Bougoure v State of Qld [2004] QCA 485

SUPREME COURT OF QUEENSLAND

CITATION: Bougoure v State of Qld [2004] QCA 485

PARTIES: PAUL GERARD BOUGOURE (plaintiff/respondent) v STATE OF QUEENSLAND (defendant/appellant)

FILE NO/S: Appeal No 6094 of 2004 / SC No 10372 of 1998

DIVISION: Court of Appeal

PROCEEDING: Personal Injury

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 17 December 2004

DELIVERED AT: Brisbane

HEARING DATE: 14 October 2004

JUDGES: Davies and Williams JJA and Chesterman J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: **1.**Amend the order made below by deleting "6 November 1997" and inserting in lieu "6 November 1998" / **2.**Dismiss the appeal / **3.**The appellant to pay the respondent's costs of the appeal to be assessed

CATCHWORDS: LIMITATION OF ACTIONS - POSTPONEMENT OF THE BAR - EXTENSION OF PERIOD - CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES - KNOWLEDGE OF MATERIAL FACTS - MATERIAL FACTS OF DECISIVE CHARACTER - where the application for extension of time within which to commence proceedings was granted by the learned primary judge - where the respondent was formerly a police officer who performed covert police work - where the respondent sustained psychological injury as a result of that work - where a cause of action existed except for the fact that the action was not commenced within time - whether all material facts relating to the right of action were within the means of knowledge of the respondent before the critical date / Limitation of Actions Act 1974 (Qld), s 30(1)(b)(ii), s 31(2)(a) / Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, discussed / Moriarty v Sunbeam Corporation Limited [1988] 2 QdR 325, discussed / Reeman v State of Queensland [2004] QCA 484; Appeal No 8239 of 2004, 17 December 2004, followed / Stephenson v State of Queensland [2004] QCA 483; Appeal No 7621 of 2004, 17 December 2004, followed / Sugden v Crawford [1989] 1 QdR 683, cited

COUNSEL: R J Douglas SC, with D J Campbell, for the appellant / D B Fraser QC, with G R Mullins, for the respondent

SOLICITORS: C W Lohe, Crown Solicitor, for the appellant / Gilshenan & Luton for the respondent

DAVIES JA:

**1.**The proceedings and the relevant issues

The appellant State of Queensland appeals against an order made in the Supreme Court, pursuant to s 31 of the Limitation of Actions Act 1974 ("the Act"), that the period of limitation for an action commenced by the respondent against it on 6 November 1998 be extended so that it expired on 6 November 1997.¹ In consequence of making that order the Supreme Court also ordered that the appellant's application for summary judgment be dismissed. This appeal was heard together with the appeals in Stephenson v State of Queensland² and Reeman v State of Queensland³ and judgment in this appeal is given on the same day as and following judgment in each of those appeals.

The appellant did not and does not contend that the respondent does not have evidence to establish his right of action apart from a defence founded on the expiration of the limitation period. Nor does the appellant contend that it is prejudiced by any delay.

Three questions arise in this appeal. The first is whether all material facts relating to the right of action were within the means of knowledge of the respondent on or before 6 November 1997 (hereafter "the critical date"). The second is, if that is so, whether those facts did not become decisive, within the meaning of s 30(1)(b)(ii), until after that date. And the third is, if that is also so, whether that has the consequence that a material fact of a decisive character was not within the means of knowledge of the respondent until after the critical date. The third of these questions is that which I resolved in the applicant's favour in Stephenson and in Reeman.

**2.**The relevant facts

The respondent became a police officer in August 1986 at the age of 19. In February 1991 he was attached to the Undercover and Surveillance Squad where he undertook undercover police duties. His task was to infiltrate crime syndicates and gather evidence to place offenders before court. He was obliged to change his appearance so that he looked less like a police officer and more like a person who fitted in with the criminal world. He was given a police identity and advised to keep his association with his family and friends to a minimum. He was taken to safe alternative premises and he was trained by fellow officers in the use of illegal drugs.

He was told by senior police officers that he was allowed only to simulate drug use but in fact he was shown how to smoke marijuana and told that there was no effective way of simulating drug use. He was also shown how to "shoot up" heroin. He was told that he might need to use drugs to protect himself from being exposed as a police officer thereby putting his life at risk. He said he was encouraged to use marijuana so as to become accustomed to the procedures for its use and also to build up a tolerance.

His activities caused him considerable distress and anxiety. In addition, on one occasion, he was exposed as a covert police officer and put in such fear that he slept with a gun under his pillow. On another he was involved, as a driver, in a fatal car accident whilst driving to a rendezvous with people he was investigating who were following in another vehicle. This was followed by an investigation and an inquest in which his identity was again exposed to those whom he was investigating. These incidents, and others whilst engaged in this work, increased his distress and anxiety.

In late 1991 the respondent became a user of illegal drugs. In January 1992 he began to experience feelings of nausea, irritability, loneliness, anxiety, nervousness, sleep disturbance, nightmares and stress. Early in 1992 he developed a drug dependence. By mid 1992 he was suffering from regular panic attacks and had developed symptoms consistent with generalized sleep disorder. In July 1992 when an undercover operation was terminated with the arrest of 50 offenders on over 400 criminal charges, he was required to confront several of the offenders and identify himself as a police officer. Many of them were charged with serious offences including trafficking in heroin. He had trouble dealing not only with the abuse he received from them but also his feeling that he had betrayed them.

In March 1993 he was transferred from undercover work to uniformed duties. He found the transition difficult to cope with and at times when he would go home, he would break down and cry. On his days off he would drink excessively and consume marijuana to cope with everyday tasks. He suffered from sleepless nights, cold sweats, migraines and feelings of nausea. In August 1993 he took leave for about two months.

In late 1994 or early 1995 an acquaintance who was a nurse suggested that the respondent seek treatment from Dr Foxcroft, a psychiatrist, for his heavy drinking and heavy marijuana use. The respondent was then suffering from what he now knows to be symptoms of post-traumatic stress disorder. However he believed at the time, with some justification, that his problems were caused by his drug and to a lesser extent an alcohol addiction. Dr Foxcroft referred him to another psychiatrist Dr Apel, a specialist in drug dependency, whom he commenced seeing in February 1995. Dr Apel was then reasonably optimistic about the respondent's future if he were able to change his immediate environment. It was not suggested to the respondent that he should or would have to leave the police service. On 24 February 1995, on Dr Apel's recommendation he applied for a transfer from Maroochydore, where he then was, to Brisbane. In August his application was refused.

During that year the respondent's police partner arrested a high ranking commissioned officer for drink driving. In December 1995 the officer pleaded guilty to drink driving but on the following day the respondent and his police partner were both charged with official misconduct in relation to an arrest which they had made in December 1994 and required to stand down from duty and to hand their guns and badges in. This incident exacerbated the respondent's symptoms.

The respondent consulted Dr Apel again in early 1996 and discussed his difficulties. After receiving some treatment the respondent showed some improvement. He believed that his treatment was improving his symptoms. He realized that, if his use of marijuana was discovered, he might face disciplinary action but he felt able to control his drug usage and felt that it would not have a long term effect on his employment. Up to this point no doctor had suggested that he might need to consider leaving the police force because of his condition.

In June 1996 the above charges against the respondent were dismissed by the Misconduct Tribunal of the Criminal Justice Commission, his suspension was revoked and he was permitted to return to duty. However he continued to suffer from sleepless nights, cold sweats, migraines and feelings of nausea. He continued to use alcohol and marijuana and to experience difficulties in performing his police duties. At his request he was allocated watch house duties for the next few months. On 6 August 1996 he made an application for workers' compensation for "work stress" which was rejected by WorkCover on 1 October 1996.

In October 1996 Dr Apel recorded in his notes how unhappy the respondent was and noted "time to leave police". But he said that he did not give the respondent any advice that his underlying condition was such as to require him to leave the police service. He said that he had not formed a medical diagnosis to that effect at that time.

On 9 April 1997 the respondent commenced sick leave. He also consulted another psychiatrist Dr Freed who prescribed anti-depressants and commenced treatment to reduce his alcohol and cannabis consumption. He was able to reduce the consumption of both alcohol and cannabis and began to experience a gradual improvement in his condition. He continued to see Dr Freed monthly during 1997. He had completed yet another application for workers' compensation on 21 April 1997 this time based on anxiety and depression.

In June 1997 the respondent was named at the Carter Inquiry in relation to covert police officers who were alleged to have consumed marijuana. Dr Freed advised him that his police career was in jeopardy and suggested that he should consider retiring from the Queensland Police Service. The respondent, however, said that this "really did not sink in" and he believed that once he had addressed his anxiety symptoms he would be able to resume duties with the Queensland Police Service as he wished to do. However he did obtain the necessary paperwork for an application to retire on medical grounds. By then he had been diagnosed as having chronic post-traumatic stress disorder with suicidal ideation and substance abuse disorder.

On 27 August 1997 Dr Freed filled out a form in support of the respondent's application for discharge from the police on medical grounds, which the respondent completed the same day. What Dr Freed wrote there is of some significance because it was read by the respondent. Among Dr Freed's comments were the following:

"He is too anxious & mistrustful to return to police duties"

"Objectively he cannot work"

"He will be unable to resume normal duties"

"He no longer identifies himself with the police service"

"He won't return"

Dr Freed recommended the respondent's retirement from the police force as he considered that it was medically in his best interests to remove himself from the stress associated with his situation. However Dr Freed also expressed the opinion that the respondent would be able to work elsewhere and said that the respondent had told him he intended to work outside the police force.

In that document Dr Freed described the nature and cause of the respondent's condition as:

"1.Generalised Anxiety Disorder caused by prolonged undercover work.

2.Panic attacks due to same cause.

3.P.T.S.D."

The reference to PTSD is to post-traumatic stress disorder.

When asked generally what he was thinking about his condition during the period from August to October 1997 the respondent said:

"To be quite honest, your Honour, I wasn't really sort of thinking too much. It was a time where everything was sort of spinning around a fair bit and I really didn't know where I was at or what I was doing. I was sort of toing and froing. I was not sure exactly what was going on. I was in the process of trying to get out of the police force, and, at the same time, I was trying to deal with the issues that I had at hand as far as my psychiatrist was concerned. I had added pressures from the Carter Inquiry. I was quite worried about being exposed and not revealing my identity to past criminals who I had dealt with and I was also dealing with a lot of relationship problems as well at home, so I was just sort of feeling pressured, bombarded with the whole thing. I really wasn't thinking too much at all about it."

The learned primary judge found that the respondent was unaware, and no doctors had informed him, of the ramifications his condition would have for him outside the police service. He believed that once he was removed from the police service his condition would resolve itself and he would be able to obtain alternate work. And her Honour plainly accepted his oral evidence that, notwithstanding his application for retirement from the Police, between August and December 1997 he still nursed the hope, even the expectation, that he would be able to remain in the police service. Her Honour expressed the view that his belief that his condition would resolve itself if he were removed from police work and that he would be able to find alternate work was an entirely reasonable belief.

On 10 October 1997 the respondent was assessed, at WorkCover's request, by Dr Hutchinson who, in his report of 13 October 1997, expressed the opinion that the respondent had suffered from an adjustment order with depressed and anxious moods from which he had recovered and that he was fit to return to work as a police officer. It is true that the respondent did not see Dr Hutchinson's report until 1999. However he said, in effect, that it was plain to him during his interview with Dr Hutchinson that it was not going well, that Dr Hutchinson was making only superficial inquiries - "just skimming over the top of things" - and he himself was a bit reluctant to communicate properly with Dr Hutchinson. He said that he "got a bit of an idea that [Dr Hutchinson] would be submitting to WorkCover that I was probably fit to return to duties". He therefore had reasonable cause for an apprehension, which he had, that Dr Hutchinson would not support his application for workers' compensation. That turned out to be correct and on 21 October 1997 WorkCover rejected his application, advising him that his injury did not prevent him from performing normal duties. However the respondent was surprised and confused by WorkCover's communication that it was Dr Freed's opinion that he was fit to return to uniformed duties.

On 26 October 1997 the respondent was seen by Dr Foxcroft at the request of the Queensland Police Service and on 12 November 1997 Dr Foxcroft produced a report to the Queensland Police Service diagnosing the respondent as suffering from generalized anxiety disorder, post-traumatic stress disorder and major depressive disorder. He said that the major cause of this was his work as an undercover police officer and subsequent experiences in the police service. Dr Foxcroft said that his prognosis was poor and that his incapacity rendered him permanently unfit and incapable of discharging efficiently the duties of a police officer. It seems that it was this report which ensured the respondent's discharge from the police service on medical grounds. On 19 January 1998 he was advised by QSuper that he was accepted as being permanently unfit and incapable of discharging his duties as a police officer; and he was advised of the success of his application for that discharge on 29 January 1998.

In the meantime the respondent was further confused by the insistence of WorkCover that Dr Freed's advice was that he was fit to return to uniformed duties notwithstanding that on 5 November Dr Freed had assured him that he had not said that. Dr Freed said that this unsatisfactory and confusing situation must have made the respondent "question … his sanity".

It is unnecessary to turn to events after the communication to the respondent on 29 January 1998 that he would be retired on medical grounds. However an opinion by Dr Apel, uncontradicted by other doctors, upon which the learned primary judge relied, is relevant to the second of the above questions.

Dr Apel swore:

"Firstly, from my experience with patients who have been serving Police Officers, it would be undoubtedly against the [respondent's] interests to institute proceedings at a time if there was still a prospect of remaining a serving Police Officer. That would entail the stress of having to cope with the adverse workplace response which could reasonably be anticipated. Secondly, the [respondent] was already under stress because of his PTSD and his addiction to cannabis and the conflict that that generated with his role as a Police Officer. To seek to add to that stress by exposure of that addiction and to require the [respondent] to provide detailed instructions, in effect reliving the traumatic events which underlay the development of his condition would be very much against the [respondent's] own interests. Indeed, while it is plain that the [respondent] had desired to remain as a police officer in the end a circumstance which lead [sic] to his leaving the force on the grounds of ill health was a concern about being prosecuted over use of cannabis in consequence of being publicly named in relation to illicit drug use as recorded in my second report. At a conscious level it can be seen that this would influence the [respondent's] response to his circumstances but in my opinion, the real difficulty for the [respondent] in remaining a police officer was his underlying condition and the associations which his employment had for that condition."

The learned primary judge set out that passage of his evidence in full in her reasons.

Her Honour went on:

"Dr Freed disagreed with Dr Apel's assessment as to whether or not he could provide instructions without detriment to his health but Dr Apel's opinion about the adverse effects of making a claim while still a serving police officer when such a claim would have revealed the extent of his illegal drug use was unchallenged and is clearly correct …

…

Mr Bougoure's own evidence as to this was that prior to receiving the advice from Q Super, he 'was fearing anything from being sacked, to losing my job, to possibly going to gaol.' Once he was no longer a police officer, he was no longer open to disciplinary proceedings even if the full extent of his drug use was revealed."

**3.**The relevant statutory provisions

Section 31(2)(a) 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;

…

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 brought by the applicant in that court, the period of limitation is extended accordingly."

Section 30(1)(b) is in the following terms:

"(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;"

**4.**The application of those provisions

The learned primary judge said that the fact which was alleged to be material was the nature and extent of the personal injuries caused by the negligence of the respondent. Her Honour went on to say that the respondent submitted that he was unaware of the nature and extent of his personal injury until he was advised by QSuper on 19 January 1998 that he was permanently unfit and incapable of discharging his duties as a police officer.

There is no doubt that the nature and extent of the respondent's personal injuries caused by the negligence of the appellant, and in particular whether he was, by his injuries, permanently unfit to discharge his duties as a police officer, was a material fact relating to the right of action. However I disagree with the conclusion of the learned primary judge that, in effect, that fact did not come within the means of knowledge of the respondent until, in consequence of the diagnosis of Dr Foxcroft on 12 November 1997, he was told on 19 January 1998 that he would be accepted as permanently unfit to discharge those duties. On the contrary it seems to me that Dr Freed's opinions, of which the respondent was aware on 27 August 1997, were sufficient evidence about the nature and extent of the respondent's injury to justify a conclusion that all material facts relating to the right of action were within the means of knowledge of the respondent on and from that date.

Moreover it seems to me, with respect, that, from the time Dr Freed expressed those opinions at least until on or about 10 October 1997 when the respondent had a reasonable apprehension that Dr Hutchinson, whom he saw on that day, would not support his application for workers' compensation, a reasonable person knowing the facts and having taken Dr Freed's and an appropriate legal adviser's advice on them would have regarded an action by the respondent against the Queensland Police Service as having a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of the action. Indeed I am inclined to think that, notwithstanding that reasonable apprehension, a reasonable person would have regarded such an action as thereafter having a reasonable prospect of success resulting in an award of damages sufficient to justify the bringing of the action. But in my opinion it is unnecessary to reach any final conclusion on that. It is sufficient that that was so from 27 August until 10 October.

Those conclusions require not only an affirmative answer to the first question arising in this appeal but also a conclusion that those facts satisfied s 30(1)(b)(i). The answer to the second question depends on the acceptance of the opinion of Dr Apel, set out above, that for the respondent to have pursued such an action before his discharge from the police service on medical grounds would have jeopardised his prospects of obtaining such discharge.

In my opinion her Honour was quite justified in accepting that opinion, as she did, notwithstanding that it was not strictly a medical opinion. That is because it plainly accords with common sense. It is true, as the appellant has pointed out, that the respondent had disclosed his past consumption of illegal drugs in his June application for workers' compensation and in his October meeting with Dr Hutchinson. But it is reasonable to think that, even if those disclosures had become known to those responsible for assessing the respondent's eligibility for discharge, and there is no evidence that they did,⁴ such persons would have been much less charitably disposed to the respondent, in their consideration of that application, if they had known that he was suing the police service for negligence, and consequently much more likely to have taken disciplinary action against him in respect of his drug use which may have led to his dismissal.

Acceptance of that opinion established, in my view, that a reasonable person, knowing the material facts relating to the right of action and having taken appropriate advice would not, in the light of that opinion, have regarded the material facts as showing that the respondent ought, in his own interests and taking his circumstances into account, to have brought an action on his right of action before he knew with certainty that he would be discharged from the police service on medical grounds. That was, of course, after the critical date. It follows, in my opinion, that the material facts did not become of a decisive character until after the critical date.

The answer to the third question then follows from the construction of the above provisions which I adopted in Stephenson and in Reeman. In my opinion a material fact of a decisive character was not within the means of knowledge of the respondent before the critical date. In my opinion, but for reasons different from those relied on by her Honour, her Honour's conclusion was correct and this appeal must be dismissed.

Orders

Amend the order made below by deleting "6 November 1997" and inserting in lieu "6 November 1998".

Dismiss the appeal.

That the appellant pay the respondent's costs of the appeal to be assessed.

WILLIAMS JA: This is another case of a former police officer needing an extension of time pursuant to s 30 and s 31 of the Limitation of Actions Act 1974 in order to prosecute a claim for damages for personal injury. In this case the police officer, the respondent, obtained from the learned judge at first instance an order extending the time, but the State of Queensland, representing his employer the Queensland Police Service, has appealed. The appeal was heard together with the associated matters of Stephenson v State of Queensland [2004] QCA 483 and Reeman v State of Queensland [2004] QCA 484.

My opinion on the proper construction and application on s 30 and s 31 has been fully articulated in my reasons for judgment in Stephenson; I will not repeat in these reasons what I there said, but I approach the resolution of the issues raised by this appeal in the light of that.

If proof was needed of the fact that the outcome of applications relying on s 30 and s 31 was dependent upon the facts of each particular case, the decisions of this court in Stephenson, Reeman and Russell v State of Queensland [2004] QCA 370 amply demonstrate that.

The basic facts relating to the respondent’s employment in the Queensland Police Service are set out in the reasons for judgment of Davies JA and I will not repeat them. The question raised by the competing applications before the learned judge at first instance and by this appeal is whether or not the respondent has established that a material fact of a decisive character relating to the right of action was not within his means of knowledge until after 6 November 1997.

The following extracts from the findings made by the learned judge at first instance are critical in determining that question:

“By 1994, Mr Bougoure had developed symptoms consistent with generalised anxiety disorder and major depressive disorder ... . …

…

… On 6 August 1996, Mr Bougoure made an application for workers’ compensation for ‘work stress’ which was rejected by WorkCover on 1 October 1996.

...

On 9 April 1997, Mr Bougoure commenced sick leave. ... On 21 April 1997, he completed and submitted a WorkCover application relating to his anxiety and depression. ...

In June 1997, ... Dr Freed advised him that his police career was in jeopardy and suggested that he should consider retiring from the QPS. ... However he followed Dr Freed’s advice and obtained the necessary paperwork for an application to retire from the QPS on medical grounds. He was diagnosed in July 1997 as having chronic post traumatic stress disorder with suicidal ideation and substance abuse disorder ... .

...

… Mr Bougoure completed his application to retire on 28 August 1997 ... .

... He was unaware, and no doctors had informed him, of the ramifications his condition would have for him outside the police service. He believed that once he was removed from the police service his condition would resolve itself and he would be able to obtain alternate work. That was an entirely reasonable belief. It was only after his retirement that he realised he was unable to work outside of the police service due to the continuing nature of his condition. ...

…

Mr Bougoure received a letter from WorkCover on 21 October 1997 rejecting his application for WorkCover and advising him that his injury did not prevent him from performing his normal duties. ...

…

On 6 November 1997 Mr Bougoure requested a review of WorkCover’s decision to reject his claim. ...

On 12 November 1997, Dr Foxcroft prepared a report which supported Dr Freed’s assessment. ...

On 17 December 1997, WorkCover rejected Mr Bougoure’s application for review ... .

However on 19 January 1998, Mr Bougoure was advised by Q Super that he was permanently unable to carry out the duties of his position, as part of the process of termination from the QPS. It was only then that he knew that his condition rendered him permanently unfit and incapable of discharging the duties of a police officer. On 29 January 1998, he was advised he was to be retired on medical grounds. Mr Bougoure accepted that direction and on 6 February 1998, Mr Bougoure officially retired from the QPS. ...

Unfortunately, after his retirement, Mr Bougoure’s symptoms continued and he then realised that he would not easily be able to work in alternative employment.”

Subsequently in her reasons the learned judge at first instance recorded that the fact which was alleged to be material in this case was “the nature and extent of the personal injury caused by the negligence of the respondent. Mr Bougoure submits that he was unaware of the nature and extent of his personal injury until he was advised by Q Super on 19 January 1998 that he was permanently unfit and incapable of discharging his duties as a police officer.”

A little later on her Honour said that the “material fact in this case was the diagnosis of his condition and its prognosis given by Dr Foxcroft on 12 November 1997 which led to the advice from Q Super.” That to my mind could not be held to be a material fact of a decisive character for purposes of s 31; all Dr Foxcroft did on 12 November 1997 was, as her Honour earlier recorded, reach the same conclusion as Dr Freed had expressed earlier in 1997. It would follow that the respondent could not rely on Dr Foxcroft’s report as constituting the relevant material fact; but it does appear that the learned judge at first instance did not decide the case on that point but rather on the consideration that the respondent was not aware of the nature and extent of the injury insofar as it impacted on his future employability.

The critical finding of fact in my view is contained in the following paragraph from her Honour’s reasons:

“As Dr Apel observed, there were difficulties in accurately diagnosing Mr Bougoure’s condition as can be seen from Dr Hutchinson’s report. Until Dr Foxcroft’s report there was considerable uncertainty as to the correct diagnosis of Mr Bougoure’s condition and as to his future employability, whether in the police service or elsewhere. On 17 December 1997, WorkCover had rejected his claim for statutory compensation on the basis that his application was not supported by Dr Hutchinson or Dr Freed. In those circumstances, a reasonable person in Mr Bougoure’s position was entitled to form the view that the prospects of success and the quantum of damages in an action for damages for workplace injury would not have been sufficient to justify the expense and uncertainty of litigation.”

As her Honour subsequently pointed out the respondent “had sought and obtained medical advice and had taken all possible steps to receive WorkCover. His WorkCover application had been rejected and Mr Bougoure was faced with conflicting medical opinion as to the aetiology and seriousness of his condition. WorkCover had purported to reject his claim because it was not supported by any medical opinion. It appears in these circumstances that he had taken all reasonable steps to ascertain the seriousness of his injury.”

In the particular circumstances of this case I am of the view that the retirement of the respondent from the Queensland Police Service on 6 February 1998 was a material fact for purposes of s 31. As her Honour found, particularly given the history of conflicting medical assessment of his condition and the rejection of his claims by WorkCover, a reasonable person in the position of the respondent would not have concluded that he had a worthwhile course of action until his employment had in fact been terminated on medical grounds. Given that finding, which was clearly implicit in the reasoning of the learned judge at first instance, and given my approach to s 30 and s 31 of the Act, the respondent has discharged the onus on him of establishing an entitlement to an enlargement of the limitation period.

The appeal should be dismissed. I agree with the orders proposed by Davies JA.

CHESTERMAN J: The facts relevant to the appeal are set out in the reasons for judgment of Davies JA.

As Williams JA has pointed out, applications for an extension of time pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) turn upon their own facts.

I adhere to the opinions I expressed on the meaning and operation of that section in Stephenson v State of Queensland [2004] QCA 483. In particular I think it important to bear in mind the “negative proposition” pointed out by Connolly J in Sugden v Crawford [1989] 1 Qd R 683 at 685, that time will not be extended where it is apparent, that without the fact, newly discovered, a reasonable man, appropriately advised, would have brought the action on the facts already in his possession. To repeat the proposition in affirmative terms, time will not be extended where, before the critical date, an applicant knew of sufficient facts to make it unreasonable not to have commenced an action earlier. The point is clearly made in the judgment of Deane J in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 251. Macrossan CJ made the same point in Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325 at 333:

“He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it.”

The trial judge made a finding, in which Davies JA concurred,

“... [applicant] was unaware and no doctors had informed him, of the ramifications his condition would have for him outside the police service. He believed that once he was removed from the police service his condition would resolve itself and he would be able to obtain alternate work. ... [Notwithstanding his application for retirement] ... he still nursed the hope, even the expectation, that he would be able to remain with the QPS.”

The trial judge further found that it was only on 19 January 1998 that the respondent was advised, and understood, that he was permanently unable to carry out the duties of a police officer. It was only subsequent to his retirement when his symptoms continued that the respondent realised he could not easily find alternative employment.

On these critical findings a material fact of a decisive character was not within the respondent’s means of knowledge before 6 November 1997. The material fact was not the respondent’s retirement but the knowledge gained shortly after his retirement, that he could never return to the police service and that his condition precluded his obtaining alternative employment.

Unless this finding of fact is set aside the appeal must fail. I agree with Davies JA and with Williams JA that the finding was supportable by the evidence.

I therefore agree that the appeal should be dismissed and with the orders proposed by Davies JA.

Footnotes

1. Her Honour plainly meant 6 November 1998, the date on which the action was commenced: see s 31(2). This error was not adverted to in argument in this Court but it will be necessary to correct it if this appeal is dismissed on its merits. ↩

2. [2004] QCA 483; Appeal No 7621 of 2004, 17 December 2004. ↩

3. [2004] QCA 484; Appeal No 8239 of 2004, 17 December 2004. ↩

4. Indeed, as the respondent has pointed out, the confidentiality provisions of the WorkCover Queensland Regulation 1997, s 64 to s 73 appear to prevent this. ↩