Dick v University of Queensland

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 - claim against employer for damages for negligence - whether to extend limitation period - s 30, s 31 Limitation of Actions Act 1974 considered - Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234 considered - whether report contained all necessary material facts of a decisive character relating to present action - discussion of steps to be examined in order to determine whether the necessary extension can and should be granted - distinction between proof of causation and proof of negligence - date by which material fact is within claimant's "means of knowledge" - wrong "material fact" relied on below - need for rehearing

Limitation of Actions Act 1974 s 30, s 31

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, considered

DA Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582, considered

Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234, considered

Doherty v Murphy [1996] VicRp 86; [1996] 2 VR 553, considered

Ervin v Brisbane North Regional Health Authority & Sugars Appeal No 267 of 1993, 20 October 1994, considered

Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292, considered

Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419, considered

Randel v Brisbane City Council [1984] 2 Qd R 276, (1984) 54 LGRA 20, (1984) Aust Torts R 80-647, considered

Smith v Central Asbestos Co [1973] AC 518, considered

Water Board v Moustakas (1994) 180 CLR 491, considered

Wood v Glaxo Australia Pty Ltd [1993] QCA 114; [1994] 2 Qd R 431, considered

Mr J A Griffin QC, with him Mr M O'Sullivan, for the appellant

Mr D North SC, with him Mr K Howe, for the respondent

**[1] PINCUS JA: I have had the advantage of reading the reasons of Thomas JA and those of Cullinane J. Subject to the following observations, I agree in the reasons of Thomas JA.

[2] A feature of the case is that, if one takes the date on which the respondent was in possession of necessary material facts to be 21 July 1995, when Dr Carroll advised the respondent, then the action was only 4 days too late; it was begun on 25 July 1996.

[3] It seems that the danger posed by use of N-hexane had been known to those expert in the field since the 1970's. Presumably the appellant could have made itself aware of the danger (if it was not in fact earlier aware) many years before it ceased the relevant use of N-hexane, in July 1995. The continued use of the substance has it appears done serious damage to the respondent.

[4] On the material in the record, it appears to me that the respondent would have had fair prospects of success in his application for an extension of time on the basis that further investigation, by or on behalf of the respondent, would be necessary before it would reasonably be concluded that the relevant fact was within the respondent's means of knowledge. That fact was that the appellant should have been aware of the dangers I have mentioned, well before it ceased use of N-hexane.

[5] To illustrate the point, suppose that a plaintiff pedestrian becomes aware that there is a witness who is said to be able to give evidence to prove negligence in an action against a driver who has run the pedestrian down. Would the material fact - the availability of supporting evidence - be within the plaintiff's means of knowledge before the named witness is located and proofed? It does not appear to me correct that the period of a year mentioned in s 31(2) of the Limitation of Actions Act 1974 starts to run when the mere existence of the witness is known. A question of degree is involved and this is discussed, in another factual context, in Wood v Glaxo Australia Pty Ltd [1993] QCA 114; [1994] 2 Qd R 431 at 440, by Davies JA. His Honour said:

"If evidence of the fact, that is the medical opinions themselves, were sufficient for this purpose, though there might be a question when that evidence came within the means of knowledge of the appellant, the critical question would usually be when that evidence within the plaintiff's means of knowledge was strong enough, when interpreted in the light of the relevant appropriate advice, to become of a decisive character within the meaning of s 30(b)(i) and (ii). By contrast, if means of knowledge of the fact of the existence of the causative relationship is, as I think, necessary for this purpose, there can be no doubt that it is of a decisive character, the critical question being when that fact came within the means of knowledge of the appellant. And given that means of knowledge of that fact can never be absolute, that question becomes what degree of means of knowledge is sufficient".

The critical point is the reference to the "evidence within the plaintiff's means of knowledge" being "strong enough ... to become of a decisive character". On the following page his Honour refers to -**

" ... the necessary degree of satisfaction of the existence of [the material] fact for it to have been within her means of knowledge".

**[6] Here, it might be arguable that the statement of Dr Carroll's opinion (that the danger was "notorious") to the respondent on 21 July 1995 put him in the position of knowing all the material facts, having regard to the test in s 30(1)(b). But it does not appear to me that that statement of opinion, unconfirmed by any further enquiry or material, would necessarily qualify as a material fact of a decisive character. I should add that it is not clear from the record on what date the question was followed up by the respondent's solicitors. A deponent, Mr M H Beirne, obtained evidence which is exhibited and strongly supports Dr Carroll's opinion. But Mr Beirne did not become involved in the matter until 1997.

[7] A statement of the principles applicable where a point is raised on appeal which was not taken below is to be found in Water Board v Moustakas (1994) 180 CLR 491. There, on appeal, an injured employee who failed against his employer in a New South Wales action for damages for negligence succeeded in the Court of Appeal on the basis of a factual contention not raised below. The High Court restored the judgment for the defendant. The principal judgment contains the following:

"More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied". (497)

On the face of it, that statement would seem fatal to the respondent here; but it had earlier been held, in Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 at 294, that:**

"... there are very exceptional cases where the interests of justice may require a new trial on an issue of fact not litigated at the trial".

In Water Board v Moustakas the principal judgment discussed Maloney:

"It is true that in Maloney it was recognized that in 'very exceptional cases' a plaintiff's omission to put at trial a case formulated on appeal may not be conclusive against him. But it was pointed out that the opportunity to assert the new case at another trial should only be granted where the interests of justice require it and such a course can be taken without prejudice to the defendant". (498)

**[8] The respondent could, if the appeal were simply allowed without an order for a re-hearing, begin again: DA Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582. But there exists a possibility that a second application would be dismissed as an abuse of process; it does not appear to be a sound or proper course to subject the respondent to that risk.

[9] I recognise that, had the matter been litigated below on the basis set out in the reasons of Thomas JA and in my reasons, the appellant might perhaps have been able to lead evidence to show that the respondent had knowledge of the necessary facts before he saw Dr Carroll on 21 July 1995. But that seems a little improbable; the plaintiff swore that he was first advised that he suffered from peripheral neuropathy when he consulted Dr Carroll on 21 July 1995 and that was not challenged. Nor does any of the, quite extensive, collection of documents in the record throw doubt upon that assertion or suggest that, on a date earlier than 21 July 1995, the respondent must have known the matter now relied on.

[10] An additional reason for thinking, as I do, that this case is sufficiently exceptional to come outside the important rule reaffirmed in Moustakas is that it seems that both sides concurred in placing a false issue before the primary judge. Had attention been drawn, at that stage, to the true state of the law as appearing from Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234, the hearing below might have taken quite a different course. The shortness of the time involved, referred to above, also appears to me to be relevant in considering whether the interests of justice require that the present case be treated as exceptional. It is one in which the respondent should be permitted another opportunity to litigate the matter, this time on the basis of a proper understanding by all concerned of what the respondent had to show in order to succeed.

[11] I agree with the orders proposed by Thomas JA.

[12] THOMAS JA: The respondent Mr Dick is the plaintiff in an action in which he sues his employer the University of Queensland for damages for negligence. The University appeals against an order under s 31 of the Limitation of Actions Act 1974 extending the time for commencement of the action.

[13] Between about 1966 and August 1995 the respondent was required in the course of his employment to use a solvent known as BP 13. That solvent contained a substance (n-hexane) which allegedly has caused the respondent to suffer a neurological injury known as "peripheral neuropathy". The respondent first noticed symptoms in about the middle of 1994 in the form of a feeling of pins and needles in his toes. He consulted various medical practitioners but the connection between his exposure to the solvent and the consequential condition of peripheral neuropathy was not made until a consultation with Dr Carroll on 21 July 1995. Dr Carroll wrote a report to the Director of Neurology at Princess Alexandra Hospital on 24 July 1995 and sent a copy to the respondent. The parties accept that the contents of that report were communicated to the respondent on the day of the consultation, 21 July 1995. It includes the following information:**

"The material safety data sheet for BP 13 confirms the presence of at least 70 per cent n-hexane. N-hexane is a notorious cause of peripheral neuropathy...

When I spoke to Mr Dick he stated that this material had been in use for a long time and was used extensively in the metrology laboratory in the Department of Mechanical Engineering at the University of Queensland where he works".

The report then mentions two other persons in the metrology laboratory who were complaining of similar symptoms. It continues:

"The BP 13 replaced a previous solvent called X55 made by Shell. This latter product was removed on health grounds and apparently BP 13 was chosen on the advice of the National Measurements Laboratory then based in Sydney ... He stated that no training had been received in use of material safety data sheets and no regular workplace inspection program was in place ... It has been recommended that the use of BP 13 be ceased and that occupational hygiene measurements should be undertaken to assess the severity of his exposure ... Appropriate measures to prevent similar recurrences developing clearly need to be in place ... There may be a case for prosecution".

**[14] In November 1995 the respondent made a claim for workers compensation and some months later, in March 1996, when consulting solicitors in relation to a will, mentioned his symptoms and condition, and was told by the solicitor that he might have a good cause of action for damages for personal injury against his employer. Within two weeks of that conversation the respondent gave instructions to a partner of that firm of solicitors to act for him in relation to a claim for damages, and to commence proceedings. The writ however was not issued until 25 July 1996. That date it will be noted is slightly more than one year after the date when the respondent received the above information from Dr Carroll.

[15] The appellant University has pleaded the statute of limitations with respect to any act on its part prior to 25 July 1993. The respondent desires to have the benefit, if he can, of relying upon any negligence that he can prove against the appellant both before and after that date, and also presumably to avoid associated questions of causation.

[16] The learned chamber judge extended the time of the period of limitation for the making of this claim until 25 July 1996, which was the date on which the action was actually commenced. Her Honour held that a material fact of a decisive character relating to the right of action was not within the respondent's means of knowledge until March 1996 when he consulted his solicitors. The appellant however contends that immediately upon the respondent's consultation with Dr Carroll on 21 July 1995 the respondent knew of all material facts of a decisive character relating to his right of action. If this is correct, then the court's power to extend time is limited to one year from that date, and the extension would fall four days short of the date upon which the proceedings were brought (25 July 1996).

[17] There is no doubt that from on or about 21 July 1995 when he consulted with Dr Carroll, the respondent was aware that he was suffering from a condition of peripheral neuropathy, that such condition was produced by the toxin n-hexane, and that the condition was caused by his exposure to n-hexane in the workplace over a lengthy period of time.

[18] The submissions below led the learned chamber judge to consider issues such as whether the respondent unduly delayed between July 1995 and March 1996 when he consulted his solicitors. The material fact of a decisive character to which the learned chamber judge gave consideration was expressed as "an understanding of a right to claim common law damages in addition to the statutory right under the Workers Compensation legislation". To the extent to which this introduces knowledge of the legal effect of the facts within the respondent's knowledge, it is an erroneous test, and an affirmative answer to it would not justify an extension. In Do Carmo v Ford Excavations Pty Ltd[1] it was recognised that:**

"[t]he ignorance of a material fact to which those sections refer is, in my view, ignorance of a factual matter in the ordinary sense and not ignorance either of the law itself or of the legal consequences of the material facts"[2].

Wilson J adverted to the "clear distinction between facts and the legal consequences of those facts"[3], and observed that "[k]nowledge of the legal implications of the known facts is not an additional fact which forms part of a cause of action"[4]. Dawson J observed:

"[I]t seems to me that the reference to material facts in par. (i) of s. 57(1)(b) does not include a reference to a cause of action in negligence but is rather a reference to the facts which constitute the acts or omissions, including those facts which are necessary to show the negligent character of those acts or omissions, upon which such a cause of action might be founded."[5]

On this question a consistent view is expressed by four members of the court (Wilson, Brennan, Deane and Dawson JJ), with only Murphy ACJ taking the view that the existence in law of a right of action is a relevant "material fact" for the purposes of the legislation.[6]

**[19] It is therefore necessary to consider the facts that were within the respondent's knowledge by 21 July 1995, and in particular whether at that time he was unaware of any material facts relating to his right of action. It will then be necessary to consider the date by which any such fact was within his means of knowledge. The material facts relating to the right of action include "the fact of the occurrence of negligence ... or breach of duty on which the right of action is founded" and "the extent to which the personal injury is caused by the negligence ... or breach of duty"[7]. Such facts will be regarded as 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 ... that an action ... would ... have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action" and that he ought in his own interests to bring an action[8].

[20] The appellant's argument is founded on the premise that Dr Carroll's report contained all necessary material facts of a decisive character relating to the present action which is based on alleged negligence of the employer. The respondent however emphasises that material facts going to the existence of such a cause of action include proof of negligence, and in particular of some unreasonable lack of care on the part of the employer. In the present case this would require evidence of the availability to the employer of knowledge of unacceptable danger in requiring employees to use BP 13 at relevant times. The existence of such knowledge on the part of the employer, or at least that it was reasonably open to ascertain that such a danger existed, would be an essential factor in proof of negligence in this case, particularly in the light of the information conveyed to the plaintiff that BP 13 had been chosen on the advice of the National Measurements Laboratory. The distinction between knowledge that someone has caused an injury and knowledge that that person has caused it negligently is fundamental. It was the basis of the decision of this court in Ervin v Brisbane North Regional Health Authority[9].

[21] Unfortunately this particular argument was not presented on the respondent's behalf to the learned chamber judge. The material fact relied on below was "an understanding of a right to claim common law damages in addition to the statutory right under the workers compensation legislation". That with respect was a false issue and a favourable finding upon it is of no avail to the respondent when the principles recognised in Do Carmo are applied. The point now relied on is that the material fact of which the respondent was unaware is that n-hexane has been known to be a cause of peripheral neuropathy since the 1970s and that this was published in journals in 1976 and 1977. From that primary information it is possible to infer that such information would have been available to be found by a prudent employer, and an alternative system of work provided. The material fact may be expressed in a number of ways but essentially it is that over a substantial part of the period when the appellant was requiring the respondent to use BP 13 there was available information that it contained a component that was a cause of peripheral neuropathy.

[22] Counsel for the appellant submitted that the respondent, even without that information, had enough information already, because Dr Carroll had described n-hexane as a "notorious cause" of the condition from which the respondent suffered. However that statement does not advert to the question for how long this had been known. The appellant has manifested its desire not to be held liable for the consequences of any of its actions prior to the commencement of the limitation period of three years, and the ascertainment of the date upon which it may first be said to have been negligent and therefore responsible for the consequences of such negligence may be a matter of considerable importance.

[23] Counsel for the appellant also relied upon the approach taken by Wilson J and Deane J in Do Carmo. In that case the plaintiff had been exposed over a long period to silica dust which caused progressive pulmonary disease and disability. The plaintiff in that case was at material times aware that his employer had made no provision to prevent or reduce his exposure to the dust. The material fact which on his submissions he did not obtain until a later date was that it was generally available to be known at the relevant time that the risk of injury from such dust could be minimised by hosing and the wearing of face masks. Wilson and Deane JJ considered that such a fact was a "general or secondary fact", drawing a distinction between primary facts relating to a cause of action and facts "which are material to the cause of action in the sense that they provide the context in which, or by reference to which, the significance of the particular or primary facts should be assessed ..."[10]. Accordingly their Honours would have denied the plaintiff the extension which he sought.

[24] However the other three members of the court were of a different view. Murphy ACJ would have allowed the appeal on the wider ground that the existence of a right of action was itself a material fact. However his Honour also considered the present question and answered it in the following way:**

"The appellant did not know until after the commencement of the year preceding the expiration of the limitation period that the risk of injury was real or proximate and could reasonably have been foreseen and avoided by his employer. He thus did not know "material facts ... of a decisive character" before the period expired"[11].

**It may be noted that this articulates analogous material facts to those now relied on by the respondent.

[25] Further, Dawson J (with whose judgment Brennan J agreed) expressly observed that material facts included "those facts which are necessary to show the negligent character of those acts or omissions, upon which such a cause of action might be founded"[12].

[26] The legislation in question, ss 57 and 58 of the Limitation Act 1969 (NSW), is in pari materia with the Queensland legislation, ss 30 and 31 of the Limitation of Actions Act 1974. In quoting further passages from Dawson J's judgment I have interpolated the relevant Queensland sections:**

"The form of the legislation requires, I think, 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)].[13]"

**[27] These are the steps which must ultimately be examined in order to determine whether the necessary extension can and should be granted in the present case. Having regard to the change of ground between the proceedings below and the appeal, and the possibility that the appellant may wish to present a different factual basis in the light of the true point that is to be litigated, it is necessary to examine only the question whether the argument now presented by the respondent is capable of succeeding if the matter were to be re-heard. It is also necessary to deal with submissions of counsel for the appellant that the act now relied on must fail to amount to a material fact of a decisive character.

[28] As to step 1, Dawson J held that the material facts relating to the right of action were "those facts which must be proved in order to establish the negligent conduct upon which the cause of action in negligence is founded ..."[14]. His Honour considered that Do Carmo was a case where it was necessary for a plaintiff, in order to show that the system of work was not safe, to provide evidence of the steps which might have been taken to minimise or eliminate the risk of injury. Such evidence, his Honour thought, was "one of the ingredients which go to make up "the fact of the occurrence of negligence" and for that reason is, in my view, and [sic] material fact ..."[15]. His Honour then rejected the suggested distinction between primary and secondary facts, noting that it was certainly not one that had been drawn by the legislation itself. His Honour observed that "[w]hat is relevant is what the applicant had to prove in order to establish negligent conduct"[16]. It is enough to say that if the respondent was unaware of the fact that has now been formulated as the material fact, he could be held to have been unaware of a material fact.

[29] As to the second step, Dawson J considered that the relevant subsection[17] "characterizes as decisive at least each of those facts which must be proved in order to establish a cause of action"[18]. His Honour considered the existence of an alternative safe system of work was, in that case, a material fact of a decisive character. On the evidence as it now stands in the present matter, a similar conclusion is open.

[30] As to the third step, the question was whether the existence of an alternative safe system of work was "within the means of knowledge" of the plaintiff during the relevant period[19]. His Honour observed that it is not enough that the plaintiff did not know; it is a question of his means of knowledge. His Honour then emphasised that it is the means of knowledge of the plaintiff which are relevant and not the means of knowledge of a hypothetical reasonable man, citing the remarks of Lord Reid in Smith v Central Asbestos Co[20] such as "the plaintiff must have taken all such action as it was reasonable for him to take to find out" and "... this test is subjective. We are not concerned with 'the reasonable man'". Dawson J observed that s 58(2) [Qld s 30(1)(c)] unlike s 57(1)(c) [Qld s 30(1)(b)] "makes no assumption that appropriate advice was received when it was sought. What is important is the means of knowledge which were reasonably available to the appellant. And that must mean available in a practical and not a theoretical sense"[21].

[31] It is necessary for the court to find the date by which the necessary material fact was "within the means of knowledge" of the claimant. The jurisdiction of the court to extend the limitation period is limited to an extension one year after that date[22]. Dawson J continued:**

"The master found ... that the appellant had not failed to take, before the specified time, reasonable steps to ascertain those facts which would have provided him with knowledge of an alternative safe system of work"[23].

**His Honour then referred to the actual conduct of the claimant in which he initially saw his union representative, was referred to the union solicitors, was medically examined and subsequently sought advice from other solicitors. It was not until some time after he had sought advice from those solicitors that he or those solicitors learned that the risk of injury from dust could be minimised by hosing the area of operations with water and the wearing of face masks, and that such information would have been generally available at the relevant time. Those solicitors then commenced action a month later. His Honour concluded that "it could not have been said that during the relevant time the appellant had within his means of knowledge at least one material fact of a decisive character"[24]. The master's decision, which had found that the material fact was not within the claimant's means of knowledge until his solicitors' ascertained that fact and who extended the time accordingly to the date of commencement of the action, was restored.

[32] It is significant that in ascertaining the period over which the necessary material fact was not within the means of knowledge of the claimant, and conversely in identifying the time by which he did have the means of such knowledge, his Honour examined the personal actions of the claimant. He did not, as Deane J seems to have done[25], postulate the necessary additional advice as having already been taken from such experts as might need to have been consulted.

[33] The term "means of knowledge" is in effect defined by s 30(1)(c) of the Limitation of Actions Act as follows:**

"(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."

**[34] In making a finding of fact on this important question, the reasonableness of the steps taken by the claimant needs to be considered, and of course a claimant will not succeed if he or she has unreasonably delayed in obtaining the necessary advice or information. However it seems to me, with respect, that the approach of Dawson J with whom Brennan J agreed, represents the correct method. I note that Murphy ACJ's judgment is at least consistent with that of Dawson J (with whom Brennan J agreed) and is inconsistent with the approach taken by Wilson and Deane JJ. The gathering of the necessary information and awareness which will make it reasonable for a claimant to bring an action may well involve progressive stages of awareness. Such situations were considered by the Full Court in Neilson v Peters Ship Repair Pty Ltd[26] and Randel v Brisbane City Council[27]. As those cases indicate, the question whether a fact is not within the means of knowledge of a person at a particular time is still a question of fact. In Neilson I observed "it may be said of s 30(d)(ii) that not many 'steps to ascertain the fact' can reasonably be expected of a client when he is in ignorance of the need to ascertain it"[28].

[35] The appellant's submission that the respondent, once having been provided with the information supplied by Dr Carroll, should instantly be taken to have consulted with all necessary experts (including industrial safety experts and solicitors) and to be taken to know such information as those persons would have supplied to him must be rejected. In my view the date by which any necessary additional fact was within his means of knowledge is the date by which a court may find him to have been able to find it out by taking all reasonable steps to do so.

[36] In cases where a potential claimant lacks a material fact, and reasonably needs the help of a solicitor or someone else to obtain it, some further time may reasonably elapse before it should be held that such facts are within the claimant's means of knowledge. Such time will include the time which would reasonably elapse if the claimant, taking all reasonable steps to do so, consults solicitors or other persons, and those solicitors or those other persons undertake the necessary inquiries to ascertain the necessary additional facts to show whether or not there is a worthwhile cause of action.

[37] The evidence in its present form suggests that the solicitors ascertained the material fact from a report given by Dr Todman dated 3 March 1999, although it is not sworn that this was the first time that such information had been obtained. It is difficult however to think that such information could not have been found at an earlier date than this had all reasonable steps been taken to find out that fact. However it is not necessary to pursue that question now.

[38] Nor is it necessary to pursue the question whether a material fact of a decisive character was still not within the means of knowledge of the respondent in March 1996, when his solicitors told him that he might have a good cause of action for damages. It will probably be unnecessary to consider this question any further, as the respondent needs only to show that as at 25 July 1995 there was a material fact of a decisive nature that he did not actually know, and which was not within his means of knowledge.

[39] Counsel for the appellant also submitted that the respondent's knowledge of absence of training by means of safety data sheets and his knowledge of the absence of any regular workplace inspection program (as mentioned in Dr Carroll's report) were sufficient to justify the commencement of an action. It is enough to indicate at this stage that that is not necessarily so. However such information may need to be considered in due course in the light of additional facts if the parties choose to present them.

[40] The evidence on this application, on the arguments now presented on appeal, would justify the necessary extension of time sought by the respondent. However for reasons already mentioned, it is not safe to assume that the evidence would necessarily have been confined to that in the present record if the case now relied on had been exposed. The vice in permitting a point to be raised for the first time in a court of appeal which a litigant had an opportunity of putting during the trial has been recognised in a number of recent High Court decisions including Coulton v Holcombe[29] and Water Board v Moustakas[30]. The circumstances of the present matter are in my view sufficiently exceptional to justify an order which will permit the issue that should have been the true issue between the parties to be litigated. The proceeding in question was of course not a trial. Rather was it a pre-trial proceeding the object of which was to deprive the defendant/appellant of a right to rely on a defence based on a statute of limitations. Such an application is a summary proceeding without pleadings. The issues are usually discerned from the affidavits. The central issue in such applications (including the present one) is whether the respondent satisfied the requirements of s 31(2)(a) of the Limitation of Actions Act, namely of showing "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 submissions below on behalf of the respondent identified the wrong material fact, but on appeal different counsel has identified what would seem to be the correct one. In this situation, provided that the appellant is properly protected in relation to costs it would seem to be in the interests of justice that the parties be given the opportunity to litigate the correct question. It seems preferable that this be done in the present application rather than dismissing it and leaving the respondent to bring a further application which may be obfuscated by additional issues such as abuse of process or extended notions of estoppel based on Port of Melbourne Authority v Anshun Pty Ltd. Although the principle referred to in Water Board v Moustakas is of general application, I do not think that it need always be applied with the same rigour or rigidity in interlocutory or procedural applications as it is in final determinations such as trials. Even after a trial the guiding principle as to whether a new trial should be granted has always been recognised as the search for justice in the particular circumstances of the individual case.

[41] It has been recognised for example in the case of an appeal against a summary judgment that it may be appropriate for an appeal court to exercise its discretion so as to permit the right point to be re-litigated. In Doherty v Murphy[33] the Appeal Division of the Supreme Court of Victoria regarded both the nature of the proceeding and the circumstance of incompetence on the part of the appellant's solicitor as providing good reason for allowing the matter to be re-litigated. In other decisions by intermediate courts of appeal the discretionary powers of the court in question conferred by legislation or rules of court have sometimes been thought relevant to the question of whether a new point may be taken on appeal[34]. It is to be noted that the powers of the Queensland Court of Appeal, both under the Rules of Court that were in force until 30 June 1999 and under the Uniform Civil Procedure Rules, include a broad discretion to receive further evidence, and it is only in matters where the appeal is from a final judgment that special leave is required for such evidence to be received. This in my view to some extent supports the view that the general rule against raising new points on appeal may not necessarily apply with the same rigidity to an application of this kind as it does to a decision reached after a full trial based upon clearly defined issues.

[42] The appeal should be allowed with costs, with execution thereon stayed until determination of the action. The orders made below should be set aside and the application is directed to be heard de novo. The costs of the proceedings below are reserved to the judge who hears the renewed application.

[43] CULLINANE J: I respectfully adopt the outline of the facts and history of the matter contained in the judgment of Thomas JA.

[44] The case advanced on behalf of the respondent before the learned chamber judge appears clearly enough from the material filed on his behalf. It also emerges from the judgment.

[45] The respondent issued a writ against the appellant on 25 July 1996.

[46] The affidavit of the respondent was a relatively brief one. The history of the development of his symptoms and the steps he took to establish the cause of them appear in medical reports which are exhibited to an affidavit of his solicitor, Mr Beirne.

[47] In his affidavit, the respondent said at paragraphs 4 and 5 respectively:**

"4. During the period commencing in or about 1966 and ending in or about August 1995, I was required to use a solvent in the course of my employment known as BP13. BP13 was manufactured by the Second Defendant, BP Australia Ltd and, I am advised by Professor Patrick Carrol and verily believe that it contains a substance N-hexane, which has caused me to suffer a neurological injury known as "Peripheral neuropathy".

5. I was first advised that I suffered from this condition when I consulted Dr Patrick Carrol on the 21st July 1995."

He made an application for workers' compensation following Dr Carroll's advice to him. He said at paragraph 7:

"At the time I made a claim for Workers' Compensation I was not aware of any rights I may have had to claim damages for personal injury at common law."

**[48] He and his wife saw a solicitor in March 1996 about their wills and in the course of discussing matters with the solicitor, the symptoms of which he suffered and the fact that he had made a claim for workers' compensation were raised. He was informed that he had a good cause of action for damages for personal injury.

[49] In paragraph 12 of his affidavit, he deposes:**

"It was not until I discussed this matter with Mr David Hoare, solicitor, in or about early March 1996, that I was aware that I had a cause of action for damages for personal injury arising out of my allegations that I had been exposed to N-hexane solvent in the course of my employment with the First Defendant."

**[50] The other material filed on his behalf were two affidavits of Mr Beirne and an affidavit of Mr Turner, a principal of the applicant's former solicitors.

[51] Mr Bierne's first affidavit exhibited a substantial number of medical reports, documents obtained from WorkCover and from the Division of Workplace Health and Safety.

[52] In a further affidavit sworn on 5 March 1999, there is exhibited a report of Dr Todman of 3 March 1999. I will return to this report a little later. Mr Beirne's affidavit makes no specific reference to any of the medical reports exhibited to his affidavits. The respondent made no reference to Dr Todman's report in his affidavit.

[53] The learned chamber judge, in granting the application, set out the issues in a number of passages in the judgment. At p.4 she said:**

"The issue becomes a fairly narrow one, namely, whether between the time when the plaintiff was advised by Dr Carroll that he suffered from peripheral neuropathy in July 1995 he unduly delayed in seeing his solicitors in March 1996. It is conceded that thereafter any delay lies with those solicitors who had been appropriately instructed. There is no issue of prejudice. WorkCover has extensively investigated the workplace situation at the first defendant's premises. There is a prima facie case made against the first defendant. Dr Carroll reported that the toxic effect of n-hexane was known since 1970."

It should be noted that the reference to Dr Carroll in the last sentence would seem to be an error. This, I think it can be taken, should be a reference to Dr Todman. The learned chamber judge seems to have regarded this as relevant only to the question of section 31(2)(a) of the Limitations of Actions Act 1974.

[54] At page 5 of the judgment, the material fact relied upon was identified by her Honour:

"The material fact of a decisive character which, it is submitted, the applicant did not have, was an understanding of a right to claim common law damages in addition to the statutory right under the workers' compensation legislation."

In reaching a finding favourable to the respondent the learned chamber judge said at pp 5 and 6 of the judgment:

"... he made a claim in respect of those losses promptly to the Workers' Compensation Board in October 1995. Although anxious about his future there did not then appear any prospect of employment loss or future disability which would be productive of financial loss or need which might prompt a reasonable person to seek further advice. His was a quiet, modest life with no exposure to litigation. It was not unreasonable of him to suppose that the Workers' Compensation avenue was the end of the compensation road in those circumstances. Once he was aware of his possible entitlement in March 1996, he acted promptly.

If that is identified as the material fact of a decisive character then the writ has been issued within the time provided for by the legislation. If, however, the material fact as characterised as occurring on 21 July 1995, when the Plaintiff was informed of the link between his symptoms and his workplace, the writ has been issued outside any extended period."

"I conclude that the material fact of a decisive character relating to the Applicant's right of action occurred in 'early' March 1996. The period of limitation for the action should be extended to 25 July 1996."

**[56] It was in March 1996 that the respondent and his wife spoke to their solicitor about their wills and in the course of doing so had the discussion referred to earlier.

[57] The respondent's case then was based upon:**

(a) the advice by Dr Carroll on 21st July 1995 that he suffered from peripheral neuropathy as a result of his exposure to N-Hexane contained in BP13 in the course of his employment,

(b) the receipt of advice in early March 1996 from his solicitor that he could recover damages at common law in respect of his condition and that his entitlements were not limited to the receipt of Workers' Compensation.

**[58] It was the latter of these that the respondent advanced as the material fact of a decisive nature for the purposes of s 31 of the Act.

[59] A material fact for the purposes of Part 3 of the Limitation of Actions Act is limited to the acts or omissions giving rise to a cause of action. It does not extend to knowledge of the legal effect or consequences of those facts. See Do Carmo & Others v. Ford Excavations Proprietary Limited [1984] HCA 17; (1983-1984) 154 CLR 234.

[60] The matter relied upon in (b) above as constituting the material fact of a decisive nature does not meet the test of a material fact for the purposes of the section. Rather it is knowledge of the legal consequences which might flow from (a) which is undeniably a material fact of a decisive nature. The difficulty for the respondent is that the writ of summons was issued on 25 July 1996, that is outside of the one year period for which an extension might be granted under section 31 and the application was not made until February 1999.

[61] It is fair to say that the respondent did not seek to justify the order upon the basis upon which it was made.

[62] It was contended that on the material before the Court, there was a fact essential to the cause of action which was not known to or within the means of knowledge of the respondent prior to early March 1999. The fact relied upon is that the dangerous properties of N-Hexane were known during the whole or a substantial part of the time the respondent was employed by the Appellant and was exposed to this substance. It is said that this material fact emerges from Dr Todman's report of 3 March 1999.

[63] This is said to be the first reference to this subject and it is submitted that the Court should conclude that it was not within the respondent's knowledge or means of knowledge prior to this. I do not think it correct to suggest that this is the first reference to the subject to be in the possession of the respondent's solicitors. The publication at p.110 of the record deals with this subject. It seems to have been forwarded by Dr Carroll to WorkCover by letter of 4.1.95 (the date of the letter of 4.1.95 seems to be an error.) The respondent's solicitor obtained this from WorkCover.

[64] Proof of such a fact would be essential to the respondent's cause of action. On the views of the majority of the members of the High Court in Do Carmo v Ford Excavations Pty Ltd [supra], this is a material fact that an applicant is entitled to rely upon for the purposes of an extension of the limitation period for which the Act provides.

[65] The respondent will be entitled to succeed if he could demonstrate that a material fact of a decisive nature was not within his means of knowledge prior to 25 July 1995, that is, one year prior to the issue of the writ. Nor will it matter that the material fact was not within his means of knowledge until some time after the issue of the writ. See Opacic v Patane [1999] 1 QdR 84.

[66] The difficulty however, it seems to me, that the respondent faces is that this is a quite different case to that advanced before the learned chamber judge. Evidence in support of such a claim would require that the respondent swear that he was not prior to the report of Dr Todman being received, or at any time prior to 25 July 1995, aware that N-Hexane had been known to be a cause of peripheral neuropathy during the relevant time.

[67] It can be accepted that the respondent, if he had not been informed of this by Dr Carroll or was not already aware of it, would have had no occasion to seek information about such a matter until he was told by Dr Carroll on 21 July 1995 that he was suffering peripheral neuropathy as a result of his exposure to N-Hexane. It may also be accepted that it would be highly unlikely that any material fact not known to him or within his means of knowledge at the time he was informed by Dr Carroll of his condition and its cause on 21 July 1995 would have become known to him or would have been within his means of knowledge prior to 25 July 1995.

[68] Dr Carroll and the respondent discussed the link between BP13 which contains N-Hexane and peripheral neuropathy and inadequacies in the work practices at the respondent's place of work with the appellant. It is conceivable that the respondent learned from Dr Carroll that the dangerous nature of N-Hexane had been known for many years and it is not impossible that he knew this prior to that. These are matters on which there was simply no evidence either way. The subject was not addressed.

[69] To allow the respondent now to advance a case based upon a material fact, the knowledge of which is said to have come into his possession only upon receipt of Dr Todman's report, would be to allow the respondent to change course and advance a new case. It is a case which could not have succeeded on the evidence before the learned chamber judge as it stood and the appellant has had no opportunity to meet such a case. In my view the respondent should not now be allowed to advance such a case.

[70] I would allow the appeal, set aside the judgment and order the respondent to pay the costs of the application and of the appeal.**

[1] [1984] HCA 17; (1984) 154 CLR 234.

[7] See Limitation of Actions Act 1974 s 30 (1)(a).

[8] Section 30(1)(b).

[9] Appeal No 267 of 1993, 20 October 1994.

[10] [1984] HCA 17; (1984) 154 CLR 234 at 252.

[13] Ibid at 256. The relevant sections of the NSW legislation were renumbered by the Limitation (Amendment) Act 1990 (NSW) (No 36 of 1990) with s 57 being renumbered as s 57B. The references in this judgment are to the NSW provisions as stated by Dawson J in Do Carmo and to the Qld provisions as they now stand.

[17] Section 57(1)(c) of the NSW Act, s 30(1)(b) of the Qld Act.

[18] Do Carmo [1984] HCA 17; (1984) 154 CLR 234 at 258.

[19] Under s 58(2) of the NSW Act or s 30(1)(c) of the Qld Act.

[20] [1973] AC 518 at 530.

[21] Do Carmo [1984] HCA 17; (1984) 154 CLR 234 at 259.

[22] Section 31(2) of the Limitation of Actions Act 1974.

[23] Do Carmo [1984] HCA 17; (1984) 154 CLR 234 at 259.

[26] [1983] 2 Qd R 419.

[27] [1984] 2 Qd R 276.

[28] [1983] 2 Qd R 419 at 440.

[29] [1986] HCA 33; (1986) 162 CLR 1, 7-9.

[30] (1994) 180 CLR 491, 497-498.

[31] [1981] HCA 45; (1981) 147 CLR 589.

[32] Burston v Melbourne and Metropolitan Tramways Board [1948] HCA 36; (1948) 78 CLR 143, 167.

[33] [1996] VicRp 86; [1996] 2 VR 553.

[34] Wickstead v Browne (1992) 30 NSWLR 1, 11 (per Handley and Cripps JJA, with Kirby P agreeing on this point).