Eustace v State of Queensland [1999] QCA 502

SUPREME COURT OF QUEENSLAND CITATION: Eustace v State of Qld [1999] QCA 502 PARTIES: CHERYL NOLA EUSTACE (Plaintiff/Respondent) v STATE OF QUEENSLAND (Defendant/Applicant) FILE NO/S: Appeal No 8143 of 1999 DC No 2053 of 1999 DIVISION: Court of Appeal PROCEEDING: Civil application pursuant to s 118 District Court Act 1967 ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 3 December 1999 DELIVERED AT: Brisbane HEARING DATE: 10 November 1999 JUDGES: McMurdo P and Davies JA, Williams J (diss) ORDER: Application for leave to appeal refused. CATCHWORDS: LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – Application for leave to appeal against order of District Court judge to extend period of limitation pursuant to s 31 Limitation of Actions Act 1974 – respondent suffered two separate back injuries during her employment and did not institute proceedings for the first injury until limitation period expired – whether a reasonable person in the position of the respondent would have had reason to attribute to the first injury a basis for a worthwhile cause of action Limitation of Actions Act 1974, s 31(2) COUNSEL: Mr B L P Hoare for the applicant Mr R J Douglas SC for the respondent SOLICITORS: Bradley & Co for the applicant Cusack Galvin & James for the respondent [1] McMURDO P and DAVIES JA: This is an application, pursuant to s 118 of the District Court Act 1967 for leave to appeal against an order made by a District Court judge that the period of limitation for an action be extended so that it expired on 9 June 1999. At the outset of argument the Court indicated to the parties that, if they agreed, it would, without deciding the question of leave, hear argument on the -- 1 of 6 -- 2 appeal on the basis that, if it granted leave, it would also give judgment in the appeal. Both parties agreed to that course. [2] It is convenient to refer to the respondent as the plaintiff and the applicant as the defendant. The action in which the order was made was one for damages for personal injuries alleged to have been caused by the negligence of the defendant as the plaintiff's employer in respect of injuries which the plaintiff suffered in the course of her employment on 8 May 1996 and 30 August 1997. [3] The plaint in this action was issued on 26 May 1999. By that date the limitation period had expired in respect of the first but not the second of the above injuries. The order against which the defendant seeks to appeal was made in respect of the cause of action for the first injury. It was made pursuant to s 31 of the Limitation of Actions Act 1974. Pursuant to s 31(2) his Honour might have extended the period of limitation in the way in which he did if it appeared to him – (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the plaintiff until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) there was evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation. By the time of oral argument in this appeal it was common ground between the parties that neither the second of those questions, nor the question whether, if satisfied as to the factual matters referred to in (a), the learned judge wrongly exercised his discretion in extending the period of limitation as he did, were in issue. The only question before this Court is whether his Honour was wrong in being satisfied as to the factual matters in (a). [4] The question before this Court may therefore be put more specifically in the following way: whether, prior to 26 May 1998, a reasonable person in the position of the plaintiff would have had reason to attribute to the first injury (as opposed to the second injury) a basis for a worthwhile cause of action. It is common ground between the parties in this Court that that is the question and that his Honour stated it correctly. The only question is whether his Honour was wrong in answering it in the negative. In order to determine whether his Honour erred in answering that question in the way in which he did it is necessary to examine the facts in a little more detail. [5] The plaintiff was an enrolled nurse1 working in the defendant's hospital. At the time of her first injury on 8 May 1996 she was 47 years of age. She injured her back whilst lifting a male patient with the assistance of a wardsman. She felt some pain immediately but thought it would settle down and did not report it for a few days. When it did not settle down she reported it and consulted a doctor. When her condition had not improved after a few months she consulted a specialist, Dr Sharwood, who mentioned surgery as an option. It was the option which she chose. He performed a lumbar laminectomy on 29 August 1996. She made a good 1 No evidence was given of the level of education of an enrolled nurse and no inference should be drawn merely from that description of her occupation as to the possession of any medical knowledge. -- 2 of 6 -- 3 recovery from this operation. She commenced rehabilitative work in November 1996 and by February 1997 she had resumed her full duties including lifting. She still had some residual intermittent low level back pain but this did not prevent her from working or, apparently, restrict her in her work. [6] During none of this period did the plaintiff suffer any loss of earnings or incur the cost of any medical expenses. She was fully reimbursed either by Workcover or the defendant. [7] Prior to her second injury the plaintiff thought that her surgery and rehabilitation had been fairly successful. She was optimistic that she would be able to continue working in her usual occupation until normal retirement age. [8] The plaintiff continued in her work until 30 August 1997 when she suffered a second injury in similar circumstances to the first. She was lifting a patient when she felt pain in her back. She continued working, though apparently with pain for another nine or 10 days but, as far as she could recall, did not engage in any further lifting. From 1 September she was taking Panadeine and Valium or Panadeine Forte and Valium. She was initially treated with rest and rehabilitation, together with analgesics, but her symptoms became worse and she underwent an exploratory operation of her back, again by Dr Sharwood, in December 1997. At that operation it was found that there was a recurrent disc lesion at the L4-5 nerve roots and that the nerve root canals were extremely tight. Wide decompression of the nerve root canals and removal of the scar tissue and residual disc material were performed. [9] Initially the plaintiff appeared to make a good recovery from this operation but, after attempting a return to work in February 1998 she found it impossible and it became apparent to her that she would never return to work. Given the apparent success of the first operation and her condition following it she believed that this second injury was far more significant than the first. [10] When it became apparent to her that she could not work she consulted a solicitor, Mr James of the plaintiff's solicitors. This was in early March 1998. When she first instructed her solicitors neither she nor her solicitor had a report from Dr Sharwood or the benefit of Dr Sharwood's opinion or any competent estimate of the extent of the disability which she then suffered and whether any part of it was caused by the first injury. Mr James formed the view that there were distinct causes of action arising out of the injuries in May 1996 and August 1997 but was not in a position to form any opinion as to whether any of the plaintiff's current disability resulted from the first of those injuries. He wrote to Dr Sharwood on 25 May 1998 seeking a report in respect of those matters. Dr Sharwood's report is dated 27 May 1998 and was received by the plaintiff on 9 June 1998. In it he expressed the view that the plaintiff had a 25 per cent disability 10 per cent of which was attributable to the first injury and 15 per cent of which was attributable to the second injury. It was the attribution of Dr Sharwood of 10 per cent of her continuing disability of the first injury which, the plaintiff said and his Honour found, was the material fact of a decisive character which would have caused a reasonable person in the position of the plaintiff, for the first time, to consider that the first injury was the basis for a worthwhile cause of action. -- 3 of 6 -- 4 [11] There is no reason to believe that, if Mr James had sought that report shortly after obtaining instructions from the plaintiff which was, at the latest, on 11 March 1998, such a report would not have been forthcoming within two or three weeks of that date. There is no explanation from Mr James as to why he did not seek that report until 25 May. But whether or not Mr James was negligent in failing to obtain it sooner, we do not think that the plaintiff was unreasonable in leaving the conduct of whatever cause or causes of action she had in Mr James' hands on 11 March, including the obtaining of any necessary medical reports, or that she was unreasonable in failing to follow this up before 26 May. [12] For reasons which have already emerged it is unnecessary to consider the course of events after that date. It is plain from what has been said that, prior to 26 May 1998, the plaintiff did not attribute to the first injury a basis for a worthwhile cause of action. She had been able to return to work after it and had lost nothing financially. She was optimistic that she would be able to continue in her usual work until retirement age. Indeed it did not occur to the plaintiff that she might have a basis for a worthwhile cause of action until she found herself unable to work after the second injury. It was then that she immediately saw a solicitor. But even then she believed that any basis which she might have for a worthwhile cause of action emanated from the second injury rather than the first and that belief continued up to 26 May 1998. The question is whether she was reasonable in maintaining that belief until then. [13] The defendant submitted that, even assuming that the plaintiff did not attribute to the first injury, before 26 May 1998, a basis for a worthwhile cause of action, there were facts which gave her reason to do so and which should have persuaded his Honour that there was reason to do so. The first injury was a serious orthopaedic injury2 and it was productive of observable economic loss, albeit that the plaintiff had been reimbursed in respect of that. It was submitted that, by the time of the second injury, which she had been informed was to the same disc, any reasonable person in her position would have been concerned as to what effect each of these injuries had on her overall level of disability and would have made appropriate inquiries. [14] However that conclusion, in our view, involves a degree of hindsight. It must be remembered that she had made what she believed to be a successful return to work after the first injury and that, by contrast, she found herself totally disabled from work after the second injury. It was not unreasonable of her to think, therefore, that virtually the whole of her disability at that time was caused by the second injury. Moreover when she realized that she was totally disabled from work after the second injury, which was when she attempted to return to work in February 1998, she lost no time in consulting a solicitor. [15] Nothing in the meeting with Mr James in March would have disabused the plaintiff of her view. At least some of the problems caused by the Workers' Compensation Act 1990 were explained to her by Mr James. One of these problems was that the less that the first injury was responsible for her continuing disability after the second injury the more the plaintiff would be at risk as to costs if she commenced an action in respect of that injury and consequently the less worthwhile an action in 2 Though not a serious injury within the meaning of Part 11 of the Workers' Compensation Act 1990. -- 4 of 6 -- 5 respect of that injury would be. But whether or not this was fully explained, a reasonable person in the plaintiff's position, being already convinced in her own mind that it was the second injury which was responsible for her continuing disabilities after the second operation, would not have been acting unreasonably in failing to be satisfied that she had a worthwhile cause of action in respect of the first injury until her own impression was proved wrong by expert evidence. [16] For the reason we have already mentioned, the delay by Mr James, from 11 March to 25 May, in seeking Dr Sharwood's opinion does not, in our view, affect the reasonableness of the continuing belief by the plaintiff, until receipt of Dr Sharwood's report on 9 June, that the first injury was not a basis for a worthwhile cause of action. [17] As has been said in this Court on more than one occasion, a factual assessment such as this is one on which reasonable minds may differ. It is not for this Court, in such circumstances, to substitute its view for that of the primary judge, especially where, as here, the application is one for leave to appeal. In our view the conclusion reached by the learned primary judge on this question is not in error. We would therefore refuse leave to appeal. [18] WILLIAMS J: The relevant facts are set out in the reasons for judgment of McMurdo P and Davies JA. As their Honours therein noted the critical question was whether or not “a material fact of a decisive character relating to the right of action was not within the means of knowledge of the plaintiff” until a date after 8 May 1998. [19] I would answer that question differently to McMurdo P and Davies JA, and I can state my reasons shortly for so concluding. [20] During the three year period between sustaining the injury and the expiration of the limitation period new facts relevant to the injury and quantum will frequently come to light. Particularly as the injured person’s legal advisers obtain statements from witnesses and reports from medical advisers more facts will become known to the injured person. But not all such facts will meet the description of “a material fact of a decisive character relating to the right of action”. To be decisive for purposes of that test the fact would have to change the injured person’s thinking from either not knowing that a cause of action existed or that a probable cause of action was not worth pursuing to a state of mind that the cause of action was worth pursuing and should be pursued. [21] The words “within the means of knowledge of the plaintiff” must not be overlooked. A fact which meets the test of being of a decisive character is within the plaintiff’s means of knowledge if that fact can be ascertained by asking a lawyer or doctor a simple question and it is a question which a reasonable person in the position of the plaintiff would ordinarily ask. [22] The plaintiff in this case was an experienced enrolled nurse. As is disclosed in her statement exhibited to her affidavit she was born in New Zealand on 16 September 1948 and completed her High School Certificate there. After marrying she commenced nursing training at Stratford Hospital, Taranaki in 1973 and became an enrolled nurse in 1975. She worked as such in New Zealand until 1980 with some -- 5 of 6 -- 6 breaks when she worked in her husband’s business. After the family moved to Brisbane in October 1980 she obtained employment as an enrolled nurse at the Prince Charles Hospital. In about 1985 she transferred to the Bald Hills Hospital where she continued as an enrolled nurse until the events giving rise to these proceedings. Thus for some seventeen years she worked continuously as an enrolled nurse in Queensland. The qualifications for such are set out in the Nursing Act 1992 (see sections 54, 55, 56, 57, 58, 61 and 75). [23] For present purposes the first critical event was the operation for a lumbar laminectomy on 29 August 1996 after suffering an injury on 8 May 1996. Thereafter she had intermittent low level back pain which did not prevent her from returning to work. She sustained her second injury on 30 August 1997. That necessitated further surgery at the same L4-5 level. The one orthopaedic surgeon performed both operations. The plaintiff attempted to return to work in February 1998, found it impossible, and then concluded that she would never be able to return to work as an enrolled nurse. [24] The plaintiff consulted her solicitor in early March 1998. At that point of time a simple question to the orthopaedic surgeon, Dr Sharwood, would have elicited the answer that the first injury and its aftermath contributed significantly to her permanent condition as and from March 1998. [25] Effectively that question was not put to the doctor until 25 May 1998. There was nothing in the doctor’s reply received on 9 June 1998 which was not readily ascertainable by addressing the question to him at an earlier point of time. [26] In the circumstances I am not persuaded that the doctor’s report received on 9 June 1998 made the plaintiff aware of a material fact of a decisive character relating to the right of action which was not within her means of knowledge at least from the time of the second operation in December 1997. If the plaintiff did not by March 1998 realise that the first injury and first operation contributed in a material way to her then condition, an ordinary reasonable person in her position would have asked that question of her doctor and thus have obtained knowledge of the decisive fact. [27] It follows, in my view, that the plaintiff has not satisfied the test pursuant to s 31 of the Limitation of Actions Act 1974. [28] I would grant leave to appeal, allow the appeal, and set aside the order that the period of limitation be extended so that it expired on 9 June 1999. The respondent should pay the appellant’s costs of the appeal to be assessed. -- 6 of 6 --