Arndt v Horwood & Anor [2012] QSC 104

Issue: extension of the limitation period – whether the applicant acted reasonably in making investigations

Overview: the applicant was involved in a motor vehicle incident on 29/11/2007 wherein she sustained soft tissue injuries to her cervical spine. She attended upon hospital via ambulance and was examined and x-rayed and followed up her aches and pains with her longstanding physiotherapist and massage therapist, whom she also consulted in relation to her dancing. The accepted evidence was she had no reason to make further inquiries because of the nature of the injury (soft tissue) it settling down and that it did not cause her to stop working (apart from 2 weeks). The injury started however to deteriorate in November 2010 at about the same time of her increased dancing for a recital. It worsened into the following year wherein she consulted her G.P and ultimately attended upon Dr John Macguire who diagnosed a 7% permanent impairment as a consequence.

The application was allowed.

North J

Discussion

[16] In State of Queensland v Stephenson & Ors[21] the High Court when considering the relevant provisions of the Act said:

“24. The additional provisions made in s 30(1) do not assist the submission of the State. The phrase ‘a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant’ has elements which suggest both objectively ascertainable criteria and also a response to the existence of those criteria. The objectively ascertainable criteria include those facts and circumstances included by para (a) of s 30(1) in the expression ‘the material facts relating to a right of action’. Paragraph (a) states that the material facts relating to the right of action ‘include’ certain matters. These include the fact of the occurrence of the acts or omissions upon which the right of action is founded, the identity of the tortfeasor, the fact that the breach has caused personal injury, the nature and extent of the personal injury and the extent to which it was caused by the tortious act or omission.

25. The ascription to material facts of the character of ‘decisive’ looks to the response of an actor. It is here that the exegesis supplied by para (b) of s 30(1) comes into play. The court is to consider the response of a ‘reasonable person’ in the manner explained in that paragraph. The particular claimant is to enjoy the advantage conferred by the provision in s 30(1) of the making of an extension order only by satisfaction of criteria which look to the response of a reasonable person. In this way, s 30(1) assists and controls an understanding of the compound conception in s 31(1).

26. This understanding of the significance of the explanatory provisions in paras (a), (b) and (c) of s 30(1) assists rather than weakens the construction which favours Messrs Stephenson, Reeman and Wrightson. The relevant provisions of ss 30 and 31, read together, indicate what it is that, if not within the means of knowledge of the applicant until a date after the relevant date, provides the necessary step for a successful application for extension.

27. Read in this way, s 31 addresses the injustice which would arise if a plaintiff were to be met with the immovable barrier raised by the expiration of the limitation period where the plaintiff neither would nor should have sued in time because of the lack of the means of knowledge of a material fact of a decisive character which related to the right of action.

…..

29. The better view is that the means of knowledge (in the sense given by para (c) of s 30(1) of a material fact is insufficient of itself to propel the applicant outside s 31(2)(a). For circumstances to run against the making of a successful extension application, the material fact must have ‘a decisive character’. Whether the decisive character is achieved by the applicant becoming aware of some new material fact or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say, as the plaintiff’s submit in their written submissions, that in a sense none of the material facts relating to the applicant’s right of action is of a decisive character until a reasonable person ‘knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing’ the features described in sub- paras (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court.”[22]

(Emphasis added.)

[17] On the view I take of the evidence and the plaintiff’s submissions the material fact contended for by the plaintiff was that the re-emergence of the symptoms in late 2010 which persisted into 2011 and continued was caused by the injury sustained in the 2007 accident. That circumstance, it is almost trite to observe, can only have become known to the applicant after the date or anniversary referred to in paragraph [3] above, 29 November 2009. Further if that fact is capable, in the circumstances, of becoming one of a decisive character it can only have done so subsequent to 29 November 2009.

[18] The applicant gave evidence before me and was cross-examined. Whilst she was inclined to become emotional when giving evidence, particularly when she was cross-examined about aspects of her health and the effect of injuries and illnesses upon her, I formed a generally favourable impression of the applicant and I am prepared to accept her evidence relating to the recovery from the motor vehicle accident in the early part of 2008 and that it was not until late 2010 when she began to suffer again from symptoms of pain or headaches.

[19] The matter therefore of the reasonableness of her conduct in not consulting either an orthopaedic surgeon or perhaps a solicitor for legal advice in 2008 and 2009[23] falls to be considered.

[20] The submission of the defendant concerning the reasonableness of the applicant’s conduct[24] overlooks the significance of the treatment and advice the applicant received post-motor vehicle accident. The evidence of the applicant bearing upon this[25] was that when she was initially examined at the Townsville Hospital and x-rayed she was reassured that the x-rays did not reveal a significant injury. The advice she received from the physiotherapist and the others who treated her or saw her was that her injury was muscular and would respond to treatment. By April 2008 she had significantly recovered and had only lost income for approximately two weeks. That situation persisted until late 2010. It was not until 2011 that she received expert medical advice that she may have suffered a disability that was permanent and that the deterioration in her condition in late 2010 and into 2011 was attributable to the 2007 motor vehicle accident.

[21] In Hargans v Kemenes[26] Fraser JA said[27]:

“[26] In HWC v Corporation of the Synod of the Diocese of Brisbane, upon which the appellant also relied, Keane JA observed that ‘it is not the policy of the courts in the application of s 31 of the Act to penalise an injured person who makes a reasonable decision to try to get on with life rather than a decision to litigate upon a questionable basis.’ Keane JA referred also to the reference by Thomas JA in Pizer v Ansett Australia Ltd to the earlier observations of the court in Healy v Femdale Pty Ltd that:

The question whether such a person has taken all reasonable steps to ascertain the nature and extent of the injury

… depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability [or] effect upon her working capacity.

There is no requirement, actual or notional, to take ‘appropriate advice’ or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the plaintiff to have done so. The answer to this then depends upon the primary facts concerning the level of seriousness of the plaintiff’s symptoms and of the warning signs which she undoubtedly had.”

(Footnotes omitted.)

[22] In the circumstances of the advice the applicant was given post-accident, the success of the treatment, the relatively minimal interference with her employment and the nature and the extent of the recovery she experienced in 2008 and continuing through 2009 (and even into 2010) it was reasonable for the applicant to seek neither specialist orthopaedic or other suitably qualified specialists’ medical advice or for that matter the advice of a solicitor. In the circumstances the applicant has satisfied the requirements of section 31(2) of the Act entitling her to, subject to discretionary considerations an extension of the limitation period.[28]

The Exercise of the Discretion

[23] For the respondents it was contended that the applicant had the onus of demonstrating that the justice of the case required a favourable exercise of the discretion and that in order to demonstrate this she should demonstrate that an extension of the limitation period would not result in significant prejudice to a prospective defendant in the context of a fair trial.[29]

[24] The respondents contended that the prejudice the defendant in any trial would suffer arose from the delay between the initial accident and the emergence of symptoms in late 2010 and early 2011 that would necessarily arise because of difficulties for specialists in considering issues such as the attribution of those symptoms to the relevant motor vehicle accident. It was submitted that this matter was complicated by reason of the applicant’s own inability to clearly recall some aspects of the history of her suffering, condition and wellbeing over the relevant years and also by reason of the circumstance of the intervening motor vehicle accident that apparently occurred in early September 2008.[30]

[25] No doubt some difficulties arise in the circumstances for the prospective defendant occasioned by the circumstance of the late notification of the accident and injury and also because of some of the matters related above. As against that there is a reasonably good picture available of the applicant’s initial injury and treatment which is demonstrated in the exhibits tendered before me and in the documents exhibited to the affidavit of the applicant’s solicitor[31]. All of these documents will be available to the respondent to refer to experienced professionals for them to consider. The circumstance of the intervening motor vehicle accident, so far as is recorded or noted in the physiotherapist’s notes suggests that it was a mild accident and had little effects upon the applicant. Assuming the applicant to be a reliable reporter and historian an experienced specialist asked to give a medico-legal opinion should have, in my view of things, little difficulty in disentangling matters and offering an opinion upon these issues.

[26] Moreover from the perspective of any trial Court, the matters in issue in this case are far from complicated nor do they involve concepts or issues that make it difficult for a trial Judge to consider and address. In the circumstances I take the view that it is possible to have a fair trial of the issues that may fall to be agitated before a trial Judge and accordingly I propose to exercise a discretion in favour of the applicant.

Order

[27] In the circumstances I propose to make an order in favour of the applicant extending the limitation period. Whether proceedings have been commenced or whether a particular order is needed extending time to a certain date, I am unsure. I propose to therefore to invite parties to make submissions in writing within fourteen days as to the formal order I should make and also as to costs.

Brisbane Barrister – David Cormack

Related Posts

Recent Comments

    Categories