Wilder v Karratha College
[1999] WASCA 241
•10 NOVEMBER 1999
WILDER -v- KARRATHA COLLEGE [1999] WASCA 241
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 241 | |
| THE FULL COURT (WA) | 10/11/1999 | ||
| Case No: | CIV:1597/1999 | 2 JUNE 1999 | |
| Coram: | MALCOLM CJ IPP J STEYTLER J | 2/06/99 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | MICHAEL PETER WILDER KARRATHA COLLEGE |
Catchwords: | Limitation of actions Appeal against refusal of leave to commence proceedings out of time- Sole ground of appeal was that trial Judge erred in finding that the defendant was materially prejudiced Passage of time found to have denied the defendant the opportunity of examination by doctor of own choice at time closer to accident to determine whether condition was caused by accident or degenerative disease Leave refused |
Legislation: | Limitation of Actions Act 1935, s 47A |
Case References: | Akermanis v Melbourne & Metropolitan Tramway Board [1959] VR 114 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : WILDER -v- KARRATHA COLLEGE [1999] WASCA 241 CORAM : MALCOLM CJ
- IPP J
STEYTLER J
- Applicant (Plaintiff)
AND
KARRATHA COLLEGE
Respondent (Defendant)
Catchwords:
Limitation of actions - Appeal against refusal of leave to commence proceedings out of time- Sole ground of appeal was that trial Judge erred in finding that the defendant was materially prejudiced - Passage of time found to have denied the defendant the opportunity of examination by doctor of own choice at time closer to accident to determine whether condition was caused by accident or degenerative disease - Leave refused
Legislation:
Limitation of Actions Act 1935, s 47A
(Page 2)
Result:
Application dismissed
Representation:
Counsel:
Applicant (Plaintiff) : Mr D L Jones
Respondent (Defendant) : Mr B C Sierakowski
Solicitors:
Applicant (Plaintiff) : John Rando & Co
Respondent (Defendant) : Bowen Buchbinder Vilensky
Case(s) referred to in judgment(s):
Akermanis v Melbourne & Metropolitan Tramway Board [1959] VR 114
Case(s) also cited:
Nil
(Page 3)
1 MALCOLM CJ: The applicant, Mr Wilder, sought leave to appeal against the decision of his Honour Judge Blaxell in District Court chambers on 24 May 1999 to refuse an application under s 47A of the Limitations Act 1935 ("the Act") for leave to commence proceedings against the respondent out of time. At the conclusion of the argument on 2 June 1999, the Court was unanimously of the opinion that the application for leave should be dismissed and so ordered. The applicant was ordered to pay the respondent's costs of the application, to be taxed. It was then stated that the reasons for that decision would be published later. These are my reasons.
2 The alleged cause of action arose on 5 or 6 June 1993, when Mr Wilder fell some six metres during rigging lessons at Karratha College. Leave to commence proceedings was required because Mr Wilder failed to comply with s 47A of the Act. That was a failure (1) to give written notice to the defendant of the basis of the proposed action as soon as practicable after the cause of action accrued, and (2) to commence proceedings within 12 months of the accrual of the alleged cause of action.
3 By virtue of s 47A(3) of the Act, leave may be granted to commence an action beyond the 12 months, but within six years of the accrual of the cause of action, notwithstanding the mentioned failure, if the Court is satisfied of any of three grounds in subs (3)(b); namely, mistake; any other reasonable cause, or lack of material prejudice to the prospective defendant.
4 The learned Judge found that Mr Wilder had failed to commence an action prior to December 1994 because of medical advice that his injuries were not related to the accident. In December 1994 Mr Wilder was advised by Dr Cull that, in his opinion, Mr Wilder's condition was related to the accident. The delay until December 1994 could be explained on the basis of mistake, however, as his Honour found, the further delay from December 1994 was not explained, although from that date Mr Wilder was aware of Dr Cull's opinion.
5 Thus, the sole ground before the learned Judge was that under par (iii) of s 47A(3)(b); namely, that the defendant was not materially prejudiced by the delay. The application for leave to appeal was based solely on the contention that the learned Judge was in error in rejecting that ground.
6 The grounds of the proposed appeal were as follows:
(Page 4)
- "A. The learned Judge erred in fact and in law by misdirecting himself that the respondent (defendant) would be materially prejudiced because of the lack of opportunity to perform a medical examination as there were three competing causes for the appellant's (plaintiff's) symptoms when he:
(a) had no or not sufficient evidence before him from which he could draw that conclusion; and
(b) misdirected himself that in arriving at that conclusion that he could take judicial notice of the effects of cervical spine arthritis.
B. The learned Judge erred in law and in fact when he misdirected himself that the medical reports available to the respondent (defendant) were vague and imprecise in arriving at conclusions when there was no evidence before him from a doctor of the respondent's (defendant's) choice that a suitably qualified medical practitioner considered the reports vague and imprecise and would be materially prejudiced in providing a diagnosis from the medical information provided by the reports.
C. The learned Judge erred in fact and in law in misdirecting himself that the combined effect of the delay impacting upon the investigation of the accident and the delay in having the appellant (plaintiff) medically examined amounted to material prejudice."
7 The learned trial Judge found there was limited prejudice to the respondent in investigating the accident, on account of the passage of time since the accident and the disparate location of witnesses. But his Honour also found significant prejudice arose out of the lack of opportunity for the defendant to conduct its own medical examination of the applicant soon after the accident:
"… on the medical evidence before me today there are three competing causes for the plaintiff's symptoms: firstly, the pre-existing and fairly extensive degenerative changes; secondly, the fibromyalgia diagnosed by Dr Day, and thirdly, the accident.
…
(Page 5)
- The existing medical reports are fairly vague and imprecise in arriving at conclusions one way or another and the medical evidence indicates that the plaintiff's neurological symptoms and signs are not typical in respect of the pathology shown on the x-rays and scans. I think I can also take judicial notice of the fact that degenerative arthritis is a condition once present that continues to advance. Obviously the defendant will have difficulties in ascertaining as at today's date the extent to which any accident injuries caused or contributed to subsequent symptoms. This is so notwithstanding the existence of three sets of x-rays and Dr Day's findings on examination. It is apparent that the doctors who have investigated the plaintiff to date have difficulties in arriving at a diagnosis and obviously the defendant through practitioners of its choice will have even greater difficulty, given the further time that has elapsed."
8 His Honour concluded:
"The overall view I take in view of the combined circumstances of the delay impacting upon the investigation of the circumstances of the accident and the delay in having the plaintiff medically examined in circumstances where there are competing causes for his symptoms and a developing problem with arthritis, is I consider that these combined circumstances amount to material prejudice and that is my finding. Accordingly it follows that the plaintiff has not satisfied me that there are grounds for exercising my discretion under s 47A. Accordingly the application will be refused."
9 The onus is on the respondent to raise the issue of the prejudice it would suffer. Once the issue is raised, the onus is then on the applicant to negate the prejudice alleged: Akermanis v Melbourne & Metropolitan Tramway Board [1959] VR 114 at 117. The respondent says that its prejudice lies in not being able to have a doctor of its choice examine Mr Wilder soon after the accident, or at least soon after Dr Cull's opinion in December 1994, that Mr Wilder's condition was related to the falling accident. In the circumstances, Mr Wilder was required to demonstrate that the delay would make no difference to the inquiry by a medical practitioner by means of the availability of radiological, CT and MRI scans and so forth, which would show whether there was a pre-existing degenerative condition at the time of the accident, and/or to what extent that degenerative condition was responsible for Mr Wilder's condition. Counsel for Mr Wilder conceded that none of the doctors was asked
(Page 6)
- whether a medical practitioner examining the applicant now would be in a worse position to assess the relationship between Mr Wilder's condition and the accident. The question was not addressed in the applicant's materials.
10 This disadvantage to the respondent is made all the more prejudicial by the differences in opinion between the doctors regarding Mr Wilder's condition. For example, in September 1995 Dr Day and Mr Thomas found no evidence of residual injury from the accident. They found that the applicant had suffered tissue damage from which he had recovered. There was also evidence of pre-existing arthritis. Later MRI scans showed accelerated degenerative change at the C4-5 disc level after the 1993 fall.
11 The differing opinions of the doctors were said by the applicant to benefit the respondent. It was also said that the availability of radiological findings and x-rays was sufficient to overcome the lack of an examination on behalf of the respondent closer to the time of the accrual of the cause of action. However, the respondent had lost the opportunity of MRI scans after the event. These are better at detecting degenerative diseases than other procedures.
12 The onus was on Mr Wilder to show that, even if the respondent had had the opportunity in June 1993, or in December 1994, to conduct a MRI scan, or other medical examinations, it would not have more clearly shown whether there was a pre-existing degenerative change before the accident, or shown more clearly what the relationship was between Mr Wilder's condition and the accident and/or his degenerative condition. Counsel for Mr Wilder accepted that the onus was on Mr Wilder to show that an earlier opportunity to examine Mr Wilder at a time closer to the accident would not have made any difference, so that there would be no material prejudice. Mr Wilder was not in a position to show that a doctor of the respondent's choosing would not have had difficulty. In other words, Mr Wilder was not in a position to discharge the onus which rested on him. In my opinion, that conclusion alone is sufficient reason to refuse leave to appeal.
13 Mr Wilder was seen by Dr David Cull, a neurosurgeon, and had an MRI scan done on 25 January 1995, following which he was reviewed on 26 January 1995. There was a large posterior bony ridge mid-line and left of mid-line at the C4-5 disc level which impacts on the ventral rootlet of the left C5 root in the lateral recess. There were similar, but less marked, changes at C5-6 level. Schmorl's nodes were noted in the lower cervical
(Page 7)
- spine and thought to be unrelated to recent trauma. Dr Cull reviewed Mr Wilder after the MRI scan. Dr Cull's comments and opinion in his report dated 17 June 1996 were as follows:
"He was reviewed after his MRI scan. I felt that his neck and arm symptoms were probably the result of the MRI changes at C4-5.
He was told to avoid traction, manipulation and hyperextension exercises and activities.
He told me he was returning to work in Western Australia, his employers having given him a lighter job than before. I understood that he would not be required to undertake heavy lifting or work with his head extended or in any other awkward position, either frequently or for a prolonged period.
OPINION
This man has evidence of fairly extensive degenerative changes at C4-5 and lesser changes at C5-6. He also has pain in his thoracic spine but no evidence of any pre-existing degenerate state or acute disc or bony injury occurring as a resultof the fall.
I think it likely that he will find it difficult to work in a situation requiring that he work with his arms above his head for prolonged periods, undertake frequent bending, heavy lifting orwork in a bent over position. He should also avoid working with his neck extended as this appears to produce symptoms of vertebro basilar insufficiency.
I believe the MRI changes were present at the time of the accident. However, they may well have been exacerbated by the fall.
I am unable to say whether he would have deve1oped these symptoms in the absence of the fall or at what point the effects of the fall no longer apply and the effects of the pre-existing degeneration are responsible for his present disability.
I do not believe it is possible to differentiate in this type of situation.
(Page 8)
- I do note that the fall was fairly severe and he reports he fell over 20'."
14 This report was based on observation of Mr Wilder more than 18 months after the accident. The report acknowledges the difficulties regarding the issues of causation.
15 The report dated 19 November 1996 was obtained from Mr Peter Woodland, an orthopaedic surgeon who saw Mr Wilder on 19 November 1996, who concluded the question whether the fall was the cause of the degenerative changes seen in his cervical spine or seen on the x-rays and the MRI scan. Mr Woodland reviewed the x-rays of 9 June 1993, 14 September 1994 and 24 June 1996 which progressed from a slight narrowing at C4-C5 level in 1993, to more obvious degenerative change in 1994 and "definite acceleration with quite significant disc space narrowing at the C4-C5 level" in 1996 and to a lesser extent at the C5-C6 level. Mr Woodland concluded:
"In my view there is certainly evidence of accelerated degenerative change at the C4/5 disc level subsequent to the 1993 injury and I do strongly suspect that his symptoms relate in some way to the pathology seen on the x-rays and scans. Nonetheless he does not have typical neurological symptoms or signs and therefore I would not advise any surgical treatment … "
16 In my opinion, the critical question in relation to this application was whether, if now examined by a medical practitioner of the respondent's choice, that practitioner would be in a more or less favourable position or in the same position as the medical practitioner when he previously examined Mr Wilder to determine the extent to which his current condition was caused by the accident. This is a significant matter in a case in which there is an issue whether the degenerative changes pre-dated the accident or were caused by or exacerbated by it. It is highlighted by the fact that in September 1994 Dr Day and Mr Thomas were unable to identify any residual injury as a result of the accident.
17 In my opinion, Mr Wilder failed to discharge the onus which rested on him to show that the respondent had not been prejudiced.
18 It was contended on behalf of Mr Wilder that, although the respondent was informed of the accident by a notice dated 9 December 1994, it did not take any steps to have Mr Wilder examined by a medical practitioner of its own choice. This was followed up by a letter to the
(Page 9)
- respondent from Mr Wilder's solicitor dated 14 March 1995. As to this, there was evidence on behalf of the respondent from Mr Haase which was discussed by the learned Judge as follows:
"Certainly Mr Haase on his affidavit did make a preliminary investigation and ascertained there was no record of the alleged accident. He also responded promptly to the solicitor's letter of 22 March 1995 and provided information that was then requested. Mr Haase did not initiate any further investigation and he does not give any explanation for that in his affidavit. However, I do note from the terms of the solicitor's letter dated 22 March 1995 that it was stated that a statement of claim would be served in the near future.
In those circumstances I can infer that Mr Haase did not act unreasonably in deferring any further investigation until the receipt of that statement of claim, especially given that he had no record of the accident at that time."
20 In the end, this was a case in which the failure of Mr Wilder to proceed after December 1994 meant that the respondent had no opportunity to have him medically examined by a medical practitioner or practitioner of its own choice, including the opportunity for a further MRI scan to assess whether and to what extent the fall complained of by Mr Wilder exacerbated the pre-existing degenerative conditions. Mr Wilder failed to demonstrate that, at the time his application was made, a medical practitioner conducting an examination would be in as good a position to make an account as any of the medical practitioners consulted by Mr Wilder who had previously reported on his condition.
21 IPP J: I have read the reasons to be published by his Honour the Chief Justice. I am in agreement with those reasons and have nothing further to add.
22 STEYTLER J: I have had the advantage of reading the reasons for decision proposed to be published by the Chief Justice. It was for similar reasons that I arrived at the decision to which his Honour referred. I have nothing to add.
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