Brown v Marine Contracting Pty Ltd & Ors [2012] QSC 228

SUPREME COURT OF QUEENSLAND CITATION: Brown v Marine Contracting Pty Ltd (ACN 010 093 651) & Ors [2012] QSC 228 PARTIES: ROBERT BROWN (plaintiff/applicant) v MARINE CONTRACTING PTY LTD (ACN 010 093 651) (first defendant) and BOWEN TUG & BARGE PTY LTD (ACN 008 867 565) (second defendant/first respondent) and STRADBROKE FERRIES LIMITED (ACN 009 725 713) (third defendant/second respondent) FILE NO/S: 6844 of 2008 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 22 August 2012 DELIVERED AT: Brisbane HEARING DATE: 30 July 2012 and 31 July 2012 JUDGE: Peter Lyons J ORDER: 1. The period of limitation for the Plaintiff’s action for damages for personal injury sustained due to an incident on 26 September 2004 as against the Second Defendant and the Third Defendant be extended to 31 March 2009; 2. The time for filing and serving of the Defence by the Second Defendant and Third Defendant be extended until 5 October 2012; 3. Judgment as to costs is reserved. CATCHWORDS: LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER - GENERALLY - where plaintiff suffered an injury in an accident at work on 26 September -- 1 of 18 -- 2 2004 - where plaintiff suffered various symptoms following injury - where plaintiff consulted multiple medical practitioners whom he advised of both the accident and his symptoms- where plaintiff was provided with only provisional or working diagnoses until a medical report of 31 March 2008 - where plaintiff filed a claim in relation to the injury on 21 July 2008 - whether the plaintiff knew his symptoms were a consequence of an injury to his brain caused by the work accident prior to 21 July 2007 LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER - REASONABLE STEPS TAKEN TO ASCERTAIN FACTS - where plaintiff suffered an injury in an accident at work on 26 September 2004 - where plaintiff suffered various symptoms following injury - where plaintiff consulted multiple medical practitioners, each of whom he advised of both the accident and his symptoms - where plaintiff filed a claim in relation to the injury on 21 July 2008 - whether plaintiff took reasonable steps to ascertain whether his symptoms were a consequence of an injury to his brain caused by the work accident prior to 21 July 2007 LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER - OTHER MATTERS - where plaintiff suffered an injury in an accident at work on 26 September 2004 - where plaintiff suffered various symptoms following injury - where plaintiff was provided a medical report of 31 March 2008 advising of the connexion between the plaintiff‟s symptoms and the accident - where there was no evidence from the plaintiff that he placed any importance on that report - whether the test to determine if materials facts are of a decisive character is subjective or objective - whether the material facts are of a decisive character LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - EVIDENCE TO ESTABLISH RIGHT OF ACTION - where a report was provided by an engineering consultant about the safety of the plaintiff‟s working conditions at the time of the plaintiff‟s injury - where that report said steps could have been taken to reduce risk - whether the report is sufficient to satisfy the test in s 31(2)(b) of the Limitation Act LIMITATION OF ACTIONS - EXTENSION OR -- 2 of 18 -- 3 POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - OTHER MATTERS - where plaintiff suffered an injury at work on 26 September 2004 - where plaintiff filed a claim in relation to the injury on 21 July 2008 - where only one other person was present at the time of the injury - where it is possible an unidentified third party may have been negligent such as to cause or partly cause the plaintiff‟s injury - whether the delay in bringing the proceedings is such as to prevent a fair trial Evidence Act 1977 (Qld), s 92 Limitation of Actions Act 1974 (Qld), ss 11, 31, 30 Baillie v Crever [2010] QSC 52, considered Brisbane South Regional Authority v Taylor (1997) 186 CLR 541, considered Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, considered Field v Field N.S.W Court of Appeal, 21 October 1981, unreported, considered Healy v Femdale [1993] QCA 210, considered Kambarbakis v G&L Scaffold Contracting Pty Ltd [2008] QCA 262, considered Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, considered NF v The State of Queensland [2005] QCA 110, considered Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, considered Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, considered COUNSEL: K Wilson SC for the plaintiff G Crow SC for the second defendant C Harding for the third defendant SOLICITORS: McCowans for the plaintiff Bruce Thomas Lawyers for the second defendant Thynne & Macartney for the third defendant [1] The plaintiff commenced the present action on 21 July 2008, claiming damages for an injury suffered at work on 26 September 2004. He now applies for extension of the limitation period within which to bring that action. The second and third defendants oppose the application on the ground that all material facts were known to the plaintiff, or within his means of knowledge, by 21 July 2007, so that there is no power to grant the extension. The second defendant, in particular, is critical of the efforts made by the plaintiff to establish the nature and extent of his injury, and the cause of the symptoms which he experienced after the accident. Background -- 3 of 18 -- 4 [2] The plaintiff was born on 13 February 1959. He was 45 years of age on 26 September 2004, and is now aged 53. He was educated to grade 11. In September 2004, he was working as a deckhand for the second defendant. [3] The plaintiff gave evidence that on 26 September 2004 he was working on the Moggill Ferry which was being towed by tug to the Brisbane Slips to be serviced. The Moggill Ferry is owned by the third defendant. The plaintiff was working with Mr Bjorn Olin, who was employed by the second defendant as a Master. [4] The plaintiff gave evidence that his work required him to be on the ferry, to prepare ropes on it to tie it up when docked. He saw that a large wash was heading towards him, and to avoid the risk of falling overboard and being caught under the ferry and tug, he moved quickly to a place of shelter. In the course of doing so, he hit his head hard on a low beam in a doorway, and was knocked unconscious (work accident). [5] Thereafter, the plaintiff experienced problems with his balance; weakness in his left side; loss of coordination; problems with memory, concentration and focus; recurrent headaches; mood swings; and anger management problems. In early October 2004 he saw his general practitioner, Dr Pham. Dr Pham referred him for a brain CT scan, carried out on 9 October 2004. Subsequently, Dr Pham informed the plaintiff that the scan did not show any sign of brain injury, and he believed the headaches were post-concussional headaches, for which he prescribed Brufen tablets. [6] The plaintiff returned to Dr Pham in early November 2004 with headaches and pain and discomfort in his neck region. Dr Pham again recommended Brufen, and stated it was likely that things would improve over the ensuing months. [7] Because the plaintiff continued to suffer problems with his neck and with headaches, he returned to Dr Pham at the end of March 2005. On this occasion, Dr Pham sent him for an x-ray of his cervical spine, but this provided no explanation of his symptoms. [8] The plaintiff‟s symptoms persisted, and in early February 2006 he decided to seek another medical opinion. He went to Dr Hoffman, and told him of the difficulties he had been experiencing since the accident in September 2004. Dr Hoffman referred the plaintiff for a further CT scan of his brain. The plaintiff then saw Dr Hoffman with the results of the scan. Dr Hoffman informed the plaintiff that there were signs of pituitary enlargement in the brain, which Dr Hoffman wished to investigate further. Dr Hoffman referred the plaintiff for a further brain CT scan, this time with contrast, and also for pathology testing. [9] On 23 February 2006, Dr Hoffman advised the plaintiff that the further testing confirmed the presence of a pituitary tumour with suprasellar extension. The blood tests which had been carried out also indicated testosterone deficiency. Dr Hoffman then referred the plaintiff to Dr Michael Coroneos, a neurosurgeon, for a neurological review; and to Dr Clare Boothroyd, an endocrinologist. Dr Coroneos referred the plaintiff to Dr Harold Barry, a physician. Dr Boothroyd referred him to Dr Leigh Atkinson, another neurosurgeon, for a second opinion. -- 4 of 18 -- 5 [10] Dr Hoffman‟s letter of referral to Dr Coroneos referred to “persistent headaches” which the plaintiff had “put down to a severe head injury in September 2004” and to loss of libido and lethargy and tiredness since then. The letter concluded that the plaintiff was “intrigued to know whether the head injury may indeed have precipitated his problem”. [11] Dr Coroneos provided a report on 28 February 2006, which commenced with specific reference to the injury in September 2004; and to the plaintiff‟s recounting of symptoms since then. Dr Coroneos‟ report confirmed that the plaintiff had undergone thorough blood testing, as well as testing by his optometrist (apparently related to his headaches). Dr Coroneos recommended further investigations including an examination by Dr Harold Barry and an MRI brain and an MR cerebral angiogram. Dr Coroneos‟ report raised the prospect of chiasmal compression, and the need for surgery. [12] Dr Barry provided a report of 14 March 2006. It too referred to a “head injury at work”; and to the plaintiff‟s subsequent symptoms. It referred to extremely low testosterone levels, and MRI results showing a sizable pituitary macro-adenoma adjacent to the optic chiasm. Dr Barry thought that surgery of the tumour would be required. [13] Dr Atkinson provided a report dated 24 March 2006. It commences with a reference to the plaintiff telling Dr Atkinson of the head injury in 2004, and subsequent headaches. Dr Atkinson confirmed that the plaintiff had a pituitary tumour and recommended surgical intervention. [14] It is of some interest that Dr Hoffman‟s notes of 21 March 2006 include “you are my life saver” and make a reference to the need for surgery. [15] The plaintiff was then referred to Dr Bruce Hall, a neurosurgeon, who removed the pituitary tumour on 24 July 2006. [16] The plaintiff again saw Dr Hoffman in September 2006 and January 2007, still experiencing problems with his balance and coordination. Dr Hoffman recommended that the plaintiff see Dr de Wytt, a neurologist, which the plaintiff did in early March 2007. She did not identify the cause of his problems, and recommended another CT scan to exclude recent changes. The plaintiff felt dissatisfied with this response, and again saw Dr Hoffman, seeking a review from another specialist. [17] Consequently the plaintiff saw Dr Walsh, another neurologist, on 1 May 2007. There is some contention about precisely what Dr Walsh said to the plaintiff on this occasion, a matter to which I shall return. It is clear however that the plaintiff gave Dr Walsh a history of having suffered a head injury in 2004 and his subsequent symptoms. He also told Dr Walsh about the removal of the pituitary tumour. He also reported some improvement in some of his symptoms. [18] Dr Walsh then reported to Dr Hoffman by letter dated 4 May 2007. He stated that the plaintiff gave “an extremely good history of frontal type symptoms”. After the head injury in September 2004, the symptoms seemed to have settled somewhat. The letter concluded with the statement, “Frankly I suspect he has had right cortical lesion”; as well as advising that he had arranged further magnetic resonance -- 5 of 18 -- 6 imaging, looking for evidence of a haemorrhage; that he had arranged a neuropsychology assessment; and that he had referred the plaintiff to a rehabilitation specialist. In his evidence Dr Walsh stated that this was to a physiotherapist, from whom he had expected a good assessment of the plaintiff. Dr Walsh also advised that he would contact Dr Hoffman again after these assessments. [19] The imaging recommended by Dr Walsh was then carried out, and a report was provided on 13 July 2007. [20] On 21 July 2007, the plaintiff saw Dr Hall for further post-surgery follow up. Dr Hall advised him that the surgery had been very successful, and that he was making a very good recovery. [21] On 21 July the plaintiff again saw Dr Walsh, to discuss the results of the further imaging. Dr Walsh told the plaintiff that he did not believe that his problems were from the pituitary tumour, or the surgery; but that he strongly suspected the plaintiff had suffered a microscopic axonal injury to his frontal lobe as a consequence of the incident on 26 September 2004. He again recommended neuropsychological assessment, and that the plaintiff under go the rehabilitation program. [22] Dr Walsh then wrote to Dr Hoffman, reporting that the imaging did not show a lot of evidence of bleeding or further injury, and repeating that he suspected that the plaintiff had a microscopic axonal injury, given his clinical signs. He made reference to the plaintiff‟s proceeding with neuropsychology assessment, and rehabilitation; and stated that he would see the plaintiff in three or four months‟ time. [23] The plaintiff gave evidence that 21 July 2007 was the first time that any doctor had told him that his ongoing problems could be related to the incident of September 2004. He also gave evidence that he felt relieved to have a diagnosis of the problems, and to know they were not the result of any further tumours. He then investigated the neuropsychological assessment and the rehabilitation program recommended by Dr Walsh. His employment with the second defendant had been terminated in November 2006; though in May 2007 he found work, which he performed with difficulty because of problems with co-ordination and balance. He gave evidence, which was unchallenged, that the assessment and rehabilitation program were very expensive, and that in the middle of 2007 he could not afford them. [24] The plaintiff returned to Dr Hoffman in about September 2007, and told Dr Hoffman why he had not undertaken the neuropsychological assessment or the rehabilitation program. Dr Hoffman recommended the use of a wobble board and practising heel to toe walking as a means of rehabilitation. [25] Towards the end of 2007, the plaintiff attempted to find a solicitor, for the purpose of pursuing a claim in respect of the work accident. He approached a number of solicitors unsuccessfully, before coming into contact with his present solicitor, whom he met on 21 December 2007. His solicitor noted that the limitation period had expired, but recommended further medical review. That resulted in his attendance upon Dr Scott Campbell, a neurosurgeon, on 28 March 2008, and Dr de Leacy, a psychiatrist, on 4 April 2008. -- 6 of 18 -- 7 [26] In his report dated 31 March 2008 and sent to the plaintiff‟s solicitor, Dr Campbell reported a diagnosis of closed head injury resulting in cognitive deficits and poor balance; chronic post-traumatic headaches; and chronic soft tissue muscular- ligament injury to the cervical spine. He attributed these to the accident in September 2004. He expressed the view that at the time of the report, the plaintiff had reached the point of maximum medical improvement, and that his symptoms were unlikely to resolve. The plaintiff read a copy of the reports of Dr Campbell and Dr de Leacy in mid May 2008, and in July 2008 gave his solicitor instructions to commence the present proceedings. Legislative provisions [27] Since the plaintiff was injured on 26 September 2004, his cause of action against the second and third defendant accrued on that date. By virtue of s 11 of the Limitation of Actions Act 1974 (Qld) (Limitation Act) the time within which he might bring an action against the defendants expired on 26 September 2007. However a power to extend that time is found in s 31 of the Limitation Act, for a claim like the plaintiff‟s.1 The discretion, and the two conditions which must be satisfied before it might be exercised, are identified in s 31(2) of that Act as follows: “(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.” [28] Section 30 of the Limitation Act sets out matters relevant to the interpretation of the condition in s 31(2)(a). It is as follows: “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 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; 1 See s 31(1) of the Limitation Act. -- 7 of 18 -- 8 (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.” Summary of contentions [29] The submissions made on behalf of the plaintiff identified two facts relied upon to satisfy the condition found in s 31(2)(a). These were the nature and extent of the injury suffered by the plaintiff; and the extent to which that injury was caused in the accident on 26 September 2004. It was submitted that each was a material fact of a decisive character relating to the plaintiff‟s right of action. It was submitted that neither was within the plaintiff‟s means of knowledge until 31 March 2008 (the date of Dr Campbell‟s report); or alternatively 21 July 2007 (the date of the second consultation with Dr Walsh). It was also submitted that there was evidence to establish the plaintiff‟s right of action (ignoring a defence based on the limitation period). It was submitted that considerations relating to prejudice suffered by the defendants by reason of the passage of time did not warrant the refusal of the application. [30] For the second defendant it was submitted that all material facts of a decisive character were within the means of knowledge of the plaintiff prior to 21 July 2007. It was submitted that by 1 May 2007 the plaintiff knew he had a brain injury, being a right cortical lesion. It was also submitted that the relevant material facts were within the plaintiff‟s means of knowledge on 1 May 2007 “because the plaintiff was always deemed to have taken appropriate legal advice upon the medical advice which is available”. It was submitted that the plaintiff knew the cause of his problems because he did not experience them prior to the accident on 26 September 2004, but experienced them afterwards. -- 8 of 18 -- 9 [31] By reference to Baillie v Creber,2 it was submitted (no doubt on the assumption the plaintiff did not know the material facts) that they were within his means of knowledge because there was no evidence that he specifically asked Drs Hall, Coroneos, Barry, Boothroyd, Atkinson and de Wytt whether his work accident had caused his problems. It was also submitted, on the basis of the same authority, that he had failed to demonstrate that the material facts were not within his means of knowledge until 21 July 2007, because the evidence did not show what advice those doctors had provided to him on the question whether his symptoms were caused by his work accident. In support of those submissions reliance was placed on Kambarbakis v G&L Scaffold Contracting Pty Ltd3 for the proposition on these matters the plaintiff bore the onus of proof. Reliance was also placed on the evidence of Dr Campbell that had he been asked to assess the plaintiff in October 2004, he would have given the same opinion as that which he expressed on 31 March 2008. [32] The plaintiff gave evidence that, because of the persistence of his symptoms he saw Dr Hoffman early in 2006, resulting in his undergoing a further CT scan of the brain, which in turn led to the identification of the pituitary tumour and its removal. The plaintiff gave evidence that he believed that, following removal of the tumour, a number of his problems would resolve. It was submitted on behalf of the second defendant that there was no evidence for the proposition that the plaintiff‟s belief to that effect was reasonable. It would appear the submission was directed to the proposition that, at the time when the pituitary tumour was being investigated, and the plaintiff was being treated for it, his failure to make other inquiries had the consequence that the material facts were within his means of knowledge, because he failed then to take reasonable steps to find out these facts. [33] On 28 February 2010 Dr Hoffman wrote a report to the plaintiff‟s solicitors. It summarised the plaintiff‟s attendances on Dr Hoffman. It included the sentence (relating to February 2006), “I believed in the causal relationship between (the plaintiff‟s) neurological symptoms and the apparent significant head injury”. On the basis of this sentence, it was submitted (or so it would appear4) that in February 2006, the fact that his symptoms were caused by the work accident was within the plaintiff‟s knowledge. [34] For the third defendant it was submitted that the plaintiff had, on 1 May 2007, actual knowledge of the material facts, as a consequence of his consultation with Dr Walsh. It was submitted that there was no material difference between the diagnosis of Dr Walsh on this occasion, and his diagnosis on 21 July 2007. It was also submitted, relying on a passage from Moriarty v Sunbeam Corporation Limited5 that the facts relied upon by the plaintiff, so far as they were made known to him by the report of Dr Campbell on 31 March 2008, were not shown to be of a decisive character because the plaintiff had not deposed that, with those facts, he appreciated he had a worthwhile action to pursue and should in his own interests pursue it. Were the material facts known to the plaintiff prior to 21 July 2007? 2 [2010] QSC 52, especially at paras [32], [39], [41], [43] and [46]. 3 [2008] QCA 262 at [48]. 4 See T 2-14 line 30; T 2-15 line 12. 5 [1988] 2 Qd R 325, 333. -- 9 of 18 -- 10 [35] In some cases, it will not be particularly difficult to determine whether a person knows (as that word is commonly used) a particular fact at a stated time, for example, that a certain person was the driver of a motor vehicle when it was involved in an accident. The material facts relied upon by the plaintiff in the present case are of a different character. It can perhaps be said that these facts are not established until there is a binding judicial determination of them. However, that is plainly not necessary before it can be said that the plaintiff knew the material facts, in the context of s 31 of the Limitation Act. [36] In Wood v Glaxo Australia Pty Ltd,6 Davies JA discussed the question whether the plaintiff knew of the existence of a causal relationship between a condition she developed, and a procedure she underwent, in a way that, in my view, is of considerable assistance in the present case. His Honour pointed out that such a relationship could not have been known by the plaintiff “in an absolute sense”.7 His Honour referred with approval to a statement from an unreported decision of the New South Wales Court of Appeal in Field v Field:8 which included the following: “The submission that the mere expression of an opinion that a fact exists means that the person to whom it is communicated knows that fact is untenable.” [37] Later in the passage quoted by his Honour, it was said that: “…an unqualified opinion by an appropriate medical specialist that there was a relationship between a physical disability and an accident could, in general, result in the plaintiff knowing that there was such a relationship. In these cases, the plaintiff knows one thing for certain, that the maker of the statement has asserted the fact but he does not, in the same sense, know the fact asserted.”9 [38] Davies JA concluded that the fact that the procedure caused the plaintiff‟s condition was within the means of knowledge of the plaintiff “only when the steady preponderance of opinion or belief of a person who had taken all reasonable steps to ascertain that fact would have been that that was so”, noting that that would not necessarily occur when a favourable opinion was first communicated to the person.10 [39] Before reaching a conclusion as to whether the plaintiff knew the material facts on 1 May 2007, it is necessary to make further reference to the evidence. The plaintiff gave evidence that on this occasion, Dr Walsh advised him that he found his complaints and the situation with the pituitary tumour “very interesting”. He gave evidence that Dr Walsh said that he wanted the plaintiff to undergo an MRI scan with T2 imaging of the brain, and he suggested neuropsychological assessment. [40] Some further light on the plaintiff‟s evidence relating to the consultation on 1 May 2007 appears from his evidence about the consultation on 21 July 2007. On the latter occasion, Dr Walsh discussed the MRI results, saying they had shown no signs of any further tumours or recurrence of a tumour. He said Dr Walsh then told 6 [1994] 2 Qd R 431. 7 Wood, 441. 8 N.S.W Court of Appeal, 21 October 1981, unreported; see Wood at 441. 9 See Wood, 441-442. 10 Wood, 442. -- 10 of 18 -- 11 him that he did not believe that the plaintiff‟s problems were from the tumour, or the surgery for its removal. Dr Walsh then stated that he strongly suspected that the plaintiff had sustained a microscopic axonal injury to his frontal lobe as a consequence of the work accident. Dr Walsh advised that the clinical signs on testing were consistent with such an injury, and that it was likely that his problems were a result of the head injury sustained in the work accident. He again recommended further testing including neuropsychological assessment. He again recommended the rehabilitation program, and that the plaintiff return for a review in a few months time “to review his diagnosis”. The plaintiff gave evidence that this was the first time that any doctor had told him that his problems could be related to the work accident rather than the tumour. [41] The plaintiff was cross-examined. It was suggested to him that in the consultation on 1 May 2007, Dr Walsh had told him that the most likely cause of his problems was the work accident. The plaintiff said that Dr Walsh did not say that on that occasion; rather, Dr Walsh “threw a few ideas around” and recommended the MRI, saying “he would be able to look at it a bit closer”. [42] Dr Walsh was also cross-examined and asked about his notes from the consultation of 1 May 2007. He said that he “had the suspicion that therefore that this man has had a head injury, and certainly he gave me that history, and therefore I needed to get a better idea as to whether there was any evidence for my suspicion”. He also said that the imaging might provide “evidence to confirm the suspicion that there had been a head injury”. The neuropsychology assessment he described as a functional assessment to see whether it provided “evidence of injury to the brain matter that was causing the symptoms which the man suggested”; and that the results of that assessment might have “further reinforced the idea that he had had a significant head injury”. He was also asked whether he had formed a conclusion on 1 May 2007, particularly from what he described as an “extremely good history of frontal type symptoms”, as to the plaintiff‟s likely condition. He said that he “felt it was more likely that he‟d sustained a head injury of the brain matter in 2004 than just a pituitary disorder causing the symptoms he presented with”. He was also asked whether he discussed the “…suspicion that you formed of a brain lesion” with the plaintiff, to which he agreed. When asked whether in May 2007 he took the view clinically that the plaintiff had suffered a right cortical lesion, he replied, “I suspected he had one, so that was my provisional diagnosis.” [43] Dr Walsh also agreed that the results of the imaging did not provide any further evidence or information to assist in his diagnosis, which he also described as “the working diagnosis”. It will be recalled that Dr Walsh‟s letter to Dr Hoffman of 4 May 2007, in the concluding part, stated, “I suspect he has a right cortical lesion”; identified further steps to be taken; and stated that Dr Walsh would be in contact with Dr Hoffman “after (the plaintiff‟s) assessments”. [44] In my view, it is clear from the language Dr Walsh used in his letter to Dr Hoffman of 4 May 2007, and from his oral evidence, that he had not come to a final view about the nature of the plaintiff‟s condition in May 2007. Describing his view, he stated that he “suspected” something. He referred to his diagnosis as a “provisional diagnosis” and a “working diagnosis”. Moreover, he obviously considered that further investigations should be carried out. The fact that at least one of them, the imaging, could only provide confirmation rather than evidence disproving the diagnosis is, it seems to me, not particularly significant. The fact that such evidence -- 11 of 18 -- 12 might confirm or reinforce the doctor‟s view simply demonstrates that he thought it appropriate to search for further evidence in support of it. Indeed, he anticipated at least two, and probably three, further assessments as a result of his recommendations; and his evidence rather suggested that the results of physiotherapy might be of assistance in relation to it. [45] I accept that Dr Walsh discussed the view to which he had come with the plaintiff at the consultation on 1 May, in the sense that he expressed the view that he suspected that the plaintiff had a right cortical lesion. I do not accept that Dr Walsh expressed a firmer view about the plaintiff‟s condition. Moreover, Dr Walsh‟s evidence did not go so far as to say that he related the subject matter of his suspicion to the work accident, on this occasion. [46] Both Dr Walsh‟s oral evidence, and his letter to Dr Hoffman of 21 July 2007 would indicate that Dr Walsh did not reach a firmer view about the plaintiff‟s condition at the consultation on that date. However, I accept the plaintiff‟s evidence that on this occasion, Dr Walsh told him (for the first time) that his problems could be related to the work accident, rather than the tumour. [47] The effect of the evidence, therefore, in my view, is that on 1 May 2007 the plaintiff did not “know” that his symptoms were the consequence of an injury to his brain. The provisional nature of Dr Walsh‟s view, expressed as a suspicion both to the plaintiff and Dr Hoffman, mean that it is quite unlikely that the plaintiff had reached a state of a “steady preponderance of opinion or belief”.11 Indeed, such a state of mind would be inconsistent with the fact that, as the plaintiff knew, Dr Walsh wished him to undergo further assessments, and to see him again. It follows that the plaintiff did not know the material facts prior to 21 July 2007. [48] There is no evidence that Dr Hoffman communicated to the plaintiff any belief he held as to the causal connexion between the work accident and the plaintiff‟s symptoms. The history of investigations and referrals for which Dr Hoffman was responsible from February 2006, at least to July 2007, demonstrates that any belief Dr Hoffman had in that period about such a connexion was provisional. A communication of it to the plaintiff would not, in my opinion, have had the consequence that the plaintiff knew of the causal connexion. [49] Nor does the fact that the plaintiff knew that he suffered symptoms after the work accident, but not before, demonstrate that he knew the material facts. Such facts are not within the knowledge of the ordinary person, particularly one with the plaintiff‟s background and education. This is confirmed by his persistent enquiry of the medical profession about the cause of his symptoms; and his sense of relief when he was informed that removal of the pituitary tumour should resolve a number of his problems. Were the material facts otherwise within the plaintiff’s means of knowledge prior to 21 July 2007? [50] A material fact is, as a consequence of s 30(1)(c) of the Limitation Act, within a person‟s means of knowledge, even if it is not known by the person, unless, as far as the fact is able to be found out by the person, the person has taken all reasonable 11 See Wood, 442. -- 12 of 18 -- 13 steps to find out that fact. In my view, the plaintiff has demonstrated considerable diligence in attempting to find out the cause of his symptoms. [51] He attended on his general practitioner promptly after the accident, and returned to him when his symptoms persisted, notwithstanding the views expressed by the general practitioner. He submitted to two procedures, while under the care of Dr Pham. When the symptoms persisted, he sought the view of another general practitioner, Dr Hoffman. He underwent the testing suggested by Dr Hoffman, and attended a range of specialists for further investigation. It is highly apparent from the plaintiff‟s conduct throughout this period that he was seeking to establish the cause of his ongoing symptoms. He expressed enormous relief when a cause was apparently identified, the pituitary tumour. He accepted the risk of surgery to remove it. Both the plaintiff and Dr Hoffman regularly informed the other medical practitioners to whom the plaintiff was referred of the work accident, and the fact that it involved an injury to the plaintiff‟s head. [52] When the symptoms did not resolve after surgery, the plaintiff again pursued his inquiries. It is instructive that Dr de Wytt, who had been told of the plaintiff‟s head injury in the work accident, did not express a view about the plaintiff‟s condition or its cause. Notwithstanding the history of inquiry to that time, and the nature of Dr de Wytt‟s response, the plaintiff still persisted, which resulted in his seeing Dr Walsh. [53] As Keane JA pointed out in NF v The State of Queensland12, s 30(1)(c) of the Limitation Act speaks of a state of knowledge attainable by “an actual person who has taken all reasonable steps”, being the person who suffered the injury. His Honour observed: “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.” [54] The circumstances of the applicant, in my view, include both the applicant‟s personal resources and the applicant‟s financial resources, and the efforts the applicant has already made to find out relevant facts, as well as the results of the applicant‟s inquiries. [55] In Healy v Femdale13 the court considered that the test posed by s 30(1)(c)(ii) might be applied by asking whether the facts (presumably, those known to the injured person) “call for prudent enquiry to protect one‟s health and legal rights”. No doubt the facts known to the plaintiff called for the making of prudent inquiry by the plaintiff, but in my view, he has done substantially more than enough to satisfy this test. [56] For the second defendant it was submitted that the plaintiff should have obtained legal advice on Dr Walsh‟s view from 1 May 2007. The submission seemed to be that his failure to do so meant that he had not taken all reasonable steps to find out the material facts prior to 21 July of that year. That submission fails to pay attention to the language of s 30(1)(c). There may be occasions when the facts known to an 12 [2005] QCA 110 at [29]. 13 [1993] QCA 210. -- 13 of 18 -- 14 injured person would mean that prudent inquiry entails taking legal advice. However, the submission loses sight of the essential question, which is whether the person has taken all reasonable steps to find out the relevant material facts. The question is not whether the person has inquired about the prospects of a successful action. Indeed the submission attempts to confuse s 30(1)(c) with s 30(1)(b) (part of the latter provision, but not the former, is explained by s 30(2)). [57] I do not accept the submission made on behalf of the second defendant that the plaintiff had failed to establish that he took all reasonable steps to find out the material facts prior to 21 July 2007, on the grounds there is no evidence that he asked each of Drs Hall, Coroneos, Barry, Boothroyd, Atkinson and de Wytt whether his work accident had caused his problems. It is plain that he saw each of those doctors as a result of his attempts to find out the cause of his symptoms; and each of them was informed that he had suffered a head injury in the work accident. It seems to me to be abundantly clear that the plaintiff was, in seeing those doctors, attempting to ascertain the cause of his symptoms, and whether they were related to the head injury suffered in the work accident. Indeed, I consider a suggestion to the contrary to be remarkable. His purpose in seeing the doctors plainly included a request for their opinion about the cause of the symptoms, including whether they were caused by the work accident. [58] Moreover, I am satisfied that none of the medical specialists whom the plaintiff saw prior to seeing Dr Walsh formed the opinion that the plaintiff‟s symptoms were the result of the work accident. They were informed of this accident, and of the plaintiff‟s symptoms. Had any of them concluded that the symptoms were the result of the work accident, they would have inevitably said so in their reports. [59] I also consider the reliance placed in the submission of the second defendant on Dr Campbell‟s evidence about the view he would have formed had he assessed the plaintiff in October 2004 to be misplaced. No attempt was made to establish that the fact that the plaintiff did not approach Dr Campbell at that time meant that he had failed to take reasonable steps to find out the cause of his problems. It is plain that he did take reasonable steps at that time to find out the cause of his symptoms. [60] The fact Dr Hoffman “believed in the causal relationship” between the plaintiff‟s symptoms and the head injury suffered in the work accident does not have the consequence that the plaintiff then knew of that relationship. The question is not about Dr Hoffman‟s knowledge, but the plaintiff‟s. There was no evidence to suggest that Dr Hoffman communicated that belief to the plaintiff at that time. Indeed, had he done so, it was plainly no more than a qualified belief. That is apparent from the testing arranged by Dr Hoffman, and the fact he referred the plaintiff to a number of medical specialists. [61] In my view, the material facts were not within the plaintiff‟s means of knowledge prior to 21 July 2007. It seems to me that the better view of the evidence is that no doctor expressed a definite view about the cause of the plaintiff‟s symptoms and their relationship to the work accident until Dr Campbell provided his opinion on 31 March 2008. On reading that opinion, it appears to me that the plaintiff achieved a “steady preponderance of opinion or belief” as to the relationship of his symptom to the work accident. Were the material facts of a decisive character? -- 14 of 18 -- 15 [62] It was submitted for the third defendant that any material fact which emerged from Dr Campbell‟s report was not shown to be of a decisive character because there was no evidence from the plaintiff that he placed any importance on that advice. The submission was based on the following passage from Moriarty v Sunbeam Corporation Limited14: “In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears 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.15” [63] In that case, the plaintiff had injured his wrist in April 1981. He underwent treatment for it over a number of years. In June 1986 he was advised that the hand was permanently damaged. He sought an extension of the limitation period. The question under consideration was whether the additional knowledge of the extent of the injury which came to the plaintiff in 1986 was knowledge of a fact “of a decisive character”. The focus was on the significance of the fact, not on the identity of the person whose judgment about its significance is relevant for the test found in s 30(1)(b) of the Limitation Act. The question under consideration in Taggart16 was whether the fact was of a decisive character. In the passage referred to in Do Carmo, Deane J stated that the analogous section in New South Wales “provides that the question whether the material facts relating to the cause of action are of a decisive character is to be determined by reference to the hypothetical opinion of a „reasonable man, knowing those facts and having taken appropriate advice on those facts.‟” His Honour was not suggesting that the test depended upon the judgment of the injured person. [64] Section 30(1)(b) requires the test to be applied by reference to the judgment of “a reasonable person …”. It may be contrasted with s 30(1)(c) which formulates a test by reference to “the person” whose means of knowledge is in question. [65] The language used in s 30(1)(b) is clear. It would be a remarkable thing if a test expressly formulated in objective terms were to be converted into one, the application of which depends upon the formation of a judgment or an opinion by a particular person. Its evident intent could thus be defeated. If the third defendant‟s submission were accepted, a fact would not assume a decisive character until an injured person formed the opinion identified in s 30(1)(b), thus potentially delaying the time by reference to which the extension might be granted. In my view, in Moriarty, Macrossan J was not attempting to adopt a meaning of s 30(1)(b) which would depart from the natural reading of its words. Accordingly I do not accept the submission of the third defendant. 14 [1988] 2 Qd R 325, 333. 15 Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23, 24 and Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 251 per Deane J. 16 [1983] 2 Qd R 19, 23. -- 15 of 18 -- 16 [66] No other submissions were advanced to suggest the material facts relied upon are not of a decisive character. Accordingly, I am satisfied that they have that character. The right of action [67] The plaintiff‟s solicitors have obtained a report from Ms Charlotte Nash-Stewart, an engineering consultant, about the safety of the conditions in which the plaintiff was working at the time of his accident. In essence, she identified that the doorway through which the plaintiff attempted to pass when he hit his head was low; and that there was a protruding beam slightly above the top of the doorway, potentially concealed by a roof plate above it. In section 3 of her report she identified a number of undesirable features of the situation, including non-compliance with guidelines for headroom, and the fact that there were “poor visual clues” particularly relating to the underhanging beam because of its location and the absence of any identifying features to make it obvious to someone approaching the doorway. In s 4 of her report, Ms Nash-Stewart then discussed counter-measures, listing steps which could have been taken to reduce the risk that someone might hit his or her head while attempting to pass through the doorway. In the course of doing so, she discussed whether the steps were simple or complex, and gave consideration to their cost. The second defendant‟s submissions fastened on the language used by Ms Nash-Stewart which identified these things as steps which “could” have been taken. It was said that language was not sufficient to support a case of negligence. [68] The submissions fail to have regard to the context in which the steps were identified. The question considered by Ms Nash-Stewart is plainly one relevant in determining whether there had been negligence on the part of one of the defendants17, namely whether steps could have been taken to avoid the accident. The language used was appropriate to the context. It does not mean that Ms Nash- Stewart‟s report is not sufficient to satisfy the test in s 31(2)(b) of the Limitation Act. In my view, taken as a whole, her report provides a sufficient basis to satisfy the test, at least on the question whether there had been a failure to take reasonable care, which had caused the plaintiff‟s head injury in the work accident. Prejudice [69] The second defendant submitted that it has suffered prejudice because it had no opportunity to investigate the circumstances surrounding the accident until about 15 July 2008. Its oral submissions also relied on the fact it had not been able to have doctors examine the plaintiff or consider his condition until that time. [70] The plaintiff pointed to the fact that a statement had been obtained from Mr Olin, the only other person working with the plaintiff at the time of the accident. Mr Olin had also given evidence about the incident in proceedings in the Industrial Magistrates Court. He was then cross-examined about his recollection of events surrounding the accident. [71] The submissions for the second defendant also acknowledged that an incident log entry provided some information about the accident, no doubt completed shortly after it occurred. 17 See for example, Carolyn Sappideen and Prue Vines (eds), Fleming’s The Law of Torts (Thomson Reuters; 10th ed, 2011) 138-139. -- 16 of 18 -- 17 [72] For the second defendant, it was submitted that Mr Olin may not be available at a trial at some time in the future. No particular facts were advanced in support of this submission. It is, of course, true of every potential witness that there is a possibility that the witness may not be available by the time a matter goes to trial. This does not seem to have been regarded in other cases as a matter of significance on the question whether an extension of the limitation period should be granted. Absent any reason to think that there is a greater risk of unavailability of Mr Olin than that for any other witness, I do not think this risk is sufficient prejudice to warrant refusal of the application. [73] When reference was made to the fact that a statement had been obtained from Mr Olin, it was submitted for the second defendant that it had not been shown that the statement was admissible under s 92 of the Evidence Act 1977 (Qld). It was submitted that the evidence did not show the circumstances in which the statement was obtained. It was also submitted that Mr Olin had not signed a copy of the statement. [74] In fact the evidence showed that the statement had been provided to investigators retained on behalf of the second defendant. A copy of the statement was exhibited to the affidavit of the plaintiff‟s solicitor. That copy was unsigned. There was no evidence that Mr Olin had not signed another copy, a matter obviously within the knowledge of the second defendant. In the circumstances, I am not prepared to accept that it would not be possible for the second defendant to establish that Mr Olin was the maker of the statement. [75] An examination of the statement demonstrates that Mr Olin appears to have a good recollection of the circumstances of the accident, at least at the time when he made the statement. [76] The submissions of the plaintiff also made reference to the doorway and the nearby area where the plaintiff‟s work accident occurred. It is still possible to inspect the barge, and there have been no changes to its configuration in this area. Although it has now been painted a different colour, there are some photographs of the area, taken before that occurred. [77] In Brisbane South Regional Health Authority v Taylor18 Toohey and Gummow JJ identified a consideration relevant in that case as “whether, by reason of the time that has elapsed, a fair trial is possible”. McHugh J also identified the relevance of this consideration to the extension of a limitation period19. [78] In the present case, there is no reason to think that it is not possible to have a fair trial. That an accident occurred was made known to the second defendant very shortly after the event. Its occurrence was never likely to be in serious dispute. I am satisfied that the second defendant will not face significant difficulty in investigating the condition of the barge, and appreciating its condition at the time of the accident. Indeed, since it has retained an investigator, it may well have done so already, a matter about which I was not informed. [79] It was not suggested that the mere fact that another boat caused wash to come towards the ferry was likely to be suggestive of negligence by the person in charge 18 (1997) 186 CLR 541, 548 19 Taylor, 555. -- 17 of 18 -- 18 of the other boat. The inability to identify the other boat does not lead to a conclusion that a fair trial is unlikely to occur. While I am conscious that it is not correct to assess prejudice by examining the incremental effect of the time which has passed after the expiry of the limitation period20, it seems to me the identification of this boat may well have been problematic, no matter how early notice was given to the defendants of a potential action. A difficulty of this kind does not arise from any delay by the plaintiff, whether before or after the expiry of the limitation period. Where another party‟s negligence or other breach of duty may have contributed to the causing of a plaintiff‟s injury, that is plainly a relevant consideration; but it does not follow that it will have the same weight in every case where discretion is to be exercised. [80] While it is true that the second defendant did not have the opportunity to engage a medical practitioner to examine the plaintiff and consider his condition until about July 2008, there are documents recording the observations of a number of medical practitioners of the plaintiff‟s condition, on a relatively regular basis. I do not consider that the second defendant has been significantly disadvantaged in dealing with the nature and extent of the plaintiff‟s injuries, because it did not have the opportunity to engage a medical practitioner to examine him until July 2008. In my view, it is highly likely that there will be sufficient reliable evidence available of the plaintiff‟s condition at various points in time since the accident, to enable a fair trial to occur on the issue of quantum. Conclusion [81] I consider that this is a case where the limitation period should be extended. I propose to hear submissions about the precise form of the order to be made, and about costs. 20 See Taylor, 548-549; 554-555. -- 18 of 18 --