DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff has applied for an extension of the period of limitation to commence proceedings for personal injury allegedly suffered in about September 1994 during his employment as a rigger/scaffolder with Mackay Sugar Ltd at its Marian Mill (the “Mill”).

The issues

2. [2]
   There are three considerations that must be addressed in applications such as this:

1. Whether there is a material fact of a decisive character not within the plaintiff’s means of knowledge until a date after the commencement of the year proceeding the limitation period.

2. Whether the plaintiff has an arguable cause of action: that is, whether there is evidence to establish the cause of action.

3. Whether the defendant is substantially prejudiced, by reason of the delay, so as to prevent a fair trial.

3. [3]
   There was nothing in issue about the first two considerations. I make that observation because on the hearing of the application both counsel agreed that the third consideration - substantial prejudice to the defendant by reason of the delay such as to prevent a fair trial – was the critical issue for me to determine, despite the defendant having expressed the view that the plaintiff had not sought medical advice at an earlier time; and the lack of direct – that is, independent – evidence about the incident said to have caused the injury in September 1994..

4. [4]
   Satisfaction in respect of considerations 1 and 2 does not assure a claimant of a favourable exercise of the discretion. Hence, the focus of this application, not surprisingly given the 20 years between the date of the incident that has allegedly caused the personal injury and the date of the Notice of Claim for Damages, is the third consideration.

5. [5]
   The question of whether any prejudice of the kind contemplated by the Limitation of Actions Act 1974 (“the Act”) will prevent the defendant (that is, the insurer WorkCover Queensland) from having a fair trial falls to be determined upon an exercise of discretion by me.

Factual circumstances described by the plaintiff

6. [6]
   For the purposes of this application certain factual circumstances may be presumed: that is, on a date unknown in September 1994 the plaintiff was employed by the defendant, inter alia, as a rigger/scaffolder at the Mill. He was tasked to erect scaffolding and in the course of his carrying two approximately 3 metre long/30 kg scaffold tubes from the rigger’s shed at the Mill to the “sugar dryer on the pan stage of the Mill” he walked behind “the low grade fugals of the Mill” and lost his footing in mud on the concrete floor behind the latter and slipped over, causing him to land on his buttocks and right wrist (“the initial incident”).

7. [7]
   This is an “over the period of time” claim, it being alleged that there were subsequent aggravations of the injury allegedly caused in the initial incident in September 1994, between then and January 2012. Those aggravations were said to have been caused by repetitive heavy scaffolding work which placed significant pressure on the plaintiff’s upper limbs, including the right wrist (“the subsequent incidents”).

The injury

8. [8]
   The plaintiff’s injury is alleged to be “a scapholunate ligament rupture with advanced collapse  of the right wrist” and secondary arthritis (“the injury”).

9. [9]
   The plaintiff alleges that he has ongoing pain and tenderness in his right wrist, a loss of range of movement and has developed arthritis. A radiological fusion was performed in or about April 2012 but he has been advised that he will require a total wrist fusion (“the right wrist condition”).

10. [10]
    The plaintiff had continued in his employment at the Mill, but on light or modified duties, but is alleged to be incapable of a return to manual work, including that of a rigger/scaffolder.

Causation

11. [11]
    The particulars of negligence and breach of duty alleged by the plaintiff in the initial incident and the subsequent incidents do not need to be set out for the purpose of this judgment and in any event can be readily assumed.

The legislative provisions

12. [12]
    Section 11 of the Act provides that actions in respect of personal injury “shall not be brought after the expiration of 3 years from the date on which the cause of action arose”.

13. [13]
    Sections 30 and 31 of the Act provide, so far as is relevant, as follows:

  “30 Interpretation

(1)For the purposes of this section and section 31, 32, 33 and 34 –

(a) the material facts relating to a right of action include the following -

   ………

(iii)The fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv)The nature and extent of the personal injury so caused.

……….

(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 –

(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;

(c)a fact is not within the means of knowledge of a person at a particular time if, but only if -

(i) the person does not know the fact at that time; and

(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.

(2)In this section -

 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.”

“31 Ordinary Actions

 ……..

(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 -

(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 was 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.”

Onus of proof

14. [14]
    In Limpus v State of Queensland [2004] 2 QD R 161, Jerrard JA wrote, at 169, that where the passage of time may prevent a defendant from being able to fairly defend a proceeding, there is:

“… an evidential onus on a potential defendant to identify the  prejudice to it of which the defendant is aware and which makes a fair trial no longer possible or creates a significant chance of that result.”

15. [15]
    Keane JA in HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, at [57] agreed inferentially, but observed that the burden remains on an applicant plaintiff who is seeking a favourable exercise of discretion to extend the limitation period:

“…to show good reason for the favourable exercise of the discretion. An applicant who is unable to show that a fair trial can take place notwithstanding the delay which has occurred will not discharge that burden.”

The three considerations

1A material fact of a decisive character

16. [16]
    The plaintiff says he believed the initial incident to be insignificant. He sought no medical treatment and did not take any time off work. He became aware of his right wrist condition in or about November 2011, when it became symptomatic. He received a medico-legal report from Dr Duke (made on behalf of WorkCover Queensland). The report relevantly states:

“Mr Drew noted that the wrist hadn’t given previous significant trouble except that he had fallen when carrying scaffolding in the early 90s. His wrist became sore, and then it didn’t give a lot of trouble until 2011.”

and

“Surgery has been performed by a Dr Greg Couzens, orthopaedic hand and wrist surgeon. This was done in May 2012 in the form of a partial wrist fusion. This made him worse. Dr Couzens, he says, has discharged him from his care;”

and

“I’ve perused your enclosures. Your instructions outline the circumstances of the injury, which is the same as what was told to me today. Your instructions go into detail, which he confirmed today, regarding the removal of couplers and bolts et cetera.”

and

“The previous medical history of a fall around 1994 is outlined. That was again told me today.”

and

“A Tribunal reviewed Mr Drew and they did so 16 July 2013 opining a 23% impairment because of the partial fusion and ongoing troubles with the wrist. Mr Drew told them that he did not plan to have further surgery, and they therefore considered him to be stable and stationary.

The general practitioner records do not add anything of significance.”

and

“Mr Drew has a SLAC wrist. This is an acronym for Scapholunate Advanced Collapse. This was what was in existence when he started getting symptoms in 2011. It is my opinion this gentleman’s work related incident in 1994 was the causative factor in this ruptured scapholunate ligament. It is quite common for someone with such a rupture to then develop an arthritic wrist over the next decade or two, as this gentleman has. The repetitive nature and the heavy nature of the work that he has done have also contributed over the years, as well as the hyperextension forces applied many times during their time.

Overall therefore, it is my opinion this gentleman’s current arthritic wrist relates solely to the injury in 1994 and the ongoing work related incidents since, as well as the aggravations causing symptoms in 2011 and beyond.”

17. [17]
    That opinion arguably discloses “a material fact of a decisive character”. Hence the first consideration is satisfied for the purposes of this application.

2Cause of Action

18. [18]
    The plaintiff pleads the facts and circumstances of the initial incident with particularity, drawn from his own recollection of it and the allegations of negligence and breach of duty are pleaded with particularity. Hence the second consideration is satisfied for the purposes of this application.

3Substantial Prejudice

19. [19]
    Since it is for the plaintiff to show good reason for the favourable exercise of the discretion to extend the limitation period, if he cannot show that a fair trial can take place notwithstanding the delay that has occurred, he will not have discharged the onus of proof.

20. [20]
    In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, Toohey and Gaudron JJ wrote, at [548] – [549], with respect to the exercise of the discretion:

“Once an applicant satisfies PARS (a) and (b) [of s. 31(2) of the LAA], the Court has a discretion to extend the time for the bringing of an action. A material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.”

 McHugh J wrote at [553] – [555] by way of observation that:

“Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension must be commenced within the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s loss of right should not be revived and that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.”

21. [21]
    The emphasis, in the expressions ‘opportunity for a fair trial’ or ‘so as to prevent a fair trial’, in the context of the issue of substantial prejudice against a defendant, is upon the words fair trial: Page v The Central Queensland University [2006] QCA 478, per Keane JA at [24].

Submissions about the issue of prejudice

22. [22]
    Mr Wiltshire for the defendant pointed to a number of matters of prejudice:

a.the actual day of the initial incident in September 1994 is not known;

b.the passage of 20 years since the initial incident;

c.the difficulty of investigating the facts and circumstances of the initial incident: whether it happened; and if so, whether the defendant had been negligent or in breach of its duty of care.

23. [23]
    The particular matters of prejudice arising under that heading were submitted to be the following:

1. (i)
   No incident report or compensation application was made by the plaintiff. The defendant has no training records for that time. Any documents that may have existed have been disposed of after a seven year retention period cycle. Hence the defendant has no contemporaneous documents to assist in any investigation of the plaintiff’s allegations;

2. (ii)
   There were no witnesses to the initial incident. Whilst the plaintiff has told WorkCover that he “did inform some people at the time”, those persons are unknown. He also told WorkCover that “I did report it to Colin Ogilvie [Health and Safety Officer at the Mill at the relevant time] .. at that time.”  Mr Ogilvie cannot be located and is believed to be unlikely, in any event and for reasons I do not need to refer to here, co-operate with the defendant;

3. (iii)
   The defendant has identified fifteen persons who were working in the vicinity where it is said the initial incident occurred at the Mill, in 1994:  nine have not been located. Six were spoken to, but none recall the initial incident or any similar incident;

4. (iv)
   Three of the six declined to assist and the other three were unable to provide any useful information about cleaning or scaffolding systems of work;

5. (v)
   The particulars of negligence and breach of duty are broad and the defendant is unable to respond to them.

24. [24]
    Hence it was submitted for the defendant that it cannot obtain a fair trial.

25. [25]
    Mr Wiltshire referred to Hertess v Adams [2011] QCA 73 where Muir JA at [18] – [24] referred to the risks inherent in enforcing by subpoena the attendance of reluctant witnesses, who may be unco-operative and whose evidence would not be confidently known in advance of a trial. He also referred to the impact of delay and, inferentially the fading, lost or mistaken recollection of witnesses and the uncertainty that accompanies such natural, human frailty.

26. [26]
    Mr Cullinane for the plaintiff, submitted that there was no substantial prejudice and that the application should be granted. He specifically referred to the following:

a.The defendant still operates the premises at which the plaintiff allegedly sustained the injuries;

b.The area of the premises at which the plaintiff allegedly sustained injuries still exists in the same form as it did in September 1994;

c.A prospective witness can recall the system of inspection which existed in September 1994;

d.A prospective witness recalls that the floor of the area at which the plaintiff fell would regularly become contaminated; and

e.A prospective witness states that it is likely that the plaintiff would have been walking through the area at which he fell in the course of his employment.

Discussion

27. [27]
    The evidence of those former co-employees who were interviewed by one or other or both of the parties, for the purposes of this application, reveals the following”

Mr Ogilvie  He has no recollection of the plaintiff reporting a fall. Had he done so, Mr Ogilvie would have recorded the incident in his first aid book. The area described by the plaintiff was “under a conveyor belt which produced mill mud”. He did not want to be involved in the litigation and di not want to sign a statement.

Mr Nash He did not hear about any injury incident. He would have expected to have heard by word of mouth.

Mr Quinn He was the planitiff’s supervisor. He had no recollection of the plaintiff reporting a fall. He remembers the location described by the plaintiff was under a conveyor belt and mud often came from the overhead conveyor. That location was where scaffolding was carried, “we did it all the time”.  The area in question could be “dry one minute and then wet and slippery within a matter of minutes, if it started raining or if somebody turned on a hose. The area could change in an instant, particularly during the crush’. He had no recollection of instructing the plaintiff to take scaffolding through that area. He could not remember who was designated to keep the area clean.

28. [28]
    It seems to me that the effect of the matters of prejudice raised by the defendant is palpable in this case and amounts, at the very least, to “substantial prejudice”.

29. [29]
    In my view the defendant is deprived of the opportunity to properly assess the plaintiff’s allegations and to determine whether or not there was negligence or breach of duty on its part. Despite that potential evidence, if it is adduced and even if cogent, it nevertheless does not fully address the liability issues confronting the defendant on a trial, on the face of the particulars of negligence and breaches of duty alleged by the plaintiff. If from time to time there was mill mud in the area traversed by the plaintiff, there is nothing that the defendant can say about the route taken, whether under instruction, in accordance with training or contrary to direction or mill policy because the defendant cannot now determine those matters because of the passage of time. It cannot say why a worker would use such a route. It cannot say what the safety, training or supervisory instructions were or may have been at the material time.

Conclusion

30. [30]
    No fair trial for the defendant is possible in the circumstances I have discussed. There is no proper basis upon which I should make an exercise of discretion in favour of the applicant. I consider that the defendant has established that there is actual prejudice and at least a real possibility, if not certainty, of significant prejudice in respect of which the defendant is not able to address, beyond the mere presumed or presumptive prejudice inherent in the legislation. To exercise the discretion in favour of the plaintiff would be patently unfair to the defendant. The onus of proof borne by the applicant has not been discharged.

Orders

1Application refused

2The plaintiff to pay to the defendant its costs of the application assessed on the standard basis.