_Pikrt v Hagemeyer Brands Australia Pty Ltd_

Judgment (35 paragraphs)

[1]

[1] MULLINS J: The plaintiff commenced this proceeding on 9 July 2004 seeking damages for personal injury against the defendant on the basis of alleged negligence and/or breach of statutory duty and/or breach of contract against the defendant which was the employer of the plaintiff at the time he alleges he was injured on or about 23 May 1995. The defendant has raised the defence that the plaintiff's claim is statute barred by virtue of s 11 of the Limitation of Actions Act 1974 ("the Act"). By application filed on 6 May 2005 the plaintiff seeks leave to proceed pursuant to s 31 of the Act.

[2]

[2] On 23 May 1995 the plaintiff, who was then 38 years old, was working as a storeman for the defendant. According to the plaintiff, he was required to roll up and carry a large carpet which measured approximately 4 metres wide by 16 metres long into a waiting truck. The plaintiff describes that he was assisting the truck driver to load the carpet by carrying one end of the carpet, while the truck driver was carrying the other end. They were moving up the ramp into the truck and the plaintiff was at the lower end of the carpet. The plaintiff states that he was thrown off balance by a sudden movement by the truck driver and fell off the ramp whilst carrying the carpet. The plaintiff claims to have suffered an ankle injury and a back injury in the incident.

[3]

[3] The plaintiff kept on working, but as the pain in his lower back worsened, he ceased work at 3pm on 6 June 1995. The plaintiff completed an application for workers' compensation on 6 June 1995 in respect of the incident on 23 May 1995. He consulted general medical practitioner Dr Pifeleti on 6 June 1995 who noted that the plaintiff complained of pain mainly on the right and pins and needles down the right leg and groin region. An x-ray of the lumbar/sacral spine was reported as normal. Dr Pifeleti made a provisional diagnosis of right sacro-iliitis and advised rest and physiotherapy and prescribed an anti-inflammatory agent. The plaintiff obtained a medical certificate from Dr Pifeleti that he was totally incapacitated for work until 9 June 1995. The plaintiff attended for physiotherapy on 7, 8 and 9 June 1995.

[4]

[4] The plaintiff was certified by Dr Pifeleti as fit to return to work from 9 June 1995 on the basis that he undertook no heavy lifting or prolonged bending. According to Dr Pifeleti, the plaintiff informed him that on 15 June 1995 he helped someone to move a weight at work and felt the same type of pain in his back that he had felt 2 to 3 weeks previously. Dr Pifeleti noted that on examination there was still some tenderness in the right sacro-iliac area, but that flexion and lateral rotation movements were normal. The plaintiff returned for further physiotherapy treatment on 19 and 21 June 1995 and on 3, 7 and 17 July 1995. The plaintiff obtained medical certificates confirming that the restriction of no heavy lifting or prolonged bending should continue until 1 August 1995. He was certified medically fit to return to work without any restrictions by Dr Pifeleti from 1 August 1995. In a statement that the plaintiff gave for the purpose of his claim for workers' compensation on 24 August 1995, he described that at that time his condition had settled to a stage where he was on full duties.

[5]

[5] Dr Pifeleti had referred the plaintiff to orthopaedic surgeon Dr Peter Dodd who prepared a report dated 1 August 1995 that diagnosed that the plaintiff had an acute back strain, but appeared to have made a very good recovery. Dr Dodd noted that he had warned the plaintiff he may have twinges following heavy lifting for about another 4 weeks. Dr Dodd expressed the opinion "I do not think he will be left with any permanent disabilities as regards this injury".

[6]

[6] After returning to work with the defendant, the plaintiff gave notice dated 4 December 1995 of intention to cease employment on 15 December 1995. That letter stated:

[7]

"With shoulder and back pain surfacing on a regular basis I feel unable to continue my employment as storeman to my or Blanco's satisfaction, and it is with regret that this notice is given."

[8]

[7] This letter of resignation emerged in the defendant's material for the purpose of the application. The plaintiff gave oral evidence at the hearing and explained that the main reason he resigned in December 1995 was that the defendant had been taken over by another company and was relocating to Brisbane and he did not think that he would be able to cope with sitting in a bus for a total of 3 hours each day. The plaintiff accepted that in his letter he relied on his shoulder and back pain as a reason for giving notice, but explained that he was anticipating that it would be too painful to endure the daily bus trip. I find that it was the plaintiff's anticipation of the discomfort to his back from prolonged sitting in a bus rather than any actual suffering that was the basis of his decision to resign at about the time the defendant's business was relocating.

[9]

[8] Within a period of 12 months or so, the plaintiff obtained another job working as a storeman for Kitset Manufacturing Company. He was in receipt of unemployment benefits until he obtained this job. He worked for that company for between 5 1/2 years and 6 years until that company closed down in August 2002. The plaintiff has not worked since that time.

[10]

[9] The plaintiff stated that from the time he returned to work on full duties in August 1995 until he finished working in August 2002, he suffered from intermittent lower backache, but it was such that he did not lose any time from work, did not see a doctor and did not take any medication. The only treatment the plaintiff received during that period was one session of physiotherapy on 25 August 1998 which he described was in relation to a pulled muscle in his back, but is described in the report from the physiotherapy as an acute exacerbation of back pain. He gave the physiotherapist a history of injuring his back about 4 years previously when he fell off a truck whilst holding a large carpet roll in response to a question about whether he had had any previous problem with his back.

[11]

[10] The plaintiff felt that, as a result of being unemployed from August 2002, he lost his fitness and in or about January or February 2003, he noticed occasional pain in his feet, calves, thighs, groin and hip area and started to develop lower back pain that was aggravated by walking or standing. The plaintiff described that these symptoms increased in frequency and the pain increased in severity over the next several months.

[12]

[11] The plaintiff sought medical advice in April 2003. He consulted Dr Baguley on 10 April 2003 and complained of noticing worsening, intermittent, claudication pains in both legs, calves and thighs and the right inguinal region in the last 3 to 4 months. He described that he could walk about 200 metres before pains started. The notes of Dr Baguley record that the plaintiff advised that about 7 years previously he had significant lower back pain following a fall whilst carrying a load. The plaintiff conceded in cross-examination that when he consulted Dr Baguley he thought his current problems were connected to the incident on 23 May 1995. The plaintiff was referred for an x-ray of the lumbar spine and the right hip that was performed on 11 April 2003.

[13]

[12] The report of the x-ray revealed minimal narrowing of the L5/S1 disc space, but that no other bony or joint abnormality was evident. The x-ray of the pelvis and the right hip did not indicate any bony or joint abnormality. The plaintiff returned to the same medical practice and was seen by Dr Cassimatis on 14 April 2003. He referred the plaintiff for a CT scan of the lumbosacral spine. That was performed on 23 April 2003 and the report revealed that there was a left paramedian posterior disc protrusion at L5/S1. The report observed that "At the upper level of the disc space the disc protrusion is more broad based and is close to and possibly in contact with the emerging right S1 nerve root". The plaintiff consulted with Dr Cassimatis on 24 April 2003. Dr Cassimatis' notes of that consultation record the L5/S1 disc prolapse and that "still has some pelvis and leg pain not sure why". According to the plaintiff, after Dr Cassimatis saw the results of the CT scan, he told the plaintiff that he was not sure why the plaintiff was in pain.

[14]

[13] The plaintiff was dissatisfied with Dr Cassimatis and consulted Dr Doherty of Ashmore City Surgery on 30 April 2003. In the history taken by Dr Doherty from the plaintiff, he has noted the results of the CT scan as "disc protrusion L5/S1"and "nerve root impingement" and it appears from other notes on the plaintiff's records at this surgery, that his records included the CT report. Dr Doherty gave the plaintiff a referral to the Neurosurgery Outpatients Department of Gold Coast Hospital to look at the possibility of further management or an MRI. An appointment at the hospital was not available until 28 January 2004.

[15]

[14] The plaintiff consulted his current solicitors in September 2003. The plaintiff stated in his affidavit that "I was confident there was quite a lot wrong with my back and I had more than a suspicion that it was related to the accident of 1995". The plaintiff's solicitors made an appointment for the plaintiff to see orthopaedic surgeon, Dr Tony Blue, on 1 March 2004 for the purpose of obtaining a medico-legal report.

[16]

[15] The plaintiff was seen by Dr Withers at the Gold Coast Hospital on 28 January 2004 who arranged for a MRI scan for which the appointment was made on 16 March 2004.

[17]

[16] Dr Blue examined the plaintiff on 1 March 2004. The plaintiff complained of constant low back pain with pain in both calf muscles, particularly with any lifting or walking, and that walking caused him to develop pain in his left groin, aching in both calf muscles and numbness in his feet. On examination, Dr Blue observed significant wasting of the plaintiff's left thigh and calf. By the time Dr Blue did his report which was dated 28 April 2004, he had been provided with the report from the MRI scan that was performed on 16 March 2004 which noted L5/S1 disc degeneration with a central disc protrusion butting the descending S1 nerve root within the lateral recess. Dr Blue expressed the opinion in his report that the plaintiff's symptoms were consistent with the clinical history and examination and that the incident of 23 May 1995 was responsible for the L5/S1 disc protrusion and his present back pain and leg pain. Dr Blue estimates the plaintiff's impairment as 13% whole person impairment.

[18]

[17] The Gold Coast Hospital notes record that when the plaintiff was reviewed on 24 March 2004 after the MRI, the pain was unchanged, the MRI showed no canal stenosis, there was a central L5/S1 disc bulge and that "Therefore, nil to explain pain".

[19]

[18] The plaintiff stated in his affidavit that, on reviewing the MRI scan, Dr Withers informed him that she could not explain why he was in pain and that Dr Blue was the first doctor who had been able to explain his pain and link his condition to the incident of 23 May 1995.

[20]

[19] As this proceeding was commenced on 9 July 2004, the plaintiff bears the onus of showing in accordance with s 31(2)(a) of the Act that a material fact of a decisive character was not within his means of knowledge or within the means of knowledge of a reasonable person knowing what the plaintiff knew until after 9 July 2003, which is the critical date for the purpose of this application. For the purpose of the application, the respondent conceded that the requirement of s 31(2)(b) of the Act was satisfied. That was a proper concession to make in the circumstances.

[21]

[20] The submissions of Mr Trotter of counsel on behalf of the applicant proceeded on the basis that it was Dr Blue's report that was a material fact of a decisive character pursuant to paragraphs (iii), (iv) and (v) of s 30(1)(a) of the Act. The material fact of a decisive character that the plaintiff is relying on is more appropriately characterised as within paragraph (iv) of s 30(1)(a) of the Act in terms that the plaintiff sustained a significant injury to his lower back in the incident of 23 May 1995.

[22]

[21] The nature of the onus on a plaintiff in this type of application was described by Macrossan J (as his Honour then was) in Moriarty v Sunbeam Corporation Limited [1988] 2 QdR 325, 333:

[23]

"In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or 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 learnt 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 ... ."

[24]

[22] The contention of Mr Campbell of counsel on behalf of the defendant was that from at least 15 December 1995, when the plaintiff ceased his employment with the defendant, the defendant knew that his back symptoms were a consequence of the injury sustained in the incident on 23 May 1995 and he had a valuable and worthwhile cause of action from that time. It was submitted that from 15 December 1995 the plaintiff lost income as a consequence of his back injury for a period of almost 12 months between his ceasing work with the defendant and obtaining a new job.

[25]

[23] This approach of the respondent does not take into account other significant matters affecting the state of the plaintiff's knowledge on and after 15 December 1995 including that:

[26]

(a) the plaintiff had lost only 3 days' work in June 1995 as a result of the injury he sustained on 23 May 1995;

(b) he had been informed by Dr Dodd that he would make a full recovery from the incident;

(c) the intermittent back pain which the plaintiff described as affecting him from his return to full duties on 1 August 1995 did not prevent the plaintiff from continuing to work for the defendant until 15 December 1995;

(d) the fact that the plaintiff went onto unemployment benefits when he ceased work on 15 December 1995 was consistent with the plaintiff being able to continue to work, but electing not to continue to work for the defendant, because of the imminent relocation of the defendant's business and the plaintiff's anticipation of the effect of daily travel in excess of 3 hours on his intermittent back pain;

(e) any income that the plaintiff lost after ceasing work for the defendant on 15 December 1995 was as a result of the time it took him to find a new job and not because he was disabled from working.

[27]

[24] In those circumstances it would not be reasonable to expect a person in the plaintiff's shoes knowing those facts to have sought advice on whether he had a worthwhile cause of action at that stage.

[28]

[25] The incident in 1998 that required the plaintiff to undergo one treatment of physiotherapy related to an injury sustained in an incident during the course of the plaintiff's employment at that time and did not preclude the plaintiff from continuing to work for that employer.

[29]

[26] It is also relevant that upon the plaintiff obtaining the job as a storeman in 1996, he was able to work without difficulty until that company ceased conducting its business in August 2002.

[30]

[27] The symptoms from which the plaintiff noticed that he was suffering by January or February 2003 had a different dimension than the intermittent lower back pain from which he had suffered previously. Not only was the lower back pain aggravated by walking or standing, the plaintiff noticeably suffered from claudication pains in both legs, calves and thighs with increasing severity. This was a manifestation of the injury that was new and of concern to the plaintiff. He endeavoured to obtain medical advice about his symptoms in April 2003. Although the CT scan identified the disc prolapse at L5/S1, the general medical practitioners with whom he consulted did not link the plaintiff's leg pain with the L5/S1 disc prolapse and the plaintiff was referred for specialist treatment.

[31]

[28] The plaintiff acted with appropriate speed in seeking medical advice after the worsening of his symptoms which he had noticed in January or February 2003. Although the plaintiff at that time believed that his symptoms were related to the incident in May 1995, that belief without obtaining appropriate medical advice to support it did not mean that the relevant material fact of a decisive character relating to his right of action was within his means of knowledge or within the means of knowledge of a reasonable person knowing what the plaintiff knew at that time. The dilemma faced by the plaintiff was emphasised by the advice that the plaintiff obtained from Dr Cassimatis after the CT scan had been performed and from Dr Withers after the MRI scan had been performed. When the plaintiff was obtaining advice from the general medical practitioners in April 2003, which was a time that was reasonably connected to the onset of symptoms in January or February 2003, it was reasonable to expect that any specialist medical advice would not be able to be obtained before the critical date.

[32]

[29] I am satisfied that the plaintiff has discharged the onus of showing that it was not until the plaintiff was in a position after the critical date to obtain specialist medical advice after the manifestation of the symptoms from which he commenced to suffer in January or February 2003, that a material fact of a decisive character, namely that he had suffered a significant injury to his lower back in the incident of 23 May 1995, was within his means of knowledge or within the means of knowledge of a reasonable person knowing what the plaintiff then knew.

[33]

[30] There are no discretionary reasons for refusing to make the order sought by the plaintiff. It follows that the following order should be made:

[34]

"That the period of limitation for this proceeding be extended to 9 July 2004."

[35]

[31] I will hear submissions from the parties on costs.

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Judgment (35 paragraphs)

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