Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Newson v Queensland Underground Coal Mining Services Pty Ltd

 

[2005] QCA 308

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Newson v Qld Underground Coal Mining Services P/L & Anor [2005] QCA 308

PARTIES:

JAMES EDWARD DENIS ANTHONY NEWSON
(applicant/respondent)
v
QUEENSLAND UNDERGROUND COAL MINING SERVICES PTY LTD ACN 080 008 760
(first respondent/first appellant)
WORKCOVER QUEENSLAND
(second respondent/second appellant)

FILE NO/S:

Appeal No 1399 of 2005

SC No 561 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

23 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2005

JUDGES:

de Jersey CJ, McMurdo P and Jerrard JA

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed, with costs to be assessed

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF DECISIVE CHARACTER – where limitation period applicable to cause of action in respect of one injury, in a series of four, had expired – where respondent relied on subsequent medical report as being first indication that first incident had caused permanent impairment or injury – where respondent’s affidavit evidence was that first incident had not caused any significant injury – where respondent made concessions during cross-examination that he regarded first injury as “significant” – where primary Judge found respondent was confused during cross-examination as to which injury he regarded as “significant” – where respondent had instructed solicitors to sue for damages in respect of all four injuries, including first, before receipt of medical report – whether a material fact of a decisive character relating to the cause of action in respect of the first injury was not within respondent’s means of knowledge until receipt of medical report – whether a person receiving proper advice would have commenced proceedings prior to receipt of medical report

Limitation of Actions Act 1974 (Qld), s 30, s 31

Personal Injuries Proceedings Act 2002 (Qld)

Paterson v Paterson (1953) 89 CLR 212, cited

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, cited

COUNSEL:

S C Williams QC, with G O O’Driscoll, for the first and second appellants

D V C McMeekin SC for the respondent

SOLICITORS:

Swanwick Murray Roche for the first and second appellants

Quinlan Miller & Treston acting as Town Agents for Rees R. & Sydney Jones (Rockhampton) for the respondent

  1. de JERSEY CJ: On the evidence before the learned primary Judge, the respondent suffered four wrenching type injuries to his right shoulder in the course of his employment.  They occurred on four separate occasions – 23 November 2001, 21 January 2002, 14 March 2002 and 6 January 2003.
  1. By application filed on 8 December 2004, the respondent sought an order, under s 31 of the Limitation of Actions Act 1974 (Qld), that the period of limitation in respect of an action for damages for the injury sustained on 23 November 2001 be extended to 17 December 2004.  The limitation period applicable to that cause of action expired on 23 November 2004, so that the respondent was only marginally out of time.  The application was heard on 31 January 2005.  The evidence before the primary Judge included oral evidence from the respondent, who was cross-examined.  In the result, His Honour made the order sought.
  1. The issue before the Judge was whether a material fact of a decisive character relating to the cause of action was not within the respondent’s means of knowledge until a date after 23 November 2003 (s 31(2)(a)). The respondent relied on his knowledge, acquired for the first time in January 2004, that the injury on 23 November 2001 had caused permanent impairment or injury. The respondent said he gained that awareness from a report of an orthopaedic surgeon, Dr James Curtis, dated 17 December 2003. Dr Curtis had examined the respondent the day before. In that report, the doctor expressed the view that the respondent had “capsular laxity of the right shoulder”, giving rise to a permanent five percent impairment of the right upper limb, “directly attributable to the incidents of the 23rd November 2001, 14th March 2002, August 2002 [sic] and 6th January 2003, being equally apportioned between each of those 4 incidents”. 
  1. In an affidavit, the respondent swore that until he read that report, he was not aware that the incident of 23 November 2001 had caused any permanent impairment. The Judge held that Dr Curtis’s view constituted the requisite material fact of a decisive character: His Honour was not satisfied “that a person receiving proper advice would have commenced proceedings prior to the receipt of the information contained in [Dr Curtis’s report]”.
  1. That was because of the limited apparent consequences of that first injury. Following the incident on 23 November 2001, the respondent had two rostered days off work. He returned to work on 26 November, and with the benefit of a doctor’s certificate was put on light duties until 3 December, when he was certified fit to return to full duties. Dr Foley examined the respondent on 4 December, and reported that his right shoulder was “in good order”. In a later report dated 4 February 2003, Dr Foley said that, as a result of his examination of the respondent on 4 December, he then (that is, on 4 December) concluded that the respondent had made “a full recovery” from the effects of the incident on 23 November 2001, with “full range of movements” and “good strength” in the shoulder. 
  1. As the Judge observed, “objectively speaking, in light of the medical evidence, it is unlikely that the compensation for one week’s light duties and some associated discomfort would have justified even the minimal extra time that litigating that claim would have caused” (cf. s 30(1)(b)(i)).
  1. The appeal arises from concessions made by the respondent during cross-examination that he regarded the injury sustained on 23 November 2001 as a “significant” injury. He agreed that he told Dr South, who prepared a report dated 20 February 2003, that the first injury was significant. He agreed with cross- examining counsel that all four injuries were significant, all contributing to the state of his shoulder. He accepted that when he lodged a claim under the Personal Injuries Proceedings Act 2002 (Qld) in June 2003, which listed all four injuries, he regarded the first as significant.  He went so far as to accept a composite description put to him by cross-examining counsel, that in his discussions with his solicitors, referring to the four occasions of injury, “all had equal importance, are all part of the overall picture of the state of your right shoulder”.
  1. The appellant’s position depended heavily on what the respondent meant to convey when he used the adjective “significant” – about which there is uncertainty. The respondent’s understanding of that term was not explored.
  1. On any view, the first injury bore significance in that it was the first in a sequence of similar injuries to the respondent’s right shoulder. Whether it contributed in a substantial way to the ultimate position, such that including it in a claim for damages would have been worthwhile, is another matter. The first reference to the significance of the first injury during the cross-examination centred on its having been the first in a sequence of similar injuries. Counsel referred to the first injury as the respondent’s “first significant injury”, that is, the first of four, with which the respondent agreed. Insofar as the respondent accepted that he described the first injury to others as “significant”, there was no basis for concluding that he was particularly addressing the issue relevant under the legislation, that is, whether a claim in respect of that injury would result in an award of damages sufficient to justify an action, and cross-examining Counsel did not ask him about that. As to the respondent’s acceptance of the contention that the four injuries had “equal importance”, that may be regarded as a reference to their “importance” as being contributors to the overall resultant state of the shoulder, and not necessarily as a concession that their particular respective contributions were equal. Also the composite form of what was put to the respondent should not be overlooked.
  1. Those matters aside, the primary Judge took the view that when the respondent referred in his evidence to the injury of 23 November 2001 as having been significant, he was confusing that incident with the next in the series, that of 21 January 2002.
  1. There was a substantial basis for questioning the assurance and reliability of the respondent’s oral evidence as to the significance of the first injury.
  1. In the first place, if taken literally, and assuming it was given with an appreciation of the relevant statutory criterion, that evidence stood in stark contrast to the respondent’s affidavit evidence. In the respondent’s original affidavit, for example, he swore, in relation to the initial injury, that he did not at that time believe that he had suffered any significant shoulder injury. He thought it was a minor muscle strain. He also said that at the time he first consulted a solicitor, on 28 May 2003, he believed the continuing symptoms in the shoulder had nothing to do with the incident of November 2001, but “rather the later incidents of August 2002 and 6 January 2003”.
  1. Secondly, the respondent betrayed confusion about the consequences of the first incident. In his first affidavit, the respondent said that he did not have any time off work as the result of that incident, and that he did not lodge an application for compensation because of it. He corrected that in an affidavit of January 2005, saying that after perusing the appellant’s records, he accepted that following the first incident he had a day off work. As to the medical certificates, he said they were apparently issued but he had no recollection of obtaining them.
  1. Thirdly, the respondent was shown to be confused about the relative positions of the first and second events. In his initial affidavit, for example, there was no reference to the January 2002 injury, although that would seem to have been an injury of some consequence. Also, in that affidavit, he swore that as at the time he first consulted the solicitor in May 2003, he was of the view that his shoulder problem had nothing to do with the incident in November 2001, “but rather the later incidents of August 2002 and 6 January 2003”. That was a mistake, corrected in his January 2005 affidavit, in which he confirmed that the reference to an incident in August 2002 should have been to the incident on 21 January 2002. Also, when examined by the orthopaedic surgeon Dr South in February 2003, the respondent apparently reported that his first significant injury had occurred on 30 December 2001, and his next and most significant injury on 1 February 2002. That history was entirely inaccurate.
  1. In this context, the primary Judge made these findings:

“The question which I have to consider is whether the significance of the injury of 23rd of November 2001, which Dr Foley had indicated had settled by 4 December, could have reasonably been ascertained prior to Dr Curtis’s report and whether or not, in the absence of Dr Curtis’s report, having taken appropriate advice, a reasonable plaintiff in the applicant’s position would have commenced proceedings in relation to it.  None of the other injuries are affected at this time by the limitation problem.

If I accept the evidence given by the applicant today literally, it would seem that he was aware of the significance of the injury notwithstanding the medical advice he had received and he would have sued for it even though, objectively speaking, in light of the medical evidence it is unlikely that the compensation for one week’s light duties and some associated discomfort would have justified even the minimal extra time that litigating that claim would have caused.

I am troubled about his evidence today, mainly because of the absence of any reference to the incident in January of 2002 which seems to have been much more significant in its immediate effects than the incident in November 2001.

I am not satisfied, having regard to the confusion which has surrounded that date, that despite what he said in his evidence, the applicant was really referring to the November and not the January incident.  They seem to have been confused in his mind for some time, such that he apparently reported to Dr South that it occurred in the middle of the period and in only one incident. 

Having regard to the medical evidence in relation to these claims, and to the doubts I have about whether the applicant was in fact referring to the November incident despite what he said in his evidence today, I am not satisfied that if he had taken appropriate advice he would have been advised ultimately to have commenced proceedings for that incident, at least without the further investigation that Dr Curtis’s report constitutes.”

  1. Counsel for the appellant submitted there was no scope for the finding that the respondent was confused in his reference to the first incident and its significance; and that because the respondent appreciated the significance of that first incident, Dr Curtis’s subsequent opinion lacked materiality for the purposes of the legislative test.
  1. In my view, the matters summarized above provide ample basis for the Judge’s conclusion as to the respondent’s having been confused, and diminish the weight of the impact of the respondent’s concessions in cross-examination – the weight, that is, for which the appellant contended.
  1. Mr Williams QC, who appeared for the appellant, emphasized the respondent’s evidence that prior to learning of Dr Curtis’s views, the respondent had instructed solicitors to sue for damages in respect of all four instances of injury. There is however no evidence that either the respondent, or his solicitors, or his union representative with whom he had spoken, had addressed the issue arising under the legislation, whether suing in respect of the first injury, as then understood, would result in “an award of damages sufficient to justify the bringing of an action on the right of action”. In fact, on the evidence before His Honour, the respondent told his solicitor “that he was of the belief that the [first] injury had completely resolved”. The only reason the solicitor included that injury in the notice of claim under the Personal Injuries Proceedings Act was lest it could “possibly bear” on his disability, not because of any view that a claim in respect of it would be financially worthwhile in terms of s 30 of the Limitation of Actions Act.
  1. In the end, these features confirm to me that this court should not gainsay the advantage of the primary Judge in his having seen and heard the respondent give oral evidence: the starkness of the contrast between aspects of the respondent’s oral evidence, taken literally, and the clarity of the contrary material presented with consistency in the affidavits; the manifest confusion of the respondent as to the dates of some of the incidents; and the improbability the respondent would have regarded, as “significant” – in terms of recovering damages by court action, an injury which had caused minimal disruption to him, especially in the context of the later more troublesome occurrences. It is trite to say that the primary Judge could reject, as unreliable, oral evidence from the respondent, while accepting his affidavit evidence. This was very much a case where the Judge’s assessment, based on the respondent’s oral evidence, was effectively definitive (cf. Paterson v Paterson (1953) 89 CLR 212), absent some glaring improbability – and there is none.
  1. I would order that the appeal be dismissed, with costs to be assessed.
  1. McMURDO P:  I agree with the Chief Justice.  The respondent had recently turned 27 when he gave evidence.  He was educated to Grade 12 at a local high school but had no tertiary training.  After leaving school he worked as a bartender and service station attendant before taking up mining with the appellant in the Crinum Mine at Emerald.  He gave mostly monosyllabic answers to many of the questions asked of him in cross-examination, usually assenting to the propositions put.  He agreed to matters which were objectively established as wrong by other unquestionably reliable evidence.  In these circumstances, for the reasons given by the Chief Justice, the learned trial judge was entitled to regard the respondent's oral evidence as confused and unreliable.  This was not a case where other evidence established that his Honour had too fragile a basis for reaching that conclusion:  cf State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq).[1]
  1. The appeal should be dismissed with costs.
  1. JERRARD JA: In this appeal I have had the benefit of reading the reasons for judgment of the Chief Justice, and the orders proposed by His Honour, and I respectfully agree with those.  I add that in the circumstances the appellant had apparently good grounds on which to contend to the learned trial judge that the respondent had knowledge of all material facts relating to the cause of action before 23 November 2003 and that they were of a decisive character by then.  This was because he had sworn a statutory declaration dated 28 July 2003 in which he described the incident occurring in November 2001, and stated that he had instructed his solicitors (prior to swearing the statutory declaration) to proceed with a damages claim in respect of his right shoulder injuries arising out of that and the other incidents described in that declaration.  The declaration itself asserts that it forms part of his Notice of Claim dated 26 June 2003 provided pursuant to the Personal Injuries Proceedings Act 2002. But knowledge of a right of action in respect of the November 2001 injury is different from the material facts relating to that right of action having a decisive character.
  1. The significance of those statements in the statutory declaration, and whether they established that the material facts relating to the November 2001 incident were of a decisive character by 23 November 2003 became a matter of evidence and cross-examination before the learned trial judge. The learned judge’s reasons make the point, as does the Chief Justice, that the statutory declaration gave an inaccurate description of the occasions on which the respondent had suffered injury. As the Chief Justice describes in his reasons, it then became a matter of evidence and argument as to the significance of the contents of that statutory declaration and notices by the respondent, and the effect of his answers in cross-examination. The learned trial judge came to a view about those which was open on that evidence, and as to whether the material facts were of a decisive character at the critical date; and as observed by the Chief Justice, this was very much the case where the assessment by the trial judge was effectively definitive of the result. In any event, the material facts appear to have taken on a decisive character when information became available that the November 2001 incident in fact did contribute to Mr Newson’s ultimate degree of disability. This became available when Dr Curtis gave that opinion in late December 2003, read by the applicant in early 2004.
  1. The respondent may not have had grounds for complaint had the findings and judgment gone the other way, but that was not the result. I agree that the appeal should be dismissed.

Footnotes

[1](1999) 73 ALJR 306, Gaudron, Gummow and Hayne JJ, [34] and [63];  Kirby J, [93] and Callinan J, [148] and [149].

Close

Editorial Notes

  • Published Case Name:

    Newson v Queensland Underground Coal Mining Services P/L & Anor

  • Shortened Case Name:

    Newson v Queensland Underground Coal Mining Services Pty Ltd

  • MNC:

    [2005] QCA 308

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, McMurdo P, Jerrard JA

  • Date:

    23 Aug 2005

Litigation History

No Litigation History

Appeal Status

No Status