Macdonald v Maryborough & District RSL & Citizens Memorial Club Inc.
[2006] QDC 189
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- Macdonald v Maryborough & District RSL & Citizens Memorial Club Inc.[2006] QDC 189
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Macdonald v Maryborough & District RSL & Citizens Memorial Club Inc.[2006] QDC 189
Macdonald v Maryborough & District RSL & Citizens Memorial Club Inc.[2006] QDC 189
DISTRICT COURT OF QUEENSLAND
CITATION: | Macdonald v Maryborough &District RSL & Citizens Memorial Club Inc. [2006] QDC 189 |
PARTIES: | Nicholas John MacDonald (Applicant/Plaintiff) v Maryborough & District RSL &Citizens Memorial Club Inc. (Respondent/Defendant) |
FILE NO/S: | 1408/06 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 30.06.06 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21.06.06 |
JUDGE: | Forde DCJ |
ORDER: |
|
CATCHWORDS: | APPLICATION TO EXTEND TIME – leave to proceed when limitation has expired – material fact of a decisive nature – relationship with WorkCover legislation - Limitation of Actions Act 1974, s 31 UCPR r 13 WorkCover Queensland Act 1996 ss 302, 305, 303, 308 Beaver v State of Queensland [2001] QCA 21 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Byers v Capricorn Coal Management Pty Ltd (1990) 2 Qd R 306 Goerecke v State of Queensland [2004] QDC 273. Graham v WorkCover Queensland unreported decision of 14 April 2004 No.1266 of 2004 Hamling v Australia Meat Holdings Pty Limited [2005] QCA 415 Hintz v Workcover Queensland [2006] QSC unreported decision of Muir J dated 23.06.06 Jackson v Claric Ninety Five Pty Ltd [2005] QSC 374. Mason v Toowoomba City Council [2005] QCA 45 Moriarty v Sunbeam Corporation Limited (1988) 2 Qd R 325 Roberts v ANZ Banking Group Limited [2005] QCA 470 Seery v Mt. Isa mines Ltd (2000) QSC 016 Wilkinson v Consolidated Meat Group Pty Limited [2005] QCA 432 West v Anglo Coal (Capcoal Management) Pty Ltd [2005] QSC 162 |
COUNSEL: | Mr Given for the Applicant/plaintiff Mr McDougal for the Respondent/Defendant |
SOLICITORS: | Morton & Morton Solicitors for the Applicant/Plaintiff McInnes Wilson Solicitors for the Respondent/Defendant |
Introduction
- [1]The applicant/plaintiff Nicholas John MacDonald[1] was injured when he slipped on wet concrete at his place of employment and suffered personal injuries. The accident occurred on 29 August 1999. This action was commenced on 11 August 2005, outside the three year limitation period. The present application seeks to extend the time in which to sue to 12 August 2005.[2]
- [2]On 11 July 2005, the applicant and his employer, Maryborough & District RSL & Citizens Memorial Club Inc.,[3] consented to an order in this Court for leave to commence proceedings pursuant to s 305(1) of the WorkCover Queensland Act 1996.[4] The action was then commenced on 11 August 2005. The problems of this approach were pointed out to both sides, and written submissions were invited. Counsel for the applicant asked that the application proceed pursuant to rule 13 of the UCPR. The effect of that, it was submitted, would be to disregard the commencement proceedings as they may be a nullity. [5] In Goerecke’s case, the claimant failed to wait for the six months to expire before commencing action, having obtained leave under s 305 of the WorkCover Act to proceed.
- [3]The quantum of the claim in the pleadings filed was $426,451.20. This amount exceeds the jurisdiction of the District Court. Counsel for the applicant asked for leave to amend the quantum to $250,000.00 as from 11 August 2005. No objection was taken by the respondent to this course. Also, no objection was taken on this jurisdictional point to the order of 11 July 2005, as the parties had consented to that order.
Issues
- [4]The main issue on this application is did the applicant become aware of a material fact of a decisive nature on 12 August 2004 when he read the reports of Doctors Alison Reid and Peter Millroy, necessary to allow him to extend the limitation period under s 31 of the Limitation of Actions Act 1974? The other issue relates to whether an order under s 305 of the Act was of any effect given that it was made after the limitation period had expired and before any extension was sought. Sections 302, 303 and 308 of the Act become relevant on this issue.
Relevant Legislation
- [5]Section 30 of the Limitations of Actions Act 1974 provides as follows:
- (a)the material facts relating to a right of action include the following:
…
- (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)the material facts relating to a right of action are of a decisive character if but only if a reasonable man 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 his own interests and taking his circumstances into account to bring an action on the right of action;
- (c)“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, as the case may require;
- (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 him, he has before that time taken all reasonable steps to ascertain the fact.”
Factual Background
- [6]There is sufficient evidence to establish a right of action. This point was not disputed by the respondent. After the incident, the applicant saw some six doctors, including an orthopaedic surgeon. The applicant admitted in cross examination that as at 21 August 2002,[6] the :
- had been told that he should see a solicitor
- was aware that his fall was probably the fault of his employer
- knew that his shoulder has been injured in the fall
- knew that the shoulder injury was affecting his ability to work. In fact he stopped work on 17 July 2002 because of the injury. At that time he was working as a tordoner for Burnett Environmental Management and the nature of the work aggravated the symptoms to his left shoulder.
- [7]In his affidavit,[7] the applicant asserts that he had suffered symptoms in the nature of pain in his cervical and thoracic spin, headaches, pins and needles in his left shoulder and left arm and pain in his shoulder and arm. He says that three doctors told him that these symptoms were a result of the injury to the cervical spine. When the applicant saw Doctor Robinson in July 2002, he was told that his symptoms were related to his left shoulder. He made an application for compensation on 21 August 2002, and as a result was sent to see Doctors Millroy and Reid. His application for WorkCover was rejected. He says that he was not told by either doctor about the seriousness of his injury. He received his WorkCover file on 12 August 2004 and he then became aware that:[8]
“(i)I had a permanent injury which needed a proper management strategy put in place to have me treated, rehabilitated and integrated back into the workplace;
(ii) The strengthening exercises probably would not be adequate;
(iii)An operation to repair the shoulder may be needed.”
- [8]The applicant then went to see his present solicitors. He was then advised that he could make a common law claim. He states that he was unaware of that right until then.
Cases relied upon by the Applicant
- [9]
- that in view of the evidence of the pain she suffered and the medical treatment she received it was more likely than not that the appellant was aware that there were chronic degenerative changes to her lumbar spine, presumably before 25 June 1998;
- that her chronic back pain for a number of years with occasional severe pain would have led a person in her position reasonably to make inquiries of a medical practitioner, presumably as to the effect of her chronic condition of her earning capacity; and
- that consequently her likely incapacity to continue in her job was within her means of knowledge before 25 June 1998.
- [10]The citation of this case accords with the duty of counsel to cite relevant cases to the court even though it may not be in the client’s best interest. The present applicant falls into a similar category to the appellant in Beaver’s case. I am satisfied that the applicant ought to have appreciated that by July 2002 his capacity to perform work was so reduced that he was unable to continue in that employment. Therefore, that fact or the risk that he could not do other work were material facts of a decisive character known to him at that point.
- [11]In another case referred to by counsel for the applicant,[11] the applicant did not appreciate the causal connection between the activity at work and her symptoms. She had not been informed by the doctors she had seen. It was found that it was reasonable for her not to seek another opinion. In fact, the Claims Liability Officer had rejected her claim for compensation as not work related. The applicant had been told that it was a pre-existing degenerative condition. That case can be distinguished from the present case. The reason given for rejection of the claim in the present case was that it was not made within 6 months. There was no suggestion that it was not work related.
- [12]The applicant in the present case had been told to see a solicitor. His claim was rejected by WorkCover on 16 October 2002.[12] He was told that the application had not been lodged within 6 months. He was aware as at July 2002 that his shoulder problems were related to the incident at work in 1999 and that it prevented his working. Was it unreasonable for him not to consult a solicitor at that stage to determine whether he had a common law claim, given that his claim for worker’s compensation had been rejected? In my view, the applicant was aware that his disability prevented him from working and that it was the fault of his former employer, the respondent. In that event, he ought to have sought legal advice. He admitted in cross examination that he had been told to seek advice. In my view, he failed to take all reasonable steps to ascertain that he had a good cause of action against the respondent.
- [13]Another case relied upon by the applicant on the limitation point was Byers v Capricorn Coal Management Pty Ltd.[13] That case is readily distinguishable. The applicant in that case was advised that it was necessary to change employment because of the extent of the injury. That fact was held to be a material fact of a decisive character. As far as the present applicant was concerned he gave up work in July 2002 because of his ongoing symptoms.
- [14]Byers’ case refers to a principle found in Moriarty v Sunbeam Corporation Limited,[14]which is apposite in the present case:
“In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. That is what the application of the test of decisiveness under s. 30(b) comes down to: McTaggart v The Workers’ Compensation Board of Queensland (1983) 2 QdR 19.23.24 and Do Carmo v. Ford Excavations Pty Ltd (1984) 154 CLR 234, 251 per Deane J.”
- [15]In the present case the applicant has failed to discharge the onus of proof that he did not appreciate, even with the benefit of appropriate advice that he would have had a worthwhile action to pursue without the reports of Doctors Millroy and Reid received in August 2004.
Respondent’s submissions
- [16]The matters raised in cross examination by counsel for the respondent have been referred to.[15] The case relied upon is Jackson v Claric Ninety Five Pty Ltd.[16] It refers to the cases of Byers, McTaggart and Moriarty. In other words, Douglas J. agreed with the submission that “even without the information relied upon now as the material fact of a decisive character, any competent solicitor would have been of the view that a substantial award of general damages would have been obtained …”.[17] A similar position exists in the present case. A competent solicitor would have advised the applicant as early as July 2002 that he had reasonable prospects of success and that his likely damages were sufficient to justify the bringing of an action against his former employer.
- [17]The respondent also relied upon prejudice due to the lapse of time as it may affect the availability and quality of the evidence.[18] In view of the applicant’s failure to establish that a material fact of a decisive nature was not known to him up until August 2004, it is not necessary to determine this issue of prejudice.
Order granting leave to proceed on 11 July 2005
- [18]It has been submitted by the applicant that s 305 of the WorkCover Act does not make any provision prohibiting such an application after the limitation period has expired. It expired on 29 July 2002. No order was made by Botting DCJ on 10 August 2005 setting a time in which proceeding should be commenced. Such an order was made by McGill DCJ in Graham v WorkCover Queensland.[19] It is submitted by the respondent that s 303 regulated the date when the proceedings can commence, relevantly, six months after an order under s 305.
- [19]It is accepted that an application under s 305 where the limitation period is about to expire, triggers an extension of the limitation period whilst the claimant complies with the WorkCover Act.[20] . The Chief Justice with whom Mackenzie J. agreed further stated:
“But the grant of leave must occur before the limitation period expires (s 308(1)(a)(ii)). Since leave under s 305 is “subject to s 303”, a claimant is obliged to commence the proceedings no earlier than six months after the grant of leave (s 303(a)(iii). None of this bears on a case where, notwithstanding non-compliance with the pre-litigation requirements of the Act, the claimant commences a proceeding in the absence of waiver under s 280A or a grant of leave under s 305; and it does not support the ample construction of s 305 for which the respondent contended.”
- [20]The construction urged upon the Court of Appeal was that s 305 encompasses a grant of leave after proceedings have been commenced. In the present case, counsel for the applicant argued that s 308 of the WorkCover Act extends the limitation period where an application for leave has been brought prior to the expiration of that limitation period. That proposition is accepted as correct. Counsel then argues that granting leave under s 305 is “no more fatal than proceedings issued for a statute barred claim.”[21] That submission ignores the requirements of s 308(1)(a)(iii) viz. that a claimant may bring proceedings after the end of the period of limitation only if before the end of the period of limitation the court gives leave under s 305.[22] It is further contended that s 308(a)(iii) does not deny a claimant a right of action which may arise as a result of an application to extend time under the Limitations of Actions Act. Reference was made to the decision of Dutney J. in West v Anglo Coal (Capcoal Management) Pty Ltd.[23] However, in that case his honour did not have to decide what effect s 305 had in relation to an application under that section where the limitation period had expired.[24]
- [21]The applicant also relies upon the decision of Mason v Toowoomba City Council.[25] The Court was concerned with an application to extend time under the Limitations of Actions Act. An application under s 305 of WorkCover Act was also made at first instance. Leave to proceed was given at first instance as was the extension of time. The interrelation of the two provisions was not discussed in the Court of Appeal. However, the orders were made at the same time. In the present case, the applicant seeks to retrospectively rectify the fact that the s 305 application was made outside the limitation period. If an order to extend time under the Limitation of Actions Act was made at the same time as the a s 305 application, orders could have been made to regularise the requirements of say s 303. That was the approach in Mason’s case.
- [22]The respondent submits that “if an applicant wishes to avail himself of the provisions of s 305 of the Act and in doing so, he is relying upon obtaining an extension of time under s 31 of the Limitation of Actions Act 1974, he must obtain leave of the court pursuant to section 305 within 6 months of the material fact of a decisive character coming to his notice.” In other words, if the limitation period is extended by 12 months from the date that the material fact coming to the applicant’s notice, and leave to proceed is necessary under s 305, such an application for leave must be brought within the first six months to allow compliance with s 303 which relevantly requires six months elapse before the action can be commenced. If that is the consequence of that provision, then perhaps there should be an amendment to the relevant legislation. The problem has been discussed in Hamling v Australian Meat Holdings Pty Limited[26] and Goerecke v State of Queensland.[27]
Conclusions
- [23]The application to extend the time for the commencement of proceedings pursuant to s 31 of the Limitations of Actions Act 1974 is refused. It is probably unnecessary to decide the point under s 305 of the WorkCover Act in the circumstances. However, if this matter is heard elsewhere and as the question has been the subject of submissions,[28] it is appropriate that a view be expressed. As these proceedings were statute barred as at the date of the order of 10 July 2005 made by Botting DCJ pursuant to s 305, and the proceedings were commenced within six months of that order, the proceedings are struck out.
- [24]Since preparing these reasons, the case of Hintz v Workcover Queensland [29] has come to my notice. His honour was concerned with an application to extend time under s 31 of the Limitations of Actions act 1974 and s 305 of the WorkCover Act. It had been open to the complainant to extend time under both provisions at an earlier time, but he had failed to do so. His Honour refused the application under s 31 rejecting the argument that the issue of a damages certificate was a material fact of a decisive character. Once the s 31 application failed, leave was refused under s 305 of the WorkCover Act, as such an application is required to be made before the limitation period expires.[30]
- [25]His honour referred to Seery v Mt Isa Mines Ltd.[31] In that case the application under s 305 was made within the limitation period. White J commenting on s 308 stated:
“In my view this section extends the limitation period so that once leave has been granted under s 305 the complainant may commence proceedings provided the steps required by s 302 are followed … unless those provisions are complied with the complainant may not bring proceedings in a court, the extension of the period of limitation will be of no effect.”
- [26]The findings in the cases of Hintz and Seery support the reasoning in the instant case.
Orders
- The application to extend the time under s 31 of the Limitation of Actions Act 1974 is refused.
- The proceedings are struck out.
- It is ordered that the applicant do pay the respondent’s costs of and incidental to this application and the action to be assessed on the scale appropriate where the claim exceeds $50,000.00.
Footnotes
[1] The “applicant”
[2] Section 31(2) of the Limitation of Actions Act 1974 limits the extension of time to one year after the date that the material fact of a decisive nature is known to the applicant.
[3] the “respondent”
[4] The “WorkCover Act”.
[5] Goerecke v State of Queensland [2004] QDC 273.
[6] Transcript pp 10-13.
[7] Filed 10 November 2005
[8] Affidavit, ibid., para. 15.
[9] [2001] QCA 21.
[10] Para. 39.
[11] Wilkinson v Consolidated Meat Group Pty Limited [2005] QCA 432
[12] Exhibit “A7”
[13] (1990) 2 Qd R 306.
[14] (1988) 2 Qd R 325 at p. 333.
[15] Para. 6 above.
[16] [2005] QSC 374.
[17] Para.26
[18] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551
[19] Unreported decision of 14 April 2004 No. 1266 of 2004.
[20] Roberts v ANZ Banking Group Limited [2005] QCA 470 at para. 37
[21] Written submissions Ex. 1 Para. 1.3
[22] See the discussion by Keane JA in Hamling v Australia Meat Holdings Pty Limited [2005] QCA 415 at paras. 28-29,37.
[23] [2005] QSC 162.
[24] Ibid. para. 18.
[25] [2005] QCA 45.
[26] [2005] QCA 415 per Jerrard JA at para. 16
[27] [2004] QDC 273 at p. 2.
[28] Particularly Exhibits 3 and 4 which are the applicant’s and respondent’s further written submissions.
[29] [2006] QSC unreported decision of Muir J dated 23.06.06
[30] s 308 of the WorkCover Act
[31] (2000) QSC 016