Limitation application: material fact within means of knowledge

Dent v Langs Building Supplies Pty Ltd [2015] QSC 368

Justice Burns rejected the application to extend the limitation period under the Limitations of Actions Act 1974 (the Act) based on the material fact was within the applicants means of knowledge of the applicant, Ms Christine Dent. Ms Dent injured her back on 16 June 2011 and was unable to return to work and became dependent on a full time carer.

Ms Dent’s submitted that she did not understand the nature and effect of her injury or that she was permanently disabled until her appointments with orthopaedic surgeons in August and September 2013.

Burns J:

[40] By s 31(2)(a) of the Act, the discretion to extend the limitation period is enlivened if two requirements are met. First, that a material fact of a decisive character relating to the right of action of the applicant was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action. Secondly, that there is evidence to establish a right of action. If those requirements are satisfied then the court has a discretion to extend the limitation period for 12 months from the time when the material fact was within the applicant’s means of knowledge. Usually, the discretion will then be exercised in favour of an extension unless there is relevant prejudice

[41] Here, it was not submitted that there will be any relevant prejudice if an extension is granted and nor was it submitted that Ms Dent had failed to point to the existence of evidence which, it can reasonably be expected, will be available at trial and will, if unopposed by other evidence, be sufficient to prove her case.14 As such, this application is concerned with whether Ms Dent has satisfied the onus on her to establish that a material fact of a decisive character was not within her means of knowledge until she received advice from Dr Cheung on 14 August 2013. If so, the limitation period may be extended to 14 August 2014 and, in that event, the Notice of Claim for Damages will have been served within time.15

[42] As Thomas J held in Dick v University of Queensland, the correct approach to deciding an application such as this is to first inquire whether the facts of which the applicant was unaware were material facts. If they were, the next step is to ascertain whether they were of a decisive character. If so, it must be ascertained whether those facts were within the means of knowledge of the applicant before the specified date.

[43] In the present case, Ms Dent relies on s 30(1)(a)(iv) of the Act, which informs that a material fact relating to a right of action includes the “nature and extent of the personal injury”. On her behalf it was submitted that, until she saw Dr Cheung on 14 August 2013, she did not appreciate the nature and extent of her lower back injury. In particular, it was submitted that Ms Dent did not understand that her incapacities would be permanent, that they could not be satisfactorily addressed by surgery or any other treatment, and that she was for all intents and purposes commercially unemployable. I have no hesitation in accepting Ms Dent’s evidence in these respects. These were material facts relating to Ms Dent’s right of action and in respect of which she was unaware until 14 August 2013.

[44] The next question, though, is whether such facts were of a decisive character. Section 30(1)(b) of the Act provides that material facts relating to a right of action are of a decisive character if, and only if, a reasonable person knowing those facts and having taken the appropriate advice on those facts would regard those facts as showing: “(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and (ii) that the person whose means of knowledge is in question ought in the person’s own interest and taking the person’s circumstances into account to bring an action on the right of action.”

[45] Both of the above conditions must be satisfied before a material fact may properly be regarded as “decisive”. Each condition must be considered from the point of view of a reasonable person who has taken appropriate advice on those facts.

[46] In determining whether a newly learned fact has the necessary quality of decisiveness an applicant “must show that without the newly learned 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”.17 As Connolly J said in Sugden v Crawford:

“Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s 30(b) are satisfied. Without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action.”

[47] In a similar vein are the following observations of the Court of Appeal in Honour v Faminco Mining Services Pty Ltd & Anor:

“It follows that the material fact is not of a decisive character if, before knowing that fact a reasonable person would know facts that that person would regard (having taken appropriate advice) as showing that an action would (ignoring the effect of limitation period) have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and that the potential claimant ought, in that person’s own interests and taking that person’s circumstances into account, bring an action on the right of action. However, if, without knowledge of that fact, a reasonable person, having taken appropriate advice, would not regard the facts known to that person as showing that an action would (ignoring the effect of the limitation period) have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of an action, then the fact is of a decisive character. Further, if, without knowledge of the material fact, a reasonable person, having taken appropriate advice, would not regard the facts known to that person as showing that the potential claimant ought in that person’s own interest and taking that person‘s own circumstances into account, bring an action, then the material fact is not of a decisive character.”

[48] The evidence establishes that, prior to her attendance on Dr Cheung, Ms Dent had not worked since 16 June 2011 in consequence of the exacerbation she sustained on that date. Although the medical certificates left open the possibility that Ms Dent had some capacity for work – up to 15 hours per fortnight – it is difficult to accept that such a possibility was at all realistic given the chronicity and severity of her symptoms of pain and immobility. The fact of the matter, in any event, is that Ms Dent was unable to carry out remunerative employment because of her injuries and, in consequence, she lost income that she otherwise would have earned from her employment. That loss was accruing at a rate of between $650 and $740 net per week. Even confining any assessment to a two-year period post-incident, Ms Dent’s net loss was between $67,600 and $76,960. Furthermore, from at least the middle of 2012, Ms Dent was receiving assistance from a person described as a “full-time paid carer”. Using the rate ($30) and weekly hours (40) advanced in the Notice of Claim, the cost of her paid care was $1,200 per week. Also, from the same time, Ms Dent had become so immobile in consequence of her injuries that she required a wheelchair for “long walks”.

[49] Ms Dent deposed to her expectation that, once she saw a specialist, she would receive surgical or other treatment for her lower back which would enable her to return to work. At one point when she was cross-examined, Ms Dent said that she believed any such treatment would return her “back to 100 per cent.”  Although I accept that Ms Dent believed that she could be treated sufficiently to return to work and, further, that her belief in that regard was reinforced by statements made to her by her general practitioner, I am unable to accept that Ms Dent believed that what was in prospect was some form of treatment that would completely address her symptoms. Indeed, in 2012, Ms Dent expressed concerns to her psychologist that suggest to the contrary, and the feature that she renewed her forklift license in order to pursue a different line of work must be taken as some acknowledgement on her part that she might not be able to return to the type of heavy, physical work she had performing up to 16 June 2011. At the very minimum, Ms Dent’s future earning capacity depended on the success of whatever treatment might be offered to her when she was eventually seen by an orthopaedic surgeon.

[50] In any event, I must consider the discretion from the point of view of a reasonable person who has taken appropriate advice on the facts I have summarised in the preceding two paragraphs. To my mind, a reasonable person, taking appropriate advice on those facts, would have appreciated that he or she had a worthwhile action to pursue and should in his or her own interests pursue it. To adopt the expression used by Keane JA in Castillon v P & O Ports Limited (No 2), there was a “critical mass of information” within Ms Dent’s means of knowledge prior to 14 August 2013 which justified bringing the action. I am accordingly not persuaded that the material facts on which Ms Dent relies were of a “decisive character” within the meaning of s 30(1)(b) of the Act. They merely went to the enlargement of what was already a worthwhile cause of action.

[51] For Ms Dent, it was submitted that a “two year loss of income just doesn’t justify an action these days.”  In this regard, particular reliance was placed on the decision of McMeekin J in Barnes v Smith & Ors.  It was also submitted that the legislative restrictions which now exist in relation to awards of damages have affected the extent to which some components of damage as well as costs may be recovered.

[52] I reject these submissions. No evidence was placed before me to support the contention that Ms Dent should not, because of legislative restrictions or for some other reason, be regarded as having a worthwhile action to pursue prior to 14 August 2013. Barnes was a different case. The facts of that matter were that the applicant was injured in 2005 and kept working until 2010. After ceasing work, she sought medical advice and was eventually told that she would need to undergo surgery. Shortly stated, the applicant in that case did not have the significant loss of income, long-term paid care or severe manifestation of symptoms which are all present in this case.

[53] My conclusion that the material facts on which Ms Dent relies were not of a “decisive character” within the meaning of s 30(1)(b) of the Act is sufficient to dispose of this application. However, for completeness, I add that I am also not persuaded that the facts on which Ms Dent now relies were outside her means of knowledge prior to 14 August 2013.

[54] By s 30(1)(c) of the Act, a fact will be outside a person’s means of knowledge if, but only if: “(i) the person does not know the fact at that time; and (ii) 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.”

[55] This provision does not import a “reasonable person” test. As Keane JA explained in NF v State of Queensland:

“It is to be emphasised that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of “all reasonable steps”, or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. 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 particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act.”

[56] With those principles in mind, I cannot agree that Ms Dent took all reasonable steps to find out the facts she learned when she was examined by Dr Cheung. After her motor vehicle accident, Ms Dent retained lawyers to act on her behalf with respect to that claim. In the case of this claim, she did not approach lawyers until after she saw Dr Cheung. Why she took such a different approach here is not satisfactorily explained. True it is that Ms Dent was waitlisted to see an orthopaedic surgeon, but I do not consider it reasonable for her to have chosen not to seek legal advice given the serious effects of the June 2011 exacerbation of her injury. Had she done so, a specialist medical assessment of her injuries would have undoubtedly followed. Conclusion

[57] For these reasons, the application must be dismissed.

(footnotes omitted)

David Cormack – Brisbane Barrister & Mediator

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