Crooks v Honecombes Sales & Service Pty Ltd [1995] QSC 282

. ( ' ' · f{f4-t IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE w. No. 12 of 1994 BETWEEN: GAVIN WILLIAM CROOKS AND: HONEYCOMBES SALES AND SERVICE PTY. LTD. J;IJ.ai.Rl;ieff 9ru...1 Defeftdaut ~rJ>v..M., REASONS FOR JUDGMENT - CULLINANE J. DELIVERED THE THIRTEENTH DAY OF NOVEMBER, 1995 . The Plaintiff seeks an order pursuant to Section 31 of The Limitation of Actions Act 1974 as amended that the time for the institution of proceedings against the Respondent in respect of an injury sustained by him in the course of his employment with the Respondent on the 18th August, 1989, be extended so that it expires on the 26th January, 1994. A Writ of Summons was issued on the 25th January, 1994. There is evidence to satisfy the requirements of Section 31 (2)(b) and this was not the subject of any contest before me. The Plaintiff alleges that a material fact of a decisive nature was not within his knowledge or means of knowledge until he saw Dr. Trace, a general practitioner in Ayr, in August 1993 and Dr. Rossato, a neurosurgeon in Townsville, in October 1993, namely that he had a permanent disability of the spine arising from the accident and which was the result of a damaged disc or discs. The Plaintiff has also seen Dr. Low, -- 1 of 11 -- 2 an orthopaedic surgeon, since the time the writ was issued and he has expressed the view that the Plaintiff should seek light work. His view is that the Plaintiff's problems are the result of lumbar disc degeneration with the accident having produced symptoms in what was an already degenerate back and that his condition is permanent. The Plaintiff had suffered back symptoms from the time of the accident but says that these were understood by him as a result of what he was told by doctors he consulted to be the consequence of a "sprain" which would resolve itself and that he had not been made aware that his symptoms were disco-genie in origin and permanent. The contest before me concerned two issues. The first was whether the Plaintiff knew or had the means of knowledge that his back condition was permanent or likely to be permanent (something which as the matter was conducted before me depended upon the question of whether he knew or had the means of knowledge that his problems were disco-genie in origin or the result of a sprain which would resolve itself). The second was whether, whatever his belief as to the nature and cause of his problems, a reasonable person in his position would have instituted proceedings. The Plaintiff consulted Dr. Trezise, a general practitioner in Ayr, on the 24th August, 1989. Dr. Trezise is a deponent in the proceedings and was cross-examined by Counsel for the -- 2 of 11 -- ( ( 3 Plaintiff. Dr. Trezise arranged for x-rays to be taken and a subsequent CT Scan on the 6th September. On the 8th September, 1989 the Plaintiff deposes to having seen Dr. Trezise to obtain the results and says that he was told by Dr. Trezise that he was suffering a "back strain" and that he (the Plaintiff) "would have to see how it went." ,1 Dr. Trezise in his affidavit and in two reports says that he told the Plaintiff that his pain was disco-genie. This was after receiving the CT scan showing a protrusion. He says he told the Plaintiff that over the following two to three months the condition might improve slightly but that he would be "stuck for the most part with an early disc protrusion which might get well or go on to produce a neurological state which might require operation." In his clinical records Dr. Trezise notes beside the date 8 SEP.1989 "LS/S1 disc protrusion". This would accord with the report that had been obtained consequent upon the CT Scan. The Plaintiff had seen a chiropractor on the day following the accident, and after several visits the chiropractor recommended that the Plaintiff should consult a doctor. -- 3 of 11 -- ! ( ! • I ( 4 In all the Plaintiff was away from work for some eight weeks although his symptoms have continued since that time with temporary relief being obtained from various forms of treatment. The Plaintiff says that prior to the 8th September Dr. Trezise had told the Plaintiff on a couple of occasions that he was suffering from a back strain. The Plaintiff was referred by Dr. Trezise to a physiotherapist and at his own request was referred to a chiropractor. Dr. Trezise in evidence was a good deal less definite than he had been in his affidavit or reports. He said that he had no recall of matters and relied upon his notes, which were somewhat cryptic, and his general practice. He acknowledged that he may have told the Plaintiff on the first occasion that he was suffering from a back "sprain" but rejects the suggestion that he repeated this after receiving the CT scan. The Plaintiff's wife says that at either the end of August or the beginning of September she attended Dr. Trezise's rooms and that in the course of a conversation Dr. Trezise said that any chiropractor would have the Plaintiff fixed within three weeks. She says that she made a note of this at the time and this is exhibited to her affidavit. Apparently as a result of information he had received from his -- 4 of 11 -- ( 5 father, the Plaintiff saw Dr. Leong, a general practitioner in Townsville, on the 20th September, 1989. Dr. Leong has provided a report of his treatment of the Plaintiff which was extensive and continued until October 1993. When he saw the Plaintiff in October, 1993 he had not seen him since October the previous year. The treatment included regular acupuncture. The Plaintiff took the x-rays produced at the time of the CT Scan to Dr. Leong and says that having looked at these Dr. Leong told him that he would "get me right". In evidence before me the Plaintiff said that Dr. Leong had told him on more than one occasion that he was suffering from a muscular and ligamentous injury and that his condition would resolve. The Plaintiff says that on several occasions he asked Dr. Leong how long the treatment would continue and was told that after the muscle and ligament damage had repaired the Plaintiff would have to attend for treatment every three years or so. The Plaintiff worked during this time and said that he managed to do so because of the treatment he was receiving from Dr. Leong. A document dated the 16th November, 1993 was tendered at the hearing. It is a statement made by the Plaintiff to the Workers' Compensation Board. The Plaintiff had been employed by the Respondent but in 1991 -- 5 of 11 -- 6 formed a partnership with another man and this partnership provided the services as independent contractors which the Plaintiff had provided previously as an employee. When the partnership was formed the Respondent gave the Plaintiff credit which he had by way of sick leave and the Plaintiff has been able to take time off and receive payment during these periods until the credited sick leave expires. In Exhibit 1, the Plaintiff says: "In 1991 I and Mick Sava formed a partnership to run the service department on a contract from Honeycombes Sales. This has required me to do three to four hours mechanical work to make the thing viable ..• From the beginning I found that after three to four hours work that my back would become painful and I would have to go home and rest if I hadn't had acupuncture. The other three to four hours is spent doing book work. During this period I have suffered no further injuries or accidents. --- I have been in pretty well constant pain since the accident and have been to have an MRI done and am awaiting the results. II Before forming the partnership the Plaintiff says that he was doing essentially clerical work and was able to manage because he avoided lifting or bending. In the statement he refers to the limitations upon his activities around the home and the yard. -- 6 of 11 -- ( ' } / 7 Dr. Leong says in his report that on the 22nd September, 1989 the Plaintiff brought in a CT Scan of the lumbar spine and a copy of the report which I assume must have been given to him by the Plaintiff at the time and is attached to his letter to the Plaintiff's solicitors. In the concluding paragraph of his report he says "there is no doubt he has LS/S1 disc herniation, the injury is consistent with the history stated. It is obvious that acupuncture therapy can only give him temporary pain relief." Whilst the Plaintiff was being treated by Dr. Leong he also consulted osteopaths, naturopaths and acupuncturists. Be saw Dr. Whitton, an osteopath in Brisbane, in May 1992. According to the Plaintiff, Dr. Whitton told him that he would be likely to need ongoing treatment. He says that on one occasion (and it would seem to be common ground the date in the affidavit is incorrect), Dr. Whitton told him "in a rather passing fashion" that he had initially thought that the Plaintiff was suffering from a disc injury but that he believed the problem had been rectified at that stage. The Plaintiff says this did not lead him to alter the belief that he already had, namely that his problems were muscular, in view of the information that he had received from other medical practitioners and paramedical persons and Dr. Whitton's statement that any disc problem had been rectified. Dr. Whitton in his Affidavit says that whilst. he cannot be -- 7 of 11 -- ( . C 8 certain of this it is probable that he told the Plaintiff that his reduced tendon reflex was indicative of a continuing problem with the lumbosacral disc protrusion. His affidavit has his records exhibited to it. These are in the nature of a printed form on which information is recorded. Under the heading "radiog" is written the words; "scan disc protrusion." The Plaintiff came to see Dr. Whitton as a result of a conversation with his employer, Mr. Honeycombe, and it would seem that he saw him whilst he was on holidays in Brisbane. It is difficult to reconcile the Plaintiff's claim that he was told by Dr. Trezise and Dr. Leong that he had a back sprain which would resolve itself with what each of those doctors knew at the time this was allegedly said. So far as Dr. Trezise is concerned, he has expressed the view that he was of the opinion that the pain was disco-genie in origin at the time he requested the CT Scan. If Dr. Trezise told the Plaintiff on or after the 8th September that he was suffering from a "sprain" he did so after receiving a CT Scan and a report which showed a herniation at the LS/S1 level which was the level of the Plaintiff's symptoms. His notes accurately reflect the CT scan results. -- 8 of 11 -- ( Similarly, Dr. Leong had the CT Scan and I infer the report thereon as from the 22nd September, 1989 and if he told the Plaintiff that his condition was muscular in origin he did so contrary to the terms of that report and the CT scan. Dr. Whitton was aware at the time of seeing the Plaintiff that a CT Scan had revealed a disc protrusion (the Plaintiff denies he was the source of this information), and the material does not readily explain why he would have any basis for concluding that it had resolved as the Plaintiff suggests he was told. The Plaintiff saw him because of his ongoing problems which had not been resolved by treatment he had received. The Plaintiff struck me as a man who suffers a good deal of pain and has sought extensive treatment to find some means of ( resolving it. I am satisfied that he has received temporary " / relief from the treatment which he has had and he has managed to maintain his employment notwithstanding his disability. He did not seek either the opinion of or treatment from an orthopaedic specialist or any other specialist before the latter part of 1993. As I have said, the application is based upon the Plaintiff's claim that he _believed, because of what Ors. Trezise and Leong told him prior to the latter part of 1993, that he had an injury to the back which was muscular or ligamentous and which might be described as a "sprain" which would resolve with time. He says that he was unaware of any disc damage or -- 9 of 11 -- ( ('-. __ ./ 10 the likelihood that his condition would be permanent until this time. I think it quite improbable that two doctors independently would advise the Plaintiff in those terms when each knew at the time the Plaintiff had a herniated disc. The evidence and reports of Ors. Trezise and Whitton do not support the Plaintiff's claim and indeed are contradictory to it. Doctor Leong's report suggests that he holds the view that the problems are disco-genie in origin and there is nothing in the report which suggests he at any time held any different view. ' In the light of this evidence, I am not satisfied that the material fact of a decisive nature relied upon was not within the Plaintiff's means of knowledge prior to the relevant date. Indeed, I think the proper conclusion to draw is that the cause and nature of the Plaintiff's condition has been known from an early time. The application therefore fails on this basis. As to the second issue, cases such as Moriarty -v- Sunbeam Corporation Limited [1988] 2 Qd.R. 325, Sugden -v- Crawford [1989] 1 Qd.R. 683 and Byers -v- Capricorn Coal Management Co. Pty. Ltd. [1990] 2 Qd.R. 306 deal with the principles relevant to such an issue and the considerations involved. However in view of my findings on the first issue it is not -- 10 of 11 -- 11 necessary for me to make any findings on this issue. The application is dismissed with costs. ( -- 11 of 11 --