Star Aged Living Limited v Lee

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SUPREME COURT OF QUEENSLAND

CITATION:

Star Aged Living Limited v Lee [2024] QCA 1

PARTIES:

STAR AGED LIVING LIMITED

v
NANCY FAY LEE
(appellant)(respondent)

FILE NO/S:

Appeal No 4234 of 2023
SC No 10446 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2023] QSC 49 (Mellifont J)

DELIVERED ON:

25 January 2024

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2023; 30 November 2023

JUDGES:

Bowskill CJ and Bond and Flanagan JJA

ORDERS:

1.   The appeal is allowed.

2.   The orders of the primary judge made on 10 March 2023 and 22 March 2023 (in relation to costs) are set aside.

3.   The respondent’s application to extend the limitation period is dismissed.

4.   The respondent pay the appellant’s costs of the appeal and of the proceedings below.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURY MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – GENERALLY – where the respondent was employed as an Assistant in Nursing at an aged care facility controlled and managed by the appellant – where the respondent alleged that she suffered a back injury while at work due to the negligence of the appellant – where the respondent did not consult a lawyer until after the limitation period had expired – where the respondent applied for an extension of the limitation period on the basis that there were three material facts of a decisive character relating to her right of action, which were not within her means of knowledge until after the limitation period had expired – where the application to extend the limitation period was granted by the primary judge – where, on appeal, the appellant contended that the factual conclusions of the primary judge as to the existence of each of the three material facts of a decisive character were incorrect – where the appellant also argued that the primary judge erred in the exercise of the discretion to order that the limitation period be extended, on the basis that, notwithstanding some prejudice to the appellant, the claim could still be fairly litigated – whether the primary judge erred in extending the limitation period

Limitation of Actions Act 1974 (Qld), s 30, s 31

Baillie v Creber & Anor [2010] QSC 52, cited
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, considered
Castillon v P&O Ports Ltd (No 2) [2008] 2 Qd R 219; [2007] QCA 364, considered
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32, considered
Hertess v Adams[2011] QCA 73, cited
Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143, considered
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
NF v State of Queensland[2005] QCA 110, applied
Spain v Dipompo Jacs Constructions P/L &…

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Details
Case
[2024] QCA 1
Decision Date

CaseChat Overview and Summary

In the case of Star Aged Living Limited v Lee, the respondent, who was employed as an Assistant in Nursing at an aged care facility managed by the appellant, claimed that she suffered a back injury due to the appellant's negligence. The respondent did not consult a lawyer until after the limitation period had expired. She sought an extension of the limitation period on the grounds that three material facts relating to her right of action were not within her knowledge until after the limitation period had expired. The primary judge granted the application, but the appellant appealed, arguing that the primary judge's findings on the material facts and the exercise of the discretion to extend the limitation period were incorrect.

The legal issues before the court were whether the primary judge erred in finding that the three material facts were of a decisive character and whether the primary judge erred in exercising the discretion to extend the limitation period. The court examined the evidence and the respondent's understanding of her injury and treatment, including her history of back injuries, surgeries, and WorkCover claims. The court also considered the respondent's lack of legal knowledge and her reliance on WorkCover payments.

The court found that the primary judge erred in concluding that the three material facts were of a decisive character. The court held that a reasonable person in the respondent's position, having taken appropriate advice, would not have regarded the facts as showing that an action would have a reasonable prospect of success and that the respondent ought to bring an action. The court also found that the primary judge erred in exercising the discretion to extend the limitation period, as the prejudice to the appellant outweighed the respondent's need for an extension. The court held that the respondent's claim could still be fairly litigated despite the delay.

The court allowed the appeal, set aside the primary judge's orders, dismissed the respondent's application to extend the limitation period, and ordered the respondent to pay the appellant's costs of the appeal and of the proceedings below.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders of the primary judge made on 10 March 2023 and 22 March 2023 (in relation to costs) are set aside.

3. The respondent’s application to extend the limitation period is dismissed.

4. The respondent pay the appellant’s costs of the appeal and of the proceedings below.

Background

Background to the litigation

The respondent’s explanation otherwise for not seeking advice earlier is that she is “inexperienced with court processes, litigation and the law generally”. She says that, until she spoke to Ms Avery, she “did not understand what a statutory claim with WorkCover and a personal injury claim for damages were”, nor the distinction between them, and was not aware of any limitation dates to bring a claim. She says she “believed that WorkCover would stop paying me five years after my accident and that was when I would find out the amount of the ‘payout’ and I would need legal advice about any further rights”. It is not clear what the basis of that belief was.Material facts of a decisive character Section 31(2) of the Limitation of Actions Act 1974 (Qld) provides that:“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.” As defined by s 30, material facts relating to a right of action include, relevantly, the nature and extent of the personal injury and the extent to which the personal injury is caused by the negligence or breach of duty.[3] By s 30(1)(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.”[3]Section 30(1)(a)(iv) and (v) of the Limitation of Actions Act. By s 30(1)(c), a fact is not within the means of knowledge of a person at a particular time if, but only if, the person does not know the fact at that time; and 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. There were three “material facts” relied upon by the respondent in support of her application to extend the limitation period. As described in the respondent’s submissions before the primary judge, they were:(a)first, that the respondent “realised subsequent to back surgery on 27 March 2019 that it was unlikely that she would be able to work in any capacity”;(b)second, that she learned that her pain symptoms after the surgery on 27 March 2019 were the result of a sacral end plate fracture which was a known complication of the lumbar fusion which was undertaken in 2016, to treat the original back injury from 19 December 2015, and not because of medical negligence; and(c)third, that she learned that her cause of action was “commercial” because there was a significant component of her impairment that was caused by the 19 December 2015 incident, as opposed to being related to and caused by pre-existing degeneration in her spine.

Evidence

Evidence Before The Court

The respondent was 30 years of age at the time of the incident. She had experience working as an assistant in nursing in various aged care facilities from August 2007. She had worked for the appellant at the Star Gardens Nursing home from April 2014.The respondent’s evidence as to her injury and treatment In her affidavit, the respondent says this was not her first back injury, as she suffered a disc protrusion at L4/5 in 2007. She did not make a WorkCover claim then. She suffered a “flare up of back pain in 2010” and made a WorkCover claim “for about 4 months off work”. She “had a short term flare up of [her] back pain in 2012 but … did not apply for WorkCover because it fully resolved itself within a short period of time”. The respondent says that after her injury on 19 December 2015, she again expected her pain would improve with time and rest, as it had in the past, but it did not. Following a CT scan, she was diagnosed with “cauda equina syndrome due to median sequestered L4/5 disc herniation”, a serious spinal injury requiring surgery. She had her first surgery on 4 January 2016, which she describes as “a laminectomy and decompression of my L4/5 disc, central canal and exiting nerve roots”. She then applied for WorkCover benefits on 11 January 2016. The respondent says she participated in physiotherapy and felt herself getting stronger. Although her symptoms were improving, she says her treating orthopaedic surgeon, Dr McEntee, considered she would benefit from further surgery and recommended “fusions” in June 2016. WorkCover refused to fund this, and so the respondent did not go ahead with it. The respondent says that Dr McEntee resubmitted the request to WorkCover in October 2018, because she was continuing to suffer pain and, the respondent says, “he told me that he was worried about future complications if I did not have the surgery”. WorkCover agreed to fund the L4/5 and L5/S1 surgery, but the respondent had to pay for the L3/4 disc replacement herself. The surgery was performed by Dr McEntee on 27 March 2019. The respondent never returned to work after the incident on 19 December 2015. Her debilitation was so severe that her husband ceased working three months after the incident and became her carer, receiving a carer’s allowance from Centrelink in that regard. He was still in that role at the time the application was heard in November 2021. The appellant emphasises, and the respondent accepted below, that by November 2018 (just prior to the expiry of the limitation period) the respondent knew that she had suffered a very serious spinal injury, which had required major spinal surgery; she believed that she had suffered that injury because her employer had not provided proper equipment (slide sheets), the system of work was inadequate (because the beds were too low) and her co-worker had not been properly trained in proper manual handling techniques; because of that injury, and since that injury, she had not been able to work, and required her husband as a full-time carer for herself and their child; she had not been able to return to work as an assistant in nursing, or anything similar, and would not be able to do so in the future; she would have trouble retraining into other work because of her narcolepsy; her injury had been accepted as work-related by WorkCover; and she was continuing to receive weekly compensation payments from WorkCover.[2][2]AB 775-776.Seeking advice

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.