Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ayres v Ollerenshaw [2014] NSWCA 320 Hearing dates: 7 August 2014 Decision date: 11 September 2014 Before: Barrett JA at [1]; Gleeson JA at [88]; Leeming JA at [95] Decision: 1. Grant leave to appeal. 2. Direct that a notice of appeal in the form in the white folder be filed within seven days. 3. Appeal allowed. 4. Set aside the orders made in the District Court on 24 October 2013. 5. In lieu thereof, make the following orders: (a) Order the plaintiff's application for an extension of time pursuant to s 48 of the Limitation of Actions Act 1936 (SA) be refused. (b) Order that the plaintiff pay the defendant's costs of that application. 6. The respondent to pay the applicants' costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LIMITATION OF ACTIONS - contracts, torts and personal actions - the period of limitation - extension thereof - Limitation of Actions Act 1936 (SA) - negligence action against occupiers of property in South Australia for injury allegedly sustained through hidden hazard on the property - action commenced in New South Wales after expiry of limitation period prescribed by South Australian Act - primary judge made an order extending the period - question under that Act as to whether the proceedings were commenced within twelve months after the plaintiff became aware of facts material to his case - the facts relied upon went to diagnosis of depression and extent of injury to ankles and knees - review of primary judge's findings as to the time at which relevant facts were ascertained and their materiality to the negligence claim. Legislation Cited: District Court Act 1973 (NSW) Limitation of Actions Act 1936 (SA) Cases Cited: Ireland v Wightman [2013] SASC 139 Ireland v Wightman [2014] SASCFC 52 Warren v Coombes [1979] HCA 9; 142 CLR 531 Category: Principal judgment Parties: Graham Richard Ayres (First Applicant) Wendy Dawn Ayres (Second Applicant) Damian James Ollerenshaw (Respondent) Representation: Counsel: P M Morris SC/O J Dinkha (Applicants) R S Sheldon SC/M A Campbell (Respondent) Solicitors: Curwoods Lawyers (Applicants) Brydens Compensation Lawyers (Respondent) File Number(s): CA 2013/343881 Decision under appeal Date of Decision: 2013-10-24 00:00:00 Before: Gibson DCJ File Number(s): 2010/100901 Judgment 1BARRETT JA: This case concerns exercise by her Honour Judge Gibson of the power conferred by s 48 of the Limitation of Actions Act 1936 (SA) to extend the limitation period in respect of a claim for damages in negligence for personal injury. 2On 31 May 2004, Mr Damian Ollerenshaw ("the respondent") was working for a company controlled by his father that installed satellite dishes in homes in South Australia. He attended the home of Mr and Mrs Ayres ("the applicants") at Woodcroft, South Australia to carry out such an installation. He claims that he suffered injury when he stepped into a hole while walking on grass at the back of the applicants' property. 3The respondent commenced proceedings against the applicants by statement of claim filed in the District Court of New South Wales on 25 March 2010. He claimed damages for negligence occasioning personal injury. The limitation statute 4The parties accepted that, in the particular circumstances, the limitation period applicable to the respondent's negligence action is that fixed by or under the relevant legislation of South Australia. Section 36 of the Limitation of Actions Act of that State provides: "(1) All actions in which the damages claimed consist of or include damages in respect of personal injuries to any person, shall be commenced within three years next after the cause of action accrued but not after. (1a) However, in the case of a personal injury that remains latent for some time after its cause, the period of 3 years mentioned in subsection (1) begins to run when the injury first comes to the person's knowledge. (2) In this section- 'personal injuries' include any disease and any impairment of a person's physical or mental condition." 5The period thus prescribed may, however, be extended. Section 48(1) allows a court to extend the time for instituting an action "to such an extent, and upon such terms (if any) as the justice of the case may require". The power is, however, expressed to be subject to a number of restrictions and conditions, including those laid down by s 48 itself. Of particular relevance is s 48(3) which, so far as pertinent, provides: "(3) This section does not- ... (b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied- (i) that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff ... and that in all the circumstances of the case it is just to grant the extension of time." 6Section 48(3a) defines "material facts" for the purpose of s 48(3)(b)(i) as follows: "[a] fact is not to be regarded as material to the plaintiff's case for the purposes of subsection (3)(b)(i) unless: (a) it forms an essential element of the plaintiff's cause of action; or (b) it would have major significance on an assessment of the plaintiff's loss. Example- In a case involving personal injury, a fact might qualify as a fact material to the plaintiff's case if it establishes- (a) a substantial reduction of the plaintiff's capacity to work; or (b) that the plaintiff will require substantially more medical care than previously expected; or (c) a significant loss of expectation of life." 7According to s 48(3b), when determining whether it is, in all the circumstances of the case, just to grant an extension of time under s 48(3)(b), the court should to have regard to: "(a) the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial; and (b) the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums; and (c) the nature and extent of the plaintiff's loss and the conduct of the parties generally; and (d) any other relevant factor." The proceedings in the District Court 8In relation to proceedings brought by the respondent against the applicants, the limitation period of three years prescribed by s 36(1) ended on 31 May 2007. Relying on s 48, the respondent sought extension of that period. His claim in that respect was contained in his amended statement of claim filed on 21 September 2010 (as I have said, his original statement of claim was filed on 25 March 2010). The matter of an extension was determined by the District Court as a preliminary issue. 9The question made relevant by the closing words of s 48(3)(b)(i) (". . . and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff") was whether some material fact of the kind mentioned in that provision was ascertained by the respondent within the period of twelve months ending on 25 March 2010. 10The primary judge found that, at some time during that period of twelve months, the respondent became aware of two facts that were, in the relevant sense, material: first, that he was suffering from clinical depression; and, second, that the condition of his knees had deteriorated to an extent requiring surgery. Her Honour granted the extension of the limitation period sought by the respondent. 11The applicants sought leave under s 127(2)(a) of the District Court Act 1973 (NSW) to appeal against the primary judge's order extending time. This Court heard concurrently the applicants' application for leave to appeal and their submissions on the substantive issues. Scope of the appeal 12The principal issue in this Court concerns the point at which the respondent ascertained the two particular facts, that is, the fact that that he was suffering from clinical depression and the fact that the condition of his knees had deteriorated to an extent requiring surgery. More precisely, the question is whether he ascertained those facts during the period of twelve months that ended on 25 March 2010. 13The answer, in each case, depends on inferences to be drawn from relatively uncontroversial evidence. The respondent and his solicitor gave evidence on affidavit. Neither was cross-examined. Numerous reports and clinical notes of medical practitioners were received into evidence, together with other medical documents. This Court is in as good a position as the primary judge to determine the inferences to be drawn from the evidence that was before her Honour. In deciding what are the proper inference to be drawn, this Court should give respect and weight to the conclusion of the primary judge but, having reached its own conclusion, should not shrink from giving effect to it: Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551. Depression 14The primary judge made two critical findings in relation to when the respondent first ascertained that he had been diagnosed with depression: first, that the respondent's first awareness of the diagnosis occurred when he learned of the content Dr Lim's report dated 9 March 2009; and, second, that Dr Lim's diagnosis was conveyed to the respondent some time between March 2009 and March 2010. 15The evidence does not support those findings. 16Dr Lim's report of 9 March 2009 described the respondent as suffering from "Adjustment Disorder with Depression". The primary judge found that the medical evidence was unsatisfactory as to when and in what circumstances the respondent learnt of Dr Lim's diagnosis. She nevertheless concluded (at [61]-[63]): "On the balance of probabilities, I am satisfied that it occurred within the twelve month period prior to the commencement of proceedings... I am satisfied that the facts material to the plaintiff's case was [sic] not ascertained by him until he learned of the opinion of Dr Lim some time during or, most probably, well after, March 2009... Accordingly, the plaintiff satisfies s 48(3a)(b)(i) of the Limitations of Actions Act 1936 (SA) and it is just in all the circumstances to grant the extension of time that the plaintiff seeks." 17Dr Lim prepared the report of 9 March 2009 after a consultation with the respondent on 3 March 2009. The report was sent to the respondent's general practitioner, Dr Susino, and the relevant workers compensation insurer, GIO. The respondent met with Dr Susino on 10 March 2009. The file note from that consultation reads as follows: "Sore throat+++(3/7) ago O/E T med +++ chest [DRAWING OF LUNGS???] Imp: phlegmRx: Flu?? / ???cetamo / swelling R/V after flung??" 18It is significant that the note neither records any discussion of psychological issues during the consultation nor mentions Dr Lim's report. The copy of the report sent to Dr Susino is stamped and marked in a way that suggests that Dr Susino (or at least his surgery) received it on 11 March 2009. On the basis of this evidence, I am satisfied that Dr Susino had not yet received Dr Lim's report when he met with respondent on 10 March 2009. According to Dr Susino's records in evidence, the respondent did not see Dr Susino again until 21 August 2009. The respondent then met with Dr Susino on 21 October 2009, 2 December 2009 and 2 February 2010. None of Dr Susino's notes from any of those consultations records any mention Dr Lim's report or that any mental health issues were discussed. 19The respondent's affidavit does not say that he was ever made aware Dr Lim's diagnosis or the contents Dr Lim's report. The only evidence suggesting that the respondent was aware of Dr Lim's diagnosis is a clinical note from Liverpool Hospital dated 15 January 2012 made after the respondent was admitted there, which states that: "Currently PT [i.e., patient] has a MH [mental health] plan with GP + Private Psychiatrist Dr Lim" 20Neither the appellant nor the respondent adduced any other evidence as to when Dr Lim's diagnosis was ascertained by the respondent. On the basis of this evidence, that must have happened after the respondent first met Dr Lim on 3 March 2009 and before the respondent informed the Liverpool Hospital on 15 January 2012 that he had a mental health plan with his GP and Dr Lim. Further, since Dr Lim's report is stamped as having been received at Dr Susino's surgery on 11 March 2009, there is no basis for a finding that the respondent became aware of it during his consultation with Dr Susino on 10 March 2009. There is no other indication as to when Dr Lim's diagnosis was conveyed to the respondent. 21In order to reach the conclusion that she did at [61]-[63], the primary judge had to be satisfied that the respondent had discharged his onus of proving, on the balance of probabilities, that he became aware of Dr Lim's diagnosis at some point during the twelve months ending on 25 March 2010. As there was no direct evidence from the respondent on the point, the primary judge was left to inference. But in stating her conclusion that the respondent learnt of Dr Lim's diagnosis "at some point within the twelve month period prior to the commencement of proceedings" on 25 March 2010, the primary judge did not expose, by reference to the evidence, any process of reasoning leading to that conclusion. Having regard to that evidence, the inference was not one that was available except as a product of impermissible conjecture. 22In any event, the primary judge's reasoning was predicated on the incorrect premise that the respondent first became aware that he had been diagnosed with depression only after he came to know of the content of Dr Lim's report. The evidence shows that he was diagnosed with depression well before the 25 March 2009 and that he knew of the diagnosis at the time at which it was made. Seven aspects of the evidence must be mentioned in this connection. 23First, the respondent was, before January 2009, referred to Konekt Australia Pty Ltd by the workers compensation insurer for a "Section 40 assessment". A Konekt report dated 20 January 2009 stated: "Mr Ollerenshaw reported nil other previous injuries or surgery. He did however report that he developed depression approximately 3 years ago, for which he takes medications for (Fluoxetine on a daily basis) and has previously attended counselling (3-4 month duration)." 24Second, Konekt Australia Pty Ltd assessed the respondent again on 29 January 2009. A report of 4 February 2009 stated that the purpose of that assessment was: "● To discuss Mr Ollerenshaw's compensable condition ,fitness for work and to discuss S40 vocational and functional results. ● To investigate whether Mr Ollerenshaw has depression, whether this is compensable, and impact on return to work." 25The report noted that the respondent's mother had advised Konekt that her son had experienced an episode of depression in November 2009 (however, it is clear from the context that this was meant to read November 2008) and, the report also states that: "Dr Susino reported Mr Ollerenshaw had begun to experience some symptoms of depression; however, reported symptoms are well managed through medication and NTD consultations." 26Third, in a report dated 28 September 2010 Dr Susino stated that: "In 2008 it was evident to me that after reviewing Damian [i.e., the respondent] on a number of occasions (consultation dates listed below), that Damian was suffering from depression. The consultation dates were the 22.04.2008, 30.04.2008, 12.06.2008 and 11.11.2008. His chronic pain, disability and lack of employment and life direction, loss of income, boredom, weight gain have led to a lowered mood. This lowered mood over time was consistent with depression. His depression manifested as aggression, impulsivity, teariness, poor motivation, increased appetite, insomnia, hopelessness, guilt and worthlessness. Damian was commenced on Zoloft in April 2008. The dose was titrated to 200mg at night over a period of 6 weeks. His mood did not improve, however he felt less agitated. In June 2008 Zoloft was ceased and he was commenced on Efexor. This drug significantly improved his mood but Damian was not able to tolerate the side effects associated with its use. In November 2008 Efexor was ceased and Damian was commenced on Fluvoxamine for approximately 6 months. In summary Damian is a young man with unstable ankles that cause him chronic pain. In relation to his left ankle injury it has caused significant pain and suffering. He has endured three operations. Despite these procedures his ankle is still unstable and painful. This has led to depression, loss of income, loss of his chosen vocation, interpersonal conflict with his parents and siblings out of frustration and pain, weight gain, poor self-esteem and loss of life direction. The left ankle instability and pain will be ongoing and his prognosis is guarded." 27Fourth, there are contemporaneous clinical notes for each of the listed consultation dates that indicate that Dr Susino held the belief that the respondent had depression at those times. 28Fifth, on 2 February 2009 Dr Susino's notes record that he called a person at the workers compensation insurer who was responsible for processing the claim relevant to the respondent and suggested that the respondent's "depression [was] caused by [his] injury." 29Sixth, the Liverpool Hospital clinical notes concerning the respondent dated 15 January 2012 record, in a section devoted to psychiatric and mental health, as follows: "ADHD diagnosed in 2000  Diagnosed by GP" Depression - 2007 30Finally, the respondent does not say in his affidavit that he was diagnosed with depression for the first time after 25 March 2009 and does not deny that he had been diagnosed with depression before then. He deposed that "in 2008 [he] had some problems with being depressed from time to time" and later that: "[m]y moods led Dr Susino to send me to see a psychiatrist Dr Lim. Following an episode on New Years Eve in 2008 in which I lost my temper and intervened when my brother was being threatened by someone with a knife. I was worried about my loss of self-control in that episode. I regarded my behaviour at that time to be a result of my ADHD." 31The primary judge found (at [45]) that "all of the evidence points to a plaintiff being prescribed medication by his general practitioner, which was a continuation of his medication for ADHD". Such a reading of the evidence ignores, overlooks or dismisses as inaccurate all of: (a) the Konekt report dated 20 January 2009 in which the respondent reported that he had been suffering from depression for three years; (b) the Konekt report dated 4 February 2009 referring to manifestation of symptoms of depression and bouts of depression in 2008; (c)Dr Susino's report dated 28 September 2010 and his corroborating clinical notes; and (d) the clinical notes from the Liverpool hospital dated 15 January 2012 in which the respondent reported that he had been diagnosed with depression by his general practitioner in 2007. 32The primary judge (at [53]) appears to reject Dr Susino opinion on the basis that Dr Susino "does not expose his reasoning for assuming that the plaintiff suffered from any psychiatric condition" and that "as a general practitioner he lacks the qualifications to make any such diagnosis." Neither of these propositions can be accepted. First, when regard is had to Dr Susino's report dated 28 September 2010 and the clinical notes on which it was no doubt based, the reasons for the diagnosis are plainly stated. Second, it cannot be said that general practitioners are incapable of diagnosing depression and there is no evidence to suggest that Dr Susino was any exception. 33Dr Susino's report dated 28 September 2010 indicates that the respondent was diagnosed with depression by, at the latest, early 2008 and was then prescribed medications for that illness over the course of that year. The contemporaneous clinical notes of Dr Susino corroborate this reading of his report - which is also consistent with the clinical notes from Liverpool Hospital (stating that he was diagnosed with depression in 2007) and the references in the Konekt report to statements of the respondent, the respondent's mother and Dr Susino. 34There are some discrepancies within the evidence as to precisely when the respondent was suffering from depression. But all the evidence indicates that the respondent had been suffering from - and was diagnosed with - depression well before 25 March 2009. When that evidence was viewed in light of the fact that the respondent did not say in his affidavit that he was first diagnosed with depression in 2009, the primary judge should have found that the respondent has not discharged his onus of proving that he first ascertained that he had been diagnosed with depression between 25 March 2009 and 25 March 2010. Ankles and knee 35The primary judge found that, at the beginning of 2009, the respondent's ankles had been recovering well, that he "turned" his ankle in February 2009, that a "real deterioration" in the condition of the ankles and knee occurred thereafter and that this culminated in the respondent being advised in 2009 to consider further ankle surgery (ligament transplant surgery). The primary judge concluded (at [62]-[63]): "that the facts material to the plaintiff's case in relation to his ankle injuries was [sic] not known to the plaintiff until the consequences of deterioration which first became apparent in [sic] his ankle turned in February 2009 were the subject of further complaint to his general practitioner in December 2009. Accordingly, the plaintiff satisfies s 48(3a)(b)(i) of the Limitations of Actions Act 1936 (SA) and it is just in all the circumstances to grant the extension of time that the plaintiff seeks." 36The respondent's case was that, as regards his ankles and knee, he ascertained two facts material to his case between March 2009 and March 2010: first, that the condition of his ankles and knee had deteriorated; and, second, that he would require further significant surgery. 37The applicants submit that the evidence before the primary judge did not permit a finding that the respondent ascertained the fact of deterioration in his ankle injuries during the relevant period. It is accepted by the parties that the respondent had been having problems with his ankles since at least the time of the incident. The issue is whether the respondent's ankles had begun to improve by early 2009 and whether they deteriorated thereafter. 38The respondent deposed: "I had an assessment by Konekt on 20 January 2009 as to my suitability for other jobs. They assessed me after asking me to perform a lot of physical tasks and were steering me in the direction of the types of work where I would be able to move around when needed to. I have had a look at the Konekt report as to the tests and movements which I performed when they were testing me and I agree that I could have done work where I did not have to stand for more than an hour or so or did not have to walk for more than about three quarters of an hour and could move my posture and so on. I had no problems with my upper limbs. I had no problems pushing or pulling and I was of the view that there was plenty of work that I could do. The workers compensation insurer to my understanding used the Konekt information to terminate my workers compensation payments in mid 2009 because I was able to do various forms of work. I agree that at the start of 2009 when Konekt interviewed me there were many things that I could do but as that year went by things got worse and worse." 39The Konekt report dated 20 January 2009 states that, at the time of his assessment, the respondent was neither taking any medication nor undergoing any treatment for his ankle injuries; also, that he was able to perform most activities of daily living such as vacuuming, mopping and working on cars and was capable of lifting heavy items although avoided carrying them. The report also noted that the respondent was experiencing swelling and constant pain in his achilles tendons, albeit that the intensity of the pain varied. The report concluded that: "RTW [I.e., Return To Work] Status Mr Ollerenshaw is currently certified fit for permanently modified duties to work pre-injury hours with the restriction of no walking on uneven surfaces. Mr Ollerenshaw's pre-injury employer Alarm it, terminated his employment in February 2007 as they were unable to provide permanent suitable duties." 40The workers compensation insurer discontinued workers compensation payments in mid 2009 on the basis that the respondent was capable of returning to work full-time, provided that his duties could accommodate his physical limitations. 41The primary judge held that this evidence "paints a very clear picture of a young man recovering from his injuries and looking forward to a normal work life" at the beginning of 2009. The respondent submits that in reaching this conclusion the primary judge ignored clinical notes of Dr Susino that provide a record of the respondent's ongoing problems with his ankles just before the beginning of 2009. 42Dr Susino made the following note on 5 December 2008: "R+L ankle painful Both ankles feel unstable R+L Ankles constantly painful R ankle in particular ?? him with physio x3/night not taking analgesics for pain;?? ??? Requesting MRI both ankles Requesting x-ray both ankles m/c Mood 4/10 this week" 43Further, Dr Susino's note dated 12 December 2008 is as follows: "Since injury of ankles, Damian's mood has lessen significantly Low pain, disability ...ed down life / unable to exercise Gained weight Boredom worthless Agitation anger  frustration Mood ??? 6/10 Issued with WCC [ie, workers compensation cover] to cover depression caused by suffering and ankle pain" 44Dr Susino's note of 12 December 2008 does not tell against the respondent's contention that the condition of the ankles improved in early 2009. The Konekt report, the respondent's affidavit evidence and the fact that workers compensation payments were discontinued warrant a conclusion that, by early 2009, the condition of the ankles had improved to such an extent that the respondent was capable of returning to full time work provided that he was not required to be on feet for extended periods of time. 45The primary judge accepted a submission made on behalf of the respondent that he suffered further injury to his right ankle as a result of "rolling" it in February 2009. The respondent said in his affidavit: "I was careful of both my ankles and I think I was proceeding well. Then I started to notice that my right ankle was rolling over again. I can remember this happening in February 2009 and when the ankle rolled over I heard a loud popping noise in the joint." 46The applicants submitted in this Court that there was no medical evidence that supported this. However, the respondent's version of events is supported by Dr Susino's clinical note dated 17 February 2009, which is as follows: "Whilst walking on even ground today rolled R ankle inwards Now c/o pain R lateral ankle 'heard pop' O/E swelling lateral ankle INV pain dorsiflexion INV Then CT + MRI R/L painful" 47Also, Dr Susino's report dated 28 September 2010 states that: "Unfortunately Damian rolled his right ankle again 09.02.2009. He heard a definite pop during this injury. He was referred for an MRI scan but I have not viewed these results as yet." 48There is an obvious inconsistency between the recorded date of the injury in Dr Susino's clinical notes and the date Dr Susino later attributes to it in his report. Nevertheless, the primary judge found that the respondent rolled his ankle in February 2009. On the basis of this evidence, I also accept that, on the balance of probabilities, the respondent rolled his right ankle some time during February 2009 and that this followed the improvement in his condition that had been observed in late 2008. 49There is then the question whether the condition of respondent's ankles and knee deteriorated throughout 2009. 50The primary judge found that the respondent's injury in February 2009 caused him to become aware, for the first time, that the condition of his ankles had begun to deteriorate. On that basis, the respondent ascertained the fact of the onset of deterioration before the start of the period of twelve months made relevant by the closing words of s 48(3a)(b)(i) of the Limitation Act, that is, the period ending on 25 March 2010. However, the respondent maintains that the deterioration neither began in earnest nor was fully ascertained by him until later in 2009 when he was informed that further significant surgery was advisable. The primary judge accepted this. She said (at [51]): "While this change appears to have started just outside the relevant period, the real deterioration, particularly in relation to his knee, occurred in April and December 2009, on which dates he received medical advice that he required a transplant (which he rejected) and then suffered a further injury." 51The only evidence that the respondent adduced in support of the proposition that the condition of his ankles and knee deteriorated after March 2009 was in his affidavit. He deposed that, throughout 2009, his ankles were getting "worse and worse" and that by September 2009 they were "very bad indeed." Further: "By mid 2009 I would not have been able to work for anybody in ordinary paid employment. Not even in the sorts of employment which Konekt had assessed me as being able to do and in respect of which the insurance company stopped my payments. The reason for that was the greatly worsening condition of both my ankles and as well as this I started to have quite significant knee problems. Both my knees became painful and unstable because I was walking in a very unusual fashion where I was trying to keep my legs rigid as far as I could and trying not to bend my ankles and keep them straight so they would not roll over. From mid 2009 my knees were very painful and swollen and I saw Dr Susino about that. They have never recovered." 52This evidence was unchallenged. The primary judge accepted the evidence and found that, compared with their condition in early 2009, the ankles and knee became worse in mid-to-late 2009. It is, however, difficult to know precisely what fact or facts the primary judge thought the respondent had ascertained during the relevant period. Her conclusion (at [62]) was that the facts material to the respondent's case which were not known to the respondent until the commencement of the relevant period were the "consequences of deterioration" which only became apparent after his consultation with Dr Susino in December 2009. Dr Susino's note from December 2009 is as follows: "- both ankle painful at night painful if cold when starts, sits with pressure on feet pain better - pain on lateral aspects of ankles worse if walks long distances and relates to achilles - has used ?? + voltaren  no relief - R ankle > L ankle w/ 8/10 (on bad days) [Drawings of R ankle] [Drawing of L ankle] Lax ligaments Scars?? Lax ligaments ?? Start tramal SR Im (100mg) 100g" 53The respondent said in his affidavit that "[f]rom mid-2009 my knees were very painful and swollen and I saw Dr Susino about that. They have never recovered". 54It may be accepted that the state of the ankles and knee deteriorated during the first half of 2009. The primary judge so found. The question is whether the respondent thereby ascertained some material fact. It may well be the case that the improvement in his condition up to early 2009 temporarily changed the respondent's perception about the extent of his injuries and that, when he later came to be disabused of this optimistic perception, he learnt nothing about his injuries that he did not already know prior to the improvement of 2009 (this is, of course, subject to any new fact he may have ascertained regarding ligament transplant surgery). It is necessary to trace the clinical history. 55After his injury at the applicants' property, the respondent visited Dr Susino on 16 June 2004 and 9 August 2005. During the first consultation, he complained of an injury to his left ankle. During the second, he complained of right and left knee pain and left ankle pain. He was referred to Dr Kuo, a foot and ankle surgeon. 56On 18 October 2005, Dr Kuo diagnosed the respondent with "[t]orn lateral ligaments left ankle with instability? Loose body?" and referred the respondent for an MRI scan. On 28 November 2005, the respondent underwent an arthroscopic debridement and lateral ligament reconstruction surgery on his left ankle. Dr Kuo reviewed the patient on several occasions following his operation and found that he was recovering well. However, on 10 March 2006, he reported that the respondent had "rolled his ankle again the other day" and on 16 June 2006 that the respondent was "starting to get instability again which is requiring ankle strapping". 57On 14 June 2006, Dr Susino noted that respondent had torn the lateral ligament in his ankle again and could not work for six months. On 15 September 2006 Dr Susino referred the respondent to Dr Sullivan, a foot and ankle surgeon, for an MRI. On 9 October, Dr Sullivan advised that the respondent "requires revision of his ankle ligament reconstruction, possibly closing wedge osteotomy." The respondent underwent a closing wedge osteotomy of the left calcaneum and revision of the left ankle ligament reconstruction on 28 November 2011. 58On 7 February 2007, the respondent attended on Dr Susino and reported that he had rolled his right ankle on the previous day. He underwent an x-ray of his left calcaneus on 13 February 2007. On 15 March 2007, Dr Sullivan wrote to the respondent's workers compensation insurer that the respondent "had a fall an injured his right ankle". The evidence from around this time is the first that records any significant problem with the respondent's right ankle. 59The respondent had a third operation in May 2007 to have a screw removed from his ankle. On 15 June 2007 Dr Sullivan wrote to the workers compensation insurer to advise that the respondent had complained of "pain and instability of his right ankle". The respondent rolled his right ankle on 6 July 2007 and was kept off work thereafter. 60On 27 August 2007 the respondent underwent surgery on his right ankle. This was the fourth surgery that the respondent had had on his ankles and the second on his right ankle. The respondent returned to work on 20 October. On 20 December 2007, Dr Sullivan advised the workers compensation insurer that the respondent "has done extremely well after his right foot surgery and there is no need ... to review him again". 61Dr Susino's clinical notes dated 1 April 2008 state that the respondent's knees had been causing him pain since his ankle surgery on 27 August 2007 and his notes from 5 December 2008 record that the respondent had complained that he was experiencing pain in both his left and right ankles (see [#42] above). As mentioned at [45] above, the respondent then rolled his ankle in February 2009. 62This history makes it quite clear that the respondent was someone who had very significant and continuing problems with his ankles and knees from the date of his fall at the applicants' property until the beginning of 2009. His medical history refers to consistent and repeated complaints by him about pain he was experiencing in both his ankles and both his knees. He was referred to a number of specialists and underwent a variety of remedial treatments including surgery on his ankles on no less than four occasions. It cannot be doubted that the problems the respondent was experiencing were serious and that he had been informed of this by several doctors, including specialists. He also knew that his ankles would require ongoing revisionary treatment every ten years or so. Although there is evidence that the condition of his ankles and knees improved at times (including in late 2008), the problems he was experiencing with them can only be viewed as continuing and chronic. 63The evidence concerning ankles and knees in the period of twelve months ended 25 March 2010 is referred to at [#51] - [54] above. In essence, the respondent was experiencing pain and instability in the ankles and knees, these problems were significant and the condition deteriorated after the beginning of 2009. The respondent also gave evidence that his knees have not recovered. 64In my assessment, the respondent did not establish that he came to know within that period anything new about the extent of his injuries (again, I leave to one side, for the moment, the implications of the advice at [#67] that he should consider ligament transplant surgery). From May 2004 until early 2009, he knew that his ankles were painful and unstable, that his knees were painful and unstable and that these problems were serious - so serious, in fact, that they resulted in time off work, warranted specialist treatment, entitled him to workers compensation and, in the case of his ankles, required surgery on several occasions and would require ongoing revisionary surgery. 65A thing that the respondent did come to know within the relevant period of twelve months, however, was that the condition of his ankles and knee was worse at the end of 2009 than it was at the beginning of that year. Whether this is a material fact for the purposes of s 48 is addressed below at [#72] - [75]. Ligament transplant surgery 66The respondent says that he learnt in mid 2009 after his consultation with Dr Sullivan that he would "need" ligament transplant surgery. This was in addition to the revisionary surgery that he had been told would be needed every ten years or so. Ligament transplant surgery involves the use of human tissue. 67The respondent gave evidence that Dr Sullivan performed an MRI scan of his ankles in April 2009 and that: "After he had a look at the MRI scans Dr O'Sullivan [sic] discussed with me the prospect of having a ligament transplant procedure. My understanding is that a ligament would be transplanted into my body. The ligament would come from a corpse. My understanding is also that if my body rejected this transplant I would be in very dire straits. My old ligament would have been completely removed and if the transplant failed then that was the end of it. Consequently I was very fearful of having that surgery. I did not have it for that reason." 68Through inquiries of his own, the respondent learnt that other surgical procedures might be available. In December 2010, he consulted Dr Wines who recommended that he have artificial ligaments inserted into his ankles. On 6 July 2011, the respondent underwent left ankle antroscopy and LARS reconstruction. In March 2012 he also underwent a right ankle arthroscopy and LARS ligament reconstruction. 69The respondent contends that Dr Sullivan's ligament transplant recommendation in mid 2009 was a material fact for the purpose of s 48(3)(b)(i). He also says that, at that time, he thought that this surgery was his "last chance" and that there were no alternatives available. The primary judge held (at [28]) that the April 2009 MRI indicated "marked changes" and critically (at [37]) that: "the diagnosis of April 2009 was a significant change in his physical condition, because it made clear, to this young man, who thought that all his surgery was behind him, that further significant surgery was necessary." 70The respondent's affidavit evidence was merely that he discussed with Dr Sullivan the prospect of undergoing ligament transplant surgery. There is no evidence to the effect that Dr Sullivan communicated to the respondent that this surgery was the only option available to him, that the surgery was necessary or that it was required because he had rolled his ankle. The respondent bore the onus of proving that this was the purport of the evidence, yet none of these aspects is borne out by the evidence. Contrary to the finding of the primary judge, it is not true to say that the respondent learnt at that time that there was a "need" that he undergo this surgery. The only alteration in the respondent's knowledge or perception that this evidence indicates is that he was informed that he might benefit from ligament transplant surgery - a procedure about which he had serious (and understandable) reservations. This is consistent with subsequent events: the respondent elected not to undergo the procedure and, through his own inquiries, discovered that alternative and less invasive procedures were available and might be of assistance. He in fact received alternative treatment from Dr Wines. 71The applicants questioned the primary judge's finding that the respondent underwent an MRI in 2009 and the significance of the MRI, if he did in fact have it done, on the basis that there is no medical record of that procedure at that time. The respondent conceded that the only evidence that suggests the MRI took place was a note from Dr Susino dated 17 February 2009 that indicates that the respondent was referred for an MRI and that this is an inadequate basis for concluding that it in fact took place. There is a complete absence in any of the material that an MRI took place in April 2009 or as to what its results were. That is an inadequate basis for concluding that it took place and that it indicated "marked changes". The primary judge was wrong to conclude otherwise. Were the facts ascertained by the respondent "material"? 72On the basis of the foregoing, the only facts that the respondent ascertained during the relevant period of twelve months are: (1) that the condition of his ankles and knee was worse toward the end of 2009 than it was at the beginning; and, (2) that he might benefit from ligament transplant surgery. 73Section 48(3a) of the Limitation Act fact provides that a fact is not to be regarded as material unless: "(a) it forms an essential element of the plaintiff's cause of action; or (b) it would have major significance on an assessment of the plaintiff's loss." 74The parties accepted that neither of facts (1) and (2) is essential to the respondent's cause of action because, before 25 March 2009, he already knew that he had suffered loss as a result of his fall at the applicant's premises. The issue between the parties is therefore whether the ascertainment of either of the facts would have major significance in the assessment of the respondent's loss. 75The Act provides three examples of circumstances in which a fact might qualify as a material fact in a case involving personal injury. The examples are facts that establish: "(a) a substantial reduction of the plaintiff's capacity to work; or (b) that the plaintiff will require substantially more medical care than previously expected; or (c) a significant loss of expectation of life." 76These examples are provided merely by way of illustration and guidance. The principles applicable to determining whether facts are material within the meaning of s 48(3a)(b) were stated in Ireland v Wightman [2013] SASC 139 per Blue J at [82]: "The court is required to perform an evaluative exercise to determine whether the fact would have 'major significance' on an assessment of the plaintiff's loss. This does not require that the impact be high (or any other specific level) in both absolute and relative terms. It is simply a matter of weighing holistically the significance of the fact on the assessment considering its relative and absolute impact on the assessment of loss. In construing the words 'major significance', it is appropriate to give consideration to the examples which appear below and are part of sub-section (3a). The examples may extend, but do not limit, the meaning of the provision and in particular of the words 'major significance'." 77This decision was subject to an appeal to the Full Court of the Supreme Court of South Australia in Ireland v Wightman [2014] SASCFC 52. That Court had not previously been called upon to consider the meaning and effect of s 48(3a) of the Limitation Act. Parker J (with whom Vanstone and David JJ agreed) affirmed the approach taken by Blue J and added: "The clear effect of s 48(3a)(b) is to require a comparison between the assessment of the plaintiff's loss without the newly discovered facts being known and the assessment after those facts were ascertained. The statutory test will be satisfied if there would be a major (ie very important) difference between the two assessments." 78When this standard is applied to the present case, it is necessary to compare how the respondent's loss would have been assessed in the absence of knowledge of facts (1) and (2) (referred to at [72] above) discovered during the relevant period of twelve months and how his loss will be assessed with knowledge of those facts. Only if there is a "major (ie very important)" difference between the results produced by the two processes of assessment is the statutory criterion of materiality satisfied. 79The whole of the medical history shows that the respondent had significant problems with his ankles and knees after the incident at the applicants' property in May 2004. There were improvements from time to time, followed by relapses stemming from instability of the ankles and compensatory measures that the respondent naturally took as he attempted to cope with the problem. Several surgical events had occurred. None had produced any lasting solution. While, at the beginning of 2009, the respondent was capable of returning to suitable fulltime work (see [#44] above), the fact that that had receded as a possibility by the end of 2009 (see [#50] - [54] above) may mean that the respondent's loss would have been assessed as greater toward the end of 2009 than at the beginning of the year. 80However, the respondent's past medical history and experiences of improvement followed by deterioration strongly suggest that the apparent partial recovery as at the early part of 2009 would necessarily be viewed with severe scepticism, in the sense that there would be a very pronounced reservation as to whether it was likely to last. The fact that the condition of his ankles and knee was worse toward the end of 2009 than it had been at the beginning therefore cannot be regarded as something that would be of major significance in the assessment of the respondent's loss. 81In addition, I am not persuaded that the respondent's discussion with Dr Sullivan regarding the prospect of ligament transplant surgery is something that would be of major significance in the assessment of loss. The respondent submits that: "The possible failure, if the plaintiff decided to undergo that treatment, of that treatment with the consequences described to the plaintiff represented a matter of significance to the assessment of the plaintiff's loss and shows that the plaintiff was evidently confronted with the dire consequences of his injury". 82In fact, however, the respondent knew that he was destined to have ongoing surgery - added to which, after receiving Dr Sullivan's advice about ligament transplant surgery, he made inquiries of his own, located Dr Wines, accepted Dr Wines' recommendation that artificial ligaments be inserted into his ankles and, in July 2011 and March 2012 underwent surgical treatment recommended by Dr Wines. 83The respondent did not ascertain from his consultation with Dr Sullivan that he would require substantially more medical care than was previously in contemplation. 84The facts (1) and (2) referred to at [#72] above were not "material" within the meaning of s 48(3a)(b). The primary judge should have so found. Conclusion 85The respondent failed to discharge his onus of proving that he first ascertained that he had been diagnosed with depression between 25 March 2009 and 25 March 2010 when he became aware of the Dr Lim's diagnosis. While he did establish that he learnt that the condition of his ankle and knee had deteriorated by mid 2009 as compared with beginning of that year and that he had discussed the prospect of undergoing ligament transplant surgery with Dr Sullivan, the respondent failed to establish that either of these facts was "material" within the meaning of s 48(3a)(b) for the purposes of s 48(3)(b) of the Limitation Act. 86The respondent therefore failed to establish the essential preconditions to the exercise of the power conferred on a court by s 48 of the Limitation Act to extend a limitation period. That being so, the question whether it would be just in all the circumstances to order an extension of time does not arise. Orders: 87This Court should, in my opinion, make the following orders: 1. Grant leave to appeal. 2. Direct that a notice of appeal in the form in the white folder be filed within seven days. 3. Appeal allowed. 4. Set aside the orders made in the District Court on 24 October 2013. 5. In lieu thereof, make the following orders: (a) Order the plaintiff's application for an extension of time pursuant to s 48 of the Limitation of Actions Act 1936 (SA) be refused. (b) Order that the plaintiff pay the defendant's costs of that application. 6. The respondent to pay the applicants' costs in this Court. 88GLEESON JA: The respondent worker claims that he suffered an injury on 31 May 2004 when installing satellite dishes in homes in South Australia whilst working for his father's company. He says that he injured his left ankle when he stepped into a hole while walking on grass at the back of the applicants' property. The respondent underwent three medical procedures in respect of his left ankle (in November 2005, November 2006, and May 2007) and one procedure on his right ankle (in August 2007). (An unresolved problem with his left foot had caused him to put more weight on his right foot and he rolled his right ankle giving rise to problems with instability in that ankle.) In February 2007 the respondent's employment was terminated by his father's company. He claimed and received workers compensation benefits. 89It was common ground that the relevant statutory limitation period for an action for damages for negligence occasioning personal injury arose under s 36(1) of the Limitation of Actions Act 1936 (SA) (Limitation Act). Subject to the possibility of the Court extending time under s 48(3), the relevant limitation period was three years. Here the three year limitation period for commencing an action expired on 31 May 2007. 90The respondent first consulted Brydens Compensation Lawyers on 23 January 2008 in relation to his workers compensation rights. There had been delays in the workers compensation insurer approving his medical treatment. Either on this occasion, or by letter dated 22 May 2008, the respondent was advised of the three year limitation period for commencing a common law claim and was also advised that he may have a claim against the owners of the property where he was injured. It is not clear whether he was advised of the circumstances in which an extension of time might be granted by the Court to commence a common law claim. 91The respondent had a conference with senior counsel on 28 May 2008. Things then moved slowly. There were delays in obtaining medico-legal reports. There were also delays in the respondent providing the documents which were requested by his solicitors. It seems that the workers compensation insurer stopped paying benefits to the respondent in about mid-2009. Ultimately on 28 October 2009 the respondent gave instructions to his solicitors to proceed with a common law claim. A further conference with senior counsel to draft the necessary pleadings was not arranged until 27 January 2010. The statement of claim was eventually filed on 25 March 2010. 92The proceeding was clearly out of time unless the respondent could obtain an extension of time under s 48(3) of Limitation Act. The relevant terms of this provision are reproduced at [5] of the judgment of Barrett JA. 93To obtain an extension of time the respondent needed to demonstrate, amongst other things, that facts material to his case were not ascertained by him until 12 months before the commencement of his proceeding. To satisfy this condition for the exercise of the Court's discretionary power to grant an extension of time, the respondent needed to prove, relevantly, that during the 12 months prior to 25 March 2010 he ascertained facts which would have a major significance in the assessment of his loss. 94For the reasons given by Barrett JA, with which I agree, the respondent failed to establish this essential precondition to the exercise of the power conferred on a court by s 48 of the Limitation Act to extend the applicable three year limitation period. Unfortunately for the respondent this means that the District Court had no power to extend time in respect of this proceeding. I agree with the orders proposed by Barrett JA. 95LEEMING JA: I agree with Barrett JA. I also agree with the observations made by Gleeson JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2014