Beaver v State of Queensland [2001] QCA 21

[1] McMURDO P: This is an appeal from the chamber judge's refusal of an application under s 31 Limitation of Actions Act 1974 ("the Act") to extend the period of limitation in a workplace personal injuries claim.

[2] The question for determination is whether the appellant can establish that a material fact of a decisive character relating to the right of action was not reasonably within her means of knowledge until after 25 June 1998 which was 12 months before the appellant commenced her action: see s 31(2) of the Act. The material fact relied on by the appellant was that, for the first time on 27 January 1999, Dr Redmond, a neurosurgeon, informed her that she had chronic degenerative changes in her lower back and may not be able to return to her job. If that question is answered affirmatively, the court may order an extension of the limitation period: s 31 of the Act.

[3] The learned primary judge answered that question in the negative as the appellant's symptoms would have led a person in her position reasonably to make enquiries of a medical practitioner because she had suffered chronic back pain for a number of years with occasional severe pain; had she taken appropriate advice, the appellant should have been aware that, apart from the effect of the expiration of the limitation period, she would have had a reasonable prospect of success in obtaining an award of damages sufficient to justify the bringing of the action (s 30(1) of the Act).

[4] The respondent conceded that there was evidence to establish the appellant's right of action apart from a defence founded on the expiration of the limitation period and that the respondent has not suffered any relevant prejudice in consequence of the delay.

[5] The appellant commenced work at Wolston Park Hospital in 1976 aged 32 as an assistant nurse and continued in that employment for the next 22 years. Her job involved some heavy lifting of patients. From 1976 until 1991 she had the odd niggle, ache or stiffness in her back which she attributed to the physically demanding work. She did not consult a doctor or take time off work for back problems.

[6] On 19 September 1991, aged 47, she injured her back whilst attending a patient. She was treated by her general practitioner, received physiotherapy and was off work until 30 September 1991. She did not lose income and all medical expenses were paid by the Workers Compensation Board of Queensland. Her doctor cleared her to return to work; she was not told that she should consider giving up work, that she should change jobs or that she could seriously damage her back if she continued working. She believed she had suffered an episode of back strain which had cleared and she could continue working normally which she did.

[7] In about mid-March 1992, she transferred to the 8 a.m. shift which also involved some heavy lifting of patients. She did not seek or receive any medical, physiotherapy or chiropractic treatment for her back nor take any time off work for back pain until April 1992 when she next experienced quite severe low back pain and pain radiating down her legs. She consulted her general practitioner on 18 April 1992 but did not take time off work. On the recommendation of her doctor, she received physiotherapy. She understood she could safely keep working as long as she had the physiotherapy which was paid for by the Workers Compensation Board of Queensland. The relevant medical certificate indicated that she suffered partial incapacity from 18 April 1992 and was fit to resume normal work on 2 May 1992. In cross-examination she agreed that her doctor wanted her to take more time off work but she was unable to do so because she needed the money; the physiotherapy enabled her to perform her normal work duties.

[8] After 2 May 1992, her back pain settled but did not go away completely. She received no medical, physiotherapy or chiropractic treatment for her back after the 1992 episode until 1998. When her symptoms became particularly bad she took accrued sick leave.

[9] In 1994, she changed to night shift because her children had left home and she wished to coordinate her shift with her husband and also because she was hopeful that night shift work was lighter and would not stir up her back pain. She conceded that prior to her change to night shift she may have held her back and complained of back ache although she could not remember this.

[10] In 1995, new equipment reduced the heavy lifting involved in the day shift.

[11] In November 1997, she slipped on mud at her work place and fell on her buttock but she did not remember that incident affecting her back. The learned primary judge found that denial hard to accept but the respondent did not produce any material to the contrary effect and the appellant finished her shift and had no time off work.

[12] In December 1998 when she was aged 54, the appellant slipped at work and injured her head and arms. A few days later she developed quite severe symptoms to her lower back, the like of which she had not suffered since April 1992. Her general practitioner organised a CT scan of her lumbar spine and referred her to Dr Redmond, who informed her that she may not be able to return to her work because of her back injuries. This came as a complete shock to her as until then she had handled her job without real difficulty and intended to work until age 63 when she and her husband planned to retire.

[13] Occupational medicine specialist, Dr Ian Lowe, formed the opinion that from 1976 to 1994 the appellant's lumbar spine has been subjected to excessive loading and stress by reason of the work she performed for the respondent over that period; this was at least in part responsible for the marked degenerative changes to the appellant's back; although this stress occurred progressively over that time, the appellant would not necessarily have been aware of what was happening to her lumbar spine; its progressive weakening made the appellant more vulnerable to developing back trouble as in the September 1991 and December 1998 incidents.

[14] The newly learnt fact must be material and relating to a right of action: it includes: "... the nature and extent of the personal injury so caused" (s 30(1)(a)(iv) of the Act). The economic effects of an injury can constitute a material fact relating to a right of action. Until her consultation with Dr Redmond, the appellant had not suffered any economic loss. Only when she was told she may not be able to return to her work did she realise for the first time that she may suffer significant economic loss. Until she knew that fact, the amount of any hypothetical award may have been insufficient to justify the expense and inconvenience of litigation. [1]

[15] When the appellant learnt for the first time on 27 January 1999 that she may be unable to return to her employment, she became aware of a material fact relating to a right of action (s 31(2) and s 30(1)(a)).

[16] The next issue is whether that fact was of a decisive character relating to the right of action (s 31(2) and s 30(1)(b)). To discharge her onus, the appellant must demonstrate that without that newly learnt fact she would not, even with the benefit of appropriate advice, have previously appreciated that she had a worthwhile action to pursue and should in her own interests pursue it (s 30(1)(b)).[2] The appellant must also have taken all reasonable steps to ascertain the fact, as far as it is capable of being ascertained: s 30(1)(c).

[17] In appeals like this, when the material fact concerns the nature and extent of the personal injury (s 30(1)(a)(iv) of the Act) questions of degree are necessarily involved and these determinations are in an area where different minds might reasonably reach different conclusions. An appeal court can only interfere if the primary judge's conclusion is affected by an error of law or fact or the ultimate discretion otherwise miscarries: Pizer v Ansett Australia Limited.[3]

[18] The respondent produced no evidence to contradict the appellant's claim that she was unaware she was unlikely to be able to return to her work because of her back injuries until told by Dr Redmond. Her medical and work history supports her claim: she was not treated for back problems by any medical practitioners, chiropractors or physiotherapists for the six and a half years from 1992 until 1998 and had no time off work for back pain other than short periods of accrued sick leave when the pain became bad; she was able to work satisfactorily during this period and manage her pain, believing she could continue in this manner until her planned retirement at 63. Whilst this appellant had good reason to believe she had chronic back pain, on the facts known to her prior to consulting Dr Redmond, she had no reason to believe that her back pain would force her to stop work and suffer economic detriment. She had suffered no economic detriment in the past and had not been advised that she would be unable to work because of her back injuries in the future. In those circumstances, it was reasonable for her not to consult a medical practitioner or a lawyer because she reasonably believed she was able to manage her back pain and had not suffered any economic loss prior to consulting Dr Redmond. There was no obligation upon her to seek an opinion from her doctor about her prospect of future disability and its effect upon her working capacity: cf Healy v Femdale Pty Ltd,[4] Royal North Shore Hospital v Henderson[5] and Pizer v Ansett Australia Limited.[6]

[19] The appellant's evidence did not conflict with other evidence as the respondent produced none. Whilst recognising the advantage the learned primary judge had in hearing and seeing the appellant under cross-examination, I have formed the view that her Honour erred in determining on these facts that the appellant should have taken appropriate advice from a medical practitioner within the limitation period. The appellant has established that a material fact of a decisive character relating to the right of action was not reasonably within her means of knowledge until after 25 June 1998. Here, the respondent conceded it had suffered no prejudice.

[20] The circumstances of this case, which I have set out, satisfy me that I should exercise the discretion under s 31 to extend the limitation period.

[21] This case is yet another example of the need for reform to simplify this undesirably and unnecessarily complex area of the law: see Queensland Law Reform Commission Report.[7]

[22] I would allow the appeal, set aside the order below and instead order that the period of limitation for this action be extended so that it expires on 25 June 1999. The respondent should pay the appellant's costs of the appeal to be assessed; the costs of the original application should be costs in the cause.

[23] DAVIES and PINCUS JJA: This is an appeal from an order made in the Trial Division on 7 March 2000 dismissing an application for an extension of the limitation period for commencing an action for damages for personal injuries alleged to have been caused by the negligence or breach of statutory duty of the respondent. The appellant sought an order from the learned primary judge that the time be extended so that it expired on 25 June 1999, the date on which she commenced that action.

[24] The question before the learned primary judge and this Court was and is whether a material fact of a decisive character relating to the appellant's right of action was not within her means of knowledge until after 25 June 1998. The respondent conceded before the learned primary judge that there was evidence to establish the right of action apart from a defence founded on the expiration of the limitation period. It also conceded that it had not suffered any relevant prejudice in consequence of the delay; nor did it contend that there was any other reason why the residual discretion under s 31 of the Limitation of Actions Act 1974 should not be exercised in the appellant's favour.

[25] The appellant's right of action arose out of a course of events which occurred over a substantial period from 1976 to 1998, during the whole of which time the appellant was employed by the respondent as an assistant nurse at Wolston Park Hospital. Her employment was mostly with geriatric patients but also to a lesser extent with children. It may be accepted for the purpose of this appeal that this work negligently caused excessive loading and stress to her lumbar spine at L4/5 and that this excessive loading and stress contributed, at least in part, to marked degenerative changes in her lumbar spine at that level, made her spine at that level more vulnerable to developing back trouble and contributed to her ultimate incapacity to continue in her employment with the respondent.

[26] The material fact of a decisive character relied on by the appellant was not specifically identified by the learned primary judge. This may have been because it was not specifically identified in argument before her. Her Honour said:

"The plaintiff says that the three material facts of a decisive character in this case are the fact that the negligence or breach of duty or breach of contract caused the personal injury; the nature and extent of the personal injuries so caused; and the extent to which the personal injury was caused by the negligence or breach of duty or breach of contract."

[27] However as her Honour noted these were no more than references to s 30(1)(a)(iii), s 30(1)(a)(iv) and s 30(1)(a)(v) of the Act. After setting out the facts relating to the appellant's work history and medical treatment, to which we shall refer shortly, her Honour also said:

"If the fact said to be newly learnt was the advice on 28 January 1999 that she would be unlikely to return to her work then that is a fact going only to the quantum of her loss."

It is not entirely clear what her Honour meant by this for it is plain that, under s 30 as her Honour had already noted, the nature and extent of personal injury caused may be a relevant material fact relating to the right of action and consequently possibly also one of a decisive character. However her Honour's reference to this advice gives some indication of what the material fact relied on was.

[28] Before this Court the fact relied on was identified as the fact that the disability which the appellant suffered in consequence of the excessive loading and stress already referred to rendered her incapable of continuing to perform the job which she had held since 1991 or at least put that continuing employment at serious risk. It was this fact which the appellant submitted was of a decisive character and not within her means of knowledge before 25 June 1998. In order to decide whether her Honour ought to have acceded to these submissions it will be necessary to say something about the relevant facts.

[29] The appellant was born on 12 February 1944. She was therefore 32 when she commenced working for the respondent at Wolston Park Hospital on 5 July 1976. From then until 1991 she worked mainly in geriatric wards at that hospital and from 1991 to 1994 she worked in the medical centre performing much the same work. Until 1992 she worked on the early morning shift from 6.00 am to 2.00 pm. This shift had the heaviest workload because it required the nursing staff to bathe the patients most of whom were immobile or, at best, partially mobile only. During that period, in order to bathe a patient he or she had to be lifted from a bed into a wheelchair and then from a wheelchair into a high sided bath. Then of course the process had to be reversed once the bathing had been completed. The fact that the wheelchairs did not have brakes, and consequently tended to move during those lifting operations, provided an additional difficulty. Additional tasks included dressing and undressing patients, taking them to the toilet and assisting with their toilet needs and taking them out of their beds for meals.

[30] Generally the work of bathing a patient was performed by two nursing assistants working together. In such cases the work of lifting the patient on each of the occasions to which we have referred was shared although rarely evenly because pairs of workers were not evenly matched in height or strength. The work had to be performed quickly because there were a large number of patients all of whom had to be bathed during the first hour and a half of the shift. The work plainly involved continuous bending, heavy lifting and twisting of the lumbar spine whilst under load. There were occasions when the appellant had to work alone in order to bathe as many patients as possible in the required period.

[31] On 19 September 1991 the appellant experienced sharp pain in her lower back whilst performing work of the above kind. Before that she had had what she described as the odd niggle or ache or occasional stiffness but nothing which disabled her even temporarily or lasted long. On this occasion the pain was serious enough for her to cease work and see her general practitioner. Although he had an x-ray done she was not told what it showed. He declared her fit to return to work on 30 September. She was thus off work for a little under two weeks during which she was prescribed anti-inflammatory drugs and received physiotherapy. She then returned to work performing the same work. Her back pained her slightly and was a little stiff but not so as to impede her work. After a few weeks back at work she went on her annual holidays for five weeks. She was able to rest during this period. When she returned to work her back was still occasionally painful but did not impede her in performing her normal work.

[32] In about mid-March 1992 the appellant applied for and obtained work on a shift commencing at 8.00 am. She applied for that shift when she heard that a woman on that shift was retiring. She was aware that the work on that shift was easier than on the shift on which she was then working. However she still had a lot of heavy lifting work during this shift.

[33] On about 16 April 1992 she again experienced quite severe pain in her lower back radiating down her legs. This was the first time she had experienced pain of this kind since the incident to which we have referred in September 1991. She had not required any treatment or medication for her back or taken any time off work because of it since her return to work after the 1991 incident. She again consulted her general practitioner. He prescribed physiotherapy and anti-inflammatory tablets. She returned to work on 2 May, earlier than recommended by her doctor, but continued to receive physiotherapy. Her pain settled but did not completely go away. She continued in her normal work, taking an occasional day off on sick leave if her symptoms were bad.

[34] In 1994 the appellant transferred to the night shift, her primary reasons being that her husband was working on that shift at Wolston Park and that by that time all her children had left home. But the night shift work was lighter than either morning shift and that was an additional incentive for the change.

[35] In November 1997 the appellant slipped on some mud when she was walking outside the ward and fell on her buttocks and wrist. It was put to her that that stirred up existing back pain that she was experiencing to which she replied that she finished her shift so it could not have been too bad. She said she did not think she took sick leave as a result of that accident. The learned primary judge said that she found it hard to accept the appellant's denial that this injury stirred up back symptoms but there does not appear to have been any specific evidence upon which her Honour's doubt was founded. It seems more likely to have been the result of an overall impression by her Honour, principally from the appellant's cross-examination, that she was minimizing her disability.

[36] She had another slip in December 1998 because of water on the floor of the ward. She again landed on her buttocks. Three days later she started to get severe symptoms in her lower back. She said this was the first time she had experienced these symptoms since April 1992. Again she consulted her general practitioner and on this occasion was referred to a specialist who told her that she had chronic degenerative changes in her lower back and that she might never be able to return to her job. That was the first time that she had been told that.

[37] Consequently there does not appear to be any doubt that, prior to December 1998, the appellant had no knowledge that her job was at risk. Nor was that fact implicit in anything said to her prior to that date either by a medical practitioner or by her employer.

[38] From shortly after the 1992 incident to that incident in December 1998 the appellant did not have any medical treatment or physiotherapy or chiropractic treatment for her lower back. She took days off when it was bad but she would use one of her sick leave entitlement days for that purpose. Otherwise she was able to perform her job.

[39] As to whether the fact that her job was at risk in consequence of her disability was within her means of knowledge before 25 June 1998 the learned primary judge made the following findings:

1. that in view of the evidence of the pain she suffered and the medical treatment she received it was more likely than not that the appellant was aware that there were chronic degenerative changes to her lumbar spine, presumably before 25 June 1998;

2. that her chronic back pain for a number of years with occasional severe pain would have led a person in her position reasonably to make inquiries of a medical practitioner, presumably as to the effect of her chronic condition on her earning capacity; and

3. that consequently her likely incapacity to continue in her job was within her means of knowledge before 25 June 1998.

[40] It was no doubt reasonable for the learned primary judge to conclude that the appellant ought to have realized before 25 June 1998, that her condition was chronic. It was showing no signs of improvement. In order to perform her work adequately she needed to take occasional days off work, using her sick leave entitlement for that purpose. Moreover the episode of increased pain and disability in April 1992 was plainly more serious than that in September 1991 and her disability after the April 1992 incident was more serious than it had been before that date.

[41] On the other hand, by 1998 she had been in continuous employment in the same job with the same employer for more than 20 years. By that time, as she knew, even the early morning shift had been made easier in 1995, after she had transferred to the night shift, by the installation of hoists, sliding sheets, bars which could be electronically raised and lowered and bath beds which could be lowered into and raised from the bed by means of a lever. This equipment substantially reduced the amount of heavy work which had led to the appellant's disability and which might have been an additional continuing problem for her. Moreover, even after June 1998 she was continuing to perform the work required on the night shift without much time off and without the need for medical or physiotherapy treatment.

[42] No doubt minds may differ as to whether, given those facts, a person in the appellant's situation ought to have realized that her prospects of continuing in that work were at serious risk or at least ought to have taken appropriate advice on that question. But we cannot be satisfied that her Honour erred in answering that question in the affirmative. A number of the factors to which we have already referred together justify that answer. The appellant's disability was undoubtedly greater after the April 1992 incident than it was after the September 1991 incident. A reasonable person in the appellant's position would have realized that, if she continued in the same work, another incident of the same kind was at least a reasonable possibility and that, after it, her disability would be likely to be worse again. It had already reached the stage where, in order to remain in the job which she was required to do, she had to utilize her sick leave entitlement in order to take time off when her pain was at its worst. And after seeing and hearing the appellant give evidence, particularly under cross-examination, her Honour was entitled to infer, as she appears to have done, that the appellant was understating the effect of her disability.

[43] Those factors, in our opinion, justified her Honour's conclusion that, in effect, the appellant ought to have appreciated, by 25 June 1998, that her capacity to perform the work which she was required to do was so reduced as to put her continuing employment at serious risk. Consequently even if that risk was a material fact of a decisive character we do not think her Honour erred in concluding that that was within the appellant's means of knowledge by 25 June 1998.

[44] Accordingly we would dismiss the appeal with costs.

[1] Taggart v Workers Compensation Board of Queensland [1983] 2 QdR 19, 24; Byers v Capricorn Coal Management Pty Ltd [1990] 2 QdR 306, 307-308 and Watters v Queensland Rail [2000] QCA 51 [1], [23]-[24].

[2] Moriarty v Sunbeam Corporation Limited [1988] 2 QdR 325, 333.

[3] [1998] QCA 298, Appeal No 6807 of 1998, 29 September 1998, [18], [20].

[5] (1986) 7 NSWLR 283, 299.

[6] [1998] QCA 298, [18].