Limitation Application: s.31 – means of knowledge

Hornburg v Greenlife Solutions Pty Ltd & Anor [2017] QDC 32

Everson DCJ

The application sought to extend the limitation period for personal injuries suffered by the applicant in 2006. The basis of the application rested on two incidents which occurred during the course of the applicant’s employment – lower back pain during the excavation of a large palm tree and after heavy manual lifting and twisting.

Section 31(2) of the Limitations of Actions Act 1974 (Qld) (the “LAA”) provides:

Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—

(a)  that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b)  that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; 

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

Section 30 expands on the interpretation of s 31, and relevantly provides that a ‘material fact’ includes the nature and extent of the personal injury and whether this was within the means of knowledge of the applicant, and whether there are reasonable prospects of success.

The applicant alleged that in December 2014 after lifting shelves that the applicant suffered spasms in his lower back. He was taken by ambulance to hospital where a scan revealed a disc protrusion. The applicant claimed he was worried about his future employment, however it was not until November 2015 when the applicant suffered further back pain that his concern heightened. As stated by his Honour:

[16] The material fact relied upon by the applicant in support of the application is him becoming aware as a consequence of the incidents of back pain experienced on 1 December 2014 and/or 4 November 2015 that the injuries sustained in the first and second incidents were of such magnitude that his employment and future capacity to earn income were to be significantly affected.

Means of knowledge and prospects of success

In deciding whether the fact was within the means of knowledge of the applicant, Everson DCJ recited the principles from NF v State of Queensland where Keane JA as he then was and held at [29]:

Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant.

Further, Everson referred to Keane JA as then was in HWC v The Corporation of the Synod Diocese of Brisbane where Keane JA also stated at [44]:

Further, 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.

Importantly, the applicant had been given advice by a neurosurgeon that the applicant’s aggravation would have been short lived.

Allowing the application, Everson DCJ reasoned as follows:

[12] The resolution of the applicant’s symptomatology after the first and second incidents and after further aggravations until 1 December 2014, coupled with the assurances he was given by Dr Lucas quoted above, are such that I am of the view that the applicant did not know of the seriousness of the injuries he had sustained in the first and second incidents before at the earliest, 1 December 2014. This was despite taking all reasonable steps to find out that fact before that time, including obtaining appropriate medical advice.

[21] I have before me two reports of Dr Tomlinson, each dated 23 September 2016. These reports suggest that a proceeding for personal injuries based on either or both of the incidents would result in an award of damages sufficient to justify the bringing of an action.  As for the incidents themselves, the respondents concede that the first incident gives rise to a prima facie case against them.

[22] I am satisfied that the task being undertaken at the time of the second incident was, on the contrary, one which could give rise to a successful action for personal injuries.  As a starting point, it breached the requirements of the Queensland Government Workplace Health and Safety publication, A Worker’s Guide to Back Care, dated January 1997 which stated, inter alia that from a standing position “lifting loads over the 16-20 kg range should be avoided”. Furthermore, the applicant’s description of the manual handling tasks required appeared to me to be such as to result in reasonable prospects of success should he institute a claim arising out of it.

The limitation period was extended to 1 December 2015 for the injuries sustained in 2006.

David Cormack – Brisbane Barrister & Mediator

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