Van der Merwe v Arnott’s Biscuits Limited [2010] QSC 145

The plaintiff’s application was for an extension of the limitation period pursuant to sections 30 and 31 of the Limitations of Actions Act 1974 (Qld) for an incident in 2001, whilst employed with Arnott’s (first defendant – self insurer) by way of a labour hire arrangement with the second defendant (not named). The incident result in a back injury described at the time as sciatica and treated with physiotherapy by her local doctor. A Workers’ Compensation application was lodged and accepted.

Subsequently, the plaintiff was employed directly by Arnott’s and then suffered a further incident in 2003. A further Worker’s Compensation application was lodged and the plaintiff was referred to Dr Redmond, consultant neurosurgeon who opined:

“I reviewed this lady once again on 6 February 2003. She has improved quite a deal since I last saw her. She has had an MRI scan performed which shows a central L5-S1 disc protrusion with no nerve compression. I have told her she does not need any

neurosurgical intervention but she does need to lose weight,

get fit, cease smoking cigarettes and negotiate with her

employer to obtain a situation that does not require so

much heavy lifting and bending as is apparently required in

the laundry section.”

AND further:

“4. I am therefore of the opinion that this lady’s medical

condition is not attributable to her employment. 5. I am not

aware of any non-work or psycho-social factors which have

contributed towards the development of her condition. 6. I

do not consider that injury on 11 January 2003 to be an

aggravation of a pre-existing condition.”

Consequently the plaintiff’s application for compensation was rejected. The plaintiff enlisted the assistance of her union and GP and it was reviewed by Q-COMP who affirmed the decision in reliance of Dr Redmond’s report and no further action was taken except the plaintiff wrote a letter to Q-COMP, the union and her employer as follows:

“I have come to realise that I am fighting a losing battle here for fairness and so I have to reluctantly let this rest now, but I want it on record by writing this letter that I totally dispute the decision and your reasons for that decision. I do not believe I was given a fair chance nor do I believe I deserve to lose my job over this. I am a good worker no matter what job I am given to do. I feel like a drop in the ocean trying to fight a whale, so I guess it’s time to put this to rest and move on (in pain). There are a few more things that I could mention and dispute, but I guess there would be no point to that either.”

The plaintiff only obtained further employment with Black & White Taxis in their call centre in 2007, in interim she had the care of her children having separated from her husband. The plaintiff during the intervening period complained of pain and attended her local doctor on several occasions.

However, during her employment with Black & White and in about May 2007, the plaintiff suffered severe back pain and was referred to Dr Kahler, consultant neurosurgeon who recommended surgery and performed a L5-S1 discectomy and nerve root release.

In October 2007 the plaintiff consulted lawyers and in January 2009, Dr Kahler provided a report stating:

“It is not possible to state definitively whether she was have suffered this progressive deterioration in the absence of her described work injury. On the balance of probabilities I can state it is likely that the described work injury aggravated and

accelerated her condition to a point where she required

surgery and now requires further surgery to address her

condition.” (underlining added)

On the strength of the report proceedings were commenced.

There was no real debate the report of Dr Kahler provided a “material fact”. However, there was considerable debate as to whether it had the requisite decisiveness character and if the information was within the plaintiff’s means of knowledge prior to May 2007.

The plaintiff was extensively cross-examined on both aspects, but no adverse findings were made of the plaintiff’s credit or reasonableness.

As to being decisive his Honour Daubney applied the test in Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325 per Macrossan C J at 333:

“This requires the applicant/plaintiff to show that without the

newly learned fact or facts she would not, even with the

benefit of appropriate advice, have previously appreciated

that she had a worthwhile action to pursue, and should in her

own interests pursue it”

His Honour further opined:

I emphasise the word: “worthwhile” in that test because as

Thomas JA said Watters v Queensland Rail [2000] QCA 51 at

[9]: “The fact could only be of a decisive character, if it

converted the claim from ‘ one not worth bringing into one that was'”.

His Honour concluded the decisiveness point as follows:

“In the circumstances of this case, as I have outlined them

above, I consider that a reasonable person in the plaintiff’s position would not have been able to form the view that any right of action which they might have against the first defendant or the second defendant would have reasonable prospects of success until they were apprised of the information which Dr Kahler gave this plaintiff in May 2007. Accordingly I consider that these were material facts of a decisive character relating to the plaintiff’s cause of action”

As to whether the information was within her means of knowledge much was submitted by the defendants that in the face of the pain it and the period of time which elapsed, it was reasonable and within her means to seek a second opinion from another doctor.

However, his Honour formed the view that if neither her GP or union recommended it to her, then it was not unreasonable for the plaintiff’s to adopt a fatalistic approach to her situation. His honour cited the recent decision by McMeekin J in Baillie v Kreber [2010] QSC 52 at [32], approving the test by Keane JA in NF v State of Queensland [2005] QCA 110 at [29].

His Honour concluded the point of within her knowledge by holding:

“One might ask rhetorically ”If it did not occur to her union

Or to her general practitioner to suggest that the plaintiff

obtain a second opinion, how can it be said that it was less

than reasonable for the plaintiff not a agitate for that

herself?”

The final question to be determined was if there was any prejudice to the defendants, which would prevent a fair trial.

The defendants raise:

(a) the general prejudice inherent from and caused by delay in

the sense described by McHugh J in Brisbane South Regional

Health Authority v Taylor [1996] 186 CLR 541 at 8;

(b) apprehended difficulties in conducting investigations

at this temporal remove from the 2001 incident.

His Honour responded:

It is said, for example, that it seems that there was no

incident report created after the 2001 incident nor does the first defendant have documents relating to the incident. If an incident report and other such documents never existed, then it is difficult to see how the defendants can be prejudiced by not having documents which never existed anyway.

Similarly an argument was advanced (somewhat faintly) that the

defendants would be prejudiced because the particular washing machines were replaced and disposed of in 2008. Frankly I find it difficult to accept that the defendants would not be able, with some little inquiry, to find an exemplar of a front

loading industrial washing machine as in use only eight or nine years ago.

Daubney J held that none of these considerations fell within Muir v Franklins Limited [2001] QCA 173 per Mullins J at [56], and ruled against prejudice.

Accordingly, leave was given to extend the limitation period with costs in cause as against the first defendant and no order as to costs against the second defendant.

Brisbane Barrister – David Cormack

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