Seaniger v Mackay Regional Health Authority

[1994] QCA 479

IN THE COURT OF APPEAL	[1994] QCA 479
SUPREME COURT OF QUEENSLAND

Appeal No. 156 of 1994

Brisbane

[Seaniger v. Mackay Regional Health Authority]

BETWEEN:

ANN THERESA SEANIGER

(Plaintiff) Appellant

- and -

MACKAY REGIONAL HEALTH AUTHORITY

(Defendant) Respondent

Davies J.A.
McPherson J.A.

Lee J.

Judgment delivered 11/11/94
Judgment of the Court

APPEAL ALLOWED. ORDERS MADE BELOW SET ASIDE. IN LIEU, APPLICATION GRANTED AND ORDER THAT THE PERIOD OF LIMITATION BE EXTENDED SO THAT IT EXPIRES AT THE END OF ONE YEAR FROM 2 JULY 1993. APPELLANT TO HAVE COSTS OF APPEAL AND BELOW.

CATCHWORDS:	LIMITATION OF ACTIONS - appeal for extension - appellant injured back in 1990 during course of employment - prior to incident appellant had back problems - after incident appellant suffered recurrences of back pain - description of lower back pain and disability by doctors as caused by sciatica - treated with pain relief medication and rest - further recurrence of back pain in June 1993 - referred to radiologist for first time - report of 2/7/93 revealed for first time prolapsed disc as cause of lower back pain and disability - whether reasonable person in appellant's position would have made further inquiry to ascertain that fact - whether material fact relating to appellant's right of action was within her means of knowledge prior to 2/7/93
Limitation of Actions Act 1974 ss. 30, 31
Counsel:	Mr R.D. Pack for the appellant M.J. Baulch for the respondent
Solicitors:	John Taylor and Co for the appellant Peter Searles and Associates for the

respondent
Hearing date: 2/11/94
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 156 of 1994

Brisbane

[Seaniger v. Mackay Regional Health Authority]

Before	Davies J.A. McPherson J.A. Lee J.
BETWEEN:

ANN THERESA SEANIGER

(Plaintiff) Appellant

- and -

MACKAY REGIONAL HEALTH AUTHORITY

(Defendant) Respondent

JUDGMENT OF THE COURT

Judgment delivered 11/11/94

This is an appeal from an order made in the Trial Division of this Court dismissing an application for extension of time under s. 31 of the Limitation of Actions Act 1974.

The appellant was injured during the course of her employment with the respondent on 9 April 1990 when, working as a nurse's aid, she was involved in lifting an elderly and overweight patient. The learned primary judge held that there was evidence to establish a right of action, apart from a defence founded on the expiration of the period of limitation, in respect of this injury. Consequently the requirement of subs. (2)(b) of s. 31 was established. The application and this appeal turned on whether the requirement of subs. (2)(a) was satisfied. That requires it to appear to a court:

"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."

Once the requirements of both paras. (a) and (b) have been satisfied the Court may order that the period of limitation be extended so that it expires at the end of one year after that date. A fact is said by s. 30(d) not to be 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) so 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."

The applicant had had problems with her back before 9 April 1990. In 1982 or 1983 she suffered pain in her back whilst playing with dogs on the beach. Her condition was diagnosed, by a treating doctor whom she then saw, as back strain and, after taking prescribed diagesic tablets for relief of pain, it went away after a couple of days. She gave birth to children on 17 October 1985 and 25 October 1986. During labour prior to the birth of each of those children she suffered back pain of short duration. And on 13 March 1990 she saw her general practitioner complaining of low back pain which had been affecting her at work during the previous two weeks. She was then working as a nurse's aid and her work involved regular lifting of patients who were pregnant women. She was referred to a radiologist for x-rays. The radiologist reported that there was no sign of disc injury. She continued at work.

After the incident on 9 April 1990 the appellant was admitted to hospital for approximately three days and given bed rest. No x-rays were taken on this occasion. She was treated by being given some steroid injections.

In about June or July 1991 the appellant experienced severe low back pain during another pregnancy in which, ultimately, she gave birth to triplets on 24 August 1991. The lower back pain continued until shortly after the birth of the triplets but then substantially abated again. She did not take pain relief tablets during this period because of her pregnancy.

In about July 1992 the appellant woke up one morning and had difficulty getting out of bed because of pain in her back. She visited her general practitioner who prescribed pain relief medication and the pain abated. She again saw him on 22 January 1993 complaining of being unable to lift, bend or walk on uneven surfaces because of back pain. Again he prescribed pain relief tablets and the pain abated after a short time.

At the beginning of June 1993 the appellant was again having difficulty getting out of bed because of pain in her lower back. She put up with the pain for two or three weeks and then, on about 29 June, consulted another general practitioner who referred her to a radiologist. His report, dated 2 July 1993, for the first time revealed a prolapsed disc in her lumbar spine. The medical evidence was that this was caused in the incident on 9 April 1990 and that it was the cause of her lower back pain and disability since then. Up until 29 June 1993 the doctors whom she had consulted simply described her back condition as sciatica and prescribed medication and rest for relief of pain.

It was not disputed that the fact that the incident of 9 April 1990 caused a prolapsed disc was a material fact of a decisive character relating to the appellant's right of action. Nor was there any dispute that until 2 July 1993 that fact was not within the appellant's knowledge. The only question in issue, here and below, was whether it was, before that date, within her means of knowledge. That date was after the commencement of the year last preceding the expiration of the period of limitation for the action. And the action was commenced on 7 June 1994 which was within one year after that date.

The learned primary judge held that the appellant did not take reasonable steps to ascertain the above material fact because, notwithstanding that she was suffering from disabling pain on the occasions to which we have referred since 9 April 1990, and that she associated her low back pain with the incident in April 1990, she "has been very reluctant to seek a proper understanding of the nature and extent of her injuries". We have some difficulty in understanding the conclusion which we have just quoted.

Notwithstanding her frequent attendances upon medical practitioners for back pain and disability it was never suggested to her, after March 1990, that she should have an x-ray of her spine or that her condition was such that it justified treatment other than by the medication and rest which was prescribed. It seems likely that this was so because none of the doctors who treated her from 9 April 1990 thought that she had a prolapsed disc. And during this period it was described to her, presumably by the doctors whom she saw, as sciatica without any further elaboration as to its cause. Given that description and treatment we do not think that a reasonable person in the appellant's position would have made any further inquiry.

For those reasons we think that the existence of a prolapsed disc as the cause of her back pain was not within her means of knowledge until she ought to have known of the x-ray report of 2 July 1993. It follows that the appeal should be allowed and that the orders which were made below be set aside. In lieu we would grant the application and order that the period of limitation be extended so that it expires at the end of one year from 2 July 1993. The appellant should have her costs here and below.