Van Eldik v Incitec Ltd

[1999] QCA 297

COURT OF APPEAL  99.297

PINCUS JA
THOMAS JA
JONES J

Appeal No 4301 of 1999

ANTOON JOESPH VAN ELDIK                   Appellant (Plaintiff)

and

INCITEC LTD (ACN 010 767 263)             Respondent (Defendant)

TOWNSVILLE

..DATE 29/07/99

JUDGMENT

THOMAS JA:  The appellant was a fitter who was about 33 years old when he suffered a fall at work on 19 October 1994.  He was a physically active man and amongother activities he was a triathlete.  He consulted his general practitioner who referred him to an orthopaedist, Dr Shaw, whom he saw eight days after the work incident.  Dr Shaw recommended conservative treatment and the appellant continued at work upon reduced hours and performed lighter work as a result of arrangements with his accommodating employer.  His back pain, which he suffered as a result of the incident, however, did not resolve.  A CT scan taken in November 1994 revealed a disc bulge at L3 to L4 and a protrusion at L4 to L5. 

In late 1995, that is to say, about a year later, he went back to see Dr Shaw and was advised that his options were either to have an operation or to wait and hope until the condition subsided.  He waited, but the condition persisted.  By September 1996 the condition had worsened and a further CT scan showed that the prolapses at L3 to L4 were worse than previously and that he still had the same problems at L4-L5. 

Soon after, he suffered very severe pain and was taken to hospital for morphine injections.  A myelogram was taken and subsequently he was admitted to hospital with severe headaches.  This led to an operation by Dr Shaw on 2 October 1996 in which a discectomy was performed.  He was discharged on 8 October and was back at work, albeit on a limited basis, by 25 October 1996.

Dr Shaw still expressed optimism and that it might even be possible for him to return to triathlon competitions in due course if all went well.  The doctor described the operation as having produced an excellent result and that he might be able to return to full duties by the time three months had passed.  There was a qualification, however, in Dr Shaw's advice, in that the operation would remit leg pain but the possibility of permanent back problems still existed.

Considerable improvement occurred for a time to the leg symptoms but the back pain remained.  He continued to participate in attempts at triathlons but did not achieve a satisfactory standard.  He continued to perform the duties he was allocated at work but found it necessary to take days off.  He made a personal decision to wait for 12 months before considering further options, but that does not appear to have been based upon any specific medical advice.

It was agreed before His Honour, and indeed here, that 10 September 1997 was the date relevant for consideration of whether the appellant had enough information to make it reasonable to sue, and it was common ground that if he had such information by that time he could not succeed.  This is apparently in recognition of the limit of 12 months' extension which the Court can grant after such a date. 

That date passed, and in the following months, namely November 1997, he suffered an incident, which is not related to the present matter, other than that it brought him into contact incidentally with his GP and with Dr Shaw who gave him some limited degree of reassurance in relation to his back condition.

In early 1998 he was required by his employer to fill out a questionnaire from a labour hire company.  His own answers made him realise that he might be in jeopardy if he had to disclose his special problems to a future employer.  He was facing increasing difficulty in performing his work.  He went to see a solicitor who sent him to Dr White, another orthopaedist. 

Dr White reached the opinion that he was suffering a 10 per cent bodily disability and that there would be a long term inability to perform heavy physical labour.  This is the alleged material fact of a decisive character upon which the appellant relies.  It was variously expressed as a combination of the worsening of his condition and the fact that disability would have a significant impact on his capacity to work in the future.  It may also be paraphrased as knowledge that the condition might produce serious economic loss and therefore be a worthwhile basis for bringing a legal action.

The learned trial Judge, having stated the relevant circumstances, made the following observation.

“He had been at all times aware that he had a serious injury to his back which continued to give him ongoing symptoms, although he had at all times hoped that it would resolve.”

His Honour further stated:

“If the applicant knew or ought, upon making proper inquiries, to have known of facts which would have led a reasonable person to conclude that he had a worthwhile cause of action, it will not matter that he subsequently finds that the situation is somewhat worse than he thought”.

I do not understand any serious exception to be taken to those statements which, in my view, are perfectly correct.  However, exception is taken to part of a third statement made by His Honour.  Having referred to the operation in late 1996, His Honour continued:

“For almost a year, the applicant, though suffering continuing pain and discomfort in the back following the operation and notwithstanding Dr Shaw's advice to him that if, within three months, he had not been able to return to his normal tasks without difficulty, which is what I understand to be the effect of what Dr Shaw told him, he did not take any steps to consult a doctor or return to see Dr Shaw or otherwise establish what his position was both in a medical and in a legal sense.”

It seems that there is an ellipsis in that sentence, in that the consequence of not being able to return to work within three months should have been followed by the statement that he should then come back to the doctor.

Mr Baulch, Senior Counsel for the appellant, submitted that there was no evidence that the plaintiff was advised to seek further medical attention at the expiration of three months.  That is so, but it does not falsify His Honour's observation.  The appellant's own affidavit states that Dr Shaw suggested a three month rehabilitation period for return to full duties and that Dr Shaw advised the appellant to consult him again after three months if that was necessary.  This, as I interpret it, is certainly not an assurance that the appellant was not going to receive further trouble and its effect, as I see it, was to place an onus on the appellant to return if further occasion required it.

The issues in this case include whether a person had means of knowledge at a material time of the material fact of a decisive nature relating to his cause of action.  An appellant who challenges findings of the kind that were made in this case faces considerable difficulty, whether the findings happen to be against a potential plaintiff or a potential defendant.  It is a difficulty of which potential appellants should take note. In Pizer v. Ansett Australia Ltd, CA6807 of 1998, 29 September 1998, I adverted to a similar problem and noted that the Court's determination of the questions such as those raised here was not a discretionary matter.  However, the following observation was necessary in that case and I think in this:

“Such findings involve findings of fact and a determination whether those facts satisfy the requirements of the Statute.  It is worth mentioning, however, that such findings and determinations are made in an area where different minds might reasonably reach different conclusions.  In such a situation, the Appeal Court is not free to decide the question according to its own preference.  Unless the judgment reveals that the conclusion is affected by some error of law or fact or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference.”

The proper test on such an issue was stated in Pizer, again in my reasons, in the following way:

“If a reasonable [person], knowing what the plaintiff must have known, and having taken appropriate advice on those facts would have regarded them as showing that a right of action would have reasonable prospects of success resulting in an award of damages sufficient to justify the bringing of the action, and that [he] ought in his own interest to bring it, then the plaintiff fails to show 'that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant' prior to the necessary date.”

The principal components of this were abridged into a convenient short-hand test by Mr Justice Pincus in the same case in this way:

“The question was whether, prior to the relevant date, the facts within the knowledge or means of knowledge of the plaintiff were such that a reasonable person appropriately advised ought to have brought an action on those facts”.

Having stated what I regard to be the correct approach in this matter, I return to the judgment which is the subject of the appeal.  His Honour made the following statements:

“In my view, a person armed with the knowledge that he has a significant condition of his back which is causing ongoing pain and discomfort and restrictions in his capacities and likely to do so in the future would have taken some action in relation to them”.

In my view, that reference must be taken as a reference to the hypothetical reasonable person to whom the statute refers. 

His Honour also stated:

“It is not possible to reach a conclusion favourable to the applicant on the issue of whether there was a material fact of a decisive nature outside of his knowledge or his means of knowledge until after September 1997".

In my view, it is impossible to say that such findings were not reasonably open to His Honour.  I would add that this was not a minor or insignificant injury and neither was the surgery that resulted.  The symptoms were ongoing.  His Honour does not appear to have misapprehended the facts or the tests that the legislation requires.

I have sympathy with the appellant, who showed admirable courage, but consider that the hypothetical reasonable man in the position of the appellant would have been seriously concerned by such obvious problems and might properly be held to have been likely to take steps to protect himself.  It is also significant to note that the questionnaire which brought to mind the appellant's future vulnerability did not give him any additional information.  It was his own answers that made him think about it.  The relevant knowledge was always within his own keeping.

In my view, the appeal must be dismissed.

PINCUS JA:  I agree.  The case is one, as Mr Justice Thomas explains, in which success for the appellant depends on displacing a factual conclusion, a task the difficulty of which is mentioned by Mr Justice Thomas and has been dealt with, of course, in a series of decisions of the High Court.

Although the evidence did not support the view which His Honour took, beyond all possibility of rational argument to the contrary - and that is demonstrated by the fact that Mr Baulch was able to argue rationally to the contrary - it is my opinion that the view His Honour took was the better one; that is I favour, having reading the record, the conclusion which the learned primary Judge reached.  Even if that were not so, however, for the reasons Mr Justice Thomas explains, the difficulty of displacing a factual conclusion reached by a Judge who had the advantage of seeing and hearing the relevant witnesses is such that there would be no justification for our interfering with His Honour's conclusion.

I agree that the appeal must be dismissed.

JONES J:  For the reasons enunciated by Mr Justice Thomas, I agree also that the appeal should be dismissed.

PINCUS JA:  Yes, Mr Douglas?

MR DOUGLAS:  Could the respondent have an order for costs please, Your Honour?

PINCUS JA:  Yes, the appeal is dismissed with costs.

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