State of Queensland v Stephenson

State of Queensland v Stephenson - [2006] HCA 20 - HCA 2006 case summary — Zoe

[7]

GUMMOW, HAYNE AND CRENNAN JJ. These appeals[1] and application for special leave[2] are brought from the Queensland Court of Appeal and involve common issues. These turn upon a close consideration of the text and structure of Pt 3 (ss 29‑40) of the Limitation of Actions Act 1974 (Q) ("the Limitation Act"). Of the British ancestor of Pt 3[3], Lord Reid observed that it had a strong claim to the distinction of being the worst drafted Act on the statute book[4]. The three cases now before this Court in turn reflect divergences of views in the Supreme Court of Queensland, both at first instance and in the Court of Appeal, on fundamental matters of construction of the Queensland statute.
The plaintiff in each proceeding is a former member of the Queensland Police Service ("the Service") who had performed duties in the investigation of drug dealing which involved him in undercover or covert activities. There were dramatic and life-threatening events and each plaintiff claims that, after return to his ordinary duties, he developed a psychiatric condition and attempted unsuccessfully to persevere with his Service career. After the end of his employment in the Service, each plaintiff sued the employer, the State of Queensland ("the State"), in negligence for damages for personal injury.
The Police Service Administration Act 1990 (Q) ("the PSA Act") provided for retirement on medical grounds. It was more financially advantageous to the plaintiffs for them to retire on medical grounds rather than resign from the Service. However, the procedures for retirement on medical grounds include[5] the satisfaction of the Commissioner, on the basis of medical opinion, that the officer in question should not continue to be required to perform duties as an officer and also is insufficiently fit to perform duties in alternate employment. By the time these procedures had been completed and the plaintiffs had retired on medical grounds (23 February 2001 in the case of Mr Stephenson, 10 August 2001 in the case of Mr Reeman and 9 March 2001 in the case of Mr Wrightson) more than three years had elapsed since the accrual of their causes of action. Accordingly, the time bar imposed by s 11 of the Limitation Act had operated.
Section 11 of the Limitation Act is found in Pt 2 (ss 9‑28). Part 2 is headed "PERIODS OF LIMITATION FOR DIFFERENT CLASSES OF ACTIONS". In respect of actions for personal injury in tort, s 11 fixes a general limitation period of three years from the date on which the cause of action arose.
Each of the proceedings against the State was instituted in the Supreme Court after the expiry of the three year limitation period fixed by s 11. Proceedings were instituted on 20 December 2001 by Mr Stephenson, 22 July 2002 by Mr Reeman and 20 December 2001 by Mr Wrightson. The actions were statute‑barred unless there was some additional statutory provision for relaxation of that time bar imposed by s 11. The State pleaded the time bar in each case and applied for summary judgment. Each plaintiff responded with an extension of time application under s 31 of the Limitation Act. If the extension of time were granted, this would answer the summary judgment application.
Part 3 of the Limitation Act (ss 29‑40) is headed "EXTENSION OF PERIODS OF LIMITATION". Section 33 states:

[15]

It will be apparent that s 31(2) both creates a new subject-matter for adjudication and invests jurisdiction to determine applications made thereunder. The section thus is an example of the double function discussed in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett[6] and in later authorities concerning State legislation including James Hardie & Coy Pty Ltd v Seltsam Pty Ltd[7].
The jurisdictional threshold requires that the applicant claim to have a right of action to which the description in s 31(1) applies. That requirement, as has been indicated, was met by all the plaintiffs in these cases. Further, it must appear to the court that, limitation questions aside, there is evidence to establish the right of action in question. The satisfaction of that requirement also is not in dispute. The provision states that the court "may" make an order. It is accepted by the State that, if the criteria specified in s 31 otherwise are satisfied, the discretion indicated by the use of that term should be exercised in favour of the plaintiffs for extension of the time bar.
The exercise of the jurisdiction created by s 31(2) operates upon the period of limitation otherwise applicable, here the three year period prescribed by s 11. The court may make an order which has the effect of altering the prescribed period so that it expires at the end of one year after a date which is ascertained in accordance with par (a) of s 31(2).
On its face, s 31 authorises the obtaining of an extension before the institution of the action within the period so extended. However, s 31 may also be utilised where an action already has been instituted (s 31(3)). That was the state of affairs with which all three cases were concerned. As remarked above, in each instance, an action had been instituted out of time and an application under s 31 was made subsequently.
An appreciation of the operation of the critical provision made by s 31(2) is assisted by reference to the chronology of the Stephenson litigation. During mid‑1997, Mr Stephenson commenced to suffer from symptoms of increasingly severe depression and he developed a paranoid reaction to the Service. The limitation period fixed by s 11 thus expired by mid‑2000. He retired on medical grounds on 23 February 2001. Thereafter, on 20 December 2001, Mr Stephenson instituted an action in the Supreme Court. The State pleaded the time bar imposed by s 11 and applied for summary judgment. In response, on 14 October 2003, Mr Stephenson made an application, under s 31 and in the action which was on foot, for an extension, as it were nunc pro tunc, of the time for the commencement of that action to 20 December 2001.
If the terms of s 31(2) be read against that sequence of events in Stephenson, the following appears. The commencement of the last year preceding the expiration of the three year s 11 period was mid‑1999; until a date ("the relevant date") occurring after mid‑1999, a material fact of a decisive character relating to the right of action must not have been within the means of knowledge of Mr Stephenson; the court then might order an extension to expire on a date ("the expiry date") being at the end of one year after the relevant date.
But, in the events that had happened, the expiry date could be no later than 20 December 2001. This was when the action had been instituted, and it was that action which Mr Stephenson sought to keep on foot, so that, in turn, "the relevant date" could be no later than 20 December 2000. Mr Stephenson thus had to show that until after 20 December 2000 a material fact of a decisive character relating to the right of action was not within his means of knowledge.
This conjunction of circumstances attracted the description by the primary judge (McMurdo J) of 20 December 2000 as the "critical date". However, it is to be observed that what made 20 December 2000 of critical importance, rather than any other date after mid‑1999, was the date of the institution of the action, out of time, on 20 December 2001. That narrowed the selection of the relevant date, in a fashion that would not necessarily have obtained, for example, if the extension application had been made in advance of the institution of an action, so that the action was to be commenced within the extended period[8].
Hence, in construing the legislation, reference will be made to the two temporal points fixed in s 31(2) as "the expiry date" and "the relevant date".
The determinative issue of construction concerns the phrase in par (a) of s 31(2) "a material fact of a decisive character relating to the right of action"; it is this which "was not within the means of knowledge of the applicant" until the relevant date. Counsel for the State interprets the critical expression as involving two key conceptions. One is "a material fact ... relating to the right of action" and the other is the possession by that material fact of "a decisive character". The consequence is said to be that an applicant must fail if reliance is placed on a material fact which, although it did not assume a decisive character until after the relevant date, was within the means of knowledge of the applicant before the relevant date.
On the other hand, counsel for Messrs Stephenson, Reeman and Wrightson submit that the critical phrase in par (a) of s 31(2) is a composite term which is not to be dissected in the fashion urged by the State. In that regard, counsel rely upon the reasoning of Davies JA in his judgment in Stephenson[9]. His Honour said:

[21]

The text of par (a) of s 31(2) suggests further questions for the elaboration of its terms in at least three respects. First, what is conveyed by the expression "within the means of knowledge of the applicant"? To this, par (c) of s 30(1) is addressed[11]. Secondly, what is "a material fact"? Paragraph (a) of s 30(1) supplies content to that expression[12]. Thirdly, what gives to a material fact "a decisive character"? This is explained by par (b) of s 30(1)[13].
At what the particular applicant puts forward as the relevant date, a certain fact must not have been "within the means of knowledge of the applicant" (s 31(2)(a)). A fact is not within the means of knowledge of the applicant if ("but only if") the applicant did not know it and in so far as the fact was "able to be found out" by the applicant, the applicant had taken all reasonable steps to find it out. This reading of par (a) of s 31(2) follows from the exegesis provided in par (c) of s 30(1). The fact which is identified must answer the description in par (a) of s 31(2) "a material fact of a decisive character relating to the right of action". It is a fact of this particular quality which, until the relevant date, must not have been within the means of knowledge of the applicant. What must not have been within the means of knowledge of the applicant until the relevant date is not merely a material fact relating to the right of action in question. The material fact must be "of a decisive character". The provision is so drawn as to assume that there may be material facts which are not of a decisive character.
Awareness before the relevant date of a material fact, of itself, will be of no significance for the operation of par (a) of s 31(2). However, awareness of a material fact of a decisive character before that date will be fatal to an application to the court if that is what is relied upon to satisfy par (a). These cases turn upon neither of those circumstances.
The State points to findings of the awareness by the plaintiffs of a material fact before what was the critical date (the relevant date dictated by the particular circumstances) as sufficient to disqualify the plaintiffs. It is said to be beside the point that there were also findings that the material fact had not assumed a decisive character before the critical date.
The additional provisions made in s 30(1) do not assist the submission of the State. The phrase "a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant" has elements which suggest both objectively ascertainable criteria and also a response to the existence of those criteria. The objectively ascertainable criteria include those facts and circumstances included by par (a) of s 30(1) in the expression "the material facts relating to a right of action". Paragraph (a) states that the material facts relating to the right of action "include" certain matters. These include the fact of the occurrence of the acts or omissions upon which the right of action is founded, the identity of the tortfeasor, the fact that the breach has caused personal injury, the nature and extent of the personal injury and the extent to which it was caused by the tortious act or omission.
The ascription to material facts of the character of "decisive" looks to the response of an actor. It is here that the exegesis supplied by par (b) of s 30(1) comes into play. The court is to consider the response of "a reasonable person" in the manner explained in that paragraph. The particular claimant is to enjoy the advantage conferred by the provision in s 30(1) for the making of an extension order only by satisfaction of criteria which look to the response of a reasonable person. In this way, s 30(1) assists and controls an understanding of the compound conception in s 31(2).
This understanding of the significance of the explanatory provisions in pars (a), (b) and (c) of s 30(1) assists rather than weakens the construction which favours Messrs Stephenson, Reeman and Wrightson. The relevant provisions of ss 30 and 31, read together, indicate what it is that, if not within the means of knowledge of the applicant until a date after the relevant date, provides the necessary step for a successful application for extension.
Read in this way, s 31 addresses the injustice which would arise if a plaintiff were to be met with the immovable barrier raised by the expiration of the limitation period where the plaintiff neither would nor should have sued in time because of the lack of the means of knowledge of a material fact of a decisive character which related to the right of action.
The effect of the construction urged by the State is to destroy the composite nature of the expression "a material fact of a decisive character relating to the right of action" and also to sever the temporal nexus between the material facts and the "decisive character" which they must bear. An applicant might yet be precluded from obtaining an extension of time even though a reasonable person would not and could not form the view mandated by par (b) of s 30(1) that allows material facts to be regarded as having "a decisive character". On the construction favoured by the State, par (b) of s 30(1) only assumes significance once an applicant has established that a material fact came within the means of knowledge of the applicant after the relevant date.
The better view is that the means of knowledge (in the sense given by par (c) of s 30(1)) of a material fact is insufficient of itself to propel the applicant outside s 31(2)(a). For circumstances to run against the making of a successful extension application, the material fact must have "a decisive character". Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say, as the plaintiffs submit in their written submissions, that in a sense none of the material facts relating to the applicant's right of action is of a decisive character until a reasonable person "knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing" the features described in sub‑pars (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court.
The practical result of this construction is that an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a)) coincides with the circumstance that a reasonable person with the applicant's knowledge would regard the facts as justifying and mandating that an action be brought in the applicant's own interests (as in s 30(1)(b)). If this conjunction of circumstances first occurs before the commencement of the last year of the limitation period, no application for an extension can be brought; the applicant has the benefit of at least one year before the limitation period expires and is required to act within that time. If the conjunction occurs after the commencement of that last year, the court is empowered, if the other criteria in s 31 are satisfied, to extend time for one year from the date of that conjunction of circumstances.
If the question of statutory construction be resolved in this way and if it be accepted that in each case a material fact did not assume its decisive character until after the critical date, then the applications for extension should have succeeded. Upon that basis, it would be unnecessary to consider the plaintiffs' alternative submissions that a "new" material fact (and so a new relevant date) emerged after the critical date.
The question then becomes whether the primary judges concluded in each case that the element that a material fact be "of a decisive character" had not been satisfied before the critical date and, if so, whether those conclusions are challenged. We turn to consider the situation in each of the three cases.

[28]

In Stephenson, the appeal should be dismissed with costs.
In Reeman, the appeal should be allowed with costs, and the orders of the Court of Appeal set aside. In lieu thereof it should be ordered that: (1) the appeal to that Court be allowed; (2) the orders made by Holmes J be set aside and in lieu thereof it be ordered that the period of limitation for the action commenced by the appellant on 22 July 2002 be extended so that it expired on 22 July 2002; (3) the respondent pay the appellant's costs of the applications before Holmes J and of the appeal.
In Wrightson, the application for special leave to appeal should be dismissed with costs.
KIRBY J. In Ditchburn v Seltsam Ltd[14], I suggested that an encounter with statutory provisions similar to those under consideration in this appeal[15] was liable to confuse judges and lawyers causing them to emerge "on the other side dazed, bruised and not entirely certain of their whereabouts"[16]. The passage of 17 years, and many more cases struggling with the meaning of the statutory language, has not removed the sense of disorientation. In a competition involving many worthy candidates, Lord Reid's prize[17] remains in place. This is so although, as Rehnquist J noted in Chardon v Fumoro Solo[18], "[f]ew laws stand in greater need of firmly defined, easily applied rules than does the subject of periods of limitation". This desirable goal has not been attained in Australia[19]. This appeal affords the latest illustration of that fact.
In 1986, a law reform commission report was delivered proposing changes to the then template of Australian laws. It suggested a simplified approach to applications for extension of time for commencement of actions[20]. However, amendments were not enacted in Queensland applicable to these proceedings, despite judicial endorsement elsewhere of the need for reform[21]. The result is that, in the present cases, the Queensland courts were obliged to struggle with the complex and obscure statutory language borrowed originally from a deficient English model.
As a consequence of this history, there are unsurprising differences of judicial opinion over the meaning of the enacted preconditions to the courts' making orders[22] that a period of limitation be extended to expire at a later date and thereby to lift a limitation bar that would otherwise apply against the bringing of the proceeding[23]. Relevant to the present proceedings, three approaches to the uncertain language of the Limitations Act have arisen in the Supreme Court of Queensland. As explained in the joint reasons[24] and in the reasons of Heydon J[25], the several approaches may be classified as those respectively taken by Davies JA in the Court of Appeal or by McMurdo J and Holmes J in the Supreme Court, with a variation of the latter expressed in the Supreme Court by Chesterman J[26].
These appeals afford this Court the opportunity of resolving these differences of interpretation. The joint reasons prefer the interpretation favoured by Davies JA[27]. Heydon J prefers the approach favoured by McMurdo J and Holmes J[28]. Heydon J finds it unnecessary in this case to resolve the variant proposed by Chesterman J[29]. With inevitable hesitations, I join in the joint reasons in preferring the analysis of Davies JA[30]. My reasons for doing so are essentially twofold. First, I consider that Davies JA's approach is more faithful to the entirety of the language of s 31. Secondly, I consider that it more accurately upholds the remedial purpose of the legislation.

[32]

These and other considerations in Taylor establish that a plaintiff who comes within the provisions of s 31(2) of the Limitations Act has no presumptive right to an order. The plaintiff must still justify the exercise of a discretion in favour of an extension order. However, such considerations do not alter the character of the extension provisions in the Limitations Act as beneficial or remedial. Nor do they resolve the differences that have arisen over the meaning of such statutory language.
The provenance of the statutory provisions, their purpose and the authorities cited by the appellants all support the proposition that the provisions are beneficial and remedial and thus to be read literally so as to achieve their protective objects. Historically, they came about in response to the apparently unjust decision in England in Cartledge v E Jopling & Sons Ltd[37]. The House of Lords had there held that a plaintiff in a personal injury action was statute-barred, even before the existence of the action became discoverable by him by any reasonable means. The consequence of the disquiet that followed the decision in Cartledge was the establishment of the Committee on Limitation of Actions in Personal Injury, the presentation by that Committee of its report and the enactment by the United Kingdom Parliament in 1963 of reforms to the Limitations Act designed to respond to the Committee's recommendations[38].
Against the background of this legislative history, it cannot be doubted that the amendments, reflected in Queensland in s 31 of the Limitations Act, were intended to be remedial and, to the full extent that the enacted language permitted it, beneficial and reformatory. They were beneficial because, in the circumstances specified, they permitted plaintiffs, otherwise statute-barred, to bring proceedings. As this Court explained in Sola Optical Australia Pty Ltd v Mills[39], "the broad purpose of the Act was … to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced".
Other courts have also recognised the remedial character of provisions, similar to those in issue in this appeal, allowing an extension of the limitation period. Thus in Briggs, Hope JA, struggling with the meaning of the New South Wales equivalent to s 31(2)(a) of the Limitations Act[40], said[41]:

[61]

Mr Stephenson began proceedings on 20 December 2001. For him the critical date was thus 20 December 2000.
As just indicated, McMurdo J at first instance[48] found that as at the critical date s 30(1)(b)(i) was satisfied. He also found, however, that s 30(1)(b)(ii) was not satisfied, because had Mr Stephenson commenced proceedings before 20 December 2000 he would have exacerbated the mental illnesses from which he was suffering and put at risk his chance of being allowed to take a medical retirement on favourable terms, since it might cause the QPS to take a less sympathetic approach to that course. Prior to 20 December 2000, the material facts were not, therefore, of a decisive character.
Mr Stephenson then advanced two arguments to bring himself within s 31(2)(a).
The first was that changes in his circumstances after the critical date caused already known material facts to take on a decisive character. The changes were that his health improved, and an application to retire on medical grounds succeeded, taking effect on 23 February 2001. McMurdo J rejected this argument on the ground that it followed from s 31(2)(a) that there was only one date on which a fact entered an applicant's means of knowledge: if it did so before the critical date, s 31(2)(a) was not satisfied, even if its character changed after that date from being non-decisive to decisive. As was just noted, the correctness of this conclusion is the primary issue of law in these appeals.
The second argument was that a new material fact of a decisive character had come into existence after the material date - Mr Stephenson's employment had ceased. McMurdo J rejected this argument on the ground that while the fact was a material fact relating to the cause of action, because it was relevant to Mr Stephenson's claim for economic loss, it was not of a decisive character. A fact could only have a decisive character if it satisfied both sub-pars (i) and (ii) of s 30(1)(b). While the termination of employment was relevant to the decision to sue (a s 30(1)(b)(ii) matter), it did not affect the prospect of success of the action or the recovery of sufficient damages within the meaning of s 30(1)(b)(i). Accordingly, McMurdo J concluded that Mr Stephenson failed to establish what s 31(2)(a) required.
In the Court of Appeal[49], Chesterman J concluded that McMurdo J was correct to dismiss Mr Stephenson's application, but essentially on a different ground. On the other hand, Davies and Williams JJA allowed the appeal. Davies JA's reasons for judgment, in particular, developed a construction of s 31(2)(a) which has attracted later support. It led him to disagree with McMurdo J's reasons for rejecting Mr Stephenson's first argument on s 31(2)(b). He said: "the question is not when all material facts came within the means of knowledge of the applicant. It is when all material facts of a decisive character relating to the right of action came within his means of knowledge."[50]

[62]

Mr Reeman instituted proceedings on 22 July 2002. For him the critical date was thus 22 July 2001. Like Mr Stephenson, before the critical date he knew facts which satisfied s 30(1)(a) and (b)(i), but not s 30(1)(b)(ii).
Mr Reeman relied on three material facts of a decisive character as not being known to him until after 22 July 2001. The first was the fact that his prospects of continuing in the QPS were poor: he discovered this as a material fact in early 2001, but it did not assume a decisive character until after the critical date. The second was his retirement on 10 August 2001. The third was an improvement in his health in February 2002.
The primary judge, Holmes J, held[51], as McMurdo J had held in relation to Mr Stephenson, that while the prospect of not continuing in the QPS was a material fact relating to the right of action, and was known before the critical date, because s 30(1)(b)(ii) was not satisfied, that fact was not then decisive, and only became decisive after that date when his health improved. In her Honour's judgment that did not satisfy the requirements of s 31(2)(a). She concurred in McMurdo J's reasons. As to the second material fact relied on, Holmes J held that Mr Reeman's actual retirement was not a material fact of a decisive character which only entered his means of knowledge after the critical date, because he had known before that date that his career with the QPS was over. In relation to the third alleged material fact, his supposed improvement in health, her Honour held that it did not exist, and, even if it did, that it was not a material fact "relating to the right of action" but, at most, a matter relevant to determining whether an existing material fact was decisive.
The Court of Appeal dismissed Mr Reeman's appeal[52]. Chesterman J did so for the reasons he gave in Mr Stephenson's case. Williams JA agreed in substance with Holmes J. Davies JA, on the other hand, allowed the appeal, because he applied the construction of s 31(2)(a) he had propounded in Stephenson v State of Queensland, and rejected that of Holmes J.

[63]

Mr Wrightson commenced proceedings on 20 December 2001. The critical date in his case was thus 20 December 2000. The primary judge, Helman J (who heard Mr Wrightson's application at a date earlier than the dates on which McMurdo J and Holmes J decided those of Mr Stephenson and Mr Reeman respectively), granted Mr Wrightson's application[53]. It was accepted that sub-par (i) of the definition in s 30(1)(b) of "material facts ... of a decisive character" was satisfied by 4 October 2000 when, having been told by his treating psychiatrist that he was unfit for duty, Mr Wrightson applied for retirement from the QPS. Helman J approached the question as being whether Mr Wrightson ought, in his own interests and taking his own circumstances into account, to have brought an action before 20 December 2000. In particular, should he have brought the action before 20 December 2000, or early in 2001, after being told on 22 February 2001 that his application to retire on medical grounds had been accepted with effect from 9 March 2001? Helman J held that a reasonable person would not have regarded the facts as showing that Mr Wrightson ought to have brought an action before 20 December 2000 principally because the pressure of instituting proceedings against an employer from whose employment he had not been released would have caused a further deterioration in his mental health.
An appeal to the Court of Appeal by the State of Queensland failed[54]. Judgment was delivered after the decisions in the appeals of Mr Stephenson and Mr Reeman, and after special leave to appeal to this Court against the orders in the Court of Appeal in those cases had been granted. McMurdo P preferred the approach of Davies JA in Stephenson v State of Queensland to the approaches of McMurdo J and Chesterman J in that case, but this approach was not decisive for her Honour's reasoning. She agreed with Helman J's reasons for concluding that when Mr Wrightson learned that his resignation had been accepted he had learned a fact "of a decisive character". Her Honour said the fact was "material" because it went to the nature and extent of the personal injury caused to Mr Wrightson: the decision by his employer that he was medically unfit for work bore on the extent of its economic effects. Williams JA based his decision to dismiss the appeal on his reasoning in Stephenson v State of Queensland. Jerrard JA agreed with the approach of Davies JA, and with the reasons of Helman J.

[91]

Utility of the New South Wales Law Reform Commission Report. The New South Wales Law Reform Commission was not directing itself to the present issue in the passages relied on by the plaintiffs. Those passages bear on the construction of s 30(1)(b)(ii) but not s 31(2)(a). In consequence, it is not surprising that the language of the Commission does not assist in resolving the present problem.
The authorities: general. The same is true of the authorities relied on by either side. The factual circumstances to which the language of ss 30 and 31 is to be applied can be very diverse. There was a tendency in argument before this Court to over-emphasise, and seek to apply to the present appeals, the particular phrases which were used in past cases not concerned with the precise problems raised by the facts of these appeals and which were directed to particular features of those cases. That is an undesirable approach. Rather, it is appropriate in each individual case to apply to the specific facts of that case the words of the legislation. In particular, some of the cases cited dealt with the emergence of wholly new facts, and inquired about their materiality or decisiveness. None deals with the fact which is known and the materiality of which is clear before the relevant period, but which only becomes decisive during that period.
Wrightson v State of Queensland. In Wrightson v State of Queensland, Helman J did not employ the specific reasoning which Davies JA adopted, although his conclusion is consistent with it.
Royal North Shore Hospital v Henderson. In Royal North Shore Hospital v Henderson[77] a material fact was discovered two months before the applicant commenced the action - namely, that the excess radiation which the applicant had received, initially causing him scarring and stiffness but much later giving him radicular myelopathy, an extremely grave disease, was the result of a lack of proper care. Any observations favourable to the plaintiffs' submissions here were dicta only, not directed to the present problem.
Tiernan v Tiernan. In Tiernan v Tiernan[78] a material fact was discovered less than 12 months before proceedings began: a causal relationship between the applicant's psychiatric condition and the abuse to which she had been subjected by her adoptive father. In Stephenson v State of Queensland[79], Davies JA quoted some passages from Byrne J's reasons for judgment in Tiernan v Tiernan, and said that Byrne J "adopted the construction of ... s 31(2)(a) which I have adopted". However, those passages only discussed s 30(b)(ii), the equivalent to the present s 30(1)(b)(ii), and said nothing about s 31(2)(a).
Broken Hill Pty Co Ltd v Waugh. In Broken Hill Pty Co Ltd v Waugh[80] the outcome turned on: (i) the holding that less than 12 months before the proceedings began, the applicant had learned of a material fact - that he had an asbestos related lung disease; and (ii) the conclusion that his earlier suspicions about it, amounting to a perception of a possibility, were not equivalent to a material fact. Davies JA quoted a passage from Clarke JA's reasons for judgment[81], but it cannot be said to support Davies JA's reasoning because it was not written with the present problem in mind.
Conclusion. Like many questions of statutory construction, the question of which view is correct is finely balanced, and explanation of the reasons for a particular conclusion is not susceptible of much elaboration. The opinion of McMurdo J and Holmes J is to be preferred.
The definitions to be found in ss 30(1)(a) and 30(1)(b) suggest that one key conception in s 31(2) is "material facts relating to a right of action" and another is the possession by those facts of a "decisive character". Section 30(1)(c) in turn suggests that yet another key conception in relation to what is within a person's means of knowledge as described in s 31(2)(a) is whether it is a "fact" which is not known, despite all reasonable steps having been taken to find it out. Section 30(1)(c) identifies as the crucial integer the "fact", not its character as a material fact relating to the right of action, and not its decisive character.
Section 30(1)(c) suggests that the inquiry under s 31(2)(a) into the date when a material fact of a decisive character relating to the right of action is within the applicant's means of knowledge is an inquiry centring on knowledge of the fact by itself, independently of whether the fact is a material fact relating to the right of action or whether the fact is of a decisive character. That view is also supported by a comparison of the terms of pars (a), (b) and (c) of s 30(1). The "materiality" of a fact is to be judged by reference to the factors in s 30(1)(a): these are impersonal factors, not related to the perceptions of the applicant. The "decisive character" of a fact is to be judged by the criteria in s 30(1)(b): these too are impersonal, and in addition they are to be based on the assessment of a reasonable person. In contrast, the inquiries on which s 30(1)(c) turns, whether the applicant knew the fact or took all reasonable steps to find it out, are limited to the actual mental state - what did the applicant know? - and the actual behaviour - what steps did the applicant take? - of the applicant in relation to the existence of a fact. The inquiries on which s 30(1)(c) turns are not related to the character of the fact as one which is material to the right of action, or one which is of a decisive character.
Where, as here, a material fact relating to the cause of action was known before the critical date but its decisive character was not known until after the critical date, it is awkward, to the point of being misleading and false, to speak of it as a fact which was not within the applicant's means of knowledge until after the critical date. If it is a fact which was not within the applicant's means of knowledge at the critical date, by definition it is a fact which the applicant did not know at that time, and which the applicant had taken all reasonable steps to find out before that time. Yet, where, as in the circumstances postulated, the applicant did know the fact at the critical date, the applicant's mental state is not one of a lack of knowledge of the fact, but rather a lack of appreciation of one of its characteristics.
Here, for each plaintiff, the relevant fact was that for all practical purposes his career with the QPS was over in the sense that the formalities necessary to achieve that result would shortly take place. Each plaintiff knew that fact before the critical date, or should have known it if he had taken all reasonable steps. In each case that fact was a material fact relating to the right of action and in each case the courts below held or assumed that the plaintiff knew or had access to information which should reasonably have caused him to know that the end of his career with the QPS would have adverse financial effects. In each case the fact did not take on a decisive character until after the critical date. In those circumstances it cannot be said of the fact that it was a material fact of a decisive character relating to the right of action which was not within the means of knowledge of each plaintiff before the critical date: the truth is that the fact was within the means of knowledge of each plaintiff before the critical date.
The plaintiffs advanced the general argument that what ss 30 and 31 required was demonstration of a reason why proceedings were not brought within the limitation period of a kind showing that an applicant was not at fault or blameworthy. For ss 30 and 31 to have achieved either that general outcome, or the more specific outcome favoured by the judges who have applied Davies JA's reasoning, it would have been necessary for quite different language to have been employed.
It follows that the arguments of each plaintiff fail so far as each relies on a material fact which, though known before the critical date, was not of a decisive character until after that date.

[92]

It is necessary to turn to the plaintiffs' contentions that there were facts not within their means of knowledge until after the critical date, being material facts which related to the right of action and which were of a decisive character. Before the respective primary judges, each plaintiff relied on the actual cessation of his employment. In addition Mr Reeman and Mr Wrightson, directly, and Mr Stephenson, indirectly, relied on an improvement in their health.
Improvement in health. In all three cases there was in fact no improvement in health. In the case of Mr Stephenson, McMurdo J was not directly invited to find one and did not find one. The evidence relied on in this Court did not establish anything more than a favourable fluctuation likely to be followed by a fluctuation in the opposite direction. In the case of Mr Reeman, Holmes J found that the evidence indicated no significant recovery in health. Williams JA said, and Davies JA and Chesterman J did not disagree, that no basis had been established in the argument before the Court of Appeal for setting that finding aside. The same is true of the argument in this Court. In the case of Mr Wrightson, Helman J made no finding of an improvement in health - all he stated was that if Mr Wrightson brought his action after his retirement he would not further injure his health. The reason assigned for substituting for that finding the finding which counsel for Mr Wrightson urged in this Court is that Mr Wrightson obtained a job after leaving the QPS. That is not sufficient.
Even if the evidence had established an improvement in health, that is incapable, as Holmes J said, of being a material fact relating to a right of action, as distinct from a matter relevant to determining whether a material fact relating to a right of action was of a decisive character.
Termination of employment: the argument for the plaintiffs. The argument for the proposition that the retirement of each plaintiff from the QPS was a material fact of a decisive character relating to the right of action which was not within the means of knowledge of each plaintiff until it actually happened, in each case after the critical date, was put most clearly by Jerrard JA[82]:

[94]

Termination of employment: the crucial issue. It is true that a fact tending to increase damages significantly, while not mentioned in the five sub-pars of the definition of "material fact" in s 30(1)(a), may be a material fact taken up by the word "include". However, where a tort causing personal injury to the victim and impairing the victim's capacity for work is committed, it is necessary to remember the basis on which that element of damages compensating for that impaired capacity is calculated. Damages calculated by reference to that element, both in the period from injury to trial and in the post-trial period, are damages to compensate for that loss of capacity, not to compensate for loss of earnings simpliciter. But since damages for lost earning capacity are awardable only to the extent that the lost earning capacity has been or may be productive of financial loss, it is necessary to consider what monies could have been produced by the exercise of the former earning capacity[83]. Sometimes those damages are calculated by reference to the rate of earnings being paid to the victim by an employer before the injury and the rate which the victim might earn from that employer in the future. In the present circumstances it would be likely that each plaintiff would have claimed the difference between what he would have earned in the QPS had his employment not been terminated and what lesser figure he would be likely to earn in the open market otherwise than as a police officer. If, after the injury had been inflicted and developed in the period up to the critical date, it became inevitable that each plaintiff would have to leave the QPS, the precise date of departure was immaterial. The injury to capacity, which on each plaintiff's case was severe, was the same whatever the date. The facts relevant to computing the monetary sum needed to compensate the plaintiff for that injury, which on each plaintiff's case was large, were the same whatever the date. The only thing that could differ by reason of the date would be the precise amount actually recovered as damages, for the longer each plaintiff was employed by the QPS on full pay, the lower that precise amount.
On each of the plaintiffs' cases, what the tort did to each plaintiff was to damage his capacity to work: it annihilated his capacity to work as a police officer, and significantly impaired his capacity to work in other respects. Each plaintiff submitted that he had suffered no economic loss until he left the QPS, but the timing of the departure was immaterial both to him and to the QPS. The earlier he went, the less he would receive in ordinary pay or sick pay, but the more he would receive in damages. The receipt of ordinary pay or sick pay merely mitigated the loss he suffered.
The crucial issue, then, was whether before the critical date each plaintiff did not know, despite taking all reasonable steps to find out, a fact which he learned after that date - that his departure from the QPS was inevitable because of having been permanently incapacitated for police work. If that fact was within a plaintiff's knowledge before the critical date, it would be impossible to contend that it was a fact satisfying s 31(2)(a). In each case the fact was within the plaintiff's knowledge.
Termination of employment: Mr Stephenson. At the material time, the process by which police officers left the QPS on medical grounds depended on the officer applying to retire or on the QPS serving a notice on the officer. On 26 October 2000, before the critical date of 20 December 2000, Mr Stephenson signed an application to retire on grounds of post traumatic stress syndrome, and that application was supported by a psychiatrist and three police officers. This was formally submitted in November 2000. McMurdo J found that Mr Stephenson knew by the end of November 2000 that he was permanently incapacitated for police work. He found that from that date Mr Stephenson knew, or should have known, that he would have to leave the QPS.
Those conclusions were not criticised in the Court of Appeal. Nor were they successfully attacked in this Court. Accordingly, the fact that on 16 February 2001 Mr Stephenson was advised that his application for retirement on medical grounds had been accepted and would be effective from 23 February 2001 made no difference to his prospects of success in litigation and did not satisfy s 31(2)(a).
Termination of employment: Mr Reeman. Mr Reeman's critical date was 22 July 2001. On 16 August 2000, he went on sick leave. In March 2001, he told a representative of the QPS that while he was not prepared to seek retirement on medical grounds of his own accord, he would not oppose it. On 15 March 2001, the notes of his treating psychiatrist described him as "agreeable" to retirement on medical grounds. On 19 April 2001, he reported that he had started telling people he would not be returning to the police force. On 10 May 2001, the QPS wrote to him indicating that it suspected he was unfit for duty and that he was required to attend for psychiatric examination. On 6 June 2001, he signed an authority to release medical information to the QPS in that regard. On 11 July 2001, the QPS psychiatrist gave an opinion that he was permanently unfit for duty. Holmes J concluded that Mr Reeman had known for some months before his retirement on medical grounds in August 2001 that his career in the police force was at an end. Her Honour said: "... it would be an absurdity to say that the material fact - the unlikelihood of his remaining in the police force - was not known to Mr Reeman before the critical date; indeed it is conceded that it was."
No judge in the Court of Appeal disagreed with the reasoning leading to that conclusion, which, with respect, is correct.
Termination of employment: Mr Wrightson. On 4 October 2000, before the critical date of 20 December 2000, Mr Wrightson signed a similar application to that which Mr Stephenson signed, and it was similarly supported. He had been diagnosed as suffering from post traumatic stress disorder in September 1997, and from a major depressive disorder in February 1999. He was treated with medication and psychotherapy, but contrary to expectations, he did not recover, and from late 1999 to April 2000 his condition deteriorated. From 29 April 2000 to 9 March 2001, he was on continuous sick leave as unfit for duty. His treating psychiatrist had been advising him to apply for retirement on medical grounds since mid-2000, and eventually he accepted the psychiatrist's advice that despite his eagerness to remain the QPS, it was in his best interests to retire.
Helman J's acceptance of the "possibility - admittedly faint - that [Mr Wrightson] might be able to continue his police career" is negated by his Honour's findings in relation to the evidence about Mr Wrightson's health and circumstances. Helman J accepted that "a very large majority" of applications to retire on medical grounds from the QPS are successful. It does not take much knowledge of the world to understand why those which fail are made and why they fail. But whatever the reason for Mr Wrightson's application, his conduct could not, on his case, be described as that of a malingerer seeking an unmerited advantage from retirement. His departure from the QPS, while regrettable, was inevitable. It was a fact which was either known to him or could have been found out by taking reasonable steps. Accordingly, s 31(2)(a) was not satisfied in Mr Wrightson's case.

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