Collins v All Metal Magic Pty Ltd and Anor [2016] QDC 48

DISTRICT COURT OF QUEENSLAND CITATION: Collins v All Metal Magic Pty Ltd and Anor [2016] QDC 48 PARTIES: ROCHELLE LEANNE COLLINS (applicant) v ALL MENTAL MAGIC PTY LTD (first respondent) and WORKCOVER QUEENSLAND (second respondent) FILE NO/S: 682/16 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 10 March 2016 DELIVERED AT: Brisbane HEARING DATE: 2 March 2016 JUDGE: Farr SC DCJ ORDER: Application Dismissed CATCHWORDS: LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – where the applicant wishes to claim for damages against the respondents – where the limitation period for the claim has expired – whether time should be extended. EMPLOYMENT LAW – injury of employee – claim for damage – pre-litigation procedure – applicant seeking leave despite statutory non-compliance. Limitation of Actions Act 1974 (Qld), s 30, s 31 Workers Compensation and Rehabilitation Act 2003 (Qld), s 298 Barnes v Smith & Ors [2011] QSC 259 Dent v Lang’s Building Supplies Pty Ltd [2015[ QSC 368 Greenhalgh v Bacas Training & Ors [2007] QCA 327 Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325 NF v State of Queensland [2005] QCA 110 -- 1 of 11 -- 2 Pizer v Ansett Australia Limited [1998] QCA 298 Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 COUNSEL: R W Morgan for the applicant S P Gray for the respondents SOLICITORS: Shine Lawyers for the applicant BT Lawyers for the respondents [1] The applicant seeks the following orders: 1. The applicant be granted leave pursuant to s 298(1) of the Workers Compensation and Rehabilitation Act 2003 (‘WCRA’) to bring a proceeding despite non-compliance with the requirements of s 275 of the WCRA; 2. Pursuant to s 31 of the Limitations of Actions Act 1974 (‘LAA’), an order that the period of limitation for the applicants claim for damages for personal injuries be extended so that it expires at 11 March 2016; 3. Costs; 4. Such further or other order is this Honourable Court may deem appropriate. [2] The application is opposed by the respondents. Legislation [3] Sections 298 and 299 of the WCRA state: 298 Court to have given leave despite noncompliance (1) Subject to section 296, the claimant may start the proceeding if the court, on application by the claimant, gives leave to bring the proceeding despite noncompliance with the requirements of section 275. (2) The order giving leave to bring the proceeding may be made on conditions the court considers necessary or appropriate to minimise prejudice to the insurer from the claimant's failure to comply with the requirements of section 275. 299 Other provision for urgent proceedings Part 2, division 3 provides for the urgent starting of proceedings by persons mentioned in section 237(1), and for the staying of those proceedings. [4] The LAA provides relevantly as follows: 30 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— -- 2 of 11 -- 3 (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. 31 Ordinary actions (1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person. (2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court— (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a -- 3 of 11 -- 4 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. (3) This section applies to an action whether or not the period of limitation for the action has expired— (a) before the commencement of this Act; or (b) before an application is made under this section in respect of the right of action. Chronology of Events [5] According to the applicant’s affidavit and her claim, the relevant chronology appears to be: (a) the applicant first experienced stiffness in both wrists and fingers for a few months in about 2004; (b) she did not lodge a Workcover claim because the stiffness resolved after a few months; (c) she commenced employment with the first respondent in approximately June 2010; (d) she says that she suffered wrist symptoms which she believes are due to the system of work involving powder coating, believing the weight of the spray gun and hose and the repetitive nature of the work caused injury to her wrists; (e) she performed that work until the end of 2011, at which time she was transferred to work as a bookkeeper in the business, having made her employer aware that her hand and wrist were sore; (f) despite the change in her duties, the applicant continued to work on the floor from 7:00am to 9:30am preforming whatever duties were required, which included ongoing work performing powder coating and using the spray gun; (g) she continued those duties until August 2014 at which time she took over the role of storeperson, which was a manual handling job; (h) the applicant attended a General Practitioner, Dr Jocelyn Gaw, on 12 June 2013 after she suffered chest pains at work: (i) the applicant recalls advising Dr Gaw that she thought she was suffering a heart attack and Dr Gaw asked her if she was suffering from tingling in her fingers; (ii) the applicant responded that she had been suffering from tingling in her fingers for some time, on and off; (iii) the applicant claims that Dr Gaw did not advise her of a diagnosis of carpal tunnel syndrome and she did not undergo any tests by a specialist or receive any referral to a specialist for diagnosis, and she was not told that she ought to stop doing powder coating work; -- 4 of 11 -- 5 (i) the applicant states that from late 2010 she experienced a gradual increase in symptoms, with the tingling in her fingers becoming more frequent, together with an increased feeling of heaviness in her hands. She felt that her hands were also starting to ache generally depending on what she did during the day; (j) the applicant was not provided with any manual handling training throughout the course of her employment and did not make complaints of injury at the time because she thought that the tasks were essential parts of her job, but nevertheless did report pain to co-workers; (k) she remained in the storeperson position until 14 April 2015 when she underwent surgery to both wrists, which was paid for by Workcover; (l) on 2 March 2015 the applicant was performing duties which required repetitive screwing motion and she used both hands alternatively as they were both sore; (m) the applicant said by the end of that day the pain was unbearable and, for the first time, she was suffering constant numbness in the fingers of both hands which she could not shake off; (n) that same day, she attended upon her General Practitioner, Doctor Perera; (o) the applicant further attended upon Dr Perera on 9 March 2015 and 13 March 2015 and says that he advised her that he suspected she was suffering from carpal tunnel syndrome and referred her for nerve conduction studies with Dr Corvett; (p) subsequent nerve conduction studies confirmed the diagnosis of moderately severe bilateral carpal tunnel syndrome; (q) carpel tunnel release surgery was performed on both wrists on 14 April 2015; (r) the applicant had noticed an increase in her symptoms when she commenced in the storeperson role in August 2014 and by the time she attended Dr Perera in March 2015 the pain had reached a point where it was constant. She said that by then she was suffering from constant numbness in the fingers of both hands; (s) the applicant says that prior to then, she had believed she was suffering from muscular strain in her wrists due to overwork, but was not aware that she had a significant condition and that she was only formally diagnosed as suffering from carpel tunnel syndrome once she received the results of the nerve conduction studies. It was only then that she was informed for the first time that she required surgery; (t) the applicant alleges that she has suffered complications post-surgery due to a nerve in each hand being lacerated during surgery. The nerve in each hand has since been the subject of further surgical intervention and suturing; (u) the applicant continues to experience extremely sensitive patches in the palms of both hands and has an ‘altered sensation’ in the thumb of the left hand. She also continues to suffer extreme sensitivity in the scar area of the right hand and wrist and of the left wrist and these areas ache after work each day;1 (v) the applicant expressed the belief that she has suffered bilateral carpel tunnel syndrome as a result of the system of work; 1 Affidavit of Rochelle Leanne Collins filed 26/02/16. -- 5 of 11 -- 6 (w) the applicant first experienced pain in the wrists in approximately late 2010 and that pain became worse over time until April 2015 when it reached the stage where she was unable to work; Application of the law [6] In Dent v Lang’s Building Supplies Pty Ltd,2 Burns J wrote: “[40] By s 31(2)(a) of the Act, the discretion to extend the limitation period is enlivened if two requirements are met. First, that a material fact of a decisive character relating to the right of action of the applicant was not within the means of knowledge of the applicant until a date after the commencement of the year last proceeding the expiration of the period of limitation for the action. Secondly, that there is evidence to establish a right of action. If those requirements are satisfied then the court has a discretion to extend the limitation period for 12 months from the time when the material fact was within the applicant’s means of knowledge. Usually, the discretion will then be exercised in favour of an extension unless there is relevant prejudice. … [42] As Thomas J held in Dick v University of Queensland, the correct approach to deciding an application such as this is to first enquire whether the facts of which the applicant was unaware were material facts. If they were, the next step is to ascertain whether they were of a decisive character. If so, it must be ascertained whether those facts were within the means of knowledge of the applicant before the specified date.” (footnotes removed) Right of action [7] Rather unusually, I will commence with an assessment of the issue regarding the existence of a right of action. [8] The applicant’s claim is that her personal injury is said to have arisen from duties that she was required to undertake over a period of time during the course of her employment with the first respondent. [9] The only evidence that suggests that a cause or link exists between her employment duties and her injuries is her own opinion. Relevantly, this is not a matter where an injury can be linked to a particular event due to the immediate onset of pain or symptoms. In circumstances such as those which exist here, an opinion from a suitably qualified medical practitioner would be necessary. [10] As McMeekin J said in Barnes v Smith & Ors,3 at paragraphs [43]-[46]: “[43] More troubling is that the applicant has not advanced any evidence that the repetitive movement of a 20-24 kilograms/kg weight in the manner that she adopted on the day in question involved forces that were liable to injure the spine of a person of normal fortitude. It is not to the point that in numerous cases over the years plaintiffs have succeeded to awards of damages where the weights involved have been no greater – each case is required to be proved on its own set of facts. 2 [2015] QSC 368. 3 [2011] QSC 259. -- 6 of 11 -- 7 [44] The respondent has put in evidence a document entitled “Manual Handling Management – Injury Prevention” which is said to be an information paper which provides “minimum guidelines on manual handling within the workplace to ensure your safety”. This was the document that the respondent provided to the applicant as part of her induction. It speaks of risk identification including asking “Do I have to twist?” and “Do I do a lot of repetitive actions…?” It points out that the risk of injury increases with frequency of activity and the force required to handle a load. [45] That is the full extent of the evidence touching on the issue. The generalisation set out in the first respondent’s document do not advance matters very far. Presumably evidence can be obtained that would support those generalisations. But the crucial issue is: did the work complained of expose the plaintiff to an unnecessary risk of injury that could have been avoided? Does a plaintiff succeed in a case against the employer by proving that they have been required to lift and move weights from the floor to a height of 55cm/centimetres and then place those weights behind them when the weights in question were between 20-24 kilograms/kg, combined with the knowledge that is set out in the employer’s document? I do not think so. [46] I appreciate that the test here is undemanding and that the standards imposed on an employer at common law to prevent or minimise risk of injury are high. Despite that I am not satisfied that the applicant has established that she has an action on the right of action.” [11] His Honour’s comments are apposite to this matter. There is no admissible evidence before this Court establishing, or even suggesting, a cause or link between the applicant’s injury and the work performed in the course of her employment. The only evidence which touches upon this issue comes from the applicant herself where she states: “I suffered wrist symptoms which I believe are due to the system of work and in particular the 80 percent of my work which involved powder coating. I believe the weight of the spray gun and hose and the repetitive nature of the work injured my wrists.” [12] … “Work cover paid for this surgery” … “I believe that as a result of the system of work I have suffered bilateral carpal tunnel syndrome.” … “I first experienced pain in the wrist in approximately late 2010. The pain become worse overtime and in April in 2015 it reached the stage where I was unable to work.”4 [13] Similarly there is no evidence that the nature of the work performed could cause an injury of this nature. Again, that is a matter that would require expert opinion. In the absence of such expert evidence, the applicant has failed to establish an action on the right of action and for this reason alone the application must fail. 4 Affidavit of Rochelle Leanne Collins filed 26/02/16 at paragraphs 5,9,11 and 12. -- 7 of 11 -- 8 [14] Despite that conclusion, I will nevertheless examine the other arguments that have been presented to the Court. Material Fact [15] In her ‘Notice of Claim for Damages’ the applicant has asserted that the material fact upon which she intends to rely is “…early March 2015 when the worker developed the sensation of pins, needles and numbness in her fingers and the level of pain significantly increased”.5 That factual assertion was repeated in correspondence by the applicant’s solicitors to the respondent’s solicitors on 13 November 2015 and 11 January 2016.6 [16] In submissions before this Court, the applicant now suggests that the ‘material fact’ can be constituted by anyone or more of the following: (i) attending on Dr Perera, General Practitioner on 2 and 9 March 2015 with significant symptoms; (ii) referral on 2 March 2015 for nerve conduction studies by Dr John Corvett, Neurologist, who on 11 March 2015 gave the first specialist diagnosis of bilateral carpal tunnel syndrome; (iii) referral by Dr Perera, General Practitioner to Dr Kalamaras who performed carpal tunnel relief surgery on 14 April 2015; (iv) complications following surgery due to nerve laceration in both hands;7 (v) lack of success from surgery;8 (vi) different symptoms post-surgery – sensitive patches in the palms of both hands and an altered sensation in the thumb of the left hand, sensitivity in the scar areas of the right hand and wrist and left wrist; (vii) now only able to work on light duties, since returning to work in September 2015. [17] There can be no doubt that all of the facts listed above are material to the potential issues in this matter. A “material fact relating to a right of action” is defined in s 30(1)(a)(iv) of the LAA to include “the nature and extent of the personal injury”. [18] The real issue would appear to be whether the material fact or facts were of a decisive character. In that regard, in my opinion the material fact in question would be constituted by the significant increase in pain and the sensation of pins, needles and numbness in the applicant’s fingers and the subsequent diagnosis of moderately severe bilateral carpal tunnel syndrome on 11 March 2015. The other matters all flow from those two events. Decisive character [19] The respondents submit that the material fact was not of a decisive character for three reasons: 1. the applicant had suffered pain and discomfort in her wrist and hands for years prior to 11 March 2015 and had believed it to be the result of her employment duties; 5 Annexure PG-1 to affidavit of Phillip Martin Griffin filed 26/02/16. 6 Annexures PG-5, PG-7 and PG-11 to affidavit of Phillip Martin Griffin filed 26/02/16. 7 Affidavit of Rochelle Leanne Collins filed 26/02/16 at paragraphs 27 and 28. 8 Affidavit of Rochelle Leanne Collins filed 26/02/16 at paragraph 32. -- 8 of 11 -- 9 2. the applicant had told her General Practitioner, Dr Gaw, on 12 June 2013 that she had been suffering from tingling in her fingers for some time, “on and off”;9and 3. Doctor Gaw had diagnosed carpal tunnel syndrome in the applicant’s left hand at that time.10 [20] In relation to point three above, the applicant has attested that she told Dr Gaw that she had been suffering intermittent tingling in her fingers, when she was having a medical consultation for a possible heart attack. She has also said that Dr Gaw did not advise her of any possible diagnosis of carpal tunnel syndrome. Dr Gaw’s notes do not clarify the situation and accordingly, I accept the accuracy of the applicant’s evidence on that point, particularly noting that she was not required for cross- examination by the respondents. [21] Nevertheless, I am of the view that points one and two above are directly relevant to the issue of decisiveness. [22] In Moriarty v Sunbeam Corporation Limited,11 Macrossan J said: “In cases like the present, an applicant for extension discharges his onus not simply by showing that he had learnt some new fact which bares upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s 30(b) comes down to….” [23] In Pizer v Ansett Australia Limited,12 Thomas J observed that when the material facts concern the nature and extent of personal injury, questions of degree are necessarily involved. [24] In Wood v Glaxo Australia Pty Ltd,13 Macrossan CJ said: “A body of evidence which a plaintiff collects, or…his assemblage of ‘material facts’, will only constitute a ‘decisive’ collection when an appropriately advised reasonable man in his position is possessed or would, if he had enquired in appropriate fashion, be possessed of what he would regard as reasonable and worthwhile litigation prospects.” [25] In Greenhalgh v Bacas Training & Ors,14 Keane JA (as his Honour then was) held that whether an action for damages is worthwhile, is an assessment which must be made having regard to the expense and risks of litigation. [26] The respondent has submitted that the applicant has always held the belief that she had a work related injury and that there is no difference between her believing that 9 Affidavit of Rochelle Leanne Collins filed 26/02/16 at paragraphs 16-18. 10 Annexure PG-26 to affidavit of Phillip Martin Griffin filed 26/02/16. 11 [1988] 2 Qd R 325, 333. 12 [1998] QCA 298, [20]. 13 [1994] 2 Qd R 431, 437. 14 [2007] QCA 327, [22]. -- 9 of 11 -- 10 she had muscular strain due to overwork and being told that she has carpal tunnel syndrome. [27] I disagree. Prior to seeking medical attention in March 2015, the applicant did not know, or have reason to suspect, that she had a serious condition. Although she had experienced a gradual increase in symptoms being tingling sensations, heaviness and aches from approximately mid 201315 it was not until August 2014 that she started to experience constant numbness in the fingers of both hands.16 Up until 2 March 2015 the applicant had been able to continue to work. She therefore did not know that she would require surgery or that her future working capacity could be significantly affected. In my view, receipt of the diagnosis of moderately severe bilateral carpal tunnel syndrome in the context of the circumstances that existed when such information was provided to her, was a material fact of a decisive character. Means of knowledge [28] In Pizer v Ansett Australia Limited, Thomas JA said:17 “If a reasonable woman 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 she ought, in her interest to bring it, then the plaintiff fails to show ‘that a material fact of a decisive nature relating to the right of action was not within the means of knowledge of the applicant’, prior to the necessary date.” [29] In NF v State of Queensland,18 Keane JA, with whom the other members of the Court agreed, said: “[29] It is to be emphasised that s 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 s 30(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. This view is supported by the text of s 30(1)(c)(ii) which is, as I have said, in marked contrast to s 30(1)(b). … [31] Section 30(1)(c) is not concerned with what might be expected of a reasonable person; it is concerned with what might reasonably be expected of the applicant in the particular case.” 15 Affidavit of Rochelle Lee Collins filed 26/02/16 at paragraph 19. 16 Affidavit of Rochelle Lee Collins filed 26/02/16 at paragraph 29. 17 [1998] QCA 299, [16]. 18 [2005] QCA 110, [29] and [31]. -- 10 of 11 -- 11 [30] The applicant has submitted that her symptoms were not so significant as to warrant her consulting her general practitioner about them prior to early March 2015, and therefore, she has not failed to take all reasonable steps. [31] However, on the applicant’s own case, she knew well before March 2015 that she was affected by physical complaints which she believed were caused by her work duties. She had to alter her duties to accommodate her complaints. [32] It is significant that when the applicant attended upon Dr Perera in March 2015 she expressed a view to him that her symptoms were related to her employment. She had been suffering those symptoms for a substantial period of time at that stage. [33] As was similarly observed by Burns J in Dent v Langs Building Supplies Pty Ltd,19 had the applicant attended upon her usual general practitioner prior to March 2015 with the history of her wrist symptoms, undoubtedly a specialist medical assessment of her injuries would have followed and she no doubt would have been given advice about the need for surgery. [34] In my opinion the applicant has given no good explanation as to why she failed to take appropriate steps to ascertain the true cause of her symptoms prior to March 2015. On her own account, the severity of the symptoms would and should have caused a reasonable person to embark on such an enquiry at some earlier point in time. In my opinion, failure to do so, given the circumstances, constitutes a failure on the part of the applicant to take all reasonable steps. [35] Accordingly, the material fact was within the applicant’s means of knowledge prior to March 2015. Prejudice [36] The respondents do not rely on prejudice as a basis for opposing the application.20 Conclusion [37] For these reasons the application is dismissed. [38] I shall hear the parties as to costs. 19 [2015] QSC 368. 20 Outline of Submissions of respondent filed 02/03/16. -- 11 of 11 --