Limitation period: latent aggravation of PTSD sufficient material fact

AAI Limited t/as Suncorp Insurance v Birch [2017] QCA 232

Holmes CJ and Gotterson JA and Flanagan J

In June 2016, the respondent filed proceedings in the District Court claiming damages for psychiatric injuries after witnessing a fatal car accident in February 2012. Relevantly, prior to commencing proceedings, the respondent was granted relief pursuant to s 31 of the Limitations of Actions Act 1974 (Qld) to extend the time limitation to August 2016.

In April 2017, the appellant filed a notice of appeal against the order extending the limitation period.

Background

At the time of the accident, the respondent was employed as a full time clinical audiometrist. Her duties regularly involved driving prolonged periods to visit regional clinics. After the February 2012 collision, the respondent attended upon her general practitioner and was also referred to a psychologist for further treatment.

In August 2015, the respondent was driving in the course of her employment when she saw cars pulling up and people running with mobile phones. Because of this, the respondent claimed to have flash backs to the February 2012 accident. The respondent claimed that she was unaware that she could commence a compulsory third party claim until 25 August 2015.

The decision at first instance

Summarising the reasons of the learned primary judge, Gotterson JA stated:

[29] His Honour also observed that, in order to exercise the power to extend the limitation period conferred by s 31(2) of the Act in a way that would avail the action that had been commenced, it was for the respondent to show that a material fact of a decisive character relating to the right of action was not within her means of knowledge until after 17 June 2015.

[32] As to material fact, the learned primary judge referred to the facts listed in s 30(1)(a) of the Act as ones that are included within the concept of material facts relating to a cause of action for the purposes of s 31. His Honour noted that the respondent relied on “a combination of two material facts”. As summarised by him, those facts were:

 “1. The applicant could no longer continue in her employment as an audiometrist with Bloom. This material fact is said to have come to the applicant’s knowledge in or about the period between mid July 2015 to 09 August 2015; and

 The applicant was diagnosed as having suffered an aggravation of a post-traumatic stress disorder (“PTSD”) which had been originally caused by her involvement in the motor vehicle accident on 03 February 2012. The diagnosis was made and the applicant advised with respect to it on 16 July 2015.”

 

[36] It is clear from his Honour’s reasons, particularly para 45 thereof, that despite the respondent’s reliance on a combination of two material facts, he found there to have been one material fact of a decisive character that was not within her means of knowledge prior to 17 June 2015, namely, that the PTSD she had sustained as a result of the accident in February 2012 had been aggravated by work pressures over time to a point where she was medically unfit to continue in her employment.

Grounds of appeal

Gotterson JA found that there were two relevant grounds of appeal:

  • That it was not open to the primary judge to find that the respondent’s incapacity to continue with her employment was caused by an aggravation of the PSTD attributable to the February 2012 accident; and
  • That the primary judge erred in concluding that the aggravation of the PTSD caused by the motor vehicle accident of 14 August 2015 and/or the work pressure being applied to the Respondent by her then-employer could constitute a material fact of a decisive nature in relation to the subject motor vehicle accident of 3 February 2012

Discussion

Gotterson JA found that the appellant’s remaining grounds of appeal were interrelated. His Honour went on to discuss factors submitted by the appellant in support of its grounds of appeal:

[41] As to the first of these factors, the absence of a reference by the respondent to an aggravation of her PTSD in her letter of resignation is unremarkable. The letter did not purport to be an exhaustive statement of the causes of her incapacity to continue in her employment with Bloom. With regard to the second factor, the respondent explained that there was, in fact, no alternative employment arranged for her.

[42] In regard to the third factor, the fact of the Malanda incident occurring as it did after the respondent had resigned but before the effective resignation date, did not preclude a finding that by the time she wrote her letter of resignation, the respondent’s PTSD had been aggravated to a point where she could not continue with her employment in the longer term. Such a finding, made as it was for the purposes of this application, would not circumscribe the factual inquiry that would arise in the trial of her claim concerning the extent to which any then diminution in the respondent’s income earning capacity was causally related to the PTSD attributable to the accident in 2012.

In relation to the appellant’s further ground of appeal, his Honour stated:

[46] In cross-examination with respect to this paragraph, it was put to the respondent that, by March 2014, the “shock and problems” she suffered from the accident in February 2012 were still affecting her. She answered: “To a degree. Yes.”

[47] I do not regard this answer as revealing knowledge on the respondent’s part that pressures in the workplace were acting as an aggravation to any symptoms she continued to experience as a result of the accident in February 2012. At most, it demonstrates a knowledge on her part that there were some such symptoms that she continued to experience.

[48] Nor, in my view, did the contents of para 22 themselves reveal a knowledge on the respondent’s part that, at that time, her capacity to work as an audiometrist was seriously impaired in the long term. What she said, which was not explored in any detail in cross-examination, is apt to mean that the degree of work travel then required of her was not something she could continue indefinitely

[50] … Knowledge by the respondent that PTSD has a potential to be a life-long condition does not imply that the respondent knew anything of the impact that such a condition might have on her income earning capacity in the either long or short term.

As to whether the respondent acted reasonably in response to advice given to her by her medical practitioners, his Honour accepted the respondent’s evidence that her general practitioner had not advised her in relation to her working capability or the progression of her PTSD.

Further, his Honour rejected the submission by the appellant that a person with university training ought to have sought professional advice at an earlier stage.

Gotterson JA dismissed the appeal, Holmes CJ and Flanagan J agreeing with the reasons and orders proposed by his Honour.

David Cormack – Brisbane Barrister & Mediator

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