Beaver v State of Queensland [2000] QSC 40

SUPREME COURT OF QUEENSLAND CITATION: Dorothy Jean Beaver v State of Queensland [2000] QSC 040 PARTIES: DOROTHY JEAN BEAVER (plaintiff) v STATE OF QUEENSLAND (defendant) FILE NO/S: S5959 of 1999 DIVISION: Trial Division DELIVERED ON: 7 March 2000 DELIVERED AT: Brisbane HEARING DATE: 22 February 2000 JUDGE: Atkinson J ORDER: Application dismissed. CATCHWORDS: LIMITATION OF ACTIONS – PERSONAL INJURIES – EXTENSION OF TIME – application for extension of time for commencement of action – where applicant suffered from progressive degenerative changes to her lumbar spine due to excessive loading and stress to spine in employment as assistant nurse – whether material fact of a decisive character was within the applicant’s means of knowledge. Limitation of Actions Act 1974 (Qld), s 30, s 31 Byers v Capricorn Coal Management Pty Ltd [1990] 2 QdR 306, followed Carlowe v Frigmobile P/L [1999] QCA 527, considered Dick v University of Queensland [1999] QCA 474; CA No 3204 of 1999, 12 November 1999, followed Eustace v State of Queensland [1999] QCA 502; CA No 8143 of 1999, 3 December 1999, distinguished Ipswich City Council v Smith CA No 5443 of 1997, 29 August 1997, considered Katene v George Weston Foods Ltd CA No 8158 of 1997, 26 March 1998, considered Moriarty v Sunbeam Corporation Limited [1988] 2 QdR 325, followed Peabody Resources Ltd v Norton CA No 200 of 1994, 16 June 1995, followed Sugden v Crawford [1989] 1 QdR 683, followed Taggart v The Workers’Compensation Board of Queensland [1983] 2 QdR 19, followed -- 1 of 8 -- 2 COUNSEL: P O Land for the applicant P D Lane for the respondent SOLICITORS: Kevin Bradley for the applicant Hunt & Hunt for the respondent [1] ATKINSON J: This is an application pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (the “Act”) that the time for commencement of the action be extended to 25 June 1999. This was the date on which the plaintiff commenced an action claiming damages for personal injuries caused by the negligence and/or breach of statutory duty of the defendant over the period from approximately 5 July 1976 to 19 December 1998 at Wolston Park Hospital. [2] The present application for extension of the limitation period was filed on 16 December 1999. The application for extension of time was made pursuant to s 31 of the Limitation of Actions Act 1974 which provides: “Ordinary actions 31.(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person. (2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court - (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly. (3) This section applies to an action whether or not the period of limitation for the action has expired - (a) before the commencement of this Act; or (b) before an application is made under this section in respect of the right of action.” The interpretation of s 31 is governed by s 30 which provides: “Interpretation 30.(1) For the purpose of this section and sections 31, 32, 33 and 34 -- 2 of 8 -- 3 (a) the material facts relating to a right of action include the following - (i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded; (ii) the identity of the person against whom the right of action lies; (iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury; (iv) the nature and extent of the personal injury so caused; (v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty; (b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing – (i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and (ii) that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action; (c) a fact is not within the means of knowledge of a person at a particular time if but only if - (i) the person does not at that time know the fact; and (ii) so far as the fact is capable of being ascertained by the person, the person has before that time taken all reasonable steps to ascertain the fact. (2) In this section – “appropriate advice”, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.” [3] The Court of Appeal has recently remarked unfavourably on the complex and technical nature of these provisions and the fact that they have been a fertile source of litigation: see Carlowe v Frigmobile P/L [1999] QCA 527 at [9]. Applications such as this one are expensive for the parties and use up valuable court resources both at first instance and on appeal. The need for law reform is clear and it has already been the subject of a Queensland Law Reform Commission Report.1 [4] The question to be determined in this case is whether a material fact of a decisive character was within the means of knowledge of the plaintiff, earlier than one year 1 Report No 53, September 1998. -- 3 of 8 -- 4 before the date of commencement of the action.2. It was conceded by the defendant that there was otherwise evidence to support a cause of action and that it had not suffered sufficient prejudice to prevent any discretion being exercised in the plaintiff’s favour. The relevant fact may be material to a right of action if the fact relates to whether negligence, breach of duty or breach of contract by the defendant caused the personal injury; the extent to which the personal injury was caused by the negligence, breach of duty or breach of contract by the defendant; or the nature and extent of personal injury caused by the negligence or breach of duty by the defendant. [5] A material fact will be of a decisive character if, but only if, firstly under subsection 30(1)(b)(i) of the Act, a reasonable person knowing those facts and having taken appropriate advice on those facts would regard those facts as showing that an action on the right of action would 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 secondly, pursuant to subsection 30(1)(b)(ii) of the Act 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, bring an action on the right of action. Appropriate advice means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts. [6] In this case a material fact of a decisive character relating to the right of action must not have been within the means of knowledge of the plaintiff until 25 June 1998 being one year before the commencement of the action. It would not have been within her means of knowledge if she did not know the fact at the time and so far as the fact was able to be found she had taken all reasonable steps to find out the fact before that time. [7] The plaintiff says that the three material facts of a decisive character in this case are the fact that the negligence or breach of duty or breach of contract caused the personal injury3; the nature and extent of the personal injuries so caused4; and the extent to which the personal injury was caused by the negligence or breach of duty or breach of contract5. In order to determine whether there are such material facts of a decisive character it is necessary to examine the history of Ms Beaver’s employment with the defendant. [8] Dorothy Beaver commenced employment as an assistant nurse with the State of Queensland at its Wolston Park Hospital on 5 July 1976. From then until 1991 she mainly worked in the geriatric wards of the Wolston Park Hospital, namely Jenner House, Ellerton House and Gladstone House. Most of the patients had no mobility or ability to support their own weight. During the 15 year period when she worked in these wards, Ms Beaver worked the morning shift from 6am to 2pm which had the heaviest workload. [9] When she worked at Jenner House, the plaintiff was required to bath the residents in high sided baths whose sides came up to her waist. The patients would have to 2 Moriarty v Sunbeam Corporation Limited [1988] 2 QdR 325 at 334 per Macrossan J; Byers v Capricorn Coal Management Pty Ltd [1990] 2 QdR 306 at 307 per Lee J. 3 Section 30(1)(a)(iii). 4 Section 30(1)(a)(iv). 5 Section 30(1)(a)(v). -- 4 of 8 -- 5 be lifted from their beds into wheelchairs, from the wheelchairs over the high sides of the bath and into the bath. Once bathed, the patients would have to be lifted from the floor of the bath over the high sides of the bath into the wheelchairs and then from their wheelchairs onto their beds. There were difficulties getting the patients in and out of wheelchairs as the wheelchairs did not have brakes. In addition she was required to toilet the patients, dress and undress them and take them out of their beds for meals. [10] Although the plaintiff worked mainly in conjunction with other assistant nurses, there were occasions when she had to work alone in order to be able to bath as many of the patients as possible in the first hour and a half of the shift. Even when working in conjunction with another assistant nurse there was never any attempt to match the two nurses for size and weight with the result that, on many occasions, the advantage of using two assistant nurses to lift patients was lost because of the substantial discrepancies in size and weight. In addition to this many of those who worked in conjunction with Ms Beaver lacked experience so she usually found it easier to do the lifting on her own. The plaintiff had to work quickly and the work continuously exposed her to bending, lifting and twisting her lumbar spine whilst under load. [11] Ms Beaver was rostered to Ellerton House from time to time during the 15 years. This ward had 140 geriatric patients some of whom were more mobile than those in Jenner House. However, the baths and wheelchairs were the same. The pattern of work and the speed at which she had to work were the same as in Jenner House. [12] The plaintiff also worked from time to time at Gladstone House which was a ward for male geriatric patients where the patients were a lot heavier. Although there were some male assistant nurses, there was still a lot of heavy lifting to be carried out by the female assistant nurses. The baths and wheelchairs at Gladstone House were the same as those in Jenner House and Ellerton House and had the same problems. The pattern of work in Gladstone House was the same as in the other two houses involving the plaintiff having to work quickly and with constant lifting, bending and twisting of the lumbar spine under load. [13] The plaintiff also worked in the Basil Stafford Unit from time to time over a period of 18 months. This was a children’s ward and many of the children used to lie on the floor which required lifting from a great height. Baths and wheelchairs in this unit were the same as in Jenner House, Ellerton House and Gladstone House. The pattern of work was similar. [14] From approximately 1991 to 1994 Ms Beaver worked in the Medical Centre during the morning shift. Baths and wheelchairs at the medical centre were the same as those in Jenner House, Ellerton House, Gladstone House and the Basil Stafford Unit. The work at the Medical Centre was the same as in wards with constant lifting, bending and twisting of the lumbar spine under load. [15] It appears likely that the work referred to caused excessive loading and stress to the plaintiff’s lumbar spine at L4/5 and that this excessive loading and stress contributed, at least in part, to the marked degenerative changes in the plaintiff’s lumbar spine at that level and made her lumbar spine at the L4/5 level more vulnerable to developing back trouble. -- 5 of 8 -- 6 [16] On 19 September 1991 Ms Beaver experienced sharp pain in her lower back whilst working in the Medical Centre. This was the first time she had experienced any lumbar spine symptoms since commencing work on 5 July 1976. Until that time she had had the odd niggle or ache or occasional stiffness. These were problems that all other assistant nurses had and the plaintiff assumed that these were part and parcel of the work that she had to perform. Until 19 September 1991 she had never taken any time off work because of back problems and she had never seen a doctor because of her back. [17] On 19 September 1991 the plaintiff ceased work and saw her general practitioner and was x-rayed. She applied for and received worker’s compensation. She did not suffer any loss of income and did not incur any expense because of her successful application for workers’ compensation. Ms Beaver was not told that she should consider giving up work or that she should change jobs or that she might do serious damage to her back if she continued working. She was not informed of the contents of the x-ray and remained ignorant of what it showed. She was cleared to return to work on 30 September 1991. [18] Ms Beaver was absent from work for two weeks. She was prescribed the anti- inflammatory drug, Voltarin and received physiotherapy over the next few weeks. After one or two weeks back at work, she took five weeks’ holiday where she was able to rest. When she returned to work her back was painful but not so painful that she could not work. She applied to change shifts to a job that involved less lifting. [19] After a few months of working in a less strenuous position, in April 1992 the plaintiff again experienced quite severe lower back pain and also pain radiating down her legs. This was the first time she had experienced this pain since returning to work. [20] On 18 April 1992, Ms Beaver again consulted her general practitioner. She applied for and received workers’ compensation for medical expenses and physiotherapy but did not take any time off work nor occur any expenses as a result of this incident. Her severe lower back pain settled with daily physiotherapy for several weeks though it did not go away completely. Her doctor wanted her to take more time off work because of her back but she was unable to do so because she needed the money. Her medical certificate noted that she said the pain was caused by an aggravation of a pre-existing problem. [21] Between 18 April 1992 and 19 December 1998, Ms Beaver’s low back pain settled although it did not go away completely. The residual pain did not stop her from working and she did her normal work at least after 2 May 1992. If symptoms were particularly bad she took an occasional day off work but did not lose any income because she had sick leave available. In 1994 Ms Beaver transferred to night shift because by this time all of her children had left home and her husband was working at Wolston Park on the night shift. Night shift work was a lot lighter than the morning shift and that was another reason for transferring to night shift. She told the charge nurse at the Medical Centre, Sister Norris, that it would be easier on her back if she went on night shift. She told fellow employees that she had a bad back. -- 6 of 8 -- 7 [22] In November 1997, Ms Beaver slipped on some mud when she was walking outside the ward. She fell on her buttocks and hurt her wrist. She denied that it stirred up her back but that denial is hard to accept. [23] On 19 December 1998, Ms Beaver slipped on water on the floor again landing on her buttocks. Three days later she started to get severe symptoms in her lower back. She says this was the first time she had experienced those symptoms since 18 April 1992. She consulted a general practitioner and was sent for a CT scan of her lumbar spine. Ms Beaver consulted Dr Redmond who advised her that she had chronic degenerative changes in her lower back and that she might never be able to return to her job. That was the first time she had ever been told that. She has not worked since. Dr Redmond expressed the view that, “[t]he injury which occurred to this lady on 19th December 1998 did not cause the condition referred to as the diagnosed condition . . . The fall of 19th December 1998 has caused aggravation of the pre-existing condition. The employment related fall, occurring on 19th December 1998, was not the major significant factor causing the injury.” [24] It appears likely that the work that the plaintiff performed at the Wolston Park Hospital until 1998 caused excessive loading and stress to the plaintiff’s lumbar spine at L4/5 level. This excessive loading and stress caused, at least in part, the large degenerative changes which the plaintiff has in her lumbar spine at that level and made her lumbar spine at that level more vulnerable. Ms Beaver says that she was not aware of what was happening to her lumbar spine progressively before December 1998. [25] Dr Ian Low, a specialist in industrial health, whose affidavit was not challenged, testified that the excessive loading and stress to the applicant’s spine would have caused the marked degenerative changes that he observed in her spine. In his experience the plaintiff would not necessarily have been aware of the progressive degenerative changes to her lumbar spine. In view of the evidence of the pain she had suffered and the medical treatment she received however it appears to me to be more likely than not that Ms Beaver was aware that there were chronic degenerative changes to her lumbar spine. [26] If the fact said to be newly learnt was the advice on 28 January 1999 that she would be unlikely to return to her work then that is a fact going only to the quantum of her loss.6 [27] If the plaintiff was unaware of that material fact, it was within her means of knowledge before 25 June 1998. The test for whether or not a fact was within her means of knowledge depends on whether she took all reasonable steps to find out that fact7. This test has both subjective and objective elements8. What is relevant is the means of knowledge of the plaintiff and not of some hypothetical reasonable 6 Peabody Resources Ltd v Norton CA No 200 of 1994, 16 June 1995; Ipswich City Council v Smith CA No 5443 of 1997, 29 August 1997; Katene v George Weston Foods Ltd CA No 8158 of 1997, 26 March 1998. 7 Moriarty v Sunbeam Corporation Limited (supra) at 329; Taggart v The Workers’Compensation Board of Queensland [1983] 2 QdR 19 at 23-24; Sugden v Crawford [1989] 1 QdR 683 at 685. 8 Dick v University of Queensland [1999] QCA 474; CA No 3204 of 1999; 12 November 1999 at [36] per Thomas JA. -- 7 of 8 -- 8 person9. She had symptoms which would have led a person in her position reasonably to make enquiries of a medical practitioner. To require her to do so does not involve a degree of hindsight.10 She suffered chronic back pain for a number of years with occasional severe pain. By 25 June 1998, the plaintiff should have regarded the facts of which she was aware, having taken appropriate advice, as showing that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have had a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action which she ought in her own interests to have brought. [28] Applying the test found in s 31 of the Act, the plaintiff has not established that a material fact of decisive character was not within her means of knowledge until a date after the commencement of the year last preceding the expiration of the period of limitation for the action. Her application must therefore be refused. 9 Dick v University of Queensland (supra) at [30] per Thomas JA. 10 cf Eustace v State of Queensland [1999] QCA 502; CA No 8143 of 1999, 3 December 1999, per McMurdo and Davies JA at [14]. -- 8 of 8 --