Opacic v Patane [1996] QCA 95

The material fact of a decisive character was identified by the respondent as the fact that the disabilities he now suffers were caused, in a substantial degree, by the negligence or breach of duty of the appellants. To put it another way that the injury which he suffered on 29 August 1990 would, or even might have, permanent consequences.

The injury which the respondent suffered on 29 August 1990 was to his lower back. He suffered it when he fell from a cane planting trailer. On the same day he saw Dr Malone who gave him a workers' compensation certificate to the effect that he would be unfit for duty until 18 January 1991. Dr Malone saw him again during this period and told him, either in December 1990 or January 1991, that he would fully recover. He made a similar statement in his report to the Workers' Compensation Board. A workers' compensation doctor also gave the respondent a clearance to return to work. There was no reason then for him to believe other than that he had made a complete recovery from his injury.

The respondent returned to work and worked until he suffered another injury in a fall during the course of his work on

1 August 1991. During that period he was able to perform relatively heavy work over sustained periods. It was his belief throughout that period that he had made a full recovery from his earlier accident and no doubt his ability to work over that period reinforced that belief. Following his injury on 1 August 1991 he suffered severe and disabling pain in his back with involvement of the legs. He attempted to work on several occasions but could not do so. He ceased work entirely on 1 September 1991 and has not worked since.

In February 1992 he consulted solicitors with respect to his 1991 accident. He did not mention his 1990 accident because he thought he had no reason to. During the course of the consultation with his solicitors in June 1993 with respect to the 1991 accident he was asked whether he had been involved in any other accident and he then told of the 1990 accident. It was suggested to him that he obtain the opinion of counsel.

On 6 August 1993 the respondent attended a conference with counsel who advised him that he ought to institute proceedings in respect of the 1990 accident as well as the 1991 accident "to preserve my right should it be found that this accident had some role in the cause of my present problems". There was then no reason to believe that it did but it appears that the advice was given out of an abundance of caution.

On 28 September 1993 a writ was issued in respect of the 1991 accident and on 5 October 1993 a writ was issued in respect of the 1990 accident. Apparently the respondent then thought that the 1990 accident had occurred in October, not August. In September 1991 Dr Malone had referred the respondent to

Dr Todd an orthopaedic surgeon. In his report to Dr Malone

Dr Todd said of the 1990 accident that in consequence "he has had multiple minor problems since". There is no evidence that the conclusion was the result of anything told to him by the respondent or that anything contained in his report was conveyed to the respondent. And Dr Todd said that he had no recollection of discussing with the respondent the effects or significance of the 1990 accident. Nor do his clinical notes record any reference to the effects of significance of

Dr Todd did not see the respondent again until after

September 1991. However Dr Todd gave a report to his solicitors on 28 March 1995 in which he answered some specific questions. In those answers he said that when the respondent fell in August 1990 he probably suffered a disc disruption and a right L3,4 prolapse. He said that he thought that the injury of 1 August 1991 was merely a further aggravation of his residual disability which was incurred on 29 August 1990 and he thought that the specific underlying damage that caused the problem in the first place was one that resulted from his injury of 29 August 1990. This was the first occasion on which any medical witness suggested that the injury of

Section 30(b) required the respondent to show that without the facts 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 in to account, it was reasonable not to bring it.

Here His Honour was, in my view, entitled to conclude that given the advice which the respondent received from Dr Malone shortly after his 1990 injury and his consequent ability to do sustained work with the implicit consequence that he had no permanent effect from that injury, the fact conveyed to him in the report of Dr Todd that the 1990 injury had permanent consequences was of a decisive character because without it the facts could not be reasonably regarded as establishing both (1) prospects of an award of damages sufficient to justify the bringing of an action, especially in the absence of any apparent loss of earnings, and (2) that the respondent ought, in his own interests taking his personal circumstances into account, to have brought the action. Compare Peabody Resources Ltd v. Norton CA No 200 of 1994, judgment delivered 16 June 1995. Plainly also, that fact was not within the means of knowledge of the respondent until he received

the 1995 report of Dr Todd. Indeed the knowledge which he had until then led him to a contrary conclusion which was a reasonable one.

It is true that the respondent instituted proceedings, not because of the knowledge which he acquired from the 1995 report of Dr Todd, but because of earlier advice which he received from his legal advisers. It is also true that the application for an extension of time was made before he became aware of the material fact relied on. It is also true that section 31(2), by permitting an order for extension of time to one year after the date on which the material fact came within the knowledge of the applicant, contemplates that proceedings will ordinarily be commenced and an application for extension of time made after an applicant has required the relevant means of knowledge. But there is no reason of principle or policy why the section would be read down to apply only to that case. That would have the effect of excluding from the operation of the section an applicant for no other reason than that he has commenced proceedings outside the limitation period but before he has acquired the relevant means of knowledge.

The appeal therefore in substance, in my view, must fail. However, the appellant also submitted that pursuant to

section 31(2) this Court may order that the period of limitation be extended so that it expires at the end of one year after the date on which the material fact came within the means of knowledge of the respondent but not to any earlier date. And in particular not to a date before the date on which the material fact came within the means of knowledge of the respondent. It is unnecessary in my view to decide that question here. It is sufficient to amend the order of the learned primary Judge to one that the period of limitation be extended so that it expires on 28 March 1996. I would therefore allow the appeal only to the extent of altering the order made below in that way and I would order the appellants to pay the costs of the respondent.

PINCUS JA: This is an unusual case, in that the material fact of a decisive character relied on is one which became known a very long time after the relevant suit was begun. The statute is not expressed in such a way as to exclude such a case from being a ground of relief, nor does it appear to me that an implication may be made in favour of the appellant of such kind as to prevent the respondent from obtaining relief. I agree with the reasons which have been given by Mr Justice Davies and with the order which His Honour proposes.

AMBROSE J: I agree. It was contended on behalf of the appellant that if the applicant had knowledge before the expiration of the limitation period he was obliged to institute proceedings before the expiration of that period. There is no express requirement to this effect in the section and it seems to me that the contention, and the suggested implied requirement of the legistlation, would be generally inconsistent with the express provisions of section 31(2)(a) which contemplate the time during which the material fact of a decisive character may come within the means of knowledge of an applicant starting a year before the expiration of the limitation period whenever it might end; no doubt it would end at the time the means of knowledge was acquired. In its express terms, the section contemplates that the relevant means of knowledge may come to an applicant prior to the expiration of the limitation period. It does not provide that it must so come but that it may, and if it does the period of limitation may be extended from the date when it comes within means of knowledge so that it expires at the end of 12 months after that date.

In my view on the facts of the present case it is not a problem for the applicant that he had means of knowledge, or that he may have had knowledge, within the last year of the three year limitation period and there is no substance in this point. I agree generally with the reasons of Mr Justice Davies and with the observations of Mr Justice Pincus.