Baillie v Creber & Anor [2010] QSC 52

SUPREME COURT OF QUEENSLAND CITATION: Baillie v Creber & Anor [2010] QSC 52 PARTIES: GREGORY HUGH DOUGLAS BAILLIE (applicant) v TREVOR JAMES CREBER (first respondent) and NATALIE ANN CREBER (second respondent) FILE NO: S 191 of 2009 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Mackay Supreme Court DELIVERED ON: 24 February 2010 DELIVERED AT: Rockhampton HEARING DATE: 15 February 2010 JUDGE: McMeekin J ORDERS: 1. The application for the extension of the limitation period is dismissed. 2. Applicant to pay the respondent’s costs on the standard basis. CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – where there is a prima facie case – whether the newly learned fact had the necessary quality of decisiveness – whether the facts were within the applicant’s means of knowledge LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – PRINCIPLES UPON WHICH DISCRETION EXERCISED – whether the respondent is prejudiced by the applicant’s delay Limitation of Actions Act 1974 (Qld), s 30, s 31 Workplace Health and Safety Act 1995 (Qld) -- 1 of 10 -- 2 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Fuller v Bunnings Group Ltd [2007] QCA 216 Gillespie v Swift Australia Pty Ltd [2009] QCA 316 Healy v Femdale [1993] QCA 210 Hopkins v Workcover Queensland [2004] QCA 155 Kambarbakis v G and L Scaffold Contracting Pty Ltd [2008] QCA 262 Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 NF v State of Queensland [2005] QCA 110 Spain v Dipompo Jacs Constructions Pty Ltd & Anor [2009] QCA 323 Sugden v Crawford [1989] 1 Qd R 683 Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 COUNSEL: GF Crow for the applicant AS Mellick for the first and second respondents SOLICITORS: Macrossan & Amiet for the applicant Dibbs Barker for the first and second respondents [1] McMeekin J: Gregory Hugh Douglas Baillie applies under s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”) to extend the limitation period applicable to the subject proceedings. [2] Mr Baillie wishes to pursue a claim for damages against the respondents. The limitation period within which he was permitted to commence such a proceeding expired on 14 August 2007 without an action being commenced. The Incident [3] Mr Baillie was employed by the respondents at the material time. On 14 August 2004, and whilst engaged in the course of that employment, a steel frame weighing in excess of 100kg slipped from trestles on which it was resting and fell to the ground. In the process Mr Baillie kept hold of the frame. He says that his left arm and back were injured. The Requirements of the Act [4] In order to succeed on an application to have the limitation period extended the applicant must show that “a material fact of a decisive character relating to the right of action was not within [his] means of knowledge” until a date after, in this case, 14 August 2006: s 31(2)(a) of the Act. There must be a prima facie case. 1 Those two matters being shown I have a discretion to extend the limitation period for 12 months from the time the material fact was within his means of knowledge. Normally that discretion would be exercised in favour of the applicant unless there was relevant prejudice to the respondents.2 The onus lies on the applicant throughout. 1 An imprecise description but sufficient for present purposes. See s 31(2)(b) of the Act. 2 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 per Dawson J; 555 per McHugh J. -- 2 of 10 -- 3 The Basis of the Application [5] The relevant material fact is said to be the advice that Mr Baillie received from an orthopaedic surgeon, Dr Allan Cook, in his report of 31 October 2009 to the effect that Mr Baillie received “a serious and permanent injury to his lower back that was caused or materially contributed to by the [subject] incident,” that the incident caused “a significant permanent injury to his lower back,” and that Mr Baillie should “change the nature of his work from heavy work to light work.”3 [6] Therefore, there are three relevant facts advanced – the causal contribution of the subject incident, the degree of harm suffered, and the consequences of that degree of harm. The Respondents’ Case [7] The facts relied on are clearly capable of being material facts going as they do to knowledge of the nature and consequences of the injury, and the extent to which it was caused by the relevant act: see s 30(1)(a)(iv) and (v) of the Act. [8] The respondents argue four issues. First, that the applicant has not established a prima facie case. Second, that the material facts were not of a decisive character in the relevant sense: see s 30(1)(b) of the Act. Third, that the material facts relied on were either within Mr Baillie’s knowledge, or within his means of knowledge, well prior to the relevant date, taken here to be 3 December 2008.4 Fourth, that if the application is allowed they will suffer prejudice such that there cannot be a fair trial. Subsequent Work History [9] The relevant period to consider is up to 3 December 2008. [10] Following the subject incident Mr Baillie attended on a general practitioner, but no record was made of any complaint of back pain. There is a record of an arm injury. Mr Baillie says that he told the practitioner of the presence of back pain but the arm problems were more significant then. [11] Mr Baillie continued to work for the respondents. He had no time off work. He says that he had back pain but could cope. [12] On 20 and 22 January 2005 Mr Baillie saw a chiropractor with a complaint of back pain. The practitioner recorded a complaint of symptoms present over the previous two weeks, with no recent trauma. Again there was no reference to the subject incident or ongoing back pain. [13] The applicant then attended on a general practitioner, Dr Robertson, on 29 January 2005. She recorded “back and right leg shotting (sic) pain for a week since manipulated by chiropractor, numbness around right lateral side of right thigh and knee, worse when bending forwards.” Dr Robertson referred Mr Baillie for a CT scan of the lumbo-sacral spine. Her entry of 3 February indicates significant 3 The quotations are taken from the submission of counsel for the applicant, Mr Crow, at paragraph 3.1. 4 A Notice of Claim for Damages was lodged with Workcover on 2 December 2009. For the purposes of this proceeding, the respondents accept that as tantamount to commencing the proceedings for damages and hence assume that time ceased to run from that date. I have a discretion to extend for 12 months only, if the necessary preconditions be established. Mr Mellick, who appeared for the respondents, conceded, on his instructions, that if material facts of a decisive character first came within the applicant’s means of knowledge after 3 December 2008 that would be sufficient to establish the grounds for the exercise of the discretion, subject to his arguments as to prejudice and the establishment of a prima facie case. -- 3 of 10 -- 4 improvement. The CT scan revealed only a “minor disc bulge.” Mr Baillie says that Dr Robertson told him that he should not lift weights over 20kgs and should look after his back. Again there was no reference to the subject incident or ongoing back pain. [14] On 30 November 2007 the applicant ceased his employment with the respondents because he could no longer cope with the back pain that he was suffering. He had had no time off work to that point. [15] Mr Baillie then took up employment with his parents as a farm hand. His pay increased. He acknowledged that he was motivated to work for them as they were sympathetic to his condition and they permitted him to work around his condition. He hoped that his pain would subside but it did not. Indeed it has worsened continuously since the subject incident, and considerably so following an incident in March 2008 when he was welding and found himself in an awkward position. [16] So far as the records show, the applicant next attended on a medical practitioner with back complaints on 3 December 2008 and made application for Workcover benefits. [17] I turn now to the relevant issues. A right of action [18] In order to satisfy the test in s 31(2)(b) an applicant must be able to point to the existence of evidence which, it can reasonably be expected, will be available at trial and will, if unopposed by other evidence, be sufficient to prove his case: Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 434-435 per Macrossan CJ. [19] The applicant says that the frame became unbalanced, exposing him to injury because there was no proper work system in place. There had been no risk assessment performed, he had received no instructions, had no supervision or assistance, and the consequence of the welding operation was to create what he called “swarf balls” which had the potential to destabilise the frame when placed on the trestles. [20] There is some force in the respondents’ argument that the risk could easily have been avoided by the use of the crane that was available rather than the applicant man handling it, as he said he did, and that such a response was self evident. The crane had been used by the applicant a short time before to position the frame. That was why the applicant had been given the crane. The frame was of a very substantial weight – obviously well beyond the safe manual handling capacity of any individual. The presence of the swarf balls should have been obvious to the applicant and the potential for the frame to become destabilised when set up on trestles should also have been obvious. [21] Nonetheless the test is undemanding. In the absence of any direction as to what he should have done in the circumstances, and given the demanding standards imposed on an employer both at common law and under the Workplace Health and Safety Act 1995 (Qld), I am satisfied that the applicant has established a prima facie case. Decisive Character [22] Section 30(1)(b) of the Limitation of Actions Act provides: (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— -- 4 of 10 -- 5 (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. [23] Section 30(2) of the Act provides that for the purposes of s 30 “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.” [24] In determining whether a newly learned fact has the necessary quality of decisiveness an applicant “must show that without the newly learned 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”: Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 per Macrossan J at 333.5 [25] Relevant on this point too is the observation of Connolly J in Sugden v Crawford [1989] 1 Qd R 683 at 685: Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s 30(b) are satisfied. Without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action... [26] If one assumes that the three material facts were not within the applicant’s means of knowledge, then it seems apparent that they would have the necessary quality of decisiveness – without them he could not succeed to a significant award of damages sufficient to justify incurring the risks and expense of litigation. As Mr Crow, for the applicant, points out, there was no loss of income to 3 December 2008 and there is some evidence that the costs involved in getting a matter to a compulsory conference stage was in the order of $45,000. [27] Significantly, if Mr Baillie was unaware that he could causally link the continuing disabling condition of his spine to the subject injury, then a reasonable man under Connolly J’s approach, appropriately advised, would not have brought the action on the facts already in his possession. [28] Mr Mellick’s submission was that Dr Cook had an incomplete history and, that being so, his opinion cannot be decisive as it is inherently unreliable. With respect to the submission, and Mr Mellick did not belabour the point, it seems to me that there is an evidentiary onus on the respondents to demonstrate that any variance in the history between the account given to the court and the account that the doctor 5 Cited with approval in Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306; Berg v Kruger Enterprises [1990] 2 Qd R 301; Hintz v WorkCover Qld & Anor [2007] QCA 72 at [38] – [39]. -- 5 of 10 -- 6 has assumed is of significance. No doubt cases can be imagined where the difference is so stark that the opinion proffered is self evidently worthless, but that is not the case here. [29] I accept that without evidence of the cause of his ongoing pain – and it can only come from medical practitioners, and usually from specialists – an essential link in the applicant’s proof was missing. There is no suggestion that he was so advised before 3 December 2008. [30] I turn then to the question of whether that critical opinion was within his means of knowledge. Means of knowledge [31] Section 30(1)(c) of the Act provides: 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 the 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. [32] I bear in mind that the correct approach is to determine the state of knowledge attainable by this applicant and that the Act, in s 30(1)(c) does not speak of ‘a reasonable person’. The significance of this was explained by Keane JA in NF v State of Queensland [2005] QCA 110 at [29]: It is to be emphasised that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of “all reasonable steps”, or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. 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. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act… [33] The respondents contend that had the applicant taken ‘all reasonable steps’ as required by s 30(1)(c)(ii) of the Act, then he would have discovered the material facts now relied upon at a time prior to 3 December 2008, if indeed he was ignorant of them. [34] The respondents point to the applicant having continuing and increasing back pain commencing from the time of the subject injury, receiving advice from Dr Robertson in January 2005 that he needed to avoid lifting weights over 20 kgs, and needed to care for his back, eventually giving up his employment with the respondents because he was not coping with the back pain that he had, and taking up employment as a farm hand on his parents’ property as they were sympathetic to his condition. -- 6 of 10 -- 7 [35] It is submitted that with this collation of facts, a reasonable person in the applicant’s position would have taken steps to find out the facts that are now said he did not know. The steps that a reasonable person would take would include seeking advice from a medical practitioner on the very matters now said to be critical. [36] Mr Crow submitted that the applicant here was in an analogous position to the applicant in Healy v Femdale [1993] QCA 210 a case often cited on this issue. There the court said: The question whether an injured person has taken all reasonable steps to ascertain the seriousness 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 to take "appropriate advice" or to ask appropriate questions if in all circumstances it would not be reasonable to expect the plaintiff to have done so. Discussion [37] Mr Baillie was an experienced welder. He was employed in that capacity by the respondents. He knew by November 2007 that the back complaint from which he suffered prevented him from pursuing such work and that he needed to restrict the work he did to lighter work. He was then nearly 46 years of age. 6 Indeed the fact that he restricted himself to work on his parents’ farm says a great deal about his view of his condition. [38] In my view it is inescapable that by November 2007 Mr Baillie was aware that he had a serious condition of his spine, that he could not persist in heavy work, and hence that he was not fit to continue in his “trade” as a welder. I use inverted commas as he had no formal qualifications but plainly was skilled in that work. [39] Thus two of the three claimed material facts were not only within his means of knowledge but known to him twelve months prior to the critical date – that he had a serious condition of the spine and that he had to change to lighter work as a result. The condition had been present for over three years by then and was worsening. It gave every appearance of being permanent. There were no grounds for optimism. If the applicant was in doubt about that then the circumstances called for enquiry. [40] I turn then to the third of the material facts – the question of causation. It is not shown that any medical practitioner had told him prior to the critical date that there was a causal link between the incident and the ongoing symptoms. Indeed Mr Bailiee swore that “every other doctor I had seen told me that my back problems were caused by pre-existing degeneration” and that Dr Cook was the first to tell him that was not so. I note that Mr Baillie did not identify the doctors whom he claimed had so advised him. [41] If I was satisfied that Mr Baillie had raised the issue with medical practitioners, provided them with a full history, and been told that his problems were not due to the subject incident but rather a degenerative process, then he could not be criticised 6 Born 9 December 1961. -- 7 of 10 -- 8 for not taking the matter further. In my view he would have done all that was reasonable for a working man to do. [42] The difficulty is that it is far from clear that he did any such thing. As I have said where it is clear that he did see a medical practitioner about his back there is no note made of the subject incident at all. There were many other visits to medical practitioners where there is no mention of the back problems at all. Mr Baillie would have it that he told the doctors of his back pain on many occasions and they must not have noted it down. It is not necessary to decide whether that is a credible claim. It is safe to assume that if there was any mention of the back pain on these occasions where there is no record of his complaints then it was not the primary reason for the visit and there is no warrant for assuming that a full and detailed history was provided and the crucial opinion sought. Significantly Mr Baillie does not assert that he gave to any practitioner a full and accurate history and sought their advice as to the question of whether he could attribute his ongoing difficulties to the subject incident. [43] Mr Crow’s submission was that Mr Baillie should not be expected to make such enquiries – the Healy v Femdale point. I disagree. The facts here are not akin to those discussed in Femdale at all. Here Mr Baillie says that there was significant pain and disability commencing with the subject incident, pain with which he eventually could not continue to cope, and a disability sufficient enough to restrict his working ability and which forced him to seek work with a known sympathetic employer. In my view these facts “call[ed] for prudent enquiry to protect [his] health and legal rights”. Mr Baillie did not make such enquiry. Like the applicant in Spain v Dipompo Jacs Constructions Pty Ltd & Anor [2009] QCA 323, Mr Baillie must have appreciated that he was “in a situation of vulnerability in the labour market” (per Keane JA at [61]). [44] Mr Crow’s final submission was that if Mr Baillie had made such enquiry he would not necessarily have been given the advice that Dr Cook gave. In support he pointed to the opinion of Dr Shaw, another orthopaedic surgeon who saw Mr Baillie after the critical date and who did tell him that his problems were due to degeneration. Dr Shaw advised that the effects of the subject incident (wrongly assumed by him to be in January 2005) had resolved by the time of his report in January of 2009. [45] Dr Cook agreed that if he had seen the applicant in November 2007, and with the same history to November 2007 that he received at the time of his later examination, then he would have advised Mr Baillie in the same terms as he did in October 2009. [46] Two things seem to me to be relevant. The first concerns the onus of proof. It is for the applicant to establish that the material fact would not have been discoverable prior to the critical date. So much was decided in Kambarbakis v G and L Scaffold Contracting Pty Ltd [2008] QCA 262 per Holmes JA at [48]. See also Gillespie v Swift Australia Pty Ltd [2009] QCA 316 at [20]-[21]. Mr Crow’s submission goes no further than asserting that the applicant may not have received the same advice, but the obligation on the applicant is to show that he would not have received that advice. The relevant standard of proof is the normal civil standard. [47] Second, for Dr Shaw’s opinion to have the effect contended it must be shown that he had the same history as now put forward and on which Dr Cook based his views. I do not decide that it would necessarily follow, if the histories were the same, that the applicant would show that the material fact was not discoverable. I incline to the view that such a difference in opinion would be a starting point for enquiry rather -- 8 of 10 -- 9 than an end point justifying the conclusion sought to be drawn. However I do not see the need to decide the issue. [48] On my reading of Dr Shaw’s report there is potentially a crucial distinction between the applicant’s present history and the one assumed by Dr Shaw. The applicant’s assertion is that he had continuous pain from the subject incident on. It grew worse over the years. Dr Shaw’s history, as recorded, was that there was an incident causing pain, a period on light duties, and that “he recalls repeatedly aggravating his low back pain” with the heavy work. Whether he assumed that Mr Baillie was pain free between aggravations may not be clear, although the inference I would draw is that the doctor assumed he was. But the onus is on the applicant, at least, to show that reasonable medical practitioners could have differing views as to causation although they assume precisely the same history. That would provide some basis for finding that the material fact was not reasonably discoverable by the applicant. Dr Shaw was not called by the applicant to explain his conclusion, or to say that whatever differences in history there are were irrelevant to the conclusion. [49] In my opinion the material facts were within the applicant’s means of knowledge prior to the critical date. Acting reasonably, Mr Baillie should have made enquiries long before 3 December 2008. It is not shown that on the probabilities he would not have discovered the medical opinion evidence justifying the bringing of the action. Prejudice [50] In case the matter goes elsewhere, I will address the question of prejudice. [51] Mr Mellick’s submission is that there cannot be a fair trial in the matter due to the absence of references in the medical records to presenting symptoms or complaints. He points out that the applicant contends that there were several incidents of back pain over the years subsequent to the subject injury, that a significant issue for the respondents is the question of what contribution these various incidents have made to the final disabling condition compared with the contribution made by the subject incident, and that to the extent the respondents can demonstrate that the present condition is due to other causes for which they are not responsible the damages they face will be reduced. [52] While the onus is on the applicant to establish the injury and its consequences, to the extent that the respondents wish to assert that the applicant would have ended up in his present condition in any case then the onus is reversed. 7 Mr Mellick’s submission is that where medical records are absent then the respondents face an impossible task of discharging that onus. [53] The events in question have occurred over a 5 and a half year period. There is no medical record of any injury to the back, or of any presenting symptoms attributed to the back, following the subject injury. It is highly unlikely that medical practitioners would have any recollection of the presenting symptoms years after the presentation, particularly where no note was made. The plaintiff says that there were four or five incidents of exacerbations over the years – the first in January 2005 when he consulted the chiropractor, the welding incident of March 2008, a slip and fall in February 2009, an event mentioned to Dr Shaw about which the applicant could give no details, and a car accident in April 2009. The plaintiff asserts that there were several presentations to medical practitioners where his complaints went unrecorded. 7 See Hopkins v Workcover Queensland [2004] QCA 155 at [30]-[40]. -- 9 of 10 -- 10 [54] The first notice that the respondents had of the claim was in December 2008 – over four years after the event. They therefore had no chance of requesting a medical examination that might assist in establishing the degree and nature of the injury suffered in August 2004. While that is often a defendant’s position in litigation of this type, and while a defendant must simply bear whatever prejudice follows when litigation is commenced within the limitation period, a different approach is taken once the limitation period has expired. So much follows from the decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. [55] Mr Mellick has drawn my attention to the approach of the Court of Appeal in Fuller v Bunnings Group Ltd [2007] QCA 216 where it was held that relevant prejudice was established where a respondent was precluded, by the lateness of notice of the claim, from exploring, by timely medical examination, the significance of injuries subsequent to the subject injury: see Williams JA at [44]. [56] In my view the respondents are in an analogous position here. Summary [57] The application for the extension of the limitation period is dismissed. [58] I order the applicant to pay the respondent’s costs on the standard basis. -- 10 of 10 --