West v Anglo Coal (Capcoal Management) Pty Ltd
[2005] QSC 162
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- West v Anglo Coal (Capcoal Management) Pty Ltd[2005] QSC 162
- Add to List
West v Anglo Coal (Capcoal Management) Pty Ltd[2005] QSC 162
Reported at [2006] 1 Qd R 195
West v Anglo Coal (Capcoal Management) Pty Ltd[2005] QSC 162
Reported at [2006] 1 Qd R 195
SUPREME COURT OF QUEENSLAND
CITATION: | West v Anglo Coal [2005] QSC 162 |
PARTIES: | graeme david west |
FILE NO: | S103 of 2003 |
DIVISION: | Trial Division |
DELIVERED ON: | 15 June 2005 |
DELIVERED AT: | Rockhampton |
HEARING DATES: | 20 May 2005 |
JUDGE: | Dutney J |
ORDERS: |
|
CATCHWORDS: | LIMITATION OF ACTIONS – PERSONAL INJURIES – EXTENSION OF TIME – whether limitation period should be extended WORKERS’ COMPENSATION – CONSTRUCTION OF STATUTE – whether s 308 of WorkCover Queensland Act 1996 prohibits an extension of the limitation period under s 31 of the Limitation of Actions Act 1974 – whether limitation period can be extended after the commencement of the action Gardiner v Car Choice Pty Ltd [2004] QCA 480, considered. Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004] 1 Qd R 378, considered. Pickwick v Central Pack house Pty Ltd and Anor (Unreported, Britton DCJ, 25 February 2005), not followed. Coal Mining Safety and Health Regulation 2001 (Qld), s 46 Motor Accident Insurance Act 1994 (QLD), s 57 Limitation of Actions Act 1974 (QLD), ss 11, 31 WorkCover Queensland Act 1996 (Qld), ss 252A, 262, 280, 302, 303-305, 308 Workers’ Compensation Act 1990 (Qld), s 182D |
COUNSEL: | Mr D. V. C. McMeekin S.C. for the Applicant Mr G. C. O'Driscoll for the Respondent |
SOLICITORS: | Rees R & Sydney Jones for the Applicant Swanwick Murray Roche Lawyers for the Respondent |
[1] Mr West, the applicant, was an underground fitter in the mining industry who has suffered an increasing disability from back pain. He attributes this to his employment at the Central Colliery near Middlemount over 11 years from April 1994 until he was retrenched for medical reasons in April 2005.
[2] On 14 March 2003, Mr West commenced proceedings against Capricorn Coal Management Pty Ltd alleging that his employer’s negligence over the period from April 1994 until March 2002 has resulted in the progressive onset of his present condition.
[3] This application seeks an extension of the limitation period in relation to that period of employment prior to 14 March 2000. To obtain such an extension Mr West must satisfy me that a material fact of a decisive character relevant to his action was not within his means of knowledge prior to 14 March 2002. The fact on which Mr West relies is that his condition was such that he would not be able to continue to work as an underground fitter. This information was first given to him by Dr Baker, a neurosurgeon, in the days following an operation on Mr West’s back by Dr Baker to excise a lumbo-sacral disc prolapse. That operation was performed on 15 March 2002.
[4] Mr West has had a history of back complaints. His first claim for worker’s compensation for a back related condition was in January 1992, before he commenced work with Anglo Coal. This was a claim for a lumbo-sacral strain caused by lifting. The next claim was in April 1998. This concerned Mr West’s coccyx. There was a further application relating to the coccyx in October 1998. In May 1999, Mr West had his coccyx excised. In May 2000, Mr West suffered groin pain lifting a 20 litre oil drum. In June 2000, he underwent surgery to repair a bilateral inguinal hernia.
[5] In February 2001, Mr West saw a Dr Smyth for what Mr West thought was hamstring trouble. Mr West was referred for an MRI scan, which showed narrowing of lateral recesses at L5/S1. In March 2001, Mr West went back to Dr Smyth with pain in his buttocks extending to the left knee and calf. He was referred to Dr Curtis, an orthopaedic surgeon who recommended that Mr west go back to work to see what happened. In a report to Dr Smyth, Dr Curtis said:
“I have advised Graeme (West) at the moment not to proceed with any surgical intervention, although in time he may need a recess clear out here. There is certainly evidence of some foraminal compromise and shut down with L5 symptoms. It is also a possibility that a total disc replacement could be undertaken. I don’t believe at this stage however that his symptoms warrant that and I have encouraged him to continue with his job, perhaps with modified activities and would like to review him in 3 to 4 months.”
[6] Dr Curtis did not give evidence before me. Combining Dr Curtis’ report of what he told Mr West with what Mr West said in evidence, I am satisfied that Dr Curtis advised Mr West to return to work and not to proceed with any surgery. The balance of the passage from the report I have set out is information for the benefit of the referring doctor and is not a reporting of the information Dr Curtis gave directly to Mr West.
[7] Following the visit to Dr Curtis, as with all the previous events, Mr West returned to work. In early March 2002, Mr West began to suffer severe difficulty which led to the surgery performed by Dr Baker and the advice concerning his employment.
[8] Before March 2002, Mr West had been given no reason to believe he could not continue in his occupation. Despite numerous claims he had always returned to work. Mr West had not suffered any significant loss of income. There can be serious consequences for a worker in the coal mining industry who commences an action claiming a disability. Under s 46 of the Coal Mining Safety and Health Regulation 2001, a worker must pass a health assessment before being employed in the industry and periodically thereafter. Dr Smyth had passed Mr West’s back fit to continue in the industry as late as February 2001. Without information such as that conveyed by Dr Baker, I accept that a properly advised person in the position of Mr West who had not suffered a significant economic loss would not be justified in commencing an action.
[9] It is not appropriate for me to comment on the strength or weakness of Mr West’s case. There is evidence which can reasonably be expected to be available at trial and which if unopposed by other evidence is capable of proving the applicant’s case.[1] In this respect there is the evidence of Mr West himself and the evidence of Mr Kahler. The onus the applicant bears to establish the right of action apart from the limitation problem is a low one. I am satisfied that the applicant meets the test here. This conclusion was not seriously challenged by the respondent.
[10] The whole of Mr West’s history has been recorded in the records of WorkCover Queensland and its predecessor, the Workers’ Compensation Board. I am satisfied that the respondent is not significantly prejudiced by the delay in commencing this action.
[11] Subject to the following matters I would extend the period of limitation so that it expires on 16 March 2003.
[12] The respondent has argued that by reason of s 308 of the WorkCover Queensland Act 1996 (“the Act”), the action commenced by applicant is a nullity. Since the longest period to which the limitation period can be extended has now expired any fresh action would be barred. I should therefore refuse to extend the limitation period because to do so would be futile.
[13] In looking at this submission it is necessary to divide the action into three components. The applicant is suing for damages for an injury caused over a period of time between April 1994 and March 2002. The Act commenced on 1 February 1997. Section 308 does not apply to any part of the cause of action accruing before that date. The action was commenced within the normal time in relation to any period after 14 March 2000. The submission thus relates to that period between 1 February 1997 and 14 March 2000.
[14] A complying notice of claim under s 280 of the Act was not served on the respondent prior to commencement of the proceedings. The notice of claim was not given until October 2003. The commencement of proceedings for the period from 1 February 1997 to 30 June 2001 was based on a conditional damages certificate issued under s 262 of the Act on 14 March 2003. From 1 July 2001, s 262 of the Act which permitted the issue of conditional damages certificates was repealed. Although counsel for the respondent in paragraph 4.2 of his written submissions said that a conditional damages certificate was issued under s 262 of the Act for the period from 1 February 2000 until 28 February 2003, that was plainly wrong. There was no power to issue a certificate for much of that period. A notice of assessment for an over time injury from 17 September 1999 until 5 March 2002 is exhibit “JLS 2” to an affidavit of Mr Shaw. A conditional damages certificate was also issued for the period from 1 January 1996 to 31 January 1997 under s 182D of the Workers’ Compensation Act 1990. The right to commence an action for an injury suffered prior to 1 January 1996 is unrestricted.
[15] Section 308 of the Act provides:
“(1) A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 only if –
(a) before the end of the period of limitation –
(i) the claimant gives, or is taken to have given, a complying notice of claim; or
(ii) the claimant gives a notice of claim for which WorkCover waives compliance with the requirements of section 280 with or without conditions; or
(iii) a court makes a declaration under section 304; or
(iv) a court gives leave under section 305; and
(b) the claimant complies with section 302.
(2) However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held.”
[16] In this case the compulsory conference was held in July 2004.
[17] On 31 May 2005, my associate wrote to each of the parties enquiring whether in light of the defence which claimed non compliance with the provisions of the legislation and the application to strike out the proceedings filed by the defendant the defendant wished to rely on any argument other than the one in relation to s 308. By a letter dated 9 June 2005 the defendant responded to the effect that the application to strike out was no longer persisted with. The respects in which it is alleged in the pleadings that the action did not comply with the statutory provisions was stated to be limited to the fact that the claim was brought outside the limitation period and was not protected by s 308. I will make my associate’s letter and the reply from the defendant’s solicitors exhibits in the application.
[18] It seems to follow from the correspondence to which I have referred that apart from the non-compliance with s 308, the respondent has abandoned any reliance on the fact that the action was commenced without first complying with the steps required by the Act to be complied with prior to commencing proceedings insofar as the injury was incurred after 1 July 2001. In particular, the respondent does not argue that the action for that period was a nullity, having been commenced prior to delivering the notice of claim and without first obtaining leave under s 305 of the Act.
[19] In my view, the critical step in determining whether it is necessary for the applicant to have satisfied the requirements of paragraph 1(a) of the s 308 of the Act, is to decide what is meant by the phrase, “the period of limitation for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974”.
[20] I invited the parties to provide written submissions on this point. Neither side was able to refer me to any decision of this Court or the Court of Appeal dealing with the meaning of the phrase in the relevant context or in any analogous context.[2] Counsel for the respondent referred me to a decision of Williams JA in the Court of Appeal in Gardiner v Car Choice Pty Ltd.[3] That decision dealt with s 57 of the Motor Accident Insurance Act 1994 (“MAIA”). At paragraph [28] Williams JA commented that:
“The section is clearly predicated on the proposition that the three year limitation period imposed by s 11 of the Limitation of Actions Act continues to apply to claims of the type in question.”
[21] Section 57 of the MAIA is in many ways analogous to s 308 of the Act. In Gardiner, however, the question of an extension of the limitation period under the Limitation of Actions Act was not raised. It is therefore not surprising that Williams JA commented only by reference to the normal period of three years. In fact, s 57(5) of the MAIA expressly provides that if the limitation period is extended the reference in the section to the limitation period is a reference to the extended period.
[22] It was argued by the respondent that the absence of a similar provision in s 308 of the Act to s 57(5) of the MAIA was a reason for finding that s 308 was limited to the period of 3 years prescribed in s 11 of the Limitation of Actions Act.
[23] I do not accept this submission. The effect of acceding to these submissions would be that notwithstanding the provisions of the Limitation of Actions Act a claim for a work related injury could not be brought outside a period of three years even where the injury had not manifested itself within that period or where the injured party was a minor and where the Limitation of Actions Act clearly would have otherwise permitted the claim.
[24] Section 31 of the Limitation of Actions Act is in general terms. It provides that where the period for bringing an action is extended under the section, “for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.” Sub-section (3) provides that the section applies even though the application for the extension is made after the 3 year period has expired.
[25] In my view, in the absence of a clear legislative intention, I should be slow to construe s 308 in such a way as to deny a right of action to an injured person which that person would otherwise have had.
[26] During the course of argument reference was made to my decision in Holmes v Adnought Sheet Metal Fabrications Pty Ltd[4]. In Adnought, I concluded that the Court had no power to grant leave under s 305 to validate retrospectively an action which had been commenced without complying with s 280 of the Act. I do not think I am being inconsistent in taking a different course in relation to s 308.
[27] Section 302 of the Act sets out the mandatory pre-requisites for commencing an action. The right to bring an action arises only if the claimant has complied with the relevant division under part 2, part 5 (other than as provided for in ss 304 and 305), part 6 and s 303. All of these are in Chapter 5 of the Act. Section 308 is in Part 7. Division 1 of Part 7, which includes s 302, identifies when an action can be commenced. Division 2 of Part 7, which includes s 308, deals with proceedings after they have been commenced. Looked at in the context of the statutory framework, therefore, the purpose of s 308 is to extend the limitation period in the limited circumstances for which it provides. That s 308 is intended to provided for an extension of the limitation period in addition to the power in the Limitation of Actions Act is made even clearer by referring to s 252A(3) of the Act. Otherwise, s 308 confirms that the normal defence that an action is outside the limitation period remains available to the defendant.
[28] It has always been the case that the time for judging whether the limitation defence is available to a defendant is at the time the plaintiff is called on to justify the proceeding. That may be at trial or on an earlier application to dismiss the action. Since I regard s 308 as a remedial provision, intended to increase the time allowed for bringing an action, I can see no compelling reason for interpreting it as imposing an additional obstacle to the right to commence proceedings.
[29] I can see no good reason for interpreting what I have identified as the critical phrase as meaning anything other than “within three years or such longer period as the Limitation of Actions Act may allow”.
[30] Since I propose to extend the limitation period in this case until 16 March 2003, the consequence will be that the action was commenced “within the limitation period for bringing an action for personal injury under the Limitation of Actions Act” and it will be unnecessary for the applicant to rely on s 308 of the Act.
[31] It was unnecessary to comply with the usual prerequisites for bringing an action for so much of the injury as was suffered before 16 March 2000 because the respondent had issued conditional damages certificates from the commencement of the legislative restrictions up to 30 June 2001. After 14 March 2000 the action was commenced within the normal limitation period of three years.
[32] Accordingly I order that the period within which the applicant may bring an action for damages for an injury suffered over a period of time from April 1994 until March 2002 is extended, so far as is necessary, until 16 March 2003. I order that the respondent’s application to strike out the action be dismissed.
Footnotes
[1] Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 434-5 (per Macrossan CJ).
[2] I was referred to Pickwick v Central Pack House Pty Ltd and Anor (Britton DCJ - Rockhampton D71/2004 – 25 February 2005 – unreported) I disagree with his Honour’s conclusions for the reasons which I have set out in this judgment.
[3] [2004] QCA 480.
[4] [2004] 1 Qd R 378