Milling v Fraser Coast Regional Council
[2015] QDC 291
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- Unreported Judgment
- Milling v Fraser Coast Regional Council[2015] QDC 291
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Milling v Fraser Coast Regional Council[2015] QDC 291
Milling v Fraser Coast Regional Council[2015] QDC 291
DISTRICT COURT OF QUEENSLAND
CITATION: | Milling v Fraser Coast Regional Council [2015] QDC 291 |
PARTIES: | JAMES MILLING v FRASER COAST REGIONAL COUNCIL |
FILE NO/S: | D4164/2015 |
DIVISION: |
|
PROCEEDING: | Originating Application |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 23 November 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 November 2015 |
JUDGE: | McGill SC, DCJ |
ORDER: | Limitation period extended to expire on 31 December 2014. |
CATCHWORDS: | LIMITATION OF ACTIONS – Extension of period – identity of material fact of decisive character – whether within means of knowledge of applicant at relevant time – whether evidence to establish right of action. Limitation of Actions Act 1974 s 31. Barnes v Smith [2011] QSC 259 distinguished. Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306 – cited. Castillon v P&O Ports Ltd [2007] QCA 364 – distinguished. Greenhalgh v Bacas Training Ltd [2007] QCA 327 – applied. Greenhalgh v Bacas Training Ltd [2007] QDC 56 – cited. Hargans v Kemenes [2011] QCA 251 – considered. Healy v Femdale Pty Ltd [1993] QCA 210 – applied. HWC v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 – applied. Leigh v State of Queensland [2010] QSC 227 – cited. Maguire v Plumbing Industry Group Training Scheme Inc & Anor [2001] QCA 248 – cited. NF v The State of Queensland [2005] QCA 110 – applied. Pizer v Ansett Australia Ltd [1998] QCA 298 – cited. State of Queensland v Stephenson (2006) 226 CLR 197 – cited. Sugden v Crawford [1989] Qd R 683 – cited. Thompson v WorkCover Queensland [2011] QSC 197 – followed. Watters v Queensland Rail [2001] 1 Qd R 448 – cited. Wolverson v Todman [2015] QCA 74 – cited. Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 – applied. |
COUNSEL: | H Blattman for the applicant R C Morton for the respondent |
SOLICITORS: | Shine Lawyers for the applicant Jensen McConaghy for the respondent |
- [1]This is an application for extension of a limitation period under the Limitation of Actions Act 1974 (“the Act”) s 31. The applicant was formerly employed by the respondent, and alleges that, as a result of the work he was required to do in the course of that employment, he suffered injury to his spine for which he seeks damages. The application is opposed. The applicant gave notices of claim under the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”) on 22 December 2014; it is not now disputed by the respondent that the notices of claim were compliant. If the limitation period is extended to a date on or after the date on which the notices of claim were given, those notices of claim will preserve the applicant’s position so long as any proceedings are commenced within 60 days after a compulsory conference is held: WCRA s 302(2)(a).[1]
Background
- [2]The applicant was employed as a carpenter with the defendant from 26 April 2006 to 16 March 2015.[2]He had worked predominantly in labouring and other manual jobs his whole life. In April 2009 he fell off a ladder and hurt his back, but the pain resolved after a week and he was able to resume normal duties. In August 2010 after a period at work when he had been carrying heavy pieces of hardwood he hurt his back again; he had a couple of days off work and some physiotherapy, and the pain subsided. In May 2011 while digging a trench in clay soil he had back pain which put him off work for a time, while he had physiotherapy and took pain killers. On 23 June 2011 he was seen by an orthopaedic surgeon whose diagnosis was that the injury was an aggravation of degenerative spondylosis in the lumbar spine. The surgeon reported to his employer’s insurer that he had reached a stage where he was able to return to work activity, but he required a home based muscle strengthening programme and would also benefit from having a trades assistant or an apprentice working with him to reduce the requirement for heavy lifting.[3]
- [3]The applicant returned to full duties on 27 June 2011, and was able to cope with his work with only occasional lower back pain until May 2013, when one night he woke in severe pain with difficulty in moving, numbness to his left leg and foot drop. He was referred to a different orthopaedic surgeon who after investigations recommended surgery which was undertaken on 12 June 2013. Although the doctor was suitably cautious about the prospects of improvement as a result of this surgery, the applicant said that he found the operation very helpful in terms of pain relief. His continuing problem of foot drop in the left foot was treated with a home exercise programme after the surgery, and it appeared progressively to improve, though it was still present to some extent at the time when he returned to work on 24 September 2013, having received on 18 September 2013 a very succinct clearance from the orthopaedic surgeon that he could return to normal duties.[4]
- [4]He said that soon after he returned to work he was seen at the request of his employer by an occupational therapist, who produced a report on 18 December 2013 which indicated he would be able to perform his various duties without increased risk of aggravating his back, except for sustained and repetitive heavy manual tasks, which would produce increased risk of aggravating his back.[5]His uncontradicted evidence however was that he was not either told this by the occupational therapist or provided with a copy of this report at that time, nor did he know that his employer had received a report in these terms. In fact he was doing his work in the same way he always had, though he found that he had to be particularly careful when climbing a ladder, or when walking over rough ground, because of the continuing effect of his foot drop. That appeared to be slowly improving, and at the time he believed that he would be able to continue to work in his position with the respondent, at least unless they found out about the difficulty he was having with the foot drop.
- [5]The plaintiff was born on 27 November 1953, so that he turned 60 not long after he returned to work. He would only have a few years, perhaps five years, working life left to him anyway. Apart from two days off work after he hurt his back lifting a solid core door from the back of his work ute in March 2014, it appears that he was in fact able to perform his duties after he returned to work, despite the difficulty caused by the foot drop. On about 1 July 2014 his supervisor for the first time began offering assistance to him in the performance of heavier duties. Although the applicant said that he had on a number of occasions over the years asked for assistance in relation to heavier work, particularly lifting the heavier pieces of hardwood, this was the first occasion on which such assistance had been offered. On this occasion it was offered without any particular request for it on his part, and as a result he became concerned that he was at risk of being sacked because of the consequences of the back injury.
- [6]He consulted a solicitor on 28 July 2014. Following this, and the gathering of information, he issued notices of claim on 17 December 2014.[6]In early 2015 he was referred by the respondent to another doctor to assess his fitness to perform his duties as a carpenter. On 5 February 2015 he saw that doctor, who reported on 18 February 2015 that the applicant was not able to perform many aspects of his duties and would be more suited to sedentary work. In March 2015 in response to this report the applicant was placed on personal leave while the respondent reviewed his position. After he saw that doctor again on 19 May 2015 he was placed on unpaid leave and on 10 September 2015 his employment was terminated with effect from 5 October.
Material fact of a decisive character
- [7]The discretion to extend the limitation period is enlivened if a material fact of a decisive character relating to the right of action of the applicant 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: Act s 31(2)(a). The concept of material facts is explained in s 30(1)(a), and paragraph (b) indicates that such a fact is 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.”
- [8]A fact is not within the means of knowledge of a person at a particular time if, but only if, the person does not know that fact, and so 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: s 30(1)(c). Subsection (2) goes on to explain what is meant by appropriate advice. One of the facts identified as a material fact relating to a right of action is the nature and extent of the personal injury so caused. It is accepted that the extent of the award of damages that a court would make in response to such a claim can be a material fact, but it will only be of a decisive character if it satisfies the test of subsection (1)(b), that is it makes the difference between a claim which is really not worth pursuing and one which is worth pursuing and ought to be pursued.[7]
- [9]Presumably when the applicant in fact consulted solicitors in late July 2014 he received advice that he had a claim which was worth pursuing. It was not put to the applicant in cross-examination or suggested in argument that prior to that time he in fact knew that fact, but it was argued that he had not shown that the fact was not within his means of knowledge at an earlier time because he had not taken all reasonable steps to find out the fact before that time. In substance the argument was that, at least from the time the plaintiff returned to work in late 2013 and realised that there were some difficulties in his doing his job, he ought to have known that his employment was to some extent at risk and ought to have taken appropriate advice as to his position, which would have revealed that such a claim would be worth pursuing. That was shown by the extent of the claim made in 2014.
- [10]The respondent’s argument was that the applicant had to show that the material fact of a decisive character was not within his means of knowledge until after 22 December 2013, and the applicant was not able to show that in the light of the evidence, notwithstanding that it was conceded that before he returned to work it was not within his means of knowledge. Given that the crucial date for the purposes of an extension is 22 December 2013,[8]and that the applicant only returned to work on 24 September 2013, if the applicant was too late he was only just too late.
- [11]In determining whether a material fact is of a decisive character it is relevant to take into account not simply the question of whether a right of action would have a reasonable prospect of success but also whether it would result in an award of damages sufficient to justify the bringing of an action on the right of action. This involves a practical analysis of the position as a matter of economic reality. In recent years legislative restrictions on awards of general damages, and compensation in respect of gratuitous care, impact on the economic viability of a cause of action, particularly in circumstances where there are now in the WCRA restrictions on orders for costs which a court can make in a proceeding based on a claim for damages.
- [12]The applicant was assessed by the respondent’s insurer as having a WRI of less than 20 per cent,[9]so the provisions of Pt 12, div 2 of ch 5 of the WCRA apply: s 240(2). This means that s 316 applies, and a successful plaintiff will obtain an order for costs (and then only costs on the standard basis from the day of the written final offer) if the award is equal to or more than the plaintiff’s written final offer: s 316(2)(a). If the plaintiff would have been better off accepting the insurer’s written final offer, the plaintiff must pay the insurer’s costs from the day of the final offer, otherwise each party bears the party’s own costs. Further, if a proceeding could have been brought in a lower court costs must be awarded on the scale of costs applying in the lower court: s 318. Given that a good deal of the work involved in preparing a claim would occur prior to the time when a written final offer is made, it is an inevitable consequence of this regime that even a successful plaintiff will suffer a large burden of legal costs even in a case where a costs order is made.[10]
- [13]A plaintiff who is successful but does not obtain an order for costs will have to recover significant damages in order to make the whole exercise worthwhile. The practical effect of these considerations is that what is required in order to show that a right of action would result in an award of damages sufficient to justify the bringing of an action on the right of action is a much larger award of damages than would have been considered sufficient to satisfy that test prior to the introduction of the statutory restrictions on damages and costs. I note that in Thompson v WorkCover Queensland [2011] QSC 197 McMurdo J said at [19] that awards in the range of $40,000 to $60,000 would not have been sufficient to justify the bringing of an action, because of a costs limitation which was to the same effect as the current limitation, but was then in s 316 of the Act, but in that case this conclusion was based on evidence.
- [14]There was in this case no evidence as to what sort of an award of damages a plaintiff would need to recover in order to make an action economically viable in this sense, though counsel for the respondent readily conceded that the quantum would have to be more than $50,000. When assessing the economic value of the claim one must take into account and make allowance for the risk of failure on liability. If liability is not clear, in practical terms it means that the quantum, if the claim is successful, has to be that much more to justify taking the risk of failing.[11]In the present case it was certainly not conceded that the applicant had a good case on liability; indeed it was submitted that the applicant had also failed to show that there was evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation. For reasons given below, I am not persuaded that that is made out, but for present purposes what matters is that the question of liability is contentious, and must be described as involving at least some real risk of failure. That is a matter relevant to the application of the test.
- [15]There is a further consideration in relation to the application of the test. It is clear that the test for means of knowledge in s 30(1)(c)(ii) is an objective one, but it is to be applied to a person in the position of the plaintiff and with his background and understanding.[12]The requirement that the person have taken all reasonable steps to find out the fact[13]has to be assessed against what was reasonable for that person. In Healy v Femdale Pty Ltd [1993] QCA 210 the Court in a joint judgment said:
“The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take appropriate advice or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.”
- [16]That passage was cited with approval by Muir J, with whom the other members of the Court of Appeal agreed, in Maguire v Plumbing Industry Group Training Scheme Inc & Anor [2001] QCA 248 at [35]. In NF v The State of Queensland [2005] QCA 110, Keane JA at [29] put essentially the same proposition in this way:
“Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant.”
- [17]In Greenhalgh v Bacas Training Ltd [2007] QCA 327, Keane JA, with whom the other members of the Court agreed, said at [22]:
“Whether an action for damages is worthwhile is an assessment which must be made having regard to the expense and risks of litigation. When an assessment of costs, risks and benefits should reasonably have led to a conclusion that an action was worthwhile must be determined having regard also to the plaintiff's previous attempts to overcome any adverse economic consequences of his injuries. These attempts had largely been encouraged by medical opinion; that the plaintiff persisted with these attempts in these circumstance can hardly be said to have been unreasonable.”
- [18]In HWC v Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, Keane JA, with whom the other members of the Court agreed, said at [44]:
“It is not the policy of the courts in the application of s 31 of the Act to penalise an injured person who makes a reasonable decision to try to get on with life rather than a decision to litigate upon a questionable basis.”[14]
These passages, and the observation in Healy (supra), were referred to and distinguished in Hargans v Kemenes [2011] QCA 251, but nothing was said to throw doubt on the principles stated in them. Other cases where applicants were injured but were able to continue to work and the limitation period was extended include Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306 and Watters v Queensland Rail [2001] 1 Qd R 448. They were treated as coming upon the material fact of a decisive nature only when they first discovered they were not going to be able to continue to work in their chosen fields, or that they ought not to do so to avoid making their condition worse.
- [19]The applicant in his affidavit said that he was able to return to his full employment duties as a carpenter in September 2013 without significant discomfort “save that I had ongoing issues with my left foot and was conscious of not reinjuring my back. I did not however at that time anticipate any risk to my ongoing employment with the Council”: para 46. He referred to the interview with the occupational therapist, where nothing was said to indicate that his employment would be at risk: para 47. Although he hurt his back again when lifting a solid core door on 21 March 2014, he returned to full duties after two days off work: para 49. It was only on or about 1 July 2014, when his supervisor began offering him assistance in relation to his duties, that he became concerned that his position was at risk of termination: para 50. Because of concern about his ongoing employability with the respondent, and because he had used up his sick leave, he consulted a solicitor in late July 2014. He said that up until then he was not aware that he was able to bring a negligence claim against his employer: para 51. As a consequence of this the notices of claim were given in December 2014.
- [20]Under cross-examination the applicant agreed that when he went back to work the difficulties with the foot drop were there to a degree, and that they had never fully recovered: p 6. He agreed that when he went back to work he had to be cautious with tasks such as climbing a ladder and walking across uneven ground because of the foot drop, and that this continued in October and November of 2013: p 7. He knew he had this difficulty at work, though he tried to keep it to himself as much as he could. He was still doing his exercises at home, and felt he was improving all the time, though he conceded that it was possible that if his employer realised the difficulties he was having with the foot drop his employment would have been at serious risk. He thought that if he kept doing the exercises and if he continued at work things could only get better: p 8. The foot drop had improved between the operation and when he went back to work as a result of his exercises.
- [21]Overall it seems to me that the plaintiff’s position at the time he went back to work was that, although he did have some difficulty as a result of the foot drop, he was able at that time generally to do his work, so long as he was careful, and he was hopeful that his difficulties would diminish in time as the problems with his foot continued to improve. Although to some extent the security of his employment depended on his employer not finding out how bad the foot was, he believed that in time the risk would diminish, as his foot continued to improve and as he continued to demonstrate that he was in fact able to continue doing the job. As it happened the employer was aware, from the report of the occupational therapist, that there were some duties for which he was no longer fit, but he had not seen that report and did not know that the respondent had been advised in those terms.
- [22]On the basis of what he knew it was reasonable for him to expect that he would probably be able to continue in his job until he was of retirement age anyway even if he was aware of some risk to his employment. In these circumstances, it was reasonable for him not to have sought advice in relation to his legal position. In addition, if he had sought that advice it is not at all clear that he had a claim which was worth pursuing. It may be that, if there was no issue about liability, the applicant may have had a claim worth pursuing even at that stage, simply because of the risk to his employment, but in circumstances where liability was likely to be contentious, as it has proved to be, that factor should also be taken into account, and as a result it is not clear that at that stage the applicant ought to bring an action on the right of action in his own interest. It was really only in March 2015, when it became clear that the respondent no longer regarded him as fit to do the carpenter’s job, that the risk of losing his job became a probability, and shortly after that the certainty, of losing his job, so that the claim if successful would obtain a significant award of economic loss.
- [23]It is apparent from the information that is in the notice of claim that the plaintiff’s net income in the 2011, 2012 and 2013 financial years was between $42,500 and $45,000. At the time when he returned to work the present value of his future earning capacity was probably not much more than $200,000 anyway, once it was discounted for contingencies, and bearing in mind the uncertainty as to liability, the fact that there was virtually no past economic loss, and the limited amount of general damages available for an injury of this nature, he would have to be confident of succeeding in his claim and of obtaining at least a significant fraction of this amount to make pursuit of the claim economically worthwhile.[15]I conclude on all the material I have seen that as at the end of 2013, if the applicant had taken proper advice, on the information then available the situation had not yet become one where the economic value of his right of action was sufficiently great to make it economically worthwhile bringing an action on it, let alone that it was in his interest, taking his circumstances into account, to bring such an action on the right of action. It would be reasonable to expect that a person in modest circumstances would be wary about litigating, particular if a significant amount had to come out from anything recovered to cover costs, and where there was a real risk of not recovering costs or of having to pay costs if his claim failed or if he was awarded less than the amount of the insurer’s final offer. If there is some real risk associated with liability, such person is likely to be particularly cautious about litigating.
- [24]It was submitted for the respondent that the applicant well knew after the surgery in June 2013 that his employment was at risk. I do not accept that that is the situation here. On the evidence of the applicant, which I accept, he found the surgery quite helpful, particularly in alleviating his pain, and he believed that he would be able to return to work, a belief supported in time by the clearance from his surgeon to do so. When he returned he experienced some difficulty with the foot, but believed he could cope with that with care, and that the respondent would probably not find out about it. He knew he had been assessed by an occupational therapist, after which he was allowed to continue to work on his normal duties: the reasonable, indeed obvious, inference is that the occupational therapist did not consider him unfit to do such work. He also felt himself generally able to cope with his work, provided he was careful, and that his physical condition appeared to be continuing to improve.
- [25]In these circumstances I think it was quite understandable that he would be optimistic about his prospects, even acknowledging that there was some risk, and it was reasonable for him to have persevered with his return to work. I do not think that he knew at any time in 2013 that his employment was significantly at risk, and without that knowledge I do not consider that he was aware of a material fact of a decisive character.
- [26]Reference was made to the fact that the notice of claim sought an amount of approximately $280,000 in damages. At the time it was given the applicant was still working, and it was not clear that he was about to lose his job, and for this and other reasons it seems to me that at that stage such a claim was decidedly optimistic. I do not think that someone in the applicant’s position would at that time have been realistically advised his claim would be likely to be worth that amount.[16]There is no reason to be modest in nominating the particulars of damages in the context of a notice of claim.
- [27]It was submitted that the position was no different from that identified by Keane JA in Castillon v P&O Ports Ltd [2007] QCA 364. In that case it was argued that the plaintiff did not know that he had a worthwhile cause of action until his employment was finally terminated, notwithstanding that before that date he had actually commenced a proceeding on his claim. That is quite different from the present case, where the notices of claim were given reasonably promptly after the plaintiff consulted solicitors, in circumstances where the behaviour of the respondent had already indicated that the applicant’s employment was actually at risk. There is also the consideration that a notice of claim is a relatively inexpensive thing to give, and may well be given at a relatively early stage with a view to protecting the applicant’s position, if it appears that he might have a claim worth pursuing, even if at that stage the matter has not been sufficiently investigated to indicate that he has a claim which it will be worthwhile pursuing.[17]
- [28]Section 30(1) is framed by reference to the issue of whether it is worthwhile pursuing litigation rather than being worthwhile pursuing pre-litigation procedures under the relevant statute. I note that the passage in the judgment of Keane JA referred to by counsel for the respondent related to the commencement of a proceeding. In Castillon leave was given to the plaintiff by a consent order on 27 November 2002 to commence a proceeding despite noncompliance with the requirements of s 280 of the WorkCover Queensland Act 1996. In that case the plaintiff had consulted solicitors at least by 2001, and they had obtained medical reports during 2001 to the effect that the plaintiff reported that he was unable to perform his normal work because of his symptoms, and that it was likely that he would not be able to return to his normal work. There was no analogous medical evidence available to the applicant at a relevant time in this matter. I do not doubt his Honour’s analysis of the position in Castillon, but it is with respect completely different from the position in this case.
- [29]It was submitted that a reasonable person acting in their own interests and taking the applicant’s circumstances into account would have sought appropriate medical advice, and consulted a solicitor, much earlier. I am not persuaded that either finding is justified on the evidence, bearing in mind in particular the medical advice the plaintiff had obtained, and, in particular, that he had in mid-2013 undergone surgery which had produced a significant improvement in his condition, particularly in terms of pain relief. In those circumstances I think it was a natural response to try to get back to work, and in circumstances where he was cleared for work by the orthopaedic surgeon I can see no reason why a reasonable person in his position would have been seeking medical advice as to whether he really could do that work, and whether he would probably be able to continue to do so. I also do not consider that a reasonable person in his position would have sought legal advice at an earlier time.
Evidence to establish the right of action
- [30]Section 31(2)(b) also requires, for the power to extend the limitation period to arise, that there be evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation. The leading exposition of the approach to this requirement is that of Macrossan CJ in Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431[18]at 434-5:
“If a general observation is permissible at this point it can be said that applicants for extension of limitation periods are not intended by the legislation to be placed in the position where they must establish an entitlement to recover on two occasions, first on the hearing of the application and once more at the trial of the action. Although the requirements of the legislation must be complied with if an extension is to be granted, 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. It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities how that it is likely they will succeed in their actions. A judge may harbour a feeling that there is a strong chance that particular applicants will fail at trial 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 see 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. In any situation where proof of a case is difficult and very far from straightforward, it would be very expensive to require a party applying to extend time to demonstrate his case with any high degree of elaboration. Fundamentally, the standard required on an application for extension of time under the Act comes from the literal words of s. 31(2)(b): "evidence to establish the right of action". These words will be construed according to the evident policy of the legislation.
A number of decisions in the past have endeavoured to make clear the onus which, under the formula just quoted, the applicant for extension must discharge: Sugden v. Crawford [1989] 1 Qd R 683 at 686, Minoque v. Bestobel Industries Pty. Limited [1981] Qd R 356 at 358, Martin v. Abbott Australasia Pty. Ltd. [1981] 2 NSWLR 430 at 443 and Dwan v. Farquhar [1988] 1 Qd R 234 at 239. One way in which the onus has been expressed is that the applicant must demonstrate something like a prima facie case. The evidence need not at the stage at which the application is brought be in a form which would be admissible at trial and it may indeed be hearsay. It will not be possible to predict whether the plaintiff's evidence will prevail at trial when it will be subjected to challenge and forced to confront the opposing evidence of the defendant, but it is probably accurate enough to say that an applicant will meet the requirement imposed by s. 31(2)(b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case.”
- [31]In that case the appellant sought an extension of time with a view to running an action for negligence against the respondent which was responsible for the supply of a particular dye used in a medical procedure on the appellant. Davies JA, the other member of the majority said of this at p 444:
“In order to satisfy s 31(2)(b) the appellant had to show that there was some evidence that in 1972 the respondent knew or ought to have known that the risk involved in the use of Myodil necessitated its withdrawal from sale or a more specific warning than that which was given in the printed information supplied by the respondent with Myodil.”
The reference to “some evidence” suggests an approach essentially similar to that of the Chief Justice. As to the question of the policy of the legislation, in State of Queensland v Stephenson (2006) 226 CLR 197 Kirby J described the extension provisions in the act as remedial, and referred to other decisions where the same view of such legislation had been taken: [51]-[56].
- [32]In the present case the applicant has in his affidavit provided details of the sort of work he was undertaking for the respondent in the course of his employment from April 2006. This included lifting and carrying pieces of hardwood timber about 3 m long, 200 mm wide and 75 mm thick, said to weigh approximately 25 to 30 kg: para 9.[19]This was used in building walkways, and in repairing and maintaining jetties and a pier. Generally he was not provided with assistance in the form of a labourer or a machine. He also spoke of having at times to lift his tool box weighing approximately 40 kg off the utility, and lift a generator onto and off the back of the utility with assistance from a co-worker. He also spoke of other strenuous work including digging trenches in clay soil, which was very difficult. Again mechanical assistance was not provided. The applicant said he often asked for extra assistance but was told that it was not available, as that would increase the cost of the job.
- [33]Apart from this there is evidence in the form of a report from a neurosurgeon, Dr Campbell obtained on 7 March 2015.[20]Dr Campbell expressed the opinion that half of the applicant’s overall impairment, which he assessed at 19 per cent whole person impairment in accordance with the fifth edition, the AMA Guides, was due to the nature of the applicant’s work from April 2006 to May 2011. This provides evidence of causation.
- [34]It is true that there is no specific expert evidence dealing with the question of whether the conditions under which the applicant was required to work were too demanding, but I know from my experience in other cases that there are standards about what sort of loads an employee should be expected to lift without assistance, and as a general proposition if mechanical assistance is available and would have the effect of sparing work activities which would put strain on an employee’s back, it is at least arguable that an obligation to take reasonable care to avoid or minimise the risk of injury to an employee would require an employer to provide such assistance as was readily available. I do not consider that it is necessary at this stage for the applicant to place before the Court expert evidence dealing with these matters; it is I think reasonable to proceed on the assumption that such evidence is likely to be available if the matter proceeds to trial. That would be consistent with the approach adopted by the majority in Wood (supra). I should add that there is also a good deal of other medical evidence dealing with the development of the applicant’s back condition.
- [35]Counsel for the respondent referred to the decision in Barnes v Smith [2011] QSC 259, where an application for extension of the limitation period was dismissed on the basis that the applicant had not established that she had an action on the right of action apart from the expiry of the limitation period: [46]. His Honour referred to the decision in Wood, which I have cited, and discussed this issue at [43] to [46] in the following terms:
“More troubling is that the applicant has not advanced any evidence that the repetitive movement of a 20-24 kg weight in the manner that she adopted on the day in question involved forces that were liable to injure the spine of a person of normal fortitude. It is not to the point that in numerous cases over the years plaintiffs have succeeded to awards of damages where the weights involved have been no greater – each case is required to be proved on its own set of facts.
The respondent has put in evidence a document entitled “Manual Handling Management – Injury Prevention” which is said to be an information paper which provides “minimum guidelines on manual handling within the workplace to ensure your safety”. This was the document that the respondent provided to the applicant as part of her induction. It speaks of risk identification including asking “Do I have to twist?” and “Do I do a lot of repetitive actions…?” It points out that the risk of injury increases with frequency of activity and the force required to handle a load.
That is the full extent of the evidence touching on the issue. The generalisations set out in the first respondent‘s document do not advance matters very far. Presumably evidence can be obtained that would support those generalisations. But the crucial issue is: did the work complained of expose the plaintiff to an unnecessary risk of injury that could have been avoided? Does a plaintiff succeed in a case against the employer by proving that they have been required to lift and move weights from the floor to a height of 55 cms and then place those weights behind them when the weights in question were between 20 and 24 kgs, combined with the knowledge that is set out in the employer‘s document? I do not think so.
I appreciate that the test here is undemanding and that the standards imposed on an employer at common law to prevent or minimise risk of injury are high. Despite that I am not satisfied that the applicant has established that she has an action on the right of action.”
- [36]The facts of that case were, I think, significantly different from the facts of the present case. In that case the applicant was complaining about the consequences of her having to lift about 20 paint drums weighing at least 23 kg each in the course of one day, during which the applicant’s back became progressively more sore so that eventually she could hardly move. She was subsequently found to have a disk protrusion and had been advised to have surgery. In those circumstances his Honour was considering the question of whether there was negligence in the context of this being required of the employee on one occasion, whereas in the present case there is evidence of a consistent pattern of heavy lifting and other heavy work required of the applicant in the course of his employment. His Honour noted an absence of evidence that the risk of injury was unnecessary in that such lifting could have been avoided. In the present case there is evidence from the plaintiff that the strenuous nature of his work could have been reduced by the provision of assistance in the form of an additional labourer or apprentice, or by the use of mechanical equipment which he said was available. That also serves to distinguish this case from Barnes.
- [37]I also note that there was a reference there to the prospect of a risk of injury to the spine of a person of normal fortitude. No doubt in the present case when the applicant began work for the respondent it was entitled to assume that he was a person of normal fortitude, but in this case in 2011 an orthopaedic surgeon had recommended in a report to the employer’s insurer that the employer provide a trade assistant or apprentice to work with the applicant to reduce the requirement for heavy lifting. Accordingly, from that time on the respondent was on notice that the applicant’s spine was particularly at risk from heavy lifting, but on the evidence took no steps to provide the assistance recommend in that report. That seems to me to provide a compelling basis for distinguishing this case from Barnes. In those circumstances I do not regard the decision in Barnes as a good guide to the appropriate outcome in the present case.
- [38]I think it likely that there would be additional evidence at a trial not presently before me, but even in Barnes the Court was prepared to take into account the prospect that there would be such additional evidence: [45]. This issue is to be decided essentially on the impression on my mind from the material available, and it seems to me, on the material available, that it can reasonably be expected that there will be evidence at the trial which, if unopposed by other evidence, would be sufficient to prove the plaintiff’s case on liability. There is no dispute about proof of the plaintiff’s case on quantum. This is not to say that the issue of liability is free from risk for the plaintiff; I am not seeking to predict the outcome of a future trial, much less to indicate a probability of success on liability at such trial. That will depend on all the evidence available and before the Court at that time. But I consider that, approaching the matter in the way indicated in Wood, the applicant has shown that he has evidence to establish the right of action apart from a defence founded on the expiration of the limitation period. Both requirements for the discretion to extend the limitation period have therefore been satisfied.
Conclusion
- [39]No question of prejudice as a result of the delay was raised by the respondent, and no other particular factor suggesting that the discretion should not be exercised in favour of the applicant has been put forward. In those circumstances it is usual for the discretion to be exercised so as to allow an extension of the limitation period. Given the circumstances of the applicant, I consider that his behaviour in not addressing the matter sooner was reasonable; so much really follows from the findings made earlier. I am therefore prepared to exercise my discretion, and extend the limitation period. It will be sufficient for the applicant’s purpose if the period is extended to a date as such that the notices of claim dispatched by post on 17 December 2014 and apparently received on 22 December 2014 were within the extended period. I think that it is convenient, and consistent with my earlier finding, to extend the limitation period so that it expired on 31 December 2014.
- [40]It is not now disputed that the notices of claim were compliant, so no relief specifically under the WCRA is now required. I understand that the effect of this decision is that the pre-litigation procedures under the WCRA can now proceed, and the applicant will have until 60 days after the compulsory conference to commence a proceeding in the Court on his claim, if that becomes necessary. I shall invite submissions as to costs when these reasons are delivered.
Footnotes
[1] None of this was contentious before me.
[2] Affidavit of the applicant filed 26 October 2015 for background facts, except where otherwise stated.
[3] Affidavit of the applicant, Exhibit JM1.
[4] Ibid, Exhibit JM3.
[5] Ibid, Exhibit JM4.
[6] Affidavit of Blane filed 26 October 2015, para 4, Exhibit JJB1. It appears they were received by the insurer on 22 December 2014, Exhibit JJB2.
[7]Watters v Queensland Rail [2001] 1 Qd R 448 at [1], [11]. An enlargement of the damages which is not of a decisive character will not suffice: Sugden v Crawford [1989] Qd R 683 at 684.
[8] See Leigh v State of Queensland [2010] QSC 227 at [34].
[9] Affidavit of the applicant, Exhibit JM5.
[10]Thompson v WorkCover Queensland [2011] QSC 197 at [19]. The position is dramatically less favourable to plaintiffs than that contained in UCPR, ch 9, Pt 5.
[11] In theory all of these things could be quantified, and the matter worked out mathematically. No doubt in practice experienced practitioners in this area can make a practical assessment of these matters.
[12]Castlemaine Perkins Ltd v McPhee [1979] Qd R 469 at 472.
[13]Pizer v Ansett Australia Ltd [1998] QCA 298 at [15].
[14] His Honour went on to refer to the reference by Thomas JA in Piser v Ansett Australia Ltd [1998] QCA 298 to the comment quoted from Healy v Femdale (supra).
[15] Compare Greenhalgh v Bacas Training Ltd [2007] QDC 56 at [16]; appeal dismissed: [2007] QCA 327.
[16] Compare Thompson v WorkCover (supra) at [26].
[17] In Thompson v WorkCover (supra) McMurdo J held that the material fact of a decisive character was not within the applicant’s knowledge until some 7 months after he gave a notice of claim.
[18] Often applied, for example in Wolverson v Todman [2015] QCA 74.
[19] Counsel for the respondent argued that other weights had been mentioned elsewhere, but the applicant was not cross examined on this.
[20] Affidavit of Blane filed 1 November 2015, Exhibit JJB1.