Castillon v P & O Ports Ltd [2005] QDC 180

DISTRICT COURT OF QUEENSLAND CITATION: Castillon v P & 0 Ports Ltd [2005] QDC 180 PARTIES: LEON CASTILLON Plaintiff v P & 0 PORTS LIMITED Defendant FILE NO/S: 445/03 DIVISION: Civil Jurisdiction PROCEEDING: Application ORIGINATING COURT: Southport DELIVERED ON: 10 June 2005 DELIVERED AT: Brisbane HEARING DATE: 25 October, 16 November 2004 and 22 February 2005 JUDGE: Rackemann DCJ ORDER: It is declared that: 1. The applicant/plaintiff was a person entitled to seek damages for an injury, being bilateral carpal tunnel syndrome, suffered over a period of time, pursuant to s253(1)(a)(ii) and s265 WorkCover Queensland Act 1996. 2. That the applicant/plaintiff was entitled to rely on the descriptions in the Notices of Assessment and Damages Certificates by WorkCover in calculating the limitation period and in applying for the s305 order and that the applicant/plaintiff is not prevented from commencing these proceedings for the injury the subject of the claim for compensation unless the limitation period is found to have already expired by 22 May 2001. It is ordered that: 3. Pursuant to UCPR 171 that paragraphs 10B(d) and 10C of the Amended Defence of the defendant be struck out. -- 1 of 24 -- 2 4. That there be no order as to costs. CATCHWORDS: Limitation of actions – Extension of limitation period – Material fact of a decisive character - Reliance on WorkCover document – Overtime injury – Bilateral carpal tunnel syndrome WorkCover Queensland Act 1996 Cases cited: Australian Energy v Leonard Oil NL [No 2] [1988} 2 Qd R 230 Blacktown Concrete Services Pty Ltd v Ultra Refurbishing and Construction Pty Ltd (in liq) 43 NSWLR 484 Bougoure v State of Queensland [2004] QCA 485 Buyers v Capricorn Commonwealth Management Pty Ltd (1992) Qd R 306 Berg v Kruger Enterprises (1992) Qd R 301 Daley v Brisbane City Council [2002] QDC 211 Ecrosteel Pty Ltd v Pefor Printing Ply Ltd (Santow J, 12 November 1997, unreported Supreme Court of NSW) Hallmark — Minx Ply Ltd v Ryherczyk [1998] QCA 254 Kelly v Croft Sheetmetal Manufacturing Pty Ltd [2002] QSC 412 Miller v Broadbent (unreported) Platton v WJ VP Ply Ltd (2004) SC 258 Repatriation Commission v Nation (1955) 57 FCR 25 COUNSEL: GJ Cross for the applicant/plaintiff RM Treston for the respondent/defendant SOLICITORS: Hoolihans Lawyers for the applicant/plaintiff Bruce Thomas Lawyers for the respondent/defendant Introduction [1] The plaintiff seeks declarations that the proceedings have been validly commenced with respect to certain injury, an order striking out certain paragraphs of the amended defence and an order extending the limitation period. [2] The claim was filed on 15 August 2003. The Statement of Claim pleaded that, during the course of the plaintiff’s employment as a machine operator, he was required to operate machinery in conditions which were not reasonably suitable and -- 2 of 24 -- 3 without reasonable periods of respite and/or rotation of duties and, as a result, suffered personal injury, particularised as follows: (a) bilateral carpal tunnel syndrome; (b) chronic pain syndrome; (c) adjustment disorder with depressed mood; and (d) bilateral supraspinatus tendonitis. [3] On the hearing of the application I was informed by counsel for the plaintiff that it was only the first of those injuries with which I need be concerned for present purposes1. [4] By its particulars, the plaintiff alleged that the injuries were sustained over a period of time whilst in the course of his employment with the defendant. The particulars stated that “the plaintiff cannot say when he sustained each injury other than to say he suffered symptoms in relation to his carpal tunnel in or about 1999 …” [5] By its amended defence, the defendant pleaded that the injuries were sustained prior to December 1999, that the provisions of the WorkCover Queensland Act 1996 (“the Act”) had not been followed and that the proceedings were commenced outside the limitation period. [6] In respect of the alleged non-compliance with the Act, it was pleaded that a Notice of Assessment and a Damages Certificate issued by WorkCover both related to an injury sustained on 2 December 1999 and that an order of the Court, pursuant to s305, also related to injuries sustained during the course of employment on 2 December 1999, but not otherwise. The defendant pleaded that the entitlement to -- 3 of 24 -- 4 seek damages and commence and maintain proceedings with respect to bilateral carpal tunnel syndrome was restricted to an injury sustained on 2 December 1999 when the plaintiff was, it is pleaded, not at work in the course of his employment. [7] By his reply, the plaintiff pleaded that he first sought medical attention on about 2 December 1999 with respect to the injury, that his claim for compensation had been made in respect of an injury suffered over a period of time and was accepted on that basis, that the defendant cannot now assert the plaintiff has not complied with the Act and that his right to commence action was protected by the Damages Certificate and the court order. [8] By its answer, the defendant pleaded that the court order only granted leave to start proceedings with respect to an injury sustained in the course of employment on 2 December 1999 and that the Damages Certificate did not protect the plaintiff’s right to commence proceedings, as the proceedings were not commenced within the limitation period. [9] In contending that the plaintiff was entitled to rely on the Notice of Assessment, Damages Certificate and court order in relation to the injury for which damages is now sought, counsel for the plaintiff relied on s 342 of the WorkCover Queensland Act pursuant to which a person who dealt with WorkCover was entitled to make certain assumptions (s 342(1)). The assumptions included that, at all relevant times, the Act had been complied with and that the directors, chief executive officer, employees and agents of WorkCover had properly performed their duties (s 342(3)). The assumptions could not be made where the person had actual knowledge that they would be incorrect (s 342(4)). 1 T10. -- 4 of 24 -- 5 [10] In essence, the arguments were as to whether the relevant injury in respect of which the plaintiff now claims damages is that to which the Notice of Assessment, Damage Certificate and Court Order relate, whether the defendant can be heard to say it is not, whether the proceedings have been brought within the limitation period and, if not, whether that period ought be extended. [11] As counsel for the defendant pointed out, a court will generally only strike out a part of a pleading where it can be clearly demonstrated, on an interlocutory basis, that the pleading is so clearly untenable that it could not possibly succeed. The merits of the defence including questions of law, should not be decided in a summary way prior to trial unless they are quite clear. The Claim for Compensation [12] It is plain on the face of the application for compensation for the bilateral carpal tunnel injury that it was for an injury which occurred as a result of activities performed over a period of time. That is perhaps unsurprising, given the nature of the injury. The circle on the application form indicating an over period of time injury was ticked. The date of the first medical consultation (2.15 pm on Thursday 2 December 1999) was inserted. In relation to a question about what he was doing when the injury occurred and how it occurred, the plaintiff answered “driving heavy forklift; front end loaders; Hyco; and other machinery over a period of 27 years”. By its answer (para 6(a)), the defendant “admits that the plaintiff made application for compensation for bilateral carpal tunnel syndrome suffered over a period of -- 5 of 24 -- 6 time, with the first claimed attendance on a medical practitioner being 2 December 1999”. [13] The application was accepted and allotted the claim number 990081797. A further application for the same injury was made a year later. Although that application indicated that it was for a specific date, it was accepted and treated as a reopening of the earlier claim. The Notice of Assessment [14] WorkCover issued a Notice of Assessment dated 22 May 2001 stating that the injury was a non-certificate injury and that the degree of permanent impairment attributed to it was assessed at 0%. The notice listed the date of injury as 2 December 1999, but also identified the nature of injury, as bilateral carpal tunnel syndrome, and the claim number 990081797, which claim was for an injury suffered over a period of time. [15] The insertion of the date 2 December 1999 as the date of injury does not itself compel a conclusion that the Notice of Assessment related to a specific date injury. As Jones J said in Kelly v Croft Sheetmetal Manufacturing Pty Ltd [2002] QSC 412, “The terms of the assessment must be seen against the factual background in which WorkCover’s assessment had to have been made”. In Kelly, WorkCover contended that a Notice of Claim was non-compliant because it claimed for an injury suffered over a period of time, in circumstances where the Notice of Assessment referred to an injury sustained on a specified date. The Court found that the application for compensation had been in respect of an injury suffered over a period of time and -- 6 of 24 -- 7 that WorkCover had misconstrued the application in describing the date of injury on the Notice of Assessment. Jones J said at [17]: “[t]he terms of the Assessment must be seen against the factual background in which WorkCover’s assessment had to have been made. The plaintiffs failure to complete question 25(a) and (b) would have justifiably been a matter of complaint for WorkCover when considering the application for statutory compensation, but the information was certainly available in the notice, the declaration and the medical reports which it had in its possession at the time of making the assessment. Those omissions in question 25 did not justify WorkCover in resolving the inconsistency by determining that the plaintiffs injury was caused by a single event on 15 April 2001. Nor does that error, in my view, justify WorkCover now contending that the Notice of Assessment precludes the applicant from claiming damages in respect of an injury over time. WorkCover cannot rely upon its own error, in construing the application for compensation, to hold that the later Notice of Claim for Damages is non-compliant.” [16] The assessment in this case related to the claim referred to in the Notice of Assessment. That was, it is admitted, for an injury alleged to have been suffered by reason of activities over a period of time. There is no evidence to suggest that WorkCover made an assessment that the injury was one which arose out of a particular event on 2 December 1999 (a day when it alleges the plaintiff was not at work) or indeed on any other specific day. It is the injury, the subject of the claim to which the Notice of Assessment, properly construed in the circumstances, relates. While, had the plaintiff, through his solicitor, detected an error in the description of the date of injury, an amended Notice of Assessment could have been requested, there was an entitlement to assume that the Notice was properly issued. I am satisfied the plaintiff was a person entitled to seek damages pursuant to s253(1)(a)(ii) and that WorkCover’s error cannot now be relied upon to assert to the contrary. The Damages Certificate -- 7 of 24 -- 8 [17] The Damages Certificate described the injury as “bilateral carpel tunnel syndrome” and, while the single date “02/12/99” was inserted beside “date of event causing injury”, the Certificate was also identified as relating to Claim No 990081797, one which related to events over a period of time. [18] To have issued the Certificate, WorkCover would have to have been satisfied that the plaintiff was a worker when the injury was sustained, had sustained injury, and that the degree of permanent impairment had been assessed (s265(3)). The only bi- carpal tunnel syndrome injury in respect of which WorkCover could have been so satisfied is that which was the subject of the Claim, that is, an injury arising as a result of activities over time. It is that injury to which the Certificate should, in the circumstances, be construed as related. The plaintiff, through his solicitor, was entitled to assume that the Certificate had been properly issued. The conclusion is that the plaintiff is permitted to seek damages for that injury pursuant to s 265(1) and that WorkCover’s error cannot now be relied upon to assert to the contrary. The s305 Order and the Limitation Period [19] The plaintiff’s solicitor made application in late 2002, pursuant to s 305, for leave to bring proceedings. An order was made on 27 November 2002. A claimant with the benefit of such an order obtained before the expiration of the limitation period could commence proceedings after the end of the limitation period, subject to the proceedings being commenced within 60 days of the compulsory conference. A compulsory conference was held on 19 June 2003 and the current proceedings commenced less than 60 days thereafter. -- 8 of 24 -- 9 [20] The court order described the proceedings which could be commenced as those for "damages for injuries sustained during the course of employment on 2 December 1999". That description was not the subject of a deliberative process by the Court. The order was one made by consent. The description reflected the amended originating application, which was filed after the solicitors for WorkCover took issue with the initial application on the basis, among other things, that it did not specify the date of the injury or the circumstances in which it occurred. The affidavit in support of the amended originating application2 exhibited the Damages Certificate and deposed that “the applicant is claiming for injuries received in the course of his employment … on or about 2 December 1999 when the applicant sustained bilateral carpal tunnel syndrome … as a result of being required to continually operate machinery in conditions which were not reasonably suited for tasks required of the applicant and without reasonable periods of respite and/or rotation of duties”. [21] The respondent consented to the order, but only after its solicitors sent a facsimile dated 25 November 2002 to the applicant's solicitors stating, in part, that: "We understand from our recent discussions with your Mr Carman that you consider the cause of action arose on 2 December 1999, the date indicated as the date of injury and (sic) the Notice of Assessment issued in respect of the carpal tunnel syndrome. We wish to make it clear at this stage that we do not necessarily accept that that is the date on which the cause of action arose. There is substantial other material to suggest that the injury occurred at a prior time. That being the case, we do not necessarily agree that the limitation period in the matter expires on 2 December 2002. It appears to us that the limitation period may in fact have already expired some time ago." 2 The parties consented to me obtaining a copy of the supporting affidavit from the relevant court file. -- 9 of 24 -- 10 [22] The interpretation of a court order is not necessarily confined only to a consideration of its terms. It is sometimes appropriate to consider surrounding circumstances, including extrinsic material, particularly where the order is ambiguous, invoking the need for construction.3 In this case the terms of the order do not immediately appear equivocal or ambiguous. The construction issue was not however, one which was argued and it is unnecessary for me to express a concluded view on it, given my conclusions otherwise. [23] The applicant/plaintiff put his case on the basis that, in applying for an order at the time he did and in the terms it was made and in calculating the limitation period, the solicitor for the applicant/plaintiff was entitled to rely on the dates specified in the Notice of Assessment and Damages Certificate. [24] The Court is not in a position, at this stage, to determine when an injury, compensable by an award of damages, was suffered or when the limitation period commenced. The claim relates to an injury which was caused by activities undertaken over a period of time. It is unclear, at this stage, when those activities resulted in a more than minimal injury sufficient to support a cause of action for damages. As already noted, the plaintiff himself pleads, by his particulars, that he cannot say when he sustained injury, save to say, relevantly, that he suffered symptoms in relation to his carpal tunnel in or about 1999. 3 Australian Energy v Leonard Oil NL [No 2] [1988] 2 Qd R 230 at 232; Ecrosteel Pty Ltd v Pefor Printing Pty Ltd (Santow J, 12 November 1997, (unreported Supreme Court of NSW); Repatriation Commission v Nation (1955) 57 FCR 25 at 33-34; Blacktown Concrete Services Pty Ltd v Ultra Refurbishing and Construction Pty Ltd (in liq) 43 NSWLR 484 at 491-492. -- 10 of 24 -- 11 [25] The plaintiff contends that the limitation period may not have commenced until after the date of injury and, in particular, until the point beyond which surgical treatment might have remedied it. Counsel relied on Hallmark - Minx Pty Ltd v Ryberczyk [1998] QCA 254. In that case, the plaintiff failed to establish that the injury resulted from the negligence of the employer concerning the manner in which the worker was required to perform her work. The plaintiff succeeded on the basis that, by reason of her employer failing to give warnings, to the effect that a worker with symptoms should seek medical advice and early treatment to avoid permanent disability, she delayed in seeking treatment. The delay resulted in treatment being inefficacious. In those circumstances, there was no cause of action until the delay persisted beyond the time when efficacious treatment could be employed. [26] The plaintiff’s claim, as pleaded and particularized, includes allegations of the type discussed in Hallmark as well as allegations in relation to suffering the injury by reason of the manner in which the plaintiff was required to perform his work. It is only in respect of the former, that the limitation period will have commenced, consistent with Hallmark, at the point beyond which earlier medical consultation and treatment would have been efficacious. The identification of that point depends on findings of fact which I would not be prepared to make at this point. [27] The plaintiff and, more particularly, his solicitors, assert a right to have relied upon the dates appearing on the documents issued by WorkCover. As to the assumptions which were made, the plaintiffs solicitor deposed that the application for leave under s 305 was brought "acting on the assumption that WorkCover have correctly identified the date of the injury", that, having reviewed the file "I can state that the plaintiffs solicitors relied on the Notices of Assessment for specific dates as -- 11 of 24 -- 12 correctly identifying the date of injury for the plaintiffs injuries and assumed that WorkCover had correctly identified that the injuries were over a period of time" that, in relation to the limitation period, “it was assumed that WorkCover were taking the date of the first symptoms as the date when the cause of action accrued” and that “had WorkCover correctly noted in the Notice of Assessment and that the injuries were for ‘over period of time injuries’ as opposed to specified date injuries, then leave pursuant to s305 ... would have been brought sooner than they were.” [28] Although the solicitor's affidavit speaks of the "date of the first symptoms”, the date 2 December 1999 is, more accurately, the date of the claimed first medical consultation as specified in the claim for compensation and as pleaded in the reply. On the face of the material however, the plaintiff’s solicitors were acting on the assumption that the dates specified in the WorkCover documents could be relied upon in determining the date of the injury and in calculating the limitation period. That is consistent with the action they took. It also appears to be consistent with what the solicitor for WorkCover took to be the plaintiff solicitor's position, as recorded in the facsimile of 25 November 2002 in the following terms: "we understand from our recent discussions with your Mr Carman that you consider the cause of action arose on 2 December 1999, the date indicated as the date of injury and (sic) the Notice of Assessment issued in respect of the carpal tunnel syndrome". [29] While the defendant now points to the second part of the same facsimile as putting the plaintiff on notice that it may not assume 2 December 1999 to be the date of injury, there are, as was submitted for the plaintiff, two matters to bear in mind. Firstly, it does not unequivocally state that the date of injury was incorrectly recorded on the earlier documents in respect of the injury claimed, that is, an over -- 12 of 24 -- 13 time injury in respect of which the first consultation was 2 December 1999. It might have been a reference to WorkCover's claim, which it now asserts, that the applicant had consultations with medical practitioners concerning symptoms of the injury at an earlier time than claimed4. Secondly, the facsimile was sent after the plaintiff's solicitor had allowed time to pass on the assumption that his client's interests were protected if steps were taken consistently with the date of injury being that which appeared on the Notice of Assessment. In so doing, the plaintiff's position would have been changed to his detriment if the limitation period was current at the date of the Notice of Assessment, upon which reliance was placed, but expired prior to the court order. [30] Counsel for the defendant submitted that the plaintiff's solicitor had not satisfactorily explained how he could have been acting on the assumptions he asserts when he had the means of knowledge (by obtaining instructions from his client and by reviewing the WorkCover file) that the assumptions were incorrect. There is however, a difference between having the means of knowledge and having actual knowledge that the assumptions would be incorrect. Unlike the plaintiff himself, the plaintiff’s solicitor was not required for cross-examination. I am satisfied that it is clear on the material that he did act on the relevant assumptions and did not have actual knowledge that they would be incorrect. [31] In those circumstances, it appears to be consistent with s 3425 to conclude that the applicant, through his solicitors, was entitled to rely on the descriptions in the documents issued by WorkCover in calculating the limitation period and in applying for the s 305 order and that he is not prevented from commencing these proceedings 4 A factual issue which I will not resolve at this stage. -- 13 of 24 -- 14 for the injury the subject of the claim for compensation, unless the limitation period is found to have already expired by the time of issue of the Notice of Assessment, being the earliest WorkCover document upon which the plaintiff’s solicitors relied for a description of the date of the injury. Misdescriptions in the WorkCover documents cannot now be relied upon to assert to the contrary. Extension of the Limitation Period [32] The remaining issue was whether, if an extension of the limitation period is required, it ought be granted. [33] The application for the extension of the limitation period, which was the main focus of the argument, proceeded on the basis that, to be eligible for an extension of time, the plaintiff would have to point to a material fact of a decisive nature post November 2001. [34] Section 31(2) of the Limitation of Actions Act provides: “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 a right of action apart from a defence founded on the expiration of a period of the 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.” 5 And with the approach taken in this court in Daley v Brisbane City Council [2002] QDC 211, to which I was referred. -- 14 of 24 -- 15 [35] The requirement in s 31(2)(b) was not controversial and I am satisfied that it is established. It was common ground that, for s 31(2)(a) to be satisfied, a material fact of a decisive character would have to have first come to the plaintiff’s means of knowledge after November 2001. [36] Section 31(2)(a) requires three things to be established namely: (i) that the facts of which the plaintiff was unaware were material facts (ii) if they were material facts that they were of a decisive character; and (iii) if they were material facts of a decisive character, that those facts were 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. [37] A non-exhaustive list of what constitutes a material fact is set out in s 30(1)(a) and includes, relevantly, "the nature and extent of the personal injury so caused”. [38] Where a material fact of that nature is suggested, it is helpful to bear in mind the following passage from the judgment of Macrossan J in Moriarty v Sunland Corporation Limited6 which has been cited on other occasions7: "In cases like the present, an applicant for extension discharges his onus not merely by showing that he has learned 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 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 ..." [39] In his affidavit material the plaintiff deposed as follows: 6 (1988) 2 Qd R 325 -- 15 of 24 -- 16 "Subsequent to me developing symptoms in 1999, I never thought that I would have to give away my work. I was advised that I would be able to do it with some problems, but I considered that I would always be able to manage it. It was not until 2003 when my symptoms would not go away even with breaks, that I finally concluded that my time as a crane operator might be nearing an end." [40] It is that alleged realisation, in 2003, upon which the plaintiff relies as the material fact of a decisive character. It was also submitted that, until that time, he did not have a worthwhile action to pursue since, to that point, there was a prospect that his economic loss would be obviated by him continuing with his duties or the employer offering him alternative lighter duties before he became incapable of continuing with his employment otherwise. [41] The defendant accepted, for the purposes of the argument, that perhaps prior to February 2001, when the plaintiff obtained some advice from Dr Gilpin, he might not have appreciated how serious his condition was, but submits that from at least June 2001 onwards it was within the plaintiff's means of knowledge to know the nature and extent, or the seriousness, of his condition and to appreciate that he had a worthwhile action to pursue and should, in his own interests, pursue it. [42] The plaintiff gave viva voce evidence and was cross-examined on the hearing of the application. [43] The plaintiff is a man of limited education, but whose skills in his employment enabled him to earn a good living. He commenced employment with the respondent in late 1992. Over the years he consulted a general practitioner, Dr 7 See Buyers v Capricorn Commonwealth Management Pty Ltd (1992) Qd R 306 per Lee JJ, Berg v Kruger -- 16 of 24 -- 17 Wong in relation to matters including, in 1997, numbness in the hands. On 2 December 1999 the plaintiff consulted another general practitioner, Dr Kent, in relation to pins and needles in his hands and wrists. Dr Kent advised that the plaintiff may have carpal tunnel syndrome and referred him to a neurologist, Dr Reid who confirmed the diagnosis. He was then referred to an orthopaedic surgeon, Dr Nutting who, in February 2000 performed a left carpal tunnel release and, in May 2000 a right carpal tunnel release. In June 2000, Dr Nutting reported that, following the operations, “he is increasing his strength and should be fit for a return to work next month”. The doctor's optimism however did not prove to be well founded. By the end of 2000 the plaintiff’s condition had improved but not resolved. He consulted both Dr Reid and Dr Milroy. Dr Milroy's report of 19 December 2000 noted the improvement and expressed the opinion that the plaintiff’s position was not yet “stable and stationary”. [44] In early 2001 the plaintiff was referred to Dr Gilpin, consequent upon Dr Milroy's retirement. Around the same time he was also seen by two other orthopaedic surgeons, Dr Stable and Dr Halliday. [45] Dr Gilpin saw the plaintiff on 7 February 2001. In his view the surgery had been performed perfectly adequately but that the symptoms, from which the plaintiff continued to suffer, could be explained “purely by the fact that a small percentage of people do not get satisfactory improvement in function after carpal tunnel release.” He advised the plaintiff that there were three options namely: “(i) put up with the ongoing symptoms and use his hands as best he could; Enterprises (1992) Qd R 301 per Connolly J, Miller v Broadbent (unreported) Muir J 12 August 1989 and Platton v WWP Pty Ltd (2004) SC 258. -- 17 of 24 -- 18 (ii) accept the residual deficit and look at alternative employment which is lighter on his hands; and (iii) consider further surgery to both hands, but with only a 50% chance of obtaining long term benefit from the surgery.” [46] Dr Gilpin saw the plaintiff again on 5 March 2001. His report states that he advised him as follows: “Essentially, I told him that I think that the chance for providing any long term benefit from surgery is in the order of 50% at best. This would be weighed up with the chance of being 1% worse off. Essentially I told him that he needs to make a decision one way or the other as to whether he accepts this and goes to surgery or alternatively looks to change jobs. I advised him that I had suggested to WorkCover a vocational assessment and some form of re- training.” [47] The consultation with Dr Gilpin was recorded and has been transcribed. The following emerges from the transcript: (i) Dr Gilpin summarised the options previously given and said that WorkCover had asked for a report; (ii) the plaintiff responded by requesting whether Dr Gilpin had discussed another job `down there'. The plaintiff explained: “Cause see they're not putting you back on unless you are 100% so, which makes it pretty difficult. We used to have job were you could go back and just do planning and, ah, [indecipherable] and first aid and all that, but now they have taken it away because of private enterprises, they've given it to private enterprise. So now we can't do it anymore, so, it just puts us back on the machines all the time and lifting those bars, like lashing and stuff like that, and I mean, if I had to, if I had to lift up them all night I mean I'd end up dropping it on someone and killing someone, and that’ the thing. I mean you can go 3 high, 2-3 high.”; (iii) Dr Gilpin said he had no influence over that; (iv) there was discussion about which option the plaintiff would pursue. Dr Gilpin suggested a vocational assessment and the following discussion ensued: “Gilpin: I suggest that some form of vocational assessment, that means to see what aptitude you have, what areas you sort of like, what areas you have some skills in, and -- 18 of 24 -- 19 look at possibly work with training. That is, you know, that's probably your most ... best option. Castillon: Well see, for the last 27 years, I've just been driving heavy machines. Gilpin: Hmm... Castillon: I mean that's my job, I drive cranes and looked after cranes and stuff like that, big containers and unloading big, and I mean that's what I've been doing. Gilpin: At the end of the day, I think, you know I suspect you'll have to go down that path anyway. Castillon: Yeah.” (v) after discussing his options, including challenging WorkCover's assessment “through the legal thing”, it was decided that the plaintiff would seek another opinion. The plaintiff stated “... see, I want to get it fixed, I mean, I'm a sportsman and, ah, mate I play sports I need my hands, I mean if I can get them back better than what they are, I'll take a chance”. [48] Dr Stabler saw the plaintiff on or about 23 March 2001. The plaintiff asked if further surgery was likely to be of benefit. Dr Stabler's report states "I was probably even more pessimistic than Dr Gilpin". The opinion expressed by Dr Stabler in his report at the time was as follows: “Because of the degenerative arthritis in his hands and his other upper limb pain (probably from supraspinatus tendonitis in his shoulder) I doubt very much that further carpal tunnel surgery would be likely to be of benefit. He really does not have much in the way of sensorial alteration now and the main problem which he has is discomfort in his hands with stiffness in the mornings or with overuse. The degenerative arthritis in his hands would be causing at least some of his problems although scarring around the median nerve and in the carpal tunnel may also be contributing. I think it is likely that he would be no better off after further surgery, and because of his prolonged period of time off work I would certainly be reluctant myself to entertain any thoughts of further carpal tunnel release. I really think that he should simply go back to work and put up with his symptoms if he can, and if that is not possible, then he should -- 19 of 24 -- 20 seek alternative employment. I realise how difficult that would be at his age, but I do not think that surgery would be a solution for him. I think that he must now accept that three hand surgeons, (Dr Milroy, Dr Gilpin and myself), all feel that surgery would not be his best option, and he will now, I am sure, try to battle on with his current symptoms. Men at this age as you know do start to run into all sorts of problems with physical work, and he may be best to try to change occupations now, rather than to try to do it in another five years or so when it may be impossible for him to get work." [49] The plaintiff decided against further surgery. He wished to continue in employment, but he was actively seeking to persuade his employer to assign him to a position with lighter duties. In part, this was motivated by a concern for the safety of his co- workers if he tried to persist. His employer refused to assign him lighter duties, but the plaintiff was persisting in his endeavours to persuade the employer otherwise. [50] On 22 May 2001 WorkCover issued the Notice of Assessment with respect to the bilateral carpal tunnel syndrome injury. On 6 June 2001 the plaintiff signed "Box A" to indicate that he agreed with the degree of permanent impairment, but only after his solicitor wrote in "for the purposes only of moving on to a common law claim". On 12 June 2001 the plaintiff's solicitors wrote to WorkCover enclosing the executed Notice of Assessment and advising: “You will note that our client agrees with the degree of permanent impairment for the purposes only of moving on to a common law claim. We request you to forward to our office the Damages Certificate within seven days from the date of this letter. We will commence preparation of our client's Notice of Claim for damages and deliver to your office in the near future.” -- 20 of 24 -- 21 [51] The plaintiff’s solicitors then referred the plaintiff to yet another orthopaedic surgeon, Dr Halliday, for a medico legal report. His report, dated 29 June 2001 advised the plaintiff’s solicitors, amongst other things, that: (i) the complainant continued to suffer symptoms as is possible with a small percentage of patients with marked carpal tunnel syndrome at diagnosis; (ii) his condition was permanent; (iii) his work activities continue to aggravate his underlying condition; (iv) Mr Castillon reports that he will be unable to perform his normal work because of his ongoing carpal tunnel syndrome and its associated shoulder pain. He is not able to work in his present employment; (v) it is likely that he will not be able to return to his normal mode of activity; (vi) he would benefit from retraining in another field, although he is resistant to that suggestion; (vii) there is no specific rehabilitation to recommend for Mr Castillon in order to return as a crane operator. His symptoms are too easily aggravated. He would benefit from retraining in a different occupation; (viii) there is no surgical procedure indicated in this case. [52] In his evidence, the plaintiff said that "I never seen hardly any of the reports" and that Dr Halliday told him "you will gradually get back to your old self once you slowly just build up your hand muscles and stuff” (T 86). That seems unlikely given the terms of Dr Halliday’s report and I was not satisfied as to the reliability of the plaintiff’s evidence in this regard. -- 21 of 24 -- 22 [53] On 12 September 2001, the plaintiff was examined by Leslie Stephenson, an occupational therapist. In a report to the plaintiff's solicitors dated 30 October 2001 the plaintiff's position was summarised, in part, as follows: “Mr Castillon is having a lot of trouble coping physically. He reports escalation of pain in his hands after the first 5-10 minutes of work. He is also upset about being overlooked for promotion, in favour of much younger and less experienced employees. He does not feel at all confident of his ongoing job security, although his main problem relates to his inability to cope physically with the work. His work requires him to constantly grip and manipulate steering knobs and gearsticks when operating the various machines. He works an eight hour day, with two 30 minute refreshment breaks. He has no other breaks. He spends seven hours in the machines. He is taking 3 panadols in the morning and 3 panadols in the afternoon to get through his work. He is finding that the medication is becoming less effective, and he is worried that he will have to increase the dosages. He is aware that medically this is not advisable, but he cannot afford not to be working. He feels trapped by his predicament. Mr Castillon is extremely worried about his future outlook and appears to be on the brink of having to give up work. If he did not have problems with his hands, there is no reason why he could not have continued with his work, or returned to any of his previous occupations. In my view, the nature of the work which Mr Castillon is currently performing will only continue to aggravate his symptoms over time, and I do not believe any of his previous occupations would be any more suitable. In light of his ongoing symptoms, lack of suitable alternative skills, and his WorkCover history, there appears every chance Mr Castillon will face premature retirement from the workforce within the very near future. He is currently 50 years of age. Had it not been for his condition, there does not appear to be any reason why he would not have worked until his planned retirement age of 65 years.”8 [54] It seems that, at least by this stage, it was within the plaintiff's means of knowledge that he was suffering from permanent injury which was likely to prevent him from continuing in his position. That was likely to result in significant economic loss. The plaintiff had tried to address that by seeking lighter duties, but had been unsuccessful. The plaintiff had all the relevant facts of a decisive nature concerning 8 Affidavit of Castillon at p 100. -- 22 of 24 -- 23 the nature and extent of the personal injury. Indeed, he had engaged solicitors and, in cross-examination, confirmed that in June 2001 he had decided to sue for the injuries9. There was no suggestion, in the evidence, that his solicitors had given advice that he should not do so, that such an action would not be worthwhile, or that there was any absence of a material fact of a decisive character concerning the nature and extent of the personal injury. Indeed the plaintiff did not disclose what, if any, advice he had from his solicitors or the course of his instructions. [55] That the plaintiff decided to continue to try to fulfil the tasks of his employment until 2003 is understandable. He is a person who appears to be motivated to work. He had financial commitments to meet and, in the absence of an offer of alternative employment, tried to persist as long as possible. It is also understandable that, notwithstanding having been told, by at least 2001, that there was no other position for him if he could not continue as a crane driver10, he would nevertheless continue to persuade his employer, including through representations by his union. Indeed he continues in those endeavours. That does not however, lead to a conclusion that the plaintiff did not have within his means and knowledge a material fact of a decisive character until 2003. [56] While the plaintiff contends that, until that point, he considered that he would always be able to manage his duties and that it was only in 2003 that he “finally concluded that my time as a crane operator might be nearing an end”, I am satisfied that is not the case. Indeed, in cross-examination, he conceded that certainly by September 2001 when he saw Ms Stephenson, he was of the view that he would not 9 T 88. 10 T89. -- 23 of 24 -- 24 be able to continue as a Hyco driver in the future.11 While in the period to 2003 he might have harboured a hope that he would be able to persist to a point where his employer would offer him equally remunerative employment with lighter duties, he had within his means of knowledge, by November 2001, all the material facts of a decisive character relating to the nature and extent of the injury and that it was in his own interests to pursue action. The case is, in my view, different from that of Bougoure v State of Queensland [2004] QCA 485 to which counsel for the applicant referred. [57] I am not satisfied that the requirements of s 31(2)(a) have been met and accordingly I am not prepared to extend the limitation period. [58] Had it been the case that a material fact of a decisive character was not within the means and knowledge of the applicant until 2003, then I would have exercised my discretion in favour of granting an extension, notwithstanding the plaintiff's submissions that there would, in a general way, be some prejudice occasioned by the fading of memory of witnesses with the effluxion of time (no specific prejudice was suggested) and as to the delay in bringing the application for extension. [59] I will allow the parties an opportunity to make submissions as to the appropriate form of orders given my reasons. 11 T90. -- 24 of 24 --