Shepherd v Queensland Railways

[1993] QCA 73

IN THE COURT OF APPEAL

[1993] QCA 073

SUPREME COURT OF QUEENSLAND

Appeal No. 71 of 1992

Brisbane
[Shepherd v. Queensland Railways]

BETWEEN:

MALCOLM SHEPHERD

(Applicant)

- and -

QUEENSLAND RAILWAYS

(Respondent)

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

The Chief Justice Mr Justice Pincus Mr Justice Ambrose

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ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

Judgment delivered on the seventeenth day of March, 1993.
The Chief Justice, Mr Justice Pincus and Mr Justice Ambrose
all delivering reasons. Mr Justice Pincus and Mr Justice

Ambrose concurring. The Chief Justice dissenting.

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ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

APPLICATION FOR LEAVE TO APPEAL DISMISSED AND THE APPEAL

ITSELF DISMISSED WITH COSTS.

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

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Catchwords:	LIMITATION OF ACTIONS - PERSONAL INJURIES - EXTENSION OF TIME - Appct injured in June 1984 and issued writ in 1992 - Wh results of CT scan and doctor's opinion material facts of decisive nature - Wh within appct's means of knowledge.
Counsel:	D.A. Skennar for the applicant. G.J. Koppenol for the respondent.
Solicitors:	Walker Pender for the applicant. Crown Solicitor for the respondent.
Hearing date:	25 August, 1992.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 71 of 1992

Brisbane

Before The Chief Justice Mr Justice Pincus Mr Justice Ambrose

[Shepherd v. Queensland Railways]

BETWEEN:

MALCOLM SHEPHERD

(Applicant)

- and -

QUEENSLAND RAILWAYS

(Respondent)

JUDGMENT - THE CHIEF JUSTICE

Delivered the seventeenth day of March, 1993.

The applicant was injured in an accident on 26 June, 1984 when he was crushed between a train and a railway platform while engaged on his work duties. He claims that the circumstances were such that he has a right of action against his employer and that aspect, apart from the effect of the Limitation of Actions Act 1974, is not presently in dispute. However, the applicant did not issue his proceedings until 17 January, 1992.

On 20 January, 1992 an application was made in the District Courts to extend time for commencement of proceedings notwithstanding that the ordinary limitation period of three years had expired. The proceedings which the applicant had commenced three days before were in the District Court.

If time was to be extended, the applicant had to show not only that there was evidence to establish his right of action (this, as has been said, was undisputed) but also "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: s. 31(2) of the Act".

In the circumstances of the present case the effect of the quoted portion of the subsection was that the applicant had to show the absence of means of knowledge until after 26 June, 1986, i.e. after the commencement of the last year of the ordinary three year limitation period.

Further, under the later portion of s. 31(2) the limit of the Court's power is to extend the limitation period so that it expires one year after an applicant acquires the means of knowledge referred to in the subsection. Since the applicant commenced his proceedings on 17 January, 1992, if the Court's power of granting an extension is to assist him he would have to show that he did not acquire the relevant means of knowledge until after 17 January, 1991, one year before the date when his proceedings were actually issued.

The District Court chamber judge who heard the application reviewed the evidence. It included an affidavit sworn by the applicant and one sworn by his solicitors on his behalf and another affidavit sworn on behalf of the respondent's solicitor. The record does not show that there was cross-examination on this material or that there was oral evidence on either side. This is not a case then where the chamber judge had some particular advantage in coming to his conclusion, although, of course, it is correct to give his conclusion due weight.

The essential facts are these.
The applicant had two days in hospital immediately

after the accident in June, 1984. In about May, 1985, i.e. almost a year later, he had some severe pain in his back but at that time was told by a medical practitioner who treated him in a hospital outpatients' clinic that he could find no evidence of a back problem. He had a day off work in mid 1986 and from then until about October or November, 1988 he had occasional back pain. After November, 1988, i.e. more than four years after the accident, his back started to become quite painful.

In November, 1988 the applicant consulted a Dr Juhasz to whom he gave a history that the pain had had a gradual onset over two years. If taken literally, this would mean since about November, 1986.

He consulted a Dr Keller in November, 1989 when the pain was worse. Dr Keller then told him that his problem was due to a degenerative condition. Taken by itself this would not point to trauma as a cause. The applicant commenced new employment tasks in about January, 1991 and since February, 1991 he has had severe pain in his back apparently of a continuing character.

On 9 April, 1991 after a CT scan had been taken he was told by Dr Hepple that he had a disc protrusion at level L4/5. Again this description would not, by itself, point to any traumatic origin. Dr Hepple then provided a report to the Workers' Compensation Board and in that he expressed the opinion that the applicant's disability was mainly due to degenerative changes in his lumbar spine and, to a lesser degree, to superimposed strains at work. In that report Dr Hepple said the applicant did not relate his disability to any specific injury at work. Indeed, in a workers' compensation claim form dated April, 1991 the applicant simply stated that the injury occurred "over a period of time before" April, 1991.

In a further report to the applicant's solicitors dated 19 December, 1991, Dr Hepple set out his understanding of the circumstances of the accident which the applicant had been involved in on 26 June, 1984 and he mentioned also his understanding of the fact that the applicant had not had any trouble with his back before the 1984 injury. Knowledge of these additional features seem to have caused Dr Hepple to change his opinion and in the report of 19 December, 1991 he provided his view as follows:

"It appears to me to be quite reasonable to assume that the forces applied to his lower back region when he was caught between a train and the edge of a platform could well have caused damage to the lower part of his lumbar spine and the probability is that they did do so and that they are in part responsible for his present disability."

I have no difficulty in accepting Dr Hepple's viewpoint. When he was not told of any previous trauma affecting the applicant's back he opted for the explanation that the disability was due simply to changes occurring as a result of aging, accentuated somewhat by prolonged stooping at work. When, however, he was informed (presumably by the applicant's solicitors) that the applicant had been involved in an accident in June, 1984 and was made aware of the circumstances of that accident he changed his opinion and advised that in the light of the wider information his opinion on the probabilities was that the trauma to the applicant's back at the earlier time caused damage to his lower spine and remained responsible, in part, for his present disability.

In considering the state of the applicant's relevant awareness it has to be remembered that, for all that appeared, he had no particular expertise in medical matters and that after a couple of days of discomfort he had returned to his work with no continuing disability.

Further, no disability was present in his back until close to one year later. Even after mid 1985 he had only occasional back pain until the end of 1988. Throughout this period the applicant appears to have been reasonable in the approaches he made for medical advice and not only does he not appear to have been told that he had a back injury attributable to an earlier particular episode but he was even told by one practitioner that there were no signs of any damage to his back. Nowhere does it appear that the applicant was asked by any of his medical advisers whether he had been in any accident involving his back and given an untruthful or carelessly incorrect answer capable of throwing out the accuracy of a diagnosis.

I think that it is not reasonable to conclude on the probabilities that, when the applicant's back troubles commenced well after his apparent recovery from the accident and at a time when no skilled adviser was suggesting a link between the two matters, he should himself have made the connection and concluded that the June, 1984 event was the cause of his condition as later manifested.

In my opinion, the chamber judge demanded too much of the applicant when he said that a reasonable person (presumably one in the applicant's position) "would have addressed his involvement in the accident as a basis for his back disability after he first commenced to suffer back pain and would have discussed the matter with his medical advisers". I find this conclusion difficult to accept when, as I say, no medical adviser had told the applicant of the possible link and one such adviser seems by implication to have discounted the possibility by giving an opinion that, in effect, there was nothing wrong with the applicant's back at all.

The application for extension of time failed although it was pressed in what the chamber judge described as an "alternative submission". A first submission that the CT scan showing protrusion in the area of the L4/5 disc in January, 1991 was capable of constituting a new material fact of a decisive character was correctly rejected by the judge. It was not shown on the evidence to have any necessary relation to the accident in June, 1984. The "alternative" submission was, however, recorded by the judge as having been put in these terms:

"The (applicant's) alternative submission (was) that the fact the accident in June, 1984 could well have caused damage to the lower part of his lumbar spine, and probably did so was not known and was not within the means of knowledge of the applicant before January, 1991."

The learned judge rejected this submission as untenable.

In my respectful opinion the validity of this further submission should have been accepted and the extension applied for should have been granted. The fact that the disability was suggested to have an origin in the 1984 accident was a material fact within the meaning of s. 30(a)(iii), (iv) and (v). On the facts as known to him the applicant should be regarded as having taken advice to an appropriate extent from the time when the symptoms of the disability first began to appear in about mid 1985: cf. s. 30(b) and (c). The connection between the disability and the accident should not be regarded as having been within the applicant's means of knowledge until his solicitors learned of Dr Hepple's revised view in December, 1991. The Court's relevant power to extend the limitation period was then fully brought into play since this information came to the applicant only within the one year period which has already been identified, i.e. the year before the proceedings were commenced in January, 1992.

In view of the lack of challenge to the fact that, for the purposes of the application, the circumstances of the 1984 accident would establish a right to sue, we are not called upon to express any opinion on the strength of the applicant's case or to form any view upon the likely result of the action if allowed to proceed. Those matters can and should be left to some other occasion.

The applicant requires leave to appeal because he is challenging what is conceded to be an interlocutory judgment and s. 92 of the District Courts Act 1967 then imposes the requirement of leave. The Court in this case chose to allow full argument on the merits rather than decide the question of leave in isolation.

It is important to ensure that decisions on applications for extension of limitation periods apply correct principles. In considering whether an "important question of law or justice is involved" (see s. 92(2)) it may be appropriate in some cases to take a broader view.

A refusal of leave in cases like the present shuts out an applicant from pursuing a claim which may involve substantial damages. Decisions on leave applications in such cases are not guaranteed immunity from review simply because the tribunal deciding the matter has made no express statement of principle which is incorrect.

The decision of the judge in this case suggests that an incorrect test was applied when a conclusion was adopted concerning what a person in the position of the applicant would have realised. This conclusion was adopted, although the judge mentions no challenge as having been made to the applicant's evidence and it does not appear that he was cross-examined.

In this case the necessary leave should be granted.
The appeal should be allowed and in lieu of the order

made below it should be ordered that time for commencement of the applicant's proceedings is extended until 9 April, 1992 as the summons asks. The effect of this order will be to validate the applicant's proceedings already commenced.

It should be ordered that the respondent pay the applicant's costs of the appeal and of the proceedings below to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 71 of 1992

Brisbane

Before The Chief Justice

Mr. Justice Pincus

Mr. Justice Ambrose

[Shepherd v. Qld. Railways]

BETWEEN:

MALCOLM SHEPHERD

Plaintiff/Applicant

- and -

QUEENSLAND RAILWAYS

Defendant/Respondent

JUDGMENT - PINCUS J.A.

Judgment delivered 17/03/1993

This is an application for leave to appeal from an interlocutory judgment of the District Court. The applicant has filed a notice of appeal on the basis that he is entitled to appeal as of right, but it is conceded that leave is necessary, on the basis of Meddings v. Council of the City of Gold Coast [1988] 1 Qd.R. 528.

The order sought to be appealed against was one dismissing an application under s.31 of the Limitation of Actions Act 1974 for an order extending a period of limitation. The applicant's case before the District Court, and here, was that he was injured in an accident in the course of his employment on 26 June 1984 in circumstances suggestive of negligence or a breach of duty on the part of his employer, the Queensland Railways.

Section 31 of the Limitation of Actions Act 1974 applies to actions of the type which the applicant desires to bring against the respondent. The question is whether the Court should order the period of limitation to be extended under s.31(2), which reads as follows:

"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 one 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".

The issue before the District Court was whether there was a material fact of a decisive character of the kind mentioned in sub-paragraph (2)(a). The judge held that there was not and the applicant by his counsel argued that leave to appeal should be given under s.92(2) of the District Courts Act of 1967, under which the Court's power to grant leave to appeal is subject to the restriction that -

"... such leave shall not be granted unless some important question of law or justice is involved".

Counsel argued that there was an important question of justice involved in that, due to an error on the part of the District Court judge, the applicant had been deprived of a right he would otherwise have had to pursue his cause of action.

The applicant's counsel was allowed to develop at some length the argument which would have been advanced on the substantive appeal if leave were granted. The contention ultimately was that the material fact of a decisive character consisted in the applicant's having become aware of the result of a CT scan discussed below and of a medical opinion, said to have been based upon it. There were two components relied on: the CT scan and the doctor's opinion about it.

There was before the District Court an affidavit by the applicant to the effect that on 26 June 1984 he was working as a shunter in the respondent's marshalling yard at Chinchilla. In the course of that work, on a wet night, his foot slipped off the running board of a guard's van and as a result he failed in an attempt to mount the running board.

The train to which the van was attached continued to move and the applicant, according to the affidavit, was forced into the space between the platform and the guard's carriage, and the guard's van caught him across his "mid- back section". The applicant went to hospital for three days and it is said in the hospital report that he was found to have abrasions to his right groin area and left thigh.

When the applicant returned to work, after some weeks, he was stiff and sore around the injured area for about a further week, but then the soreness started to ease and he had no particular difficulties in performing his work.

However, shortly after May 1985, while still working as a shunter, he had severe back pain. The doctor who attended to him for that could find no objective evidence of a back problem. In June or July 1986, he had one day of severe back pain, but the pain ceased after pain killers were taken. From that date to October or November 1988, the applicant says he suffered from occasional back pain, but in November 1988 the back started to be quite painful. He was x-rayed and told that he had a degenerative disc problem about which nothing could be done. In August 1989, after a period of selling insurance, the applicant obtained work as a machinist for a period of six months and had problems with his back, but no time off work. In October 1990, he began to work at an abattoir, doing heavy lifting which he was able to perform without much difficulty, but about Christmas 1990, a CT scan was arranged, owing to the applicant's persistent back pain.

On 24 January 1991, there occurred the first component of what is relied on as the material fact. The CT scan showed "minor central protrusion" of the disc at L4-5.

There was also minor degenerative disease noted. So far as the evidence discloses, this was the first CT scan performed. Earlier, in November 1989, an x-ray had showed degenerative changes in the lumbar spine and narrowing of the L3-4 disc space, with early osteophytes. It is by no means clear that the CT scan showed anything significantly different from that which had been seen in the 1989 x-ray.

As to the second component of the material fact, this depends upon the evidence of a specialist, Dr. Hepple, which requires some analysis.

Dr. Hepple first saw the applicant for his back condition in April 1991, when he told the doctor he had had back aches for about two years. The description of the back aches was such as to make one think they must have been of a severe character. The applicant told the doctor he worked in a stooped position all day and on one occasion was affected so badly that he could not work. The doctor reported to the applicant's solicitors that the applicant's back disability was caused in part by prolonged stooping at work and in part by degenerative change in the lumbar spine.

Another report which Dr. Hepple made relating to the same examination, to the Workers' Compensation Board, contained the following statement:

"Mr. Shepherd does not relate any specific injury at work and his complaint is basically that he stoops a lot at work and finds that his back becomes painful while he is doing this. It varies from time to time and has been fluctuating in intensity for about two years. It appears to me that his disability is due to degenerative change in his lumbar spine in which symptoms are precipitated by prolonged stooping at work".

Each of the two reports just discussed states the result of the CT scan, but neither relates it to any injury at work.

It appears that shortly after the report to the solicitors was written, the applicant's solicitors made an inquiry of Dr. Hepple; in any event, he wrote to those solicitors on 23 October 1991 a brief letter reading in part as follows:

"I have no record of an injury to Mr. Shepherd's back in 1984. In fact when I first saw him about his back on 9th April, 1991, he dated his symptoms from a time about two years prior to my seeing him ...".

The last, and from the applicant's viewpoint critical, report from Dr. Hepple which is in the record is one to the applicant's solicitors dated 19 December 1991 which, after explaining the applicant's history, expresses the following opinion:

"It appears to me to be quite reasonable to assume that the forces applied to his lower back region when he was caught between a train and the edge of a platform could well have caused damage to the lower part of his lumbar spine and the probability is that they did do so and that they are in part responsible for his present disability".

Before coming to the applicant's criticism of the primary judge's treatment of the matter, an initial difficulty in the argument should be noted. This is that the report of 19 December 1991, which contains the opinion just quoted, makes no mention of the CT scan. There is nothing in it to support the suggestion that Dr. Hepple's view depended in any significant way upon the content of the scan report, although it does mention x-rays which were taken. It appears reasonably clear, on the face of it, that the reason for the apparent change in Dr. Hepple's view is that he obtained a different and fuller history from the applicant for the purposes of the report of 19 December 1991; the earlier reports make no mention of any injury in 1984, whereas the 19 December 1991 report discusses it and its consequences in some detail.

In the primary judge's reasons, after setting out a summary of the applicant's evidence, the judge explained that the applicant relied on the CT scan and Dr. Hepple's opinion of 19 December 1991 quoted above. As I have explained, before us the applicant's counsel relied upon the same two matters, in combination. The primary judge commented:

"In respect of the first matter, there is nothing in the material to suggest that the minor central protrusion of the L4-5 disc is related to the accident of 26th June 1984. Moreover, even if it could be related to the accident it cannot, in my view, be said that it was a material fact of a decisive character in that on becoming aware of it it enhanced the prospect of success on liability or significantly enlarged the damages likely to be recovered".

Although counsel for the applicant criticised the first sentence of this passage, it appears to be literally correct. Dr. Hepple does not say, nor does any other medical report express the view, that the protrusion referred to by the judge was caused by the 1984 injury.

What the judge was asked to infer, it appears, was that Dr. Hepple's opinion meant that that particular sign was due to the injury. The inference was certainly open, but without further elaboration of the doctor's opinion, one could not be confident of its correctness. The Court should not be taken to have such knowledge of the cause and progress of protrusions between spinal discs as to require it to draw that inference.

But a more important point is that as I have pointed out above, Dr. Hepple does not say or imply that the minor protrusion had any particular weight in the formation of his opinion. The protrusion may, for all one knows, have been simply a consequence, of no great significance in itself, of the progression of the lower back trouble.

The judge held that the protrusion could not be said to be a material fact of a decisive character and in my view that is correct.

It may be repetitive to say so, but is nevertheless important to recall that the argument of the applicant before us was based upon the combination of the CT scan and Dr. Hepple's advice about it. The submission was that Dr. Hepple said "that what is shown in the CT scan is in all probability caused by the accident". Dr. Hepple did not say that, nor did the advice of Dr. Hepple on which reliance is placed mention the CT scan.

The argument which was advanced cannot succeed.

To look at the matter more broadly - i.e. without regard to the correctness of the specific point taken - it is my view that, as the learned judge held, the applicant did not prove that which the statute required. After the events of 1984, he had from time to time back trouble of varying severity, with periods of remission. Putting aside the CT scan, which does not appear to be of any present relevance, the point to be considered is whether Dr. Hepple's opinion expressed in his 19 December 1991 report is such a material fact as is mentioned in the section quoted above. There was a back problem of fairly long standing, which on the applicant's account of the matter first began with his 1984 injury at work. The injury was, of course, within his knowledge, as was the fact that it caused some trouble with his back. What happened is that some seven years after that injury, a doctor, on his attention being directed to the point, expressed himself, not very positively, in favour of a causal connection between the applicant's current back condition and the 1984 injury.

There is no evidence that any enquiry had been made, prior to that directed to Dr. Hepple, as to the connection between the two. It was suggested in argument that the decision of the Full Court in Sugden v. Crawford [1989] 1 Qd.R. 683 supports the applicant's case. On examination, it is seen that the case related to rather a different factual problem.

There, the applicant had a back condition which was, at one stage, manifested only by what might be described as subjective complaints. A CT scan was taken which showed fractures and, in the Full Court's view, transformed the case from one of a type "apt to be regarded with scepticism", which scepticism was dispelled by the scan.

Here, it must always have been evident that there was a possible connection between the persistent back problem and the 1984 injury; that is no doubt why the solicitors, having a report from Dr. Hepple which did not connect the back trouble to the 1984 injury, referred the case back to Dr. Hepple to comment on that possibility. His having done so in terms rather favourable to the applicant's case cannot be enough, unless it be the law that ascertaining that a witness provide some support to the existence of a causal connection the possibility of which must always have been manifest is a material fact of the required kind. Finding an expert prepared to give a favourable opinion, as to a point on which dogmatism is plainly impossible, will not necessarily satisfy the statute.

In my opinion, even if one goes beyond the argument
put, based on the CT scan, the judge's decision was correct.

It is necessary to mention again that argument was heard on the merits of the matter, at some length. I am not to be taken as holding that such a course should routinely be followed on an application for leave or that the question whether the primary judge was right or wrong, on the facts, in a case of this sort is necessarily one justifying the grant of leave to appeal.

The application for leave to appeal should be dismissed and the appeal itself dismissed, with costs.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 71 of 1992

Brisbane

[Shepherd v. Qld. Railways]

BETWEEN:

MALCOLM SHEPHERD

Plaintiff/Applicant

AND:

QUEENSLAND RAILWAYS

Defendant/Respondent

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

The Chief Justice
Mr. Justice Pincus

Mr. Justice Ambrose

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

Judgment delivered 17/3/93 Judgment - B.W. Ambrose J. ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

CATCHWORDS:

Counsel:	D.A. Skennar for the Applicant. G. Koppenol for the Defendant.
Solicitors:	McCullough Robertson t/a for

Walker Penden for the Applicant.

Crown Solicitors for the Defendant.

Hearing Dates: 25/8/92 and 26/8/92.
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 71 of 1992

Brisbane

Before The Chief Justice
Mr. Justice Pincus
Mr. Justice Ambrose

[Shepherd v. Qld. Railways]

BETWEEN:

MALCOLM SHEPHERD

Plaintiff/Applicant

AND:

QUEENSLAND RAILWAYS

Defendant/Respondent

JUDGMENT - B.W. AMBROSE J.

Judgment delivered 17/3/93

The applicant seeks leave to appeal against the dismissal by a District Court Judge sitting in Chambers of his application for an extension of time within which to bring an action against the respondent in respect of an injury he suffered more than three years before he commenced an action in the District Court in respect of that injury.

The relevant section of the Limitation of Actions Act 1974-1981 for consideration upon the facts placed before the Chamber Judge is s. 31(2). To obtain an extension of time, the applicant was obliged to satisfy the requirements of both s. 31(2)(a) and s. 31(2)(b). Failure to satisfy any of the requirements of either subsection was fatal to his application.

In my view the applicant failed to satisfy the requirements of s. 31(2)(a) which required that he show:

"(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 ..."

Upon the facts of this case, the applicant was required

to show:

i)    A material fact of a decisive character,

ii) Relating to a right of action against the respondent,

iii) Was not within his means of knowledge before

17th January 1991 (one year prior to institution of the
present proceedings).
Upon the evidence in this case, the material fact of a

decisive nature upon which the applicant relies is that an injury to his back which occurred in June 1984 is the cause of back disability from which he has suffered since that time.

Upon the material before us, the applicant is now able to lead evidence to support that fact. Broadly stated he can give evidence himself as to how an injury to his back occurred and can call expert evidence of a medical practitioner that a back disability from which he has suffered since that time was caused by that injury.

Should his evidence and the evidence of the doctor be accepted, he would undoubtedly have a right of action (upon the assumption that he could show a connection between that injury and a breach of duty of the respondent) to recover damages against the respondent.

Whether the material fact was within the means of knowledge of the applicant prior to 17th January 1991 seems really to be the only issue for consideration upon this application.

The evidence place before the learned District Court Chamber Judge shows that in June 1984 in the course of his employment, the applicant was struck "across my mid-back section" by a moving carriage on a railway line. He was taken forthwith to Chinchilla Hospital where he remained as an in-patient for three days. Upon his discharge, he was off work for approximately four weeks recuperating from his back injury. Dr. Hilton who treated the applicant whilst in hospital and also upon his discharge, advised him to undertake only light duties for a couple of weeks. The applicant took this medical advice and for the first two weeks after his return to work more than a month after receiving his injury, performed only light duties. He then resumed his normal duties which involved shunting carriages on railway lines at Chinchilla, that being the sort of work he was doing when he suffered his back injury.

For the first week after his return to work and while performing light duties, he was stiff and sore around his hips and mid-back area, but eventually this soreness "started to ease".

After his return to normal work, the applicant suffered pain to his back only if he bumped himself on his right-hand side.

In May 1985 (less than 12 months after his back injury) the applicant was transferred from Chinchilla to Coppabella and shortly afterwards experienced "severe pain" in his back. He attended the outpatients' clinic at Ipswich General Hospital concerning his severe back pain. A medical practitioner "on duty" at that hospital informed him that he could find no evidence of a back problem. The applicant took analgesics for pain relief and on only one occasion in June or July 1986 had a day off from work because his back on that occasion was very sore and painful. The pain however settled after he had taken analgesics and he returned to work.

Between June and July 1986 until October or November 1988, the applicant suffered occasional back pain. In November 1988, his back became "quite painful". However he did not seek any medical treatment until one day when he experienced "crippling pain". The applicant received a pain-killing injection from Dr. Juhasz. Apparently this doctor treated the applicant for other matters but only on this one occasion for a painful back which was apparently relieved by the injection given. Eventually in November 1988, the applicant's back was again causing him such pain that he consulted Dr. Keller. Dr. Keller had an x-ray of the applicant's back performed and told him that he thought that he had a degenerative disc problem and that there was nothing that could be done about it.

There is no evidence from the applicant that he informed Dr. Juhasz or Dr. Keller about the circumstances of the back injury he sustained in June 1984.

Towards the end of 1989, the applicant obtained employment as a machinist with the Darling Downs Bacon Co- operative. He then experienced back pain although he did not lose any time from work. In October 1990, the applicant commenced to work for the Oakey Abattoirs. This work required him to lift weights of about 80 pounds. He was able to do this without too much difficulty although it appears that he was still suffering from back pain. At the end of 1990, the applicant was suffering from back pain and again consulted Dr. Keller (who had diagnosed his back pain as the consequence of a degenerative disc problem in November 1988). At the end of 1990, Dr. Keller arranged for the applicant to have a C.T. scan. This scan was performed on 24th January 1991, and showed a central protrusion at the L4/5 level of the applicant's spine.

On 9th April 1991, Dr. Hepple examined the applicant for the Workers' Compensation Board. Dr. Hepple had the results of the C.T. scan, taken on 24th January 1991.

According to Dr. Hepple, the applicant gave him a history of back pain and said that he had had the trouble about which he complained for about two years. According to Dr. Hepple, the applicant did not relate any specific injury at his work place and complained basically that he had to stoop a lot at work and he found that his back became painful when he was doing this. It is clear that the applicant did not even in April 1991 inform the orthopaedic expert of any back injury suffered in June 1984. Dr. Hepple then diagnosed the applicant's back trouble with his lumbar spine "as a result in part of strains to his lumbar spine by prolonged stooping at work and partly due to degenerative changes in the lumbar spine with the process of ageing". In a subsequent report of 13th June 1991, Dr. Hepple confirmed the history of pain etc., given to him by the applicant previously and advised that:

"Mr. Shepherd does not relate any specific injury at work and his complaint is basically that he stoops a lot at work and finds that his back becomes painful while he is doing this."

On this occasion, Dr. Hepple assessed the "permanent partial disability at 20 per cent loss of function of his lumbar spine. I regard most of this as being due to underlying degenerative age related changes and to a lesser degree to superimposed strains at work".

It seems on the material that in spite of the pain which the applicant experienced in his back from date of injury in June 1984 until the date relevant for his application - 17th January 1991 - the applicant during this period informed no doctor, other than those who treated him at Chinchilla Hospital of the injury he suffered in 1984 which apparently then for the first time produced pain in his back and which it is now his case is still producing pain in his back.

However, in a medical report from Dr. Hepple to the solicitors for the applicant dated 19th December 1991, consideration is given, apparently for the first time, to the possibility of the back pain then being suffered by the applicant being connected in some way with the injury he sustained in June 1984. It is not clear from the medical report of Dr. Hepple that he did in fact examine the applicant again prior to writing this report. The letter is addressed to the solicitors for the applicant. The record contains copies of letters from Dr. Hepple dated 26th September 1991, 23rd October 1991 and 19th December 1991, the terms of which indicate that the inquiries made of that doctor concerning the June 1984 injury were made by the applicant's solicitors rather than by the applicant himself.

Similarly the letter from Dr. McDonnell of 8th October 1991 provides information to the applicant's solicitors apparently at their request concerning the failure of the applicant to seek medical consideration for his back. Dr. Hepple analyses what is apparently a hospital report from Chinchilla Hospital from Dr. Slack relating to treatment the applicant received in June 1984.

However, Dr. Hepple then proceeds to state in detail matters which had obviously never before been placed before him for his consideration relating to the injury the applicant suffered in June 1984. It is convenient to state this recently compiled history of pain and inactivity etc. because it is upon the opinion of Dr. Hepple given in his report of 19th December 1991 that the applicant relies as the "material fact of a decisive character" under s. 31(2)(a) of the Limitations Act to support his application for extension of time. That opinion is expressed in the following terms:

"It appears to me to be quite reasonable to assume that the forces applied to his lower back region when he was caught between a train and the edge of the platform could well have caused damage to the lower part of his lumbar spine and the probability is that they did do so and that they are in part responsible for his present disability."

It is instructive to consider the history so recently given to Dr. Hepple presumably by the solicitors for the applicant or possibly perhaps by the applicant himself.

That history reads as follows:

"Soon after the accident in Chinchilla in 1984 he
had pains across his lower back on both sides.
About every six months or so he would have pains
in his lower back necessitating that he walk with
his hips and knees flexed with periods of freedom
between these attacks. These attacks of pain
lasted about a day but in 1988 the attacks would
last for several days on end. His last work was

at Oakey Abattoirs where he ceased on 27th March
1991. Since then he has been taking pain killers
for his back pain as necessary ... He had a crook
back before he started working at the Oakey
Abattoirs where he started work about October
1990. He feels the disability since then is due
to an aggravation of his previous trouble. He
hadn't had any trouble with his back before the
injury at Chinchilla in 1984 ... "
Section 30 of the Limitation Act 1971-84 provides inter

alia that for the purpose of s. 31(2):

"(a) The material facts relating to a right of
action include the following

i) ... ii) ... iii) the fact that the negligence ... causes

personal injury,

iv) the nature and extent of the personal injury so caused, and

v)   the extent to which the personal injury is caused by the negligence ..."

"(b) The material facts relating to a right of action are of a decisive character if, but only if, a reasonable man knowing those facts and having taken the appropriate advice on those facts would regard those facts as showing:

i)    that action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

ii) that the person whose means of knowledge is in question ought in his own interests and taking his circumstances into account to bring an action on the right of action."

"(c) 'Appropriate advice' in relation to facts means the advice of competent persons qualified in their respective fields to advise on the medical legal and other aspects of the facts as the case may require."

"(d) A fact is not within the means of knowledge
of a person at a particular time if, but only if:

i)   he did not at that time know the fact; and

ii) so far as the fact is capable of being ascertained by him he has before that time taken all reasonable steps to ascertain that fact."

The inference that it was the solicitors for the applicant who provided the history relating to the 1984 injury to Dr. Hepple is consistent with the terms of that doctor's report to those solicitors dated 23rd October 1991 which records:

"I have no record of an injury to Mr. Shepherd's back in 1984. In fact when I first saw him about his back on 9th April 1991 he dated his symptoms from a time about two years prior to my seeing him and also stated that on the occasion of his consultation with me on 9th April 1991 this had been the first time he had been off work with his back pain."

Accepting that the history of the 1984 injury to the applicant and that the pain and disability which the applicant attributes to it are accurately set forth in the report of Dr. Hepple dated 19th December 1991, it appears clear that:

a)	Prior to the June 1984 back injury, the applicant had had no back trouble.
b)	That the 1984 injury required the applicant to go to hospital for three days and to have one month off work as a railway employee upon Workers' Compensation.
c)	From the time of the 1984 injury, the applicant has suffered pains in his back from time to time.
d)	Every six months or so after the 1984 injury he had pain in his lower back necessitating that he walk with flexed hips and knees to cope with that pain.
e)	By 1988 the attacks of pain in his back which initially had lasted for only about one day, would last for several days.

In my judgment the report from Dr. Hepple setting forth as it purports to do the history of the applicant's back pain must be considered in the light of the provisions of s. 30 of the Act, and in particular consideration must be given to whether a reasonable man knowing the facts the applicant gave to Dr. Hepple would have consulted doctors and/or legal advisers concerning those facts long before 17th January 1991. Expressed another way, one must consider whether the applicant knowing the facts which either he or his solicitors gave to Dr. Hepple ought in his own interest and taking his own circumstances into account, have taken appropriate medical and legal advice and brought his action prior to 17th January 1991.

In my view upon the evidence led on behalf of the applicant, he failed to take reasonable steps to ascertain "the material fact of a decisive character" to which I have referred. He appears to have failed to obtain either medical or legal advice on facts within his own knowledge relevant to any right of action in respect of his 1984 injury prior to January 1991. Indeed he seems not to have sought such advice prior to the end of 1991 when either he or his solicitors took the trouble to place the material within his own knowledge relating to his injury in 1984 before Dr. Hepple.

The expression of Dr. Hepple's opinion undoubtedly is something upon which a court could rely to infer the material fact of a decisive nature upon which the applicant relies.

If one treats s. 30(a)(iii), (iv), (v) of the Act as encompassing either the existence or the expression of such an opinion, it would, unless the provisions of s. 30(b), (c) and (d) were given full effect, extend so greatly the effect of s. 31 as to deprive the defendant of the benefit which the Act was obviously designed to bestow on it.

The effect of legislative provisions in terms similar to s. 30(b), (c) and (d) is considered by Lord Pearson in Smith v. Central Asbestos Co. (1973) A.C. 518 at p. 541 l. F to p. 542 l. B

"... Having regard to the potential hardships on both sides, and also to the length and complexity of the provisions, I think it is reasonable to suppose that Parliament was intending to strike a fair balance between the reasonable interests of plaintiffs and the reasonable interests of defendants, so that neither side would be exposed to extreme hardship.

In order to strike that balance Parliament would have to draw a line somewhere between the kind of ignorance which is to be a sufficient excuse for lateness in bringing an action and the kind of ignorance which is not to be a sufficient excuse for such lateness. It seems to me that Parliament has drawn the line between ignorance of facts (material and decisive facts) and failing to draw the conclusions which a reasonable man, with the aid of expert advice, would have drawn from those facts as to the prospect of success in an action. If the plaintiff did not know one or more of the material and decisive facts, his lateness in bringing the action is excused. If he knew all the material and decisive facts, but failed to appreciate his prospects of success in an action because he did not take expert advice or obtained wrong expert advice, his lateness in bringing the action is not excused. It seems to me that is the broad effect of subsections (3) and (4) of section 7 of the Act. That is where the line is drawn. ..."

At p. 544, Lord Pearson considers the test for

"decisive character" in the following terms:

"... In my opinion, the phrase 'the material facts' in subsection (3) of section 7 can and should be given its natural meaning. It refers to matters of fact, not conclusions of law. The matters of fact are such as would be decided by a jury in a trial by judge and jury, and such as can be known by the injured person before he has taken legal advice.

The facts, however, have to be not only 'material' under subsection (3) of section 7, but also 'of a decisive character' under subsection (4). ..."

"... The test for 'decisive character' is purely objective: a hypothetical reasonable person is deemed to know the material facts and to take appropriate advice (presumably from the hypothetical legal adviser who is envisaged in the definition of 'appropriate advice' in subsection (8)) and then he forms a hypothetical opinion as to the prospects of success in an action. The 'decisive character' of the 'material facts' depends solely on the results of this objective test, and does not depend at all on what the plaintiff knows or thinks or does or omits to do. Suppose that the plaintiff has for some good

reason omitted to take legal advice, or that he has obtained legal advice which was wrong: that is the plaintiff's misfortune which does not deprive the material facts of their decisive character, if they qualify according to the objective test provided by subsection (4).

Subsection (5) of section 7 explains what is meant by a fact being 'outside the knowledge (actual or constructive) of a person.'

Constructive knowledge is evidently brought in for the benefit of defendants, so that the plaintiff is, so to speak, debited with knowledge of a fact if he could have ascertained it by taking reasonable steps. Thus subsection (5) is concerned with actual or constructive knowledge of facts by the proposed or actual plaintiff. It is not concerned with actual or constructive formation of a legal opinion by a hypothetical person, on hypothetical advice, as to the existence or non-existence of a worthwhile cause of action. ..."

Assuming for the purposes of the present case, that the opinion of Dr. Hepple be properly categorised as "a material fact", in my view it cannot be said that it is one of "a decisive character" because it does not satisfy the requirements of s. 30(b), (c), or (d).

In my judgment a reasonable man who suffered a back injury in June 1984 with the history of back pain which the solicitors for the applicant provided to Dr. Hepple subsequent to 17th January 1991, would long before that time have taken "appropriate advice" within the meaning of s. 30 (b) and s. 30(c), and would have regarded the facts placed before Dr. Hepple in December 1991, all of which were obviously within his knowledge at all material times, as showing the things specified in s. 30(b)(i) and (ii) of the Act. The opinion expressed by Dr. Hepple in his report of 19th December 1991 cannot be said not to have been within the applicant's means of knowledge prior to 17th January 1991 (vide s. 30(d)(ii)) because it could not be said that he had taken all reasonable steps to obtain a report of that kind prior to 17th January 1991.

This court took a similar view in Berg v. Kruger Enterprises (Division of Besser Qld Limited) (1990) 2 Qd.R. 301 at p. 303 l. 35 to 45.

I agree with the views expressed by the Chief Justice and Pincus J.A. that upon the facts of the case the result of the C.T. scan of the applicant's lumbar spine dated 24th January 1991 cannot properly be categorised as a material fact of a decisive character because there is not demonstrated any arguable connection between that C.T. scan and any injury the applicant may have suffered in June 1984.

I would dismiss the application for leave to appeal.