Robertson v Sellin[2011] QSC 421

SUPREME COURT OF QUEENSLAND

HER HONOUR:  This is an application pursuant to sections 30 and 31 of the Limitations of Actions Act 1974 (Qld) to extend the limitation period to 3 November 2011.  The applicant is Colin Robertson who was a truck driver and the application is supported by an affidavit from himself and his solicitors, Jon Kent and Michael Fitzgibbon.

The applicant deposes that he left school at the completion of Year 9 and thereafter worked as a slaughter man, butcher,truck driver and various other unskilled or semiskilled employment.

He commenced employment with E & R Stansfield & Sons Transport (“Stansfield”) for approximately six months before the accident in which he was injured, which took place on 26 May 2007.  He worked for Stansfield as a truck driver.

His duties, he deposes, did not include any maintenance or servicing of the vehicles and he would be told by his employer which vehicle he would drive and he would then go and pick it up from a truck depot.

He deposes that he has a recollection of being contacted by someone from the Department of Transport a couple of years ago to go to court and he was subsequently contacted by another person from the Department of Transport who advised he did not have to attend court as his employer was pleading guilty.

That was the subject of cross-examination of Mr Robertson and I am satisfied on the basis of that cross-examination that is indeed what he was told.  That matter has some importance because it is relevant to the question of his state of mind about the liability of his employer for his injury.

As I mentioned, there is an affidavit from one of the solicitors acting for him, Mr Kent, which adds a little more detail to that.  Mr Kent said that on 27 October 2011 he inspected a case file in the Southport Magistrates Court relating to a prosecution by the Department of Transport of Eric John Stansfield, the director of the employer of Mr Robertson.

He had been charged pursuant to section 51(D) of the Transport Operations (Road Use Management - Vehicle Standards and Safety) Regulations 1999 (Qld) (“TORUM”) with the charge of operation of the vehicle not in a safe condition.  Mr Kent says it was revealed from his search of that file that a plea of guilty was entered by Mr Stansfield to the charge on 9 December 2008 and the file also revealed that the charge related to the vehicle driven by Mr Robertson in which he suffered the injuries in the accident the subject of the proceedings.

The solicitor annexes a verdict and judgment record which shows, indeed, that Mr Stansfield was convicted of that charge on 9 December 2008.  Counsel for the respondent endeavoured to make something of the fact that the verdict and judgment record shows that the plea entered was "not guilty" and the verdict/result is shown as found "guilty".

I have nothing before me to show whether or not that records the fact that a plea of not guilty was initially entered and that plea was changed to a plea of guilty or whether, in fact,there was a trial and a finding of guilt.  In either event, it is clear that Mr Robertson knew of the prosecution of his employer for that matter and he believed that his employer was pleading guilty and so accepting responsibility.

He, of course, as he says in his affidavit, instructed solicitors in January 2008 and he deposes that since that date they have taken whatever steps are necessary to protect his interests.

It is hardly surprising that a truck driver of limited education who was seriously injured would repose trust in his solicitors to take whatever steps were necessary to protect his interests and that shows his state of mind.

He deposes that he has been in receipt of statutory benefits from WorkCover since shortly after the accident and that his injuries still prevent him from returning to work in any of his pre-accident roles.

He gives a brief description of the accident as being that he was driving a truck on Mystery Road, Mt Tamborine, when the brakes failed and the truck crashed.  He deposes that he did not know why the brakes failed and there was no indication prior to the failure of the brakes that there was anything wrong with the vehicle.  He deposes that most maintenance of the vehicle was carried out by Mr Stansfield or his sons and gives an example of the work that they did on the vehicle.

Mr Fitzgibbon deposes in his affidavit to correspondence that he had with WorkCover.  It appears a notice of claim was first filed with WorkCover on 24 May 2010. There is a letter from WorkCover dated 26 May 2010 referring to that notice and the injuries suffered and saying that the claim fell within the ambit of the Workers' Compensation and Rehabilitation Act 2003 (Qld), and then dealing with the prelitigation steps needed to take place and difficulties with the claim prepared by the solicitor and setting out a series of steps that WorkCover required in order for them to waive compliance.

Pursuant to those requirements the applicant solicitors gave another notice to WorkCover. The response from WorkCover on 27 May 2010 was that WorkCover was satisfied with the action taken by the plaintiff to remedy the non-compliance and advice was given that the notice of claim complied with the Act.

Further information and documentation was sought about the circumstances of the event resulting in the injury and the nature of the injuries suffered.  On 1 October 2010 the solicitors for WorkCover sent a letter to the solicitors for the plaintiff which was received on 6 October 2010, pressing the solicitors’ opinion that the matter was governed by the Motor Accident Insurance Act 1994 (Qld) and that notices of contribution should be issued against the proposed defendant, the first respondent to this application and the second respondent to this application and enclosing a report prepared by the Department of Transport suggesting that, in fact, the first respondent was responsible and that the inspection conducted by the first respondent was in error.

They submitted that it was appropriate for the notice of claim, under the Workers' Compensation Rehabilitation Act to be withdrawn and a notice of claim pursuant to the Motor Accident Insurance Act be served on the CTP insurer. However, it was not until a letter dated 2 November 2010 received by the applicant's solicitor on 3 November 2010 that WorkCover informed the solicitors for the plaintiff that they would be denying liability.

The applicant submitted that the applicant's solicitors first became aware of the possible further respondent on 6 October 2010 when they received the letter to which I have referred of 1 October 2010 which enclosed the records of the Queensland Department of Transport in relation to subsequent inspections of the truck.

Notwithstanding that gave them notice of certain facts,those facts were not of a decisive character, it was submitted, until the letter was received refusing to indemnify the plaintiff for his claim on 3 November 2010.  Until that time, as can be seen by this recitation of the facts, the plaintiff was justified in believing that he had a good cause of action against WorkCover and so the facts were not of a decisive character in his mind until liability was denied by WorkCover.

The application is made pursuant to sections 30 and 31 of the Limitations of Actions Act 1974 (Qld) ("the Act") which has previously been referred to by me and many other judges as an unnecessarily complicated statutory provision. As was said in Carlowe v  Frigmobile Pty Ltd [1999] QCA 527 at [9], "That the extension provisions are complex and extremely technical and have been a fertile source of litigation has been adversely commented upon by the Queensland Law Reform Commission in the review of the Limitation of Actions Act 1974."

Those comments have been echoed in the High Court. Gummow, Hayne and Crennan JJ said in Queensland v Stephenson [2006] HCA 20 at [1], "Of the British ancestor of Part 3 [of the Act], Lord Reid observed that it had a strong claim to the distinction of being the worst drafted Act on the statute book."  It is unnecessary for me to set out in full sections 30 and 31 of the Act.

The High Court observed in Queensland v Stephenson that the test set out in the Act is a composite test of which the practical result is that,  "an applicant always has at least one year to commence proceedings from the time when his or her knowledge of material facts (as defined in s 30(1)(a)) coincides with the circumstance that a reasonable person with the applicant's knowledge would regard the facts as justifying and mandating that an action be brought in the applicant's own interests (as in s 30(1)(b)).  If this conjunction of circumstances first occurs before the commencement of the last year of the limitation period, no application for an extension could be brought; the applicant has the benefit of at least one year before the limitation period expires and is required to act within that time.  If the conjunction occurs after the commencement of that last year, the court is empowered, if the other criteria in s 31 are satisfied, to extend time for one year from the date of that conjunction of circumstances.”

What is a material fact is governed by section 30(1)(a) of the Act.  What gives material facts a decisive character is governed by section 30(1)(b) of the Act.  Material facts are taken to be of a decisive character if, but only if, a reasonable person knowing those facts and having taken the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts would regard those facts as showing 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 that the person whose means of knowledge is in question ought, in the person's own interest and taking the person's circumstances into account, to bring an action on the right of action.

In this case the material facts only attained the decisive character when the plaintiff realised that if he did not take action against the proposed respondents he had the potential of not having a successful action at all.  Prior to that he had reason to believe that he had an action which could and should be taken against WorkCover which would satisfy his claim.

As was submitted, it was reasonable for the applicant and his solicitors to take some time to determine whether the claim against the CTP insurer had a reasonable prospect of success sufficient to bring the action, when he apparently had an existing right of action against his employer.  As was submitted, it would be reasonable to interpret the solicitors’ letter of 6 October 2010 as raising a serious claim of contribution against the CTP insurer and the first respondent but not necessarily a case of excluding the applicant's claim under the Workers' Compensation Rehabilitation Act.

Notwithstanding my satisfaction that the extension sought should be granted for the reasons already given, I have a discretion to nevertheless refuse the application.There appears to me to be no seriously arguable case of prejudice to the proposed defendants and no particular case is articulated and no material read or relied upon by the respondents to suggest any such prejudice other than what might usually be expected by the effluxion of time. This is a case where the insurer has the advantage of the report prepared soon after the accident by an inspector from the Department of Transport and that matter means that the circumstances in which the injury occurred cannot seriously be in doubt.

There is no doubt that there is evidence which could reasonably be expected, if available at trial and unopposed by other evidence, to be sufficient to prove the plaintiff's case.  In all the circumstances I propose to grant the application.

...

HER HONOUR:  No order as to costs.