Hogan v Allen Taylor & Company Ltd
[2015] QDC 85
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- Unreported Judgment
- Hogan v Allen Taylor & Company Ltd[2015] QDC 85
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Hogan v Allen Taylor & Company Ltd[2015] QDC 85
Hogan v Allen Taylor & Company Ltd[2015] QDC 85
DISTRICT COURT OF QUEENSLAND
CITATION: | Hogan v Allen Taylor & Company Ltd [2015] QDC 85 |
PARTIES: | ANTHONY PATRICK HOGAN (Applicant Plaintiff) v ALLEN TAYLOR & COMPANY LTD (Respondent Defendant) |
FILE NO/S: | 4664/12 |
PROCEEDING: | Application |
DELIVERED ON: | 23 April 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 April 2015 |
JUDGE: | Bowskill QC DCJ |
ORDER: | The application is dismissed |
CATCHWORDS: | LIMITATION OF PARTICULAR ACTIONS – Extension or Postponement of Limitation Periods – Extension of Time in Personal Injuries Matters – Generally – Knowledge of Material Facts of Decisive Character – Where the Defendant became aware of injury after the end of the limitation period – Whether there is prejudice to the defendant arising from the delay – Whether the delay has made the chances of a fair trial unlikely Limitation of Actions Act 1974 (Qld) s 31 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Hertess v Adams [2011] QCA 73 HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 Muir v Franklins Limited [2001] QCA 173 Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10 |
COUNSEL: | A Stobie for the Applicant B F Charrington for the Respondent |
SOLICITORS: | McNamara & Associates for the Applicant Kaden Boriss Brisbane for the Respondent |
Introduction
- [1]In 2002, the plaintiff was employed by the defendant as a labourer in what was known as the “Top Mill” at the defendant’s North Ipswich factory. He had been working there since September 1998.
- [2]On 15 March 2002 he was injured at work, in the course of carrying out his duties working on a machine used in the manufacture of plywood, described as the 15 Daylight Hot Press. He suffered an injury to his back.
- [3]He made various claims for workers’ compensation in respect of this injury, initially in 2002, and then subsequently in 2004, 2006 and 2008, when further treatment was required. He continued to be employed by the defendant for a further 9 years, albeit in somewhat different roles, which he describes as less demanding than the work he was doing prior to his injury in 2002. He says that, throughout the remainder of his employment with the defendant, he did not consider himself to be grossly incapacitated; that he was able to complete the required tasks, although they were relatively undemanding.[1]
- [4]The defendant’s North Ipswich factory was inundated by the 2011 floods, and subsequently closed and demolished as a result.[2] The plaintiff was made redundant on 15 July 2011.
- [5]Almost immediately he found alternative employment, commencing with The Reject Shop as a store-person on 18 July 2011. Unfortunately, he found that he was unable to meet the physical requirements of this job, which caused him severe back pain, and did not return after the first day. Since then, he says he has only been able to work in more sedentary roles, and in a part time capacity. For the last 2½ years he has been employed as a bus driver, 3 days a week.[3]
- [6]He attributes his inability to work full time, and in a manual labouring role, since July 2011 to the injury he sustained to his back in March 2002, and now seeks to bring a claim for damages in negligence against the defendant, in respect of the injury he sustained on 15 March 2002.
- [7]A notice of claim for damages dated 24 April 2012 was served on WorkCover on 16 May 2012.[4]
- [8]WorkCover responded on 30 July 2012, under s 281 of the Workers’ Compensation and Rehabilitation Act 2003, denying liability for the claim, on the bases of expiry of the limitation period; that because the injury occurred more than 10 years ago, WorkCover and the employer are prejudiced and unable to now meaningfully investigate or respond to the claim; and in any event denying the injury was caused by any act or omission of the employer.
- [9]A compulsory conference was held on 3 October 2012.[5]
- [10]These proceedings were commenced on 29 November 2012.
Application to extend the limitation period
- [11]By operation of s 11(1) of the Limitation of Actions Act 1974 (LAA) the limitation period for a cause of action arising out of the injury suffered on 15 March 2002 expired on 15 March 2005.
- [12]By this application, the plaintiff seeks an extension of the limitation period to 18 July 2012,[6] pursuant to s 31(2) of the LAA, which provides:
“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[7] 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 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.”
- [13]The defendant has made a number of concessions on this application, significantly narrowing the issues to be determined.[8] For the purposes of this application, the defendant concedes that:
- (a)the plaintiff’s incapacity for his new employment with The Reject Shop is, if proven to be associated with an injury sustained on 15 March 2002, a material fact of a decisive character, within the meaning of s 30(1)(b) LAA;
- (b)the plaintiff did not have the means of knowledge about his enduring back-related incapacity for work until his failure to meet the requirements of his duties at The Reject Shop;
- (c)the plaintiff acted reasonably, for the purposes of s 30(1)(c) of the LAA, by following the advice of his treating medical practitioners in 2002, and by getting on with his working life in his employment with the defendant until made redundant after the 2011 floods;
- (d)a worthwhile cause of action only arose after the plaintiff’s employment with the defendant had ended and he experienced failure in the new job; and
- (e)there is evidence to establish a right of action apart from the limitation defence.
- (a)
- [14]The only issue for determination then is whether, in the exercise of the discretion conferred by s 31(2), I should grant the extension. The defendant opposes the grant of the extension on the grounds of prejudice, submitting that it would be unable by reason of the passage of 13 years since the date of the injury to mount a proper defence to the action. The plaintiff submits that the assertions of potential prejudice are speculative only, and would not preclude a fair trial.
Relevant principles
- [15]Whilst there is an evidentiary onus on the defendant to raise any consideration telling against the exercise of the discretion, the ultimate onus of satisfying the court that time should be extended remains on the plaintiff/applicant.[9]
- [16]In Brisbane South, Dawson J and McHugh J described the onus on an applicant for an extension as one of showing that the justice of the case requires the exercise of the discretion in his or her favour.[10] To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the defendant.[11]
- [17]Justices Toohey and Gummow said that “[t]he real question is whether the delay has made the chances of a fair trial unlikely.”[12]
- [18]An applicant who is unable to show that a fair trial can take place, notwithstanding the delay which has occurred, will not discharge the burden of showing good reason for the favourable exercise of the discretion.[13]
- [19]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 for an extension.[14]
- [20]
- [21]As McHugh J said in Brisbane South at 551:
“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations had been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Singo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”[17]
- [22]As his Honour also said at 555:
“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 able to 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 provision should trump 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 lost right should not be revived than that the defendant should have a spent liability reimposed upon it.”
The plaintiff’s proposed case against the defendant
- [23]In his affidavit in support of this application, the plaintiff says:
“3. As at March 2002, I was assigned to work on a machine used in the manufacture of plywood, described as the 15 Daylight Hot Press. The 15 Daylight Hot Press was designed to be used in the preparation of formwood, which in the finished form, is wrapped with specialised black plastic. The plastic covering allowed the operator of the machine to slide the form wood easily. Once the formwood had spent the required time in the press, it was slid out of the machine, then slid across the top of a trolley and directly onto a pallet on which it was stacked in preparation for being moved with a forklift.
- Although the 15 Daylight Hot Press was designed for the preparation of formwood, it was also used in the preparation of structural plywood when no formwood orders were required to be completed. Structural plywood was not wrapped in the same specialist black plastic as formwood, and did not have the same sliding capacity.
- The required tasks in this position included repetitive lifting and throwing of sheets of structural plywood consisting of various weights and dimensions. I was required to remove the structural plywood from the 15 Daylight Hot Press by manually lifting the plywood out of each of the fifteen (15) tray slots and then throwing it over to the despatch pallet. This action was performed by two operators, each standing on one side of the trolley (which had a variable height platform), and throwing the plywood sheets over the width of the trolley. The sheets had to be thrown over a horizontal distance of about 1.8m or more, because the trolley itself was about 1000 mm wide and there was a further gap of about 750 mm to the despatch pallet. The tray slots varied between about 800 mm and 2m above the level of my feet. The plywood stacked on the despatch pallet was always below the tray slots, but the drop height from the tray slots to the pallet varied between about 300 mm and 1700 mm.”
- [24]In the amended statement of claim,[18] it is pleaded that, in the course of using the machine for the manufacture of structural plywood (paragraph 6), the plaintiff was required to manually lift each sheet of structural plywood away from the machine, and throw it onto a mobile rack (paragraph 7), which required the plaintiff to twist his body (paragraph 8). He sustained an injury to his back[19] in the course of doing so (paragraph 9).
- [25]The amended statement of claim pleads the following as particulars of the negligence of the defendant (paragraph 10):
“(a) failing to take any or any adequate precautions for the safety of the Plaintiff;
- (b)exposing the Plaintiff to a risk of damage or injury which could have been avoided by reasonable care on the part of the First and/or Second Defendant [sic, there is only one defendant];
- (d)failing to provide any or any safe system of work for the Plaintiff;
- (e)failing to provide safe plant and equipment for the use of the Plaintiff;
- (h)failing to provide a mechanical system for the removal of ply sheets from the machine;
- (i)failing to otherwise design or modify the task of removing plywood sheets from the machine, so as to reduce the risk of injury to the operators;
- (j)using the machine for a purpose for which it was not designed, namely the manufacture of structural plywood.
- [26]Allegations of failure to provide appropriate warnings, instructions, or supervision which appeared in the original statement of claim have been abandoned in the recently amended statement of claim.
- [27]Greater specificity about the plaintiff’s proposed case on liability appears in a report the plaintiff obtained from Justin O'Sullivan, of Ergowork, who is an “ergonomist and safety consultant”, dated 27 February 2015.[20] Mr O'Sullivan has identified “some possible countermeasures for the manual handling at the 15 Daylight machine”, which would have reduced or alleviated the risk of injury, including, relevantly:
- (a)“Install a scissor lift on the platform on which the workers stand such that the surface of the scissor lift, which as [sic, has] rollers embedded, remains level with the height of each rack and within the hip to elbow heights of the workers so that each sheet of ply can be slid across onto the scissor lift surface, up against removable posts, until a stack of 15 is completed…”.
- (b)“Install a pair of roller frames on the outside edge of the platform on which the workers stand, at about hip mid-thigh height; the frames angle down toward the despatch pallet; the workers lift each sheet across to the roller frames and guide it so it slides down with gravity and falls across onto the despatch pallet, stopping against the stanchions on the far side”.
- (c)“Install a frame on the platform on which the workers stand such that it has gaps for the forklift forks; the workers slide the ply sheets out of the rack and drop them onto the frame to form a stack…”.[21]
- (a)
- [28]Mr O'Sullivan’s report is based on information obtained from the plaintiff about the work processes adopted in using the machine in the manufacture of plywood; as well as a statement from Mr Dare (who was the second in charge for the fabrication area in the Top Mill at the time of the plaintiff’s injury[22]). He also had regard to information otherwise produced in the course of disclosure (including non-party disclosure), largely obtained from WorkCover’s files in relation to claims made by other employees, including photographs of a different “hot press” machine used in another part of the defendant’s factory, a “functional profile” for the 15 Daylight Hot Press machine, a job description for a hot press operator, a statement of skill requirements for a hot press operator, the “standard operating procedure” for the 15 Daylight Hot Press machine, and a letter from an in-house solicitor for WorkCover, to another claimant’s solicitor, setting out a liability response.[23]
- [29]The plaintiff’s solicitor has, in February and March of this year, obtained statements from Derek Dare (referred to above), which describes the work process involved in using the 15 Daylight Hot Press machine for the preparation of form wood and structural ply; Greg Stapley (the leading hand for the fabrication area in the Top Mill at the time of the plaintiff’s injury),[24] also describing the work process, and referring to a modification introduced some time after 2002 (a water sprayer); and Peter Doherty (the supervisor for the fabrication area in 2002),[25] also describing the work process.
Prejudice to the defendant arising from the delay
- [30]The prejudice identified by the defendant is not limited to the presumptive prejudice arising from the long delay.[26] The defendant submits that it faces actual prejudice of a significant kind, having regard to the following:
- (a)That the defendant cannot identify the people who installed, configured, commissioned and set up the machine, which it is believed was originally installed sometime in the mid 1990s,[27] as a result of which the defendant is unable to ascertain what considerations and/or ergonomics may have been taken into account at that time and subsequently when the machine was in operation. The defendant submits that if the plaintiff’s case against the defendant is that it breached its duty of care by failing to put in place the countermeasures identified by Mr O'Sullivan, in the absence of evidence from the people responsible for the configuration, installation and commissioning of the machine, the defendant cannot fairly defend that claim.
- (b)Following the extensive damage to the factory caused by the January 2011 floods, as a result of which the factory was closed and demolished, it is not known what became of the 15 Daylight Hot Press machine, but the machine itself is not available to be inspected.[28] As a result, the defendant will not be able to undertake any relevant testing of the machine, to address the countermeasures proposed by Mr O'Sullivan.
- (c)Further, it appears paperwork and other records were also destroyed or lost as a result of the flood.[29] The defendant acknowledges that it cannot say exactly what this paperwork might have been, but points to evidence that it may have included:
- (i)relevant documentation of measures adopted to modify work processes, plant and equipment over time;[30]
- (ii)relevant documentation dealing with modifications to the 15 Daylight Hot Press machine over time;[31]
- (iii)relevant documentation of standard operating procedures for the processes required to be performed by workers;[32]
- (iv)relevant documentation in relation to competency training and manual handling generally.[33]
- (i)
- (d)As a result of the passage of time, the recollection of relevant witnesses has faded (for example, Mr Muir, as appears in, for example, [7] of exhibit “DVB-01”; Mr Stapley, as appears in his affidavit filed 13 April 2015; and Mr Hoult, as appears in exhibit “DVB-08”).
- (e)The consequence of the matters in (c) and (d) being that, again, the defendant is unable to fairly defend itself against the plaintiff’s claims. In this regard, the defendant submitted that there is no evidence available to the defendant of:
- (i)what consideration was given to any of the countermeasures suggested by Ergowork;
- (ii)whether those countermeasures were financially viable or prohibitive in cost;
- (iii)whether those countermeasures would have adversely affected production;
- (iv)whether the equipment suggested by Ergowork was readily available at the relevant time;
- (v)what other considerations were taken into account when installing the machine in the early 1990s and modifying it after the initial installation.
- (i)
- (a)
- [31]In the circumstances, the defendant submits a fair trial of the proceeding is not possible, because of the prejudice to the defendant occasioned by the delay, in circumstances where the limitation period expired ten years ago.
In those circumstances, can a fair trial take place, notwithstanding the delay?
- [32]The plaintiff argues that his case is a simple one, focussing upon the system of work involved in only one aspect of the use of the 15 Daylight Hot Press machine (that is, the lifting and sliding of sheets of plywood off a rack, over a gap, and onto a dispatch pallet; the lifting, twisting and throwing involved in this task said to be the cause of the plaintiff’s injury).
- [33]It is said that the focus of the case is on the basic features of the design, or lack of it, of the work task, which were the cause of the plaintiff’s injury (that is, the relative levels of the rack and the dispatch pallet, the size of the plywood sheets and the gap over which they were thrown).
- [34]For that reason, the plaintiff submits that the fact the machine itself cannot be inspected, that there are no photographs of the machine, and that there is no specific documentation in relation to the design or installation of the machine, are not matters which would affect a fair trial in this proceeding.
- [35]In any event, the plaintiff says “a large amount of documentation has now been disclosed”. In this regard, the plaintiff refers to the availability of three documents said to relate to the use of the relevant machine, namely:
- (a)an undated document headed “Functional profile” for the 15 Daylight Hot Press[34] which the plaintiff says is a “fairly comprehensive description of what’s described as a position [ie a job], but obviously describes a process involved in operating a 15 Daylight machine” and which the plaintiff says is “obviously part and it could be a very large part of the documented system of work for this machine”.
- (b)
- (c)a document headed “hot press operator skill requirements”, dated 8 November 1997;[36]
- (a)
- [36]Reference is also made to a fourth document headed “standard operating procedure”,[37] which records that the plaintiff has been instructed in a number of things (and was signed by the plaintiff and Mr Stapley) (also undated).
- [37]The plaintiff submits it may be inferred that those documents represent a “reasonably complete record” of what the employer was holding in relation to the operation of this machine, in part on the basis that the documents themselves do not cross-refer to any other documents. That does not seem to me to be a reasonable inference. The documents are directed to the skills the employee needs in order to do the job; not the functionality of the machine itself. That they do not refer to other documents which do deal with the functionality of, or modifications to, the machine is not, in my view, a sound basis on which to conclude there are no such documents.
- [38]The plaintiff also refers to a liability response provided by an inhouse solicitor for WorkCover, in the context of a claim by another employee,[38] which is relied on because it is said to contain a detailed description of the system of work for “a closely related machine”. The plaintiff submits that, “[t]ellingly, there is no reference to the installation process, any changes to the machinery, engineering assessments, ergonomic assessments, or risk assessments. The Court can readily infer that, at all times, the Defendant would have produced a similar response in relation to this claim”.
- [39]I am not prepared to draw that inference either. What a particular solicitor writes, in a letter responding to another claim, in respect of a different incident, at a different time, is not in my view probative of the issues which would arise in this proceeding. The author of that letter cannot give relevant, admissible evidence in this proceeding.
- [40]In this context, the plaintiff also submits that the defendant has “a terrible claims record”, on the basis of the number of workers compensation claims and actions for damages against it, which emerged as a result of the non-party disclosure the plaintiff sought from WorkCover.[39] The plaintiff submits that “is in itself an indication that the processes weren’t working and it would therefore be unsafe to assume that the employer had a fully and properly documented system of work in that respect”.
- [41]The defendant responds to that by noting that the work involved in the defendant’s factory was heavy, manual work, of a kind that can and is likely to produce injury, so that the number of claims is not reflective of a generally unsafe workplace.
- [42]I do not consider that reference to the number of other claims made against this defendant provides an answer to the prejudice identified by the defendant as facing it in defending this claim, in this proceeding, 13 years after the incident.
- [43]For the reasons outlined, and generally, the plaintiff submits that such prejudice as is suggested by the defendant is speculative only, on the basis that it cannot be known whether there were any documents lost and, if so, what they were. The defendant acknowledges the “unknown” element of the documents alluded to. However, on the material that the defendant has put forward, in opposing this application, it seems to me they are “unknowns” within the scope of the comments made by McHugh J in Brisbane South at 551[40] and Keane JA in HWC at [62]; as opposed to the speculation described by Thomas JA in Muir v Franklins Limited [2001] QCA 173 at [19].
- [44]In Muir, Thomas JA described the prejudice suggested by the defendant as speculative, in circumstances where his Honour said “[t]he exercise seems based upon a suspicion by the defendant’s advisers that perhaps nothing of the kind alleged by the claimant occurred on the day in question, and if that is so, then the defendant might have been able to advance such a case if it had been able to establish the negative proposition that no report of accident was ever made to any of its servants or agents” (at [19]).
- [45]On the other hand, in HWC at [62], Keane JA said, in relation to two witnesses who had both died:
“I am unable to accept that neither of these gentlemen could have shed light on the decision to withdraw the notice of dismissal and to allow Knight to resign. It is not beyond the realms of significant possibility that one or other of these gentlemen could have given evidence of reasons which might put that decision in a different light so far as the issue of negligence is concerned. It is not beyond the bounds of possibility that Knight offered assurances to Mr Laubsch or Mr Mayfield to the effect that, if allowed to resign, he would not seek further employment in child education. Of course one cannot assume that this did occur or that there are other reasons why the conduct of the second and third defendants might not be regarded as negligent. The point is, however, that the lapse of time which has occurred in this case has been so great that there is what McHugh J described as a “significant chance” that the second and third defendants will not now be able “to fairly defend themselves”. Mr Laubsch and Mr Mayfield, the officers upon whose conduct the second and third defendants’ liability largely depends, are no longer available to defend the decisions in which they were involved. I am unable to accept that a trial in which these gentlemen are unable to defend the criticisms made of their performance of their duties on behalf of the second and third defendants can be described as fair.”[41]
- [46]Further, the plaintiff also submits that even if there were such documents, which have been lost (for example, in relation to modifications to the machine), they are not of “primary relevance”, because what this case is about is the system of work, as opposed to the machine itself.
- [47]In my view, it is artificial to divorce the “system of work” from the configuration and functionality of the machine in the way that the plaintiff seeks to do. Mr O'Sullivan’s report, which contains the detailed basis of the plaintiff’s claim in liability, refers to countermeasures involving associated or ancillary machinery or equipment. The appropriateness, viability and effectiveness of those countermeasures cannot be assessed in a vacuum.
- [48]Apart from the documents, the plaintiff also submits that the “three most relevant witnesses” are available, and have good recollections of the work processes (referring to Mr Dare, Mr Stapley and Mr Doherty). Once again, this submission depends on the focus of the case that the plaintiff urges as appropriate, which, as I have said, seems to me to be too narrow. I accept that there are a number of witnesses whom the defendant would wish to be able to call, to answer the plaintiff’s claims, including the person(s) responsible for setting the machine up (who are not identifiable), the person(s) responsible for occupational health and safety analyses of the machine as it was being used by the plaintiff at the time of the relevant incident, and the person(s) responsible for supervision, instruction and training.[42] Whilst people such as Mr Muir, Mr Hoult and Mr Stapley have been identified in relation to some of those matters, it is apparent that their recollections have, understandably, faded.[43]
- [49]In this regard, the plaintiff is critical of the “last minute” phone calls with, for example, Mr Muir and Mr Hoult, evidenced by the file notes which I have referred to above, as not necessarily being indicative of the evidence those witnesses could give. However, those “last minute” approaches must be seen in the context of the plaintiff’s delay, not only to the point of notifying the defendant of an intention to bring a claim, but also since filing these proceedings, in making this application. As Campbell JA observed, in Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10 at [27]:
“At the time the proceedings were commenced, the limitation period had expired, and until such time as the court might make an order for extension of the limitation period, the Respondent had an unanswerable defence.”
- [50]The defendant has, on the material before me, made a number of efforts, not only to locate relevant documentary material, but also to identify and speak to potentially relevant witnesses. It is apparent from the records of discussions with those people, and is indeed unsurprising, that their recollections, in relation to relevant and significant matters, have faded over the 13 years since the relevant incident occurred.
- [51]In so far as there are some documents available (to which I have referred above) the defendant relies on the following comments made by Fraser JA in HWC, at [72] and [76]:
“… The present point is that the primary judge considered that the existence of these documents, which would be relied upon to establish an inference favourable to the plaintiff’s case, supported the view that a fair trial could be had, but her Honour did not advert to the potentially adverse effect of the passage of time upon the second and third defendants’ ability to obtain direct evidence from former employees of the Board which might have rebutted the inference or otherwise shed light on the case.
…
There is no question but that potentially important evidence has been lost during the long period of time that has elapsed since the critical events. The critical question for the primary judge was whether a fair trial was likely to be thwarted by the prejudice to which the defendants were exposed in their ability to defend themselves as a result of the loss of that evidence. For the reasons I have given I have concluded that there is substance in the defendants’ arguments that the trial judge was distracted from that critical question by focussing instead upon the ability of a trial judge to make an apparently fair decision upon the evidence which had survived the inevitably destructive effect of the passing of the decades. As McHugh J observed in Brisbane Regional South Health Authority v Taylor, ‘a verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all of the evidence concerning the matter, an opposite result may have ensued’.”
- [52]The defendant submits that would be the case here, if the application is granted. The defendant submits that the plaintiff’s half of the story is told (through evidence of himself and co-workers about the system, and interpretation of that system by an ergonomic expert as posing a risk of injury, and identification of means which could be devised to address that risk). But the defendant’s story is “a blank page” because there is no capacity to respond to those particular allegations given the absence of identification of relevant witnesses, recollection of relevant witnesses and existence of documents that go to the relevant issues.
- [53]In my view, the lapse of time which has occurred in this case has been such that there is what McHugh J described as a “significant chance” that the defendant will not now be able to “fairly defend” itself. A trial in which the defendant is unable to defend the criticism made of the system of work involved in an aspect of a machine that is no longer in existence, and therefore cannot be inspected; in the absence of potentially relevant documents and witnesses; and in circumstances where the recollections of available witnesses have faded, cannot be described as fair.[44]
- [54]In so far as the plaintiff submits that the existence of the limited available documentary material, and evidence from the plaintiff, Mr Dare, Mr Stapley and Mr Doherty, enables a view to be formed about the system of work, and on that basis a fair trial could be had, this seems to me to ignore the potentially adverse effect of the passage of time on the defendants’ ability to obtain direct evidence from relevant witnesses, and otherwise to have been able to rely on material dealing with these issues, which might have rebutted or otherwise shed light on the plaintiff’s case.[45]
- [55]As McHugh J observed,[46] inevitably in a matter such as this there will be injustice to one side or the other. However, as I am satisfied the defendant has shown both presumptive and actual prejudice, and consequently that there is a significant chance that it will not be able to fairly defend itself, the limitation period must prevail.
- [56]For the foregoing reasons, the application is dismissed. I will hear the parties as to costs.
Footnotes
[1] Affidavit of Anthony Hogan filed 14 April 2015 at [8]-[11].
[2] Exhibit “DVB-25” to the affidavit of Damien Van Brunschot filed 26 November 2012 (file note of conversation with John McAuliffe) (p 62); affidavit of Toni Robertson filed 16 April 2015 at [5].
[3] Affidavit of Anthony Hogan filed 14 April 2015 at [13]-[14].
[4] Affidavit of Jeremy Bruce filed 27 March 2015 at [5]; affidavit of Damien Van Brunschot filed 26 November 2012 at [3] and “DVB-01”.
[5] Affidavit of Damien Van Brunschot filed 26 November 2012 at [7].
[6] Being 1 year after the plaintiff became aware of his incapacity to work in the same manual capacity (see s 31(2) of the LAA). See also ss 280 and 308 of the WorkCover Queensland Act 1996 (reprint 5A, being the relevant form of the legislation at the time of the plaintiff’s injury), as to the giving of a notice of claim, before the end of the limitation period, and the ability to then bring a proceeding for damages after the end of the limitation period.
[7] The meaning of the composite parts of the phrase “material fact of a decisive character relating to a right of action was not within the means of knowledge of the applicant” is addressed in s 30 of the LAA.
[8] Defendant’s Submissions at [27]-[41].
[9] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Brisbane South) at 544 per Dawson J, at 547 per Toohey and Gummow JJ, at 551 and 554 per McHugh J.
[10] Brisbane South at 544 per Dawson J and at 551 and 554 per McHugh J. See also at 568 per Kirby J, who said the positive burden on the plaintiff (once the preconditions are made out) would not be one of any great severity, “[b]ut if, weighing the countervailing evidence, the judge is uncertain or unconvinced that the provision of an extension would be just, it should be refused”.
[11] Brisbane South at 544 per Dawson J and at 555 per McHugh J.
[12] Brisbane South at 550; also at 548.
[13] HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 (HWC) at [57] per Keane JA.
[14] Brisbane South at 548 per Toohey and Gummow JJ. See also, in this regard, Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10 at [27] per Campbell JA, Allsop P and Handley AJA agreeing.
[15] Brisbane South at 548-549 per Toohey and Gummow JJ; and at 554-555 per McHugh J.
[16] Brisbane South at 549-550 per Toohey and Gummow JJ.
[17] Footnotes omitted.
[18] Filed 16 April 2015.
[19] Acute L4/5 intervertebral disc prolapse on the left with radiculopathy and chronic soft tissue musculoligamentous injury to the lumbar spine.
[20] See exhibit “JRB18” to the affidavit of Jeremy Bruce filed 27 March 2015 (commencing at p 120).
[21] Exhibit “JRB18” at p 140.
[22] See affidavit of Jeremy Bruce filed 27 March 2015 at [13] and exhibit “JRB5” (p 22).
[23] See exhibit “JRB15” to the affidavit of Jeremy Bruce filed on 27 March 2015 (pp 53-113); see also Mr O'Sullivan’s report at pp 3-12 and 30-31 (exhibit “JRB18” at pp 122-131 and 149-150).
[24] See affidavit of Jeremy Bruce filed 27 March 2015 at [14] and exhibit “JRB6” (p 24).
[25] See affidavit of Jeremy Bruce filed 27 March 2015 at [15] and exhibit “JRB6” (p 26).
[26] Brisbane South at 555 and 556 per McHugh J.
[27] Affidavit of Greg Stapley filed 13 April 2015 at [4]; see also affidavit of Damien Van Brunschot filed 15 April 2015 at [8(d)] and exhibit “DVB-01” (file note of discussion with Mr Muir) at [4].
[28] Affidavit of Damien Van Brunschot filed 15 April 2015 at [8(b)], and also exhibit “DVB-01” (file note of discussion with Mr Muir) at [11].
[29] See exhibit “DVB-25” (file note of discussion with Mr McAuliffe) to the affidavit of Damien Van Brunschot filed 26 November 2014 at p 62. See also the affidavit of Toni Robertson filed on 16 April 2015 at [9].
[30] According to the file note of the discussion with Mr Muir (exhibit “DVB-01” to the affidavit of Damien Van Brunschot filed 15 April 2015) at [6].
[31] Ibid, at [7]. See also exhibit “DVB-08” to the affidavit of Damien Van Brunschot filed 15 April 2015 (file note of discussion with Mr Hoult), 7th paragraph.
[32] Ibid, at [8]. See also exhibit “DVB-08” to the affidavit of Damien Van Brunschot filed 15 April 2015 (file note of discussion with Mr Hoult), 5th paragraph; and the affidavit of Mr Stapley filed 13 April 2015 at [7] and [8].
[33] See the affidavit of Mr Stapley filed 13 April 2015 at [6].
[34] Affidavit of Jeremy Bruce filed 27 March 2015 at pp 80-83.
[35] Affidavit of Jeremy Bruce filed 27 March 2015 at pp 87-88.
[36] Affidavit of Jeremy Bruce filed 27 March 2015 at p 89.
[37] First page of exhibit “DVB-02” to Mr Van Brunschot’s affidavit filed 15 April 2015
[38] Affidavit of Jeremy Bruce filed 27 March 2015 at p 99 (letter from WorkCover to Trilby Misso lawyers)
[39] See the affidavit of Jeremy Bruce at [18]-[24].
[40] Passage extracted at paragraph [21] above.
[41] Emphasis added. See also Hertess v Adams [2011] QCA 73 at [20] per Muir J.
[42] Although particulars of negligence addressing matters of supervision, instruction and training have now been abandoned, the defendant submits that such matters cannot be divorced from the system of work, and the physical characteristics of that system. So although the plaintiff does not frame his case on liability in terms of failings on the part of the defendant in that regard, the defendant nonetheless would have sought to lead evidence about that, as part of its defence of the plaintiff’s claim.
[43] HWC at [59] per Keane JA.
[44] HWC at [62] per Keane JA and at [91] per Chesterman JA.
[45] HWC at [72] per Fraser JA.
[46] In the passage from Brisbane South set out at paragraph [22] above.