Jocumsen v Theiss Pty Ltd & Anor [2005] QCA 198

Murphy Schmidt (Brisbane) acting as Town Agents for Taylors Solicitors (Mackay) for the respondent

[1] McPHERSON JA: I agree with the reasons of Muir J for dismissing this appeal with costs. It was reasonably open to the primary judge to reach the conclusion which he did, which was one of fact. It has not been shown that his Honour exercised his discretion wrongly in extending the period of limitation.

[2] WILLIAMS JA: I will not repeat facts and circumstances material to this appeal set out in the reasons for judgment of Muir J, which I have had the advantage of reading.

[3] The incident allegedly giving rise to the cause of action on which the respondent wishes to sue occurred on 17 November 2000. As the respondent had not complied with pre-action procedural steps prescribed by the Motor Accident Insurance Act 1994 (Qld) and had not, in any event, commenced proceedings within the three year limitation period provided for by s 11 of the Limitation of Actions Act 1974 (Qld), by originating application filed 4 August 2004 the following orders were sought:

"1. That the Applicant be given leave pursuant to s 39(5) of the Motor Accident Insurance Act 1994 to bring proceedings against the First Respondent and the Second Respondent despite non-compliance with the requirements of Division 3 of Part 4 of the said Act.

2. That the time limited for the institution of proceedings in respect of the personal injuries sustained by the Applicant in an incident during the course of his employment with the First Respondent on the 17th November 2000 be extended up to and including a date to be fixed by the court."

[4] The learned judge at first instance gave leave pursuant to s 39(5)(c)(ii) of the Motor Accident Insurance Act 1994 (Qld) to bring proceedings despite the non-compliance with the requirements of that Act, extended the limitation period for the institution of proceedings in respect of the personal injuries sustained by the applicant "up to and including the 1st September 2004", and gave further directions with respect to pre-trial matters.

[5] The appeal is only against the extension of time pursuant to the provisions of the Limitations of Actions Act 1974 (Qld) (hereinafter referred to as "the Act").

[6] Two questions arise for determination on the hearing of the appeal. Firstly, whether the material fact relied on by the respondent (advice from Dr Futter on or about 19 July 2004 that he would have to cease employment operating heavy plant in order to experience a reduction in his symptomatology) was a material fact of a decisive character for purposes of s 30(1)(b) and s 31(2) of the Act. And secondly, whether that fact was within the respondent's means of knowledge within the meaning of s 30(1)(c) of the Act prior to 1 September 2003.

[7] Up until the hearing of the application on 30 August 2004 the respondent had continued to work operating heavy machinery primarily in the mining industry. He had between the date of the incident and the date of the hearing changed jobs on a number of occasions and some of those changes were due to the stresses he was experiencing after the incident. There were brief periods throughout that time when he was not working; some were due to his medical condition. But until he received the advice from Dr Futter that it was unlikely he could continue with that employment he did not realise that his future earning capacity was likely to be significantly diminished.

[8] I agree with Muir J that the passages he cites from Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, and the cases referred to in those quotations, support the conclusion reached by the learned judge at first instance in this case that the matter relied on by the respondent was a material fact of a decisive character for purposes of s 31 of the Act.

[9] Since the decision in Castlemaine Perkins Ltd v McPhee [1979] Qd R 469, especially at 472-3, it has been recognised that, in applying what is now s 30(1)(c) of the Act, the test of reasonableness to be applied is an objective one relevant to a person in the position of the claimant with his background and understanding. As Keane JA said in NF v State of Queensland [2005] QCA 110 at [29]: "Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from that actual person in the circumstances of the applicant." That decision of this court clearly confirms the approach which must be taken in circumstances such as exist here.

[10] I agree with Muir J that the passage he quotes from Healy v Femdale Pty Ltd [1993] QCA 210 is very apposite. The conclusion reached by the learned judge at first instance that the material fact was not within the respondent's means of knowledge prior to 1 September 2003 was amply supported by the evidence.

[11] I agree with the reasons of Muir J. The appeal should be dismissed with costs.

[12] MUIR J: The applicant on an originating application succeeded in obtaining an order pursuant to s 31 of the Limitation of Actions Act 1974 extending the period of limitation to 1 September 2004. The respondent to the application appeals against that decision.

[13] The respondent was employed at the Burton Downs Coalmine as a plant operator when, on 17 November 2000, he reversed his 120 tonne bulldozer onto a Toyota troop carrier. The front of the troop carrier was badly crushed and the respondent's immediate reaction was that its driver had been killed. That proved not to be the case, but the respondent was psychologically affected by the incident. On 18 December 2000, he consulted a general practitioner, Dr Wohlfahrt, who made a diagnosis of post traumatic stress disorder. Dr Wohlfahrt asked him whether the mine had any counselling psychologists and, receiving an affirmative answer, gave him a letter of referral. He did not make use of it, believing that he could cope with his problems and because of concerns about what his workmates might think when they became aware that he was receiving counselling.

The respondent's work history after the accident

[14] The respondent continued to work at the Burton Downs Mine for about another 19 months without taking any significant time off work. He continued however to think about the accident and to experience nightmares. That led him to conclude that it would be preferable to obtain employment elsewhere. On 27 June 2002 he commenced work at the Coppabella Mine about 100 kilometres from Burton Downs but found that many of his fellow workers, and other locals who were aware of his accident, raised it with him. That induced stress and he left after about eight weeks. Other reasons for his departure were concern about safety matters and that he did not particularly like the job.

[15] He then had a few days off work before commencing work at the German Creek Mine where he remained for about five weeks. He found his employer's work roster unsatisfactory and left to take up employment at the Gregory Mine. In cross-examination he admitted that stress could have had "a bit to do" with his departure. He was employed at the Gregory Mine from 7 October 2002 to 18 January 2003. Whilst so employed he was experiencing nightmares and "flash backs" and continued to have difficulty sleeping.

[16] The respondent was hospitalised with migraine on two occasions in December 2002. His contract concluded about two weeks after he was admitted to hospital for the second time and rather than wait for re-employment, he decided that a complete change of scene may be desirable. With that in mind, he obtained a job as a plant operator in the Hunter Valley and remained there until about 30 September 2003. In cross-examination the respondent said that whilst working in the Hunter Valley he experienced anxiety attacks, "hard breathing" and chest pains when he got into a stressful situation with his work. He also continued to have trouble sleeping and consulted a medical practitioner about that.

[17] At the beginning of October he returned to Mackay and secured employment at the Newlands Mine where, at the time of the hearing of his application, he was continuing to work.

[18] On 26 July 2001 the respondent saw Dr Wohlfart complaining of breathing troubles at work. Dr Wohlfart diagnosed those difficulties as stemming from anxiety resulting from the accident.

[19] In December 2002 the respondent experienced severe migraine headaches and collapsed at work. He was admitted to the Emerald Hospital on 4 December and discharged two days later. On 6 December he was admitted to the Mackay Base Hospital suffering from severe headaches and nausea and was discharged on 8 December. He was readmitted again suffering from the same symptoms and discharged on 14 December. Hospital notes of 14 December query whether the diagnosis was a "tension headache" or a headache due to analgesic withdrawal.

[20] On 16 December 2002 the respondent consulted Dr Wohlfart about his migraines.

[21] By a letter dated 8 December 2003, Dr Hall, the respondent's general practitioner, referred him to a Mackay psychiatrist, Dr Futter. Dr Hall noted in the referral letter that the respondent appeared to be suffering from post traumatic stress disorder as a result of his accident with the troop carrier. She observed:

"Since then he's been feeling dreadful, difficulty sleeping, gets panicky especially at 3 am, has to get up and get out of his room at the mine-site, rings his wife to calm himself down. ... he's getting quite irritable at home and work. Everything is getting worse and he's decided to see (sic) help."

[22] In a letter of 6 January 2004 to Dr Futter, Dr Hall informed Dr Futter of the medicine she was prescribing and asked some questions concerning psychiatric or psychological therapy. She wrote again to Dr Futter on 7 June 2004 observing that "the psychotherapy that Lance is getting is also benefiting him". It is implicit in the letter that she regarded the medication prescribed by him as having had a beneficial effect. The letter also stated:

"Globally, Lance is less troubled by the panic attacks but his general level of anxiety is still high. There has been some improvement in Lance's Depressive Symptoms and the PTSD symptoms. At this point Lance's recovery is still a work in progress. I think a long period between the initial accident and the concerted effort to treat his symptoms means that his progress and recovery will be slow."

[23] In a letter to Dr Hall dated 18 February 2004, Dr Futter reported that the respondent had a severe major depressive disorder with severe post traumatic stress disorder and also suffered "panic attacks that are situation specific". He recommended that the respondent see a private psychologist with a special interest in post traumatic stress disorder.

[24] In a letter of 5 July 2004 to Dr Futter, Dr Hall advised that the respondent "does seem a little better than when I first saw him back in December ...".

[25] Dr Futter wrote to Dr Hall on 12 July 2004, noting that although the respondent had "definitely improved" he still had disabling symptoms of post traumatic stress disorder and depression. Dr Futter observed that the respondent's anxiety levels are high and that he "ruminates continuously about the accident". He said that the respondent was considering a change of employment "which will probably do him good".

[26] On 19 July 2004 Dr Futter reported to the respondent's solicitors that:

(a) The respondent was suffering from severe cases of post traumatic stress disorder, major depressive disorder and generalised anxiety disorder with superimposed panic attacks;

(b) Those conditions were the direct result of the accident.

(c) The psychiatric symptomatology is of such severity that it affects every moment of the respondent's waking life and gives him bad dreams;

(d) The respondent initially presumed his symptomatology to be a normal reaction but the adverse affects of his conditions on his quality of life and ability to function have taken such a severe toll that he consulted his general practitioner in December 2003;

(e) The respondent "was very motivated to be treated and to get better" and was not contemplating legal action when first seen by Dr Futter;

(f) Dr Futter's treatment has not brought about much change in the respondent's clinical condition;

(g) In the last three or four weeks Dr Futter and the respondent discussed whether the respondent should consider leaving his present job in the mines.

"Because of the severity of Mr Jocumsen's psychiatric condition it is my opinion that he would have to leave his present work situation in order to experience a reduction in his symptomatology. I also believe that as well as medication and cognitive behavioural therapy, Mr Jocumsen would benefit from a form of therapy call EMDR which would be available from a psychologist in Mackay named Ms Tracey Moussett. Probably the most important factor however would be getting Mr Jocumsen away from heavy dangerous machinery."

(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.

(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court-

(a) that 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; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a 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 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

(3) This section applies to an action whether or not the period of limitation for the action has expired-

(b) before an application is made under this section in respect of the right of action."

[29] The nature of "material facts" relating to a right of action is explained in s 30 of the Act which provides:

(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.

'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."

[30] The critical passage in the learned primary judge's reasons, for present purposes, is:

"The only issue in this matter is whether having taken 'appropriate advice' the applicant would have known that it was unlikely he could continue in the mining industry as an operator of heavy machinery. That knowledge is the decisive fact on which the applicant relies to extend the limitation period. In this case the question is whether, having taken such advice which would have included medical advice, that fact could have been ascertained prior to the end of August 2003."

[31] It was argued on behalf of the appellant that there was in fact another issue at first instance and it is convenient to dispose of it before addressing the issue identified by the primary judge.

Was there a material fact of a decisive character for the purposes of s 31 of the Act?

[32] The appellant's argument is grounded in the reasoning in the following passage from the reasons of Derrington J in Moriarty v Sunbeam Corporation Limited:[1]

"If prior to the respondent's learning that fact, there was sufficient material facts to be of a decisive nature which would have led a reasonable man appropriately advised to regard those facts as showing there was a good cause of action and that in his own interests the respondent ought to have brought proceedings, then the newly discovered fact, although it might be described as material, could not be said to be of a decisive nature."

[33] Another frequently cited test[2] of "a material fact of a decisive character" is that propounded by Macrossan J in Moriarty v Sunbeam Corporation Limited:[3]

"In cases like the present, an applicant for extension discharges his onus not merely by showing that he has learned some new fact which bears upon the nature of 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 learned 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. This is what the application of the test of decisiveness under s 30(b) comes down to: Taggart v The Worker's Compensation Board of Queensland [1983] 2 Qd R 19, 23, 24 and Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234, 251 per Deane J".

[34] It is submitted on behalf of the appellant that if, by 18 January 2003 at the latest, the respondent had sought appropriate advice from a competent solicitor he would have been advised that he had a right of action with reasonable prospects of success resulting in an award sufficient to justify the bringing of the action. It is implicit, if not explicit in the argument, that the discovery of any further fact which might serve to enhance the quantum of damages recoverable by the applicant cannot be a material fact of a decisive character.

[35] It is pointed out that the respondent was then suffering from "considerable emotional stress" and had so suffered for a lengthy period. The award for pain and suffering, according to the argument, in the event of judgment for the respondent in the proceedings would have been at least $30,000.[4]

[36] The facts to which the appellant points in support of its argument may well show that the respondent, properly advised, had reasonable prospects of succeeding on a claim in the Magistrates Court. But for the appellant's argument to succeed, it is necessary that a reasonable person knowing the facts, to which the appellant points, after taking appropriate advice would have regarded those facts as "showing that an action on the right of action would ... have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing" of the action.[5]

[37] Mr Taylor, a partner in the firm of solicitors acting for the respondent, swore that he routinely advised clients working in the mining industry that personal injuries claims under $60,000 may not be worth pursuing. Amongst other considerations he identified a concern by such clients that the bringing of a claim might prejudice "their existing employment and affect their ability of securing re-employment in the mining industry". There is no reason to believe that this advice would not have been similar to that which would have been given to the respondent by other solicitors exercising due care and skill had they been consulted by him. Any such solicitor would have entertained doubt about the wisdom of commencing such proceedings, having regard to the limited potential return to the respondent, litigation induced stresses, the costs of the proceedings and the possibility of failure.

[38] The material fact on which the respondent relies, if established on trial, has the potential to increase substantially an award of future economic loss thereby making litigation a reasonable option. The fact relied on was therefore "a material fact of a decisive character" within the meaning of s 31(2).[6]

Was the material fact of a decisive character within the respondent's means of knowledge prior to 1 September 2003?

[39] The appellant asserts that the respondent was aware of the following:

(a) that he suffered from post traumatic stress disorder;

(c) that his long term ability to work with heavy plant in a mine was in doubt as he had changed his employment on four occasions;

(d) his hospitalisation in December 2002 and the symptoms relating thereto;

(e) that he had since November 2000 suffered from nightmares, flashbacks, lack of sleep and that the effects of the injury had severely affected his marriage;

(f) that his wife and his two daughters had been advising him to see a doctor and have treatment with respect to his condition.

[40] The appellant's argument made reference to the reasons of Thomas JA in Pizer v Ansett Australia Limited[7] in which his Honour said:

"The plaintiff had the onus of showing that a material fact of a decisive character relating to the right of action was not within her means of knowledge until some time after 24 April 1995. The material fact has been expressed in different ways and may be taken as the likelihood that she would be unable to cope with her employment as a result of the condition, or that the condition was one that was likely to produce serious economic loss. It may be accepted that she did not know that fact before the specified date. However she must also show that it was not within the means of knowledge of a reasonable person knowing what she knew. That issue is to be determined on the footing that such a person had before that time taken all reasonable steps to ascertain it."

[41] By reference to these principles, it was contended that the material fact was within the respondent's means of knowledge. In particular, it was argued that a reasonable person in the position of the respondent would have accepted Dr Wohlfart's December 2000 advice and received counselling. It is contended that he would have taken other medical advice about his condition well prior to March 2003 and that such advice would have acquainted him with the "possibility of having to leave the mining industry".

[42] The primary judge proceeded to answer the question under consideration by reference to the test propounded in Healy v Femdale Pty Ltd,[8] where it was said in the judgment of the court:

"The question then is whether it can be said that in the circumstances the plaintiff took all reasonable steps to ascertain the fact that her injury was serious enough to justify the bringing of an action. She did not ask her doctor questions of this kind. The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one's health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take "appropriate advice" or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so. A question of fact is involved here, and in the present matter the chamber Judge before whom the plaintiff appeared and was cross-examined has some advantage." (emphasis added)

[43] His Honour then reviewed the respondent's work history and concluded:

"In my view it is not unreasonable for a person in the position of the applicant to endeavour to resolve the psychiatric consequences of such an incident by themselves in the first instance. A reasonable person with post-traumatic stress disorder would seem almost certain to do so."

[44] His Honour's conclusion is supported by an unchallenged opinion of Dr Futter that:

"With respect to the time delay before the patient actually sought treatment, two of the diagnostic criteria of post traumatic stress disorder are:

1. Efforts to avoid thoughts, feelings or conversations associated with the trauma.

2. Efforts to avoid activities, places or people that arouse recollections of the trauma.

This would probably account for his delay in seeking treatment."

[45] The test of reasonableness is an objective one to be applied to a person with the respondent's background and circumstances.[9] Consequently regard must be had to the respondent's psychiatric disorder and I will return to that consideration shortly.

[46] Although the respondent had a significant number of job changes in a relatively brief period, one of those changes was connected with the expiry of his contract and another was precipitated by dissatisfaction with the job. He went to the Hunter Valley in order to give himself a "change of scene" and was employed there for about nine months. He experienced anxiety attacks at work when he found himself in stressful situations and had trouble sleeping. But there is no suggestion that he was then or at any other time (with the exception of a brief period of hospitalisation) unable to continue working satisfactorily.

[47] Although the respondent changed employment from time to time he was out of work for an insignificant period. The only substantial time taken off work was the result of his migraine attacks in December 2002 but the evidence does not establish any direct relationship between those attacks and the respondent's psychiatric condition. Nor should the respondent have deduced that such attacks were caused by his condition given that he had a prior history of migraine attacks.

[48] Moreover, the respondent's condition did not deteriorate inexorably or continuously. Whilst working in the Hunter Valley he found that the stress "was a lot better" and Dr Hall's correspondence with Dr Futter suggested some basis for optimism.

[49] The respondent elected to continue with his well paid employment despite his disability and, generally until after leaving the Hunter Valley, managed to cope without recourse to further medical assistance. He thought, not unreasonably, that given time he would recover from his disability. The medical evidence before the primary judge does not reveal the respondent's understanding or his self help approach to be unreasonable.

[50] The course taken by Dr Hall and Dr Futter was to monitor, over time, the effect of prescribed medication and therapy. Prior to Dr Futter's advice in July 2004, it had not been suggested to the respondent by any medical practitioner that his condition may not improve unless he ceased to operate heavy machinery. When Dr Futter came to give his final advice he was in a position to do so because of the history of the respondent's symptoms against the background of his post-accident work history. As the primary judge pointed out:

"Dr Futter took some six months to reach this conclusion [i.e. that the respondent would need to change the nature of his employment] and then because of the lack of progress with counselling and medication."

[51] It is reasonable to conclude also that Dr Futter's opinion was aided, to a degree, by his becoming aware of the respondent's awakening realisation that he might not be able to continue to cope with his symptoms if he remained in his existing employment.

[52] Additionally, there is no evidence to support the conclusion that if the respondent had availed himself of counselling, as advised by Dr Wohlfart in 2000, he would have concluded or been advised any sooner that it was unlikely that he could continue to operate heavy machinery.

[53] The question for the primary judge was a question of fact. It is not suggested that, in relation to the determination of the question, his Honour made any mistake of law and, as the foregoing discussion shows, the conclusion reached by him that the material fact was not within the respondent's means of knowledge prior to 1 September 2003 was amply supported by the evidence.

[1] [1988] 2 Qd R 325 at 336.

[2] See eg, Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306 (FC) and Berg v Kruger Enterprises [1990] 2 Qd R 301.

[3] [1988] 2 Qd R 325 at 333.

[4] De Carlo v Dubois [2003] QSC 204.

[6] Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325

[7] [1998] QCA 298.

[8] [1993] QCA 210.

[9] Castlemaine Perkins Limited v McPhee [1979] Qd R 469, 472-3.