van der Berg v Key Solutions Group
[2021] QCA 157
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- Appeal Determined (QCA)
- van der Berg v Key Solutions Group[2021] QCA 157
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van der Berg v Key Solutions Group[2021] QCA 157
van der Berg v Key Solutions Group[2021] QCA 157
SUPREME COURT OF QUEENSLAND
CITATION: | van der Berg v Key Solutions Group & Anor [2021] QCA 157 |
PARTIES: | PETRUS STEFANUS VAN DER BERG (appellant) v KEY SOLUTIONS GROUP (A FIRM) (first respondent) WORKCOVER QUEENSLAND (second respondent) |
FILE NO/S: | Appeal No 10240 of 2020 SC No 768 of 2020 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Rockhampton – [2020] QSC 262 (Crow J) |
DELIVERED ON: | 30 July 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 February 2021 |
JUDGES: | Fraser and Mullins JJA and Boddice J |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – JUDGE MISTAKEN OR MISLED – GENERALLY – where the appellant made application for orders pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) and for declaratory relief under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – where the appellant’s application was dismissed – where the appellant appeals that decision – where the appellant submits the primary Judge erred in finding that the employer had made a full disclosure of all relevant material safety data sheets – where the appellant submits the employer wrongfully positively asserted that he was not exposed to chemicals that caused his injury – whether this positive assertion induced a misunderstanding as to the product list leading to the primary Judge considering irrelevant information in respect of the products and a failure to consider the opinion of what they did in relation to the appellant’s skin condition – where the appellant submits the primary Judge incorrectly found that the appellant became aware of a material fact that was within his means of knowledge on 5 April 2019, that date preceding the relevant date for extension, namely 3 August 2020, by more than 12 months – where the appellant further submits the primary Judge erred in finding there was no special reason for declaratory intervention – where the respondent submits that there is no basis for interfering with what was a discretionary judgment and also that there was no basis to adduce further evidence APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN ADMISSIBLE – where the appellant seeks leave to adduce further evidence, being documents he says he was not aware were in his solicitor’s possession until after judgment – whether the additional material sought to be adduced as evidence on appeal detracts from such conclusions falling within a proper exercise of discretion |
COUNSEL: | The appellant appeared on his own behalf with C M van der Berg assisting R J Douglas QC, with S J Deaves, for the respondents |
SOLICITORS: | The appellant appeared on his own behalf with C M van der Berg assisting Hall and Wilcox Lawyers for the respondents |
- [1]FRASER JA: I agree with the reasons for judgment of Boddice J and the orders proposed by his Honour.
- [2]MULLINS JA: I agree with Boddice J.
- [3]BODDICE J: On 28 July 2020, the appellant made application for orders pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (“Limitation of Actions Act”) and for declaratory relief under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”).
- [4]On 26 August 2020, the appellant’s application was dismissed.
- [5]The appellant appeals that decision. The grounds of appeal assert errors of fact and law, both in relation to the dismissal of the application pursuant to the Limitation of Actions Act and the dismissal of the claimed declaratory relief.
- [6]The appellant also seeks leave to adduce further evidence, being documents he says he was not aware were in his solicitor’s possession until after judgment.[1]
Background
- [7]The appellant was born on 20 February 1968. He is a boilermaker by occupation.
- [8]On 25 June 2012, the appellant commenced employment as a boilermaker with the first respondent. That employment required him to use certain chemicals.
- [9]The appellant alleges he consulted a general practitioner in relation to a rash he developed within two days of the commencement of his employment. He had consulted a different general practitioner on 4 April 2012 in respect of a rash to the palm of his left hand.
- [10]On 27 August 2012, the appellant was referred by his general practitioner to a dermatologist, Dr Noakes. The appellant consulted Dr Noakes on 6 December 2012. By that stage, the rash had spread to his other hand.
- [11]As part of the consultation, the appellant provided Dr Noakes with a list of chemicals said to have been used in his employment. That list had been obtained, at his request, from a representative of the first respondent.
- [12]On 27 June 2013, the appellant ceased active work with the first respondent. He subsequently attended upon Dr Noakes for treatment before making application under the WCRA for compensation. That application was accepted by the second respondent on 19 August 2013. However, a review sought by the first respondent resulted in that acceptance being set aside on 3 October 2013.
- [13]After having received a number of reports from Dr Noakes, to the effect that the appellant was suffering from irritant contact dermatitis, relating to mechanical and environmental factors, the second respondent rejected the appellant’s application for compensation on 5 November 2013. An application by the appellant, for a review of that decision, was rejected by the Regulator in March 2014.
- [14]On 15 April 2014, the first respondent terminated the appellant’s employment, having given the appellant a show cause letter in respect of termination of employment dated 25 March 2014.
- [15]The appellant did not lodge an appeal to the Queensland Industrial Relations Commission in relation to the rejection of his compensation application within the specified time period. However, on 25 January 2015, the appellant applied for an extension time within which to lodge such an appeal. That application was refused on 2 September 2015.
- [16]On 18 January 2019, the appellant sought information from the first respondent in relation to the use of chemicals in the course of his employment. The first respondent responded to that request by production of a list on 5 April 2019.
- [17]Subsequent to the provision of that list, the appellant obtained a report from Dr Adib, dermatologist, who opined that the likely cause of the irritant contact with dermatitis injury was the recurrent exposure over his employment period to irritating chemicals.
Application
- [18]On 3 August 2020, the appellant was granted leave, pursuant to s 298 of the WCRA, to commence proceedings against the first respondent for damages for personal injuries allegedly suffered over the period of his employment, despite non-compliance with s 275 of that Act.
- [19]The appellant sought orders, pursuant to s 31 of the Limitation of Actions Act, seeking an extension of the period of the limitation for action in respect of such personal injuries. Declaratory relief was also sought as, absent a declaration to the effect that the appellant had suffered an injury within the meaning of s 32 of the Limitation of Actions Act and that he was entitled to an assessment of permanent impairment under Chapter 2 Part 10 of that Act, the appellant was prohibited from bringing any common law personal injury claim in respect of those personal injuries, pursuant to s 237(5) of the WCRA.
- [20]The appellant contended that he was entitled to relief as the first respondent had unlawfully not disclosed information as to the chemicals used in his employment and had wrongfully positively asserted that he was not exposed to chemicals which may cause his injury; and, further, that he was prejudiced in his application by dyslexia and the absence of legal assistance.
Primary decision
- [21]The primary Judge found that the appellant had deposed to receiving a copy of the material safety data sheets used at the workshop in 2013, which he sent to Dr Noakes without reading himself. That being so, the relevant material safety data sheets had been disclosed by the first respondent to the appellant at an early stage in 2013.
- [22]The primary Judge further found that Dr Noakes had consistently opined that the appellant had suffered from irritant contact dermatitis, caused in the course of his employment. Accordingly, an assertion by the first respondent that the chemicals at its workshop could not have contributed to the appellant’s condition, did not support a conclusion there were special reasons to avail the appellant of declaratory relief rather than pursue his statutory remedies under the WCRA.
- [23]Similarly, the appellant’s dyslexia, in circumstances where the appellant had an ability to draft detailed and cogent submissions with the assistance of his wife, did not give rise to special reasons nor did the inability to obtain a lawyer willing to act on a no win no fee basis.
- [24]As there was no special reason for intervention, and the WCRA provided a detailed path to determine the rights of injured workers, which path had been followed by the appellant who did not appeal the decision of the Queensland Industrial Relations Commission, refusing an extension of time, it was inappropriate to make the declarations.
- [25]Finally, the primary Judge found that, even if it be accepted that the material safety data sheets for the chemical store at the workshop were not made available to the appellant until 5 April 2019, that date preceded 3 August 2020 by more than 12 months. Accordingly, there was no proper basis for success in an application for an extension of the three-year time limitation period.
Appellant’s submissions
- [26]The appellant submits the primary Judge erred in finding that the employer had made a full disclosure of all relevant material safety data sheets. The material safety data sheets for half the chemicals failed to comply with the Regulations as they did not contain Australian addresses and business numbers. Further, the employer failed to respond to requests for additional information, and thereby withheld information which would have assisted in the plaintiff’s treatment.
- [27]The appellant submits the employer wrongfully positively asserted that he was not exposed to chemicals that caused his injury. This positive assertion induced a misunderstanding as to the product list leading to the primary Judge considering irrelevant information in respect of the products and a failure to consider the opinion of what they did in relation to the appellant’s skin condition. The appellant was also prejudiced by the combination of his dyslexia and the conduct of WorkCover in the hearing and determination of his application. Procedural fairness was not awarded to him and no regard was had for the impact of his dyslexia.
- [28]The appellant submits the primary Judge incorrectly found that the appellant became aware of a material fact that was within his means of knowledge on 5 April 2019. The site assessment undertaken in 2019 did not include establishing which chemicals were in use between 2012 and 2013. The appellant only had knowledge of products he was exposed to during the time of his employment when he received the material safety data sheets and Dr Noakes’ notes. The appellant’s reading and writing disabilities affected his comprehension, placing him at a distinct disadvantage. It was only after the appellant knew the facts and had taken appropriate medical advice from Dr Adib that a material fact of a decisive character came within his knowledge.
- [29]The appellant further submits the primary Judge erred in finding there was no special reason for declaratory intervention. The primary Judge failed to take into consideration the manner in which WorkCover had reached its initial decision, the fact that the appellant had not been awarded procedural fairness and the concealment of information in the making of those decisions, including a breach of privacy and misuse of information.
- [30]Finally, the appellant submits the primary Judge erred in finding that s 237 of the WCRA had not been satisfied. That section was satisfied by the initial decision to accept the appellant’s application. Alternatively, the second respondent never assessed the application for compensation according to law.
Respondent’s submissions
- [31]The respondent submits that there is no basis for interfering with what was a discretionary judgment and also that there was no basis to adduce further evidence.
- [32]First, no complaint was made before the primary Judge to the effect that the material safety data sheets were misleading and did not comply with the relevant Regulations. In any event, the alleged noncompliance in respect of a failure to state the Australian address and business telephone number of the manufacturer and importer was irrelevant as the relevant chemicals and their constituent ingredients were identified in those sheets, which were a material safety data sheet for each of the products, was provided to the appellant by the first respondent, who provided it to his treating dermatologist in late 2012/early 2013.
- [33]Second, no complaint was made before the primary Judge of an alleged breach of the workplace health and safety obligations in relation to the provision of so-called noncompliant material safety data sheets. Nor was there a complaint as to an alleged breach of privacy. In any event, neither of those matters was relevant to issues for determination by the primary Judge.
- [34]Third, the additional documents sought to be adduced as evidence could have been obtained by the appellant for use below with due diligence and, in any event, add nothing of substance that could have affected the outcome at first instance.
- [35]Finally, the respondent submits that the primary Judge correctly found there were no special circumstances warranting declaratory relief and that there was no material fact of a decisive character not within the appellant’s means of knowledge, warranting an extension of time under the Limitation of Actions Act.
Consideration
- [36]Whilst the appellant contends the primary Judge erred in fact in dismissing each application, the evidence before the primary Judge amply supported the factual findings that the relevant material safety data sheets had been disclosed by the first respondent to the appellant at an early stage in 2013 and that Dr Noakes had consistently opined that the appellant had suffered from irritant contact dermatitis, caused in the course of his employment. Nothing in the further material sought to be adduced by way of additional evidence undermines those factual findings.
- [37]The appellant’s contention on appeal that the relevant material safety data sheets were noncompliant, as they did not contain relevant details in accordance with the Regulations, does not alter the significance of those findings. Apart from the fact that that contention was not advanced before the primary Judge, the alleged noncompliance was immaterial.
- [38]Those facts having been properly found, it was open to the primary Judge, in the exercise of his discretion, to conclude that any assertion by the first respondent that the chemicals at its workshop could not have contributed to the appellant’s condition, did not constitute special reasons for the granting of declaratory relief. Dr Noakes continued to opine that the appellant’s irritant contact dermatitis was caused in the course of his employment, notwithstanding the first respondent’s assertion to the contrary.
- [39]It was also open to the primary Judge to find, in the exercise of that discretion, that the appellant’s dyslexia, lack of legal assistance and the circumstances in which the appellant’s application for compensation had been determined, did not give rise to special reasons warranting a grant of declaratory relief. Notwithstanding the appellant’s dyslexia and lack of legal assistance, the applicant had, through the assistance of his wife, drafted cogent submissions. Again, nothing in the additional material sought to be adduced as evidence on appeal detracts from such conclusions falling within a proper exercise of discretion.
- [40]Similarly, the fact that the appellant did not lodge an appeal to the Queensland Industrial Relations Commission regarding the rejection of his compensation application within time, and had been refused an extension of time within which to lodge such an application, was properly a factor taken into account by the primary Judge in the exercise of his discretion as supporting a conclusion that it was inappropriate to grant the declaratory relief sought by the appellant.
- [41]Finally, the primary Judge did not err in his legal interpretation of s 31 of the Limitation of Actions Act nor in his conclusion that there was no proper basis for success in an application for an extension of the limitation period.
- [42]To obtain such an extension, the appellant had to first establish that there was a material fact of a decisive character not within his means of knowledge on a date more than 12 months prior to the extension date. The primary Judge’s finding that the appellant had access to the relevant material safety data sheets as early as 2013, together with the finding that Dr Noakes had consistently opined that the appellant had suffered from irritant contact dermatitis caused in the course of his employment, supported a conclusion that there was not a material fact of a decisive character not within the appellant’s means of knowledge on a date no more than 12 months from the extension date.
- [43]Further, the primary Judge properly found that, even if he accepted that the material safety data sheets were not made available to the appellant until 5 April 2019, that date preceded the relevant date for extension, namely 3 August 2020, by more than 12 months.
- [44]The material safety data sheets provided to the appellant by the first respondent gave the necessary details, sufficient to inform the appellant of the chemicals used in his employment. Those sheets, in conjunction with Dr Noakes’ opinion that the appellant suffered from irritant contact dermatitis caused in the course of his employment, sufficiently apprised the appellant of material facts, such that a reasonable person in the appellant’s position was aware of the relevant material facts warranting the institution of proceedings at a time earlier than a date no more than 12 months from the date sought by way of extension.
Conclusions
- [45]The appellant has not established any factual or legal error in the primary Judge’s decision to dismiss his application. The further material sought to be adduced as evidence on appeal does not alter that conclusion.
Orders
- [46]I would order:
- (1)Leave to adduce evidence on appeal be refused.
- (2)The appeal be dismissed.
- (3)The parties provide written submissions as to costs, limited to three pages, within fourteen (14) days.
Footnotes
[1]Transcript 1-6/25 – 1-7/10.