Hintz v WorkCover Queensland & Anor

SUPREME COURT OF QUEENSLAND

CITATION: Hintz v WorkCover Queensland & Anor [2007] QCA 72

PARTIES: JASON LUKE HINTZ (applicant/appellant) v WORKCOVER QUEENSLAND (respondent) ERGON ENERGY ACN 087 464 062 (respondent/not party to appeal)

FILE NO/S: Appeal No 6032 of 2006 / SC No 2633 of 2002

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 16 March 2007

DELIVERED AT: Brisbane

HEARING DATE: 27 February 2007

JUDGES: Williams and Keane JJA and Helman J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Appeal dismissed / 2. Appellant to pay respondent's costs of and incidental to the appeal

CATCHWORDS: LIMITATION OF ACTIONS - POSTPONEMENT OF THE BAR - EXTENSION OF PERIOD - CAUSES OF ACTION IN RESPECT OF PERSONAL INJURIES - KNOWLEDGE OF MATERIAL FACTS - MATERIAL FACTS OF DECISIVE CHARACTER - where appellant allegedly suffered physical and psychological injury at work - where appellant commenced action for damages outside limitation period - whether appellant could have commenced action prior to receiving damages certificate from WorkCover in respect of psychological injury - whether appellant should be granted an extension of time / Limitation of Actions Act 1974 (Qld), s 31(2), s 30(1)(b) / WorkCover Queensland Act 1996 (Qld), s 253, s 261, s 262, s 264, s 265 / Charlton v WorkCover Qld & Ors [2006] QCA 498, Appeal No 5834 of 2006, 1 December 2006, discussed / Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, cited / State of Queensland v Stephenson (2006) 80 ALJR 923, distinguished / Sugden v Crawford [1989] 1 Qd R 683, cited

COUNSEL: T Matthews, with P B de Plater, for the appellant / D McMeekin SC, with M T O'Sullivan, for the respondent

SOLICITORS: Watling Roche Lawyers Australia for the appellant / MacDonnells Law for the respondent

WILLIAMS JA: On 17 January 2001 the appellant lodged an application for workers' compensation for a lower back injury said to have been sustained in the course of his employment on 31 March 1999. Prior to that, on 28 August 2000, he had lodged an application for workers' compensation alleging that he had suffered an injury in the nature of "stress" which had been incurred over a period of time in the course of his employment. WorkCover rejected the application for compensation for the lower back injury and throughout 2001 and 2002 the appellant pursued appeals consequent upon that rejection. But on 19 November 2001 WorkCover accepted the claim for "stress" incurred over a period of time and issued a certificate on that date stating that the degree of permanent impairment attributable to that injury was 5%; it was also stated to be a non-certificate injury. A lump sum offer of compensation for that "stress" was made at that time.

The appellant's appeals against the rejection of his application for compensation for a lower back injury sustained on 31 March 1999 were ultimately successful. An Industrial Magistrates Court decision on 18 September 2002 concluded that the appellant had sustained an injury to his lower back on 31 March 1999 and the matter was remitted to WorkCover to take consequent action.

Then by letter dated 23 January 2003 the solicitors for the appellant asked WorkCover if the appellant "could be assessed for permanent impairment in relation to an injury to his lumbar spine and in relation to his psychological injury". This would appear to be the first occasion upon which the appellant alleged that in the incident of 31 March 1999 he had sustained a psychological injury.

WorkCover accepted that the appellant had sustained a lower back injury on 31 March 1999 and on 30 May 2003 issued a Notice of Assessment with respect thereto. That assessment referred to: "Moderate to severe aggravation or acceleration of pre-existing disease in lumbo sacral spine." It also stated that the injury was a non-certificate injury. As the certificate did not refer to any psychological injury it was taken as a rejection of the request contained in the solicitor's letter of 23 January 2003. No further step was taken with respect to that aspect of the claim until 28 August 2003 when the solicitors for the appellant wrote to WorkCover asking for a review of WorkCover's decision in relation to the secondary psychiatric injury. That ultimately resulted in the General Medical Assessment Tribunal determining on 11 April 2005 that the appellant had sustained a psychiatric injury in the work accident on 31 March 1999. That resulted in a damages certificate issuing on 28 June 2005 describing the injury as "chronic adjustment disorder". The certificate stated that it was a non-certificate injury.

In the meantime the appellant had commenced proceedings in the District Court by Claim and Statement of Claim lodged 26 June 2003. The Statement of Claim particularised the injury at work on 31 March 1999 and alleged that as a result of that accident he had sustained an injury to his lower back and psychological injury. A claim for damages in the sum of $250,000 was made. No claim therein was made for an injury being "stress over time".

The only other relevant fact that need be noted is that it was not until 12 September 2005 that the appellant served a Notice of Claim on WorkCover in purported compliance with s 280 of the WorkCover Queensland Act 1996 ("the Act").

Until the decision of the Industrial Magistrates Court on 18 September 2002 the appellant could not have complied with any of the provisions of s 253 of the Act. Until then he was in a fairly similar situation to the appellant in Charlton v WorkCover [2006] QCA 498; but like the appellant in Charlton once the decision of that Court became known he came within s 253(1)(b) of the Act, at least insofar as a lower back injury was concerned. But further, as at that time he came within s 253(1)(c) so far as any psychiatric injury sustained on 31 March 1999 was concerned; as at 18 September 2002 he had not lodged an application for compensation with respect to such a psychiatric injury. There was in late 2002 nothing to prevent the appellant seeking damages for both a lower back injury and a psychiatric injury sustained on 31 March 1999. With respect to the former he would have to comply with the requirements of s 261 to s 263 of the Act, and with respect to the latter he would have to comply with the requirements of s 264 to s 267 of the Act. Critically those gateways were open to him in order to pursue a claim for damages.

The appellant would have had to give a Notice of Claim for Damages pursuant to s 280, and could have invoked in aid provisions such as s 302, s 304, s 305 and s 308 of the Act. He did none of that, but, as noted above, commenced proceedings on 26 June 2003. It was agreed that those proceedings were ineffectual because there was non-compliance with the requirements of the Act.

Looked at in that light it can be seen that the damages certificate of 28 June 2005 relating to a psychiatric injury suffered on 31 March 1999 did not satisfy the requirements of s 31(2) of the Limitation of Actions Act 1974 (Qld). The appellant had all the knowledge relating to his right of action at the time he commenced the District Court proceedings on 26 June 2003. The problem was that at that time he failed to take the necessary steps pursuant to the Act (which were then open to him) to give him the right to commence proceedings at that time.

In the light of what I have said previously I agree generally with all that is said by Keane JA in his reasons for judgment which I have had the advantage of reading. The primary judge was clearly correct in dismissing the application.

The appeal should be dismissed with costs.

KEANE JA: The appellant allegedly suffered personal injuries in an accident at work on 31 March 1999. He commenced an action for damages on 26 June 2003. At that time, of course, the limitation period applicable to his action had expired. It was also the case that the action was commenced contrary to the provisions of the WorkCover Queensland Act 1996 (Qld) ("the Act") in that, inter alia, the notice of claim required by s 280 of the Act had not been given to WorkCover by the appellant.

In the statement of claim which was filed (albeit irregularly) on behalf of the appellant, he claimed damages for personal injury said to have been suffered in consequence of the accident at work on 31 March 1999, and particularised as consisting of an "injury to the lower back" and "psychological injury".

Section 31(2) of the Limitation of Actions Act 1974 (Qld) 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."

Relying on this provision, on 1 June 2006, the appellant applied for an extension of the limitation period on the basis that it was only on 28 June 2005 that WorkCover issued a damages certificate for a chronic adjustment disorder arising from the incident at work on 31 March 1999.

The appellant contended below, and on appeal to this Court, that it was only upon the issue of this certificate that he had means of knowledge of a material fact of a decisive character relating to his right of action, namely that he was able to satisfy the requirements of s 253 of the Act so as to be able to pursue an entitlement to damages for his psychological injury.

The decision of the primary judge

The learned primary judge rejected the appellant's contention. His Honour held that, from 18 September 2002 (and thus more than a year before WorkCover issued the damages certificate of 28 June 2005 in respect of the appellant's psychological injury), it was within the appellant's means of knowledge that he had a worthwhile cause of action arising out of the accident of 31 March 1999.

The learned primary judge set out the detail of the convoluted history of the appellant's injury and of his attempts to satisfy the requirements of the Act which bore upon his entitlement to seek damages for the injury which he sustained on 31 March 1999.¹ It is, I think, unnecessary to set out this history in full because much of it is not material to the issues raised on appeal. The salient features must, however, be noted.

On 17 January 2001, the appellant, in his initial claim for workers' compensation as the result of the accident of 31 March 1999, identified the lower back injury as the only injury he had suffered. He did not make a claim for workers' compensation for a psychological injury as a result of the accident.

The appellant had, on 1 September 2000, made a claim for a psychological injury said to have occurred over time as a result of his unsatisfactory relationships with his workmates. This injury was the subject of a notice of assessment from WorkCover on 19 November 2001 following a decision of the General Medical Assessment Tribunal that the appellant had sustained a five per cent permanent impairment as a result of "anxiety/depression" injury sustained "15.8.00 over a period of time".² WorkCover offered to pay an amount of compensation. The appellant rejected that offer.

WorkCover initially disputed the appellant's claim that he had suffered any "injury" within the meaning of the Act on 31 March 1999. On 18 September 2002, this dispute was resolved in the appellant's favour, so far as the injury to his lower back was concerned, by the Industrial Magistrate.

After further disputation in correspondence, and a further decision by the General Medical Assessment Tribunal, on 28 June 2005, WorkCover issued a Damages Certificate in respect of the psychological injury assessing the appellant's permanent disability from this aspect of his injuries at 0 per cent.

As mentioned above, the learned primary judge rejected the argument advanced by the appellant in support of his application for an extension of the time on the basis that, after 18 September 2002, the appellant did not need to know anything more in order to know that he had a worthwhile right of action (upon which it was in his interests to bring an action). The learned primary judge said:³

"The applicant relies on the issuing of the 28 June 2005 certificate and also on its content as showing 'the nature and extent of the personal injuries' sustained by him in the Accident. But the certificate, based on the determination of the Medical Assessment Tribunal, denied the existence of permanent impairment or an inability to work as a result of the accepted condition of Chronic Adjustment Disorder.

The view of the Tribunal, reflected in the certificate, was thus far less favourable to the applicant than his long asserted claim, based on a number of psychiatric and psychological reports, that the Accident had caused psychiatric injury. The latest of such reports was Dr [Fisher's] of 25 February 2005. By the date of that report, at the latest, the applicant was aware, not only of the existence of long-standing symptoms, but also of the existence of an expert’s report which supported a claim for extensive damages for psychiatric injuries arising out of the accident. On the other hand, the certificate provided no information which could have lead the applicant to conclude that his claim was either more likely to succeed or to be greater in amount than he had previously thought.

Consequently, for the applicant to succeed, the mere fact that the damages certificate issued in relation to the psychiatric injuries must constitute a 'material fact of a decisive character'.

By virtue of s 30(1)(b) of the Limitation of Actions Act**, material facts are of a decisive character:**

'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…'

Before obtaining the certificate the applicant was aware of the existence of a cause of action for damages for physical injuries sustained in the accident. There was no impediment to his commencing and prosecuting proceedings in respect of that cause of action after the determination of the Industrial Magistrates Court. The applicant’s claim was potentially quite substantial, having regard to the evidence of permanent physical injury and continuing pain likely to adversely affect the applicant’s employability. Moreover, there was no impediment to the applicant’s including in any proceedings commenced by him a claim for psychiatric injury in accordance with the Tribunal’s certification. There was an obvious area of overlap between that psychiatric injury and the one now asserted. It was accepted by the Medical Assessment Tribunal that the Accident contributed to the former condition. That conclusion accorded with the views of Dr Rose and Ms Fisher.

The evidence does not suggest that the advent of the certificate would have engendered in the mind of the applicant the belief that an action not previously justified by reference to a reasonable assessment of prospects of success or the likely quantum of any award had become worth bringing.

In his submissions, counsel for the respondent placed reliance on the following observations of Macrossan J, as he then was, in Moriarty v Sunbeam Corporation Limited ([1988] 2 Qd R 325 at 333):

'In cases like the present, an applicant for extension discharges his onus not merely by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it.

He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his interests pursue it. This is what the application of the test of decisiveness under s 30(b) comes down to: Taggart v The Workers’ Compensation Board of Queensland ([1983] Qd R 19, 23, 24) and Do Carmo v Ford Excavations Pty Ltd ((1984) 154 CLR 234, 251 per Deane J).'

Connelly J [sic], with whose reasons Shepherdson J agreed, took a similar approach to the construction of the legislation in Sugden v Crawford ([1989] 1 Qd R 683 at 685, 686). His Honour said:

'Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s 30(b) are satisfied without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action. This is the proposition which was approved by Andrews SPJ, as he then was, with the concurrence of Macrossan J in Taggart v Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23, modified as suggested at 24.'

The evidence does not support the conclusion that a reasonable person, appropriately advised, would not have brought an action on the facts in the applicant’s possession prior to the issuing of the certificate. Nor has it been shown that a reasonable person, knowing of the issuing of the certificate and having taken appropriate advice, would regard the certificate as showing that an action on the applicant’s right of action 'would 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'. That is because such a person would have been so minded before the issuing of the certificate. Furthermore, the issuing of the certificate cannot be viewed without regard to the other avenues which the applicant could

have pursued under the Act in order to be in a position to commence proceedings in respect of the subject psychiatric injury." (emphasis added)

The issues on appeal

It is not necessary to set out the text of s 30(1)(b) of the Limitation of Actions Act, as it is sufficiently stated in the excerpt from the reasons of the learned primary judge. It is necessary, however, to refer to the relevant provisions of the Act.

At the relevant time, the material provisions of the Act were in the following terms:

"**253.(1)**The following are the only persons entitled to seek damages for an injury sustained by a worker –

…

(b) the worker, if the worker’s application for compensation was allowed and the injury sustained by the worker has not been assessed for permanent impairment; or

(c) the worker, if the worker has not lodged an application for

compensation for the injury;

…

(3) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.

…

Application of div 4

**261.**This division applies to a claimant who is a person mentioned in section 253(1)(b).

…

**262.(1)**The injury sustained by the claimant must be assessed in the way provided for under chapter 3, part 9.

**(2)**The claimant can not seek damages until WorkCover gives the claimant a notice of assessment and the claimant has complied with the requirements of chapter 3, part 9, division 3.

(3) However, WorkCover may give the claimant a conditional damages certificate if there is an urgent need to bring proceedings for damages and the claimant’s permanent impairment has not been assessed or agreed.

(4) If a conditional certificate is given, the claimant may start proceedings for damages for the injury, but the proceedings are stayed until WorkCover makes the certificate unconditional and the claimant complies with parts 5 and 6.

(5) WorkCover must make the certificate unconditional when the claimant has been assessed and has been given a notice of assessment.

…

Application of div 5

**264.**This division applies to a person mentioned in section 253(1)(c).

...

**265.(1)**The person may seek damages for the injury only if WorkCover gives the person a damages certificate under this section.

…

**(3)**WorkCover may only, and must, give the certificate if -

…

(b)WorkCover decides that the worker has sustained an injury;

…

**(4)**However, WorkCover may give the person a conditional damages certificate if there is an urgent need to bring a proceeding for damages and WorkCover is not satisfied about the matters in subsection (3).

**(5)**If a conditional certificate is given, the person may start a proceeding for damages for the injury, but the proceeding is stayed until WorkCover makes the certificate unconditional and the person complies with parts 5 and 6.

...

**308.(1)**A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 only if –

(a)before the end of the period of limitation –

(i)the claimant gives a notice of claim that is a complying notice of claim; or

…

a court gives leave under section 305; and

(b)the claimant complies with section 302."

The appellant does not challenge the learned primary judge's findings of fact. Rather, the appellant contends that the learned primary judge failed to appreciate that the relevant injury in respect of which the extension of time was sought was the psychological injury occasioned by the work incident on 31 March 1999, and that the appellant was precluded by the Act from making a claim in respect of this injury. The appellant submitted in his written outline of argument that: "It was not at all to the point in the context of the application below whether the Appellant had any other potential causes of action or claims." The appellant argues that, unless he was able to pursue his claim for damages for that aspect of his damage standing alone, it could not be said that he had the means of knowledge that he had a worthwhile claim in respect of that injury. On this basis, it is said that s 31(2) of the Limitation of Actions Act is available to support an extension of time in which to commence an action for damages for his psychological injury.

The appellant's argument focuses upon the particular injury which was the subject of the damages certificate of 28 June 2005. This focus is quite misplaced, but it is only this narrow focus which renders plausible the appellant's argument for an extension of time under s 31(2) of the Limitation of Actions Act. That provision is concerned with the limitation period applicable to the appellant's "right of action". The appellant's right of action for the purposes of s 31(2) of the Limitation of Actions Act arose on 31 March 1999. The appellant had one right of action. It was not divisible into separate components as if each of the various heads of damage in respect of which the appellant might seek damages constituted separate rights of action.

Both the artificiality of the appellant's submission, and the correctness of the learned primary judge's rejection of that submission, are confirmed by the circumstance that the appellant filed no material to explain why his action had been commenced on 26 June 2003 if he did not, at that time, know of facts which he regarded as showing that his right of action had a reasonable prospect of success and of resulting in an award of damages sufficient to justify bringing an action on the right of action.

In truth, once the Industrial Magistrate had decided on 18 September 2002, the appellant was in a position, according to the decision of this Court in Charlton v WorkCover Qld & Ors,⁴ to obtain any necessary extension of time on the basis that he was then aware of a material fact of a decisive character, namely that his injury was one for which damages might be sought by action notwithstanding the restrictions in s 253(1) of the Act.

The appellant could have commenced proceedings earlier on the strength of a conditional damages certificate under s 262(3) of the Act for the damages recoverable for his lower back injury. So far as the appellant's psychological injury is concerned, as the learned primary judge observed, and it is not disputed, there was no impediment posed by the Act to the appellant's pursuit of a claim for damages for his "over time" psychological injury. As his Honour noted, this injury, and the damages recoverable in relation to it, overlapped with any psychological consequences of the incident of 31 March 1999. As the learned primary judge held, an action for the recovery of damages for the lower back injury and the "over time" psychological injury would have been worth bringing so far as the likely quantum of damages was concerned. The appellant did not suggest that there was any reason why it would not have been reasonable for him to bring an action after 18 September 2002. And, of course, there is his unexplained attempt to commence an action in June 2003.

So far as the psychological injury alleged to be consequent upon the incident of 31 March 1999 is concerned, as at 18 September 2002, the appellant could have passed through the gateway in s 253(1)(c) of the Act on the basis that the appellant had not, as at that date, lodged an application for compensation for that psychological injury. The appellant could have sought a conditional damages certificate under s 265(4) of the Act; and he could have sought damages for the psychological injury on the strength of that conditional certificate. When that certificate was made unconditional, the appellant would have been entitled to recover his full entitlement to damages in respect of that injury. One may assume that the certificate would have been made unconditional having regard to the actual issue of the certificate on 28 June 2005. One certainly cannot assume that the certificate would not have been made unconditional.

The appellant did not take any of these steps which were available to him to pursue his right of action in respect of the accident of 31 March 1999. It may be that he has a remedy against those who were advising him in this regard. But that is an irrelevant speculation here. The point for present purposes is that the learned primary judge was clearly correct to hold that the time for bringing an application pursuant to s 31(2) of the Limitation of Actions Act had long expired on 1 June 2006.

The appellant seeks to argue that the decision of this Court in Charlton v WorkCover Qld & Ors supports the argument that there may be separate rights of action for the purposes of s 31(2) of the Limitation of Actions Act in respect of separate injuries segregated for this purpose by the differential operation of the provisions of the Act. Nothing in that decision supports that argument. In that case, Williams JA said:⁵

"Sections 30 and 31 of the Limitation of Actions Act were not drafted with the intricacies of the Act (particularly s 253) in mind. There were not in 1974 many, if any, statutory provisions such as s 253 of the Act. In my view when one considers the provisions of s 253 in the context of s 30 and s 31 of the Limitation of Actions Act it must be a decisive consideration that for the first time a person has become entitled to seek damages for an injury sustained in the course of employment. As already noted, until the decision of the Industrial Magistrate the appellant had no entitlement to commence proceedings seeking damages for an injury allegedly sustained in the course of his employment. The decision of the Industrial Magistrate had the effect of clothing facts already known with a decisive character, namely the consequence that a reasonable person taking appropriate advice on those facts would conclude that it was only then appropriate to commence proceedings."

It is clear that these observations were concerned to identify the time at which a claimant could know that he was entitled to seek damages, through the gateway provisions of s 253 of the Act, for any injury at all, ie whether he could bring proceedings to enforce his right of action. The determination in that case by the Industrial Magistrate was held to be a material fact for the purposes of s 31 of the Limitation of Actions Act because it was the fact that enabled an action to be brought. In the present case, that fact was established on 18 September 2002. Thereafter, the appellant had the means of knowledge that the s 253(1)(b) gateway was open to him. As I have explained, he also had the means of knowledge that the s 253(1)(c) gateway was open to him. The appellant simply made no attempt to avail himself of these gateways.

Section 308 of the Act provided for the possibility of an extension of the limitation period where delay in commencing proceedings in due time may have been occasioned by the need to comply with the procedural requirements of the Act. Section 308 of the Act might have been thought to be an exhaustive statement of the concessions which the legislature was prepared to make to those claimants whose actions were not commenced in time because of the requirements of the Act.

The decision in Charlton v WorkCover Queensland may well be inconsistent with the view that s 308 was an exhaustive statement of the circumstances in which an extension of the limitation period can be obtained to allow proceedings delayed by the need to comply with the Act to be pursued out of time; but, as I have said, that decision does not support the notion that different injuries give rise to separate rights of action for the purposes of s 31(2) of the Limitation of Actions Act. Furthermore, it is clear that there is no other provision of the Act which addressed the relationship between the Act and the Limitation of Actions Act, much less suggested an intention to require that the reference in s 31(2) of the latter Act to a "right of action" is to be understood as if it was a reference to "a right of action in respect of the head of damage in respect of which the applicant seeks to commence an action".

The important point for present purposes is that the Act did not contain any provision which affords support for the view that the concept of "right of action" in the Limitation of Actions Act can be understood as severable into rights of action for different heads of damage in accordance with whether or not the Act permits claimants to recover damages for each head of damage to be pursued. Both the Act and the Limitation of Actions Act assume the existence of rights of action which arise independently of them under the general law. A right of action for damages for negligence arises as soon as injury is suffered. The right of action entitles the injured party to recover compensation for all the injuries so suffered; but there is, under the general law, the operation of which is assumed by the Limitation of Actions Act, only one right of action for all the heads of damage suffered in consequence of the negligence of the defendant.

The appellant also sought to rely upon observations by members of the High Court in Queensland v Stephenson.⁶ In that case, Gummow, Hayne and Crennan JJ said:

"The State points to findings of the awareness by the plaintiffs of a material fact before what was the critical date (the relevant date dictated by the particular circumstances) as sufficient to disqualify the plaintiffs. It is said to be beside the point that there were also findings that the material fact had not assumed a decisive character before the critical date.

The additional provisions made in s 30(1) do not assist the submission of the State. The phrase 'a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant' has elements which suggest both objectively ascertainable criteria and also a response to the existence of those criteria. The objectively ascertainable criteria include those facts and circumstances included by para (a) of s 30(1) in the expression 'the material facts relating to a right of action'. Paragraph (a) states that the material facts relating to the right of action 'include' certain matters. These include the fact of the occurrence of the acts or omissions upon which the right of action is founded, the identity of the tortfeasor, the fact that the breach has caused personal injury, the nature and extent of the personal injury and the extent to which it was caused by the tortious act or omission.

The ascription to material facts of the character of 'decisive' looks to the response of an actor. It is here that the exegesis supplied by para (b) of s 30(1) comes into play. The court is to consider the response of 'a reasonable person' in the manner explained in that paragraph. The particular claimant is to enjoy the advantage conferred by the provision in s 30(1) for the making of an extension order only by satisfaction of criteria which look to the response of a reasonable person. In this way, s 30(1) assists and controls an understanding of the compound conception in s 31(2).

This understanding of the significance of the explanatory provisions in paras (a), (b) and (c) of s 30(1) assists rather than weakens the construction which favours Messrs Stephenson, Reeman and Wrightson. The relevant provisions of ss 30 and 31, read together, indicate what it is that, if not within the means of knowledge of the applicant until a date after the relevant date, provides the necessary step for a successful application for extension.

Read in this way, s 31 addresses the injustice which would arise if a plaintiff were to be met with the immovable barrier raised by the expiration of the limitation period where the plaintiff neither would nor should have sued in time because of the lack of the means of knowledge of a material fact of a decisive character which related to the right of action."

It is apparent that these observations have not the remotest bearing upon the present issue. The High Court was concerned with whether, for the purposes of s 31(2) and s 30(1)(b) of the Limitation of Actions Act, a material fact could be regarded as a material fact of a decisive character before the facts which gave it its decisive character were within the means of knowledge of the injured person. This question was resolved in favour of the applicant for an extension of time. The High Court was in no way concerned with the inter-relationship between the gateway provisions of the Act and s 31(2) of the Limitation of Actions Act. Furthermore, the High Court was in no way concerned to cast doubt on the authority of the decisions in Moriarty v Sunbeam Corporation Limited⁷ and Sugden v Crawford;⁸ and did not do so. As the learned primary judge appreciated, these decisions contain an authoritative exposition of s 30(1)(b) of the Limitation of Actions Act. The authority of these decisions is unaffected by the decision of the High Court in Queensland v Stephenson.

Conclusion and orders

In my respectful opinion, the decision of the learned primary judge was plainly correct.

The appeal should be dismissed.

The appellant should pay the respondent's costs of and incidental to this appeal.

HELMAN J: I agree with the orders proposed by Keane JA and with his reasons.

Footnotes

1. Hintz v WorkCover Qld [2006] QSC 158 at [16] – [40]. ↩

2. Hintz v WorkCover Qld [2006] QSC 158 at [28]. ↩

3. Hintz v WorkCover Qld [2006] QSC 158 at [41] – [49] (citations footnoted in original). ↩

4. [2006] QCA 498. ↩

5. [2006] QCA 498 at [45]. ↩

6. (2006) 80 ALJR 923 at 928 – 929 [23] – [27]. ↩

7. [1988] 2 Qd R 325 at 333. ↩

8. [1989] 1 Qd R 683 at 685, 686. ↩