Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Scott v Complete Metal Roofing (Qld) Pty Ltd ATF Harding Roof Trust[2021] QDC 27

Scott v Complete Metal Roofing (Qld) Pty Ltd ATF Harding Roof Trust[2021] QDC 27

DISTRICT COURT OF QUEENSLAND

CITATION:

Scott v Complete Metal Roofing (Qld) Pty Ltd ATF Harding Roof Trust & Anor [2021] QDC 27

PARTIES:

BRYAN DANIEL SCOTT

(applicant)

v

COMPLETE METAL ROOFING (QLD PTY LTD (ACN 122 875 227) AS TRUSTEE FOR HARDING ROOF TRUST

(first respondent)

and

PINE RIVERS, CABOOLTURE & REDCLIFFE GROUP TRAINING SCHEME INC

(second respondent)

FILE NO:

BRIS-DIS 3223/19

DIVISION:

Civil

PROCEEDING:

Application pursuant to s 31(2) Limitation of Actions Act 1974 (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

3 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2020 & 7 December 2020

JUDGE:

Muir DCJ

ORDER:

  1. That pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) the period of limitation for the applicant’s claim for damages for personal injuries (suffered on 9 February 2015) against each of the respondents be extended so that it does not expire before 4 October 2019.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – LIMITATION OF ACTIONS – APPLICATION FOR EXTENSION OF TIME – NEGLIGENCE – WORKPLACE INJURY – where the applicant suffered a workplace injury and a re-injury several years later after the expiry of the limitation period for the first injury – whether, as a matter of fact, the issue of the applicant’s ability to work safely in the construction industry was discussed with his surgeon and his physiotherapist on 10 October 2018 – whether the applicant had already determined to leave work in the construction industry prior to the re-injury – whether advice that the applicant should not work or is better off not working in the construction industry is a material fact of a decisive character for the purpose of s 31 Limitation of Actions Act 1974 (Qld) – whether the applicant made reasonable inquiries – whether the discretion to extend the limitation period should be exercised

LEGISLATION:

Limitation of Actions Act 1974 (Qld), sections 31,

CASES:

Baillie v Creber & Anor [2010] QSC 52

Bell v Mastermyne Pty Ltd [2008] QSC 331

Berg v Kruger Enterprises (1990) 2 Qd R 325

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Byers v Capricorn Coal Management Pty Ltd (1992) 2 Qd R 306

Camden v McKenzie in [2008] 1 Qd R 39

Dick v The University of Queensland [2000] 2 Qd R 476

Do Carmo v Ford Excavation Pty Ltd (1984) 145 CLR 234

Fox v Percy (2003) 214 CLR 118

Greenhalgh v Bacas Training Limited & Ors [2007] QDC 056

Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R

NF v State of Queensland [2005] QCA 110

Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403

Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232

The State of Queensland v Stephenson (2006) 80 ALJR 923

Watters v Queensland Rail (2001) 1 Qd R 448

Withyman v New South Wales [2013] NSWCA 10

COUNSEL:

GJ Cross for the applicant

GC Driscoll for the first respondent

AS Mellick for the second respondent

SOLICITORS:

Everingham Lawyers for the applicant

Barry Nilsson for the first respondent

Cooper Grace Ward for the second respondent

Overview 

  1. [1]
    This is an application by Bryan Daniel Scott (the applicant), pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld), for an order extending the time to bring a claim for damages for negligence against his former employers, the first and second respondents. The claim relates to an injury to the applicant’s right shoulder arising from a work accident on 9 February 2015.  The applicant’s case is that he thought he had fully recovered from this injury until it flared up unexpectedly in March 2018.  It is not in contest that this re-injury related to the original injury suffered in 2015.
  2. [2]
    The applicant submitted that “a material fact of a decisive character” in relation to his right of action, namely that he should not return to work in the construction industry because of his injury, was not within his means of knowledge until a date after the commencement of the year last preceding the expiration of the period of limitation for the action.[1]  That is a date after 10 February 2017.[2]  A number of relevant sources (and dates) for this knowledge were identified by the applicant. The earliest was a post-operative consultation on 10 October 2018 with his orthopaedic surgeon Dr Dale Rimmington and his physiotherapist Mr Simon Rundell.[3]
  3. [3]
    The order sought is that the limitation period be extended so that it does not expire before 4 October 2019 [being the date from which the applicant’s claim against the first respondent is protected].[4]
  4. [4]
    Both respondents conceded that there is evidence to establish the right of action against each of them apart from a defence founded on the expiration of the applicable period of limitation.[5] However, each submitted that the evidence revealed that the applicant was prepared to change his story and to be dishonest in the face of contemporaneous records, such that the discretion to extend time should be refused.[6] Otherwise, the respondents opposed the substance of the application for different and incongruous reasons:
    1. (a)
      The first respondent on the basis that the material fact relied upon by the applicant was within his means of knowledge prior to the 10 October 2018 consultation, but he simply failed to make reasonable enquiries to ascertain that fact at an earlier date.
    2. (b)
      The second respondent on the basis that the applicant has not established the existence of a material fact of a decisive character relating to the right of action because:
      1. (i)
        by 10 October 2018, he had already decided to change career independent of his injury or the advice of his treating medical practitioners; and
      1. (ii)
        the decision to change career was a decision made not because of, but despite the advice from his treating physicians, which in fact indicated he had a good prognosis.
  5. [5]
    It follows that three main issues emerge for my determination:
    1. (a)
      First: what if anything was discussed about the applicant’s ability to work in the construction industry at the 10 October consultation.
    2. (b)
      Secondly: whether a material fact of a decisive character in relation to the right of action was not within the means of knowledge of the applicant until after 10 February 2017 and at the earliest, 10 October 2018; and
    3. (c)
      Thirdly: whether as a matter of discretion the limitation period ought to be exercised.
  6. [6]
    These issues were hotly contested before me and involve the resolution of issues of credit. It is therefore helpful at the outset to outline the general approach I have taken to determining credit issues together with some specific findings about the applicant’s credit.[7]  

Issues of credit

  1. [7]
    A useful guiding passage about credibility is found in the following observations of Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 at 431:[8]

“‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken?  On this point  it  is  essential  that  the  balance  of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.” 

[Emphasis added]

  1. [8]
    The applicant gave some oral evidence before me but the bulk of his evidence in chief was contained in two affidavits prepared by his solicitors.[9]  He was also cross examined by the respective counsel for the respondents. 
  2. [9]
    I have no reason to doubt that the applicant’s affidavit was prepared on his instructions. It was confined and focused on the legal issues arising in this application.  But the affidavits were obviously drafted by solicitors using “law speak” and not “his speak” which made them unhelpful in terms of assisting me to make a fair and accurate credit assessment of such an unsophisticated witness as I found the applicant to be.
  3. [10]
    The applicant (who was 26 at the time) was an anxious and confused young man who became occasionally defensive and frustrated when he gave his evidence in court. This is hardly surprising given the daunting court environment, his troubled background and limited education. The applicant was cross examined by counsel for the second respondent about his pre- injury mental and physical health issues. I accept that he was not forthcoming about such matters in his original Notice of Claim to WorkCover or to Dr Mark Robinson, the orthopaedic surgeon he saw at his solicitor’s request. But, my overall impression of the applicant was that he was doing his best to understand and answer the questions posed to him in the witness box and that he was trying to tell the truth as he saw it. For example: he accepted that he had taken medication and suffered from ongoing depression and anxiety; he also frankly admitted to having been an “ice head” (now ex) at a young age; he proffered a self- diagnosis of potentially suffering from “bipolar” because of some manic episodes and anger issues; and he accepted that he had previous problems with both shoulders. 
  4. [11]
    I am not satisfied that the applicant deliberately lied about his pre-existing co-morbidities.  He clearly did not fully comprehend the relevance or importance of such issues to his case, as is apparent from his retort when challenged about his previous shoulder injuries as follows: “[i]t’s 2015, five years ago.  I was a young kid trying to get my shoulder fixed after I’d just fell through a roof.”[10] 
  5. [12]
    It is too simplistic to make a general conclusion that it is unsafe to accept any of the applicant’s uncorroborated evidence in this case. As Bowskill QC DCJ (as Her Honour then was) observed in Rudd v Starbucks Coffee Company (Australia) Pty Ltd:[11]

“It may readily be observed that human beings, perhaps especially young ones, are fallible and can at times make poor choices, including in terms of truthfulness. That does not mean they are generally dishonest….”

  1. [13]
    It follows that I have undertaken a careful assessment of the applicant’s evidence.  In carrying out this task, I have assessed his evidence objectively having regard to all the evidence before the court and upon a consideration of where the balance of probabilities lies on the basis of that analysis.[12]   In taking this approach, as these Reasons reveal, I have rejected some, but not all, of the applicant’s evidence.  
  2. [14]
    Before turning to analyse the facts and the issues for my determination, it is instructive to set out the relevant legal principles.

Relevant Legal principles

  1. [15]
    Section 31 of the Limitation of Action Act provides as follows:

31Ordinary Actions

  1. (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.
  1. (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—
  1. (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
  1. (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.

  1. (3)
    This section applies to an action whether or not the period of limitation for the action has expired—
  1. (a)
    before the commencement of this Act; or
  1. (b)
    before an application is made under this section in respect of the right of action.” [Emphasis added]
  1. [16]
    Section 30 of the Limitation of Actions Act also relevantly provides the following clarification:

30 Interpretation

  1. (1)
    For the purposes of this section and sections 31, 32, 33 and 34—
  1. (a)
    the material facts relating to a right of action include the following—
  1. (i)
    the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
  1. (ii)
    the identity of the person against whom the right of action lies;
  1. (iii)
    the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

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

  1. (v)
    the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
  1. (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—
  1. (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
  1. (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;
  1. (c)
    a fact is not within the means of knowledge of a person at a particular time if, but only if—
  1. (i)
    the person does not know the fact at that time; and
  1. (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.
  1. (3)
    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.” [Emphasis added]

  1. [17]
    It follows that to succeed on this application, the applicant must show that a material fact of a decisive character relating to the right of action was not within his means of knowledge until a date after 10 February 2017.  Of course, there must be a prima facie case.[13] This is sensibly conceded by the respondents in this case.
  2. [18]
    The authorities establish a three- tier approach is to be applied to applications under s 31(2)(a). Firstly, it is necessary to determine whether the facts of which the applicant was unaware were material. Secondly, whether they were of a decisive character. Thirdly, whether they were within the means of knowledge of the applicant before the specified date.[14]
  3. [19]
    Whether the relevant fact is a material fact depends on the nature and extent of the personal injuries alleged to have been caused by the negligence of the prospective respondents.[15] Knowledge concerning the nature and extent of the personal injury suffered is capable of being a material fact as are the economic consequences of an injury.[16] The consequences of the applicant’s injuries to him, including the extent to which they will impact on his ability to work is a material fact.[17]
  4. [20]
    A material fact is of a decisive character, in relation to quantum, when it makes the difference between a situation where an action is not worth bringing, and a situation where an action is worth bringing.[18] Whether a material fact is decisive is to be decided not by reference to what the applicant knowing those facts and having taken appropriate advice on those facts would regard those facts as showing, but by reference to what a reasonable person knowing those facts and having taken appropriate advice on those facts would regard those facts as showing.[19] This is an objective test which assumes that appropriate advice has been taken, with the test to be applied by reference to how a hypothetical, reasonable person with the applicant’s knowledge would respond in the light of that appropriate advice, not in terms of how it was reasonable for the applicant to respond.[20]   
  5. [21]
    A fact is not within the means of knowledge of a person at a particular time only if he does not know that fact, and he has taken all reasonable steps to find it out.[21]
  6. [22]
    The onus is on the applicant to satisfy the court that grounds exist for the exercise of the discretion under 31(2). But there is an evidentiary onus on the respondents to raise any consideration telling against the exercise of the discretion.[22]

Analysis of the relevant background

  1. [23]
    The applicant was born on 29 September 1994 and completed school to Grade 10 at Caboolture State High School. In 2014 he obtained an apprenticeship as a roof plumber with the second respondent. On 9 February 2015, when the applicant was 20 years old, he suffered the original injury to his right shoulder as a result of an accident that occurred when he was working with the first respondent who was his “host employer”. 
  2. [24]
    The accident occurred while the applicant was screwing battens to the roof frame of a double storey house. Both feet were positioned on two separate trusses adjacent to the frame of the roof.  The trusses were approximately 600 mm apart.  As the applicant attempted to move along to screw the next batten, his foot missed the truss he was intending to step onto, and he fell between the trusses. The applicant managed to catch himself from falling to the ground by extending both arms to the side. This reduced his fall to one of approximately 1 to 1.5 metres.
  3. [25]
    At the time of the original injury, an incident report was filed with the first respondent, and a WorkCover claim was submitted. The applicant initially saw a general practitioner but was subsequently referred for further treatment. He underwent surgery on 23 June 2015 with Dr Rimmington and returned to light duties with another host employer from August to December 2015.
  4. [26]
    He was cleared by Dr Rimmington to resume full duties from 23 December 2015 and his WorkCover claim was closed in January 2016.
  5. [27]
    During his time with his host employer in August 2015 and December 2015, the applicant undertook light duties. He was then offered and accepted an offer to work as an apprentice engineer in sheet metal roofing with that company.  He commenced that apprenticeship in January 2016. This role involved manual labour as well as the operation of machinery to cut, weld, grind and fold the metal.  The applicant did not experience any difficulties performing these duties to his full capacity. But the applicant’s right shoulder was not symptom-free in the 2016/2017 period. Under cross examination he explained his symptoms as follows:[23]

“…so it wasn’t, like, painful symptoms.  It was more the nerve being sore, like, pins and needles down my arms to my hands and that, just that kind of stuff.  It wasn’t as – as if it was when I re-injured it when it was painful and stuff and not stable.  When after – in that period, those two years, it was just mainly pins and needles I was getting from down my arm and that.” [Emphasis added]

  1. [28]
    There was no evidence the applicant needed physiotherapy in 2016 or 2017. 
  2. [29]
    In August 2017, the applicant established his own business and started sub-contracting to MGJT roofing. He did not experience any significant problems with his shoulder at the time. Although he accepted under cross examination that at the beginning of 2018 his shoulder started feeling weaker, “like it was going to pop out” and that in early 2018 his shoulder was fatiguing easily, losing strength and restricted.[24] But “it didn’t get worse” and he went to see a physiotherapist to see if there was any exercise that he could do to strengthen it.[25] 
  3. [30]
    In February 2018, the applicant ceased subcontracting and in March 2018 he moved to Sydney to work as a labourer.[26]  The applicant’s evidence which I accept was that he quit his work subcontracting with MGJT because “me and my old employer weren’t getting along”.[27] Under cross examination it was suggested to the applicant that he moved because he wanted to make “a career direction change.” The applicant’s response was: “no, not 100 per cent.  But I did when I moved down to Sydney. I was taking a break from working and talking to my brother.”[28] His later evidence which I accept was that:[29]

“I could’ve had a job in Sydney roofing straight away. My old employer had organised me that.  But I turned that down because I was spending time with my brother.  Once I spent some time with him, he’s convinced me to try again for the Airforce.”

  1. [31]
    I accept the evidence supports both respondents’ submissions that the applicant was looking for a career change at this point in time. The applicant readily accepted that he gave up his subcontracting business to move to Sydney and that he was re-applying for the Airforce.[30]  The uncontroversial evidence which is discussed in paragraph  34 below was that the applicant tested and interviewed with the Airforce on his move to Sydney.
  2. [32]
    But I reject the first respondent’s submission that in early 2018 the applicant had given up his work in construction because he was having problems with his right shoulder. Such a proposition was rejected by the applicant and is not supported by any cogent evidence such as any relevant medical or physiotherapy records.
  3. [33]
    I also reject the second respondent’s submission that the applicant had made a permanent decision to get out of the construction industry prior to the re-injury. He was a young man with limited education and at that point in time his only apparent source of income was through manual work in the construction industry. The applicant was well entitled to explore other career options. It is not incredible or even unusual for a young person in his position to have been doing so. It does not follow, and I do not accept, that the decision to explore or even to take up another career meant that the applicant had made some final decision that for the rest of his working life he would never return to a job in the construction industry.  
  4. [34]
    On 19 March 2018, (prior to the re-injury) the applicant interviewed with Airforce officer Sergeant Browning.  He accepted he did not tell Sergeant Browning that there were any problems with his right shoulder but this is not surprising given and as the applicant identified, when challenged under cross examination, “the problem hadn’t arose yet.”[31] The applicant’s evidence (which I accept) was that he told Sergeant Browning about the previous surgery on his right shoulder. The applicant’s further attempt to enter the Airforce at this time is also consistent with his evidence that at that point in time he did not consider that there was an ongoing issue with his right shoulder - particularly to the extent agitated by the first respondent. I find it highly improbable that the applicant would have proceeded with his application if he had thought his right shoulder injury would have impeded his chances of joining the Airforce.
  5. [35]
    The applicant accepted he had a history of anxiety and depression and that he did not raise these matters during his interview with Sergeant Browning. The respondents submitted that this fact reflected badly on the applicant’s credit. I reject this submission. The Airforce (and it is reasonable to assume, as I do, Sergeant Browning), possessed the applicant’s medical records at the time.[32] There is no reason to think that Sergeant Browning could not have asked about these issues if he had wanted to.  There was also no evidence that any of these issues had impacted on the applicant’s ability to work in the construction industry in the past. It follows that the applicant should not be penalised for not having raised such sensitive matters during this initial interview.
  6. [36]
    Shortly after this interview (later in March 2018), the applicant was driving in Sydney when his right shoulder “suddenly and unexpectedly”[33] dislocated resulting in the re-injury. The applicant described what happened as follows: “I went to turn one day; the shoulder came out of the socket and couldn’t move, popped real bad”.[34]
  7. [37]
    Under cross-examination, it was suggested to the applicant that his right shoulder got worse in the early months of 2018. His answer was “I’m not too sure. Until it locked up [in March 2018] that’s when I really knew.”[35] I accept that applicant’s evidence about this. Under cross-examination it was suggested to the applicant that he knew if there were any problems after he was sent back to normal duties on 23 December 2015, he could always go back to Dr Rimmington or get a referral to him. The applicant accepted this proposition. It is in fact exactly what he did. The re-injury was causing the applicant significant pain,  so he rested at his brother’s house in Sydney, iced his shoulder, and eventually got through to WorkCover to re-open his earlier claim.[36] The applicant then contacted a GP and obtained a referral to Dr Rimmington. He also saw a physiotherapist and told her that his right shoulder had been popping out of its socket approximately two times a day since the re-injury.[37] 
  8. [38]
    On 11 June 2018, the applicant attended on Dr Rimmington after his WorkCover claim was reopened. He described the pain from the re-injury to be “similar and worse”.[38] By this time, the applicant knew that the Airforce was not an available option to him, but he still thought he would be able to “return to construction.”[39]
  9. [39]
    Under cross examination it was suggested to the applicant that throughout 2018 his position was that he wasn’t going back to construction. The applicant’s evidence, which I accept as a matter of common sense, was that:

“No, I wanted to have surgery – talk to the surgeon, get my shoulder fixed. See what happens from there. I wasn’t going back to construction before seeing the surgeon and getting my shoulder fixed no.”[40]

  1. [40]
    It follows from the above analysis that I reject the first respondent’s submission that the applicant failed to make reasonable enquiries in late 2017 and during 2018, prior to 10 October 2018, for two main reasons. First, because I am satisfied his right shoulder was not giving him any or sufficient concern to make any enquiries until the re-injury in March 2018. Secondly, immediately upon suffering the re-injury, the applicant clearly made reasonable enquiries by making an appointment with his GP and obtaining a referral to see Dr Rimmington, the surgeon who performed the initial surgery on his right shoulder.
  2. [41]
    The applicant’s evidence was that Dr Rimmington was initially unsure about what had happened to his shoulder and so he was referred for various scans. The applicant also said that Dr Rimmington remained unsure after examining these scans, but he told him he could see the screw heads and washers he had previously inserted had become loose and were sticking out. The applicant’s evidence about this is consistent with Dr Rimmington’s report at the time: that the applicant’s symptoms were related to his original injury; that the screws were impinging on the anterior soft tissue; that surgery was recommended to remove the metal work; and that he hoped the applicant would recover well but if his injury was unstable, the applicant would need further surgery.[41]
  3. [42]
    The applicant underwent further surgery with Dr Rimmington on 25 September 2018 during which the screws and washers in his shoulder were removed.  After the surgery the applicant said that he “did feel good straight away but in my mind I was not-not really sure”.[42] 
  4. [43]
    On 10 October 2018, the applicant attended his first post-operative consultation with Dr Rimmington and Mr Rundell. In the days leading up to this consultation the applicant said he had started thinking about his career prospects because he “was 24 and just came out of my second op-operation. So I’ve got – it was on my mind, like, am I going to be returning or not” [to the construction industry].[43] 
  5. [44]
    The applicant’s solicitor gave evidence[44] that the applicant had instructed  him that in a post-operative consultation with Dr Rimmington on 10 October 2018, the applicant was told: the bones in his right shoulder had shrunk and the applicant was recommended to pursue a career outside of the construction industry as his shoulder health was poor.[45] Dr Rimmington and Mr Rundell both deny any suggestion that the applicant was recommended at this time ( or at any time) to pursue a career outside of the construction industry – or that his right shoulder had shrunk or was in poor health.  My findings about what was said at this meeting are set out under that heading later in these Reasons.
  6. [45]
    After the October 2018 consultation the applicant said he was “still undecided” but he was pretty confident that he was going to discontinue construction work although he still thought that if he finished his physiotherapy work, he might be able to get into another aspect of construction outside of roofing.[46]
  7. [46]
    Subsequently, the applicant continued to experience further problems with his right shoulder. A few days later he described feeling his shoulder pop out and that this “just started concreting it in, like, closing the door and my shoulder pops out. It’s not really going to be too good doing other jobs”.[47]
  8. [47]
    The applicant had two further consultations with Dr Rimmington and Mr Rundell after 10 October 2018, the last being on 12 December 2018.  
  9. [48]
    On 12 December 2018, Dr Rimmington cleared the applicant to return to work performing “suitable duties”. He then certified the applicant to return to “normal duties” by 29 January 2019.  The applicant said he was “kind of shocked” about this.[48]  He referred to having two operations in three years and that he wasn’t really sure. He also said that despite being cleared for full duties, he did not return to full duties because he wanted to pursue “the other career now”.[49]
  10. [49]
    It was not in issue (and as had occurred with the original injury), that the applicant received full WorkCover benefits until he was cleared to return to work. 
  11. [50]
    On 4 January 2019, the applicant consulted an exercise physiologist at the Caboolture Physical Therapy Centre.  He told this physiologist (Mr McGee) that he liked riding bikes which he couldn’t do because of his shoulder and that he wanted to get into tattoo laser removal because “me and the doctors both didn’t think it was a suitable thing to stay in construction.”[50] 
  12. [51]
    In June 2019 the applicant undertook two days’ work for a friend who ran a business named Versatile Concreting. But the applicant gave up after day two as he started experiencing pain, discomfort and fatigue from his right shoulder. In his second affidavit the applicant’s said that “the fact that I wasn’t even able to perform those duties during those two days confirmed my thoughts that I would never be able to return to the construction industry.” [51] 
  13. [52]
    Other than the two days of working with Versatile Concreting, the applicant has not   undertaken any further work since shortly before the re-injury when he stopped work in February 2018.
  14. [53]
    In his second affidavit, the applicant stated as follows:[52]

“[20] I have been provided with a copy of the report of Dr Mark Robinson dated 23 October 2019 and the memorandum of the telephone conference between Luke Newton and Dr Mark Robinson that took place on 28 July 2020. I was provided a copy of Dr Robinson’s report by my solicitors on 17 December 2019. 

[21] I’ve also been provided with the report of Lee Ng dated 3 February 2020 and the memorandum of the teleconference between Luke Newton and Lee Ng that took place on 30 June 2020.  I was provided a copy of Lee Ng’s report by my solicitors on 4 February 2020.

[22] I’ve considered Dr Robinson and Lee Ng’s reports and particularly note their views in regard to my inability to return to the construction industry.

[23] I am unsure as to what employment I could hold in the future as I do not feel I can return to manual labour with my shoulder injuries and this is the only work I have ever performed, however, as mentioned, I am interested in pursuing a career in tattoo removal.”

  1. [54]
    It is against this background that it is submitted on behalf of the applicant that a  material fact of a decisive nature being that “the applicant should not work in the construction industry” was not within his means of knowledge until, at the earliest, the consultation with Dr Rimmington and Mr Rundell on 10 October 2018.[53] The applicant’s counsel also submitted another six “potential sources” of the information” as follows:[54]
    1. (a)
      The applicant’s own observations of his shoulder not improving in early 2019;
    2. (b)
      The applicant inability to continue work with Versatile Concreting in or around June 2019;
    3. (c)
      The applicant receiving a report from Dr Mark Robinson, Upper Limb Surgeon dated 23 October 2019.
    4. (d)
      The applicant receiving a report from Mr Lee Ng, Occupational Therapist dated 3 February 2020;
    5. (e)
      The applicant receiving a file note of Mr Lee Ng, Occupational Therapist dated 30 June 2020; and
    6. (f)
      The applicant receiving a file note of Dr Mark Robinson, Upper Limb Surgeon dated 28 July 2020.

The 10 October consultation

  1. [55]
    It was relatively uncontroversial that: the consultation went for approximately 30 to 45 minutes; the initial meeting was with Mr Rundell and the applicant only; and Dr Rimmington joined in for the last five to fifteen minutes.  
  2. [56]
    The applicant’s evidence about this consultation in his first affidavit was as follows:[55]

“[37] On around 10 October 2018 I had my first preoperative consultation with Dr Rimmington and Simon Rundell, physiotherapist. During this consultation we discussed that my shoulder was not in good health. Dr Rimmington and Simon recommended changing careers and getting out of the construction industry. I was shocked by this because I thought my shoulder was fine after the first surgery and Dr Rimmington had told me I would be able to return to my fulltime work duties. I realised around this time that the injury to my shoulder was much more significant than I initially thought it was back in 2015 and that I would need to change my whole life. I remember suggesting doing a tattoo removal course which Dr Rimmington made a joke about because I have tattoos. Dr Rimmington and Simon were very supportive of me getting out of the construction industry because my shoulder was weaker and I was experiencing more pain and discomfort than before. Dr Rimmington and Simon advised my shoulder would not be able to (sic) cope with the stress and demands of the roles in the construction industry and it was likely that my shoulder would never return to full health.

[38] I consulted with Dr Rimmington and Simon around 2 or three more times afterwards and we continued to discuss my changing career. Dr Rimmington continued to support me changing careers.

[39] I have not been able to return to work since March 2018”

  1. [57]
    Dr Rimmington’s evidence in response was as follows:[56]

“17.In terms of Mr Scott’s other allegations, I do not remember:

  1. (a)
    saying to Mr Scott that his shoulder was ‘not in good health’;
  1. (b)
    making a joke about his tattoos. This is not something I would do.
  1. If I had made a recommendation to Mr Scott about a change of career (which I did not), it would generally appear in my notes or in a report. Having reviewed my notes and reports, which form part of exhibit DR-13, I observe that there is no actual note but I followed my practice which I mention in paragraph 23 below[57] and forwarded a report to Dr Louise Gardiner dated 15 October 2018. I observe no such recommendation has been recorded by me.
  2. If Mr Scott has misconstrued what transpired to be advice by me that he should get out of the construction industry, that was not my intent nor my advice.” 
  1. [58]
    Relevantly, on 18 September 2019, (prior to swearing an affidavit in this proceeding) Dr Rimmington responded to a series of questions from the solicitors for the second respondent about the 10 October consultation as follows:[58]

“1.  Did you recommend to Mr Scott on or around 10 October 2018 that he should change careers and get out of the construction industry? Do you have a record of that?

I did not recommend Mr Scott change careers. He volunteered to me and Simon Rundell, the physiotherapist that works in my office, when we were consulting him that he was changing his careers to tattoo removal.

2.  Did you make that recommendation to Mr Scott at any time prior to 10 October 2018? If so, when was that advice given and do you have any record of that?

Generally, lighter duties such as tattoo removal is good for Bryan’s shoulders but I did not recommend he change career, we actually cleared him for normal duties.

3.  If you have no written record and no independent recollection of the discussion on 10 October 2018, is it likely that you would have given the above advice to Mr Scott, within three weeks of surgery?

See my letters that were generated from my consultation notes at the end of 2018. As mentioned, lighter duties are favourable for any patient post shoulder reconstruction like Bryan has gone through. That is definitely not to say that he could not get back to normal duties though.” [Emphasis added]

  1. [59]
    Under cross examination Dr Rimmington accepted that at the 10 October consultation he told the applicant that going into the tattoo removal business would pose less of a risk to his right shoulder in the future.[59]
  2. [60]
    Dr Rimmington’s evidence about the last time he saw the applicant [on 12 December 2018] was as follows:[60]

“21.  I last saw Mr Scott on 12 December 2018 at which time I thought he would be back to normal duties within six weeks. At that time, I provided Mr Scott with a medical certificate certifying him as fit to continue with suitable duties until 27 January 2018 and thereafter normal duties. Exhibit DR-11 to this affidavit is a copy of the medical certificate issued by me at that time. I would not have cleared Mr Scott on a WorkCover medical certificate for normal construction duties if I did not consider him fit to undertake such duties.

22.  I subsequently provided a report to WorkCover Queensland, dated 17 December 2018, in which I indicated Mr Scott would be ‘right’ for normal duties within six weeks. By this, I meant fit for normal duties in the construction industry. Exhibit DR-12 to this affidavit is a copy of that report.” 

  1. [61]
    Mr Rundell spoke to the applicant’s solicitor over the telephone on 21 May 2019. Subsequently, a file note of that conversation was sent to Mr Rundell and he initialled that record as correct. This file note provided as follows:[61]

“Luke Newton, Solicitor of Everingham Lawyers, contacted me on 21 May 2019 in relation to Bryan Scott.

Luke asked whether I considered Bryan would be able to return to the construction/roofing industry following the procedure he had to his shoulder.

I said to Luke that I told Bryan shortly after his surgery in September 2018 that I considered he had a serious shoulder injury and that he should look at alternative employment options to the construction industry.

Bryan also informed me that he was looking into a tattoo removal position and I said to him that would be far easier on his shoulder.

I said to Luke that I had also told Bryan shortly after his surgery in September 2018 that I considered his job in the construction/roofing industry that Bryan had previously worked in was a very physically demanding job and that his shoulder needed to be ‘in great shape’ to be able to work in that previous job role.

I said to Luke that if Bryan returned to the construction/roofing industry he was at a higher risk of causing damage/injury to himself than the average person as a result of his shoulder injury.” 

[Emphasis added]

  1. [62]
    Mr Rundell subsequently disputed the accuracy of that file note. In his affidavit prepared for these proceedings, his evidence was as follows:[62]

“10.  While I did sign the note which forms exhibit SR-02, it is not an accurate reflection of the totality of the discussion I had with Mr Scott on the day to which it relates and the statements in the note lack proper context.

11.  In so far as there was a discussion about future work at the 10 October 2018 consultation, my recollection is that Mr Scott was thinking about getting into tattoo work because he thought it would be better for his shoulder. I did not initiate this discussion, nor did I dissuade Mr Scott from what seemed like his intended work plan. It was not a career change I suggested.

12.  Specifically, I did not suggest to Mr Scott that he should get out of construction work and go into tattooing.

13.  It is also not correct to say that:

  1. (a)
    I advised Mr Scott that his shoulder was ‘not in good health’.
  1. (b)
    Dr Rimmington or I advised Mr Scott that his shoulder would not be able to cope with the stress and demands of the roles in the construction industry and it was likely that his shoulder would never return to full health.” (See Affidavit of Simon Rundell, Exhibit “SR-08”.)

  [Emphasis added]

  1. [63]
    Subsequently on 12 September 2019, Mr Rundell responded to a series of questions by the solicitors for the second respondent as follows:[63]

“1.  Did you have a joint consultation with Dr Rimmington on 10 October 2018? If so, what was the purpose of that consultation?

Yes. As part of his post-operative plan I initially provided treatment such as removing his sling and commencing exercises. I then referred him to a physiotherapy clinic closer to home, Caboolture Physical Therapy. Dr Rimmington outlined the surgical procedure that had taken place and outlined the rehabilitation plan.

2.  Did you recommend to Mr Scott on 10 October 2018 that he should change careers and get out of the construction industry?

I remember having a conversation regarding his work. I cannot remember and typically do not make recommendations to patients that they must not return to their line of work. I leave that judgement up to the surgeon treating the patient but sometimes I am asked for input. I cannot remember if Dr Rimmington made that recommendation at that time. My recollection is when Bryan suggested he could go into the tattoo removal business instead of his current job, which included heavy work, I said it would be easier on his shoulder and he would be at less risk of hurting his shoulder. I am not certain when this took place, but it was either 10/10/19 (sic) or 14/11/19 (sic).

3.  If yes, do you have a record of that advice being given or is the only record of that consultation that which appears in the attached consultation notes?

No record in notes regarding this particular conversation.

4.  Did you make that recommendation to Mr Scott at any time prior to 10 October 2018? If so, when was that advice given and do you have any record of that?

No.

5.  If you have no written record and no independent recollection of the discussion on 10 October 2018, is it likely that you would have given the above advice to Mr Scott, within three weeks of surgery when he was still in the recovery phase?

I cannot distinctly remember any other details other than my recollection stated above. The discussion may have taken place on the 10/10/18 but I am unsure.”

[Emphasis added]

  1. [64]
    Under cross examination Mr Rundell’s evidence was relevantly as follows:

And you say:

I remember having a conversation regarding his work.

? --- Yes.

Now, I suggest to you Mr Scott expressed some concerns as to his ability to continue in the construction industry? --- Yeah, we – we discussed his work.

No, more particular, he had a discussion with you about whether he had the ability to continue in the construction work? --- Yes.  Yeah.  Yep, we had that discussion. We had a discussion about work, returning to work and he also as – as you’ll see further down, he also expressed that he was thinking about going into the tattoo industry or tattoo removal industry.

Yeah? --- And he – he asked us a few questions about that.

Mr Rundell, so he expressed some concerns whether with his injury he could return to the construction industry that he’s previously been in; is that correct? --- That’s true.

And you indicated to him that his – his current job was heavy work? --- Yes.

And that he would – it would be better for his shoulder or easier for his shoulder if he went out of that work into a business such a (sic) tattoo removal? --- Yeah.  Given the choice, that would be the far easier choice for him, for – for his shoulder, yeah.

Easier on his shoulder? --- Yes.  Yeah.  Well, one’s heavy work and ones heav (sic) – like, heavy work.  Also, there - there’s a risk element involved. 

Sorry, I missed that.  I’m sorry.  SO there was a ---? --- There’s – there’s a risk element involved with what he was doing with the heavy work as well, the roofing industry.

And then, you advised him that it’d be less risk of him re-hurting his shoulder? --- Yeah, yes.

So at this stage, you had known that he’d had a previous event in 2015, for which you helped treat? --- Yes.

And you’d known that he’d had two lots of surgery to his right shoulder? --- Yes.

And that in those circumstances, he would be better suitable – better off changing from a heavy task to a task which is more sedentary in nature? --- Yeah, that’s true, but I must say that I didn’t suggest that he go into the tattooing removal industry.  That is not something that I brought up.

No, I accept that he raised it with you? --- Yeah, yes.

Is that correct? --- Yeah, that’s correct.”[64]

“Yes, now, it would be your view, Mr Rundell, that given that he had two separate events – two operations, that he had a – ended up with a significant injury? --- Yes, yep.

The – and that significant injury – have you had involvement with persons doing roof sheeting and that type of work previously? --- I haven – I’m sure I have, but not in Bryan’s particular case.  But I would – I – my view on – on that roof sheeting work that he was doing is it’s heavy manual labour and it is the equivalent of a footballer going back to play football.  If a footballer had an injury similar to Bryan’s, I – and given the option, if the said, ‘Hey, I’m – I’m thinking about not going back to football.  I’m thinking about going to play some other sport – non-contact.’,  I would – I would certainly be encouraging him to do that.[65]

  1. [65]
    The applicant responded to the evidence from Mr Rundell and Dr Rimmington as follows:[66]

“6.  On 10 October 2018 I had a meeting with Simon Rundell, Physiotherapist, and Dr Rimmington.  From memory I consulted with Simon first.  My recollection from that part of the meeting is that Simon and I discussed the condition of my shoulder and how it would go if I returned to the construction industry. I mentioned to Simon and idea I had about pursuing a career in tattoo removal and, from memory, I understood Simon to be supportive of that idea.

  1. Dr Rimmington joined Simon and I for about the last half an hour of that meeting. Concerns about my ability to return to the construction industry were mentioned again while Dr Rimmington was present. My understanding was that the meeting ended on the general understanding between Simon, Dr Rimmington and I that because I was still having problems with my shoulder it would be better if I got out of the construction industry and pursued a career in the tattoo removal work. As I mentioned in my affidavit of 6 September 2019, because I have tattoos, Dr Rimmington made a joke about the irony of me pursuing a career in tattoo removal.”
  1. [66]
    On 4 January 2019 (three weeks after the last consultation with Dr Rimmington), the applicant attended an exercise physiologist, Mr Alexander Magee. Mr Magee’s written record of that meeting (at that time) was:[67]

 

“Friday 4 January 2019 10.45am

Subjective

Feels shoulder is getting stronger and more stable. Has been attending gym 3 times per week and adhering to program. R/v with surgeon 12/1. Hoping to get into new job as surgeon does not want him returning to construction.”  [Emphasis added]

Analysis

  1. [67]
    As can be gleaned from the evidence set out above, there are varying recollections of what was said and by whom at the 10 October consultation. This is not surprising as although Dr Rimmington and Mr Rundell made clinical notes, none of the attendees took detailed notes of the consultation.  It is to be expected and is consistent with the frailties of human nature, that different witnesses may have slightly different recollections and perspectives of what was said during a discussion depending on their particular interest in the content of that discussion. For example, neither Dr Rimmington nor Mr Rundell made any note about the applicant saying he was leaving the construction industry to work as a tattoo removalist. Yet both agree (in different ways) with the applicant’s version that such a discussion occurred. 
  2. [68]
    I accept both Dr Rimmington and Mr Rundell as honest and generally reliable witnesses. But they were being asked to recall discussions that took place during a routine consultation of the type they attend with different patients on a regular basis. It follows that they cannot be expected to recall all of what was said at every consultation. On the other hand, the applicant was more likely to recall specific matters that he considered directly impacted on his future working life.
  3. [69]
    There is no doubt that the applicant gave varying accounts of exactly what he was told about his right shoulder during the 10 October consultation. Overall, I prefer and accept the version given by him during his oral evidence. This evidence was (contrary to the submissions of the respondents) and as the analysis below reveals, largely consistent with the aspects of the evidence of Dr Rimmington and Mr Rundell that I have accepted. 
  4. [70]
    The applicant’s oral evidence, which I accept as entirely plausible (and as a matter of common sense), was that the issue of his ability to work in the construction industry, given he had undergone a number of surgeries in a few years, was a matter that was playing on his mind leading up to his first post-surgery consultation with Dr Rimmington and Mr Rundell.  In this context I accept that the applicant thought he should “up the advice on changing careers, getting out of construction and may be pursuing something like my tattoo laser removal course that I would like to do”.[68] 
  5. [71]
    I accept the evidence of Dr Rimmington and Mr Rundell that they never told the applicant that he could not work in the construction industry. But I do not accept Dr Rimmington’s recollection that the applicant said words to the effect of “[d]on’t worry about construction. I’m – I’m becoming a tattoo removalist.” I prefer the evidence of the applicant that he raised the issue of becoming a tattoo removalist with Dr Rimmington and Mr Rundell because he wanted to get their advice about whether this was a better option for him (in terms of his shoulder) than staying working in the construction industry. The applicant’s version is also supported  by the evidence of Mr Rundell that the applicant told them that he was thinking about a career as a tattoo removalist and that he wanted to know whether that was a better choice given the injury to his right shoulder.
  6. [72]
    The applicant said he raised the idea of becoming a tattoo removalist with Dr Rimmington and Mr Rundell and they all had a laugh about it. Dr Rimmington was very defensive about there being any suggestion that he made fun of the applicant for having tattoos. However, that was not the suggestion. The applicant’s evidence, as set out in the passage at [56] above was “that I remember suggesting doing a tattoo removal course which Dr Rimmington made a joke about because I have tattoos.”  This evidence, which I accept, is consistent with Mr Rundell’s evidence that usually a lot of the same things were discussed with patients but “Bryan did stand out, because there was a joke made about-he ha- he was going into the tattoo removal business, and he did have some quite extensive tattoos.”[69] Both Dr Rimmington and Mr Rundell were defensive about the suggestion that one or both had suggested to the applicant that he take up laser tattooing. But that was not the applicant’s case. The applicant consistently maintained that the idea of undertaking a course and taking up a career in tattoo removal was his and that he had been considering it prior to the 10 October consultation. His thinking being “well, people are going to make mistakes in life and get tattooed, why not be the person to make money off them.”[70]
  7. [73]
    The applicant said that Mr Rundell told him that his shoulder was weak and that he was at a higher risk or more prone for injury than the normal person if he was to return to his previous work as a metal roofer.[71] This evidence which I accept is entirely consistent with the evidence of Mr Rundell as set out in paragraphs 61 to 64 above.  Under cross examination the applicant was unable to recall exactly what comment Dr Rimmington made about his right shoulder.  But he could not recall being told that it was good and that it was “going to be sweet.”[72]  
  8. [74]
    Under cross-examination, the applicant accepted that Dr Rimmington authorised him to get back to his normal duties in the construction industry after a period of rehabilitation and strengthening. However, the applicant’s evidence was that Dr Rimmington also agreed that getting out of construction was better. The applicant then gave the following lengthy response to the suggestion from counsel for the second respondent that all that was being said was that if he wanted to do something lighter  then that was fine:

“no, it wasn’t [indistinct] it’s do they agree – do they medically think that my shoulder is smart to go back into construction or do they – as a medical professional – he is a shoulder surgeon. He is a professional – I can put a roof on. I can do that without a problem. I can make your roof not leak. He should be able to fix my shoulder then. So under my professional opinion, I – I wanted to get his professional opinion for what his job is. He is a shoulder guy. I’m a roof person. I don’t know the next thing to a shoulder or anything.”[73]

  1. [75]
    The applicant’s evidence, which I accept, was that when he left the 10 October consultation the advice he had obtained from Dr Rimmington and Mr Rundell was that another construction job was not going to be good for his shoulder and that they were both happy for him to change jobs. He accepted that he wasn’t being told to change jobs, but his understanding was that it was not a smart move for him to return to a job in the construction industry.[74]At the time of the 10 October consultation, the applicant had undergone two surgeries on the same shoulder (by the age of 24). Both Mr Rundell and Dr Rimmington agreed the injury was a serious one.[75]
  2. [76]
    His understanding, which I accept as being based on what he was told during the consultation, is entirely consistent with Dr Rimmington’s evidence that:

“When I last saw Mr Scott he said he was commencing a career in tattoo removal which I thought would be good for his shoulder as it is less demanding than the constructing industry but I did give him clearance to go back to the construction injury [sic] that was the idea of clearing him for normal duties.”[76]

  1. [77]
    It is also consistent with Mr Rundell’s evidence that  given the applicant’s surgeries and his ongoing problems with his right shoulder, a job out of construction would be far easier on his shoulder and less of a risk of injury. [77]
  2. [78]
    It follows that the applicant’s understanding after the 10 October consultation that his shoulder was weaker and was more prone to injury if he continued to undertake construction type work was both logical and understandable.

Issue 1 findings:  What, if anything, was discussed about the applicant’s ability to work in the construction industry at the 10 October consultation?

  1. [79]
    On the above analysis, I find that:
    1. (a)
      the applicant first raised his concerns about his right shoulder being weak and more prone to injury with Dr Rimmington and Mr Rundell at the 10 October consultation; and 
    2. (b)
      At the 10 October consultation, both Dr Rimmington and Mr Rundell agreed with the applicant’s proposition that a job out of the construction industry, such as one in the tattoo lasering business, would be a better option and less of a risk for re-injury to the applicant’s right shoulder; and
    3. (c)
      The applicant’s understanding, based on what he was told at the 10 October consultation, was that that it would be unwise for him to go back into a job in the construction industry and therefore he should not go back into a job in the construction industry (“the fact”)
  2. [80]
    I am satisfied and find that the applicant did not know the fact prior to the 10 October consultation. 

Issue 2 findings: was there material fact of a decisive character in relation to the right of action not within the means of the applicant until after 10 February 2017 and, at the earliest, 10 October 2018?

  1. [81]
    Bearing in mind the relevant legal principles (as set out under that heading above), I am satisfied on the above analysis and find that:
    1. (a)
      The fact is material if it is relevant to the economic consequences of the injury; and
    2. (b)
      The fact is decisive because up until the end of the 10 October consultation the applicant would not, even with the benefit of appropriate advice, have previously appreciated that because of the injury, his ability to work safely in the construction had been impacted to such an extent that he should not go back into such a job such that he had a worthwhile action to pursue and that he should pursue it; and
    3. (c)
      A reasonable person in the position of the applicant would not have made an enquiry until he did.
  2. [82]
    I am satisfied that the applicant has proved that a material fact of a decisive character has transformed his case into a worthwhile one. I therefore find that a material fact of a decisive character in relation to the right of action was not within the means of knowledge of the applicant until after 10 February 2017 and at the earliest, 10 October 2018.
  3. [83]
    Given these findings it is unnecessary to consider the other six material facts relied upon by the applicant.

Issue 3 findings: Should I exercise my discretion to extend the limitation?

  1. [84]
    The respondents submitted that there are a range of previously undisclosed issues[78]  that emerged during this application about which the respondents have lost the timely opportunity to investigate and which make it difficult for them to satisfy the evidentiary onus cast on them to establish that the applicant’s apparent inability to work in the construction industry was an inevitable one (or that these matters have  adversely impacted on the applicant).[79] I accept, for present purposes, that some or all of these matters will impact on the applicant’s claim in a variety of ways. However, the extent to which they do remains in my view, a matter for trial. It is not the case that the respondents allege that there are missing records or witnesses. It might be later than it ought to have been, but I am also not satisfied that the respondents have lost the opportunity to make the necessary investigations about the matters that have now come to light. 
  2. [85]
    The respondents also submitted that the “applicant’s preparedness [to be dishonest for his own financial advantage] in the face of Dr Rimmington’s contemporaneous records, tells against the exercise of the discretion in his favour.”[80]  But it follows from findings about the 10 October consultation that I do not accept this submission.
  3. [86]
    It also follows that I am not satisfied that the respondents’ will suffer any real prejudice or that it would be unfair to them if I was to exercise my discretion to allow the extension sought.[81]
  4. [87]
    I am satisfied and find that I ought to exercise my discretion in the applicant’s favour.

Orders

  1. [88]
    I therefore order that pursuant to s 31(2) of the Limitation of Actions Act that the period of limitation for the applicant’s claim for damages for personal injuries (suffered on 9 February 2015) against each of the respondents be extended so that it does not expire before 4 October 2019.

Costs

  1. [89]
    The applicant has been successful. Ordinarily, costs follow the event. It follows that the appropriate order as to costs in this case is that the respondents pay the applicant’s costs of the application to be assessed if not agreed.  But I will allow the parties the opportunity to make submissions as to why another order as to costs is appropriate in this case.  To that end, I direct that any submissions in respect of costs (no longer than 2 pages), or alternatively a proposed draft order if the parties are agreed, be exchanged, and emailed to my Associate by 4.00pm Monday 8 March 2021. Otherwise the costs order foreshadowed will be made.

Footnotes

[1]  Under s 11 of the Limitation of Actions Act the limitation period for the applicant’s claim expired on 9 February 2018.

[2]  Under s 31(2) (a) of the Limitations of Actions Act; The High Court analysed this provision in some detail The State of Queensland v Stephenson (2006) 80 ALJR 923 (Stephenson).

[3]  The seven sources as identified in the Further Submission on behalf of the applicant dated 19 November 2019 at [4.8] are set out in full at [54] of these Reasons.

[4]  The applicant protected the limitation period against the first respondent, by the filing of a claim and statement of claim on 4 October 2019 pursuant to an order of the court granting leave (made with consent) on 18 September 2019; and as against the second respondent, from 26 June 2019, following a notice of claim being served on WorkCover and the second respondent on that day, with compliance subject to corrections agreed between those parties.

[5]  S. 31(2) (b) of the Limitations of Actions Act.

[6]  Relying on the observations of McMeekin J in Bell v Mastermyne Pty Ltd [2008] QSC 331 at [19].

[7]  The latter is necessary given the respondents’ serious challenge to the applicant’s credit in this case.

[8]Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 at 431 (Vergottis); cited with approval in Withyman v New South Wales [2013] NSWCA 10 at [65]. The usefulness of evidence independent of the parties to resolve credit issues was also highlighted by Keane JA (as his Honour then was) in Camden v McKenzie in [2008] 1 Qd R 39 at [34].

[9]  The applicant’s first affidavit was sworn on 6 September 2019 [exhibit 1]; applicant’s  second affidavit was sworn on 19 August 2020 [exhibit 2].

[10]  Hearing T1-44, ll 13 – 15.

[11]Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232  at [ 19] (Rudd).

[12]Fox v Percy (2003) 214 CLR 118 at [31] and Camden v MacKenzie [2001] 1 Qd R 39 at 34; see also discussion by Bowskill QC DCJ in Rudd.

[13]Baillie v Creber & Anor [2010] QSC 52 at [4].

[14]Do Carmo v Ford Excavation Pty Ltd (1984) 145 CLR 234 at 256; Dick v The University of Queensland [2000] 2 Qd R 476 at [26]

[15]  s 30(1)(a)(iv) Limitations of Actions Act

[16]Byers v Capricorn Coal Management Pty Ltd (1992) 2 Qd R 306; Watters v Queensland Rail (2001) 1 Qd R 448 at 453 (Thomas JA).

[17]Greenhalgh v Bacas Training Limited & Ors [2007] QDC 056 at [12] per Mc Gill SC, DCJ.

[18]Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 324 at 333; Berg v Kruger Enterprises (1990) 2 Qd R 325 at 333. 

[19]NF v State of Queensland [2005] QCA 110 at [29].

[20]  Stephenson at [30] per Gummow, Hayne and Crennan JJ.

[21]  S. 30(1)(c)  of the Limitation of Actions Act.

[22]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per Toohey and Gummow JJ (Taylor).

[23]  Hearing T1-67, ll 1 – 6.

[24]  Hearing T1-68, ll 1 – 12.

[25]  Hearing T1-39 ll 27-29  T1-40 ll 15-18. .

[26]  Exhibit 1 [29].

[27]  Hearing T1-41 L 46/47.

[28]  Hearing T1-41 ll 29 to 30.

[29]  Hearing T 1-80 ll 40 to 44.

[30]  The evidence was that the applicant had made an unsuccessful attempt to join the Airforce in 2013.

[31]  Transcript 1-69 l31.

[32]  Transcript 1-70 l34.

[33]  Exhibit 1 at [31].

[34]  Hearing T 1-40 l 1 to 4.

[35]  Hearing T1-67, ll 34 – 35.

[36]  The applicant’s evidence being that this process was a frustrating one.

[37]  Hearing T1 – 41, ll 1 – 5.

[38]  Transcript 1-10, l 18.

[39]  Transcript 1-11, ll 8-10.

[40]  Exhibit 8 DR-06.Transcript 1-81 ll1-4.

[41]  Signed handwritten report dated 6 September 2018 from Dr Rimmington in response to questions posed by WorkCover to him.

[42]  Transcript 1-10, ll 39.

[43]  Transcript 1-10, ll 46-47 to 1-11, ll 1-2.

[44]  It was not apparent to me on the material when the applicant first went to see a solicitor.

[45]  Paragraph 8(b) of the first Affidavit of Luke Richard Newton sworn 6 September 2019 (exhibit 3). I note that there was no direct evidence from the applicant in either of his affidavits or in his oral evidence before me that he was told his shoulder had shrunk.

[46]  Transcript 1-13, ll 20-23.

[47]  Transcript 1-13, ll 37-41.

[48]  Hearing Transcript 1-15, ll 1-3.

[49]  Hearing Transcript 1-17, l 29.

[50]  Transcript 1-17, ll 22-23.

[51]  Exhibit 2, para 17.

[52]  Exhibit 2. 

[53]  There were various iterations of exactly what the fact alleged was during the course of the hearing and submission before me, but this fact was ultimately clarified by counsel for the applicant during the course of his final oral submissions.

[54]  Applicant’s submissions at [7.14].

[55]  Exhibit 1.

[56]  Affidavit of Dr Dale Rimmington sworn 18 August 2020; Exhibit 10, paras 17 and 18.

[57]  Dr Rimmington’s evidence at paragraph 23 of exhibit 10 was that: “[i]t is my usual practice to dictate a letter back to the referring practitioner at the time I consult with a patient which comprises my notes of the consultation.” 

[58]  Exhibit 10 “DR09”.

[59]  Transcript 1 88-89.

[60]  Exhibit 10 para 21 and 22 and” DR -11” and” DR – 12”.

[61]  Affidavit of Simon Rundell sworn 17 August 2020, Exhibit 7 “SR02

[62]  Exhibit 10; paras 10 to 13; “SR-08”.

[63]  Exhibit 7; “SRO-4.”

[64]  Transcript 1-49-10 to 1-50-20.

[65]  Transcript 1-50-30 to 1-50-44.

[66]  Exhibit 2.

[67]  Affidavit of Alexander Magee sworn 23 October 2010, Exhibit 6 “AM-01”.

[68]  Transcript 1-11, ll 17-19.

[69]  Hearing T1-50 LL 28 to 30.

[70]  Transcript 1-72 ll5-15.

[71]  Transcript 1-11, l 35. It is relevant to observe the applicant’s evidence of the tasks of a metal roofer at Transcript 1-11, ll 35-46 to include putting batons on a roof, standing the roof up, laying roof sheets, doing the gutter work and re-screwing all of the roof.  This is very physical work that requires reaching and passing sheets overhead, leaning down, grabbing the sheets, pulling and pushing.

[72]  Hearing transcript 1-12, ll 40-41.

[73]  Transcript 1-80 ll27-35.

[74]  Transcript 1-74 l37.

[75]  Dr Rimmington’s evidence at hearing T1-92 ll 20,21; Mr Rundell’s evidence at T1-58 ll 24 to 29.

[76]  Affidavit of Dr Dale Remington sworn 17 August 2020 – Exhibit 8, pp 111 and 112 (Dr Rimmington’s)  response to a series of questions posed to him by the solicitors for the second respondent on 26 February 2020 about the applicant’s capacity to return to his usual work).

[77]  T1-57 ll 1 to 11. And see too the evidence as set out in paragraph 63 of these Reasons.

[78]  Including: the applicant’s psychiatric vulnerability; impulsivity; and his alleged anxiety and depression caused by his shoulder injury.

[79]  See Taylor at 551 (per McHugh J).

[80]  First submission on behalf of the second respondent [at 28]; with reference to McMeekin J’s observations in Bell v Mastermyne Pty Ltd [2008] QSC 331 at [19].

[81]  With reference to a fair trial see the observations of Keane JA (as his honour then was) in NF v State of Queensland [2005] QCA 110 at [44].

Close

Editorial Notes

  • Published Case Name:

    Scott v Complete Metal Roofing (Qld) Pty Ltd ATF Harding Roof Trust & Anor

  • Shortened Case Name:

    Scott v Complete Metal Roofing (Qld) Pty Ltd ATF Harding Roof Trust

  • MNC:

    [2021] QDC 27

  • Court:

    QDC

  • Judge(s):

    Muir DCJ

  • Date:

    03 Mar 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.