Arnott v Qantas Airways Ltd [2014] QDC 254

1 [2014] QDC 254 DISTRICT COURT OF QUEENSLAND CIVIL JURISDICTION JUDGE HARRISON No 136 of 2014 NEAL ANDREW ARNOTT Applicant and QANTAS AIRWAYS LIMITED Respondent CAIRNS 2.13 PM, THURSDAY, 30 OCTOBER 2014 JUDGMENT -- 1 of 9 -- __________________________________________________________________________________ 2 JUDGMENT HIS HONOUR: This is an application for extension of time in which to institute proceedings for damages for personal injuries pursuant to section 31 of the Limitation of Actions Act 1974 (the LAA). The plaintiff sustained injuries to his left shoulder in an incident on the 17th of August 2005 (the first incident) and injuries to his right shoulder in an incident on the 8th of September 2010 (the second incident). 5 The application was heard before me on the 20th of October 2014. The period of limitation in respect of the first incident expired on the 17th of August 2005 and the period of limitation in respect of the second incident expired on the 18th of September 2013. At all relevant times, the applicant worked for the respondent at the Cairns Airport as a baggage handler. He is still employed in that position. He is 10 now 51 years of age and was born on the 27th of March 1963. The respondent is a self-insurer for the purposes of the WorkCover scheme set up under the relevant WorkCover legislation. The First Incident 15 On the 17th of August 2005, the applicant injured his left shoulder when he was pulling a large suitcase across a belt described as an interline belt. The belt had a strap around it which was held in place by a buckle. As he pulled the suitcase and dragged it towards himself, the buckle got caught in the protective edging of the belt. 20 This caused a jarring effect on his left shoulder and he experienced pain. He made a successful statutory claim. He was off work until the 22nd of August 2005 when he returned on restricted duties. He returned to normal duties on the 29th of August 2005. 25 The Second Incident On this occasion, the applicant was loading freight onto an aircraft. A fellow employee placed items onto a conveyer belt and they moved up that conveyer belt into the aircraft. The applicant was positioned in the leading forward locker of the 30 aircraft and was required to reach over and grab the freight items as they came up the conveyer belt and then to place them in the cargo hold of the aircraft. He noticed a mail bag which was approximately 30 centimetres long and 20 to 30 centimetres wide come up the conveyer belt. He expected this to be a relatively light and he reached across with his right hand to lift it. It was, however, heavy. He estimates 35 that the weight was somewhere between 20 to 24 kilograms. He immediately experienced sharp pain in his right shoulder. He subsequently lodged a successful statutory claim in respect of the injury to his right shoulder and he was eventually referred to an orthopaedic surgeon who carried 40 out arthroscopic subacromial decompression with rotator cuff repair on the 4th of October 2010. He then underwent a lengthy period of rehabilitation and resumed full duties on the 2nd of March 2011. He was compensated by the respondent for the loss of wages throughout that period and the respondent also met the relevant medical expenses. 45 What the Applicant Must Show to Succeed on These Applications -- 2 of 9 -- 3 JUDGMENT In order to succeed, the applicant must show that a material fact of a decisive character relating to his right of action was not within his means of knowledge until after the 17th of August 2007 in respect of the injury sustained in the first incident and after the 8th of September 2012 in respect of the injury sustained in the second incident. See section 31(2)(a) of the LAA. He must also show in each case that 5 there is evidence to establish his right of action apart from a defence founded on the expiration of the period of limitations, ie, in each case, a prima facie case. See section 32(2)(b) of the LAA. The onus is on him to establish these matters and the discretion in each case would be exercised in his favour if he established those matters, unless there was any relevant prejudice to the respondent. 10 The Basis of the Application The applicant first consulted his solicitors on or about 21 November 2013. This related to a possible appeal against the respondent in its capacity as self-insurer in 15 relation to a decision not to reopen an earlier statutory claim. He had experienced some neck pain in September 2011, which led to his undergoing a CT guided nerve root injection in November 2011. He further injured his left shoulder on the 21st of July 2013 in an incident when he was about to unload baggage from an aircraft. He lodged the statutory claim in relation to the neck and left shoulder as a result of that 20 incident, and the respondent accepted that claim with respect to a “cervical strain with radiculopathy in the left arm, possible cubital tunnel syndrome/epicondyle.” He returned to work after that claim and after he had undergone physiotherapy treatment to his neck and left shoulder, and he then experienced what he described as 25 a flare up. He applied to reopen the statutory claim and the respondent as self- insuror refused that application and that led to his initial contact with his solicitors. It seems that the solicitors obtained all of his relevant records, which included the documentation relating to the statutory claims for the first and second incidents. 30 He was then referred to an orthopaedic surgeon, Dr Mark Shaw, who has produced a report dated the 23rd of July 2014, which is exhibited to an affidavit of Rachel Jane McMahon filed on the 13th of August 2014. Dr Shaw noted that he sustained “mild subacromial/subdeltoid bursitis with bursal impingement in the left shoulder” in the first incident. He noted that there was treatment with anti-inflammatories and 35 physiotherapy and that the applicant could recall several days off work before returning to pre-injury duties and noted that he had experienced shoulder discomfort requiring intermittent anti-inflammatories after that. In respect of the second incident, he noted that an ultrasound obtained on the 8th of 40 September 2010 reported: Full thickness incomplete tears of anterior supraspinatus tendon and the subscapularis tendon. Margins of the tears are fully defined and may be a reflection of recent trauma. 45 -- 3 of 9 -- 4 JUDGMENT He also noted that an X-ray report of the right shoulder performed on the 8th of September 2010 reported: Changes of the distal clavicle consistent with past trauma. United body fragment noted on the upper and distal aspect of the distal clavicle. No 5 abnormality of the glenohumeral joint. No subacromial calcification. Dr Shaw noted the history of the earlier operation and noted that he was off work for about three months before resuming on light duties for about three months and then resuming his normal duties as a baggage handler. Dr Shaw also noted the attendance 10 in respect of the CT guided nerve root injection in the area around C7 in the neck in October 2011 and noted that he was off work for some time. He also noted that the applicant aggravated neck pain and left arm radiculopathy in another incident on the 21st of July 2013. He noted that at the time of consultation, the applicant experienced bilateral shoulder pain as well as neck pain. The applicant told him that the right 15 shoulder was intermittently sore and that it ached at the end of a heavy working day and it could be very sore when lifting very heavy bags from chest height. He complained that the left shoulder discomfort was ongoing but only present with repetitive overhead activity. 20 Dr Shaw diagnosed him as having suffered a left shoulder rotator cuff injury with subacromial bursitis in the first incident and right shoulder supraspinatus tendon tear and SLAP tear in respect of the second incident as well as an aggravation of pre- existing cervical spondylosis and radiculopathy in the incident on 27 July 2013. He noted that it was likely that there would be ongoing discomfort in both shoulders as a 25 consequence of the injuries. He went on to assess the left shoulder as providing a two to three per cent upper extremity impairment, which equated to about two per cent whole of person. He assessed the injury to the right shoulder at seven per cent of upper extremity function, which equated to about four per cent whole of person, but he also allowed an additional two per cent for the post-surgical scarring. In 30 paragraph 7 on page 9 on his report, he said: Mr Arnott has returned to duties as a baggage handler. He experiences bilateral shoulder pain with heavy activities. The right shoulder will often ache at the end of a heavy day. 35 Mr Arnott is at risk of further shoulder injury, particularly on the right, as a consequence of the shoulder injury. He will need to minimise lifting at and above shoulder height. The left shoulder discomfort relates to the injury on 17 August 2005. The major limitation is due to ongoing right shoulder symptoms 40 sustained in the injury on 8 September 2010. In paragraph 10 on page 10 of his report, he said: The conditions will not degenerate with the passage of time. Mr Arnott is 45 predisposed to further shoulder injury as a consequence of the shoulder conditions. -- 4 of 9 -- 5 JUDGMENT Material Facts Relied Upon Essentially, the applicant relies upon the above quoted passages plus the assessments of Dr Shaw already summarised. It is argued that they come within section 30(1)(a)(iv) of the LAA because they go to the nature and extent of the personal 5 injury caused in each of the two incidents. Prima Facie Case In this matter, a prima facie case was conceded in relation to each of the two 10 incidents and it was not necessary for me to consider that any further. That concession only went so far as for the purposes of section 31(2)(b) of the LAA. Decisive Character 15 Section 30(1)(b) of the LAA provides: 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 20 (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 25 (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. 30 Section 30(2) of the LAA provides that for the purposes of section 30: 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. 35 It is well accepted that before a newly learned fact has the necessary qualities of decisiveness, an applicant must show that without the newly learnt fact or facts he would not, even without the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interest 40 pursue it. See Moriarty v Sunbeam Corporation Ltd [1998] 2 Qd R 325 at 333. It is also worthwhile, having regard to the observations of Connelly J in Sugden v Crawford [1989] 1 Qd R 683 at 685 when he said: Implicit in the legislation is a negative proposition that time will not be 45 extended where the requirements of section 30(b) are satisfied. Where the emergence of a newly discovered fact or facts, that is to say, where it is -- 5 of 9 -- 6 JUDGMENT apparent without those facts that a reasonable man appropriately advised would have bought the action on the facts already in his possession, and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level without which the newly discovered facts would be sufficient to justify the bringing of an action. 5 Here, it could not be said that he had any action worthwhile proceeding with in respect of the first incident. He was off work very briefly, and all expenses were met by the self-insurer. His claim would have been limited to a modest one for general damages, and that that would have more been offset by the costs involved in making 10 a claim and taking that claim to the conference stage. Costs are not automatically recoverable under the scheme that operates. In relation to the second incident, he was off work much longer and underwent an operation, but all of his wages and expenses were met by the self-insurer. His claim there may have been limited to one for general damages and a relatively modest component for future economic loss on 15 a global basis. Again, it would have been expensive to institute a claim and to take that claim to the conference stage. Assuming that the material facts relied upon were not within his means of knowledge at the relevant times, he must show that with the newly discovered facts, he had 20 prospects of success on an action such as to justify bringing an action. Dr Shaw has said that he is predisposed to further shoulder injury as a consequence of both shoulder conditions. And has also gone further and said that he will need to minimise lifting at/or above shoulder height. He has also provided the assessments that I have referred to. I note that the applicant is now 51 years of age and in normal 25 circumstances would have about 15 years left in the workforce. By way of illustration, $1000 net per week for the next 15 years on five per cent tables represents $550,000. If his career is shortened by further injury, or if his career is shortened by the limitations placed upon him with the restrictions he was advised about by Dr Shaw, then there would be a substantial allowance for future economic 30 loss. A substantial global component would need to be allowed. Even the Court assessed the risk at say, 20 per cent in a case such as this, there would be a substantial global component for future economic loss in respect of both shoulders, and this probably would justify proceeding further with the matter even though it would be relatively costly to take the matters to the conference stage. 35 Means of knowledge Section 30(1)(c) of the Act provides: 40 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 the time, and ii. as far as the fact is able to be found out by the person, the person has taken 45 all reasonable steps to find out that fact before that time. -- 6 of 9 -- 7 JUDGMENT In this case, the respondent has argued that the applicant, in fact, knew the facts relied upon. In other words, knew that he was at risk of further injury by continuing to work. To this end, the applicant was cross-examined at some length on the hearing before me, and I refer to the questioning commencing on page 3 of the transcript at about line 24: 5 Can you recall any colleagues suffering injuries to their shoulders before your left shoulder injury in 2005 as a result of baggage handling duties?---Other workers? 10 Yes?---Yes. Yep. And then between your left shoulder and right shoulder injuries, do you recall any other colleagues, co-workers suffering shoulder injuries as a result of baggage handling duties?---Yes. 15 Would you agree with me that from your experience of suffering injuries in healthy shoulders in 2005 and 2010, that you were well aware of the risk of injuring your shoulder from doing baggage handling duties?---Yes. 20 And you were aware of that risk from the time you suffered your first injury to your left shoulder, weren’t you?---Yes. And your worst injury to your right shoulder probably strengthened that understanding of the risk. Would that be fair to say?---No. No. I don’t think 25 so. Just the same level of risk?---Yes. Okay. Once you suffered the injury to your left shoulder in 2005 and returned 30 to work, you must have realised that there was a risk that it could be re-injured in another lifting accident?---No. Would you agree with that?---No. 35 Further on at the bottom of page 4, there was the further question: Having had an injury that required surgery to your right shoulder, you must have had some concern or nervousness on returning to full duties about the risk of re-injuring it?---Yes. 40 But you felt you could meet that risk and do the job. You felt well enough?---Yes. In effect, it’s been argued by the respondent that he therefore knew that he was at 45 risk of further injury after he had returned to work following both the left shoulder injury and the right shoulder injury. It seems to me, however, that his knowledge -- 7 of 9 -- 8 JUDGMENT does not necessarily go as far as the material facts relied upon. Certainly, he knew, as indeed would anyone, that any occupation which involved repetitive work of the type that baggage handlers do could result in injury to particular parts of the body. The same could be said for someone who was required to dig holes on a regular basis. Surely, they would be aware that there was a risk that they could sustain 5 injuries to parts of their bodies such as the back, for example. Here, his answers never went so far as to accept that he was aware of the increased vulnerability of further injury. The specific answer in relation to the question about the right shoulder that I referred to earlier illustrated that. What is more, he was also 10 told for the first time about restrictions, being the above shoulder height restrictions. It seems to me, therefore, that he did not know the material facts relied upon, and it is then relevant to consider the matters set out in section 30(1)(c)(ii). The approach to matters such as this was explained by Keane JA in NF v the State of Queensland [2005] QCA 110 at paragraph 29 when he said: 15 It is to be emphasised that section 30(1)(c) does not contemplate a state of knowledge of material facts obtainable 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 obtainable by an actual person who has taken reasonable 20 steps. The actual person postulated by section 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 25 applicant. It seems to me that if that person has taken all reasonable steps that she is able to take the find out the fact and has not found that out, that fact is not within her means of knowledge for the purposes of section 30(1)(c) of the Act. 30 Here, the respondents have contended that the only reason the facts may not have been within his means of knowledge were his failure to take further steps, ie, his failure to seek advice earlier. It was agreed on the basis that had he sought advice earlier, he would have been told that he was at risk of further injury to both shoulders by doing the type of work that he did. The applicant argues that the case is 35 analogous to that of Healy v Femdale [1993] QCA 210 in an often cited passage where the Court of Appeal said: The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs 40 of the injury itself and the extent to which it or any other facts might be bought to call for prudent inquiry to protect one’s health and legal rights. It is necessary to say that a person who finds herself able to get on with her life and returns to employment without significant fail or disability fails the test merely because she fails to ask for opinions for her doctor about the prospect of future 45 disability of effect upon her working capacity. There is no requirement to take ‘appropriate advice’ or to ask appropriate questions if, in all the -- 8 of 9 -- 9 JUDGMENT circumstances, it would not be reasonable to expect the plaintiff to have done so. Here, he certainly has experience pain and discomfort in the shoulders. I have already referred to the passages from the report of Dr Shaw in that regard. In 5 evidence, he also said that he did experience discomfort in his left shoulder on average twice per week. He said that he experienced discomfort in his right shoulder, and that the pain was worse in the right shoulder, again, on average two times per week after heavy work. It is clear that at no stage has he lost any work, and he has returned to normal duties. He has not suffered any economic loss at all, and 10 there is no evidence to suggest that he was contemplating either limiting his work or ceasing his work. It seems that he was relatively stoic in terms of his dealing with pain, but the fact that he has experienced pain on average twice per week after heavy day’s work, does not of itself, in my opinion, justify me concluding that he ought to have sought further legal advice. It would have been a totally different situation had 15 he found himself faced with some economic loss or potential economic loss because of that pain or discomfort. In the circumstances, I am satisfied, therefore, that the material facts relied upon were not within his means of knowledge at the relevant times. 20 Prejudice It is well accepted that the applicant must show that the respondent in matters such as this will not suffer any significant prejudice if that application is granted. In this case, no issues of prejudice have been raised. Both claims have been fully 25 documented, and both parties have been able to access that documentation. There is no suggestion that any witnesses are not available. In the circumstances, I am satisfied that the respondent would not be significantly prejudiced if the applications are successful. 30 Orders In all the circumstances, I’m satisfied that the application should be successful, and I will make the necessary orders. 35 ______________________ -- 9 of 9 --