Silvester Brothers (Amhuk) Ltd v Evans

[1999] QCA 111

99.111

URT OF APPEAL

JERSEY CJ

VIES JA OMAS JA

peal No 9819 of 1998

LVESTER BROTHERS Appellant

MHUK) LIMITED	(First Defendant)
d

THONY JAMES EVANS Respondent

(Plaintiff)

ISBANE

DATE 09/04/99

DGMENT
E CHIEF JUSTICE: The appellant appeals against an order
de under section 31 of the Limitations of Actions Act
tending a limitation period in respect of a cause of
tion by the respondent against his employer, the
pellant, arising out of an incident on 21 November 1989.
e respondent injured his left shoulder. The learned
imary Judge extended the limitation period until 6
bruary 1998 when the writ issued.
e relevant material fact grounding the extension was a
vourable specialist opinion as to the existence of a
usal link between the actual and prospective left shoulder
mptomatology and the 1989 injury. That came to the actual
owledge of the respondent on 16 October 1997 through an

thopaedic surgeon, Dr Shaw.

e only matter pursued before His Honour was the issue of
risdiction to entertain an extension application in
ntext of failure to take all reasonable steps to find out
at fact before the commencement of a period of 12 months
ior to the issue of the writ, that is 6 February 1997.
s Honour found that a person acting reasonably in the
sition of and with the understanding of the respondent

uld not have taken further steps earlier than October 1997

ascertain that fact.

e test under section 30 paragraph C is an objective one to

applied to a person in the position and with the

derstanding of the plaintiff (see Castlemaine Perkins
mited and McPhee [1979] QdR 469).
e factual issues before His Honour were first whether the
spondent unreasonably failed to obtain proper medical
vice in that he chose to rely on the, in a sense, adverse
ports of Drs MacFarlane and Liebowitz in circumstances
ere he had previously consulted and gained some arguable
pport the other way from Dr White to whom he had been
ferred by his general practitioner; and second, any
gnificance of his failure to produce for further medical
inion X-rays which were obtained in January 1990 but which

had mislaid until after he obtained legal advice in 1994.

s to the first of those matters, the learned Judge said:

"The applicant was entitled to rely on the expressions
of opinion of Dr MacFarlane, an orthopaedic surgeon,
and Dr Liebowitz. It is relevant to that conclusion
that his reliance was against a background of legal
advice which he had sought and accepted and in
circumstances in which he was well able to continue
working and was, in fact, continuing to work without
any material difficulty. In my view it is expecting
rather too much of a person acting reasonably `in the
position and with the understanding' of the applicant.
to question the advice of specialist medical
practitioners and to advert to the desirability of a

further opinion."

to the second of those issues, the Judge was influenced

favour of the applicant/plaintiff by the circumstance

at the applicant had been presented with the opinions of

o medical specialists and as he concluded:

"There was nothing which would cause him to form the
view that a reference back to Dr White or a referring
of Dr White's report to another medical practitioner

would be of any particular assistance."

said, in addition:

"he was entitled to have regard to the fact that
although Dr Liebowitz did not have access to the X-rays
he had given his 1994 report with the benefit of the
report which accompanied the X-rays."

s Honour concluded:

"A person in the position of the applicant could not
reasonably be expected to think that the showing of the
X-rays to yet another medical practitioner or to
Dr Liebowitz would be likely to bring about any change

in the opinions earlier expressed."

was influenced by his assessment of the applicant as he

ve evidence and Mr Douglas, who appeared today for the
pellant, sought to draw support from some of the answers
ven in cross-examination by the applicant but as to that

s Honour said:

"It is necessary to have regard to the applicant's
relative lack of education and relevant sophistication
when assessing the reasonableness of his conduct. In
cross-examination he conceded an awareness of the
reference to the missing X-rays and Dr Liebowitz's
report and that the X-rays were relevant to the forming
of a relevant medical opinion. However, it is not
necessarily unreasonable for a person not to have
constantly at the front of his mind the desirability of
reviewing and upgrading prior advice when another piece
of relevant information comes to hand. The applicant
was an accommodating witness. In my view he was
inclined to give unqualified answers to questions in
circumstances in which a more sophisticated, but
truthful witness, would have given a qualified answer.

The applicant did not turn his mind to the

significance of the X-rays when rediscovered and his

inaction in that regard was not unreasonable."

consider that there was reasonable ground for those
nclusions and that for us to depart from them would be
ntrary to the approach an appellate Court should take
nscious of the limitations expressed in such cases as
veries and Australia National Railways Commission (1993)
7 Commonwealth Law Reports 472. Taking the view that
ose findings and that approach were reasonably open, I
uld dismiss the appeal.

VIES JA: I agree. OMAS JA: I agree.

E CHIEF JUSTICE: The appeal is dismissed with costs to be xed.

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