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  4. Cottee v Eastern Australia Airlines Pty Ltd - [2022] QDC 112

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Cottee v Eastern Australia Airlines Pty Ltd[2022] QDC 112

Cottee v Eastern Australia Airlines Pty Ltd[2022] QDC 112

DISTRICT COURT OF QUEENSLAND

CITATION:

Cottee v Eastern Australia Airlines Pty Ltd [2022] QDC 112

PARTIES:

JACINDA COTTEE

(Applicant)

v

EASTERN AUSTRALIA AIRLINES PTY LTD

ABN 77 001 599 024

AND

COBHAM AVIATION SERVICES AUSTRALIA PTY LTD

ABN 34 003 469 574

AND

COBHAM AVIATION SERVICES ENGINEERING PTY LTD

ABN 74 099 287 117

AND

ROLLS-ROYCE DEUTSCHLAND LTD & CO KG

ABN 70 098 164 121

(Respondents)

FILE NO/S:

BD 533/2021

DIVISION:

Applications

DELIVERED ON:

24 May 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2022

JUDGE:

Barlow QC DCJ

ORDERS:

  1. Pursuant to s 31(2) of the LAA, the period of limitation for the commencement of a proceeding by the applicant:
  1. a)
    against the second respondent, be extended to 23 September 2022;
  2. b)
    against the third respondent, be extended to 26 April 2022; and:
  3. c)
    against the fourth respondent, be extended to 23 April 2022.

CATCHWORDS:

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS – TORT ACTIONS INVOLVING PERSONAL INJURIES – the applicant had suffered a psychiatric injury as a consequence of a failed aircraft engine in a commercial aircraft on which she was first officer – the applicant sought an extension of time within which to commence proceedings – whether the applicant had taken all reasonable steps to uncover material facts of a decisive nature concerning potential causes of action and defendants – where reasonable steps are determined by reference to what can reasonably be expected from the actual person in the circumstances of the applicant – whether the evidence was sufficient to demonstrate a cause of action against each respondent

Limitation of Actions Act 1974 s 30, s 31

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

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

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, considered

Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, applied

NF v State of Queensland [2005] QCA 110, applied

COUNSEL:

C Donnan, for the applicant

G O'Driscoll for the 2nd and 3rd respondents

M Hickey OAM for the 4th respondent

SOLICITORS:

Slater and Gordon Solicitors for the applicant

Sparke Helmore Lawyers for the 2nd and 3rd respondent

HFW Lawyers for the 4th respondent

Contents

Introduction1

Relevant legal principles2

The applicant’s contentions4

The steps taken by the parties5

The Cobham Report7

Consideration – material facts not within applicant’s means of knowledge8

The material facts8

MsCottee’s knowledge10

MsCottee’s circumstances and abilities at relevant times11

MsCottee’s knowledge12

The solicitors’ conduct14

Conclusions16

Consideration – evidence to establish cause of action?16

The Cobham respondents17

The master operating agreement18

Rolls Royce19

The court has jurisdiction20

Should the discretion be exercised in the applicant’s favour?20

Conclusions20

Introduction

  1. [1]
    On 10 March 2018, Ms Cottee was a commercial airline pilot working as First Officer on a Qantaslink flight from Alice Springs to Brisbane, operated by her employer, National Jet Systems Pty Ltd (NJS).[1]  The aircraft was a Boeing 717-200, which had two engines manufactured by Rolls Royce Deutschland Ltd & Co KG (Rolls Royce).  One of the engines failed mid-flight due to what was later found to be a crack in a turbine blade that caused it to fail, leading to other blades also failing.  The flight crew continued the flight on one engine and landed safely at Brisbane.  However, as a consequence of the incident Ms Cottee suffered psychiatric injuries, including post traumatic stress disorder.
  2. [2]
    Ms Cottee originally sought compensation from WorkCover, without the assistance of solicitors.  She engaged her current solicitors in July 2020 to assist with her WorkCover claim.  She first discussed with them the possibility of making a common law claim against relevant parties in September 2020.
  3. [3]
    On 9 March 2021 the applicant was granted leave to commence a proceeding against Airlink Pty Ltd, Eastern Australia Airlines Pty Ltd (EAA) and Sunstate Airlines Pty Ltd (all trading as “Qantaslink”) without first completing the pre-action requirements under the Personal Injuries Proceedings Act 2002 (PIPA).  She commenced this proceeding that day, alleging in her statement of claim that one of the defendants (each in the alternative) was responsible for the inspection, maintenance and service of the aircraft, including the engines, and was negligent in the performance of those responsibilities, causing her personal injury and loss.  She subsequently discontinued the proceeding against Airlink and Sunstate on being told that they were not involved in the inspection, maintenance or repair of the aircraft.  Thus, the only defendant in the proceeding is now the first respondent to this application, EAA.
  4. [4]
    By this application,[2] Ms Cottee sought an extension of the limitation period for commencing proceedings against the second to fourth respondents,[3] pursuant to s 31(2) of the Limitation of Actions Act 1974 (LAA).  She also sought leave to commence proceedings against them without first completing the PIPA requirements, which I granted at the end of the hearing in order to preserve her causes of action in the event that I were to grant an extension of the limitation periods.[4]
  5. [5]
    EAA did not appear at the hearing of the application and made no submissions about it.  In the circumstances, although it was named as the first respondent, when I refer to the respondents I mean only the second, third and fourth respondents to the application.
  6. [6]
    For the following reasons, I have decided to grant the extensions sought.

Relevant legal principles

  1. [7]
    Sections 30 and 31(2) of the LAA set out the circumstances in which a court may extend a limitation period and the period of any extension.
  2. [8]
    Subsection 31(2) provides:
  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. [9]
    Section 30 provides:
  1. (1)
    For the purposes of this section andsections31,32,33and34—
  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;
  1. (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. (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.

  1. [10]
    The Court’s discretion to extend a limitation period only arises under s 31 if the applicant demonstrates on evidence that a material fact of a decisive nature was not within her means of knowledge until after one year before the limitation period expired and that she has a right of action (apart from a defence based on expiration of the limitation period).  Unless those matters are established to a court’s satisfaction, the court has no jurisdiction to extend the limitation period.[5]
  2. [11]
    An applicant must show that, without the newly learned fact or facts, she would not, even with the benefit of appropriate advice, have previously appreciated that she had a worthwhile action to pursue against the proposed defendant and should in her own interests pursue it.  This is what the application of the test of decisiveness under s 30(1)(b) comes down to.[6]
  3. [12]
    It has been said that the legislative policy of these sections is that the limitation period should be extended only in favour of a person who was, without fault on her part, unaware that she had a worthwhile cause of action until not more than 12 months before the commencement of a proceeding.[7]
  4. [13]
    Of considerable importance in this case is the application of s 30(1)(c) in determining whether the decisive fact alleged was not within the means of knowledge of the applicant until after the relevant date, as required by s 31(2)(a).  In determining whether a fact was “within the means of knowledge” of the applicant, not only must the applicant not have known that fact, but she must have “taken all reasonable steps to find out the fact” by the relevant date.  The reasonableness of the steps taken by an applicant to ascertain a material fact must be assessed on an objective basis, but with regard to the background and situation of the applicant, including (in appropriate cases) her psychiatric condition and its effects on her ability to find out the material fact.  Whether an applicant 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.[8]
  5. [14]
    As well as having to satisfy the court of the tests in s 31(1)(a), an applicant must also satisfy it, on the evidence, that she has a right of action against the respondents.  Of course, she does not have to prove her case, but simply the existence of a cause of action.  An applicant can meet this requirement by “pointing to the existence of evidence which it can reasonably be expected will be available at the end of the trial and which will, if unopposed by other evidence, be sufficient to prove [her] case.”[9]
  6. [15]
    If the applicant satisfies the court of the matters described in s 31, the court’s discretion to grant an extension of time is enlivened.  At this stage of the enquiry, the applicant retains an onus of satisfying the court that there is good reason to exercise that discretion by extending the limitation period.  The principal consideration guiding the exercise of the discretion is whether the claim may still be fairly litigated so that a trial would not be unfair to the defendants.  If a fair trial is unlikely, the discretion should not be exercised in the applicant’s favour.[10]

The applicant’s contentions

  1. [16]
    Ms Cottee contends (and it is not contested by the respondents) that any cause of action in tort that she might have as a result of the engine failure arose on the date of that incident, namely 10 March 2018.  The limitation period for such a cause of action is three years from the date on which it arose.[11]
  2. [17]
    Ms Cottee contends that, for the purposes of satisfying the criteria in ss 30 and 31, material facts that were not known by her, nor within the means of her knowledge, until after 10 March 2020 (that is, one year before the ordinary expiration of the limitation period for her causes of action) were what companies were responsible for maintaining the aircraft and, particularly, the aircraft engines.  She contends that she was unable to ascertain those facts until she saw and received advice about:
    1. (a)
      a letter sent by NJS’s solicitors to RollsRoyce on 16 April 2021,[12] claiming indemnity in respect of a PIPA claim apparently made by MsCottee against NJS,[13] in which NJS asserted that the failure of the cracked turbine blade was as a result of defects in the manufacture, installation or service and maintenance of the engines by Rolls Royce and was in an area that was only capable of inspection by Rolls Royce;
    2. (b)
      a letter dated 19 April 2021 from EAA’s solicitors to MsCottee’s solicitors,[14] concerning Ms Cottee’s claim against EAA and the other defendants at the time, in which EAA’s solicitors said that Airlink and Sunstate had no involvement with the aircraft or the engines, the aircraft was owned by Qantas Airways Ltd and leased to EAA and an operating agreement existed between EAA and NJS for the operation and maintenance of the aircraft, EAA and Cobham Aviation Services Engineering Pty Ltd (CASE) both conducted routine aircraft maintenance, but neither was responsible for, nor had any involvement in, inspecting, maintaining and servicing the engines, which were responsibilities of Rolls Royce;
    3. (c)
      letters sent on 16 September 2021 from EAA’s solicitors to Cobham Aviation Services Australia Pty Ltd (CASA[15]) and CASE,[16] claiming indemnity in respect of Ms Cottee’s claim against EAA, in which EAA asserted that CASA provided continuous airworthiness management organisation services, CASE provided aircraft maintenance activities in respect of the aircraft and the engines and both had failed to perform those services or to take reasonable care in the inspection, maintenance, repair, overhaul and modification of the aircraft and the relevant engine; and
    4. (d)
      a master operating agreement between EAA, NJS and JSPL concerning the maintenance of the aircraft, a copy of which was not provided until the hearing of this application.[17]
  3. [18]
    Ms Cottee contends that the facts asserted in those letters were (if true) material facts of a decisive character relating to her rights of action because, until she knew the role of each party, particularly who was responsible for or involved in the maintenance of the engines and the aircraft, she could not determine the identity of the parties against which a cause of action lies.  The relevant information became known to her or within her means of knowledge only on (or perhaps shortly after) those respective dates, all therefore after one year before the limitation period expired.
  4. [19]
    Therefore she seeks an extension of the limitation periods:
    1. (a)
      against Rolls Royce, to 16 April 2022;
    2. (b)
      against CASE, to 19 April 2022; and
    3. (c)
      against CASA, to 16 September 2022.

The steps taken by the parties

  1. [20]
    On 4 May 2018 Ms Cottee lodged with WorkCover an application for workers’ compensation, in which she identified her employer as “Cobham Airline Services.”  So far as the evidence before me shows, there is no such registered entity or business name.  I infer that she meant to refer to NJS.  It appears from the evidence that CASA is closely associated with, her employer, NJS, as an email in evidence dated 26 April 2018[18] was sent to various people from Captain Simon Evatt, who described himself as:

Head of Flight Operations (B717)

Cobham Aviation Services

Airline Services

National Jet Systems

A Qantas Group Airline

  1. [21]
    For present purposes, it does not seem to matter exactly what the relationship of those companies was, but I infer that they are related.
  2. [22]
    On 17 May 2018, Ms Cottee sent an email to Linda Gentilcore, whose email describes her as “Human Resources Business Partner, Cobham Aviation Services.”[19]  Ms Gentilcore appears to have been handling Ms Cottee’s WorkCover claim on behalf of NJS.  In the email, Ms Cottee asked “a few questions to assist with my recovery.”  They were:

Was the engine on Vibration watch?

I know that the engine was to be changed out the following week and the engine manufacturer monitoring it – how long and how many times had the process been delayed for?

Was the engine on an extended life program?

Could I please receive a copy of the preliminary and final engine investigation completed by the engine manufacturer.

  1. [23]
    There is no direct evidence of Ms Gentilcore’s (or NJS’ or CASA’s) responses to that email, but Ms Gentilcore did later inform Workcover that Ms Cottee had “been provided with findings related to the engine failure and answers to her questions.”[20]  The “findings” referred to were a redacted version of an email to Ms Gentilcore[21] that, importantly, did not (according to Ms Cottee) show a finding that, “Damages seen on M51 of engine 13187 are similar to engine 13280 (Hawaiian July 2017).”  A copy of Ms Cottee’s email with proposed answers inserted into it – and that apparently attached the email to which I have just referred - was provided to Ms Gentilcore by Thorsten Alt (CASA Head of Continuing Airworthiness) on 29 May 2018. 
  2. [24]
    In late August or early September 2018, NJS provided to Ms Cottee a copy of a report into the circumstances of the engine failure (the Cobham report).[22]  On its face, the report was dated 6 August 2018 and was prepared by and for “Cobham Aviation Services”.  Its distribution was listed as being to Captain Ewart and other people from “Airline Services.”
  3. [25]
    Ms Cottee said that she read parts of the report at the time, but she found it to be “highly triggering” so she “shelved it”.[23]
  4. [26]
    Ms Cottee first instructed her current solicitors on 1 July 2020, asking them to assist her with her workers’ compensation claim.  It is not clear what (if anything) the solicitors did after that, but on 1 September 2020 she received a notice of assessment from WorkCover, following which, in September 2020 she discussed with her solicitors the possibility of making a common law claim for damages.[24]
  5. [27]
    Again, there is no evidence about what (if anything) the solicitors did between September 2020 and 9 February 2021.  Ms Cottee said that, in December and January, she provided to her solicitors various documents from her WorkCover claim and, on 9 February 2021, she gave them a copy of the Cobham report, which she had “located when going through all my records thoroughly.”[25]
  6. [28]
    The solicitor having the conduct of Ms Cottee’s claim gave evidence that, on review of the Cobham report, she “formed the view that [Ms Cottee] may have a right of action against the entity that was responsible for the repair and maintenance of the [aircraft].  Unfortunately the Cobham report did not contain any information about the entity that was responsible for the repair and maintenance of the [aircraft].  [Ms Cottee] believed that the [aircraft] was maintained by her employer and Qantaslink.  On 25 February 2021, [Ms Cottee] instructed Slater and Gordon Lawyers to assist her in pursuing a claim for damages pursuant to [PIPA].”[26]
  7. [29]
    There is no evidence that Ms Cottee’s solicitors took any steps, before the expiration of the limitation period, to ascertain the identity of the entities responsible.  It was not until 4 May and 21 May 2021, after receipt of the copy letter from NJS’s solicitors to Rolls Royce, that they wrote to EAA’s solicitors seeking copies of the following documents:[27]
    1. (a)
      the agreement between EAA and NJS in relation to the operation and maintenance of the aircraft;
    2. (b)
      documents regarding Rolls Royce’s duties in relation to the inspection, maintenance and service of the engines;
    3. (c)
      documents that showed that the engine failed as a result of a manufacturing defect; and
    4. (d)
      any maintenance records or reports for the aircraft.
  8. [30]
    EAA’s solicitors responded to that correspondence by letter of 18 June 2021,[28] in which they:
    1. (a)
      attached a service difficulty report dated 27 April 2018 submitted by Rolls Royce Canada Ltd to Transport Canada Civil Aviation;
    2. (b)
      said that, apart from that document and the Cobham report, EAA did not have any records relating to the service or maintenance of the aircraft or the engine failure;
    3. (c)
      said that “Cobham Aviation Services” would have those categories of documents, as they provided maintenance of the aircraft and would hold such records; and
    4. (d)
      declined to provide a copy of the contractual documents between EAA and NJS and between EAA and Rolls Royce.
  9. [31]
    In a letter dated 3 February 2022 to Ms Cottee’s solicitors,[29] EAA’s solicitors maintained their client’s refusal to provide a copy of the agreement with NJS.
  10. [32]
    Counsel for CASA and CASE tendered a copy of the operating agreement between EAA and NJS at the hearing of the application.  That was the first time it was made available to Ms Cottee’s solicitors.

The Cobham Report

  1. [33]
    Of considerable importance to the issues in this application is the Cobham report.  The respondents contend that the report disclosed sufficient information:
    1. (a)
      to establish the likely cause of the engine failure, namely a fatigue crack in one turbine blade;
    2. (b)
      to indicate that the turbine blade failure may have been avoided upon careful inspection, which may have identified the crack;  and
    3. (c)
      to identify one or more of the respondents as actually, or likely to have been, involved in the maintenance of the aircraft or the engines. 
  2. [34]
    They contend that, as NJS gave Ms Cottee a copy of the report in 2018, that information was known to her, or she had the means of knowing it, well before one year before the expiration of the limitation period and therefore the court has not jurisdiction to extend that period.  It is therefore necessary to summarise the most relevant aspects of that report.
  3. [35]
    It reported that the subject engine had been installed on the aircraft on 19 February 2014.  At the time of the failure, it had been in service for 5873 cycles since the last engine shop visit in November 2013.  During that shop visit, considerable work was completed as detailed in a Rolls Royce strip report dated 15 May 2014.[30]
  4. [36]
    It also reported that further information was provided by Rolls Royce in July 2018, stating that the blade failure was due to a fatigue crack caused by a casting pore[31] that had initiated at the trailing edge corner shank.  The pore was within specification for the blade casting.  Root cause of the blade failure was ongoing.[32]
  5. [37]
    It went on to say that, in February 2017, a limited de-pair programme of this type of engine was commenced on advice from Rolls Royce, based on previous HPT blade failures, but Rolls Royce later cancelled the requirement.[33]
  6. [38]
    The report included a copy of the Rolls Royce July 2018 report.[34]  That report stated that the primary cause of the event was “LPT Blade Failure caused by crack initiated at casting pore (within specification) in peak stress areas.”  It referred to the failure as a “blade rupture below platform.”  It also recorded four very similar failures in other engines of the same type on earlier occasions: in May 2008, February 2012, July 2017 and August 2017.

Consideration – material facts not within applicant’s means of knowledge

The material facts

  1. [39]
    It is relevant to set out the evidence of Ms Cottee and Ms Maharaj, in their affidavits, as to what are the decisive material facts that Ms Cottee did not know in the relevant period.
  2. [40]
    Ms Cottee deposed that:

[25]Prior to 10 March 2021, I did not know and had no means of finding out that [CASA, CASE and Rolls Royce] were required to inspect, maintain and repair the [aircraft].  This is because the Boeing aircrafts (including the [aircraft]) were maintained and repaired by different people at each port (airport).

[She then referred indirectly to the letters to which I have referred at [17] above.]

[32] Prior to receipt of the letters from the other solicitors which advised that [CASA, CASE and Rolls Royce] were required to inspect, maintain and repair the [aircraft], I did not know and had no means of knowing of the possible involvement of those entities.

  1. [41]
    Ms Maharaj deposed that:

[7]On review of the Cobham report, I formed the view that the Applicant may have a right of action against the entity that was responsible for the repair and maintenance of the [aircraft].  Unfortunately the Cobham report did not contain any information about the entity that was responsible for the repair and maintenance of the [aircraft]. [Emphasis in the original.]

[49]As at the date of this affidavit, the Applicant has not received any contractual documents which sets [sic] out the precise details of the entities that are required to inspect, maintain and repair of [sic] the [aircraft] and the nature and extent of their responsibilities.

  1. [42]
    Thus, as I have said above, the relevant facts on which Ms Cottee relies in this application are who, among the respondents, was responsible for the regular or necessary inspection, maintenance and repair of the aircraft.  It is clear to me that references by both Ms Cottee and Ms Maharaj to “the aircraft” intend to include the engines as parts of the aircraft, even though each of the respondents distinguishes between the engines, on the one hand, and the aircraft on the other.  While the distinction drawn by the respondents is likely to have a bearing on each respondent’s responsibilities and potential liability (given that the issue concerns an engine rather than any other component on the aircraft), for a potential plaintiff in Ms Cottee’s circumstances and for a solicitor who may or may not have experience with aircraft maintenance, it may have appeared immaterial.
  2. [43]
    Clearly the identity of a person who had responsibility for the maintenance of the engine, the extent of that person’s responsibilities and whether that person may have undertaken those responsibilities negligently are facts that are material to any cause of action.  They are also material facts of a decisive character, as it is essential, in order to determine whether a proceeding might have a reasonable prospect of success, to identify the apparent cause of the relevant injury, the person who may have been negligent and that person’s relevant responsibilities.  A reasonable person knowing those facts and having taken appropriate advice (in this case, legal and quite possibly engineering) on those facts, would regard them as necessary to know in order to justify the person taking legal action against the relevant person or persons.[35]  Conversely, without knowing those facts such a person would not (and clearly Ms Cottee did not) appreciate that she had a worthwhile action to pursue against particular persons and that she should do so in her interests.
  3. [44]
    Therefore, the facts that Ms Cottee contends were not known to her were material facts of a decisive character.
  4. [45]
    It is necessary now to consider whether Ms Cottee did not know those facts and, if not, whether she took all reasonable steps to find out those facts, in respect of each of the respondents, within the limitation period.

MsCottee’s knowledge

  1. [46]
    The Cobham respondents and Rolls Royce rely on the evidence of Ms Cottee’s enquiries in May 2018 about the causes of the engine failure and the responses to those enquiries[36] as demonstrating that:[37]
  1. (a)
    as early as 17 May 2018, Ms Cottee had turned her mind to the potential liability of the engine manufacturer;
  1. (b)
    on that date,[38] Ms Cottee was:
  1. (i)
    aware that an investigation was being carried out by Rolls Royce, and she was provided a copy of their ‘preliminary findings’; and
  1. (ii)
    actively interrogating Cobham, in written correspondence, to obtain information about the incident, which Cobham was quite willingly providing to her.
  1. [47]
    They point out that Ms Cottee received a copy of the Cobham report in August or September 2018, even though she only provided it to her solicitors on 9 February 2021, a month before the limitation period expired.  That report identified facts about the failure of the engine that clearly indicated that Rolls Royce had stripped down and inspected the engine comprehensively in 2014 and was aware that similar engine failures had occurred between 2008 and 2017.  Those facts would at the least indicate to a competent solicitor, if not to a competent commercial pilot, that Rolls Royce’s inspection in 2014 may have been negligently performed and its failure to recall similar engines for fresh inspection and maintenance at some time before March 2018 may have been negligent, even if it was not directly responsible for the ongoing maintenance of the engines on this aircraft.[39]
  2. [48]
    The Cobham respondents also contend that the Cobham report showed that at least one Cobham entity was involved, at least in a general sense, because it said:

Data from the FDR confirmed that the engine failure occurred suddenly and this is consistent with previous blade failure events, signifying that a blade failure of this type could occur to other LPT turbine blades, however it should be noted that this is the first failure of a [sic] LPT blade in Cobham service.

  1. [49]
    They do not mention that those words appeared in a section on “Flight and Cabin Crew Actions/Interaction”.  The sentence preceding this passage is, “As there were no indications of pending engine failure the crew were unable to take any action to prevent or minimise damage to the engine.” 
  2. [50]
    The Cobham respondents submitted that the quoted words would alert any reasonable person with Ms Cottee’s qualifications and experience that the aircraft was in Cobham service.  Such a person would ask Cobham the question (which Cobham would obviously have answered), who was responsible for maintenance of the aircraft or its engines?
  3. [51]
    Thus, the respondents submit, material facts of a decisive character (as identified by Ms Cottee – namely, the identity of the entities responsible for various aspects of service of the engines and the aircraft) were actually known to Ms Cottee, or were within her means of knowledge, well before one year before the expiration of the limitation period.
  4. [52]
    In cross-examination, Ms Cottee agreed that, in May 2018, she was on a line of inquiry as to the cause of the engine failure.  In her email of 17 May 2018 to Ms Gentilcore she asked questions that had been suggested to her by a check and training captain during her first flight on her return to work after the incident.[40]  She did receive a response to her questions.
  5. [53]
    It will be recalled that Ms Cottee said that, when she received a copy of the Cobham report, she read parts of it but not all and she then “shelved” it because she found it to be “highly triggering.”  Her evidence to that effect was first given in cross-examination and was not challenged.  What is not clear is what parts of the report she read.
  6. [54]
    In re-examination, Ms Cottee repeated that, when she received the Cobham report, she found it highly triggering.  She went on to say that, at that time, she was having difficulties with her employer and she did not focus on the report.  Getting better was her focus and she was determined to return to her former position.  Nor, either then or when she made her enquiries in May 2018, had it occurred to her that she may want to make a claim against someone for her injuries.[41]

Ms Cottee’s circumstances and abilities at relevant times

  1. [55]
    As I have recorded in my summary of the relevant principles, whether an applicant 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.[42]  As Williams J said in NF v State of Queensland, “in particular cases the personal circumstances of the person seeking relief pursuant to the LAA will be of vital importance.”  His Honour went on to quote the following passages from earlier decisions of the Court of Appeal and his Honour:[43]

There is no requirement to take “appropriate advice” or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to do so.

To my mind it is of critical importance here that the applicant’s psychiatric condition prevented him from appreciating the nature and significance of the injury he had suffered and its likely consequences.  The very psychiatric condition in question militated against the applicant knowing its seriousness and possible consequences.

  1. [56]
    It is therefore necessary to consider the question in this case in the light of Ms Cottee’s personal circumstances, including her psychiatric condition, during the relevant period.
  2. [57]
    Two independent psychiatric reports about Ms Cottee are in evidence.  The first, dated 5 September 2018, was by Dr P Relan, who saw her on 22 August 2018.[44]  Dr Relan recorded that Ms Cottee first saw a psychologist on 8 May 2018, by which time she had been experiencing frequent flashbacks, reminders of the incident, was hypervigilant and had disrupted sleep, waking in a panic‑like state.  Since then she had been having treatment from the psychologist, which had assisted her.  Dr Relan diagnosed her as having post traumatic stress disorder that was gradually resolving, with mild severity symptoms at that stage, and mild psychosocial and occupational functioning distress.  He considered that her condition was caused by the incident involving the engine failure.
  3. [58]
    The second psychiatric report was by Dr A Isailovic and dated 17 May 2020.[45]  Dr Isailovic saw Ms Cottee on 5 May 2020.  She reported that Ms Cotttee had been seeing Dr John Chalk, psychiatrist, weekly since about November 2018 and she continued to see her psychologist fortnightly.  She continued to have sleep difficulties and she had panic attacks and diminished concentration.  Dr Isailovic diagnosed her as having post traumatic stress disorder, the main cause being the engine failure incident.  She concluded that significant improvement in the foreseeable future was unlikely.
  4. [59]
    There are also in evidence three letters from Dr Chalk to Workcover.[46]  They do not add much to the evidence of Ms Cottee’s condition.  In one (4 January 2019), he agreed with Dr Relan’s conclusions.  In another (6 May 2019) he said that Ms Cottee’s post traumatic stress disorder was not in remission.  In the third (13 April 2020), he said Ms Cottee’s diagnosis remained the same, although she had improved over time.
  5. [60]
    Clearly, when Ms Cottee was given the Cobham report she was already suffering post traumatic stress disorder.  I accept her evidence that she read only parts of the report and she found it “triggering” so she set it aside.  Although there is no psychiatric report later than May 2020 in evidence, I infer that she continued to suffer from that condition throughout the remainder of the limitation period.
  6. [61]
    Of course, in September 2021 Ms Cottee discussed with her solicitors the possibility of making a common law claim for damages.  One issue is whether, from that time, she acted unreasonably in failing to pursue that possibility by ascertaining who was responsible for the maintenance of the aircraft and its engines. 
  7. [62]
    The fact that the plaintiff had instructed solicitors (and presumably received some advice from them) is also one of her personal circumstances in the light of which I need to consider whether she acted unreasonably in that way.

Ms Cottee’s knowledge

  1. [63]
    I do not consider that the answers to Ms Cottee’s questions in May 2018 and the expurgated “preliminary findings” by Rolls Royce that were provided to her then indicated, let alone made clear, that there was or may have been any negligence by any person that led to the engine failure.  Nor did they identify any person who may have been negligent.  At that stage, therefore, not only the identities of potential defendants but even the existence of a cause of action were not known, nor within the means of knowledge, of Ms Cottee.
  2. [64]
    Nor do I accept that the Cobham report would have alerted Ms Cottee to the possibility that one or other (or both) of the Cobham respondents had any role in servicing the aircraft or the engines.  It did not mention either company as involved in the maintenance of the aircraft, particularly the engines.
  3. [65]
    Clearly Ms Cottee did not know the exact relationships between the parties, as described in EAA’s solicitors’ letter of 19 April 2021, until after her solicitors had received that letter.  Until then, she did not know, nor have the means of knowing, that CASE was involved in the maintenance or inspection of the engine.  Further information about the relationships between EAA, NJS and JSPL, as well as reference to the existence of an engine maintenance agreement between Qantas Airways Ltd and Rolls Royce, was only available to her after her solicitors received the master operating agreement – which was, of course, during the very hearing of this application.  Therefore, she (by her solicitors) did not know a material fact of a decisive character about the role of CASE until on or shortly after 19 April 2021.
  4. [66]
    However, in my view, the Cobham report would have alerted an ordinary person reading it to the possible liability of Rolls Royce for either negligent manufacture of the turbine, negligent service of the engine or negligent failure to recall this type of engine in the light of four earlier and very similar turbine blade failures.
  5. [67]
    One might expect a person properly advised, or a solicitor experienced in personal injury litigation, upon reading the Cobham report, to seek advice from an aircraft maintenance engineer or another appropriately qualified expert, about who might have had responsibility for maintenance of the blades in the engine, particularly given that the Rolls Royce report stated that it was “below platform.”  At the least, such a person or solicitor might be expected to make enquiries of Ms Cottee’s employer to ascertain who had responsibility for maintaining the aircraft and its engines at the relevant times.
  6. [68]
    Relevantly, EAA’s and NJS’s solicitors later contended to Ms Cottee’s solicitors (outside the limitation period) that they were instructed that “it is entirely impossible to inspect any below platform components while an engine is on the wing of an aircraft. A full engine strip by the engine manufacturer is required.”  Similarly, they contended to Rolls Royce that “the failure of the turbine was on that part of the engine that could only be inspected and/or maintained by Rolls Royce.  …  NJS relied on Rolls Royce to provide suitable engines and/or engines fit for purpose in accordance with its agreement with Qantas.”[47]  While there was no direct evidence of the truth of those assertions, once made they could be seen to direct Ms Cottee’s lawyers to Rolls Royce as at least having some responsibility for relevant inspection and maintenance.
  7. [69]
    However, s 30(1)(c):

speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps.  The actual person postulated … is the particular person who has suffered particular personal injuries.  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.[48]

  1. [70]
    Having regard to Ms Cottee’s psychiatric condition and her other priorities by the time she received the Cobham report, it is unsurprising and, in my view, not unreasonable, that she paid little attention to the report, she did not read it fully and she did not consider whether she may have a right of action against someone for damages for her illness.  The Cobham report did not, in the circumstances, alert her even to the potential liability of Rolls Royce, let alone the other respondents.  In the light of her personal circumstances, any information that a healthy person might glean from that report was not within the means of her knowledge, as she could not read and comprehend the entire report.  I do not consider that she failed to take reasonable steps to find out the relevant facts thereafter, at least until the time at which she instructed her solicitors to act for her.
  2. [71]
    However, when her solicitors received the Cobham report, they were not affected by Ms Cottee’s psychiatric condition.  Having read it, as I have said, they knew or had the means of knowing that Rolls Royce was a company that had some responsibilities for the engine and there was an arguable case against it.  That knowledge would have come to the attention of a reasonable solicitor upon reading the report, which was only available to them from 9 February 2021.  Therefore, that date, or a date shortly after it[49] was when Ms Cottee’s solicitors, at least, had the means of knowing sufficient information about Rolls Royce to determine, when properly advised, that an action against Rolls Royce would have a reasonable prospect of success with an award of damages sufficient to justify bringing an action against that company.  However, it seems that, in this case, Ms Cottee’s solicitors did not reach that conclusion.  So they did not tell Ms Cottee of such a conclusion until some time later.  She has deposed that it was not until after 10 March 2021 that her solicitors told her that CASE and Rolls Royce were required to inspect, maintain and repair the aircraft.  Her counsel relied on the letter of 16 April 2021 as the relevant date.  Counsel for the respondents did not press for any earlier date (apart from the respective dates on which Ms Cottee and her solicitors received the report). 
  3. [72]
    When Ms Cottee provided the Cobham report to her solicitors, she did not know whether she had a good cause of action and, if so, against whom.  She was not advised otherwise at any time until after the limitation period expired in March 2021.  In the circumstances, unless the solicitors’ knowledge is imputed to Ms Cottee, she did not have the means of knowledge until she was appropriately advised by her solicitors, which was apparently not until after 16 April 2021.

The solicitors’ conduct

  1. [73]
    Ms Cottee’s solicitors were first asked by her to advise on her rights in July or, at the latest, September 2020.  The evidence does not disclose that they took any steps between then and February 2021 to investigate the cause of the engine failure,[50] nor who might have been responsible for the manufacture and maintenance of the engine.  On the evidence before me, they did not even contact Ms Cottee’s employer to ascertain if it had any information about those matters, nor did they directly ask Ms Cottee if she had been given any such information.
  2. [74]
    Ms Cottee gave her solicitors a copy of the Cobham report on 9 February 2021.  Her solicitor deposed that, on reading that report, she formed the view that Ms Cottee “may have a right of action against the entity that was responsible for the repair and maintenance of the [aircraft].”
  3. [75]
    It beggars belief that a solicitor reading that report would not immediately infer that the problem that had caused the engine failure was likely to have resulted from a manufacturing defect, a failure properly to inspect or maintain the engine or a failure to recall all such engines after the previous four incidents involving that very failure of the same make and model of the engine in the previous 10 years, including two in the previous nine months.  That information could reasonably be expected to lead the solicitor to conclude that there was probably a good cause of action against Rolls Royce and there may have been one against any other person responsible for inspecting and maintaining the engine.  Such a solicitor could be expected to make prompt enquiries of Ms Cottee’s employer to ascertain who was responsible for maintaining the aircraft and particularly the engine.  These enquiries would be made with considerable expedition given the pending end of the limitation period.  Had the enquiries been made, I consider it likely that the solicitors would have been given the appropriate information within a short period of time.  Even if the solicitors had not received it by the end of the limitation period, provided that they acted with due expedition and followed up the employer, if necessary, with the appropriate urgency, they would then have taken all reasonable steps to ascertain the names and the roles of the companies involved in maintenance of the engine.  As has been said in the Court of Appeal, the gathering of the necessary information and awareness which will make it reasonable for a claimant to bring an action may well involve progressive stages of awareness.[51]
  4. [76]
    In my view, therefore, by shortly after 9 February 2021 Ms Cottee’s solicitors at least had the means of knowledge that Rolls Royce was probably an appropriate defendant, yet they did not commence a proceeding against that company within the limitation period.  Furthermore, they did not take all reasonable steps to find out who was responsible for maintenance of the engine, as they appear to have made no enquiries at all until after the limitation period had expired.  However, their delay in making those enquiries was not such as to mean that they did not eventually take all reasonable steps to ascertain the necessary relevant facts.
  5. [77]
    If I were wrong in that conclusion, it might raise the question whether the relevant facts were within Ms Cottee’s means of knowledge because they were within the means of knowledge of her solicitors.  In my view, that is not the case, for reasons described by Brown J in Magarey v Sunshine Coast Hospital and Health Service.[52]  Although the solicitors acquired the means of knowledge about Rolls Royce’s involvement after they had received the Cobham report on 9 February 2021, they did not inform Ms Cottee of such a conclusion (as they did not form the conclusion themselves) until some time after 16 April 2021.  They only received the information about CASE’s involvement on 19 April 2021, they only received some more definitive information about CASA’s involvement as Continuing Airworthiness Manager (CAM) and as a Part 42 Continuing Airworthiness Management Organisation (CAMO) on 16 September 2021 and they only received the further information in the master operating agreement at the hearing of this application on 14 April 2022.  Those dates, of course, are after the commencement of the year last preceding the expiration of the limitation period.
  6. [78]
    In any event, of course, Ms Cottee’s solicitors did not receive the Cobham report, and therefore did not know, or have the means of knowing, the information it contained until within the last year of the limitation period.

Conclusions

  1. [79]
    I find that Ms Cottee did not know, or have the means of knowing, the decisive material facts about Rolls Royce until some time after she provided the Cobham report to her solicitors.  The most likely date is some time after 16 April 2021.
  2. [80]
    I find that Ms Cottee did not know, or have the means of knowing, the role of CASE (and possibly CASA) until, at the earliest, a short time after her solicitors received the letter of 19 April 2021.  She did not know more information about the involvement of CASA until after her solicitors received the letter of 16 September 2021.
  3. [81]
    All those dates are within the relevant period prescribed in s 31(2)(a).  Ms Cottee has therefore satisfied the criteria in s 31(2)(a).

Consideration – evidence to establish cause of action?

  1. [82]
    It remains to consider whether there is evidence to establish the claimed rights of action.
  2. [83]
    All of the respondents contend that, even if Ms Cottee satisfies the court of the criteria in s 31(2)(a), she has not demonstrated that she has an arguable cause of action against them.  Therefore she has not satisfied the requirements of s 31(2)(b).
  3. [84]
    I shall deal with these contentions separately as between the Cobham respondents on the one hand and Rolls Royce on the other.  I note, however, that in one sense I am asked to determine this issue in a vacuum, as there is no evidence of the exact nature and factual bases of the causes of action that Ms Cottee would make against any of them.  No draft statement of claim is in evidence.  The closest I have are the amended statement of claim insofar as it makes allegations against EAA and notices of claim served by Ms Cottee’s solicitors on each of CASA, CASE and Rolls Royce in June and December 2021.[53] 
  4. [85]
    Also relevant (as they give a little more detail of the parties’ responsibilities and were relied on by Ms Cottee’s counsel in support of her application) are EAA’s notices claiming indemnity from the other respondents, in which they asserted that:
    1. (a)
      CASA is liable because it provided Continuing Airworthiness Manager (CAM) and Part 42 Continuing Airworthiness Management Organisation (CAMO) services in respect of the aircraft and the engine, it failed to perform those services with due care and skill and it failed to take reasonable care in inspecting, maintaining, repairing, overhauling the aircraft and the engine, or in identifying and informing EAA of any risks or hazards with the aircraft or the engine;
    2. (b)
      CASE is liable because it provided professional aircraft maintenance services in respect of the aircraft and the engine, it failed to do so with due care and skill and it otherwise failed in the same respects as CASA;
    3. (c)
      Rolls Royce is liable because it had manufactured and it undertook regular inspection and maintenance of the engine, it was aware of previous similar or identical failures of turbine blades in the same type of engine, it failed to perform its inspection and maintenance services with due care and skill and it otherwise failed in the same respects as CASA and CASE.

The Cobham respondents

  1. [86]
    Mr O'Driscoll, appearing for the Cobham respondents, submitted that there is no evidence to establish a right of action against them because the Cobham report identifies a latent defect in the engine that could not have been identified by these respondents in the course of undertaking limited line maintenance on the engine and the aircraft.  He pointed to EAA’s solicitors’ letter of 19 April 2021, in which they asserted that EAA and CASE conducted routine aircraft maintenance of the aircraft, but neither of them was responsible for maintaining the engines, which was the responsibility of Rolls Royce.
  2. [87]
    Mr O'Driscoll also noted that the Cobham report identified the cause of the engine failure as the failure of a turbine blade “below platform”, which I was told means that it was in an area that could only be inspected upon dismantling the engine, which only Rolls Royce is legally authorised to do.  The problem could not have been identified in any routine inspection or maintenance for which CASE was responsible.
  3. [88]
    Finally, Mr O'Driscoll submitted that the letters claiming indemnity on which Ms Cottee relies as providing information about the involvement of the respective respondents did not contain facts, but only allegations.  Therefore they were not evidence of facts, let alone of a decisive nature, that came to be known by Ms Cottee.  With respect, I disagree.  While they were allegations only, they appeared to be based on facts about which the person making the allegations had knowledge.  At the least they would have put Ms Cottee’s solicitors on notice of the relevant facts, sufficient to require them to make further enquiries.  They did, in fact, make further enquiries, asking the Cobham respondents for copies of all relevant contracts.  Those requests were refused until one contract (but not all) was produced at the hearing.  Arguably, Ms Cottee did not have knowledge of all relevant facts until after that agreement came into her solicitors’ possession and she was advised about it.  Indeed, other agreements that will no doubt be material (such as the agreement between Rolls Royce and Qantas) are yet to be disclosed to her.
  4. [89]
    In my view, the matters asserted in those letters point to the existence of evidence which it can reasonably be expected will be available at the end of the trial and which, if unopposed, would likely be sufficient to prove Ms Cottee’s case against one or more of the respondents.[54]  It is not necessary that Ms Cottee produce the evidence itself, simply that the evidence before the court on this application points to the existence of relevant evidence.

The master operating agreement

  1. [90]
    Counsel for the Cobham respondents relied on the master operating agreement.  He submitted that it is sufficient to overcome any credible suggestion that either of those respondents had any responsibility for the inspection or maintenance of the engines, or any capability of inspecting the relevant parts of the engine.  Therefore, the evidence on which Ms Cottee relies does not demonstrate any arguable cause of action against them.
  2. [91]
    At the hearing the master operating agreement between EAA and NJS was tendered in evidence and provided to Ms Cottee’s solicitors.  Mr O'Driscoll submitted that it shows that neither of those companies was responsible for maintenance of the engines and therefore Ms Cottee has not demonstrated that she has an arguable cause of action against either of them.
  3. [92]
    CASE is not a party to the master operating agreement.  It is between EAA (apparently as the operator of aircraft owned or leased by Qantas Airways Ltd or related companies), NJS as “Supplier” and JSPL as guarantor.[55]  Mr O'Driscoll relied on clause 9.1 as demonstrating that neither of the Cobham respondents has any responsibility for maintenance of the engine.  He did not expressly state it, but I assume that those respondents are subsidiaries of (or otherwise related to) NJS and one of them carries out NJS’ responsibilities under the agreement.
  4. [93]
    Clause 9 relevantly provides:

9.1 Maintenance Services

The Supplier will provide maintenance services in respect of each Aircraft under the Supplier’s Certificate of Approval in compliance with all regulatory and [EAA] service requirements, including the following:

  1. (i)
    engineering services to maximise the availability, reliability and to preserve value of Aircraft;
  1. (ii)
    maintenance control for the Aircraft;
  1. (iii)
    Line Maintenance …

9.2Maintenance Obligations

The Supplier shall during the Term in respect of each Aircraft:

  1. (a)
    Part 42:  Meet all of the CASR 1998 Part 42 CAMO obligations;
  1. (b)
    Part 145:  provide all Part 145 AMO services in respect of Line Maintenance.
  1. [94]
    Beside those clauses, the agreement includes the following relevant clause:

10 Engines and parts

10.1 Removal, replace and installation

When performing the Services, the Supplier must comply with the provisions of the Operating Agreement Requirements as set out in the Operating Agreement and the provisions of the Rolls Royce Agreements … in respect of the removal, replacement and installation of Engines and Parts.

  1. [95]
    Clause 1 contained the following relevant definitions:

Base Maintenance means a block maintenance activity conducted at intervals prescribed by the Approved Maintenance Program and performed by a Part 145 AMO, but does not include:

  1. (a)
    overhaul of Parts or Engines (the maintenance of Engines is governed by the provisions of the Engine Maintenance Agreement for the BR715 Engine between Qantas and [Rolls Royce] dated 30 October 2008, as amended or replaced from time to time); or
  1. (b)
    Line Maintenance.

Line Maintenance means routine checks, inspections and malfunction rectification performed en route and at Maintenance Bases by a Part 145 AMO during transit, turnaround or night stops up to and including A Checks.

Rolls Royce Agreements means in respect to the Engines as at the date of this Agreement:

  1. (a)
    the Engine Maintenance Agreement for the BR175 Engine between Qantas and [Rolls Royce] dated 30 October 2008; …
  1. [96]
    With respect, the extent of the services to be carried out by CASA or CASE is not clear without reference to other documents, including Civil Aviation Safety Regulations and, it seems, possibly other agreements, including between Qantas and Rolls Royce.  Reference to the master operating agreement does not assist greatly.  In particular, it does not exclude the possibility that, in the performance of their duties under any arrangement they had with EAA, one or other of the Cobham respondents had obligations that may have identified an anomaly in the engine that required further investigation and was related to its ultimate failure.  The evidence does not make out Mr O'Driscoll’s proposition that I have described at the end of paragraph [86] above.
  2. [97]
    It does seem that one or both of the Cobham respondents (and they did not appear to distinguish between themselves in opposing this application) had some responsibility for some maintenance and inspection of the engine.  The LAA does not require that an applicant for an extension of the limitation period prove that she has a cause of action that is likely to be successful.  She need only meet the test that I have described in paragraph [14] above.  In my view, the applicant has met that test in demonstrating a right of action against one or both of the Cobham respondents.

Rolls Royce

  1. [98]
    Mr Hickey, counsel for Rolls Royce, submitted that there is not enough evidence for the court to be satisfied that Ms Cottee has a right of action against Rolls Royce.  It goes no higher than establishing that Rolls Royce was the manufacturer of the engine that failed.  Ms Cottee’s application is not supported by any expert evidence, nor did her solicitors articulate what she asserts her cause of action to be.
  2. [99]
    With respect, I disagree.  The Cobham report establishes, at least prima facie, that Rolls Royce is not only the manufacturer of the engine, but did perform substantive maintenance on it in 2014.[56]  That is supported by the reference, in the master operating agreement, to an agreement between Rolls Royce and Qantas that governs maintenance of the engines.  The Cobham report also establishes, at least prima facie, that Rolls Royce was aware that four similar or identical engines had failed in a similar or identical manner in the previous 10 years:  two of them within the previous nine months.  Both these factors indicate that possible causes are poor manufacture, poor maintenance or poor inspection of parts.
  3. [100]
    In my view, the evidence is sufficient to establish a right of action against Rolls Royce.

The court has jurisdiction

  1. [101]
    I find that Ms Cottee has satisfied the criteria in s 31(2).  Therefore, the court’s discretion to extend the limitation period arises.  If I decide to extend the limitation period, the extension must, in the case of each respondent, be for a period of one year from the date on which a material fact of a decisive character, relating to a right of action against each respective party, was within Ms Cottee’s knowledge or means of knowledge.

Should the discretion be exercised in the applicant’s favour?

  1. [102]
    The principal consideration that usually guides the exercise of the discretion is whether the applicant’s claim, although commenced out of time, can still be fairly litigated as at the date of the application.  That is, an extension of time must not result in significant prejudice to the proposed defendant.[57]
  2. [103]
    None of the respondents put on evidence or asserted that any of them would be materially prejudiced if the discretion were exercised to extend the limitation period in each case.  Mr O'Driscoll submitted that, apart from the passage of time, his clients did not point to any material prejudice at this juncture.  Mr Hickey went further, acknowledging that there is no prejudice to Rolls Royce and that that situation would weigh heavily in favour of granting the extension sought.
  3. [104]
    I am conscious of the business and regulatory environment in which the parties in this case operate.  In particular, under civil aviation laws persons involved in the maintenance of aircraft and aircraft components (including engines) are required to meet certain education and maintenance standards and to keep clear and specific records of everything done to an aircraft component.  It is no doubt partly for these reasons that none of the respondents suggests that it would suffer any material prejudice from the delay in Ms Cottee commencing proceedings against them.  I am satisfied that it would be in the interests of justice to grant the extensions of time.

Conclusions

  1. [105]
    Ms Cottee does not seek to press for extensions of time beyond the dates of the documents by which she contended she became aware, or had means of knowledge, of the material facts concerning each respondent, even though some further time may reasonably elapse, after a fact is discovered, to enable an applicant to obtain advice or to make other enquiries to show whether there is a worthwhile cause of action.[58]  This attitude reflects the absence of evidence about when Ms Cottee received advice from her solicitors about the facts revealed in those documents.  In the absence of such evidence, I consider it appropriate to allow for seven days from the dates of the respective letters as the dates on which she obtained the means of knowledge of the relevant facts.
  2. [106]
    Therefore I will order, pursuant to s 31(2) of the LAA, that the period of limitation for the commencement of a proceeding by the applicant:
    1. (a)
      against the second respondent, be extended to 23 September 2022;
    2. (b)
      against the third respondent, be extended to 26 April 2022; and
    3. (c)
      against the fourth respondent, be extended to 23 April 2022.

Footnotes

[1]  NJS was apparently trading as “Cobham Aviation Services”:  affidavit of B Buckhurst filed on 22 April 2022, ex BJB-6, p29.  That appears not to be the company, Cobham Aviation Services Australia Pty Ltd, the 2nd respondent.  That company appears originally to have been called Jet Systems Pty Ltd (JSPL), as they have the same Australian Business Number (comparing the name on the application with exhibit 1, referred to later).

[2]  Incorrectly brought as an interlocutory application in the proceeding against EAA, rather than by an originating application, naming as respondents companies that are not parties to the principal proceeding and not seeking to join the respondents as defendants in that proceeding.  For simplicity I have retained the parties’ names as applicant and respondents for the purpose of these reasons.

[3]  That period is three years from the date on which a cause of action arose:  LAA, s 11(1).

[4]  She asserts that the periods for which I could grant such extensions concerning the 4th and 3rd respondents would expire on 16 and 19 April 2022 respectively and that concerning the second respondent will expire on 22 September 2022.

[5] Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, 334: 40-47, 51-57 (Macrossan J).

[6] Moriarty, 333 (Macrossan J).

[7] Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, 250 (Deane J).

[8] NF v State of Queensland [2005] QCA 110, [2]-[3] (Williams JA), [22], [27], [29], [31] (Keane JA, Williams JA and Holmes J agreeing).

[9] Wood v Glaxo Australia Ltd [1994] 2 Qd R 431, 434-435 (Macrossan CJ); adopted by Keane JA in NF v State of Queensland, [36].

[10] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, as summarised by Keane JA in NF v State of Queensland, [44].

[11] LAA, s 11(1).

[12] Affidavit of Kavita Maharaj filed 1 April 2022 (Maharaj 1st affidavit), exhibit KM2. It appears that a copy of that letter was sent to Ms Maharaj on the same day.

[13]  Ms Cottee’s claim against NJS is not in evidence, but it clearly concerns the same incident.

[14]  Maharaj 1st affidavit, KM3.

[15]  Not to be confused with the Civil Aviation Safety Authority (commonly known as CASA), which has no role in this proceeding.

[16]  Affidavit of Taylor Crydon filed on 13 April 2022, TPC10.

[17]  Tendered by counsel for CASA and CASE (the Cobham respondents) and admitted as exhibit 1.

[18]  Affidavit of Ms Cottee filed 12 April 2022, paragraph 5, exhibit JC1.

[19]  Ms Cottee’s email is at p 65 of the exhibits to the affidavit of Taylor Crydon (the solicitor for CASA and CASE) filed on 13 April 2022.  An example of Ms Gentilcore’s sign-off is at p 66.

[20]  Crydon affidavit, exhibit p 66: email dated 8 June 2018.

[21]  Crydon affidavit, exhibit p 70. The email is undated and does not state its author.  Ms Cottee said she was provided with a redacted version, excluding all points after the 6th: T1-20:41 to T1-21:5.

[22]  Maharaj 1st affidavit, KM1.  In cross-examination, Ms Cottee said that she received it in late August or early September 2018:  T1-23:12-13.

[23]  T1-23:27-37; T1-26:25-26.  I take “triggering” to mean that the report caused her to experience adverse feelings or memories associated with the traumatic experience of the engine failure.

[24]  Cottee affidavit, [8]-[9].

[25]  Cottee affidavit, [10]-[11].

[26]  Maharaj 1st affidavit, [7]-[9].

[27]  Maharaj 1st affidavit, [46].  The letters themselves are not in evidence.

[28]  Maharaj 1st affidavit, KM19 and KM20.  The attachment is not in evidence.

[29]  Maharaj 1st affidavit, KM21.

[30]  Maharaj 1st affidavit, KM1 p 9.

[31]  The report stated the casting pores or porosity occur in cast solidifying metals and alloys due to processes (presumably manufacturing processes) that may produce shrinkage or gas defects:  p 12.

[32]  Maharaj 1st affidavit, KM1 p 12.

[33]  Maharaj 1st affidavit, KM1 p 12.

[34]  Maharaj 1st affidavit, KM1 pp 21-22.

[35]  Paraphrasing s 30(1)(b).

[36]  See [22] and [23] above.

[37]  Outline of submissions for Rolls Royce, [33]; outline of submissions for the Cobham respondents, [11], [21].

[38]  An assertion that is clearly wrong, as Mr Alt’s email to Ms Gentilcore was dated 29 May 2018 and Ms Gentilcore said on 8 June 2018 that Ms Cottee had been provided with the findings and answers.  But the error is immaterial to the substance of the submission.

[39]  The circumstances of the “de-pair program” and its cancellation by Rolls Royce (see [37] above) would also no doubt be of interest and potentially give rise to a cause of action.

[40]  T1-19:1-8.

[41]  T1-26:25-43.

[42]  See [13] above.

[43] NF v State of Queensland [2005] QCA 110, [2], quoting Healy v Femdale Pty Ltd [1993] QCA 210, 5; and Young v The Commissioner of Fire Service [1997] QSC 43, 7 respectively.

[44]  Crydon affidavit, TPC16.

[45]  Crydon affidavit, TPC17.

[46]  Affidavit of Benjamin Brockhurst filed on 13 April 2022, BJB9.

[47]  Maharaj 1st affidavit, KM3 (19 April 2021) at [14] and KM2 (16 April 2021), p 2 respectively.

[48] NF v State of Queensland, [29].

[49] Dick v University of Queensland [2000] 2 Qd R 476, [36].

[50]  Apart, perhaps, from asking Ms Cottee to provide to them all relevant documents in her possession.

[51] Dick v University of Queensland, [34].

[52]  [2021] QSC 240, [69], [117], [127]-[128] (referring to Wolverson v Todman [2016] 2 Qd R 106).

[53]  Maharaj affidavit filed on 14 April 2022, KMB, KMC and KMD.

[54]  See [14] above.

[55]  It will be recalled that JSPL is CASA. 

[56]  As one might expect.  It is not unusual that substantial maintenance of an aircraft engine – especially for a commercial aircraft – may only be conducted by the manufacturer.

[57] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 544 (Dawson J), 548 (Toohey and Gummow JJ).

[58] Dick v University of Queensland, [36].

Close

Editorial Notes

  • Published Case Name:

    Cottee v Eastern Australia Airlines Pty Ltd

  • Shortened Case Name:

    Cottee v Eastern Australia Airlines Pty Ltd

  • MNC:

    [2022] QDC 112

  • Court:

    QDC

  • Judge(s):

    Barlow QC DCJ

  • Date:

    24 May 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
3 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Carmo v Ford Excavations Pty Ltd (1984) 154 C.L.R 234
2 citations
Jump To
Cite 1 - (1984) 154 C.L.R 234
Cite 2 - (1984) 154 C.L.R 234
Healy v Femdale Pty Ltd [1993] QCA 210
1 citation
Jump To
Cite 1 - [1993] QCA 210
Magarey v Sunshine Coast Hospital and Health Service (Nambour Hospital) [2021] QSC 240
1 citation
Jump To
Cite 1 - [2021] QSC 240
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
3 citations
Jump To
Cite 1 - [1988] 2 Qd R 325
Cite 2 - [1988] 2 Qd R 325
Cite 3 - [1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110
5 citations
Jump To
Cite 1 - [2005] QCA 110
Cite 2 - [2005] QCA 110
Cite 3 - [2005] QCA 110
Cite 4 - [2005] QCA 110
Cite 5 - [2005] QCA 110
Quinton Young v Commissioner of Fire Service [1997] QSC 43
1 citation
Jump To
Cite 1 - [1997] QSC 43
University of Queensland v Dick[2000] 2 Qd R 476; [1999] QCA 474
3 citations
Jump To
Cite 1 - [2000] 2 Qd R 476
Cite 2 - [2000] 2 Qd R 476
Cite 3 - [2000] 2 Qd R 476
Wolverson v Todman[2016] 2 Qd R 106; [2015] QCA 74
1 citation
Jump To
Cite 1 - [2016] 2 Qd R 106
Wood v Glaxo Australia Pty Ltd[1994] 2 Qd R 431; [1993] QCA 114
1 citation
Jump To
Cite 1 - [1994] 2 Qd R 431

Cases Citing

Case NameFull CitationFrequency
Cottee v Cobham Aviation Services Australia Pty Ltd & others [2022] QDC 2512 citations
1

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