Gillespie v Swift Australia Pty Ltd

[1] The applicant seeks an order under s 31(2) of the Limitation of Actions Act 1974 ("the Act") extending the limitation period for a claim for damages in respect of personal injury sustained on 12 July 2001 in his employment as a slaughterman at the respondent's meatworks.

[2] The application is resisted on just one ground: that the applicant has not shown that a "material fact of a decisive character relating to the right of action" was not within his means of knowledge before 11 November 2007.[1]

[3] The applicant was in his late 30s when he jumped from an elevated stand to the meatworks floor - a distance of one metre. As he reached the floor, his left knee gave way. He felt a lot of pain in the joint. He was taken to see a nurse.[2] She applied ice. Then he saw a general practitioner who, after examining him, said that there was nothing wrong with his knee. Within a brief time, the applicant could walk. But his knee soon became very sore. He visited the nurse again to ask for his knee to be bandaged. A stocking was applied. He did some work during the rest of the day.

[4] When the applicant awoke the next morning, his knee was, he says, "blown up and very sore". He had crutches at home and used them to walk.

[5] Four days after the incident, the applicant consulted a general practitioner, Dr Stephenson. On 25 July, after reviewing x-ray and ultrasound results, Dr Stephenson referred him to Dr Morgan, an orthopaedic surgeon. That day, Dr Morgan provided a certificate for total incapacitation until 17 August and told the applicant that he had sustained an injury to the "medial ligament".

[6] By 20 August 2001, the applicant was still experiencing pain in the knee and using a crutch to get around. His knee ached at night. It would hurt if he rolled over in bed. He could not return to work. That would have been dangerous: walking around the meatworks with a crutch involved a risk that he might slip.

[7] Dr Morgan's report of 21 August 2001 records that the applicant had denied "any prior injury which may have been contributory". Examination revealed instability in the knee, with anterior cruciate ligament insufficiency. There were also indications of meniscal trauma. Dr Morgan concluded:[3]

"Mr Gillespie appears to have sustained significant injury to his left knee, involving his anterior cruciate ligament, and possibly his medial meniscus. Arthroscopic surgery has been proposed to manage his presenting complaint, which is pain. This however, would leave him with residual instability in the knee. Reconstructive surgery has also been discussed with Mr Gillespie, indicating the risks and benefits involved with such a procedure. Mr Gillespie is considering his position with respect to proceeding to reconstructive surgery."

[8] The respondent is a workers' compensation self-insurer. On 19 September 2001, its claims assessor informed the applicant that his claim for compensation was accepted on the basis that the injury had aggravated a pre-existing condition. The letter also said that the accepted liability was for "internal derangement" of the knee. The only pathology accepted as being work-related was a "meniscal tear". No liability was accepted for what the letter described as "the original condition" - a reference, it seems, to the damaged anterior cruciate ligament.

[9] On 28 September, the day he performed the arthroscopic surgery, Dr Morgan reported to the respondent's workers' compensation department.[4] His report records that the operation, which involved a partial medial menisectomy and chondroplasty, revealed a complete rupture of the anterior cruciate ligament. The injury was not recent. Tears of the medial meniscus and lateral meniscus required resection. There was also "significant osteochondral defect on lateral femoral condyle, requiring chondroplasty (Grade 3)."

[10] Dr Morgan saw the applicant on 9 October. He then "appeared to be progressing quite well": see Dr Morgan's report dated 7 December 2001, which records that he had explained to the applicant his prognosis for the short and intermediate terms. Presumably, what was said accords with what Dr Morgan reported:

"...Mr Gillespie has longstanding anterior cruciate ligament insufficiency. The work related injury is probably the medial meniscal tear alluded to in my report. Under normal circumstances, his condition should have stabilised some six weeks after undertaking that surgical procedure.

In the long term, it is anticipated that Mr Gillespie will develop post-traumatic osteoarthrosis in his knee. He would be well advised to undertake a quadriceps rehabilitation program. He may find some benefit in using a knee brace which is more of a reminder of the type of injury he has. Anti-inflammatory medication may be required on an episodic basis."

[11] The report[5] does not mention that future employment prospects might be adversely affected.

[12] About five weeks later, Dr Morgan certified that the applicant was fit to return to pre-injury duties and that "no further treatment" was "required".

[13] The applicant resumed pre-accident duties on 31 October 2001. By this time, knee symptoms were "gone" and the joint felt as strong as before the mid-July incident. The applicant thought that he no longer had a disability in the knee. He had received workers' compensation benefits while away from work, including payment of medical expenses. So he had not been out of pocket. He says that he "did not seek any legal advice at that time because of those matters".

[15] On 27 December 2001, the applicant reported to the first aid station nurse at work complaining of knee pain.

[16] After that episode, the knee was pain-free until about a year after the operation when symptoms returned - initially, as an occasional sharp pain. He did not report these experiences, hoping that they were unrelated to his injury and would resolve permanently. Periodically, however, pain returned; and in different regions of the knee. Its intensity also varied. Onset of discomfort was not associated with any particular task.

[17] The applicant next saw the nurse at work about his knee on 23 April 2003. Between then and 5 June 2007, he attended the nurse's station about 40 times to complain of knee pain. Typically, the nurse gave him a non-steroidal, anti-inflammatory tablet before he started his morning shift. At least twice in about six years, the nurse strapped the knee.

[18] The first aid records note these attendances involving complaints of knee pain in 2003: 3 and 24 April; 1 and 12 May; 22 July; 6, 14, 20, 21, 26, 27 and 28 August; 3, 4, 8, 9, 15, 16, 17, 22, and 23 September; and 8, 9 and 15 October. In 2004, there were a total of five attendances on the nurse: four in mid-February; and one on 13 May. 2005 saw another five: four attendances in February; one in April. There were no attendances in 2006. In 2007, the applicant saw the nurse twice in March, once in early April and once in early June.

[19] The applicant also experienced knee pain at times when he did not report it to the first aid station. But, until early 2008, his knee pain had always subsided after a short while.

[20] From his return to work in late October 2001 until January 2008, the applicant did not miss a day's work because of his knee. And in all that time, he was not assigned lighter duties. However, a significant change became apparent in January 2008.

[21] For the first two weeks back at work after the 2007 Christmas break, his knee felt fine, and he was not experiencing any trouble with it. On 30 January 2008, however, he went for treatment at the first aid station at about 5.00 am to tell the nurse that his knee was painful. She rubbed and strapped it. He continued working that day and the next. He hoped that the pain would soon resolve itself, as invariably it had for more than six years. Unhappily, things were different this time.

[22] During three rostered days off at the beginning of February, the knee started to swell. Soon the applicant could not walk. On 6 February, he consulted his general practitioner, Dr Smit, complaining of severe pain in his still swollen knee. He was given anti-inflammatories and the knee was strapped. Dr Smit certified for an incapacity until 19 February and referred the applicant to Dr Wilson, an orthopaedic surgeon. Dr Wilson thought that there were floating objects in the knee and that surgery was needed.

[23] The applicant again saw Dr Smit on 19 February and was given a work incapacity certificate operative until 17 March.

[24] On 7 May, the applicant underwent arthroscopy of his left knee. Later, Dr Wilson told him that the lose bodies could not be found and that he had performed a further partial medial and lateral menisectomy.

[25] The applicant first consulted a solicitor about making a damages claim last

[26] The material fact of a decisive nature relating to the right of action said not to have been within the applicant's means of the knowledge before early 2008 is the "nature and extent" of the injury indicated at that time by the sudden onset of debilitating, constant pain and related disability so serious as to require further surgery.

[27] On the respondent's case, however, years before November 2007, the applicant had the "means of knowledge" of such a substantial risk to his future health and income as would have led a reasonable person, who had taken appropriate advice on facts known much earlier, to have regarded those facts as then revealing a right of action with prospects of recovering an award of damages sufficient to justify litigation.

[28] The respondent contends that a reasonable person in the applicant's situation would have consulted a medical practitioner about his knee well before November 2007. Had he done so, presumably he would have discovered the "nature and extent" of the injury, including a potential for economic loss, revealed in 2008 by the investigations Dr Smit arranged and the surgery Dr Wilson performed. And at least if the knee disability is attributable to the incident in July 2001,[6] the information gathered in 2008 concerning the extent of the injury - including its likely impact on the earning capacity of a man not 40 years old when injured - suggests a damages claim worth pursuing.[7]

"A fact is not within the means of knowledge of a person at a particular time if, but only if -

(1) the person does not know the fact at that time; and

(2) 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."

[30] The applicant's solicitor, Mr Taylor, has had considerable experience in personal injuries litigation. If the applicant had consulted him in respect of a damages claim between when he recommenced work after the September 2001 operation until towards the end of 2007, he would have advised the applicant not to litigate on the basis that the prospects of an award of damages sufficient to justify bringing a claim were slight.

[31] Mr Taylor's reasons for that pessimistic assessment are as follows. Before mid-November 2007, the injury would have appeared to be relatively minor. There would have been at most a small claim for past economic loss because workers' compensation paid would have to be refunded from any damages. As the applicant had not taken time off work after October 2001, his chances of obtaining any significant compensation for diminution of future earning capacity would also be slight. The special damages had been paid by the respondent as a workers' compensation self-insurer. To prepare the Notice of Claim required under the WorkCover Queensland Act 1996, a medical report from an orthopaedic surgeon would be needed, costing about $2,000. A private investigator would be needed to find witnesses: that could cost about $2,000, depending on the extent of inquiries. Counsel's advice on liability would have been necessary: at a cost of about $2,000. Solicitor's professional costs were estimated at $10,000. If the injury was not one where the level of disability exceeded 20 per cent, no costs would be payable by the respondent to the date of the compulsory conference. Even if the injury was "a certificate injury", the "statutory costs" recoverable would not exceed $4,000.

[32] But Mr Taylor does not say whether, if the applicant had consulted him after more than, say, 20 or so of the many attendances at the first aid station, he would have advised him not to incur the small cost of consulting a medical practitioner.

[33] The applicant, who does attribute the knee symptoms to the incident at work in July 2001, does not say why[8] he did not seek out a medical practitioner between his return to work in October 2001 and the onset of debilitating symptoms in 2008. There is no suggestion that he was discouraged by the nurse(s) at the first aid station from doing so. Nor does he say that he was given false hope by Dr Morgan, who told him[9] in 2001 that the long term prognosis was for post-traumatic osteoarthrosis. And he does not claim that he could not afford the expense that such a consultation and the investigations Dr Smit arranged would have entailed.

[34] On the other hand, Dr Morgan had not told the applicant that his future earning capacity might be at risk. Until 2008, episodic knee pain was always promptly resolved by non-prescription, anti-inflammatory tablets, as Dr Morgan had predicted. There is no suggestion that any of the respondent's staff - the treating nurse(s) or the superiors to whom the applicant routinely reported his visits to the first aid station - suggested that he might see a medical practitioner. After October 2001, he did not seek a workers' compensation benefit until 2008. And for more than six years he went about his work as before the July 2001 incident, putting up with occasional knee pain that promptly resolved, and which was never irritating enough to require lighter duties or to cause the loss of so much as a day's work.

[35] The applicant's omission to consult a medical practitioner until after November 2007 was not an unreasonable response[10] 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.

[37] I will hear the parties with respect to the form of order.

[1] A notice of claim under s 304 of the WorkCover Queensland Act 1996 became compliant on 11 November 2008, and it is not suggested that such means of knowledge existed within two years of the injury.

[2] Presumably, at the meatworks first aid station.

[3] This was sent to the respondent's workers' compensation claims assessor. But there is no suggestion that the applicant did not read it at the time.

[4] Presumably, the respondent saw the report at about that time.

[5] Again, it is not suggested for the applicant that he might not have read this report in early December 2001 or that he did not understand it.

[6] Not to a pre-existing injury to the anterior cruciate ligament which is not shown to have been other than temporarily aggravated by the accident.

[7] It is not in contest that the prospects of success on liability are good.

[8] Indeed, he does not say in terms that he did not do so. But the respondent did not suggest that the applicant had seen a medical practitioner between the end of 2001 and early February 2008.

[9] Orally and in writing, see para [10].

[10] Cf Healy v Femdale Pty Ltd, CA No 37 of 1992, 9 June 1993; State of Queensland v Stephenson [2006] HCA 20; (2006) 226 CLR 197, 206-207. See also Pizer v Ansett Australia Ltd [1998] QCA 298, at [20].