Sheehan v Ainsworth Game Technology Ltd [2011] NSWSC 797 | Case summary

Did the limitation period expire before the proceedings were commenced on 30 March 2010? 44The defendant's case was that the test is not what was known at a particular time, but what would have been ascertained, if all reasonable steps had been taken, to ascertain whether Ms Sheehan had a remedy under the Civil Liability Act . 45That Ms Sheehan did not receive legal advice about a common law claim from her counsel until March 2010 is not determinative of the question of when the cause of action was discoverable, nor is the advice given by her solicitors in October 2006, as to a potential claim, which she was advised had then been assessed as having 'reasonable prospects'. 46In Baker-Morrison , Basten JA explained at [41]: "41 Although a legal evaluative judgment appears to be required by par (b), that element is even more explicit in par (c). Thus the injury must not only be understood to be serious, but "sufficiently serious to justify" a course of action. Further, that course is "the bringing of an action on the cause of action", an objective which would appear to require the exercise of both legal and medical expertise. Similar language is found in the identification of material facts as being "of a decisive character" for the purposes of s 57B(1)(c), set out at [12] above. In that provision, the test is stated objectively, by reference to the opinion of a reasonable person, but also by asking whether one "knowing those facts and having taken the appropriate advice on those facts" would hold the identified opinion." 47There is no question that in October 2006, Ms Sheehan was advised that she had a potential common law claim. The letter also advised that further investigations would need to be undertaken. Given what was known at that point as to the nature of her injury it was plainly necessary for further medical assessments to be made, as to the nature of the injury Ms Sheehan had suffered. 48It was argued for Ms Sheehan that on the evidence she had only received advice in 2010 in relation to s 50D(1)(b) of the Act, of 'the fact that the injury or death was caused by the fault of the defendant'. It followed on that basis alone, that the claim was within time. Any failures were those of her solicitors, not hers. The initial advice was given at a time when her injuries appeared to be relatively minor. They became much more serious and eventually reached the point where it became apparent that she had a common law claim. In the circumstances, that she only received advice about these matters in 2010, was not the result of her failure to take 'all reasonable steps'. 49There is some difficulty with the submission, so advanced, given the written advice given in October 2006 and what was then known as to the cause of the accident. Nothing changed in that respect, up until the time advice was pursued in 2010. It was only then, however, that advice was given as to how causation might be proved. That was advice which could have been given in 2006. The defendant's case was that a delay until 2010 was not consistent with Ms Sheehan taking 'all reasonable steps' in relation to that matter. It seems to me that the submission has some force, given the terms of the 2006 letter. Nevertheless, the question is whether Ms Sheehan had taken all reasonable steps, given what she knew. 50I do not accept the submission that a person can sit on their hands and take no legal advice, with the result that the limitation period would only commence to run, whenever it was that such advice was sought. That approach would not be consistent with the requirement that 'all reasonable steps' be taken. In this case, Ms Sheehan did take advice. She was informed in writing of steps being pursued. The letter gave no advice of any potential limitation issue and, it follows, there was no basis for Ms Sheehan to have been concerned to ensure that steps were taken by her solicitors, to avoid any limitation problem developing. Nevertheless, having had the 2006 advice, that Ms Sheehan could thereafter take no steps to pursue her claim until March 2010, given what she had been advised in writing, may not be accepted. That would involve a failure 'to take all reasonable steps', given the terms of the advice there given. In this respect, the plaintiff's argument may not be accepted 51So far as s 50D(1)(c) is concerned, it seems to me, however, that the time when Ms Sheehan ought to have known that the injury was sufficiently serious to bring these proceedings was April 2007, when she saw Dr Hong. In this respect, the defendant's case may not be accepted. 52Ms Sheehan's evidence in cross-examination was that she did not give the 2006 advice as to her potential common law claim much thought at the time, because she was then concerned to deal with her escalating health problems, which she had not expected and which she did not understand, given her expectation that she would recover from what had begun as a very minor injury; a metal splinter entering her right thumb. That may well be understood, on the evidence. 53Ms Sheehan was experiencing ongoing pain from what had begun as a seemingly minor injury to her thumb; she had to deal with an emerging depressive condition, as well as the condition of her hand, which did not improve despite the various treatment she received. At the end of 2006, she was advised to seek further treatment, which the insurer refused to accept she required. It was when this situation emerged, that she sought help from her solicitor to pursue that treatment, being anxious to return to work. It was not until she saw Dr Hong in April 2007, that she came to understand the real nature of the serious illness which she had developed, as a consequence of what she had perceived to be a relatively minor injury from which she expected that she would recover from, with treatment. In my view, that evidence may well be accepted as reflecting a reasonable reaction to the circumstances in which Ms Sheehan found herself. 54The legal advice which Ms Sheehan had received in October 2006 was certainly less than clear. What it conveyed must be understood in the context of Ms Vogel's evidence as to what was then understood of Ms Sheehan's medical condition and the general advice which she was earlier given at the meeting she had attended, when she had given instructions about her injury. The letter must, of course, also be read as a whole. So read, it must be accepted that it was not intended to convey that absent further investigations as to the question of how negligence was to be established and the nature and extent of Ms Sheehan's injuries, that what was known to that point, was a firm basis on which proceedings in negligence could be brought. 55In Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167, the circumstances under consideration also involved an injury first diagnosed as having been relatively minor. It involved a tear to the right biceps, which was initially expected likely to resolve or substantially resolve. Beazley JA observed that in the normal course, this injury would not have been sufficiently serious to justify the bringing of proceedings (see at [55]). The injury became sufficiently serious for surgery to be recommended, Mr Liddiard then being advised that the operation would provide significant relief. It was concluded by her Honour at [55] that had significant relief then occurred, 'it is likely that the injury would not have been sufficiently serious to justify proceedings'. 56In those circumstances, it was concluded that 'the earliest the cause of action was otherwise discoverable was sometime after November 2004, when the operative treatment did not provide the relief that Dr Seex anticipated' (see at [56]). 57In this case, there was also a relatively minor injury, suffered in June 2006, which led to very substantial consequences, both physical and psychological. The defendant's argument was that it was well before March 2007, that Ms Sheehan was aware that she had suffered such a serious injury that these proceedings were available to be brought. By the end of 2006 she was still unable to work; she had been referred to a pain specialist and a psychiatrist, because of her ongoing pain; she had problems using her hand; and was suffering from a deteriorating mental state. Her condition was such that she required assistance from her husband for four hours per day to undertake her normal activities. It followed that she then knew that she had a serious injury and that while she had hopes of getting better, the limitation period could not depend on an injured person's subjective hopes. 58While the matters on which the submission was advanced may well be accepted, it seems to me on all of the evidence, that the claim has still been brought within the limitation period. 59The initial injury which Ms Sheehan suffered, involving the penetration of her thumb with a splinter, was clearly not sufficiently serious so as to justify these proceedings being brought. As discussed by Basten JA in Baker-Morrison at [46]: "It follows from this analysis, in accordance with the concession made by the State, that the plaintiff's mother did not at any stage within the relevant period have actual knowledge sufficient to satisfy par (c) or, in all probability, par (b). The approach adopted above with respect to par (c) is largely consistent with that adopted by Goldring DCJ in Rawle v Southstate Industrial Supplies Pty Ltd [2008] NSWDC 70; 7 DCLR (NSW) 134 referred to by the trial judge at [17]. Judge Goldring referred to s 50D in the following terms: "[25] ... The question of whether or not the bringing of action is justified is not simply a matter of looking at the seriousness of the injury, but also of looking at that injury in the light of the statutory requirements for claiming compensation, and that requires some understanding of the law. [26] In order to know whether the injury is sufficiently serious to justify the bringing of action, a person must know not only that the injury is serious, but also, in approximate terms, whether that injury is sufficient to bring the person over any of the statutory thresholds that now exist." 60The surgery undertaken in October 2006 was directed at removing the metal fragments which remained in Ms Sheehan's thumb. Had that procedure succeeded, the bringing of these proceedings would clearly also not have been justified. It was the consequences of the failure of that surgery, the ongoing pain which was suffered as a result and the emerging psychiatric injury, which led to the recommendation at the end of 2006, that further treatment was necessary. This was not accepted by the insurer, which led Ms Sheehan to take further legal advice. 61It seems to me that in resolving the issues which here lie between the parties, that it may not be overlooked that at the end of 2006, the need for the recommended treatment was disputed, notwithstanding that Ms Sheehan was still not judged fit to return to work and was still suffering considerable pain. Ms Sheehan's evidence, that she pursued that treatment with her solicitor's assistance, in order that she could recover and return to work, must be accepted. It is entirely consistent with the evidence of the steps which she pursued, which resulted in a referral to other medical practitioners and a disagreement as to her condition. 62It is difficult to see, in that context, that it can confidently be thought that Ms Sheehan ought then to have known that her injuries were sufficiently serious to justify the bringing of this action, or even that her solicitors could then have come to the view which the defendant urged. Ms Sheehan's evidence was that when she sought to pursue the recommended treatment with her solicitor's assistance, she did not understand the nature of the condition she had developed. She was still hopeful of a return to work if she received that treatment. In my view, that evidence must also be accepted, particularly given the nature of her original injury and what developed from it. Also to be considered is that even in March 2007, the insurer's doctor, Dr Potter, had a different view as to what was causing Ms Sheehan's ongoing physical difficulties, to that of Dr Meads. 63Had treatment then been received and succeeded, it seems to me that it would still have been questionable that Mrs Sheehan's injuries would have been sufficiently serious to warrant these proceedings being brought. 64Psychiatric treatment commenced in March 2007 and treatment for the chronic pain syndrome in April. In May, there was an unsuccessful nerve block and in June, Dr Hong advised of the potential long term difficulty which had been created, because of the delay in treatment of Ms Sheehan's condition. Unquestionably that had an impact on Ms Sheehan's deteriorating psychiatric condition. Even in April, however, Ms Sheehan hoped for a return to work, understandably, given her personal circumstances. That she was still motivated to return to work, if she could recover her health, must be accepted. Again, had the treatment which she received then succeeded despite the delay, it may have been that Ms Sheehan's injuries could not have been considered sufficiently serious to justify these proceedings being brought. There was, however, no recovery and so that question does not arise for determination. 65What must be considered is the failure of the various treatment which Ms Sheehan received in 2007 and the ongoing deterioration of her physical and psychological well being in that year and subsequently. That failure certainly justified these proceedings being brought. That situation did not exist when Ms Sheehan first saw Dr Hong in April 2007. It was then that she came to understand her serious predicament. 66In my assessment, it follows that before April 2007, Ms Sheehan cannot have had knowledge of the matters identified in s 50D(1)(c). That is not a mere matter of Ms Sheehan's perception, or an assessment of the limitation period on an impermissibly subjective basis, but has regard to the subjective and objective matters which arise for consideration on the evidence as to what Ms Sheehan knew, or ought to have known before April 2007, had she taken all reasonable steps before that time. 67I am satisfied in those circumstances that it must be concluded that the defendant has not established that the claim has been brought outside the limitation period.

Sheehan v Ainsworth Game Technology Ltd

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