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[2011] NSWSC 346
Supreme Court of NSW
2011-03-02
Hislop J
Original judgment source is linked above.
Introduction 1The plaintiff is a nurse. She was born in 1972. She was employed by Drake Australia Pty Limited. Her services were hired to the defendant. On 30 July 2004 she suffered injury to her back whilst repositioning a patient in bed. On 22 February 2010 a statement of claim was filed on her behalf claiming damages from the defendant for that injury. 2The defendant in its defence pleaded: "9. In the alternative, the Defendant says that the Plaintiff's cause of action having been brought more than 3 years after the action was discoverable and is not maintainable by reason of the provisions of Section 50C and 50D of the Limitation Act 1969." 3On 23 July 2010 the defendant filed a notice of motion seeking orders: "1. That the whole of the proceedings be dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 on the basis that the cause of action having been brought more than three years after the action was discoverable is not maintainable by reason of the provisions of Section 50C and 50D of the Limitation Act 1969. 2. In the alternative, that the whole of the proceedings be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005 on the basis that the cause of action having been brought more than three years after the action was discoverable is not maintainable by reason of the provisions of Section 50C and 50D of the Limitation Act 1969. 3. [Not pursued] 4. [Not pursued] 5. In the alternative, pursuant to Regulation 28.2 of the Uniform Civil Procedure Rules 2005 that there be a separate hearing on the limitation issues pleaded prior to the substantive hearing." The application was opposed.
The legislation 4The Limitation Act 1969 ("the Act"), so far as here relevant, provides: " 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the 3 year post discoverability limitation period , which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff... 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person..." 5Sections 50C and 50D have application as the relevant act or omission occurred after 6 December 2002 - s 50A of the Act. 6The provisions of ss 50C and 50D have been the subject of detailed consideration by the Court of Appeal in Baker-Morrison v State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454.
The issues 7It was common ground that the plaintiff knew that the injury concerned had occurred on 30 July 2004. The issues for determination were whether the first date that the plaintiff knew or ought to have known of: (a) the fact that the injury was caused by the fault of the defendant (s 50D(1)(b)) (b) the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action (s 50D(1)(c)) was before 22 February 2007. These issues are discussed hereunder.
Section 50D(1)(b) - Fault 8In Baker-Morrison the Court of Appeal held: "[28] In par (b), the word 'fault' is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as 'discoverable' for the purposes of s 50C is 'the cause of action'. The 'fact' contemplated by par (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation... [37] ... the concept of 'fault' was to be ascertained by reference to legal concepts... [39] ... there is no need for the plaintiff to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise. It is the key factors necessary to establish legal liability which must be known. In the context of s 50D, to speak in general terms of moral blameworthiness is inapt..." 9The plaintiff in her affidavit sworn on 7 October 2010 said: "41 Further I say that I did not understand until I recently instructed my solicitors that my injuries may have been occasioned as a result of the fault of Westmead Hospital and Drake Nursing Agency." 10The plaintiff gave the following evidence in cross examination: (a) "Q. The reason behind seeking assistance was not because of the lift you wanted to undertake but because you were worried about the patient's surgical condition, isn't that right? A. Yes. Q. And in any event when assistance didn't come you elected to move the patient yourself? A. Yes Q. And that's when the accident occurred? A. Yes." (b) "Q. As at November 2004 it was your view that your accident occurred because you had been given no choice but to help this patient, isn't that right? A. At the time, yes. Q. And it was the fact that you hadn't received any help you thought had caused your back injury? A. No." (c) "Q. That it had happened because you didn't get help with a task you thought you needed help with, correct? A. Yes. Q. And it's because you didn't get that help that you had a back injury, isn't that right? A. Yes." (d) "Q. Prior to your accident did you understand that from time to time people sued other people or companies when injury had happened to them? A. Yes. Q. And you understood that in order to do that they consulted lawyers? A. Yes. Q. And had you heard from time to time advertising from various firms of lawyers on the radio and the like? A. Yes. Q. Did anyone in particular suggest you see a lawyer in relation to your accident or is it a decision you made yourself? A. A decision I made myself." (e) "Q. You knew you could sue people who had injured you, didn't you? A. Yes. Q. You knew that if you wished to you could have sued your employer, Drake? A. No. Q. And you knew that if you thought someone was to blame such as the hospital you could sue them? A. No." (f) "Q. And where you knew the hospital could have provided you with assistance that would have avoided your back injury, isn't that right? A. Yes." 11The plaintiff submitted that the key factors necessary to establish fault, ie legal liability, that must be known to enliven the section were not known to the plaintiff prior to 22 February 2007. The plaintiff in her affidavit said: "39 I also received advice [after 22 February 2007] which I had never received before in my life that Westmead Hospital may have been in a position that was analogous to that of an employer and would also be liable to me for damages in negligence for failing to enforce, prescribe or otherwise maintain a safe system of work with damages capped pursuant to the relevant provisions of the Civil Liability Act 2002 (NSW). " 12The defendant submitted: "What a plaintiff has to know...is that what the defendant has done has caused the injury in the sense that there was an alternative that would have avoided it... In this case this plaintiff, from day one, has been saying; I got hurt because I had to lift someone by myself when I asked for help and you could have given me that help. She complained to Drake about the fact that her injury was caused at the hospital in an unhelpful environment. She had written a letter in which she said 'The hospital has failed in its duty to me'...what this plaintiff has said is; I knew I was hurt lifting and I knew the hospital should have helped me. They didn't, and that's why I'm injured. In those circumstances, where she knew that actions were available as she agreed, against people who harmed you, then the test is made out." 13In my opinion, the evidence given in cross examination established that the plaintiff knew, before 22 February 2007, that the injury had been caused by the fault of the defendant giving "fault" a broad generic meaning but did not establish knowledge of "fault" as construed by the Court of Appeal. I do not consider that the evidence established that the plaintiff, before 22 February 2007, knew she had the cause of action against the defendant upon which she has sued. Nor do I consider, for the reasons which appear later in this judgment, that the plaintiff ought to have known she had such a cause of action before 22 February 2007.
Section 50D(1)(c) - Serious injury 14In Baker-Morrison the Court of Appeal held: "[41] Although a legal evaluative judgment appears to be required by par (b), that element is even more explicit in par (c). Thus the injury must not only be understood to be serious, but 'sufficiently serious to justify' a course of action. Further, that course is "the bringing of an action on the cause of action", an objective which would appear to require the exercise of both legal and medical expertise... [42] The construction of par (c) which would involve the person obtaining medical and legal advice gains support from the fact that a number of statutory regimes contain floors or caps on recovery of damages, or both: see, for example, Civil Liability Act , s 16. No proper view could be formed about the justification for bringing an action, absent information of that kind... [44] ...To the extent that par (c) requires an assessment of the seriousness of injury sufficient to justify the bringing of proceedings, coherence with the broader statutory framework requires that the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made." 15The plaintiff gave evidence in cross examination that as a result of the injury she suffered severe pain in the low back going down the left leg with sciatica. These symptoms commenced shortly after injury and continued until operation in June 2007. They caused the plaintiff trouble walking, sitting, standing, lifting, squatting, doing housework and woke her at night. She took painkilling medication such as Endone. Conservative treatment, including physiotherapy and rehabilitation, was not helpful. Her work capacity was impaired and she was essentially unemployed between July 2004 and June 2007. Her attempts to work during that period were short-lived. Radiographic evidence identified disc lesions at two levels. 16Early in 2006 the plaintiff's treating specialist advised that surgery was required. However the workers' compensation insurer would not fund surgical intervention. The plaintiff felt she had no option but to proceed to major spinal surgery regardless. This she did in June 2007 when she underwent a disc fusion and disc replacement. The plaintiff was well aware of the risks of undergoing such surgery. 17In my opinion the plaintiff's injury was unarguably serious well before 22 February 2007. However, that finding alone is not sufficient to enliven sub-s 1(c). 18The plaintiff, in her affidavit, swore: "19 I say that after the surgery allowing for time for me to recover, namely on or about the 12 month period post surgery, I realised that I had not made a recovery and indeed I was worse. 20 Prior to that time I did not believe that the injury I had sustained could not be suitably treated by surgical intervention based on the advice that I had received from Dr. Seex, Dr. Diwan and Dr. Southern whose various reports are contained in the bundle... 43 I say that it was only after the operation, namely in that 12 month period wherein I attempted to recover from the procedure and get back to work, that I realised that I could no longer work, I was unable to perform any of the duties I used to be able to perform in the past and that was the time I say that I realised that the injury that I had sustained in my lower back with the effects running into my left leg were serious and permanent. I say that I have now also developed arthritis in the left hip and tendonitis in the buttock. These have all been the subject of a recent series of diagnoses. 44 Accordingly, although I say that I was aware that I had sustained an injury, I did not know the nature or extent of the injury until after I had my operation and I had no idea as to any concept of fault either on behalf of Westmead or Drake. As far as I understood it I was simply entitled to workers compensation... 46 In any event I say that the injury I sustained was not, so far as I was concerned, sufficiently serious for me to bring proceedings until I realised that the injury could not be minimised or reduced in terms of its intensity as a result of the failure of the surgery to bring me any relief." 19The plaintiff's evidence that it was not until after her convalescence from surgery that she came to the realisation that the surgery had been unsuccessful, she would be left with permanent disability and would have difficulty in resuming employment appears consistent with her actions, and I accept that evidence. As a result, I accept that it was not until after 22 February 2007 that she knew that the injury was sufficiently serious to justify the bringing of an action on the cause of action. 20The plaintiff had consulted a number of solicitors in respect of her injury. They were Law Partners from August 2005 to March 2006, McDonnell Schroder from March 2006 to August 2006, Stanefska & Associates from July 2006 as well as her present solicitors who she instructed in September/October 2009. It was suggested the plaintiff also consulted Mr Corbett, a solicitor, in July 2006. The plaintiff said she did not recall this and there was no evidence which established a consultation with Mr Corbett. The plaintiff said the purpose in consulting the solicitors was to secure the costs of the back surgery, which surgery the workers' compensation insurer continued to refuse to fund. 21The plaintiff in her affidavit sworn on 17 October 2010 said: "40 I say that up until I instructed my most recent set of solicitors I had never been told of any right to bring a claim for damages at common law, received advice, nor did I know what a common law claim was, I had no idea what the cause of action in negligence was nor did I have any idea what areas of damages I could recover if I was to be successful... 42 At all times I was simply assuming that I had an accident at work and there was an automatic right for workers compensation. In terms of any other liability to pay me any further moneys I had no knowledge whatsoever." 22The defendant disputed the plaintiff's evidence, particularly by reference to documentary material as follows: (a) A letter dated 20 September 2004 purporting to be from the plaintiff to Drake. The letter referred to "working in an unhelpful, orthopaedic ward despite the fact I specifically requested not to be sent there, heavy lifting, because I was given no choice, caused my back injury and subsequent pain." The plaintiff having initially agreed she wrote and sent the letter then asserted her partner wrote the letter and she had no recollection of it. The plaintiff denied that at the date of the letter she thought she had been working in an unhelpful ward. (b) A letter from Law Partners to the plaintiff dated 23 August 2005 stated inter alia: "Common law (negligence) claims against employers You cannot now bring a common law claim against your employer unless you have been assessed by a Workcover Authority medical specialist as having 15% permanent whole person impairment in accordance with the relevant Workcover Authority's guideline. We will advise you further in this regard should you overcome this threshold. However, even if you overcome the threshold you can only claim for economic loss in a common law claim against your employer, and you would then surrender your ongoing workers' compensation entitlements in relation to weekly payments of compensation and medical expenses." The plaintiff denied she had received the letter, though properly addressed, and denied the solicitor had told her of these matters. (c) A file note of McDonnell Schroder headed "Workers' Compensation Instructions" in relation to the plaintiff which stated "Gave advice re WC and CL including time limits to sue and WPI thresholds." The plaintiff denied receiving any such advice and declared that the file note was "Just wrong". (d) A memorandum dated 25 May 2006 made by "Sharon" at McDonnell Schroder in respect of the plaintiff. It reads "Leigh Mullens rang. GIO has notified her surgery - had that on past history they do not believe it would help her. Mrs Mullens said that you were considering common law if they declined the surgery and she should come back in to see you to discuss. Made her an appointment next week." The plaintiff denied she had made any call to Sharon and said she had never said any of the things recorded. (e) Letter dated 25 June 2006 purporting to be from the plaintiff to Anthony McDonnell, solicitor, in which was stated: "What is known. The hospital failed in its duty of care to help me do my job. I would have failed in my duty of care to help my assigned patient (after several hours already) if I did not do what was in the best interests. My injury is a result of that and something I cannot let GIO hold me back from appropriate remedy." The plaintiff said that this letter had been written by her ex partner and she could not recall seeing it. (f)Letter dated 31 July 2006 from Stanefska & Associates which concluded: "Common Law Claims We will advise you separately as to whether you have a common law claim." The plaintiff said she had not received this letter. The letter was properly addressed to the plaintiff's address at Quakers Hill save that the postcode 2768 was typed whereas the correct postcode was 2763. I doubt that the error would have resulted in the non-delivery of the letter to the plaintiff's address. However, there is no evidence on the question and as the onus is on the defendant I have had no regard to that letter in determining this matter. Indeed, it is not of particular significance as it contains no advice in relation to common law. 23Overall, I found the plaintiff's evidence in respect of these matters unacceptable. However, I do not consider that the evidence establishes that prior to 22 February 2007 the plaintiff knew she had the cause of action against the plaintiff which she has sued upon. 24The Court of Appeal in Baker-Morrison has held: (a) " [45] ...s 50D refers, somewhat simplistically, to whether the person 'knows' (or ought to 'know') the identified facts. It is rare that facts will be known in any absolute sense: rather, as a practical matter, the person will have a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purposes of legal proceedings. Such a belief may be held on firm grounds or on shaky grounds. The belief is likely to involve an assessment of various matters, none of which can be readily quantified. Questions involving causation, fault and assessment of damages are all susceptible to these kinds of uncertainty. Nevertheless, the chapeau of the subsection refers to knowledge of identified facts, and not to an assessment of prospects of success in the prospective proceedings... (b) [57] [Section 50D(2)] purports to provide a definition of what is covered by the phrase 'ought to know'. That description is premised on an assumption that the person had not taken all reasonable steps to ascertain the facts, or a particular fact, requiring an assessment to be made of what would have been ascertained had such steps been taken. (c) [37] ...Taking all reasonable steps must, in appropriate circumstances, include obtaining medical and legal advice and information. (d) [58] In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff (or the parent of a plaintiff) to satisfy the element of taking 'all reasonable steps'. (In some circumstances there may no doubt be a question as to whether the plaintiff's instructions were adequate or whether other limitations prevented the solicitor from taking proper steps in a timely fashion: no such question arose in the present case.) (e) [59] The phrase 'ought to have known' can mean either that the person should have inquired as to a fact (the active sense), or that he or she should have been told of the fact (the passive sense). In this context 'should' connotes a culpable omission, either by the person who should have known, or by the other person who should have supplied advice or information. If the limitation period had been intended to commence, not because of a failure on the part of the putative plaintiff to take reasonable steps, but because of the failure of another person, that could and should have been made clear. Rather the expression 'ought to know' was identified by reference only to what the putative plaintiff 'would' have found out if he or she had taken all reasonable steps. That language is apt to engage the active sense of the expression only. Further, the word 'would' (rather than 'should') is inconsistent with any expectation of an inquiry into the conduct of the potential source of information or advice." 25The defendant submitted that: "Either [the plaintiff] has never asked the question in relation to the hospital which, in my submission, is not good enough on her part or, secondly, the subject of common law damages, in globo, as it relates first and foremost against her employer, and who we know, given the sparsity of the solicitor's notes, that it may have been raised and rejected. But your Honour would not be satisfied, having heard this plaintiff, that she has in any shape or form done what ought to have been done... Seriousness of the injury can be dealt with as simply as the consistency of symptomology leading to the plaintiff undertaking surgery that was serious and risky chasing it...she knew that was the risk and she wanted the surgery. To be fair to her, this plaintiff did not have a choice; she was within extremes. It cannot be suggested that that is not 'seriousness' within the meaning of the section...there are cases where it is patently obvious that you have a very serious injury and this is one of them." 26Counsel for the plaintiff submitted that none of the documents upon which the plaintiff was cross examined makes any reference whatsoever to a cause of action in negligence between the plaintiff and the defendant arising out of the concept of a cause of action in negligence by a person against a putative employer; none of the documents demonstrate that any solicitor gave advice as to the common law rights which have arisen in these proceedings; it is not established that the plaintiff knew of any fault on the part of the hospital within the construction placed upon that provision by the Court of Appeal nor "ought she to have known" as she had taken all reasonable steps and had seen a number of lawyers, none of whom gave her the appropriate advice. I accept this submission insofar as it relates to the cause of action against the defendant. The plaintiff had instructed a number of solicitors, at least in respect of her workers' compensation entitlements. The solicitors were bound to advise the plaintiff as to her common law rights including her rights against the defendant - Vukancic v Velcic [2007] NSWSC 1001 at [90]-[91], Griffiths v Evans [1953] 2 All ER 1364 at 1360-1370. There was no evidence that any of those solicitors did so. 27In my opinion, the defendant has failed to establish that the action is not maintainable by reason of having been brought after the expiration of the limitation period. Accordingly, the notice of motion must be dismissed. Costs should follow the event.
Orders 28I make the following orders:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2011
Mullens
Sydney West Area Health Service