Hornburg v Greenlife Solutions Pty Ltd
[2017] QDC 32
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- Unreported Judgment
- Hornburg v Greenlife Solutions Pty Ltd[2017] QDC 32
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Hornburg v Greenlife Solutions Pty Ltd[2017] QDC 32
Hornburg v Greenlife Solutions Pty Ltd[2017] QDC 32
DISTRICT COURT OF QUEENSLAND
CITATION: | Hornburg v Greenlife Solutions Pty Ltd & Anor [2017] QDC 32 |
PARTIES: | STEVEN JOHN HORNBURG v GREENLIFE SOLUTIONS PTY LTD ACN 010 917 316 and WORKCOVER QUEENSLAND ACN 577 162 756 |
FILE NO/S: | 4197 of 2016 |
DIVISION: | Civil |
PROCEEDING: | Originating application |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 23 February 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 February 2017 |
JUDGE: | Everson DCJ |
ORDER: | Application allowed |
CATCHWORDS: | CIVIL – APPLICATION – EXTENSION OF TIME – limitation of actions – cause of action in respect of personal injuries – knowledge of material facts of a decisive character. Limitation of Actions Act 1974 (Qld) ss 11, 30-31 Barnes v Smith & Ors [2011] QSC 259 HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168 NF v State of Queensland [2005] QCA 110 |
COUNSEL: | J P Morris for the applicant S P Gray for the respondents |
SOLICITORS: | Shine Lawyers for the applicant BT Lawyers for the respondents |
- [1]This is an application seeking that the limitation period be extended to 1 December 2015 pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (“LAA”) in respect of a right of action for damages against the respondent in respect of injuries allegedly sustained by the applicant during the course of his employment on 10 August 2006 and 24 October 2006.
- [2]Pursuant to s 11 of the LAA, an action for damages in respect of personal injury shall not be brought after the expiration of 3 years from the date on which the cause of action arose.[1]However, s 31 of the LAA permits the court to extend the limitation period in s 11 in the following terms:
“31 Ordinary actions
…
- (2)Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—
- (a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
- (b)that there 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]Section 30 of the LAA mandates how s 31 is to be interpreted. Relevantly, it states:
“30 Interpretation
- (1)For the purposes of this section and sections 31, 32, 33 and 34—
- (a)the material facts relating to a right of action include the following—
…
- (iv)the nature and extent of the personal injury so caused;
…
- (b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—
- (i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
- (ii)that the person whose means of knowledge is in question ought in the person’s own 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;
- (ii)as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.
- (2)In this section—
appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”
The first incident
- [4]The applicant nominates two discrete incidents which are the subject of this application. The first incident occurred on 10 August 2006. Details of this incident are set out in the applicant’s affidavit filed on 31 January 2007. In the course of his employment at the Redlands Nursery owned by the first respondent he was removing a large palm tree which was approximately 2.5 metres high and weighed approximately 100 kg. After manually excavating it, he was supporting it while a colleague tied the fronds when it slid off his shoulder and fell to the ground. He experienced sharp pain in his lower back as well as discomfort. He continued with his duties, but upon returning home he was attempting to climb the stairs when the pain in his lower back became severe and he fell down. An ambulance was called and he was taken to the emergency department at the Redlands Hospital. Before this incident he had never experienced any such lower back pain.[2]
- [5]After the first incident the applicant was off work and in receipt of WorkCover benefits before being certified fit to resume normal duties which he did.
The second incident
- [6]The second incident in which the applicant alleges he sustained injuries in the course of his employment allegedly occurred on 24 October 2006.
- [7]The applicant alleges that he was on an elevated platform beside a water storage tank performing a task which required him to lift 24 bags of fertiliser, weighing at 25 kg each, one at a time from an adjacent pallet. He would then rest each bag on the lip of a water storage tank before cutting it open with a knife and guiding it into the tank with the other end resting on his shoulder. Simultaneously he would hold a hose in the other hand to dissolve the fertiliser.[3]In the course of cross-examination at the hearing of the application the applicant demonstrated in detail the manual handling procedure required to perform this task. It involved lifting each heavy bag in a manner which required the plaintiff to twist. He was then required to secure the bag in an ungainly manner whilst its contents were released and emptied into the water tank. On 24 October 2006, after emptying 24 bags of fertiliser into the tank, the applicant descended from the platform and his back froze up leaving him barely able to walk.[4]He reported the injury and then sought medical assistance.
Symptomatology after the second incident
- [8]After the second incident the applicant received WorkCover benefits for approximately four weeks. He was given pain relieving medication and referred to physiotherapy. He returned to work on a suitable duties program and his symptomatology reduced such that by January 2007 he was certified fit for full duties.[5]The applicant still experienced soreness in his lower back on occasion but was able to complete his tasks at work.[6]
- [9]The applicant continued with a physiotherapy program and was given techniques to help relieve muscle tightness and improve strength. He was told that by doing these things he could relieve symptoms and avoid further injuries.[7]
- [10]After returning to full duties with the first respondent after the second incident, the applicant was able to fulfil all of his assigned roles. On occasion he would experience lower back pain if he “had a big day at work or a very physical task but this would be relieved by stretching or analgesics”.[8]Accordingly, he states that he had no reason to consider making a legal claim as he believed he had recovered from the injuries he had sustained in the first and second incidents and was not suffering any economic loss. In these circumstances, where he was able to manage any flare ups, he did not think he had suffered any serious injury.[9]In 2012 he had “a flare up of symptoms” when shovelling road base in the course of his employment.[10]He was treated with analgesia and anti-inflammatory tablets. After a couple of days off work his symptomatology settled and he was able to return to full duties with the first respondent.[11]
- [11]In August 2013 the applicant was experiencing some pain in his right leg and soreness in his lower back at the end of the day. He consulted his general practitioner who referred him to Dr Lucas, a neurosurgeon. Dr Lucas sent him for a MRI scan and then, according to the applicant, the following conversation occurred with Dr Lucas:
“He told me that I did have a back condition I had to live with but I did not need surgery at that time. He said if I managed it I could avoid surgery in the future.
I asked Dr Lucas about being able to continue to work and he told me that so long as I avoided doing anything silly or lift (sic) anything too heavy I should be ok. He advised me to continue with my exercises.”[12]
- [12]I perused a report of Dr Lucas dated 13 September 2013 which is consistent with what the applicant asserts he was told in the passage quoted above.[13]I also have before me a diary note of a conversation between a representative of the respondent’s solicitors and Dr Lucas, dated 20 January 2017 which records, inter alia:
“At the time of Dr Lucas’s examination, the Applicant was in his late forties and the radiological findings were consistent with a normal range in the spectrum of what he may reasonably expect for that age group.
Based upon the history which the Applicant gave to Dr Lucas and the available imaging, he thought that any aggravation caused by that nominated event would have been short-lived.”[14]
- [13]The applicant asserts that after seeing Dr Lucas “I was comforted that I had not suffered a major injury and that if I looked after myself I would be ok and could keep working”.[15]
- [14]On 1 December 2014 after lifting shelves with a co-worker “in a proper manner”,[16]the applicant experienced a spasm in his lower back but managed to finish the working day. That evening he experienced pain in his right hip radiating into his leg.[17]The next morning he woke up and suffered an excruciating back spasm when he attempted to get out of bed. He ended up being taken by ambulance to the Redlands Hospital.[18]Another scan was performed and he was treated with physiotherapy. He was certified unfit for work and told he was suffering from a disc protrusion.[19]By January 2015 he was certified fit for light duties and returned to normal duties with the first respondent on 9 February 2015. He appears to have then required pain-relieving medication to perform his full work duties and was in discomfort by the end of the day.[20]
- [15]For the first time the applicant was worried that he may have a problem that “could have an impact” on his future employment.[21]On 4 November 2015 he suffered another episode of acute back pain whilst doing some gardening resulting in a level of pain he had not previously experienced. For the first time he feared he may not be able to return to work or that his days were numbered in this regard. He realised that he was at serious risk of significant future loss of income.[22]
The material fact of a decisive character
- [16]The material fact relied upon by the applicant in support of the application is him becoming aware as a consequence of the incidents of back pain experienced on 1 December 2014 and/or 4 November 2015 that the injuries sustained in the first and second incidents were of such magnitude that his employment and future capacity to earn income were to be significantly affected. Accordingly, the material fact is pursuant to s 30(1)(a)(iv) of the LAA.
- [17]Prior to 2013 the applicant had been able to maintain full employment, performing his ordinary duties. He had been compensated for any time away from employment in 2006 and early 2007 and had not been diagnosed with a serious injury. He had not suffered any notable financial loss nor did he have a reasonable basis to expect that he would in the future as a consequence of the first and second incidents.
The fact was not within the means of knowledge of the applicant
- [18]In determining whether the material fact of a decisive character was not within the means of knowledge of the applicant, it is necessary to have regard to s 30 of the LAA. In this regard, some case law is instructive. In NF v State of Queensland,[23]Keane JA observed:
“Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant.”
- [19]
“Further, it is not the policy of the courts in the application of s 31 of the Act to penalise an injured person who makes a reasonable decision to try to get on with life rather than a decision to litigate upon a questionable basis.”
- [20]The resolution of the applicant’s symptomatology after the first and second incidents and after further aggravations until 1 December 2014, coupled with the assurances he was given by Dr Lucas quoted above, are such that I am of the view that the applicant did not know of the seriousness of the injuries he had sustained in the first and second incidents before at the earliest, 1 December 2014. This was despite taking all reasonable steps to find out that fact before that time, including obtaining appropriate medical advice.
Reasonable prospects of success
- [21]I have before me two reports of Dr Tomlinson, each dated 23 September 2016.[25]These reports suggest that a proceeding for personal injuries based on either or both of the incidents would result in an award of damages sufficient to justify the bringing of an action. As for the incidents themselves, the respondents concede that the first incident gives rise to a prima facie case against them. They dispute that the second incident does, in circumstances where they assert that the applicant has not demonstrated sufficient evidence that the tasks that were being undertaken by him constituted a breach of the first respondent’s duty of care. In this regard, reliance is placed upon the decision in Barnes v Smith & Ors where McMeekin J observed:[26]
“More troubling is that the applicant has not advanced any evidence that the repetitive movement of a 20–24 kg weight in the manner that she adopted on the day in question involved forces that were liable to injure the spine of a person of normal fortitude.”
- [22]I am satisfied that the task being undertaken at the time of the second incident was, on the contrary, one which could give rise to a successful action for personal injuries. As a starting point, it breached the requirements of the Queensland Government Workplace Health and Safety publication, A Worker’s Guide to Back Care, dated January 1997 which stated, inter alia that from a standing position “lifting loads over the 16-20 kg range should be avoided”.[27]Furthermore, the applicant’s description of the manual handling tasks required appeared to me to be such as to result in reasonable prospects of success should he institute a claim arising out of it.
- [23]Commendably, the respondents do not allege that they will suffer any prejudice in the event that the applicant institutes a proceeding for personal injuries based on either or both of the incidents.
- [24]In these circumstances, it is clearly in the applicant’s interests to bring such a proceeding.
Conclusion
- [25]I allow the application.
- [26]I order that the limitation period be extended to 1 December 2015 pursuant to s 31 of the LAA in respect of a claim against the respondents for personal injuries sustained by the applicant during the course of his employment on 10 August 2006 and 24 October 2006.
Footnotes
[1]Limitations of Actions Act 1974 (Qld) s 11(1).
[2] Affidavit of Steven John Hornburg filed 31 January 2007 2-4 [19]-[36].
[3] Ibid 4 [39].
[4] Ibid 5 [44].
[5] Ibid 6 [59]-[60].
[6] Ibid.
[7] Ibid 6 [62].
[8] Ibid 6 [64].
[9] Ibid 7 [65].
[10] Ibid 7 [66].
[11] Ibid 7 [66].
[12] Ibid 7 [69]-[70].
[13] Affidavit of Bruce Richard Thomas filed 20 September 2016, Exhibit “BRT-16” 178.
[14] Exhibit 2.
[15] Affidavit of Steven John Hornburg filed 31 January 2007 7 [71].
[16] Ibid 7 [72].
[17] Ibid.
[18] Ibid 7 [73].
[19] Ibid 8 [74].
[20] Ibid 8 [75].
[21] Ibid 8 [76].
[22] Ibid 8 [76]-[83].
[23] [2005] QCA 110 [29].
[24] [2009] QCA 168 [44].
[25] Affidavit of Peter Matus filed 9 February 2017, Exhibit “PM1” 1-9.
[26] [2011] QSC 259 [43].
[27] Affidavit of Julie Maree Piccinich filed 31 January 2017, Exhibit “JMP2” 42.