Greenhalgh v Bacas Training Limited & Ors

SUPREME COURT OF QUEENSLAND

CITATION: Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327

PARTIES: JOHN ROBERT GREENHALGH (plaintiff/respondent) / v / BACAS TRAINING LIMITED ACN 092 797 790 (first defendant/first applicant) / BCP HOLDINGS PTY LTD ACN 097 126 111 trading as BUNDABERG TOYOTA (second defendant/second applicant)

FILE NO/S: Appeal No 3493 of 2007 DC No 21 of 2006

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Civil)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 5 October 2007

DELIVERED AT: Brisbane

HEARING DATE: 19 September 2007

JUDGES: Keane JA, Cullinane and Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1.Application for leave to appeal refused / 2.Applicants to pay respondent's costs of the application for leave to appeal on the standard basis

CATCHWORDS: LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF DECISIVE CHARACTER – where plaintiff suffered personal injuries in course of employment with defendant – where limitation period extended on basis that medical report on extent of plaintiff's injury enlivened discretion under s 31(2)(a) Limitation of Actions Act 1974 (Qld) – whether learned trial judge erred in concluding report was a material fact of a decisive character / Limitation of Actions Act 1974 (Qld), s 30(1)(b), s 31(2)(a) / Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112; Appeal No 6605 of 2005, 13 April 2006, applied / Pizer v Ansett Australia Limited [1998] QCA 298; Appeal No 6807 of 1998, 29 September 1998, applied / Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, applied

COUNSEL: R J Douglas SC for the applicants / D B Fraser QC, with R B Dickson, for the respondent

SOLICITORS: Carter Newell for the applicants / Payne Butler Lang for the respondent

1. KEANE JA: The respondent (to whom I will refer as "the plaintiff") suffered personal injuries on 11 October 2001 in the course of his employment with the first defendant when he was struck by a motor vehicle while the first defendant was doing work for the second defendant.

2. On 30 March 2007, pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) ("the Act"), the learned primary judge extended the limitation period for an action for damages for negligence to be brought by the plaintiff in respect of these injuries until 21 June 2007. The basis for this order was that a material fact of a decisive character, namely the opinion of Dr Van der Walt, an orthopaedic surgeon, on the extent of the plaintiff's injury, was not within the plaintiff's knowledge or means of knowledge until 21 June 2006.

3. The applicants (to whom I will refer as "the defendants") seek to argue that the learned primary judge erred in failing to appreciate that the report of 21 June 2006 did not add materially or decisively to the plaintiff's knowledge of the nature and extent of his injury so as to enliven the discretion conferred by s 31(2) of the Act.

4. Because the decision of the learned primary judge was interlocutory, the defendants require leave to appeal to this Court by reason of s 118(3) of the District Court of Queensland Act 1967 (Qld). It is convenient to move directly to consider the merits of the defendants' argument in order to determine whether they have been wrongly deprived of a defence which would otherwise have been available to them under the Act.¹ In this regard, it is necessary first to set out the relevant provisions of the Act. I will then proceed to discuss the contention which the defendant argues warrants the grant of leave to appeal by reference to the evidence and the reasons of the learned primary judge.

The Act

5. Section 31(2)(a) of the Act empowers the court to extend the period of limitation 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".

6. The period of limitation may be extended up to a year after the date on which the material fact of a decisive character first came within the applicant's means of knowledge.

7. Section 30(1)(b) of the Act makes provision in relation to what is "a material fact of a decisive character" in the following terms:

"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".

The defendants' contention

8. The defendants argue that by no later than 11 May 2005, being the date on which the plaintiff's lawyers received the report of Dr Van der Walt dated 5 May 2005, a reasonable person who had taken appropriate advice on the facts known to the applicant would have regarded those facts as showing that the plaintiff had a right of action with reasonable prospects of success and of an award of damages sufficient to justify bringing an action.²

9. The plaintiff was 20 years old when he was injured. He returned to full work duties one month after the incident of 11 October 2001. His injury did not resolve completely. It is apparent from Dr Van der Walt's report of 30 November 2004 that, when the applicant was required to do work above shoulder level, "he continued to suffer pain in his right shoulder and scapular area". Dr Van der Walt concluded:

"I believe he requires continuing physiotherapy for a period of about six weeks … after six weeks he should be able to return to work and complete his apprenticeship … Maximum medical improvement should occur by the end of January 2005."

10. Dr Van der Walt advised that "after finishing his apprenticeship, he should look for alternate work for a period of about six months." The plaintiff swore that, having been given that advice, he "did not think that a court action was worthwhile". The plaintiff's evidence was not challenged in cross-examination; and there is no reason to think that the plaintiff's response was unreasonable.

11. In April 2005, Ms Karin-Anne King, the plaintiff's rehabilitation co-ordinator, asked the plaintiff whether he had considered a change of occupation. The plaintiff's reply was that, although he aggravated his injury regularly, he did not want to change occupations and he accepted that he would suffer aggravations of his injury from time to time. It appears that, by this time, the plaintiff had suffered three aggravations of his injury. Ms King did not suggest to the plaintiff that his attitude was unreasonable given the plaintiff's experience since his injury.

12. Dr Van der Walt's second report, dated 5 May 2005, noted that the plaintiff had previously qualified as a motor mechanic. In this report, the plaintiff's "present symptoms … were much as they were described to me when I examined him on 22 November 2004." Dr Van der Walt opined that the plaintiff lacked:

"30o of internal rotation, and this causes 2% impairment to his upper extremity … He also lacks 30o of forward elevation … this equals 2% impairment to his upper extremity … therefore … he has 4% impairment to his right upper extremity … [and] soft tissue injury to his thoracic area … asymmetric loss of range of movement … constitutes 5% whole person permanent impairment."

13. Dr Van der Walt advised the plaintiff "to find alternative employment, which avoids repetitive use of his right shoulder girdle, and avoidance of working above shoulder level for a period of time following completion of his apprenticeship."

14. On 25 May 2005, Dr John Olsen said that the plaintiff's diagnosis was uncertain. Dr Olsen said, however, that "at the present time, [the plaintiff] is fit for his normal duties". He suggested that the plaintiff:

"may wish to reconsider his future employment options given that he is still a young man and given that he does have a four year history of recurrent muscular pain at the right shoulder blade, that is certainly likely to continue with his working as a mechanic which does involve working with both hands above his head and also laying on steel lay boards on the workshop floor."

15. In the report of 21 June 2006, Dr Van der Walt gave a "definitive statement in relation to what restrictions there are on work and career options". The plaintiff told Dr Van der Walt that he had tried to find alternative work, because of the pain and fatigue caused by heavy lifting and overhead work, but had not succeeded in finding alternative work. Dr Van der Walt opined that the plaintiff "has restriction in regard to work and career options because of his inability to work above shoulder level. He should I believe, find alternative employment in the automotive industry, where lifting above shoulder level is not required …"

16. The learned primary judge reviewed this, and other, evidence, and summarised it in the following terms:

"The effect of the visit to Dr Van der Walt in November 2004, although confirming that there were some continuing symptoms, did not result in a recommendation that the applicant change his employment at once, or any statement to the effect that he was unfit to work as a mechanic. That there were some continuing problems was obvious, but Dr Van der Walt thought that there were still prospects of further improvement, and in effect recommended that the applicant continue with and complete his apprenticeship, and then try to find some less demanding work to see if that helped. It was reasonable for the applicant to follow that advice. The position at that stage appears to have been that the applicant was generally able to cope with his work, but there were problems on occasions if he had to lift anything heavy, or work above shoulder height. That is not necessarily incompatible with continuing to work indefinitely as a mechanic; it may be that these problems can be minimised in the sort of work he is doing, and it may also be that the applicant was willing to put up with some pain from time to time providing that he could continue at work. If that is an acceptable regime for him, it is one which will lead to an award of much lower damages than if he is unable to work as a mechanic. That is not inconsistent with the existence of some permanent impairment, but rather an indication that the permanent impairment was not necessarily inconsistent with continuing work as a mechanic. Having been given this advice, it seems to me that it was reasonable for the applicant to act upon it before seeking further orthopaedic opinion, at least in the absence of some significant deterioration in the meantime, which did not occur.

When he saw a physiotherapist in February 2005, his intention was consistent with the recommendation of Dr Van der Walt, namely to finish his apprenticeship and then do less demanding work for a few months to help him get over it. That does not suggest that it was reasonable for him at that time to be undertaking more extensive inquiries. In April 2005, the applicant saw Dr Van der Walt again, but the situation really had not changed since November 2004. At that stage the applicant was still completing his apprenticeship, and there had been no real developments since the earlier occasion. There does not appear to have been any significant change in Dr Van der Walt's assessment, or in his recommendation. At that stage, of course, he was preparing a medico-legal report rather than recommending treatment or some course of conduct. Nevertheless, there is nothing in the report which would have reasonably led the applicant to disregard the earlier advice given to him, or to conclude that he would be unable to work on a long-term basis as a mechanic, albeit in a less strenuous type of such work and with intermittent pain. That also appears to have been recognised when he was speaking to the rehabilitation coordinator in April 2005, also relied on by the respondents.

In May 2005, the applicant saw Dr Olsen at the request of WorkCover. His report dated 25 May 2005 recorded a problem dating from October 2001, which had been aggravated as a result of working with both arms above his head while standing under a car on a hoist for an extended period. He gave a history which seems to me essentially consistent with the history referred to earlier. Ultimately, Dr Olsen concluded that at the present time the applicant was fit for his normal duties. There was said to be a high risk of recurrence and the applicant 'may wish to reconsider his future employment options given that he is still a young man and given that he does have a four year history of recurrent muscular pain at the right shoulder blade, that is certainly likely to continue with his working as a mechanic which does involve working with both hands above head and also laying on steel layboards on the workshop floor.' That report was provided to WorkCover rather than the applicant or his solicitors, but he was told about the contents of the report, or at least that part of it, on 1 June 2005, and indicated that he was already aware of this. That was because what was being said there was essentially consistent with the advice he received some time earlier from Dr Van der Walt. This was quite soon after the applicant had completed his apprenticeship, at the end of April 2005."³ (emphasis added)

17. The learned trial judge found that "[a]lthough there had been some ongoing symptoms, with flare-ups from time to time, in general [the plaintiff] had not had any prolonged and particularly painful symptoms".⁴ The defendants criticise this finding, contending that, by the time of the 5 May 2005 report, it was clear that the plaintiff suffered from a permanent condition, measurable in terms of percentage loss of function, had a history of aggravating his symptoms which was likely to continue, and obviously needed to change employment. In this respect, the defendants argue that nothing changed in the plaintiff's condition by June 2006.

18. It is, however, settled by the decisions of this Court in Wood v Glaxo Australia Pty Ltd⁵ and Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd⁶ that the availability of evidence which establishes an aspect of a claimant's case can itself be a material fact relating to a right of action. The plaintiff's argument is that the report of Dr Van der Walt of 21 June 2006 was a material fact relating to the right of action because of its relevance to the likely quantum of recoverable damages which was of a decisive character because it was unequivocal evidence of unavoidable economic loss.

19. Prior to the provision of this report, the advice received by the plaintiff was equivocal so far as his future as a motor mechanic was concerned. It was not until the report of 21 June 2006 that the plaintiff's future as a mechanic was said categorically to be permanently at risk to the extent that work involving "lifting above shoulder level" was a requirement of that occupation. Prior to this time, the plaintiff could not have proved that his determination to work around or through his discomfort would not ultimately be crowned with success. Prior to 21 June 2006, Dr Van der Walt's opinions and the opinion of Dr Olsen did not unequivocally support a case that the plaintiff's occupation as a mechanic was ineluctably and permanently jeopardised by his injury.

20. In this regard, the learned primary judge concluded:

"Overall, it does not seem to me that there was anything revealed in this history which indicated that it was reasonable for the applicant to have undertaken more extensive inquiries, in the light of what he had been experiencing and the advice he had been given, in particular the advice from Dr Van der Walt. It does suggest that in continuing to work as a mechanic, there would be likely to be flare-ups of pain from time to time, particularly if certain types of work were undertaken which would be likely to aggravate the shoulder, but it does not indicate, or provide any basis on which reasonably the applicant would have concluded or might have been concerned, that he would be unable to work as a mechanic in the future, or that there was a significant risk of that. Essentially, he was coping, and he had never been told that that situation could not continue.

Indeed, even the most recent advice from Dr Van der Walt is not dramatically different from that, it is just that, once that advice was given, the applicant reasonably did begin to have serious doubts about his prospects in the future as a mechanic. In my opinion, it was not reasonable for the applicant to have undertaken more extensive investigations than he did, and accordingly the material fact of a decisive character was not within his means of knowledge prior to June 2006. Accordingly, the discretion arises to extend the limitation period."⁷

21. In Wood v Glaxo Australia Pty Ltd,⁸ Macrossan CJ said:

"The body of evidence which a plaintiff collects, or … 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 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."

22. Whether an action for damages is worthwhile is an assessment which must be made having regard to the expense and risks of litigation. When an assessment of costs, risks and benefits should reasonably have led to a conclusion that an action was worthwhile must be determined having regard also to the plaintiff's previous attempts to overcome any adverse economic consequences of his injuries. These attempts had largely been encouraged by medical opinion; that the plaintiff persisted with these attempts in these circumstance can hardly be said to have been unreasonable.

23. As Thomas JA said in Pizer v Ansett Australia Limited:⁹

"In the present case leave was granted to appeal, mainly on the Court's perception that the case was reasonably arguable, and that the effect of the decision would produce significant consequences. In appeals of the present kind, when the material fact concerns the nature and extent of personal injury, questions of degree are necessarily involved. At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it. At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension, and an appeal court could likewise readily correct an erroneous decision. Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff's knowledge and as to whether the reasonable person contemplated by s.30(b), endowed with such knowledge and having taken appropriate advice, would have brought proceedings. Appeals involving extensions of periods of limitation commonly raise these particular issues which involve factual assessments. Although the eventual decision is discretionary the determination of these issues is not. They involve findings of fact and a determination whether those facts satisfy the requirements of the statute. It is worth mentioning however that such findings and determinations are made in an area where different minds might reasonably reach different conclusions. In such a situation the appeal court is not free to decide the question according to its own preference. Unless the judgment reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference."

24. I can discern no error of law or fact in the learned primary judge's conclusion that Dr Van der Walt's opinion of 21 June 2006 was a material fact of a decisive character. In my respectful opinion, it was open to the learned primary judge to regard the 21 June 2006 opinion of Dr Van der Walt as providing to the plaintiff, for the first time, unequivocal evidence enabling the plaintiff to prove a level of economic loss which would make an action for damages worthwhile.

Conclusion and orders

25. It has not been demonstrated that the decision of the learned primary judge to grant the application for an extension of time was attended by sufficient doubt to warrant the grant of leave to appeal.

26. In my opinion, the defendants should pay the plaintiff's costs of the application for leave to appeal on the standard basis.

[27] CULLINANE J: I have read the judgment of Keane JA in this matter. I agree with his reasons and the orders he proposes.

[28] LYONS J: I am satisfied that the findings of the learned trial judge were open and should not be disturbed. The facts are fully set out in the judgment of Keane JA and I agree with the orders he proposes and the reasons he gives.

[29] The decision under appeal was a decision under the Limitation of Actions Act 1974 ("the Act") allowing an extension of the period of limitation for an action in respect of injuries allegedly suffered by the respondent as a result of the negligence of the first and second applicants on or about 11 October 2001. Section 31(2)(a) of the Act allows an extension of time for up to one year after the date on which the material fact of a decisive character came within the respondent's means of knowledge.

[30] The essential contest was whether the material fact of a decisive character was grounded upon the receipt of Dr Van der Walt’s second report of 5 May 2005 or his third report of 21 June 2006. His Honour concluded that the opinion contained in Dr Van der Walt’s third report was a material fact of a decisive character within s31 of the Act.

[31] This is an appeal against an order whereby a discretion was exercised in favour of the plaintiff to extend a limitation period. Accordingly the appeal attracts the principles in relation to discretionary judgments as set out in Pizer v Ansett Australia Limited¹⁰ where Thomas JA said:

“Although the eventual decision is discretionary the determination of these issues is not. They involve findings of fact and a determination whether those facts satisfy the requirements of the statute. It is worth mentioning however that such findings and determinations are made in an area where different minds might reasonably reach different conclusions. In such a situation the appeal court is not free to decide the question according to its own preference. Unless the judgment reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference.”

[32] Even if some error is shown it must also then be established that that error caused a substantial wrong or miscarriage of justice before the appellate court will intervene. Clearly then the applicants are required to demonstrate correctable error on the part of the learned trial judge.

[33] The injury was suffered during the first week of the respondent’s apprenticeship on 11 October 2001. Dr Van der Walt’s first report of 30 November 2004 indicated that after six weeks he should be able to return to work and complete his apprenticeship however he suggested that he should look for other work for a period of six months after he finished his apprenticeship. This is supported by the affidavit of Dr Van der Walt who indicated that at that stage he did not indicate to the respondent that his career as a motor mechanic was over but rather that he should take a break for six months and not put any strain on his shoulder girdle muscles. This report came after the respondent aggravated his shoulder pain on 4 November 2004.

[34] In the second report of 5 May 2005 Dr Van der Walt noted improved range of movement but repeated the advice of trying alternative employment for a period of time. It is clear that the evidence indicates that the respondent returned to full work duties within one month of his accident and was thereafter not on any regular medication and he thought his symptoms were resolved. He finished his apprenticeship in May 2005 and was employed in his trade although with lighter work given his aggravation of his shoulder injury in late 2004. Whilst the respondent consulted his solicitors in November 2004 and they obtained medical advice, I do not consider that there is evidence that he was definitely told at that stage that he would essentially have to leave his trade.

[35] I consider the evidence indicates that the respondent believed he would be able to continue with his trade until he received the medical advice of 21 June 2006. In particular the report of Dr Van der Walt commences “This report is provided in response to a letter from you date 9 June 2006 in which you requested a definitive statement in relation to what restrictions there are on work and career options for Mr Greenhalgh.”

[36] In response to the question, Dr Van der Walt indicated:

“I believe that he has restriction in regard to work and career options because of his inability to work above shoulder level. He should I believe find alternative employment in the automotive industry, where lifting above shoulder level is not required. Work outside of his qualification as a motor mechanic, would preclude him from working in the building industry such as that of a scaffolder. I believe that the initial injury is the prime cause of his impairment and that the second injury was a temporary exacerbation.”

[37] I do not consider that there is any error of fact or of law in the decision of the learned trial judge.

Footnotes

1. Cf Pickering v McArthur [2005] QCA 294 at [3]. ↩

2. Cf Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 at [22]. ↩

3. Greenhalgh v Bacas Training Limited & Ors [2007] QDC 056 at [26] – [28] (footnotes omitted). ↩

4. Greenhalgh v Bacas Training Limited & Ors [2007] QDC 056 at [16]. ↩

5. [1994] 2 Qd R 431 esp at 437. ↩

6. [2006] QCA 112 esp at [45] – [46]. ↩

7. Greenhalgh v Bacas Training Limited & Ors [2007] QDC 056 at [29] – [30]. ↩

8. [1994] 2 Qd R 431 at 437. ↩

9. [1998] QCA 298 at [20] (footnotes omitted). ↩

10. [1998] QCA 298. ↩