Spencer v Devine Civil Contracting P/L - [1999] QSC 235

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane
  No. 2814 of 1998
Before Mr Justice Muir
[Spencer v Devine Civil Contracting P/L]
BETWEEN:              ROBERT ALLAN SPENCER
  Plaintiff
AND:  DEVINE CIVIL CONTRACTING PTY LTD
  Defendant

REASONS FOR JUDGMENT - MUIR J.
Judgment delivered 30 September 1999

CATCHWORDS: LIMITATION OF ACTIONS - application to extend limitation period under s.31(2) Limitation of Actions Act 1974 (Qld) - personal injuries - whether material facts were within plaintiff's knowledge prior to expiration of limitation period - discussion of “material fact” within meaning of s.30 Limitation of Actions Act - whether there is evidence to establish a right of action.

Counsel:Mr K D Scott for the plaintiff
Mr R B Dickson for the defendant

Solicitors:Thynne & Macartney, town agents for Goodfellow & Scott for the plaintiff
Dillons for the defendant

Hearing date: 27 September 1999

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane
  No. 2814 of 1998
Before Mr Justice Muir
[Spencer v Devine Civil Contracting P/L]
BETWEEN:              ROBERT ALLAN SPENCER
  Plaintiff
AND:  DEVINE CIVIL CONTRACTING PTY LTD
  Defendant

REASONS FOR JUDGMENT - MUIR J.
Judgment delivered 30 September 1999

The applicant/plaintiff seeks an order that the time for the issuing of the proceedings be extended to 26 March 1998.
The applicant alleges that he was injured in the course of his employment by the defendant/respondent on 16 September 1994 when employed as a concreter. The action was commenced, outside the limitation period, on 26 March 1998.
The facts relevant to my determination are as follows. The applicant left school at Grade 10 in 1978 and, apart from a period of unemployment of about four years, he has generally been employed as a concreter. He swears to having had no particular problems with his back until 16 September 1994. On that day, when lifting a 15 kg metal manhole cover with his right arm by use of the two inch “T lifter” on the manhole cover, he experienced “the worst pain (he) has ever felt in (his) life”.
He was assisted by a colleague to a motor vehicle and was taken to a general practitioner who diagnosed damage to his lower back. He had six weeks off work. He was back at work three days when his back “went again” when shovelling soil into the back of a utility. On that occasion he was given a certificate which enabled him to be off work for two weeks. He then continued to work until about October 1997. In an affidavit filed in support of the application he swore -
“My back was fine until on or about September, 1997 when I began struggling to do my job because of back pain.”
He also swears that he was referred by his general practitioner to an orthopaedic surgeon in October 1997 who recommended a course of physiotherapy. He had the physiotherapy treatment in about December 1997 and after taking two weeks off work for that purpose continued with his usual job which included jack hammering, concreting and lifting large rocks.
He saw another orthopaedic surgeon after Christmas 1997 and was informed that “... the pain in the front of my body came from my back injury.” He was advised to try water aerobics and he also tried wearing a back brace.
The applicant worked for about three weeks in 1998. On 9 March 1998 he was walking behind a grader when he suffered great pain and collapsed. A few days before he had been manhandling “large rocks around trees” by himself for the whole of the day.
On 24 March 1998 he saw Drs Lane and Marchant. He was informed that he would never work again and was provided with a medical certificate to that effect.
The applicant did not seek legal advice about his injuries until consulting his present solicitors on 25 March 1998.
In the course of cross-examination he conceded that his back “caused a lot of trouble”in 1994 to 1997 and that he always regarded the injury he had sustained on 16 September 1994 as serious.
Shortly after the accident the applicant’s foreman completed an employer’s report for the Workers’ Compensation Board of Queensland. In the course of it, on the page headed “Details of Injury (As Reported to You)” against the words “State Briefly How the Injury Occurred” he recorded “Lifting manhole cover in roadway. Jerked lid to loosen it.” The form further recorded the satisfaction of the foreman that the injury occurred in the manner reported.
The respondent’s counsel attached great significance to a passage in a report of Dr Gillett, orthopaedic surgeon, dated 15 October 1998 in which it was stated -
“The events of that day, on the balance of probabilities produced a mild to moderate force on his spine. The exact nature of the force will need to be defined regarding the weight of the manhole cover. He states there was no difficulty in lifting the manhole cover in that it was not stuck, it was just the normal force applied through the appropriate lifting device.”
In a letter dated 24 August 1999 the applicant’s solicitors, in a letter to the respondent’s solicitors stated -
“We note the cross-examination of witnesses in chamber matters is not normally granted. As our client concedes that what was said to Dr Gillett has been stated, we fail to see what cross-examination on Dr Gillett will achieve.”
I note that on p 1 of Dr Gillett’s report there is a passage which does not sit comfortably with the passage I have just quoted. Speaking of the events of 16 September 1994 the report states -
“On this day he was asked to clean a manhole and he had to lift the lid. He states it was a metal manhole cover approximately 18 inches - 2' in diameter. He used the T-section handle which locks into the keyhole in the manhole. This is about 2' in length. He bent down, locked it in and then went to lift it when he got severe pain in his lower back radiating down both legs to his feet. He could not work on.”
A person who was working with the applicant at the time of the accident swears that after the applicant injured himself he tried to pull up the manhole cover and was unable to do so.
The statutory framework
Section 31(2) of the Limitation of Actions Act (“the Act”) provides:
“(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 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.”
A right of action in negligence is a right of action to which s.31 applies: see subs. (1).
Section 30 defines “material facts” inclusively as follows:
“(a)the material facts relating to a right of action include the following:-
(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
(ii)the identity of the person against whom the right of action lies;
(iii)the fact that the negligence, trespass, nuisance or breach of duty 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, trespass, nuisance or breach of duty.”
Whether a material fact is of a decisive character for the purpose of s.31(2) is defined in s.30 in the following terms:
“(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.”
Whether a fact is within the means of knowledge of a person for the purpose of that subsection is defined negatively in s.30 in the following terms:
“(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.”
Relevant legal principles
The test of reasonableness is an objective one to be applied to a person with this applicant's background and circumstances: Castlemaine Perkins Limited v McPhee [1979] Qd R 469, 472-3. In Healy v Femdale Pty Ltd, (C.A. No. 37 of 1992, 9 September 1993, unreported), it was said in the Judgment of the Court that -
“The question then is whether it can be said that in the circumstances the plaintiff took all reasonable steps to ascertain the fact that her injury was serious enough to justify the bringing of an action. She did not ask her doctor questions of this kind. The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one's health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinion from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take ‘appropriate advice’ or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.”
In Byers v. Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, Lee J, with whom McPherson and de Jersey JJ agreed, cited the following passage from the judgment of Macrossan J in Moriarty v. Sunbeam Corporation Limited [1988] 2 Qd R 325–
"In cases like the present, an applicant for extension discharges his onus not merely by showing that he has learned some new fact which bears upon the nature of extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learned fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s.30(b) comes down to: Taggart v. The Worker's Compensation Board of Queensland [1983] 2 Qd R 19, 23, 24 and Do Carmo v. Ford Excavations Pty Ltd (1984) 154 CLR 234, 251 per Deane J".
The above passage was adopted by Connolly J, with whom Ryan and Cooper JJ agreed in Berg v. Kruger Enterprises [1990] 2 Qd R 301.
Material fact of a decisive character asserted by the applicant
The material fact relied on by the applicant is awareness that his injury was so serious that it would prevent him from continuing in employment
The applicant was aware long before the expiration of the limitation period that he was experiencing pain and discomfort as a result of the injury to his back caused by the accident but the evidence does not suggest that the applicant regarded his problem as anything more than a fact of life in the industry in which he worked. No medical advice suggested to him that the accident caused an injury which was likely to be permanent let alone that it precipitated or exacerbated a condition which would bring about an early end to his working career.
The evidence strongly suggests that the applicant did not know the nature and extent of his injury. The critical question then is whether the applicant took all reasonable steps to ascertain the nature and extent of his injury or, to put it another way, whether the plaintiff took all reasonable steps to ascertain the fact that his injury was serious enough to justify the bringing of an action. There is no requirement to take “appropriate advice” or to ask questions if in all the circumstances it would not be reasonable to expect an applicant in the position of this one to have done so. Healy v Femdale Pty Ltd, (C.A. No. 37 of 1992, 9 September 1993, unreported). In my view the applicant’s approach was to attempt to minimize his problems and to get on with his work. He is a person of limited education who works in an area where it would be normal enough for workers to be the passive recipients of guidance from medical practitioners rather than active seekers of advice about the long term consequences of injuries and diagnoses. In the circumstances, I consider that the applicant, by seeking treatment and placing himself in the hands of medical practitioners, took reasonable steps to find out the nature and extent of his injuries.
I also consider it probable for generally similar reasons that another relevant material fact open to the applicant is awareness of the existence of a worthwhile cause of action. He probably became aware of the possible existence of a claim worth pursuing when he first consulted solicitors after receiving Dr Lane’s advice on 24 March 1998.
The respondent contends also that the applicant has not satisfied the requirement in s 31(2)(b) of the Act -
“That there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation.”
The requirements of that provision are able to be satisfied if the applicant “can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case ...” Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 434 and 435. The respondent contends that the test is not satisfied. I do not accept the submission.
There is evidence which, if accepted on trial, will show that -
(a)the applicant was entirely uninstructed in the nature of safety precautions to be taken in conducting lifts;
(b)lids were either tight or stuck from time to time and this lid was difficult to move;
(c)if the lid was stuck or tight additional force was required in order to dislodge it and the application of such force in an inappropriate way posed a risk of injury;
(d)such risk of injury was something which the respondent knew or ought reasonably to have known;
(e)the use of pieces of special equipment to facilitate the task of lid lifting was not rare;
(f)the respondent failed to take any steps at all towards providing a safe system of work in relation to the movement of manhole covers;
(g)after the accident the respondent set up procedures in order to minimize or obviate the risks involved in lifting manhole covers.
Dr Gillett’s report is hardly fatal to the applicant’s case even though it is conceded on behalf of the applicant (whether erroneously or otherwise) that Dr Gillett has accurately reported what he was told. His report is not without ambiguity, it is some four years after the accident and there is other evidence which, if accepted, will show that what Dr Gillett has recorded is erroneous.
The question of prejudice to the respondent was not raised as an issue on the hearing of the application.