In executing this manoeuvre the plaintiff felt a sudden pain in his lower back. He reported to the nursing sister at the meatworks, and later consulted his medical practitioner. He was referred to physiotherapy and after receiving workers compensation for some days he returned to work on 18 April 1991. Apart from discomfort, he did not have further trouble with his back until he slipped at work on 27 June 1994, as a result of which he was absent from work again for some time. He was involved in a further incident in which he hurt his back at work in December 1994, resulting in his being off work again until January 1994. At the date of his affidavit in April 1995, he was, contrary to medical advice, still working as a boner, but was experiencing pain.

The plaintiff was examined by Dr David White, an orthopaedic specialist on 14 March 1995, and x-rays were taken of the lumbosacral spine. According to Dr White's report of the same day, the x-rays showed severe lumbar spondylosis, which was long standing and severe, and appeared to antedate the plaintiff's first complaints in 1991. The report went on:

"The incident of 1991 and subsequent injuries would have caused an aggravation of his pre-existing degenerative change and may, in view of his lower limb symptoms, have caused a degree of protrusion of the lumbosacral disc.

This however could only be established by further investigations which, in the absence of considerations of surgical treatment, are not indicated.

I would regard him as permanently unfit for the type of work that he is doing and any other physical labour involving prolonged bending, prolonged standing, prolonged sitting or heavy lifting. He would be suitable for some lighter, semi-sedentary duties."

Dr White estimated the permanent partial disability of the plaintiff's body as a consequence of his back condition to be of the order of 20%.

In making the order extending the limitation period the learned primary judge said:

"It seems to me that until Mr Reeves saw Dr White's report he thought that the incident in 1991 had no lasting effect. Doctor White's opinion is that it possibly had lasting effect that this is sufficient to constitute that as a material fact within the definition that I've referred to."

On appeal the defendant submitted that, accepting the judge's finding to that effect, the plaintiff had failed to establish his right to have the limitation period extended under s.31 of the Limitation of Actions Act 1974. The ordinary limitation period for a case of this kind is three years; but s.31(2) enables the period to be extended in the following circumstances:

"31.(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court -

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly."

As can be seen, s.31(2) applies to a person "claiming to have a right of action". However, in order to attract a favourable exercise of the discretion conferred by the subsection, it is necessary that both of the matters specified in paras.(a) and (b) should appear. In the present case, the effect of the judge's finding was that in Dr White's opinion the 1991 incident had "possibly" had a lasting effect on the plaintiff's spinal condition; that it was this "lasting effect" that was "a material fact of a decisive character relating to the right of action"; and that it was a fact which was not within the plaintiff's knowledge or means of knowledge until he found out about it from Dr White's report. That being so, it was submitted on appeal that the plaintiff's application ought to have failed because, on the judge's finding, the 1991 incident was no more than a possible cause of the plaintiff's back condition, and so was incapable of constituting a "material fact" for the purpose of s.32(2)(a): cf. Broken Hill Proprietary Company Ltd. v. Waugh (1988) 14 N.S.W.L.R. 360, 369, where Clarke J.A. said that:

"the possibility of the occurrence of negligence, or the possibility of a causal nexus, is not sufficient of itself to qualify as a material fact relating to a cause of action ...".

The defendant's argument on appeal assumed that a person who applies for an extension is bound under s.32(2)(a) to prove affirmatively both that a material fact existed and that it was outside his means of knowledge at the relevant time; and consequently that the application to extend time must fail unless the material fact is, on the balance of probabilities and not as a mere possibility, proved to have existed. Another and not implausible approach to the subsection is that the present question arises under s.31(2)(b), which requires an applicant for an extension to show that there is "evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation". As to that, Macrossan C.J. has observed that it is "probably accurate enough to say that an applicant will meet the requirements imposed by s.31(2)(b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to provide his case". See Wood v. Glaxo Australia Pty. Ltd. [1994] 2 Qd.R. 431-435.

If the test propounded by Macrossan C.J. is applied, then the plaintiff in this instance has failed to satisfy it. The opinion of Dr White, on which the primary judge acted, was that it was no more than possible that the incident in 1991 had a lasting effect on the condition of the plaintiff's back. His opinion to that effect is related to the issue of causation of the injury and as such is something which the plaintiff would have to establish at trial. Merely proving at trial that the 1991 incident was a possible cause of the plaintiff's prevailing back condition would, even if it were not opposed by any other evidence, not suffice to prove his case. He would need to establish that element of his cause of action on the balance of probabilities. Dr White's opinion would, on the view which the learned judge formed of it below, not satisfy that requirement in para.(b) of cl.31(2).

It is, however, probably not helpful in a case like this to consider the requirements of paras.(a) and (b) of s.31(2) in isolation from each other. Section 31(2)(a) requires that it be shown that "a material fact of a decisive character relating to the right of action" was not within the means of knowledge of the applicant. Section 30(b) explains that material facts relating to a right of action are of a decisive character only if a reasonable person knowing those facts, and having taken appropriate advice, would regard them as showing:

"(i) that an action on the right of action would ... have a reasonable prospect of success ...".

Knowing that Dr White considered that the present disabled condition of the plaintiff's back was "possibly" caused by the 1991 incident would not lead a reasonable person to regard it as showing that an action on any right of action which the plaintiff might posses would have a reasonable prospect of success. It would, on the contrary, lead or tend to the conclusion that the plaintiff's prospect of success in an action against the defendant was, on the material presented in support of the application, slender.

It is not a function of s.31(2) to enable such an action to be instituted or prosecuted when, quite apart from any defence of limitation that may be raised, it will probably not succeed. In consequence, the plaintiff's application to extend time ought not to have been granted.

The appeal should be allowed; the order appealed from should be set aside; the plaintiff's application should be dismissed with costs. The plaintiff is ordered to pay the costs of the appeal. Because, however, the point involved is novel and, to some extent at least, one of law, there should be a certificate under the Appeal Costs Act.

APPEAL ALLOWED. ORDER APPEALED FROM SET ASIDE. PLAINTIFF'S APPLICATION DISMISSED WITH COSTS. PLAINTIFF ORDERED TO PAY COSTS OF THE APPEAL; AND CERTIFICATE GRANTED UNDER THE APPEAL COSTS ACT.

CATCHWORDS PERSONAL INJURIES - Application for extension of time - Section 31(2) Limitation of Actions Act 1974 - Whether there was a material fact of a decisive character - Whether action would have a reasonable prospect of success - Wood v. Glaxo Australia Pty. Ltd. [1993] QCA 114; [1994] 2 Qd.R. 431.