- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Byrne v Wagner Investments Pty Ltd & Ors  QSC 76
Luke Patrick Byrne
Wagner Investments Pty Ltd (ABN 66 011 055 271)
Wagners Quarries Pty Ltd (ABN 80 092 751 669)
Wagners CFT Manufacturing Pty Ltd (ABN 90 099 936 446)
Supreme Court at Brisbane
14 April 2020
30 March 2020
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – WHAT ARE MATERIAL FACTS – where the applicant suffered a chemical burn during the course of his employment as concrete was being poured at a railway platform – where the injury resulted in a rare and serious bone infection which lodged in his spine and resulted in the fusion of two vertebrae – where the applicant has commenced proceedings to recover damages for injuries against his employer and against Wagners EFC as the manufacturer of the concrete – where the applicant’s limitation period expired on 26 October 2019 – where the applicant has applied for an extension of time in which to issue proceedings and leave to commence proceedings against the first, second and third respondents – where the applicant must show that a material fact of a decisive nature relating to the right of action was not within his means of knowledge until a date after the commencement of the year last preceding the expiration of the period of limitation for the action in accordance with s 31(2)(a) of the Limitation of Actions Act 1974 (Qld) – where the applicant seeks an extension of time against all the respondents to 13 February 2021 or in relation to the first and second respondents, at least until 18 April 2020 – whether a material fact in the context of this application is the identity of the parties against whom the right of action lies – whether the identity of the parties against whom the right of action lies was known prior to the critical date – whether the limitation period should be extended
Limitation of Actions Act 1974 (Qld), s 30, s 31
Personal Injuries Proceeding Act 2002 (Qld), s 43
Godden v State of Queensland (2016) 78 MVR 120
NF v State of Queensland  QCA 110
Randel v Brisbane City Council  2 Qd R 276
State of Queensland v Stephenson  HCA 20
Stephenson v State of Queensland  QCA 483
R Morgan for the Applicant
K Horsley for the First, Second and Third Respondents
Shine Lawyers for the Applicant
Moray & Agnew for the First, Second and Third Respondents
The applicant was injured during the course of his employment on 26 October 2016 as concrete was being poured at a railway platform at Oakey. He now applies for an extension of time in which to issue proceedings pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) in respect of the first, second and third respondents.
The applicant also applies for leave to commence proceedings against the first, second and third respondents pursuant to s 43 of the Personal Injuries Proceeding Act 2002 (Qld) (PIPA) with orders that the proceedings be stayed until the applicant complies with Chapter 2 Part 1 of PIPA.
The applicant seeks an extension of time against all the respondents to 13 February 2021 or in relation to the first and second respondents, at least until 18 April 2020.
On 26 October 2016, the applicant was employed as a concreter by Steve Walk Concreting (SWC) and had been working for several days at the Oakey Abattoir (OA) constructing a concrete ramp at a railway siding conducted by Queensland Rail (QR). Wagners was supplying Earth Friendly Concrete (EFC) to the site. He received an induction by QR in relation to working near a railway line. No other induction by any other entity was undertaken at the site.
The applicant states that he was standing inside formwork on site when EFC was poured into that formwork. His boot caught on a piece of reinforcing steel and the steel penetrated his boot but not his skin. He felt a sharp burning sensation on his foot. When he removed his boot he saw a damp patch on his sock. He then realised that he had a chemical burn on his foot as a consequence of concrete entering a hole in his boot. He states he washed his foot in water from a bucket which contained concrete residue as there was no fresh running water or any alkaline neutralising resources available. After washing his foot in the bucket, he put his sock and boot back on and continued working.
The applicant’s foot subsequently became infected and he was placed on antibiotics and given a medical certificate which indicated that that he was unfit for work for two weeks. He was subsequently called back to work by his supervisor in mid-November 2016 and the wound on his foot began to ulcerate from chaffing from his work boot.
In February 2017, the applicant was experiencing severe back pain and was admitted to hospital. He was ultimately diagnosed with the rare and serious bone infection discitis osteomyelitis caused by staphylococcus aureus entering the applicant’s bloodstream at the site of the burn. It then lodged in his spine and resulted in the fusion of two vertebrae. Orthopaedic surgeon Dr Leo Zeller’s opinion is that the source of the infection and likely entry point for the secondary infection is the wound the applicant suffered as a result of the chemical burn to his foot.
The History of the Proceedings
The applicant consulted solicitors in relation to compensation on 17 August 2017.
The applicant was notified by WorkCover by letter dated 27 November 2018 that Dr Zeller had assessed him as having a 23% whole person impairment.
A Notice of Claim for Damages was served on WorkCover on 13 February 2019 and was deemed compliant on 13 March 2019. Accordingly, his limitation period was preserved.
On 18 April 2019, the solicitors for WorkCover disclosed a number of documents including the applicant’s timesheets to his solicitors. In the midst of that large bundle was a document with a Wagners logo described as a purchase order. The company was identified as Wagner Investments Pty Ltd and the document referred to the supplier as Steve Walk Concreting and the shipping address as Wagners Quarries Pty Ltd. The buyer was said to be Peter Elwell at Wagner.com.au. The quantity was described as “one”, and the amount in question was an amount of $4,695.00. The date of delivery was 25 October 2016.
On 2 May 2019, the applicant’s solicitors requested information from WorkCover’s solicitors directed to information regarding the EFC. On 11 June 2019, the solicitors for WorkCover disclosed a safety data sheet for EFC with a print date of 25 August 2017 titled “Material and Supplier Information”. That identified the manufacturer as Wagners EFC Pty Ltd.
A notice of claim for damages under PIPA was served on Wagners EFC Pty Ltd on or about 8 July 2019. Part 18 of that Form outlined the reasons why it was considered that Wagners EFC caused the incident:
“18. DETAIL THE REASONS WHY THE INJURED PERSON BELIEVES THAT PERSON CAUSED THE INCIDENT
The reasons must particularly identify the step, process or the act/s of the person that caused the incident and the link to the named respondent (if different to the person named in response to Q 17):
- Producing a highly alkaline, caustic and toxic form of concrete with a high pH and hexavalent chromium [Cr(VI)] which after admixture with water and through mechanical abrasion produced an exothermic chemical reaction liable to expose workers to concrete burns.
- Failing to provide any or any adequate Material Safety Date Sheets (MSDS) or labels on the product to the Claimant’s employer to warn the employer or the Claimant of the high pH and toxicity of the concrete.
- Failing to alert the Claimant’s employer or the Claimant to the need to warn the Claimant of the risk of concrete burns from the high toxicity of the earth friendly concrete.
- Failing to warn the Claimant’s employer or the Claimant of the need for vigilance concerning the Personal Protective Equipment (PPE) to be used by the Claimant and the need for the employer to be responsible for the choice of, standard of and monitoring of the PPE due to the increased risk from the toxicity of the earth friendly concrete.
- Failing to warn the Claimant’s employer or the Claimant of the need to ensure that if the Claimant experienced a concrete burn that appropriate sanitation was to be immediately made available in the form of cold, clean water, a pH neutral or slightly acidic soap, the use of a mildly acidic solution such as diluted vinegar or a buffering solution to neutralise caustic residues on the skin.
- Failing to warn the Claimant’s employer or the Claimant that if wet concrete entered the Claimants [sic] boot the boot was to be regarded as contaminated and ought not to be worn further.
- Failing to minimise the Cr(VI) content or other toxicity of the concrete by using slag in place of or blended with clinker or by adding ferrous sulphate.”
WorkCover’s solicitors joined Wagners EFC Pty Ltd as a contributor on or about 12 July 2019 on the basis it was the manufacturer and supplier of the concrete. The Notice of Contribution by the applicant’s employer SWC was directed towards Wagners EFC and no other Wagners entity.
On 27 August 2019, the solicitors for EFC forwarded a letter to the solicitors for the applicant in the following terms:
“We confirm that our client considers itself a proper respondent with respect to particulars 1 and 7 of question 18 in your client’s notice of claim for the purposes of section 10 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA). Our client does not consider that it is a proper respondent to particulars 2 to 6 of question 18, and requests that these particulars be struck out of your client’s notice of claim. This is on the basis of our client’s role purely as manufacturer of the subject concrete with no day-to-day or contractual relationship with Mr Byrne or his employer.” (italics my emphasis)
On 11 February 2020, the solicitors for the applicant sent the following letter to the solicitors for EFC which read:
“Pursuant to section 27(1)(a) and section 27(1)(b) of the Personal Injuries Proceedings Act 2002 (PIPA), we ask that your insured provides us with the following information:-
- Please provide a list of the chemical constituents contained in the Environmentally Friendly Concrete (EFC) being supplied to STEVE WALK CONCRETING in Toowoomba on or about 26 October 2016 to include the specified amounts in each batch of concrete including the acidity and/or alkaline components in each ingredient.
- In relation to the chemical constituents contained in each batch of EFC Concrete being supplied to STEVE WALK CONCRETING in Toowoomba on or about 26 October 2016 please answer the following:-
Does each batch of EFC Concrete contain exactly the same levels of alkalinity and/or acidity?
Does each batch of EFC Concrete contain exactly the same measured amount of constituents?
Where is the fly ash sourced and what constituents are contained within the fly ash used for EFC Concrete?
Where is the blast furnace slag sourced and what constituents are contained within the blast furnace slag used for EFC Concrete?
Please provide copies of all documents relating to the constituents of the EFC Concrete.
- In terms of the testing of the EFC concrete being supplied to STEVE WALK CONCRETE in Toowoomba on or about 26 October 2016, please specify:-
Who is responsible for testing the concrete?
Where is the testing undertaken?
Please advise exactly what is involved in the testing of the concrete.
From testing of the product, have any risks been identified in relation to use of the EFC product?
Please provide any photographs or relevant documents relating to testing of the EFC Concrete.
- In relation to risks associated with the EFC Concrete being supplied to STEVE WALK CONCRETING in Toowoomba on or about 26 October 2016, please specify:-
What are the risks associated with the EFC product coming into contact with skin?
What precautions are recommended for persons using the EFC product in terms of PPE and/or measures for protection against skin contact?
What measures are recommended for persons coming into direct contact with the EFC product?
Please advise of any identified risks associated with using the EFC product.
Please provide any documents provided to suppliers and/or consumers in relation to risks and precautions when using the EFC product.
Please provide any documentation specifying risks associated with using the EFC product.”
In response to that request the solicitors for EFC disclosed on 13 February 2020 the document entitled “Material Safety Data Sheet” dated 10 December 2012. That document disclosed that EFC was manufactured and supplied by Wagners CFT Manufacturing and on page 2 stated:
“This product is more alkaline than normal concrete and thus has an increased risk of tissue damage. Highly alkaline and thus irritant and corrosive. The amount of tissue damage depends on the length of contact. Eye Contact could result in corneal damage and blindness. Skin contact can produce inflammation which is characterised by itching, burning, reddening or occasional blistering (chemical burn)...”
Also included in the document was the following toxological information:
“Contact with plastic EFC concrete will cause severe irritation and possible chemical burns, cement dermatitis and dry skin. EFC plastic concrete and mortars are strongly alkaline (pH of 13). Strong alkalines, like strong acids, are harmful or caustic to the skin. This may produce alkali burns.”
I observe that this information is different to the information previously provided in relation to the constituents of EFC and is a document prior in time to the one disclosed on 11 June 2019 which was dated post the incident. It also disclosed for the first time that EFC was manufactured and supplied by a different Wagners entity, namely Wagners CFT Manufacturing.
On 13 February 2020 a compulsory conference was convened. The affidavit of Ms Richards for the applicant is in the following terms:
“27. On or around the afternoon of 13 February 2020 a compulsory conference was convened in relation to this matter. It was during this conference that Moray and Agnew Lawyers confirmed that Wagner EFC Pty Ltd were in fact not the supplier of the EFC concrete and that it appeared from the Purchase Order that the EFC was supplied by Wagners Quarries Pty Ltd and that Wagner Investments Pty Ltd was likely to be the head contractor or principal on the worksite where the claimant was injured.
- On or about 13 February 2020 it was revealed by Moray and Agnew Lawyers that this information was to be found within a Purchase Order that existed and was in the middle of a large bundle of documents labelled ‘employment records’ consisting of the Applicant’s timesheets which was disclosed by email to my firm from Hede Byrne and Hall Solicitors and received by the Applicant’s solicitors on 18 April 2019. Exhibit ‘RER16’ to this affidavit is a true copy of the purchase order disclosed to Shine Lawyers on 18 April 2019.
- I believe that the inclusion of that Purchase Order in that disclosure at that time and in that context was probably inadvertent because it did not relate to any allegation made by the Applicant against the employer.
- On or about 13 February WorkCover’s solicitors confirmed for the first time their belief that the Oakey Abattoir loading ramp construction site was under the control of Wagner Investments Pty Ltd. It was only at that time that it was understood that a Wagners entity or entities had the dual characters of being the supplier of the EFC and having overall control of the site.
- Moray and Agnew also stated that the Material Safety Data Sheet dated 10 December 2012 which is part of Exhibit ‘RER13’ was the correct Material Safety Data Sheet for EFC, and that Wagner CFT Manufacturing Pty Ltd was a former name of Wagners EFC Pty Ltd.”
On 20 February 2020 the solicitors for WorkCover served a Contribution Notice on Wagner Investments Pty Ltd and on 25 February 2020 on Wagners Quarries Pty Ltd. I also note the content of the letter of 20 February 2020 from the solicitors for WorkCover to the applicant. In that letter, the solicitors outlined the name of the entity which had employed the applicant as Steve Walk Concreting. It also attached correspondence from the solicitors for Wagners EFC and advised:
“2. We are instructed that the employer simply provided labour to the job at the Oakey abattoir. This is corroborated by the email from Gearoid Connolly to the employer dated 21 September 2016 where Wagners invited the employer to quote to do works at the site. The employer is requested to supply labour to excavate the footing, level crusher dust, place plastic etc. and pour and finish concrete of the footing and top slab. Wagners supplied all of the materials for the job, including concrete, except the boxing which the employer provided.
The employer says that a Wagners entity, possibly Wagners Investments Pty Ltd, was the principal contractor on the site, and was therefore responsible for site inductions, the provision of first aid facilities and water infrastructure. This assumption is based on the information contained in the purchase order dated 25 October 2016.
- The employer did not purchase the concrete used at the site. The purchase order dated 25 October 2016 was for the supply of labour by the employer to Wagners Investments Pty Ltd on the site.
- The purchase order and email from Mr Connolly to the employer comprise the only documentation of the agreement between the employer and Wagners Investments Pty Ltd for the supply of labour by the employer at the site. There is no contract for the supply of concrete to the employer.
- No contract exists beyond the purchase order and email from Mr Connolly.”
Should the Limitation Period be Extended?
In addition to his claims against his employer for failing to provide a safe work system and against Wagners EFC for manufacturing the EFC and not providing warnings as to its properties to the applicant’s employer or the applicant, the applicant now wishes to pursue claims against Wagners Quarries Pty Ltd, Wagner Investments Pty Ltd and Wagners CFT Manufacturing Pty Ltd.
The applicant has clearly already commenced proceedings to recover damages for injuries against his employer and against the manufacturer of the concrete. The plaintiff’s limitation period expired on 26 October 2019. On 26 February 2020, the applicant’s solicitors served a PIPA notice of claim on the first and second respondents.
The applicant wishes to claim against all the respondents notwithstanding the fact that the relevant limitation period has expired. In order for the applicant to be successful in his application he must show that a material fact of a decisive nature relating to the right of action was not within his means of knowledge until a date after the commencement of the year last preceding the expiration of the period of limitation for the action.
The applicant argues that a material fact in the context of this application is the identity of the parties against whom the right of action lies, namely the first, second and third respondents and that 13 February 2020 is the pivotal date in this regard.
The respondent argues that it is clear that Wagners EFC Pty Ltd was not the contractor of the site or the supplier of the EFC, and argues that the applicant had no reason to think that this should be so, and did not take reasonable steps to find out whether it was so before the expiration of the limitation period. The respondent argues that the applicant could have pursued the claims against the first, second and third respondents before the limitation period expired but chose not to.
The respondents argue they had conveyed on 27 August 2019 that Wagners EFC was the manufacturer of the concrete and nothing more and that essentially the applicant should have made further enquiries as to the actual contractual arrangements at the abattoir and the identity of the head contractor at the site.
The respondent also argues that the “Purchase Order” bearing the Wagners logo previously referred to, recorded the existence of the first and second respondent and was a document which had been disclosed to the applicant by WorkCover in a bundle of documents in April 2019.
The relevant principles are set out in ss 30 and 31 of the Limitation of Actions Act 1974 (Qld):
For the purposes of this section and sections 31, 32, 33 and 34—
the material facts relating to a right of action include the following—
the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
the identity of the person against whom the right of action lies;
the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
the nature and extent of the personal injury so caused;
the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
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 the appropriate advice on those facts, would regard those facts as showing—
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
that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
a fact is not within the means of knowledge of a person at a particular time if, but only if—
the person does not know the fact at that time; and
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.
In this section—
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.
31 Ordinary actions
This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
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—
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
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.
This section applies to an action whether or not the period of limitation for the action has expired—
before the commencement of this Act; or
before an application is made under this section in respect of the right of action.”
As Counsel for the applicant has outlined in his submissions, for an applicant to succeed, it must prove three elements which were discussed by Macpherson J in Randel v Brisbane City Council. In essence those three factors are:
The existence of material fact or facts unknown before the relevant date;
The facts must be of a decisive character; and
All those facts were not within the applicant’s means of knowledge until after the relevant date.
As Justice Davies held in Stephenson v State of Queensland:
“Thus the question is not when all material facts came within the means of knowledge of the applicant. It is when all material facts of a decisive character relating to the right of action came within his means of knowledge.”
Significantly, it was held that one cannot have the means of knowledge of material facts of a decisive character at a time when those material facts do not have that character. The High Court ultimately held, on the appeal from the decision of the Queensland Supreme Court, as follows:
“The better view is that the means of knowledge (in the sense given by par (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‑pars (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.
Counsel for the respondent argues that the applicant always knew that there were other parties involved in the works at the abattoir and that there was possibly more than one of the Wagners companies involved with the site and the provision of the EFC. Accordingly, whilst the identity of those other parties may not have been known, the respondent argues that those facts were within the applicant’s means of knowledge and that the issue of the knowledge is assessed from the perspective of the applicant. Reliance in this regard is placed on the decision in NF v State of Queensland:
“It is to be emphasized [sic] 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 …”
The respondent argues that if Wagners EFC was not the head contractor of the site or the supplier of the EFC, then the applicant had no reason to think that this should be the state of affairs and took no reasonable steps to find out whether it was so before the expiration of the limitation period. It is also argued that if the material fact is that one of the respondents was the manufacturer of the EFC, Counsel for the respondent argues that that is not so, and there is no evidence that it is so. It argues that it is admitted that Wagners EFC Pty Ltd manufactured the EFC. The respondent argues that in truth, the applicant seeks to make new claims against new parties and argues that these are claims the applicant could have pursued before the limitation period expired but chose not to. The respondent argues that the applicant seeks to have these claims bought out of time because the parties he wishes to add have a similar name to the parties against whom he chose to claim.
The respondent also argues that the question of what amounts to all reasonable steps to find out a fact depends on the nature of the relevant fact and that where a simple enquiry is required, that failure is enough to amount to a failure to take reasonable steps. The respondent accepts that sometimes the relevant fact is more involved and could not be ascertained without legal assistance. Such a failure to ask may not amount to a failure to take reasonable steps. The respondent relies on Randel v Brisbane City Council in this regard and argues that the identification of the other parties involved in the site involved nothing more than asking either the employer or Wagners EFC Pty Ltd. Accordingly, it is argued that the decisive material fact was easily capable of ascertainment by the applicant if he had taken reasonable steps to do so.
The respondent therefore argues that the fact was within his means of knowledge in the relevant sense and that accordingly the applicant fails to satisfy the requirements of s 30(2)(b) of the Act. The respondent argues that it is not for the entity against which a claim has been advanced to nominate all others it may have perceived had an involvement. The respondent argues that the named party has an obligation to respond to the claim made against it as required by PIPA and that it has discharged this obligation in this regard.
The evidence indicates that the applicant was aware of and believed he had a cause of action against his employer and a cause of action against the manufacturer and/or supplier of the concrete due to its toxicity and the lack of any warnings. He claimed against both his employer SWC and Wagners EFC, the makers of the concrete.
It would seem clear on the material before me that the only visible entities other than the applicant’s employer SWC were the OA and QR. The applicant clearly considered that he was working for his employer who was a concreting contractor and that his employer was engaged by the abattoir or QR. I can see no basis to conclude as the respondent contends, that the applicant should have known that there was a head contractor in charge of the site who would have had overall responsibility in relation to the concreting works.
In my view the “Purchase Order” document relied upon to sustain that assertion is obscure and indeed in many ways misleading. There is very little information on that document, particularly if it is argued that it is a contract for the supply of labour by SWC to Wagner Investments Pty Ltd. Would a contract for the supply of labour by a number of workers over a number of days be accurately described as a purchase order for one item at a fixed price? It is difficult in my view to draw the inference from that document that Wagner Investments Pty Ltd was the head contractor for the works at the abattoir and that in that capacity had engaged SWC to supply labour to it. On the face of it I do not consider that the purchase order would alert the applicant to that possibility. I consider that it was reasonable in the circumstances for the applicant to believe that his employer had directly dealt with the client either OA or QR and that there was no head contractor. None was observed by him at the site, and none was mentioned by the employer.
Furthermore, after the claim was made against the employer, the employer did not direct attention to the proposition that someone other than Wagers EFC had supplied the concrete to the site or that any Wagners entity had any involvement at the site. Clearly there was another entity apart from Wagners EFC that had a role at the site particularly in relation to workplace health and safety, but even now, as the applicant points out, the employer’s letter is vague about the precise contractual arrangements.
It is also significant in my view that the second safety data sheet disclosed on 13 February 2020 is in the name of the third respondent, namely Wagners CFT Manufacturing Pty Ltd and not Wagners EFC.
Having considered the two documents, in my view the warnings expressed in the safety data sheet dated 2012 are in stronger terms. I can understand that there was no earlier enquiry by the applicant concerning any entity other than Wagners EFC as a manufacturer given that there was specific admission by Wagners EFC that they were the manufacturer.
There can be no doubt that initially the applicant only advanced a claim for damages against his employer and Wagners EFC, the entity it believed to be the manufacturer. Whilst Counsel for the respondent argues that the applicant and his lawyers knew the other parties were involved, in my view it is not sustained by the material before me. It would seem clear that his state of mind was that the person who was contracted to do the concreting work was his employer, and there was no indication that anyone, other than his employer, would have been in charge of concreting protocols on the site. It is not common ground in my view that the applicant knew that there was a head contractor.
I have had regard to the statements of principle as considered by Mullins J (as her honour then was) in Godden v State of Queensland as follows;
“ The plaintiff’s position is that, even if he knew, in general terms, that there could have been subcontractors at the site at the relevant time which were undertaking site works, he had no basis on which to make a damages claim against any subcontractor until he knew the identity of the subcontractor and that the second defendant claimed there was a relevant contract with such subcontractor. It is relevant that, even though the proceeding was commenced against the second defendant in May 2011, it was not until two and onehalf years later that the second defendant suggested to the plaintiff that the fifth defendant was the on site earthworks contractor prior to the accident.
 There is no dispute about the principles to be applied in an application under s 31(2) of the Act. The plaintiff bears the onus of proving he is entitled to an extension of the limitation period. Putting aside the limitation issue, the plaintiff must show there is evidence to establish the right of action against the fifth defendant. What that entails was explained in Wood v Glaxo Australia Pty Ltd  2 Qd R 431 at 434-435:
‘One way in which the onus has been expressed is that the applicant must demonstrate something like a prima facie case. The evidence need not at the stage at which the application is brought be in a form which would be admissible at trial and it may indeed be hearsay. It will not be possible to predict whether the plaintiff’s evidence will prevail at trial when it will be subjected to challenge and forced to confront the opposing evidence of the defendant, but it is probably accurate enough to say that an applicant will meet the requirement imposed by s 31(2)(b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case.’
 I have evaluated the evidence to establish the plaintiff’s right of action against the fifth defendant, taking into account the foreshadowed amendment to the statement of claim. Leaving aside the fifth defendant’s argument that it is fatal to the plaintiff’s claim that he has not complied with the MAIA, there is otherwise enough in the material to point to evidence that satisfies the test in s 31(2)(b) of the Act.
 How s 30 of the Act applies to the discharge by the plaintiff of the onus in respect of s 31(2)(a) of the Act was explained in State of Queensland v Stephenson (2006) 226 CLR 197 in the judgment of Gummow, Hayne and Crennan JJ at :
‘The ascription to material facts of the character of “decisive” looks to the response of an actor. It is here that the exegesis supplied by par (b) of s 30(1) comes into play. The court is to consider the response of “a reasonable person” in the manner explained in that paragraph. The particular claimant is to enjoy the advantage conferred by the provision in s 30(1) for the making of an extension order only by satisfaction of criteria which look to the response of a reasonable person. In this way, s 30(1) assists and controls an understanding of the compound conception in s 31(2).’
 The effect of the ‘compound conception’ or composite expression ‘material fact of a decisive character relating to a right of action’ was further explained by the plurality in :
‘The better view is that the means of knowledge (in the sense given by par (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-pars (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.’
 The plaintiff had taken all reasonable steps to find out if there were other parties against whom he should claim for damages for personal injury by serving his notice of claim under the PIPA on the second defendant and then commencing this proceeding against the second defendant. It is difficult to see how the plaintiff should have foreseen the need to ascertain whether there was any subcontractor undertaking on site earthworks leading up to the date of the accident, when the matter was not disclosed by the second defendant until after the failed mediation.”
Counsel for the respondent argues that no question was asked in relation to the identity of the party who was the head contractor. In my view, it is significant that Wagners EFC knew the true state of affairs and did nothing to dissuade the applicant of his view that the concrete was supplied to SWC as the employer, as evidenced by the letters of 13 and 20 February 2020.
I consider that a material fact in the context of this application is the identity of the parties against whom the right of action lies, namely the first, second and third respondents and that 13 February 2020 was indeed the pivotal date in this regard because it was on this date that the Material Safety Data Sheet dated 10 December 2012 was disclosed and it was the date that the fact of a likely identity of a head contractor was revealed.
I consider therefore that the applicant has satisfied the requirements of ss 30 and 31 of the Limitation of Actions Act and the limitation period should be extended to 13 February 2021 against all respondents.
I make orders in the terms of paragraphs 1(ii) and (iii), 2, 3 and 4 of applicant’s originating application as follows:
Pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) the period of limitation in respect of the applicant’s claim for damages for personal injuries sustained on 26 October 2016 be extended as against the first, second and third respondents to 13 February 2021.
Pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) the applicant have leave to commence proceedings against the first, second and third respondents.
The proceedings be stayed until the applicant complies with Chapter 2, part 1 of PIPA.
Costs in the cause.
 Affidavit of Luke Patrick Byrne filed 23 March 2020 at p 3 .
 Affidavit of Roxanne Richards filed 23 March 2020 (court doc 3) at p 3 .
 The Affidavit of Roxanne Richards filed 23 March 2020 states that the Notice was served on 13 February 2018 as does RER3 however RER 2 (which was being served) is dated 7 February 2019.
 RER16 to the Affidavit of Roxanne Richards filed 23 March 2020.
RER10 to the Affidavit of Roxanne Richards filed 23 March 2020.
 RER14 to the Affidavit of Roxanne Richards filed 23 March 2020.
RER15 to the Affidavit of Roxanne Richards filed 23 March 2020 (page 2 of the “Material Safety Data Sheet” dated 10 December 2012).
RER15 to the Affidavit of Roxanne Richards filed 23 March 2020 (page 5 of the “Material Safety Data Sheet” dated 10 December 2012).
 RER35 to the Affidavit of Roxanne Richards filed 3 April 2020.
 Limitation of Actions Act 1974 (Qld) s 31(2)(a).
 2 Qd R 276 at 277.
 QCA 483 at 5–6 .
State of Queensland v Stephenson  HCA 20 at 9 .
 QCA 110 at 11 .
  2 Qd R 276.
 (2016) 78 MVR 120 at 129.
- Published Case Name:
Byrne v Wagner Investments Pty Ltd & Ors
- Shortened Case Name:
Byrne v Wagner Investments Pty Ltd
 QSC 76
14 Apr 2020
No Litigation History