SUPREME COURT OF QUEENSLAND

CITATION:	WorkCover Queensland v Lawson [2022] QCA 178	
PARTIES:	WORKCOVER QUEENSLAND
(appellant)
v
GLENN EDWARD LAWSON
(respondent)	
FILE NO/S:	Appeal No 1786 of 2022
SC No 15149 of 2021	
DIVISION:	Court of Appeal	
PROCEEDING:	General Civil Appeal	
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 17 January 2022 (Callaghan J)	
DELIVERED ON:	16 September 2022	
DELIVERED AT:	Brisbane	
HEARING DATE:	12 July 2022	
JUDGES:	Mullins P and Morrison and Bond JJA	
ORDERS:	1.	Application for leave to adduce further evidence filed on 19 May 2022 refused.
2.	Application for leave to adduce further evidence filed on 20 July 2022 refused.
3.	Appeal allowed.
4.	Set aside the orders made by the primary judge on 17 January 2022.
5.	The originating application filed on 17 December 2021 is dismissed.
6.	The respondent must pay the appellant’s costs of the originating application filed on 17 December 2021 and the appeal.	
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – LIMITATION OF ACTIONS – GENERAL MATTERS – STATUTES OF LIMITATION GENERALLY – OTHER MATTERS – where the respondent obtained an order for extension of time pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (the Act) to bring an action for injuries sustained to his right knee in the course of his employment in 1999 – where the appellant appeals against this order – where the respondent submitted before the primary judge that a material fact of a decisive character, a diagnosis of arthritis, only came to his knowledge in June 2021 – where the primary judge found that the respondent may have known his right knee was symptomatic but that a material fact of a decisive character was not fully realised until June 2021– where the appellant submits that the primary judge erred in finding the original injury had resolved and that the diagnosis of arthritis was a material fact of a decisive character – where the appellant accepted the diagnosis was a material fact, but submits it was not of a decisive character – where the appellant submits the respondent had sufficient knowledge since at least December 2020, which is when he contacted WorkCover after he ceased working due to the symptoms in his right knee – whether the diagnosis of arthritis in 2021 was a material fact of a decisive character
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – OTHER MATTERS – where the respondent obtained an order for extension of time pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (the Act) to bring an action for injuries sustained to his right knee in the course of his employment in 1999 – where the appellant appeals against this order – where the respondent submitted before the primary judge that a material fact of a decisive character, a diagnosis of arthritis, only came to his knowledge in June 2021 – where the primary judge found that the respondent may have known his right knee was symptomatic but that a material fact of a decisive character was not fully realised until June 2021 – where the appellant submits that the primary judge erred in exercising the discretion to extend the limitation period given the prejudice to the appellant by the lapse of time – where the respondent bore the onus of showing that a fair trial would be available to the appellant – whether the primary judge erred in exercising the discretion to extend the limitation period where the respondent had not shown that a fair trial would be available to the appellant due to the lapse of time
Limitation of Actions Act 1974 (Qld), s 31
WorkCover Queensland Act 1996 (Qld), s 442
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, cited
Pizer v Ansett Australia Ltd [1998] QCA 298, considered
State of Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20, cited	
COUNSEL:	G W Diehm QC for the appellant
The respondent appeared on his own behalf	
SOLICITORS:	Hede Byrne & Hall Lawyers for the appellant
The respondent appeared on his own behalf	
[1]	THE COURT:  Mr Lawson was successful in obtaining an order on 17 January 2022 from the learned primary judge extending the time pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (the Act) in which to bring an action against the respondent for injuries sustained during his employment by Capalaba Engineering Pty Ltd (the employer) as a boilermaker on 13 April 1999.  (Although the order made by the primary judge states the date of the injury as 13 April 1999, the material before the primary judge suggests that the injury was sustained on the day before Mr Lawson consulted his general practitioner on 13 April 1999.)  Mr Lawson appeared for himself before the primary judge and conducted his application on the basis that the material fact of a decisive character only came to his knowledge on 7 June 2021 when an x‑ray of his right knee showed “Previous ACL tunnel repair noted with moderately severe tricompartmental degenerative arthritis”.
[2]	The appellant, WorkCover Queensland, appeals against the order for extension of the limitation period obtained by Mr Lawson.  Mr Lawson continues to be unrepresented on the appeal.
[3]	The nub of the primary judge’s decision was expressed in the reasons as follows:
“As awkwardly as the evidence is presented, it does allow the applicant to point to the proposition that he can make a case to the effect that he was impaired as a result of the original injury but, since the injury has resolved, his current impairment is from arthritis and is related to the incident that occurred in the course of his employment.”
[4]	The primary judge noted that none of the treatment Mr Lawson received prior to 2021 suggested arthritis of the kind that he may be able to link to the work-related incident.  The primary judge observed that Mr Lawson “may well have known that he was symptomatic”, but the primary judge was “prepared to allow that a material fact of a decisive character was not fully revealed until June of 2021”.  In other words, the primary judge found that the diagnosis on 7 June 2021 of the condition in Mr Lawson’s right knee as arthritis was “a material fact of a decisive character relating to the right of action” within the meaning of s 31(2)(a) of the Act.
[5]	On the question of prejudice, the primary judge acknowledged that WorkCover would “suffer many obvious disadvantages” and that the opportunity to make countless relevant inquiries had been lost, and then concluded:
“It does seem to me, however, that there is the potential for further inquiries to be made before it can be concluded that the prejudice is of such a kind as should preclude the applicant from pursuing his claim. That possibility may, of course, yet eventuate.”
[6]	As the primary judge exercised the discretion to grant the extension, the primary judge implicitly held that the prejudice to WorkCover from the delay did not preclude the exercise of the discretion in favour of Mr Lawson, despite the primary judge’s acceptance that prejudice of a kind that should preclude Mr Lawson from pursuing his claim may “yet eventuate” after further inquiries relevant to the question of prejudice were made.
Grounds of appeal
[7]	The appellant submits that the primary judge made three errors that are reflected in the following grounds of appeal:
1.	The primary judge erred in finding that the original injury to Mr Lawson’s knee had resolved and ought to have found that significant symptoms from it had persisted.
2.	The diagnosis of arthritis and any attribution of it to the original injury was not a material fact of a decisive character, because Mr Lawson had suffered persisting symptoms from the time of the original injury which had, on his own admission, caused him to suffer substantial economic loss over many years before the diagnosis of arthritis was made.
3.	The primary judge erred in finding that the discretion to make the order should be exercised in circumstances where Mr Lawson had not shown that a fair trial could now be had due to prejudice to the appellant by the lapse of time.
[8]	Mr Lawson has filed a notice of contention seeking to affirm the order under appeal largely by reference to the findings that were made by the primary judge which makes the notice of contention in that respect unnecessary.  To the extent that the notice and Mr Lawson’s submissions on the appeal refer to additional evidence that was not adduced before the primary judge, it is necessary to deal with the application to adduce further evidence made by Mr Lawson in respect of his affidavit affirmed on 19 May 2022 (the further affidavit).  The appellant opposes leave being given to Mr Lawson to rely on the further affidavit.
Relevant facts
[9]	Mr Lawson’s description of the incident in which his knee was injured (the incident) and the subsequent treatment was set out in his affidavit filed in support of the application, including the exhibits (the original affidavit), as follows.
[10]	On or about 12 April 1999 at about 3.45 pm, Mr Lawson (who was then 29 years old) was driving a work vehicle from the employer’s workshop at Capalaba to his home at Meadowbrook, when it ran out of petrol approximately 70 metres from a service station on Mt Gravatt‑Capalaba Road, Mackenzie.  Mr Lawson pushed the vehicle downhill towards the service station.  While the vehicle was rolling enough to have momentum, he jumped in to steer it the rest of the way.  He put his left leg into the floor well and gave one last push with his right leg, when his right knee buckled.  He was in agony immediately.  Mr Lawson alleges the employer was negligent as Mr Lawson has found out subsequently that the fuel gauge in the vehicle was faulty and was stuck on full, when the fuel tank was empty, and the employer was aware of the problem and did nothing about it.
[11]	Exhibit H to the original affidavit comprises statements that Mr Lawson obtained from former employees of the employer to support his allegation of negligence.  Mr Lemon was the employee who informed Mr Lawson that management was aware of the faulty fuel gauge, as Mr Lemon had been using that utility during the week and Mr Lawson had been away when the faulty fuel gauge had been reported by Mr Lemon to management.  Mr Lemon stated there were no procedures in place for what to do in case of breakdowns in work vehicles.  Another former employee, Mr Drane in a very brief statement also confirmed that there was no safety procedure in place in case of any work vehicle breakdowns and that it was not unusual for employees to have to push vehicles for one reason or another.  Mr Roden (who was Mr Lawson’s housemate at the time of the incident) verified the swelling of Mr Lawson’s knee and the pain he appeared to be in when he arrived home after the incident.
[12]	The next morning Mr Lawson went to his general practitioner and was unable to work for a few days afterwards.  Over the next few months, he had a few events of instability, swelling and pain.  Mr Lawson reinjured his right knee while pruning trees at home on 15 January 2000.  He then made a WorkCover claim.  He was retrenched by the employer in February 2000.  WorkCover covered the cost of a knee reconstruction on 23 May 2000 that was performed by orthopaedic surgeon Dr Peter McMeniman.  A report from Dr McMeniman dated 25 May 2000 noted that arthroscopic examination demonstrated a torn medial meniscus, the unstable parts of the meniscus were removed, the anterior cruciate ligament was ruptured and a hamstring reconstruction was achieved.  Another report from Dr McMeniman dated 28 August 2000 noted that, after the knee reconstruction, Mr Lawson progressed well on his rehabilitation program.  Dr McMeniman considered that Mr Lawson would be fit to return to light duties.  Dr McMeniman provided a medical certificate that Mr Lawson was totally incapacitated for work until 14 November 2000.
[13]	WorkCover had Mr Lawson assessed by occupational medicine specialist Dr Sowby on 16 October 2000 who noted that Mr Lawson was unfit to return to work as a boilermaker at the date of assessment, but his condition should be stable and stationary by six months after the reconstruction.
[14]	The employer was voluntarily deregistered effective from 24 April 2002.
[15]	A further report from Dr McMeniman dated 31 January 2005 noted that Mr Lawson was reviewed again on 6 January 2005, when he advised that he had not experienced any major problems with his knee for a couple of years except for occasional discomfort with occasional clicking and aching.  He had noticed the development of a lump in relation to the tibial graft site which had gradually increased in size.  An x‑ray undertaken on 14 September 2004 showed soft tissue oedema which could be the site of insertion of the distal retaining screw of the anterior cruciate ligament repair.  Dr McMeniman diagnosed a ganglion in relation to the tibial graft site and requested coverage from WorkCover for the procedure to excise the ganglion on the basis that the ganglion had a direct relationship to the original injury, as it was a consequence of the hamstring graft.
[16]	According to the original affidavit, Mr Lawson’s knee “was never the same again” and medical treatments, visits to general practitioners and specialists and recovery required him to take time off work.  That suggests that Mr Lawson connected his ongoing right knee symptoms after the surgery in 2005 with the incident.  He referred to exhibit D to the original affidavit to support his statement that his knee was never the same again.  Exhibit D comprises the summary of the reference to the Medical Assessment Tribunal for assessment of any prescribed disfigurement in relation to the scarring on Mr Lawson’s right knee, Mr Lawson’s email to Ms Cavanagh of the appellant’s solicitors dated 2 December 2021 and Dr Sowby’s report dated 16 October 2000.  Mr Lawson did not otherwise expand on how his right knee was never the same again and what he considered that meant for him from time to time after 2005.
[17]	Mr Lawson described in the original affidavit that in December 2020 the pain and swelling in his right knee had become “unmanageable” and he therefore contacted WorkCover to see what his options were. (Implicit in that statement by Mr Lawson in the original affidavit is that Mr Lawson had made the connection between the symptoms from which he was suffering in his right knee in December 2020 and the claim he had made to WorkCover for the injury he sustained in the incident.)  It was clarified in argument before the primary judge by counsel who then appeared for WorkCover that WorkCover’s communications report showed that Mr Lawson’s first contact with WorkCover was on 23 December 2020.  Mr Lawson did not dispute that information.  Counsel read out the detail of the note of the communication that included that Mr Lawson was having ongoing issues with his knee, that he had reconstruction surgery and “it hasn’t been right ever since”.
[18]	According to exhibit 1 (Centrelink records for Mr Lawson) that was tendered by the appellant before the primary judge, Mr Lawson commenced on the JobSeeker payment on 30 November 2020 and that remained current at the date to which the records were requested of 24 September 2021.
[19]	WorkCover had Mr Lawson assessed by occupational and environmental physician Dr Lingwood on 13 May 2021.  Dr Lingwood had set out in his assessment and report a history of Mr Lawson’s injury and treatment that was taken from contemporaneously documented records in relation to the surgery in 2000 and 2005.  Dr Lingwood also recorded the history reported to him by Mr Lawson after both operations:
“He stated that he has continued to experience intermittent episodes of varying severity knee pain and swelling ever since that time. He does not seem to have sought any further specific medical review. He stated that he may have consulted with a general practitioner occasionally if he had needed to take time off work and obtain a medical certificate. There has been no further investigation.
As above, he has continued to work as a contractor boilermaker. He reported that when he is performing particularly demanding roles such as shutdown jobs, the pain is likely to be exacerbated. He stated that he always wears a soft brace around the knee when working.”
[20]	Mr Lawson included Dr Lingwood’s assessment as an exhibit to his affidavit, but stated in the original affidavit that he disagreed with Dr Lingwood’s medical assessment which was of 10 per cent permanent impairment.  Mr Lawson did not express any disagreement with the recording by Dr Lingwood of the statements made to him by Mr Lawson about experiencing intermittent episodes of knee pain and swelling after 2005.  On the basis of Dr Lingwood’s assessment, WorkCover assessed Mr Lawson for permanent impairment and issued a notice of assessment dated 25 May 2021 for a 10 per cent permanent impairment due to right knee anterior cruciate ligament rupture and medial meniscus tear managed surgically subsequently complicated by the development of a ganglion also excised surgically.  The assessment was referred to the Medical Assessment Tribunal which convened on 20 August 2021 and, pursuant to s 442 of the WorkCover Queensland Act 1996 (Qld) (WQA), assessed Mr Lawson’s injury as resulting in permanent impairment of 27 per cent.
[21]	In September 2021, Mr Lawson consulted Shine Lawyers about suing the employer.  Shine submitted to the appellant on 24 September 2021 an urgent notice of claim for damages dated 13 September 2021 on Mr Lawson’s behalf in respect of the accident on 12 April 1999 (the first notice).  The first notice was in form 275 under the Workers’ Compensation and Rehabilitation Act 2003 (Qld).  The first notice included a claim for past economic loss estimated at $300,000.  The appellant’s solicitors responded by letter dated 29 September 2021 advising that the appellant would rely on the limitation period under the Act and noting that either the limitation period had already expired or, if a material fact were found to exist, it would not expire until December 2021.  The appellant’s solicitors expressly stated that no issue was taken with the form of the first notice, notwithstanding the incorrect prescribed form was used.  (A copy of the letter of 29 September 2021 was emailed by the appellant’s solicitor to Mr Lawson on 30 November 2021.)
[22]	Mr Lawson was unhappy with the errors which he considered were made by Shine in the facts set out in the first notice.  On 22 November 2021 Mr Lawson was advised that Shine was terminating the retainer.  Mr Lawson therefore lodged a second notice of claim for damages in form 280 under the WQA (the second notice) on 29 November 2021.
[23]	In response to the question in the second notice as to when the symptoms commenced, Mr Lawson recorded “after 2005 then getting worse”.  The second notice showed the date of injury as 7 June 2021 in reliance on the diagnosis of arthritis in the x-ray report of that date.  The second notice stated:
“He has continued to work full time up until December of 2020. At which time the symptoms became too much to continue working. [He] was then diagnosed with the material fact of decisive character on 7/6/21.”
[24]	The second notice repeated the claim for past economic loss estimated at $300,000 that had been made in the first notice lodged by Shine.
[25]	It is apparent from the first notice and the second notice that Mr Lawson was in regular employment after the incident, including returning to work for Capalaba Engineering under a different owner between 2009 and 2015, and was self-employed from 2015 until he commenced on JobSeeker on 30 November 2020.
[26]	Mr Lawson’s application for an extension of the limitation period was filed on 17 December 2021.
[27]	The hearing before the primary judge proceeded on the basis of the original affidavit, the affidavit of the appellant’s solicitor, exhibit 1 and three additional documents that Mr Lawson tendered to the primary judge that Mr Lawson treated as exhibits J, K and L to the original affidavit.  Mr Lawson was not cross‑examined.
[28]	The appellant’s solicitor’s affidavit set out the enquiries that had been undertaken on behalf of WorkCover to obtain the records of the employer and to pursue possible witnesses.  According to WorkCover’s records, the employer was insured until 11 November 1999, when insurance ceased, as the employer had ceased to employ.  Mr Peter Quinn was a director of the employer between 21 June 1997 and 15 December 2002.  The appellant’s solicitor undertook searches to locate Mr Peter Quinn, but was unsuccessful.  Shine had included as the first notice in answer to question 41 that the injury was reported to the employer’s foreman, “David Zillznee (spelling unknown)”.  In addition, Mr Lawson had included Mr Zeleznik’s proper name in his answer to question 41 in the second notice.  The appellant’s solicitor located Mr Zeleznik who informed the appellant’s solicitor on 1 December 2021 that he could not recall the incident or the injury, he recalled that one of the work vehicles was an XD Falcon ute, he did not have any knowledge of a fuel gauge being “stuck on” and recalled that the mechanic beside the workshop would attend to the maintenance of the employer’s vehicles, if there was a problem.  Mr Zeleznik referred the appellant’s solicitor to another former employee, Mr Rawding, whom the appellant’s solicitor contacted, but he did not recall anything about the incident and did not recall any defect like a fuel gauge being stuck on full.  The appellant’s solicitor deposed to being unsuccessful in locating any records relevant to the period of Mr Lawson’s employment by the employer.  The appellant’s solicitor expressed the opinion that WorkCover was unlikely to be able to reasonably defend Mr Lawson’s claim without access to records or witnesses who could reliably provide evidence as to the system of work in place at the material time, any knowledge on the employer’s part of the alleged defect in the subject vehicle, the responsibility for maintenance of the vehicle and the instructions given to employees with respect to breakdowns.  The appellant’s solicitor managed to obtain copies of Mr Lawson’s records from the general medical practices which he had consulted since the incident.
[29]	During the course of the submissions before the primary judge on the issue of prejudice, Mr Lawson informed the primary judge that he had given WorkCover a few names and phone numbers, one of which was a former director of the employer for whom Mr Lawson had worked between 2009 and 2015 after he returned to the employer and the former director had informed him that he had some files in archives, but WorkCover never contacted him.  Mr Lawson asserted the mechanic who worked on the vehicle had not been called by WorkCover.  Mr Lawson did not seek to put before the primary judge any statement from the former director or expand on the nature of the files in archives and whether any documents were available to the issues likely to be raised at a trial about the fuel gauge defect in the utility and the procedures in place for maintenance of work vehicles and dealing with breakdowns.  Mr Lawson informed the primary judge that he “probably” could still get hold of the son of the original owner of the employer (but had not done so for the purpose of the hearing) and he was not sure if the original owner (Mr Peter Quinn) was still alive.  The mechanic had sent a text to Mr Lawson (included in exhibit L to the original affidavit) that was in very general terms in which the mechanic pointed out that it was 22 years ago and he knew “all Falcons had fuel gauge problems and [the employer] owned one”.  Mr Lawson referred the primary judge to this text in oral submissions.
Application to adduce the further affidavit
[30]	To the extent the further affidavit sets out assertions in the nature of submissions that were made by Mr Lawson in either his written or oral submissions in this Court, the further affidavit is not necessary for that purpose.
[31]	Mr Lawson obtained an x‑ray and ultrasound of his left knee on 22 February 2022 to show that his left knee was not affected by arthritis, so that he could make the submission that the arthritis in the right knee was a direct result of the injury in 1999.  That report is the first document included in exhibit A to the further affidavit.  Mr Lawson’s application before the primary judge was determined on the evidence that was adduced for the hearing of that application.  It is not appropriate on the appeal for Mr Lawson to seek to add to that evidence by obtaining a report in respect of his left knee to contrast with the condition of his right knee and from which he seeks the Court to draw conclusions.
[32]	The balance of exhibit A to the further affidavit includes a copy of the referrals dated 4 and 5 April 2016 by Dr Seet to Queensland Diagnostic Imaging for an x-ray of the knee, an ultrasound of the left knee and an ultrasound to drain the Baker’s cyst (which was found on the left knee).  This added little, if anything, to the copy of Dr Seet’s referral dated 4 April 2016 to Queensland Diagnostic Imaging that was exhibit E to the original affidavit on which the letter “L” was obscured, so that the request for “other ultrasound” was shown in the document exhibited to the original affidavit to be “Knee” rather than “L Knee”.  (What it did do was highlight the mistake Mr Lawson made in the original affidavit when he stated that the April 2016 scan was of the Baker’s cyst on the back of his right knee.)
[33]	Exhibit B to the further affidavit is a copy of Mr Lawson’s claim for worker’s compensation in respect of the accident dated 17 January 2000.  Even though the particular form had not been included in the material before the primary judge, the content of the form was set out in the chronology for 25 January 2000 that was first prepared by Shine which (with additional entries inserted by Mr Lawson) was sent by Mr Lawson to the appellant’s solicitors on 28 November 2021, including those parts to which Mr Lawson made specific reference in the further affidavit that he had reported the accident to the named workshop foreman on 13 April 1999.  That chronology was exhibited to the appellant’s solicitor’s affidavit and therefore was before the primary judge.
[34]	Exhibit C was a copy of the email Mr Lawson sent to the appellant’s solicitors on 28 March 2022 advising that he wished to remove the past economic loss claim of $300,000 from the second notice.  This was a matter that was consistent with the submissions that Mr Lawson made before the primary judge to the effect that it was not until he got the diagnosis of arthritis which he described as “permanent and incurable and will get worse” that he would lose income, as he needed his mobility to earn a living.  No doubt the email was sent, so that Mr Lawson could combat the submission made by the appellant that on the basis of the past economic loss claim of $300,000 in the first notice and the second notice, Mr Lawson should have sought advice about a claim for damages for personal injuries at an earlier time than he did.  The abandonment of the past economic loss claim is consistent otherwise with what the material revealed about Mr Lawson’s ongoing employment after the incident until 30 November 2020 and exhibit C did not need to be adduced as an evidentiary matter for Mr Lawson to make submissions based on an ongoing loss of capacity to earn income due to the arthritis.
[35]	Exhibit D includes photographs and a diagram of the accident scene which Mr Lawson prepared in November 2021 and sent to the appellant’s solicitors to explain better how the accident occurred.  The substance of what is shown in the photographs was already explained in Mr Lawson’s affidavit before the primary judge.
[36]	Exhibit E to the further affidavit is an expansion on Mr Lawson’s complaints against Shine in respect of the first notice.  Those specific complaints are not relevant to the issues that were before the primary judge on the application for extension.
[37]	It follows the application for leave to adduce further evidence based on the further affidavit should be refused.
Application to adduce the third affidavit
[38]	On 20 July 2022, after the hearing of this appeal and while the decision was reserved, Mr Lawson filed a second application seeking leave to adduce additional evidence which was a third affidavit of Mr Lawson filed on 20 July 2022 regarding the first notice.  There was no indication by Mr Lawson when he filed these documents that he had obtained the consent of the appellant to the unusual course of seeking to adduce further evidence or make further submissions after the decision on the appeal was reserved.
[39]	Mr Lawson’s explanation set out in the third affidavit for seeking to put in the further evidence and the submissions in the third affidavit was that he was unable to put his argument properly at the hearing of the appeal due to his inexperience as a self‑represented litigant.  The first document in exhibit A to the third affidavit is one of the documents that was in evidence before the primary judge in exhibit 1.  Mr Lawson had added some highlighting to the copy in exhibit A to emphasise the point he was making in his affidavit. The next document in exhibit A to the third affidavit is an extract of Mr Lawson’s submissions on the appeal highlighting parts of paragraphs 14-16.  The last document in exhibit A to the third affidavit comprises selected pages from the transcript of the hearing before the primary judge on which there is also some highlighting.  None of these documents is further evidence.  It is an attempt by Mr Lawson to make further submissions by reference to material that was before the Court on the appeal.  The Court does not need passages in documents before the Court to be highlighted in order to appreciate the contents of the documents.
[40]	The first document in exhibit B comprises an email exchange which Mr Lawson had with the solicitor he was dealing with at Shine on 23 and 24 September 2021.  The solicitor from Shine emailed the draft of the first notice on 23 September 2021 requesting Mr Lawson to review it and “let me know” if there were changes to be made.  The second email was Mr Lawson’s response that the first notice looked fine and he had a question what “TBA” in the “damages $ section” was.
[41]	The last document in exhibit B is the last page of the further affidavit with highlighting in respect of Mr Lawson’s comments on exhibit E to that affidavit.  There is nothing to be adduced in the third affidavit which was either not before the Court on the appeal or the effect of the document was not before the Court on the appeal.  To the extent that Mr Lawson repeats arguments that he had already made to the primary judge or to the Court on the appeal, the third affidavit is completely unnecessary.  The application for leave to adduce further evidence based on the third affidavit should be refused.
The law
[42]	Section 31(2) of the Act provides:
“Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—
(a)	that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b)	that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.”
[43]	The appellant relies on the statement of Thomas JA (with whom Pincus JA and Byrne J agreed) in Pizer v Ansett Australia Ltd [1998] QCA 298 at [20] of Thomas JA’s reasons:
“In the present case leave was granted to appeal, mainly on the Court’s perception that the case was reasonably arguable, and that the effect of the decision would produce significant consequences.  In appeals of the present kind, when the material fact concerns the nature and extent of personal injury, questions of degree are necessarily involved.  At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it.  At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension, and an appeal court could likewise readily correct an erroneous decision.  Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff’s knowledge and as to whether the reasonable person contemplated by s.30(b), endowed with such knowledge and having taken appropriate advice, would have brought proceedings.  Appeals involving extensions of periods of limitation commonly raise these particular issues which involve factual assessments.” (footnote omitted)
[44]	That statement is apt to describe the issue raised by this appeal, as to whether it was not until 7 June 2021 that a material fact of a decisive character relating to the pursuit of a personal injuries claim was not within the means of knowledge of Mr Lawson.
[45]	The phrase, “a material fact of a decisive character relating to the right of action” in s 31(2)(a) of the Act is a composite term, as was explained in the joint judgment of Gummow, Hayne and Crennan JJ in State of Queensland v Stephenson (2006) 226 CLR 197 at [29]:
“The better view is that the means of knowledge (in the sense given by para (c) of s 30(1)) of a material fact is insufficient of itself to propel the applicant outside s 31(2)(a). For circumstances to run against the making of a successful extension application, the material fact must have “a decisive character”. Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. It is true to say, as the plaintiffs submit in their written submissions, that in a sense none of the material facts relating to the applicant’s right of action is of a decisive character until a reasonable person “knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing” the features described in sub-paras (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court.”
[46]	The legal onus of satisfying the Court pursuant to s 31(2) of the Act that the justice of the case requires the discretion to grant an extension of the limitation period to be exercised in favour of the applicant for the extension is borne by the applicant: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 544, 547 and 551.  In order to discharge that onus, the applicant for the extension must show that any prejudice to the respondent caused by the delay does not thwart a fair trial:  Taylor at 544, 550 and 555.
The material fact of a decisive character
[47]	Mr Diehm of Queen’s Counsel dealt with the first two errors which the appellant submitted were made by the primary judge together as to whether the diagnosis of arthritis in June 2021 was a material fact of a decisive character.
[48]	There was no assertion by Mr Lawson in the evidence before the primary judge that his right knee was free from symptoms arising from the incident at some time after the surgery in 2005.  His evidence was to the opposite effect that his knee was never the same again and that he “continued to experience intermittent episodes of varying severity knee pain and swelling” ever since 2005.  As submitted by the appellant, the primary judge’s finding that the original injury had resolved was therefore not open on the evidence, including Mr Lawson’s own evidence, before the primary judge.  Even though it was not until 7 June 2021 that Mr Lawson had a diagnosis of arthritis for his right knee symptoms that alerted him to the fact that his knee would never improve, but could only deteriorate, the undisputed facts disclosed before the primary judge were that Mr Lawson had continuing symptomatology in his right knee that caused him pain over the years since 2005, caused him to adjust how he performed his work (by wearing a soft brace around the knee) and resulted in his ceasing work by 30 November 2020 when the pain and swelling had become “unmanageable”.  The finding that should have been made by the primary judge was one that was consistent with the undisputed facts.
[49]	The appellant accepts that the diagnosis of arthritis was a material fact, but submits that it was not of a decisive character, because Mr Lawson had the continuum of symptoms from after 2005 which may have fluctuated, but persisted, and that should have put him on notice at an earlier time than June 2021 that he should obtain advice about pursuing a personal injuries claim in respect of the injury to his knee sustained in the incident.
[50]	The appellant’s approach on the appeal was therefore to submit that it was at a much earlier time than December 2020 that Mr Lawson had sufficient knowledge of the matters that would give rise to a good cause of action for damages for personal injuries arising out of the injury to his right knee sustained in 1999.  The appellant submits that a reasonable person with Mr Lawson’s knowledge and in his position would have taken appropriate advice on what he knew about his continuing knee symptoms (and the constraints on how he performed his work) much earlier than December 2020.
[51]	Apart from identifying whether the diagnosis of arthritis was a material fact of a decisive character and the issue of prejudice to WorkCover due to the delay in pursuing a claim for personal injuries, there was no issue that Mr Lawson had otherwise shown there was material to support his having a reasonable prospect of success on an action for damages for personal injuries arising from the incident.  Taking into account that Mr Lawson expressly abandoned the past economic loss claim that was estimated in the first notice and the second notice at $300,000, the most favourable view of the facts to Mr Lawson is that it was not until he ceased work as a contractor on 30 November 2020 that he had knowledge of sufficient facts of a decisive character that, if he had taken appropriate medical or legal advice, he would have in his own interests then pursued a personal injuries claim.  That is shown by Mr Lawson’s own action in contacting WorkCover about his options on 23 December 2020 after he had ceased working and the pain in his right knee had become unmanageable.  In those circumstances, Mr Lawson did not need a diagnosis of arthritis to justify pursuing a claim for damages for personal injuries due to the incident.  It was sufficient that he knew that the pain and swelling in his right knee prevented him from working.  Allowing for a short period of time after Mr Lawson ceased work for the realisation that the pain and swelling in his right knee was not abating and to obtain appropriate advice on the facts then known to him relevant to pursuing a personal injuries claim, the material fact of a decisive character was known to him by 23 December 2020.
[52]	That means any extended limitation period in accordance with the one year permitted by s 31(2) of the Act after the material fact of a decisive character relating to the right of action was within Mr Lawson’s means of knowledge expired by 23 December 2021 (as he had in effect been forewarned by the appellant’s solicitors’ letter dated 29 September 2021).  The application should have been dismissed.
Prejudice
[53]	The question of prejudice is decided on the material before the judge who hears the application for extension.  As was observed by Toohey and Gummow JJ in Taylor at 548:
“Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application.”
[54]	To the extent the primary judge’s reasons suggest that there may have been an opportunity to review the extension of the limitation period after further investigations relevant to the issue of prejudice were undertaken in the preparation for trial, that is inconsistent with the requirement for the issue of prejudice to be decided on the basis of the material before the Court on the hearing of the application.
[55]	If Mr Lawson had satisfied the threshold issues for the exercise of the discretion to grant the extension under s 31(2) of the Act, Mr Lawson bore the legal onus, in accordance with Taylor, of showing that the discretion to extend the limitation period should be exercised in his favour.  He did not do that because he failed to pursue the enquiries that remained outstanding at the hearing of the application (and were within his means to do so) that were relevant to the question of the employer’s liability for the incident.  It was not sufficient for Mr Lawson merely to pass on telephone numbers of possible witnesses to WorkCover.  It was for him to undertake all reasonable steps to locate the whereabouts of the records of the employer relevant to the issue of the maintenance of the employer’s work vehicles and procedures in place for the reporting of defects and dealing with breakdowns.  In the circumstances where the question of negligence was not raised by Mr Lawson until more than 21 years after the incident, the issue of prejudice that may exist after an extended period of delay without the parties even realising that it exists (as explained by McHugh J in Taylor at 551) is also relevant.  The effect of delay on the ability of potential witnesses to recall the relevant events was shown by the fact that Mr Zeleznik could not recall the injury sustained by Mr Lawson or about being informed of the circumstances in which Mr Lawson said it occurred.  Even if Mr Lawson had his application to extend the limitation period heard and disposed of before the expiration of one year from when the material fact of a decisive character was within his means of knowledge, he failed to discharge the onus he bore of showing that a fair trial would still be available to WorkCover.  The discretion to grant the extension should therefore not have been exercised in Mr Lawson’s favour.
Orders
[56]	The following orders should be made:
1.	Application for leave to adduce further evidence filed on 19 May 2022 refused.
2.	Application for leave to adduce further evidence filed on 20 July 2022 refused.
3.	Appeal allowed.
4.	Set aside the orders made by the primary judge on 17 January 2022.
5.	The originating application filed on 17 December 2021 is dismissed.
6.	The respondent must pay the appellant’s costs of the originating application filed on 17 December 2021 and the appeal.