The State of New South Wales v Knight

[2002] NSWCA 185

CITATION:	The State of New South Wales v Knight [2002] NSWCA 185
FILE NUMBER(S):	CA 40794/01
HEARING DATE(S):	21/06/02
JUDGMENT DATE:	3 July 2002
PARTIES :	The State of New South Wales v Luke Aiden Knight
JUDGMENT OF:	Mason P at 1; Handley JA at 2; Ipp AJA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	162/01
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

COUNSEL:	R C Tonner (Appellant) M Cranitch SC/M B Inglis (Respondent)
SOLICITORS:	Bartier Perry (Appellant) Commins Hendriks (Respondent)
CATCHWORDS:	LIMITATION OF ACTIONS - extension of time - appeal against grant of extension under s60G Limitation Act 1969 - cause of action to recover damages for injury to shoulder - whether applicant was aware of nature and extent of that injury more than 3 years before applying for extension - 601(1)(a)(ii), 601(1)(b) - APPEAL AND NEW TRIAL - points not taken below - appeal against grant of extension of time under Limitation Act - argument on appeal but not in court below that delay inordinate and gave rise to actual prejudice. D
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104 CRA Limited v Martignago (1996) 39 NSWLR 13 Harris v Commercial Minerals (1996) 186 CLR 1 Ditchburn v Seltsam Limited (1989) 17 NSWLR 697 F J Walker Limited v Webber (Unreported, NSWCA, 16 November 1989) Suttor v Gundowda Pty Limited (1950) 81 CLR 418
DECISION:	(1) Application for leave to appeal granted (2) Appeal dismissed with costs.

CA 40794/01
DC 162/01

MASON P
HANDLEY JA
IPP AJA

Wednesday 3 July 2002

THE STATE OF NEW SOUTH WALES v LUKE AIDEN KNIGHT

FACTS

On 25 June 2001 Mr Knight applied for an extension of time pursuant to s 60G Limitation Act 1969 (NSW) to commence an action against the State for damages for an injury sustained to his shoulder in 1991. By reason of s 60I(1)(b) and 60I(1)(a)(ii) of the Act the Court could not make an order extending time unless, relevantly, the application was made within 3 years after he became aware of “the nature [and] extent of personal injury suffered”. The issue therefore was whether Mr Knight became aware of the nature and extent of his shoulder injury prior to 25 June 1998. The trial judge concluded that he did not become aware of the nature and extent of his injury until September 2000. The trial judge also concluded that in the circumstances it was just to extend time, and thus ordered that time be extended. The State appealed against that order, challenging both of those conclusions. In relation to its challenge to the latter conclusion, the State argued that the delay was inordinate and gave rise to actual prejudice. That argument was not raised below.

HELD per Ipp AJA (Mason P and Handley JA agreeing):

(1) The nature and extent of the injury is to be assessed as at the date when the application for an extension of time is heard: Harris v Commercial Minerals Ltd (1986) 186 CLR 1 applied.

(2) Whilst Mr Knight was aware of the nature of his injury by 25 June 1998, he was not aware of the extent of his injury by that date: although he may have realised by then that he had serious ongoing problems and that further treatment was a possibility, perhaps involving surgery, he did not expect that his shoulder would continue to deteriorate to the extent that he would need to obtain medical treatment on an ongoing basis to deal with the painful restricted movement of his arm, that he would need surgery to enable him to retain an active lifestyle, and that even with surgery, he would remain unfit for work requiring heavy lifting or active use of his left arm and shoulder.

(3) Having not raised below the argument that the delay was inordinate and gave rise to actual prejudice, the State should not be allowed to raise that argument on appeal: Suttor v Gundowda Pty Limited (1950) 81 CLR 418 at 438 applied.

ORDERS:

1. Application for leave to appeal granted.

2. Appeal dismissed with costs.

CA 40794/01
DC 162/01

MASON P
HANDLEY JA
IPP AJA

Wednesday 3 July 2002

THE STATE OF NEW SOUTH WALES v LUKE AIDEN KNIGHT

Judgment

1 MASON P: I agree with Ipp AJA.

2 HANDLEY JA: I agree with Ipp AJA.

3 IPP AJA: This is an application for leave to appeal and an appeal against a decision by Sidis DCJ extending the limitation period applicable to a claim for damages for personal injuries that the opponent wishes to bring against the claimant.

4 The claimant was marginally out of time in applying for leave to appeal and sought an extension of time to enable it to bring the application. There was no opposition to this application and I would grant it.

5 The application for leave to appeal is necessary as her Honour’s decision was interlocutory. It is appropriate to make such an application prior to the substantive hearing where the claimant wishes to appeal against a decision extending the limitation period: Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104.

6 On 26 September 1991 the opponent was injured when he fell from the roof of a house in Orange. At the time he was a student at the Orange College of TAFE where he was undertaking a pre-apprenticeship course in carpentry and joinery. The accident occurred while the opponent was required to assist in the construction of two homes for the Housing Commission of New South Wales. The action the opponent wishes to bring against the claimant is based on the contention that the claimant’s negligence caused his fall.

7 The opponent was born on 4 June 1975. The limitation period within which the opponent was required to commence proceedings was three years. It is common ground that that period commenced to run from the time the opponent reached the age of 18 years and expired on 5 June 1996.

8 The opponent did not commence proceedings against the claimant by 5 June 1996 and on 25 June 2001 filed a notice of motion seeking that the limitation period be extended to enable him to commence proceedings against the claimant.

9 The opponent’s application for an extension of time was made under s 60G of the Limitation Act 1969. By s 60I of that Act, the Court is not empowered to make an order under s 60G unless it is satisfied of the matters set out in s 60I(1). Section 60I(1) provides:

“ Matters to be considered by court
(1) A court may not make an order under section 60G or 60H unless it is satisfied that:
(a) the plaintiff:
(i) did not know that personal injury had been suffered, or
(ii) was unaware of the nature or extent of personal injury suffered, or
(iii) was unaware of the connection between the personal injury and the defendant’s act or omission,
at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and
(b) the application is made within 3 years after the plaintiff became aware (or ought ot have become aware) of all 3 matters listed in paragraph (a) (i) – (iii).
(2) Subsections (2), (3) and (4) of section 60E apply, with any necessary adaptations, in relation to applications for orders under this Subdivision.”

10 The claimant accepted that, by 5 June 1996 (that is, the date of the expiration of the relevant limitation period), the opponent was unaware of the nature or extent of the personal injury he suffered. Accordingly, the claimant accepted that the opponent had met the requirements of s 60I(1)(a)(ii).

11 In the application before Sidis DCJ, counsel then appearing for the claimant focused on s 60I(1)(b). The opponent conceded that at the time of his accident or shortly thereafter he knew that he had suffered personal injury and he knew of the connection between that injury and the claimant’s act or omission on which he relied in contending that the claimant had been negligent. The live issue, under s 60I(1)(b), therefore, was whether the opponent’s application was made within three years after he became aware (or ought to have become aware) of the nature or extent of personal injury suffered.

12 The opponent’s notice of motion for an extension of time was filed on 25 June 2001 and the application was heard by Sidis DCJ on 10 September 2001. For the purposes of s 60I(1)(b), the opponent had to establish that, by 25 June 1998, he was not aware (or could not reasonably have been aware) of the nature or extent of personal injury he suffered.

13 The crucial issue for Sidis DCJ to determine, therefore, was the time when the opponent in fact became aware of the nature or extent of the injury he suffered. It was not suggested that he ought to have become aware of the nature or extent of his injury before 25 June 1998. Thus, the argument before her Honour concerned only the issue of the opponent’s actual knowledge (and not constructive knowledge).

14 Sidis DCJ said that the case was “borderline”. Nevertheless, she held that “the first date upon which it could be said that the [opponent] was aware of the seriousness of his injury was in September 2000”. On that basis, she considered that the requirements of s 60I(1) had been satisfied. On her Honour’s finding, the opponent’s application was made within three years after he became aware of the nature or extent of personal injury suffered.

15 Sidis DCJ then turned to the question whether it was just and reasonable to order that the limitation period be extended (see s 60G(2)). Her Honour decided this question in favour of the opponent and proceeded to make an order extending time.

16 The claimant appeals against the decision made by Sidis DCJ on four grounds. The first three grounds merely make the same point in different ways, namely that her Honour erred in finding that the first date upon which the opponent was aware of the seriousness of his injury was in September 2000. The other ground of appeal is that her Honour erred in finding that it was just and reasonable to extend the limitation period.

17 Before Sidis DCJ it was common ground that the principles relevant to the determination of the opponent’s state of awareness for the purposes of s 60I(1)(b) were those expressed by Clarke JA (with whom Priestley and Powell JJA agreed) in CRA Limited v Martignago (1996) 39 NSWLR 13. In fact, CRA Limited v Martignago concerned s 60I(1)(a) and not s 60I(1)(b). Section 60I(1)(b) incorporates the notion of constructive knowledge (see the reference to “ought to have become aware”), whereas s 60I(1)(a) is concerned solely with actual knowledge. Nevertheless, having regard to the way the case was conducted before Sidis DCJ, the principles laid down in CRA Limited v Martignago were appropriate. That is because it was accepted that constructive knowledge (for the purposes of s 60I(1)(b)) was not an issue in the proceedings.

18 In CRA Limited v Martignago Clarke JA said that s 60I(1)(a)(ii) posed “a factual question which cannot be answered by some universal or overriding test”. The same applies to s 60I(1)(b). The following remarks made by Clarke JA (at 20 to 21) are relevant:

“The subsection is concerned to inquire whether, in a real sense, the applicant knows the nature of his or her injury and its broad extent. Having regard to the policy of the legislation it is apparent that it is designed to afford relief to an applicant who is either unaware that he or she has suffered an injury or is aware that he or she has suffered an injury, possibly with continuing consequences, but is unaware of its complications, implications or potentially serious consequences. By way of example, an applicant who was aware that a blow on the arm had led to continuing but moderate pain but who was unaware until years later that there were serious complications flowing from that blow …. would remain unaware of the extent of the injury until the complications and consequences were drawn to his or her attention.
I recognise that I have put the matter very generally. That is because the nature of the factual inquiry is not susceptible to precise definition.”

And also the following:

“[The] courts should be concerned to analyse the facts in each case in order to determine whether the applicant knew the nature of the injury and, if so, in a broad way the extent of the injury, the nature of which is known. Practically speaking the resolution of the inquiry whether the applicant was unaware of the nature of the injury should throw considerable light on the task of resolving the second inquiry as to the extent of the injury. For instance, a finding that the applicant is aware that he or she has suffered a serious neck injury involving damage to the spine will, in general, provide an answer to the inquiries as to both nature and extent. In this context I would emphasise that the court is concerned not with the technical name or description of an injury but its effect, actual and potential, upon the applicant.”

19 The concepts of “nature” and “extent” differ in meaning and, as Clarke JA accepted, it does not necessarily follow that a finding that a plaintiff was aware of the nature of an injury is equivalent to a finding that the plaintiff was aware of the extent of the injury. A close inquiry must be made into the facts of each case. While in one case knowledge of a serious neck injury involving damage to the spine may constitute knowledge of the nature and extent of the injury sustained, in another case knowledge of some pain in the arm following a blow to the wrist may not constitute knowledge of the extent of the injuries if serious complications to the arm arise years later.

20 In determining the extent of the personal injury suffered, the “extent” of the injury is to be determined as at the date of the application: Harris v Commercial Minerals Ltd (1996) 186 CLR 1. Expectation as to the likely consequences of an injury is an element in determining an applicant’s awareness of the extent of the injury; it is the applicant’s expectation that is relevant, not that of a reasonable person: Harris at 13. As the High Court observed in Harris (at 13):

“Thus, if an applicant knew at the expiration of the relevant period that he or she suffered from a diseased spine, it does not necessarily follow that the person was aware of the “extent of personal injury” if eventually the disease caused the vertebrae to collapse. Whether the applicant was aware of ‘the extent’ of the injury would depend on whether that person was aware that there was a real chance that the vertebrae would collapse as the result of the disease”.

21 In Harris the High Court went on to say (at 13):

“In Ditchburn v Seltsam Limited (1989) 17 NSWLR 697 at 704, per Kirby P, (with whom Hope AJA agreed) the New South Wales Court of Appeal held that early signs and symptoms may not constitute sufficient indication of the ‘nature and extent’ of personal injury. In F J Walker Limited v Webber (unreported, New South Wales Court of Appeal, 16 November 1989) the same Court also stated that:
‘One can know ‘the nature and extent’ of one’s injury even if one is ignorant of the final form which it will take. Few plaintiffs ever know this, even at the time of trial and it would be difficult to attribute to Parliament an intention that potential plaintiffs may completely disregard limitation periods merely because they are unable to predict their final state’.
These statements imply, correctly in our opinion, that an applicant may have been aware of the extent of his or her injury even though he or she does not expect all its precise consequences, for it is not necessary that the applicant should foresee the exact course of the disease or be aware of all its pathological and physiological incidents. If the applicant was aware that the injury would deteriorate, he or she may be aware of the extent of the injury for the purpose of s 60I(1)(a)(ii) even though the injury developed particular consequences that the applicant did not precisely foresee. As long as the consequences are of a kind that an applicant expected to occur, the applicant will be aware of the extent of the injury. The nature or extent of the injury is not synonymous with the precise pathology or consequences of the injury.”

22 The High Court concluded (at 16):

“The extent of the worker’s condition had to be determined as at the date of the application. By that time the worker was not only fully incapacitated for work, he was also suffering from depression and impotence and his life expectancy was known to have been shortened. His depression and impotence were obviously unknown to him at the expiration of each limitation period. Consequently, those two matters by themselves entitled the learned judge to find that at the end of each period the worker was unaware of the extent of his injury as it existed at the date of the application”.

23 Accordingly, in order to determine whether, at a particular date, an applicant knew the nature and extent of his injury, it is necessary to make factual findings as to both the nature and extent of the injury in question.

24 Sidis DCJ did not differentiate between the nature and extent of the opponent’s injury. She held merely that the first date upon which the opponent was aware of the “seriousness of his injury” was in September 2000. A finding only of knowledge of the seriousness of the injury conflates nature with extent. It is therefore necessary to examine the evidence relating to these issues and to determine the nature and the extent of the injuries suffered by the opponent as at the date his application was heard, namely, 10 September 2001.

25 The opponent’s injuries were caused when he fell three metres from the roof on to compacted dirt. He received a severe injury to his left wrist and there was bruising and grazing over the posterior aspect of the left shoulder. It was found that he had sustained a fracture to the wrist with displacement involving the distal radius and ulna and which necessitated reduction and immobilisation by pins. At the hospital it was found that there was no bony injury to the left shoulder but the range of movement of the shoulder was restricted due to muscular tenderness and bruising.

26 The opponent has never contended that he is entitled to an extension of time because of lack of awareness in relation to his wrist injury. His claim in this regard has always rested on the nature and extent of his shoulder injury.

27 As at 10 September 2001, the opponent’s complaints relating to his shoulder were that it was unstable to a serious degree (being prone to dislocation), that it caused restricted movement to a serious extent, that there was serious wasting of the shoulder girdle muscles, that it would continue to deteriorate in condition, that it required surgery if he wished to retain an active life and that, even with the surgery, he would be unfit for work requiring heavy lifting or active use of his left arm or shoulder. The latter complaint was of particular concern to the opponent who was employed as a carpenter in the building industry. There was evidence to support all these complaints and, save in one respect, they were not disputed.

28 The complaint that the claimant disputed was the assertion that, even with surgery, the opponent would be unfit for work requiring heavy lifting or active use of his left arm or shoulder. The claimant pointed to a report dated 17 August 2001 by Prof Sonnabend, a specialist in shoulder injuries, who said that surgical stabilisation of the shoulder would involve “three months absence from heavy manual work, such as carpentry or building”. According to Prof Sonnabend, the success rate of such surgery was 95%.

29 The evidence that, even with the surgery, the opponent would be unfit for work requiring heavy lifting or active use of his left arm or shoulder consisted of a statement to this effect by the claimant in an affidavit. He said that his “treating doctors” gave him this information. These doctors included Prof Sonnabend. In cross-examination it was not put to the opponent that this evidence was contradicted by Prof Sonnabend’s report and Prof Sonnabend was not cross-examined. The opponent’s testimony can be reconciled with that of Prof Sonnabend’s report on the basis that surgical stabilisation of the shoulder would involve only three months absence from heavy manual work, such as carpentry or building, but, even with the surgery, the opponent would be unfit for work that required heavy lifting or active use of his left arm or shoulder. In the light of the omission to cross-examine either the opponent or Prof Sonnabend, the evidence should be so construed.

30 Accordingly, the matter is to be approached on the basis that the opponent’s complaints are accepted. It follows, in my view, that:

(a) The instability of the shoulder (causing its propensity to dislocation) and that condition which has resulted in restrictive movement (causing weakness in the shoulder girdle muscles and ligaments) fall into the category of the “nature” of the injury.
(b) The likelihood of continued deterioration, the degree of restricted movement, the need for surgery to enable the opponent to retain an active lifestyle, and the fact that even with surgery, the opponent would remain unfit for work requiring heavy lifting or active use of his left arm and shoulder, fall into the category of the “extent” of the injury.

31 I turn now to whether, by the relevant date (25 June 1998), the opponent was unaware of the nature and extent of his injuries as so defined.

32 After the opponent’s fall in September 1991, his injuries, initially, were managed by the hospital and orthopaedic surgeons in Orange. The next doctor to examine the opponent’s shoulder was Dr Matthews, a general practitioner. The opponent had been a regular patient of Dr Matthews since 1987. In a report dated 1 December 2000, Dr Matthews said that he had seen the opponent on eight to ten occasions over the past ten years (approximately) in connection with problems involving his left shoulder. The first hint of any involvement that Dr Matthews had with the opponent’s shoulder was on 13 October 1992 and this was followed on 9 August 1993. Dr Matthews’ report describes his examinations of the opponent on these dates as follows:

“[On 13 October 1992] he presented to my practice with (L) upper lateral chest wall tenderness and pain, aggravated by his general carpentry work over the preceding 1 - 2 months. He was prescribed a non-steroidal anti-inflammatory agent. When he presented again on 9.8.93 with similar problems in the (L) upper and lateral chest wall over the 6th and 7th ribs laterally, I organised a CXR – this test revealed no evidence of old fracture in the ribs or (L) shoulder.”

33 It is to be noticed that the examination carried out on 13 October 1992 and 9 August 1993 was not focused on the opponent’s shoulder. It seems that only peripheral attention was directed to the shoulder on those dates. The most the opponent could have known about his shoulder in that period was that there was no evidence of a fracture and, perhaps, it could be treated by anti-inflammatory drugs.

34 From November 1994 until March 1999 the opponent was working as a carpenter in the building industry. He found that using tools causing jarring or requiring a range of movement of the shoulder, or requiring elevation of the left arm above shoulder height, caused pain in his left shoulder. Nevertheless, he was able to perform his normal duties although he had some difficulties in doing so. Significantly, during this period, his physical condition was such that he did not consider it necessary to see a doctor about his shoulder and did not do so.

35 In 1997, the opponent began to experience dislocations in his shoulder. Initially, the dislocations would mend themselves (although, when the shoulder was first dislocated, the opponent needed to go to hospital to have the dislocation replaced). He did not seek medical attention for these dislocations. At a later stage, not more closely identified than “1998 or 1999”, he needed to undergo treatment in hospital, under anaesthetic, to have his shoulder replaced.

36 In early 1999 the opponent’s shoulder condition had reached a point where he was having difficulty coping at work. At that stage it became necessary for him to seek treatment. For this reason, in March 1999, he consulted Dr Matthews. This was the first consultation he had with Dr Matthews about his shoulder since 1993. Although not expressly dealt with in the evidence, the inference is that, at that consultation, the opponent asked Dr Matthews only about the pain and restriction in movement that he was experiencing. The instability of the opponent’s shoulder was then not sufficiently troublesome for him to mention it to the doctor.

37 In March 1999 Dr Matthews advised the opponent to undergo physiotherapy treatment. This he did on a number of occasions but it had no beneficial effect. Eventually, in September 2000, Dr Matthews referred the opponent to Prof Sonnabend.

38 Dr Matthews was first told about the instability in the shoulder at a consultation on 31 September 2000. In his report of 1 December 2000 Dr Matthews said:

“At consultation on 31.9.00 he told me that during the preceding six years he had experienced a number of dislocations of the (L) shoulder. He has had to present to Orange Base Hospital Casualty on several occasions where the shoulder has been reduced under sedation. More lately, the (L) shoulder would occasionally dislocate when he elevated and moved the (L) arm posteriorly; on these occasions the shoulder would usually ‘click back in’ within ten minutes. Examination on 31.9.00 revealed a restriction of elevation of the (L) arm by slight pain and weakness. There was obvious wasting of the shoulder girdle muscles, especially from the posterior aspect. … Examination on 31.9.00 and 7.11.00 was difficult to interpret due to the fact that Mr Knight had had a recent bike accident on 30.7.00 … causing tenderness over the distal clavicle. However, the muscle wasting mentioned above, was clearly long standing, but the painful restriction of some shoulder movements may have been aggravated by his recent injury….
It is my feeling that in absence of a significant direct ligamentous injury to the (L) shoulder eg football injury, the history of instability and dislocation is most likely due to a progressive weakness in the shoulder girdle, muscles and ligaments secondary to a persistent favouring of the (L) arm following the severe injury to his (L) wrist and to a lesser extent, his (L) shoulder in the fall from the roof in October 1991.”

39 In the course of cross-examination the opponent made a number of concessions that can be summarised as follows. During the period 1994 to 1998 the opponent experienced pain in his shoulder when using carpentry tools. In this period he had a loss of musculature and strength as well as a reduced range of movement in the shoulder (resulting in difficulty in raising his left arm above shoulder height particularly to the side of and behind his body). By December 1997, because he had had those symptoms for a long period of time, he realised that he had serious ongoing problems. He knew by 1998 that further treatment was “at least on the cards”. By December 1997, these problems were of sufficient severity to cause the opponent to see a solicitor about bringing a claim against the claimant. He accepted that by 1998 he knew that he had a serious ongoing problem with his left shoulder.

40 In cross-examination it was put to the opponent:

“Indeed you realised by 1998, certainly after the heavy dislocation that future treatment in the form of some sort of surgery may be a possibility in the future, isn’t that right?”

He replied to this question in the negative.

41 Later he agreed that throughout 1998 he had regular problems involving dislocations of his shoulder. It was then put to him:

“It is fair to say that with that information, that you couldn’t exclude in your own mind by 1998, the possibility of you requiring some further treatment, perhaps involving surgery?”

He replied to this question in the affirmative.

42 I accept that, by December 1997, the opponent was aware of the nature of his injuries. He knew that his shoulder was unstable and that it had a propensity to dislocation. He knew that his shoulder had restricted movement and that there was weakness in the shoulder muscles and arm.

43 Whether, at that stage, he was aware of the extent of his injuries, however, is a different matter.

44 Since the accident on 26 September 1991 the opponent’s shoulder injury had gradually deteriorated until it reached the condition it was in when, in September 2000, Dr Matthews referred him to Prof Sonnabend.

45 In his report of 1 December 2000, Dr Matthews said that the opponent’s condition at that date (particularly the painful restriction of elevation of his left arm) was caused by “a progressive weakness in the shoulder girdle, muscles and ligaments secondary to a persistent favouring of the (L) arm following the severe injury to his (L) wrist and to a lesser extent, his (L) shoulder.”

46 In that report, Dr Matthews referred to “obvious wasting of the shoulder girdle muscles, especially from the posterior aspect”. He made no mention of having detected such wasting previously (for example, at the consultation in March 1999) and the inference is that he noticed the wasting for the first time in September 2000. In his evidence in chief, the opponent said that in the early part of 1999 he had noticed muscle wasting in his shoulder. In cross-examination he acknowledged that “up to 1998” the strength and musculature in his left arm was not as good as in his right arm. Inasmuch as Dr Matthews had not noticed the muscle wasting at the consultation in March 1999, I assume that the muscle wasting in the early part of 1999 was of a minor degree.

47 Prof Sonnabend, in his report of 17 August 2001, recommended surgical stabilisation of the left shoulder. He stated:

“With regard to the deterioration which appears to have occurred in [the opponent’s] left shoulder over the last year, I would regard that deterioration as the ‘natural history’ of shoulder instability in a young man. That is, the initial dislocation having occurred, and [the opponent] continuing in strenuous physical work, one would expect the frequency of dislocation to increase with time.”

This report is evidence, firstly, that the significant deterioration occurred from early 2000 onwards, and secondly, that the entire process was one involving a history of deterioration,

48 Mr Tonner, counsel for the claimant, submitted that Prof Sonnabend’s report was of limited value as the professor had not been told about a motor cycle accident that the opponent had had on 30 July 2000 in which he had injured his clavicle. I do not accept this submission. Firstly, there is no evidence that the opponent did not tell Prof Sonnabend about the accident and the injury to his clavicle (he had, after all, told Dr Matthews of these matters). Secondly, Dr Matthews said that “in absence of a significant direct ligamentous injury” to the shoulder, the “history of instability and dislocation” was most likely due to the progressive weakness in the shoulder girdle muscles and ligaments. The motor cycle accident did not give rise to such a “significant direct ligamentous injury” to the shoulder. Thirdly, it is apparent that Dr Matthews regarded the motor cycle accident and the injury to the clavicle as having no causative effect in regard to the shoulder injury.

49 In my view, the fact that, after 9 August 1993, the opponent did not consult a doctor about his shoulder injury until March 1999 is strong evidence that, before 25 June 1998, he did not know the extent of that injury. True it is that, by 1998, he was experiencing pain, restriction of movement and loss of musculature and was having physical difficulties with his work, but these symptoms were then not so bad as to require him to see his general practitioner.

50 By 1998 the opponent may have realised that he had serious ongoing problems and further treatment was on the cards, but his omission to seek any medical help at all at that stage suggests that he was not aware of the true extent of his injuries. The phrase “serious ongoing problems” involves a degree of relativity, and however serious the opponent might have thought his symptoms were, they were not sufficiently serious to make him see his doctor.

51 The opponent had, since 1997, experienced dislocations in his shoulder but, apart from the first occasion, the shoulder, initially, mended itself. The evidence that in 1998 or 1999 the shoulder was replaced under anaesthetic is not helpful as the relevant date is not properly identified. It was not until September 2000 that he saw Dr Matthews about the problems caused by the instability of his shoulder. In February 2001, Prof Sonnabend recommended surgery and told the opponent that if he wanted to keep having an active life he would have to have surgery to his shoulder. The fact that by 1998 he could not exclude the possibility that he might require some further treatment, perhaps involving surgery, does not establish that he was aware of the true extent of his injuries.

52 Moreover, it was in February 2001 that the opponent was informed for the first time that his condition was likely to deteriorate further and that even with surgery he would remain unfit for work requiring heavy lifting or active use of his left arm and shoulder.

53 The fact that, in December 1997, the opponent consulted a solicitor about bringing a claim against the claimant also does not establish that he knew the true extent of the injury to his shoulder. He may merely have thought that his injury was sufficiently serious to warrant the bringing of a claim.

54 In my view, the evidence establishes that, by 25 June 1998, the opponent was aware that he had a shoulder injury but believed that he would be able to continue working and continue his life without having to have recourse to medical assistance. The knowledge he then had of his symptoms was insufficient indication of the extent of his injury. At that date he was not aware of the “real chance” that his shoulder would continue to deteriorate to the extent that he would need to obtain medical treatment on an ongoing basis to deal with the painful restricted movement of his arm, that he would need surgery to enable him to retain an active lifestyle, and that even with surgery, he would remain unfit for work requiring heavy lifting or active use of his left arm and shoulder. These were not consequences that he expected to occur.

55 As I have mentioned, Sidis DCJ found that the first date on which the opponent was aware of the seriousness of his injuries was September 2000. In my view, her Honour correctly found that the application extending the limitation period was made within three years after the opponent became aware of the extent of his injuries.

56 In the hearing before Sidis DCJ the claimant conceded that there was no evidence of actual prejudice that it would suffer were time to be extended. Counsel then appearing for the claimant submitted, merely, “this is an old action and there’s some presumptive prejudice”. He also submitted that the opponent would have some difficulty in establishing negligence on the claimant’s part.

57 Before this Court, the claimant submitted:

“The delay was inordinate and the subsequent injuries to the opponent’s left shoulder joint in [other unrelated accidents] have resulted in a fair trial being impossible”.

58 The issues now raised were not agitated before Sidis DCJ. Had they been, the opponent might have been able to lead evidence relevant to them. In the circumstances the principles laid down in Suttor v Gundowda Pty Limited (1950) 81 CLR 418 (at 438) apply. The claimant should not be allowed to raise this argument on appeal.

59 I would grant the application for leave to appeal and dismiss the appeal with costs.

**********