Grey v AHS Hospitality Pty Ltd (ACN 100437349) [2013] QDC 269

CIVIL – APPLICATION – EXTENSION OF TIME – Limitation of actions – Extension or postponement of limitation periods – Extension of time in personal injuries matters – Knowledge of material facts of decisive character

Farr SC DCJ

Applicable principles

[30] The newly discovered fact must not be considered as separate from the facts already shown.[21] If, properly advised on the state of the evidence at a particular time, the applicant should have pursued an action before the discovery of the material fact, the material fact will not be of a decisive character. Macrossan J (as he then was) in Moriarty v Sunbeam Corporation Limited[22] said:

In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s 30(b) comes down to … .[23]

[31] In Castillon v PNO Ports Limited (No.2)[24] Keane JA interpreted a number of authorities (including those referred to above) as showing a “critical mass of information” theory. At [34] his Honour said:

… The later information may have enabled the plaintiff to show that his right of action was ‘more worthwhile’ then it might have previously been thought to be, but it does not alter the circumstance that, in accordance with the evidence supporting the findings of Rackemann DCJ, there was a critical mass of information within the plaintiff’s means of knowledge prior to 27 November 2001 which justified bringing the action.”

[33] A critical dispute therefore exists between the parties as to the relevance of the applicant’s shoulder complaint.

[34] The respondent submits that the applicant’s case is missing a crucial link between the applicant’s left shoulder symptoms and her accepted injuries of carpal tunnel syndrome, chronic regional pain syndrome and depression.

[35] The applicant submits however that such a link, is found in the reports of specialist doctors Dr John Cameron[26] (Consultant Neurologist) and Dr Sarah Watts[27] (Consultant Orthopaedic Surgeon).

[43] Given the medical evidence that is before the court, I cannot conclude that there is a probable link between these complaints. There is simply inadequate evidence to allow any finding to the effect that such a link exists.

[47] I also note that that the applicant consulted a solicitor in relation to her legal rights, including the making of a common law damages claim, on 12 July 2011. She states at paragraph 13 of her affidavit that she was advised to wait until the outcome of investigations into her left shoulder condition before making a final assessment as to whether it would be economical to make a claim. The respondent submits that such advice was fundamentally flawed and that a common law damages claim ought to have been pursued at that time by means of an Urgent Notice of Claim for Damages pursuant to s 276 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), which would have preserved the applicant’s limitation period. I agree that such an approach should have been adopted at that time. In fact, I note that the applicant’s solicitors ultimately adopted that course of action on 21 March 2013 notwithstanding that the medico-legal reports obtained after June 2011 only related to the applicant’s shoulder complaint.[35]

 

[48] For these reasons I am not persuaded that there was a material fact of a decisive character which was unknown to the applicant nor within her means of knowledge by having taken reasonable steps to ascertain the fact until sometime after the commencement of the last year of the limitation period.

[49] Even if I were to accept the applicant’s assertion that:

(i) she did come to the realisation that she would not fully or substantially recover from her various work related injuries; and

(ii) that she would be unable to, after receiving all available treatment, return to her pre-accident vocation,

she was fully apprised of all necessary knowledge in relation to her carpal tunnel syndrome, complex regional pain syndrome and depression by 12 July 2011 when she consulted her solicitors. She sought advice then about pursuing a damages claim for those conditions and there is no evidence that she was provided with any new knowledge of relevance after that date by her solicitors.

Brisbane Barrister – David Cormack

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