Ipswich City Council v Smith [1997] QCA 263

The way to make sense of this is indicated in Moriarty v. Sunbeam Corporation Limited [1988] 2 Qd.R. 325:

"[The applicant] 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 own interests pursue it." per Macrossan J, as his Honour then was, at 333.

See also per Derrington J, at 336 (foot) and 337, and the passage from Peabody Resources Limited v. Norton (Appeal No. 200 of 1994, judgment 16 June 1995) cited by Davies JA. The provisions are read as requiring that the newly discovered fact is such as (to put it roughly) to make the difference between not having a worthwhile cause of action and having one.

I agree with Davies JA that on the construction which has been given to the provisions just discussed (with which construction I respectfully agree) the orders his Honour proposes should be made.

This matter came before the Court as an application for leave to appeal against an order extending the period of limitation under s.31 of the Limitation of Actions Act 1974. However the parties agreed that, if this Court were of the view that leave should be granted, it should proceed to decide the appeal without further argument. The factual circumstances were as follows.

The respondent suffered personal injuries, in respect of which he now sues, in the course of his employment as a clerk with the applicant on 10 November 1992. The order in respect of which leave to appeal is sought was that the period of limitation for the respondent's action in respect of those injuries be extended so that it expired on 29 January 1996. That is presumably the day on which his action was instituted.

The personal injuries incurred by the respondent on 10 November 1992 were to his back. They occurred whilst he was lifting soft drinks from the boot of a car. He had previously had some back trouble at school, in 1991 whilst playing touch football and earlier in 1992. On this occasion, however, his condition was diagnosed as a prolapsed disc for which in December 1992 he underwent a laminectomy at L5 and a partial laminectomy at L4. He gradually recuperated and was given a full clearance to work in about March 1993. He continued to work, he said, with "niggling problems with my back" until February 1994 and he was then symptom free until towards the end of 1995 when he again started getting back symptoms. In December 1995 he was once again incapacitated after assisting to lift a table at a birthday party. He consulted Dr. Atkinson who advised him that the symptoms which he was then suffering were an aggravation of his old injury and that he should reopen his workers' compensation claim. He thought then that he could not go back to the work he had been doing at that time which consisted mainly of office duties with some other light duties. When he saw Dr. Atkinson on 4 January 1996 the doctor recommended that he have a lumbar myelogram and a CT scan and told him that he would probably need another operation. This advice, the respondent said, really frightened him. He had not thought that his condition was as bad as that advice apparently indicated. He was extremely concerned, he said, that he might not be able to do any work at all, even clerical work requiring a good deal of prolonged sitting. His occupations to that time had involved mainly clerical work.

The respondent apparently first consulted solicitors about his condition in late 1992. It is plain that he was originally given advice which encouraged him to bring legal proceedings. However his later advice, from the same firm of solicitors, was discouraging as to his prospects of success. This was in 1994 and it was then that he decided to abandon any legal claim against the applicant and he told his solicitors of this. He says he was not told of any limitation period. It does not appear what caused him to later change his mind. It does appear that this occurred shortly after he received the advice to which I have referred from Dr. Atkinson, the advice which he said frightened him, but he does not say that that persuaded him to sue.

The applicant cannot succeed in obtaining leave to appeal unless some important question of law or justice is involved: District Courts Act 1967 s.118(3). It was submitted by Mr. Keane Q.C. who with Mr. Hoare appeared for the applicant that there was a question of law involved and that that question was whether it was sufficient, in order to show that a material fact of a decisive character was not within the means of knowledge of an applicant, that the applicant was not aware of the nature and extent of his injury. It is difficult to see that that question is an important question of law. What an applicant must show, relevantly, is that a material fact of a decisive character relating to the right of action was not within his means of knowledge until a specified date. Two aspects of this obligation are relevant here. The first of these is that it is not sufficient for the applicant to show that he did not know of the fact before the specified date. He must show that it was not within his means of knowledge; that is, that so far as the fact was capable of being ascertained by him, he had before that time taken all reasonable steps to ascertain it. See s.30(d)(ii). The second is that the test is not concerned with just any fact or even just any material fact. It must be a material fact of a decisive character relating to the right of action. And such facts are only of a decisive character if a reasonable man knowing them and having taken appropriate advice would regard the facts as showing that a right of action would have reasonable prospects of success and of resulting in an award of damages sufficient to justify the bringing of the action and that the person whose means of knowledge is in question ought in his own interest bring the action.

Consequently it is clear enough that lack of awareness of the nature and extent of the injury would not satisfy either of these tests. It would not satisfy the first because lack of means of knowledge must be shown. And it would not satisfy the second because mere lack of means of knowledge of the nature and extent of an injury would not be sufficient to make that nature and extent of a decisive character. Consequently if his Honour thought it sufficient that the applicant was not aware of the nature and extent of his injury he was plainly wrong. But equally clearly that does not involve an important question of law. His Honour simply misunderstood what the statutory tests provided.

The test for decisive character of material facts, stated in s.30(b) and which I have set out above, was the subject of decisions of the Full Court, in relation to nature and extent of personal injury, in Taggart v. Workers' Compensation Board of Queensland [1983] 2 Qd.R. 19 and Moriarty v. Sunbeam Corporation Limited [1988] 2 Qd.R. 325. Adopting the construction adopted in those cases this Court said in Peabody Resources Limited v. Norton (Appeal No. 200 of 1994, judgment delivered 16 June 1995) that s.30(b):

"... requires the respondent to show that, without the fact said to be decisive, a reasonable person would have thought, even with the benefit of appropriate advice, that the prospects of an award of damages did not justify bringing an action or that, in his own interest, taking his circumstances into account, the respondent acted reasonably in not bringing it."

The Court went on to say that generally a material fact which merely increases an applicant's damages is unlikely to be decisive. Thus the questions will generally be whether without the fact said to be decisive it would have been reasonable not to sue and whether that fact made it reasonable to sue.

In the present case the learned primary Judge did not advert either to the effect which the additional facts, the information conveyed by Dr. Atkinson, had on the respondent or to the decisiveness test under s.30(b), the effect that knowledge of them ought to have had on a reasonable man. Moreover his reference to Moriarty and Taggart, the leading cases on this test, is difficult to understand. His Honour said:

"It is correct, in my opinion, to have regard to the total extent of the plaintiff's injury (see Harris v. Commercial Minerals Limited [1996] HCA 49; (1996) 186 C.L.R. 1). Counsel for the defendant submitted that the present case was distinguishable from Harris but I am unable to agree with that submission.

Counsel for the plaintiff submitted that Harris had impliedly overruled such Queensland cases as Moriarty v. Sunbeam Corporation Limited [1988] 2 Queensland Reports 325 and Taggart v. Workers' Compensation Board of Queensland [1983] 2 Queensland Reports 19. That, I think, is for the Court of Appeal to address when the matter arises for that court's determination but I have considered myself bound by Harris in the course of the present application."

Harris is an appeal from the Supreme Court of New South Wales and involves the construction of the Limitation Act 1969 (N.S.W.), the provisions of which are materially different from those in the Queensland Act. Because of those differences the decision has no relevance to either of the questions of construction which should have concerned his Honour here, means of knowledge and decisiveness of the facts said to be material. Consequently there was nothing in Harris by which his Honour could have considered himself bound in the course of the application before him.

I have already said that it is unclear why his Honour did not address the decisiveness test stated in s.30(b) and explained in Moriarty and Taggart but the passage which I have quoted from his Honour's reasons indicates that it may have been that his Honour thought that for some reason Harris made satisfaction of that test unnecessary. Because that view is plainly wrong it is difficult to see how it could give rise to an important question of law. It is unlikely that any future court would think that Harris said anything of relevance on these questions. Indeed counsel for the respondent before this Court rightly conceded its irrelevance.

However, whatever his Honour's reason was for failing to consider s.30(b), his Honour appears to have failed entirely to consider it in circumstances in which, had he done so, he would have reached a contrary result. Moreover although it cannot be doubted that Harris is irrelevant to the test under s.30(b) his Honour's decision may cast some doubt on the continuing authority of Moriarty and Taggart. Accordingly I would conclude that there is an important question of justice involved and I would grant the application and grant an extension of time within which to file the Notice of Appeal until 5 September 1997.

It is plain that, had his Honour considered s.30(b) he would have reached a contrary result. Well before any date upon which the respondent could now rely it was within his means of knowledge that his injuries in November 1992, now relied on, included a serious back injury requiring surgery which thereafter produced continuing though intermittent symptoms. The events of December 1995 and January 1996 revealed to him no more than that his condition was worse than he had originally thought. There is nothing to indicate that they revealed a fact of a decisive character relating to the right of action. I would therefore allow the appeal and refuse the application with costs. The appellant should have its costs also of this application and appeal.

The material considerations are set out by Davies JA with whose reasons I am in general agreement.

The newly discovered material - the information conveyed by Dr Atkinson - related exclusively to the quantum of the likely damages. This information indicated that, if liability were established, the respondent could expect to receive appreciably greater compensation than he appears to have expected, or might reasonably have anticipated, when in 1994, with knowledge that he had sustained a serious back injury, he instructed his solicitors not to institute proceedings. However, there is no adequate foundation for a conclusion that the new information so far enlarged the prospective compensation as to justify litigation which was not justified by those facts which were previously known to the respondent and which the respondent ought in his own interests to have pursued.