Limitation extension: critical mass of information & “decisive” characterisation

Perkins v Cleveland Glass & Aluminium Pty Ltd [2011] QDC 302

In this matter, I represented the applicant who was a young man and had been diagnosed with a degenerating back, culminating in a disc protrusion with sciatica. However, there was some debate as to whether the disc protrusion was work related, with the WorkCover compensation claim being ceased on the basis of pre-existing degeneration. Consequently, the applicant modified his work duties to accommodate his back and his employer made available an alternative position of supervisor, which did not require him to undertake manual work. At the same time the applicant’s father had made some inquiries on behalf of the applicant with a lawyer. The lawyer’s advice was given the state of the medical evidence and the new role any damages claim would be uneconomical.  The applicant’s role continued for a period of some months, however, the employer then changed the role back to the applicant’s pre-injury role. Within a short period of time the applicant sustained a further injury to his back and was then made redundant. Around the same period of time the applicant’s lawyer had facilitated a report from Dr Shaw which attributed the disc protrusion to the work event.

Durward SC DCJ allowed the application to extend the limitation period on the following basis:

[38]

The applicant submitted that the following factual matters were determinative of the existence of a material fact of a decisive character at the relevant time:

·         Workers’ Compensation claim terminated on 05 December, 2008, based on the MRI of 13 November 2008, the report of Dr Ness dated 03 December 2008 and the report of Dr Guazzo dated 24 November 2008.

·         Discussion between the applicant and Dr Thakur, about the report of Dr Ness, on 11 December, 2008.

·         The cumulative effect of these events was to raise doubt as to the mechanism of injury, causation and quantum (that is, economic liability) and led to the applicant modifying his work role (going on to lighter duties) in May 2009 and his back condition ameliorating. 

·         Attendance by applicant’s father Neil Perkins, through the Electrical Trades Union on the applicant’s behalf, upon a lawyer on 08 January 2009.

·         Incident aggravating the original injury – 15 June 2009.

·         Only on 30 July 2009 did the applicant have further advice from Dr Shaw that the injury was a work related disc protrusion and was not merely a degenerative condition.

·         Termination of his employment, on 13 August 2009.

[39]

It was submitted that the successive events led the applicant to the view that his injury was permanent and was likely to adversely impact upon his capacity to return to employment for which he was skilled and experienced; or, as was submitted on his behalf, their combined effect was to transform “an uneconomical claim into a viable claim”.

[40]

Counsel approached this issue on a slightly different basis, although at the end of the day it is probably not significant:  Mr Cormack referred to the “successive development” of the these material facts to a “composite” and “critical mass of information” to the extent that it would be reasonable for the applicant to have the requisite knowledge no earlier than the requisite point in time – namely, 29 March 2009.  Mr Elliott submitted that each of the successive events, could in their own right, have amounted to a material fact of a decisive character, but that each of them did not amount to that. 

[41]

Counsel each referred to the period October 2008 to December 2008 as the critical period, but characterised the events that occurred in that period differently. 

[42]

The respondent submitted that Dr Guazzo had always linked the injury to the 2005 original incident and that there was nothing in his reports that would cause a person to doubt that the original injury was work related. He submitted that Dr Shaw’s report did not state any ‘new view’ of the cause of the applicant’s injury.

[43]

He submitted that whilst the applicant was in receipt of Centrelink payments he had other health issues and complaints. The facts were no different today as to what was known in December 2008, namely that the applicant could not do heavy work because of the June 2005 incident.

[44]

Mr Elliott submitted that, in any event, the applicant had a worthwhile or viable action to bring in December 2008, particularly in respect of future economic loss, given his relative youth and prospective working life.  

Discussion

[45]

The applicant’s position is different from that described in Spain. There the applicant had to cease working in his career employment and commence a new career path. He was fundamentally and unequivocally in a position of vulnerability in the labour market. The same cannot be said of the applicant here, at least not until after the aggravation of his back injury on 15 June 2009 followed by the redundancy in August 2009.

[46]

The applicant’s position is also different from that of the applicants in Baillie and in Hargans. In Baillie the injury was more serious and disabling from an early time. His medical history was also equivocal. In Hargans the applicant was ‘on notice’ from her discharge from hospital that her career was in jeopardy from her serious injury.

[47]

In this case there was a continuum of events in the period of seven months or so prior to the end of March 2009. The applicant consulted Dr Thakur on numerous occasions prior to that date, particularly from September 2008 and it must have been readily apparent and known to him that he had a troublesome back condition.

[48]

Whilst he knew facts, that I consider were material facts, the issue is when those known material facts acquired a decisive character. The applicant says that did not occur until after March 2009 and specifically not until the June 2009 aggravation to his back and the redundancy in August 2009, confirmed by Dr Shaw’s report in July 2009.

[49]

In the October 2008 – December 2008 period several significant events occurred: WorkCover payments ceased, particularly as a result of Dr Ness’ report in December 2008 which referred to a degenerative condition unrelated to work and expressed a non-work related cause of the disc lesion; Dr Guazzo’s opinion in November 2008 that it was not possible to directly attribute the disc protrusion to the applicant’s work; and the applicant’s move to a supervisory position where his back settled. He also had advice from lawyers in January 2009 to the effect that a common law claim was not worth pursuing.

[50]

The applicant’s consultations with Dr Thakur must be considered in that context and from the applicant’s own view of relevant matters. It seems to me that, as a young man, he had prior to the end of March 2009 done all that could be reasonably expected of him.

[51]

There followed the three events that seem to me to have crystallised the known material facts into facts of a decisive character: the aggravation in June 2009, upon his return to his tradesman role at work, of his back condition; Dr Shaw’s report in July 2009, expressed in unequivocal terms – unlike the earlier reports of Dr Guazzo, particularly the report in late 2008 – and obtained after consulting lawyers in June 2009; and the redundancy in August 2009.

[52]

It was only then, in an holistic sense, that the full impact of the injury upon the applicant’s capacity for work was known. A common law action was then able to be properly assessed as being viable. Those events are, in effect, the ‘critical mass of information’ referred to in the authorities, expressed in a composite sense as described in Castillon v P& O Ports Ltd [2007] QCA 364.

     Conclusion

[53]

The decisive character of the known material facts did not crystallise until after the critical date in March 2009. The applicant has discharged his onus of proof. He is entitled to the relief sought pursuant to s31 of the Act. The application will be granted.

 

Brisbane Barrister – David Cormack

 

 

 

 

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