Eustace v State of Queensland [1999] QDC 229

IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND [Before FORDE DCJ] [Cheryl Nola Eustace -v- State of Queensland] Plaint No 2053 of 1999 BETWEEN: CHERYL NOLA EUSTACE Plaintiff AND: STATE OF QUEENSLAND Defendant JUDGMENT Judgment delivered: 16 August 1999 Catchwords: Limitations of Actions. Personal injuries - extension of time. Limitation of Actions Act, s.31(2) - material fact of a decisive character - discretion - Brisbane South Regional Health Authority v. Taylor -- 1 of 8 -- (1996) 70 ALJR 866. Counsel: R. Douglas S.C. for Applicant/Plaintiff B. Hoare for Respondent/Defendant Solicitors: Cusack Galvin & James for Applicant/Plaintiff Bradley & Co. for Respondent/Defendant Hearing Date(s): 2 August 1999 -- 2 of 8 -- IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND Plaint No 2053 of 1999 BETWEEN: CHERYL NOLA EUSTACE Plaintiff AND: STATE OF QUEENSLAND Defendant REASONS FOR JUDGMENT -FORDE D.C.J. Delivered the 16th day of August 1999 1. This is an application for extension of time pursuant to s.31(2) of the Limitation of Actions Act. The Court has a discretion to extend a limitation period where the applicant identifies a material fact of a decisive character relating to a right of action which was not within that person’s means of knowledge at the material time. The applicant must also show that there is evidence to establish his right of action apart from the defence that could be founded on the expiration of the limitation period. In the present case, the respondent does not take issue with the applicant on the question of whether there is evidence which would support the right of action which the applicant is alleging, namely a breach of duty and or negligence. Therefore, it is necessary for the court to identify the “material fact” relied upon by the applicant and to then determine whether the alleged material fact was (a) of a decisive nature and (b) not within the applicant’s knowledge or means of knowledge at any material time. It is common ground that the material fact of a decisive nature would be required to have been known some time after 26th May, 1998. The Plaint was issued on 26th May, 1999. -- 3 of 8 -- 2 2. The applicant, Cheryl Nola Eustace, was born on the 16th of September 1948. She began employment as an enrolled nurse in or about 1980. She had completed her high school certificate in New Zealand. In 1985, she transferred from Prince Charles Hospital to the Bald Hills Hospital and Young Disabled Living Unit. This unit cares for persons who are quadriplegic, paraplegic, and intellectually disabled or suffering from head injuries. 3. Up until 1996, she states that a big percentage of lifting was done by two persons. After some changes following the Workplace Health and Safety Act, she injured her back whilst attempting to lift a 95kg patient with the assistance of a wardsman. At that time the resident was not classified as a hoist lift. After her accident the patient, David Fuller, was reclassified. This incident occurred on the 8th day of May 1996. She continued to work until the 24th day of May 1996 when she consulted Dr Rakhai at the Corry Street Medical Clinic, Chermside. On or about the 1st of June 1996, she applied for Workers’ Compensation and was paid statutory benefits from the 1st day of June 1996 to the 29th day of November 1996. After a period of non-operative treatment, she underwent a lumbar laminectomy in August 1996. Following rehabilitation, she returned to work in February of 1997. She regarded the operation as successful and was able to continue working and believed that she would continue to work until normal retirement age. She had not effectively been out of pocket as a result of the injury in May 1996. 4. On the 30th day of August 1997 she suffered a further back injury and worked for some 10 days thereafter but then stopped because of the pain. She underwent further surgery in December 1997. Notwithstanding attempts to return to work and rehabilitate, it became apparent to the applicant that she would not be able to return to her former employment. 5. She consulted her solicitor Mr James in or about March 1998. Mr James formed the view that there were two distinct causes of action with different consequences. As a result he sought a report of Dr Sharwood. The report of Dr Sharwood was received by his firm on the 9th day of June 1998. As a result of that report, Mr James forwarded the report to WorkCover and requested the damages certificate pursuant to the WorkCover Queensland -- 4 of 8 -- 3 Act 1997. After receipt of the WorkCover’s response on 1st July and his response to it enclosing the plaintiff’s acceptance of the assessment and the rejection of the lump sum offer in respect of the first injury, proceedings were not commenced in respect of that first injury forthwith. After receiving advice from counsel it was proposed to consolidate the cause of action in respect of the first injury in the same action as the cause of action in respect of the second injury. Such latter cause of action could not then be commenced because the procedural steps under the WorkCover Act had not been completed. 6. The applicant had provided a lengthy statement in March 1998. There seems little doubt that the applicant was optimistic after her first injury and even after the second injury that she could return to work. Her affidavit, filed on the 28th day of June 1999, states that it was not until she received the lump sum of compensation for WorkCover on or about the 2nd day of July 1998 that she was able to make a decision about bringing common law proceedings. It was not until that time that she knew for certain that an independent body namely WorkCover Queensland had adjudged her permanent impairment as being 10% referable to the first incident. She had earlier discovered on or about the 9th day of June 1998 the assessment by Dr Sharwood. I accept the facts as outlined. 7. The applicant relies upon two bases for the aspect of the material fact of a decisive character. Namely, that on or about the 9th day of June 1998 upon receipt by her solicitors and her reading the content of the report of Dr Sharwood which was dated 27th of May 1998 and received by the plaintiff’s solicitors on 9th of June 1998 she learned of the 10 per cent disability referable to the first accident. Alternatively, on or about the 2nd day of July 1998 upon the receipt by the plaintiff of a lump sum assessment from WorkCover in respect of the first injury attributing, consistent with the report of Dr Sharwood, a 10% disability deriving from that injury (with 15% attributed to the second injury) was then known to her. Principles to be Applied -- 5 of 8 -- 4 8. In Pizer -v- Ansett Australia Limited (unreported Qld C.A., No. 6807 of 1998, 29th September 1998) at paragraph 16 Thomas JA stated a principle relevant to the present case:- “The following position poses the test that is critical to the determination of this case. If a reasonable woman, knowing what the plaintiff must have known, and having taken appropriate advice on those facts would have regarded them as showing that a right of action would have reasonable prospects of success resulting in an award of damages sufficient to justify the bringing of the action and that she ought in her own interest to bring it, then the plaintiff fails to show “that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant” prior to necessary date.” 9. An important passage in that quote is “would have reasonable prospects of success resulting in an award of damages sufficient to justify the bringing of the action”. 10. As stated by the applicant and which is not disputed, she was not out of pocket in relation to the first injury. She was determined to get back to work and did so. She can not be penalised for being so stoic and optimistic. There is no medical advice which counselled her in any other direction. I attach to these reasons for completeness a chronology. The facts in that chronology are not disputed. The facts had been proved to my satisfaction in any event. 11. Section 30(c) of the 1974 Act provides:- “(c) a fact not within the means of knowledge of a person at a particular time if, but only if-- (i) a person does not at that time know the facts; and (ii) as far as the fact is capable of being ascertained by the person, the person has before that time undertaken all reasonable steps to ascertain the fact.” 12. As stated in Healy -v- Femdale Pty Ltd (Unreported, Qld C.A., No. 37 of 1992, 9th June 1993) page 3 that where there is a single injury and the applicant gets on with her life and work without any serious difficulty, then the need for enquiry may be dispensed with. In my view this was the situation in the present case. -- 6 of 8 -- 5 13. I accept her counsel’s submission that prior to the receipt of Dr Sharwood’s report a reasonable person in the position of the plaintiff would have no reason to attribute to the first injury (as opposed to the second injury), and in respect of which she was adequately compensated, a basis for a worthwhile cause of action. The plaintiff, I find, acted properly and promptly in seeking advice from solicitors following the abortive attempt to return to work after the second injury. In my view, the material fact of a decisive nature was not within the means of knowledge of the plaintiff within the meaning of the Act prior to the receipt of Dr Sharwood’s report by her solicitors. Prejudice 14. No prejudice is deposed to by the defendant in the present case. WorkCover, the defendant’s insurer, knew from July 1998 upon the rejection of the lump sum offer and election to proceed at common law, that the plaintiff would commence proceedings. The defendant’s own documents establish the fact that the issue of what was appropriate for lifting of the relevant patient was the subject of investigation by the defendant. General Discretion 15. It was submitted by the defence counsel that the solicitors for the applicant were well aware that she had a right of action against the defendant by March 1998 and that it was worth pursuing. It was suggested that the solicitor simply forgot to institute proceedings within time. The reasons have been referred to by Mr James. In exercising the discretion to enlarge time, I have had regard to the decision of Brisbane South Regional Health Authority -v- Taylor (1996) 70 ALJR 866. When considering the conduct of the solicitor in the present case as a ground for refusing to exercise the discretion, one has to have regard to such cases as Farrell -v- Myer Stores Limited Plaint No. 230 of 1997 decision of McGill DCJ delivered 17th October 1997. Several points were argued in that case about the failure by the solicitors to act in time. In dealing with this matter, his Honour Judge McGill stated that even though an applicant may have a possible cause of action against her solicitors, that is not determinative in a case of this nature. For example in -- 7 of 8 -- 6 Noia v. Civil & Civic Pty Ltd (1991) 93 ALR 24 224 at 239, the Full Court of the Federal Court said that the availability of an alternative remedy against a solicitor was a relevant consideration although ordinarily it would not prevent an extension. When one looks at the chronology in this case and the problem of two accidents together with the added requirements under the WorkCover legislation, it seems appropriate in this case that the discretion ought to be exercised in favour of the applicant. Orders 16. It is ordered that the period of limitation for this action be extended so that it expires on 9th June 1999. It is further ordered that the costs of and incidental to this application be costs in the cause. -- 8 of 8 --