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  4. Grey v AHS Hospitality Pty Ltd - [2013] QDC 269

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Grey v AHS Hospitality Pty Ltd[2013] QDC 269

Grey v AHS Hospitality Pty Ltd[2013] QDC 269

DISTRICT COURT OF QUEENSLAND

CITATION:

Grey v AHS Hospitality Pty Ltd (ACN 100437349) [2013] QDC 269

PARTIES:

WENDY DEBRA GREY

(applicant)

v

AHS HOSPITALITY PTY LTD
(ACN: 100437349)

(respondent)

FILE NO/S:

2525/13

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

29 October 2013

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2013

JUDGE:

Farr SC DCJ

ORDER:

1. The application is dismissed

2. Unless submissions are made to the contrary, the applicant pay the respondent’s costs of and incidental to this application on a standard basis

CATCHWORDS:

CIVIL – APPLICATION – EXTENSION OF TIME – Limitation of actions – Extension or postponement of limitation periods – Extension of time in personal injuries matters – Knowledge of material facts of decisive character

COUNSEL:

Mr M Kehoe for the applicant

Mr B F Charrington for the respondent

SOLICITORS:

CSG Law for the applicant

Sparke Helmore Lawyers for the respondent

  1. [1]
    The applicant seeks an order allowing an extension of the period of limitation for her to commence proceedings in an action for damages for personal injuries suffered during the course of her employment pursuant to s 31 of the Limitation of Actions Act 1974 (Queensland) (“LAA”). The injuries are alleged to have occurred over a period of time from about 26 November 2007 to 20 April 2010.
  1. [2]
    The respondent resists the application.

Relevant legislation

  1. [3]
    Section 31 of the LAA states:

“

  1. (1)
    This section applies to actions for damages for negligence, trespass, nuisance or  breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
  1. (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—
  1. (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
  1. (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 purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
  1. (3)
    This section applies to an action whether or not the period of limitation for the action has expired—
  1. (a)
    before the commencement of this Act; or
  1. (b)
    before an application is made under this section in respect of the right of action.”
  1. [4]
    Section 30 of the LAA states:

“

  1. (1)
    For the purposes of this section and sections 31, 32, 33 and 34—
  1. (a)
    the material facts relating to a right of action include the following—
  1. (i)
    the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
  2. (ii)
    the identity of the person against whom the right of action lies;
  3. (iii)
    the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
  4. (iv)
    the nature and extent of the personal injury so caused;
  5. (v)
    the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
  1. (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—
  1. (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
  2. (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. (c)
    a fact is not within the means of knowledge of a person at a particular time if, but only if—
  1. (i)
    the person does not know the fact at that time; and
  2. (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. [5]
    Hence, the following criteria must be satisfied before an extension of time will be allowed:
  1. (i)
    there must be a “material” fact of a “decisive character” (i.e. one which establishes a “worthwhile course of action” which the plaintiff “ought… bring an action on”);
  1. (ii)
    the material fact of a decisive character was unknown to the plaintiff, or not within her means of knowledge (by having taken reasonable steps to ascertain the fact) until some time after the commencement of the last year of the limitation period;
  1. (iii)
    there is a prima facie case on the liability, causation and quantum of damages; and
  1. (iv)
    an absence of significant prejudice to the defendant if the discretion to extend time is exercised.[1]
  1. [6]
    Of course, the statutorily mandated period of limitation for a personal injuries claim is three years.[2]

History

  1. [7]
    The applicant commenced employment as a housekeeping attendant at the Outrigger Resort, Hervey Bay in 2006. The resort subsequently became the Mantra Resort, Hervey Bay. The applicant was initially employed by the Outrigger Resort directly, then the Mantra Resort Group and then the Stella Group.[3]
  1. [8]
    The applicant commenced employment with the respondent on 26 November 2007.[4]
  1. [9]
    The applicant first experienced symptoms in her left (dominant) hand on 20 April 2010.[5]She consulted a general practitioner, Dr Swannell on that date, and was told she may have carpal tunnel syndrome. Dr Swannell referred her to an orthopaedic surgeon, Dr McGee, who confirmed the diagnosis.[6]
  1. [10]
    The applicant articulated her complaint as carpal tunnel syndrome in her application for compensation to WorkCover Queensland (“WorkCover”) dated 16 June 2010.[7]
  1. [11]
    Dr McGee performed carpal release surgery on 28 June 2010.[8]After this surgery complications developed, leading Dr McGee to have concerns about complex regional pain syndrome (“CRPS”).[9]
  1. [12]
    The applicant submitted a medical certificate to WorkCover dated 24 July 2010, identifying her incapacity for work as CRPS.[10]
  1. [13]
    Dr Mark Shaw (Orthopaedic Surgeon) diagnosed CRPS on 24 November 2010.[11]The applicant identified for Dr Shaw different aspects of her employment duties (subsequently repeated in her Notice of Claim and affidavit) over the proceeding five years as the cause of her injuries.
  1. [14]
    Dr Brendan Moore (Pain Medicine Specialist) provided a report on 22 February 2011, in which he stated:

“The prognosis with the CRPS of this nature is difficult to predict. There is still some potential for improvement within the first year of an injury such as this. It is almost certain that Mrs Grey will experience significant reduction in function and range of movement on a long term basis.”[12]

  1. [15]
    On 30 May 2011, the applicant reported work related left shoulder pain to her general practitioner, Dr Swannell.[13]She made further complaints of disability arising from that shoulder condition on 3 June 2011, 10 June 2011, 20 June 2011, 30 June 2011, 8 July 2011, 5 August 2011, 2 September 2011, 1 November 2011, 29 November 2011, 28 December 2011, 11 January 2012 and 3 February 2012.[14]
  1. [16]
    The applicant received a Notice of Assessment from WorkCover in relation to her carpal tunnel and CRPS conditions in late June 2011.[15]
  1. [17]
    She consulted her solicitor, Mr Hinton on 12 July 2011 in relation to a common law damages claim, and instructed him to pursue such a claim.[16]
  1. [18]
    The applicant was diagnosed with depression in June 2011.
  1. [19]
    She made application for compensation for the shoulder injury claiming it arose from her use of a feather duster at work. That application was ultimately rejected.
  1. [20]
    She has not commenced proceedings within the relevant limitation period nor has she served a complying Notice of Claim for damages on her employer save for the very end of the relevant period.[17]
  1. [21]
    The initial Application for Compensation and the Employer’s Report filed by the applicant and respondent respectively identify an injury date of 20 April 2010 and this date has been protected by a complying Notice of Claim for damages.
  1. [22]
    Accordingly, for the period prior to that time, the applicant must obtain leave pursuant to s.31 LAA in order to pursue her claim against the respondent.

Material fact of a decisive character

Applicant’s submissions

  1. [23]
    The applicant submits that the material fact of a decisive character is one or more of the following:
  1. (i)
    her realisation that she would not fully or substantially recover from her various work related injuries and conditions;
  1. (ii)
    her realisation that she would be unable to, after receiving all available treatment, return to her pre-accident vocation;
  1. (iii)
    her exhaustion of all treatment options in order to achieve a full recovery or alternatively as good an outcome, from treatment, as possible; and
  1. (iv)
    the obtaining of a second opinion regarding the nature and extent of her injuries, her treatment options and her likely ongoing symptoms, difficulties and limitations.
  1. [24]
    The applicant says that the above material facts should necessarily be considered in the context of the following matters:
  1. (i)
    her injuries were sustained over a period of time;
  1. (ii)
    her treatment was long and protracted;
  1. (iii)
    she suffered from a range of injuries and symptoms which were complex in nature;
  1. (iv)
    she has developed a psychiatric injury in the form of an adjustment disorder with depression which has impacted on her ability to function; and
  1. (v)
    she has received a range of medical opinions and prognoses.
  1. [25]
    The applicant says that she remained hopeful that she may be able to better recover from her injuries and conditions until March 2013, and indeed was hopeful that after all treatment had been provided, she would return to the workplace. She concedes however that she took few steps to pursue her claim until March 2013.
  1. [26]
    The applicant relies upon the High Court’s decision in Queensland v Stephenson[18]where the applicants were given leave to commence proceedings out of time in circumstances where they were aware they had suffered psychiatric injury during the course of their employment as undercover detectives (the material fact), however that material fact only became decisive when they also became aware that they were no longer able perform their duties of employment.
  1. [27]
    The applicant has also highlighted the comments of Kirby J in that matter at paragraph 53 where his Honour said:

“Against the background of this legislative history, it cannot be doubted that the amendments, reflected in Queensland in s 31 of the Limitations Act, were intended to be remedial and, to the full extent that the enacted language permitted it, beneficial and reformatory. They were beneficial because, in the circumstances specified, they permitted plaintiffs, otherwise statute-barred, to bring proceedings. As this court explained in Sola Optical Australia Pty Ltd v Mills, ‘the broad purpose of the Act was… to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced’”.

  1. [28]
    Reliance is also placed on Greenhalgh v Bacas Training Limited & Ors[19], a matter in which the appellant was unsuccessful in appealing the decision allowing an extension of the limitation period on the basis of the respondent having received medical opinion as to the nature and extent of his injuries. At [18] and [19] Keane JA (as his Honour then was) said:

“[18] It is, however settled by the decisions of this court in Wood v Glaxo Australia Pty Ltd and Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd that the availability of evidence which establishes an aspect of a claimant’s case can itself be a material fact relating to a right of action. The plaintiff’s argument is that the report of Dr Van der Walt of 21 June 2006 was a material fact relating to the right of action because of its relevance to the likely quantum of recoverable damages which was of a decisive character because it was unequivocal evidence of unavoidable economic loss.

[19] Prior to the provision of this report, the advice received by the plaintiff was equivocal so far as his future as motor mechanic was concerned. It was not until the report of 21 June 2006 that the plaintiff’s future as a mechanic was said categorically to be permanently at risk to the extent that work involving ‘lifting above shoulder level’ was a requirement of that occupation. Prior to this time, the plaintiff could not have proved that his determination to work around or through his discomfort would not ultimately be crowned with success. Prior to 21 June 2006, Dr Van der Walt’s opinions and the opinion of Dr Olsen did not unequivocally support a case that the plaintiff’s occupation as a mechanic was ineluctably and permanently jeopardised by his injury.” (citations removed).

  1. [29]
    Furthermore, the applicant submits that she had been reluctant to pursue any claim for compensation in circumstances where, for a large part of the injury period, she was receiving treatment and benefits from WorkCover and was hopeful of ultimately returning to the workforce.[20]

Applicable principles

  1. [30]
    The newly discovered fact must not be considered as separate from the facts already shown.[21]If, properly advised on the state of the evidence at a particular time, the applicant should have pursued an action before the discovery of the material fact, the material fact will not be of a decisive character. Macrossan J (as he then was) in Moriarty v Sunbeam Corporation Limited[22]said:

“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. This is what the application of the test of decisiveness under s 30(b) comes down to … .[23]”

  1. [31]
    In Castillon v PNO Ports Limited (No.2)[24]Keane JA interpreted a number of authorities (including those referred to above) as showing a “critical mass of information” theory. At [34] his Honour said:

“… The later information may have enabled the plaintiff to show that his right of action was ‘more worthwhile’ then it might have previously been thought to be, but it does not alter the circumstance that, in accordance with the evidence supporting the findings of Rackemann DCJ, there was a critical mass of information within the plaintiff’s means of knowledge prior to 27 November 2001 which justified bringing the action.”

Respondent’s submissions

  1. [32]
    The respondent submits that the applicant’s case is that the material fact of a decisive character arises from the conclusion of Dr Mark Welsh (Orthopaedic Surgeon) in March 2013 that “all treatment modalities had been exhausted and that her prospects of returning to employment were poor”. The applicant does not dispute that submission. The respondent asserts however that the applicant’s position is misconceived, as Dr Welsh’s report exclusively concerned the applicant’s shoulder condition[25]and that condition is an entirely different medical condition to those relevant to this application. Additionally, the respondent submits that Dr Welsh’s report does not contain the conclusions asserted by the complainant.

Determination of the issue

  1. [33]
    A critical dispute therefore exists between the parties as to the relevance of the applicant’s shoulder complaint.
  1. [34]
    The respondent submits that the applicant’s case is missing a crucial link between the applicant’s left shoulder symptoms and her accepted injuries of carpal tunnel syndrome, chronic regional pain syndrome and depression.
  1. [35]
    The applicant submits however that such a link, is found in the reports of specialist doctors Dr John Cameron[26](Consultant Neurologist) and Dr Sarah Watts[27](Consultant Orthopaedic Surgeon).
  1. [36]
    In his report dated 20 June 2011, Dr Cameron relevantly states:

“I believe Ms Grey’s left shoulder complaints are not due to any work related injury nor a secondary injury sustained as a result of the primary injury to her hand, namely carpal tunnel syndrome although I doubt that carpal tunnel syndrome here is an injury. It is a constitutional condition which might have been exacerbated at times by physical activity at work and also in the home.

Ms Grey’s left shoulder problems are a consequence of not using her left upper limb and being overprotective of that left upper limb’s function due to hand discomfort. Her hand problem I also believe is a consequence of this mechanism.”

  1. [37]
    Dr Cameron also suspected that there were psychological issues which resulted in the left upper limb disturbance and he strongly recommended psychiatric review.
  1. [38]
    In her report dated 16 September 2011, Dr Watts relevantly states:

“Ms Grey has impingement of the shoulder related to bursitis, and a rotator cuff tear. There is a small chance that these conditions resulted from the one reported episode. The most likely situation is that these conditions were an exacerbation of a pre-existing condition. Clinical examination supports impingement as the primary symptomatic condition.[28]

…

It is likely that Ms Grey had pre-existing changes in her shoulder. The pre-existing condition has been aggravated by the work. The relatively minor episode attributed to causing the injury (dusting) may have precipitated an impingement episode or minor inflammatory change.[29]

…

I believe that Wendy has had a work related exacerbation of a minor or asymptomatic pre-existing shoulder condition. She was prone to injury given the longstanding disuse and her deconditioning of her left arm.”[30]

  1. [39]
    In a supplementary medico-legal report dated 7 February 2012, Dr Watts states:[31]

“Ms Grey had an onset of shoulder pain after a relatively minor episode whilst at work. I believe that Ms Grey could have had her symptoms at any time, but they just happened to occur whilst she was in the workplace.

There is no dispute that the incident occurred at work, but there are other more important issues at stake in the causation of this condition, rather than the actual incident or location of onset. There are multiple other factors that are far more significant in this lady’s case such as her pre-existing hand condition, deconditioning and disuse of her whole arm, secondary utilisation of cumbersome positions, age related degenerative changes, inconsistent mechanism of injury, and possible psychological issues.”

  1. [40]
    The applicant has submitted that both Dr Cameron and Dr Watts are of the view that the most likely cause or probable cause of the applicant’s shoulder symptoms are the primary conditions to which this claim relates.[32]That is not consistent with the report of either doctor. Both doctors have identified a potential multifactorial range of issues that may have contributed to the condition. They can place it no higher than that.
  1. [41]
    I turn now to the report of Dr Welsh. In his report dated 4 March 2013[33], Dr Welsh states:

“I felt that Mrs Grey had symptoms which were consistent with irritation of the neck more than the shoulder. I did note her history of complex regional pain syndrome. I arranged for a MR scan to assess the cuff.

I have seen Mrs Grey today. Essentially I feel that the cuff is intact. There is a comment of labral changes but I think these are low grade.

I would employ local measures for Mrs Grey. The neck seems to be a major factor here. The shoulder may well be misbehaving because of secondary irritability. I do not think that surgery has much to offer her and I think in fact that surgery might make her worse. I have discussed this with her.”

  1. [42]
    Dr Welsh does not in any way link the applicant’s shoulder or neck complaint to her hand or wrist complaint.
  1. [43]
    Given the medical evidence that is before the court, I cannot conclude that there is a probable link between these complaints. There is simply inadequate evidence to allow any finding to the effect that such a link exists.
  1. [44]
    Furthermore, it is clear that Dr Welsh only consulted with the applicant in relation to her shoulder/neck complaint. Any advice he gave her related solely to that condition. That is highly relevant to the issue as to whether there is a material fact of a decisive character which was unknown to the applicant, or was not within her means of knowledge until sometime after the commencement of the last year of the limitation period. The applicant submits that it was the medical opinion she received from Dr Welsh in March 2013 that led her to the realisation that she was unlikely to enjoy any significant improvement in her symptoms and was unlikely to be able to return to her pre-accident employment.[34]
  1. [45]
    In my view, the applicant’s realisation in that regard was not “material” in that Dr Welsh only consulted the applicant in relation to her neck/shoulder complaint, and as I have already indicated, I am not satisfied on balance of probabilities, that that complaint was linked with her carpal tunnel syndrome or chronic regional pain syndrome or depression.
  1. [46]
    Furthermore, whilst it is submitted by the applicant that it was Dr Welsh’s advice that led her to the realisation that she was unlikely to enjoy any significant improvement in her symptoms and was unlikely to be able to return to her pre‑accident employment, there is no evidence before the court of her receiving any advice that would be capable of causing such a realisation. The only evidence that touches upon the subject (given that I had, as a consequence of preliminary argument and with both parties’ consent, struck out the second sentence in each of paragraphs 11 and 12 of the applicant’s affidavit) is that which is contained in Dr Welsh’s report. That report does not contain any such information. Prior to that report being prepared, Dr Cameron opined on 20 June 2011 that the applicant should be able over a period of three months, to “reach a period of where she is performing full hours and duties”. Dr Watts, in September 2011, was of the view that the applicant was “capable of returning to her duties for the amount of part time hours she worked previously”, with the one restriction that she not lift anything heavier than five kilograms.
  1. [47]
    I also note that that the applicant consulted a solicitor in relation to her legal rights, including the making of a common law damages claim, on 12 July 2011. She states at paragraph 13 of her affidavit that she was advised to wait until the outcome of investigations into her left shoulder condition before making a final assessment as to whether it would be economical to make a claim. The respondent submits that such advice was fundamentally flawed and that a common law damages claim ought to have been pursued at that time by means of an Urgent Notice of Claim for Damages pursuant to s 276 of the Workers' Compensation and Rehabilitation Act 2003 (Qld), which would have preserved the applicant’s limitation period. I agree that such an approach should have been adopted at that time. In fact, I note that the applicant’s solicitors ultimately adopted that course of action on 21 March 2013 notwithstanding that the medico-legal reports obtained after June 2011 only related to the applicant’s shoulder complaint.[35]
  1. [48]
    For these reasons I am not persuaded that there was a material fact of a decisive character which was unknown to the applicant nor within her means of knowledge by having taken reasonable steps to ascertain the fact until sometime after the commencement of the last year of the limitation period.
  1. [49]
    Even if I were to accept the applicant’s assertion that:
  1. (i)
    she did come to the realisation that she would not fully or substantially recover from her various work related injuries; and
  1. (ii)
    that she would be unable to, after receiving all available treatment, return to her pre-accident vocation,

she was fully apprised of all necessary knowledge in relation to her carpal tunnel syndrome, complex regional pain syndrome and depression by 12 July 2011 when she consulted her solicitors. She sought advice then about pursuing a damages claim for those conditions and there is no evidence that she was provided with any new knowledge of relevance after that date by her solicitors.

Other issues of relevance

  1. [50]
    Notwithstanding my findings above, there are two further considerations relevant to an application such as this that I should briefly discuss.
  1. [51]
    The first is whether there is a prima facie case on liability, causation and quantum of damages.
  1. [52]
    The onus on an applicant to establish the right of action apart from the limitation is a low one, and merely requires evidence which can reasonably be expected to be available at trial, and which if unopposed by other evidence is capable of proving the applicant’s case.[36]The respondent has conceded this issue.
  1. [53]
    Insofar as quantum is concerned, the respondent submits that as Dr Welsh’s report relates only to the shoulder condition, the quantum of the prospective claim would be “rendered not worthwhile” by the shoulder related incapacity. I do not agree with that submission. Dr Welsh offers no opinion as to any level of incapacity that may have arisen as a consequence of the neck/shoulder complaint. I note that Dr Watts refers to the fact that the shoulder complaint is relatively minor as compared to the wrist problems. In those circumstances, I accept that the applicant has demonstrated a prima facie case on quantum, notwithstanding that the shoulder/neck complaint might reduce the applicant’s potential for damages for the carpal tunnel, complex regional pain and depression issues.
  1. [54]
    The second matter concerns the submission by the respondent that it would be prejudiced if the application to extend the limitation period was allowed.
  1. [55]
    If this matter were to proceed, the respondent would seek to call two witnesses which it claims to be of importance, Katrin Winn (the applicant’s line manager) and Sandra Blanke (the applicant’s supervisor).[37]The respondent claims that it would require these witnesses to address:
  1. (i)
    the system of work and any changes to it;
  1. (ii)
    the timing and reasons for changes to the system of work;
  1. (iii)
    complaints made by the applicant or other workers about the system of work;
  1. (iv)
    the applicant’s initial report of the subject injury; and
  1. (v)
    communications with the occupier (resort management) about the system of chocking the room doors during cleaning.[38]
  1. [56]
    The respondent has also identified Diana Hobson as the appropriate witness in relation to personnel record keeping and information management systems.
  1. [57]
    The first two mentioned witnesses could not be located.[39]I note however that the investigator’s report in that regard says:

“As per your instructions we attempted to contact all nominated witnesses but were unable to contact Katrin Win who is apparently a resident of Western Australia and we have been unable to locate a contact address for her.

We have been unable to contact Sandra Blanke and have no forwarding address for her.”

  1. [58]
    In relation to Diana Hobson, the report says:

“We have contacted Diana Hobson on mobile number …. She stated she knows nothing of the event and has left the employ of the insured several years ago and has no information to provide nor wishes to be involved in the matter.”

  1. [59]
    The respondent argues that it therefore follows that it would not be in a position to adduce relevant and important evidence in relation to liability, including evidence about the system of work in place at the relevant time, any discussions and complaints about the system as between the applicant and her superiors and the respondent’s response to the relevant risk.
  1. [60]
    It is submitted, that for these reasons a fair trial would not be possible and the prejudice to the respondent would be manifest and insuperable.
  1. [61]
    That submission requires close examination.
  1. [62]
    In relation to Diana Hobson, the fact that she claims to know nothing about the event is irrelevant. Her potential involvement in a trial would only relate to the issue of personnel record keeping and information management systems. Furthermore, there is no material before the court to suggest that Ms Hobson has a lack of recollection due to the passage of the limitation period. Her statement that she has “no information to provide” does not necessarily mean that she has no recollection of any of these potentially relevant issues – particularly when she expressed a desire at the same time to not be involved. Accordingly, I can find no evidence of prejudice to the respondent by virtue of the limitation period having expired when considering this potential witness.
  1. [63]
    Insofar as the other two potential witnesses are concerned, it may be that the delay in bringing this claim would cause prejudice, perhaps even significant prejudice to the respondent.
  1. [64]
    When dealing with the issue of potential prejudice in an application to extend a limitation period, the leading authority is Brisbane Regional Health Authority v Taylor[40]. The relevant statements of principle gleaned from Taylor are:
  1. (i)
    significant prejudice to a respondent will militate against a favourable exercise of the discretion contained in s 31(2) of the LLA, notwithstanding the applicant has otherwise satisfied s 31;
  1. (ii)
    the prejudice analysis does not involve a comparison of prejudice to the applicant and the respondent;
  1. (iii)
    prejudice is established if a fair trial of the proceeding is unlikely;
  1. (iv)
    the onus of establishing that a fair trial of the action is possible rests on the applicant for the extension of the limitation period;
  1. (v)
    the analysis of prejudice does not involve a comparison with the position the respondent would have been in before the expiry of the limitation period, even if that position would have been the same. Rather, the time for measuring prejudice is at the time of the application. Therefore the fact that witnesses may not have had any recollection of events anyway just prior to the limitation period expiring will not assist an applicant.
  1. [65]
    The difficulty with deciding this issue however arises from the fact that the court has been provided with no information as to what steps have been undertaken by the investigator to locate Katrin Winn and Sandra Blanke. The respondent submits that I should infer that the investigator was thorough, experienced and undertook all reasonable inquiries. Unfortunately for the respondent, the evidence does not allow any such inference to be reasonably drawn. In fact, the investigation report does not even identify the name of the investigator. If the issue of potential prejudice was the only issue being argued in opposition to the extension of the limitation period I would not hesitate to adjourn the hearing of this application to enable further evidence to be placed before the court to ensure that the ultimate decision had a proper evidentiary foundation.
  1. [66]
    In addition to that issue, the applicant also has submitted that as this is a matter where the respondent was aware of the existence of the applicant’s contention that her work duties led to her developing various upper limb injuries as well as depression on or before 16 June 2010, the respondent has known of the existence of the potential claim since then and cannot now claim to be caught by surprise.
  1. [67]
    Whilst there may be some merit to that argument, if ultimately the potentially relevant witnesses were unable to be located, or even if located, unable to give useful evidence due to a lack of recollection, then the competing considerations would need to be assessed before arriving at any conclusion. That cannot occur here due to the absence of relevant evidence.
  1. [68]
    Finally, the applicant has submitted that numerous other witnesses are available who can give evidence on the topics sought by the respondent.
  1. [69]
    Once again however, if prejudice was the only issue being argued, I would be minded to adjourn the application to allow further inquiries to be made as to the potential availability, relevance of evidence and recollection of any other potential witnesses. As things currently stand, there is no admissible evidence on these issues before the court.
  1. [70]
    I am therefore unable to determine the significance of any potential prejudice at this stage. Given my findings however on the other issues that have been argued in this application, there is no necessity to adjourn the matter.

Orders

  1. The application is dismissed.
  1. Unless submissions are made to the contrary, I order that the applicant pay the respondent’s costs of and incidental to this application on the standard basis.

Footnotes

[1]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

[2]  Section 11 Limitation of Actions Act 1974.

[3]  Affidavit of Wendy Debra Grey, paragraph 3.1.

[4]  Affidavit of Wendy Debra Grey, paragraph 3.1.

[5]  Affidavit of David John Hinton, exhibit DJH7.

[6]  Affidavit of Wendy Debra Grey, paragraph 3.8.

[7]  Affidavit of David John Hinton, exhibit DJH7.

[8]  Affidavit of Wendy Debra Grey, paragraph 3.8.

[9]  Affidavit of Wendy Debra Grey, paragraph 3..10; Affidavit of David John Hinton, exhibit DJH10.

[10]  Affidavit of David John Hinton, exhibit DJH9, page 25.

[11]  Affidavit of David John Hinton, exhibit DJH11, page 39.

[12]  Affidavit of David John Hinton, exhibit DJH12, page 46.

[13]  Affidavit of Anna Francis Hendry, exhibit AFH3, page 22.

[14]  Affidavit of Anna Francis Hendry, exhibit AFH3, pages 15-22.

[15]  Affidavit of Wendy Debra Grey, paragraph 7, exhibit WDG2.

[16]  Affidavit of Wendy Debra Grey paragraph 8.

[17]  The Notice of Claim for damages was served one month before the expiration of the limitation period for the over period of time injury.

[18]  (2006) 226 CLR 197.

[19]  [2007] QCA 327.

[20]  See Patterson v Placer Pacific (Ozborne) Pty Ltd [2006] QSC 353

[21]Taggart v The Workers Compensation Board of Queensland [1983] 2 Queensland Reports 19 at 23-4.

[22]  [1988] 2 Queensland Reports 325 at 333.

[23]  Endorsed by the full court in Berg v Krueger Enterprises (Division of Bessa Qld Limited)Ltd [1990] 2 Queensland Reports 301.

[24]  [2008] 2 Queensland Reports 219; [2007] QCA 364.

[25]  Affidavit of Wendy Debra Grey exhibit WDG4.

[26]  Affidavit of David John Hinton, Exhibit DJH14.

[27]  Affidavit of David John Hinton, Exhibit DJH15.

[28]  Paragraph 5 of Dr Watts’ report.

[29]  Paragraph 6 of Dr Watts’ report.

[30]  Paragraph 18 of Dr Watts’ report.

[31]  Affidavit of David John Hinton, Exhibit DJH15.

[32]  Transcript p 1-34 line 12.

[33]  Affidavit of Wendy Debra Grey, Exhibit WDG4.

[34]  Affidavit of Wendy Debra Grey; applicant’s outline of submissions, paragraph 14.

[35]  Transcript p 1-24 line 45 to p 1-25 line 2.

[36]West v Anglo Coal (Capcoal Management) Pty Ltd [2006] 1 Qd R 195 at [9].

[37]  Affidavit of Anna Frances Hendry, paragraphs 7, 10 and 15.

[38]  Affidavit of Anna Frances Hendry, paragraphs 11 and 15.

[39]  Affidavit of Anna Frances Hendry, Exhibit AFH5.

[40]  (1996) 186 CLR 541.

Close

Editorial Notes

  • Published Case Name:

    Grey v AHS Hospitality Pty Ltd

  • Shortened Case Name:

    Grey v AHS Hospitality Pty Ltd

  • MNC:

    [2013] QDC 269

  • Court:

    QDC

  • Judge(s):

    Farr DCJ

  • Date:

    29 Oct 2013

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Berg v Kruger Enterprises (Division of Besser Qld Ltd) Ltd[1990] 2 Qd R 301; [1989] QSCFC 34
1 citation
Jump To
Cite 1 - [1990] 2 Qd R 301
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Castillon v P&O Ports Ltd[2008] 2 Qd R 219; [2007] QCA 364
2 citations
Jump To
Cite 1 - [2007] QCA 364
Cite 2 - [2008] 2 Qd R 219
Greenhalgh v Bacas Training Ltd [2007] QCA 327
1 citation
Jump To
Cite 1 - [2007] QCA 327
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
1 citation
Jump To
Cite 1 - [1988] 2 Qd R 325
Patterson v Placer Pacific (Osborne) Pty Limited [2006] QSC 353
1 citation
Jump To
Cite 1 - [2006] QSC 353
State of Queensland v Stephenson (2006) 226 CLR 197
1 citation
Jump To
Cite 1 - (2006) 226 CLR 197
Taggart v Workers' Compensation Board of Queensland [1983] 2 Qd R 19
1 citation
Jump To
Cite 1 - [1983] 2 Qd R 19
West v Anglo Coal (Capcoal Management) Pty Ltd[2006] 1 Qd R 195; [2005] QSC 162
1 citation
Jump To
Cite 1 - [2006] 1 Qd R 195

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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