_Kambarbakis v G & L Scaffold Contracting Pty Ltd_

Judgment (74 paragraphs)

[1]

[1] MULLINS J: By originating application filed on 18 July 2007 the applicant applies, pursuant to s 31(2) of the Limitation of Actions Act 1974 (the Act), for an order that the period of limitation for the applicant's cause of action against the respondent for damages for personal injuries arising as a result of an incident that occurred at Kawana Island (the site) on 12 December 2003 be extended, so that it expires on 18 May 2008. If the applicant is successful in obtaining such an extension, he also seeks an order pursuant to s 43 of the Personal Injuries Proceedings Act 2002 that he have leave, despite non-compliance with the requirements of Part 1 of that Act, to commence a proceeding in respect of his claim against the respondent.

[2]

[2] The applicant swore an affidavit in support of his application. The respondent relied on the affidavit of its solicitor which exhibited correspondence between the parties' solicitors and records obtained by the respondent's solicitors from the two medical centres at which the applicant had been a patient during the relevant period and records relating to the applicant obtained from the Nambour Hospital and Queensland Diagnostic Imaging. The respondent also relied on an affidavit sworn by its director, Mr Gary Warren. At the hearing of the application oral evidence was given by the applicant and Mr Warren.

[3]

[3] The applicant is 27 years old and is a qualified solid plasterer. At the time of the incident the applicant carried on plastering in partnership with Mr Trevor Salisbury (the partnership).

[4]

[4] In September 2003, the respondent supplied and erected scaffolding on the site to facilitate construction of a two storey house. On 12 December 2003 the applicant arrived at the site to undertake rendering work on the house. The applicant climbed the ladder of the scaffolding to inspect the upper level of the house. The applicant claims that as he walked along the platform of the scaffolding, it gave way, and he fell about five metres to the ground.

[5]

[5] It appears to be common ground between the parties that the scaffolding gave way due to the absence of a tie-bar (which the applicant refers to as a spreader bar) holding in place the planks that formed the platform and the planks moved and collapsed under the applicant's weight. The parties are in contest about whether a tie-bar had been installed before the incident and, if so, about how the tie-bar came to be removed from the scaffolding.

[6]

[6] Mr Warren was telephoned by the builder of the house after the incident who told him about the incident. He sent two employees out to the site to inspect and take photographs of the scaffolding. They reported to Mr Warren on the view they formed as to how the incident occurred and reinstated the scaffolding to a safe condition. No other investigations were carried out by the respondent at that time. Mr Warren states that following the incident no complaint was made to the respondent about the scaffolding by the builder, the applicant or anyone else.

[7]

[7] On the day of the incident the applicant attended a general medical practice at Maroochydore, where he was examined by Dr Michael Ryan. Dr Ryan reported that the applicant had a sore neck, a laceration to his left rib area, tender ribs and left knee pain. Dr Ryan referred the applicant for an x-ray of his chest and left ribs which was done. The applicant recalls that Dr Ryan suggested that he have physiotherapy, but the applicant does not remember having physiotherapy. He recalls that the partnership had "a good amount of work on" and he would not have wanted to take time off.

[8]

[8] On 19 January 2004 the applicant complained to Dr Ryan of headaches from the neck injury he suffered in the fall from the scaffolding. The applicant was referred for an x-ray of his cervical spine, but the material does not indicate whether or not that was carried out and, if so, what was the result of it.

[9]

[9] The applicant consulted Dr Ryan again on 7 December 2004 about on-going neck pain and headaches. An x-ray showed that the applicant has curvature of the cervical spine and the report stated:

[10]

"There is straightening of the normal cervical lordosis with mild kyphosis at the C4/5 level. There is narrowing of the C6/7 intervertebral disc.

[11]

There is some degenerative change of the uncovertebral osteophyte at the C6/7 level on the left with horizontal orientation of the osteophyte. There is a lucency projected over the inferior articulating process of C2. Its exact nature is not certain. Correlation with CT scan would be useful. Small separate opacity is seen projected over the superior aspect of the intervertebral foramen on the right. Again, its nature is not certain."

[12]

[10] The applicant describes that he periodically used his mother's Panadeine Forte to reduce his pain level and that allowed him to continue to work. The applicant states that he attempted to continue working after the incident, but there were a number of occasions on which he could not work or could not work to his full capacity and that he would take days or part days off work. He did not suffer any financial loss, as he and his partner were splitting the profits equally, even though his partner did more work than him. The applicant states that he felt awkward about his partner working harder than him.

[13]

[11] The applicant states that he continued to have symptoms throughout 2005 and 2006 that he describes as "pins and needles" in his hands, numbness and "screaming" headaches. The applicant describes having sleeping problems and being prescribed sleeping tablets and anti-depressants as a result of the pain and the way that was affecting him.

[14]

[12] A CT of the applicant's cervical spine was performed on 25 January 2005 at the request of Dr Ryan who had examined the applicant on 13 January 2005 and noted "Paraesthesia in the distribution of the right C7 nerve root." The report on the CT scan indicated that there were no abnormal findings.

[15]

[13] On 7 February 2005 Dr Ryan referred the applicant to Dr Clarke, an orthopaedic surgeon, for review. Dr Ryan described the applicant in his referral letter as presenting with chronic neck pain and headaches and referred to the fall from the scaffolding. The material that is relied on for this application does not disclose what advice that Dr Ryan gave the applicant about his injury at the time of this referral or the outcome of any examination by Dr Clarke. The applicant states that he "can't remember" going to Dr Clarke.

[16]

[14] On several occasions throughout 2005 the applicant sought medical treatment for ailments unrelated to his fall.

[17]

[15] On one occasion the applicant was treated with Bowen therapy, but found it did not give him relief from his symptoms and was expensive. On 14 June 2006 the applicant had massage therapy at the suggestion of his mother for his ongoing neck pain and for sinus/headache relief. According to the therapist, the applicant stated at the time of his treatment that he felt that some of his pain and discomfort in his neck and shoulders was due to his fall from the scaffolding.

[18]

[16] On 9 September 2006 the applicant was involved in a minor motor vehicle accident. He attended a medical centre the following day and was referred for an x-ray of his cervical spine. The x-ray did not detect any bone or joint abnormalities. Some restriction in neck extension was identified that was presumed to be due to muscle spasm. On 14 September 2006 the applicant saw Dr Ryan complaining of neck pain. Dr Ryan viewed the x-ray, noted the diagnosis of spasm and treated the applicant for a whiplash injury.

[19]

[17] In the statutory declaration that the applicant made in support of his notice of claim in Form 1 under the Personal Injuries Proceedings Act 2002 the applicant stated that "By the end of 2006, I was having such significant problems that I began to think that I simply couldn't continue to work in the business." The applicant conceded during cross-examination that, by the end of 2006, his symptoms had continued for three years (but at times worse than at other times) and were affecting his "everyday life".

[20]

[18] On 29 and 31 January 2007 the applicant sought medical treatment for tiredness and anxiety and depression.

[21]

[19] On 16 March 2007 the applicant presented to the Nambour Hospital complaining of head and facial injuries following an assault.

[22]

[20] The applicant states that his symptoms worsened in 2007. At some time in the first half of 2007 the applicant had a talk with his girlfriend about his ongoing symptoms and she told him that she thought there was a three year time limit in which to make a claim for personal injuries. The applicant states that he decided that he would raise it with his general medical practitioner when he next saw him.

[23]

[21] On 18 May 2007 the applicant saw Dr Ryan and complained of chronic neck pain. The applicant was referred for x-rays and a CT scan of his cervical spine. The applicant raised his concern over his ability to continue in his current employment. Dr Ryan considered that the applicant's chronic injuries were from the fall from the scaffolding in 2003 and the severity of his symptoms were such that Dr Ryan recommended he change his occupation.

[24]

[22] On 20 May 2007 the applicant was taken to the Nambour Hospital by ambulance following an altercation with security officers at a nightclub. The applicant was treated for a suspected spinal injury and diagnosed with compression fractures of the T12 and L1 vertebral bodies. A CT scan of the cervical spine revealed what were described as "old fractures" to the superior tips of the superior articular processes of C4 and C5 on the right side and C4 of the left side.

[25]

[23] The applicant consulted his current solicitors on 21 May 2007 about the possibility of making a claim for damages arising from the incident. The applicant states in his affidavit that it was only when he realised that he was not going to be able to continue to work that he decided to seek legal advice.

[26]

[24] On 28 May 2007 the applicant again consulted with Dr Ryan who referred the applicant to orthopaedic surgeon, Dr Day. On examination on 1 June 2007 Dr Day noted that the applicant had a loss of the normal cervical lordosis and a very poor range of movement of his cervical spine. After reviewing the report of the CT scan of the applicant's cervical spine done on 20 May 2007, Dr Day considered that the applicant may benefit from facet joint injections at the C3/4 and C4/5 levels. The applicant had further consultations with Dr Ryan for his neck pain on 18 and 26 June and 10 July 2007.

[27]

[25] In or about July 2007, the applicant ended the partnership and is currently unemployed. The applicant states in his statutory declaration made on 24 May 2007:

[28]

"I decided that I needed to pursue a claim because my injury has caused economic loss in our business. We have not been able to expand as I would have liked and I have had to take a lot of time off work. We have also had to decline work that would otherwise have been available because I am physically not up to working the hours required to get the work done."

[29]

[26] The applicant considers that he will need to find lighter work than his trade of plastering. He describes himself as "below average" in terms of academic ability and not suited to any clerical occupation.

[30]

[27] Without an extension of the limitation period, the applicant's right to commence an action for negligence against the respondent was barred by the Act as from 12 December 2006.

[31]

(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.

[32]

(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 -

[33]

(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

[34]

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

[35]

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."

[36]

(1) For the purposes of this section and sections 31, 32, 33 and 34 -

[37]

(a) the material facts relating to a right of action include the following -

[38]

(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

[39]

(ii) the identity of the person against whom the right of action lies;

[40]

(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

[41]

(iv) the nature and extent of the personal injury so caused;

[42]

(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

[43]

(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 -

[44]

(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

[45]

(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;

[46]

[47]

(i) the person does not know the fact at that time; and

[48]

(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.

[49]

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."

[50]

[30] The applicant must satisfy the jurisdictional issues of claiming to have a right of action to which the description in s 31(1) of the Act applies and that, putting the limitation question aside, there is evidence to establish the right of action. For the purpose of this application, the respondent concedes that there is evidence to establish the applicant's right of action in negligence.

[51]

[31] The applicant identifies as "a material fact of a decisive character" the fact that the seriousness and disabling nature of his neck condition is such that he will no longer be able to work in his trade as a plasterer. This is not a case where the applicant was unaware of the fact that he was suffering symptoms from the injury sustained in the incident. The applicant focuses on the economic consequences of the injury. The issue on this application that arises under s 31(2)(a) of the Act is therefore whether the nature and extent of the applicant's cervical spine injury was a material fact of a decisive character relating to the applicant's right of action that was not within his means of knowledge until after 12 December 2005 (and more specifically until after 18 May 2007). If that issue is decided in favour of the applicant, the other issue to be decided is whether the court should exercise the discretion given by s 31(2) of the Act to make an order in the applicant's favour extending the limitation period.

[52]

[32] Both parties referred to the decision of the High Court in State of Queensland v Stephenson [2006] HCA 20; (2006) 226 CLR 197. Gummow, Hayne and Crennan JJ at p 206 [21] described a material fact of a decisive character as follows:

[53]

"It is a fact of this particular quality which, until the relevant date, must not have been within the means of knowledge of the applicant. What must not have been within the means of knowledge of the applicant until the relevant date is not merely a material fact relating to the right of action in question. The material fact must be 'of a decisive character'. The provision is so drawn as to assume that there may be material facts which are not of a decisive character."

[54]

[33] The applicant relies on the decision in Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306 where Lee J, with whom the other members of the court agreed, determined that medical advice received by Mr Byers after the expiration of the limitation period that he would have to cease highly lucrative employment as a miner was a material fact of a decisive character. Before the limitation period expired Mr Byers had received medical advice that his condition would simply improve with time. Until he gave up work permanently, he acted on the advice that he received that his condition would improve and persevered with his job and lost no income. What was described as the newly discovered fact that he could not continue to work as a miner was held to transform his case into one where a substantial award of damages was then likely.

[55]

[34] The applicant relies on the following matters to submit that the relevant nature and extent of his neck injury was not with his means of knowledge until May 2007:

[56]

(a) Despite his injury, the applicant continued to work in the partnership at his trade, even though there were days when he could not work or could not work to his full capacity;

[57]

(b) It was not until he was advised by Dr Ryan in May 2007 that he realised he was not going to be able to continue to work at his trade;

[58]

[59]

(d) Without a substantial loss of income, the quantum of damages for his injury, even if he had obtained legal advice, would have been too small to bother about because of his claim for general damages being governed by s 61 of the Civil Liability Act 2003 and the effect of s 56 of the Personal Injuries Proceedings Act 2002 on the quantum of damages recoverable after payment of legal costs.

[60]

[35] The respondent submits that the applicant has failed to demonstrate that the material fact of a decisive character (namely the nature and extent of his neck injury) was not within his means of knowledge until a date after 18 May 2007 (or even a date after 12 December 2005) because:

[61]

(a) The applicant has admitted to ongoing symptoms from the time of the incident in December 2003 that were significant and required him to seek medical treatment and use strong painkilling medication;

[62]

(b) Although the applicant did not lose income as such, he was taking time off work and could not work to full capacity;

[63]

(c) A reasonable person in the position of the applicant would have sought medical advice and investigation as to the source and reason for his continuing symptoms and disability and his future prognosis, even if it was not actually causing him to take time off work.

[64]

[36] The applicant's position can be distinguished from that of the successful applicant in Hordyk v Carruthers Contracting (unreported, Muir J, SC No 11358 of 2006, 16 January 2007). Mr Hordyk was employed as a diesel fitter. He suffered a back injury in September 1997, he returned to work on light duties six weeks later and he resumed normal duties another month later. Mr Hordyk had "ongoing symptoms" which troubled him from time to time, but did not prevent him with continuing with the heavy work of a diesel fitter. He experienced "flare ups" of his lower back symptoms on five occasions in May 2001, September 2002, March and May 2005 and January 2006. The first four of such flare ups occurred at work when doing heavy lifting and Mr Hordyk saw his doctor, obtained medication and resumed work fairly quickly. After the January 2006 flare up, he was advised by his doctor that he should not continue with his normal duties as this would aggravate his back condition. It was found that there was no reason why he should not have associated his temporarily aggravated symptoms from each of the first four flare ups with the heavy lifting he was doing at the time.

[65]

[37] Reference was made by Muir J in Hordyk v Carruthers Contracting to the following passage from the judgment of the Court of Appeal in Healy v Femdale Pty Ltd [1993] QCA 210:

[66]

"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."

[67]

Mr Grant-Taylor of Senior Counsel who appears for the applicant relies on this passage to submit that no criticism should be levelled at the applicant because he made no inquiry of Dr Ryan or any other treating health professional before May 2007.

[68]

[38] Unlike the plaintiff in Healy v Femdale Pty Ltd, the applicant in this matter continued to suffer from the symptoms caused by the incident on a continual basis. Unlike Mr Hordyk in Hordyk v Carruthers Contracting who did not attribute his flare ups to his previous back injury, the applicant in this matter attributed his on-going symptoms to the injury sustained in the incident. Unlike Mr Byers in Byers v Capricorn Coal Management Pty Ltd who had received medical advice that his condition would simply improve with time, the applicant in this matter has not disclosed the content of the medical advice that he received prior to May 2007 when he raised his "pins and needles" in his hands, neck pain and "screaming" headaches with his treating doctors.

[69]

[39] Accepting that the applicant did not raise with Dr Ryan his ability to continue as a plasterer until the consultation in May 2007, the fact remains that the applicant was aware that his reduced capacity to work from the time of the incident (which resulted in days or part days off work or undertaking less work each day) was due to the injury sustained in the incident. Although this did not result in actual loss of income because of the profit-sharing arrangement under the partnership, the applicant has acknowledged the awkwardness that he felt about his relationship with his business partner as a result. As the symptoms and their effects continued impacting on the applicant's work, that raised the potential for the applicant of future loss of income, even if the applicant did not turn his mind to that consequence until the first half of 2007.

[70]

[40] On the applicant's own statements, I am satisfied that a reasonable person knowing the facts known to the applicant about his symptoms, their cause and the effect on his capacity for work would have taken appropriate advice on those facts before 12 December 2005.

[71]

[41] I am therefore not satisfied that the applicant has shown that the material fact of a decisive character relating to his right of action against the respondent which he relies on for the purpose of this application was not within the means of knowledge of the applicant until a date after 18 May 2007 or even until a date after 12 December 2005.

[72]

[42] It is not necessary to consider the submissions that were made by the parties in relation to the exercise of the discretion to order the extension of the limitation period, if the applicant had otherwise been successful in showing that the relevant material fact of a decisive character was not within his means of knowledge until a date after 12 December 2005.

[73]

[43] The respondent relied on prejudice from the delay in notification of the claim until 30 May 2007 as precluding the exercise of the discretion in favour of the applicant. Despite Mr Warren deposing to the fact that the whereabouts of three of 18 employees of the respondent at the time of the incident were now not known, the cross-examination of Mr Warren showed that no attempts had been made to locate those three employees and there was no suggestion that evidence from those employees would be relevant to the applicant's claim. The photographs taken and information obtained from the inspection made by two of the respondent's employees on the day of the incident also reduced the risk of prejudice to the respondent arising from the delay in being notified of the applicant's intention to sue the respondent. The respondent has had no difficulty in obtaining copies of the relevant medical records of the applicant. The discretionary factors favour the applicant.

[74]

[44] Because of the applicant's failure to satisfy s 31(2)(a) of the Act, the application must be dismissed. Subject to any submissions the parties may wish to make, I am disposed to order that the applicant pay the respondent's costs of the application to be assessed.

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Judgment (74 paragraphs)

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Cases Cited (1)