Spain v WorkCover Queensland & Anor

[2010] HCATrans 51

[2010] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane     No B48 of 2009

B e t w e e n -

JOHN SPAIN

Applicant

and

WORKCOVER QUEENSLAND

First Respondent

DIPOMPO JACS CONSTRUCTIONS PTY LTD

Second Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 MARCH 2010, AT 12.23 PM

Copyright in the High Court of Australia

MR D.B. FRASER, QC:   May it please the Court, I appear with MR R.J. LYNCH for the applicant.  (instructed by Nathan Lawyers)

MR R.J. DOUGLAS, SC:   May it please the Court, I appear with MR K.F. HOLYOAK for the respondent.  (instructed by McInnes Wilson Lawyers)

FRENCH CJ:   Yes, Mr Fraser.

MR FRASER:   Your Honours, this application concerns sections 30 and 31 of the Limitation of Actions Act 1974 (Qld). Those provisions provide for an extension of the limitation period for personal injury cases. In this matter the applicant before you succeeded before the learned primary judge in obtaining an order that the period of limitation for his right of action against the respondents be extended to 8 July 2009. In a majority decision the Court of Appeal allowed the respondent’s appeal to that court and set aside the orders.

The basis upon which the learned primary judge made her Honour’s order was that until the applicant received advice in July 2008 from a neurologist that he had a prolapsed disc in his lumbar spine and would not be able to continue to work in the construction industry, he did not know a material fact of a decisive character.  Her Honour also found that those facts were not previously known by the applicant and were not within his means of knowledge before the occasion on which he discovered them.  The findings – and I need to take your Honours to this – are in the application book at page 3 and it is probably convenient to start at paragraph 8.

FRENCH CJ:   It all turned on the notes, did it not, and his awareness that they demonstrated of the impact of his injury on his capacity to carry on in his particular employment.

MR FRASER:   Your Honour, that was certainly the approach taken by the majority in the Court of Appeal.  It is that approach which we submit demonstrates the error which requires correction by this Court.  In order to explain that to the Court, it is necessary to take your Honours to a little bit of the detail involved in that respect.

CRENNAN J:   Are you referring to an error of principle?

MR FRASER:   Yes, your Honour.

CRENNAN J:   You will explain that.

MR FRASER:   I will explain, your Honour.  In essence, Mr Spain, the applicant, saw a number of medical practitioners.  It was not until he went to a new doctor in 2008 that he ascertained that rather than having a muscular strain or a muscular injury to his back, he had suffered a significant spinal injury which would preclude him from being able to continue in the construction industry.  The significance of the statement which was identified by the majority of the Court of Appeal involved consideration of what Mr Spain, that is the applicant, knew or believed about his injury.  It did not involve any attention being given to what Mr Spain could plead or prove in relation to his injury.

Can I take your Honours to that, because your Honours are obviously familiar with the essential features of the case.  Can I ask your Honours to go at this point to the application book at page 35.  Your Honours will see that his Honour Justice Keane at paragraph [56] referred to the reasons of the President and adopted her Honour’s summary of the issues, evidence and reasons of the learned primary judge.  Then his Honour identified why he differed from her Honour in relation to the result in the appeal and that concerned what was set out in paragraph [57].  Can your Honours read that because this is the critical point:

The basis of that difference lies in the significance to be attributed to Mr Spain’s account –

about his career change and perhaps the most significant part of that passage appears at the top of the next page of the application book at page 36:

I became extremely concerned with the condition of my lower back and was forced to look for a new career path.

Now, your Honour, our submission is that that is a matter which addressed only the question of whether or not the applicant had an appreciation that his damages might be significant were he able to maintain a successful action and, indeed, that is the way the reasons of his Honour Justice Keane then dealt with the matter.

FRENCH CJ:   Before you go any further, just looking at [58], did the primary judge deal at all with these notes?

MR FRASER:   Yes, your Honour.  Well, her Honour dealt with the substance of the issue which was raised.  Can I take your Honours to that?

FRENCH CJ:   Yes.

MR FRASER:   Your Honours, that was something that her Honour dealt with at application book page 7 in paragraph [27].  In essence, as we have put in our written outline, there really was not a dispute about this.  The applicant was aware that he was suffering symptoms which were such that indicated to him that it would be better if he chose a lighter form of employment, in this case as an apprentice plumber, where he could make more money and work effectively in a better lifestyle.  The conclusion that he was concerned about his future by continuing as a form worker alone is entirely consistent with what her Honour has recorded there.  So, in the event, what has happened is, if I can take your Honours back to the application book at page 36, your Honours will see the way that the appeal has been resolved by his Honour Justice Keane is at paragraph [61] on application book page 36 where, after concluding that the limitation in a range of work open to him resulted in diminution of prospects in the open labour market and was compensable, his Honour then went on to conclude:

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 aware of damages by way of compensation would be sufficient –

But nowhere does his Honour address whether the action would have been successful because at this point in time, the point in time that his Honour is referring to, on the findings of the learned primary judge the applicant was in a position where he had no knowledge that he had an injury to his disc, he had no advice that he would be precluded by that injury from continuing to work in the construction industry and, indeed, the basis of the learned primary judge’s order for granting an extension of time was that for the first time, in 2008 advice was available from an appropriate qualified expert that those were the consequences of his injury.

CRENNAN J:   But what seemed to have influenced Justice Keane before he got to conclusions in paragraph [61] are the matters set out in paragraph [59], that is to say, that the applicant had been cross‑examined about those notes and he had agreed that they were an accurate account of what had occurred in the middle of 2006.

MR FRASER:   Exactly, your Honour, that is our point.  There was no issue about it before the learned primary judge.  The applicant had accepted that had made that statement to his sister who had then conveyed it to a medical practitioner appointed by one of the respondents in 2008, it seems.  So her Honour, the learned primary judge, proceeded on the basis, in our submission, that the applicant was aware in 2006 that a career change was in his interest, but what he did not know – and perhaps it is easiest to take your Honour to her Honour’s particular reasons on this point.  They appear at the application book page 9 and they are in paragraphs [35] and [36].  I will invite your Honours to read that.

FRENCH CJ:   Yes.

MR FRASER:   The significance of that process of reasoning is that the learned primary judge has plainly considered that the giving of the advice fell within the characterisation described in paragraph [36] and the citation from the earlier decision of the Court of Appeal in Greenhalgh that the applicant in this case had for the first time unequivocal evidence enabling the plaintiff to prove a level of economic loss which would make an action for damages worthwhile.  There is not a mention of that process of reasoning in the reasons of the majority who, with respect, seem to have proceeded on the basis that appropriate advice could, as it were, make up for inefficiencies in proof that the applicant hitherto had. 

In our respectful submission, that is a clear error because while it is necessary that an applicant who seeks an extension demonstrate that if he had taken appropriate advice about the facts, he would not have instituted an action; the appropriate advice is in relation to the facts, not in substitution for them.  It is in this respect that it is necessary, your Honours, to take your Honours to the precise words of the section.  Your Honours should have a bundle of authorities from the applicant.  It is the first document in that bundle, the Limitation of Actions Act, and can your Honours go please to pages 24 and 25. Your Honours will find that the section we are concerned with, section 31(2), provides the jurisdictional basis for the exercise of the discretion which contemplates:

that a material fact of a decisive character relating to the right of action was not within the means of knowledge –

and your Honours can read that. Then that construct was the subject of an interpretation provision on the previous page of the bundle in section 30 and the material facts which are identified in section 30(1) include in subparagraph (a)(iv):

the nature and extent of the personal injury so caused –

But critically in this case, if one goes to subparagraph (b), one finds that:

material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts . . . would regard those facts as showing –

(1)that an action on the right of action would . . . 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 –

The way that the section works is that, in effect, until a person is in a position where they are possessed with the facts which enable them to succeed in an action and receive substantial damages or sufficient damages to justify an action, that person is not possessed of material facts and decisive character.  So, in this case, the Court of Appeal in the majority judgment has addressed only one of the qualifications which are set out in subparagraph (b)(i) and ignored, with respect, the first.  Even though the learned primary judge addressed the first in terms which made it plain that while her Honour was aware that the applicant had taken the course of changing the applicant’s career path because of concern about the symptoms that he was continuing to experience, his Honour did not have possession of any evidence which would assist to establish a case that would enable compensation to be obtained from the respondents by way of damages for his right of action.

So that is the reason why, in our submission, the majority decision in the Court of Appeal miscarried and it is a matter of significance because now applicants for such extensions will be faced with a process – assuming that primary judges apply, as they must, the ratio of the decision of the Court of Appeal – they have to proceed on the basis that the extent of a person’s knowledge or belief as to the ultimate consequences of an injury, if that person accepts that he or she knows that there may be significant economic loss in future, then without more that person is, in effect, out of court.  In our submission, that is not what the legislation is intended to achieve.

Your Honours, can I identify more precisely why it was necessary, if the majority were to dismiss the applicant’s case on this point, to address the question of his means of knowledge.  It is that having accepted that the description set out in the judgment of the dissenting judge, the President of the Court of Appeal was accurate, his Honour Justice Keane identified only one reason for differing in the result and that concerned something that related only to Mr Spain’s own knowledge.  It was nothing to do with the evidence that he had available.  Can I just mention that there was a specific challenge to the findings of fact below as to whether or not the knowledge of the discal injury and its consequences was within the means of knowledge of the applicant.  That appears in the application book at page 29 in paragraph [31] in the reasons of the President.

FRENCH CJ:   I just want to have a look at your grounds of appeal.  The majority judgment of Justice Keane in the Court of Appeal you say effectively erred in law in misconstruing the expression “material facts relating to a right of action”, but his Honour did not actually address the terms of the section, did he, and relate them to the particular evidence in question?

MR FRASER:   No, your Honour, I would accept that description.

FRENCH CJ:   Not in express terms.  I mean, he was referring back, of course, incorporating by reference some of what had been said by the President.

MR FRASER:   Yes.  Our complaint is that his Honour in his reasons did not, as it were, give close attention to the precise words of the statute and thereby the result has miscarried.  Your Honours, the grounds of appeal, in our submission, are sufficient to comprehend the matter of complaint that we make about that judgment and the importance ‑ ‑ ‑

FRENCH CJ:   You are implying a misconstruction, I take it, in 2(b) simply by the way that his Honour reasoned?

MR FRASER:   Well, your Honour, we do that particularly because his Honour was critical of the absence of reasons of the learned primary judge in failing to address something and we submit that it is, with respect, highly improbable that his Honour in reaching the conclusion did so in a way which was deficient by virtue of a process of reasoning. 

FRENCH CJ:   I am talking about Justice Keane.

MR FRASER:   Yes, your Honour, exactly.  That is our point.

FRENCH CJ:   You are implying misconstruction of the section on the part of Justice Keane, in effect, because he has not actually expounded upon the words of the section, he has just gone straight into the facts and to a conclusion.

MR FRASER:   And he has, with respect, not only not mentioned a critical finding below, but also expressly in his reasons identified that reasonable advice in mid‑2006 would have been that a successful action would result in an award of substantial damages but has not referred to whether or not the applicant then had the wherewithal to conduct such a successful action.  So that seems to be an omission of some significance given that the only basis upon which his Honour differed from the discussion set out in the reasons of the President in the dissenting judgment was concerned with the applicant’s own knowledge and not what he had available.

There is a long line of authorities, we have listed them in the outline, which indicate that one does have regard to the ability to prove something, that is, that a material fact is not simply the existence of a material fact but

the ability to prove it.  That is, in our submission, the deficiency in the reasons of his Honour Justice Keane that has resulted in this error.  Your Honours, I am sure I heard the buzzer go.

FRENCH CJ:   Yes, all right.  Thank you, Mr Fraser.  Yes, Mr Douglas.

MR DOUGLAS:   Thank you, your Honours.  Your Honours, the only usual aspect of this case, in our submission, is that the applicant gains no succour from the primary judge’s reasons because of the plain inadequacy in those reasons.  Indeed, that feature is barely addressed in our learned friend’s outline.  Without towering on the issue, her Honour did not refer to the notes.  The notes were critical.  Her Honour did not refer to the cross‑examination of the applicant in respect of those notes in which he adopted them.  That was critical.  Her Honour only referred, in the passage to which our learned friends took you to, to his affidavit evidence which was inconsistent with that.  The reasons were inadequate. 

In consequence of that, the appellate court, by reference to the authorities, was compelled to, in effect, make fresh findings on the relevant issues going to the jurisdiction under section 31 of the Limitation of Actions Act by reference to the full corpus of evidence, including those notes and that cross‑examination.  So our learned friends really are compelled to successfully impugn the findings of fact made by the Court of Appeal in that regard and the Court by majority concluded that the relevant collection of facts was decisive no later than July 2006. 

Now, with those matters in mind, your Honours, we make two points apropos the special leave question which is posed in paragraph 1 of the applicant’s summary of argument.  That is to be found in the application book at page 45, line 1595.  If your Honours just look at that for a moment while I summarise the two points.  In our respectful submission, the first point is that the question posed there does not arise on the facts of this case.  The second point we make, which we will also come to seriatim, is that the question raised – contrary to what is contended in the applicant’s outline – is adequately addressed by the authorities which are all consistent in this regard, including, not surprisingly, in accordance with the authorities in this Court, namely, in the Stephenson line of authority.

Could we go to the first point, namely, that the question does not arise on the facts of this case.  Dealing with that point and contrary to the postulate in that special leave question, here it was found by the appellate court in making its findings, as it was compelled to do, that by July 2006 the applicant did know, he did know, and could plead and prove what injury had given rise to his cause of action.  The relevant findings in that respect, your Honours, are to be found on page 36 of the application book in the judgment of Justice Keane.  Your Honours, after referring to the inadequacy of the primary judge’s reasons, his Honour Justice Keane, with whom Justice Holmes agreed, at about line 1405 at paragraph [59] refers to the fact that:

Mr Spain’s own account upon his case cannot be muted by speculations about when, or the circumstances in which, the notes were written.

That alludes to what appears in the reasons of the President at page 32 of the record just above line 1240 in which there is some speculation about that.  Moreover, he makes the finding that at line 1410:

Once Mr Spain accepted the accuracy of this account there was no rational basis for disregarding his sworn testimony.

In the next paragraph:

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 acknowledgement 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.

This is where the error arises in our learned friend’s argument, with the greatest respect.  It is not just a case of, as his Honour Justice Keane recorded and adumbrated in his reasons of an appreciation or belief of the position.  The reality is that from the time and dating consistently from the time of the relevant injury in November 2002 this gentleman, who was then a form worker, continued in form work until July 2006 and ceased, according to the notes, because he was concerned about the consistent pain he was suffering in that regard.  He also records in the notes that he had attempted to stay off the tools, as he put it, in that construction formwork because of the pain he was suffering.  He took up union activities and the like. 

So it is not just a case of what he may have believed.  It is a case of what he had experienced for about three and a half years that led him to take up lighter employment, which lighter employment gave him some considerable relief.  So we say, more to the point and really transcending any precise medical diagnosis or prognosis, the applicant’s daily work life for a period of over three and a half years from November 2002 until July 2006 when he took up lighter employment, well prior to the critical date, was one of persistent back problems and matters wholly consistent with him suffering significant problems and a narrowing of his economic opportunities due to this particular injury.  Your Honours, as the appellate court explicitly, and if not explicitly, certainly implicitly found this history was a superior guide not only to the derivation of the injury in the subject accident or event of November 2002, but also the significant effects of it, as Justice Keane found, both in terms of his pain and suffering and ultimately the economic impact. 

So, in summary, in our submission, in accord with the tenor of the reasons of the majority of the appellate court, by July 2006 when the applicant took up this lighter employment after this history of back pain for three and a half years, that was an act touchstone to the satisfaction of the psyche of the statutory criterion of decisiveness, namely, that a reasonable person in his position, having notionally taken advice, would think it prudent to commence proceedings.  One has to bear in mind in that regard, we submit, your Honours, that having taken that notional advice on conventional causation and damages assessment jurisprudence, given that history of pain and disability dating from the date of the industrial accident up to 2006, that sufficed to shift an evidentiary onus to the defendant party.  That is the Purkess v Crittenden line of authority which seems to be generally still accepted, that being a decision of this Court. 

Your Honours, no doubt a medical opinion of an orthopaedic surgeon that the ultimate source of the client’s pain was spinal as opposed to muscular, although it persisted for some time, may have provided assistance to the applicant at a trial.  But that did not gainsay the fact that the relevant collection of facts had become decisive.  Once that statutory attribute was born, as the appellate court found, then the Rubicon of decisiveness was crossed and no further fact was able to satisfy that statutory attribute; it had been attained. 

Moreover, your Honours, the 2008 orthopaedic opinion, upon which our learned friends rely as to vocation, only went to the applicant’s ability to engage in construction formwork and it was not directed to any other occupation, such as plumbing which he undertook from 2006 to 2008 – an ability to undertake formwork the applicant knew by July 2006, well prior to the critical date.  Yet the ability to undertake formwork because of a spinal complaint is the ultimate material fact of decisive character upon which the applicant relies.  That was recognised also by the President in her minority judgment which is to be found in the application book – I can take you to it if you wish – at page 33, line 1280 at footnote 47. 

The second point we wish to make is about the consistency with the authorities.  Our learned friends contend in their outline that the decision of the court is inconsistent with the authorities in this sphere.  One decision they do not specifically refer to or canvass in making that contention is the decision of this Court in Stephenson’s Case (2006) 226 CLR 197. That decision is in the bundle before your Honours. The relevant paragraph to attend is paragraph 29, page 208, in the judgment of your Honour Justice Crennan and Justices Gummow and Hayne, where, after construing the section such as to allow of the relevant collection of material facts to become decisive at some later point in time, your Honours say this in the last sentence:

Whether that test has been satisfied at a particular point in time is a question for the court.

That question was addressed by the appellate court in this instance and it was answered by reference not just to the belief of the applicant, but by reference to the facts which had attended him over that period of three and a half years until July 2006.  The reason the issue was important for construction in that case was because each of the plaintiffs in the Stephenson Case – there were three appeals heard contemporaneously – were police officers in respect of whom the relevant collection of material facts had crystallised, but because of their particular psychiatric conditions and the fact that for them to commence proceedings short of getting an official or final retirement from the police force would have caused them significant financial loss, the Court concluded that the relevant collection of facts did not become material until some later point in time, which point in time would have enabled them to gain an extension.

The only other authorities in respect of which our learned friends contend are inconsistent are other decisions of the Court of Appeal, one of Pikrt and one of Grenhalgh.  In our respectful submission, as we make plain in the outline of argument, all they stand for is the proposition that a belatedly garnered medical opinion may – may – be the occasion whereupon the material collection of facts is complete or becomes decisive.  Each of those cases is distinguishable from the circumstances here. 

In Pikrt’s Case the applicant for extension had no satisfactory evidence of a nexus between the symptoms he was suffering and the original incident which had occurred.  That is not the case here.  There is a consistent line of symptomatology here in the case of the applicant from the date of his injury, November 2002.  In Greenhalgh’s Case the plaintiff maintained his employment as a mechanic.  It was only that belatedly there was unequivocal opinion garnered to the effect that he could no longer be engaged in that profession.

The relevant passages in Greenhalgh’s Case are at paragraphs [18] and [19] of the decision.  That is the only decision we provided you with in our bundle.  That was a decision of which Justice Keane wrote the principal reasons and if your Honours look – this is our final submission – at paragraphs [18] and [19] you will see his Honour refers to Pikrt’s Case,

which our learned friends contend that he did not follow in this case, and makes plain that it is a factual decision in each particular case.  In our respectful submission, the decision of the appellate court is not attended with sufficient doubt.  Those are our submissions.

FRENCH CJ:   Thank you, Mr Douglas.  Yes, Mr Fraser.

MR FRASER:   Your Honours, you were taken by my learned friend to the decision of this Court in State of Queensland v Stephenson at paragraph 29 on page 208 of the report.  That, in fact, summarises the essence of our complaint.  We have already taken the Court to the reasons of the learned primary judge and the reasons of his Honour Justice Keane.  In our submission, the learned primary judge answered the question that the court was required to respond, as described in the State of Queensland, by considering the features described in subparagraph (i), of which there were two, and in contrast his Honour Justice Keane did not.  Those are the matters of reply, your Honour.

FRENCH CJ:   Thank you, Mr Fraser.

In our opinion no error of principle is disclosed in this case.  The Court of Appeal made an evaluative judgment on the facts.  The decision is not attended with sufficient doubt to warrant the grant of special leave.  Special leave will be refused with costs.

The Court will now adjourn until 1.30.

AT 12.59 PM THE MATTER WAS CONCLUDED