Van der Merwe v Arnott's Biscuits Limited

[2010] QSC 145

SUPREME COURT OF QUEENSLAND

CITATION:

Van der Merwe  v Arnott’s Biscuits Limited [2010] QSC 145

PARTIES:

CAROL VAN DER MERWE
(plaintiff)
v
ARNOTT'S BISCUITS LIMITED
ACN 008 435 729
(defendant)

FILE NO/S:

BS 4938 of 2008

DIVISION:

Trial

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

28 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

27 April 2010

JUDGE:

Daubney J

ORDER:

1.  That the limitation period for this proceeding against the first defendant and the second defendant for damages for personal injuries sustained on 19 October 2001 be extended to 29 May 2008;
2. The plaintiff’s costs of and incidental to this application be costs in the cause as against the first defendant;
3. No order as to costs against the second defendant.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – GENERALLY – where plaintiff has applied under section 31 of the Limitations of Actions Act for the limitation period relating to her claim for damages to be extended – where the plaintiff was employed as a laundry processor since early 2000 and was injured on 19 October 2001, allegedly removing a load of heavy workman’s overalls from an industrial washing machine – where she initially consulted her general practitioner who diagnosed her as suffering from sciatica – where the plaintiff lodge a claim for Workers Compensation which was accepted for the period
23 October 2001 to 22 January 2002 –where the plaintiff consulted a neurosurgeon who advised she did not need any neurosurgical intervention and said words to the effect “there’s nothing wrong with you” – where the neurosurgeon provided advice that the medical condition was not attributable to an aggravation of a pre-existing condition – where the plaintiff continued to suffer back pain – where the plaintiff was referred to another consultant neurosurgeon on 29 May 2007 who advised she undergo surgery and advised that the condition related back to the first incident in 2001 – where the applicant first consulted solicitors regarding a potential claim for damages in October 2007 – whether in all the circumstances, the limitation period should be extended  

Limitation of Actions Act (1974) Qld, s30, s31

Baillie v Kreber [2010] QSC 52, cited
Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541, cited
Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, applied
Muir v Franklins Limited [2001] QCA 173, cited
NF v State of Queensland [2005] QCA 110, cited
Watters v Queensland Rail [2000] QCA 51, cited

COUNSEL:

G O’Driscoll for the plaintiff
ST Farrell for the first defendant
R Whiteford for the second defendant

SOLICITORS:

Murphy Schmidt Lawyers for the plaintiff
Bray Lawyers for the first defendant
McCullough Robertson Lawyers for the second defendant

HIS HONOUR:  The plaintiff in this proceeding has applied

under section 31 of the Limitation of Actions Act 1974 ("LAA")

for the limitation period relating to her claim for damages

said to have been sustained on 19 October 2001 to be extended

to 29 May 2008.

There is no issue between the parties with respect to

compliance with the requirements of either the Work Cover

Queensland Act or the Personal Injuries Proceedings Act so far

as the plaintiff's claim is concerned, and the parties agree

that the only issue for determination is whether the plaintiff

ought have an extension of the limitation period.

The plaintiff commenced employment with the second defendant,

a recruitment company, in early 2000.  Shortly thereafter she

commenced working as a laundry processor at the first

defendant's premises pursuant to a labour hire arrangement

between the first and second defendants.

On 19 October 2001 she was injured.  She alleges that she was

injured while she was trying to remove a load of heavy

workman's overalls from an industrial washing machine, and

that the load that she was lifting weighed about 35 kilograms.

She contends that in order to remove the overalls she had to

lean into the machine to dislodge them and pull them out.

Her contention is that after her second attempt to remove the

overalls she felt a shooting pain down her back and right leg.

The plaintiff initially assumed that she had pulled a muscle

and she completed the remainder of her shift.  The pain

intensified over the following two days however and she

consulted her general practitioner, Dr Fisher, the following

week.  Dr Fisher diagnosed her as suffering from sciatica and

recommended physiotherapy.

The plaintiff then lodged a claim for Workers Compensation

benefits on the 23rd of October 2001.  That claim was accepted

and her medical expenses were paid by Work Cover during the

period 23 October 2001 to 22 January 2002.  During that time

the plaintiff received mainly physiotherapy treatment.

It is not clear how much time the applicant took off work

after that incident in October 2001, but she says that she

returned on light duties for a period of some four to six

weeks.  She was given a full clearance to return to work by

her general practitioner in early January 2002.

When she went back to work she continued to work a night shift

until November 2002.  At that time she took up employment

directly with the first defendant as opposed to working at the

first defendant's premises under a labour hire arrangement to

the second defendant.

At that time the plaintiff became a casual employee so that

she could work the day shift.  The reason for the change in

hours was because she was in the process of separating from

her husband who had threatened to take her children away from

her if she left them unattended during the night.

The plaintiff continued working as a laundry processor for the

first defendant until 10 January 2003.  She claims that on

that day she aggravating her back injury while at work.  The

pain progressively worsened, and she says that on the

following day as she was about to take a shower she

experienced a sudden episode of severe pain.

The plaintiff consulted Dr Fisher shortly after that incident

in January 2003.  Dr Fisher referred the plaintiff to

Dr Michael Redmond, a consultant neurosurgeon.  Dr Redmond saw

the plaintiff twice in early 2003.  On 11 February 2003

Dr Redmond wrote to Dr Fisher saying:  "I reviewed this lady

once again on 6 February 2003.  She has improved quite a deal

since I last saw her.  She has had an MRI scan performed which

shows a central L5-S1 disc protrusion with no nerve

compression.  I have told her she does not need any

neurosurgical intervention but she does need to lose weight,

get fit, cease smoking cigarettes and negotiate with her

employer to obtain a situation that does not require so

much heavy lifting and bending as is apparently required in

the laundry section."

The plaintiff gave evidence and was cross-examined before me.

In the course of her evidence she spoke of her attendance on

Dr Redmond, and said that Dr Redmond had given her no

indication of there being any necessity for her to undergo any

surgical intervention.  Indeed she described Dr Redmond, when

she raised her concerns with him, as laughing at her, slapping

her on the foot, and saying to her words to the effect:  "Get

off the bed, there's nothing wrong with you."  The plaintiff

said that she felt a bit silly in that circumstance because

Dr Redmond is, of course, a medical specialist.

Despite receiving that advice from Dr Redmond the plaintiff

applied to her employer for Workers Compensation benefits in

May 2003.  Both her general practitioner and Dr Redmond

provided reports which were considered as part of that Workers

Compensation claim.  Dr Fisher provided a letter dated 8 July

2003 describing the pain being suffered by the plaintiff and

saying:

"I believe that having seen her over the last two/three years

with this problem that the initiating factor in her back pain

and sciatica was the injury she sustained when she was working

in the laundry at Arnott's in October 2001, and that the flair

up in January this year was related to the same factors at

work.

I do consider that this injury sustained this year is

an aggravation of a pre-existing condition that was first

identified in October 2001 when she was working in the

laundry.  I would consider that her employment was the major

factor and significant contributing aggravator."

Dr Redmond provided a full medico legal report dated 7 August

2003.  In that report he described having been provided by the

plaintiff with the history of having suffered a low back

condition as a consequence of the injury in October 2001, and

described the symptoms suffered and the treatment that she

underwent for that injury.  He also described his physical

examination of her at the time he saw her in early 2003, and

reviewed the CT scans which had been taken of the plaintiff's

lumber spine in October 2001 and then in January 2003.

Under the heading:  "Diagnosis and management" Dr Redmond

said:  "I indicated to [the plaintiff] that she did not need

any neurosurgical intervention, but I advised her to lose

weight, get fit, cease cigarette smoking and negotiate with

her employer to obtain a situation that did not require as

much heavy lifting and bending."

Under the heading:  "Findings" Dr Redmond made the following

specific statements:

"4.  I am therefore of the opinion that this lady's medical

condition is not attributable to her employment.  5.  I am not

aware of any non-work or psycho-social factors which have

contributed towards the development of her condition.  6.  I

do not consider that injury on 11 January 2003 to be an

aggravation of a pre-existing condition."

In reliance on Dr Redmond's report, the claim for Workers

Compensation made by the plaintiff was rejected by the first

defendant, which is a self insurer.  If necessarily follows,

of course, that the first defendant rejected the views which

had been expressed by the plaintiff's general practitioner.

The plaintiff then consulted the Liquor, Hospitality and

Miscellaneous Workers' Union to assist in obtaining a review

of the first defendant's decision.  One of the grounds for the

review was that her condition was an aggravation of the

injuries sustained in the first incident.

The matter was appealed through the Q-Comp process, and on 30

April 2004, Q-Comp affirmed the decision that had been made,

again acting in reliance on the report obtained from

Dr Redmond.

After receiving the decision of Q-Comp the applicant did not

do anything further to pursue a claim.  After the Q-Comp

decision was handed down, however, the plaintiff sent a letter

dated 1 June 2004 to Q-Comp, to her union and to her employer

in which she said:  "I have come to realise that I am fighting

a losing battle here for fairness and so I have to reluctantly

let this rest now, but I want it on record by writing this

letter that I totally dispute the decision and your reasons

for that decision.  I do not believe I was given a fair chance

nor do I believe I deserve to lose my job over this.  I am a

good worker no matter what job I am given to do.  I feel like

a drop in the ocean trying to fight a whale, so I guess it's

time to put this to rest and move on (in pain).  There are a

few more things that I could mention and dispute, but I guess

there would be no point to that either."

It was submitted on behalf of the plaintiff, and I accept,

having heard the plaintiff give evidence, that the plaintiff

accepted this decision by Q-Comp and she thought she had

nowhere else to go, and she did the best she could to get on

with her life.  She did not then obtain consistent employment

until March 2007 when she commenced employment with Black and

White Taxis as a call centre operator.

During the period between January 2003 and obtaining

employment again in March 2007 the applicant was caring for

her two children, and was also in effect caring for herself.

Whilst she received maintenance from her ex-husband and a

Centrelink parent allowance during this time, she was

nevertheless alone with her children and in pain, but at least

she did not have an immediate financial necessity to return to

work.

It is also clear on the material before me, as was confirmed

in the course of extensive cross-examination of the plaintiff

before me, that during this intervening period between early

2003 and March 2007 the plaintiff regularly suffered back

pain; that she attended for regular consultations with her

general practitioner in relation to that back pain; that she

was regularly prescribed pain relief to deal with that back

pain, and that she regularly required extended periods of bed

rest for the purposes of dealing with her back pain.

In any event, shortly after commencing her employment with

Black and White Taxis she suffered a severe episode of back

pain.  She developed numbness in her right leg and the first

three toes in her left leg.  Her general practitioner then

referred her to another consultant neurosurgeon, Dr Richard

Kahler, who saw the plaintiff for the first time on the 29th

of May 2007.  After reviewing an MRI scan Dr Kahler

recommended that the applicant undergo surgery as soon as

possible.  Eight days later he performed a key hole right

L5‑S1 discectomy and nerve root release.  After obtaining a

history from the applicant Dr Kahler advised that he

considered that the plaintiff's condition related back to

the first incident in 2001.

On the 23rd of October 2007 the applicant first consulted

solicitors to investigate a claim for damages for personal

injuries arising out of her employment with the second

respondent.  At that time, instructions were sent to Dr Kahler

to seek his expert opinion on whether the applicant's back

condition related back to the first incident, and Dr Kahler

provided that written confirmation in a medico legal report

dated 9 January 2009 in which the doctor diagnosed the

plaintiff as suffering a degenerative lumber spine condition,

namely, lumber spondylosis which manifested itself as a L5-S1

disc degeneration.

In the course of that report he said:  "It is not possible to

state definitively whether she was have suffered this

progressive deterioration in the absence of her described work

injury.  On the balance of probabilities I can state it

is likely that the described work injury aggravated and

accelerated her condition to a point where she required

surgery and now requires further surgery to address her

condition."

The present proceedings were then commenced on behalf of the

plaintiff against the first defendant and the second defendant

by the filing of a claim and statement of claim on 23 May

2008.  In her evidence the plaintiff has sworn to the

following matters:

“(a) that she initially consulted Dr Kahler on the 29th of May

2007;

(b) that after she had provided him with a history of her

symptoms Dr Kahler advised her that her condition related back

to the incident on 19 October 2001;

(c) that it was not until she consulted Dr Kahler that she

appreciated that:  (i) she would require surgery as a result

of her condition (ii) her injuries were as a result of the

incident on 19 October 2001 and (iii) she had an injury which

would stop her from getting back into the workforce."

In relation to this last mentioned fact I should note that the

plaintiff was cross-examined before me at some length about

the symptoms she had suffered and reported on when, for

example, making disabilities support pension applications, and

her ongoing appreciation, whilst suffering those symptoms, as

to the effect they had on her capacity and her understanding

of her capacity to work.

Ultimately, however, the plaintiff did not rely on this as one

of the "Material facts of a decisive character" relied on for

the purposes of the present application and it is therefore

unnecessary and probably undesirable for me to make any

findings on that aspect which would involve an assessment of

the plaintiff's credit.

Section 31 subsection (2) of the LAA provides:

"Where an application to a court by a person claiming to have

a right of action to which this section applies, it appears to

the court-

(a) that a material fact of a decisive character relating to

the right of action was not within the means of knowledge of

the applicant until a date after the commencement of the year

last preceding the expiration of the period of limitation for

the action; and

(b) that there is evidence to establish the right of action

apart from a defence founded on the expiration of a period of

limitation; the court may order that the period of limitation

for the action be extended so that it expires at the end of 1

year after that date and thereupon, for the purposes of the

action brought by the applicant in that court, the period of

limitation is extended accordingly."

The first question for determination is whether the facts

advised to the plaintiff by Dr Kahler i.e.  that her back

condition required surgery, and that the injuries resulted

from the 2001 incident, were material facts of a decisive

character relating to a right of action, as that term is

understood in section 31 (2).

In that regard section 30 of the LAA provides:

"Interpretation-

(1) For the purposes of this section and sections 31, 32, 33

and 34;

(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;

(v) the extent to which the personal injury is caused by the

negligence, trespass, nuisance or breach of duty;

(b) material facts relating to a right of action are of a

decisive character if but only if a reasonable person knowing

those facts and having taken the appropriate advice on those

facts, would regard those facts as showing-

(i) that an action on the right of action would (apart from

the effect of the expiration of a period of

limitation) have a reasonable prospect of success and of

resulting in an award of damages sufficient to justify the

bringing of an action on the right of action; and

(ii) that the person whose means of knowledge is in question

ought in the person's own interests and taking the person's

circumstances into account to bring an action on the right of

action;

(c) a fact is not within the means of knowledge of a person at

a particular time if, but only if-

(i) the person does not know the fact at that time; and

(ii) as far as the fact is able to be found out by the person

- the person has taken all reasonable steps to find out the

fact before that time.

(2) In this section:

appropriate advice, in relation to facts, means the advice of

competent persons qualified in their respective fields to

advise on the medical, legal and other aspects of the facts."

There was really no issue before me that the facts relied on

by the plaintiff were material facts relating to the

plaintiff's right of action.  Rather the debate was whether

these facts had the necessarily decisive character.  This

requires the applicant/plaintiff to show that without the

newly learned fact or facts she would not, even with the

benefit of appropriate advice, have previously appreciated

that she had a worthwhile action to pursue, and should in her

own interests pursue it - Moriarty v Sunbeam Corporation

Limited [1988] 2 Qd R 325 per Macrossan C J at 333.

I emphasise the word:  "worthwhile" in that test because as

Thomas JA said Watters v Queensland Rail [2000] QCA 51 at

[9]:  "The fact could only be of a decisive character,  if it

converted the claim from ' one not worth bringing into one

that was'".

In submitting that the plaintiff had failed to demonstrate

that the facts relied on had the necessarily decisive quality,

each of the respondents relied on the following:

(a) the only expression of disagreement by the GP with the

specialist's view and the GP's opinion that the 2003 flare-up

arose out of the 2001 injury;

(b) the fact that, notwithstanding the specialist's advice,

the plaintiff had pursued a Workers Compensation claim with

her employer and when rejected had pursued the matter through

Q-Comp;

(c) the ongoing history of serious back pain she suffered and

reported on during the years up to 2007;

(d) the fact that she had applied for a Disabilities Support

Pension in reliance, inter alia, on her back condition.

These factors individually and collectively might have

indicated to a reasonable person in the plaintiff's

circumstances that they might have had some right of

action with some prospect of success, but that is a

considerable way from being in possession of facts on which

appropriately advised the plaintiff could understand she had a

worthwhile cause of action.

The plaintiff had received apparently unequivocal advice from

a specialist neurosurgeon both that surgery was not necessary,

and that the 2003 suffering was unrelated to the 2001

incident.  She had nevertheless sought Workers Compensation,

which claim was rejected by the employer, and then by Q-Comp,

those rejections being on the basis of the specialist's

advice.  She was supported in her quest by both a union and

her GP, neither of which suggested to her that she

should, for example, seek a second opinion from another

neurosurgeon.

Her GP's opposing opinion had not influenced the outcome in

the Q-Comp process.  The fact that the plaintiff spent several

years in pain is, of course, unfortunate but really does not

address the point that the specialist's opinion which the

plaintiff held from Dr Redmond was so unequivocally against

the notion that her pain was connected with the 2001 incident.

In the circumstances of this case, as I have outlined them

above, I consider that a reasonable person in the

plaintiff's position would not have been able to form the view

that any right of action which they might have against the

first defendant or the second defendant would have reasonable

prospects of success until they were apprised of the

information which Dr Kahler gave this plaintiff in May 2007.

Accordingly I consider that these were material facts of a

decisive character relating to the plaintiff's cause of

action.

The next question is whether these facts were within the

plaintiff's means of knowledge prior to May 2007.  This calls

relevantly for an inquiry under section 30 subsection

(1)(c) whether the plaintiff took all reasonable steps to find

out these facts before May 2007.

In this regard, as McMeekin J noted in Baillie v Kreber [2010]

QSC 52 at [32], the actual person postulated by section 30

subsection(1)(c) as the person who has taken all reasonable

steps is the particular person who has suffered the particular

personal injuries.  His Honour's approach is, if I may say,

completely consistent with the observations of Keane JA in

NF v State of Queensland [2005] QCA 110 at [29]:

"It is to be emphasised that section 30(1)(c) does not

contemplate a state of knowledge of material facts attainable

in the abstract either by the exercise of 'all reasonable

steps', or by the efforts of a reasonable person.  It speaks

of a state of knowledge attainable by an actual person who has

taken all reasonable steps.  The actual person postulated by

s30(1)(c) as the person who has taken all reasonable steps, is

the particular person who has suffered particular personal

injuries.  Whether an applicant for an extension of time has

taken all reasonable steps to find out a fact can only be

answered by reference to what can reasonably be expected from

the actual person in the circumstances of the applicant.  It

seems to me that, if that person has taken all the reasonable

steps that she is able to take to find out the fact, and has

not found it out, that fact is not within her means of

knowledge for the purpose of s 30(1)(c) of the Act."

Again in submitting that the plaintiff had failed to

demonstrate that these facts were not within her means of

knowledge, the respondents pointed to:

• The debilitating pain which the plaintiff suffered in the

years after 2003;

• The impact this had on her ability to work, even to the

extent of preventing her from completing a four week tax

agents course;

• Her failure to ask for a second specialist opinion;

• Shortcomings and apparent inconsistencies in the

specialist report by Dr Redmond;

It is sufficient to note that the first defendant's submission

on this aspect of the case was summarised as follows: 

"42.  Armed with her knowledge of the events of 10 January

2003, the opinion of Dr Fisher is expressed in numerous of her

reports (including that of 8 July 2003).  The erroneous

premise of the Redmond report, and the impact that her daily

symptoms were having on her work capacity, a reasonable person

would have sought further legal and medical opinion regarding

the nature of her condition and its nexus with the 2001 event

notwithstanding the opinion expressed by Dr Redmond in his

report dated 7 August 2003."

Similarly counsel for the second defendant submitted:

"There is no credible explanation for why a reasonable person

in the plaintiff's circumstances would not or could not have

made enquiries to the consequences of her symptoms and reduced

earning capacity and sought appropriate advice.  She never

asked her union what could be done after Q-Comp rejected her

application for benefits following January 2003; she never

sought legal advice, and never asked her general practitioner

for a referral for a second specialist opinion.  The facts

known to the plaintiff prior to May 2007 called for prudent

inquiry to protect her right, but she did not make such

inquiry even though she must have appreciated that she was in

a situation of vulnerability in the labour market."

These submissions, however, fail to take account of the

circumstances in which this particular plaintiff found

herself.  As I have already said, she had received unequivocal

advice from a specialist neurosurgeon.  In the teeth of that

advice she had unsuccessfully sought Workers Compensation in

2003, and failed in her Q-Comp challenge.  She was advised at

the time by a union and had the support of a GP who disagreed

with the specialist opinion, but neither of these suggested

that she should seek a second opinion.

It is clear from the terms of the letter that she wrote after

the Q-Comp rejection of her claim that the attitude that she

adopted thereafter was one of fatalistic acceptance of the

circumstance which had been dealt to her.

One might ask rhetorically ”If it did not occur to her union

Or to her general practitioner to suggest that the plaintiff

obtain a second opinion, how can it be said that it was less

than reasonable for the plaintiff not a agitate for that

herself?”

Counsel for each of the respondents in the course of argument

accepted that the fundamental question for the purposes of

this application was whether this plaintiff ought reasonably

have sought a second opinion from a neurosurgeon or consulted

a solicitor who would have sent her off to get another

neurosurgeon's opinion.

This plaintiff had, as I have said, consulted a neurosurgeon.

She had sought to vindicate her rights and failed.  She had

accepted that in the light of the specialist medical opinion

that she had obtained.  There was, on the information and

advice she had at that time, no reason for her to see a

solicitor.  Having received such unequivocal advice from

Dr Redmond, and there being no suggestion from those who were

advising her that she should seek a second opinion, it seems

to me that the plaintiff was entitled to consider that she had

explored the lines of inquiry reasonably open to her.  I would

therefore find that the facts given to her by Dr Kahler in May

2007 were not within the plaintiff's means of knowledge prior

to her consultation with Dr Kahler.

The final question is whether the discretion conferred under

section 31 ought be exercised in favour of the plaintiff.

Each of the respondents contended, albeit ultimately in a

relatively muted way, that questions of prejudice militated

against the exercise of the discretion.  Each pointed to the

following matters:

(a) the general prejudice inherent from and caused by delay in

the sense described by McHugh J in Brisbane South Regional

Health Authority v Taylor [1996] 186 CLR 541 at 8;

(b) apprehended difficulties in conducting investigations

at this temporal remove from the 2001 incident.

It is said, for example, that it seems that there was no

incident report created after the 2001 incident nor does the

first defendant have documents relating to the incident.  If

an incident report and other such documents never existed,

then it is difficult to see how the defendants can be

prejudiced by not having documents which never existed anyway.

Similarly an argument was advanced (somewhat faintly) that the

defendants would be prejudiced because the particular washing

machines were replaced and disposed of in 2008.  Frankly I

find it difficult to accept that the defendants would not be

able, with some little inquiry, to find an exemplar of a front

loading industrial washing machine as in use only eight or

nine years ago.

None of the factors raised on behalf of the defendants seem to

be of such weight or significance as to prevent from obtaining

a fair trial (Muir v Franklins Limited [2001] QCA 173 per

Mullins J at [56]).  There was no dispute between the parties

as to the appropriate costs' order to be made in the presence

case.  There will therefore be the following orders:

1.  That the limitation period for this proceeding against the

first defendant and the second defendant for damages for

personal injuries sustained on 19 October 2001 be extended to

29 May 2008;

2.  The plaintiff's costs of and incidental to this

application be costs in the cause as against the first

defendant;

3.  No order as to costs against the second defendant.

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