Mohammad Saidi Kadhim Khaledi v JBS Australia Pty Ltd
[2017] QDC 143
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- Unreported Judgment
- Mohammad Saidi Kadhim Khaledi v JBS Australia Pty Ltd[2017] QDC 143
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Mohammad Saidi Kadhim Khaledi v JBS Australia Pty Ltd[2017] QDC 143
Mohammad Saidi Kadhim Khaledi v JBS Australia Pty Ltd[2017] QDC 143
DISTRICT COURT OF QUEENSLAND
CITATION: | Mohammad Saidi Kadhim Khaledi v JBS Australia Pty Ltd [2017] QDC 143 |
PARTIES: | MOHAMMAD SAIDI KADHIM KHALEDI (plaintiff/applicant) v JBS AUSTRALIA PTY LTD (ACN 001062338) (defendant/respondent) |
FILE NO/S: | TD16 of 2015 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Toowoomba |
DELIVERED ON: | 5 June 2017 |
DELIVERED AT: | Ipswich |
HEARING DATE: | 1 August 2016 |
JUDGE: | Horneman-Wren SC, DCJ |
ORDER: |
within 14 days |
CATCHWORDS: | LIMITATION OF ACTIONS - WORKERS COMPENSTATION AND REHABILITATION – PERSONAL INJURY CASES – whether the plaintiff has a right to claim damages for a personal injury alleged to be sustained in the course of his employment – where the plaintiff was non-compliant with requirements under s 275 of the Workers Compensation Rehabilitation Act 2003 – where proceedings are stayed under s 298 of the Workers Compensation Rehabilitation Act 2003 – where the plaintiff seeks an order pursuant to s 31(2) of the Limitation of Actions Act 1974 to extend the limitation period for the action – where the plaintiff failed to take all reasonable steps to find out the nature and extent of his personal injury – where material prejudice to the defendant – whether the plaintiff has established that a material fact of a decisive character occurred after the commencement of the last year of limitation – where discretion to extend time is not exercised – where application dismissed |
COUNSEL: | Mr T A Nielsen for the plaintiff/applicant Dr G J Cross for the defendant/respondent |
SOLICITORS: | Shine Lawyers for the plaintiff/applicant Meridien Lawyers for the defendant/respondent |
- [1]On 7 April 2015 the applicant, Mohammad Saidi Kadhim Khaledi (to whom I shall refer as the plaintiff) commenced a proceeding in which he claims damages for personal injuries alleged to have been sustained by him in his employment as a meat worker with the defendant company. An order pursuant to s 298 of the Workers Compensation Rehabilitation Act 2003 permitted him to do so despite non-compliance with the requirements of s 275 of that Act. That proceeding is presently stayed under that order.[1]
- [2]By his Statement of Claim the plaintiff alleges that he sustained injuries on or about 18 March 2011; 28 March 2011; 2 April 2011; and between 3 April 2011 and 16 July 2014.[2]The plaintiff seeks an order pursuant to s 31(2) of the Limitation of Actions Act 1974 extending the period of limitation for the action so that it expires on the date upon which the proceeding was commenced: 7 April 2015.
The plaintiff’s background and employment with the defendant
- [3]The plaintiff was born in Iran on 23 September 1991. He has the equivalent of a grade 10 education. He arrived in Australia on 3 August 2009, aged 17, as a refugee under a humanitarian visa. Upon arrival, he could understand some spoken English, but could not express himself in English. He had never been employed. He received Centrelink Youth Allowance from the time of his arrival until 19 March 2011.[3]
- [4]The plaintiff commenced employment with the defendant as a slaughterman on or about 7 March 2011 at the defendant’s premises at Beef City, Purrawunda.[4]The plaintiff deposes to not having been given the usual three to four day induction upon commencing employment. He says that at the time he was told that his English was not good enough. He deposes to never having received induction notwithstanding subsequent improvement in his English.[5]
- [5]He was first employed on the killing floor cutting the throat of beasts. He says that the extent of his training was that he was simply told by his employer to watch a co-worker for the first couple of times and then have a go himself.[6]
- [6]The plaintiff continued to be engaged on the kill floor cutting throats until about 2 April 2011. From about 3 April 2011 the plaintiff was engaged in the task of dropping tongues, also on the kill floor.[7]
The alleged incidents
- [7]The plaintiff alleges that on 18 March 2011 while attempting to cut the throat of a beast which had been stunned and was lying down, the beast suddenly kicked him in his left wrist.[8]
- [8]He deposes to his understanding that his trainer, Abdulla Al-Bardi, witnessed his being kicked.[9]In that regard, he refers to a log of the conversation between investigators acting on behalf of the defendant and Mr Al-Bardi on 25 August 2014 as evidencing that Mr Al-Bardi witnessed his being kicked by the beast on 18 March 2011. For reasons which I shall later develop, it is not clear that this conversation log does evidence Mr Al-Bardi having witnessed such a kick.
- [9]The plaintiff did not attend first aid following this alleged incident. He deposes to not having done so because he was not aware that he had to report injuries to first aid, not having received the induction training in which the reporting of injuries would have been explained. He says that he was also unaware of the system of workers’ compensation as there is no such system in Iran.[10]
- [10]The plaintiff alleges that on 25 March 2011, again while attempting to cut the throat of a beast which had been stunned and was lying on the kill floor, that beast also suddenly kicked him in the left wrist.[11]
- [11]The plaintiff further alleges that on or about 2 April 2011, again while attempting to cut the throat of a stunned beast which was lying down, that beast kicked out, and to avoid being kicked, he moved rapidly falling as he did so and landing on outstretched hands, feeling immediate pain in his left wrist.[12]
- [12]The plaintiff further alleges that by reason of performing the tasks associated with dropping tongues when engaged in that work with the defendant, he developed wrist pain which emerged on or about 3 April 2011 and continued in the performance of cutting throats and shackling duties in which he was engaged from in or about October 2011 to 16 July 2014.[13]
Medical treatment and advice received by plaintiff
- [13]The plaintiff did not seek any medical treatment for injuries on any of the dates upon which he alleges that he suffered those injuries.
- [14]The first occasion on which he sought first aid attention for an injury to the wrist was on 28 March 2011.[14]The person to whom the plaintiff presented on that occasion was Christine Brookman, a rehabilitation and first aid officer employed by the defendant. The notation made by Ms Brookman in the employee attendance sheet on that occasion was “from playing soccer”. He reported pain and was treated with support strapping.
- [15]Whilst the plaintiff deposes to not having gone to first aid following the incident on 18 March 2011 because he was not aware of having to report injuries to first aid, having not received induction training, the first aid employee attendance record discloses that he twice attended first aid on 11 March 2011, four days after he commenced employment, for treatment for a cut left finger. He was treated at 7.52 am and again 1.05 pm.
- [16]As to the entry in the attendance sheet for 28 March 2011 recording “from playing soccer” as the cause of the injury, the plaintiff states that this is incorrect and that he never advised Ms Brookman that he injured his wrist playing soccer. He says that he enjoys kicking a soccer ball around with his family but that he has never played with a club and has never been hurt playing soccer. He says that when he presented to first aid on that occasion his trainer, Abdulla, explained everything to Ms Brookman because the plaintiff’s English was not very good.
- [17]In a statement given to investigators on 8 August 2014 following his making a claim for workers compensation, the plaintiff provided a slightly different version of the conversation with Ms Brookman. He said:
“I did not injure my left wrist playing soccer. There was a mix-up at first aid with Chris and another lady (first aid lady) who asked me if I played soccer when I reported my left wrist pain from dropping tongues. I told her that I used to play soccer but I did not tell her that I had injured my left wrist at soccer. At the time my English was not very good.”[15]
- [18]In that version of events the plaintiff does not refer to his trainer having explained matters on his behalf; rather he says it was he who responded to the question of the first aid attendant. He also referred to having played soccer in the past. It is also to be noted that as at 28 March 2011 the plaintiff, on his pleaded case, had not yet commenced dropping tongues.
- [19]In a document described as a Conversation Log the details of a conversation between Ms Brookman and an investigator acting on behalf of the defendant are recorded. In that log Ms Brookman is recorded as having said:
“He told me that he had injured his left wrist playing soccer, although he have [sic] no details of the team that he played for at the time or of the level that he was playing.
Over the time following this date, I had multiple discussions of him playing soccer, where he told me that he travelled to either Brisbane or the Gold Coast to play soccer.”
- [20]Later in the day on 28 March 2011 the plaintiff again presented to first aid for treatment. On this occasion it was for a cut to his left forearm which Ms Brookman recorded as having been reported by the plaintiff to have been sustained when dropping tongues. This entry suggests that the plaintiff may have been engaged in some activity dropping tongues before 3 April 2011 as pleaded in his Statement of Claim. When cross-examined about this issue on the hearing of the application the plaintiff stated:
“Well, we – we got training in [indistinct] cutting throat for sometime – like, two hour, one hour. But they send me to dropping tongues, and we got back.”[16]
- [21]From this I understand his evidence to have been that he received some training in dropping tongues prior to the time at which he was assigned that task from 3 April 2011.
- [22]On 5 April 2011 the plaintiff again presented for first aid complaining of pain in his left wrist which is recorded as having been reported as being from dropping tongues. He in fact presented on five separate occasions on that day with pain in his left wrist.
- [23]Between his first presentation on 28 March 2011 and 7 July 2014 the plaintiff presented for first aid for his left wrist on 211 occasions. On none of those occasions is the plaintiff recorded as having reported either being kicked in his left wrist by a beast, or having fallen on his wrist in the course of performing his duties.
- [24]In his evidence on the hearing of the application the plaintiff seemed to suggest that he initially told the defendant’s first aid officers that he had been kicked in the left wrist, but thereafter they did not ask him.[17]
- [25]In 2013 the Soft Tissue Centre – Early Intervention Specialists commenced providing services at the defendant’s premises. The plaintiff first consulted the Soft Tissue Centre’s providers on 15 April 2013. Their records record the plaintiff as having presented for review complaining of having experienced “lower arm pain originally occurring five months ago”.[18]The plaintiff gave no history of having been kicked in the left wrist or of having fallen on the wrist. It was considered by the provider, based upon the interview, examination and diagnosis, “that this complaint came about as a result of gradual onset with no specific incident and the mechanism was repetitive movement with low muscle loading”.
From his initial presentation on 15 April 2013 to 24 April 2014 the plaintiff sought treatment from the Soft Tissue Centre on 15 Occasions. On none of those occasions is he recorded as having reported having been kicked by a beast in the left wrist. The plaintiff deposes to his symptoms getting worse notwithstanding his treatment from the Soft Tissue Centre. He states that his wrist was strapped before each shift but that this was of limited help in controlling his pain.[19]
- [26]When cross-examined, the plaintiff said that he had reported to the Soft Tissue Clinic that he had been kicked in the left wrist by a beast. As with the defendant’s first aid officers, he suggested that he made an initial report of that having occurred, but that he was not asked again.[20]
- [27]The plaintiff received six treatments between 15 April and 27 May 2013 and was reviewed on 3 June 2013. At review he reported that he was not sore after the last treatment and that his symptoms were 80 per cent improved.
- [28]The plaintiff next presented to the Soft Tissue Clinic on 25 February 2014, stating that he had been experiencing lower arm pain “occurring two weeks ago”. The report records, “the patient indicated that he believed that this was a work related injury and is aggravated by normal work practices which occurred as a result of old injury from dropping tongues”.
- [29]Again, based on interview, examination and diagnosis, it was considered by the provider that the complaint came about as a result of gradual onset with no specific incident, and the mechanism was disorders of muscle, tendons and other soft tissue.
- [30]The plaintiff received three treatments on 25 February, 4 March and 11 March 2014. He was reviewed on 13 March 2014. On this occasion he was referred for ultrasound. The ultrasound was performed on 1 April 2014. The findings reported the extensor and flexor tendons as normal. The median and ulna nerves were said to be unremarkable. A slight increase in joint fluid within the radiocarpal joint was noted. It was suggested that MRI would be helpful to further evaluate if required.[21]
- [31]The Soft Tissue Centre provided a further three treatments on 10 April, 17 April and 24 April 2014. The plaintiff failed to keep an appointment on 15 May 2014 and was then reviewed again on 15 July 2014. On that date, a lack of improvement was noted including over a period of seven weeks when the plaintiff had been on holidays. The provider concluded that the plaintiff was not suitable for the meat working industry.
- [32]On 21 June 2011 the plaintiff attended a general practitioner, Dr Sultan, complaining of wrist pain. He says that Dr Sultan did not ask him “why you get the pain”.[22]Dr Sultan’s notes record under “History”:
“Works, meatworks – dropping tongues (cutting and removing) puss [sic] out and hangs tongue with left hand. Has pain in left wrist.”[23]
- [33]Those notes suggest that the plaintiff did provide the doctor with some information as to why he got the pain; which itself suggests he was asked. The information provided by him included the duties which he performed which brought on the pain and a description of those duties.
- [34]Dr Sultan’s diagnosis was of tendonitis. The Plaintiff was prescribed medication and was told to treat it with rest and heat packs. He was certified as being unfit for normal duty, but fit for alternate duties restricting the use of his left wrist for the period from 21 June to 26 June 2011.
- [35]In an affidavit filed by the defendant, Dr Sultan deposes to having no independent recollection of his consultation with the plaintiff. However, he deposes that had he been told of the beast having kicked the plaintiff in the site where the pain occurred, he would have recorded it in his notes. Furthermore, he deposes that had he been told of such an event occurring three months prior to the consultation he probably would have asked the patient if he had obtained an x-ray of the area. Had an x-ray not been obtained, and the kick was said to be in the area where the patient was experiencing tenderness, he would have arranged an x-ray to rule out a fracture.[24]
- [36]The plaintiff consulted another general practice in Gatton on 20 occasions between 9 December 2011 and 10 April 2014 for a variety of ailments, but nothing to do with his left wrist. The defendant seeks to make something of the absence of any mention of having been kicked by a cow on any of those occasions. But that is unremarkable when he was not presenting with any problem with his wrist. On one of those occasions (4 June 2012) he presented reporting that two weeks earlier a roller at the meatworks had hit him on the nose. He had bleeding at the time which had stopped after 15 minutes. It was still very painful and tender to touch. He was referred for x-rays which were taken on the same date.
- [37]He did consult that practice in respect of his wrist on 28 April 2014. On that occasion he reported left wrist pain doing a push-up at the gym the previous day and that he had such pain off and on for the past two and a half years. The GP referred the plaintiff for an x-ray of his left wrist.
- [38]The plaintiff did not have the x-ray taken. Shortly afterwards he travelled to Iran with his father to see his mother.
- [39]He returned to the GP on 16 July 2014 still complaining of wrist pain which he said was worse when trying to lift things with his left hand. He was again referred for x-ray. The x-ray of the plaintiff’s left wrist was performed on 16 July 2014. It is reported as follows:
A history of pain for two years and mild tenderness in the distal radius.
There is an ununited fracture involving the proximal pole of the scaphoid. The proximal pole of the scaphoid shows some increased density and a little bony irregularity which could represent some avascular narcosis. No other significant bone or joint abnormality demonstrated.”[25]
- [40]The plaintiff was referred to Dr Umesh Dhanjee, orthopaedic surgeon, in Toowoomba who saw him on 21 July 2014. In a report dated that day, Dr Dhanjee records the history of the injury to the plaintiff’s left wrist, as reported to him by the plaintiff, as:
“His problem on his left wrist started on 5 April 2011 after repetitively dropping tongues of cattle in the abattoir. During this time he recalls that he had many falls especially when he started at work. He reports that he subsequently started developing symptoms of swelling and pain on his left wrist and slowly started losing grip strength. This is progressively deteriorating over the last two years. He has been managed with physiotherapy and dry needling without any success.
Mohammad reports that prior to his employment he had no issues relating to his left wrist.”[26] (emphasis added)
- [41]An MRI was performed on 21 July 2016. It is reported as follows:
“There is non united fracture of the wrist of the scaphoid with mild sclerosis of the proximal fragment. There is significant marrow oedema and some cystic changes in the fracture margins, more prominent in the distal fragment.
…
Conclusion: non united fracture of the waist of the scaphoid. There is suggestion of early avascular necrosis of the proximal pole fracture fragment. There is mild effusion of the radial aspect of the joint.”[27]
- [42]That MRI had been performed on the recommendation of Dr Dhanjee. In a subsequent report dated 28 July 2014, Dr Dhanjee repeated the history of the injury as set out in his earlier report. He reports that:
“From the clinical examination as well as the x-rays, it’s evident and very clear that Mohammad had sustained a left scaphoid fracture which is now gone on to a non union with cyst formation.
…
It is likely that the scaphoid fracture was sustained during one of the falls he had at the abattoir.”[28] (emphasis added)
- [43]No history of having been kicked in the wrist was apparently given to Dr Dhanjee.
Subsequent specialist opinions
- [44]Dr Stephen Coleman, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s workers compensation insurer on 11 August 2014.[29]Dr Coleman records the following history as provided to him by the plaintiff:
“Mr Khaledi was working at a local meatworks in April 2011. He noted increasing pain on the radial side of his left risk when he was working on a beast, particularly when using his left hand to pull out the tongue of the beast. He would hold a knife in his right hand, pull firmly with his left hand and twist with his left wrist. He reported the pain in his wrist on 5/4/2011, and I note that this is recorded in his employee attendance sheet at Big City.
Mr Khaledi also informed me that he had previously told his employer that, prior to that date, he had been kicked by a beast twice. On one occasion, he was kicked on the left wrist in about March 2011, although this is not recorded in his file. He was knocked to the ground on both occasions when he was kicked. He said that at least one occasion he did land on his left wrist. It was subsequent to that occasion that he developed pain in his wrist and sought treatment at the first aid centre on 5/4/2011. (emphasis added)
He did continue to work, although the pain persisted, and I note that there are multiple entries in his work attendance sheet confirming his complaint of continuing wrist pain. Despite that, he did not have any medical treatment until recently.”[30]
- [45]Under the heading “relationship of the current diagnosis to the stated mechanism of injury”, Dr Coleman says:
“The tongue pulling activity would not fracture a scaphoid. If he did have a scaphoid fracture present, however, I would have no doubt that tongue pulling would have caused persistent pain to the left wrist, as described. I would consider, however, that either a kick to the radial side of the wrist or a fall subsequent to that on the outstretched wrist would be consistent with a fracture of the scaphoid. Mr Khaledi appeared quite genuine in his history and I consider that the cause of his injury was the initial fall in March 2011, with an undiagnosed fracture of the proximal third of the scaphoid occurring. This is a typical cause of a scaphoid fracture.
As the non union developed, the pain persisted in the wrist when applying force and pressure on the left wrist such as when pulling on the tongues. He should have had treatment and x-rays done in 2011 and he has had persistent pain since that time. The current x-rays confirm a fracture of approximately three years duration. I do consider that his current signs and symptoms are all consistent with the work related injury that occurred in approximately March 2011.” (emphasis added)
- [46]On 9 November 2015 Dr Greg Bookless, orthopaedic surgeon, examined the plaintiff at the request of the defendant company. In a report dated 16 November 2016, Dr Bookless records the following history provided to him by the plaintiff:
“Mr Khaledi was aware of left wrist symptoms after being kicked in the wrist in March of 2011. He subsequently developed further wrist pain when learning to drop tongues at work on 5 April 2011. Because of the severity of this pain, he was unable to continue with the work dropping tongues and returned to work as a slaughterman.
Mr Khaledi had ongoing wrist symptoms which were thought to be due to a strain and he was treated at the Soft Tissue Clinic at work over the subsequent years. He was accepted for an aggravation of a fracture to the left scaphoid as of 16 July 2014.”[31] (emphasis added)
- [47]Dr Bookless’ diagnosis was of a fracture of the left scaphoid in the original incident of 18 March 2011, and that his ongoing symptomatology related to that incident rather than any aggravation of it.
- [48]In a separate report, also dated 16 November 2016 and prepared after the same consultation with the plaintiff,[32]Dr Bookless records the following further history:
“Mr Khaledi was at work on 18 March 2011 when working as slaughterman. Apparently, he was cutting the throat of stunned cattle when one kicked out and he was hit on the left wrist. As a result of this kick, he has been accepted as having a fractured left scaphoid. He continued working at the time and had further injuries in the same type of situation on 25 March 2011 and subsequently on 2 April 2011 he was kicked and fell on to his outstretched left arm, again sustaining pain about the left wrist.
With these injuries, Mr Khaledi was seen at the Soft Tissue Clinic and was thought to have strained the left wrist. Subsequently, he was dropping tongues and found this caused a further increase in pain in the left wrist which caused him to cease that activity after a few weeks. He then moved back to work as a slaughterman and, or shackling. He continued in this work over the next three years. He continued to be reviewed at the Soft Tissue Clinic and had various forms of treatment without great benefit.” (emphasis added)
- [49]Dr Bookless again expresses the opinion that the plaintiff sustained a fracture to the left scaphoid in the original incident of 18 March 2011 and that he had ongoing symptoms following that injury.
- [50]Dr Mark Robinson, orthopaedic surgeon, examined the plaintiff for medico-legal purposes on 22 March 2016. In a report dated 5 April 2016, Dr Robinson records the following history as related to him by the plaintiff:
“On 18 March 2011, Mohammad was preparing to cut the throat of a beast. The beast’s right front hoof came up and knocked his left wrist. Mohammad was knocked backwards and fell onto his left wrist, as a consequence of the blow. He did not report this incident initially.
Mohammad had two subsequent incidents, about 25 March 2011 and 2 April 2011, when he was knocked backwards by a beast, as he was attempting to cut its throat. He experienced recurrence of left wrist pain with each of these falls.
Mohammad was rotated to alternate task. This was referred to ‘dropping tongues’ from 3 April 2011 to October 2011. He was removing tongues from within the mouths of the beasts. He would hold the knife in his right hand and make 10-12 cuts, to remove the tongue. He stated that he would remove 70-72 tongues per hour. He reported discomfort in his left wrist, to the first aid officer but continued with this role until October 2011 when he went back to alternating between slaughterman type-work and ‘shackling’. He had no further injuries to his wrist.”[33] Dr Robinson expresses the opinion that the injury to the plaintiff’s wrist is consistent with the stated cause. (emphasis added)
The legislative provisions
- [51]Section 31 of the Limitation of Actions Act 1974 provides:
“31 Ordinary actions
- (1)This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
- (2)Where an 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 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.
- (3)This section applies to an action whether or not the period of limitation for the action has expired-
- (a)before the commencement of this Act; or
- (b)before an application is made under this section in respect of the right of action.
- [52]By s 30(1)(a)(iv) a material fact relating to a right of action includes the nature and extent of the personal injury caused.
- [53]Section 30(1)(b) and (c) provide:
“30 Interpretation
…
- (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 interests 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.
A material fact of a decisive character?
- [54]The material fact of a decisive character upon which the plaintiff relies is the discovery that there was a fracture to the scaphoid in his left wrist through an x-ray on 16 July 2014 and his being told the results of that x-ray. It may readily be accepted that this was the discovery of a material fact relating to the right of action. It is a fact concerning the nature and extent of the personal injury caused to him.
- [55]The defendant concedes that as at 18 March 2013, being the date one year preceding the expiration of the limitation period, the plaintiff did not know that he had a fractured scaphoid which would require operative intervention.
- [56]It may also be accepted that the relevant material fact was of a decisive character. A reasonable person knowing the fact of the broken scaphoid, and having been advised that the treatment required for it which would involve significant time off work and that the injury may have implications for the person’s future working life, would regard that as showing that an action would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify bringing an action, and that the person ought in the person’s own interests bring such an action.
A material fact not within the Plaintiff’s means of knowledge?
- [57]The real issue for resolution is whether or not the fact of the fractured scaphoid and those consequences were not within the plaintiff’s means of knowledge until after 18 March 2013. It will not have been within his means of knowledge before a particular time if, as far as it was able to be found out by him, he had taken all reasonable steps to find out the fact before that time.
- [58]In determining whether the plaintiff has taken all reasonable steps to find out the fact, it is what can reasonably be expected from the plaintiff himself in his circumstances.[34]
- [59]In that regard, Mr Nielsen of counsel in written submissions on behalf of the plaintiff refers to the facts that the plaintiff is an Iranian immigrant who came to Australia as a 17 year old; has the equivalent of a grade 10 education; has imperfect English; and who needed to try to make a success of his work for the money.[35]He submits that a reasonable person told that he or she merely has tendonitis of the wrist may well continue to work with pain without the matter being investigated until the point where it becomes even more painful.[36]He submits that “given the particular nature of the progress of this injury as outlined by Dr Robinson, it is understandable that the plaintiff did not have an x-ray sooner and the facts were unknown to him and he took reasonable steps to enquire”.[37]
- [60]The defendant refers to the fact that when an x-ray was finally taken of the applicant’s wrist on 16 July 2014 it only took a further five days for the orthopaedic surgeon to advise him of the fracture and of the need for operative intervention.
- [61]Dr Cross of counsel for the defendant submits that had the plaintiff proceeded with the x-ray for which he was referred on 28 April 2014 there is no evidence that an appropriate diagnosis could not have been made shortly thereafter. That is so. However, that submission does not really advance the case for refusing the application to extend time. The proceeding was commenced on 7 April 2015, which was within one year after that earlier referral having been made in any event.
- [62]Of greater consequence is the failure of the plaintiff to have disclosed to any of those persons with whom he consulted from March 2011 to April 2014 a history which included the potential mechanisms of injury of either a kick to the wrist by a beast, or a fall on the wrist. The disclosure of such potential mechanisms of injury would likely have resulted in radiological investigations being undertaken at an earlier time. Dr Sultan’s direct evidence on this issue is that had the plaintiff reported to him in July 2011 that he had, three months earlier, been kicked by a cow in the site where he was experiencing pain, he would have arranged for an x-ray been taken then to rule out a fracture.
- [63]There is no evidence to suggest that an x-ray of the wrist taken at some earlier time, or even immediately following the alleged incident, would have not revealed the fracture. Indeed the evidence is to the contrary. Dr Coleman says that the plaintiff should have had treatment and x-rays done in 2011. It is implicit in that opinion that had he had such x-rays then they would have revealed the fracture.
- [64]I would also readily infer that the reporting of such a potential mechanism of injury such as a kick or a fall would have prompted a referral for x-ray. The report of a roller having hit him on the nose when the workplace in June 2012 prompted referral for an x-ray.
- [65]In my view, that he would have been referred for an x-ray upon disclosure of such a potential mechanism of injury is even more likely had the disclosure been made at any time subsequent to the alleged incident in the context of unresolved or ongoing symptoms.
- [66]Whilst the plaintiff had been told that he had tendonitis, it is not the case that this diagnosis was provided against the background of his having disclosed a kick to the wrist, or a fall upon it, which might otherwise have explained the symptoms. The diagnosis of tendonitis was made in the absence of any history having been provided which might have suggested an acute injury such as a fracture.
- [67]Whilst it may have been reasonable for the plaintiff to have continued to work in pain without having the matter further investigated in circumstances in which all potential mechanisms of injury had been disclosed, I do not consider it to have been reasonable to do so when those mechanisms had not been disclosed. In this regard, the case is distinguishable from Greenhalgh v BACAS Training Limited & Ors.[38]
- [68]It is in that context that the plaintiff’s submissions that “it is understandable that [he] did not have an x-ray sooner and the facts were unknown to him and he took reasonable steps to enquire” must not be judged. In that context, it should be rejected.
- [69]Because the plaintiff failed to disclose those potential mechanisms of injury, and particularly the alleged kick to his left wrist on 18 March 2011 upon which he now bases his action, which disclosure would have resulted in further investigation being undertaken, particularly an x-ray, he has failed to take all reasonable steps to find out the nature and extent of the personal injury suffered by him: a fact that was able to be found out by him.
- [70]In forming that view, I have taken into account the particular circumstances of the plaintiff. I do not consider that any lack of proficiency he had in the English language, or his level of education, was such that the disclosure of the alleged incident was a step which could not be considered reasonable for him to take. The evidence would not support such a conclusion. The evidence suggests that his language proficiency and education did not affect his understanding that he should, nor his capacity to, report relevant features of incidents which resulted in injury being sustained. He reported such matters in respect of other injuries on other occasions. Nor do I consider that his desire or need to make a success of his work for the money made the disclosure of a potential mechanism of injury an unreasonable step for him to take.
- [71]I do not accept the plaintiff’s evidence given under cross-examination at the hearing that he told the people at first aid that he was kicked by a beast. It is inconsistent with his evidence at paragraph 18 of his affidavit that he does not believe that he mentioned that his wrist had been kicked when he presented to the first aid office on 28 March 2011. He does not depose to having mentioned it on any other occasion. It is also inconsistent with there being reported, but different, mechanisms in the records of the first aid office.
- [72]Nor do I accept his evidence that he told the providers from the Soft Tissue Clinic. In his affidavit he does not depose to having told them. He exhibits their records. Those records contain a complaint history as given by the plaintiff on 15 April 2013, including his belief as to the injury being work related and “aggravated by normal work practices which occurred as a result of sore [sic] from when dropping tongues.” They contain a further complaint history given in very similar terms on 25 February 2014. The opinion formed by the provider, on each occasion, that the complaint came about as a result of gradual onset with no specific incident, is consistent with the recorded history. It is entirely inconsistent with a very specific incident of having been kicked by a beast ever having been given by the plaintiff.
- [73]Nor would I accept the plaintiff’s stated reason for not telling the various doctors of having been kicked by a beast, that being that they did not ask him, as reasonable, had that in fact been what occurred. However, I do not accept that it is what occurred. I do not accept that he was not asked because it is inconsistent with the records which show that a history was asked for, and provided. It is just that the history provided made no mention of any such kicking incident.
- [74]For those reasons, as at 18 March 2013, the plaintiff had not taken all reasonable steps to find out the nature and extent of his personal injury. That fact was, therefore, within his means of knowledge before the commencement of the last year preceding the expiration of the limitation period.
- [75]In those circumstances, the discretion to extend the limitation period under s 31(2) does not arise.
Prejudice
- [76]Whilst the findings already made are sufficient to dispose of the application, I should record for completeness that the plaintiff has not discharged his onus to establish that the commencement of the action beyond the limitation period would not result in material prejudice to the defendant.
- [77]
“The discretion conferred by the sub-section is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well-established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd:
‘It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.’”
- [78]In my opinion, the defendant has placed in evidence sufficient facts which establish that prejudice would be occasioned. Because there was no report of any of the three incidents, and most particularly that of 18 March 2011, there was no investigation carried out at the time by the defendant into the facts and circumstances of any such incident. The potential to conduct such investigations has now been lost, or at the very least, severely hampered.
- [79]The defendant has identified five co-workers who may have been in a position to witness any such incident. Of those, three have left the employ of the defendant and have not been able to be contacted using their last contact details known to the defendant. Another had his employment terminated after suffering from a stroke which caused him significant memory issues.[40]The defendant would not be able to obtain any relevant evidence from them now.
- [80]Even if those who have been unable to be located were able to be located in the future, it must be doubtful as to whether they would now have a recollection of an event, or events, said to have occurred in March or April 2011. McHugh J observed in Brisbane South Regional Health Authority v Taylor[41] that the enactment of limitation periods had been driven by the general perception that “where there is delay the whole quality of justice deteriorates”.[42]His Honour continued:
“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 Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody ‘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 as 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.”
- [81]The plaintiff refers to the defendant having a record in its first aid log recording of an attendance for a left wrist injury on 28 March 2011 with multiple attendances thereafter. He then submits:
“Of course there is a mention of an injury playing soccer in that injury log, although the plaintiff makes it clear that he did not suffer an injury playing soccer, but rather he said, in broken English with the assistance of a person who was acting as translator, that he enjoyed playing soccer.
It is a matter for the trial judge to establish whether the plaintiff is telling the truth about the mechanism of injury and what was told to the first aid officer about soccer. It is not a matter for this court to decide those issues of fact in this application.
The affidavit of David Lance Adams filed 26 July 2016 makes it clear that the defendant has been able to fully investigate the matter and has identified and interviewed some seven witnesses excluding the plaintiff. The investigations were conducted on behalf of the defendant by LGA Group in August 2014, only just outside the three year limitation period. There is no evidence that delay beyond the limitation period has had any material effect on the investigations.”[43]
- [82]Whilst it would, ultimately, be a matter for the trial judge as to whether the plaintiff is telling the truth as to the mechanism of injury, the submissions for the plaintiff do not confront the fact that the resolution of that issue has been prejudiced, materially in my view, by the failure of the plaintiff to nominate the now asserted mechanism of injury before the expiration of the limitation period.
- [83]The submission that Mr Adam’s affidavit makes it clear that the defendant has been able to fully investigate the matter should be rejected. To the contrary, Mr Adam’s affidavit makes it clear that the defendant has not been able to fully investigate the matter. As already discussed, the defendant’s investigations have revealed a number of persons who may have been able to provide relevant evidence, but from whom evidence is, or would appear to be, not now available.
- [84]The plaintiff submits that:
“… [having] obtained statements of so many witnesses means that the defendant can be satisfied that it has independent verification of an event which the plaintiff says was unwitnessed apart from one co-worker, Mr Al-Badri who was in fact investigated and signed a conversation log of 25 August 2014 which is Exhibit 1 to the plaintiff’s affidavit. He supports the plaintiff’s account of being injured in the wrist after being kicked by a cow. Wathid Nema’s evidence corroborates the plaintiff’s case also, namely that he was told by the plaintiff of the incident and the resulting injury.”[44]
- [85]That submission also should be rejected. The plaintiff does not refer to there being no witnesses to the incident other than Mr Al-Badri. In his statement he provided to investigators on 8 August 2014 he referred to his supervisor, Abdul, seeing him being kicked in the left wrist by a body when he started training on cutting throats.[45]In his first affidavit the plaintiff deposes to an understanding that his trainer, Abdulla Al-Badri,[46]witnessed his being kicked. He refers to Mr Al-Badri’s conversation with the investigators as being evidence of that fact.[47]Nowhere does the plaintiff say that no other person did, or could have, witnessed any such incident. The plaintiff’s statements about Mr Al-Badri having witnessed the incident do not foreclose the possibility that those other persons who the defendant has identified as potential witnesses, but who are unable to be located or who now have memory difficulties, would not have been able to give relevant evidence, particularly if approached at an earlier time. For his part, Mr Al-Badri told the defendant’s investigators that he recalled the plaintiff being kicked on one occasion but did not see the actual kick; only the plaintiff falling to the floor. He provides no direct support for the alleged mechanism of injury.
- [86]As to Mr Nema providing corroboration, his evidence would appear to be inadmissible hearsay.
- [87]In my view, those matters to which the plaintiff refers in his submissions do not address the prejudice to the defendant, or establish that such prejudice is not material.
- [88]Similarly, the plaintiff submissions do not confront the prejudice to the defendant on the issue of whether the plaintiff in fact injured his wrist playing soccer, which prejudice has been caused by the plaintiff’s delay. Whilst it is submitted for the plaintiff that his evidence makes it clear that he did not suffer an injury playing soccer, but rather that this was a misunderstanding of what he said in broken English and with the assistance of a translator, that evidence is not necessarily determinative of the issue.
- [89]From the investigations carried out on behalf of the defendant, Ms Brookman says that following the initial report by the plaintiff of having injured his wrist playing soccer, he told her in multiple discussions that he travelled either to the Gold Coast or Brisbane to play soccer. There is some support for that in the conversation log with the plaintiff’s co-worker, Wayne Horan, with whom the defendant’s investigator spoke. Mr Horan told investigators that he was aware that the plaintiff played soccer (or football as the plaintiff called it). Mr Horan did not know if the plaintiff had played in the 2014 season, but in previous seasons the plaintiff played with an essentially Muslim soccer team or club in Brisbane. The plaintiff deposed in his affidavit, at paragraph 18, to never having played with a club.
- [90]The ability for the defendant further to investigate whether the plaintiff had in fact played club or team soccer at the relevant time has been prejudiced. That evidence would, if it were available, be relevant to the issue of whether the plaintiff should be accepted, and the recorded mechanism discounted, because he did not participate in the recorded activity.
- [91]The plaintiff’s submission that there is no evidence that delay beyond the limitation period has had any material effect on the investigations should be rejected: it seeks to apply an incorrect test. In Brisbane South Regional Health Authority v Taylor, Toohey and Gummow JJ said:
“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.”[48]
- [92]The approach to this issue as suggested by the plaintiff is that which was rejected by their Honours.
- [93]There are factual matters as to the mechanism of injury which will require resolution. There is not a uniformity of medical opinion that the fracture was caused by the mechanism which the plaintiff now asserts: a kick to the wrist on 18 March 2011. Dr Coleman, whilst of the opinion that a kick to the radial side of the wrist would be consistent with a fracture to the scaphoid, considered the cause of the injury to be “the initial fall in March 2011”.[49]Similarly, Dr Dhanjee is of the opinion that it is likely that the fracture was sustained during one of the falls that he had in the abattoir.[50]This is due to inconsistent histories being provided by the plaintiff to various medical practitioners.
- [94]For those reasons, even had I been satisfied that the plaintiff had established that he had discovered a material fact of a decisive character on a date after the commencement of the last year preceding the expiration of the limitation period, I would not have been satisfied that this was a case in which the plaintiff had demonstrated that the discretion to extend time ought be exercised in his favour. He has failed to establish that there is not material prejudice to the defendant in obtaining a fair trial if the discretion were to be exercised in his favour.
Disposition
- [95]The application is dismissed.
- [96]I will hear the parties as to any consequential orders which ought be made in the substantive proceedings, and costs.
Footnotes
[1] Order of Deputy Registrar, 16 February 2015.
[2] Although the Statement of Claim seeks damages for injuries alleged to have been sustained in each of those events, the plaintiff intends to amend the Statement of Claim to allege that all his ongoing symptoms stem from the incident of 18 March 2011: second affidavit of the plaintiff filed by leave 11 August 2016.
[3] Affidavit of the plaintiff filed 8 April 2016 (court document 6), paras 2-6.
[4] Ibid at para 7.
[5] Ibid at para 8.
[6] Ibid at paras 9 and 11.
[7] Statement of Claim, paras 3 and 17.
[8] Statement of Claim, para 6; plaintiff’s affidavit filed 8 April 2016, paras 13 to 15.
[9] Plaintiff’s first affidavit, para 16.
[10] Ibid at para 16.
[11] Statement of Claim, para 7; plaintiff’s second affidavit, para 5.
[12] Statement of Claim, para 8; plaintiff’s second affidavit, para 5.
[13] Statement of Claim, paras 7-25.
[14] First aid employee attendance sheet – Beef City; Ex. 2 to the Plaintiff’s first affidavit.
[15] Plaintiff’s first affidavit, para 18.
[16] Transcript 1 August 2016, 1-10, LL 27-30.
[17] Transcript 1-11, LL 16-34.
[18] Patient care history report, Ex. 4 to the Plaintiff’s first affidavit.
[19] Plaintiff’s first affidavit, para 27.
[20] Transcript 1-12, LL 8-14; LL 37-39.
[21] Report of Dr A Lu, 1 April 2014; Ex. 4 to the plaintiff’s first affidavit.
[22] Transcript 1-10, LL 40-42.
[23] Patient notes; Ex. MIS-01 to the affidavit of Mohammed Iqval Sultan filed 26 July 2016.
[24] Ibid at paras 6-7.
[25] Report of Dr Evan Fraser, Exhibit 6 to the Plaintiffs first affidavit.
[26] Exhibit DAG1 to the affidavit of David Henry Gomulka filed 1 August 2016; court document 13.
[27] Report of Dr Nandan Srivastava, Exhibit 7 to the Plaintiffs first affidavit.
[28] Exhibit DHJ2 to Mr Gomulka’s affidavit.
[29] It is to be noted that the plaintiff attended upon Dr Coleman consisted by an interpreter. Dr Coleman notes him to have reasonable English and to have understood questions asked of him.
[30] Exhibit 1 to the affidavit of Nicola Jane Stidever filed 11 July 2016; court document 8.
[31] Exhibit 6 to the affidavit of Nicola Jane Stidever filed 8 April 2016; court document 7.
[32] Also Ex. 6 to Ms Stidever’s affidavit.
[33] Exhibit 8 to the plaintiff’s first affidavit.
[34] NF v State of Queensland [2005] QCA 110 at [29] per Keane JA (as his Honour then was).
[35] Plaintiff’s written submissions, para 25.
[36] Ibid at para 24.
[37] Ibid at para 26.
[38] [2007] QCA 327.
[39] (1996) 186 CLR 541 at 547, Toohey and Gummow JJ.
[40] Affidavit of David Lance Adams filed 26 July 2016, Court document 10, Paras 6,7 and 17.
[41] Ibid at 551.
[42] Citing Lord Hailsham of the St Marylebone LC in R v Lawrence [1982] AC 510 at 517.
[43] Applicant’s submissions, paras 35-37.
[44] Ibid at para 38.
[45] DLA05 to the affidavit of Mr Adams, para 27; court document 10.
[46] Who it may be accepted is the same person as ‘Abdul’.
[47] Plaintiff’s first affidavit, para 16.
[48] Opcit at 548-549.
[49] Report of Dr Coleman, 11 August 2014, p 4.
[50] DHG2 to Mr Gomulka’s affidavit at para 9.