. He seems to suggest that the neck pain results simply from “multi level disc disease” which he describes as cervical spondylosis.

17. On 29 November 1996 the Workers’ Compensation Board rejected the plaintiff’s application. 

18. In November 1996 the plaintiff inquired of various firms of solicitors about the possibility of litigating what, if any, effect the motor collision may have had on his neck injury sustained in 1985. By that time of course nearly four years had passed since the collision and the solicitors advised him that he was out of time to make a claim.

19. It was not until 21 January 1997 that the plaintiff obtained a copy of the report which Dr Redmond had sent to the Workers’ Compensation Board. Doctor Redmond did not advise him personally of the conclusions he had reached in his report to that Board.

20. By this time the plaintiff was contemplating attempting to obtain an extension of time within which to commence this action - in spite of all the medical advice he had received that the motor collision at the most had simply caused a minor exacerbation of the 1985 injury. In 1997 he  again pursued the possibility of having his claim for workers’ compensation reviewed and was advised by Workcover Queensland on 28 August 1997 that his claim for compensation could be reviewed if new or additional medical evidence were available - additional to that obtained from Dr Redmond twelve moths earlier.

21. On 3 October 1997 acting upon this advice, the plaintiff consulted a specialist, Dr Day.

22. Doctor Day then compared the 1985 x-rays taken at Royal Brisbane Hospital with the CT scan taken at the request of Dr Morris in August 1996. It is not clear that Dr Redmond had made this comparison. However that may be, Dr Day concluded, on the basis of the x-rays taken subsequent to the plaintiff’s football injury in 1985 that he had suffered a prolapsed disc at the C4-5 level on the right hand side and on the basis of the CT scan taken in August 1996 that he had suffered another and different prolapse on the left hand side of the cervical vertebrae at C6-7 level. It was Dr Day’s opinion that a careful comparison of both x-rays demonstrated that far from the motor collision in 1993 merely “exacerbating” either a degenerative condition of cervical spondylosis or the 1985 injury, it had in fact inflicted a new and significant injury to the other side of the cervical vertebrae at C6-7 level. It was Dr Day’s view that whereas the plaintiff might be regarded as having suffered a 10% loss of bodily function by reason of the 1985 injury, as a consequence of the 1993 injury, his disability had been increased to a 20% loss of function.

23. In March 1998 the plaintiff had Dr Day’s report forwarded to Workcover Queensland with a view to having his claim re-examined. However on 22 April 1998 the applicant’s attempts to have the earlier decision reviewed were rejected. One can only speculate as to the basis for the rejection; perhaps in the light of the difference in expert opinion, the opinion first proffered by Dr Redmond was preferred.

24. On 12 June 1998 the plaintiff consulted his present solicitors and on 17 July 1998, the writ instituting this proceeding was filed. 

25. Unsurprisingly the defendant does not raise any question of prejudice. In opposing the plaintiff’s application it is contended that to succeed he must show -

    (1)That a material fact of a decisive character relating to his right of action was not within his means of knowledge until a date after the commencement of the last year preceding the expiration of the limitation period that is, until a date after 28 January 1994; and

    (2)That there is evidence to establish the right of action.

26. In my view there is clear evidence to establish the plaintiff’s right of action.

27. The plaintiff contends that the material fact of a decisive character relating to his right of action was the fact that the motor vehicle accident of 28 January 1993 did not merely exacerbate a pre-existing injury sustained in 1985 to a minor (if any) degree but in fact inflicted a fresh injury which more than doubled the loss of bodily function caused by the 1985 injury.

28. It is his case that he relied upon Dr Costello and indeed Dr Redmond and although he went to the trouble of obtaining a copy of x-rays from the Royal Brisbane Hospital taken in connection with his football injury, he relied really upon his medical practitioners and particularly Dr Redmond, a specialist,  to interpret that material and to advise him whether there was any indication that the motor vehicle accident had caused him injury. It is his case that he was reasonable in doing this and really it was by chance as much as anything else that in the pursuit of his efforts to have his workers’ compensation application reconsidered he took the advice of a masseur and obtained a referral to Dr Day an orthopaedic specialist whose examination of all relevant x-rays, CT scans etc. led him to conclude that indeed the plaintiff had suffered a prolapse of the C6-7 disc as the result of the physical impact he received in the 1993 motor vehicle accident.

29. Clearly well within twelve months of learning this “material fact” for the first time he instituted his proceedings.

30. The real question debated was whether the plaintiff had acted reasonably in refraining from instituting his proceedings until after he received  advice from Dr Day. It was said that  in spite of the advice he received from Dr Costello and Dr Morris and indeed the opinion of Dr Redmond that eventually came to his notice, he ought, on the views expressed by Mr Pobjoy the masseur and another,  Mr Mahoney a physiotherapist, have gone off at an earlier time to obtain the opinion of, if not Dr Day, somebody else with Dr Day’s specialty as a check on the opinion of Dr Redmond. The problem I have with this contention is that the plaintiff had already been referred to Dr Redmond whose opinion - formed with or without the advantage of comparing the earlier x-rays with the latest CT scan -  had in effect confirmed that of Dr Costello. 

31. Can it be said then that the plaintiff acted unreasonably in not taking steps to institute this action until he received advice from Dr Day?

32. In my view the advice that he received included a fact which undoubtedly must be categorized as a material fact. It was a fact of which he had no prior knowledge.

33. In light of the contrary views of Drs Costello, Redmond and Morris to which he had previously given attention and which had persuaded him not to institute proceedings, in my view the fact advised by Dr Day cannot be categorized as other than one of a “decisive character” relating to his right of action. It was only upon receipt of that advice that he could appreciate that he had a worthwhile cause of action to pursue and should in his own interests pursue it. I refer to Moriarty v Sunbeam Corp [1988] 2 Qd.R. 325 at 333 as to the effect of s. 30(b) of the Limitation of Actions Act 1974.

    Without the advice of Dr Day in my view it was reasonable for the plaintiff not to sue.  With that advice it is reasonable for him to sue. I refer to Ipswich City Council v Smith (unreported Court of Appeal No. 5443 of 1997 delivered 29 August 1997) per Davies J.A. at 4.

    The limitation period expired on 28 January 1996. The expert medical advice received by the plaintiff subsequent to that time as he endeavoured to have his workers compensation claim reconsidered, was to the effect that if the 1993 motor collision had any effect on the neck disability suffered in 1985 it was only a minor one. The cost and uncertainty of obtaining an extension of time without the advice of Dr Day is a relevant consideration in considering whether the plaintiff acted reasonably in postponing his application for an extension until he received that advice. In my view it would have been foolhardy in the extreme to make such an application based only upon suggestions made by Mr Pobjoy and Mr Mahoney in light of the expert opinion of Dr Redmond given to the Workers’ Compensation Board which obviously accepted it in rejecting the plaintiff’s application.

    In my judgment the plaintiff has established the facts necessary to justify the granting of his application.

    I make a nunc pro tunc order in terms of the relief sought in paragraph 1 of the summons. I order that the costs of the application be reserved.