Pizer v Ansett [1998] QCA 298

Court of Appeal (Qld)|1998-09-29|Before: Before Pincus J, Thomas J, Byrne J, Mr J, Pincus J

1 I have had the advantage of reading the reasons of Thomas J.A. His Honour sets out the issues in the case and the relevant evidence; it will be noted that the primary judge treated the date 24 April 1995 as significant, and this seems to me to make some explanation of the relevant dates desirable. The judge chose that date as being one year prior to issue of the plaint.

2 The language of s. 30(b) of the Limitation of Actions Act 1974 does not cohere well with that of s. 31(2)(a), to which it is complementary. But the general intention of these provisions is perhaps clear enough. Section 30(b) provides tests for answering the question: by what date should ". . . a reasonable man, appropriately advised have brought [an] action on the facts already in his possession " (Sugden v. Crawford at 685); call that date D1. Then must be applied; so that the application cannot succeed unless D1 falls on or after the day which begins the last year of the period of limitation of an action to recover damages for the injury; call that date D2.

3 The plaintiff's application may be granted if D1 is later than D2 and if it is granted the period of limitation may be extended to expire one year after D1. This is the legislative scheme, but it may not in particular circumstances and was not in this case necessary to go through the exact steps I have mentioned. It will commonly not be necessary to fix D1 precisely because, as in this case, it may be enough to determine that on whatever date D1 fell, it was too early to justify the grant of an extension.

4 Here, the time at which the matter came before the primary judge was on any view too late to start a new action based on the injury complained of, which occurred in September 1992. That was so because the latest possible date for D1 was in December 1995 and an extension of one year from that date would not have permitted the plaintiff to bring a new action; she did not apply for an extension until July 1998. The only extension of time which could have saved the claim based on the September 1992 injury was one to the date of the action the plaintiff had in being, begun on 24 April 1996. It was for this reason that the judge posed for himself the question whether the date I have called D1 was shown to fall on or after 24 April 1995. If not, then the extension of one year after D1 permitted by s. 31(2) would have been of no use to the plaintiff. What the judge held in effect was that before 24 April 1995 the situation described in s. 30(b) existed - i.e. to put it shortly, a person of the kind mentioned in that provision ought to have brought an action. The argument before us challenged this proposition, on the basis that it would not have been a reasonable course to sue at that stage.

5 Unfortunately for the plaintiff, the difficulties she experienced before the critical date were by no means trivial. In 1994 her back went into spasm and remained in that condition for a considerable time, this problem being associated with her work. The plaintiff must surely have had some concerns, as a result of that sort of happening, about her ability to continue indefinitely to cope with her job; her problems did not cease despite much treatment and the wearing of a brace. It was the plaintiff's case that she discovered for the first time in December 1995 a fact which altered her perception of her problem considerably; this was that a specialist doubted her ability to keep on doing the same work, in the long term. The primary judge did not have to determine, however, whether that advice would have made a reasonable plaintiff think her disability to be much graver than she had previously believed. The question was whether prior to the relevant date, 24 April 1995, the facts within the knowledge or means of knowledge of the plaintiff were such that a reasonable person appropriately advised ought to have brought an action on those facts. This was plainly a question of degree, the opposing considerations in relation to which are set out in the reasons of Thomas J.A. in such a way as to require no addition. It is my opinion that the primary judge was right in his conclusion and I therefore agree with the orders proposed by Thomas J.A.

1 This is an application for leave to appeal against the refusal of a District Court Judge to extend time under s.31 of the Limitation of Actions Act 1974. In the course of hearing the application the Court invited the parties to present their full arguments as upon an appeal. The main issue is whether or not the appellant plaintiff (to whom I shall refer as "the plaintiff") had means of knowledge at a material time of a material fact of a decisive nature relating to her right of action.

2 By her amended plaint, which was issued on 24 April 1996, the plaintiff, who had been a flight attendant for a considerable period, alleged that she was a person with a pre-existing degenerative condition of the thoracic spine, and that her duties included serving tea or coffee from jugs weighing four kilograms when full, and that her duties required her to lean across seats in a stooped manner when serving passengers. These and other duties, she alleged, caused an aggravation in September 1992 of her pre-existing degenerative condition, and the aggravation was said to be the result of the defendant's failure to provide a safe system of work, and of other failures such as lack of adequate instruction in a safe method of carrying out such duties. It was also pleaded that from 30 April 1993, by which time the defendant knew or ought to have known of her condition, the defendant failed in various respects to protect her from further harm, and that further negligence on the part of the defendant caused her to suffer further aggravation of her condition.

3 The defendant pleaded the statute of limitations in relation to the allegations concerning the incident of September 1992. No similar plea was available in relation to the second series of allegations which of course were said to have occurred within three years of the issue of the plaint.

4 It is necessary to attempt a summary of the material that was placed before the learned Chamber Judge. In very short compass the plaintiff's submission is that she was aware of her back problems from September 1992 and that she had by April 1993 identified the cause of the pain as arising from her duties of employment. In the following years she received medical advice and treatment, and substantial physiotherapy treatment. Her back pain improved, though obviously it remained a problem. However she did not regard it as a serious or permanent problem. It was only when she had a conversation with a representative of her employer on 22 December 1995 that she became aware of the seriousness of her condition and the fact that it was likely to occasion serious economic loss. During that conversation she was informed that a medical report by an orthopaedist (Dr Livingstone) recommended that she should give some consideration to seeking alternative employment. The fact that her condition was likely to render her unable to cope with her chosen career employment is the "material fact" which is relied on on her behalf, and it is said that this fact was not within her means of knowledge until 22 December 1995.

5 In support of her case, her affidavits indicated that after suffering the initial pain in September 1992 she took recreational leave, obtained some massage therapy and the discomfort settled. However the pain returned in February 1993 and by April of that year she had identified the cause of the pain as being the duties of her employment. She saw a general practitioner, Dr Genevieve Hopkins, who provided her with a medical certificate for physiotherapy treatment. Thereafter her back pain "improved". However the regularity and persistence with which she sought and received treatment for a substantial period thereafter must be taken into account in any objective assessment of the plaintiff's awareness of her condition.

6 The plaintiff described the physiotherapy treatment as producing "significant improvement" in her back condition, and was of the view that her back condition was neither serious nor likely to be permanent. It is likely that her general practitioner would have fortified such a belief, at least during 1993, as her report to the Workers Compensation Board of Queensland dated 24 May 1993 refers to "her rapid response to physiotherapy" and expresses the view that this indicated an excellent prognosis. For that reason she did not refer the plaintiff to an orthopaedic surgeon at that stage or have any x-rays taken.

7 At the request of the Board, the plaintiff attended Dr Livingstone on 16 November 1993. He wrote a report containing the statement "it may be that long-term continuation of this work is not going to be possible", but the contents of that report were not conveyed to the plaintiff. A further report from Dr Livingstone of 14 July 1994 expressed the view that her condition was not likely to improve with time, and that ongoing physiotherapy was unlikely to contribute significantly to her functional capacity. He added that if she found that she was unable to cope with her work she should seek alternative employment. This opinion however was not conveyed to her for another seventeen months, until December 1995. In the meantime however she was advised by the Board (in September 1994) that it had determined not to make payment of further medical expenses beyond 16 September 1994. She thereafter continued to obtain physiotherapy treatment at her own expense. By December 1995 her condition had deteriorated to the point where she was not able to effectively manage her pain. This led her to contact an officer in the human resources department of the defendant, who brought to her attention, apparently for the first time, Dr Livingstone's opinion that she might need to seek alternative employment.

8 Some further objective facts however need to be noted before the critical question of the application of s.31 can be approached. In December 1993 her complaint was that whenever back ache occurred, as it did particularly when bending or lifting heavy coffee pots, it would take twenty four hours to settle and would then recur with similar activity. She avoided bidding for long rosters so that her work load would be less. When at work she wore a thoracic brace prescribed by her physiotherapist. If she did not wear it she tended to get more back ache during the day. However her presentation to the doctor in July 1994 suggests some improvement. She was then carrying out full roster duties and she found that she could manage two sections of flight satisfactorily, but on occasions when she had to do four sections, her back could become uncomfortable. It may be observed that the picture here presented is of a worker who was coping with her work, subject to some discomfort and who was avoiding the longer combinations of flights. It does not reach the level of sounding a serious warning that her future was at risk, although that was of course a possibility.

9 However certain statements extracted from the plaintiff's statement of loss and damage filed in these proceedings, suggest a reasonably high level of pain and suffering that arguably ought to have induced a reasonable person aware of such facts to take appropriate advice in relation to them. She describes an incident when she was in agony after a particular flight in 1993, and was not able to continue with her trip to Mackay. She took a half day sick leave as a result of her pain. Another incident is mentioned in December 1994 when, during a flight, her back went into spasm and remained in spasm for approximately two months. That condition improved only through the plaintiff taking annual leave and continuing with her exercises. She continued wearing the back brace until March 1995. When she stopped wearing it she sometimes experienced a feeling that her upper body was collapsing.

10 The statement continues that for the period between April 1993 and mid 1995 the plaintiff was able to undertake only approximately ten minutes of ironing at a time without incurring pain. She also suffers depression as a consequence of these disabilities, the worst period of depression being during December 1994/January 1995, and she suffers from depression on a daily basis if her pain is bad.

11 Between April 1993 and May 1994 the plaintiff received medical attention from medical practitioners on ten occasions, for assessments of her fitness for work and for authorisation of physiotherapy. Between April 1993 and April 1995 (which is the date twelve months before her action was commenced) she received physiotherapy treatment on 58 occasions. There are no significant periods over that time when she was not receiving such treatment.

12 In summary the plaintiff's submission is that she experienced only short absences from work; she believed that the physiotherapy had been partially successful and that her prognosis was good; the main expenses associated with her condition (medical and physiotherapy) had been paid by Workcover, and if she sued these would simply be refunded to Workcover; in short, she claims that she had no reason, until December 1995, to believe her condition was permanent or that it would have a permanent effect upon her employment.

13 It was accepted that the relevant period for the purposes of assessing the plaintiff's awareness of her condition is the period up to 24 April 1995, that is to say twelve months before the time when the action was commenced. As the plaintiff had actually commenced an action on 24 April 1996 there was no need for her to show her lack of knowledge of the material fact of a decisive character any later than 24 April 1995.[1]

14 The principal finding leading to the refusal of the extension of time lies in the observation of the learned Chamber Judge that "the pain and suffering of the applicant must have been fairly substantial and the applicant must have appreciated her injury was serious and also was productive of some economic loss, all prior to 24 April 1995".

15 The plaintiff had the onus of showing that a material fact of a decisive character relating to the right of action was not within her means of knowledge until some time after 24 April 1995. The material fact has been expressed in different ways and may be taken as the likelihood that she would be unable to cope with her employment as a result of the condition, or that the condition was one that was likely to produce serious economic loss. It may be accepted that she did not know that fact before the specified date. However she must also show that it was not within the means of knowledge of a reasonable person knowing what she knew. That issue is to be determined on the footing that such a person had before that time taken all reasonable steps to ascertain it.[2] It makes little practical difference whether one approaches "the reasonable steps" issue from the viewpoint of the plaintiff endowed with the qualities of a reasonable person or of a reasonable person endowed with the knowledge and experience of the plaintiff. Some of the cases[3] deal with the issue in the firstmentioned way, although strictly speaking the secondmentioned way would seem to accord more literally with the statute.[4]

16 The following proposition poses the test that is critical to the determination of this case. If a reasonable woman, knowing what the plaintiff must have known, and having taken appropriate advice[5] on those facts would have regarded them as showing that a right of action would have reasonable prospects of success resulting in an award of damages sufficient to justify the bringing of the action and that she ought in her own interest to bring it[6], then the plaintiff fails to show "that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant" prior to the necessary date.[7]

17 I have found the present case particularly difficult to assess. It raises no question concerning the sufficiency of evidence to show a right of action, or of any prejudice to the defendant through the delay. Its resolution depends solely upon the issue concerning the plaintiff's knowledge of a material fact concerning the nature and extent of her injury.

18 The question whether such a person has taken all reasonable steps to ascertain the nature and extent 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 of effect upon her working capacity".[8]

There is no requirement, actual or notional, to take "appropriate advice" or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the plaintiff to have done so. The answer to this then depends upon the primary facts concerning the level of seriousness of the plaintiff's symptoms and of the warning signs which she undoubtedly had.

19 As Derrington J observed in Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325 at 336:

"..if prior to the respondent's learning that fact, there were sufficient material facts of a decisive character which would have led a reasonable man appropriately advised to regard those facts as showing that there was a good cause of action and that in his own interests the respondent ought to have brought proceedings, then the newly discovered fact, although it might be described as material, could not be said to be of a decisive character".

20 In the present case leave was granted to appeal, mainly on the Court's perception that the case was reasonably arguable, and that the effect of the decision would produce significant consequences. In appeals of the present kind, when the material fact concerns the nature and extent of personal injury[9], questions of degree are necessarily involved. At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it. At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension, and an appeal court could likewise readily correct an erroneous decision. Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff's knowledge and as to whether the reasonable person contemplated by s.30(b), endowed with such knowledge and having taken appropriate advice, would have brought proceedings. Appeals involving extensions of periods of limitation commonly raise these particular issues which involve factual assessments. Although the eventual decision is discretionary[10] the determination of these issues is not. They involve findings of fact and a determination whether those facts satisfy the requirements of the statute. It is worth mentioning however that such findings and determinations are made in an area where different minds might reasonably reach different conclusions. In such a situation the appeal court is not free to decide the question according to its own preference. Unless the judgment reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference.[11]

21 I have hesitated in determining whether the learned Chamber Judge's determination was erroneous having regard to the fact that the evidence of the plaintiff's economic loss prior to April 1995 is fairly trivial, while the additional information which the plaintiff gained later in 1995 suggested to her that it would be quite substantial. That makes a reasonable case for saying that this additional information might reasonably have made the difference between bringing an action and not bringing one. However, the level of pain, its persistence and recurrence following performance of ordinary duties at work and the continuity of need for ongoing physiotherapy, all over a period spanning several years, suggest that it should have been obvious that this plaintiff had a viable action for very significant pain and suffering, and also more than trivial warnings of potentially serious economic loss. In the end, determination of the question depends on the primary perception as to the level of seriousness of the warning signs, and I do not find it possible to identify an error in the learned Judge's reasoning or to say that his ultimate conclusion was not open on the evidence.

22 I am therefore unable to determine that the learned Chamber Judge's discretion miscarried or that he misapprehended the facts or that the decision is otherwise erroneous.

23 The application for leave to appeal should be granted but the appeal should be dismissed with costs.

1 The facts are set out in Thomas J.A.'s reasons, which I have had the advantage of reading.

2 The contents of the affidavits of the appellant which were read before the primary judge were not challenged by cross-examination. These affidavits showed that by late April 1995 the appellant had not realized that her condition involved substantial risks of continuing disabilities and restriction of employment opportunities. Despite the pain and complications of her injury, including a lengthy period during which her back was in spasm and dozens of attendances on physiotherapists in the year or so preceding late April 1995, she remained optimistic about her future. Not until Dr Livingstone's November 1993 report was drawn to her attention in December 1995 did she appreciate the seriousness of her plight.

3 Had the appellant seen a solicitor shortly before 24 April 1995, no doubt she would have been advised to seek a competent orthopaedic specialist's opinion concerning her condition and its ramifications. Such a specialist, it may be supposed, would have arrived at prognoses that were like those mentioned by Dr Livingstone in his November 1993 report. A solicitor who read such a report, and who made due allowance for the slim possibility that litigation initiated by the appellant might not succeed, would then have taken the view that the amount recoverable warranted institution of proceedings by 24 April 1995. The reasonable person mentioned in s.30(b) of the Limitation of Actions Act 1974 would have acted on such advice. If, therefore, the appellant had sought legal advice by the early months of 1995, she would in all probability have discovered the "material fact of a decisive character" now relied upon; and she would have also concluded at that time that she ought in her own interests, and taking her circumstances into account, to have commenced proceedings to enforce the right. As things happened, the appellant did not consult a solicitor until much later, apparently because of her own optimistic assessment of her future.

4 The appellant's outlook received a measure of encouragement from general practitioners. In early December 1993, in the absence of her regular practitioner, Dr Hopkins, the appellant consulted Dr Bernardine McKellar concerning the attendance on Dr Livingstone the previous month. By then, Dr McKellar knew of Dr Livingstone's report. Relevantly, Dr McKellar only told her that Dr Livingstone had recommended that she continue with her physiotherapy. The appellant spoke to Dr Hopkins in mid-December 1993 to discuss Dr Livingstone's recommendation for continuing physiotherapy. Like Dr McKellar, Dr Hopkins did not alert the appellant to the passage in Dr Livingstone's report which mentioned that "long term continuation" of the appellant's work might not be possible. It would not have been unreasonable of the appellant to have assumed that those general practitioners would have apprised her of the kind of concern actually expressed by Dr Livingstone about her future employment prospects, but they did not do so.

5 Subsequently, however, as Thomas J.A. explains, the appellant received a deal of medical treatment and considerable physiotherapy for her continuing, not insignificant pain and associated disabilities. A question is whether the extent of her continuing symptoms and restrictions should have caused her to take a solicitor's opinion in sufficient time to have enabled the litigation to be commenced before 24 April 1995.

6 This is a matter on which minds might fairly differ. In my opinion, making allowance for the appellant's optimism as a personal circumstance to be taken into account (cf Flemming v Gibson, CA No 2523 of 1997, 19 December 1997), by early April 1995 her predicament was such that a reasonable person in her position would have consulted a solicitor. On this basis, she was not aware of the relevant "material fact of a decisive nature" by 24 April 1995 only because she had not taken "all reasonable steps" to discover it.

7 I therefore agree in the orders proposed by Thomas J.A.

[1] Berg v Kruger Enterprises [1990] 2 Qd R 301, 304.

[3] Including Healy v Femdale Pty Ltd (CA 37 of 1992, 9 June 1993).

[4] Ss.30(1)(b) and 30(1)(c).

[5] i.e. persons competent to advise on the medical, legal and other aspects of the facts. See s.30(2).

[6] Ibid, ss 30(1)(a)(iv), 30(1)(b), 30(1)(c) and 30(2).

[9] "The nature and extent of personal injury so caused" is expressly acknowledged as a material fact relating to the cause of action in s.30(1)(a)(iv) of the Act.

[10] S.31(2) "..the Court may order..".

[11] Cf. Zuvela v Cosinarnan Concrete Pty Ltd [1996] HCA 30; (1996) 71 ALJR 29, 31.

At a glance

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Judgment (48 paragraphs)

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Cases Cited (1)