Peabody Resources Ltd v Norton [1995] QCA 274

Court of Appeal (Qld)|1995-06-16|Before: Before Pincus J, Davies J, McPherson J, Pincus J, Pherson J

This is an appeal against an order granting an extension of time within which to institute an action. The order was made pursuant to s.31(2) of the Limitation of Actions Act 1974.

On 19 September 1990 the respondent was employed by the appellant. During the course of his employment on that day an electric motor weighing approximately 400 kilograms fell onto his left foot severely crushing it. It would certainly have been obvious to the respondent, had he then received legal advice, that he had a good cause of action against the appellant. Indeed it appears that, by the time this application was heard, the appellant's fault was not in dispute. It was not asserted by the respondent that any fact relating to the appellant's liability was a material fact of a decisive character not within his means of knowledge and consequently capable of being relied on to obtain an extension of time.

The relevant limitation period expired on 19 September 1993. The writ in this action was issued on 24 March 1994. Pursuant to s.31(2) the respondent had to show that a material fact of a decisive character relating to the right of action was not within his means of knowledge until after 24 March 1993. That material fact was identified by the respondent as being that he needed to have a fusion operation on bones in his left foot, a fact which he knew, for the first time on 28 June 1993 when advised of it by his doctor. In order to understand the importance of knowledge of that fact it is necessary to put it in the context of the consequences of the respondent's injury before that date.

The respondent was told by an orthopaedic surgeon who operated on his foot shortly after the accident that it would take between 12 and 18 months for the nerves in his foot to grow back and his pain to subside. His injury improved thereafter and he returned to work in January 1991. From that time on he continued until mid 1993 to work as an electrical fitter/mechanic in an underground mine. His work involved him in walking between four and fifteen kilometres underground a day. During that time his work rate steadily increased, his pain diminished and he regained sensation in his toes. He was made a permanent employee, after undergoing a medical examination, in April 1992.

It was not until about May 1993 that the respondent became aware that his limp was getting worse and his foot was becoming very sore. His general practitioner then referred him to Dr. South an orthopaedic surgeon whom he saw for the first time on 28 June 1993. After some X-rays which were performed Dr. South told him of the above fact, that is, that the respondent needed a fusion operation. The respondent said, and his Honour plainly accepted him on this, that this was the first time that he realised that his left foot might not be going to get better. Up to that time he had lost no income. During his early convalescence he had been paid worker's compensation and from then on until he saw Dr. South, he was working full time at the work he was doing before his accident.

The learned primary Judge was therefore correct in concluding that it was not until the respondent saw Dr. South that he realised that the nature and extent of his injuries were such that his lucrative work underground as an electrical fitter/mechanic would not be able to continue. Moreover there was nothing unreasonable in his belief, prior to seeing Dr. South, that his condition would continue to improve and that he would be able to continue to do the work he was then performing.

The material facts relating to a right of action, for the purpose of s.31, include "the nature and extent of the personal injury": s.30(a)(iv). But that material fact will be of a decisive character only if a reasonable person knowing it, and having taken appropriate advice on it, would regard it as relevantly showing:

(i) that the respondent's action would have a reasonable prospect of resulting in an award of damages sufficient to justify the bringing of an action: s.30(b)(i); and

(ii) that the respondent ought in his own interests, taking personal circumstances into account, to bring an action on the cause of action: s.30(b)(ii).

Section 30(b) thus 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. Compare Moriarty v. Sunbeam Corporation Limited [1988] 2 Qd.R. 325 at 333.

Whilst it may be accepted that, generally, a material fact which merely increases an applicant's damages is unlikely to be decisive, the learned primary Judge was entitled, in the present case, to conclude that the fact conveyed to the respondent by Dr. South, with the consequences which, for him, were implicit in it that his foot disability was deteriorating not improving and that his earning capacity would be obviously affected, was of a decisive character because, without it, the facts could not be reasonably regarded as establishing both:

(i) prospects of an award of damages sufficient to justify the bringing of an action (especially having regard to the absence to that date of any loss of earnings and the reasonable perception of the respondent on those facts that his condition was improving and that his earning capacity would not be impaired); and

(ii) that the respondent ought, in his own interest, taking his personal circumstances into account, to have brought the action.

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