Pickwick v Central Pack House Pty Ltd
[2005] QDC 461
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- Unreported Judgment
- Pickwick v Central Pack House Pty Ltd[2005] QDC 461
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Pickwick v Central Pack House Pty Ltd[2005] QDC 461
Pickwick v Central Pack House Pty Ltd[2005] QDC 461
DISTRICT COURT OF QUEENSLAND[2005] QDC 461 |
REGISTRY: ROCKHAMPTON
NUMBER: D71/2004
CHRISTINE WILMA PICKWICK | Plaintiff: |
and
CENTRAL PACK HOUSE PTY LTD | First Defendant: |
and
WORKCOVER QUEENSLAND | Second Defendant: |
REASONS FOR JUDGMENT
BEFORE HIS HONOUR JUDGE G.T. BRITTON S.C.
(DELIVERED THE 25th DAY OF FEBRUARY, 2005)
- [1]This is an application on behalf of the plaintiff Christine Wilma Pickwick (“the plaintiff”) for an order that the period of limitation for the plaintiff's action be extended pursuant to section 31 of the Limitation of Actions Act 1974 (“LA”).
- [2]The plaintiff claims to have been injured in an incident which occurred in the course of her employment with the defendant on the 3rd of December 1997.
- [3]The plaintiff was born on the 22nd of May 1947 and thus was 50 years of age as a the date of the alleged incident and is now 57.
- [4]The plaintiff's cause of action (if any) therefore expired on the 3rd of December 2000.
- [5]Section 31 (2) of the LA Act provides:
- “(33)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 one year after that date and there upon, for the purposes of the action brought by the applicant in that Court, the period of limitation is extended accordingly.”
- [6]The application was supported by affidavit of the plaintiff. In that affidavit she deposed inter alia:
- As a result of the incident she developed back pain and attended at the Bundaberg Hospital.
- From time-to-time she sought treatment in relation to her back and this included an attendance at the Bundaberg Hospital in November 1998.
- An X-ray report exhibited to the affidavit and dated 10th of November 1988 failed to reveal the presence of any significant damage to her spine.
- Her pain continued at varying levels but she managed to continue with her employment with the defendant until the end of February 2003.
- At that time she sought chiropractic treatment and was under the care of Dr Das, a general practitioner in Bundaberg.
- Dr Das referred her for radiological investigations of her back which included a lumbar CT scan undertaken on the 4th of July 2003.
- Until the CT scan was done on the 4th of July 2003 she was unaware that she had suffered any significant damage to her spine, in particular disc bulging and consequent degenerative disease at the L4/5 level which she could only attribute to the incident on 3 December 1997 when her back pain and sciatica first commenced.
- She consulted her solicitor on the 21st of July 2003 and in the course of that consultation was informed by the solicitor that subject to limitation issues she might have a valid common law claim against her former employer for damage caused to her spine in the incident on 3 December 1997.
- She had attempted to put up with her back pain since the incident in the course of her employment on the 3rd of December 1997 but the pain worsened and it was not until her attendances upon Dr Das and the results of the CT scan that she became aware that she had suffered serious damage to her spine which affected all aspects of her social and recreational life as well as her employment prospects.
- [7]It seems to me that the material fact of a decisive character relating to the right of action upon which the plaintiff relies was that she had suffered significant damage to her spine, in particular disc bulging and consequent degenerative disease at the L4/5 level attributable to the incident of 3 December 1997, and this came within her actual knowledge only as the result of the CT scan on the 4th of July 2003 and the consultation with her solicitor on the 21st of July 2003.
- [8]In those circumstances it seems to me that at the very latest the date when the material fact of a decisive character relating to the right of action came within the actual knowledge of the plaintiff was the 21st of July 2003.
- [9]It is argued on behalf of WorkCover Queensland (“the respondent”) that even if the material fact of a decisive character relating to the right of action did not come within the actual knowledge of the plaintiff until the 21st of January 2003 it was within her means of knowledge prior to that date.
- [10]In any event, pursuant to section 31(2) the limitation period may be extended by only one year after the date when the material fact of a decisive character relating to the right of action comes within the means of knowledge of the applicant. Therefore even if the material fact relied upon by the plaintiff was not within her means of knowledge until the 21st of July 2003, the limitation period could be extended only until the 21st of July 2004.
- [11]The plaintiff in fact filed a claim and statement of claim on the 24th of February 2004. The respondent argues that that claim and statement of claim are a nullity, having regard to the provisions of the WorkCover Act 1996 (“WC Act”) and that even if the limitation period were extended to the 21st of July 2004 the claim and statement of claim would still be a nullity, in other words that any extension of the limitation period could not operate nunc pro tunc.
- [12]It is convenient at this point to set out a chronology.
03-12-1997 | Plaintiff sustains injury |
27-11-2003 | Claimant's application for compensation received by WorkCover Queensland |
06-01-2004 | WorkCover advises plaintiff application for compensation rejected as being out of time |
29-01-2004 | Plaintiff's solicitors write to WorkCover requesting Conditional Damages Certificate |
10-02-2004 | Plaintiff's solicitors write to WorkCover enclosing Application for Damages Certificate |
26-02-2004 | Conditional Damages Certificate issued by WorkCover and independent assessment of permanent impairment arranged by WorkCover |
26-02-2004 | Claim filed |
04-03-2004 | Dr Paul Cotton provides report assessing the plaintiff as having nil impairment |
09-03-2004 | WorkCover Queensland served with claim |
12-03-2004 | WorkCover Queensland issues Damages Certificate to plaintiff |
19-03-2004 | Employer served with claim |
29-06-2004 | Plaintiff files application for extension of limitation period |
- [13]Chapter 5 of the WC Act relates to access to damages. Section 252(2) provides that all of the provisions of chapter 5 are provisions of substantive law.
- [14]Section 302 (which is contained in chapter 5) of the WC Act provides:
“The claimant may start a proceeding in a Court for damages only if the claimant has complied with -
- (a)the relevant division under part 2; and
- (b)part 5, other than as provided by section 304 and 305; and
- (c)part 6; and
- (d)section 303.”
- [15]It is clear that the plaintiff has not complied with part 5 or section 303 of the WC Act.
- [16]Section 308 of the WC Act provides:
“(1) A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 only if -
- (a)before the end of the period of limitation-
- (i)the claimant gives a notice of claim that is a complying notice of claim; or
- (ii)the claimant gives a notice of claim for which WorkCover waives compliance with the requirements of section 280; or
- (iii)a Court makes a declaration under section 304; or
- (iv)a Court gives leave under section 305; and
- (b)the claimant complies with section 302.
- (2)However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held.”
- [17]It is abundantly clear that before the end of the period of limitation none of the things referred to in section 308(1)(a)(i) to (iv) occurred.
- [18]Clearly the proper course for the plaintiff to have followed was to have made an application for extension of the limitation period and then, if successful in having the limitation period extended, complied with section 308(1) of the WC Act.
- [19]Clearly the plaintiff was not entitled to commence proceedings against her employer when she did. Section 302 of the WC Act is mandatory (Wicks v. Queensland University of Technology [2000] QSC 034 per Shepherdson J).
- [20]Even if the application for extension of the limitation period were successful, this could not have the effect of in some way validating the claim filed on the 26th of February 2004.
- [21]Prima facie, the respondent is entitled to have the claim struck out.
- [22]The plaintiff places some reliance upon a letter written by the solicitors for the respondent to the plaintiff's solicitors dated 25th of May 2004 which was in the following terms:
“We acknowledge receipt of your letter dated 17 May 2004.
We have now obtained our client's instructions in relation to the matter. We note that your client's claim pertains to an injury which allegedly occurred on 3 December 1997 and that your client is well outside the three year limitation period as prescribed by the Limitation of Actions Act 1974.
In the circumstances we now hold our client's instructions that if your client is determined to pursue a claim against her former employer for the injury which allegedly occurred on that date that your client must apply to the Court to seek an extension of the limitation period prior to our client giving any further consideration to the claim.
We further hold our client's instructions that unless your client files and serves an application to extend time under the Limitation of Actions Act within 14 days that our client will make its own application to the Court seeking a declaration to the effect that your client's claim is outside the limitation period and the present Court proceedings be discontinued.
In the circumstances we look forward to receiving your client's material as soon as possible.”
- [23]The plaintiff seems to be arguing that because in this letter the respondent insisted that the applicant bring the application for extension of the limitation period, the respondent is somehow estopped from arguing that the claim is a nullity.
- [24]The plaintiff relies upon section 262(4) of the WC Act which provides:
“If a conditional certificate is given, the claimant may start proceedings for damages for the injury but the proceedings are stayed until WorkCover makes the certificate unconditional and the claimant complies with parts 5 and 6.”
- [25]The plaintiff argues that the proceedings were commenced when the conditional certificate was to hand and that the defendant was clearly advised by the solicitors for the plaintiff that there was an intention to comply with the Act and to make an application for an extension of time in which to commence the action, at the proper time.
- [26]It is argued that the legislation allows for the very position that the plaintiff has placed herself in, contemplating that the proceedings be stayed until the plaintiff has complied with parts 5 and 6 of the WC Act.
- [27]The plaintiff's arguments, however, do not address the problem which the plaintiff has by virtue of section 308. Section 262 does not entitle the plaintiff to commence proceedings after the limitation period has expired. Only section 308 permits proceedings to be commenced after the end of the period of limitation and then only if the requirements of section 308(1)(a) are complied with.
- [28]I do not understand the letter from the solicitors for WorkCover, which I have set out above, to in any way encourage the plaintiff to believe that WorkCover in some way accepted that the claim was valid. There can be no question that WorkCover is prevented from relying on the provisions of the WC Act and arguing that the claim and statement of claim are nullities.
- [29]Having reached these conclusions, it is perhaps unnecessary for me to consider the merits of the application for extension of the limitation period. Nevertheless, it seems to me that there is no basis for granting an extension of the limitation period.
- [30]The plaintiff contends that the material facts which came within her means of knowledge within the period of 12 months prior to the issue of the claim are:
- “(a)That she had suffered significant damage to her spine, in particular disc bulging and consequent degenerative disease at L4/5; and
- (b)The fact of the occurrence of negligence or breach of duty on which the right of action is founded.”
- [31]Section 30(d) of the LA Act provides:
“(d) A fact is not within the means of knowledge of a person at a particular time if but only if:-
- (i)he does not at that time know the fact; and
- (ii)so far as the fact is capable of being ascertained by the person, the person has before that time taken all reasonable steps to ascertain the fact.”
- [32]The test of whether reasonable steps have been taken to ascertain a fact is an objective one but regard must be had to the applicant's background and understanding (Castlemaine Perkins Limited v. McPhee (1979) Qd R 469).
- [33]It is argued that the evidence shows that between the incident in December 1997 and July 2003 the plaintiff attended upon medical practitioners and allied health workers on numerous occasions and sought chiropractic treatment and was under the care of her general practitioner, Dr Das, but it was only following the CT scan in July 2003 that she became aware of the disc bulging and consequent degenerative disease at L4/5. The evidence, however, is that for the whole of that period the plaintiff was suffering from pain at varying levels.
- [34]I am not satisfied that the plaintiff did take reasonable steps to ascertain the nature and extent of her injury.
- [35]I am satisfied that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation.
- [36]So far as delay is concerned, this is a matter which may be taken into account in the exercise of the Court's discretion and an order may be refused where there is significant prejudice to the respondent. There is, however, an evidentiary onus on the defendant to raise any consideration telling against the exercise of the discretion (Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541).
- [37]There is no basis for refusing the application because of delay in the making of it.
- [38]In all of the circumstances, therefore, I am of the view that even if there were grounds to extend the limitation period, the making of such an order could not validate the claim filed on the 26th of February 2004 not in compliance with section 308 of the WC Act. Any extension of the limitation period would, in any event, be for a period expiring at the latest on the 21st of July 2004, and the plaintiff could not comply with section 308 of the WC Act.
- [39]The application is refused. I order that the claim and statement of claim filed on the 26th of February 2004 be struck out.
- [40]I invite submissions in relation to costs.