Sheehan v Ainsworth Game Technology Ltd
[2011] NSWSC 797
•28 July 2011
Supreme Court
New South Wales
Medium Neutral Citation: Sheehan v Ainsworth Game Technology Ltd [2011] NSWSC 797 Hearing dates: 1 June 2011 Decision date: 28 July 2011 Jurisdiction: Common Law Before: Schmidt J Decision: The defendant's motion be dismissed with an order for costs in favour of Ms Sheehan.
Catchwords: PROCEDURE - notice of motion - orders seeking dismissal of claim - whether the claim an abuse of process - limitation of actions - s 50C of the Limitation Act 1969 - operation of Limitation Act 1969 - whether limitation period expired before proceedings were commenced - whether all reasonable steps taken - s 50D of the Limitation Act 1969 - claim not established - motion dismissed - costs Legislation Cited: Civil Liability Act 2002
Limitation Act 1969
Uniform Civil Procedure Rules 2005Cases Cited: Baker-Morrison v State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
Dib Group Pty Limited t/as Hill and Co v Cole [2009] NSWCA 210Category: Procedural and other rulings Parties: Maria Sheehan (Plaintiff)
Ainsworth Game Technology Limited
ACN 068516665 (Defendant)Representation: Counsel:
Mr SW Hickey (Plaintiff)
Mr RA Cavanagh SC (Defendant)
Solicitors:
Walker Legal (Plaintiff)
Wotton and Kearney Lawyers (Defendant)
File Number(s): 2010/79548
Judgment
By notice of motion filed in March 2011, the defendant seeks orders dismissing the plaintiff's claim under Rule 13.4 of the Uniform Civil Procedure Rule s 2005, on the basis that the claim is an abuse of process and not maintainable pursuant to s 50C of the Limitation Act 1969 ('the Act').
The proceedings were commenced by a statement of claim filed on 30 March 2010. The plaintiff, Ms Sheehan, damaged her right thumb, while working at the defendant's premises on 29 June 2006, installing components into a poker machine. It is not in issue that Ms Sheehan was then performing work on the defendant's production line, but the claim is otherwise defended.
Ms Sheehan's services were provided to the defendant by her employer, a labour hire company, Bluestone Recruitment Pty Limited ('Bluestone'). Ms Sheehan claims that as the result of the injury to her thumb, she is suffering from severe complex regional pain syndrome, depression, anxiety and a panic disorder, with ongoing disabilities in her thumb, hands and arms. She has not worked since the accident and claims to be permanently unfit for work and to have been in receipt of gratuitous care for four hours per day, seven days a week, since the accident.
The proceedings were brought more than three years after the accident. In issue between the parties is whether they were brought outside the limitation period fixed by s 50C(1)(a) of the Act, which provides:
" 50C Limitation period for personal injury actions
(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:
(a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff."
The date on which a cause of action is discoverable, is to be determined in accordance with s 50D of the Act, which provides:
"50D Date cause of action is discoverable
(1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts:
(a) the fact that the injury or death concerned has occurred,
(b) the fact that the injury or death was caused by the fault of the defendant,
(c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.
(3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.
(4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased."
The operation of the Limitation Act 1969
The operation of the Act was considered in Baker-Morrison v State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454. Basten JA discussed at [37]:
'... s 50D(2) identifies when a person ought to know a fact on an assumption that the person had "taken all reasonable steps before that time to ascertain the fact". Taking all reasonable steps must, in appropriate circumstances, include obtaining medical and legal advice and information.'
In this case, there can be no question that Ms Sheehan acted reasonably in taking both legal and medical advice. At [45] his Honour discussed 'the nature of the knowledge which the person is required to have, for the limitation period to commence to run', observing:
"45 ....In common with extension provisions, s 50D refers, somewhat simplistically, to whether the person "knows" (or ought to "know") the identified facts. It is rare that facts will be known in any absolute sense: rather, as a practical matter, the person will have a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purposes of legal proceedings. Such a belief may be held on firm grounds or on shaky grounds. The belief is likely to involve an assessment of various matters, none of which can be readily quantified. Questions involving causation, fault and assessment of damages are all susceptible to these kinds of uncertainty. Nevertheless, the chapeau of the sub-section refers to knowledge of identified facts, and not to an assessment of prospects of success in the prospective proceedings. Further, despite the inability to bring proceedings without a solicitor in a position to certify in accordance with the requirements of the Legal Profession Act , it is the knowledge of the plaintiff's mother which is the focus of the statutory test."
In this case, it is Ms Sheehan's knowledge that is the focus of the statutory test. That knowledge must be understood in a context where she obtained legal advice in October 2006, at a time when her medical and psychological condition was not stable and there were diverging medical opinions as to the nature of her injuries and their treatment.
The parties' cases
Ms Sheehan's account of the injury was that it occurred when she was wearing gloves supplied to her by the defendant, but they were too small and very worn out, so that her fingertips were exposed. She was picking up a piece of metal from a box, when she felt a piece of metal penetrate the tip of her right hand thumb. T hat injury, involving only a small splinter of metal, was perceived to be a minor one by Ms Sheehan, when it occurred. She initially received first aid at the defendant's workplace and when the splinter could not be removed, she went to the Concord Medical Centre for treatment. That treatment was also unsuccessful and in October 2006, she had to undergo a surgical procedure. Ms Sheehan then took legal advice. It was when she encountered difficulties with the insurer not approving further treatment which was recommended she receive, that she instructed her then solicitors to act on her behalf, in order to pursue such treatment.
Ms Sheehan's case was that it was not until 2010, after her workers compensation claim had been resolved on the basis of a whole of person impairment assessment at 49%, that she received legal advice which made her aware that the injuries she had suffered were sufficiently serious to justify her bringing this action . Accordingly, the proceedings were brought within time.
The defendant's case is that Ms Sheehan knew that her thumb was injured on the date of the accident, when wire became embedded in her thumb. Her claim has always been that the injury resulted from its failure to provide her with adequate gloves to protect her from that injury. Before the end of 2006, she was aware of the fact that the injury she had suffered was sufficiently serious, so as to justify the bringing of an action such as this against it.
Given the medical records and the written advice Ms Sheehan was given by her solicitors in October 2006 about a potential common law claim, when she was told that an action of this kind 'has a reasonable chance of success', it followed that Ms Sheehan knew, or ought to have known, before 30 March 2007, that she was suffering from a sufficiently serious injury, to bring these proceedings. Accordingly, these proceedings were brought out of time.
The evidence
Ms Sheehan gave affidavit evidence, as did her solicitor, Ms Vogel. They were both cross-examined. Affidavit evidence was also given by the defendant's solicitor Ms Hosking. She was not required for cross-examination.
Annexed to Ms Hosking's affidavit were statements made by Ms Sheehan in 2007, 2008 and 2009, as well as a number of documents. In the first statement, Ms Sheehan described experiencing excruciating pain from the day of the accident in 2006 and being unable to move her thumb. Physiotherapy did not assist. After the surgery she was referred to a private pain clinic by a Dr Bryce and to a psychiatrist, because of the stress of her situation and the ongoing pain she was suffering. She required antidepressants and tranquilisers to sleep. In May 2007, she underwent an unsuccessful nerve block procedure at a pain clinic. She was found to be suffering from complex regional pain syndrome. She could no longer use her right hand and her left hand had become increasingly painful and difficult to use. She also described depression and hospitalisation in 2007, during a panic attack.
In her 2008 statement, Ms Sheehan referred to her weekly compensation payments being ceased by the insurer in August 2008 and how this added to her anxiety and depression and interfered with her various treatment. She described her deteriorating symptoms and the advice which she had received, that because of earlier treatment delay, her complex regional pain syndrome had become incurable.
In her 2009 statement, Ms Sheehan described her worsening state of depression and a suicide attempt.
In her affidavit, Ms Sheehan outlined the circumstances of the accident and the treatment which she had subsequently received. She underwent surgery in October 2006. She then saw her general practitioner twice weekly. In November an injury management plan was developed for her. At the end of 2006 further treatment was recommended, but the insurer's case manager refused to approve referral to a pain clinic or psychiatrist. A number of medical reports were then obtained by Ms Sheehan's solicitors.
In January 2007, Ms Sheehan's hand surgeon, Dr Meads, suggested that she was suffering complex regional pain syndrome in her hand. Ms Sheehan did not understand the medical advice that she had a pain syndrome, but she was anxious to pursue the further treatment which was then recommended, because she wanted to recover and return to work. Ms Sheehan's solicitors pursued her workers compensation entitlements and she underwent physiotherapy.
Ms Sheehan's evidence was that she pursued treatment which had been recommended, in the expectation that if treated, her symptoms would improve and she would be able to return to work. In February 2007, treatment at a pain clinic was approved. She saw a psychologist. She then also began experiencing symptoms in her left arm. She was referred to the insurer's doctor, Dr Potter, a rheumatologist and a psychiatrist, Dr Murray.
In March 2007, Dr Potter diagnosed a conversion reaction in the right upper extremity. On 19 April 2007, Dr Hong, a specialist in pain management at the Concord Repatriation Hospital pain clinic, made a diagnosis of pain syndrome and prescribed medication. In May, Ms Sheehan underwent a painful nerve block procedure, which failed. In July Dr Hong advised of difficulties resulting from treatment delay and that Ms Sheehan might never recover, due to that delay.
There was ongoing treatment for her pain and psychological condition, which deteriorated in 2007 and 2008 . In March 2008, liability was disputed by the workers compensation insurer.
It was in early 2008 that Ms Sheehan says she discussed with her legal advisers a lump sum claim in the Workers Compensation proceedings, which she was advised could not then proceed, because her condition was still not stable for assessment. She was in receipt of weekly workers compensation payments, which were stopped and were later reinstated. There were ongoing disputes as to liability. There were conciliation proceedings and in May 2009, a Dr Patrick assessed her whole person impairment at 50%. A claim for whole person impairment was then made and declined. The approved medical specialist, Dr Burn, assessed Ms Sheehan's whole person impairment at 49% in February 2010.
On 2 March 2010, Ms Sheehan received advice from her counsel that she could make a claim against the defendant for damages. Her evidence was that she was then advised that 'there were two different sets of laws that applied to damages claims' and that:
"Until that conference I had not heard of how nor did I know that I might claim damages against Bluestone and I never knew I could make any claim against Ainsworth because they were not my employer. I never knew about how I could claim in negligence against Ainsworth."
Ms Sheehan was advised as to how negligence against the defendant could be proved, through expert evidence. She said:
"Until that conference had been arranged I had no idea that I could claim anything other than workers compensation entitlements in respect of my injuries. I had not had any idea about negligence or what an expert might say about my work safety. I had always thought that I could only claim workers compensation benefits and only from Bluestone and its insurer."
Ms Sheehan also said that:
"43. Up until the consultation with Dr Winnie Hongon(sic) 10-7-2007 I had since my injury held onto the hope that with treatment that had been recommended I would get better. When the Allianz case manager approved of my attendance with the pain clinic in early 2007 I thought that once I could have treatment there I would improve and be able to get back to work. My hopes were raised at that time despite my deteriorating condition. However I did not improve on a permanent basis with the treatment and I got worse over 2007 and into 2008 and 2009.
44. As time progressed the following events caused me to realise the seriousness of my injuries: --
a. Dr Winnie Hong told me on 11 July 2007 that my chronic regional pain syndrome may never get better due to the delay in me having treatment since my injury.
b. On 11 September 2007 Bluestone terminated my employment by letter to me and I became more despondent and more depressed.
c. The treatment afforded to me at the 'pain clinic' failed to improve me and I had a terrible experience with great pain from some of the treatment there recommended for me.
d. In February 2009 I had suicidal thoughts and became more and more dependent on my husband and my sister for daily support.
e. I became aware that my injuries were deteriorating more and more as time progressed over 2007, 2008 and 2009 and in 2008 I thought I was not going to get better.
f. Dr Patrick in August 2009 and Dr Mark Burns on 10-February 2010 determined that I have a very substantial permanent 'whole person impairment' as result of my injuries. (49 percent and 50 percent WPI)"
What was not referred to in Ms Sheehan's affidavit evidence was the written advice which she had received in October 2006 from her then solicitors, for whom Ms Vogel was working at the time. It should be noted that this advice came to light when Ms Vogel was called to give evidence and her file was produced in response to a notice to produce. This letter appears not to have been produced in response to an earlier subpoena. It is not necessary to explore how that oversight occurred.
It then became apparent, however, that in 2006, Ms Sheehan had been advised separately in relation to a 'potential common law claim' and 'your workers compensation claim'.
The letter relating to Ms Sheehan's workers compensation rights noted that she was receiving weekly payments in relation to wages and that her medical expenses had been paid. Advice was also given in relation to the pursuit of one of the two other types of compensation identified, lump sum payments. The other type of payment identified was payment for pain and suffering. It was advised that certain steps be taken in relation to pursuit of a lump sum payment.
The letter relating to Ms Sheehan's 'potential common law claim' noted that she had suffered an injury to her thumb and right hand and advised that in order to succeed in such a claim, she would have to prove negligence which had resulted in injuries and disabilities. It was advised that:
"Our view is that in the event that your injuries are permanent and do not recover well, you would be entitled to compensation as a result of the accident if the party can be proved to be responsible.
Our overall view is that your case has a reasonable chance of success.
You will appreciate that in no claim, no matter how strong the chances of success appear to us to be can we guarantee success. Ultimately this is in the hands of the Arbitrator of(sic) Judge who decides the case. We will continue to give you our best advice as to the prospects of success as the case progresses and, in the event that, evidence comes to light that changes our view as to prospects of success (either so as to increase or decrease the chance of success) we will keep you advised."
Ms Sheehan was advised that the first step to be taken was:
"... to put the person or company who caused your injury on notice that we are acting for you. We will tell them the nature of the claim you make and the problems you have.
Once your injuries have medically stabilised, we will take steps to gather medical and other evidence necessary to understand your injuries and disabilities. We will also consider the evidence necessary to prove liability, (ie: the carelessness of the party at fault)."
It was proposed that once medical and other evidence had been gathered, settlement negotiations would be commenced:
"If your physical condition is sufficiently settled, we anticipate being able to start settlement discussions within approximately 3 to 6 months of stabilization of injuries.
If you are still undergoing significant treatment or there is a prospect of further operative treatment for example, proceedings should not be commenced until your doctors can give us a reasonably clear idea as to how your future life will be affected by the accident."
The letter concluded with:
" STEPS TO BE TAKEN BY YOU
At this stage we would ask that you take the following steps:-
a. Sign and return one copy of the enclosed costs agreement/letter . Until the receipt of this document we will assume, unless you instruct otherwise, that we may continue to act in accordance with this agreement.
b. Sign and return the enclosed medical authorities which will allow us to obtain reports from doctors when necessary. Please do not date these authorities .
c. If you have not done so, provide contact(sic) my secretary, Pam, and provide her with your Medicare number ."
Ms Sheehan was recalled to be cross-examined about this correspondence. Ms Sheehan agreed that she had received the letter, but she had not signed the enclosed costs agreement. Medical reports were later obtained by her solicitors, when instructed in relation to the disagreement which emerged over the recommended treatment.
On her explanation, when Ms Sheehan received this advice in 2006, her husband read the letter, but she was then not interested in making a common law claim. She went to the solicitor for further assistance later in 2006, when approval for further treatment was refused by the insurer. She was then focussed on getting better and returning to work.
Ms Sheehan agreed that at that time, she was aware that she had hurt herself; that she had been off work ever since; that her injury was so bad, that her husband had to look after her, four hours per day; that she was having treatment and seeing specialists without improvement; and was receiving workers compensation payments. Still she insisted that until she saw Dr Hong in 2007, she did not understand how bad the condition she had acquired was. That was when she understood the severity of her situation. In re-examination she said that she had no idea when she received the 2006 letter whether a common law claim could succeed.
In her affidavit, Ms Vogel explained that she was first instructed by the plaintiff on 10 October 2006, when she advised only in relation to her ss 66 and 67 entitlements; that Ms Sheehan then brought a workers compensation claim, which resulted in 2008 in the filing of an application to the Workers Compensation Commission, to resolve a dispute. The claim was successful and Ms Sheehan's workers compensation payments were reinstated. A lump sum entitlement was then pursued. It was only on 2 March 2010 that Ms Sheehan was advised by counsel as to her rights under the Civil Liability Act 2002 , in light of the Court of Appeal's decision in Dib Group Pty Ltd t/as Hill and Co v Cole [2009] NSWCA 210.
In cross-examination, when taken to the letters written on 6 October 2006, Ms Vogel's evidence was that she had been admitted in February 2004 and in 2006, was working as an employed solicitor at a firm specialising in personal injury. She was then more familiar with workers compensation claims, but also advised on common law claims, under supervision.
In Ms Sheehan's case, she came for advice at a time when she was suffering from 'a little injury in her thumb'. She was given general advice in broad terms at a conference which Ms Vogel and her supervising partner attended. At the time, Ms Vogel thought there was potential for a common law claim to be brought, but that it required further investigation. There was no discussion with Ms Sheehan as to how negligence might be proved.
At the conference Ms Sheehan explained the accident and her injury, but there were not many medical reports in existence at that time and she was not having any treatment. While Ms Sheehan had not returned to work, she was hopeful of doing so and had been provided with a return to work plan, which had been produced for Bluestone. She had received a few sessions of physiotherapy, had been on some medication and was seeing her GP. She was not then having problems with her hand and arm. Those problems emerged later, as did the insurer's refusal of further recommended treatment.
Ms Sheehan was given advice at the conference as to a common law claim, as well as in relation to her worker's compensation entitlements, in standard pro forma terms. The common law claim was described in the letter as 'reasonable'. Ms Vogel remembered that there were three options available to be selected in the precedent, one of the others being 'good'.
On Ms Vogel's understanding, the October letter advised on the types of investigations to be pursued in a common law claim, if Ms Sheehan's injury proved to be permanent or severe. Even though the letter expressed the view that her claim had reasonable prospects of success, that was not a matter Ms Vogel had investigated, at that point. Ms Sheehan at that stage only had an injury to her thumb. Once it was established that the injury was serious, further investigations would have been required. Ms Vogel explained that the advice was intended to inform the client of a potential claim, which required further investigation, depending on the severity of the injury, that was why it was entitled 'potential' common law claim. For some clients, their injures resolved and such a claim was never pursued. Other clients preferred to remain on their Workers Compensation rights.
In Ms Sheehan's case, no common law claim was pursued in 2006. It was envisaged that would only occur down the track. No investigations were made at that time and no costs agreement signed. Ms Sheehan was hoping to get better and a short time later, problems with the claims officer emerged, which had to be dealt with.
Ms Sheehan later changed solicitors. Ms Vogel then again acted for her. To that point no steps had been taken to pursue a common law claim. The defendant was not, in fact, notified of the common law claim until service of the claim in 2010.
Did the limitation period expire before the proceedings were commenced on 30 March 2010?
The defendant's case was that the test is not what was known at a particular time, but what would have been ascertained, if all reasonable steps had been taken, to ascertain whether Ms Sheehan had a remedy under the Civil Liability Act .
That Ms Sheehan did not receive legal advice about a common law claim from her counsel until March 2010 is not determinative of the question of when the cause of action was discoverable, nor is the advice given by her solicitors in October 2006, as to a potential claim, which she was advised had then been assessed as having 'reasonable prospects'.
In Baker-Morrison , Basten JA explained at [41]:
"41 Although a legal evaluative judgment appears to be required by par (b), that element is even more explicit in par (c). Thus the injury must not only be understood to be serious, but "sufficiently serious to justify" a course of action. Further, that course is "the bringing of an action on the cause of action", an objective which would appear to require the exercise of both legal and medical expertise. Similar language is found in the identification of material facts as being "of a decisive character" for the purposes of s 57B(1)(c), set out at [12] above. In that provision, the test is stated objectively, by reference to the opinion of a reasonable person, but also by asking whether one "knowing those facts and having taken the appropriate advice on those facts" would hold the identified opinion."
There is no question that in October 2006, Ms Sheehan was advised that she had a potential common law claim. The letter also advised that further investigations would need to be undertaken. Given what was known at that point as to the nature of her injury it was plainly necessary for further medical assessments to be made, as to the nature of the injury Ms Sheehan had suffered.
It was argued for Ms Sheehan that on the evidence she had only received advice in 2010 in relation to s 50D(1)(b) of the Act, of 'the fact that the injury or death was caused by the fault of the defendant'. It followed on that basis alone, that the claim was within time. Any failures were those of her solicitors, not hers. The initial advice was given at a time when her injuries appeared to be relatively minor. They became much more serious and eventually reached the point where it became apparent that she had a common law claim. In the circumstances, that she only received advice about these matters in 2010, was not the result of her failure to take 'all reasonable steps'.
There is some difficulty with the submission, so advanced, given the written advice given in October 2006 and what was then known as to the cause of the accident. Nothing changed in that respect, up until the time advice was pursued in 2010. It was only then, however, that advice was given as to how causation might be proved. That was advice which could have been given in 2006. The defendant's case was that a delay until 2010 was not consistent with Ms Sheehan taking 'all reasonable steps' in relation to that matter. It seems to me that the submission has some force, given the terms of the 2006 letter. Nevertheless, the question is whether Ms Sheehan had taken all reasonable steps, given what she knew.
I do not accept the submission that a person can sit on their hands and take no legal advice, with the result that the limitation period would only commence to run, whenever it was that such advice was sought. That approach would not be consistent with the requirement that 'all reasonable steps' be taken. In this case, Ms Sheehan did take advice. She was informed in writing of steps being pursued. The letter gave no advice of any potential limitation issue and, it follows, there was no basis for Ms Sheehan to have been concerned to ensure that steps were taken by her solicitors, to avoid any limitation problem developing. Nevertheless, having had the 2006 advice, that Ms Sheehan could thereafter take no steps to pursue her claim until March 2010, given what she had been advised in writing, may not be accepted. That would involve a failure 'to take all reasonable steps', given the terms of the advice there given. In this respect, the plaintiff's argument may not be accepted
So far as s 50D(1)(c) is concerned, it seems to me, however, that the time when Ms Sheehan ought to have known that the injury was sufficiently serious to bring these proceedings was April 2007, when she saw Dr Hong. In this respect, the defendant's case may not be accepted.
Ms Sheehan's evidence in cross-examination was that she did not give the 2006 advice as to her potential common law claim much thought at the time, because she was then concerned to deal with her escalating health problems, which she had not expected and which she did not understand, given her expectation that she would recover from what had begun as a very minor injury; a metal splinter entering her right thumb. That may well be understood, on the evidence.
Ms Sheehan was experiencing ongoing pain from what had begun as a seemingly minor injury to her thumb; she had to deal with an emerging depressive condition, as well as the condition of her hand, which did not improve despite the various treatment she received. At the end of 2006, she was advised to seek further treatment, which the insurer refused to accept she required. It was when this situation emerged, that she sought help from her solicitor to pursue that treatment, being anxious to return to work. It was not until she saw Dr Hong in April 2007, that she came to understand the real nature of the serious illness which she had developed, as a consequence of what she had perceived to be a relatively minor injury from which she expected that she would recover from, with treatment. In my view, that evidence may well be accepted as reflecting a reasonable reaction to the circumstances in which Ms Sheehan found herself.
The legal advice which Ms Sheehan had received in October 2006 was certainly less than clear. What it conveyed must be understood in the context of Ms Vogel's evidence as to what was then understood of Ms Sheehan's medical condition and the general advice which she was earlier given at the meeting she had attended, when she had given instructions about her injury. The letter must, of course, also be read as a whole. So read, it must be accepted that it was not intended to convey that absent further investigations as to the question of how negligence was to be established and the nature and extent of Ms Sheehan's injuries, that what was known to that point, was a firm basis on which proceedings in negligence could be brought.
In Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167, the circumstances under consideration also involved an injury first diagnosed as having been relatively minor. It involved a tear to the right biceps, which was initially expected likely to resolve or substantially resolve. Beazley JA observed that in the normal course, this injury would not have been sufficiently serious to justify the bringing of proceedings (see at [55]). The injury became sufficiently serious for surgery to be recommended, Mr Liddiard then being advised that the operation would provide significant relief. It was concluded by her Honour at [55] that had significant relief then occurred, 'it is likely that the injury would not have been sufficiently serious to justify proceedings'.
In those circumstances, it was concluded that 'the earliest the cause of action was otherwise discoverable was sometime after November 2004, when the operative treatment did not provide the relief that Dr Seex anticipated' (see at [56]).
In this case, there was also a relatively minor injury, suffered in June 2006, which led to very substantial consequences, both physical and psychological. The defendant's argument was that it was well before March 2007, that Ms Sheehan was aware that she had suffered such a serious injury that these proceedings were available to be brought. By the end of 2006 she was still unable to work; she had been referred to a pain specialist and a psychiatrist, because of her ongoing pain; she had problems using her hand; and was suffering from a deteriorating mental state. Her condition was such that she required assistance from her husband for four hours per day to undertake her normal activities. It followed that she then knew that she had a serious injury and that while she had hopes of getting better, the limitation period could not depend on an injured person's subjective hopes.
While the matters on which the submission was advanced may well be accepted, it seems to me on all of the evidence, that the claim has still been brought within the limitation period.
The initial injury which Ms Sheehan suffered, involving the penetration of her thumb with a splinter, was clearly not sufficiently serious so as to justify these proceedings being brought. As discussed by Basten JA in Baker-Morrison at [46]:
"It follows from this analysis, in accordance with the concession made by the State, that the plaintiff's mother did not at any stage within the relevant period have actual knowledge sufficient to satisfy par (c) or, in all probability, par (b). The approach adopted above with respect to par (c) is largely consistent with that adopted by Goldring DCJ in Rawle v Southstate Industrial Supplies Pty Ltd [2008] NSWDC 70; 7 DCLR (NSW) 134 referred to by the trial judge at [17]. Judge Goldring referred to s 50D in the following terms:
"[25] ... The question of whether or not the bringing of action is justified is not simply a matter of looking at the seriousness of the injury, but also of looking at that injury in the light of the statutory requirements for claiming compensation, and that requires some understanding of the law.
[26] In order to know whether the injury is sufficiently serious to justify the bringing of action, a person must know not only that the injury is serious, but also, in approximate terms, whether that injury is sufficient to bring the person over any of the statutory thresholds that now exist."
The surgery undertaken in October 2006 was directed at removing the metal fragments which remained in Ms Sheehan's thumb. Had that procedure succeeded, the bringing of these proceedings would clearly also not have been justified. It was the consequences of the failure of that surgery, the ongoing pain which was suffered as a result and the emerging psychiatric injury, which led to the recommendation at the end of 2006, that further treatment was necessary. This was not accepted by the insurer, which led Ms Sheehan to take further legal advice.
It seems to me that in resolving the issues which here lie between the parties, that it may not be overlooked that at the end of 2006, the need for the recommended treatment was disputed, notwithstanding that Ms Sheehan was still not judged fit to return to work and was still suffering considerable pain. Ms Sheehan's evidence, that she pursued that treatment with her solicitor's assistance, in order that she could recover and return to work, must be accepted. It is entirely consistent with the evidence of the steps which she pursued, which resulted in a referral to other medical practitioners and a disagreement as to her condition.
It is difficult to see, in that context, that it can confidently be thought that Ms Sheehan ought then to have known that her injuries were sufficiently serious to justify the bringing of this action, or even that her solicitors could then have come to the view which the defendant urged. Ms Sheehan's evidence was that when she sought to pursue the recommended treatment with her solicitor's assistance, she did not understand the nature of the condition she had developed. She was still hopeful of a return to work if she received that treatment. In my view, that evidence must also be accepted, particularly given the nature of her original injury and what developed from it. Also to be considered is that even in March 2007, the insurer's doctor, Dr Potter, had a different view as to what was causing Ms Sheehan's ongoing physical difficulties, to that of Dr Meads.
Had treatment then been received and succeeded, it seems to me that it would still have been questionable that Mrs Sheehan's injuries would have been sufficiently serious to warrant these proceedings being brought.
Psychiatric treatment commenced in March 2007 and treatment for the chronic pain syndrome in April. In May, there was an unsuccessful nerve block and in June, Dr Hong advised of the potential long term difficulty which had been created, because of the delay in treatment of Ms Sheehan's condition. Unquestionably that had an impact on Ms Sheehan's deteriorating psychiatric condition. Even in April, however, Ms Sheehan hoped for a return to work, understandably, given her personal circumstances. That she was still motivated to return to work, if she could recover her health, must be accepted. Again, had the treatment which she received then succeeded despite the delay, it may have been that Ms Sheehan's injuries could not have been considered sufficiently serious to justify these proceedings being brought. There was, however, no recovery and so that question does not arise for determination.
What must be considered is the failure of the various treatment which Ms Sheehan received in 2007 and the ongoing deterioration of her physical and psychological well being in that year and subsequently. That failure certainly justified these proceedings being brought. That situation did not exist when Ms Sheehan first saw Dr Hong in April 2007. It was then that she came to understand her serious predicament.
In my assessment, it follows that before April 2007, Ms Sheehan cannot have had knowledge of the matters identified in s 50D(1)(c). That is not a mere matter of Ms Sheehan's perception, or an assessment of the limitation period on an impermissibly subjective basis, but has regard to the subjective and objective matters which arise for consideration on the evidence as to what Ms Sheehan knew, or ought to have known before April 2007, had she taken all reasonable steps before that time.
I am satisfied in those circumstances that it must be concluded that the defendant has not established that the claim has been brought outside the limitation period.
Orders
Accordingly, I order that the defendant's motion be dismissed with an order for costs in favour of Ms Sheehan.
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Decision last updated: 28 July 2011
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