Bergemann v Tilly's Administrative Services Pty Limited [2012] QSC 266

SUPREME COURT OF QUEENSLAND CITATION: Bergemann v Tilly’s Administrative Services Pty Limited [2012] QSC 266 PARTIES: PAUL ERICH BERGEMANN (Plaintiff) v TILLY’S ADMINISTRATIVE SERVICES PTY LIMITED ABN 43 065 198 932 (Defendant) FILE NO/S: BS 8407 of 2010 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 19 September 2012 DELIVERED AT: Brisbane HEARING DATE: 9 March, 4 April 2012 JUDGE: Douglas J ORDER: Application dismissed CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – DISABILITY – UNSOUNDNESS OF MIND – WHAT CONSTITUTES – where the plaintiff was injured at work when a crane rolled forward pinning his left hip, knee and ankle against a large excavator base on which the plaintiff had been performing some welding work – where the plaintiff sought and obtained workers‟ compensation for his injuries – where the plaintiff did not commence any civil proceedings claiming damages for those personal injuries until 10 August 2012 having given notice of his claim for damages to WorkCover on 16 December 2009 – whether the plaintiff was at all times since 19 April 2004 under a disability for the purposes of s 29 of the Limitation of Actions Act 1974 (Qld) LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURY MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE – GENERALLY – where the plaintiff argued that the material -- 1 of 10 -- 2 fact of a decisive character was the concurrence of the referral to the Medical Assessment Tribunal with an inability to return to work and that until then the plaintiff‟s belief was that he would return to work – whether the material facts relating to the plaintiff‟s right of action of a decisive character were known to the plaintiff before 16 December 2009 Limitation of Actions Act 1974 (Qld), ss 29, 31(2) Flemming v Gibson [2001] QCA 244, referred King v Coupland [1981] Qd R 121, referred State of Queensland v RAF [2010] QCA 332, referred COUNSEL: K Wilson SC with D Murphy for the plaintiff R Myers for the defendant SOLICITORS: Richardson & Lyons for the plaintiff Hede Byrne & Hall Solicitors for the defendant [1] On 19 April 2004 the plaintiff was injured at work when a crane rolled forward pinning his left hip, knee and ankle against a large excavator base on which he had been performing some welding work. His allegation is that the crane driver failed to engage the park brake before leaving the crane unattended. [2] He sought and obtained workers‟ compensation for his injuries but did not commence any civil proceedings claiming damages for those personal injuries until 10 August 2010, having given notice of his claim for damages to WorkCover on 16 December 2009. This is an application for a direction that he has at all times since 19 April 2004 been under a disability for the purposes of s 29 of the Limitation of Actions Act 1974 (Qld), or, alternatively, that the limitation period be extended to 16 December 2009 under s 31(2) of that Act. That was the date he was considered to have given a compliant notice of claim for damages to WorkCover. Background [3] The plaintiff was born on 5 November 1974. On the day of the incident he went to the Toowoomba General Hospital complaining of left groin thigh pain and left heel pain. On the next day, 20 April 2004, he applied for workers‟ compensation for his left leg and foot. Disability [4] The plaintiff has been treated by a psychiatrist, Dr Cantor, who formed the view that the plaintiff has been suffering from post-traumatic stress disorder since the accident, that the condition has not been in remission for any significant periods and that he was not capable of managing his own affairs in relation to the accident until -- 2 of 10 -- 3 December 2009 with the effect that he was highly likely to have been of unsound mind between the accident and at least December 2009. [5] Dr John Varghese provided a report to the respondent. He agreed that the plaintiff experienced the onset of post-traumatic stress disorder on the day of the accident, but said that it had waxed and waned as a condition over the years and had not made him of unsound mind over the whole of the relevant period. [6] There is a significant body of evidence that leads to the conclusion that Mr Bergemann had some learning disabilities, limited literacy, an unwillingness to read documents sent to him and a reduced capacity to manage his own affairs as well as post-traumatic stress disorder. His wife, Toni Bergemann, has assisted him significantly in managing his affairs since his accident, especially in his dealings with WorkCover by reading and explaining documents to him and by liaising with his solicitors and, to some extent, with his case managers at WorkCover. [7] By the same token, it is clear that Mr Bergemann has retained the capacity to handle many of life‟s challenges and to appreciate some of the consequences for him of his decreased ability to work. He continued to work, with limited success, after the accident until about August 2006. During that period he made and pursued some other claims for workers‟ compensation arising out of an injury to his right eye and another, in October 2004, arising out of a car accident he suffered on the way to work when he went into shock and could not continue working. [8] Similarly, again in October 2004, he made a further application for workers‟ compensation when he was hitting a cold chisel with a hammer and a piece of metal broke off and embedded itself into his right leg. He made a further application on 13 December 2004 when some metal burnt into his left hand. [9] During this period he continued to suffer from post-traumatic stress disorder and advised a claims manager at WorkCover on 14 January 2005 that he feared he would not be employed by anyone else as he had had too many workers‟ compensation claims. I shall discuss the relevance of that statement later, particularly in respect of his application pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld). [10] There is also a significant argument that his post-traumatic stress disorder may have been triggered more by the motor vehicle accident on 18 November 2004, seven months after the accident involving the crane, but that is not something particularly relevant to these applications. [11] About the time of that motor vehicle accident he began to be treated for depression by the use of a prescription drug. Mrs Bergemann said that helped him cope a bit better at work but also said that he was miserable working for the defendant. They decided it would be best for him to resign by May 2005. During the period between the accident and then she said that he was very depressed and anxious about safety at work and relations with his fellow employees. She said that that depression -- 3 of 10 -- 4 showed itself in his behaviour during a month long holiday in Tasmania they took after the accident. That occurred in April 2004. He drove the car while they were on their holiday and on a subsequent holiday in America where he became very concerned about vehicles tailgating him. He had previously suffered concerns about co-workers sneaking up behind him and touching him because of the overreaction they were able to obtain from him since the accident in April 2004. [12] Mrs Bergemann encouraged him to reopen his workers‟ compensation claim in September 2007. That occurred and WorkCover, in about June 2009, advised him that it proposed to finalise his claim by making a lump sum offer. He says he was not expecting this and that he believed he would continue to receive payments until he had been rehabilitated and could go back to work. When that proposal was made he sought legal advice. His solicitors brought these applications on his behalf. He rejected the lump sum offer in favour of pursuing a damages claim. [13] Mr Bergemann‟s solicitors gave evidence of the difficulties of obtaining specific instructions from him from August 2009 when they began to act for him. They relied heavily on Mrs Bergemann to assist in obtaining specific details or confirmation of his instructions. Ms Daley, one of those solicitors, spoke of his “poor memory of relevant events and timeframes, his poor comprehension of the issues at stake and his reticence to answer questions or volunteer information without assistance or prompting from his wife”.1 It is relevant, however, that when they issued proceedings in this Court on 10 August 2010 they did so in his name. Mrs Bergemann‟s consent to act as his litigation guardian was filed on 9 June 2011. One can infer from those facts that, initially at least, they felt capable of accepting instructions from him. [14] I have previously mentioned the two psychiatrists who gave oral evidence about his capacity, Dr Cantor being called for Mr Bergemann and Dr Varghese for the defendant. Each had been asked questions based on the analysis of what is meant by unsoundness of mind by Macrossan J in King v Coupland. His Honour said:2 “Kirby v Leather [1965] 2 QB 367 was cited to me and in particular the observations in that case of the Master of the Rolls at pp 383-384. It may be accepted that the meaning of „unsoundness‟ of mind is to be gathered from considering the place of the relevant phrase in the statute and from the function intended by the statute itself. The examples given at p 384 of relevant aspects of unsoundness seem helpful, with respect, and a number of the medical witnesses before me were asked to provide an opinion, basing themselves upon those guidelines viz capacity to instruct a solicitor property; capacity to exercise reasonable judgment upon a possible settlement and capacity to appreciate the nature and extent of any available claim. These seem to me to be aspects of a broader concept of a mental illness causing an incapacity to manage affairs in relation to the accident that is to manage them in the manner that a reasonable man 1 See affidavit of Lisa Danielle Daley filed 28 February 2012, para 6. 2 [1981] Qd R 121, adopted by the Court of Appeal in Flemming v Gibson [2001] QCA 244 and considered in State of Queensland v RAF [2010] QCA 332. -- 4 of 10 -- 5 would achieve. This I take to amount to the unsoundness of mind which the Statute brings into question.” [15] The consideration of that decision in State of Queensland v RAF3 leads to the conclusion that, to establish unsoundness of mind for the purposes of the Act, there must exist a mental illness which produces an incapacity by a person to manage his or her affairs in relation to the accident, and not in relation to life generally, in the manner of a reasonable person. To constitute unsoundness of mind the condition from which a person suffers needs to be more or less continuous and the relevant test is whether any periods of lucidity are such as to enable a person to manage his or her affairs in relation to court proceedings in the manner that a reasonable person would achieve. Brief amelioration of a disability which is too short to enable comprehension of all relevant matters or action upon them would not remove the protection provided by the Act. The phrase “mental illness” is not intended as a term of art but is meant in the more general sense as connoting an abnormality of the “mind” which includes the ability to form a rational judgment and to act upon any such judgments so formed. [16] In addressing these issues in particular, in answer to a number of questions posed by the plaintiff‟s solicitors, Dr Varghese said in his report of 9 February 2012:4 “Having regard to the status of our Client’s mental health between the subject incident of 19th April 2004 and the commencement of his damages claim in December 2009, do you believe that he is capable of managing his affairs in relation to the April 2004 incident in the manner that a reasonable manner (sic) would have achieved? It is my opinion that, while Mr Bergemann did have periods of acute decompensation and worsening of his symptoms, he was able to demonstrate a capacity to manage his affairs in a manner that a reasonable man would have achieved. I note that, even when employed by Tilly‟s and subsequent to the accident, he was able to give a clear and concise statement to Mr Craig Hunter, an Inspector making an investigation regarding the workplace accident, on 23rd April 2009. He was able to make an application for Worker‟s Compensation eye injury on 16th July 2004. He was able to make an application for Worker‟s Compensation regarding a car accident on the way to work on 18th October 2004. He was able to make an application for Worker‟s Compensation following an accident of hit (sic) a cold chisel with a hammer and a piece metal broke off and embedded into his right leg on 20th October 2004. He was able to make an application for Worker‟s Compensation for welding and some metal burnt into his left hand on 13th December 2004. He was able to make an application for Worker‟s Compensation regarding his left knee injury incident with a forklift on 17th December 2004. He was able to make an application for Worker‟s Compensation for a 3 [2010] QCA 332 at [17]-[22]. 4 See affidavit of Dr Varghese filed 23 February 2012, ex JV2 at pp 2-4. The question has been emphasised. -- 5 of 10 -- 6 forklift-related knee injury on 19th January 2005. He was able to make an application for Worker‟s Compensation while an employee of Mr Ply and Wood for the motor vehicle accident while working on 3rd November 2005. It is also noted that he was able to independently obtain employment with Mr Ply and Wood following his resignation from Tilly‟s and work there as an Assistant Manager for some period of time. These activities suggest a capacity to make judgements regarding employer responsibilities for injuries sustained by employees in the course of employment and the right to recompense and support. … Regarding the legal issue of what constitutes „of unsound mind‟ with regard to King vs. Coupland and Flemming vs. Gibson and the State of Queensland vs R.A.F., it is my opinion that Mr Bergemann has, except for periods of extreme distress and disability, had the capacity to instruct solicitors properly, the capacity to exercise reasonable judgement upon a possible settlement and the capacity to appreciate the nature and extent of any available claim. With regard to Flemming vs. Gibson, again, except in times of extreme distress and active Anxiety and Mood symptoms, Mr Bergemann does show the ability to give appropriate instructions to his advisors for the institution and conduct of proceedings, his capacity to understand matters upon which instructions might need to be given and his capacity to appreciate the nature and extent of the available claim and to exercise reasonable judgement upon possible settlement of it.” [17] Dr Varghese‟s conclusion was also affected by his reading of a report by Dr McIntyre, an experienced psychiatrist, who said that the plaintiff was in remission when he reported on 5 July 2005. Dr McIntyre noted:5 “In my opinion Mr. Bergemann does not now have any psychiatric condition meeting the axis I diagnostic criteria of DSMIV although some residual symptoms of his former PTSD are apparent. That earlier condition arose out of his employment, the relevant traumatic stressor being an incident at work on 19 April ‟04 in which he suffered a crush injury when pinned to an excavator body by a driverless crane.” [18] In cross-examination Dr Varghese adhered to that view in spite of suggestions to him that the plaintiff portrayed avoidant behaviour in respect of his dealing with the consequences of the particular accident in April 2004. In that context he said that his longstanding and persisting attendance, disappointment at responses and re-attendance at WorkCover for this case gave him the opinion that he was able to 5 See affidavit of TP Galligan filed 15 December 2011, ex TPG3 at pp 4-5. -- 6 of 10 -- 7 prosecute this case well.6 He said, later, that he had prosecuted this case in terms of rehabilitation avenues available for him, retraining and even compensation in a way that would not suggest to him a hurdle of avoidance.7 [19] Dr Cantor‟s views, as the plaintiff‟s treating psychiatrist, were that his post- traumatic stress disorder was not in remission for any significant periods and that throughout his period of contact with Mr Bergemann he appeared unusually avoidant, even for individuals with post-traumatic stress disorder. He interviewed Mr Bergemann first on 1 October 2007, reviewed him in March 2008 and has treated him from May 2008. [20] In his oral evidence he pointed to two key factors that, in his view, explained why Mr Bergemann could not manage his affairs in respect of this claim, namely his limited level of education and his stronger than average avoidance for sufferers of post-traumatic stress disorder.8 He had difficulty accepting Dr McIntyre‟s report about the absence of a psychiatric condition in July 2005.9 He also said that, while Mr Bergemann seems to have been able to manage most workers‟ compensation issues, whether he was competent to manage a post-traumatic stress disorder claim was more difficult to be sure about.10 [21] My own observations of him as a witness were that he had difficulty in answering questions, particularly at the start of his cross-examination, and was unwilling to address some issues but that over the course of the cross-examination his fluency and willingness to respond increased significantly. I raised that with him during his evidence and he agreed that his mood fluctuated from time to time depending on what was spoken about.11 [22] Dr Cantor‟s views, although supportive of the plaintiff generally, were not able to preclude the possibility of him being reasonably capable of handling his affairs over a period of at least months. As he said:12 “It is perfectly possible, possibly quite likely that he has had good days on which he could interact reasonably with his legal advisors and understand and do whatever's necessary. But my understanding of the legal process is that it takes more than an occasional good day, and that probably from a more practical interpretation of the concept he would need to be reasonably consistent over a period of at least months, and it's possible that that might have occurred. But I‟m not confident that he would have been reliably competent to manage the [indistinct] over a useful and sustained period of time”. 6 T 2-52, ll 40-45. 7 T 2-53, ll 15-20. 8 T 1-99, ll 18-27. 9 T 1-108, ll 15-22. 10 T 1-112, ll 22-35. 11 T 1-95, ll 28-40. 12 T 2-33, l 51 - T 2-34, l 3, emphasis added. -- 7 of 10 -- 8 [23] In that context, Dr Varghese said that, in his opinion, the history demonstrated extended periods where he was functioning quite well including the period when he was examined by Dr McIntyre.13 [24] The evidence of Danica Gilmore, his case manager at WorkCover, from June 2008 also seemed significant to me. She was able to give evidence by reference to contemporaneous notes she took of her dealings with the defendant by telephone. The majority of her communications were with him personally rather than with his wife, a different picture from that painted by Mr Bergemann and his wife in respect of their dealings with her. She recalled him having difficulties with reading and comprehension and explained to him, usually sentence by sentence or paragraph by paragraph, what the author of any specific report about his condition may have meant. She remembers reading numerous reports to the plaintiff and receiving confirmation from him that he had understood what she had said about them to him. [25] She said that the plaintiff demonstrated an understanding of what she was conveying to him by always being interested in what was being said in the reports and anxious to know what would happen next in terms of his treatment. She recalls telling him that there would be scheduled mandatory drops in the rate of his workers‟ compensation and that a WorkCover claim did not last forever. She says that she gave no advice to him about whether any potential common law claim was out of time, simply telling him that there was a time limitation involved in bringing a claim. She also explained to him and his wife the notion of a permanent impairment offer and told them that they might engage solicitors from about the time of her first involvement with the claim. [26] She described Mr Bergemann as a very good claimant, never moody and always doing what she asked him to do and always attending his treatments.14 She said it never came across that he was incapable of looking after his own affairs and that that was never brought up by any of his doctors or his psychologist.15 She described him as involved with his own claim and aware of the need, for example, to renew medical certificates.16 [27] There was some controversy in the evidence about whether or not she had told Mr and Mrs Bergemann anything about the desirability of Mr Bergemann engaging a solicitor for his appearance before the Medical Assessment Tribunal for his final assessment of his disability. She recalls saying that it was not a good idea because she was pretty sure that the Tribunal would not accept the appearance of a lawyer before it. Perhaps more significantly she also said that when she told Mr Bergemann and Mrs Bergemann that the claim would come to an end as a result of that assessment before the Tribunal, Mr Bergemann was very quiet where Mrs Bergemann was very forthcoming in expressing her displeasure.17 Her evidence impressed me as reliable and responsive to the questions she was asked. 13 T 2-43, ll 10-30. 14 T 2-81, ll 29-38. 15 T 2-81, ll 43-53. 16 T 2-84, ll 5-20. 17 T 2-101, ll 41-50. -- 8 of 10 -- 9 [28] The history of the claim over time when it was prosecuted persistently by Mr Bergemann as described by Dr Varghese, the evidence from the report by Dr McIntyre, the evidence of Ms Gilmore and my own observations of the plaintiff have led me to conclude that the plaintiff was not incapable of managing his affairs in relation to this accident during the relevant period since the accident. The persistence in the workers‟ compensation claim and the other evidence indicating that he continued at work and changed work over a considerable period after the incident, in spite of the evidence of Dr Cantor, does not satisfy me that he has shown, on the balance of probabilities, that he lacked the relevant capacity over the whole of the period to manage his affairs in relation to the accident. I accept that there would have been periods when he may have had difficulties in doing that but I do not accept that he would have been so incapacitated for all but brief periods which were too short to enable him to comprehend all the relevant matters or actions required by him. [29] Consequently, I would not grant the application pursuant to s 29 of the Limitation of Actions Act 1974 (Qld) for a declaration that he has been under a disability since 19 April 2004 for the purposes of that section. Application pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) [30] Mr Wilson SC for the applicant conceded, in his submissions, that this application was not as strong as the s 29 application. He argued that the material fact of a decisive character was the concurrence of the referral to the Medical Assessment Tribunal with an inability to return to work and that up until then Mr Bergemann believed he was going to return to work. [31] Having regard to my views about his overall capacity in respect of his claim, however, the fact that on 14 January 2005 he advised a claims manager that “he fears he won‟t be employed by anyone else as he has had too many WC claims” and asked what would happen from there is very significant. It seems to me that the conclusion is necessarily one that, at that stage, the material facts relating to his right of action of a decisive character were known to him before the relevant date, 16 December 2009. [32] He was also interviewed by a psychologist in September 2007, after he had been away from work since August 2006. He then wished to reopen his workers‟ compensation claim and said in the statement taken by the psychologist that he stopped work completely in August 2006 because of a variety of symptoms he described to her. He said he still experienced some very difficult symptoms then, after more than a year away from work.18 Although he then wanted help to get over his symptoms and payment for his time off work it seems to me that a material fact of a decisive character that was relevantly then within his means of knowledge was that his capacity to work had been decisively compromised to the extent that it would justify the bringing of an action based on the occurrence of the incident in April 2004.19 18 See affidavit of TP Galligan filed 15 December 2011, ex TPG5 at p 22. 19 See s 30(1)(b) of the Limitation of Actions Act 1974. -- 9 of 10 -- 10 [33] Consequently, it is my view that this aspect of the application should be dismissed also. Order [34] The application is dismissed. I shall hear the parties as to costs. -- 10 of 10 --