Limitation appeal: appropriate advice and means of knowledge

Suncorp Metway Insurance Limited v Norris [2012] QCA 101

The applicant/respondent (Norris) successfully obtained an extension of the limitation period based on that it was reasonable for her not to have taken appropriate advice (medical and legal) or to have made further investigations both in respect of her medical condition or the identity of the offending motor vehicle until August 2010 (when she did).

Suncorp Metway Insurance Limited appealed. The decision is useful in its overview of the law and insight as to what is reasonable in circumstances where a soft tissue injury is suffered with intermittent flare ups.

Norris was involved in a motor vehicle incident in March 2005 wherein the identity of the offending vehicle was in issue. She was x-rayed which detected no abnormality and informed she had suffered a sprain and strain. During the ensuring period her evidence was accepted that after a period of time her symptoms settled, with minor flare ups, but not to the extent that would warrant investigations. She changed jobs in July 2009, but not because of the injury. She recommenced work in February 2010. However, by August 2010 she was experiencing significant flare ups and symptoms of a different nature (tingling). Further radiological evidence revealed degeneration attributable to the motor vehicle incident and she engaged lawyers. Her lawyer obtained the relevant search and ascertained the identity of the offending motor vehicle. The accepted evidence of Norris was that she had contacted the police on at least 2 occasions shortly after the incident to determine the identity of the vehicle, but was informed that investigations were ongoing. She lost interest in the matter because her insurer subsequently paid out on her vehicle.

The appellant raised the following issues:

[38]

(a) that the learned primary judge applied the wrong test when approaching the exercise of discretion under s 31, or alternatively misapplied the facts to the correct test, and

(b) erred in finding that reliance by the respondent on advice from an unidentified police officer was not sufficient warrant for the learned primary judge to hold that the identity of the other vehicle was not within the respondent’s means of knowledge within the limitation period.

In particular with the finding that there was “nothing unreasonable in the way the [respondent] has managed her treatment over the years” and that the August 2010 revealed symptoms “of a kind to make litigation appropriate when it would not have been before”.

On this they submitted the error was the formulation of a test not consistent with the authorities.

Daubney J provided the leading judgment dismissing the appeal. The President and Muir JA concurred.

The starting point is (the conclusion) the test for appeals on limitation issues:

[50] To the extent that the learned primary judge’s considerations in respect of both of these questions involved an assessment of the particular facts of the case, it is appropriate to recall the degree of caution which is exercised in this Court when called on to review cases of this sort. It is sufficient to cite the following observations by Thomas JA in Pizer v Ansett Australia Ltd [1998] QCA 298 at [20]:

“In appeals of the present kind when the material fact concerns the nature and extent of personal injury, questions of degree are necessarily involved. At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it. At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension, and an appeal court could likewise readily correct an erroneous decision. Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff’s knowledge and as to whether the reasonable person contemplated by s. 30(b) endowed with such knowledge and having taken appropriate advice, would have brought proceedings. Appeals involving extensions of periods of limitation commonly raise these particular issues which involve factual assessments. Although the eventual decision is discretionary the determination of these issues is not. They involve findings of fact and a determination whether those facts satisfy the requirements of the statute. It is worth mentioning, however, that such findings and determinations are made in an area where different minds might reasonably reach different conclusions. In such a situation the appeal court is not free to decide the question according to its own preference. Unless the judgment reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference.” (Emphasis added)

His Honour helpfully summarised the law in these sorts of matters which a common, especially in respect to innocuous soft tissue injuries which worsen over time with intermittent symptoms:

[43] In Tregelles-Fox v WorkCover Queensland [2010] QSC 288, I sought to articulate the propositions, derived from the authorities, relevant to a case such as the present, in which a putative plaintiff receives late (i.e. after the expiration of the limitation period) medical advice of a link between ongoing pain and a previous incident in which injury was suffered. In that case I said:

“[7] The defendant submitted that, to the extent that the advice from Dr Cooke might be regarded as a ‘material fact’ (and in that regard, it would appear to fall within the ambit at least of s 30(1)(a)(v)), it did not possess the necessary ‘decisive character’ in the sense that it did not convert a case which was not worthwhile in terms of liability into one that was.[1]

[8] A determination on this point requires the plaintiff to demonstrate that, without the newly learned facts, he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and ought in his own interests pursue it.[2]

[9] Moreover, it is for the plaintiff to demonstrate that the fact was not within his means of knowledge. Section 30(1)(c) makes it clear, in express terms, that this requires not only that the plaintiff did not know the fact, but also, as far as the fact is able to be found out by the plaintiff, he had taken all reasonable steps to find out the fact before he did.

[10] A number of relevant principles to the application of this section were essayed by McMeekin J in Baillie v Creber.[3] His Honour made the following points:

(a) It is for the applicant plaintiff to establish that the material fact would not have been discoverable prior to the critical date.[4]

(b) An applicant who suffers significant pain and disability commencing with the subject incident, pain with which he eventually could not cope, and a disability sufficient enough to restrict his working ability and which forced him to seek work with a known sympathetic employer amounted to facts which “call for prudent inquiry to protect [his] health and legal rights”.[5]

(c) An applicant who has ongoing pain and disability affecting his employability ought to realise that he is in a position of vulnerability and needs to make appropriate inquiry.[6]

[11] McMeekin J referred to the following passage in the judgment of the Court of Appeal in Healy v Femdale:

‘The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take “appropriate advice” or to ask appropriate questions if in all circumstances it would not be reasonable to expect the plaintiff to have done so.’

[12] Further, in considering the application of s 30(1)(c), it must be recalled that this subsection calls for an inquiry into the conduct of the particular plaintiff because the actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps is the particular person who has suffered the particular personal injuries.[7]

[44] Contrary to the appellant’s submissions, I do not consider that the learned primary judge’s statement that he found “nothing unreasonable in the way the [respondent] has managed her treatment over the years” to have been a manifestation of an application of the wrong test. Read properly in context, this statement was an assessment of precisely the sorts of issues addressed in the first sentence in the passage from Healy v Femdale quoted above. The learned primary judge committed no error in principle in addressing that question in the way he did.

[45] Moreover, it is clear that a judge assessing the merits of an application in circumstances such as this needs to balance whether, on the one hand, the evidence discloses that the degree of pain and disability was such that an applicant ought have realised that the applicant was in a position of vulnerability and needed to make appropriate inquiry, or whether, on the other hand, it is a case, on its facts, in which there was no requirement for the applicant to take appropriate advice or to ask appropriate questions because, in all the circumstances, it would not be reasonable to expect the applicant to have done so.

[46] It is quite clear that the learned primary judge in this case formed the view, on the evidence before him, that this case fell within the latter variety, i.e. it was one in which it would not be reasonable to expect the respondent to have taken appropriate advice or asked appropriate questions. So much is clear from his Honour’s finding that this was a case in which “the August 2010 flare-up … revealed a concerning level of painful and potentially disabling symptoms of a kind to make litigation appropriate when it would not have been before”, together with his finding that the August 2010 flare up was “of a different order of severity to those that had preceded it over the years”, and his finding that “investigations by radiologists which had not previously been appropriate or called for did become appropriate and revealed to the [respondent] for the first time the significance of the March 2005 injury”. Each of these findings was clearly open on the evidence before the learned primary judge.

[47] Accordingly, I am not satisfied that the appellant has demonstrated that the learned primary judge erred in his consideration as to whether the advice received by the respondent in August 2010 about the severity of her neck condition was a material fact of a decisive character relating to her cause of action which was not within her means of knowledge until that time, for the purposes of s 31(2) of the LAA.

[48] Similarly, I consider that the appellant’s criticism of the learned primary judge’s consideration of the fact that the respondent was unaware of the identity of the vehicle until August 2010 was misplaced. Section 30(1)(c) of the Act provides, in terms, that a fact is not within a person’s means of knowledge at a particular time only if –

(a) the person does not know the fact at that time; and

(b) as far as the fact is able to be found out by the person, the person has taken all reasonable steps to find out the fact before that time.

[49] The uncontroverted evidence before the learned primary judge in this case was to the following effect. At the time of the incident, the other vehicle was unidentified. The police officer at the scene informed the respondent that the police officer would make inquiries to try and ascertain the identity of the other vehicle. The respondent was given a particular reference number relevant to the inquiry. She contacted that police officer about a week later, and was told that the other vehicle had not been identified and that inquiries were continuing. Some weeks later, she spoke with another police officer, and identified the incident by reference to the reference number she had been given. She was informed that investigations were continuing, that it may take many months or even years for the investigation to conclude, that police had the respondent’s contact details, and that she would be contacted if the police investigation revealed the identity of the other vehicle. It was not suggested that the respondent knew of the ability to make inquiries by accessing the traffic incident report, as her solicitors ultimately did. It was not suggested that there was any way that the respondent could have known, as appears actually to have been the case, that the police in fact knew of the identity of the other vehicle within some days after the incident. She was not to know that she had, in fact, been given incorrect information by the policeman with whom she spoke in the second phone call. There was nothing to suggest that it was unreasonable for her to accept the information given to her by that policeman, i.e. that she would be contacted by the police if and when the vehicle was ever identified. It is quite clear that the learned primary judge regarded the respondent as having taken all reasonable steps available to her in the circumstances to find out the identity of the vehicle. No error on the part of the learned primary judge has been identified.

Brisbane Barrister – David Cormack

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