Spain v Dipompo Jacs Constructions Pty Ltd
[2009] QCA 323
•23 October 2009
SUPREME COURT OF QUEENSLAND
CITATION:
Spain v Dipompo Jacs Constructions P/L & Anor [2009] QCA 323
PARTIES:
JOHN SPAIN
(applicant/respondent)
v
WORKCOVER QUEENSLAND
(first respondent/first appellant)
DIPOMPO JACS CONSTRUCTIONS PTY LTD
ACN 079 467 262
(second respondent/second appellant)FILE NO/S: Appeal No 3632 of 2009
SC No 11107 of 2008DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
23 October 2009
DELIVERED AT:
Brisbane
HEARING DATE:
11 September 2009
JUDGES:
McMurdo P, Keane and Holmes JJA
Separate reasons for judgment of each member of the Court, Keane and Holmes JJA agreeing as to the orders made, McMurdo P dissenting as to the orders madeORDERS:
1. Appeal allowed
2. Orders of the learned primary judge set aside
3. Respondent to pay the costs of the application below and of the appeal to be assessed on the standard basis
CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – respondent claims he injured his back in November 2002 during his employment with the second appellant – respondent wishes to commence an action against the employer for damages for personal injuries but the limitation period has expired – respondent claims he was unaware of a material fact of a decisive character – whether the nature and extent of injury within respondent's means of knowledge before July 2008 – whether extension should have been granted
Limitation of Actions Act 1974 (Qld), s 31
Beale v Government Insurance of NSW (1997) 48 NSWLR 430, cited
Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136, cited
Castensen v Frankipile Australia [2004] QSC 145, cited
Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697, cited
Healy v Femdale Pty Ltd [1993] QCA 210, cited
Jocumsen v Thiess P/L & Anor [2005] QCA 198, cited
Kambarbakis v G & L Scaffold Contracting P/L [2008] QCA 262, cited
Mifsud v Campbell (1991) 21 NSWLR 725, cited
Mirage Resorts Holdings P/L as Trustee of the Mariners Paradise Property Trust v Brellen P/L [2003] QCA 579, cited
Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, considered
Pizer v Ansett Australia Ltd [1998] QCA 298, cited
Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20, consideredCOUNSEL: K F Holyoak for the appellants
R J Lynch for the respondentSOLICITORS:
McInnes Wilson Lawyers for the appellants
Nathan Lawyers for the respondent
McMURDO P: The respondent, John Spain, claims he injured his back in November 2002 in his employment as a construction form worker with the second appellant, Dipompo Jacs Constructions Pty Ltd. He claims the employer did not have in place a safe system of work to cope with the regular heavy lifting required of Mr Spain and this caused his 2002 back injury. He wants to commence an action against the employer for damages for personal injuries but the limitation period has expired. He successfully brought an application in the Trial Division of this Court under s 31 Limitation of Actions Act 1974 (Qld) to extend the limitation period. The first appellant, WorkCover Queensland and the employer (the respondents to that application) have appealed from that decision. They contend that the learned primary judge erred both in construing s 31 and in exercising the discretion it confers.
No order was taken out prior to the filing of the appeal, but, with the concurrence of all parties, this Court remedied that irregularity[1] at the commencement of the hearing of the appeal by giving leave to file the order initialled by the primary judge and deeming it to have been filed on the date the reasons were given.
[1]See Uniform Civil Procedure Rules 1999 (Qld), r 660 and r 661.
Unlike my colleagues, I would dismiss the appeal. These are my reasons.
The relevant provisions of the Act
Section 31 relevantly provides for a court to extend a limitation period:
"31 Ordinary actions
(1) This section applies to actions for damages for negligence, … or breach of duty … where the damages claimed by the plaintiff for the negligence, … or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
(2) 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 1 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 pertinent interpretation section of the Act, s 30, relevantly provides:
…
(a) the material facts relating to a right of action include the following—
…
(iv) the nature and extent of the personal injury so caused;
(v) the extent to which the personal injury is caused by the negligence … or breach of duty;
(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—
(i) that an 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 the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
(c) a fact is not within the means of knowledge of a person at a particular time if, but only if—
(i) the person does not know the fact at that time; and
(ii) as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.
(2) In this section—
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."
The relevant evidence
The following evidence bears on the questions raised in this appeal.
Mr Spain, who is now 35 years old, began working for the employer in April 2002 as a construction form worker, a job involving heavy manual labour. He noticed a slight ache in his lower back on 8 November 2002 which gradually worsened. By 22 November 2002 he was unable to dress or get out of bed and he stopped work. On 2 December 2002 he lodged an application for compensation with WorkCover. He was off work and in receipt of workers' compensation benefits until 22 January 2003, when he returned to his employment. He was cleared to do so by his medical practitioner who diagnosed muscle spasms in the back and advised him to apply heat and take anti-inflammatory medication.
Mr Spain's symptoms continued over the next two years. In 2004 his back became so painful that he again consulted a general practitioner, Dr Wong. Mr Spain told Dr Wong that he was prepared to consider surgery if advised. Dr Wong referred him for a CT scan, the report of which relevantly noted:
"L5/S1 Level: There is a subtle retrolisthesis of L5 on S1. There is a broadbased posterior disc bulge most marked on the left posterolaterally where it abuts and appears to posteriorly displace the descending portion of the left S1 nerve root … . The L5 nerve roots exit unimpeded. Incidental finding of mild bony scalloping at the medial aspect of the left L5/S1 facet joint suggesting a synovial cyst. No further abnormality seen."
Mr Spain insisted that the only advice Dr Wong gave him was to stop jogging. Dr Wong did not recall receiving the CT scan or advising Mr Spain on it. Had he received the scan, he would have advised Mr Spain to undergo conservative treatment, including rest, avoiding heavy manual handling and taking time off work. Were this unsuccessful, he would have advised review by a neurosurgeon. Dr Wong's notes do not indicate that he gave Mr Spain any such advice and he has no recollection of doing so.
After consulting Dr Wong in 2004, Mr Spain continued working for the employer. He stopped jogging, but his back symptoms continued with the level of pain varying. He was able to manage the pain and to continue working using non-prescription analgesia, anti-inflammatory medication, rest, taking care in the way he lifted items, and using his annual leave and rostered days off. Although he consulted Dr Wong on 16 occasions between 2004 and 2008, Mr Spain did not consult a medical practitioner about his back pain until mid-2008.
In the 2006-2007 financial year, Mr Spain tired of working in pain as a construction form worker and decided to change his career. He became an apprentice plumber. He saw this as a career advancement. Once qualified, his remuneration would increase. The work would not be as heavy, although it had some heavy physical aspects. His quality of life would improve. He would be more employable and more able to "pick and choose" jobs. His employment as a construction form worker routinely involved working 10 hours a day, six days a week. Qualified plumbers were more in demand than construction form workers and a plumbing career may have enabled him to earn a high income working in the mines. His decision to become an apprentice plumber was influenced by lifestyle considerations. As a mature age apprentice he was able to earn a reasonable income. He had a short term drop in income but once qualified he expected to earn more and work less hours than as a construction form worker. He eventually stopped work as an apprentice plumber because the company employing him was placed in liquidation. He returned to construction form work until he could no longer do so because of the pain.
As a result of his back pain preventing him from working, Mr Spain contacted WorkCover in mid-2008 to re-open his claim. WorkCover arranged for Dr Harding to examine him on 1 July 2008. Dr Harding assessed him as having a lumbosacral spinal injury associated with a partial permanent impairment of six per cent. Dr Harding recorded in his report that Mr Spain told him that his general practitioner advised in 2004:
"to permanently avoid running or heavy manual handling activities. The worker stated that he has not received any further treatment or undergone any further investigations or rehabilitation with respect to chronic lower back pain symptomatology since the CT scan of November 2004.
… The worker reported chronic lower back pain present since November, 2002 at a level of 4 to 5 out of 10 on the visual analogue pain score (VAS - where [0] equals no pain and 10 equals the worst pain experienced by Mr Spain). Pain symptomatology is said to be worsened with the following activities:-
o Cold weather
o Heavy manual handling
o Sitting for more than one hourChronic lower back pain symptomatology was said to be exacerbated approximately six times a year with the exacerbations associated with heavy manual handling activities in the workplace. On average, approximately one to two weeks absence from the workplace per year is required in conjunction with the exacerbation of lower back pain symptoms. The worker reported a requirement for a transfer from the area of concrete formwork, an occupation considered to involve heavy physical labour, to lighter physical work in a current position as a plumber/drainer/gas fitter’s apprentice.
… Mr Spain reported the ongoing requirement for narcotic-based medication to control lower back pain in the form of Panadeine Forte. The prescription for this medication is reportedly required on average six times a year to control lower back pain symptoms during periods of exacerbation."
WorkCover, in a notice of assessment dated 8 July 2008, offered Mr Spain lump sum compensation of $12,467.40, describing his condition as a "spinal injury".
Mr Spain consulted a new general practitioner, Dr Ratnam on 8 July 2008. Mr Spain gave information about the history of his back pain to his sister which she recorded by hand. The statement was provided to Dr Ratnam and contained the following information:
"From [returning to work in January 2003] and up until 10.7.06 I had also work for several construction companies employed as a form work carpenter. Throughout this period I was forced to take annual leave and RDO's due to continuous inflammation. I was to concerned to give reason for my absence from work as I felt it would jeopardise my future employment. Also throughout this time I was elected by my fellow employees as WH&S rep + union delegate, I reluctantly accepted these positions knowing that it would give me time off the tools.
10.7.06
I became extremely concerned with the condition of my lower back and was forced to look for a new career path. I gained employment as an apprentise plumber with Apprentiships Qld. I transferred my apprenticeship from Apprentiships Qld to Contrax Pty Ltd. This company was liquidated in May 2008. I was then forced to go back into form work with a company known as Triform Constructions. I was only with this company for approximately a month when I felt my lower back injury start to flare up again. … ." (errors as in the original)
Mr Spain made no reference to his sister's notes in his affidavit material in support of the application, but he was cross-examined about them at the hearing of the application:
"You became concerned with the condition of your lower back and you were forced to look for a new career path?-- No, that’s not because of the condition of my back.
No?-- No.
Have you ever said that to anybody? That you were forced to look for a new career path because of the condition of your lower back and your concern for the condition of your lower back?-- I don’t recall, no.
Well, is it possible you did?-- I don’t think so, no.
All right?-- I looked for a new career path because at the time the government was handing out big incentives for mature age apprentices and plumbers, who are on much higher money. They have better lifestyles. You can pick and choose what jobs you want. It was in my intention to become self-employed for later on in life.
One of the reasons you changed career from the form worker was because of the condition of your back?-- No.
Not at all?-- Not at all.
So, Mr Spain, your evidence to the Court is that notwithstanding the pain you had since 2002 through to 2004 up to 2006 it never entered your mind to change careers at least partly because of the conditions of your back?-- No, the biggest influence was all the grants the government was handing out to mature age apprentices.
Mmm?-- More than anything, quality of lifestyle, more money. I was just more interested in bettering myself.
…
Would you look at that document, please, Mr Spain? -- Yes.
You’ve seen that document before, haven’t you, Mr Spain?-- Yes.
Is that in your handwriting?-- No.
Is that information you gave Dr Ratnam?-- No, that is my sister’s handwriting.
It is your sister’s handwriting?-- Yes.
Did you give that information to your sister?-- Yes.
She wrote it down?-- Yes.
So that is recorded by your sister as you gave it to her, is that correct?-- Yes.
That document is truthful and accurate, isn’t it?-- Pretty accurate, yeah.
You gave that document to Dr Ratnam?-- Yes.
It is part of his file, isn’t it?-- I’d say so, yes.
Can I take you to page 3 of it?-- Yes.
'I became extremely concerned with the condition of my lower back and was forced to look for a new career path.' 10 July 2006. That is the truth, isn’t it, Mr Spain?-- It was a concern to me, yes.
No, that is the truth, Mr Spain. That is the truth?-- It is written down.
That is the truth. Can you answer the question?-- Yes.
Earlier you resisted that notion when I put it to you. Why was that?-- I don’t remember - because I never wrote it. I must have said it to my sister for her to write it but, yeah, I didn’t recall it because I never actually documented it myself.
The rest of the paragraph I put to you earlier and you accepted as truthful?-- Yep.
If you look at page 2 of the document please, Mr Spain?-- Yep.
'Throughout this period I was forced to take leave.'?-- Yep.
That is all true as well, isn’t it?-- Yep.
See, Mr Spain, by July 2006 your concern was extreme about the condition of your lower back and you knew you had to change jobs because of it, didn’t you?-- The thought was there but my main interest was I was endeavouring to become - to have my own little business where I could pick and choose my jobs."
Dr Ratnam arranged a further CT scan on 9 July 2008. It showed a posterior disc bulge at L4/L5, and a central posterior disc protrusion with mass effect on the thecal sac at the L5/S1. Dr Ratnam referred Mr Spain to neurologist, Dr Sarah Olson. She examined Mr Spain in early August 2008 and, after reading the CT scan, advised:
"… I think he is really going to struggle in his job as a construction carpenter (sic). … Ideally he shouldn't lift anything more than 20kg and of course this is very difficult for [Mr Spain] in his vocation."
Until July 2008, Mr Spain understood his injury was musculo-ligamentous and that this was the cause of the painful muscle spasms in his back. He believed his injury was minor and would resolve in time. Only in July 2008 did he become aware that the injury he sustained "was more serious and involved [his] spine" and that it meant he should not resume his employment as a form work labourer. He then realised that he had no readily transferable skills or qualifications; that he faced significant financial hardship as a result of his injuries which he believed were the fault of the employer; and that he should bring a claim against the employer.
The primary judge's reasons
Before turning directly to the issues in this appeal, it is necessary to understand the primary judge's reasons for granting Mr Spain's application to extend the limitation period. After setting out the relevant background factual matrix, her Honour referred in more detail to the following evidence.
In November 2004 Mr Spain suffered lower back pain when jogging. He consulted Dr Wong and had a CT scan of the lumbar spine.[2] Mr Spain said that he did not read the report of that scan; the envelope containing it was marked to be opened only by the doctor.[3] The CT scan report recorded that Mr Spain had given a history of "low back ache after running".[4] Dr Wong's notes indicated that Mr Spain next saw him on 6 December 2004 for an unrelated matter. They contained no further record of the CT scan report or of Mr Spain's back pain.[5] Mr Spain considered that his 2004 back pain was an exacerbation of the earlier muscular spasms. Mr Spain understood Dr Wong's advice was to stop running and that he was not told to stop "heavy manual handling activities". From May 2005 until May 2008, Mr Spain consulted Dr Wong on 16 occasions but did not receive any further treatment or investigation of his chronic lower back pain.[6]
[2]See [8] of these reasons.
[3][2008] QSC 50 at [7].
[4][2008] QSC 50 at [6].
[5][2008] QSC 50 at [7].
[6][2008] QSC 50 at [8].
In May 2008, Mr Spain informed WorkCover that he had ongoing pain since his 2004 claim and that he wished to re-open his claim.[7] In a letter dated 8 July 2008,[8] WorkCover offered him a lump sum payment for his lumbo-sacral spinal injury with a work-related impairment assessed at six per cent. Mr Spain then consulted a different general practitioner who sent him for further tests. He learned he had bulges in his spine. Mr Spain was referred to neurosurgeon, Dr Olson, who advised him that he could no longer work as a construction worker. Until July 2008, Mr Spain considered that his injury was a musculo-ligamentous injury which was causing muscle spasms. Only in July 2008 was he advised that his injury was more serious and involved his spine.[9]
[7][2008] QSC 50 at [9].
[8][2008] QSC 50 at [10].
[9][2008] QSC 50 at [11].
The judge found that there was evidence that Mr Spain had a right of action in negligence or breach of statutory duty against the employer, apart from the defence founded on the expiration of the limitation period.[10]
[10][2008] QSC 50 at [13] and see s 31(2)(b) of the Act.
The limitation period applicable to this claim expired between April and November 2005.[11] After setting out s 31, the judge noted that she could make an order under it only if a material fact of a decisive character relating to the right of action was not within Mr Spain's means of knowledge until after the period 18 April 2004 to November 2004 and no earlier than 23 January 2008 or 8 July 2008.[12]
[11][2008] QSC 50 at [15].
[12][2008] QSC 50 at [17].
Mr Spain's case was that at no time prior to 8 July 2008 did he understand the actual extent and severity of his injury but, on the basis of information he received in July 2008, he understood that it was more serious than he was told when he applied for compensation in December 2002. WorkCover's assessment of 8 July 2008 clearly indicated that the injury was a spinal injury which prevented him working in the construction industry.[13] This was a material fact of a decisive character relating to Mr Spain's right of action which was not within his means of knowledge until a date after the commencement of the year last preceding the expiration of the period of limitation for the action. In essence, Mr Spain did not realise he had suffered a spinal injury until he received WorkCover's notice of assessment on 8 July 2008.[14]
[13][2008] QSC 50 at [18].
[14][2008] QSC 50 at [19].
The judge set out the appellants' contentions in this way. If Mr Spain knew of the content of the CT scan of 4 November 2004, then WorkCover's notice of assessment on 8 July 2008 was incapable of being a material fact and there were questions as to whether it was of a decisive character and whether it was within the reasonable means of knowledge of Mr Spain.[15] In Queensland v Stephenson,[16] the majority of the High Court noted that, under s 31(2)(a), awareness before the relevant date of a material fact of itself will be of no significance unless the awareness is of a material fact of a decisive character.[17] Mr Spain had not established that he found out for the first time in July 2008 that he had a spinal injury because the report of Dr Harding of 1 July 2008 stated that Mr Spain told Dr Harding that his general practitioner had advised him to permanently give up running and heavy manual handling activities.[18]
[15][2008] QSC 50 at [20].
[16](2006) 226 CLR 197.
[17][2009] QSC 50 at [21]-[22].
[18][2008] QSC 50 at [23].
The judge noted that Mr Spain did not recall providing Dr Harding with a copy of the November 2004 CT scan. While Dr Wong advised Mr Spain to give up running, Mr Spain did not recall telling Dr Harding that he was advised to permanently avoid heavy manual handling activities. Mr Spain's evidence was that he was unaware of the serious nature of his injury until July 2008 when Dr Olson told him he had a disc protrusion and would not be able to work as a construction form worker.
The judge accepted Mr Spain's evidence that it was only in July 2008 that he realised his back condition would prevent him from returning to the construction form work for which he was qualified and for which he had received reasonable remuneration in the past.[19] The judge considered that finding was supported by the following evidence. The medical notes relating to Mr Spain in 2002 and 2004 did not suggest that he had suffered a debilitating back injury. Mr Spain gave plausible evidence that, had he been told in November 2004 to give up construction form work, he would have had longer off work at that time. He had no follow-up appointment with Dr Wong after the 2004 CT scan so it was plausible that he was not informed of its results. Mr Spain returned to work for four years without any serious health concerns.[20] Mr Spain did not see his general practitioner about any back complaints after the 2004 CT scan. He continued to work as a construction form worker until the 2006-2007 financial year when he began a plumbing apprenticeship.[21]
[19][2008] QSC 50 at [23]-[24].
[20][2008] QSC 50 at [25].
[21][2008] QSC 50 at [26].
This career change was not because he was told to give up manual work. An apprentice plumber would also be involved in heavy manual work. He took up the plumbing apprenticeship because he considered it would enhance his earning capacity.[22] Only when Mr Spain consulted Dr Olson in July 2008 did he really understand the significance of his back injury[23] and that he would struggle in his job as a construction form worker.[24] Until then, this fact was not within his means of knowledge: Healy v Femdale Pty Ltd.[25] Mr Spain managed his pain and was able to continue with his work without significant time off. He did not seek medical advice about his back for over three years.
[22][2008] QSC 50 at [27].
[23][2008] QSC 50 at [29].
[24][2008] QSC 50 at [30].
[25][1993] QCA 210.
A reasonable person in his position, knowing the facts he knew about his condition, its cause and its effect on his work capacity would not necessarily have taken any different or additional advice on those facts before July 2008.[26] In July 2008, Mr Spain became aware of a material fact of a decisive nature which converted what he believed was a cause of action for pain and suffering and loss of amenity due to chronic but intermittent pain to an action which now included a substantial component for lost earning capacity: Pizer v Ansett Australia Ltd;[27] Wood v Glaxo Australia Pty Ltd;[28] Greenhalgh v Bacas Training Limited and Ors.[29]
[26][2009] QSC 50 at [31]-[32].
[27][1998] QCA 298 at 12 [20], Thomas JA.
[28][1994] 2 Qd R 431 at 437, Macrossan CJ.
[29][2007] QCA 327 at [24], Keane JA.
For those reasons, the judge considered that the requirements of s 31 were met, enlivening the court's discretion to determine whether to extend the limitation period.[30]
[30][2009] QSC 50 at [33]-[37].
The judge then considered whether possible prejudice to the employer required that she should not exercise that discretion in favour of Mr Spain.[31] Mr Spain had the onus of establishing that the employer would not be significantly prejudiced. The employer submitted that significant time had passed since the seminal lifting incident in 2002, and a witness nominated by Mr Spain was "vague" and had declined to assist the appellants. Additionally, there were the obvious concerns of fading recollections.[32] If there was a possibility of significant prejudice to the employer were the limitation period extended, then the employer could not obtain a fair trial and Mr Spain's application should be refused: Muir v Franklins Ltd.[33] Mr Spain had nominated a witness to the 2002 incident and this witness was still available. The owner and director of the employer company had made a detailed statement to which he had annexed details about Mr Spain's training. The owner/director was still available to give evidence. The events surrounding the 2002 incident in which Mr Spain claims he was injured were fully documented at that time as part of the workers' compensation claims process. For these reasons, the judge concluded that the employer would not suffer significant prejudice preventing it from obtaining a fair trial. The judge determined to exercise her discretion in favour of granting Mr Spain an extension of the limitation period under s 31.[34]
The appellants' contentions in the appeal
[31][2009] QSC 50 at [38].
[32][2008] QSC 50 at [38]-[39].
[33][2001] QCA 173 at [56], Mullins J; Spain v Workcover Queensland & Anor [2009] QSC 50 at [40].
[34][2009] QSC 50 at [38]-[43].
The appellants' contentions in the appeal are as follows. By no later than 10 July 2006 when Mr Spain changed his employment from construction form worker to apprentice plumber, a reasonable person, appropriately advised and having regard to the information he had, would have understood that he had a good cause of action against his employer and that, in his own interests, he ought to commence proceedings. The newly discovered fact or facts in July 2008, although perhaps material, were not decisive: Moriarty v Sunbeam Corporation Limited.[35] Mr Spain was aware as of 10 July 2006 that, whatever the source of his pain, he had a back condition relating to the events of 2002 which was preventing him from working as a construction form worker. He had contemplated surgery for it in 2004. His condition was chronic, regular, and sometimes disabling. He had avoided significant economic loss only by using rostered days off and annual leave to manage the pain. His sister's notes for Dr Ratnam, which were based on information Mr Spain gave her, clearly indicated that his reason for becoming an apprentice plumber was because he felt he could no longer work as a construction form worker because of his back injury. This was also consistent with Dr Harding's notes. As soon as Mr Spain resumed construction form work his back condition flared. He did not establish on the evidence that only in July 2008 did the material fact within his knowledge become decisive: Kambarbakis v G & L Scaffold Contracting P/L.[36]
[35][1988] 2 Qd R 325 at 336, Derrington J.
[36][2008] QCA 262.
The fact or facts that Mr Spain learned in July 2008 would have been discoverable had he made the appropriate enquiries in July 2006 when he changed his employment to become an apprentice plumber. Mr Spain had failed to demonstrate that this information was not within his means of knowledge on 10 July 2006: Kambarbakis.[37]
[37][2008] QCA 262 at [48].
The judge erred in assessing the evidence, applying it to the law and in failing to give adequate reasons. Although counsel for the appellants addressed the primary judge on the significance of the material contained in the notes written by Mr Spain's sister on Mr Spain's instructions and given to Dr Ratnam, the judge did not refer to this evidence in her reasons. Nor did the judge give reasons for rejecting the significance of the sister's notes, supported by Dr Harding's notes.
In any case, the judge erred in finding that the prejudice suffered by the appellants, both generally because of the delay and specifically in this case, was not such as to put at risk the prospect of the appellants obtaining a fair trial.
For these reasons, the appeal should be allowed with costs, and Mr Spain's application for an extension of the limitation period under s 31 should be refused.
Did the primary judge err?
It is not contentious that Mr Spain established that he had a "right of action [against the employer] apart from a defence founded on the expiration of a period of limitation".[38]
[38]Limitation of Actions Act 1974 (Qld), s 31(2)(b).
The material facts of a decisive character relating to the right of action which Mr Spain claims were not within his means of knowledge[39] until July 2008 were that he did not realise he had suffered in 2002 a spinal injury of such gravity as to prevent him working in the construction industry until he received WorkCover's notice of assessment and medical advice that he should give up work as a construction form worker.
[39]Limitation of Actions Act 1974 (Qld), s 31(2)(a).
It is significant in this case that, under s 30(a)(iv), "material facts relating to a right of action include … the nature and extent of the personal injury so caused". The material facts of a decisive character under s 31(2) relied on by Mr Spain concerned the nature and extent of his personal injury so that questions of degree are necessarily involved in determining his application to extend the limitation period. The primary judge was required to make findings of fact and determinations under s 31(2) which in this case were difficult and finely balanced. As Thomas JA noted in Pizer v Ansett Australia Limited:[40]
"In such a situation the appeal court is not free to decide the question according to its own preference. Unless the judgment reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference."
[40][1998] QCA 298 at [20].
The appellants' written and oral submissions to the primary judge clearly raised the following matters relevant to their contentions in this appeal. Mr Spain gave evidence as to the seriousness and significance of his back condition between 2002 and 2006. His back condition was why he changed his employment from construction form work to apprentice plumber. That is what he told his sister when she made notes for Dr Ratnam in 2008. It was also what he told Dr Harding, recorded in Dr Harding's notes, in 2008. Mr Spain knew, at least by 2006, when he changed his employment from construction form worker to apprentice plumber, that he had a serious back injury which prevented him working as a construction form worker. It was significant that there was no evidence from a solicitor that, prior to July 2008, legal advice to Mr Spain would be for him not to start proceedings.
The primary judge accepted Mr Spain's evidence that it was only in July 2008 that he realised his back condition was so serious that it would permanently prevent him from returning to construction form work.[41] Her Honour's reasons for accepting that evidence did not deal with the notes made by Mr Spain's sister for Dr Ratnam which Mr Spain reluctantly accepted in cross-examination were true. Those notes recorded that Mr Spain "became extremely concerned with the condition of [his] lower back and was forced to look for a new career path" as an apprentice plumber in mid-2006. The primary judge, in determining the relevant findings of fact, did not attempt to explain or resolve what is, at least arguably, an internal inconsistency in Mr Spain's evidence.
[41][2009] QSC 50 at [24].
As the appellants contend, other aspects of Mr Spain's evidence were capable of supporting his statement to his sister as to his reasons for his career change in 2006. Since the injury in 2002, he had suffered persistent pain in his back which often made his employment as a construction form worker difficult. He took up opportunities to avoid heavy physical work by becoming a workplace health and safety representative and union representative. He used medication, annual leave and rostered days off to manage his pain. Dr Harding's notes of 1 July 2008 recorded that in respect of his 2004 medical treatment he had "advice to permanently avoid running or heavy manual handling activities" and that he "reported a requirement for a transfer from the area of concrete formwork, an occupation considered to involve heavy physical labour, to lighter physical work in a current position as a plumber/drainer/gas fitter's apprentice".
Counsel for Mr Spain conceded in his written submissions to the primary judge that Mr Spain's 2006 career change was connected to his injury, submitting:
"Although the change was connected to his injury, the change did not contemplate a diminution in his earning capacity … sounding in damages. On the contrary he envisaged an enhanced earning capacity … through his completion of a trade qualification. The advice given to him in July 08 put paid to his new career ambition as well as the sanctuary of his former occupation.
…
Prior to the realisation by [Mr Spain] that his earning capacity was substantially impaired, he would have been pursuing his employer at common law for an award of general damages, and perhaps a modest global award for being at a disadvantage on the open labour market. Any action brought in respect of the injury suffered was subject to a legislative regime that did not allow [Mr Spain] to recover any of the costs of his action except in circumstances where he litigated the matter to trial and exceeded the amount of his offer of settlement (see s 316 Workers Compensation and Rehabilitation Act 2003.)
…
"(The material fact) was decisive because it converted a cause of action in which liability was disputed and the damages would be no more than for pain, suffering and loss of amenities for his constant but intermittent pain into one which included a substantial component for lost earning capacity. This converted a cause of action which was not, in the circumstances, worthwhile pursuing, because it was both risky and, if successful, would yield only small damages, into one which was (Per Davies JA and Byrne J in Buckton v BHP Coal P/L [2001] QCA 35 at [35].)"
Mr Spain's counsel also referred to the similar reasoning of Kirby P in Ditchburn v Seltsam Ltd[42] and Atkinson J in Castensen v Frankipile Australia.[43]
[42](1989) 17 NSWLR 697 at 704.
[43][2004] QSC 145.
The only specific evidence that Mr Spain was advised to give up heavy physical work before July 2008 was contained in Dr Harding's notes of what Mr Spain told him of the medical advice Mr Spain received in 2004. The judge preferred Mr Spain's evidence that he did not tell Dr Harding what was recorded in Dr Harding's notes; Dr Wong merely advised him to give up running. Dr Harding's 2008 notes of what Mr Spain said he was advised four years earlier were not supported by Dr Wong's contemporaneous 2004 notes of Mr Spain's consultation. Nor were they supported by Dr Wong's recollection of that advice to Mr Spain. Importantly, after consulting Dr Wong in 2004 until the exacerbation of his back pain in mid-2008, as the judge found and the evidence established, Mr Spain managed his back pain and was able to continue his heavy physical work without consulting doctors about it and without any significant time away from work. Like the primary judge, after reviewing all the relevant evidence, I am not persuaded of the reliability and accuracy of Dr Harding's note of what Dr Wong advised Mr Spain in 2004. The note was likely to have resulted from a simple miscommunication between Dr Harding and Mr Spain. Had Dr Wong advised him in 2004 to permanently stop heavy manual work, it is likely he would have had more time off work. The judge was entitled to find on the evidence that Mr Spain's 2006 career change was not because he was told to give up manual work; and that only in mid-2008 did he understand that the extent and severity of his injury would prevent him from doing heavy manual work.
The judge did not deal specifically with Mr Spain's statement to his sister, recorded in her notes for Dr Ratnam, particularly the notation that in 2006 he was "forced to look for a new career path" and became an apprentice plumber. I am satisfied that her Honour did not deal with this evidence as she did not consider it of particular significance.
Like the primary judge, I am not persuaded the notes were pivotal evidence. It is unclear when they were written. It seems highly likely they were written soon after Mr Spain received WorkCover's notice of assessment of 1 July 2008 offering him lump sum compensation for his injury described in Dr Harding's assessment of 1 July 2008 as:
"partial permanent impairment (PI) of lumbosacral spinal function based on the relevant injury descriptor in Q-Comp Table of Injuries (Workers' Compensation and Rehabilitation Act 2003) for injuries occurring between 1st February, 1997 through to the 30th June, 2003. With reference to these Tables, the workers lumbosacral spinal injury meets code 4118. The worker's lumbosacral spinal injury is associated with a partial permanent impairment (PI) of 6% (six) of WRI."
Mr Spain's observations recorded by his sister were those of a manual worker in his early 30s recalling events some two years earlier, with hindsight and perhaps some self-pity and even an element of panic, shortly after receiving the unwelcome news that he had a spinal not a muscular injury to his back which would permanently prevent him from working as a construction form worker.
The application under s 31 on behalf of Mr Spain was conducted on the basis that his 2006 career change was connected to his 2002 injury but that it was reasonable for him to consider in 2006 that it was not then worthwhile to commence an action against the employer as he envisaged he would have an enhanced earning capacity as a plumber. This changed in mid-2008 when he found his back injury was so serious that it permanently prevented him from undertaking heavy manual work. In not dealing with the notes made by Mr Spain's sister, the primary judge indicated that she did not consider them of significance. Her Honour correctly observed that work as an apprentice plumber involved heavy manual labour. Even accepting that Mr Spain thought a plumbing career would involve lighter manual work than construction form work, he believed a plumbing career would increase his economic capacity. This meant that any claim he had against the employer in mid-2006 was relatively minor and remained so until he learned the true position in mid-2008.
Judges do not fail in their duty to give adequate reasons by not dealing with every argument raised by a party: Mifsud v Campbell;[44] Beale v Government Insurance of NSW.[45] The question is whether, in all the circumstances, a failure to give sufficient reasons leads to a real sense of grievance in the losing party who is unable, from the reasons given, to know or understand why the decision was made and why their submissions were rejected: Mirage Resorts Holdings P/L v Brellen P/L.[46]
[44](1991) 21 NSWLR 725 at 728, Samuels JA.
[45](1997) 48 NSWLR 430 at 443, Meagher JA.
[46][2003] QCA 579 at [55]-[57].
Applying those principles to this case, the primary judge made adequately plain why she accepted Mr Spain's evidence that at no time prior to July 2008 did he understand the actual extent and severity of his injury; that it was not simply musculo-ligamentous but involved his spine and required him to permanently give up heavy physical work. The judicial reasoning process was as follows. Apart from the episode in 2004, Mr Spain did not consult a doctor in respect of his back pain between January 2003 and mid-2008. He worked in physically demanding jobs throughout that time. He suffered regular back pain but, like many other such workers, he managed the pain and kept working with medication, rest, and taking leave and rostered days off as required. He was not informed of the CT scan results in 2004. Dr Wong advised him to stop jogging but did not advise him to permanently stop heavy lifting and manual work. Mr Spain took up opportunities to become a workplace health and safety representative and a union representative as these enabled him to have a break from heavy physical work, no doubt helping him to manage his back pain. In 2006, his career change to apprentice plumbing was not because he was advised to give up manual work; his career change still involved manual work. He changed his job to enhance his earning capacity. It followed that in 2006 he did not consider his back pain from the 2002 injury was causing him significant economic loss. The judge found that a reasonable person in Mr Spain's position, with that information, would not necessarily have taken different or additional advice before July 2008. It was only then that Mr Spain became aware of a material fact of a decisive nature[47] which converted what he should reasonably have believed was a cause of action sounding in modest damages into a cause of action concerning his long term earning capacity potentially sounding in substantial damages.
[47]That he had suffered a significant spinal back injury which would make him struggle in his job as a construction form worker.
The judge's reasons did not deal with the notes made by Mr Spain's sister for Dr Ratnam in mid-2008. They nevertheless sufficiently explained to the appellants why the judge considered that material facts of a decisive character relating to Mr Spain's right of action against the employer were not within his means of knowledge until July 2008. It was only then that he realised he had suffered a spinal injury in 2002 of such gravity as to permanently prevent his employment in heavy manual work.
I am not persuaded that the judge's reasons were inadequate or otherwise demonstrate some error of law or fact warranting this Court's intervention. I would not interfere with her Honour's findings of fact or her conclusions drawn from them.
If so, what findings of fact and conclusion should have been drawn?
Were I wrong and the judge's failure to deal with the evidence of the notes made by Mr Spain's sister warranted this Court substituting its own view of the facts and conclusions on the evidence, I would reach the same view of the evidence as the primary judge. I would not place significant emphasis on the notes made by Mr Spain's sister for Dr Ratnam after mid-July 2008 for the reasons I have already given. In any case, even if in mid-2006 Mr Spain considered he was forced to stop work as a construction form worker, and work instead in the still physically demanding field of plumbing, he believed he would quickly make more money as a plumber than as a construction form worker. He had the prospect of many working years ahead of him. It was reasonable for him to consider his 2002 back injury was not interfering with his future income, which he had sound reason for believing would increase, not decrease, because of his career change.
"Material facts" include "the nature and extent of the personal injury". This case is easily distinguished from Moriarty v Sunbeam Corporation Limited[48] where the application to extend the limitation period was refused. Prior to the expiration of the relevant limitation period, Mr Moriarty had lengthy periods off work, underwent surgery for his injury and consulted three specialists, one of whom advised him that his injury was permanent. By contrast, Mr Spain had been able to work in his chosen field for many years after the injury, consulting a medical practitioner about it only in 2004, and was not advised to permanently stop heavy manual work.
[48][1989] 2 Qd R 325.
Prior to mid-2008, Mr Spain was not in possession of sufficient material facts of a decisive character which would have led a reasonable person, appropriately advised, to regard those facts as showing that he ought to have commenced proceedings. In 2006, Mr Spain was in his early 30s with a good work record and with promising prospects of an economically stable future as a plumber. He was entitled to then consider he could continue to both manage his back problems and, in the medium and long term, significantly improve his economic position despite his sore back since the 2002 injury. Although there was no evidence from a lawyer that, had Mr Spain sought appropriate advice, he would have been told not to take legal proceedings in 2006, it is well documented that small claims are often not worth pursuing, especially where liability is in issue and adverse costs orders are possible: Jocumsen v Thiess P/L & Anor.[49] In all the circumstances of this case, it was reasonable for Mr Spain in mid-2006 to consider that a modest personal injuries claim for his 2002 injury was not worth the time, trouble and trauma to pursue. In mid-July 2008 he realised that he had suffered a spinal injury which would permanently prevent him performing heavy manual labour and became aware of a material fact of a decisive character relating to his right of action against the employer. The discretion under s 31(2) to extend the limitation period was therefore enlivened.
The exercise of discretion
[49][2005] QCA 198 at [37].
The next question is whether the primary judge was wrong to exercise her discretion under s 31(2) in favour of granting Mr Spain an extension of the period of limitation. I consider the judge properly exercised that discretion. Were I required to re-exercise the discretion, I would also exercise it to extend the limitation period for the following reasons.
The six year delay between the seminal incident in 2002 and the bringing of any action will carry the usual general prejudice to the appellants, but in this case that general prejudice has been minimised. Mr Spain informed the appellants of the circumstances of his injury in 2002 so that matters pertaining to it have been well documented by WorkCover and the employer. The evidence before the primary judge suggests that a relevant potential witness appears uncooperative, but there is nothing to suggest he would have been any more cooperative had the limitation period not expired. As the primary judge noted, the owner and director of the employer company has already given a detailed statement to which information has been annexed as to the training it gave to Mr Spain prior to the 2002 injury which is at the heart of the proposed action. Like the primary judge, I consider that if the extension of the limitation period were granted, the appellants could obtain a fair trial as the material before the primary court does not suggest that there is a possibility of significant prejudice to the employer resulting from the delay: Muir v Franklins Limited.[50] Whilst there is no discernible significant prejudice to the appellants in extending the limitation period, to refuse to do so would deny Mr Spain the opportunity to pursue a claim to compensate him for what may potentially be a significant injury causing substantial economic loss.
Proposed order
[50][2001] QCA 173 at [56], Mullins J.
I would order that the appeal be dismissed with costs.
KEANE JA: I have had the advantage of reading in draft the reasons of the President in this matter. I gratefully adopt her Honour's summary of the issues, evidence and reasons of the learned primary judge. Unfortunately, I differ from her Honour in relation to the disposition of the appeal.
The basis of that difference lies in the significance to be attributed to Mr Spain's account recorded by Mr Spain's sister of his career change in 2006. That account was relevantly in the following terms:
"22.11.02
…
From this time and up until the 10.7.06 I had also work [sic] for several construction companies employed as a form work carpenter. Throughout this period I was forced to take annual leave and RDO's [sic] due to continuous inflammation. I was to [sic] concerned to give reason for my absence from work as I felt it could jeopardise my future employment. Also throughout this time I was elected by my fellow employees as W H & S rep & union delegate. I reluctantly accepted these positions knowing that it would give me time off the tools.10.7.06
I became extremely concerned with the condition of my lower back and was forced to look for a new career path. I gained employment as an apprentise [sic] plumber with Apprentiships [sic] Qld. I transferred my apprentiship [sic] from Apprentiships [sic] Qld to Contrax Pty Ltd. This company was liquidated in May 2008. I was then forced to go back into form work with a company known as Triform Constructions. I was only with this company for approximately a month when I felt my lower back injury start to flare up again." (emphasis in original)
The learned primary judge did not advert to the significance of this account or explain how it might be reconciled with the proposition that Mr Spain did not appreciate the adverse implications for his earning capacity of his back condition until mid-2008. The decision of this Court in Camden v McKenzie[51] confirms that the obligation of a judge to provide adequate reasons for judgment requires that the judge address and deal with evidence which stands in the way of the conclusion which the judge has reached, at least where that obstacle cannot be taken to have been dealt with by a preference for the credibility of one witness over another.[52]
[51][2008] 1 Qd R 39.
[52][2008] 1 Qd R 39 at 47 – 50 [29] – [38].
In my respectful opinion the adverse effect of Mr Spain's own account upon his case cannot be muted by speculations about when, or the circumstances in which, the notes were written. Mr Spain was given ample opportunity at the hearing below where he gave oral evidence to advance explanations which might warrant some reduction in the weight to be accorded to the account recorded by his sister, but he gave no such explanation. More importantly, he was cross-examined about the notes at first instance; and he agreed that they were an accurate account of what had occurred in mid-2006. Once Mr Spain accepted the accuracy of this account there was no rational basis for disregarding his sworn testimony. I do not consider that it is open now to act upon speculation as to possible reasons why Mr Spain's own account should be treated with a scepticism not expressed by the learned primary judge.
Even though Mr Spain may well have decided on a career change in mid-2006 with a view to bettering himself economically, the account recorded by his sister is undeniably an acknowledgment of a firm appreciation on his part that his back problems were such as to limit the range of work open to him and to place him in a situation of real risk in the labour market. This diminution in prospects in the labour market is compensable.[53]
[53]Cf Moeliker v A Reyrolle and Co Ltd [1977] 1 All ER 9 at 16 – 17; Watts v Turpin (1999) 21 WAR 402 at 410 – 411 [33].
Whether or not the limitation on Mr Spain's earning capacity was likely to be immediately productive of economic loss, a reasonable person in Mr Spain's position would have appreciated that he was in a situation of vulnerability in the labour market. This limitation of his earning capacity, together with the pain and suffering and loss of amenities referred to in the President's reasons, would have been regarded by a reasonable person who took appropriate advice as showing that an award of damages by way of compensation would be sufficient to justify the bringing of an action at that time. Reasonable advice in mid-2006 would have been that a successful action would result in an award of substantial damages sufficient to justify commencing proceedings at that time.
I am of the opinion that, on Mr Spain's own evidence before the learned primary judge, the occasion for the exercise of the discretion under s 31(2) of the Limitation of Actions Act 1974 (Qld) did not arise.
Conclusion and orders
Accordingly, the appeal should be allowed, and the orders of the learned primary judge should be set aside.
Mr Spain should pay the costs of the application below and of the appeal to be assessed on the standard basis.
HOLMES JA: I agree with the reasons of Keane JA and the orders he proposes.
7
11
1