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Tregelles-Fox v WorkCover Queensland

 

[2010] QSC 288

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Tregelles-Fox v WorkCover Queensland [2010] QSC 288

PARTIES:

PAUL JOHN TREGELLES-FOX
(plaintiff)
v
WORKCOVER QUEENSLAND
(defendant)

FILE NO:

BS 12252 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

6 August 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

6 May 2010

JUDGE:

Daubney J

ORDER:

  1. The application is dismissed.
  2. I will hear the parties as to costs.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – GENERALLY – where the plaintiff has applied for an extension of the limitation period relating to his claim for personal injuries said to have been suffered in a workplace incident in 1979 – where the plaintiff submits that he ought to have an extension of time as a material fact of a decisive character only came within his knowledge when he received a specialist’s report in July 2008 – whether the limitation period ought to be extended

Limitations of Actions Act 1974, Qld, ss 30, 31

Uniform Civil Procedure Rules 1999 (Qld), r 428

Baillie v Creber [2010] QSC 52, cited

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited

Gillespie v Swift Australia Pty Ltd [2009] QCA 316, cited

Healy v Femdale [1993] QCA 210, applied

Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262 , cited

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

NF v State of Queensland [2005] QCA 110, cited

Spain v Dipompo Jacs Constructions Pty Ltd [2009] QCA 323, cited

Van der Merwe v Arnotts Biscuits [2010] QSC 145, cited

Watters v Queensland Rail [2001] 1 Qd R 448; [2000] QCA 51, cited

COUNSEL:

E Mac Giolla Ri for the plaintiff

R Morton for the defendant

SOLICITORS:

Ryan Lawyers for the plaintiff

Corrs Chambers Westgarth for the defendant

  1. The plaintiff has applied under s 31 of the Limitation of Actions Act 1974 (“LAA”) for an extension of the limitation period relating to his claim for personal injuries said to have been suffered in a workplace incident on 29 November 1979.  The extension sought is to 12 months after 21 June 2008.
  1. The plaintiff’s claim and statement of claim were filed on 4 December 2008. He seeks damages for “negligence and/or breach of contract” by his employer. In brief, the statement of claim alleges the following:

 

(a)That as at 29 November 1979 the plaintiff was employed by ANI Sargeants as a mechanic;

 

(b)That he was required to carry out his employment at construction sites and at his employer’s premises;

 

(c)That on 29 November 1979, while working at his employer’s Sherwood plant, he was instructed to undertake work on a Coles crane and, while doing so, a co-worker slewed the crane, causing the plaintiff to trip on welding leads and fall about 14 feet to the concrete floor;

 

(d)That as a result of this incident the plaintiff suffered an injury to his right knee and fractures to T9 and T10 vertebral bodies;

 

(e)That as a consequence of these injuries, the plaintiff has suffered loss and damage, including being wholly incapacitated for work since 1991; and

 

(f)That the injuries were caused by the negligence of, or breach of contract by, his employer.

  1. The plaintiff is clearly out of time for bringing this proceeding, but contends that he ought to have an extension of the limitation period because a material fact of a decisive character relating to his cause of action only came within his knowledge when he received a report from the specialist orthopaedic surgeon Dr Robert Cooke dated 21 July 2008. In that report, Dr Cooke reviewed the plaintiff’s medical history, including his prior symptoms of suffering degenerative back disease and said:

Discussion

 

While I have not reviewed the radiographs taken of his thoracic spine in January 1980, which are said to have revealed fractures of the T9 and T10 vertebral bodies, scout lateral views of his thoracic spine for a CT scan, taken on 12 March 2008, does reveal slight wedging of these 2 vertebral bodies which would be consistent with such an injury.  Further, the pattern of the spondylotic changes extending from T6 to T12 are consistent with having resulted from a flexural/compression injury to these segments of his thoracic spine in the accident of interest in 1979, almost 20 years ago.

 

It is also probable that the abnormal physical stresses placed on his deformed spine in the course of his employment over the years have contributed to these same spondylotic changes in his thoracic spine.

 

There can be little doubt that the fall of interest in 1979, resulted in a traumatic spondylosis along with aggravation of the pre-existent spondylolisthesis of L5/S1.  It is also probable that the physical demands of his employment have served to aggravate the pre-existing spondylolisthesis and developing spondylosis of L5/S1 since the accident resulting in the severe disabling symptoms of which he now complains.

 

The more recent development of his cervical spondylotic symptoms is not directly related to the accident of interest but is due to degenerative changes resulting from his enforced physical inactivity consequent on the effects of the accident of interest.

 

The possibility that his symptom complex could be due to some form of hereditary sensorimotor neuropathy such as the hypertropic neuropathy of Dejerine-Sottas has been considered.  This inherited neurological disease associated with kyphoscoliosis is characterized by the gradual degeneration of nerves which starts peripherally in the hands and feet and results in numbness, muscle weakness, loss of function and respirator dysfunction.  However based on the available evidence, including the absence of any respiratory problems, it is more likely than not that his current presentation can be attributed to the traumatic/degenerative pathology demonstrated above, rather than some form of hereditary sensorimotor neuropathy.  It would appear that the kyphoscoliosis afflicting his brothers at least, was not of any consequence, as each of them enlisted in the Armed Forces and progressed through the ranks to achieve commanding ranks in both the RAN and ARA.

 

Had Paul Trexelle-Fox not suffered the accident of interest, then he would have had an 85% chance of working through to retirement as a diesel mechanic without being troubled with any of the above symptoms, based on the natural history of his pre injury afflictions, his acquired physical fitness through his work and the fact that he had been pursuing his pre injury employment for 15 years without symptoms.

 

I consider the accident of interest that occurred on 29 November 1979 was responsible for his ongoing suffering and disability since 1991.  If one accepts that the fall resulted in crush or compression fractures of the T9 and T10 vertebra, it is evident that the fractures healed with minimal residual deformity which has had no long-term effect on his symptoms, function or mobility.  However, it is likely that the suspected associated injury to the intervertebral discs has and continues to contribute to his symptom complex.”  (emphasis added to highlight the particular passages relied on by counsel for the plaintiff)

  1. The plaintiff argues that, prior to the receipt of this report, he neither knew nor had the means of knowing that he had any prospect of proving that his back pain (and its sequelae) were caused by the 1979 fall.
  1. Section 31(2) of the LAA provides:

 

“(2)Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court –

 

(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action;  and

 

(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

 

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purpose of the action brought by the applicant in that court, the period of limitation is extended accordingly.”

  1. To understand the operation of s 31, it is also necessary to have regard to the “Interpretation” provisions in s 30:

 

30Interpretation

 

  1. For the purposes of this section and sections 31, 32, 33 and 34 -

 

(a)the material facts relating to a right of action include the following -

 

(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

 

(ii)the identity of the person against whom the right of action lies;

 

(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

 

(iv)the nature and extent of the personal injury so caused;

 

(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

 

(b)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 -

 

(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

 

(ii)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;

 

  1. a fact is not within the means of knowledge of a person at a particular time if, but only if -

 

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

 

(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. 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.”

  1. The defendant submitted that, to the extent that the advice from Dr Cooke might be regarded as a “material fact” (and in that regard, it would appear to fall within the ambit at least of s 30(1)(a)(v)), it did not possess the necessary “decisive character” in the sense that it did not convert a case which was not worthwhile in terms of liability into one that was.[1]
  1. A determination on this point requires the plaintiff to demonstrate that, without the newly learned facts, he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and ought in his own interests pursue it.[2]
  1. Moreover, it is for the plaintiff to demonstrate that the fact was not within his means of knowledge. Section 30(1)(c) makes it clear, in express terms, that this requires not only that the plaintiff did not know the fact, but also, as far as the fact is able to be found out by the plaintiff, he had taken all reasonable steps to find out the fact before he did.
  1. A number of relevant principles to the application of this section were essayed by McMeekin J in Baillie v Creber.[3]  His Honour made the following points:

 

(a)It is for the applicant plaintiff to establish that the material fact would not have been discoverable prior to the critical date.[4]

 

(b)An applicant who suffers significant pain and disability commencing with the subject incident, pain with which he eventually could not cope, and a disability sufficient enough to restrict his working ability and which forced him to seek work with a known sympathetic employer amounted to facts which “call for prudent inquiry to protect [his] health and legal rights”.[5]

 

(c)An applicant who has ongoing pain and disability affecting his employability ought to realise that he is in a position of vulnerability and needs to make appropriate inquiry.[6]

  1. McMeekin J referred to the following passage in the judgment of the Court of Appeal in Healy v Femdale:

 

“The question whether an injured person has taken all reasonable steps to ascertain the seriousness 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 to take “appropriate advice” or to ask appropriate questions if in all circumstances it would not be reasonable to expect the plaintiff to have done so.”

  1. Further, in considering the application of s 30(1)(c), it must be recalled that this subsection calls for an inquiry into the conduct of the particular plaintiff because 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 the particular personal injuries.[7] 
  1. Turning now to the evidence before me, I should say that I do not propose setting out in chapter and verse the history of the plaintiff’s medical treatment, attendances on numerous medical practitioners and WorkCover claims since 1979. Those matters are extensive. I will, rather, limit myself to adverting to those matters in the evidence which seem to me to be particularly salient to the questions for consideration.
  1. The plaintiff has sworn that he suffered this falling incident on 29 November 1979. He says that due to the pain he did not return to work for five or six weeks, and submitted an application for compensation for loss of income for the period he was absent from work. During the weeks after the incident, he had numerous attendances on Dr Jackson, who signed medical certificates for the purposes of the Workers’ Compensation Act 1916-1974.  A report lodged by the employer with the Workers’ Compensation Board on about 6 December 1979 records an injury having been suffered by the plaintiff on 29 November 1979.  The only injury referred to in this report, however, is bruising of the knee.  The statement of how the injury occurred is “bumped knee on corner of job while falling”.  The numerous medical certificates signed by Dr Jackson in November and December 1979 refer only to the plaintiff having suffered a knee injury caused by a “steel plate”.  This is, it must be said, completely consistent with the matters stated in the plaintiff’s own application for workers’ compensation dated 5 December 1979, in which the only injury referred to was bruising to the right knee, and in which he stated that the injury had occurred when he went to go around and tripped over a piece of steel “hitting my knee on corner of plate”.
  1. The last of the medical certificates issued by Dr Jackson appears to be dated 3 January 1980.
  1. The plaintiff says that he had persistent pain in his back, for which he attended on Dr Imecs, who referred him to Dr Russell Park for x-rays. The plaintiff says that he was “frustrated that Dr Jackson was not doing anything about the pain in my back”. In any event, Dr Imecs referred the plaintiff for x-rays. A report by Dr Russell Park, radiologist, dated 21 January 1980, stated:

 

THORACIC SPINE

 

There is a thoracic scoliosis convex to the right centered in the area of T5.  There is some early wedging of T9/T10 consistent with previous crush fractures.

 

LUMBO SACRAL SPINE

 

There is a grade 2 spondylolisthesis of L5 on S1.  The same disc space is narrowed.  I cannot clearly see the pars defects as there is considerable sclerosis in the region of the pedicles probably related to the stresses of the spoyndylolisthesis.  There is some further narrowing of the L4/L5 disc compared to levels above and there is upper lumbar tilt to the left.  The sacro-iliac joints are normal.

 

COMMENT:  crush fracture in the body of T9 and T10 as the patient is particularly tender in this region it may indicate it is recent.  Grade 2 Spondylolisthesis of L5 on S1.”

  1. The plaintiff swears that he discovered this report on about 10 March 2006 at his parents’ house when he was going through paperwork after his mother passed away.
  1. The plaintiff continued to suffer pain in his lower back after this time. It is clear, on the material before me, that the pain only got worse.
  1. The plaintiff says that in 1991 he ceased full time heavy work “due to dizzy spells commencing”. He said minor spells would be for 20 to 30 seconds while major spells would last for three to four days, and that during major spells he was unable to sit down, stand or walk. He said he would be nauseous and vomit, and was unable to eat or drink during the major spells. I observe in passing that there is nothing either in the plaintiff’s affidavit or in the medical evidence before me to connect these “dizzy spells”, which he says were the cause of him ceasing work, to his back pain. In any event, the plaintiff continued consulting with Dr Imecs. The fact that he continued to suffer pain to the back during this period is clear from the fact that further radiological reports were obtained, at least in 1994.
  1. The plaintiff says that in August 2002 he consulted Dr Hoang “as the pain [presumably the back pain] had further intensified”. Dr Hoang referred the plaintiff to Dr Fenwick, radiologist, for x-rays. Dr Fenwick’s radiological report of 2 September 2002 stated:

“LUMBAR SPINE

History:      Back pain.

Findings:     Grade 2 spondylolisthesis L5/S1 with advanced degenerative disc disease and vertebral remodelling.  There are underlying bilateral L5 pars defects.  There are moderate spondylotic changes at the L1/2 level.  The remaining lumbar discs are normal in height.  There is a shallow lumbar scoliosis convex to the right.

IMPRESSION;

CHRONIC PARS DEFECTS AT L5/S1 WITH ADVANCED SECONDARY DEGENERATIVE DISC DISEASE AND REMODELLING OF THE VERTEBRAL CONTOURS.”

  1. The plaintiff was then, in February 2003, referred to Dr Cooke via the Princess Alexandra Orthopaedic Outpatients Department.  He says that he first attended upon Dr Cooke in July 2003. 
  1. It is relevant, at this point, to note that the plaintiff also, on 8 July 2003, lodged an application for WorkCover, making a claim for spinal injury suffered from “a fall from the top of a Coles crane and heavy lifting”. The plaintiff provided the following supplementary details in his application:

 

“During the course of my employment there were many falls one in particular where I fell from the “house” (top of Coles) to the concrete floor landing on my right side and back ...  My condition was wrongly diagnosed as arthritis and therefore not [unintelligible].  It wasn’t until my consultation with DR ROBERT COOKE THAT THE PROBLEM WAS DIAGNOSED CORRECTLY.  I am now in URGENT need of surgery in an effort to correct or stabilise the condition.  Without surgery I will lose the use of my legs [unintelligible] the severe damage to my spine.”

  1. The plaintiff refers in his affidavit then to Dr Cooke obtaining an x-ray report from Dr Reasbeck, to inquiries made by WorkCover with Dr Imecs, and to being provided by WorkCover with a history of his claims on 14 August 2003. The plaintiff deposes that, at the time he was provided with this history of claims, he remained “unaware of the results and the report of the x-ray taken on 21 January 1980”.  He also refers to being referred by Dr Cooke to Dr Cameron, neurologist.
  1. Dr Cooke prepared a report about the plaintiff in September 2003, in which he diagnosed the plaintiff’s work-related conditions as:

 

“1.Lower thoracic cord compression?  cause.

 

“2.Aggravation of pre-existent bilateral pars interarticularis defects along with advanced degenerative spondylosis and osteoarthrosis of the L5/S1 segment resulting in a grade II spondylolisthesis of L5 on S1.”

  1. In this report, Dr Cooke recorded the “mechanism of injury” as stated by the plaintiff in the following terms:

 

“Mr Fox relates the onset of his symptoms to repeated injuries to his spine resulting from repetitive bending and heavy lifting in the course of his employment as a diesel mechanic working on cranes.  He says the injuries occurred over a period of time and he is unable to nominate any specific incident of injury in any detail.”

  1. The plaintiff swears in his affidavit that at the time he saw Dr Cooke he “was unable to nominate any specific injury in any detail to Dr Cooke. He says he did advise Dr Cooke that he had endured low back pain for the past 20 years or more.  The difficulty with this assertion by the plaintiff, of course, is that in the application for WorkCover dated 8 July 2003 the plaintiff had specifically referred to the alleged incident in which he fell from the crane onto the concrete floor.
  1. On 10 October 2003, the plaintiff’s claim for WorkCover was rejected, and the plaintiff sought a review of that through the Industrial Court.  On 2 November 2004, the plaintiff provided a supplementary statement to WorkCover in which he said that he had problems with his lower back and only wished to claim for that condition.  This statement also referred specifically to the fall from the Coles crane, and described, for example, the lack of room within the housing of the crane. 
  1. The material before me contains numerous medical and other reports relating to subsequent attendances by the plaintiff on medical specialists, particularly in connection with his pursuit of WorkCover claims and referral of his matter to the Orthopaedic Assessment Tribunal. In the decision of the Orthopaedic Assessment Tribunal dated 15 March 2005, it is stated, under the heading “History”:

“Mr Fox states that the symptoms began in 1979 with the onset of low back pain after he tripped and fell from the top of a crane.  He had fallen a distance of ten to twelve feet.  He was helped to his feet.  He attended a general practitioner but no x-rays were taken.”

  1. In a further decision of the Orthopaedic Assessment Tribunal dated 21 July 2006, under the heading “Work-Related Aspects”, it was stated:

“The Tribunal notes a complaint of a fall in 1979, and is not on the evidence submitted to it able to refute this claim.  The Tribunal therefore believes that Mr Fox suffered an aggravation of pre-existing constitutional and degenerative changes in his thoracolumbar and lumbar spine at that time.  The Tribunal however further believes this aggravation settled and later complaints of pain with a result of the natural progression of his underlying conditions.  Mr Fox describes other incidents (The Tribunal notes that in a statement that he believes he had 60-70 falls during his working life) and believes that these too may have caused temporary aggravations but no permanent impairment has accrued.”

  1. The second review by the Orthopaedic Assessment Tribunal came about because, on 15 March 2006, the plaintiff had sent a submission to WorkCover with fresh evidence for the Orthopaedic Assessment Tribunal to consider (including the x-ray from Dr Park from January 1980 which the plaintiff says he had only recently discovered). The plaintiff’s letter to WorkCover dated 15 March 2006, stated, inter alia, as follows:

“The x-ray of 21-01-80 revealed crush fractures to the body of T9 and T10 and concluded that they were most probably recent which would have been from the fall on 29/11/79.”

  1. This paragraph was quoted verbatim in a statement of reasons for decision sent to the plaintiff under cover of a letter from WorkCover dated 31 August 2006 by which it advised him that his application for loss of wages had been refused.
  1. It was then in July 2008 that the plaintiff obtained from Dr Cooke the report on which the plaintiff seeks to hang his hat for the purposes of the present application. I have quoted the “discussion” part of Dr Cooke’s report at length above. It is a long report. Notably, it is specifically a medical report addressed to the Registrar of this Court, pursuant to r 428 of the UCPR, and was clearly prepared on instructions of the plaintiff’s current solicitors.
  1. In his affidavit relied on before me, the plaintiff said:

“I have always endured pain in my lower back and been precluded from carrying out heavy manual lifting for a significant period of time.  Accordingly I have always thought and still do that my back disability relates to work fall that without the x ray report of Dr Park and the opinion of Dr Cooke I could not be specific about.”

  1. The plaintiff was cross-examined before me. In the course of cross-examination:

(a)he agreed that he had always remembered that he had had a fall off a crane in 1979; 

 

(b)when cross-examined on the statement he had made for WorkCover in  July 2003 that he was in urgent need of surgery that he was rather worried about the surgery and the prospect of losing the use of his legs;

 

(c)that when he saw Dr Cooke in 2003, he asked Dr Cooke whether his back injury could be work-related, and Dr Cooke said “Yes it was”, and this is why he subsequently made the WorkCover claim;

 

(d)that when he found the 1980 x-ray report in 2006 referring to fractured vertebrae that he realised or thought that the document was important in establishing that his back problems had been caused by the 1979 fall;

 

(e)the plaintiff reaffirmed that he always thought that his back problems related to his fall in 1979, that he had had pain in his back ever since that fall, and that he had never forgotten about the fall.

  1. It is uncontroversial that the plaintiff was examined by Dr Cooke on 4 July 2007, and again on 16 July 2008 prior to Dr Cooke preparing the subject medical report. The plaintiff confirmed in cross-examination that by July 2007 he had retained his current solicitors.
  1. Having reviewed this evidence, I find that the plaintiff has not satisfied me that the material fact for which he contends was not discoverable by him prior to his receipt of Dr Cooke’s report in 2008. Even if one assumes that he suffered the injury in the fall incident he alleges occurred in 1979 (which must be the subject of some doubt in light of the contemporaneous documents, but is nevertheless an assumption I will make in his favour in view of the contents of the x-ray report of January 1980), it is clear that he suffered increasing back pain over many years while at all times thinking that his back pains related to the 1979 incident. It is, to use the most neutral term available to me, curious that the plaintiff made a WorkCover claim in July 2003 which expressly related the back pain to the 1979 fall incident, yet he does not seem to have mentioned this to Dr Cooke. It is unnecessary for me to find whether that omission was deliberate or inadvertent. But, on any view, this plaintiff ought, acting reasonably, to have given Dr Cooke a full history, including of the 1979 incident, when he saw him in 2003. Moreover, and in any event, I consider that this plaintiff, acting reasonably, and having regard to the years of increasing pain suffered, could and ought have made an appropriate inquiry as to the causal link between the 1979 incident and his pain by 2003. There is simply no explanation as to why he did not do so. In any event, in the statement he made to WorkCover in July 2003, the plaintiff expressly related the fall incident to his back pain and referred to a consultation with Dr Cooke in which the doctor is said to have diagnosed the problem correctly and from which the plaintiff asserted the need for urgent surgery.
  1. In short, I consider that the material fact contended for by the plaintiff was within his means of knowledge as late as July 2003 when he first saw Dr Cooke.
  1. It follows from that conclusion alone that the present application fails.
  1. For completeness, I should record that, even if the plaintiff had been able to persuade me on that point, I would nevertheless not have exercised my discretion under s 31. I am quite satisfied, on the evidence before me, that if the action were now permitted to proceed the defendant would be in a position of untenable prejudice. I refer in this regard not only to the well-recognised prejudice which is caused by the passage of time[8] but to the actual prejudice which would be suffered by the defendant.  The defendant’s material identifies the following matters:

 

(a)In the context of there being a debate as to how the 1979 incident occurred, there are a number of identified witnesses who are now either unlocatable or unavailable.  The plaintiff alleges, for example, that he reported the injury to one M J King “who was employed by ANI Sargeants”.  This witness “M J King” has been unable to be identified.  Inquiries have been unable to locate such a person.  There appears to be no record of such a person ever being employed by ANI Sargeants, nor does the person who was then the manufacturing manager for ANI Sargeants, Mr Wakerly, recall anybody by the name of M J King working for that company. 

 

(b)It is also asserted that one P Carey was a witness to the incident.  Professional investigation agents have not been able to locate this person.  Mr Wakerly thinks he is dead. 

 

(c)Another necessary witness is the personnel officer, who completed the employer’s report which was lodged with the Workers’ Compensation Board.  That person, identified as B J Kelly, has not been able to be located.  Mr Wakerly did recall Mr Kelly, but said that he had not kept in touch with him since 1985. 

 

(d)Mr Wakerly also says that he has no recollection of an incident involving anyone falling from a crane.  Indeed, he does not recall whether or not there was a “Coles” crane at the Sherwood plant at all. 

 

(e)The identity of the person who allegedly “slewed” the crane is not known.  The ANI Sargeants business has not operated for many years.  It is now, in practical terms, quite impossible for the defendant to undertake any proper investigations of the circumstances of this alleged accident.

  1. Those matters, individually and collectively, give rise to irremediable prejudice and would have weighed against me exercising the discretion under s 31.
  1. The plaintiff’s application will be dismissed. I will hear the parties as to costs.

Footnotes

[1] See Watters v Queensland Rail [2001] 1 Qd R 448; [2000] QCA 51 per Thomas JA at [9].

[2] Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 per MacCrossan CJ at 333.

[3] [2010] QSC 52.

[4] At [46],  citing Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262 per Holmes JA at [48] and Gillespie v Swift Australia Pty Ltd [2009] QCA 316 at [20] – [21].

[5] By which his Honour paraphrased observations made in Healy v Femdale [1993] QCA 210.

[6] Referring to Spain v Dipompo Jacs Constructions Pty Ltd [2009] QCA 323, per Keane JA at [61].

[7] NF v State of Queensland [2005] QCA 110 per Keane JA at [29];  Baillie v Creber (supra) per McMeekin J at [32];  Van der Merwe v Arnotts Biscuits [2010] QSC 145.

[8] As described by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

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Editorial Notes

  • Published Case Name:

    Tregelles-Fox v WorkCover Queensland

  • Shortened Case Name:

    Tregelles-Fox v WorkCover Queensland

  • MNC:

    [2010] QSC 288

  • Court:

    QSC

  • Judge(s):

    Daubney J

  • Date:

    06 Aug 2010

Litigation History

No Litigation History

Appeal Status

No Status