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[2006] QCA 112
General information, not legal advice.
Court of Appeal (Qld)
2006-04-13
Jerrard JA, Holmes and McMurdo JJSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112
PARTIES: GLENN ALEXANDER PIKRT (plaintiff/respondent) v HAGEMEYER BRANDS AUSTRALIA PTY LTD (ACN 001 375 686) FORMERLY KNOWN AS MAJOR ELECTRICAL APPLIANCES PTY LTD (ACN 001 375 686) (defendant/appellant)
FILE NO/S: Appeal No 6605 of 2005 SC No 6054 of 2004
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 13 April 2006
DELIVERED AT: Brisbane
HEARING DATE: 3 March 2006
JUDGES: Jerrard JA, Holmes and McMurdo JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER: Appeal dismissed with costs
CATCHWORDS: LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF THE PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF DECISIVE CHARACTER – where plaintiff had a personal belief that there was a causal connection between the negligence and the damage but no supporting expert medical opinion that pre-dated the critical date – where expert medical opinion that was capable of proving an essential element of a right of action was not available until after the expiry of the limitation period – whether the supporting expert medical opinion was a “material fact of a decisive character” – whether a reasonable person in such a position at critical date would have had a cause of action with a reasonable prospect of success and of an award of damages sufficient to justify bringing an action – whether material fact was that the plaintiff had sustained a significant physical injury or the expert medical opinion that the significant physical injury was caused by the 1995 incident / LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF THE PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – EVIDENCE TO ESTABLISH RIGHT OF ACTION – whether the evidence relied on to establish the right of action was the respondent’s personal belief that his serious back injury was caused by the incident or the supporting expert medical opinion that post-dated the critical date – where material fact was not within his means of knowledge before the expiry of the limitation period because was medical opinion that was available before the expiry of the limitation period was inconclusive / LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF THE PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – WHETHER REASONABLE STEPS TAKEN TO ASCERTAIN FACTS – where respondent promptly sought medical advice and underwent recommended tests after experiencing substantial symptoms / Limitation of Actions Act 1974 (Qld) s 11, s 30, s 31 / Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, cited / Castlemaine Perkins Limited v McPhee [1979] Qd R 469, cited / Geltch v Wadda Farms Pty Ltd unreported, Jones J, Plaint No 162 of 1998, 29 March 1999, cited / Morris v State of Queensland [2004] QSC 107; S11569 of 2001, 30 April 2004, cited / Re Hammersley-Mather; Hammersley-Mather v Kassim & Anor, unreported, Ambrose J, SC Nos 1275 of 1993 and 1572 of 1993, 17 December 1993, cited / Re Sihvola [1979] Qd R 458, cited / Redmond v J C Hutton Proprietory Ltd [2004] ACTSC 102; SC 442 of 1999, 1 October 2004, cited / Vines v Djordjevitch (1955) 91 CLR 512, cited / Watters v Queensland Rail [2000] QCA 51;CA No 4626 of 1999, 3 March 2000, considered / Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431; [1993] QCA 114; CA No 37 of 1992, 7 June 1993, considered / Wrightson v State of Queensland [2005] QCA 367; CA No 6250 of 2004, 30 September 2005, applied
COUNSEL: D V C McMeekin SC, with W D Campbell, for the appellant / D B Fraser SC, with R W Trotter, for the respondent
SOLICITORS: Bruce Thomas Lawyers for the appellant / Anderssen & Company for the respondent
Findings by the trial judge
“The submissions of Mr Trotter of counsel on behalf of the applicant proceeded on the basis that it was Dr Blue’s report that was a material fact of a decisive character pursuant to paragraphs (iii), (iv), and (v) of s 30(1)(a) of the Act. The material fact of a decisive character that the plaintiff is relying on is more appropriately characterised as within paragraph (iv) of s 30(1)(a) of the Act in terms that the plaintiff sustained a significant injury to his lower back in the incident of 23 May 1995.”
History
The plaintiff began proceedings in the Supreme Court on 9 July 2004 seeking damages from the appellant defendant for personal injury, on the basis of alleged negligence, breach of statutory duty, and breach of contract. Those claims arose out of an injury the plaintiff alleged that he suffered on or about 23 May 1995, when employed by the defendant. Unsurprisingly, the defendant raised the defence that Mr Pikrt’s claim is statute barred by virtue of s 11 of the Limitation of Actions Act 1974 (Qld) (“the Act”), and the plaintiff filed an application on 6 May 2005 seeking leave to proceed, that application being based on s 31 of the Act.
Section 31 relevantly provides that where on an action for damages for personal injury based on alleged negligence, breach of duty, and contract, it appears to a court that a material fact of a decisive character relating to the right of action was not within means of knowledge of the applicant until a (critical) date after the commencement of the year last preceding the expiration of the period of limitation for the action, and where there is evidence to establish the right of action apart from a defence based on the expiry of the period of limitation, the court may order that the period of limitation for the action be extended so that it expires at the end of one year after that (critical) date. It follows that if the plaintiff could show that he had evidence to establish a right of action for his personal injuries apart from a defence founded on the period of limitation – and that was not contested – the court had a discretion to extend the period of limitation so that it expired at the end of one year after 9 July 2003, if it appeared that a relevant material fact of a decisive character relating to the right of action was not within Mr Pikrt’s means of knowledge until after 9 July 2003. The learned judge so found, and ordered that the period of limitation be extended to 9 July 2004.
The appellant’s defence does not allege that the learned judge made any errors of law. The appellant does not complain of any error in the discretionary order to extend the limitation period, if the judge was not in error in the inferences or findings of fact, and conclusions therefrom, challenged on appeal. Nor did the appellant say anything about prejudice to it from the nine years which elapsed before proceedings were begun, six years after the ordinary limitation period expired.
Findings challenged on appeal
The findings of fact challenged in the appellant’s written outline were not necessarily the same as those attacked in its grounds of appeal. It is appropriate to proceed on the basis that the findings under attack were refined to those described in the written submission of the appellant’s senior counsel. Those written submissions criticise in various ways the conclusion by the learned judge that Mr Pikrt did not learn until after 9 July 20031 that he had suffered a significant injury to his lower back in an incident which happened on 23 May 1995. The written submission argues that as at December 1996 Mr Pikrt was aware of sufficient facts to have appreciated, with the benefit of appropriate advice, that he had already then a worthwhile action to pursue, based on the May 1995 incident, and should in his own interest have pursued it.2
The evidence established the following matters, apparently undisputed. On 23 May 1995 Mr Pikrt was working as a storeman for the appellant company, and fell off a ramp when carrying a large carpet. He claims to have suffered both an ankle and back injury in that incident. He kept on working, but pain in his lower back worsened and he ceased work at 3:00pm on 6 June 1995, completing that day an application for Workers’ Compensation in respect of the incident on 23 May 1995. A general practitioner he consulted that day noted complaints of pain, mainly on the right side with pins and needles down the right leg and groin region. An X-ray of his lumbar sacral spine was reported as normal, and the doctor gave him a medical certificate describing total incapacity for work until 9 June 1995. Mr Pikrt had physiotherapy on 7, 8, and 9 June 1995, and returned to work on 9 June in accordance with the certification of the doctor, which included that Mr Pikrt should not undertake any heavy lifting or prolonged bending. Mr Pikrt had further physiotherapy on 19 and 21 June 1995 and on 3, 7, and 17 July 1995, and obtained medical certificates confirming the restriction of no heavy lifting or prolonged bending until 1 August 1995. He was then certified by that doctor medically fit to return to work, without any restrictions, on and from that date.
A statement Mr Pikrt gave for the purposes of his claim for Workers’ Compensation on 24 August 1995 described him as being on full duties at that time, with his condition having settled. An orthopaedic surgeon to whom Mr Pikrt’s general practitioner had referred him prepared a report, dated 1 August 1995, in which that surgeon diagnosed an acute back strain, but reported that Mr Pikrt appeared to have made a very good recovery. That orthopaedic surgeon expressed the opinion that Mr Pikrt would not be left with any permanent disabilities regarding his injury, although he may have twinges following heavy lifting for about another four weeks.
“With shoulder and back pain surfacing on a regular basis I feel unable to continue my employment as storeman to my or (your) satisfaction, and it is with regret that this notice is given.”3
Mr Pikrt’s oral evidence before the learned trial judge was that the main reason he resigned in December 1995 was that the defendant company had been taken over by another company and was relocating to Brisbane. Mr Pikrt did not think he would be able to cope with sitting in a bus for a total of three hours each day. His evidence was:
“I just don’t think I would’ve been able to physically cope with it.”4
“the fact that the plaintiff went onto unemployment benefits when he ceased work on 15 December 1995 was consistent with the plaintiff being able to continue to work, but electing not to continue to work for the defendant, because of the imminent relocation of the defendant’s business and the plaintiff’s anticipation of the effect of daily travel in excess of 3 hours on his intermittent back pain;”
The Plaintiff’s evidence in cross-examination was that short bus trips were painful, and accordingly the defendant was entitled to a finding that the plaintiff’s anticipation of the effect of pain from daily travel in excess of three hours was a reasonable one. It would also follow that the plaintiff’s expressed reasons in his notice dated 4 December 1995 were accurate, because of the expectation of pain and discomfort from at least 18 hours of bus travel per week. However that evidence did not show that he was unable to continue in employment of that nature, and accepting the reasons for resignation as accurate does not contradict the express finding of the learned judge in [23](d), or any other of the judge’s findings.
Mr Pikrt was then unemployed for a period of about 12 months, and received unemployment benefits, not Workers’ Compensation. He said in evidence that his back felt fine again within “…you know, a matter of a short time”5 after resigning from his job with the defendant, and he then looked for other work. The work he sought was as a foreman, the same as the employment he had with the defendant, and he found work of that sort with another company, by whom he was employed for the next five and a half to six years. He left that work only when that company closed down in August 2002.
The appellant’s contention to the learned trial judge, and this Court, was that as at December 1996 Mr Pikrt had a worthwhile action to pursue against the defendant, because Mr Pikrt’s evidence was that he attributed his ongoing back problems to the incident of 23 May 1995, and it had cost him 12 months out of employment for which he had not been compensated. I respectfully agree with the learned trial judge that that argument overlooked that he actually lost only three days work in June 1995 from the injury, he had been told by an orthopaedic specialist that he would make a full recovery and had no medical opinion contradicting that, and the intermittent back pain that he described did not prevent him continuing to work for the defendant until 15 December 1995. The learned judge found that any income Mr Pikrt lost after ceasing work on 15 December 1995 was as a result of the time it took him to find a new job, and not because he was disabled from working. That last finding is specifically attacked by the appellant, and described as “plainly wrong”, but I consider it was one that was open on the evidence, particularly the plaintiff’s, and I see no proper basis for a different conclusion. He swore he was looking for other work. The appellant’s criticism in its written submission is that the learned judge appeared to assume that that 12 month period was not relevant, but the learned judge did not treat the period as irrelevant. The judge accepted a different explanation for it, and the judge accepted that Mr Pikrt had elected not to continue to work because of the imminent relocation of the business and because of Mr Pikrt’s reasonable anticipation of the effect of in excess of three hours daily travel on a bus.
One can test the appellant’s submission that as at December 1996 the plaintiff then had a sufficiently worthwhile cause of action such that he should have pursued it, and would have been advised to, by evaluating the chances of success. No medical evidence then available would have supported a claim that Mr Pikrt was incapacitated for either light or ordinary duties with his then employer as at 15 December 1995. His own evidence would have been that his main reason for ceasing work was because the company relocated to Brisbane. He did not then have a worthwhile action to pursue, as demonstrated by his then obtaining employment in which he did much the same work for the next six years.
The facts
On 23 May 1995, the respondent was a 38 year old storeman working for the appellant. He says he was required to carry a large carpet up a ramp to the back of a truck. He was carrying one end of the carpet and the truck driver the other end when, he says, the truck driver suddenly moved, causing the respondent to fall off the ramp. He claims to have suffered injuries, and in particular a back injury, in that incident.
He continued to work until he went home early on 6 June 1995, complaining of lower back pain. He saw a general practitioner who had an x-ray taken. The x-ray reported the back as normal, and the doctor gave him a certificate that he would be unable to work for a few days, and that initially he should not do heavy work on his return. After several sessions of physiotherapy, he returned to work on 1 August 1995, by which time the general practitioner had certified him as able to work without any restrictions. At the same time an orthopaedic surgeon reported that the respondent had suffered an acute back strain, but appeared to have made a very good recovery and that he would not be left with any permanent disability.
He worked without apparent difficulty until December 1995 when he resigned from this employment. In a letter to the appellant he gave this reason for his resignation:
“With shoulder and back pain surfacing on a regular basis, I feel unable to continue my employment as storeman to my or Blanco’s satisfaction, and it is with regret that this notice is given.”
But on the basis of oral evidence given by the respondent, her Honour found that there was a different explanation for his resignation. In December 1995 the appellant’s business had been acquired by another company which was relocating it from the Gold Coast to Brisbane. That would have required the respondent to spend about three hours a day sitting in a bus travelling to and from work. Her Honour’s finding, which is not challenged by the appellant, was “that it was the plaintiff’s anticipation of the discomfort to his back from prolonged sitting in a bus rather than any actual suffering that was the basis of his decision to resign at about the time the defendant’s business was relocating”. So he was able to do the work which he had been doing before and after the accident, but he was apprehensive about the long hours of bus travel.
He was then unemployed for about 12 months until he obtained another job working as a storeman. He worked in that position until that employer closed down its business in August 2002. He has not worked since. During that employment, he suffered intermittent lower back ache. But he did not have any time off work as a result, and nor did he see a doctor or take any medication for it. He had but one session of physiotherapy, which was in August 1998.
In about January or February 2003, the respondent noticed occasional pain in his feet, calves, thighs, groin and hip and he developed lower back pain aggravated by walking or standing. According to his evidence, this coincided with a loss of fitness from his being unemployed and these symptoms increased in frequency and severity over early 2003. He sought medical advice in April 2003. There was an x-ray taken of his lumbar spine and hip on 11 April, which indicated no bony or joint abnormality but showed some minimal narrowing of the L5/S1 disc space. On 14 April another general practitioner referred him for a CT scan of the lumbo sacral spine. It was performed on 23 April and showed a disc protrusion at L5/S1 which was reported as “close to and possibly in contact with the emerging right S1 nerve root”. On 24 April, he again saw a general practitioner whose notes of the consultation recorded that “(the respondent) still has some pelvis and leg pain not sure why”, and the respondent’s evidence was that this general practitioner had told him that. On 30 April 2003 the respondent went to another general practitioner who referred him to the Neurosurgery Outpatients Department at the Gold Coast Hospital, but where he was told a specialist was not available until January 2004.
The respondent commenced this Supreme Court proceeding by a claim filed on 9 July 2004, for damages for personal injury caused by the incident of May 1995. To extend the limitation period until the date of filing of the claim, the primary judge had to be persuaded that there was material fact of a decisive character which was not within the respondent’s means of knowledge until the period of 12 months preceding that date. Accordingly the critical date for this case is 9 July 2003. What happened after the critical date?
In September 2003 the respondent consulted solicitors. In his affidavit, the respondent said that he was by that time “confident (that) there was quite a lot wrong with my back” and that he “had more than a suspicion that it was related to the accident of 1995”. The solicitors arranged for the respondent to see an orthopaedic surgeon, Dr Blue. Dr Blue examined him on 1 March 2004 and reported on 28 April 2004. By then he had a report from an MRI scan which had been performed on 16 March 2004, noting a L5/S1 disc degeneration with a disc protrusion abutting the S1 nerve root. Dr Blue’s opinion was as follows:
“His symptoms are consistent with the clinical history and examination and I would believe that the incident of May 23, 1995 when he injured his back when he was lifting the heavy roll of carpet into the back of his truck and fell from ramp is responsible for his continuing symptoms by way of production of the CAT scan and MRI demonstrated L5/S1 disc protrusion. His symptom complex and clinical examination coupled with the radiological investigations does qualify him as a DRE category 3 with a subsequently whole person impairment utilising the Guides to the Evaluation of Permanent Impairment AMA, 5th edition.
In answer to your list of questions.
1.I would believe that his present back and left leg pain relates to the radiologically confirmed L5/S1 disc lesion resulting from the work injury sustained on May 23, 1995. This will have significant effects by way of limitation of available future work whereby he is permanently unfit for any work involving repetitive or heavy lifting. It will also interfere with his private life and social activities such as his inability to play social sports such as golf.
2.His symptoms are consistent the injury sustained and his clinical presentation and examination.
3.He complains of continuing low back pain radiating into his left groin and calf with aggravation of same with even simple walking.
4.Estimation of his permanent impairment utilising the Guides to the Evaluation of Permanent Impairment AMA, 5th edition produces a DRE category 3 with 13 percent whole person impairment.”
“Dr Blue is the first doctor who has been able to explain my pain and also link my condition to the accident of 1995.”
But before then, as the respondent readily agreed in cross examination before the primary judge, the respondent had believed that his back pain had been caused by the accident. That evidence was as follows:
“What did he tell you that was new about that? I mean, you knew that? - - I believed it myself, yes.
Did he confirm it to you, did he? Did you have some doubts about it? - - No, no, he confirmed it with me. Like I said, he was the first doctor that I’d seen who gave me, well, an explanation, yes.
Well, you didn’t need an explanation did you? You’re the one who, throughout this period, has told doctors, physios, that your problems stem from that ’95 accident, don’t you? - - I believed it to be, yes.
Well, Dr Blue, he can’t be sure that they do, can he? That’s an opinion? Well, Dr Blue has done nothing more than say, in his opinion, they’re probably related, hasn’t he? - - Yes.
And that’s what you always thought anyway? - - In my own mind, yes.”
The decision of the primary judge
The appellant conceded that there was evidence to establish the right of action alleged by the respondent (apart from the limitation defence) and made no submission that the application should be dismissed for some discretionary consideration. The question for the primary judge, as it is in this Court, is whether the respondent had proved that a material fact of a decisive character relating to his right of action was not within his means of knowledge until after the critical date: s 31(2)(a).
The terms “material facts relating to a right of action”, “decisive character” and “means of knowledge” are defined in s 30 as follows:
“30 Interpretation
(1)For the purposes of this section and sections 31, 32, 33 and 34—
(a)the material facts relating to a right of action include the following—
(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
(ii)the identity of the person against whom the right of action lies;
(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
(iv)the nature and extent of the personal injury so caused;
(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
(b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—
(i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
(ii)that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action;
(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.
(2)In this section –
appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”
“[28]The plaintiff acted with appropriate speed in seeking medical advice after the worsening of his symptoms which he had noticed in January or February 2003. Although the plaintiff at that time believed that his symptoms were related to the incident in May 1995, that belief without obtaining appropriate medical advice to support it did not mean that the relevant material fact of a decisive character relating to his right of action was within his means of knowledge or within the means of knowledge of a reasonable person knowing what the plaintiff knew at that time. The dilemma faced by the plaintiff was emphasised by the advice that the plaintiff obtained from Dr Cassimatis after the CT scan had been performed and from Dr Withers after the MRI scan had been performed. When the plaintiff was obtaining advice from the general medical practitioners in April 2003, which was a time that was reasonably connected to the onset of symptoms in January or February 2003, it was reasonable to expect that any specialist medical advice would not be able to be obtained before the critical date.
[29]I am satisfied that the plaintiff has discharged the onus of showing that it was not until the plaintiff was in a position after the critical date to obtain specialist medical advice after the manifestation of the symptoms from which he commenced to suffer in January or February 2003, that a material fact of a decisive character, namely that he had suffered a significant injury to his lower back in the incident of 23 May 1995, was within his means of knowledge or within the means of knowledge of a reasonable person knowing what the plaintiff then knew.”
The appellant’s arguments
Focussing upon para [29] of the judgment, the appellant says that her Honour identified the material fact as being that the respondent “had suffered a significant injury to his lower back in the incident of 23 May 1995”. The appellant says that her Honour should not have found that this fact was known only after the critical date, because the evidence was that it was known by December 1995. It is argued that by that date, the respondent knew that he had an injury which had caused him to give up at least one job.
Secondly, the appellant says that the causal connection between his symptoms and the incident were within the respondent’s means of knowledge, and indeed within his actual knowledge, prior to the critical date. This argument relies upon the respondent’s evidence that he did not need Dr Blue’s opinion to tell him that he had a serious problem with his back which was caused by the incident. Accordingly, it is argued that Dr Blue’s opinion was not a fact of a decisive character.
Alternatively, the appellant argues that if an expert opinion of the extent and cause of the injury was required before a decision to sue, the respondent had not proved that he had taken all reasonable steps to obtain the opinion before the critical date.
What was the material fact?
Much of the argument in this Court was concerned with if and when the respondent knew of the extent of his injury or its cause. Each of those matters, the extent of the injury and its cause, is a material fact relating to his right of action.9 In his mind, the plaintiff had a belief about each of those facts, which he had formed prior to the critical date. By early 2003, he was suffering symptoms of pain, increasing in frequency and severity, which of course is why he sought treatment from several doctors. As already discussed, he believed that his problems had been caused by the accident in 1995.
I would accept that by the critical date he knew that he had a back problem which seriously affected everyday activities such as walking and which affected his ability to earn income, and that this was caused by the accident. In some contexts, the difference between knowledge and belief can be significant. There is a discussion of what constitutes actual knowledge for s 31 in the judgment of Davies JA in Wood v Glaxo Australia Pty Ltd.10 As Davies JA there said,11 where the relevant fact is not an observable fact, then a plaintiff could not know that fact “in an absolute sense”, and for such a fact, knowledge can only involve a certain “degree of satisfaction of the existence of that fact”. Citing from what was said in another statutory context in Vines v Djordjevitch,12 Davies JA said that the fact of the causal connection between negligence and damage in that case (Wood) “was within the means of knowledge of the (plaintiff) only when the steady preponderance of opinion or belief of a person who had taken all reasonable steps to ascertain that fact would have been that that was so”.13 This ‘steady preponderance’ test has since been applied often in cases under s 31 or its equivalent elsewhere: see for example: Re Hammersley-Mather; Hammersley-Mather v Kassim & Anor;14 Geltch v Wadda Farms Pty Ltd;15 Morris v State of Queensland;16 and As I read the respondent’s evidence, he held no real doubt that his bad back was caused by this accident, so that in the relevant sense he knew that fact.
“Although s. 30(a)(i) and (iii) refers to certain considerations relevant in the present case as ‘‘facts’’ that epithet is appropriate only in the sense of ultimate facts. Considered as facts they are essentially issues for proof by a prospective plaintiff and they will be capable of proof, if at all, through the medium of the evidence which he is able to collect. The body of evidence which a plaintiff collects or, as it may be put in terms of the expressions used in s. 30, his assemblage of ‘‘material facts’’, will only constitute a ‘‘decisive’’ collection when an appropriately advised reasonable man in his position is possessed or would, if he had enquired in appropriate fashion, be possessed of what he would regard as 35 reasonable and worthwhile litigation prospects. The policy detectable in this legislation does not suggest that a potential plaintiff with the limitation period running against him must necessarily always commence his proceedings when he has no more than a hint of the existence of a necessary link in his chain of proof but, of course, if being at that point he delays he will do so at his peril because he will only subsequently save himself if he can persuade a judge that he did not know enough or would not, even if he had undertaken appropriate enquiries, have known enough to justify commencing proceedings at an earlier time.”
Was the fact decisive?
Until Dr Blue’s opinion, the respondent had no opinion evidence to support his case. The appellant’s argument is that he did not need any, because he could prove his case at a trial by his own evidence. He could give evidence of his symptoms, which if accepted, would prove that he had a substantial problem with his back which interfered with his everyday activities and which affected his capacity to work. In turn, it is said that he could give evidence of problems with his back, although not of this severity until 2003, which were experienced from the happening of this accident in 1995, from which a trial judge could infer a causal connection.
In terms of s 30, the question is whether a reasonable person in his position, having taken appropriate advice, would have thought that an action brought by him, but unsupported by opinion evidence, would have a reasonable prospect of success and of resulting in a worthwhile award of damages, such that he ought to bring that action. The appellant argues that appropriate advice from a solicitor would have been that the respondent had a worthwhile cause of action which he should pursue and, indeed, that specialist opinion was not only unnecessary but “could not add anything of worth to the case”.
It is possible that this right of action, and in particular the existence of a serious and permanent back condition caused by the 1995 accident, could be proved at a trial without the assistance of opinion evidence. But the question is whether a reasonable man in the respondent’s position would have thought that he should sue without it. That depends upon what advice to him would have been appropriate. That advice would have been given not in a circumstance where there had been no expressed medical opinion, but where there had been opinions which were in some cases adverse to his cause and in others were equivocal. The medical opinion in 1995 was that he would be able to return to work on full duties (as he did) and that he would have no permanent disability. The medical opinion he obtained in 2003 was at best inconclusive; in particular the general practitioner who saw him on 24 April 2003 was unable to explain the pain of which he was complaining. And the appropriate advice would have had regard to his work history. He had worked for nearly six years in a full time position as a storeman. He did not leave there because of any back problem and it was only after some months of unemployment that he said that he was beginning to experience any significant symptoms. As I have mentioned, he had not seen a doctor or taken any medication for years. Absent any opinion evidence which supported what he was saying, it could hardly be said that he had a promising case. Appropriate advice would have been that he would be unlikely to prove more than a temporary injury from the accident, from which there was no significant effect by the end of 1995 and which would not result in a worthwhile award of damages. He would not have been appropriately advised that he could prove that he was unable to work in 1996. By then, he had been working without restriction for months, as he did for many years subsequently.
Means of knowledge
The existence of the supporting medical opinion is a fact which post-dated the critical date. But as the respondent seems to accept, the availability of such a medical opinion was ascertainable in the sense of s 30(d)(ii) before the critical date if the taking of all reasonable steps to obtain that opinion would have yielded it by then. The question is whether he should have obtained Dr Blue’s report (or an equivalent report from another specialist) before 9 July 2003.
What steps to obtain such an opinion did he not take which he should have taken? Until 2003 he was not experiencing any substantial symptoms. As I have said he did not have a worthwhile case on the basis of what he had experienced until then. Once he began to experience these symptoms in 2003, he promptly sought medical advice. He underwent the tests which were recommended. He saw several doctors, because he questioned the correctness of what some were saying to him. The last of them gave him a referral to the Neurosurgery Outpatients Department at the Gold Coast Hospital but he could not be seen there until January 2004. That referral was given on 30 April 2003. Should he have then gone to solicitors, as he did later in 2003? Should he have gone to see an orthopaedic surgeon earlier than he did, and early enough to have such an opinion by 9 July 2003?
In my view the appellant’s arguments on these matters demonstrate the problem of hindsight. As at 30 April 2003, the medical advice to him was that he should see a neurosurgeon at the Gold Coast Hospital. At least without legal advice, a reasonable person in his circumstances need not have decided to seek out an orthopaedic surgeon. Nor was it unreasonable for him not to have sought legal advice earlier than September 2003, and more particularly, so early that he would have seen an orthopaedic surgeon and received a report by 9 July 2003. In my view a reasonable person could have acted as and when he did. More generally, he has established that the taking of all reasonable steps need not have resulted in his obtaining such evidence before the critical date. The material fact, which was the existence of opinion evidence as represented by Dr Blue’s report, was not within his means of knowledge by 9 July 2003.
Conclusion
At reasons [29]; AR 141. ↩
Referring to the judgment of Macrossan J (as His Honour then was) in Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325 at 333*; Sugden v Crawford* [1989] 1 Qd R 683 at 685 per Connolly J, with whom Shepherdson J concurred; Peabody Resources Limited v Norton [1995] QCA 274 and Ipswich City Council v Smith [1997] QCA 763. ↩
At AR 110. ↩
At AR 7. ↩
At AR 7. ↩
I am expressing these reasons in accord with the conventional view that a material fact can be separately identified, rather than in accord with my view expressed in Wrightson v State of Queensland [2005] QCA 367 at [43]–[45]. The decisions in Reeman v State of Queensland [2004] QCA 484 and Stephenson v State of Queensland [2004] QCA 483 are reserved in the High Court. ↩
At AR 78. ↩
[2005] QSC 179 at [20]. ↩
Section 30(1)(a)(iv) and (v). ↩
[1994] 2 Qd R 431. ↩
At p 441. ↩
(1955) 91 CLR 512, 522.
Glenn Alexander Pikrt
Hagemeyer Brands Australia Pty Ltd [2006] QCA 112
(1955) 91 CLR 512
Mr Pikrt then worked full-time until 4 December 1995, when he gave notice of his intention to cease work with the defendant on 15 December 1995. His notice stated that:
The second alleged error identified in the reasoning of the learned judge, in the appellant’s written argument, was the conclusion that advice which Mr Pikrt received from a Dr Tony Blue in a report, dated 28 April 2004, was a material fact of a decisive character. Assuming for the sake of the argument that the judge so found, that report by Dr Blue expressed the opinion that the symptoms from which Mr Pikrt was then suffering were consistent with the clinical history and examination, and that the incident of 25 May 1995 was responsible for a disc protrusion now appearing at the L5/S1 level, and for Mr Pikrt’s present back pain and leg pain.
Mr Pikrt’s evidence had been that from the time he returned to full-time duties in August 1995 until he finished work seven years later in August 2002, he had suffered from an intermittent lower back ache, but such that he did not lose any time from work, see a doctor, or take any medication. On 25 August 1998, he did have one session of physiotherapy, which he said was in relation to a pulled muscle in his back. The physiotherapist’s report from the time was that he had given a history of injuring his back some four years earlier, and that report described the 1998 condition as an acute exacerbation of back pain.
Mr Pikrt’s evidence, summarised by the learned judge, was that as a result of being unemployed from August 2002 onwards he lost the fitness he previously had, and in or about January or February 2003 noticed occasional pain in his feet, calves, thighs, groin and hip area, and he started to develop lower back pain that was aggravated by walking or standing. Those symptoms increased in frequency and the pain increased in severity over the next several months. He sought medical advice on 10 April 2003, when he saw a Dr Baguley. He complained to that doctor of worsening, intermittent, pains in both legs, calves, and thighs, and the right inguinal region, in the last three to four months. He also told Dr Baguley that about seven years earlier he had had significant lower back pain after a fall while carrying a load. Mr Pikrt agreed in cross-examination that when he saw Dr Baguley he then thought his current problems were connected to the incident on 23 May 1995.
An X-ray of his lumbar spine and right hip was performed on 11 April 2003, which revealed minimal narrowing of the L5/S1 disc space, but no other bony or joint abnormality. On 14 April 2003 Mr Pikrt was seen by a Dr Cassimatis, who referred Mr Pikrt for a CT Scan of the lumbar sacral spine, performed on 23 April 2003, and showing a left paramedian posterior disc protrusion at L5/S1. On 24 April 2003 Mr Pikrt saw Dr Cassimatis, who told Mr Pikrt that he was not sure why Mr Pikrt was in pain; Mr Pikrt was dissatisfied with that and consulted a Dr Doherty on 30 April 2003. Dr Doherty referred Mr Pikrt to a neurosurgery outpatients’ department of the Gold Coast Hospital, at which an appointment was available only on 28 January 2004. Mr Pikrt then saw solicitors in September 2003, he then being confident that there was quite a lot wrong with his back and he had more than a suspicion that it was related to the 1995 accident. Those solicitors made an appointment for Mr Pikrt to see Dr Blue on 1 March 2004, and in between Mr Pikrt saw a Dr Withers at the Gold Coast Hospital on 28 January 2004, who arranged for a MRI Scan on 16 March 2004.
Dr Blue examined Mr Pikrt on 1 March 2004, by which time Mr Pikrt was complaining of constant low back pain with pain in both calves muscles, particularly with any lifting or walking and he complained that walking caused him to develop pain in his left groin, aching in both calve muscles, and numbness in his feet. Dr Blue saw significant wasting of the plaintiff’s left thigh and calve on examination, and by the time he did his report dated 28 April 2004 had been provided with the report from the MRI Scan performed on 16 March 2004, in which was noted L5/S1 disc degeneration, with a central disc protrusion butting the defending S1 nerve root. Dr Blue’s opinion has already been described.
Mr Pikrt’s evidence was that while he believed in the latter part of 2003 that problems were connected with his fall off the ramp, Dr Blue was the first doctor or surgeon who actually gave Mr Pikrt an explanation of what was wrong with his back and the first doctor who associated Mr Pikrt’s back condition with the incident in May 1995. The learned trial judge found that Mr Pikrt acted with appropriate speed in seeking medical advice after the worsening of his symptoms which he noticed in early 2003, and that whatever beliefs Mr Pikrt held about his symptoms being related to the May 1995, that belief without supporting medical advice did not mean that the relevant material fact of a decisive character relating to Mr Pikrt’s right of action was within his means of knowledge, or the means of knowledge of a reasonable person knowing what the plaintiff knew at the time, until he obtained the report from Dr Blue. The learned judge’s conclusions included that that advice from Dr Blue described a material fact of a decisive character, namely that Mr Pikrt had suffered a significant injury to his lower back on 23 May 1995, and which was not previously within his means of knowledge. The appellant’s written argument contends that even as at April 2003 Mr Pikrt knew that he had experienced seven years of intermittent back pain, the CT Scan identified a disc prolapse, and Mr Pikrt himself had no doubt that his symptoms were caused by May 1995. Accordingly, advice on those facts, which would have included that he had previously been out of work for 12 months because of the opinion that he could not tolerate bus travel for moderately lengthy periods, would have been that he had a worthwhile cause of action and that in his own interest he should pursue it. The written outline contends that “Specialist opinion could not add anything of worth to the case”.
I respectfully disagree. Opinion from a specialist describing a cause or connection between the worsening symptoms suffered since early 2003 and the May 1995 incident, confirming Mr Pikrt’s unqualified opinion, would be evidence capable of being accepted by a court of a causal connection between the injury and the subsequent condition. Absent medical evidence, the fact that Mr Pikrt had worked for six years after December 1996 without once seeing a doctor or taking medication because of his back pain would have made it very difficult for a court to accept and act on Mr Pikrt’s opinion. I therefore both agree with McMurdo J that Dr Blue’s opinion was itself a material fact of a decisive character, and also consider that it gave the plaintiff, for the first time, evidence with which to prove what I regard as the material fact of a decisive character - that he had suffered a significant injury to his back in 1995.6 Because of that evidence, he had a right of action worth pursuing; without it, his own opinion did not establish the actual existence of the significant injury suffered in 1995.
The definition in s 30 of a material fact of a decisive character requires assessment of what a potential plaintiff could prove at a given time, not what the plaintiff believed. The material fact of a decisive character relating to Mr Pikrt’s right of action was that he had suffered a significant injury to his back at his workplace in May 1995. By early 2003 Mr Pikrt believed that that happened. By early 2004, after July 200 3, Mr Pikrt had, for the first time, evidence with which to prove that his own belief was right. Putting the position in accord with my views expressed in Wrightson v State of Queensland [2005] QCA 367 at [43]-[45], that was when the facts Mr Pikrt knew became, in combination, of a decisive character. Putting the position in accord with the conventional view that a material fact can be separately identified, that was when Mr Pikrt first knew that material fact of a decisive character relating to his right of action. A reasonable person who had taken appropriate advice on the facts known to Mr Pikrt before Mr Pikrt received Dr Blue’s opinion would not have regarded those facts as showing that Mr Pikrt had a right of action with reasonable prospects of success and of an award of damages sufficient to justify bringing an action. On the other hand, a reasonable person knowing the facts, including Dr Blue’s opinion, would have regarded them as justifying bringing an action. That is because Dr Blue’s opinion evidence completed the facts on which a reasonable person could so conclude. Dr Blue’s opinion was capable of establishing that a significant injury had occurred in May 1995, as Mr Pikrt had believed – and, in fact, accurately – for at least a year; but Mr Pikrt’s own belief about his injury, irrespective of its accuracy and no matter how passionately held, was insufficient to establish the nature and extent of the personal injury in May 1995. His own knowledge of that injury, without supporting expert opinion or evidence, was not knowledge of a material fact of a decisive character relating to his right of action.
The third error attributed to the learned judge, in the appellant’s written outline, is that the material fact found by the learned trial judge was within Mr Pikrt’s means of knowledge long before 9 July 2003. The appellant pointed to the complaints of low back pain or low back injury made in August 1995; the terms of the letter of resignation; Mr Pikrt having remained out of work for 12 months; his statements to the physiotherapist in August 1998 attributing the onset of his back symptoms to the May 1995 accident; the extensive pain he was experiencing in January or February 2003; his own opinion that the May 1995 incident was the cause of his symptoms, (as evidenced by his reporting that incident to all the practitioners who saw him in 2003); the knowledge that a disc protrusion had been established irrespective of whether the ongoing symptoms were the result of a disrupted disc, a chronic soft tissue injury or some other cause; and argued that when all put together, this showed that Mr Pikrt knew he had an injury and that it was caused by the May 1995 incident. If he did not ask any medical practitioner for an opinion on the issue of causation, that omission meant that while he had the means of knowledge that medical opinion would support his own, he took no steps to learn or insufficient ones.
I consider that the respondent’s counsel is correct in the submission that that argument overlooks the finding of fact by the learned judge – not challenged – that Dr Cassimatis had told Mr Pikrt that that doctor was not sure why Mr Pikrt was in pain, a finding supported by Mr Pikrt’s evidence; and the finding – not challenged – that Dr Withers had also told Mr Pikrt that that doctor too could not explain why Mr Pikrt was in pain. Dr Doherty did not offer any opinion of his own, according to Mr Pikrt’s affidavit,7 and there was no evidence that Dr Doherty had an opinion to express. I also agree with the learned judge that Mr Pikrt was active enough in pursuing medical opinion. Had Mr Pikrt seen solicitors immediately after his inconclusive consultation with Dr Doherty, there is no basis for a finding that the result would have been advice to sue without supporting specialist medical opinion being available (before July 2003). No error is shown in the reasoning of the learned judge, and accordingly none in the discretionary orders the judge made.
I would dismiss the appeal with costs.
HOLMES J: I have read the reasons for judgment of Jerrard JA and McMurdo J and gratefully adopt their Honours’ setting out of the background to the case. I agree with their Honours that the appeal should be dismissed with the respondent to pay the appellant’s costs. Although it is probably not a matter of great moment in the circumstances, I agree with McMurdo J that the material fact of a decisive character was the existence of Dr Blue’s opinion to the effect that the plaintiff had a serious and permanent injury. There is no doubt that medical opinion of that kind may constitute a material fact of a decisive character: see, for example, Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306.
McMURDO J: This is an appeal against an order extending the limitation period, made pursuant to s 31 of the Limitation of Actions Act 1974 (Qld). The question is whether the learned primary judge was right to hold that a material fact of a decisive character was within the respondent’s means of knowledge only after what is called in these cases the critical date.
But neither of those facts, a serious back injury and caused by this incident, is the material fact which was relied upon by the respondent. That fact, as her Honour noted, was the fact of Dr Blue’s report. Put another way, it was the fact that a person competent to give opinion evidence on the matters, held the opinion that the respondent had a serious back injury which was caused by the incident. The questions are whether the fact of Dr Blue’s opinion is itself a material fact relating to a right of action, whether it is of a decisive character and whether it was within the respondent’s means of knowledge before the critical date. As to that last question, it is of course obvious that the fact was not actually known until after the critical date. But that last question is whether the respondent should have obtained that opinion, from Dr Blue or another specialist, before then.
In s 30 the definition of “material facts relating to a right of action” contains five paragraphs. Each describes a fact of a kind which would be an element of a right of action, or in other words, a material fact required to be pleaded. But the term is defined inclusively, and it can include “factors beyond those which comprise the bare and essential ingredients of a given cause of action”: Re Sihvola;18 Castlemaine Perkins Limited v McPhee.19 The availability of evidence from which to prove some essential element of a right of action can itself be a material fact relating to a right of action, as Macrossan CJ explained in Wood v Glaxo Australia. Macrossan CJ said:20
In my view then, a reasonable person, knowing what he knew by the critical date, and with appropriate advice on those facts, would not have regarded them as showing that he had a reasonable prospect of success in obtaining an award of damages sufficient to justify the bringing of an action, such that he ought to sue. The appropriate advice would be different with the addition to those facts of the availability of opinion evidence, unequivocally to the effect that he had a serious and permanent injury which was caused by the accident. The existence of that medical opinion was thereby a material fact of a decisive character.
At p 442. ↩
Unreported, 17 December 1993, Ambrose J, o/s no 1275 if 1993 and 1572 of 1993. ↩
Unreported, 29 March 1999, Jones J. ↩
[2004] QSC 107 (Douglas J). ↩
[2004] ACTSC 102 (Crispin J). ↩
[1979] Qd R 458. ↩
[1979] Qd R 469 at 471. ↩
[1994] 2 Qd R 431 at 437. ↩
[2001] 1 Qd R 448 at 456. ↩