Limitation period: no material fact of a decisive character

 Cox v Strategic Property Group Pty Ltd & Anor [2011] QSC

Issue: material fact of a decisive character relating to the applicant’s right of action which was not within his knowledge, or means of knowledge, in time for him to have brought an action within the limitation period – s 31(2)(a) of the Limitation of Actions Act 1974 (Qld) (the Act)

The applicant sustained a work related injury on 13 June 2007, aged 19 years; when a beam he was lifting with other men fell. He sought medical treatment and was off work until July. He also received chiropractic treatment in January and March 2008. The chiropractor gave an opinion that x-rays showed damage at L5/S1. He sought to re-open his claim with WorkCover Queensland in July 2008 and his G.P referred him for an x-ray which noted, “mild central L5/S1 disc protrusion”. WorkCover refused and he applied to Q-COMP to have the decision reviewed and in the process attributed the ongoing complaints to the work injury. Q-COMP upheld WorkCover’s decision based on the evidence of Dr Crichton who considered the original injury to have settled.

The applicant obtained a report from Dr Pentis on 13 October 2010 describing the incident, no new injures and his symptoms. Dr Pentis concluded, “long term it is probably best that he doesn’t return to any heavy manual work, any work where repetitive bending and lifting is required as it will cause further problems with the spine.”

Dalton J

Material Fact of a Decisive Character

[10] The applicant contends that his receipt of Dr Pentis’ report was a material fact of a decisive factor because he learnt for the first time that his ongoing back condition was related to the accident which occurred on 13 June 2007. No doubt that would be a new material fact of a decisive character, within the meaning of the Act, had the applicant learnt it from Dr Pentis’ report. It was submitted on behalf of the applicant that prior to receiving Dr Pentis’ report he was in receipt of advice from WorkCover that Dr Crichton had advised that his back problems were not related to the accident of 13 June 2007 and that had been reinforced with the advice from Q-Comp of 8 August 2008. It was also said on behalf of the applicant that it was not until he received the report of Dr Pentis that he was diagnosed with a permanent impairment to his back as a result of the accident which occurred on 13 June 2007. Again, there is no doubt the permanent or long-term nature of the injury is capable of amounting to a new material fact of a decisive character, if the applicant learnt of it from Dr Pentis’ report. It is submitted that the applicant was only 19 at the time of the accident and that although he completed senior, he had not obtained an OP score and that, in the circumstances, it was quite reasonable for him to not consult either doctors or lawyers until he did.

[11] I reject these contentions on behalf of the applicant. To begin with, he does not swear that his knowledge or beliefs were changed or influenced in any way by Dr Pentis’ report. It is perfectly plain from the material that the applicant has always regarded the ongoing back problems he has experienced as having their origin in the accident of 13 June 2007. He does not swear to the contrary. He does not swear that he ever changed or modified his view based upon what he was told by WorkCover. In fact, as noted above, he does not actually swear that he was told by WorkCover that Dr Crichton did not believe his ongoing symptoms were related to the accident of 13 June 2007. Whatever advice he received when WorkCover refused to reopen his claim, he did not accept it: his appeal to Q-Comp was based on his belief that his ongoing symptoms were related to the accident of 13 June 2007. He does not swear that he changed this belief after Q-Comp rejected his appeal. All he says is that he was unaware of any other avenue through which he was entitled to any kind of compensation. After the Q-Comp review he swears that he continued to experience pain but kept working as best he could. The applicant has never suggested any cause for his back pain other than the accident of 13 June 2007. I reject the notion that it was not until he received Dr Pentis’ report that he understood the accident was responsible for his ongoing back pain.

[12] I further reject the suggestion that it was not until he received Dr Pentis’ report that the applicant understood he had a serious, long-term impairment of his back. By August 2008 he knew that his back symptoms were not temporary. He knew that they were significantly interfering with his ability to work – he said he could not even sweep without considerable pain. His general practitioner gave him advice in August 2008 that he needed to find an occupation other than labouring on account of the back problems he was experiencing. There can be no suggestion that it was not until he received the report of Dr Pentis that the applicant understood that he had a significant, long-term injury to his back which was affecting, and was going to continue to affect, his ability to earn an income.

[13] Counsel for the applicant urged that this case was factually similar to the cases of Van der Merwe v Arnott’s Biscuits Limited[1] and Switzer v Qantas Airways Limited [2] because in both of those cases the plaintiffs had received medical opinion that the injuries the subject of their claims were not related to the accidents alleged to have caused them. In fact, this case contrasts to both those cases. The applicant here does not swear that he was told anything of Dr Crichton’s view before he lodged his Q-Comp review. Certainly up to the time he lodged his Q-Comp review he was firmly of the belief that his back symptoms had been caused by the accident at work. He does not swear that the Q-Comp rejection changed that view, or even led to him questioning it. In this regard both the evidentiary and persuasive onus were on the applicant.[3]

[14] The applicant is not like the plaintiff in Healy v Femdale Pty Ltd [4] who got on with her life, returned to her employment and did not experience significant pain or disability, so that it was not unreasonable of her not to take appropriate advice. The applicant says that from the time of his injury he experienced significant ongoing pain which prevented him working at his usual occupation much of the time. By August 2008 he had been told by his treating GP that he needed to look for a different occupation. He knew by that stage that the effects of his injury were long-term and that they were impacting, and would continue to impact, on his ability to earn income.

[15] While the applicant swears that he did not realise he had a right to pursue a common law claim for damages, as well as pursue statutory remedies against WorkCover, that ignorance is not something which justifies an extension.[5] The applicant has failed to demonstrate that he was unaware of any material fact of a decisive character after August 2008. His application pursuant to s 31(2) of the Act must therefore fail. I dismiss the application. I hear will the parties as to costs.

Brisbane Barrister – David Cormack

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