F J WALKER LIMITED v WEBBER

For the reasons additionally given by Meagher JA, I do not believe that the respondent knew of the "extent" of his injury in the time when he first was injured and began to suffer intermittent pain. As I said in Ditchburn v Seltsam Ltd, Court of Appeal, unreported, 19 September 1989; some meaning must be given to the word "extent" in the Act. It cannot be wished away. Nor do I believe that a reasonable man in the respondent's position would have known the "extent" of his injury at that time.

Finally for the reasons given by Meagher JA, I do not consider that a reasonable man, knowing what the respondent knew, would earlier have instituted the common law proceedings which he was eventually prompted to launch within three months of discovering that a spinal fusion would be required. Then, at last, he knew the "extent" of his personal injury that thereafter he acted with proper speed.

Like Hope AJA, and for the same reasons, I do not consider that the distinction between "primary" and "secondary" facts referred to by Wilson J and Deane J in Do Carmo v Ford Excavation Pty Limited (1983-4) 154 CLR 234, 248, 252 is binding on this Court. The legislation is already deeply obscure. Unless bound to do so I would not, for my own part, add to the enveloping gloom a further intellectual refinement unexpressed in the tortured language of Parliament, arbitrary in character and difficult in the extreme to apply.

Meagher JA This is another of the long procession of cases involving an application under s57-s58 of the Limitation Act 1969. Those sections were introduced in New South Wales as a result of the recommendation of the Law Reform Commission, and re-enact, in substantially unaltered form, the provisions of similar United Kingdom legislation, also introduced into that country as a result of the recommendation of a Law Reform Commission. Judges in the United Kingdom and in Australia have continued to protest that they can neither understand the legislation nor apply it in any sensible consistent manner. Their protests, needless to say, have gone unheeded. It is a vain hope that Parliament

will take as much notice of Her Majesty's judges as it does of Law Reform Commissions. It is a melancholy fact that it will not.

The facts in the present case are simple enough. The applicant below, a worker called Mr Webber, who is the respondent in the present appeal, a fitter and turner by trade, was aged 50 in August 1980 and was then employed by the present appellant. In that month he suffered an injury at work owing to the negligence of his fellow employees for which his then employer, the present appellant, was vicariously liable. So such appears uncontested, at least at a prima facie level. He saw his doctor and took four or five days off work, being "treated" (if that is the right word) with bed rest and analgesics. He then resumed work for a month, when he went off work again and spent three weeks in Byron District Hospital, where he undertook traction and had x-rays taken. Once again he resumed work, and in fact worked continuously from October 1980 to October 1983, when the appellant's business closed down. During this time the pain in his right leg persisted and he tried not to lift heavy weights; one incident in December 1981 aggravated his injury; and a number of times he had spasms of acute pain which lasted momentarily and then subsided. During this period, in February 1982, he saw a specialist to whom he was referred and who diagnosed a disc lesion. The matter, however, did not assume great importance in his mind. Understandably so, as the specialist tendered him the astonishing advice that he would be cured if he lost a little weight and had a swim.

After the appellant's business closed down, he sought and obtained employment with a new employer, for whom he worked from November 1983 until April 1987. In the period October - December 1986 he made the unwelcome discovery that surgery was probably required to fuse his spine and that he was unfit for work, probably permanently so. In December 1986 he therefore filed a Statement of Claim. That was obviously out of time. Hence the application to extend time under s58 of the Limitation Act, which was refused by Master Monaghan but allowed on appeal by Carruthers J, from whose decision the present appeal is brought.

Relevantly, s58(2) provides that "where it appears to the court that......any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action'. In the present case that involves an enquiry whether Mr Webber had the relevant knowledge before August 1985. By s57(1)(b) "material facts" are defined to include "(iv) the nature and extent of the personal injury so caused". Did, therefore, Mr Webber know before August 1985 the "nature and extent" of his injury? Yes, submitted Mr McIntyre for the appellant employer, because in February 1982 he discovered he had a disc lesion; no, submitted Mr Coombs QC on behalf of the respondent employee, because he knew only its nature but not its extent. This involves an examination of the meaning of the expression "the nature and extent of the injury" as used in the statute, a question curiously neglected in the considerable case law which has accumulated on the construction of the statute. It is not an easy question, particularly in cases involving the onset of a progressive disease.

In my opinion, whilst eschewing any attempt to give a definitive answer to the question, the following principles are applicable:

(1) One can know "the nature and extent" of one's injury even if one is ignorant of the final form which it will take. Few plaintiffs ever know this, even at the time of trial, and it would be difficult to attribute to Parliament an intention

that potential plaintiffs may completely disregard limitation periods merely because they are unable to predict their final fate. As Kirby P said in Ditchburn v Seltsam Ltd (Court of Appeal, unreported, 19 September 1989): "Obviously, it is not necessary that this "nature and extent" should be finally, conclusively and authoritatively determined before 'facts' become 'material facts'. To adopt that approach would be unrealistic, given the provisional nature of many injuries at the time when litigation is ordinarily commenced".

(2) In general, not only need the applicant not know his final state, he need not know from what condition he is suffering. If he knows "the various signs and symptoms" of his condition, and a reasonable man in his position would know of this potential, that is sufficient. See Brunton v D O'Bryan and Co Pty Limited (Court of Appeal, unreported, 4 August 1988 per McHugh JA, Dousi v Colgate Palmolive Pty Limited (No 2) (Court of Appeal, unreported, 12 May 1989) and Moriarty v Sunbeam Corporation Limited (1988) Australian Torts Reports 80-170.

(3) But, by way of exception to the previous proposition, if an applicant knows of his "signs and symptoms" but a reasonable man in his position would consider them as signifying as trivial a condition which in fact was serious, he cannot reasonably be held to know the "extent" of his injury.

In the present case, Mr Webber in February 1982 knew his "signs and symptoms"; he knew he had a dislocation, and he knew it caused intermittent, excruciating but temporary pain; but he did not know it would or could lead to a surgical fusion or unfitness to work; nor would a reasonable man in his position have known this, in view of the comparatively dismissive advice he was tendered. I am, therefore of the opinion that, in the relevant sense, he did not "know" of the "extent" of his injury in the relevant period.

The next question is whether the "material facts" were "of a decisive character": s57(1)(c). They only fit this description if "a reasonable man, knowing those facts and having taken....appropriate advice on those facts, could regard those facts as showing....sufficient [cause] to justify the bringing of a cause of action". It was on this issue that the respondent won before Carruthers J, and in my view his Honour was correct. The matter may be tested by considering what a reasonable man in Mr Webber's situation would do once he received the degree of enlightenment which Mr Webber received in February 1982. At that time he knew he had suffered an injury; he knew it caused pain; he must be taken to know that his employer was liable for the consequences; he did not know, and could not reasonably be expected to know, his prognosis; he knew of his workers' compensation entitlement and had received it; he presumably knew he was entitled to continue to receive it; he knew that he had lost minimal income and he had no reason to believe that he would lose much (if any) income in the future; he must have realised that he had some right to general damages, but hardly to a handsome amount; he must be taken to have known that if he sued at common law his workers' compensation rights would have been jeopardised; and he must have thought, reasonably but erroneously, that his injury was a little consequence. In these circumstances, how could he reasonably have been expected to launch a common law action? Or how could a reasonable man in his position have been expected to do so?

For those reasons, I am of the view that the appeal should be dismissed with costs.

Hope AJA I agree with the orders proposed by Meagher JA and, subject to a qualification, with his reasons.

Insofar as his Honour, in the second of the three principles which he specifies as applicable to the question whether an applicant under s58 had within his means of knowledge the material facts of a decisive character relating to the cause of action, is intending to apply the distinction between primary and secondary facts discussed and adopted by Wilson J and Deane J in their judgments in Do Carmo v Ford Excavations Ptv Limited (1983-1984) 154 CLR 234 at 248 and 252 respectively, I would respectfully express the view that no such general principle is to be applied. In Do Carmo Dawson J at 258 rejected this dichotomy and pointed out that it was not a distinction drawn by the legislation. Brennan J agreed with him. The fifth Judge, Murphy J, expressed no opinion on this question. There is thus an even division of opinion in the only High Court decision dealing with the matter. Meagher JA refers to Dousi v Colgate Palmolive Pty Limited (No 2) (Court of Appeal; unreported; 12 May 1989 and Brunton v D O'Bryan and Co Pty Limited (Court of Appeal; unreported; 4 August 1988). In the first of these decisions he supported the distinction between primary and secondary facts as being applicable in these cases, but the other members of the Court did not express support for it. Likewise in the second case McHugh JA alone supported the proposition. In my opinion it may be that in some cases such a distinction is applicable to the facts, but it is not and should not be adopted as a principle of general application.

However I do not think that this conclusion affects the decision in the present case. Without recourse to it I would arrive at the same conclusion as Meagher JA has reached, and I accordingly agree with the orders which he proposes.