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Steele v John Holland Group Pty Ltd

 

[2020] QSC 37

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Steele & Anor v John Holland Group Pty Ltd [2020] QSC 37

PARTIES:

AUBREY KRISTEN STEELE

(first applicant)
MADELYN MARIE MURPHY (BY HER LITIGATION GUARDIAN AUBREY KRISTEN STEELE)

(second applicant)

v

JOHN HOLLAND GROUP PTY LTD

(respondent)

FILE NO/S:

SC No 13946 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

9 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

19 and 20 June 2019

JUDGE:

Burns J

ORDER:

THE ORDER OF THE COURT IS THAT:

  1. Pursuant to s 31 of the Limitation of Actions Act 1974 (Qld), the period of limitation for the first applicant’s claim as first plaintiff in proceeding BS No 826 of 2019 be extended to 25 January 2019;
  2. The costs of the application be the costs of the first applicant and the respondent as first plaintiff and defendant respectively in proceeding BS No 826 of 2019.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE –GENERALLY – where the applicant brings a dependency claim in respect of the death of her husband – where the applicant did not commence proceedings within the statutory limitation period – where the applicant commenced a proceeding with respect to her claim nine years after the death of her husband – whether an extension of time should be granted – whether a material fact of a decisive character was not within the applicant’s means of knowledge prior to the expiry of the limitation period

Civil Proceedings Act 2011 (Qld), s 64

Limitations of Actions Act 1974 (Qld), s 11, s 30, s 31

Occupational Health and Safety Act 1991 (Cth), s 16, s 21, s 40

Personal Injuries Proceedings Act 2002 (Qld), Chapter 2, Part 1

Supreme Court Act 1995 (Qld), s 17

Aircraft Technicians of Australia Pty Ltd v St Clair; St Clair v Timtalla Pty Ltd [2011] QCA 188, cited

Castillon v P & O Ports Limited (No 2) [2008] 2 Qd R 219, cited

Dick v University of Queensland [2000] 2 Qd R 476, cited

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, cited

Hall v Don Faulkner Motors Pty Ltd & Ors [2013] QSC 331, cited

Hall v Nominal Defendant (1966) 117 CLR 423, cited

Hargans v Kemenes & Anor [2011] QCA 251, cited

Honour v Faminco Mining Services Pty Ltd & Anor [2009] QCA 352, cited

Jones v Dunkel (1959) 101 CLR 298, cited

Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, cited

Payne v Parker [1976] 1 NSWLR 191, cited

St Clair v Timtalla Pty Ltd [2010] QSC 296, cited

State of Queensland v Stephenson (2006) 226 CLR 197, cited

Sugden v Crawford [1989] 1 Qd R 683, cited

Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, cited

Ward v Wiltshire Australia Pty Ltd [2005] 51 MVR 1, cited

COUNSEL:

R Douglas QC, with K Riedel, for the applicants

M Grant Taylor QC, with K Holyoak, for the respondent

SOLICITORS:

Mills Oakley for the applicants

Barry Nilsson Lawyers for the respondent

  1. [1]
    By this application, the first applicant, Ms Aubrey Steele, seeks an extension of the time limited by s 11 of the Limitations of Actions Act 1974 (Qld) for the bringing of a dependency claim. Her claim arises out of the death on 5 December 2009 of her then husband, Mr Danny Cheney.
  2. [2]
    By s 31 LAA, where a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant for such an extension until a date after the commencement of the year last preceding the expiration of the limitation period, and there is evidence to establish that right of action, the court may order that the limitation period be extended so that it expires at the end of one year after that date.
  3. [3]
    Here, the limitation period expired on 5 December 2012. The originating application was filed on 17 December 2018. Orders were subsequently made granting leave to the applicant to file a claim and statement of claim despite non-compliance with Part 1 of Chapter 2 of the Personal Injuries Proceedings Act 2002 (Qld). This occurred three days later (25 January 2019), and that proceeding has been stayed pending compliance with the PIPA regime.
  4. [4]
    The critical question on this application therefore concerns whether Ms Steele has satisfied the onus on her to establish within the meaning of s 31 LAA that a material fact of a decisive character was not within her means of knowledge earlier than 25 January 2018.

Background to the application

  1. [5]
    The deceased was a civil engineer. In May 2007, he commenced work for the respondent, John Holland Group Pty Ltd, as a stringing supervisor. He was still working for John Holland in November 2009 when he was transferred to the Strathmore Ross Project and promoted to the position of construction manager. The project involved the construction of high voltage transmission lines between Strathmore and Ross, west of Townsville in North Queensland.
  2. [6]
    Although promoted to a higher role, the deceased acted as a stringing supervisor while becoming familiar with the Strathmore Ross Project, and he was working in that capacity, on a “fly in / fly out” basis, at the time he died. In particular, he headed up a crew tasked with the installation of line spacers between conductors on spans between two supporting towers along the transmission line. Spacers, when installed, prevent adjacent conductors from making contact with each other. The upper and middle phase spacers were installed using a helicopter but the lower phase spacers had to be installed using a conductor cart. To achieve this, at about 1.00 pm on 5 December 2009 an Elevated Working Platform was employed to lift the conductor cart into place directly beneath the conductors. The cart was attached to the conductors by the deceased and another worker, Mr Macquin Parungao, before the deceased transferred from the EWP to the cart.[1] The EWP with Mr Parungao operating it was then lowered out of the way but, as this was occurring, the deceased was electrocuted and died at the scene. Mr Parungao received minor burns and required hospitalisation.
  3. [7]
    Although the conductors were not carrying generated electricity, they were nonetheless energised through electrostatic conduction from adjacent, and live, transmission lines. There was accordingly a high risk of electrocution unless the conductors were effectively earthed.
  4. [8]
    A written procedure governed the performance of this work. It is described in the evidence as an Activity Method Statement and a version of it was developed in the week preceding the incident and was dated 4 December 2009. It required the lower phase conductors to be earthed at each supporting tower using an earthing lead. To do this, the workers on the EWP should have been wearing “hot gloves”. They were then supposed to attach one end of the earthing leave to the supporting tower before, while using a “hot stick” to keep clear, attaching the other end to the conductors.
  5. [9]
    According to the Coroner who many years later conducted an inquest into the death of the deceased, Magistrate Priestly, the AMS was not followed by the deceased. Instead of earthing the conductors to the supporting tower at the end of the relevant span, the deceased earthed the conductors to the EWP and, when he did so, he was wearing only one hot glove[2] and he did not use a hot stick. The Coroner found that, as the EWP was being lowered away from the conductor cart, the deceased started to disconnect the earthing lead and, while doing so, he was electrocuted.
  6. [10]
    Unbeknownst to Ms Steele (or to anyone who was subsequently called on to advise her with respect to her claim) until the Coroner handed down his findings on 16 February 2018, the AMS was immediately overhauled by John Holland in light of this fatality. Under the revised AMS, released on 18 December 2009, all earths were required to be applied in accordance with a new isolation procedure – the Temporary Earthing of Transmission Circuit Procedure. Furthermore, the “Activity Resource Requirements” were upgraded to make explicit the requirements for a hot stick, hot gloves, an earth rod and earthing leads. A new checklist — described as an Earthing Permit — was also added. It was required under the new procedure to be signed by an “Isolation Officer”, a role that was neither mandated nor performed at the time of this incident. Under this new procedure, the Isolation Officer is responsible for visibly inspecting the earthing set up before signing the Permit to proceed with the work activity. John Holland also introduced the provision of voltage detection equipment as part of the PPE to check the effectiveness of earthing, and provided training to workers on earthing and bonding.
  7. [11]
    It also emerged in evidence during the Inquest that a strikingly similar procedure to the “new” procedure that was introduced for the Strathmore Ross Project on 18 December 2009 was already in use by John Holland with respect to a project in Tasmania, and that this had been the case for over six months prior to this fatality. That procedure — entitled, Temporary Earthing of Transmission Circuits — was made part of the system of work for that project on 19 May 2009.
  8. [12]
    Be that as it may, Ms Steele was informed of the death of her husband by a police officer who attended at her then home at Highland Park on the Gold Coast later on the afternoon of 5 December 2009. His death was of course a reportable occurrence and the Coroner was duly notified. Three days later (8 December 2009), the Coroner forwarded a letter and “fact sheet” to Ms Steele. She read the letter but not the fact sheet. She already knew that the deceased’s father, Mr Kevin Cheney, was in contact with the Coroner and assumed that, if anything was required of her or if there was any information for her to consider, she would be contacted. Mr Cheney made arrangements for the deceased’s funeral and took over responsibility for the “various administrative and legal matters” arising from his son’s death. Indeed, Ms Steele relied on him to do so. That continued until early 2012 when a dispute arose within the family as to the fate of a lump sum payable from the superannuation fund for the deceased in the event of his death. Thereafter, Ms Steele seems to have lost any relationship she once had with the deceased’s mother, Ms Gail Cheney, and her relationship with Mr Cheney cooled. At the time she swore her affidavit in support of this application, Ms Steele had not communicated with either of them since 20 January 2012, apart from an email exchange on 26 February 2018 following the handing down of the Coroner’s findings.
  9. [13]
    There can be no doubt that Ms Steele was devastated by her husband’s death. They first met in her home country, the United States of America, in late 2002 and kept in touch by email after the deceased returned to Australia. Then, following the collapse of Ms Steele’s first marriage, the deceased flew to the USA in May 2007 to visit Ms Steele and her daughter, the second applicant. The deceased and Ms Steele became romantically involved and, although he needed to return to Australia for work, they remained in close touch. Ms Steele travelled to Australia to meet the deceased’s family in December 2007 and he proposed to her on New Year’s Day, 2008. They were married on 13 June 2009. In the meantime, in about April, Ms Steele and her daughter moved from Utah, USA to the deceased’s home at Highland Park with the intention of settling in Australia permanently. Following her husband’s death, Ms Steele required a lot of support from her parents as well as the parents and other family members of the deceased, she felt housebound for a month or so, received counselling over a number of sessions and was on antidepressant medication for approximately 12 months.
  10. [14]
    Around 16 December 2009, Mr Stephen Sasse visited Ms Steele at her home. He was at that time employed by John Holland as its “Executive General Manager, Human Resources, Industrial Relations, Safety, Corporate Affairs and Organisational Strategy”. The visit lasted for about an hour. Mr Sasse offered his condolences and told Ms Steele that John Holland would “look into Danny’s death”. In a letter forwarded to Ms Steele the following day, Mr Sasse confirmed that John Holland was “arranging for [her] to receive independent legal advice and support in relation to the finalisation of Danny’s estate and associated matters”, amongst other things.
  11. [15]
    John Holland did look into the fatality, or at least purported to do so. An investigation was commenced on 6 December 2009 and was completed by early February 2010. The lead investigator was Mr Sasse. He was also the principal author of a report generated with respect to that investigation dated 11 February 2010.
  12. [16]
    The report posited that the “primary cause of the incident was the failure to properly earth the conductors before commencing work on the line” and then concluded that, although the “risk assessment procedure was fully fit for purpose and was thoroughly and conscientiously applied to the proposed scope of work”, once on site “the crew operated completely outside the AMS”. The authors continued:

“The safety management system can not be expected to withstand an unexpected and unpredictable decision of the most senior and experienced company officer on the site to operate wholly outside of the system, the corporate safety values and the precepts contained in the Activity Method Statement.”

  1. [17]
    The reference to the “most senior and experienced company officer on the site” was a reference to the deceased. Earlier, after observing that the “crew were operating in such extreme disregard of the AMS and associated safety procedures and requirements that the entire safety system was rendered ineffective” it was recorded as “a matter of great concern”, that the deceased carried “the primary responsibility for the crew being in that situation”.
  2. [18]
    The report contained the following findings:

“1. The death of [the deceased] and the injuries sustained by Macquin Parungao were caused by the abject failure of the crew to comply with the Activity Method Statement developed specifically for the task that they were assigned.

  1. The failure to apply the AMS and associated requisite practices and procedures was primarily but not exclusively the responsibility of [the deceased]. In his capacity as Construction Manager and Acting Stringing Supervisor he was obligated, authorised and empowered to carry out the task in accordance with the AMS. He wilfully violated those requirements as well as his overarching obligation to ensure that personnel under his control and himself remain safe.
  1. The evidence suggests that there may have been isolated instances of perceived management acquiescence to the use [of] sub-standard earthing procedures within the transmission line sector of the industry, and possibly within the electricity authorities. John Holland will investigate this suggestion to determine this question and rectify where required. The overwhelming preponderance of evidence supports the conclusion that sub-standard earthing practices were not in place on the Strathmore Ross project.”
  1. [19]
    Nothing was revealed in the report about the significant post-incident changes to the system of work which were implemented by John Holland following the death of the deceased and which are summarised above (at [10] and [11]).
  2. [20]
    That said, and as promised by Mr Sasse, John Holland arranged for a solicitor, Mr Geoffrey Armstrong, to act on behalf of Ms Steele in the administration of the deceased’s estate. Subsequently, in May 2010, Mr Armstrong referred Ms Steele to her present solicitors, Mills Oakley, to provide her with advice which respect to any potential claim against John Holland.
  3. [21]
    Before that occurred, however, Ms Steele did not have legal representation in respect of any such claim. Perhaps that is why Mr Sasse considered it open to him to call on Ms Steele at her home again in order to explain to her the contents of the report, something that occurred shortly after the report was completed. Or maybe it was because, as he swore in an affidavit filed in response to the application, he thought that he was making good on his promise to the family to “be honest about the investigation and its findings”. But, whatever Mr Sasse’s motivation, the decision on the part of the lead investigator to meet with the widow of the deceased to explain that her husband was largely to blame for his own demise was, to say the least, ill-advised. It was also a decision that still resonates because what was said and done by Mr Sasse at that meeting, I find, had a deep and lasting impact on Ms Steele.
  4. [22]
    Mr Cheney was present when Mr Sasse called on Ms Steele in February 2010. According to Mr Sasse, Mrs Cheney was also present. He gave them a “factual recitation of the contents” of the report although he did not take them through it “line by line”. He discussed the process of developing the AMS, which he recalled was “comprehensive and fit for purpose”. He also recalled mention of the “issue of the deceased ‘rushing’ to get the job done” as a “possible causal factor” and he summarised each of the findings which are extracted above (at [18]). Mr Sasse swore that Mr Cheney asked a number of questions to seek “clarification and/or explanation” but said that neither Ms Steele nor Mrs Cheney asked any questions. He left a copy of the report with them.
  5. [23]
    The report itself must have been very confronting to Ms Steele. Quite apart from its largely damning content so far as her husband was concerned, it also incorporated a number of images of him in the conductor cart only moments before he was electrocuted. It is also worth noting that Mr Sasse made no mention in his affidavit of having highlighted to Ms Steele anything that was favourable from the point of view of a possible claim against John Holland. Although he was not required for cross-examination on hearing of the application, this feature is I think revealing of the tone of the meeting, at least so far as it concerned a discussion about the report and the findings contained within it.
  6. [24]
    In her affidavit, Ms Steele recalled that Mr Sasse “pointed out what [the deceased] had done wrong and the procedures which he did not follow”. He had photographs of the EWP, the hot glove, the hot stick and the transmission tower. Mr Sasse “repeatedly stated” that the deceased had taken “shortcuts” and these were pointed out. She regarded what Mr Sasse said as “overwhelming and … a lot to take in”. Based on what Mr Sasse said during the meeting, Ms Steele believed that the deceased “was to blame for the incident and … solely responsible for his own death because of the way he had performed his job and the ‘shortcuts’ he had taken”. She was upset and confused because it “did not make sense to [her] that the deceased would take shortcuts or not do his job properly” but, nevertheless, that was her belief.
  7. [25]
    Ms Steele did not read the report after the meeting with Mr Sasse because she was “too upset and overwhelmed”. In fact, she did not read the report until August 2011 and, when she did, she thought that its contents were consistent with what Mr Sasse had told her.
  8. [26]
    In March 2010, Ms Steele received a telephone call from the brother of a friend. He told her that a PowerPoint presentation had been used during a training session he attended for work purposes which was entitled, “Lessons from the death of Danny Cheney”.[3] Later that day he provided Ms Steele with a link to it. The opening slide featured one of the images from the John Holland report of the deceased in the conductor cart moments before he died. Its contents had a heavy focus on the mistakes the deceased had allegedly made. It asserted that the incident was “thoroughly investigated by John Holland”. The findings from the report were emphasised but, among the contributory factors that were identified, a failure of the deceased’s co-workers to “speak up and stop the job”, a “lack of appropriate equipment [forcing] those involved to make inappropriate decisions”, a “failure of supervision” and a “suggestion that there were some common industry practice[s] regarding ‘short cuts’ on earthing procedures” were highlighted. However this was immediately followed by what was described in the PowerPoint as the “Conclusion of the Investigation Report”:

“There is no doubt that the crew involved in the incident … were all properly informed of and aware of the risks of induction shocks and were unambiguously instructed in the correct approach to earthing.”

  1. [27]
    In May 2010, Mills Oakley were engaged by Ms Steele to advise on any potential claim arising from the death of her husband. In particular, on 6 May 2010, Ms Steele attended on Mr Dickens, a principal of that firm, to discuss the matter. She was accompanied by Mr Cheney as well as Mr Armstrong. Another solicitor employed by Mills Oakley, Mr Levi Smouha, was present. Mr Dickens took notes of what was discussed. When Mr Dickens gave evidence on the hearing of the application, his recollection was that Ms Steele was in a “state of distress” during the conference. He said that it was “very obvious to [him] that she was suffering a great deal of trauma and anxiety at the loss of her husband”. Although Ms Steele believed that the purpose of the conference was to discuss her prospects of success on any claim against John Holland, plainly that could not occur in any definitive way because all in attendance (with the possible exception of Ms Steele) were aware that Comcare had investigated the fatality and a report with respect to that investigation was in the wings. Moreover, at that stage, the Coroner had not decided whether to conduct an Inquest. As it happens, Ms Steele could not recall much detail of what was discussed but, based on the notes taken of the conference, the John Holland report was discussed as were the views of a co-worker — Mr Jason Scott-Paterson — regarding the procedure the deceased apparently adopted to earth the conductors. Mr Cheney took issue with a number of findings in the John Holland report and felt that John Holland had not done the “right thing”. There was also discussion about what might occur if a claim was advanced against John Holland. The points were made that “litigation is expensive”, obtaining evidence is “labour-intensive” and that it could take 12 to 18 months to get to the stage of requesting a trial date. There was mention that, if the claim went to trial, it could cost in excess of $100,000, but that John Holland’s insurer may look to settle to avoid a trial. It was agreed that Ms Steele would await receipt of the Comcare report and the decision of the Coroner whether to hold an Inquest before settling on any strategy to pursue a claim.
  2. [28]
    Subsequent to the conference, Mills Oakley forwarded a costs agreement to Ms Steele (care of Mr Armstrong). They were apparently not prepared to act on a speculative basis. The hourly rates ranged from $450 for a partner down to $185 for a paralegal .In the covering letter dated 12 May 2010, Ms Steele’s instructions to “sit tight” until such time as Mr Armstrong or she provided Mills Oakley with further instructions were recorded.
  3. [29]
    Ms Steele signed the costs agreement on 24 May 2010. On 8 July 2010, Mr Dickens wrote to Mr Armstrong with respect to Letters of Administration that had been granted in favour of Ms Steele. He confirmed again that he would “hold off doing further work” until the Comcare report was to hand and he noted that the Coroner “is also waiting for that report to complete his investigation”. He advised that if a wrongful death claim was to be made by Ms Steele against John Holland, any such proceeding would need to be commenced within three years of the date of death.
  4. [30]
    On 2 August 2010, inquiries were made by Mr Dickens of a forensic accountant, Mr Mark Thompson, as to his preparedness to prepare a report on damages. Mr Thompson agreed to do so and, further, to act on a speculative basis. On 4 August 2010, Mr Dickens wrote to Ms Steele regarding the same and, in that letter, conveyed “Mr Thompson’s view … that it is best to prepare the loss qualification report sooner rather than later, so that we are ready to negotiate with John Holland once the liability issues (flowing from the Comcare report) are ready to be ventilated”. Instructions were sought to retain him. No response appears to have been received to that letter.
  5. [31]
    On 20 August 2010, Mr Dickens wrote again to Ms Steele. He confirmed that any dependency claim would need to be commenced within three years of the date of death and that, pursuant to s 9 PIPA, before any such proceeding could be commenced, a Notice of Claim would need to be delivered to John Holland. He advised that the Notice would need to be delivered within nine months of the fatality. He advised Ms Steele that, in order to protect her interests, a Notice of Claim ought to be delivered before 4 September 2010. A blank Notice of Claim was enclosed with the letter together with a request that it be completed, signed and returned. Instructions were again sought to retain Mr Thompson.
  6. [32]
    Comcare commenced its investigation as soon as it received notice of the fatality on the afternoon of 5 December 2009. Mr Chris Howard, an investigator appointed under s 40 of the Occupational Health and Safety Act 1991 (Cth), was initially responsible for the investigation but it was subsequently assigned to Mr Luke Appleby, also an investigator appointed under s 40.
  7. [33]
    On the same day that Mr Dickens forwarded the Notice of Claim under PIPA to Ms Steele (20 August 2010) Mr Appleby produced a report of the investigation. However, it does not appear to have become publicly available until later in the following month. In the report, Mr Appleby concluded that John Holland did not breach the OHSA in relation to the incident but found that the deceased and Mr Parungao each breached s 21 OHSA “as they failed to properly discharge their duties as written, trained and directed by their employer, John Holland”. Mr Appleby found that the deceased “was the authorised supervisor and the most experienced member of the work crew and was at all times in a position to effectively direct the speed, process and safety aspects of the work that gave rise” to the incident. He found that the deceased failed to discharge his obligations under s 21 OHSA to “not take any action that creates a risk or increases an existing risk to his or other persons’ safety in that he failed to earth the conductors on which he was working to the towers in accordance with the mandatory process set out in the [John Holland] AMS for [the] activity”.
  8. [34]
    Mr Appleby went on to find that the relevant AMS was in the deceased’s possession and that “he had a good working knowledge of its contents”. He determined that it was the deceased “who oversaw the discussion and subsequent decision to proceed contrary to the AMS and earth the conductors via the EWP”. The report continues:

“66. I find that [the deceased] failed in his obligations as a supervisor of the work to ensure that adequate Personal Protective Equipment (PPE), namely Hotsticks and insulated gloves, were obtained by crew members prior to commencing the actual task, in breach of section 21 of the Act.

  1. I find that [the deceased] failed in his individual obligations not to make any omission, namely not utilising a hotstick or wearing insulated gloves on both hands, and this created a risk or increased an existing risk to himself and others in breach of section 21 of the Act.”

  1. I find that if any one, or combination, with the following omissions had not been made, contrary to establish mandatory procedures and [John Holland’s] written directive, this fertility and SPI may not have occurred:
  1. (a)
    Failure to use PPE is required
  1. (b)
    To complete individual Job Start Cards prior to commencement of the job
  1. (c)
    Failure to undertake a TRA on site prior to the commencement of the task
  1. (d)
    Failure to follow written procedure for the correct earthing of conductors specifically designed to negate EMI
  1. (e)
    Failure to wear the PPE, albeit not fully compliant with the AMS and [John Holland] direction, that was available, namely insulated gloves.
  1. I find that the primary cause of this incident was the failure by [the deceased] to direct that earth leads be attached to the conductors in the manner prescribed in the AMS at points 3.1.9 through 3.1.11. If the earth leads had been attached to the conductors in the manner required by John Holland, I believe the risk of electric shock from EMI would have been significantly reduced or removed. I also find the secondary cause was [the deceased’s] failure to fully utilise the PPE that was available, namely insulated or hot gloves and Hotsticks. Parungao’s failure to insist that the work task be varied out in accordance with the AMS was a minor contributing factor to this incident. [Emphasis in original]
  1. [35]
    In contrast, My Appleby found that John Holland had taken adequate steps to conduct hazard identification, risk assessments and implement risk control measures to “minimise the relevant risk to health and safety as far as was reasonably practicable in accordance with its obligations” under s 16(1) OHSA and the associated regulations. Furthermore, he found that John Holland provided the “necessary training and instruction to all relevant employees in relation to [the] incident, having particular regard to the necessity of earthing properly and wearing PPE”. There was “no pressure brought to bear on employees, either [the deceased], Parungao or others to complete the task more quickly than [was] normal or in ways that subvert or undermine safety procedures”. He found that Mr Parungao “perceived he was hindered in meeting his obligations” under s 21 OHSA “due to cultural issues affecting him”, that is to say, that “raising health and safety concerns [might] be seen as challenging his supervisors, or otherwise be poorly received by his employer”. Finally, Mr Appleby expressed the following conclusions:

“96. There is insufficient evidence before me to make any conclusive finding that John Holland breached the Act.

  1. I am of the view that the tragic death of [the deceased] was a result of his failure to comply with mandated safety procedures with which he was familiar. I am of the view that these failures also constitute a breach of section 21(1) of the Act.
  1. [The deceased], as the supervisor of the activity was responsible for ensuring a TRA was completed prior to the work commencing. It is a fact that he did not complete or cause to be completed a TRA prior to commencing the task. It is not now possible to reasonably conclude why he made this omission as Parungao had agreed to complete the task himself upon his return to ground level and [the deceased] was in a position to delay earthing procedures and direct Laspobres and Ellem to commence preparation for work while he worked with Parungao to complete the TRA. I therefore conclude that [the deceased] failed in his obligations as Supervisor to ensure that the TRA was completed prior to commencing the task.
  1. The crux of [the deceased’s] breach of section 21 of the Act arises because it would have been reasonably practicable for him to delay the commencement of the task and complete or properly engage in any one or all of the points listed at paragraph 69 of this report, however, he failed to do so.
  1. I conclude that Parungao, (who was the HSR) in failing to raise his concerns over the deviant earthing procedure and lack of PPE with [the deceased], even after [the deceased] allegedly told him that he ‘just received a little bit of a zap’ immediately prior to [the deceased’s] subsequent electrocution, breached section 21(1) of the Act. Parungao’s failings, however, are in my view tempered by the cultural issues apparently operating upon him at the time of the incident.”[4]
  1. [36]
    Again, there does not seem to be any mention in the Comcare report of the post-incident changes to the system of work which were implemented by John Holland following the fatality and which are summarised above (at [10] and [11]).
  2. [37]
    The Comcare report did not come to Ms Steele’s notice until late in September 2010 when Mr Cheney told her that he had a copy of it. Mr Cheney told her that the report “essentially said the same thing” as the John Holland report, that is to say, that the deceased “was responsible for the events leading up to his death”. She does not recall receiving a copy of the report and has not read it.
  3. [38]
    In the meantime, a junior solicitor employed by Mills Oakley, Ms Kimberly Smith, telephoned Ms Steele on 30 August 2010. She emphasised that time was running out to forward a Notice of Claim under PIPA. Ms Steele told her that they were still awaiting the Comcare report as well as a report from the Coroner. Otherwise, Ms Steele told Ms Smith that she needed to speak to Mr Cheney in order to decide what to do. On the following day, Ms Smith telephoned Mr Cheney. He was “still unsure about going ahead” but confirmed that he understood the importance of the looming date.
  4. [39]
    On the afternoon of 1 September 2010, Ms Smith sent an email to Mr Cheney (copying in Ms Steele). In it, she explained in more detail the Notice of Claim process under PIPA and again emphasised the importance of not missing “the cut-off date of close of business on 3 September 2010”. Ms Smith recorded that, by completing and serving the Notice on John Holland, Ms Steele would be “protecting her position with respect to a claim for compensation”.
  5. [40]
    The next day (2 September 2010), Ms Smith forwarded another email to Mr Cheney. Ms Steele was not copied in. It was in terms that were the same as the previous day’s email. Later that day, Mr Cheney responded. He advised as follows:

“It is a very stressful and hard decision to make at these difficult times.

Aubrey and I have decided not to lodge the claim. We will wait to read all the associated reports before deciding on our next action.”

  1. [41]
    About an hour after receiving Mr Cheney’s email, Ms Smith replied. She expressed concern that a decision not to proceed may have been provoked by “non-favourable comments made to [him] by a representative from Comcare today” and expressed the belief that Ms Steele “has a reasonable chance of obtaining compensation through the PIPA process”. She requested a completed Notice of Claim if Ms Steele had a “change of mind”.
  2. [42]
    Consistently with their instructions, Mills Oakley did no further work on the matter until Ms Steele emailed Mr Dickens on 22 February 2018 to advise that an Inquest had been held and the Coroner had handed down his findings. They did not receive a copy of the Comcare report or any correspondence from John Holland or the Coroner regarding the death of the deceased. The only advice Mills Oakley gave to Ms Steele was given during the conference was held on 6 May 2010. The expression of opinion contained in Ms Smith’s email to Mr Cheney on 2 September 2010 could not have been thought through because there was then no proper foundation for such a view but, regardless of the basis for it, Ms Smith’s email was not sent (or copied in) to Ms Steele.
  3. [43]
    On 25 October 2010, the Coroner’s office wrote to Ms Steele to advise that the Comcare report had been received and that the coroner would “now review this investigation and decide if any further investigations are required or if findings can be delivered”.
  4. [44]
    In December 2010, Ms Steele decided that she wished to return to the United States with her daughter and arrangements were commenced to that end. On 2 March 2011, she spoke with someone in the Coroner’s office to let them know. During that conversation, Ms Steele was told that the “process” was ongoing and that the Coroner was “waiting on a brief from the inspectors on the technical aspects of the investigation”. She was told that “once firm dates are set” they would “get back to her”.
  5. [45]
    Ms Steele left Australia in July 2011. Her daughter had returned to the United States about six weeks earlier. At the time she left, she believed that the Coroner’s office would have contacted her if the Coroner had come, or was prepared to come, to a conclusion about the fatality that was different to that contained in the John Holland report. She also believed that Mr and Mrs Cheney or their daughter would contact her if they needed anything from her, or if the Coroner had reached a different view to that expressed in the John Holland report. She also redirected the mail from her home at Highland Park to her parents’ address in Utah for a period of six months. As it turns out, Ms Steele never heard anything further, from anyone, about the Coroner, his investigation or any Inquest until 21 February 2018.
  6. [46]
    The Coroner did, however, forward a letter to Ms Cheney on 2 October 2014 to advise, amongst other things, that an Inquest would not be held. Unfortunately, that letter was forwarded to Ms Steele at her old address at Highland Park and it was never received. Similarly, a letter from Counsel Assisting the Coroner to Ms Steele dated 14 September 2015 to advise that the Coroner had changed his mind and had decided to hold an Inquest, was sent to her old address. Counsel Assisting made contact with Mr Cheney who provided him with Ms Steele’s email address. Attempts were then made to send a copy of the letter of 14 September 2015 to Ms Steele by email but they bounced. In the result, Ms Steele was completely unaware of this turn of events and, likewise, an article that appeared in the Townsville Bulletin newspaper on 6 November 2015 in which the holding of an Inquest was announced never came to her attention.
  7. [47]
    The Inquest took place over 11 hearing days – 19 October 2015, 9 February 2016, 6 to 9 June 2016 and 5 to 9 September 2016. John Holland and Mr Sasse were represented by counsel and Mr Cheney appeared without legal representation on behalf of the “next of kin”. As earlier noted, the Coroner handed down his findings on 16 February 2018. The investigations carried out by John Holland and Comcare were the subject of particular consideration, as was a review of what remedial action John Holland had taken. Otherwise, a significant body of evidence was placed before the Coroner including a witness statement provided by Mr Parungao as well as others at the scene of the incident. A number of witnesses, including Mr Sasse, were called to give evidence at the hearing.
  8. [48]
    The Coroner reached the following conclusions:

“There are a number of factors that likely contributed to this fatal event.

[The deceased] was a highly regarded employee who was newly promoted to the role of Construction Manager but initially worked as a Line Supervisor. He was new to the Strathmore Ross Project.

The original plan was for a helicopter to be used to install spacers on the conductors. Temporary earths in place during the stringing operation were removed as they were no longer required. However, it was discovered that the helicopter was unable to access the lower conductors adjacent to the live transmission lines and an alternative mode of installation was required. It was decided to use a conductor cart placed onto the conductors with the use of a EWP.

In the days prior to installation of the spacers, an Activity Method Statement was developed in consultation with [the deceased] which required earthing of the conductors to the towers via the EWP before attaching the conductor cart.

On the morning of 5 December [the deceased] had multiple responsibilities. As Stringing Supervisor, he conducted a meeting of 35 workers at 6.30am at the Ravenswood camp where he allocated work to crews. He was also leading his own work crew. They travelled to the Woodstock site office arriving after 7am and collected, amongst other things, the conductor cart and AMS. There was no discussion with his crew about the AMS, the work to be done or the required equipment. They left Woodstock about 9.15am, travelling to one tower, [then] another, before finding the spacers. It was about 10am when they arrived on site to start work. There was little or no preparation by [the deceased] as supervisor or his work crew in anticipation for the work to be done.

It will also be recalled, by way of background, that the project was behind schedule and workers were soon to start leaving for the Christmas break.

There was no prestart meeting or attempt to perform a TRA with the benefit of the AMS. [The deceased] appeared keen to progress work, taking on the key role of installing spacers from the cart. He likely felt the crew were late getting started.

The AMS was very detailed and the thought of this work crew breaking down the tasks even further, considering the hazards and control measures, would be a very time consuming activity to do on site. However, I acknowledge that if the AMS was shared with the crew with some discussion, one objective of the TRA, the crew would have been better informed about how the earthing should have been performed.

[The deceased] likely realised the crew did not have all of the equipment necessary to comply with the earthing procedure in the AMS. The crew required a hot stick as well as two split earthing leads, one for each end of the conductor span as well as a lead to bond the EWP to the conductor. [The deceased] did not stop work and send a worker to retrieve the necessary equipment. It is clear from his decision to proceed with one hot glove and one riggers glove instead of two hot gloves, it was more important to continue with work.

Although it was clear [the deceased] understood the risk of induction shock, I find it unlikely that [the deceased] understood the magnitude of the risk associated with what he thought was an alternative manner of earthing, namely to the EWP. He was a Stringing Supervisor/Construction Manager and a member of the group responsible for the development of the AMS. [The deceased] was expecting the Project Engineer to be on site shortly and must have known it would be obvious to that Engineer he did not comply with the AMS. That apparently did not concern [the deceased] and suggests [the deceased] felt that he could justify his decision to deviate from the AMS as to the manner of earthing, clearly not understanding the risk he was about to take.

Those employees with qualifications in live transmission line work or professional qualifications in electrical engineering, fully appreciate the differences between earthing and bonding, when and why to apply each technique. It was clear from the evidence of those without such qualifications that there was heavy reliance on past experience without a sound theoretical foundation. [The deceased] had no formal qualifications in live transmission line work. [The deceased] was not trained in live transmission line work. HV construction work does not normally entail working with live transmission lines. Induction shock was a known hazard when working adjacent to live transmission lines. [The deceased] may have received training about how to apply temporary earthing to the towers. However, this was likely in the context of working on towers and not from a EWP. It is also likely, that without formal training in this area, he did not appreciate the difference between earthing and bonding when working from a EWP on conductors, particularly when attaching a conductor cart. There is no evidence that the qualifications he held or the training provided by John Holland covered this issue.

The Comcare and John Holland investigations did not identify this subtle but important knowledge gap in the training of [the deceased]. Indeed, both investigations asserted [the deceased] was appropriately trained. The John Holland investigation acknowledged that there were reports of past inappropriate practices and ‘short cuts’ but did not seek to better understand how those arose. Similarly, the John Holland investigation report treated [the deceased’s] decision to deviate from the prescribed procedure as a deliberate violation and excluded organisational factors as potential contributors. The recommendations in the report were essentially areas that were identified as warranting further investigation for opportunities to do better.

It is troubling to me that in parallel to the John Holland investigation, management identified immediate remedial action to ensure better supervision of earthing practices through a permit to work regime for earthing. It thereby ensured that the requisite knowledge and expertise (through the issuer of the permit) was introduced. Further, all workers got training on the basics of earthing and bonding, including the how and why. This was not mentioned, let alone acknowledged, in the John Holland investigation report.

The existence of a knowledge gap inevitably raises an issue about the adequacy of qualifications and training of workers, especially supervisors like [the deceased], relevant to working with induced current. This in turn raises issues with planning in the project, matching knowledge and skill of workers with the tasks to be performed. Or another way of saying it: Why didn’t John Holland have in place the measures it introduced immediate after the death of [the deceased]?

The previous Nebo incident was the opportunity to review all electrical hazards including tasks performed that exposed workers to induction shock, the need for formalised temporary earthing procedures and equipment, training on those procedures including why, supervision on compliance with those procedures, auditing for compliance by personnel from offsite, and development and training in emergency responses. The Nebo incident should have been the wake up call to John Holland, particularly given Mr Sasse’s admitted knowledge about the less than satisfactory culture of the power industry and that division within John Holland.” [Emphasis added]

  1. [49]
    The following findings were made:

“1. On the morning of 5 December 2009 and adjacent to tower 323 on the Strathmore to Ross HV transmission lines near the Ross River Dam in North Queensland, [the deceased] died due to electrocution in the course of his employment with John Holland Group.

  1. [The deceased] was positioned in a conductor cart suspended from the conductors for the purpose of installing spacers. An Elevated Working Platform was used to raise, position and suspend the cart from conductors. [The deceased] had attached earthing leads between the EWP and conductors prior to attaching the cart. He was positioned in the cart and in the process of disconnecting the earthing leads when he was electrocuted.
  1. In the days before the incident, [the deceased] participated in the development of an Activity Method Statement which set out detailed procedures about how the spacer installation was to be performed including the requirement to apply temporary earths from each tower of the conductors.
  1. [The deceased] deviated from the requirement in the AMS, likely due to a number of operational factors but most importantly because of a gap in his knowledge about the difference between earthing and bonding, and the circumstances in which each is applied. [The deceased] was exposed to different practises and procedures during his work with John Holland but had received no formal training on those matters. He had no formal qualifications that covered those matters.
  1. [The deceased] adopted what he thought was an alternative method of earthing, without adequate safety equipment and in an apparent desire to get the job done. The conductors were not effectively earthed and [the deceased] was electrocuted.
  1. The Comcare investigation and the John Holland investigation did not fully explore why [the deceased] did not comply with the AMS and failed to identify the knowledge gap.
  1. However, John Holland took immediate remedial action after the death to introduce a permit to work regime in respect of earthing, provided voltage detection equipment to check effectiveness of earthing, reviewed the AMS, and provided training to workers on earthing and bonding (the how and why).
  1. For reasons that were not evident to me, the John Holland investigation report made no reference to the need for this remedial work or the fact that it was undertaken.” [Emphasis added]
  1. [50]
    On 21 February 2018, Ms Steele received a Facebook message from a friend in Australia alerting her to an article that had been published concerning the deceased. A link was provided. When Ms Steele read the article, she learned for the first time that an Inquest had been held and, more than that, that the Coroner had found that John Holland was at fault. In the message exchange with her friend, Ms Steele wrote “Yup. We knew that” and, although much reliance was placed on this response during the hearing of the application by counsel for John Holland, I find that Ms Steele was, as she deposed, simply expressing her belief “deep down” that the deceased would not have “done things at work or taken ‘short cuts’ as stated in the [John Holland report], if he knew that he was risking his own life or anyone else’s life”. The true position as to her state of mind was in fact revealed by a Facebook message which she sent to the deceased’s sister later that day. The relevant portion read as follows:

“I read the article about John Holland being at fault. I’m absolutely heartbroken all over again. Old wounds have been opened.

Are your parents going to pursue a lawsuit? I’d like to support whatever decision is being made to make John Holland attempt to right the wrong.

8 fucking years of being under the impression it was Danny’s fault. Deep down I knew it wasn’t possible. But that’s what was presented to us.”[5]

  1. [51]
    Ms Steele read the Coroner’s report on 25 February 2018 and contacted Mills Oakley on the same day.

The application

  1. [52]
    By the claim and statement of claim filed on 25 January 2019, the applicants allege that the death of the deceased was caused by the respondent’s negligence. They claim damages pursuant to s 17 of the Supreme Court Act 1995 (Qld) or, alternatively, s 64 of the Civil Proceedings Act 2011 (Qld).[6]
  2. [53]
    Counsel for Ms Steele contend that the material facts of a decisive character relating to her cause of action which were not within her means of knowledge until after 25 January 2018 – being the one year reach of the claim filed on 25 January 2019 – are:

“(a)  There was adopted immediately after the incident, a “temporary earthing of transmission circuit” procedure (the circuit procedure), which specified a particular procedure to enable earthing, and a work permit requirement that the same be undertaken.

  1. (b)
    A version of the circuit procedure had been adopted previously on the respondent’s Tasmanian project, in May 2009.
  1. (c)
    Other procedures were adopted, immediately after the incident, consisting of a procedure for installation of spacers using a EWP without spacer cart and extensive AMS additions.
  1. (d)
    As a result of an incident at Nebo in 2008, it was found there was a risk due to the absence of formalised training of workers in relation to induction risks.
  1. (e)
    In the previous Mudgee project, Mr Cheney in a SWMS dated 5 August 2009 did not include procedures for earthing to towers prior to installing a cart, that being the last occasion he undertook the same task.
  1. (f)
    Mr Cheney saw the final version of the AMS relevant to the task being completed at the time of his death on the morning of the incident (it having been amended since he had seen it previously) and his crew did not receive a copy of that document.
  1. (g)
    No voltage detection equipment was provided to Mr Cheney and his crew to check the effectiveness of the earthing of the conductors.
  1. (h)
    Mr Cheney had received no, or insufficient, formal training about:
  1. (i)
    Performing live transmission line work.
  2. (ii)
    Applying temporary earthing.
  3. (iii)
    Performing live transmission line work from an EWP.
  4. (iv)
    Using an EWP to install the conductor cart.
  5. (v)
    Installing spacers using a conductor cart from an EWP.
  6. (vi)
    The difference between earthing and bonding.
  7. (vii)
    The effect of the different forms of earths used at different projects.”
  1. [54]
    Although there may be room for argument about the extent to which some of the facts relied on by counsel for Ms Steele were newly discovered and whether there is evidence to support all of them,[7] the gist of their contentions is that, when alerted to the Coroner’s findings, she learned for the first time that there was evidence in existence to establish that there were serious deficiencies in the system of work, PPE and training of the deceased at the time of his death. Those deficiencies in the system of work, if proved, are the facts on which her counsel rely to support this application. They go to the “fact of occurrence of negligence… or breach of duty on which the right of action is founded” within the meaning of s 30(1)(a)(i) LAA. Ms Steele’s counsel contended that these facts were of a decisive character because they were “critical in converting [Ms Steele’s] prospects from adverse, or at best speculative, to a character which involved her enjoying a favourable prospect of recovery” and were not, when proper regard is had to Ms Steele’s circumstances, within her means of knowledge until she learned of the Inquest findings.
  2. [55]
    On the other hand, counsel for John Holland submitted that well before 25 January 2018 Ms Steele knew or had within her means of knowledge sufficient material facts of a decisive character relating to her cause of action against John Holland to justify a decision to pursue a claim. Moreover, they submitted that Ms Steele made a conscious choice not to pursue a claim before the end of the limitation period and so, as a matter of discretion, an extension should not be granted. They also maintained, relevant also to the exercise of the discretion, that John Holland will suffer both presumptive and actual prejudice in defending the claim if the limitation period is extended.
  3. [56]
    Before turning to consider the merits of the competing arguments, it is necessary to make some brief remarks about the evidence as well as the submissions made by John Holland concerning the failure on the part of Ms Steele to call three witnesses.
  4. [57]
    The application proceeded on affidavit evidence, with oral evidence from three deponents: Ms Steele, Mr Dickens and Mr Geary. Ms Steele appeared via video-link for that purpose and was cross-examined at some length. She impressed me as an intelligent woman who was doing her best to give a truthful and accurate account. She did so without embellishment and made concessions where appropriate. If anything, the impression I gained was that she was perhaps too ready on occasions to concede propositions put to her cross-examining counsel. It was also evident that she was, almost 10 years later, still affected by her loss. Overall, she gave a candid account of the relevant events and her state of mind at various times. I have no hesitation in accepting her evidence to the extent that her recollection permitted. In that last-mentioned respect, her memory of the conference held with her solicitors on 6 May 2010 was especially limited but, given her emotional state and overall predicament, that was hardly surprising. No real challenge was made to the evidence Mr Dickens and Mr Geary gave. They were both candid witnesses.
  5. [58]
    Counsel for John Holland pointed to a failure on the part of Ms Steele to call Mr Cheney, Ms Smith and Mr Smouha.[8] It was submitted that this was unexplained and could therefore be called in aid, not only to infer that the uncalled evidence could not have supported Ms Steele’s case but also to support the drawing of particular inferences in favour of John Holland. Whilst it may be accepted that the failure of a party to call a witness may support the drawing of a particular inference which is otherwise open from the proven facts,[9] here, it would be quite inappropriate to do so. None of the three witnesses could be regarded as being so enmeshed in the confidence of Ms Steele that they are to be regarded as available to her, as opposed to John Holland, as witnesses.[10] Neither Ms Smith nor Mr Smouha are any longer employed by Mills Oakley, and the submissions made as to their possible relevance as witnesses seem to overlook the feature that the “reasonable chance” email from Ms Smith of 2 September 2010 was sent to Mr Cheney and not Ms Steele. As for Mr Cheney, Ms Steele had no contact with him between January 2012 and February 2018. He did not even inform her that the Coroner had made a decision to hold an Inquest, let alone advise that he was appearing at the Inquest on behalf of the next of kin. When Ms Steele did forward an email to him after the findings were handed down, she posed a number of questions, none of which were answered in the rather perfunctory response she received from Mr Cheney. As it was, steps were taken to attempt to secure an affidavit from Mr Cheney but he proved to be most reluctant. The last words from him on that topic were that a draft affidavit in his possession was “more or less” accurate. The proposition (put to Mr Geary) that Ms Steele ought to have subpoenaed Mr Cheney regardless cannot be accepted; there was no obligation to do so and good reason not to call a witness who refused to co-operate in this respect.
  6. [59]
    Turning then to the competing arguments, the correct approach to deciding an application such as this is to first inquire whether the facts of which Ms Steele was unaware were material facts and, if so, whether they were of a decisive character within the meaning of s 31(2)(a) LAA. Then, it must be ascertained whether those facts were within the means of knowledge of Ms Steele (again, within the meaning of s 31(2)(a) LAA) before 25 January 2018. If those requirements are satisfied and there is evidence to establish a right of action, then the court has a discretion to extend the limitation period for 12 months from the time when the material fact was within the Ms Steele’s means of knowledge. The onus is on Ms Steele to bring herself within the terms of s 31 LAA and to make out a case for the favourable exercise of the discretion to extend.

Material facts of a decisive character?

  1. [60]
    Section 30(1)(b) LAA provides that material facts relating to a right of action are of a decisive character if, but only if, a reasonable person knowing those facts and having taken appropriate advice on those facts would regard those facts as showing:

“(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

  1. (ii)
    that the person whose means of knowledge is in question ought in the person’s own interest and taking the person’s circumstances into account to bring an action on the right of action.”
  1. [61]
    The expression “appropriate advice” in relation to facts means “the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts”: s 30(2) LAA.
  2. [62]
    Accordingly, in determining whether a newly learned fact has the necessary quality of decisiveness, an applicant such as Ms Steele “must show that without the newly learned fact or facts he [or she] would not, even with the benefit of appropriate advice, have previously appreciated that he [or she] had a worthwhile action to pursue and should in his [or her] own interests pursue it”.[11] As Connolly J said in Sugden v Crawford:

“Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s 30(b) are satisfied. Without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action.”[12]

  1. [63]
    In a similar vein are the following observations of the Court of Appeal in Honour v Faminco Mining Services Pty Ltd & Anor:

“It follows that the material fact is not of a decisive character if, before knowing that fact a reasonable person would know facts that that person would regard (having taken appropriate advice) as showing that an action would (ignoring the effect of limitation period) have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and that the potential claimant ought, in that person’s own interests and taking that person’s circumstances into account, bring an action on the right of action. However, if, without knowledge of that fact, a reasonable person, having taken appropriate advice, would not regard the facts known to that person as showing that an action would (ignoring the effect of the limitation period) have a reasonable prospect of success, and of resulting in an award of damages sufficient to justify the bringing of an action, then the fact is of a decisive character. Further, if, without knowledge of the material fact, a reasonable person, having taken appropriate advice, would not regard the facts known to that person as showing that the potential claimant ought in that person’s own interest and taking that person‘s own circumstances into account, bring an action, then the material fact is not of a decisive character.”[13]

  1. [64]
    Although as earlier stated (at [54]) there is room for argument about a number of the facts relied on by Ms Steele to support her application, it cannot be seriously doubted that she was unaware of the remedial action taken by John Holland and summarised above (at [10] and [11]) until the Coroner handed down his findings. Neither the John Holland report nor the Comcare report dealt with those changes to the system of work, PPE and training. Evidence of those various matters, if accepted, would point up deficiencies that are causally relevant to the “fact of occurrence of negligence… or breach of duty on which the right of action is founded” within the meaning of s 30(1)(a)(i) LAA. They are for that reason material to Ms Steele’s right of action.[14]
  2. [65]
    As already touched on, counsel for John Holland submitted that Ms Steele knew or had within her means of knowledge sufficient material facts of a decisive character relating to her cause of action to justify a decision to pursue a claim but, despite that, she made a conscious choice not to do so before the end of the limitation period. Adopting the expression used by Keane JA in Castillon v P & O Ports Limited (No 2), they submitted that there was a “critical mass of information” within Ms Steele’s means of knowledge well prior to 25 January 2018 which justified bringing the action.[15]
  3. [66]
    In support of those submissions, John Holland placed considerable reliance on the advice Mills Oakley gave Ms Steele to lodge a Notice of Claim under PIPA, the possible deficiencies in the system of work discussed during the 6 May 2010 conference, the parts of the John Holland report, the Comcare report and the PowerPoint presentation that suggested the deceased was not solely to blame, the content of a number of the remedial recommendations in both reports and the “reasonable chance” email from Ms Smith to Mr Cheney on 2 September 2010. Mills Oakley, they submitted, must have formed the view that there was a worthwhile cause of action and the “Coroner’s findings only went to a possible enlargement of those prospects”. Put another way, Ms Steele was already possessed of such facts as would be regarded by a reasonable person, possessed of the proper advice, to justify the commencement of the PIPA process and, if necessary, start a proceeding.
  4. [67]
    I cannot agree. To my mind, a reasonable person, taking appropriate advice, would not have appreciated that he or she had a worthwhile action to pursue (and should in his or her own interests pursue it) until the Coroner handed down his findings. Mills Oakley had not formed any view as to Ms Steele’s prospects of success and, as Mr Dickens explained, could not do so until, at the very least, the Comcare report was to hand. All that they were doing when they advised Ms Steele to lodge a Notice of Claim was counselling her to take a step to protect her interests in the event that she was later able to establish a right to compensation. The overwhelming sentiment from the John Holland report was that the deceased was the author of his own demise. Any proper assessment of Ms Steele’s prospects based on that report, even with the misgivings expressed by Mr Cheney during the 6 May 2010 conference, would have been bleak, and that would not have changed when the Comcare report was released. Furthermore, if on the facts known by Ms Steele or within her means of knowledge prior to the expiration limitation period, some sort of case could have been constructed against John Holland, it is to my mind impossible to see how – when account was taken of contributory negligence – Ms Steele could have derived any compensation from it (net of her share of the costs) in excess of what was always going to be a substantial refund to Comcare.[16]
  5. [68]
    I am satisfied that the facts discussed above (at [64]) are material facts of a decisive character within the meaning of s 31(2)(a) LAA.

Were the facts within Ms Steele’s means of knowledge earlier than 25 January 2018?

  1. [69]
    The next inquiry concerns whether, after 5 December 2011 and prior to 25 January 2018, Ms Steele knew or had within her means of knowledge those facts.
  2. [70]
    Ms Steele, I am satisfied, did not know any of those facts before the Coroner handed down his findings.
  3. [71]
    By s 30(1)(c) of the Act, a fact will be outside a person’s means of knowledge if, but only if:

“(i) the person does not know the fact at that time; and

  1. (ii)
    as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.”
  1. [72]
    This provision does not import a “reasonable person” test. As Keane JA explained in NF v State of Queensland:

“It is to be emphasised that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of “all reasonable steps”, or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, is the particular person who has suffered particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act.”[17]

  1. [73]
    More recently, in Hargans v Kemenes & Anor, Fraser JA made these observations:

“In HWC v Corporation of the Synod of the Diocese of Brisbane, upon which the appellant also relied, Keane JA observed that “it is not the policy of the courts in the application of s 31 of the Act to penalise an injured person who makes a reasonable decision to try to get on with life rather than a decision to litigate upon a questionable basis.” Keane JA referred also to the reference by Thomas JA in Pizer v Ansett Australia Ltd to the earlier observations of the court in Healy v Femdale Pty Ltd that:

“The question whether such a person has taken all reasonable steps to ascertain the nature and extent of the injury … depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability [or] effect upon her working capacity.

There is no requirement, actual or notional, to take “appropriate advice” or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the plaintiff to have done so. The answer to this then depends upon the primary facts concerning the level of seriousness of the plaintiff’s symptoms and of the warning signs which she undoubtedly had.”[18] [References omitted, emphasis added]

  1. [74]
    It follows that, when considering whether Ms Steele took reasonable steps to find out the facts before 25 January 2018, it is necessary to ask what could reasonably be expected from the actual person in the circumstances of Ms Steele.
  2. [75]
    For John Holland, it was submitted that Ms Steele did not act reasonably. She decided against advice not to lodge the Notice of Claim under PIPA, she did not maintain contact with her solicitors, she moved back to the United States without appropriate arrangements being in place to pursue a claim if that became possible, she failed to follow up the Coroner and, for that matter, Mr Cheney regarding any progress in that regard and she did not participate in the Inquest.
  3. [76]
    It is, however, important to consider Ms Steele’s circumstances. On the death of her husband, she became solely responsible for the support of her daughter. Her income was limited. She was still a relatively young woman and had been promised work back in the United States along with the support of her immediate family. She was having difficulty coping and dealing with her husband’s death whilst in Australia. She met with Mills Oakley to discuss her options with respect to the making of a claim against John Holland but decided against that course because, I find, she had been given to understand that any such claim would be highly questionable, if not hopeless. She informed the office of the Coroner of her pending departure from Australia and maintained the same email address she used while living in Australia. Her telephone number in the United States remained constant. When, on the handing down of the Coroner’s findings, Ms Steele became aware of the facts, she acted promptly and contacted her solicitors.
  4. [77]
    Among the circumstances I have just reviewed, is the circumstance that Ms Steele was given to understand, wrongly, that any claim against John Holland would be highly questionable. Such an understanding was imparted to her by what Mr Sasse did and said at their meeting in February 2010 and was later reinforced by what she read in the John Holland report after her return to the United States. Her impression and long-held belief was, I accept, that her husband was solely to blame for his own death. To the extent that evidence to the contrary emerged at the Inquest, the omission of that evidence from the report (assuming it was known by the authors at the time the report was written) and Mr Sasse’s explanation of it had the effect of misleading Ms Steele, and that will have been the case regardless of the authors’ or Mr Sasse’s motivation. That is also a relevant circumstance in the sense that, when asking what could reasonably be expected from a person in the circumstances of Ms Steele, one needs to ask what could reasonably be expected from a person who had been misled in that way.
  5. [78]
    Given these circumstances, I am by no means persuaded that it is reasonable to expect a person in the shoes of Ms Steele to have done more than she actually did to find out the facts. I am satisfied that the facts in question were not within Ms Steele’s means of knowledge any earlier than 25 January 2018.

Is there evidence to establish a right of action?

  1. [79]
    I am satisfied that there is now sufficient evidence for Ms Steele to establish a right of action within the meaning of s 31(2)(b) LAA.

Discretion

  1. [80]
    As will already be obvious, there are two aspects to John Holland’s argument against the exercise of the discretion in Ms Steele’s favour.
  2. [81]
    The first concerns Ms Steele’s decision against legal advice not to lodge a Notice of Claim under PIPA. John Holland submits that it would not be just to allow Ms Steele to resile from her decision so long after the death of her husband.[19] Whilst such a decision might in an appropriate case constitute a significant hurdle in the path of relief, I do not think this is such a case. Ms Steele’s decision not to lodge the Notice of Claim was based in substantial part on what I have now found to have been a depiction of the facts that was misleading in its effect.
  3. [82]
    The second argument concerns prejudice, that is to say, whether John Holland can obtain a fair trial if the extension of the limitation period is granted, having regard to the possibility of prejudice to it. In that regard, it cannot be doubted that there will be a degree of general (or presumptive) prejudice due to the passage of time since the fatality. The memory of witnesses will have faded, although many of those witnesses provided statements which will no doubt be employed to refresh their memories. There is also, John Holland has established, a degree of actual prejudice. At least one witness[20] is unable to be located (although he provided written statements in 2009 and 2016 and gave evidence at the Inquest) and there are a number of documents that can no longer be found. As against that, there is a considerable volume of material otherwise available to John Holland. Much of that was generated in its own investigation, some was gathered during the Comcare investigation and the balance emerged during the Inquest. I am satisfied that, on balance, a fair trial can still be secured by John Holland if an extension of the limitation period is granted.

Disposition

  1. [83]
    There will be an extension of the limitation period to accommodate the claim that is currently stayed.
  2. [84]
    Although the grant of an extension is an indulgence, Ms Steele’s application was actively opposed by John Holland. The appropriate costs order is that they be the costs of Ms Steele and John Holland in the claim.

Footnotes

[1]  The other members of the crew – Mr Aden Ellem and Mr Marcelino Laspobres – remained on the ground. They were joined by Mr Francis Novis, the project engineer, and Ms Erin Daley, a student engineer, after the conductor cart was lifted into place.

[2]  The deceased had a riggers glove on his other hand.

[3]  The employer responsible for conducting the training session was not John Holland.

[4]  At pages 16 and 17.

[5]  Similar exchanges are in evidence and reflect the same conclusion. See affidavit of Ms Steele, Exhibit AKS1, pages 274–276, 277–278 and 315.

[6]  As to which, see Hall v Don Faulkner Motors Pty Ltd & Ors [2013] QSC 331, [5]–[6].

[7]  See, for example, the arguments advanced in these respects by John Holland in its supplementary submissions.

[8]  Mr Smouha is referred to in the transcript and the submissions of counsel for John Holland as “Mr Sousa”.

[9]  See Jones v Dunkel (1959) 101 CLR 298, 312; St Clair v Timtalla Pty Ltd [2010] QSC 296, [42] and, on appeal, Aircraft Technicians of Australia Pty Ltd v St Clair; St Clair v Timtalla Pty Ltd [2011] QCA 188 [33]–[34].

[10]  See Payne v Parker [1976] 1 NSWLR 191, 201–202.

[11] Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, 333 citing Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, 23, 24.

[12]  [1989] 1 Qd R 683, 685.

[13]  [2009] QCA 352, [74]. See also Castillon v P & O Ports Limited (No 2) [2008] 2 Qd R 219, [34], [41]. State of Queensland v Stephenson (2006) 226 CLR 197, [29]–[30].

[14]  See s 30(1)(a)(i) LAA. And see Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234.

[15]  [2008] 2 Qd R 219, [34], [41].

[16]  Ms Steele received a lump sum payment of $386,744.40. This was repayable: Safety, Rehabilitation and Compensation Act 1988 (Cth), s 48.

[17]  [2005] QCA 110, [29]. See also Dick v University of Queensland [2000] 2 Qd R 476, [34]–[36].

[18]  [2011] QCA 251, [26].

[19]  See Hall v Nominal Defendant (1966) 117 CLR 423, 435; Ward v Wiltshire Australia Pty Ltd [2005] 51 MVR 1, [95]–[98].

[20]  Mr Hardie.

Close

Editorial Notes

  • Published Case Name:

    Steele & Anor v John Holland Group Pty Ltd

  • Shortened Case Name:

    Steele v John Holland Group Pty Ltd

  • MNC:

    [2020] QSC 37

  • Court:

    QSC

  • Judge(s):

    Burns J

  • Date:

    09 Mar 2020

Litigation History

No Litigation History

Appeal Status

No Status