BULLEY v COMMONWEALTH OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and POWELL, JJA 25 October 1995, 31 January 1996 [1996] NSWCA 77 Limitation of Actions — Extension of time — Frank injury — To lumbo-sacral spine — Prolapsed discs with nerve root involvement — Possibility of future surgical intervention — Whether unaware of extent of injury. Priestley JA Subject only to the comment made by Clarke JA, which I adopt, I agree with Powell JA. Clarke JA I agree with the reasons and orders of Powell JA. I would only wish to add that, as I said in CRA Ltd v G Martignago and Anor; Costain Australia Ltd v G Martignago, (New South Wales Court of Appeal, 31 January 1996, unreported) the decision in FJ Walker Ltd v Webber (NSW Court of Appeal, 16 November 1989, unreported) is not directly relevant to the determination of questions involving s60I. Powell JA Two questions have been argued on behalf of the Claimant on this application for leave to appeal from a Judgment delivered by Abadee J on 23 February 1995 when his Honour dismissed with costs an appeal from a Judgment delivered by Master Greenwood on 22nd September 1993 when the Master dismissed with costs an application which had been brought by the Claimant seeking an order extending the time within which the Claimant might bring proceedings against the Opponent seeking to recover damages for negligence. The two questions which have been argued are: 1. whether Abadee J erred in declining to admit into evidence an affidavit which had been sworn by the Claimant on 21st September 1993; and 2. whether his Honour erred in holding that, at the time of the expiration of the relevant limitation period, the Claimant was aware of the nature and extent of the injury which she claimed to have sustained as the result of the negligence which she alleged against the Opponent. The circumstances which gave rise, ultimately, to the application which was made to extend the time within which the Claimant might commence proceedings against the Opponent, and the facts which are relevant for the purpose of determining whether or not, at the expiration of the relevant limitation period, the Claimant was aware of the nature and extent of her injury are as I set them out below. The Claimant is a married women, now aged about 44 years, whose husband appears, at all relevant times, to have been a member of the Royal Australian Air Force ("RAAF"), his duties being that of an air frame fitter. In 1979, the Claimant's husband was posted to the RAAF Base at Butterworth on Penang Island, Malaysia, which posting appears to have continued until late 1981 or early 1982 - the Claimant and her children accompanied the Claimant's husband to Malaysia at the time he took up his posting and continued to live in Malaysia until the Claimant's husband was posted back to Australia. 2 UNREPORTED JUDGMENTS Although it is not entirely clear that this was so, the material in the appeal papers would suggest that, in about May 1980, the Claimant was engaged by the Commonwealth to act as a school bus escort, and for that purpose was given the temporary rank of a Warrant Officer or Sergeant in the RAAF. The role of a school bus escort was, so it seems, to escort the children of service personnel who were of primary school age, on the bus which took them from the residential area for service personnel, to the Annex Primary School on Penang Island. It is said by the Claimant - and not denied - that the bus which was used for this purpose was very old and in a poor state of repair, the roof usually leaking when it rained, with glass missing from many of the windows, and there being no racks for the storage of ports or school bags, so as to keep them off the floor of the bus. Although it would appear that the number of children normally carried on the bus was of the order of 40, the only adults who, at the relevant time, were accustomed to travel with them were the driver and the Claimant. It is said that, on 9th July 1980, when the Claimant, in her capacity as a school bus escort, was on a bus which was proceeding from the residential area to the school, there was a thunder storm, accompanied with heavy rain which not only caused the roof of the bus to leak but also drove in through the sides of the bus where there was no glass in the window frames. In this situation, so it seems, the Claimant started to move the smaller children away from the seats where the rain was driving in and the elder children started to scramble to get out of the way of the rain. While all this was happening, the Claimant tripped over a school bag which was protruding from under one of the seats and she fell to the side striking her right hip on the steel frame of one of the seats. At the time, so the Claimant says, she felt a sharp and continuing pain in her lower back. Although the Claimant completed her escort duties in the afternoon, it would seem that she did not thereafter continue in her position as a school bus escort, and that she has not since that time engaged in any form of gainful employment. Whether or not she had earlier sought medical treatment, it seems clear enough that, on 30th July 1980, the Claimant consulted one of the Base medical officers at Butterworth complaining of pain in her lumbar spine with radiation across the pelvic area and, when driving, with pain radiating into both buttocks and into the posterior aspect of both thighs. The diagnosis which was then made appears to have been that the Claimant was suffering from acute musculo-skeletal back strain, and she appears to have been referred to a physiotherapist for treatment. The Claimant appears to have consulted one of the Base medical officers in September 1980 complaining of the continuation of her back pain, and to have done so again on 30th October 1980. The notes made by the Base medical officer on the latter occasion include the following: "Progressive back problems. Limitation of all activities (Sport/Housework/Dressing etc). Has had a trial of physio. Analgesics only a minor help. Radiates to both knees. Needs Lumbo/Sacral X-rays." As a result the Claimant was referred for X-rays and was referred to an orthopaedic specialist who appears to have been a Dr Elliott. In his letter of referral to Dr Elliott, the Base medical officer concluded: "i would be grateful if you could suggest how we might help Mrs Bullee (? admission for traction etc)." The X-rays which were taken at about this time would seem to have shown a slight narrowing in the L4-5 area and narrowing in the L5-S1 area with osteophytic lipping at both levels - apart from these irregularities the X-rays revealed that the other vertebrae and discs and the sacro iliac joints all appeared URJ BULLEY v COMMONWEALTH OF AUSTRALIA (Powell JA) 3 normal. The specialist's recommendation appears to have been that the Claimant should continue with physiotherapy, and undertake a programme of exercises determined by the physiotherapist but that at that time there was no indication for traction or surgery. It appears tolerably plain that the Claimant's condition did not improve, for in March 1981, she had a lumbar myelogram, the report on which was to the following effect: "There is a large anterior indentation at L5/S1 and a smaller one at L4/S disc spaces. The L5 nerve roots are swollen. The S1 nerve roots are swollen and displaced postero-medially. The L3/4 and L2/3 discs appear normal. The L1/2 disc is not shown because of the marked lordosis. Comment Prolapse of the L5/S1 and L4/5 discs." The Claimant appears then to have been admitted to the RAAF Hospital at Butterworth for a period of 9 days following which she was discharged on 4th April with a recommendation that she continue with physiotherapy, an appointment being made for her to see a surgeon shortly afterwards. The Claimant appears to have been re-admitted to the RAAF Hospital for a further period of 9 days being discharged on 22nd April 1981. The diagnosis recorded on her Inpatient Record Cover Sheet was "Bilat-Sciatica" and the Prognosis recorded was "poor". As I have earlier recorded, the Claimant appears to have returned to Australia in late 1981, or early 1982, at which time she and her husband and children appear to have moved into married quarters at the RAAF Base at Richmond. Whether or not the Claimant, while still in Malaysia, had made some form of claim upon the Commonwealth in respect of her injury, it seems tolerably plain that her condition remained under review by the Department of Defence ("the Department") for on Sth February 1982, the Director-General, Service Conditions, within the Department ("the Director-General) wrote to her (Appeal Book at 53) asking her to complete certain medical authorities "in favour of all medical practitioners who have treated you since your return to Australia". Having received that letter, the Claimant then instructed a Mr Malcolm McDonald, a solicitor practising at Penrith, to act on her behalf and to take whatever action was necessary to enable her to pursue her rights in the matter. It would seem that it was about at the same time when the Claimant consulted a Dr Brownie who carried on his practice at Richmond in relation to her back. Dr Brownie referred the Claimant to a Mr Chung an orthopaedic surgeon who had rooms at Penrith. At the time, Mr Chung expressed the views, first, that, because of the degenerative changes revealed by the X-rays, there was "some degree of chronicity of (the Claimant's) problem", and second, that, at least for the time being, the Claimant should be treated conservatively. Mr Chung then arranged for the Claimant to be admitted to Hawkesbury District Hospital where epidural steroid injection and manipulation was carried out on 30th April 1982. The Claimant appears to say that this procedure "did not help at all" (Appeal Book at 19) and she did consult Mr Chung again. Meantime, on Ist April 1982, a Delegate of the Commissioner for Employee's Compensation had issued a Determination (Appeal Book at 55) which omitting formal parts was as follows: "In the matter of the claim of Kaye Lorraine BULLEY for compensation under the Compensation (Commonwealth Government Employees) Act 1971, as amended, in respect of acute musculo skeletal back strain. DETERMINATION In pursuance of the provisions of the compensation (Commonwealth Government Employees) Act 1971, as amended, I hereby determine: 1. The said Kaye Lorraine BULLEY sustained personal 4 UNREPORTED JUDGMENTS injury arising out of or in the course of her employment by the Department of Defence on g July 1980 namely acute musculo skeletal back strain. 2. In accordance with the provisions of s27 of the said Act, the Department of Defence is therefore liable to pay compensation in respect of the said personal injury." It would appear that in January 1984 the Claimant again consulted Dr Brownie who, on this occasion, referred her to Mr Bray, an orthopaedic surgeon with rooms at Penrith. When reporting to Dr Brownie on 24th January 1984 (Appeal Book at 23), Mr Bray wrote (inter alia): "I have no doubt that she has disc damage at the lumbo sacral level and perhaps at the L4/5 level and it is very significant that the only movement that is really painful and restricted is extension. We, therefore, have to consider whether she had significant disc prolapse that would benefit from removal or whether she would be a candidate for fusion. I think both are really required and this applies especially to the latter. She has no overt signs of sciatica. In this regard she has to be exercising back care and looking after herself and if she is doing this, and managing, there is no problem. If she is not, then she needs recent x-rays of her back followed by a metrizamide myelogram and then assessment by a Neurosurgeon." The Claimant appears to have consulted Mr Bray again in February 1984 complaining of on-going back and leg pains, the former being constant and the latter being intermittent. Accordingly, Mr Bray arranged for the Claimant's admission to hospital where, on 9th March 1984, she had a myelogram performed. When reporting to Mr McDonald on 3rd April 1984 (Appeal Book at 24-25), Mr Bray wrote (inter alia): "(the myelogram) showed two significant lesions on the le t hand side and perhaps a very small lesion on the right hand side, and the report also mentions an anterior impression on the contrast column at the L4/5 level consistent with a posterior disc protrusion at this level. None of the impressions are all that marked. I saw her again after her recovery from the myelogram and I have arranged for her to see Dr Peter Blum, neurosurgeon for assessment, advice, and if indicated management. I think that whatever happens now, this lady, as a result of an accident in 1980 is going to be prone to some intermittent low back aching and stiffness with some pain radiating from her lower back into her legs, but more especially the right leg, and obviously, it is a little bit early yet to be certain about her prognosis." The Claimant appears to have been reviewed by Dr Blum on a number of occasions, Dr Blum seemingly concurring with Mr Bray's approach and it was decided to persist with conservative measures (Appeal Book at 26). On 29th August 1984, Mr McDonald wrote to the Director-General, Service Conditions of the Department of Defence as follows (Appeal Book at 42): "Re: Compensation (Commonwealth Government Employees) Act 1971 Kaye Lorraine Bulley Reference is made to the above matter. We enclose originals of the following reports. 1. Clinical notes from Hawkesbury District Hospital dated 19 December 1983. 2. Report of Dr WK Chung dated 29 December 1983. 3. Report of Dr D Bray dated 3 April 1984. Would you please note that we have not obtained, as yet, a report from Dr Blum, Neurosurgeon and would not anticipate doing so unless it was requested by the Department for the reason that he corroborate the report of Dr Bay. Dr Blum, himself, has indicated that the expense of a report is not warranted in the circumstance when he concurred with Dr Bray. Advice from Counsel indicates that our client has rights at common law and we would ask that you please advise us as to whether or not the Department is willing to settle our client's common law rights without the necessity for proceedings at the same time that compensation is determined in respect of our URJ BULLEY v COMMONWEALTH OF AUSTRALIA (Powell JA) 5 client's rights pursuant to the statute. Looking forward to your reply." receipt of that letter being acknowledged on 10th September 1984. Thereafter, on 4th December 1984, Mr McDonald wrote to the Australian Government Solicitor a letter which contained the following (inter alia) (Appeal Book at 60-61): "We submit that the Department was in breach of its duty of care to provide a safe system of work. The duty of the employer includes, inter alia, the supply of suitable appliances and adequate man power. Further, of course, the employer has the general duty in relation to the safety of the plant in use. In general the breach would be charged either as a failure to provide the safe and suitable plant at all or as a failure to replace defective plant with plant which was safe and suitable. It is submitted on behalf of the plaintiff that in providing a bus which was open to the weather in monsoon season which only had two adults to supervise forty two children in the circumstance where the bus was in a dilapidated condition the Department w s in breach of its duty as an employer by providing a bus in such condition which was not providing a safe place for a system of work. The lack of supervision is critical in that although there were two adults to look after the children, one was wholly and solely committed to driving a bus in poor condition which would have taxed that person's resources over and above the normal skill, care and condition that would have been utilised in driving a bus of a safe condition and nature. We note from our file that we have provided the Department of Defence with all relevant medical reports and we would submit that there would appear to be no good reason why compensation should not have been determined. Would you please advise us as to whether or not the Department would be prepared to settle this matter on a once and for all basis by way of a lump sum payment to our client. Would you please provide us with an offer in order that we may seek the advice of Counsel and the instructions of our client." The Claimant appears to have consulted a Dr AS Gabrael, a general practitioner, carrying on his practice in St Marys, on 29th March 1985, at which time she complained of constant pain which was aggravated by movement, and also of intermittent paraesthesia of both feet. The material which is in the appeal papers does not record what treatment was prescribed by Dr Gabrael at the time, but, whatever it was, it appears not to have alleviated the Claimant's condition to any significant degree,as the material in the appeal papers (Appeal Book at 28, 29) records that the Claimant was again seen by Dr Gabrael on Sth May 1989, at which time she apparently sought a laminectomy, to be performed in August of that year. Meantime, correspondence continued to pass between Mr McDonald and the Director-General, as to the Claimant's claim for compensation. In the course of that correspondence, the Director-General, wrote (Appeal Book at 64) that it was not disputed that the Claimant was suffering from a back problem, but that, if she claimed to be totally and permanently incapacitated for work and had been so since the incident on 9th July 1980, appropriate medical evidence needed to be provided. In May 1986, the Claimant was again reviewed by Mr Bray. At the time, she reported ongoing symptoms of low back aching and stiffness, pain radiating from her back to her buttocks and paratheasia going down the whole of the right leg. In reporting to Mr McDonald on 26th May 1986, Mr Bray wrote (inter alia) as follows (Appeal Book at 26-27): 6 UNREPORTED JUDGMENTS "From a practical point of view, the changing nature of her signs would argue against the need for surgery. It, therefore appears that this lady has ongoing symptoms of low back pain and some symptoms and some signs of sciatica that she relates to an episode when she sat down heavily against the side of a school bus seat and bruised her low back in 1980. There is nothing inconsistent with this history and with her complaints. Further she had had myelograms performed and these myelograms have shown some bulging of her low lumbar discs again consistent with an injury such as she might have sustained when se sat down heavily. Her continuing symptoms would be typically expected to make it difficult for her to sit or stand in one position for a long period of time and may also occasion her some difficulty in performing normal activities including some household tasks. After discussion with her, it appears that this is typically the case with her. To answer the questions raised in your last two items, I think decisions about the patient's work must be made, to a large extent, by the patient based upon their perception of their ongoing disability and it is incorrect for us to advise them absolutely against any form of work that they feel that they can manage, or indeed, to advise them to manage work that they feel that they cannot manage. Therefore, I will just reinforce what | have said before, that the patient may be better off not involved in work that requires prolonged sitting or standing in one position and also work that does not involve repeated heavy lifting or bending, but what she does is, to some extent, dependent upon what she feels she can manage within the limits of her continuing back symptoms." It would appear that, in August 1986, the Claimant was referred by Mr McDonald to a Dr Teo, a surgeon specialising in sports and industrial injuries, fractures and rheumatological disorders, for examination and report. When reporting to Mr McDonald on 28th November 1986, Dr Teo, after recording the history which he had been given both as to the accident in July 1980 and the treatment which the Claimant had had in the intervening years, wrote as follows (Appeal Book at 32): "When seen on 26th August, 1986 she claimed that she had not made any significant improvement. Her back was hurting all the time which was worse when doing things. Pain was peripherally radiated to involve both lower extremities right more than the left. She has no bowel or urinary symptoms. She had difficulty with sex. Her physical tolerance was poor; walking less than | kilometre, sitting and standing less than 1/2 hour. She could not make beds. Sleep was a problem at times. Lying down eased the pain. Examination 26th August, 1986 She presented as a lady of her stated age (35). 165.1cm in height and 71kg in weight being about 10kg overweight. Genuine in her presentation, she walked with a rather rigidly held back. She frequently shifted her sitting position. Normal head and neck posture. Loss of lumbar lordosis. No scoliosis. Her lumbar spine was restricted in movements with C7 to S1 excursion 44cm - 48 cm and lumbar movements 16cm - 18cm. Extensions were reduced. Normal extension flexion rhythm. Lateral flexion and rotation were restricted to 2/3rd normal range: Straight leg raising 40140. Tight hamstrings. Sciatic nerve stretches were positive on both sides. Motor function, sensation and reflexes of the lower limbs were not altered. Impression and opinion Mrs Bulley has mechanical low back pain from discoid injury (L4/L5 and LS/S1) consequent to the accident and her symptoms although at the lower level persisted and it is likely that they would continue for some time to come. For this she may require pain relief measure from time to time. However, I do not believe she requires any surgical treatment. Although, URJ BULLEY v COMMONWEALTH OF AUSTRALIA (Powell JA) 7 initially, myelogram shows swollen nerve roots, clinically, she has no neurological deficit to warrant surgical treatment. I believe she is capable of sedentary work but it is advisable that she should not be employed in work which requires repetitive bending, lifting, pushing, pulling, etc that is to say, she is to avoid abusing her back or she should not subject her back to undue physical stress. From the foregoing history presented in this letter I conclude that her incapabilities of such physical work such as heavy lifting, pulling, etc would have started from the time of her injury on 9th July, 1980. Long term prognosis is guarded." In the light of the history of the accident, of the Claimant's complaints, and of her treatment over the years until August 1986, it is perhaps convenient, now, to interpose that, in the Statement of Claim which was filed on behalf of the Claimant on 18th May 1993, there may be found the following (Appeal Book at 2): "6. In consequence of the said accident the Plaintiff sustained severe personal injury and has undergone pain and suffering and has been put to loss and expense and has suffered damage. Particulars of Injuries and Disabilities: The plaintiff suffered the following injuries: (a) Disc prolapse at L4/5; (b) Smaller disc prolapse at L5/S1 with nerve root involvement. The plaintiff suffered the following disabilities: (a) Constant pain in the low back; (b) Impaired ability to lift anything; (c) Inability to sit for long periods without pain; (d) Inability to stand for long periods without pain; (e) Constant dull sensation down the legs; (f) Impaired ability to drive a vehicle; (g) Inability to engage in sports generally. The plaintiff's disabilities have not stabilised as at the date of this Statement of Claim." (see also the Particulars filed on behalf of the Claimant on 7th March 1994 (Appeal Book at 111) which are to the like effect.) It is also convenient to record that, in an Affidavit which she was to swear On 21st September 1993 - to which Affidavit I will need to return later - the Claimant deposed (inter alia) as follows (Appeal Book at 82-83): "9. The injury now causes a marked interference with my sexual life. The only position in which I can engage in sexual intercourse is lying on my back with my husband supporting his own weight and even then I have to lie absolutely still to avoid severe pain. This makes sexual intercourse quite unenjoyable particularly since, despite these precautions, I still suffer back pain." The result thus is, in my view, that, by no later than 9th July 1986, the Claimant and her advisers were aware, and had asserted, that the Claimant had suffered injury as the result of the Opponent's negligence, and that the Claimant and her advisers were aware of the nature and extent of the injury, and its sequelae, and of the possibility that, at some time, surgical intervention might be required to ameliorate the Claimant's condition. Although the material in the appeal papers does not demonstrate that this was so, in fact, the probability is that, in May 1987, or thereabouts, the Claimant's husband was posted to the RAAF Base at Williamtown, for, at that time, so the Claimant says, the family moved to Newcastle. It would further appear that, after 8 UNREPORTED JUDGMENTS moving to Newcastle, the Claimant retained, as the family's general practitioner, a Dr Chandler who appears to carry on practice in Merewether not far from where the Claimant and her family live. When reporting to the Claimant's present solicitors, whose firm appears to have taken over Mr McDonald's practice some months earlier, Dr Chandler, in October 1991 wrote (inter alia) as follows (Appeal Book 38): "Mrs Bulley received treatment from my surgery on the 18th May, 1989, when she was referred to Dr Brendon Jones, an Orthopaedic Surgeon in Newcastle, for an opinion, and also Mrs Fox, a Dietician, when it was felt that a reduction in weight might materially benefit her level of pain and discomfort as Mrs Bulley had not been able to adequately exercise to reduce her weight since her back injury. Dr Jones gave a cautious report concerning Mrs Bulley which stated that it was conceivable that she did injure her L4/5 disc in Malaysia, and that he felt that she could only do light work. Her back continually gives her problems and she takes simple analgesia for it. Every so often she has an exacerbation or an increase in the level of her pain, such was the case in July, 1990, when she had an acute increase in the level of her pain which required referral to physiotherapy and also stronger analgesia. This again recurred in December, 1990, where my notes state that she was still tender over the L4/5 disc space. Mrs Bulley was again referred for physiotherapy. In July, 1991, Mrs Bulley was referred to Dr A Isaacs, an Orthopaedic Surgeon, here in Newcastle. It is interesting to note that Comcare is questioning accounts from Mrs Bulley concerning her physiotherapy treatment, and yet she has coped fairly well with the treatment of her low back, and making n only part of her complaints when she visits the doctor as a routine visit when she obtains increased levels of analgesia as well as treatments for other complaints." It would appear that, in July 1991, the Claimant's present solicitors referred the Complainant to Associate Professor Kerridge, an orthopaedic surgeon associated with the Faculty of Medicine at the University of Newcastle, for examination and report. In his report dated 23rd July 1991 (Appeal Book at 34 - 35) Professor Kerridge recorded that the Claimant's then complaints were: "1. She still has pain in the back and also pain in the right leg extending to her knee. 2. This is worse n she attempts any strenuous activity. She can't play sport whereas previously she played badminton and squash. 3. She has difficult doing the housework. 4. She has trouble getting dressed particularly when attempting to put on her stockings. 5. She has put on a lot of weight. She hasn't made any attempt at getting jobs since her return to Australia." and concluded his report as follows (Appeal Book at 35): "This lady I think does have genuine symptoms and as to her ability to work, it would seem to me that as she doesn't work anyway this is highly theoretical but let us say that the necessity arose so that she were to go on the open market, she would be fit for moderate sedentary work only and she would not be M for heavy work. The diagnosis does appear to be straight forward in that she does have disc protrusion which was directly associated with an injury and which caused symptoms sufficiently severe in Malaysia to require investigation and also a period in traction in hospital. I don't think that there can be any real argument about that therefore as being the important aetiological factor. She has seen quite URJ BULLEY v COMMONWEALTH OF AUSTRALIA (Powell JA) 9 a galaxy of orthopaedic talent and the question has been raised as to whether operation was indicated or not and has been dealt with I believe both by the orthopaedic surgeons whom she has seen and also by Dr Blum who is a neurosurgeon. As far as I can gather, all have suggested that operation could not be guaranteed to relieve her and that she should persist in conservative management. I would certainly 90 along with that. Using the standard tables of the Australian College of Rehabilitation Medicine, I would suggest that she be regarded as having suffered impairment of 10 percent of the lumbar spine." It would appear that, in April 1992, Dr Chandler referred the Claimant to Dr Ghabrial, the Director, Department of Orthopaedics and Area Orthopaedic Services at the Royal Newcastle Hospital. When, in July 1992, Dr Ghabrial reported to the Claimant's present solicitors, he wrote (inter alia), as follows (Appeal Book at 3940): "Examination on the 14th April 1992 showed a normal sitting and standing attitude, a normal gait and normal postural curves. Spinal movements were moderately stiff and there was mild paraspinal lumbar spasm. There was no motor, sensory or reflex deficits. She had moderate tenderness at the L3-S1 level of the lumbar midline. The femoral stretch was negative on both sides. The x-rays showed a marked lumbo-sacral disc degeneration and the CT Scan showed moderate L4/5 disc protrusion. My opinion on that occasion was that her clinical features were not severe enough to warrant surgical intervention and I suggested to persevere with conservative management. I believe it is highly likely that Mrs Bulley will continue with her present symptoms and I could not exclude the possibility of surgical intervention in the future in the form of excision of the prolapsed L4/5 disc and stabilisation of her L4/5 and L5S/S1 segments by means of spinal fusion. I believe that she has a permanent disability in the lower back as well as the lower limbs as a result of her injuries in 1980. The permanent percentage loss of the use of the lower back is 30%, the right lower limb is 20% and the left lower limb is 15%." Meantime, on 21st October 1991, the Claimant's present solicitors, had written to Comcare as follows (Appeal Book at 73): "Re: KAYE LORRAINE BULLEY v COMMONWEALTH OF AUSTRALIA We refer to previous correspondence. On behalf of our client we hereby elect to institute an action against the Commonwealth for non economic loss pursuant to s45 of the Commonwealth Employees Rehabilitation and Compensation Act. That election is subject to the success of an application for extension of time under the New South Wales Limitation Act. That application will be served on you shortly." Despite the terms of that letter, the Statement of Claim which commenced these proceedings, and the Notice of Motion seeking an extension of time within which to commence the proceedings, were not filed until 18th May 1993. The Notice of Motion appears to have come before the Court constituted by a Deputy Registrar on a number of occasions prior to 30th August 1993 when various procedural directions as to the filing of Affidavits and the like were given. On 30th August 1993 a special fixture was allotted, the Registrar allocating the fixture having first obtained from the parties assurances that all Affidavits to be read had been filed and served. The parties were then given a document which contained the following-(inter alia): "Note 1. The fixture is allocated on the assurances of the parties that all Affidavits to be read have been filed and served. Note 3. Only Affidavits filed, when the matter is a special fixture, may be read. 10 UNREPORTED JUDGMENTS Note 4. It can be assumed that no adjournment will be granted." This notwithstanding, when the matter came before Master Greenwood on 20th September 1993, counsel (not counsel who had been retained on behalf of the Claimant on the Notice of Motion) sought to have the special fixture vacated and an adjournment granted, upon the basis that a further Affidavit was to be sworn by the Claimant and relied upon in support of the Notice of Motion. The Master declined to vacate the fixture and stood the matter in the list until 11.30 am to enable counsel to prepare for the hearing. At 11.30 am the application to vacate the fixture was renewed and again refused by the Master who stood the matter in the list until 2.00pm. As the Master was to record, (Appeal Book at 87) whatever faults may exist in the Claimant's camp, lack of persistence is not one of them, for, at 2.00pm, the application to vacate the hearing was renewed once more, only to be refused again. The Notice of Motion then proceeded on the basis of the Affidavits which had been filed and served and counsel addressed, the Master indicating, at the conclusion of counsels' addresses, that he would deliver Judgment at 9.30am on 22nd September, 1993. As will be apparent from what I have just recorded, the Notice of Motion was dealt with by the Master in the period after this Court had delivered its Judgment in Dedousis v The Water Board and before the High Court had delivered its Judgment! on the appeal to that Court from this Court, a fact which explains why counsel for the Claimant sought to support the Notice of Motion upon two grounds: 1. that the Claimant suffered "a latent injury" in terms of s60F of the Limitation Act 1969 on the basis that she was unaware of the extent of the injury or impairment at the relevant time, that being when the limitation period expired; and 2. that the Claimant had been unaware of material facts of a decisive character relating to her cause of action - those material facts being the nature and extent of her injury or impairment - and was thus entitled to an extension of time pursuant to the provisions of s58 of the Limitation Act 1969. In the event, the Master rejected each of those submissions, his reasons being succinctly encapsulated in the following passage (Appeal Book at 93): "The plaintiff clearly knew of the nature of her injury. She knew of its physical cause. She knew of the damage that had been caused and she was aware of a large majority of its symptoms. She was also aware that an operation was a possibility. She thus knew the extent of her injury." Thereafter, on 6th October 1993, there was filed on behalf of the Claimant, a Notice of Appeal to the Court constituted by a Judge. It should be noted that, although, in that Notice of Appeal, a number of grounds of appeal were taken, none of those grounds related to the refusal of the Master to vacate the special fixture in order that there might be filed the Affidavit which had been foreshadowed and reliance placed on it in support of the Notice of Motion. Before the appeal came on for hearing, there was filed on behalf of the Opponent, a form of Defence (Appeal Book at 113-114) which form of Defence included the following (inter alia) paragraphs: "5. The defendant says that by virtue of s44 and s46 of the Safety, Rehabilitation and Compensation Act 1988, formerly the Commonwealth Employees' Rehabilitation and Compensation Act 1988, this action or these proceedings do not lie and are not maintainable against the defendant. 1. (1984) 181 CLR 171 URJ BULLEY v COMMONWEALTH OF AUSTRALIA (Powell JA) 11 6. Further, or in the alternative, the Defendant says that, if any cause of action accrued to the Plaintiff (which is denied), the Plaintiff's action has been brought after the expiration of six years after the date on which the cause of action arose and that the said action, by virtue of subs14(1) of the Limitation Act 1969, is statute-barred and not maintainable and the alleged right and title of the Plaintiff thereto is extinguished by s63(1) of the said Act." The appeal from the Master's decision came-before Abadee J on 23 February 1995, that is to say, after the High Court had delivered its Judgment in Dedousis v The Water Board. It would seem that, at the outset of the hearing of the Appeal, counsel for the Claimant, sought leave to read on the Appeal the Affidavit of the Claimant sworn 21st September 1993 to which I have earlier referred. That application being opposed by counsel for the Opponent, Abadee J held that, in all the circumstances, the Claimant had failed to make out "special grounds" within the meaning of s75A(8) of the Supreme Court Act, 1970 and rejected the application. At the conclusion of the hearing of the Appeal, Abadee J delivered an ex tempore Judgment. In the course of that Judgment, his Honour observed: 1. that, in the light of the High Court's Judgment in Dedousis v The Water Board, to the extent to which the decision of the Master was based upon his finding that the Claimant had failed to make out a case that her injury was "a latent injury", the Master, had fallen into error; and 2. that, for the purposes of s60I(1)(a)(ii), the Claimant was, prime facie, entitled to an Order pursuant to the provisions of s60G if she were able to establish either that she was unaware of the nature of her injury OR that she was unaware of the extent of her injury prior to the expiration of the relevant limitation period (Appeal Book at 123). Having then recorded the relevant findings of fact made by the Master, Abadee J continued as follows (Appeal Book at 130): "Before me Mr Tudehope submitted that in the instant case while the plaintiff was at all material times are of me nature of her injury, being an injury to her back with consequential effects into her legs, she was unaware of the extent of such injury and within the meaning of the limitation provision. He submitted that in a case where there is a quantitative worsening, or natural progression, of the symptoms revealed in consequence of the injury; that it is then sufficient for the purposes of the limitation provision to show that the plaintiff did not really, at all material times, have an awareness of the quantitative worsening or progression of such symptoms or, to put it another way, had no such relevant awareness of such within the limitation period itself. Mr Tudehope conceded that there was no suggestion to be found in the medical reports that the plaintiffs medical condition had changed after the expiration of the limitation period and there was nothing to suggest, for example, that the need for possible surgical intervention had, in fact, arisen subsequent to the expiration of the limitation period." Then, having referred to the observations of Meagher JA in FJ Walker v Webber? as to the meaning to be attributed to the word "extent" in the phrase "nature and extent" as it appears in what is now s57B(1)(b)(iv) of the Limitation Act 1969, which views Abadee J thought appropriate to be applied in relation to s60I of the Act, his Honour observed (Appeal Book at 132): 2. Court of Appeal, 16th November 1989 (unreported) 12 UNREPORTED JUDGMENTS "T agree with the Master that this case clearly falls within the principles referred to by Meagher JA. I agree with the Master that the plaintiff clearly knew the nature of the injury; she knew of the physical cause and of the damage that had been caused and she was aware of a large majority, if not all, of the relevant symptoms. She was distinctly aware that an operation was a possibility. I agree with the Master that she, thus, knew the extent of her injury." in the light of which conclusions, his Honour ordered that the Appeal be dismissed and that the Claimant pay the Opponent's costs of the Appeal. Thereafter, there was filed on behalf of the Claimant, a Summons in which the Claimant sought leave to appeal from the Judgment delivered by Abadee J, the two grounds of appeal taken in that Summons being: 1. that his Honour erred in failing to allow the Claimant to admit into evidence her Affidavit of 21 September 1993; 2. that his Honour erred in failing to grant the Claimant an extension of time in which to commence proceedings claiming compensation for injuries, loss and damage arising from the incident in July 1980 pursuant to the Limitation Act 1969 (as amended). That Summons was then placed in a special list including a number of other like Summonses, which list had been commenced after the High Court had granted special leave to appeal from the Judgment of this Court in Dedousis v The Water Board. The present is one of the 14 applications in that special List which were listed to be dealt with by this Court in the week commencing 23 October 1995. In the Written Submissions which were originally prepared on behalf of the Claimant counsel sought to submit: 1. that the hearing before the Master was not a full hearing on the merits, it following, so it was submitted, that s75A(8) of the Supreme Court Act 1970 did not require the Claimant to establish special grounds before her additional Affidavit might be tendered and relied upon; and 2. that even if the provisions of s75A(8) of the Supreme Court Act 1970 did apply to the Appeal to Abadee J, his Honour erred in finding that there were no special grounds, as the fact that the refusal to allow an extension of time would prevent the Claimant from having her claim decided on the merits was, itself, a special ground which justified the reception of the Affidavit into evidence (reference was made to Wickstead v Browne). 3.(a) the Affidavit which the Claimant had sought to have tendered in evidence contained evidence, which, so it was submitted, demonstrated that the Claimant did not, at the relevant time, know the full nature and extent of her injury (reference was made to Commonwealth of Australia v Dinnison'). In this regard, so it was submitted, the evidence would show that, at the relevant time, "(the Claimant) was unaware that her condition would continue to worsen and that eventually she would be unable to walk without a walking stick, would interfere with her sex life, make it impossible for her to drive a manual car, do any of her own gardening and manage her own household." (b) in any event, the Claimant did not know the full extent of her injuries until after the assessments made by doctors in connection with her Comcare claim. 3. (1992) 30 NSWLR 1 4. (1995) 129 ALR 239-252 URJ BULLEY v COMMONWEALTH OF AUSTRALIA (Powell JA) 13 In a Supplemental Written Submission, counsel sought to raise an argument that the adjournment sought before the Master ought to have been granted subject to the question of costs. With respect, it seems to me that neither of the grounds of appeal which counsel sought originally to advance has been made out,and, as it is conceded that the refusal of Master Greenwood to grant the adjournment sought was not the subject of any ground of appeal in respect of the Master's Judgment, and was not the subject of any argument to the effect now sought to be raised when the appeal was heard by Abadee J, this Court ought not to entertain the additional submission now sought to be raised. It is, in my view, clear that,although a Judgment dismissing an application for an extension of time pursuant to the provisions of the Limitation Act 1969 is an interlocutory Judgment in respect of which leave to appeal is required, a Judgment delivered, as was the Master's Judgment, and is Abadee J's Judgment, in the circumstances which I have recorded above, a hearing on the merits based on the evidence tendered in support of the application for an extension of time. The Judgment of Handley and Cripps JJA in Wickstead v Browne, to which counsel referred provides no support for the submission which has been advanced, as the following passage from that Judgment makes clear: "Tn our opinion, this Court should receive Use further evidence. It is not an appeal following a trial on the merits but an appeal from an interlocutory order for summary dismissal on the ground that the plaintiffs have failed to show any triable issue. The case falls within s75A(7) of the Supreme Court Act 1970 and there is no requirement for the party tendering the further evidence to establish special grounds as is the case pursuant to s76A(8) where the appeal is from a Judgment after a trial or hearing on the merits: see Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 at 436-437." The Claimant has failed to establish that there were any special grounds justifying the admission of the Affidavit into evidence. A reference to the Affidavit (Appeal Book at 82-83) makes it transparently clear that all of the evidence contained in it relates to matters which occurred, and which were known to the Claimant, long before September 1993 when the matter came before the Master. So far as the second submission is concerned, it will be apparent from what I have earlier recorded that the Claimant concedes that, unless this Court were itself to regard the Claimant's Affidavit as evidence before it, it cannot successfully be submitted that Abadee J erred when he held that, at the expiration of the relevant limitation period, the Claimant was aware of both the nature and the extent of her injury. It seems to me, however, that, even if that Affidavit were to be treated as evidence before this Court, the Claimant would still be unable to establish that at the expiration of the relevant limitation period, she was unaware of the extent of her injury. The nature of the evidence to which the Claimant would wish this Court to have regard is sufficiently set out in the passage from the original Written Submissions which I have set out earlier (see, at 2425 (above)). What I have earlier recorded; however, will demonstrate that, by no later than July 1986, the Plaintiff and her advisers were aware, not only of the injuries and disabilities which are set out in the Statement of Claim (see at 13-14 (above)), but of the fact that it was at least possible, if not probable, that her condition would worsen to 5. supra 14 UNREPORTED JUDGMENTS the extent to which surgical intervention might be required; that, by no later than March 1985, when she first consulted Dr Gabrael, the Claimant complained that she was "distressed by low back pain and a painful gait. She complains of parathaesia in both feet and has fallen over on several occasions as a result of same. The result of her back and legs (was) limited by pain and she (reported) little improvement." (Appeal Book at 29); that by no later than 26th August 1986, (Appeal Book at 32) she had given to Dr Teo a history that "she had difficulty with sex. Her physical tolerance was poor, walking less than 1 kilometre, sitting and standing less than a 1/2 hour, she could not make beds, sleep was a problem at times"; that as early as 30 July 1980 when she first consulted the Base medical officer, she was complaining of pain "when driving" (Appeal Book at 11); and that by no later than 30th October 1980, when she again consulted the Base medical officer, the Claimant complained of "limitations of all activities (sport/housework/dressing etc)" all of which complaints have since continued. In the circumstances, even if - as, in the limited manner which I have set out above, I have been - the Court were prepared to treat the Affidavit as being part of the material before us on this Appeal, I would see no reason to depart from the view which Abadee J expressed in the Judgment in respect of which leave to appeal is now sought. For these reasons, I would propose that the following Orders be made: 1. ORDER that leave be, and be deemed to have been, granted to the Claimant to Appeal from the Judgment of Abadee J delivered on 23rd February 1995. 2. ORDER that the Appeal be dismissed. 3. ORDER that the Claimant pay the Opponent's costs of the Appeal. Counsel for the Claimant/Appellant: RV Letherbarrow Solicitors for the Claimant/Appellant: Stacks The Law Firm (Taree) Counsel for the Opponent/Respondent: SW Gibb Solicitors for the Opponent/Respondent: Australian Government Solicitor