Gillespie v Swift Australia P/L

[1] McMURDO P: The appeal should be dismissed with costs for the reasons given by Holmes JA.

[2] HOLMES JA: The appellant, Swift Australia Pty Limited, operated a meatworks in which it employed the respondent, Mr Gillespie, and at which, in the course of his employment, he suffered a knee injury on 12 July 2001. Swift appeals an order extending the limitation period for Mr Gillespie's action for damages for negligence in respect of the injury. It says that the learned judge at first instance erred in finding that a "material fact of a decisive character" (the nature and extent of his knee injury) was not within Mr Gillespie's means of knowledge at any time before 11 November 2007.

The provisions of the Limitation of Actions Act 1974 (Qld)

[3] Section 31(2)(a) of the Limitation of Actions Act allows the court to extend the limitation period for an action where

"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."

As to what gives a material fact a "decisive character", s 30(1)(b) provides, inter alia:

"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 ..."

As to when a fact lies beyond a person's "means of knowledge", s 30(1)(c) says that:

"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."

[4] Mr Gillespie described his knee injury in an affidavit read at first instance. He said that he was working on the "kill floor" of the meatworks on 12 July 2001, on a stand about one metre above the main floor. He jumped down from the stand in order to take a toilet break. As he did so, his left knee gave way and he fell onto his buttocks. He had to be helped to his feet. He was taken to a nurse, who put ice on his knee, and he saw the company doctor, who told him that there was nothing wrong with the knee. Mr Gillespie continued with work in a different area of the abattoir for the rest of the day. On the following day, his left knee was swollen and sore. He used a set of crutches to walk.

[5] Two weeks later, on a referral from his general practitioner, Mr Gillespie saw an orthopaedic surgeon, Dr Morgan, who told him he had injured the medial ligament of the knee. Dr Morgan gave him a medical certificate confirming his incapacity for work until 17 August 2001. Mr Gillespie attempted a return to work on 20 August 2001, still using a crutch, but there were no suitable light duties for him. Dr Morgan reported on Mr Gillespie's injury to Swift's workers' compensation department. (Swift was a self-insurer under the WorkCover Queensland Act 1996 (Qld) and its successor, the Workers' Compensation and Rehabilitation Act 2003 (Qld).) In his report, Dr Morgan advised that Mr Gillespie had injured his anterior cruciate ligament, and possibly his medial meniscus. He suggested arthroscopic surgery, although it was likely to leave residual instability in the knee.

[6] On 19 September 2001, the claims assessor for Swift advised Mr Gillespie that his application for workers' compensation on the basis of aggravation of a pre-existing condition had been accepted. A week or so later he was admitted to hospital, where Dr Morgan performed arthroscopic surgery on his left knee. In that surgery, Dr Morgan resected tears to the medial and lateral menisci and performed a chondroplasty on an osteochondral defect on the lateral condyle. He reported a complete rupture of the anterior cruciate ligament. At the end of October 2001, Dr Morgan gave Mr Gillespie a medical certificate which said that he was fit to return to pre-injury duties and that no further treatment was required. Accordingly, Mr Gillespie returned to his normal duties. At that time he was 38 years old. In his affidavit read on the application, he deposed that he had no left knee symptoms at that time and considered there was no remaining disability.

[7] In a report of 7 December 2001, Dr Morgan advised Mr Gillespie was progressing well. He expressed the view that Mr Gillespie had had long-standing anterior cruciate ligament insufficiency. The work-related injury was probably the medial meniscal tear. He expected that Mr Gillespie's condition would stabilise some six weeks after the surgery. This prognosis in the report assumed some importance in the application:

"In the long term, it is anticipated that Mr Gillespie will develop post-traumatic osteoarthrosis in his knee."

Dr Morgan recommended a muscle rehabilitation programme, and suggested that a knee brace and episodic anti-inflammatory medication might be required.

[8] Mr Gillespie deposed that at some time about a year after the surgery he noticed a sharp pain in his left knee. Swift's records show that he reported to the first aid station nurse on 27 December 2001, complaining of knee pain. He next received treatment from the first aid nurse on 23 April 2003; there were 25 attendances over the balance of that year. Generally, he was treated with support strapping, anti-inflammatories or heat rubs. Mr Gillespie was attended to on five occasions in February 2004 and once in May 2004, but not again that year in respect of his knee. He returned to the first aid nurse on four occasions in February 2005 and one occasion in April 2005. After that, he did not re-attend in respect of the knee until March 2007; then, over the succeeding months, he attended another three times. Mr Gillespie said that besides the episodes marked by attendances at the first aid station, there were other occasions on which he had pain, but did nothing about it, and it resolved untreated.

[9] Mr Gillespie remained on normal duties throughout those years, and did not take any time off work in relation to his knee condition. However, on 30 January 2008, some two weeks after his Christmas vacation, he reported again to the nurse with a painful left knee. She rubbed and strapped the knee for him, but the pain did not subside over his next three days off work. By 4 February, his knee was so swollen and sore that he was unable to walk. He saw his general practitioner on 6 February and was given certificates for temporary incapacity until 19 February 2008, as well as a referral to an orthopaedic surgeon, Dr Wilson. The latter gave him an injection into the left knee to reduce the swelling. He considered that Mr Gillespie's symptoms were due to loose bodies and degeneration in the knee. Dr Wilson subsequently performed an arthroscopy in which he excised tears of the menisci but was unable to locate and remove the loose bodies.

[10] On 25 June 2008, Mr Gillespie first consulted a solicitor about his knee injury. An orthopaedic surgeon to whom he was referred for a medico-legal opinion advised to the effect that the incident of 12 July 2001 had caused the osteoarthrosis which was the source of Mr Gillespie's symptoms; that he would benefit from further surgery; and that, because of the progressive osteoarthrosic changes, he ought to be re-trained in employment which did not place any physical demands on his left knee.

[11] The material fact of a decisive character identified at first instance was the nature and extent of Mr Gillespie's knee injury, as manifested by "the sudden onset of debilitating, constant pain and related disability so serious as to require further surgery".[1] The critical date was 11 November 2007, the date on which Mr Gillespie's notice of claim under the WorkCover Queensland Act became compliant. Swift's case was that Mr Gillespie had, well before November 2007, had the means of knowledge of a risk to his future health and income which would have led a reasonable person, with the same knowledge and having taken appropriate advice, to conclude that an action had a reasonable prospect of success and of resulting in an award of damages sufficient to justify bringing it. A reasonable person in Mr Gillespie's position would have consulted a medical practitioner before November 2007, and by doing so would have discovered the "nature and extent" of the injury, including the potential for economic loss.

[12] Mr Gillespie's solicitor, Mr Taylor, swore an affidavit in which he said that he had been admitted as a solicitor for some 40 years and was experienced in personal injuries practice. He said that had he been consulted by the applicant over the period between 28 September 2001 and the end of 2007, he would have advised him not to proceed with an action, because the prospects of obtaining an award for damages justifying it would have been very slight. The injury appeared to be relatively minor. Past economic loss was confined to that resulting from the time Mr Gillespie had had off work for the original surgery with a short period of convalescence. Any award in respect of that period would have had to be deducted from workers' compensation payments. There had been no other time off. The special damages had been met by the employer. The costs of medical reports and legal advice as well of investigating the circumstances of the accident would run at some $16,000, but only a maximum of $4,000 in costs could be recovered under the WorkCover Queensland Act.

[13] The learned judge at first instance observed that Mr Taylor had not commented on whether he would have advised Mr Gillespie to incur the relatively small cost of consulting a medical practitioner, and Mr Gillespie had not himself explained why he did not seek any medical advice over the period between his return to work in October 2001 and the beginning of 2008. On the other hand, over that same period Mr Gillespie's knee pain had always been relieved by the use of non-prescription anti-inflammatory tablets and it did not appear that any of the treating nurses at Swift had suggested that he see a medical practitioner. Dr Morgan had told him in 2001 that the long-term prognosis was for post-traumatic osteoarthrosis, but he had not suggested that his future earning capacity might be at risk. It appeared that Mr Gillespie had gone about his usual work without requiring lighter duties or taking any time off work.

[14] Mr Gillespie's omission to consult a medical practitioner until after November 2007 was, his Honour concluded,

"not an unreasonable response to his predicament: essentially, infrequent, transient pain with no adverse effect upon performance of relatively demanding, physical work, and which was relieved by non-prescription medication".[2]

Accepting, therefore, that the relevant material fact was not within the means of knowledge of Mr Gillespie before November 2007, his Honour granted an extension of time.

[15] Here, Swift contended that the learned primary judge's reasons did not justify an extension of the limitation period. There had been no change to the nature or the extent of Mr Gillespie's injury, and it was not open to his Honour to find that the failure to consult a medical practitioner was not unreasonable in the circumstances. The injury had had an impact on Mr Gillespie's employment immediately after the accident and it had continued to cause him episodic pain at his workplace. Dr Morgan had said that it was anticipated in the long-term that Mr Gillespie would develop post-traumatic osteoarthritis in his knee. The fact that the osteoarthritis actually occurred did not introduce anything new: it did not alter the nature or extent of the injury. Its occurrence, as predicted, could not be a "material fact of a decisive character".

[16] Had Mr Gillespie taken medical advice at any time over the period from the end of 2001 while he was making constant visits to the first aid station, he would have had confirmed what Dr Morgan's report already indicated: that his condition would worsen with the progression of osteoarthritis. In terms of legal advice, he would have been informed of the prospect of compensation for future economic loss, given the likelihood of the condition interfering with his capacity to work. (Mr Taylor's assessment had ignored the implications of the prognosis of osteoarthritis for future economic loss.) Mr Gillespie's lack of knowledge was purely due to the fact that he did not take advice as to the implications of Dr Morgan's findings.

[17] The case was not within the category of cases such as Healy v Femdale Pty Ltd[3] and Byers v Capricorn Coal Management Pty Ltd,[4] in which it was found not unreasonable for a plaintiff to fail to seek elaboration as to her or his prognosis and its likely impact on employability. Instead, the circumstances were similar to those in Kambarbakis v G & L Scaffold Contracting P/L,[5] in which this Court upheld the primary judge's decision that the plaintiff had within his means of knowledge the material fact of a decisive character: in that case, that his neck condition, which had caused him continuing pain in carrying out his occupation as a plasterer, would prevent him from continuing to work. That case was also authority for the proposition that where reasonable steps would have entailed an enquiry, it was the applicant who bore the onus of showing that the material fact would not then have been discoverable.[6] In the present case, reasonable steps required that Mr Gillespie enquire why the pain had recurred; had he made the enquiry, he would have obtained the information given him in 2008.

[18] For Mr Gillespie, it was submitted that the case fell squarely within the Healy and Byers category. In Byers, the respondent worked for three years as a miner with continuing hip pain as a result of a fall. He had been told he had a muscular strain; after the expiration of the limitation period an orthopaedic surgeon told him he should get a different and lighter job. The Full Court held that the primary judge had correctly found the material fact of a decisive character to be the knowledge that the extent of the injury was such as to require a shift to light work with the implication of future financial loss. That newly discovered fact transformed the case into one in which a substantial award of damages was likely. The primary judge had correctly applied the provisions of s 30 of the Limitation of Actions Act.

[19] Counsel for Mr Gillespie also asserted that this Court's observation in Healy v Femdale, made of a female plaintiff who continued to work with discomfort from an arm injury, was entirely apposite to his circumstances:

"It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity."

Mr Gillespie had continued to work, receiving treatment in accordance with Dr Morgan's suggestions. There was nothing to forewarn him of the major deterioration in his condition and symptoms which occurred at the beginning of 2008.

[20] Swift is correct in saying that the onus of showing what Mr Gillespie would have discovered had he taken appropriate advice falls on him, rather than Swift. But the importance of that proposition depends on whether the learned judge was correct in concluding that in Mr Gillespie's position, reasonable steps did not require the taking of further medical advice prior to November 2007. In considering whether reasonable steps necessitated an enquiry, the test of reasonableness is objective, with regard being had "to the background and situation of the applicant": Castlemaine Perkins Limited v McPhee.[7] Or, as Keane JA expressed it in NF v State of Qld,[8]

"Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant."[9]

[21] Mr Gillespie was a meatworker who was managing his job, albeit with some pain which, until early 2008, responded to treatment of the sort recommended by Dr Morgan. He was able to continue working in the same capacity, with episodes where he required the assistance of the first aid nurse, and other long periods without any such attendance; and, significantly, his knee symptoms at no stage caused him any time off work. That may be contrasted with the facts of Kambarbakis in which the applicant had suffered symptoms on a continual basis from the time of the accident, had on many occasions had to take days or part days off work because of his symptoms, and was aware, in consequence, that his capacity to work was reduced. In my view, the passage quoted above from Healy v Femdale was more apt to describe Mr Gillespie's circumstances.

[22] Dr Morgan had predicted osteoarthrosis in the long-term; he had not said anything to indicate whether that would occur during Mr Gillespie's working life or whether it was likely to have any significant impact on his capacity to work. The symptoms which Mr Gillespie developed in February 2008 were a new development, because they did not respond to treatment and did incapacitate him, raising for the first time the prospect of significant future economic loss, where previously he had no reason to suppose that his knee condition would not remain manageable or would render him unable to continue in the work he was doing. The learned primary judge's finding that it was not unreasonable for him in his circumstances not to consult a medical practitioner was open, and, in my respectful view, correct.

[24] APPLEGARTH J: I agree with the reasons of Holmes JA and with the proposed order that the appeal be dismissed with costs.

[1] Anthony Mark Gillespie v Swift Australia Pty Ltd [2009] QSC 10 at [26].

[3] [1993] QCA 210.

[4] [1990] 2 Qd R 306.

[5] [2008] QCA 262.

[7] [1979] Qd R 469 at 473.

[8] [2005] QCA 110.