Elkin v Irish Linen & Textiles Wholesale Pty Ltd [1996] QSC 30

_Jf; State Reporting B~::;;u TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authorily of the Director, State Reporting Bureau./ SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DERRINGTON J No 1730 of 1995 PATRICIA MAY ELKIN and IRISH LINEN & TEXTILES WHOLESALE PTY LTD BRISBANE .. DATE 14/02/96 JUDGMENT : F.E1/ISES CCP!ES 1SS!..:cD ·, ; Date < ,, /I . s) , 7_1c_,___, Plaintiff Defendant -- 1 of 6 -- 140296 T1/mmb M/T523/96 (Derrington J) HIS HONOUR: This is an application by a plaintiff for an order that the period of limitation for that part of her claim arising between 1 January 1984 and 18 September 1992 be extended so as to expire on 19 September 1995 pursuant to the provisions of the Limitation of Actions Act 1974 and more particularly section 31 thereof. The issue in this case is whether the plaintiff had knowledge or the means of knowledge of a material fact of a decisive character relating to the right of action, that material fact of a decisive character having been identified by both sides as going to the extent of the lady's injury and disability. It was of an insidious, progressive nature, taking the form of the development of pain and discomfort in her right shoulder associated with other minor symptoms, developing over a period of years as the result of the nature of the use of her arm at her work and incrementally producing the formation of calcification of her arm's rotator cuff. The chronology might be briefly stated as follows. She commenced working for the respondent part-time in 1980. By 1984 she was working for about 30 hours per week and it was in that year that she first experienced symptoms of pins and needles in her right hand and soreness in her right elbow and right shoulder. From 1984 to 1994 she had continuing problems with the shoulder. On 5 December 1991 she saw Dr Finden, a general practitioner, as her symptoms were causing her concern. She had five treatments of acupuncture in about 1993 and during these years seems to have had half- yearly injections of Cortisone in her shoulder. 2 JUDGMENT 20 30 50 60 -- 2 of 6 -- '140296 T1/mmb M/T523/96 (Derrington J) In 1991 Dr Finden sent her to Dr Peter Landy, an eminent neurologist. Al though he found some slight reversal of the cervical lordosis with minor degenerative changes at CS/6 there was no suggestion of any compromise of the nerve roots. He suggested some shoulder elevating exercises, heat and some antidepressant medication. He observed that she was apparently very unhappy in her job and he thought that this may be a factor adding to the problem. The lady herself was of the view that Dr Landy thought that there was nothing organically wrong with her and from the terms of his report to her general practitioner it is understandable that she may have been of that impression. She continued working and on 19 September 1994 again saw Dr Finden when she told him that she had had a painful right shoulder for many years and it had now reached a stage where it was too difficult for her to work as well as to perform many of the normal household chores. In her own words she told him that she could not work any longer because of the painful right shoulder. There does not seem to be any serious discrepancy between the various pieces of evidence on this point and it should be understood as meaning that she told him that because of the degree of pain she was suffering in doing that work she could no longer continue it. That cannot and should not be interpreted as being any indication of an understanding on her part that the pain could not be remedied by medical treatment in such a way that might enable her to return to work. Rather it was an expression of opinion that the degree of pain that she was then experiencing was such that she could not work in those circumstances. 3 JUDGMENT 20 30 50 -- 3 of 6 -- 140296 T1/mmb M/T523/96 (Derrington J) This is a very significant point because the application is opposed by the respondent on the ground that the lady's knowledge of the degree of her injury, even prior to seeing the doctor, must have been such as to amount to knowledge of the nature and extent of her injury. Therefore, it is argued, the writ was not issued within a year of her having acquired ei_, such knowledge. That is just not so. The interview with her general practitioner was just within the time of one year prior to the issue of the writ as specified by the statute. He sent her to a physiotherapist 20 who saw her within a month and as the result of his advice she was sent to an orthopaedic specialist who saw her on 6 October 1994, which was even further within the prescribed time. It is for this reason that learned counsel for the respondent directs his attention logically to the submission on his part 30 as to the nature and extent of the applicant's understanding prior to seeing her general practitioner on that occasion. It is undoubtedly true that she was aware that she was suffering from a significant condition and that it was deteriorating and indeed that it had deteriorated to the extent that she could not continue to work in these conditions. However that is not the essential point. At that time she had some difficulty with medical identification of the nature of her injury, the treatment that might be available for it and the consequences, particularly the consequences that she would be left permanently in substantially the same condition and particularly would be substantially disabled from working notwithstanding correct 4 JUDGMENT 50 -- 4 of 6 -- ,, 140296 T1/mmb M/T523/96 (Derrington J) medical attention and treatment. There was certainly room for her to have concern as to the validity of her complaint and her capacity to establish, first, that she had a condition such as she complained of and, secondly, that it was a condition attributable to her work, rather than something of a subjective, perhaps neurotic, nature. In that respect it is relevant, as the authorities disclose, (Byers v. Capricornia Coal Management Pty Ltd), that she continued to work without being fully or reasonably apprised of the nature of her condition and supposed duration and its consequences. There is a considerable distinction drawn between that state of knowledge and the state of her knowledge when she was given details of the orthopaedic specialist's identification of the problem as being organic, and relatively permanent. The fact that she continued to work enables the Court to draw an inference that she may have had some hope or expectation of relief from the condition by way of abatement in the absence of a definitive diagnosis and explanation of its nature. The same fact indicates that the lady was not prone to fly to litigation, which has received the mark of approval in some cases. In her situation it is quite reasonable to undeootand her difficulty in fully and correctly knowing her position in relation to her condition having regard to the medical uncertainty with which she had been faced to that time. With respect to the fine argument of learned counsel for the 5 JUDGMENT 10 20 3C 50 F,Q -- 5 of 6 -- 140296 T1/mmb M/T523/96 (Derrington J) respondent, it is not enough that she simply knew that she was suffering serious pain and that she knew that she could not continue in those circumstances. That does not mean that she knew that the pain and disability which it produced was permanent. In those circumstances, according to the trend of the authorities, she should be granted the relief claimed. An order is therefore made in the terms of the application and the costs of the application should be costs in the cause. 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 6 --