Eldridge v Coles Group Ltd [2012] QSC 39

SUPREME COURT OF QUEENSLAND CITATION: Eldridge v Coles Group Ltd [2012] QSC 39 PARTIES: ZELL MAREE ELDRIDGE (applicant) v COLES GROUP LIMITED (ACN 004 089 936) (respondent) FILE NO/S: BS9293/11 DIVISION: Trial PROCEEDING: Application DELIVERED ON: 29 February 2012 DELIVERED AT: Brisbane HEARING DATE: 7 December 2011 JUDGE: Ann Lyons J ORDER: The application is dismissed CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – Where the applicant was injured in a workplace accident on 18 November 2005 – Where the limitation period to make a claim for damages in respect of her injuries expired – Where the applicant argues she only became aware that her injuries would obstruct her in her chosen career around December 2010 – Whether the applicant had knowledge of the material fact of a decisive character before the limitation period expired – Whether an extension of the period for commencing legal proceedings pursuant to s31(2) of the Limitation of Actions Act 1974 (Qld) should be granted. Limitation of Actions Act 1974 (Qld), s 30, s 30(1)(a)(iv), s 31(2) Dick v University of Queensland [2002] Qd R 476 Hammet v O’Connor [1990] VR 538. Harris v Gas & Fuel Corporation Victoria [1975] VR 519. Healy v Femdale [1993] QCA 210 Honour v Faminco Mining Services Pty Ltd as trustee for the Faminco Trust (in liquidation) & Anor [2009] QCA 352 Pizer v Ansett [1998] QCA Taggart v Workers Compensation Board of Queensland -- 1 of 11 -- 2 [1983] 2 Qd R 19. COUNSEL: G J Cross for the applicant M Liddy for the respondent SOLICITORS: Colin Patino and Company for the applicant Minter Ellison for the respondent Background [1] Zell Maree Eldridge is currently 48 years of age. She was injured in a work accident on 18 November 2005. At that time she was employed at the Bribie Island Hotel as a Gaming Room Co-ordinator. The hotel was owned and managed by the respondent. [2] The injury occurred when Ms Eldridge lifted a karaoke speaker weighing approximately 35 to 40 kilograms from the floor. As she did so she felt a pop in her right shoulder as she twisted. The injury was reported to her supervisor and she was treated with ice, her arm was placed in a sling and she was taken to her general practitioner, Dr Michael Willis. She was diagnosed with a supraspinatus tendon strain in her right shoulder and attended for physiotherapy for many months. [3] An application for compensation was made on 22 November 2005 and benefits were paid. Ms Eldridge was absent from work for three weeks and returned on restricted duties on 12 December 2005. She resumed full duties on 23 January 2006. There was an exacerbation of the shoulder injury at work on 20 February 2006 and Ms Eldridge submitted a further application for compensation dated 24 February 2006. She was then absent from work from 21 February 2006 to 24 February 2006 and, once again, she returned to work on restricted duties and limited hours of work. [4] Ms Eldridge was treated by an orthopaedic surgeon, Dr Ryan, who she consulted in March 2006. He considered that she had suffered ―an acute AC joint injury‖ and advised her that her symptoms would settle in time. She was given two steroid injections which were unsuccessful. She also saw Dr Kelly Macgroarty on a number of occasions. A second opinion was later obtained from Dr Dodsworth, an orthopaedic surgeon who diagnosed rotator cuff tendonitis in the right shoulder. The report noted that Ms Eldridge had ―a demonstrated loss of motion and some strength in her right shoulder related to the supraspinatus muscle‖ and considered that it ―might take as long as one year to settle, which would take us to November 2006.‖ Dr Dodsworth recommended that she continue to have light duties until the end of the one year period. [5] Ms Eldridge was paid WorkCover benefits after each injury. [6] On 1 March 2006 Ms Eldridge‘s yearly wages increased from $39,312.00 to $42,850.08. [7] Ms Eldridge continued on light duties at the Hotel for almost 12 months and in that period she undertook extensive rehabilitation through rehabilitation services provided by her employer. She also undertook pain counselling with Strive Occupational Rehabilitation. In November 2006 she applied for an administration- based position at the Regatta Hotel in Brisbane. She commenced there on 6 December 2006 and her duties included responsibility for payroll and invoicing, as -- 2 of 11 -- 3 well as human resource duties. Ms Eldridge worked in that position for 40 hours per week and managed her shoulder pain with over the counter mediation. [8] At the end of 2009 and in early 2010 Ms Eldridge states that she experienced more pain and she considered that the medication was not controlling the symptoms. She attended on her solicitors in November 2009 to commence a claim for her injury. [9] She attended on her general practitioner in January 2010 who consulted with her specialist and cortisone injections were recommended. On 20 July 2010 Ms Eldridge consulted Dr Langley, an orthopaedic surgeon, who advised her that she required surgery in the form of a subacrominal decompression of her right shoulder and that it would cost approximately $7,193. Dr Langley also assessed Ms Eldridge as suffering a ten percent whole person impairment. [10] Ms Eldridge submits that in the period following the accident in November 2005 she was able to continue work and her medical expenses were paid by WorkCover. She stated that until assessed by Dr Langley in July 2010 she had not been told she had suffered a permanent impairment, nor advised she required a subacrominal decompression of the right shoulder. [11] Ms Eldridge worked full time from 6 December 2006 until 10 December 2010 and in that period she received a net income in the financial year 2007 of $27,705, in the financial year 2008 of $34,777, in the financial year 2009 of $36,775 and in the financial year 2010 of $37,339. This application [12] Pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) (―the Act‖) Ms Eldridge has applied for an order that the period of limitation for the action be extended so that it expires at the end of one year after 26 August 2009. The running of time on the applicant‘s claim for damages was stopped on 26 August 2010 as a complying notice of claim for the injury suffered on 18 November 2005 was given. [13] The Act precludes an action for damages for personal injury due to negligence after the expiration of three years from the date on which the cause of action arose. Part 3 of the Act, however, provides some exceptions to this rule. [14] Section 31(2) provides: ―(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 -- 3 of 11 -- 4 brought by the applicant in that court, the period of limitation is extended accordingly.‖ [15] Section 30 defines a number of the terms employed in that section: ―(1) For the purposes of this section and sections 31, 32, 33 and 34— (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 know the fact at that time; and (ii) as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time.‖ [16] Accordingly the basic limitation period for personal injury actions can be extended if material facts of a decisive character are not within an applicant‘s means of knowledge. -- 4 of 11 -- 5 [17] The relevant date as to when a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant is the date after the commencement of the year last preceding the expiration of the period of limitation for the action. [18] The injury was suffered on 18 November 2005 and the relevant date is 18 November 2007. If the material fact of a decisive character was not within Ms Eldridge‘s means of knowledge up to 18 November 2007 then the Court can order the period of limitation for the action to be extended so that it expires one year after a material fact of a decisive character was within her means of knowledge. [19] Accordingly, because the limitation period may only be extended for one year from that date, the time when a material fact came within the applicant‘s means of knowledge must be determined. The approach to deciding the application [20] In Dick v University of Queensland1 Thomas J, with whom Pincus J agreed, indicated that the questions posed in the legislation requires a step by step approach: ―The first step is to inquire whether the facts of which the appellant was unaware were material facts: s. 57(1)(b) [Qld s 30(1)(a)]. If they were, the next step is to ascertain whether they were of a decisive character: s. 57(1)(c) [Qld s 30(1)(b)]. If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date: s. 58(2) [Qld s 30(1)(c)].‖ [21] Accordingly, Ms Eldridge must show that the material fact of a decisive character relating to the right of action was not within her means of knowledge after the commencement of the year last preceding the expiration of the period of limitation for the action. [22] Counsel for the applicant argues that the material facts of a decisive character are first, the fact that her condition deteriorated in late 2009 such that she had to cease work in December 2010; and second, that in July 2010 she was advised for the first time that she had a significant injury which required surgery. [23] Furthermore it is submitted that, as Ms Eldridge continued to be employed by the respondent in the period from December 2006 to December 2010, she had at that point in time suffered no economic loss which would make the claim worthwhile as she was reimbursed by WorkCover for the relevant period. Neither was Ms Eldridge absent from work because of her injury after her return to work on 24 February 2006. Counsel argues that it was only after she ceased work due to the injury that she had a viable claim against her employer. [24] In terms of the state of Ms Eldridge‘s knowledge up to November 2007, Counsel submits that Ms Eldridge had been advised by both Dr Dodsworth and Dr Ryan that her symptoms would settle. In addition, she managed those symptoms for a long period with over-the-counter medication until late 2009 when the pain became more severe and the medication did not control her symptoms. It is argued that she consulted solicitors in November 2009 because her condition worsened. 1 [2002] Qd R 476. -- 5 of 11 -- 6 [25] She also saw her general practitioner in January 2010 who consulted with a specialist who recommended cortisone injections. She also sought further specialist advice from Dr Langley. It was then that he advised she required surgery and suffered a ten per cent whole person impairment. Ms Eldridge then ultimately ceased work in December 2010. What is a material fact? [26] Material facts can include a number of matters including the fact of the negligence, the fact that the negligence caused personal injury, the nature and extent of the personal injury, and the extent to which the personal injury is caused by the negligence. [27] In the present case Ms Eldridge relies on s 30(1)(a)(iv), namely ―the nature and extent of the personal injury so caused‖. Essentially, Ms Eldridge argues that she did not understand the extent and seriousness of her injury until July 2010 when she saw Dr Langley. It is clear that to be a material fact the aspect of the injury relied upon must in itself be a significant disability. There is no doubt that being unaware of the full extent of an injury has been held to be a material fact of a decisive character.2 In Pizer v Ansett3 Thomas JA held: ―In appeals of the present kind, when the material fact concerns the nature and extent of personal injury, questions of degree are necessarily involved. At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it.‖ [28] it. Taggart v Workers Compensation Board of Queensland4 held that a newly discovered fact can be a material fact of a decisive character if it indeed adds substantially to the quantum of damages likely to be recovered. There are a number of authorities where the Court has treated the consequences of injury, including economic consequences, as a potentially material fact of a decisive character. [29] An applicant must demonstrate that all reasonable steps were taken to ascertain the fact insofar as it was capable of being ascertained and that those steps taken did not reveal the existence of the fact: Harris v Gas & Fuel Corporation Victoria5. [30] It is argued by the applicant that prior to her ceasing work her claim would have been minimal, but it is now significant given that she has ceased work. It is argued that, until the report of Dr Langley and the cessation of her employment, the claim was not worth proceeding with. Ms Eldridge also states that she did not wish to jeopardise her relationship with her employer by instituting legal proceedings. [31] It is argued therefore that it was not until 2010 that the applicant became aware of a material fact of a decisive nature which converted a cause of action for mere pain and loss of amenity, due to chronic and intermittent pain, to an action which would include a component for loss of earning capacity. 2 Hammet v O’Connor [1990] VR 538. 3 [1998] QCA 298. 4 [1983] 2 Qd R 19. 5 [1975] VR 519. -- 6 of 11 -- 7 When is a material fact of a decisive character? [32] It is clear that s 30(1)(b) formulates two conditions for determining whether a material fact relating to a right of action is of a decisive character. The first condition is that the fact, along with other facts known to the claimant, would be regarded as showing that an action would, but for the defence based on the Act, have a reasonable prospect of success and of resulting in an award of damages sufficient to justify bringing the action. [33] The second condition is that the fact, along with the other facts known to the potential claimant, would be regarded as showing that the potential claimant should, in that person‘s own interest and in taking that person‘s circumstances into account, bring an action on the right of action. [34] Each condition is to be regarded from the point of view of a reasonable person who has taken the appropriate advice on those facts. Both conditions must be satisfied before the material fact is said to have a decisive character. It has been held by the Queensland Court of Appeal in Honour v Faminco Mining Services Pty Ltd as trustee for the Faminco Trust (in liquidation) & Anor6 as follows: ―It follows that the material fact is not of a decisive character if, before knowing that fact a reasonable person would know facts that that person would regard (having taken appropriate advice) as showing that an action would (ignoring the effect of limitation period) 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 that the potential claimant ought, in that person‘s own interests and taking that person‘s circumstances into account, bring an action on the right of action. However, if, without knowledge of that fact, a reasonable person, having taken appropriate advice, would not regard the facts known to that person as showing that an action would (ignoring the effect of the limitation period) have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of an action, then the fact is of a decisive character. Further, if, without knowledge of the material fact, a reasonable person, having taken appropriate advice, would not regard the facts known to that person as showing that the potential claimant ought in that person‘s own interest and taking that person‘s own circumstances into account, bring an action, then the material fact is not of a decisive character.‖ Has the applicant satisfied the requirements of s 31 of the Limitation of Actions Act 1974 (Qld)? [35] The material facts that Ms Eldridge relies on are essentially the deterioration which caused the cessation of employment and the advice from Dr Langley that she had a significant impairment and required surgery. [36] There is no doubt that within two years after the accident Ms Eldridge knew of the fact of her injury and that her injury had had some serious physical consequences. Ms Eldridge was essentially on lighter duties and restricted hours throughout all of 6 [2009] QCA 352. -- 7 of 11 -- 8 2006. The file is replete with repeated contacts with her rehabilitation officer and the fact that she did not consider she was improving. Her affidavit also indicates that she was unable to perform many of the tasks of a gaming attendant as well as many domestic tasks. She clearly changed her position from a gaming attendant to an administrative position in December 2006 because it involved lighter duties. Her evidence is, however, that she continued to experience difficulties in the workplace throughout the whole period from December 2006 to December 2010. [37] It would seem to me, on the evidence, that Ms Eldridge continued to experience the same symptoms throughout the period form late 2006 to late 2009. Did things materially change at the end of 2009? [38] I note that Ms Eldridge was still working fulltime when she saw Dr Langley in July 2010 and did not cease fulltime work until six months later. There is no indication in Ms Eldridge‘s affidavit that she advised Dr Langley that she was not able to cope with fulltime work when she saw him. Neither does Ms Eldridge‘s affidavit indicate that Dr Langley‘s advice to her was that she had to cease fulltime work. Ms Eldridge gave up work on 10 December 2010, which was 12 months after first seeing her lawyer in November 2009. [39] The report of the occupational therapist Rebecca Hague indicates that when she saw Ms Eldridge on 8 November 2010, Ms Eldridge was working fulltime. The report indicates that Ms Eldridge had tolerance for sedentary based occupations and had been in such a role since late 2006. There is no indication that Ms Eldridge told Ms Hague that she had to give up work. Rather, she indicated to Ms Hague that she was unsure whether she could ‗hold out‘ and continue her current position and hours. Ms Hague indicated that Ms Eldridge would better manage her condition by reducing her work hours by five to ten hours a week. She did not ask to reduce her hours. [40] Ms Eldridge did not miss a day of work between December 2006 and December 2010. Significantly, that includes the period from December 2009 to December 2010 when she states that her condition deteriorated. There is no evidence of any treatment for her shoulder injury or attendance on her medical practitioners in the period from December 2006 to December 2009. After that time there is one attendance on her General Practitioner, who discussed cortisone injections with the specialist but there is no evidence that the treatment commenced. Nor are there any other treatments referred to in the entire 12-month period from December 2009 to December 2010 when Ms Eldridge states that her pain had become so much worse. Ms Eldridge did not seek lighter duties between December 2006 and December 2010. [41] It is significant that there is no medical evidence to indicate that Ms Eldridge would not be fit to undertake the work she undertook for the respondent over the last four years of her working life. Ms Hague notes that Dr Langley‘s report contains no comment with regard to work capacity. [42] In cross-examination at the hearing Ms Eldridge accepted that for four years before she decided to consult her lawyer in November 2009 she had experienced pain, restriction of movement, lack of strength in the arm, as well as an inability to undertake a large number of aspects of domestic life. She also indicated it had interfered with her sex life, prevented her from performing heavier work in the yard, -- 8 of 11 -- 9 prevented her from lifting heavy shopping and prevented her from pulling beers. She was also not able to unload stock at work. [43] It was clear, as Ms Eldridge indicated in her evidence, that she managed the pain by taking medication and by obtaining a position that did not require her to undertake heavy work. She sought her husband‘s assistance in relation to heavy domestic tasks. The applicant accepted, in her evidence, that that situation had continued for four years. The applicant also conceded that Dr Dodsworth had told her that her condition should have resolved in one year and it should therefore have been of some concern to her that her injury did not resolve after that period of time. [44] The applicant relies upon s 30(1)(a)(iv) which provides that material facts relating to a right of action include the nature and extent of the personal injuries so caused. [45] It would seem clear to me that Ms Eldridge knew that her condition was not improving and indeed that it had not settled by November 2006 as foreshadowed by Dr Dodsworth. I agree with the submission of Counsel for the respondent that, essentially, Dr Langley confirmed what Ms Eldridge already knew and had known since at least 2007, that she had a permanent injury because the symptoms had not settled but had in fact remained constant. [46] Accordingly, from as early as November 2006 it was fairly clear that Ms Eldridge was unfit for work in the occupation in which she was employed at the time of the accident, namely as a gaming attendant. Indeed, in December 2006 she changed to an administrative position with the same employer at a different location. It was clear, on her own evidence, that she had not made a full recovery within a year and certainly had not done so within two years. [47] Furthermore there is no evidence that Ms Eldridge‘s medical condition has in fact deteriorated since December 2006. Ms Eldridge‘s own evidence about the worsening symptoms was that she had difficulty writing with a biro and typing for any length of time. On my reading of the affidavit material that is not significantly different to the symptoms she described after the accident and in the four years afterwards. [48] It would seem to me that Ms Eldridge‘s condition appears to have remained unaltered for at least the last four years. There is no evidence that an increase in Ms Eldridge‘s symptoms or pain levels caused her to miss work or seek medical treatment. There is no medical report which indicates that she cannot work because of those difficulties. The occupational therapist only supports a minor reduction in working hours. [49] There is no evidence that indicates Ms Eldridge ceased work because of medical issues. That lack of evidence is significant. I also accept that there is no medical evidence to indicate that her medical condition got worse recently. Ms Eldridge continued working after she saw a lawyer and after she sought further medical opinion. Dr Langley does not say Ms Eldridge is unfit for work. Ms Eldridge accepts that she did not tell Dr Langley in June 2010 that she was unable to cope with the work that she was then doing. Ms Hague also indicated that ―Ms Eldridge has evidenced a capacity for occupations in the SEDENTARY range only‖. [50] There is no evidence before me that indicates that Ms Eldridge was required to give up work because she could no longer manage full time work. Indeed, the applicant -- 9 of 11 -- 10 did not cease work until her husband decided to retire from Queensland Rail and take up work in the mines. He commenced working in Mackay in January 2011 and Ms Eldridge herself later relocated to Mackay after the sale of their house in Brisbane in August 2011. [51] Accordingly I consider that there is insufficient evidence to establish that the symptoms deteriorated in 2009 to such an extent that Ms Eldridge was unable to work after December 2010 and that it was that inability to work which caused her to leave work. [52] I do not consider, therefore, that the more recent facts have altered the nature or extent of Ms Eldridge‘s personal injury. [53] I also note that Ms Eldridge consulted lawyers eight to nine months before she saw Dr Langley. Had Ms Eldridge seen a lawyer in late 2006 or early 2007 then, properly advised, these proceedings would have been started then. [54] The applicant has not given evidence that she took any steps within that time. I agree with Counsel for the respondent that that is not a reasonable step. As the court held in Healy v Femdale7: ―The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent inquiry to protect one‘s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take ―appropriate advice‖ or to ask appropriate questions if in all circumstances it would not be reasonable to expect the plaintiff to have done so.‖ [55] The clear evidence is that Ms Eldridge had significant pain and disability from the time of the accident and she did not feel better within one year. She knew her working capacity was affected because she changed jobs to accommodate her disability. Ms Eldridge‘s evidence is that she did experience significant pain and that she did so for many years. [56] Material facts are of a decisive character if, and only if, a reasonable person knowing the facts and having taken appropriate advice would regard them as showing: (a) that the action would have a reasonable prospect of success and result in an award of damages sufficient to justify the bringing of the action; and (b) that the person whose means of knowledge is in question ought in his own interests and his or her circumstances into account bring an action. [57] Appropriate advice means the advice of competent persons including medico-legal advice. 7 [1993] QCA 210. -- 10 of 11 -- 11 [58] It is submitted that advice given to the plaintiff three years after the injury was that she would have to cease well-paid employment and seek alternative employment and that this made the material fact of a decisive character. [59] A fact is not within a person‘s means of knowledge if, but only if: (a) the person does not know at that time the fact; and (b) insofar as the facts are capable of being ascertained he or she has before that time taken all reasonable steps. [60] In my view Ms Eldridge has not satisfied the onus on her to establish that a material fact of a decisive character was not within her means of knowledge up to 18 November 2007. In my view, since at least late 2006 and early 2007 Ms Eldridge had sufficient knowledge to ascertain that commencing proceedings was reasonable at that point in time had she taken appropriate advice. [61] I do not consider that Ms Eldridge has satisfied the requirements of s 31(2) and her application should therefore be dismissed. -- 11 of 11 --