Thompson v DP World Australia
[2011] QSC 406
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- Notable Unreported Decision
- Thompson v DP World Australia[2011] QSC 406
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Thompson v DP World Australia[2011] QSC 406
Thompson v DP World Australia[2011] QSC 406
SUPREME COURT OF QUEENSLAND
CITATION: | Thompson v DP World Australia [2011] QSC 406 |
PARTIES: | DARRELL BRUCE THOMPSON |
FILE NO/S: | 8767/10 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 19 December 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 December 2011 |
JUDGE: | Ann Lyons J |
ORDER: |
|
CATCHWORDS: | Limitation of actions – Extension or postponement of limitation periods – Extension of time in personal injuries matters – Knowledge of material facts of decisive character – Knowledge – Other matters – Where applicant has returned to work – Where applicant considered that they had recovered – where applicant believes they were able to maintain employment Limitation of actions – Extension or postponement of limitation periods – Extension of time in personal injuries matters – Knowledge of material facts of decisive character – What are material facts – Whether the respondent owed a non-delegable duty – Whether an employer had exclusive responsibility for the safety of appliances, premises and systems of work. Limitation of Actions Act 1974, 30(1)(a)(i), s 31(2) Workplace Health and Safety Regulation 1997, s 28, s 213-s 217E Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219, Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, Leichhardt MC v Montgomery [2007] HCA 6, Moriarty v Sunbeam Corporation Limited [1988] 2Qd R 325 New South Wales v Lepore (2003) 212 CLR 511, State of Queensland v Stephenson [2006] HCA 20, Stevens v Brodribb Sawmilling Co P/L (1986) 160 CLR 16, TNT Australia Pty Ltd v Christie [2003] NSWCA 47 (12 March 2003); [2003] 65 NSWLR 1, Wood v Glaxo Australia Pty Ltd (1994) 2 Qd R 431 |
COUNSEL: | G R Mullins for the plaintiff/applicant A S Mellick for the defendant/respondent |
SOLICITORS: | Maurice Blackburn for the plaintiff/applicant Bruce Thomas Lawyers for the defendant/respondent |
The proceedings
- Darrell Thompson (the applicant) is currently 54 years of age. He was employed by DP World Australia (the defendant) from 1996 until 2008 as a stevedore. On 15 February 2001, a plumber working for an independent contractor, Astrum Pty Ltd, fell from the roof of a shed at the defendant’s premises. The plumber was not wearing a lanyard and the roof was not secured by scaffolding at the time. The applicant performed CPR on the deceased until ambulance assistance arrived. The plumber died in the presence of the applicant. The applicant did not have any time off work and continued to work for the defendant company.
- Pursuant to an application filed on 19 October 2011 the applicant now seeks orders pursuant to s 31(2) of the Limitation of Actions Act 1974 that the time for the commencement of proceedings by the plaintiff (the applicant) be extended to 15 October 2009 or 26 May 2009 when compliance was granted by WorkCover. A Claim and Statement of Claim were filed in the Supreme Court on 18 August 2010 with an Amended Claim and Statement of Claim filed on 15 September 2010. The defendant filed a Notice of Intention to Defend and Defence on 14 October 2010.
- On 5 November 2010 the defendant issued third party proceedings against Astrum Pty Ltd (trading as Morcom Plumbing), Austral Asia Pty Ltd and MS “San Pedro” Sschifffahrtsgesellschaft mbH & Co KG.
Factual Background
- After the accident in February 2001 and during 2002 the applicant developed a number of symptoms including insomnia, depression, loss of concentration, fatigue, constant pacing, loss of sexual function, fear of working at heights, as well as irritability and aggression. He did not however undergo any treatment at that time and he continued to work.
- On 16 October 2005 whilst working as a stevedore for the respondent company the applicant witnessed a Filipino seaman employed on a container ship fall from the top of a container, a distance of approximately 7 metres. He was seriously injured and covered in blood. A fellow employee of the seaman passed the injured workman to the applicant who assisted in treatment. The applicant was covered in blood during the process.
- After this incident the applicant received treatment and had a period of time off work. In late October 2005, the applicant saw his general practitioner and he was also referred to a psychologist and psychiatrist. He received treatment from Dr Janis Carter in November, December 2005 and February 2006. He also received treatment from a psychologist, Dr Patricia O'Rourke. On 3 January 2006, Dr Carter indicated that the applicant was capable of returning to work and on 30 March 2006 he returned to work pursuant to a return to work program. By mid 2006, as his symptoms were under control, he ceased medication.
- In May 2006 he sought advice from Maurice Blackburn Lawyers in respect of a potential claim for damages for personal injury. On 9 October 2006 the applicant was given advice by Maurice Blackburn Lawyers that it would not be economically viable for claims to be made in relation to his condition as he had not sustained any significant economic loss as he had continued in employment.
- On 15 October 2008 the applicant was driving home after completing a midnight shift and fell asleep at the wheel. The applicant expressed concerns about his health and attended upon his general practitioner. He was placed on workers’ compensation payments and was prescribed medication. He returned to the psychologist, Patricia O'Rourke, who advised that he should not return to work with the defendant company as it would exacerbate his condition.
- On 22 May 2009 a notice of claim for damages for WorkCover in respect of both incidents was served. Compliance was granted on 26 May 2009.
The Legislation
“Limitation of Actions Act
31 Ordinary actions
…
(2)Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—
(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
Was a material fact of a decisive character within his means of knowledge?
- It is clear that an applicant has at least one year to commence proceedings from the time when his or her knowledge of the material facts coincides with the circumstances that a reasonable person with the applicant’s knowledge would regard those facts as justifying and indicating that an action be brought in his own interests. The legislation requires a ‘step by step’ approach in order to ascertain whether the facts of which the applicant was unaware were material facts and then to ascertain if they were of a decisive character. If that is satisfactorily established then the next step is to ascertain if those facts were within the means of knowledge of the applicant before the specified date. Accordingly in order to enliven the discretion to extend the limitation period, as set out in the section above an applicant must establish:
- 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;
- that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; and
- that the fact in question was not within the means of knowledge of the knowledge in that the person did not know the fact at the time and as far as the fact was able to be found out by the person, the person has taken all reasonable steps to find out the fact before that time.
- Section 30(1)(a)(i) of the Limitation of Actions Act provides that a material fact relating to a right of action includes “the fact of the occurrence of negligence, …or breach of duty on which the right of action is founded”.
- In State of Queensland v Stephenson[1] the majority of the High Court explained the operation of the provision in the following terms.
“21At what the particular applicant puts forward as the relevant date, a certain fact must not have been "within the means of knowledge of the applicant" (s 31(2)(a)). A fact is not within the means of knowledge of the applicant if ("but only if") the applicant did not know it and in so far as the fact was "able to be found out" by the applicant, the applicant had taken all reasonable steps to find it out. This reading of par (a) of s 31(2) follows from the exegesis provided in par (c) of s 30(1). The fact which is identified must answer the description in par (a) of s 31(2) "a material fact of a decisive character relating to the right of action". It is a fact of this particular quality which, until the relevant date, must not have been within the means of knowledge of the applicant. What must not have been within the means of knowledge of the applicant until the relevant date is not merely a material fact relating to the right of action in question. The material fact must be "of a decisive character". The provision is so drawn as to assume that there may be material facts which are not of a decisive character.”
- What makes a material fact a material fact of a decisive character? In Moriarty v Sunbeam Corporation Limited[2] Macrossan J held:
“In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt 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.”
- There is no doubt therefore that material facts of a decisive character can include the discovery that the applicant’s condition is much worse than initially considered, including the fact that the applicant’s capacity to carry out employment might be significantly affected. This was discussed in the decision of Byers v Capricorn Coal Management Pty Ltd[3] by Lee J, who stated that:
“It is also clear that at all times prior to 25 July 1987 the respondent had been told that the injury in question was a muscular type strain that would probably clear up and so allow him to continue in his fairly highly paid job. The respondent’s conduct in persevering with his work over this period in spite of pain indicates that he relied and acted upon this information.
This case differs from those where there has been a long period off work since the accident where a substantial award for past and future economic loss was always likely. It is also distinguishable from the facts in Berg v. Kruger Enterprises. Applying the principle in Sugden v. Crawford [1989] 1 Qd.R. 683, as counsel for the respondent submitted, the newly discovered fact transformed the case into one where a substantial award of damages was then likely.”
- I consider that the evidence indicates that prior to 15 October 2008, whilst the applicant knew that he had suffered from post traumatic stress disorder and that he required treatment, he considered he had largely recovered. Such an inference is clearly open given he continued to work between 2001 and 2005 and then after witnessing the further accident in October 2005 he returned to work by 30 March 2006 and continued to work for another two and a half years.
- Furthermore, whilst he had some time away from work after the workplace accident in 2005, his economic loss was minimal as he had received statutory payments from WorkCover for lost wages and medical expenses and had returned to work. In addition he had been advised at the time of the 2005 injury that he was capable of returning to fulltime duties and he had successfully done so.
- Accordingly, there was no indication that he would suffer a substantial loss of income. Indeed he had a written advice from his lawyers dated 9 May 2006, which is in evidence, which clearly contained the following advice:
“You have only recently returned to work, and are attempting to resume your normal duties. If it transpires that your condition improves such that you are able to maintain full time work, then it may be that the costs and associated stresses of pursuing such a claim will outweigh the compensation to be gained (as your economic loss would be minimal)”
- There is no doubt he believed he was “able to maintain full time work” and he in fact continued working fulltime until October 2008. Therefore, before October 2008, it could not be said that the applicant had a worthwhile action that was economically viable to pursue. Rather, without the newly discovered fact that he could no longer work, the amount to be recovered clearly would have been too small to pursue.
- The applicant’s evidence is that he was not advised by a medical practitioner or a health specialist at any time prior to 15 October 2008 that he may not be able to return to his employment. The medical advice that he could not return to work was not given until after the incident on 15 October 2008 when he was driving home from work after completing his midnight shift. It would seem clear that he had been advised by the psychologist Dr O'Rourke at that time that he should not return to work with the defendant as it would exacerbate his condition.
- The current evidence before me is that there was no indication that his condition was such that he would have to cease work until October 2008.
- In the present circumstances I consider that the material fact of a decisive character was the applicant’s discovery that he would be unable to return to work as a consequence of his injury soon after 15 October 2008.
- I accept therefore that a material fact of a decisive character relating to the applicant’s 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.
- The applicant has therefore satisfied me of the first of the requirements that he is required to establish. The next question is whether the applicant has established a prima facie case.
Liability and Quantum
- An application for extension of the limitation period must establish a prima facie case or, more precisely, “evidence to establish a right of action”. Counsel for the first defendant argues that the plaintiff has not adequately pleaded his case against the defendant and has not in fact established a prima facie case against the defendant.
- The applicant submits however that there is evidence to support a case of breach of duty by the first defendant, namely DP World Australia, in respect of the injury of 15 February 2001. There is no doubt that the event occurred at the defendant’s premises. The plumber who fell from the roof of the shed was not employed by the defendant company. The plumbers were employed by an independent contractor. He was however doing work on one of the defendant’s sheds and was visibly working without any safety equipment or structure given the applicant observed him on the roof from some distance away.
- Counsel for applicant submits that the obligation of the defendant to provide the plaintiff with a safe system of work was not delegable. It was clear that the deceased plumber was carrying out work on a roof at least 12 metres above the ground without being attached to either a lanyard or protected by scaffolding and it is submitted that this was clearly an unsafe system of work. In this regard Counsel has made reference to the Workplace Health and Safety Regulation 1997 and in particular s 156 which defines the meaning of high risk construction activity. That section included within that definition any activity that involved a risk that a person could fall at least 2 metres. There is an argument therefore that the activity which the plumber was engaged in was a high risk construction activity which would have brought with it corresponding duties.
- Counsel for the applicant also refers to sections 213-214 and 216-217E of the regulation. Section 215 refers the requirement that ‘a relevant person’ who intends to do the construction work must, before the work starts, use control measures to prevent the person falling any distance; or if prevention is not practicable, to arrest the person’s fall; and to prevent or minimise the risk of death or injury to the person when the fall is arrested. Various control measures such as edge protection, fall protection covers, travel restraint systems, fall arresting platforms, fall arrest harness systems are referred to. Clearly the argument will involve submissions as to who was ‘a relevant person’ in the factual circumstances of this case. Section 28 refers to a relevant person in the following terms:
“28 Obligations of persons conducting business or undertaking
(1) A person (the relevant person) who conducts a business or undertaking has an obligation to ensure the workplace health and safety of the person, each of the person’s workers and any other persons is not affected by the conduct of the relevant person’s business or undertaking.”
- It is also argued that the provision of a safe system of work for the applicant extended to the provision of a safe system of work for all workers on the premises so that employees were not exposed to the consequences of a catastrophic event. There is some indication that the plumbers were working in close association with the applicant as the Report of Dr Cantor dated 27 January 2010 indicates that the plumbers were replacing the roof of the shed and that the applicant’s “work crew were repairing a section of the wall”.
- It is further argued that Astrum, who employed the plumbers, also owed a duty to the applicant to provide a safe system of work in respect of its employees and that a parallel duty would be owed to employees of the defendant working at the premises. It is argued by the applicant that the content of the duty to provide a safe system of work included an obligation to provide such a system of work. In this regard, reliance is placed on the decision of TNT Australia Pty Ltd v Christie[4] where Mason P stated:
“Employment is not the only circumstance that can generate a stringent duty of care in relation to a safe system of work. In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, the sawmilling company that coordinated logging operations using, in the main, independent contractors was found to have owed a general common law duty of care to a trucker who was one of those contractors, although it was absolved of breach of that duty. In a passage with which the whole Court agreed, Mason J said (at 31):
‘The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to coordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system’.”
- Apart from references to the workplace regulations, which will be the subject of argument, I accept that there is no actual evidence currently before me, that the plumber’s employer should have taken control measures such as requiring the deceased to wear a lanyard or construct scaffolding. There are also questions as to whether the defendant was aware that the deceased and his fellow employees were not wearing lanyards. I also note that the allegations of negligence are a failure to control and direct the independent contractor. The allegation is essentially that the stevedoring company engaged the independent plumbing contractor to perform roofing work but that it should have controlled and directed the plumbing contractor and that by its failure to do so it caused the death of the deceased and the psychiatric injury to the plaintiff. The extent of the defendant’s duty of care will clearly be very much in issue.
- The applicant relies on the views of Callinan J in Leichhardt MC v Montgomery[5] who stated:
“Enough has been said, I think, to question whether there has ever been an entirely sound basis for a principle of non-delegability, or a principle of non-delegability as far reaching as, or of the kind, to which Halsbury, and some of the cases referred to and upon which the Court of Appeal relied here and earlier.
In any event, recent authority of this Court leans strongly against nondelegability and absolute liability in tort cases. Northern Sandblasting Pty Ltd v Harris, which might suggest otherwise, has almost certainly been at least impliedly overruled by Jones v Bartlett, and Soblusky v Egan, which appeared to impose, by means of a special and oppressive form of vicarious liability, non-delegability in substance, has at least to be doubted as a result of the reasoning of this Court in Scott v Davis.”
- In this regard questions such as those raised by Gleeson CJ in New South Wales v Lepore[6] will also be relevant at trial:
“The proposition that, because a school authority’s duty of care to a pupil is non-delegable, the authority is liable for any injury, accidental or intentional, inflicted at school upon a pupil by a teacher, is too broad, and the responsibility with which it fixes school authorities is too demanding.”
His Honour continued that when the classes of cases in which the existence of a non-delegable duty has been recognized, it appears that there is some element in the relationship between the parties that makes it appropriate to impose a duty to ensure that reasonable care and skill is taken for the safety of another's person or property.
- Whilst Counsel for the applicant must be able to point to a prima facie case it is clear that at this stage of the inquiry a detailed analysis in relation to this issue will not be undertaken otherwise it would indeed mean that the applicant would have to demonstrate an entitlement to recover damages on two occasions, first on the hearing of the application for leave and once more at the trial.
- In Wood v Glaxo Australia Pty Ltd[7] Macrossan CJ discussed the nature of the inquiry which needs to be made:
“If a general observation is permissible at this point it can be said that applicants for extension of limitation periods are not intended by legislation to be placed in the position where they must establish an entitlement to recover on two occasions, first on the hearing of the application and once more at the trial of the action. Although the requirements of the legislation must be complied with if an extension is to be granted, the extent to which an applicant must show a case on the hearing of the application to extend time will frequently depend on the impression on the judge’s mind of the material which the applicant presents or the existence of which he demonstrates or points to. It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions.
A judge may harbour a feeling that there is a strong chance that particular applicants will fail at trial but, in my opinion, he should not act on the basis of this impression both because that is a question reserved for another occasion and because he cannot know and should not insist on being able to see in all of its ramifications the full strength of the case which will eventually be presented at trial.”
- His Honour also indicated that in determining whether leave should be granted the nature of the inquiry in relation liability issues did not require the evidence to be examined in any great detail:
“The evidence need not at the stage at which the application is brought be in a form which would be admissible at trial and it may indeed be hearsay. It will not be possible to predict whether the plaintiff’s evidence will prevail at trial when it will be subjected to challenge and forced to confront the opposing evidence of the defendant, but it is probably accurate enough to say that an applicant will meet the requirement imposed by s 31(2)(b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case.”
- In Agar v Hyde[8] the Court held that the claims by an injured rugby player against sporting administrators were bound to fail. In that case there was no existing category of case in which a duty of care had been held to exist and that was considered to be significant but “not determinative”.[9] Gaudron J discussed the difficulties of determining whether a claim is bound to fail in the following terms:[10]
“It may be difficult for a court to say from the pleadings that a claim by a plaintiff that the defendant is liable in negligence is bound to fail because it is not arguable that the defendant owed the plaintiff a duty of care. Such cases do arise. In Esanda Finance Corporation Ltd v Peat Marwick Hungerfords, this Court held that the statement of claim did not disclose a cause of action in negligence against the defendant auditors. In Mutual Life & Citizens' Assurance Co Ltd v Evatt, the Privy Council held that the declaration in that case was demurrable because it did not describe a relationship which imposed upon the defendants a duty of care in giving advice to the plaintiff. However, as Barwick CJ observed in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd:
‘[In] fact pleading as it was introduced in the judicature system, there is no necessity to assert or identify a legal category of action or suit which the facts asserted may illustrate, involve or demonstrate and on which the particular relief claimed is based or to which it is relevant.’
The result is that frequently the conventional form of pleading in an action of negligence will not reveal the alleged duty with sufficient clarity for a court considering an application for summary termination of the proceeding to be sure that all of the possible nuances of the plaintiff's case are revealed by the pleading. Further, and no less importantly, any finding about duty of care will often depend upon the evidence which is given at trial. Questions of reliance or knowledge of risk are two obvious examples of the kinds of question in which the evidence given at trial may take on considerable importance in determining whether a defendant owed the plaintiff a duty of care.”
- In the present case I am similarly not satisfied that all the nuances of the plaintiff’s case have been revealed by the pleading and I consider that the plaintiffs case will very much depend on the actual detail of the circumstances surrounding the event in 2001. Were the applicant’s work crew working nearby or was the applicant making a social call on the plumbers? Of particular significance will be the relationship between the two gangs of workers and the nature of the interrelationship between them as well as the knowledge of the employer in this regard.
- There will clearly be an argument at trial as to whether the defendant owed a non-delegable duty. It is argued by the applicant that a non-delegable duty of care is a duty to ensure that reasonable care is taken and that, in relation to an employer, it has exclusive responsibility for the safety of the appliances, the premises and the system of work to which it subjects an employee. The applicant argues that the employee has no choice but to accept what is provided. The issues at trial will be whether the contractor was engaged to provide appliances, premises or a system of work with which or in which the plaintiff had to work. Those issues however are issues for the trial.
- I am therefore satisfied that for the purposes of this application the applicant has established a prima facie case.
Is the defendant prejudiced so that a fair trial cannot be conducted?
- The material which has been filed in support of this application clearly indicates that there are extensive contemporaneous reports in relation to both incidents. The first incident in 2001 resulted in a coronial inquiry. Similarly the serious workplace accident in 2005 was also the subject of extensive investigations.
- I do not consider that there is any evidence that given the extensive nature of that background material which is currently to hand that the defendant would be prejudiced.
Orders
- That the time for commencement of proceedings claiming damages for personal injuries by the Plaintiff in this action be extended to 15 October 2009 pursuant to s 31(2) of the Limitation of Actions Act 1974; and
- The costs of the application are costs in the cause.