Arndt v Horwood & Anor [2012] QSC 104

SUPREME COURT OF QUEENSLAND CITATION: Arndt v Horwood & Anor [2012] QSC 104 PARTIES: Melinda Peta ARNDT (Applicant) -and- Rachael Ann HORWOOD (First Respondent) -and- SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966) (Second Respondent) FILE NO/S: S365 of 2011 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Townsville DELIVERED ON: 18 April 2012 DELIVERED AT: Mt Isa HEARING DATE: 18 November 2011. Final Submissions 12 December 2011. JUDGE: North J ORDER: The parties have fourteen days to make written submissions as to the terms of the order and as to costs. CATCHWORDS: PRACTICE - PROCEDURE - LIMITATION OF ACTIONS - EXTENSION OF TIME - PERSONAL INJURY - MATERIAL FACT - WHETHER OF A DECISIVE CHARACTER - WHETHER APPLICANT ACTED REASONABLY The State of Queensland v Stephenson & Ors (2006) 226 CLR 197; Hargans v Kemenes [2011] QCA 251; Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541; Limitations of Actions Act 1974 (Qld), s 30, s 31. COUNSEL: M Pope of Counsel for the Applicant R D Green for the Respondents SOLICITORS: Connolly Suthers Lawyers for the Applicant Miller Harris Lawyers for the Respondents -- 1 of 11 -- 2 [1] The applicant suffered injuries in a motor vehicle accident which occurred on 29 November 2007. The limitation period of three years provided by the Limitation of Actions Act 1974 ("the Act") passed without her having commenced proceedings. Accordingly she seeks an order pursuant to s 31 of the Act for the extension of the limitation period to enable her to prosecute an action for damages for her personal injury. [2] The matters in issue on the application were whether there was a material fact of a decisive character that was not within her means of knowledge until a date after 29 November 20091 and more particularly an examination of whether the applicant either knew the fact or took all reasonable steps to find out the fact at relevant times.2 The respondent also contends that in the circumstances even if the applicant can establish an entitlement to the exercise of the discretion provided by section 31 an order should not be made because of the prejudice arising by reason of the influction of time. [3] The date or anniversary section 31(2)(a) of the Act specifies is that date one year before the expiration of the limitation period. In the circumstances applying this date or anniversary is 29 November 2009. Accordingly the applicant must demonstrate that a material fact of a decisive character was not within her means of knowledge until after that date and in the context of this application therefore the examination of whether the applicant can make out the matters required by section 30(1)(b) and (c) involves consideration of her conduct in light of what was known by her and what might have been known by her (acting reasonably) at that date or anniversary. The Applicant's Injury and Treatment [4] It is convenient to quote from the applicant's principal affidavit sworn in support of the application3:- "3. After the accident I was taken by ambulance to the nearby Townsville Hospital and was treated in the emergency department where I underwent an x-ray of my neck. I was informed that my neck was fine, there were no broken bones and that my injury was muscular. I was then discharged. I was not prescribed any medication or given any other medical advice. 4. A few days after the accident, I consulted Mr Steven Sartori of SportsMed Kirwan regarding ongoing symptoms of neck pain, left shoulder pain and a large lump in the left neck area. Mr Sartori is my long-term treating physiotherapist. I have been seeing him since I was about 15 years old for treatment of various strains and sprains which I have suffered over the years in my dancing career. Because I had been told at the hospital that my injury was muscular, I thought that the appropriate method of treatment was physiotherapy. Mr Sartori examined me, told me to rest and do no physical exercise for about three months and to ice the lump on my neck which he told me was a haematoma. According to Mr 1 See section 31(2)(a) of the Act. 2 See paras [13] and [14] below. 3 Document 8 court file; filed 8 July 2011. -- 2 of 11 -- 3 Sartori's records, I saw him on several occasions in the period of approximately five months after the accident specifically relating to my neck pain, stiffness and tightness. On a couple of these occasions he gave me acupuncture. In this immediate post-accident period, the last time I saw Mr Sartori for my neck was on 29 April 2008. I next saw him for my neck on 10 September 2008 and I did not see him again for my neck until 12 January 2011. 5. A month or so after the accident, I consulted my massage therapist, Ms Susan Edge of "Aches All Over". As with my physiotherapist Mr Sartori, I had been seeing Ms Edge for some years before the accident for mainly full body massages for maintenance purposes to help me to continue with my dancing career and occasionally for specific dancing-related injuries such as to my left ankle and my left shoulder. In fact, I had an appointment with her for this purpose on the day of the accident which I was unable to keep. I have read her records. They show that on 9 January 2008 and subsequently I attended her for treatment related to my neck. By approximately the end of April 208, I was no longer needing treatment from Ms Edge specifically for my neck but was continuing to attend her for treatment as I had been doing before the accident. 6. I did not consult my usual GP, Dr Michael Hickey at all about the accident. According to his records, I consulted him on 16 April 2008 with a persisting cough. I recall that I mentioned in passing to him that I had been involved in a rear-end accident, had injured my neck and developed a haematoma and had been treated at the Townsville Hospital. 7. After 29 April 2008, I did not consult Mr Sartori about my neck until 10 September 2008. My next consultation with him about my neck did not occur until 12 January 2011. I did not consult Dr Hickey about my neck at all until 6 January 2011 when it was discussed as a possible cause of my problems. I did not consult Ms Edge about my neck after approximately the end of April 2008 until towards the end of 2010. 8. By approximately April 2008, I consider that I had returned to my pre-accident level of health and functionality and I remained that way until towards the end of 2010. Around October 2010 I was involved in rehearsals for a dancing concert to celebrate the 40th anniversary of the Croft Gilchrist School of Dancing. I started to experience headaches which would not respond the painkillers. I had had some headaches over the previous month or so but these always responded well to across-the-counter painkillers such as Aspro. I also had pain in my neck with restricted movement and dizziness. The dancing concert was held around the first week of November 2010 and in the period after that the headaches got worse. I consulted Dr Hickey on 1 December 2010 and he thought that my symptoms might be related to a sinus problem. He prescribed some medication for that but the headaches persisted and got worse and I returned to see Dr Hickey on 6 January 2011. He -- 3 of 11 -- 4 ordered a CT brain scan which I underwent on 7 January 2011. I returned to see Dr Hickey on 10 January 2011 to discuss the results of the CT scan and he advised me that I should return to see Mr Sartori for physiotherapy." [5] The records of the Queensland Ambulance Service, the Townsville Hospital, the applicant's physiotherapist, her general practitioner and the massage therapist were exhibited to an affidavit of the applicant's instructing solicitor.4 So far as I can determine the history of the treatment and consultations sworn to by the applicant is borne out by an examination of those documents. The records of "SportsMed"5 (which are the records of the physiotherapist Mr Sartori) deserve a particular note. They reveal that the applicant saw Mr Sartori on six occasions between 4 December 2007 and 29 July 2008. On that last occasion the records read - "Good. Discharged. Review as needed." The next attendance upon Mr Sartori was on 10 September 2008. The records of that attendance reveal that the applicant had apparently been involved in another rear end collision a week before which was described as "mild". She was complaining of cervical spine stiffness but not with headaches nor an increase in cervical pain. The examination notes suggest the physiotherapist found that there was a full active cervical range of motion. The next record of any attendance upon the physiotherapist was not until 12 January 2011 as deposed to in the applicant's affidavit quoted above. [6] There are some additional matters that should be recorded. In an affidavit of the applicant sworn on 17 November 2011 she exhibited two letters written by her solicitors to an orthopaedic surgeon, Dr John Maguire, for the purposes of obtaining a medico-legal report. The applicant swore that the matters set out in the letters were true and correct.6 [7] In the letter to Dr Maguire of 10 May 20117 the letter records that following the subject motor vehicle accident the applicant "was inactive on the advice of her physiotherapist for a period of approximately three months. After that, she returned to her pre-accident activities at much the same level as previously. For example, she continued to be involved in teaching tap and other dance, did tap and other dance herself to keep fit and choreographed musicals for Ignatius Park College and for Props Youth Theatre. She started relief teaching in early 2008 and has continued that ever since." [8] In the letter of 27 July 2011 written by the applicant's solicitors to Dr Maguire8 the following is set out:- "After the accident, she was left with a significant restriction in range of neck motion for a period of approximately four or five months and then her neck condition plateaued at a level only a little bit worse than it had been pre-accident. At that level three or four months post-accident, she was able to continue as she had done before the accident with the same degree of 4 Affidavit of Simon Langley Turner filed 30 May 2011, document 2 on court file. 5 Exhibit 1 on the application. 6 See the affidavit sworn 17 November 2011 which was read and filed before me by leave on 18 November 2011 and particularly exhibits MPA1 and MPA2. 7 Exhibit MPA1 to the affidavit of the applicant sworn on 17 November 2011. 8 Exhibit MPA2 to the applicant's affidavit sworn on 17 November 2011. -- 4 of 11 -- 5 support from massage and physiotherapy as she had been receiving before the accident. In the immediate pre-accident period, our client was working as a retail sales assistant at 'Swim Swim Swim'. Following the accident, she had a period of approximately one week off work, perhaps a little more and then returned to work as she had been doing pre-accident. In approximately mid-2008, after graduating with a Diploma of Education from James Cook University, she started to work as a casual relief teacher. She has continued to work as a casual relief teacher since then and it was not until the deterioration in her condition towards the end of 2010 that there was any impact on her capacity to work as a casual relief teacher." When asked in evidence what she meant by the term "plateaued"9 she said: "It had improved to a - a level where I could go back to sort of normal duties, do you call it sort of dancing normal duties and teaching and everything. So it sort of stayed at sort of one level. It didn't sort of go worse or get, you know, it sort of got back to almost normal until about October/September and everything gradually started to go downhill."10 [9] The applicant's account of the deterioration in her condition in around October 2010 and the medical treatment she subsequently sought in December 2010 and January 2011 are summarised in paragraph 8 of her affidavit quoted above.11 She first consulted her solicitor on 8 March 201112 by which time the limitation period had expired. Mr Turner promptly began to investigate the matter including the circumstances of the accident. The steps he took to investigate the matter are set out in his various affidavits. As part of Mr Turner's investigations she sought a medico- legal opinion from an orthopaedic surgeon, Dr John Maguire. The applicant relies upon the report of Dr Maguire dated 20 July 2011 in support of her application.13 This affidavit must be distinguished from an earlier report also dated 20 July 2011 which is also exhibited to his affidavit.14 [10] According to his report Dr Maguire noted on examination significant muscle spasm on the left side of the cervical spine and in other regions. He noted a marked decrease in the range of motion to the right but noted no neurological deficit in the upper limbs. He diagnosed that the applicant had sustained a soft tissue injury to the cervical spine with significant restriction in range of motion and muscle spasm and ongoing headaches. He expressed the opinion that the applicant's prognosis was poor and noted that while she had remained with symptoms for approximately five months following the accident and had then been able to return to normal activities her symptoms had recently returned and he expected that they would be ongoing. His opinion was that the applicant's symptoms were consistent with the complaint she described and the mechanism of the injury described. He expressed 9 A term used by her solicitors but also adopted by the applicant in evidence. 10 Transcript 1-33 line 650-60. 11 See [4] above. 12 Paragraph 3 affidavit Simon Langley Turner filed 8 July 2011, document 7 court file. 13 See exhibit JJM3 to the affidavit of John Joseph Maguire filed 9 November 2011, document 11 court file. 14 The preparation of and presentation of the application on behalf of the applicant has been complicated by Dr Maguire's evident misunderstanding of his instructions and the applicant's account of the events and suffering subsequent to the subject motor vehicle accident. -- 5 of 11 -- 6 the opinion that her injury was wholly attributable to the subject accident and he assessed that the applicant had sustained a 7% whole person impairment. [11] For their part the respondents pointed to the circumstances that the applicant had been required to take some time off work post-accident, that she had required treatment of one sort or another from her general practitioner, her physiotherapist or her massage therapist at times over approximately five months post the motor vehicle accident. Further that she had experienced symptoms of neck pain, haematoma and restrictions in movement to the extent that she had required people to drive her to appointments at times15, that her dancing had been affected by her restriction16 and that she had only ever recovered to the extent of "90%" of her pre- accident health.17 [12] When the applicant was asked about her condition returning to "almost normal" she said: "Well, it wasn't 100%. I'd say 90%. Once you have a muscular injury … it's never quite the same. It's like with anything, you tear a hamstring, you've got to warm up a lot for dancing. You've got to focus on that to make sure it's really warmed up so I had to each time before I went to dance make sure my neck was really nice and warmed up so I wouldn't have any issues. So it was like a - treated like a normal injury."18 [13] She was also asked what symptoms she suffered from April 2008 to 2010 and she answered: "Very little symptoms. If there was anything it was just not much at all. There was no headaches, very little in neck stiffness because I kept it all supple and loose and got treatment and maintenance all the time. So I rarely had anything. … The only thing I couldn't do in modern was an angel roll which is where you sort of do a ponche where you tip and put your head down and forward roll … So it was a decreased movement." The Material Fact and The Parties' Contentions [14] On behalf of the applicant it was submitted that the material fact that was of a decisive character was that "until the applicant's deterioration was attributed to the accident, she did not have a cause of action worth pursuing".19 In written submissions the applicant's counsel submitted that given the applicant had only two weeks off work immediately post the motor vehicle accident and reached what appeared to be a good, stable condition some months post-accident in early 2008, there was no need for her to take advice either from a specialist or from a solicitor until after the deterioration of her condition and its persistence in late 2010 and early 2011. [15] For the respondent it was submitted that in light of her suffering post-accident she had not taken all reasonable steps to ascertain the nature and extent of her injury. It 15 Transcript page 16 line 10-20. 16 Transcript page 34 line 1-10. 17 Transcript page 34 line 1-10. 18 Transcript 1-34 line 2-10. Thus drawing together matters within s 31(1)(a)(v) and s 31(1)(b)(i) of the Act. 19 See transcript 1-56 line 18. -- 6 of 11 -- 7 was submitted that it was within her means of knowledge to seek a specialist opinion, that in light of Dr Maguire's evidence if she had consulted him in say 2008 he may have given the same diagnosis.20 As I understood the submission from the respondent it was that the applicant had not taken all reasonable steps to find out the nature or extent of her personal injury by failing to consult an orthopaedic surgeon when she was symptomatic in 2008 (see for example section 30(1)(c)(ii) of the Act). Discussion [16] In State of Queensland v Stephenson & Ors21 the High Court when considering the relevant provisions of the Act said: "24. The additional provisions made in s 30(1) do not assist the submission of the State. The phrase 'a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant' has elements which suggest both objectively ascertainable criteria and also a response to the existence of those criteria. The objectively ascertainable criteria include those facts and circumstances included by para (a) of s 30(1) in the expression 'the material facts relating to a right of action'. Paragraph (a) states that the material facts relating to the right of action 'include' certain matters. These include the fact of the occurrence of the acts or omissions upon which the right of action is founded, the identity of the tortfeasor, the fact that the breach has caused personal injury, the nature and extent of the personal injury and the extent to which it was caused by the tortious act or omission. 25. The ascription to material facts of the character of 'decisive' looks to the response of an actor. It is here that the exegesis supplied by para (b) of s 30(1) comes into play. The court is to consider the response of a 'reasonable person' in the manner explained in that paragraph. The particular claimant is to enjoy the advantage conferred by the provision in s 30(1) of the making of an extension order only by satisfaction of criteria which look to the response of a reasonable person. In this way, s 30(1) assists and controls an understanding of the compound conception in s 31(1). 26. This understanding of the significance of the explanatory provisions in paras (a), (b) and (c) of s 30(1) assists rather than weakens the construction which favours Messrs Stephenson, Reeman and Wrightson. The relevant provisions of ss 30 and 31, read together, indicate what it is that, if not within the means of knowledge of the applicant until a date after the relevant date, provides the necessary step for a successful application for extension. 27. Read in this way, s 31 addresses the injustice which would arise if a plaintiff were to be met with the immovable barrier raised by the 20 See for example transcript page 1-50 line 1-15. 21 (2006) 226 CLR 197. -- 7 of 11 -- 8 expiration of the limitation period where the plaintiff neither would nor should have sued in time because of the lack of the means of knowledge of a material fact of a decisive character which related to the right of action. ….. 29. The better view is that the means of knowledge (in the sense given by para (c) of s 30(1) of a material fact is insufficient of itself to propel the applicant outside s 31(2)(a). For circumstances to run against the making of a successful extension application, the material fact must have 'a decisive character'. Whether the decisive character is achieved by the applicant becoming aware of some new material fact or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say, as the plaintiff's submit in their written submissions, that in a sense none of the material facts relating to the applicant's right of action is of a decisive character until a reasonable person 'knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing' the features described in sub- paras (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court."22 (Emphasis added.) [17] On the view I take of the evidence and the plaintiff's submissions the material fact contended for by the plaintiff was that the re-emergence of the symptoms in late 2010 which persisted into 2011 and continued was caused by the injury sustained in the 2007 accident. That circumstance, it is almost trite to observe, can only have become known to the applicant after the date or anniversary referred to in paragraph [3] above, 29 November 2009. Further if that fact is capable, in the circumstances, of becoming one of a decisive character it can only have done so subsequent to 29 November 2009. [18] The applicant gave evidence before me and was cross-examined. Whilst she was inclined to become emotional when giving evidence, particularly when she was cross-examined about aspects of her health and the effect of injuries and illnesses upon her, I formed a generally favourable impression of the applicant and I am prepared to accept her evidence relating to the recovery from the motor vehicle accident in the early part of 2008 and that it was not until late 2010 when she began to suffer again from symptoms of pain or headaches. [19] The matter therefore of the reasonableness of her conduct in not consulting either an orthopaedic surgeon or perhaps a solicitor for legal advice in 2008 and 200923 falls to be considered. [20] The submission of the defendant concerning the reasonableness of the applicant's conduct24 overlooks the significance of the treatment and advice the applicant 22 See the Reasons of Gummow, Hayne & Crennan JJ at (2006) 226 CLR 197, [24], [25], [26], [27] & [29]. 23 Recall the relevant date or anniversary at 29 November 2009. 24 Recall paragraphs [15] above. -- 8 of 11 -- 9 received post-motor vehicle accident. The evidence of the applicant bearing upon this25 was that when she was initially examined at the Townsville Hospital and x- rayed she was reassured that the x-rays did not reveal a significant injury. The advice she received from the physiotherapist and the others who treated her or saw her was that her injury was muscular and would respond to treatment. By April 2008 she had significantly recovered and had only lost income for approximately two weeks. That situation persisted until late 2010. It was not until 2011 that she received expert medical advice that she may have suffered a disability that was permanent and that the deterioration in her condition in late 2010 and into 2011 was attributable to the 2007 motor vehicle accident. [21] In Hargans v Kemenes26 Fraser JA said27: "[26] In HWC v Corporation of the Synod of the Diocese of Brisbane, upon which the appellant also relied, Keane JA observed that 'it is not the policy of the courts in the application of s 31 of the Act to penalise an injured person who makes a reasonable decision to try to get on with life rather than a decision to litigate upon a questionable basis.' Keane JA referred also to the reference by Thomas JA in Pizer v Ansett Australia Ltd to the earlier observations of the court in Healy v Femdale Pty Ltd 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] 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." (Footnotes omitted.) [22] In the circumstances of the advice the applicant was given post-accident, the success of the treatment, the relatively minimal interference with her employment and the 25 Recall paragraphs [4] above. 26 [2011] QCA 251. 27 [2011] QCA 251 at [26]. -- 9 of 11 -- 10 nature and the extent of the recovery she experienced in 2008 and continuing through 2009 (and even into 2010) it was reasonable for the applicant to seek neither specialist orthopaedic or other suitably qualified specialists' medical advice or for that matter the advice of a solicitor. In the circumstances the applicant has satisfied the requirements of section 31(2) of the Act entitling her to, subject to discretionary considerations an extension of the limitation period.28 The Exercise of the Discretion [23] For the respondents it was contended that the applicant had the onus of demonstrating that the justice of the case required a favourable exercise of the discretion and that in order to demonstrate this she should demonstrate that an extension of the limitation period would not result in significant prejudice to a prospective defendant in the context of a fair trial.29 [24] The respondents contended that the prejudice the defendant in any trial would suffer arose from the delay between the initial accident and the emergence of symptoms in late 2010 and early 2011 that would necessarily arise because of difficulties for specialists in considering issues such as the attribution of those symptoms to the relevant motor vehicle accident. It was submitted that this matter was complicated by reason of the applicant's own inability to clearly recall some aspects of the history of her suffering, condition and wellbeing over the relevant years and also by reason of the circumstance of the intervening motor vehicle accident that apparently occurred in early September 2008.30 [25] No doubt some difficulties arise in the circumstances for the prospective defendant occasioned by the circumstance of the late notification of the accident and injury and also because of some of the matters related above. As against that there is a reasonably good picture available of the applicant's initial injury and treatment which is demonstrated in the exhibits tendered before me and in the documents exhibited to the affidavit of the applicant's solicitor31. All of these documents will be available to the respondent to refer to experienced professionals for them to consider. The circumstance of the intervening motor vehicle accident, so far as is recorded or noted in the physiotherapist's notes suggests that it was a mild accident and had little effects upon the applicant. Assuming the applicant to be a reliable reporter and historian an experienced specialist asked to give a medico-legal opinion should have, in my view of things, little difficulty in disentangling matters and offering an opinion upon these issues. [26] Moreover from the perspective of any trial Court, the matters in issue in this case are far from complicated nor do they involve concepts or issues that make it difficult for a trial Judge to consider and address. In the circumstances I take the view that it is possible to have a fair trial of the issues that may fall to be agitated before a trial Judge and accordingly I propose to exercise a discretion in favour of the applicant. Order 28 There was no issue raised suggesting that section 31(2)(b) had not been satisfied in the circumstances. 29 Referring to Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 and the respondent's written outline of submissions at paragraph 21 and following. 30 See the reference to that in the physiotherapist's records discussed in para [5] above. 31 See for example the affidavit of Simon Langley Turner filed 30 May 2011, document 2 on the court file. -- 10 of 11 -- 11 [27] In the circumstances I propose to make an order in favour of the applicant extending the limitation period. Whether proceedings have been commenced or whether a particular order is needed extending time to a certain date, I am unsure. I propose to therefore to invite parties to make submissions in writing within fourteen days as to the formal order I should make and also as to costs. -- 11 of 11 --