Limitation application: surgery not decisive enough

Baker v Coles Supermarkets Australia P/L [2012] QDC 7

Issue: when known facts gained the characteristic of “decisiveness”

Background:

There was little dispute the applicant in the application to extend the limitation period knew she had been injured on 23/08/2005 and the nature of the injury. What was in dispute was that she did not know it would require surgery. The medical evidence was clear as to the nature of her shoulder injury and the nature of the injury did not change, simply that it had progressed to the stage of requiring surgery.

Dorney QC DCJ:

[17] Importantly, according to the report of Dr Gillett, an orthopaedic surgeon, of 3 March 2011, the applicant had ongoing symptoms with the right shoulder in June 2007 and had stated to that practitioner that her GP (apparently Dr Gillis, who made a note to that effect on 11 May 2007) advised her that she cease employment in the work that she had been doing at the Coles, whereupon she did cease such employment on 24 June 2007.

[28] In cross-examination, the applicant readily conceded that she moved from Beenleigh to Ormeau because of acute pain, because it alleviated the loads she would carry, because it was easier at Ormeau, and because the butchers there lifted such trays. Concerning leaving Coles in mid-2007, she freely admitted that she had pain and discomfort, even though it had been lighter work at Ormeau and even though she worked one day less than at Beenleigh. She further admitted that the GP had told her she was not suited to the work she was doing at Coles and that she should not be doing heavy lifting, certainly not full-time.

[29] In further answers in cross-examination, she again readily conceded that she had undertaken physiotherapy between 2005 and 2010, and that from August 2005 to 2010 the pain had not improved but, rather, was the “same”.

[30] Further, in cross-examination, she readily conceded that there had been a financial cost to the leaving of Coles in 2007 and that the treatment and pharmaceuticals had also cost her money. With respect to the financial loss, the difference between her income, on a per week basis, between Beenleigh and Ormeau was stated to be approximately $100.00. Thereafter, the applicant received a higher income than she had been previously receiving.

[41] The concern that sometimes arises when the relevant material fact deals with the nature and extent of the personal injury is illustrated by the judgment of Thomas JA, with whom Pincus JA and Byrne J agreed, in Pizer v Ansett Australia Limited [1998] QCA 298. Thomas JA noted that, at one end of the spectrum, a case of latent symptoms of an apparently trivial injury, followed by eventual discovery of a serious condition, would plainly justify an extension but, at the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss and followed by belated realization that the consequences are likely to be worse than contemplated will not justify an extension, observing that, somewhere between these extremes, there is a range of cases where different minds might reasonably form different assessments: at [20] (at folio 12 of his reasons).

[46] In terms of the “conjunction of circumstances” referred to in Stephenson, a reasonable person with the applicant’s knowledge (and background) would have regarded the facts as justifying and mandating that an action be brought in her own interests by early 2010, if not earlier. The outcome of the action merely has to be “worthwhile” (see Greenhalgh v Bacas Training Limited & Ors [2007] QCA 327 at [22]), not necessarily within this Court’s jurisdiction. The applicant had before that time been informed of the causative relationship between the pain in her right shoulder and the incident of August 2005, being, in fact, advised in mid 2007 by her General Practitioner that the “bursa impingement” which she had meant that if she continued working for Coles in a labouring capacity she would “never recover”. The fact is she never did recover, although she ceased employment as a labourer with Coles. By early 2010 (at least) that conjunction of circumstances had arisen. Even though informed and treated by GPs only, she “knew” the type of injury and its effects, through such GPs. The steps that she took were reasonable in her circumstances. Given that the condition in the right shoulder did not permanently improve (even after taking work in administration and, even in April 2010, as a medical receptionist), given that she was aware that pain would accompany any return to labouring work, given that she had lost income when moving from Coles Beenleigh to Coles Ormeau (even if after that she received more income because, without relief, she could not go back, if necessary, to such work without pain), and given that she knew the nature and continuing significance of her injury (though not the alleviating “cure”), it is apparent that this applicant, appropriately advised, ought to have commenced her action. After all, the diagnosis by Dr Treffene confirmed why the pain continued (which continuation the applicant well knew); and Dr Treffene’s surgery has narrowed, rather than broadened, its otherwise continuing debilitating effect.

[47] While it is true that the surgery performed by Dr Treffene has led to an alleviation of at least the worst aspects of the pain, what is crucial is that before that operation the knowledge that she did have was that the pain was not improving in any permanent way, that the pain had led to her obtaining jobs which required lighter duties, and that there appeared to be no avoidance of the continuing difficulties. Therefore, there was permanence to the effects of the injury. Dr Treffene’s imparting of knowledge was not the event that made the facts decisive: they already were.

[48] In such circumstances, the applicant did know, prior to 7 September 2010, relevant material facts and they were of a “decisive character” because the circumstances that had developed to that time meant that the facts that she already knew had already acquired that character. They are different from the facts concerning Mr Stephenson in Stephenson where the facts did not become decisive until after the critical date. There is not, as there, any circumstance on a par with the identified facts that changed his knowledge, and the material facts within his means of knowledge, decisively.

[49] On that outcome, it is unnecessary, then, to consider issue of discretion.

[50] But, if I should be wrong, it would be appropriate to consider the matter of discretion in the context of the question of prejudice.

Prejudice

[54] What has been demonstrated here by the respondent is that the memories of some potential witnesses have faded and that, from the respondent’s investigations, one such who is unavailable is Matthew Burke. It is also clear from the applicant’s evidence – which I accept she gave truthfully – that, although Matthew Burke was mentioned as a “witness” by her in her application of 1 September 2005, there were, according to her, no witnesses. Given the fact that Matt Journeaux was also around at that particular time, being a witness to the applicant’s signature on the application, it may, initially be difficult to see that the mere absence alone of Matthew Burke yields the necessary unfairness. But, as advanced by the respondent, the inconsistencies both between the different versions given by the applicant and between those and ones contained in the various employer’s documents relevant to this issue are contended to demonstrate that the delay in time establishes the difficulty in determining the actual mechanism of the injury itself.

[56] On the balancing side, not only can the personnel files of the applicant not be found but also her training records.

[57] In the final analysis, this is a case which is on the margin. Since the real question is whether the delay has made the chance of a fair trial unlikely, I conclude that there are so many discrepancies that the matter of accurate recollections, in contrast to very faded recollections, is an important aspect of this case. It is not simply a matter of a case being largely documentary so as to weigh against such prejudice. Rather, the actual mechanism of the injury is fundamental to the determination of this case and, in particular, where the applicant has originally noted a person as a “witness” and now states that he was not, his absence is a factor which does, in context, tip the balance in favour of the existence of such prejudice as would preclude an exercise of a favourable discretion in this case, should it have been necessary to go that far.

Brisbane Barrister – David Cormack

Related Posts

Recent Comments

    Categories