Honour v Faminco Mining Services Pty Ltd
[2008] QSC 330
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- Unreported Judgment
- Appeal Determined (QCA)
- Honour v Faminco Mining Services Pty Ltd[2008] QSC 330
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Honour v Faminco Mining Services Pty Ltd[2008] QSC 330
Honour v Faminco Mining Services Pty Ltd[2008] QSC 330
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 18 December 2008 |
DELIVERED AT: | Rockhampton |
HEARING DATE: | 8 December 2008 |
JUDGE: | McMeekin J |
ORDERS: |
|
CATCHWORDS: | LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – where the applicant wishes to claim for damages against the respondent – where the limitation period for the claim has expired – whether time should be extended – whether a prospective third respondent was a ‘mere intermediary’. Limitation of Actions Act 1974 (Qld), s 30, s 31 Castillon v P & O Ports Ltd [2007] QCA 364, distinguished Jocumsen v Thiess Pty Ltd & Anor [2005] QCA 198, followed Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, followed NF v State of Queensland [2005] QCA 110, followed Pizer v Ansett Australia Ltd [1998] QCA 298, cited Sugden v Crawford [1989] 1 Qd R 683, considered TNT Australia Pty Ltd v Christie & Ors [2003] NSWCA 47, followed |
COUNSEL: | B A Harrison for the applicant B L P Hoare for the first respondent R Morton for the second respondent K F Holyoak for the third respondent |
SOLICITORS: | McKays Solicitors for the applicant Dibbs Abbott Stillman for the first respondent CLS Lawyers for the second respondent Barry & Nilsson for the third respondent |
[1] McMEEKIN J: There are three applications before me each brought by Mr Clinton John Honour. The parties are agreed that I must first determine his application made under s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”) to extend the limitation period applicable to the subject proceeding before considering the remaining applications.
The Incident
[2] On 16 March 2004 Mr Honour was buried up to his waist in a rock slide that occurred in the course of his employment at the Enterprise mine at Mount Isa. The first respondent was then Mr Honour’s employer. His labour had been hired to the third respondent and by that respondent to the second respondent. The second respondent would appear to have had the control over the area of the mine site where the incident occurred.
[3] Mr Honour has now been diagnosed as having a post-traumatic stress disorder as a result of the incident. His capacity for work in the mining industry – whether in hard rock mining or underground coal mining – is said to be adversely affected by that disorder. Such an incapacity would have significant economic consequences for Mr Honour. Mr Honour wishes to pursue a claim for damages against the respondents. The limitation period to such a proceeding expired on 16 March 2007 without action being commenced.
The Requirements of the Act
[4] In order to succeed on an application to have the limitation period extended 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, in this case, 16 March 2006: s 31(2)(a) of the Act. There must be a prima facie case.[1] Those two matters being shown I have a discretion to extend the limitation period for 12 months from the time the material fact was within his means of knowledge. Normally that discretion would be exercised in favour of the application unless there was relevant prejudice to the respondents.[2] The onus lies throughout on the applicant.
[5] The first and second respondents concede a prima facie case and that there is no relevant prejudice. The third respondent is in a different category. I will deal with the third respondent’s contentions later.
The Material Fact
[6] The material fact of a decisive character that the applicant relies upon is his learning of the opinion of Dr James, a psychiatrist, some time shortly after 18 March 2008 and contained in his report of that date, concerning the efficacy of the “frontline treatment” (EMDR - Eye Movement Desensitisation and Reprocessing) and the impact of the condition on his earning capacity. The relevant opinion is:
‘That EMDR will not substantially benefit his current, increasingly strongly experienced avoidant responses, and it is my opinion that it will be ill-advised for Mr Honour again to contemplate hard rock mining. I think it wise that he should in fact respond to his avoidant symptoms by changing career from mining altogether.’[3]
[7] The respondents each contend that whilst that opinion is capable of being a ‘material fact’ it does not bear the necessary quality of decisiveness and was within the applicant’s means of knowledge more than 12 months ago.
Decisive Character
[8] Section 30(1)(b) of the Act provides:
“(b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—
(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
(ii) that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action.”
[9] Section 30(2) of the Act provides that for the purposes of s 30 “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.”
[10] In determining whether a newly learned fact has the necessary quality of decisiveness an applicant ‘must show that without the newly learned fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it’: Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 per Macrossan J at p 333.[4]
[11] Relevant on this point too is the observation of Connolly J in Sugden v Crawford [1989] 1 Qd R 683 at p 685:
‘Implicit in the legislation is a negative proposition that time will not be extended where the requirements of s 30(b) are satisfied. Without the emergence of the newly discovered fact or facts, that is to say, where it is apparent, without those facts, that a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action ...’.
[12] The point that the respondents make is that the applicant was well aware of the symptoms that were eventually labelled ‘post-traumatic stress disorder’, and that as a result of those symptoms he had himself determined to move away from hard rock mining to work that was less well paid albeit still in the mining industry. The respondents submit that the irrelevance of the opinion expressed by Dr James to an assessment of the worth of the action is demonstrated by notices of claim given to the first and second respondents on 1 November 2007, the former containing an assessment of damages in the sum of $417,944.55.[5] The notices were given on 1 November 2007.
[13] To assess the validity of the submission it is necessary to look more closely at the applicant’s work history and the symptoms experienced subsequent to the accident.
Subsequent Work History
[14] Following the subject incident Mr Honour returned to work immediately. In the employment history set out in the Notice of Claim form[6] Mr Honour said that the first respondent transferred him from Mount Isa back to Charters Towers about one month after the incident. The precise timing of Mr Honour’s subsequent employment changes is somewhat confused. The history in the Notice asserts that Mr Honour commenced working with Ian Kidd Mining at Gympie in April 2004[7] as an air leg miner (in the same capacity as he had been employed by the first respondent), that he remained there until October 2004 and then commenced as a construction supervisor with TK Drill & Blast at Gympie for a few months until obtaining employment as an underground coal miner with BMA Broadmeadow Mine at Goonyella.
[15] Whilst the sequence of employers might well be as set out there it seems likely that Mr Honour spent about 6 months with Ian Kidd Mining after he left the employ of the first respondent. The pay slips in evidence suggest that Mr Honour continued in the employment of the first respondent until about July 2004.[8] He had about 12 months’ employment in Gympie[9], including employment with TK Drill and Blast, and commenced with BMA in early 2006.
[16] That employment history suggests continuous employment throughout, but Mr Honour accepts that at some point he had a break of a couple of months or a few months. The timing of that break is not clear. At one point there was reference to a break between the Mt Isa and Gympie employments suggesting a break in mid 2004. At another point there seemed to be acceptance of a break in late 2005 before the commencement of the BMA employment.[10] Professor Whiteford had the history that he took that time off ‘because of the anxiety’[11] and Mr Honour did not disagree.[12] It is evident from his oral evidence that there were other considerations[13] but that was one of the relevant considerations. Whether Mr Honour would have taken that break even if he had not had the condition of anxiety was not explored. Further, Mr Honour accepts that at some point he determined to cease underground hard rock mining. He said in his evidence that he believed that that would result in some reduction in his income. The extent of that reduction was not explored in the evidence.
[17] Similarly the decision to work for TK Drill & Blast apparently involved a move from underground to surface work. Mr Honour said in his oral evidence that he appreciated that moving from underground to surface work would involve some reduction in income. Again the extent of that reduction was not explored.
[18] I note that the employment history set out in the notice of claim form indicates that Mr Honour received a gross weekly salary of $1,750 when working as a supervisor for TK Drill & Blast and $1,730 when working for Ian Kidd Mining as an air leg miner six months before. If accurate that is contrary to his oral evidence that there was some reduction in moving away from underground mining. The possible explanation for the apparent discrepancy may be that he had moved up from the position of miner to that of supervisor of construction work so that he maintained his income.
[19] It is noteworthy too that in moving from TK Drill & Blast back to underground mining with BMA Broadmeadow that the income shown in the notice of claim form suggests no decrease but a small increase in the weekly income. I should say that I have little confidence that the financial information in the notice of claim form is completely accurate. The income tax returns exhibited to Mr Zappert’s affidavit make plain that Mr Honour’s income has not remained constant over the years as the table would suggest.
The Developing Symptoms
[20] Following the accident and his return to work Mr Honour had no immediate symptoms. In the short term after the accident Mr Honour often had disturbed sleep and would wake up with dreams of the accident or wake up sweating.[14] After about one or two months he commenced to experience ‘flashbacks’ of the incident. He describes three such occurrences in his affidavit. The first two apparently occurred in the early stages, then the condition appeared to settle for about 12 months before a third episode.[15] At some point a friend told him that he had noticed changes in Mr Honour and the friend thought that Mr Honour might be depressed. Mr Honour did not agree with that opinion.[16] Over time Mr Honour became aware of feelings of irritability and short-temperedness towards others, mood swings, anxiety and loss of confidence about underground mining and going underground, fear of noises particularly when underground and feelings of anger, upset and sadness. He relayed the symptoms to a general practitioner on 17 May 2007.[17] Mr Honour’s attendance on the general practitioner was the first occasion on which he had sought any medical attention for the symptoms.
[21] The general practitioner referred Mr Honour to Ms Mousset, a psychologist. She saw Mr Honour on three occasions between 7 August and 24 September 2007. [18] She diagnosed the condition of post-traumatic stress disorder. That was the first occasion on which Mr Honour was told that he had a diagnosable psychiatric condition.[19]
[22] The treatment offered by the psychologist appears to have been ‘management of anxiety though breathing exercises’.[20] Mr Honour found her treatment ‘helpful’.[21] It is evident that Mr Honour thought that with the treatment that Ms Mousset could give him he could ‘keep the condition under control’.[22]
Subsequent Psychiatric Opinion
[23] Mr Honour was eventually referred to Professor Harvey Whiteford, psychiatrist, by WorkCover Queensland. Professor Whiteford saw Mr Honour on 23 January 2008. The material does not reveal when it is that Mr Honour learnt of the opinions of Professor Whiteford as contained in his report. If Mr Honour did learn of those opinions prior to seeing Dr James then he would have learnt that in the opinion of an experienced psychiatrist:
(a)He had ‘residual manifestations of a post-traumatic stress disorder’;
(b)His long term prognosis was “fair”;
(c)That his condition was stable, unlikely to completely remit, but he would benefit from cognitive behaviour therapy with five one hour sessions being suggested;
(d)That using the AMA guides his impairment would be classified as mild;
(e)That the disorder had caused him ‘to change the type of work he has been doing but does not prevent him from continuing to work as a miner’.[23]
[24] Significantly Professor Whiteford did not suggest that Mr Honour could not return to hard rock mining once he had the benefit of the treatment that he suggested. Whilst Professor Whiteford did not express an opinion one way or the other as to whether Mr Honour could return to hard rock mining the thrust of his report is that with treatment he would improve albeit that the condition would not ‘completely remit’. One would expect that if he held that opinion he would express it given the medico-legal context of the report.
[25] Dr James’ opinions were to a very different effect. In addition to the significant passage that I have already quoted[24] Dr James said that he considered that Mr Honour’s post-traumatic stress disorder to be ‘mild to moderate in severity’ but then said:
‘…it has led to his inability to continue in his earlier profession of hard rock mining; and the aversive stimulus has increasingly generalised over time, so that it now involves mining of all kinds.’[25]
As I have previously noted he also held the opinion that the ‘front line treatment’ of EMDR, whilst it might be effective in ‘reducing in particular the intrusive mental imagery of the accident’, would not ‘substantially benefit his current, increasingly strongly experienced avoidant responses’. It is for this reason that Dr James considered that it would be ‘ill-advised for Mr Honour again to contemplate hard rock mining.’[26] That is, that the treatment of choice would not enable him to get back to the hard rock mining. Further, the fact that ‘aversive stimulus has increasingly generalised over time’ led Dr James to the view that, given that the treatment of choice was unlikely to be of benefit, that he, Mr Honour, should consider changing his career away from mining altogether.
The Respondents’ Submissions
[26] The point that the respondents make is that Mr Honour well knew that he could not continue with hard rock mining from some time in 2005 and that that was sufficient to justify a significant award of damages such that even without the benefit of Dr James’ opinions Mr Honour would have ‘previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it’.[27] That submission in turn depends upon an assumption that there was a significant drop in income involved in the decision not to pursue hard rock mining, significant enough to justify Mr Honour bringing his action.
[27] Mr Honour swore that to the time of the hearing he had experienced no significant loss as a result of his changing employment.[28]
[28] The respondents’ submission take as their base the assumption that the wage being paid to the applicant at the time of the incident was as shown in the notice of claim form as $1,470 per week net[29] and that income reflected the sustainable earnings that Mr Honour could have expected had he remained as an underground hard rock miner. The thrust of the respondents’ submission was that when one analyses the income tax returns the loss that Mr Honour suffered by reason of his changes of employment brought about by the condition of anxiety emanating from the subject incident of which he was well aware, could be assessed at the order of $300 net per week. The submission went that from about mid-2005 when Mr Honour made up his mind to avoid underground hard rock mining he appreciated, or a reasonable person in his position would have appreciated, that he was suffering such a loss and that it was likely to continue into the future. Thus by mid-2007 when Mr Honour first attended on a solicitor, his past economic loss may have been approaching $30,000 (depending on when it was that he gave up hard rock mining) and his notional future economic loss could have been in the order of $130,000 ($300 x 15 years (555) x 80%).
[29] There are two difficulties with this submission. The first is that whilst Mr Honour left hard rock mining to see if that assisted in alleviating his symptoms, there is no evidence that he knew then that he could never return to it. He said the opposite.[30]
[30] Secondly, the initial premise that the applicant’s sustainable earning capacity as an underground hard rock miner is reflected by a figure of $1,470 net per week is not made out. Mr Honour at no time accepted that in his view that was a sustainable earning capacity. There is no evidence to that effect from any source and what evidence there is, is against it. First, that wage was paid by the first respondent. The first respondent’s contract at Mt Isa came to an end and it went into liquidation at some point. Thus the notion that the wage was a sustainable one in the long term, merely because the first respondent paid it, is hardly established.
[31] Secondly, as I understood the evidence, the work with Ian Kidd Mining at Gympie was no different in any material way from the work that he had been doing with the first and second respondent[31] save that the hours were shorter.[32] There is no reason to think that the wage paid at Ian Kidd Mining was less than the industry average or that he took that work because of some aspect of his condition. In other words the income that he earned with Ian Kidd Mining is as good a guide to the long term sustainable earning capacity of the applicant as I have.
[32] The Notice of Claim form suggests that the net weekly income at Ian Kidd Mining was in the order of $1,145. The better view of the evidence seems to be that that employment was in the year ended 30 June 2005. The income tax returns indicate a weekly net average for that year of $1,124, at least as reflected in the weekly pay packet.[33] Whichever amount be right the relevant point is that when working as an underground hard rock miner the applicant’s income was well below the $1,470 adopted as the base for the purposes of the respondents’ submission. Again that suggests that $1,470 was not sustainable in the longer term when performing this work.
[33] Thirdly, analysis of the tax returns demonstrates that in the year of the subject accident the average income was well below the $1,470 figure assumed by the respondents. The analysis of the applicant’s income tax returns discloses the following:
Year Ended | Gross Income $ | Tax Paid $ | Net Income $ | Weekly Net Average $ |
30.06.2003 | 119,465 | 45,535 | 73,930 | 1,421.73 |
30.06.2004 | 68,919 | 24,878 | 44,041 | 846.94 |
30.06.2005 | 86,526 | 28,048 | 58.478 | 1124.58 |
30.06.2006 | 41,622 | 11,956 | 29,666 | 570.50 |
30.06.2007 | 98,501 | 28,850 | 69,651 | 1,339.44 |
[34] The incident occurred on 16 March 2004. The net weekly average for that financial year, and there appears to be no time lost from work subsequent to the incident, was $847 approximately. Against that base it is far from clear that there has been any significant past economic loss to the end of 2007. If one assumes that the reduction in income in the year ended 30 June 2006 was entirely attributable to causes that can be traced to the subject incident (and I am not sure that is established) then the prospective loss taking the average for the year ended 30 June 2004 as a base was in the order of $14,000. That analysis ignores any argument that the changes of employment might well have resulted in some increase in average income, contrary to Mr Honour’s belief. The analysis certainly bears out Mr Honour’s sworn testimony that he had not suffered any substantial loss over the years subsequent to the accident.
[35] Fourthly, what evidence there is suggests that a hard rock miner’s life is not necessarily one of continuous employment. Whilst Mr Honour had been with the one mine for 10 years prior to his work with the first respondent he was then retrenched and then had gone from short term contract to short term contract.[34] The securing of permanent employment at BMA in March 2006 would not necessarily be seen by him as a backward step financially.
Assessment of Prospective Damages
[36] What would a reasonably competent solicitor have advised Mr Honour at the close of 2007? Prior to learning of the opinions of Professor Whiteford and Dr James it would seem that the following can be said:
(a)Mr Honour was aware of symptoms that he described in his affidavit as ‘emotional problems’[35] which I have described above;
(b)He was aware that a psychologist considered those symptoms amounted to a post-traumatic stress disorder;
(c)He had found helpful treatment of a relatively simply kind (breathing exercises) in controlling those symptoms[36];
(d)The psychologist made no recommendation to him, apparently, concerning his continued employment;
(e) The psychologist made no suggestion to him that his condition could not be controlled by these relatively simple means;
(f) Mr Honour was continuing in highly paid work as an underground coal miner.
[37] Given the absence of any medical evidence to support an inability to carry out mining work in the future and given the demonstrated capacity to work as an underground miner, earning a substantial income as shown by the tax return for the year ended 30 June 2007, it is far from clear that any sum would be allowed for future economic loss. There was no medical basis available to support the notion that he could not return to hard rock mining. Even if he could not, the demonstrated earning capacity seemed to indicate that such an inability would not be productive of continuing significant financial loss.
[38] He had symptoms of anxiety that had, at best for the respondents, caused Mr Honour to alter his employment and suffer a loss of perhaps in the order of $14,000. As at the end of December 2007, his medical treatment had been minimal. He had seen a general practitioner once and a psychologist on three occasions. The latter had provided treatment which seemed helpful. Mr Honour thought that his condition was controlled. On any view any award of general damages could only be modest.
[39] In my view, bringing into account all possible heads of loss, the damages, based on the evidence then available, could not have exceeded the Magistrates’ Court jurisdictional limit of $50,000.
[40] In determining whether such an action was worthwhile and should, in Mr Honour’s interests, be pursued, it is relevant to bring into account a range of factors. This was adverted to by Muir J (as he then was) in Jocumsen v Thiess Pty Ltd & Anor [2005] QCA 198 where, after observing that the applicant there had reasonable prospects of succeeding on a claim in the Magistrates Court, his Honour said:
‘Mr Taylor, a partner in the firm of solicitors acting for the respondent, swore that he routinely advised clients working in the mining industry that personal injuries claims under $60,000 may not be worth pursuing. Amongst other considerations he identified a concern by such clients that the bringing of a claim might prejudice “their existing employment and affect their ability of securing re-employment in the mining industry”. There is no reason to believe that this advice would not have been similar to that which would have been given to the respondent by other solicitors exercising due care and skill had they been consulted by him. Any such solicitor would have entertained doubt about the wisdom of commencing such proceedings, having regard to the limited potential return to the respondent, litigation induced stressors, the cost of the proceedings and the possibility of failure.’[37]
[41] Those considerations are relevant here and are against the notion that an action ought to have been pursued.
[42] The final point made by the respondents is that this analysis is undermined by the fact that the applicant did consult a solicitor and that that solicitor, far from advising him that he ought not to be pursuing his action by reason of those sorts of considerations, came to the view that he had a worthwhile cause of action evidenced by the lodging of the Notice of Claim for Damages form with WorkCover in which he set out a calculation of damages in excess of $400,000.
[43] It should be immediately observed, as Mr Harrison of counsel who appeared for the applicant pointed out, that this was not a Notice of Claim for Damages lodged pursuant to the provisions of the Workers’ Compensation & Rehabilitation Act 2003. Rather, it was a document albeit in that form but lodged on the advice of the applicant’s solicitors in an attempt to commence to negotiate the claim despite the expiration of the limitation period.[38] The inference that I draw is that the supposed calculation of damages was more done in hope as setting out the ambits of the claim rather than reflecting in any sense the evidence then available to support the claim. Certainly no-one on the respondents’ side attempted to demonstrate on what basis the figures set out in the offer could possibly have been supported by the known evidence.
[44] In this regard Mr Holyoak of counsel, who appeared on behalf of the third respondent, drew an analogy between the facts in this case and the facts under consideration in Castillon v P & O Ports Ltd [2007] QCA 364 and relied on the comments by Keane JA there concerning the commencement of proceedings in that case, years prior to the claimed discovery of a material fact of a decisive character. After commenting that the fact that proceedings had commenced was relevant for two reasons, Keane JA said:
‘First, they are relevant to dispel any suggestion that there were circumstances which might reasonably have led to a view that it was not in the plaintiff’s own interest to commence proceedings at the time which they were, in fact, commenced. Secondly, they demonstrate a “steady preponderance of opinion or belief” [39] on the part of the plaintiff and his advisers that the information in their possession concerning the extent of the plaintiff’s loss was sufficient to warrant the commencement of proceedings. They are circumstances which, at least, call for a clear explanation as to why the “conjunction of circumstances”, and the plaintiff’s awareness of them, was not such as to justify and require the bringing of an action in the plaintiff’s own interest.’[40]
Later, after observing that the learned primary judge in Castillon ‘seems to have assumed that the recently disclosed information would have led to a reasonable assessment ... that an action was not worthwhile’ Keane JA observed that such an assumption was:
‘in truth, counter-intuitive: the facts that the plaintiff had decided in June 2001 to commence an action, and had actually commenced an action before the final termination of his employment, serves to emphasise, at a practical level, the real difficulty in the way of the conclusion that the plaintiff did not know that he had a worthwhile cause of action until his employment was finally terminated. The plaintiff and his legal advisers apparently made an assessment that an action for damages was worthwhile having regard to the facts of which they were aware, including the facts relating to the impairment to the plaintiff’s earning capacity and his vulnerability in the employment market, whether or not the plaintiff continued in employment with the defendant.’[41]
[45] The difficulty with the analogy is that there are fundamental differences between the facts in Castillon and the facts here. No proceedings were commenced here. The Workers Compensation & Rehabilitation Act 2003 contains various provisions to enable a person to start proceedings urgently so as to stop time running.[42] The proceedings against the second and third respondents are governed by the provisions of the Personal Injuries Proceedings Act 2002. That Act also contains provisions enabling an urgent proceeding to be commenced.[43] No attempt was made to take advantage of these provisions. Far from having made an assessment that an action for damages was worthwhile the plaintiff and his legal advisers have apparently been much more circumspect. There appears to have been a deliberate decision not to pursue the available remedies to preserve his position under the limitations statute presumably because of the complete lack of evidence to support a substantial action. Here the facts do not support the ‘steady preponderance of opinion or belief’ on the part of the plaintiff and his advisers that the information in their possession concerning the extent of the plaintiff’s loss was sufficient to warrant these provisions to be invoked.
Conclusion re Decisiveness
[46] In my view the opinion of Dr James was ‘decisive’ in the relevant sense. Medical opinion to the effect that the treatment of choice for the condition was unlikely to be effective in enabling the plaintiff to maintain his employment, and medical opinion to the effect that it would be in his interests not only to shift employment within the mining industry but rather to shift out of the mining industry entirely, converted an action that was at best marginal into one well worth pursuing. The damages calculated in the notice of claim for damages form is now, in the light of Dr James’ views if they be accepted, a much more realistic assessment of the worth of the contemplated proceedings.
Means of knowledge
[47] Section 30(1)(c) of the Act provides:
‘A fact is not within the means of knowledge of a person at a particular time if, but only if –
(i)the person does not know the fact at the time; and
(ii)as far as the fact is able to be found out by the person the person has taken all reasonable steps to find out the fact before that time.’
[48] The respondents contend that had the applicant taken ‘all reasonable steps’ as required by s 30(1)(c)(ii) of the Act, then he would have discovered the material fact now relied upon at a time significantly earlier than 12 months ago. The submission was made that given the knowledge that he had by early 2006 the applicant, acting reasonably, ought to have sought appropriate advice concerning the nature of his condition and its impact on his capacity to maintain employment. The respondents submit that given the ‘constellation of symptoms’ that they say the applicant had, his giving away hard rock mining, the symptoms that he was experiencing in persisting with coal mining, allied with the claimed continuing and significant loss of income, taken together, meant that the ‘reasonable steps’ that he ought to have then taken included seeking expert psychiatric opinion. There is no reason to think, so it is submitted, that the opinion that he would then have received would have been any different to the one Dr James’ eventually provided.
[49] In support of their submission the respondents have referred me to the well known judgment of Thomas JA in Pizer v Ansett Australia Ltd [1998] QCA 298 at [15] where, in reference to an applicant’s means of knowledge, his Honour said:
‘However she must also show that it was not within the means of knowledge of a reasonable person knowing what she knew. That issue is to be determined on the footing that such a person had before that time taken all reasonable steps to ascertain it. It makes little practical difference whether one approaches ‘the reasonable steps’ issue from the viewpoint of the plaintiff endowed with the qualities of a reasonable person or of a reasonable person endowed with the knowledge and experience of the plaintiff. Some of the cases deal with the issue in the first-mentioned way, although strictly speaking the second-mentioned way would seem to accord more literally with the statute.’ (Footnotes omitted)
[50] The Act, in s 30(1)(c) does not speak of ‘a reasonable person’ as that passage seems to suggest. The significance of this was explained by Keane JA in NF v State of Queensland [2005] QCA 110 at [29]:
‘It is to be emphasised that s 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract, either by the exercise of “all reasonable steps”, or by the efforts of a reasonable person. It speaks of a state of knowledge attainable by an actual person who has taken all reasonable steps. The actual person postulated by s 30(1)(c) as the person who has taken all reasonable steps, 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. It seems to me that, if that person has taken all the reasonable steps that she is able to take to find out the fact, and has not found it out, that fact is not within her means of knowledge for the purpose of s 30(1)(c) of the Act. ...’
[51] The relevance of that passage to this case is that the “actual person” in contemplation here has a post-traumatic stress disorder. That condition is not irrelevant to the assessment of what ‘reasonable steps’ can be expected of this applicant. So much follows from the legislation and is supported by authority.[44]
[52] Mr Honour deposed that the problems that he called ‘emotional’ were matters that he did not want to talk to people about and that he was uncomfortable to talk about.[45] He told Dr James, in addition, that he tries to avoid thinking about the accident.[46] Such avoidance behaviour is one of the criteria of the condition of post-traumatic stress disorder.[47] The difficulties that Mr Honour had in bringing himself to seek advice is evidenced by his approach to the general practitioner and the solicitor whom he eventually consulted. In each case he consulted the practitioners about matters unrelated to his anxiety. It was only in the course of dealing with other problems that he mentioned the psychological difficulties that he was having.[48] It seems that his de facto partner eventually persuaded him to seek professional help for his symptoms.[49]
[53] It is evident that the applicant attempted to deal with his condition in his own way, without outside assistance for several years. He says that he was hopeful that his condition would ‘settle down’.[50] This seems not only not unreasonable for a person in his position but virtually inevitable given the nature of the disorder that he had.
[54] Further, and contrary to the respondents’ submission, there is good reason to think that, had Mr Honour sought advice, he would not have received the same opinion as was given by Dr James. No evidence was led from any of the practitioners who have seen the applicant that the advice that Dr James eventually gave would have been provided at some earlier time had they then been consulted. The fact is that the general practitioner and the psychologist did not give that advice.
[55] Even when he did see a psychiatrist in January 2008 he still did not receive the advice eventually provided by Dr James. The explanation for that may be that the symptoms, left largely untreated as they have been, have worsened over time. The impression that I have is that Dr James’ views have been influenced by Mr Honour’s increasing realisation of the difficulties that he has in persisting with underground coal mining work. Dr James observed that ‘the disorder appears to be one of relatively late onset in terms of its more disabling consequences, but such a history is not unusual in persons of a characterologically (sic) stoic nature, less inclined to complain; as Mr Honour himself put it, “to just get on with it”.’[51] Support for that view can be found in the fact that despite the expert’s opinion, and Mr Honour’s acceptance of its validity, he still persists with work in the coal mining industry.
[56] It is not irrelevant that when he did seek assistance from the psychologist Mr Honour’s found some initial benefit in the psychologist’s treatment.
[57] The essential question then is whether the applicant failed to take reasonable steps in thinking that, with time, he would overcome the symptoms that he was experiencing. His psychiatric condition worked against him seeking help. He maintained himself in employment. Apart from the few months that he took off work he would seem to have suffered no significant loss of time at work. I have explained why I do not accept the respondents’ contention that there was an ongoing significant loss of income. Mr Honour has maintained himself in well paid employment for a labouring man, his gross income approaching $100,000 in the year ended 30 June 2007.
[58] My conclusion is that, within the constraints of the psychiatric condition from which he was suffering, the applicant has taken all the reasonable steps that he was able to take to find out the nature of his condition and its probable impact on his employment capacity. It was only in the course of the 2008 year that he has been referred to psychiatrists and it was only in the course of this year that he has received their opinions, the latter of which is of considerable significance in assessing his future employment capacities.
[59] In my view the material fact of a decisive character upon which Mr Honour relies was not within his means of knowledge until a date within the last 12 months. The attendance on the psychologist through to late September 2007 and the beneficial effects that Mr Honour experienced as a result explained the lack of recourse to further opinion for the balance of 2007, in my view. The continuation of symptoms and the increasing realisation that working in a coal mine was not a solution to the applicant’s problems meant that at some point, acting reasonably, the applicant needed to seek more precise advice as to his employment prospects as he eventually did. It may be accepted that some further time could then reasonably elapse before the advice was obtained.[52] Whether the delay until late March 2008 can be justified is problematical but it is not necessary for me to resolve that issue. In my view it was reasonable to allow some months from 24 September 2007 (when he last saw Ms Mousett) in order to consider whether the beneficial effects of the psychological treatment were likely to be efficacious and to seek further advice.
The position of the third respondent
[60] The third respondent contends that the applicant has not shown that an action on his right of action would, apart from the effect of the expiration of the period of limitation, have a reasonable prospect of success so as to satisfy the requirements set out in s 30(1)(b)(i) of the Act. Further, the third respondent contends that if the application was granted it would be relevantly prejudiced such that the discretion should be exercised against the grant of the application.
A right of action
[61] In order to satisfy the test in s 31(2)(b) an applicant must be able to point to the existence of evidence which, it can reasonably be expected, will be available at trial and will, if unopposed by other evidence, be sufficient to prove his case: Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at pp 434-435 per Macrossan CJ.
[62] As I have mentioned, Mr Honour was employed by Faminco Mining Services Pty Ltd. His labour was on-hired to the third respondent who in turn on-hired his labour to the second respondent.
[63] Mr Harrison of counsel who appeared on behalf of the applicant based the proposed action against the third respondent on the principles explained in TNT Australia Pty Ltd v Christie & Ors [2003] NSWCA 47. In that case the services of the plaintiff worker had been hired out by his employer, an employment agency, to TNT Australia. He was assigned to work in a brewery conducted by that company. He was injured as a result of a faulty pallet jack malfunctioning and moving backwards over his foot. The Court of Appeal in New South Wales held that TNT and the plaintiff were in a position analogous to that of employer and employee giving rise to a non-delegable duty of care upon TNT. Relevant facts included that the plaintiff reported to the TNT warehouse manager, that that manager gave him his daily duties, that he had worked in the brewery for some nine months prior to the subject incident alongside four permanent employees of TNT whose duties did not differ from his. Mason P concluded in the light of these facts at [41]:
‘... It can be seen that the plaintiff and TNT placed themselves in a relationship, day in and day out, indistinguishable from that of employee and employer. I am not saying that every client of an employment bureau will assume such a relationship with a person at whose workplace he or she attends. But here the plaintiff had for months been under the daily control of TNT and its managerial staff at the brewery. He was a relatively unskilled labourer. He reported daily to the brewery and everything that he did there was done under the full control of TNT. TNT’s relationship was more than that of an occupier of the factory. In all respects relevant to the imposition of a duty of care the plaintiff was in an identical position to that of the four TNT employees with whom he worked. ...’
[64] It can be seen that the touchstone for the imposition of the relationship akin to that of employer and employee was the control that TNT exercised over the plaintiff in his day to day work.
[65] The mere fact that one might be described as a ‘host’ employer does not of itself conclude the issue. So much is clear not only from the passage that I have quoted from Mason P but also from the subsequent decisions of Samsung Electronics Australia Pty Ltd v Mecura [2005] NSWCA 386 and MA Partitioning and Ceilings Pty Ltd v Kezic [2005] NSWCA 414.
[66] The only evidence that Mr Honour gave as to the involvement of the third respondent was in the following passage:
‘When I worked onsite at Enterprise I used to take instructions either from the boss on the site for Advance Construction [i.e. the third respondent] or from representatives of the second respondent. I cannot recall the name of the boss onsite from Advance Construction. Most of the time the instructions I was given on behalf of the second respondent came from an Andy Elliott.[53]
[67] Mr Honour advances no evidence at all that the third respondent was involved in any way in the work that he was doing on the day that he was injured or had any control over the area of the mine site at which he was injured.
[68] The nature of the relationship between the applicant and the third respondent is more fully set out in the affidavit of Ms Hunt where she deposes, on information and belief, that:
(a)In January 2004 the first respondent and third respondent were in discussions relating to a takeover of the construction arm of the third respondent by the first respondent;
(b)That the project manager of the third respondent was approached by a representative of the second respondent who was looking for workers to assist in a major shut down at the Enterprise mine;
(c)That as a result of that approach the project manager informed a director of the first respondent of the second respondent’s need for workers;
(d)That the director recommended two employees of the first respondent, one of those being the applicant;
(e)That as a result the first respondent supplied the applicant to the third respondent who in turn on-supplied the applicant to the second respondent;
(f)That the applicant was registered onto the site under the third respondent’s name, it being an accredited contractor to the site but this could just as easily have been done under the first respondent’s name who was also an accredited contractor;
(g)That having been registered onto the site the applicant was under the control and supervision of the second respondent and ‘all on-site inductions would have been given to the applicant ... by the second respondent’;
(h)The third respondent worked on a different level of the mine and in a different area to that where the applicant was working under the control and supervision of the second respondent and at no time did the applicant work with the third respondent at the mine.’[54]
[69] The highest that the applicant’s case reaches is that on unidentified occasions, unrelated apparently to the subject occasion, he received directions from an unnamed person in the employ of the third respondent. Otherwise his only connection to the third respondent is that invoices passed from one company to another by which his labour was on-supplied. As Mr Holyoak put it the third respondent was a ‘mere intermediary’.
[70] Assuming that this is all that the applicant establishes at trial then in my view it would not be sufficient to prove his case. In the circumstances one of the pre-conditions essential to the discretion arising has not been met. The application should be dismissed as against the third respondent.
Prejudice
[71] In case the matter goes elsewhere I will address the question of prejudice. The third respondent submitted that it ‘still has no real idea as to the basis from which it will be alleged to have owed duty and to have reached that duty in the circumstances before the court.’[55] It was contended that the third respondent ‘does not know what witnesses it ought to proof in relation to the relevant issues of liability and what other investigations it ought undertake’.[56]
[72] The affidavit material demonstrates that a thorough investigation of the subject incident was performed by the second respondent. The investigation documents are annexed in Mr Honour’s affidavit. A number of causes for the subject incident were identified and those causes are set out in the notice of claim form served on the third respondent.[57] The analysis there seems to demonstrate that the applicant was sent into an area of the mine vulnerable to a rock slide by reason of insufficient care and attention having been given to the effect on the stability of the area by reason of the work previously performed there. No warnings were given to the applicant concerning the dangers inherent in the area.
[73] In my view it is clear enough to the third respondent what is alleged against it and what investigations it ought to perform in order to meet the case mounted. The issue it must meet include what involvement it had in that previous work, what obligation it had to assess the stability of the area, and what duty it had to warn the plaintiff about the risks.
[74] I cannot accept that there is any significant risk to the third respondent that a fair trial could not be held. Indeed the affidavit of Ms Hunt seems to suggest that the third respondent can identify its project manager and that its project manager has a very lively recollection of the employment of the applicant and a lack of involvement of the third respondent in the area where he worked.
Summary
[75] The application for the extension of the limitation period is allowed as against the first and second respondents. It is refused as against the third respondent.
[76] I will hear from counsel as to the appropriate orders required in relation to the extension application, the two remaining applications that the plaintiff has brought, and costs.
Footnotes
[1] An imprecise description but sufficient for present purposes.
[2] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at p 544 per Dawson J; p 555 per McHugh J
[3] See Exhibit CJH 8 at p 15.
[4] Cited with approval in Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306; Berg v Kruger Enterprises [1990] 1 Qd R 301; Hintz v WorkCover Qld & Anor [2007] QCA 72 at [38] – [39].
[5] Exhibit CJH 10 at p 75 of the exhibits to the affidavit of Mr Honour filed 14 May 2008.
[6] Exhibit CJH 10 at p 73 of the exhibits. It was accepted by all parties that the Notice was not accurate but it gives a rough idea of the course of employment.
[7] Corrected by a subsequent affidavit as commencing in fact in July 2004 see paras 15 and 16 of the affidavit of Mr Honour filed 21 July 2008
[8] See Exhibit 6 to the affidavit of Mr Zappert.
[9] T1-12/35
[10] T 1-6/15; 1-12/10: between Gympie and Mt Isa
[11] Exhibit CJH 7 at p 3.
[12] T1-11/5-10
[13] T1-12/5 – have a break and see the family; 1-6/1-5 refers to having holidays
[14] Affidavit of Honour at para 41.
[15] Affidavit of Honour at paras 37-40.
[16] See affidavit of Honour at paras 43-44.
[17] See affidavit of Honour at paras 45-47 and the records of the practitioner at Exhibit CJH 5.
[18] See Ms Mousett’s records - Exhibit CJH 6 to Mr Honour’s affidavit at p 26 of the exhibits.
[19] See para 60 of affidavit of Honour filed 14 May 2008.
[20] The description contained in the report of Dr James, Exhibit CJH 8 at p 7. Dr James had the benefit of Ms Mousett’s notes. I have difficulty deciphering them.
[21] Affidavit of Honour at para 50; report of Dr James, Exhibit CJH 8 at p 7.
[22] Affidavit of Honour at para 51.
[23] Report of Prof Whiteford - Exhibit CJH 7 at p 7.
[24] At [6] above
[25] Exhibit CJH 8 at p 15.
[26] Ibid
[27] Per Macrossan J in Moriarty.
[28] Affidavit Honour at para 62
[29] See affidavit Honour at p 75 of the exhibits
[30] T 1-6/24; 1-10/20-11/1; 1-12/35-55
[31] T 1-6/40
[32] T 1-14/10
[33] See the table below at [33] taken from para 15 of the second respondent’s submissions prepared by Mr Morton of counsel. $1,124 reflects the figures set out at p 104 of the exhibits to Mr Zappert’s affidavit (the second page of the tax return for 2005) but it does not bring into account deductions detailed at p 105 of the exhibits or the notice of assessment at p 123 of the exhibits.
[34] T1-16/10
[35] Affidavit of Honour at para 46.
[36] Mr Harrison’s submission mistakenly asserts at para 4.4.5 that EMDR was attempted.
[37] See para [37].
[38] See affidavit of Honour at para 68.
[39] Wood v Glaxo Australia Pty Ltd [1994] Qd R 431 at 442.
[40] [2007] QCA 364 a t[38].
[41] At [40].
[42] See ss 276, 297, 298, and ss 243, 247, 251, 259.
[43] See s 43 Personal Injuries Proceedings Act 2002.
[44] See Jocumsen v Thiess Pty Ltd [2005] QCA 198 per Williams JA at [9] and per Muir J at [45]; NF v State of Queensland [2005] QCA 110
[45] Affidavit of Honour at para 44.
[46] Affidavit of Honour Exhibit CJH 8 at p 7.
[47] See Affidavit of Honour Exhibit CJH 8 at p 14 and Appendix 3
[48] Affidavit of Honour at para 65.
[49] See Affidavit of Honour Exhibit CJH 7, report of Professor Whiteford, p 3.
[50] Affidavit of Honour at para 64.
[51] Exhibit CJH 8 at p 15.
[52] Cf Dick v University of Queensland [1999] QCA 474 at [36] per Thomas JA
[53] Affidavit of Honour filed 21 July 2008 at para 19.
[54] See affidavit of Hunt at para 10.
[55] Para 46 of the third respondent’s submissions.
[56] Para 47 of the third respondent’s submissions.
[57] See Exhibit ALH 1 to the affidavit of Ms Hunt at p 20.