Holt Mcminn v At and T Global Information Solutions (Australia) Pty Limited [1995] ACTSC 142 (8 December 1995)

SUPREME COURT OF THE ACT

HOLT McMINN v. AT and T GLOBAL INFORMATION SOLUTIONS (AUSTRALIA) PTY LIMITED
No. SC 691 of 1995
Number of pages - 7
Personal Injuries - Limitation of Action

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Personal Injuries - applicant slipped on wet stairs - knee injury.

Limitation of Action- application of limitation laws of New South Wales - whether cessation of workers' compensation payments was a "material fact of a decisive character" relating to the cause of action - whether nature or extent of injury had changed in a material fashion - failure to demonstrate recent awareness of a material fact of a decisive nature.

Limitation Act 1985 (ACT), ss11, 36, 56, 57
Limitation Act 1969 (NSW), ss14, 18A, 57B, 58, Div 3

Rose v Chang-Sup Kwow [1994] ACTSC 88; (1994) 121 ACTR 1
Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234
Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283
Berg v Kruger Enterprises (Division of Besser Qld Limited) Ltd (1990) 2 Qd R

301
Electricity Commission of NSW v Plumb (1992) 27 NSWLR 364

HEARING

CANBERRA, 27 October 1995
8:12:1995

Counsel for the Applicant : Mr G Stretton

Instructing solicitors : Snedden Hall and Gallop

There was no appearance for the Respondent

ORDER

THE COURT ORDERS THAT:
The application be refused.

DECISION

HIGGINS J This is an application for an extension of time pursuant to the provisions of the Limitation Act 1985 (ACT) (ACT Limitation Act).

2. The applicant/plaintiff has deposed to certain matters which he claims give rise to a cause of action against the respondent/defendant. His evidence is not challenged for the purpose of these proceedings. That does not, of course, preclude the defendant from later disputing any of the facts so alleged.

3. The applicant says that on 22 July 1986 he was an account manager employed by the respondent at its premises in Sydney, New South Wales.

4. There was a basement carpark. On his arrival at work he parked his motor vehicle there. To get to the stairs leading to the lifts it was necessary to walk through an extensive but shallow area of water. It was apparent that a number of other persons had already walked through the wet area. The applicant slipped and fell as he walked down the stairs. It is open to be inferred that the steps were wet. There is, at least, an arguable case that the applicant's fall was caused by the negligence or other breach of duty of the respondent.

5. As a result of that fall, the applicant injured his right knee. There was ongoing knee pain and instability.

6. An operation to repair ligament damage to the right knee was carried out on 15 October 1987. This resulted in some improvement. However, instability continued.

7. On 21 April 1993 a further operation was performed. Another was carried out on 10 February 1994 and again on 22 August 1995. It seems likely that a further operation will be needed.

8. The applicant also underwent back surgery on 15 March 1993.

9. The fall had been reported to the relevant officer of the respondent on 25 July 1986. Workers' compensation was paid by its insurer. When he had back surgery in May 1993, the applicant sought compensation for it. After medico-legal examinations in December 1994 and February 1995, the respondent's insurer declined to pay compensation in respect of the applicant's back.

10. Shortly after that, the applicant consulted a solicitor, Mr Faulks, who advised him that he had a good cause of action against the respondent but that the limitation period had expired.

11. This application was not made until 6 October 1995. The delay since February 1995 was explained on the basis, in part, that there was some delay in receipt of a report from one of the treating doctors. More significantly, however, the applicant's wife, tragically, contracted a terminal illness, dying in April 1995. As a result, the applicant was not in a frame of mind to attend promptly to his own affairs.

12. The medical report annexed to his affidavit does not really support that assessment. The knee seems to have been in a similar albeit unsatisfactory state between 15 October 1987 and 21 April 1993. Recovery of the knee was complicated by the need for back surgery carried out on 17 May 1993.

13. After the further operation on 18 February 1994 there was some improvement in the knee condition. There is no evidence before me to suggest that the back condition, treated by operation on 17 May 1993, is related to or was caused or contributed to by the fall in 1986.

14. The limitation period applicable is, by virtue of s11(2) of the ACT Limitation Act, that imposed under s56 rather than the general limitation period of six years imposed by s11(1).

15. As I noted in Rose v Chang-Sup Kwow [1994] ACTSC 88; (1994) 121 ACTR 1, s56 and 57 of the ACT Limitation Act have the effect that, if the substantive law of another Australian jurisdiction or of New Zealand applies to the determination of the claim, then the limitation law of that place will apply to that cause of action including any discretion to extend it. It follows that s36 of the ACT Limitation Act has no application.

16. As the fall occurred on premises in New South Wales where the applicant was employed by the respondent, it is clear that, whether the cause of action be founded in tort or contract, the substantive law of New South Wales will govern it.

17. Mr Stretton, for the applicant, rightly concedes this. As a result, the limitation laws of New South Wales apply.

18. Section 18A of the Limitation Act 1969 (NSW) (NSW Limitation Act) provides that a cause of action for damages for personal injury "founded on negligence, nuisance or breach of duty" must be brought within three years from the date of its accrual. That section does not apply to a cause of action accruing before 1 September 1990.

19. Thus the general limitation period imposed by s14(1) of the NSW Limitation Act applies, that is, six years from the date of accrual of the cause of action in question. This action ceased, therefore, to be maintainable on and from 22 July 1992.

20. The provisions of the NSW Limitation Act which enable postponement of that bar are set out in Division 3 Subdivision 1. Subdivision 2 applies to causes of action accruing on or after 1 September 1990 and provides a maximum period after extension of eight years from the accrual of the cause of action. If that subdivision had applied in this case I would not have been able to grant any postponement of the time bar beyond 22 July 1994.

21. The relevant provision of the NSW Limitation Act provides,

58. (1) This section applies to a cause of action founded on
negligence nuisance or breach of duty, for damages for personal
injury ...
(2) Where, on application to a court by a person claiming to
have a cause of action to which this section applies, it appears
to the court that:
any of the material facts of a decisive character relating to
the cause of action was not within the means of knowledge of the
applicant until a date after the commencement of the year
preceding the expiration of the limitation period for the cause
of action; and
there is evidence to establish the cause of action, apart from
any defence founded on the expiration of a limitation period,
the court may order that the limitation period for the cause of
action be extended so that it expires at the end of one year
after that date and thereupon, for the purposes of an action on
that cause of action brought by the applicant in that court, and
for the purposes of paragraph (b) of subsection (1) of section
26, the limitation period is extended accordingly.

22. The discretion of the court is limited by this section to extending time for no longer than one year after "any of the material facts of a decisive character relating to the cause of action" came within the means of knowledge of the applicant after 22 July 1991.

23. Section 57(B)(1) of the NSW Limitation Act includes as a "material fact", by virtue of s57B(1)(b)(iv), "the nature and extent of the personal injury so caused". Whether or not such a material fact, if it exists, will be regarded as "decisive" depends, by virtue of s57B(1)(c), on whether a "reasonable man", becoming aware of those facts and being properly advised, would take action.

24. The applicant submits that the nature and extent of his injury could not reasonably have been known until the operation of 22 August 1995. However, it is apparent that the applicant knew of the fact that his knee was not spontaneously going to become normal once the need for surgery became apparent in 1993. He was aware after that surgery that further treatment would be needed. He could not have been unaware of the relative seriousness of his injury by the time of the 1994 operation.

25. No other "material fact" was outside the applicant's means of knowledge before October 1994.

26. The applicant himself, explaining his lack of action, deposed,

Had it not been for the deterioration in the condition of my
knee and the need for surgery in 1993 and again in 1994 even if
I had been aware of my rights I may not have sued. My injury
however has turned out to be far worse than initially appeared
and I have ongoing symptoms of pain and instability.

27. I assume this to imply that the applicant regarded the result of the 1994 operation as a decisive matter so far as his decision to sue was concerned. However, the evidence does not support the view that it was reasonable to conclude that the injury was, as a result, apparently more serious than previously believed. The applicant himself does not seem to support the view that the result of the operation on 22 August 1995 was decisive, although it was urged by his counsel that that operation and its result could be so regarded.

28. What seems to have been regarded by the applicant as decisive is referred to in paragraph 12 of his affidavit. That refers to the refusal by the insurer in February 1995 to pay accounts for treatment of his back condition. There is an issue as to whether that decision of the insurer was, or was a consequence of "a material fact of a decisive nature" which had only then come to the applicant's attention.

29. In Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234 a worker had sought an extension of time under s58 NSW Limitation Act. He had been exposed to silica dust in the course of his employment. About eight years later he became aware that that exposure and its injurious consequences could have been avoided by the use of face masks. That realisation made it reasonable to sue the employer for damages for negligence.

30. Wilson J noted at 248 that a fact is "material" and "decisive",

... if the reasonable man, having taken appropriate advice on
the facts of which (the applicant) did have knowledge, would
regard those facts as showing that an action would have a
reasonable prospect of success and ought to be taken.

31. In Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283 the applicant had been aware that he had been given an overdose of radiation in the course of medical treatment. He was aware of significant disabilities as a result of that overdose. He had not, until out of time, been aware that he could develop a much more serious condition as a consequence of the overdose. Hope JA regarded this lack of knowledge as being of a relevant "material fact" but the fact that the original overdose was due to lack of reasonable care and skill was not to be so regarded. Samuels JA did not regard either fact as "material" and "decisive". Mahoney JA, whilst concurring in the result proposed by Hope JA, felt that the relevant unknown "material fact" was that the overdose was due to a lack of reasonable care and skill.

32. The case of Berg v Kruger Enterprises (Division of Besser Qld Limited) Ltd (1990) 2 Qd R 301 involved equivalent Queensland legislation. The appellant had suffered a back injury at work in June 1981. In September 1983, after he had returned to work in August 1981, he suffered a serious relapse. He was off work for 2 1/2 years. He failed to sue in time because, he claimed, he was not aware that the employer had been negligent, nor was he aware of the extent of his injury.

33. Connolly J rejected the first reason as it relied on a legal characterisation of the known facts. There was no additional fact, such as a reasonable alternative system of work, which the appellant was relevantly unaware of. It also appeared that, on or shortly after June 1983, the plaintiff was aware that his back injury was serious and might require a fusion operation. The only new fact to emerge was that shortly before he sought to sue, the Orthopaedic Board, assessing him for workers' compensation, expressed the opinion that his disability was permanent.

34. His Honour found that such an opinion was not a fact, even if "material", which altered relevantly the knowledge of the appellant as to the nature and extent of his injury. His Honour said at 305,

Nor ... could the opinion of the Board be considered as
enhancing the prospect of damages to an extent which would
warrant embarking upon an action which would not have been
justified by the facts previously known.

35. Ryan and Cooper JJ concurred.

36. Then, in Electricity Commission of NSW v Plumb (1992) 27 NSWLR 364, the applicant claimed that he had decided to take action only because the employer had changed its policy towards retaining injured workers in its employ although on light duties.

37. Handley JA accepted that the change of policy was "material" but not as to the nature or extent of the injury. It was material only to the issue of the extent of damages for future economic loss. Thus it was not a "material fact" warranting an extension of the time bar.

38. It will be apparent from these authorities that it is not open to regard the insurer's decision to reject the applicant's claim in respect of his back condition as being or revealing a relevant "material fact", not known to the applicant within the relevant time frame.

39. Whilst it may have been a relevant material fact if the back condition had been revealed as a consequence of the original injury, that is not what occurred. It seems, in fact, to have been otherwise. The relevance of it was that, in seeking advice as to whether he was entitled to compensation for the back disability, the applicant's attention was focussed on his original cause of action in relation to his knee. That fact is not a "material fact" within the meaning of s58 NSW Limitation Act.

40. It follows that there has not been shown within the previous year to have been any "material fact of a decisive character" within the meaning of s58 NSW Limitation Act which would enable an extension of the limitation period.

41. Accordingly, although if assessed pursuant to s36 of the ACT Limitation Act, this application might well succeed, it regrettably does not pass the more stringent test required by the NSW Limitation Act.

42. The application must be refused accordingly. I will hear the parties as to costs.