Hamey v The Mac Services Group Pty Limited
[2014] QDC 206
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- Unreported Judgment
- Hamey v The Mac Services Group Pty Limited[2014] QDC 206
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Hamey v The Mac Services Group Pty Limited[2014] QDC 206
Hamey v The Mac Services Group Pty Limited[2014] QDC 206
DISTRICT COURT OF QUEENSLAND
CITATION: | Hamey v The Mac Services Group Pty Limited [2014] QDC 206 |
PARTIES: | JENNIFFER ALICE HAMEY (applicant) v THE MAC SERVICES GROUP PTY LIMITED (ACN 003 657 510) (respondent) |
FILE NO/S: | 2698/14 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 8 September 2014 Ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 September 2014 |
JUDGE: | Samios DCJ |
ORDER: |
|
CATCHWORDS: | LIMITATION OF ACTIONS – MATERIAL FACT OF A DECISIVE CHARACTER – EVIDENCE TO ESTABLISH A RIGHT OF ACTION – PERSONAL INJURIES – EXTENSION OF TIME – where the applicant seeks an order that the time for commencement of proceedings against the respondent claiming damages for personal injury be extended pursuant to section 31 of the Limitation of Actions Act 1974 (Qld) – whether applicant can establish a material fact in relation to the applicant’s personal injury – whether that material fact is of a decisive character – whether the applicant presents sufficient evidence to establish a right of action Legislation Limitation of Actions Act 1974 (Qld) s 30, s 31 Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 298 Cases Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 |
COUNSEL: | Mr M Horvath for the applicant Mr R Morton for the respondent |
SOLICITORS: | Turner Freeman for the applicant BT Lawyers for the respondent |
- [1]HIS HONOUR: Now, the application before me seeks an order that the time for commencement of proceedings against the respondent claiming damages for personal injuries by the applicant be extended until 21 May 2014, pursuant to section 31 of the Limitation of Actions Act 1974.[1]
- [2]On the hearing of the application, the applicant submitted that the time be extended to 27 May 2014. Nothing turns on that.
- [3]The applicant was born on 15 February 1969. She is now 45 years of age. She has a year 9 education. Her work history includes working in bars, sales, as a cook, a cleaner, and a dining attendant.
- [4]This application involves her claim that on the 10th of September 2009, she injured her lower back while making beds as a housekeeper at a mining camp operated by her then employer, the respondent.
- [5]In her affidavit in support of the application, she refers to a number of events. She is making common law claims for those events. Four of those events are – the four events are 9 September 2009, lower back; 2 July 2012, a back injury from lifting rubbish out of a wheelie bin; 20 September 2012, broken left arm; and 19 March 2013, a back injury from making beds while working for Sodexo, S-o-d-e-x-o. The applicant has lodged notices of claim for each of those four incidents.
- [6]The applicant proposed that the four claims proceed to a compulsory conference together; however, the respondent wanted this application brought before a compulsory conference. The applicant has applied for section 298 Workers’ Compensation and Rehabilitation Act 2003[2]leave to commence proceedings against the respondent. That leave was granted by his Honour Judge McGill on 21 May 2014 on the condition that this application be brought by 30 September 2014.
- [7]There is no dispute that the evidence shows that following the 10 September 2009 incident, the applicant went to a doctor at the direction of her employer. She then went to another doctor on 11 September 2009, and again on 16 September 2009, 23 September 2009, 2 October 2009, and, finally, on 4 November 2009. On 16 October 2009, she saw a Dr Rachel Bidgood.
- [8]The applicant lodged a workers’ – a WorkCover claim with respect to this incident. This was for medical expenses as well as wages. The evidence indicates the applicant fluctuated between light duties and time off until she returned to full duties around 11 November 2009, and then – and before going on holidays on 17 November 2009. There are a number of medical certificates confirming the applicant’s restrictions for work at that time. She changed jobs to bar work for the next six months.
- [9]Before the 10 September 2009 incident, there had been other incidents regarding the applicant’s lower back. In 1988, she lifted a nappy bucket while looking after her newborn. She experienced lower back pain, but the symptoms resolved. On 31 March 2009, she went to Dr Jayaram because she slipped the previous day while cleaning a bus and hit her lower back. The doctor diagnosed a soft tissue injury. She had lodged a workers’ compensation claim for medical expenses only. She did not have any time off work.
- [10]After the incident of 10 September 2009, the applicant visited the Mackay Hospital on 21 April 2010. On this occasion, she complained of lower back pain since Saturday 17 April 2010 without any event or incident causing it. The evidence is her symptoms resolved. Then on 9 June 2010, she was able to pass a Coal Board Medical. In her affidavit, she states this cleared her to work in the roles of bar and utility. She states her understanding of a health assessment is required before a person starts work as a coal miner or relevant work in that industry and, thereafter, periodically as decided by the employer’s nominated medical advisor, NMA, but at least once every five years. She states as at that point in time, she believed her back was fine and the medical advisors said no different.
- [11]This then brings me to the wheelie bin incident. That occurred on 2 July 2012. Apparently, she injured her lower back while pulling a bag out of a wheelie bin. She initially made an application for WorkCover statutory benefits, however, as I indicated earlier, is now making a common law claim for damages in relation to that incident. She went on light duties for a couple of days before her job was made redundant. She was to be on light duties until 15 July 2012. However, she managed to get another job by August 2012.
- [12]Next is the broken arm. That occurred at work on 20 September 2012. She came back to work on 20 November 2012 having changed employers from Outsource to Sodexo. Then there is the Sodexo incident, which occurred on 19 March 2013. She injured her back while making beds as an employee for Sodexo. Again, she has made a statutory claim and brings now a common law claim against Sodexo for the period of time between 20 November 2012 and 19 March 2013 for the repetitive bed-making. She went on light duties between 21 March 2013 and 30 August 2013 when a claim was finalised by WorkCover.
- [13]During the claim, she received physiotherapy. She also saw her GP, Dr David Cleveland. He referred her to Dr Steven Yang, a neurosurgeon. The importance of Dr Yang is that he has written a report in which he has stated:
There is no doubt in my mind that she has discogenic back pain and this has set up a vicious cycle of back muscle spasms and poor posture. Repeated bending is also very bad for discogenic back pain. I do not know how she can move forward in terms of her job due to her ongoing back problems. I think ongoing physiotherapy and posture re-training would be helpful. I think that her current job would not be a good option for her if there are no modifications available.
- [14]In the applicant’s affidavit – I should say first affidavit – she refers to the report of Dr Yang, which is dated 24 May 2013, containing the quote that I have set out above. The applicant states that Dr Yang told her about his concerns during the first consultation. She states up until that time, she had thought that her problems were muscular and they would resolve with time. She states this is what she had been told in the past and what she experienced as well.
- [15]She states:
I was able to resume my employment in the mining industry sector or elsewhere after each episode of back pain. Dr Yang, however, made it plain that my condition was such that I could not work in the role that I was. This was the first time I had been told by a doctor that my condition was serious, permanent and career-ending in terms of the kinds of work that I was doing at mine sites.
- [16]It is to be observed that Dr Yang does not, in my opinion, specifically refer his comments to the incident of 10 September 2009. Further, the applicant herself does not refer specifically to the incident of 10 September 2009 when making reference to what she had come to understand from Dr Yang. However, the applicant relies on Dr Yang’s report as a basis for submitting that she should be given relief pursuant to section 31 of the Act.[3]
- [17]In addition, the applicant relies on a report of Dr Gillett. This report, being dated 8 April 2014, states:
The 30 March 2009 event would not have caused any permanent impairment. If the 10 September 2009 event caused her to have time off work and treatment modalities, it may contribute maximally about one per cent impairment of whole person function.
- [18]The applicant has sworn a second affidavit. There was no objection to leave being given to the applicant to read and file that affidavit; however, objection was taken to aspects of what was sworn to by the applicant. I reserved my decision as to the admissibility of the applicant’s statements. Having considered all the material before me, I have come to the view that her statements are admissible as going to her state of mind; however, what she says about those reports in her affidavit must still be a matter for me to decide if they support this application as required by the relevant legislation; therefore, I will allow those statements, as I said, by the applicant as evidence of her state of mind; however, it remains for me to decide if the reports bear out what she says was her belief.
- [19]In a further report from Dr Gillett dated 15 July 2014, he states:
Based on this imaging study, I would think that the apportionment as outlined in my report has to alter because of the lack of radiographic degeneration or bulging seen on that CT. It would be my view there would be some pre-existing degeneration occurring in her spine prior to the events of 2 July 2012 and 19 March 2013.
On reviewing the information, I would suggest, therefore, that of her seven per cent impairment measured by me, two per cent reflects pre-existing pathology prior to 2 July 2012 and five per cent represents the pathology that has occurred subsequent to 2 July 2012 related to the events of 2 July 2012 and 19 March 2013.
Reviewing the mechanism of the injury, I would apportion three per cent related to the events of 2 July 2012 and two per cent, the events of 19 March 2013.
- [20]In addition to the evidence before me, there is the report of Dr Morgan dated 31 July 2014. In this report, at page 15, he says he placed no great credence on the episode while she was lifting a bucket full of wet nappies – which I take him to mean when her child – when her child was a child but who is now 26 years of age.
- [21]Regarding the evidence from Dr Morgan, at page 16 he states:
Regarding the injuries of 30 March 2009, 10 September 2009, 2 July 2012, 20 November 2012 to 19 March 2013 and 19 March 2013, these are all part of a broad spectrum of social, recreational, domestic and remunerative insults which have been applied to antecedent diseased lumbar spine.
- [22]He states:
None of them has any special significance.
- [23]Regarding the 10 September 2009 incident, when asked about that he reports at page 17:
She suffers with underlying constitutional dual-level discal disease in the lumbar spine. The condition is not related to the incident which occurred on 10 September 2009 in any special way.
- [24]
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 expiration of the year last preceding the expiration of the year of limitation for the action; and
- (b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
- [25]Now, section 30[5]provides for the interpretation of relevant terms. In this case, the material facts relied upon by the applicant relating to the right of action she claims is the nature and extent of the personal injury so caused,[6]and the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty.[7]
- [26]In addition:
material facts relating to a right of action are defined to be of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advise on those facts, would regard those facts as showing —
- (i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
- (ii)that the person whose means of knowledge is in question ought in the person’s own interest and taking the person’s circumstances into account to bring an action on the right of action;[8]
- [27]On the hearing of this application, no issue was taken by the respondent whether the fact was within the means of knowledge of the applicant, nor is any issue taken regarding possible prejudice to the respondent; however, the respondent submits that on the state of the evidence before me, there is no material fact here that is relevant.
- [28]I must say that the evidence in this respect is, from the applicant’s point of view, unsatisfactory. There is nothing specifically mentioned by Dr Yang that can connect the applicant’s back condition to the events of 10 September 2009. In addition, I consider there is considerable doubt about the state of the orthopaedic surgeon’s evidence – in this respect, I’m referring to Dr Gillett and to Dr Morgan. To my mind, it is straining the evidence to say that Dr Gillett is making a reference to the incident of 10 September 2009 in his reports. Dr Morgan, to my mind, also casts a doubt on Dr Gillett’s evidence showing that there is a material fact here to be considered.
- [29]Now, Dr Gillett was asked to consider the various incidents and he did not specifically refer to the 10th of September 2009 as being the incident that he would attribute an approximate one per cent permanent impairment of the body.
- [30]In light of all the evidence, I cannot conclude that the evidence supports that in this case there is a material fact to be decided upon. If I were wrong about that, I certainly consider it is not decisive in this case. In that respect, I consider it is not only relevant that the evidence is in dispute as between Dr Gillett and Dr Morgan, but the evidence of there being evidence to establish the right of action is also lacking.
- [31]It was submitted to me that in this case the applicant can rely on the MAC Incident/Injury Report Form. In it, it does say that the applicant is stating regarding the incident of 10 September 2009 that she hurt her back making beds at work, and further, it does say that the village – the village at which the applicant was working was full at that time that she injured herself, and the workers were rushing to get rooms completed. The report goes on to say:
Most manual task injuries occur when worker rush or twist when in an awkward position.
- [32]In addition, the report says:
Worker need to slow down and remember to move their feet rather than twisting.
- [33]That is in response to a question:
What actions have been – will be taken to insure similar incident/injury will not occur?
- [34]Certainly, Mr Horvath, who appears for the applicant, is correct that in Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 the Chief Justice, at page 434, did state that the legislation did not intend for an applicant to have to establish an entitlement to recover on two occasions: namely, first on the hearing of the application for the extension of the time and once more at the trial of the action. The Chief Justice did say:
The extent to which an applicant must show a case on the hearing of the application to extend time will frequently depend on the impression on the judge’s mind of the material which the applicant presents or the existence of which he demonstrates or points to.[9]
- [35]The Chief Justice went on to state:
It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probability show that it is likely they will be able to succeed in their actions. A Judge may harbour a feeling that there is a strong chance that particular applicants will fail at time, but in my opinion, he should not act on the basis of this impression, both because that is a question reserved for another occasion and because he cannot know and should not insist on being able to say in all of its ramifications, the full strength of the case which will eventually be presented at trial. There are some resemblances in this to the situation of a defendant who resists a summary judgment application. The Court should be cautious in shutting out a party from the opportunity to make his case at the appropriate time.[10]
- [36]Notwithstanding those observations by the Chief Justice, which, of course, are binding on me, it seems to me in this case that there is no evidence that can support the right of action. If I were wrong about that I would nevertheless come to the view that this material fact is not decisive. There is the doubt about the medical evidence, which I have referred to earlier, and there is doubt about liability. I consider that an applicant considering those aspects would ask if there was a result here in an award of damages sufficient to justify the bringing of the action on the right of action. In my opinion, the applicant would answer that in the negative, in that this is not a case that an applicant would bring. There is, to my mind, significant doubt about any permanent injury having been caused in an incident on the 10th of September 2009. In the end, I’ve come to the view, considering all the evidence before me, that the applicant in this case did not have any prospects of success in an action based on an incident on the 10th of September 2009. Therefore, I dismiss the application. Yes.
- [37]HIS HONOUR: Yes. Well, the orders are application dismissed; I order the applicant to pay the respondent’s costs, to be assessed on the standard basis. I just have to return some documents to my Associate. Yes. Thank you, Mr Bailiff. Adjourn the court.
Footnotes
[1] Limitation of Actions Act 1974 (Qld).
[2] Workers’ Compensation and Rehabilitation Act 2003 (Qld).
[3] Limitation of Actions Act 1974 (Qld).
[4] Ibid.
[5] Ibid.
[6] Ibid s 30(1)(a)(iv).
[7] Ibid s 30(1)(a)(v).
[8] Ibid s 30(1)(b)
[9] Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, 434 (Macrossan CJ).
[10] Ibid.