Baker v Coles Supermarkets Australia P/L [2012] QDC 7

DISTRICT COURT OF QUEENSLAND CITATION: Baker v Coles Supermarkets Australia P/L [2012] QDC 7 PARTIES: ANGELEQUE JACQUELINE MAREE BAKER (Applicant) V COLES SUPERMARKETS AUSTRALIA PTY LTD (Respondent) FILE NO/S: 4792 of 2011 DIVISION: Civil PROCEEDING: Originating Application ORIGINATING COURT: Brisbane DELIVERED ON: 31 January 2012 DELIVERED AT: Brisbane HEARING DATE: 15 December 2011 JUDGE: Dorney QC, DCJ ORDERS: 1. Application dismissed. 2. Applicant to pay the respondent’s costs of and incidental to the application to be assessed on the standard basis. CATCHWORDS: LIMITATION OF ACTIONS – Extension of limitation period – continuing pain – no “new” diagnosis, simply nature of permanent injury confirmed and operation advised which gave pain relief – whether maintaining work, through avoiding manual labour, sufficient in circumstances to forestall facts becoming decisive – whether, in any event, prejudice giving rise to likelihood of unfair trial Limitation of Actions Act 1974 s 30(1)(a), s 30(1)(b), s 30(1)(c), s 30(1)(c)(ii), s 31, s 31(2)(a) Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327 Hertess v Adams [2011] QCA 73 Muir v Franklins Limited [2001] QCA 173 NF v Queensland [2005] QCA 110 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 -- 1 of 10 -- 2 Pizer v Ansett Australia Limited [1998] QCA 298 State of Queensland v Stephenson (2006) 226 CLR 197 Sugden v Crawford [1989] 1 Qd R 683 COUNSEL: S D Anderson for the Applicant C C Heyworth-Smith for the Respondent SOLICITORS: Shine Lawyers for the Applicant Dibbs Barker for the Respondent -- 2 of 10 -- 3 Introduction [1] The applicant seeks an extension of the limitation period under the Limitation of Actions Act 1974 (“LAA”), pursuant to s 31, with respect to a claim against the respondent for damages for personal injuries sustained by the applicant on 23 August 2005, together with supplementary orders. Although no date of extension was sought, even in the Amended Originating Application for which leave to file was given at the hearing, it is common ground that the extension of the period, if granted, would be to 7 September 2011. At the hearing of the application on 15 December 2011, besides giving leave to amend the Originating Application filed 25 November 2011 (for the purpose of the substituting the respondent’s name for the original party as named), I gave leave to the respondent to read and file the affidavit of Stephen John Murray, affirmed 15 December 2011, and a further affidavit of Kirsten Louise Reece, sworn 14 December 2011. The earlier affidavit was also read, filed 13 December 2011. [2] The material relied upon by the applicant consisted of the affidavit of the applicant filed 25 November 2011, as well as the affidavit of Aimee Elizabeth Quemard, filed 25 November 2011. [3] By leave, the applicant was cross-examined, after leading some further evidence in response to the “new” material filed on behalf of the respondent. [4] The main questions to be determined are: whether what was within the means of knowledge of the applicant at the relevant time could then be characterised as material facts of a decisive character; and, considering discretionary relief, whether there is such real and marked prejudice to the respondent that justifies an exercise of discretion against the extension. It is clear from the material relied on that the claim would be within this Court’s jurisdiction. Background [5] The respondent’s written submissions contained a Chronology. I can detect nothing in the applicant’s written and oral submissions which disputes, in any relevant way, that chronological list. Accordingly, I will primarily rely upon that Chronology to give the following history of relevant matters to date. [6] The applicant is currently aged 36, having been born on 8 August 1975. [7] The applicant: commenced manual employment with the relevant Coles entity at Greenslopes on 27 March 2000; transferred to Coles Beenleigh on 1 February 2003; and stated that she was injured at Beenleigh on 23 August 2005 while a meat packer/labourer. [8] Her first attendance was on a GP, Dr O’Kane, on 25 August 2005, to whom she complained that she had injured her right shoulder lifting a packing tray of meat on 23 August 2005 and that the shoulder started to hurt that afternoon. She had three further attendances on him up to and including 31 August 2005. [9] On 29 August 2005, a WorkCover Medical Certificate was issued concerning the applicant and referring to a “cervical spine and shoulder sprain”. On that date, also, there began four sessions of physiotherapy ending on 5 September 2005. [10] In her application for compensation, dated 1 September 2005, the applicant stated that she was lifting packing trays “from trolley to packing bench”. On the same date, an employer’s report referred to her transferring a stack of “8 empty mt trays to a bench from a shelf” and that, while turning “towards the bench”, the complainant had said she “felt a twinge in (her) R shoulder blade”. -- 3 of 10 -- 4 [11] The applicant continued to work, though on a suitable “duties plan”, on 7 September 2005, such a plan to continue until 1 December 2005. [12] On 23 September 2005, the applicant returned to work on a “work plan”, effective to 19 October 2005. [13] Between 5 October 2005 and 30 November 2005, the applicant underwent 8 sessions of physiotherapy. A treating physiotherapist noted that the complainant had an “acute exacerbation” of a right shoulder injury and reported that “she cannot cope with 8 hour shifts”. [14] On 29 November 2005, the applicant transferred from Coles Beenleigh to BI-LO Ormeau, which later became Coles Ormeau. The applicant’s affidavit stated that she transferred because she was trying to reduce her workload and at the BI-LO the butchers did the lifting of trays onto the trolleys and she felt she would be better able to cope. [15] On 1 December 2005, pursuant to a Medical Certificate given by Dr Brad Gillis, dated 30 November 2005, the applicant was stated to be fit to work, with no further treatment required. [16] Nevertheless, in late February 2006 and early-May 2007, the applicant attended General Practitioners with right shoulder complaints, for which an x-ray and ultrasound report were obtained on 11 May 2007. Importantly, the x-rays and ultrasound of the right shoulder, taken by and reported on by Dr Ramsing, noted that a “bursitis with impingement on abduction” was present. When Dr Gillis at the Crestmead Medical Centre received these results in 11 May 2005, he noted also that the “scan shows bursa impingement”. [17] Importantly, according to the report of Dr Gillett, an orthopaedic surgeon, of 3 March 2011, the applicant had ongoing symptoms with the right shoulder in June 2007 and had stated to that practitioner that her GP (apparently Dr Gillis, who made a note to that effect on 11 May 2007) advised her that she cease employment in the work that she had been doing at the Coles, whereupon she did cease such employment on 24 June 2007. [18] At that time, the applicant commenced work, in administration, for Hanson Construction. [19] After the expiration of the limitation period on 23 August 2008, the applicant attended Corrective Chiropractic (on 27 August 2008) to whom she stated: that she had had her right shoulder condition for some two and a half years; that it was getting worse; and that her current complainants were that it interfered with, or stopped her from doing, both work and sleep. In all, there were some 25 attendances on that chiropractic service up to 9 November 2009. [20] Between 2008 and 2010, the applicant attended on further General Practitioners complaining of pain in her shoulder, of Mobic not helping with shoulder pain, and of needing relief from chronic pain in her right shoulder. Another radiology report, by Dr Olivotto dated 11 November 2009, stated that there were features suggestive of “supraspinatus tendonosis” and “subdeltoid bursa effusion” “suggestive of underlying bursitis”. To a further GP, Dr Woollons, on 18 February 2010, she stated that she had a chronic problem, intermittent for six years, in the right shoulder and that she had got good relief from a steroid injection some three months ago, but that it had worn off and it was sore again. Dr Woollons gave her a steroid injection on the following day. [21] In April 2010, the applicant left Hanson Construction and commenced working as a medical receptionist at Kenmore Medical Practice. [22] On 28 April 2010, she attended on Dr Treffene, an orthopaedic surgeon, referring to an “impingement” to her right shoulder that she had had “since 2005” and had -- 4 of 10 -- 5 stirred it while lifting heavy trays overhead at Coles. She further stated that she was now in an office job and “had to do that due to pain”. She further indicated that she recently had two steroid injections with good relief, with a third injection given that day. [23] She attended Dr Treffene again on 16 July 2010 complaining that the pain was back again and that, although she had a good response to the third steroid injection, the pain had returned. After a CT scan of the right shoulder on 23 July 2010, surgery was recommended by Dr Treffene and carried out at Ipswich Hospital on 7 September 2010 (by way of a right arthroscopic shoulder and sub-acromial decompression). [24] The Notice of Claim was served on 27 October 2010 claiming a discrete injury on 23 August 2005 for a right shoulder bursitis. [25] Thereafter, reports were obtained from various orthopaedic surgeons and an occupational therapist. Dr Gillett diagnosed the condition as “subacromial bursitis and possible labral impingement” and Dr Cutbush as “a strain injury to her rotator cuff” which “progressed to bursitis and tendonitis”. These diagnoses show that the operation by Dr Treffene revealed no “new” diagnosis, simply different treatment. Oral Evidence of Applicant [26] When examined on her application for compensation dated 1 September 2005 and, in particular, the explanation of what she was doing at the time that she sustained her injury, and how it happened, the applicant stated that she “mixed her words” in that she was lifting only one tray and she was also lifting it “to” the trolley, “from” the packing bench. She further stated that there were no witnesses to the incident, despite having stated in that application that Matthew Burke was a witness present at the time of injury. Rather, she stated that both Matt Journeaux, who was a witness to her signature on the application, and Matthew Burke were persons to whom she stated the injury had occurred. She also stated that she reported the injury to Vanessa Heath and spoke to her about taking a tray from a bench and moving it to a trolley and that that involved her lifting it above her head. It is not in dispute that Vanessa Heath signed a Referral and Consent Form under the hand of the applicant, as the referring manager, which form was dated 25 August 2005 and referred to muscle soreness of the right shoulder blade. [27] As to the employer’s report of 1 September 2005, the applicant stated that she had not seen that before and that she was not aware of a person named Jodie Parkinson, now Jodie Corlett, denying that she had spoken to this person. With respect to a Jon Kinsman, a safety officer, the applicant stated that she did not know him and that the only contact she had so far as any investigation was concerned was some “lady”. [28] In cross-examination, the applicant readily conceded that she moved from Beenleigh to Ormeau because of acute pain, because it alleviated the loads she would carry, because it was easier at Ormeau, and because the butchers there lifted such trays. Concerning leaving Coles in mid-2007, she freely admitted that she had pain and discomfort, even though it had been lighter work at Ormeau and even though she worked one day less than at Beenleigh. She further admitted that the GP had told her she was not suited to the work she was doing at Coles and that she should not be doing heavy lifting, certainly not full-time. [29] In further answers in cross-examination, she again readily conceded that she had undertaken physiotherapy between 2005 and 2010, and that from August 2005 to 2010 the pain had not improved but, rather, was the “same”. -- 5 of 10 -- 6 [30] Further, in cross-examination, she readily conceded that there had been a financial cost to the leaving of Coles in 2007 and that the treatment and pharmaceuticals had also cost her money. With respect to the financial loss, the difference between her income, on a per week basis, between Beenleigh and Ormeau was stated to be approximately $100.00. Thereafter, the applicant received a higher income than she had been previously receiving. [31] The applicant admitted that after the surgery performed by Dr Treffene the pain was a lot less, that she could go back to work part-time and that she felt that she could now undertake full-time work again. Nevertheless, she stated that she had not considered going to an orthopaedic surgeon before 2010, primarily because no General Practitioner had recommended it. [32] As to how the incident occurred, she denied that she had stated to anybody at her employer’s place of work that she was lifting “8” empty meat trays, since they were not her words. She also denied that she told anyone from her employer that she was lifting lamb roasts, stating that it was simply a “tray of meat”. [33] She gave evidence that, when examined by Dr Cutbush, an orthopaedic surgeon, the details of the employer’s report did not come up, but that she did tell that practitioner that she was, contrary to her original application – but consistent with the evidence that she was now giving – lifting the tray from the packing bench to the trolley. When questioned as to why her “report” in her Application was different, she stated that she was in pain and that the employer knew what happened. [34] In re-examination, the applicant stated that one of the reasons that she moved from Coles Beenleigh to Coles Ormeau was that it was closer to home. Relevant Questions [35] It has not been put in issue by the respondent that there is sufficient evidence to establish a right of action on the applicant’s part, apart from a defence based on the expiration of the period of limitation. Concerning the interpretation of the relevant extension provisions of the LAA, there is no dispute about what provisions apply. I do not intend to set those out in full, as they have been well examined by the numerous decisions in this field of enquiry, over many decades. [36] Apart from matters as to the exercise of the relevant discretion, the real question that lies for determination here is whether a (relevant) material fact of a decisive character was within the means of knowledge of the applicant before 7 September 2010: see s 31(2)(a) of the LAA. [37] The important aspect of s 30(1)(a) here is “the nature and extent of the personal injuries so caused”, insofar as it identifies a relevant material fact: see s 30(1)(a)(iv) of the LAA. The “decisive character” pursuant to s 30(1)(b) is the composite one of reasonable prospects of success, damage sufficient to justify the bringing of an action and the applicant’s own interests and circumstances showing this character. [38] As for s 30(1)(c), the aspect of the means of knowledge is contended by the applicant to be whether this applicant has taken all reasonable steps to know the “significance” of her injury. [39] As to the expression “means of knowledge”, part of the majority of the High Court in State of Queensland v Stephenson (2006) 226 CLR 197 held that an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts coincides with the circumstance that a reasonable person with the applicant’s knowledge would regard the facts as justifying and mandating that an action be brought in the applicant’s own interests, adding that if -- 6 of 10 -- 7 this conjunction of circumstances first occurs before the commencement of the last year of the limitation period, no application for an extension can be brought but, if the conjunction occurs after the commencement of that last year, the court is empowered – if the other criteria in s 31 are satisfied – to extend time for one year from the date of that conjunction of circumstances: per Gummow, Hayne and Creenan JJ at 208 [30]. Sugden v Crawford [1989] 1 Qd R 683 expressed the implicit negative proposition that time will not be extended where it is apparent, even without the emergence of the “newly discovered” facts, that a reasonable person would have brought the action: see Connolly J at 685. Sugden is instructive in that the “nature” of the injury there remained unidentifiable, being thought to be the type which in the ordinary course of events ought to have improved over time: at 686. [40] As for what is encompassed by the taking of all reasonable steps within the meaning of s 30(1)(c)(ii), Keane JA, then speaking for the court, observed in NF v Queensland [2005] QCA 110 that the section speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps (being the particular person who has suffered the particular personal injuries): at [29]. He then added that whether an applicant for an extension has taken all reasonable steps can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant: also at [29]. [41] The concern that sometimes arises when the relevant material fact deals with the nature and extent of the personal injury is illustrated by the judgment of Thomas JA, with whom Pincus JA and Byrne J agreed, in Pizer v Ansett Australia Limited [1998] QCA 298. Thomas JA noted that, at one end of the spectrum, a case of latent symptoms of an apparently trivial injury, followed by eventual discovery of a serious condition, would plainly justify an extension but, at the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss and followed by belated realization that the consequences are likely to be worse than contemplated will not justify an extension, observing that, somewhere between these extremes, there is a range of cases where different minds might reasonably form different assessments: at [20] (at folio 12 of his reasons). [42] If it is difficult, if not impossible, to so marry the factual circumstances in one case so that they achieve a situation of being decisive of the outcome in another case, particularly where the first decision is one of first instance only. Outcome of Legal Inquiry [43] The applicant’s primary contention is that there is nothing in the whole of the evidence to indicate that the applicant knew, or ought to have known, that her injury was such that she required surgery until 7 September 2010. As deposed to by the applicant, she was “unaware” of the “significance of (her) injury” or the “need for surgery” before consulting Dr Treffene. The gist of the contention appears to be that the applicant was unaware of the permanent nature of the injury and, therefore, the necessity for operative relief. [44] For its part, the respondent’s contention is that the fact alone that surgery might somewhat alleviate the applicant’s condition – as it has done – is not the relevant material fact because the applicant was aware, before the relevant one year period (prior to 7 September 2011) could commence, of the “economic seriousness of her injury”. [45] In responding to the contention by the respondent that both the applicant’s “self- reports” as well as the reports of relevant medical specialists show that the applicant -- 7 of 10 -- 8 knew of the nature and impact of her injury on her ability to perform manual labour before September 2010, as well as the significant impact on her lifestyle and activities of daily living (including interruption to her sleep), resort is had by the applicant to the following facts: first, that the complainant eventually left Coles for a better job; secondly, that, although she was originally told by her General Practitioner that if she continued with manual work she would never recover, she did recover (but that was only because of the cortisone injections from which she obtained relief, the relief was clearly temporary and was not effected until 2009- 2010); thirdly, that although she went to many General Practitioners, she was not referred to an orthopaedic surgeon until after the beginning of the last year of the original limitation period; and, fourthly, that the applicant believed that changing her job would lead to the avoidance of permanent injury. In response to the respondent’s submission that, even if there were economic advantages in leaving Coles, the applicant would still be at a disadvantage on the open labour market, the complainant contends that she would have gone back to work full-time doing labouring work if necessary. The trouble is that she would still be disadvantaged because of the inevitable employer’s duty regarding employees known to have continuing restrictions. [46] In terms of the “conjunction of circumstances” referred to in Stephenson, a reasonable person with the applicant’s knowledge (and background) would have regarded the facts as justifying and mandating that an action be brought in her own interests by early 2010, if not earlier. The outcome of the action merely has to be “worthwhile” (see Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327 at [22]), not necessarily within this Court’s jurisdiction. The applicant had before that time been informed of the causative relationship between the pain in her right shoulder and the incident of August 2005, being, in fact, advised in mid 2007 by her General Practitioner that the “bursa impingement” which she had meant that if she continued working for Coles in a labouring capacity she would “never recover”. The fact is she never did recover, although she ceased employment as a labourer with Coles. By early 2010 (at least) that conjunction of circumstances had arisen. Even though informed and treated by GPs only, she “knew” the type of injury and its effects, through such GPs. The steps that she took were reasonable in her circumstances. Given that the condition in the right shoulder did not permanently improve (even after taking work in administration and, even in April 2010, as a medical receptionist), given that she was aware that pain would accompany any return to labouring work, given that she had lost income when moving from Coles Beenleigh to Coles Ormeau (even if after that she received more income because, without relief, she could not go back, if necessary, to such work without pain), and given that she knew the nature and continuing significance of her injury (though not the alleviating “cure”), it is apparent that this applicant, appropriately advised, ought to have commenced her action. After all, the diagnosis by Dr Treffene confirmed why the pain continued (which continuation the applicant well knew); and Dr Treffene’s surgery has narrowed, rather than broadened, its otherwise continuing debilitating effect. [47] While it is true that the surgery performed by Dr Treffene has led to an alleviation of at least the worst aspects of the pain, what is crucial is that before that operation the knowledge that she did have was that the pain was not improving in any permanent way, that the pain had led to her obtaining jobs which required lighter duties, and that there appeared to be no avoidance of the continuing difficulties. Therefore, there was permanence to the effects of the injury. Dr Treffene’s -- 8 of 10 -- 9 imparting of knowledge was not the event that made the facts decisive: they already were. [48] In such circumstances, the applicant did know, prior to 7 September 2010, relevant material facts and they were of a “decisive character” because the circumstances that had developed to that time meant that the facts that she already knew had already acquired that character. They are different from the facts concerning Mr Stephenson in Stephenson where the facts did not become decisive until after the critical date. There is not, as there, any circumstance on a par with the identified facts that changed his knowledge, and the material facts within his means of knowledge, decisively. [49] On that outcome, it is unnecessary, then, to consider issue of discretion. [50] But, if I should be wrong, it would be appropriate to consider the matter of discretion in the context of the question of prejudice. Prejudice [51] Should it be necessary to consider this issue, as Muir v Franklins Limited [2001] QCA 173 instructs, an appropriate time for prejudice to be assessed may be when notification is received that the claim in question is being seriously pursued, with the fact that the recipient of the claim carried out investigations prior to that date being also relevant to the question of prejudice: at [60]-[61]. That approach can apply here, also, as illustrated by Hertess v Adams [2011] QCA 73 which, however, chose the appropriate time as the date of the extension application: per Muir JA at [12]. [52] Here, the respondent would have first known of the seriousness of the applicant’s pursuit of the claim on 27 October 2010 when the notice of claim was served. It had not carried out any prior investigations. There is no real difference between 27 October 2010 and now, regarding prejudice. [53] As addressed by Keane JA in NF, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 is concerned to ensure that an extension of time under the LAA should not become the occasion for a trial which is “unfair to the defendant”: at [43]-[44]. Further, he held it as authority for the following propositions: that the onus is on the applicant who has satisfied the requisite conditions to show good reason for the exercise in his or her favour of the discretion vested in the court by that provision; that the principal consideration which guides the exercise of that discretion is a concern whether a claim, which is prima facie out of time, may yet be fairly litigated; and that, if a fair trial is unlikely, the discretion conferred should not be exercised in the applicant’s favour; at [44]. [54] What has been demonstrated here by the respondent is that the memories of some potential witnesses have faded and that, from the respondent’s investigations, one such who is unavailable is Matthew Burke. It is also clear from the applicant’s evidence – which I accept she gave truthfully – that, although Matthew Burke was mentioned as a “witness” by her in her application of 1 September 2005, there were, according to her, no witnesses. Given the fact that Matt Journeaux was also around at that particular time, being a witness to the applicant’s signature on the application, it may, initially be difficult to see that the mere absence alone of Matthew Burke yields the necessary unfairness. But, as advanced by the -- 9 of 10 -- 10 respondent, the inconsistencies both between the different versions given by the applicant and between those and ones contained in the various employer’s documents relevant to this issue are contended to demonstrate that the delay in time establishes the difficulty in determining the actual mechanism of the injury itself. [55] For the applicant’s part, she correctly contends that the remaining potential witnesses are still about and that the affidavits going to prejudice, particularly that of Stephen John Murray, show simply that the applicant’s files cannot be located. The applicant’s contention is that that in itself is unlikely to be the source of much unfairness: because of the actual documentation which is available and disclosed; because of the witnesses that are still contactable; and because it has not been demonstrated by the respondent that the persons who could give evidence as to proper work practices in 2005 are no longer available. It should be noted that, with respect to the personnel files of former employees, Stephen John Murray deposed that the respondent’s current business practices require personnel files of former employees “to be retained for seven years” and that some past files were not retained “due to the limited space available to keep files”. It is, thus, at least to that extent, not the applicant’s fault that has caused such loss of potentially relevant files. [56] On the balancing side, not only can the personnel files of the applicant not be found but also her training records. [57] In the final analysis, this is a case which is on the margin. Since the real question is whether the delay has made the chance of a fair trial unlikely, I conclude that there are so many discrepancies that the matter of accurate recollections, in contrast to very faded recollections, is an important aspect of this case. It is not simply a matter of a case being largely documentary so as to weigh against such prejudice. Rather, the actual mechanism of the injury is fundamental to the determination of this case and, in particular, where the applicant has originally noted a person as a “witness” and now states that he was not, his absence is a factor which does, in context, tip the balance in favour of the existence of such prejudice as would preclude an exercise of a favourable discretion in this case, should it have been necessary to go that far. Summary [58] Since I have found that the applicant has not satisfied the requirement to make it appear to the court that a material fact of a decisive character relating to the right of action was not within her means of knowledge until after early September 2010, the court must dismiss this application for an extension of the limitation period. [59] Accordingly, the Orders I make are: 1. Application dismissed. 2. Applicant to pay respondent’s costs of and incidental to the application to be assessed on the standard basis. -- 10 of 10 --