Background
While working on a second storey roof frame on 9 February 2015, Bryan Scott slipped and fell approximately 1-1.5m before catching himself, injuring his right shoulder in the process. He underwent surgery performed by Dr Rimmington in June 2015 and was cleared to return to full duties in December 2015.Throughout 2016 and 2017, Mr Scott's shoulder was painless but he experienced intermittent pins and needles down his arm. He experienced some muscle fatigue and weakness in early 2018 but saw a physiotherapist who effectively managed his shoulder.
Mr Scott's limitation period for bringing negligence claims against the labour hire and host employer respondents expired on 9 February 2018. (1)
Mr Scott then relocated to Sydney. The respondents contended that this involved a decision to leave the construction industry. However, Judge Muir held that the purpose of Mr Scott's move was to live closer to his brother and apply for a position in the Airforce, possibly on a temporary basis.
While turning his car's steering wheel in March 2018, Mr Scott suddenly dislocated and immobilised his shoulder. Scans revealed the screws previously inserted into his shoulder had come loose and were impinging on the anterior soft tissue. Despite surgical removal of the screws on 25 September 2018, Mr Scott's shoulder continued to regularly dislocate. He re-opened his WorkCover claim which led to him pursuing a common law claim for negligence.
The material fact
In a post-operative consultation on 10 October 2018, Mr Scott claimed that Dr Rimmington and an attending physiotherapist advised that the bones in his shoulder had shrunk, were permanently damaged and that he should remain out of the construction industry.The surgeon and physiotherapist gave evidence that they never advised Mr Scott to leave the construction industry. In fact, Dr Rimmington cleared Mr Scott to return to full construction duties later in December 2018.
The medical professionals conceded that when Mr Scott pondered a career path as a laser tattoo remover, they advised that such a profession would be less taxing and risky to his shoulder than staying in construction.
The respondents contended that Mr Scott already had the idea of leaving the industry such that no new fact arose in the consultation.
Judge Muir held that before Mr Scott received the professional medical opinion, his possible future career change had only been in contemplation. The medical advice received during the consultation brought to his mind the fact that, given his shoulder, it would be unwise to stay in construction.
The test
A court may extend the limitation period for claims in negligence resulting in personal injury where it considers that a 'material fact of a decisive character…was not within the means of knowledge of the applicant' until after the original limitation period has ended, or in the last year of the original limitation period. (2)
Case law (3) has established a three-step method for applicants to establish such an extension may be granted:
- The fact was material
- The fact was decisive
- Earlier reasonable enquiries would not have revealed the fact
The fact raised in the medical consultation was material because his avoidance of construction work would influence the future economic consequences of his injury.
The fact was decisive because prior it to being raised, Mr Scott would not have appreciated the extent to which his injury impacted his ability to work safely in construction such that he should leave the industry.
It was also held that, in Mr Scott's position, a reasonable person would not have made an enquiry into the shoulder injury's impact on their construction industry prospects until he did.
Judge Muir chose to exercise her Honour's discretion to extend the limitation period, further stating that the respondents would not suffer prejudice by the extension and had not lost their opportunity to bring evidence in defending the action.
Mr Scott was entitled to file his claim for damages despite the original injury occurring six years ago.
References
- Limitation of Actions Act 1974 (Qld) s 11(1)
- Limitation of Actions Act 1974 (Qld) s 31(2)
- See Do Carmo v Ford Excavation Pty Ltd (1984) 154 CLR 234
If you require further information or have any queries in relation to this legal update, please contact Hamish Broadbent.
We would like to acknowledge the contribution of Lachlan Thomas to this article.
