Limitation application – material fact – within means of knowledge

Tregelles-Fox v WorkCover Queensland [2010] QSC 288

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – GENERALLY – where the plaintiff has applied for an extension of the limitation period relating to his claim for personal injuries said to have been suffered in a workplace incident in 1979 – where the plaintiff submits that he ought to have an extension of time as a material fact of a decisive character only came within his knowledge when he received a specialist’s report in July 2008 – whether the limitation period ought to be extended.

Issues

Whether the material fact had a “decisiveness” quality and when was it within the plaintiff’s means of knowledge having taken all reasonable steps to make inquiries, together with prejudice to the defendant.

Daubney J

The plaintiff/applicant claimed an injury to his T9 & T10 as a result of crush injury in 1979, when he fell 14 feet at a work site.

The material fact was the report of Dr Cooke dated 12 March 2008, which contained inter alia:

Further, the pattern of the spondylotic changes extending from T6 to T12 are consistent with having resulted from a flexural/compression injury to these segments of his thoracic spine in the accident of interest in 1979, almost 20 years ago. It is also probable that the abnormal physical stresses placed on his deformed spine in the course of his employment over the years have contributed to these same spondylotic changes in his thoracic spine. There can be little doubt that the fall of interest in 1979, resulted in a traumatic spondylosis along with aggravation of the pre-existent spondylolisthesis of L5/S1. It is also probable that the physical demands of his employment have served to aggravate the pre-existing spondylolisthesis and developing spondylosis of L5/S1 since the accident resulting in the severe disabling symptoms of which he now complains.

 

His Honour at paragraphs 10 & 11 referred to and applied Baillie v Creber (refer to my earlier posting) as to when the material fact was discoverable and concluded:

[36] Having reviewed this evidence, I find that the plaintiff has not satisfied me that the material fact for which he contends was not discoverable by him prior to his receipt of Dr Cooke’s report in 2008. Even if one assumes that he suffered the injury in the fall incident he alleges occurred in 1979 (which must be the subject of some doubt in light of the contemporaneous documents, but is nevertheless an assumption I will make in his favour in view of the contents of the x-ray report of January 1980), it is clear that he suffered increasing back pain over many years while at all times thinking that his back pains related to the 1979 incident. It is, to use the most neutral term available to me, curious that the plaintiff made a WorkCover claim in July 2003 which expressly related the back pain to the 1979 fall incident, yet he does not seem to have mentioned this to Dr Cooke. It is unnecessary for me to find whether that omission was deliberate or inadvertent. But, on any view, this plaintiff ought, acting reasonably, to have given Dr Cooke a full history, including of the 1979 incident, when he saw him in 2003. Moreover, and in any event, I consider that this plaintiff, acting reasonably, and having regard to the years of increasing pain suffered, could and ought have made an appropriate inquiry as to the causal link between the 1979 incident and his pain by 2003. There is simply no explanation as to why he did not do so. In any event, in the statement he made to WorkCover in July 2003, the plaintiff expressly related the fall incident to his back pain and referred to a consultation with Dr Cooke in which the doctor is said to have diagnosed the problem correctly and from which the plaintiff asserted the need for urgent surgery.

[37] In short, I consider that the material fact contended for by the plaintiff was within his means of knowledge as late as July 2003 when he first saw Dr Cooke.

As to prejudice, his Honour was not satisfied the defendant would not suffer prejudice in the terms described by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, by the effluxion of time and the unavailability of witnesses and records.

The application was dismissed.

Brisbane Barrister – David Cormack

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