Anderson v AAI Limited & Anor [2014] QDC 127

DISTRICT COURT OF QUEENSLAND CITATION: Anderson v AAI Limited & Anor [2014] QDC 127 PARTIES: MARK JAMES RICHARD ANDERSON (applicant) v LANCE WILSON (first respondent) and AAI Limited (ACN 005 297 807) (second respondent) FILE NO/S: 3748 of 2013 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 30 May 2014 DELIVERED AT: Brisbane HEARING DATE: 22 April 2014 JUDGE: Reid DCJ ORDER: 1. The limitation period is extended to 29 January 2014. 2. Direct that the parties confer with a view to agreeing upon the form of orders as discussed during the hearing including any orders under ss. 39 or 57 of the MAIA. If agreement cannot be achieved, the matter may be listed before me upon either party giving three days written notice to the other. CATCHWORDS: Extension of limitation period – personal injury claim – motor vehicle accident – where the applicant developed increasingly severe symptoms after the expiration of the limitation period – discretion to extend the limitation period Motor Accident Insurance Act 1994 (Qld), s 39, s 57 Limitation of Actions Act 1974 (Qld), s 30, s 31 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 applied -- 1 of 17 -- 2 Carlowe v Frigmobile Pty Ltd [1999] QCA 527 considered Hargans v Kemenes & Anor [2011] QCA 251 applied Healy v Femdale [1993] QCA 210 applied Moriarty v Sunbeam Corporation Ltd (1988) 2 Qd R 325 considered Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419 considered Watters v Queensland Rail [2001] 1 Qd R 448 considered Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 considered COUNSEL: C Heyworth-Smith for the applicant R Green for the respondent SOLICITORS: Shine Lawyers for the applicant Bray Lawyers Pty Ltd for the respondent INTRODUCTION [1] The applicant was injured in a motor vehicle accident on 3 December 2009. His most significant injury was to his left knee. He had surgery to it in September 2010, performed by Dr Hayes. He did not return to work after the accident unitl 20 October 2010. He received WorkCover payments during this period. When he returned to work he did so on normal duties. Sometime thereafter the symptoms in his knee increased. He was certified for restricted duties from 14 November 2012. On 29 January 2013 Dr Hayes suggested further surgery to his knee and he became aware of the fact his knew had suffered significant further impairment, which might compromise his ability to work in his profession as a tiler. The applicant first consulted solicitors on 6 February 2013 and they gave a Notice of accident claim form pursuant to s. 37 of the Motor Accident Insurance Act 1994 to the second respondent. [2] The application filed 2 October 2013 seeks the following orders: -- 2 of 17 -- 3 1. A declaration pursuant to s 39(5)(c)(i) of the Motor Accident Insurance Act 1994 that the applicant has remedied non-compliance as at 11 April 2013; 2. In the alternative, an order that the applicant is authorised to proceed further with the claim despite the non-compliance pursuant to s 39(5)(c)(ii) of the Motor Accident Insurance Act 1994; 3. That, pursuant to s 31 of the Limitation of Actions Act 1974 the period of limitation for an applicant’s claim for damages for personal injury against the first and second respondents sustained on 3 December 2009, be extended to 29 January 2014. I shall refer to those Acts hereafter as the ‘MAIA’ and the ‘LAA’ respectfully. [3] That date of 29 January 2014 to which the application under the LAA pertained is the date 12 months after the applicant consulted Dr Hayes and was told that he may need further surgery to his knee. The applicant submits that the information given to him by Dr Hayes about the condition of his knee was a material fact of a decisive character entitling him to an extension of the limitation period. He submits that until then he did not, and if appropriately advised would not, have formed the view that he had an action for damages against the respondents that was in his own interests worth pursuing. [4] Before considering the merits of the matter, it is necessary to briefly consider some of the relevant statutory provisions, the history of the applicant’s pursuit of his legal action against the respondents and the effect of the parties actions upon the making of orders under either Act. -- 3 of 17 -- 4 STATUTORY PROVISIONS [5] Section 31 of the LAA provides relevantly: ‘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 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.’ [6] Terms used in s 31 are defined in s 30 of the LAA 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— (i) the fact of the occurrence of negligence, trespass, nuisance or -- 4 of 17 -- 5 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.’” [7] Sections 39 and 57 of the MAIA provide, so far as relevant, as follows: -- 5 of 17 -- 6 ‘39 Response to the notice of claim (1) If notice of a motor vehicle accident claim is given to an insurer under this division or purportedly under this division— (a) the insurer must, within 14 days after receiving the notice give the claimant written notice— (i) stating whether the insurer is satisfied that the notice has been given as required under this division; and (ii) if the insurer is not satisfied— identifying the noncompliance and stating whether the insurer waives compliance with the requirements; and (iii) if the insurer does not waive compliance with the requirements— allowing the claimant a reasonable period (at least 1 month) specified in the notice either to satisfy the insurer that the claimant has in fact complied with the requirements or to take reasonable action specified in the notice to remedy the noncompliance; and (iv) stating whether the insurer is prepared (without admitting liability) to meet the reasonable and appropriate cost of the claimant’s rehabilitation; and (b) if the insurer is not prepared to waive compliance with the requirements in the first instance—the insurer must, within 14 days after the end of the period specified under paragraph (a)(iii), give the claimant a written notice— (i) stating that the insurer is satisfied the claimant has complied with the relevant requirements, is satisfied with the action taken by the claimant to remedy the noncompliance or waives the noncompliance in any event; or (ii) stating that the insurer is not satisfied that the claimant has taken reasonable action to remedy the noncompliance, giving full particulars of the -- 6 of 17 -- 7 noncompliance and the claimant’s failure to remedy it. … (3) If notice of a motor vehicle accident claim is given to an insurer under this division or purportedly under this division, and the insurer does not respond to the notice within 14 days after receiving it, the insurer is conclusively presumed to be satisfied the notice was given as required under this division. … (5) A claimant’s failure to give notice of a motor vehicle accident claim as required under this division prevents the claimant from proceeding further with the claim unless— (a) the insurer— (i) has stated that the insurer is satisfied notice has been given as required under this division or the claimant has taken reasonable action to remedy the noncompliance; or (ii) is presumed to be satisfied notice has been given as required under this division; or (b) the insurer has waived compliance with the requirement; or (c) the court, on application by the claimant— (i) declares that the claimant has remedied the noncompliance; or (ii) authorises further proceedings based on the claim despite the noncompliance. (6) An order of the court under subsection (5)(c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to an insurer from the claimant’s failure to comply with requirements of this division. … 57 Alteration of period of limitation -- 7 of 17 -- 8 (1) If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended. (2) However, the proceeding may only be brought after the end of the period of limitation if it is brought within— (a) 6 months after the notice is given or leave to bring the proceeding is granted; or (b) a longer period allowed by the court. … (5) If a period of limitation is extended under part 3 of the Limitation of Actions Act 1974, this section applies to the period of limitation as extended under the part.’ BACKGROUND [8] Notice of the motor vehicle accident was given, or purportedly given by the solicitors to the second respondent on 2 April 2013. The second respondent says the Notice was received on 8 April 2013. Nothing turns on reconciling those dates and I shall act on the basis it was given on 8 April. Whilst there was, in correspondence between the parties, some dispute as to whether the applicant had provided a proper explanation for his delay in giving Notice, that is inconsequential because the second respondent accepts that it is presumed, pursuant to s. 39(3) of the MAIA, to be satisfied Notice was given as required under the MAIA, apart from any issue concerning the limitation period, as the second respondent had not complied with its own obligation under s. 39(1)(b) of the MAIA. In any case, the second respondent ultimately waived any compliance issues by letter of 26 November 2013. -- 8 of 17 -- 9 [9] The effect of that is that the Notice is deemed to have been compliant and to have been given on 8 April 2013. [10] I was also told by counsel that the parties were agreed that if I was ‘minded to grant the extension (under the LAA), we agree that there is no live issue before you on the section 39 application’ and that they were in agreement about the appropriate form of any order. [11] The giving of the Notice under s. 37 of the MAIA on 8 April 2013 has an important consequence. It was, of course, outside the normal limitation period, which expired three years after the accident of December 2009. But the provisions of s. 57 of the MAIA, set out above, effectively mean that if the Notice was given under Division 3 of the Act (as has occurred) before the end of any extended period of limitation applying to the claim, the applicant may bring a proceeding in court even though the period of limitation has expired, subject to s. 57(2) of the MAIA. This follows by reason of the wording of s. 57(5) of the Act. Subsection (2) effectively provides that as the extended limitation period sought of 29 January 2014 has passed, the proceeding may only be brought if so allowed by the Court. I was advised by counsel that in this case, if the application to extend time under the LAA is successful, the second respondent had advised it would not take any limitation point in its defence and that, consequently, an order under s. 57(2)(b) was not required to be made. [12] The consequence is that if I were of the view that a material fact of a decisive character was not within the knowledge, or means of knowledge, of the applicant until a date after 8 April 2012 (being a date 12 months prior to the Notice under s. -- 9 of 17 -- 10 37 of the MAIA being given) then, subject to consideration of the discretion, the limitation period ought be extended. APPROACH TO LAA [13] The respondent’s counsel submitted, appropriately, that: ‘‘whatever it is that is relied upon by the applicant as the material fact, it must be one that transforms the applicant’s appreciation of the case to one that would result in a substantial award of damages: Watters v Queensland Rail [2001] 1 Qd R 448. It is often an assessment of degree regarding the applicant’s knowledge of physical injury, any warning signs and consequences arising out of such an injury and the impact of such an injury on the usual aspects of the applicant’s life. Such assessments must always be undertaken in the context of what was already known or reasonably capable of being known by an applicant: Watters (supra) p. 453.” [14] He submitted I would not be satisfied that there was a relevant deterioration that can be properly attributed to the effects of the accident and secondly, any such deterioration was not such as to so change the applicant’s appreciation of his case such that the relief should be granted. [15] In Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 at 333, Macrossan J said: ‘In cases like the present, an applicant… 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, (footnotes excluded). [16] In Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, Macrossan CJ said at 437: -- 10 of 17 -- 11 ‘The policy detectable in this legislation does not suggest that a potential plaintiff with the limitation period running against him must necessarily always commence his proceedings when he has no more than a hint of the existence of a necessary link in his chain of proof but, of course, if being at that point he delays he will do so at his peril because he will only subsequently save himself if he can persuade a judge that he did not know enough or would not, even if he had undertaken appropriate enquires, have known enough to justify commencing proceedings at an earlier time.’ [17] In Carlowe v Frigmobile Pty Ltd [1999] QCA 527, Thomas JA and Atkinson J, said at paragraph 39: ‘The test for whether or not a fact was within his means of knowledge depends on whether the respondent took all reasonable steps to find out that fact. This test has both subjective and objective elements.’ [18] In Hargans v Kemenes & Anor [2011] QCA 251 Fraser JA at paragraph 26 referred to earlier observations of the Court in Healy v Femdale [1993] QCA 2010 that: ‘The question whether such a person has taken all reasonable steps to ascertain the nature and extent of the injury: … depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability [or] the effect upon her working capacity. There is no requirement, actual or notional, to take ‘appropriate advice’ or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the plaintiff to have done so. The answer to this then depends upon the primary facts concerning the level of seriousness of the plaintiff’s symptoms and of the warning signs which she undoubtedly had.’ [19] Macrossan J said in Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419 at 424: -- 11 of 17 -- 12 ‘To fulfil the requirements of this test, a claimant must do more than merely in some general way act reasonably. Further, the reasonable steps which have referred to as necessary are more than just steps appropriate to have the matter ascertained e.g. by others on his behalf. The reasonable steps are steps appropriate in order that he himself should know. Ignorance of the law in relation to a factual situation does not meet the onus of establishing ignorance of material facts: Harris v Gas & Fuel Corporation of Victoria [1975] VR 619 at 627. In Docamo v Ford Excavations Pty Ltd, ignorance of the cause of action was not itself a ground of the extension of the limitation period.’ CONSIDERATION [20] Although the applicant was off work between the accident of December 2009 and 20 October 2010, he was in receipt of WorkCover (Queensland) payments during that time. WorkCover also paid his medical and other rehabilitation expenses. Although he was, no doubt, out of pocket, the sum would not have been great. After 20 October 2010 he returned to his same employer on normal duties and remained in that employment thereafter. He would thus have suffered no ongoing loss until at least November 2012, when he returned to restricted duties, and possibly not until January 2013 when he saw Dr Hayes and ceased work. [21] Over the period after October 2010 he did suffer ongoing symptoms. He had some symptoms over the whole of the period after his return to work, but they were overcome by modifying some of the duties he was required to perform, or, if they were available, having co-workers perform some of the heavier tasks. He said he was aware of Dr Hayes clearing him to return to work on normal duties in October 2010 and of Dr Hayes’ opinion, set out in a certificate he saw, that no further reviews or medical management were required. Whilst his ongoing symptoms varied, from about mid 2012, (which is well after the date of 8 April 2012, being 12 months prior to Notice being given under the MAIA) he developed increasing -- 12 of 17 -- 13 symptoms. In my view there was nothing, prior to that time at the least (and in fact nothing prior to his seeing Dr Hayes in January 2013) that would have caused him, or any worker keen to put the injury behind him and get on with his work, to have concluded he ought in his own interests commence proceedings. In my view if he had sought legal advice about the issue, he would also have been advised that any return to him would have been slight indeed. The statement of principle of Fraser JA set out in [18] is of direct application in such circumstances. [22] Dr Hayes, in giving evidence, said that the nature of the applicant’s knee condition which caused him to develop the newly severe symptoms was the rupture of cartilage in the medial side of his knee which he observed during surgery on 19 February 2013. He said that in his opinion it was unlikely he would have been able to work as a tiler with that condition for any lengthy period. I find that such injury, and the consequent development of severe symptoms did not occur until after the middle of 2012 and probably close to 14 November 2012 when he consulted his general practitioner, Dr Joanne Martin. She certified that he was fit only for suitable duties until 14 December 2012, one month later. On 21 November he requested a re-opening of his WorkCover claim and subsequently underwent an MRI on 14 January 2013 which showed some progression of his condition. He was then referred to Dr Hayes whom he saw on 29 January. [23] In my view there can be no criticism of the applicant’s decision not to institute proceedings for personal injury against the respondents prior to his seeking Dr Hayes, and then seeking legal advice as he did. The respondent does not assert that he should have done so at the time of his return to work in October 2010, but, rather submits that subsequent events and in particular events prior to November 2012 -- 13 of 17 -- 14 ought to have convinced the applicant, and would have convinced a reasonable person who had taken appropriate advice, that he should in his own interests have instituted such proceedings. I do not accept that was so, until he had seen Dr Martin and then Dr Hayes and then had an opportunity to consult solicitors. After seeing Dr Hayes he quickly consulted solicitors and they gave Notice of the motor vehicle accident claim to the respondents as I have outlined. [24] In my view there is no reason to conclude that the applicant’s conduct was not entirely reasonable. I find that it was not until the applicant had seen Dr Hayes that he was, or could reasonably be expected to be, aware of the extent of his knee injury, or of the impact it would have on his ability to continue in his work as a tiler. I also find that it was not within his means of knowledge until that time. Until then, there was no reason to cause he, or a reasonable person, to conclude he ought to obtain earlier advice about his symptoms, or that he, or a reasonable person, would, if properly advised, have concluded he had an action that he ought pursue. DISCRETION [25] It is then necessary to turn to the discretion as to whether to extend the limitation period as the applicant seeks. That there is such a residual discretion is clear from the decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. [26] The respondent opposes such an order on two grounds – prejudice to it by reason of delay such that a fair trial cannot now be held, and because any cause of action would be bound to fail, because of the fact that the applicant’s knee condition which -- 14 of 17 -- 15 necessitated his seeing Dr Martin and then Dr Hayes in 2012-2013 was unrelated to the motor vehicle accident. [27] In relation to this latter issue, Dr Hayes said that when he observed the applicant’s knee during the initial operation in September 2010 he identified a specific area of cartilage damage in the lateral position of his knee, but that the remainder of the knee was structurally sound. During the February 2013 surgery, he identified abnormality to the medial aspect of the knee which he said had been previously undamaged. He said he had taken photos in September 2010 which clearly showed the tissue in the area of abnormality revealed in February 2013 was, in 2010, sound. [28] His opinion was that, whilst it was possible the medial damage was due to loading of the applicant’s knee due to lateral pain related to the car accident (i.e. that there was a causal relationship between the motor vehicle accident and the subsequent medial damage) he felt it was most likely that the medial injury was an unrelated injury caused by his work as a tiler. He accepted, however, that it was likely the applicant might adopt some different postures when performing his work and that this might have been a contributing factor to his presentation in 2013. [29] Dr Morgan also gave evidence before me. He agreed with much of Dr Hayes’ opinion, and agreed the applicant’s presentation in 2013 was due to symptoms arising from distinct additional pathology. His opinion however, was that in the absence of any history of a discrete new injury there was likely to be a direct link between that injury and the motor vehicle accident. He suggested two possible explanations for the occurrence of the subsequent medical symptoms: -- 15 of 17 -- 16 (a) because the original lateral injury pre-disposed him to suffering a new injury to the medial side of his knee while working as a tiler; or (b) because the medial side was injured in the motor vehicle accident but in 2010 the changes to that side were not macroscopically apparent, although present at a molecular level, and consequently developed through work activities. He said because he had no reason to doubt the applicant’s assertion that there was no discrete event which accounted form his symptoms developing in 2012, he accepted they were related to the motor vehicle accident, and favoured the second of the alternatives I have set out as the cause of that developing condition. [30] In view of that evidence of Dr Morgan, it does not seem to me that it can be said that the applicant’s prospects of recovering a worthwhile award in the action are so slight that I should, in the exercise of my discretion, reject the application to extend the limitation period on that ground. [31] The second respondent also submits that the time that has elapsed from December 2009 until now, or at least until Notice of the claim was given in April 2013, without it having the opportunity over that time to consider or investigate the injury and his symptoms means that the justice of the case requires that the discretion to grant the extension under the LAA should not be exercised in the applicant’s favour. [32] Such consideration must of course be weighed against the prejudice to the applicant if the extension is not granted, in circumstances where it is conceded by the respondents that there is evidence to establish the applicant’s right of action. -- 16 of 17 -- 17 [33] In this case, the applicant has received WorkCover benefits. His claim, a journey claim, was lodged on 8 December 2009. WorkCover funded his surgery and rehabilitation. Dr Hayes has provided medical reports. His operating notes from both 2010 and 2013 and the photos he took in September 2010 are available. Dr Martin’s medical records are also available, as are the details of the applicant’s request to re-open his claim in November 2012. [34] In my view, the interests of justice are best served by my extending the limitation period. The onus of establishing that I should do so rests on the applicant (see Brisbane South Regional Health Authority v Taylor (supra)), but there is, in my view, no reason to conclude the respondent cannot now adequately present its case. Delay can of course have an adverse effect on justice if relevant evidence is lost, but WorkCover’s involvement means, in my view, that such relevant evidence has already been collated and is available for presentation at any trial. [35] In the circumstances, the application to extend time is allowed. ORDERS 1. The limitation period is extended to 29 January 2014. 2. Direct that the parties confer with a view to agreeing upon the form of orders as discussed during the hearing including any orders under ss. 39 or 57 of the MAIA. If agreement cannot be achieved, the matter may be listed before me upon either party giving three days written notice to the other. [36] I will hear argument as to costs at that time, if agreement cannot be reached. -- 17 of 17 --