Limitation application: not knowing the nature & extent of the injuries

Eldridge v Coles Group Ltd [2012] QSC 39

Issue: s.31 limitations application – material fact of a decisive nature – not knowing the nature and extent of the injuries caused – means of knowledge.

Background:

The applicant, a 41 year old female worker suffered a supraspinatus tendon strain in her right shoulder on 18/11/2005 when lifting a speaker weighing 35-40 kg. She made a claim for Workers’ compensation benefits shortly thereafter and received same, together with rehabilitation. The applicant resumed full duties in the January the following year and exacerbated her injury in February. A further claim for Workers’ compensation was made. She was off work for a short period of time, but returned on suitable duties.

The applicant continued to work and saw medical specialists. Dr Dodsworth recommended she continue on light duties for a period of year. She accordingly worked on light duties and undertook rehabilitation. In December 2006 she commenced working at the Regatta Hotel performing administration duties for 40 hours a week. The applicant stated she continued to suffer pain. She saw Dr Langley in July 2010 who recommended subacrominal decompression of her right shoulder at a cost of approximately $7,193. Dr Langley also assessed a 10% whole person impairment.

The applicant sought to extend the limitation period until the date of compliance of the Notice of Claim for Damages, namely 26/08/2010.  Hence, the material fact must not be within her means of knowledge before 18/11/2007 and one year before 26/08/2010.  The material fact relied upon by the applicant was the report of Dr Langley as to informing her of the nature and extent of the injuries caused. The applicant argued that it converted a minimal claim into one of substance and worth perusing.

Ann Lyons J

Her Honour applied the approach stipulated in Dick v University of Queensland. As to the material fact, her Honour referred to instances where the nature and extent of the injuries caused has been considered: Pizer v Ansett and Taggart v Workers Compensation Board of Queensland.  

Justice Ann Lyons applied the test of ‘material fact’ Queensland Court of Appeal in Honour v Faminco Mining Services Pty Ltd as trustee for the Faminco Trust (in liquidation) & Anor [2009] QCA 352 as follows:

“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.”

Her Honour found that the nature of the applicant’s injury did not materially change in 2009 and that it was known to her in the first 2 years after the incident. Furthermore:

[42] In cross-examination at the hearing Ms Eldridge accepted that for four years before she decided to consult her lawyer in November 2009 she had experienced pain, restriction of movement, lack of strength in the arm, as well as an inability to undertake a large number of aspects of domestic life. She also indicated it had interfered with her sex life, prevented her from performing heavier work in the yard, prevented her from lifting heavy shopping and prevented her from pulling beers. She was also not able to unload stock at work.

[43] It was clear, as Ms Eldridge indicated in her evidence, that she managed the pain by taking medication and by obtaining a position that did not require her to undertake heavy work. She sought her husband‘s assistance in relation to heavy domestic tasks. The applicant accepted, in her evidence, that that situation had continued for four years. The applicant also conceded that Dr Dodsworth had told her that her condition should have resolved in one year and it should therefore have been of some concern to her that her injury did not resolve after that period of time.

Justice Ann Lyons found:

[45] It would seem clear to me that Ms Eldridge knew that her condition was not improving and indeed that it had not settled by November 2006 as foreshadowed by Dr Dodsworth. I agree with the submission of Counsel for the respondent that, essentially, Dr Langley confirmed what Ms Eldridge already knew and had known since at least 2007, that she had a permanent injury because the symptoms had not settled but had in fact remained constant.

[46] Accordingly, from as early as November 2006 it was fairly clear that Ms Eldridge was unfit for work in the occupation in which she was employed at the time of the accident, namely as a gaming attendant. Indeed, in December 2006 she changed to an administrative position with the same employer at a different location. It was clear, on her own evidence, that she had not made a full recovery within a year and certainly had not done so within two years.

[47] Furthermore there is no evidence that Ms Eldridge‘s medical condition has in fact deteriorated since December 2006. Ms Eldridge‘s own evidence about the worsening symptoms was that she had difficulty writing with a biro and typing for any length of time. On my reading of the affidavit material that is not significantly different to the symptoms she described after the accident and in the four years afterwards.

[48] It would seem to me that Ms Eldridge‘s condition appears to have remained unaltered for at least the last four years. There is no evidence that an increase in Ms Eldridge‘s symptoms or pain levels caused her to miss work or seek medical treatment. There is no medical report which indicates that she cannot work because of those difficulties. The occupational therapist only supports a minor reduction in working hours.

[49] There is no evidence that indicates Ms Eldridge ceased work because of medical issues. That lack of evidence is significant. I also accept that there is no medical evidence to indicate that her medical condition got worse recently. Ms Eldridge continued working after she saw a lawyer and after she sought further medical opinion. Dr Langley does not say Ms Eldridge is unfit for work. Ms Eldridge accepts that she did not tell Dr Langley in June 2010 that she was unable to cope with the work that she was then doing. Ms Hague also indicated that “Ms Eldridge has evidenced a capacity for occupations in the SEDENTARY range only”.

[50] There is no evidence before me that indicates that Ms Eldridge was required to give up work because she could no longer manage full time work. Indeed, the applicant did not cease work until her husband decided to retire from Queensland Rail and take up work in the mines. He commenced working in Mackay in January 2011 and Ms Eldridge herself later relocated to Mackay after the sale of their house in Brisbane in August 2011.

[51] Accordingly I consider that there is insufficient evidence to establish that the symptoms deteriorated in 2009 to such an extent that Ms Eldridge was unable to work after December 2010 and that it was that inability to work which caused her to leave work.

[52] I do not consider, therefore, that the more recent facts have altered the nature or extent of Ms Eldridge‘s personal injury.

[53] I also note that Ms Eldridge consulted lawyers eight to nine months before she saw Dr Langley. Had Ms Eldridge seen a lawyer in late 2006 or early 2007 then, properly advised, these proceedings would have been started then.

Finally, her Honour found that the applicant fell short of the test in Healy v Femdale and had not taken all reasonable steps.

Brisbane Barrister – David Cormack

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