Morris v BHP Coal Pty Ltd[2014] QSC 96

SUPREME COURT OF QUEENSLAND

[1] McMeekin J: Bart Daniel Morris applies under s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”) to extend the limitation period applicable to proceedings he wishes to commence for damages against his employer BHP Coal Pty Ltd (“BHP”).

[2] The limitation period within which he was permitted to commence such a proceeding expired on 11 March 2014 without action being commenced.

[3] The application is a little out of the ordinary as Mr Morris had within his actual knowledge all material facts relating to his right of action well within the limitation period. Yet he did not bring his suit. BHP says that he has now lost that right.

The Incident

[4] On 11 March 2011 Mr Morris was employed as a graduate engineer. He was engaged in the task of checking and lubricating the header blocks along a boom pivot point inside a continuous miner. While attempting to obtain access to the machine Mr Morris became caught and twisted his spine in releasing himself. He had an immediate onset of pain in his lower back, buttocks and the back of his thighs.

The Requirements of the Act

[5] 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, 9 May 2013:  s 31(2)(a) of the Act (“the critical date”).  There must be a prima facie case.[1] BHP concedes that second point.

[6] 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 applicant unless there was relevant prejudice to the respondents.[2] The onus lies throughout on the applicant.

The Basis of the Application

[7] The relevant material facts are said to be contained in an advice that Mr Morris received from an orthopaedic surgeon, Dr Greg Gillett, in his report of 15 July 2013, seen by Mr Morris on 29 July 2013.

[8] There are two material facts advanced – the nature and extent of the injury sustained and the causal nexus between the ongoing disability and the incident of 11 March 2011. That there might be a doubt as to causation comes about because of the intervention of a second incident on 4 April 2012 and advice that Mr Morris received that his continuing symptoms may be due to degeneration in his spine.

[9] Dr Gillett expressed the following relevant opinions:

(a) The nature of the lower back condition was an L5/S1 disc protrusion;

(b) This condition was related to the subject incident which was the “dominant issue”;

(c) Disc pathology occurred in the presence of some minor pre existing degeneration and was aggravated by the second incident;

(d) Mr Morris presently has a 6% impairment attributed equally between the two incidents;

(e) Further treatment is self management with no place for surgery;

(f) The injuries will not impact on his future earning capacity – he will be able to work as a mechanical engineer.

[10] The facts relied on are clearly capable of being material facts going as they do to knowledge of the nature and consequences of the injury and the extent to which it was caused by the relevant act: see s 30(1)(a))(iv) and (v) of the Act.

BHP’s Case

[11] BHP argues three issues. First, that the material facts were not of a decisive character in the relevant sense: see s 30(1)(b) of the Act. Secondly, that the material facts relied on were either within Mr Morris’ actual knowledge or his means of knowledge, well prior to the critical date. Thirdly, there is relevant prejudice.

Subsequent Work and Treatment History

[12] Prior to the subject incident Mr Morris had no symptoms of any significance. He was very fit.

[13] Following the subject incident Mr Morris had three days off work utilising his sick leave to avoid any loss of income. He sought and obtained physiotherapy treatment on the day after the incident and subsequently from time to time. The costs were met by his employer. He did not attend on any medical practitioner. He thought that he had suffered a “minor work related incident” and that his symptoms would resolve.[3]

[14] Between the subject incident and the second incident Mr Morris had continuing pain and stiffness in his back. He took occasional panadol. He told a physiotherapist in March 2013 that his symptoms had resolved by 50% by the time of the second incident.[4] In his evidence he said that on reflection he thought that he had then underestimated his recovery and he thought that his symptoms had resolved by about 80%. In his affidavit Mr Morris says that the “pain did not significantly affect my ability to work or the duties that I had to perform at work.”[5] There is no evidence that they did.

[15] Following the second incident – in which Mr Morris was severely jarred when the vehicle in which he was travelling struck a pot hole - Mr Morris suffered an immediate onset of back pain and again consulted physiotherapists. He was eventually referred by them to a general practitioner. There was concern that he may have a congenital skeletal condition.[6] He was referred for X-rays and a CT scan. He was told by the general practitioner that he had degenerative changes in his spine that were advanced for his age albeit that the changes were not significant.[7] He was not referred to a specialist and was not given any significant treatment. He saw two general practitioners, the second to review the radiological reports, and on only two or three occasions in August and September 2012.

[16] Mr Morris had time off work, perhaps eight days in total, but over a period of time. Again he utilised his sick leave and so suffered no loss of income.

[17] Apart from the visits to the general practitioners, from the time of the CT scan on 23 September 2012 to the critical date (9 May 2013) Mr Morris had 23 consultations - 14 with one firm of physiotherapists, 5 with a chiropractor and four with another physiotherapist.[8]

[18] In this period Mr Morris says that his condition fluctuated. At times his back was “poorly” and he had “stiffness and some pain.”[9] At times he considered he was “improving.” He had “periods of extended relief from pain.”[10] He was able to take up running for exercise again. He says that he was “always hopeful that the pain would, like it had the year earlier, improve.”

[19] Mr Morris says that the physiotherapists he saw were generally optimistic in their advice. He was told that the “treatment received would rebalance my muscular problems and that with persistence they could bring me back to fair health.”[11] He swears that he was told by them that his condition was a temporary one which would improve with time and their treatment.

[20] The chiropractic visits commenced in January 2013. The chiropractor advised that there was a “realignment problem” and he could assist.[12]

The Obtaining of Advice

[21] On 14 October 2012 Mr Morris consulted solicitors for the first time. The consultation was prompted by his concern that he “may not return to full health,” that the problems he was experiencing “may be long term,” and that he may have to face future costs.[13] He first saw a solicitor and received advice on 22 October 2012. At the time of that interview Mr Morris believed that the subject incident had occurred in April 2011 and so about a month after it had in fact occurred.

[22] Following that interview Mr Morris was concerned about two things - the relationship between his symptoms and the two work incidents given the medical advice he had received about the degeneration in his spine; and the extent to which any rights he had should be exploited given the small amount of compensable loss that he had suffered to that time. He understood that the possibility of any future action would depend upon a medico-legal assessment.

[23] On 27 November 2012 the solicitors advised Mr Morris that they were prepared to act for him. He understood the need for a medico-legal report. Mr Morris did not instruct the solicitors to proceed until 16 February 2013. An appointment was promptly made with Dr Gillett but he could not see Mr Morris until July 2013.

[24] Mr Morris explains the delay in retaining the solicitors as being due to demands on him in his work and because he and his partner were relocating to Western Australia for him to take up new and much better paid employment.

[25] On 14 March 2014 – three days after the expiry of the limitation period - BHP advised the solicitors acting for Mr Morris that they held an incident report for 11 March 2011 and none for April 2011. Mr Morris had attempted to obtain the incident report the previous November but BHP had refused to divulge it. Until that disclosure Mr Morris had thought that the incident had occurred in the April.

[26] I turn now to the relevant issues.

Decisive Character

[27] 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.”

[28] Section 30(2) of the Act provides that in s 30 and for the purposes of s 31 “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.”

[29] 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.[14]

[30] Connolly J pointed out the converse proposition 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 ...’.

[31] What then did Mr Morris know as at 8 May 2013? Crucially he did not know of the evidence of a causal nexus between the ongoing symptoms in his back and the subject incident. That he had had symptoms to some level up and until the time of the second incident is plain. But whether the second incident overwhelmed the first, merely aggravated the first or whether he would have been in much the same condition irrespective of either occurrence because of pre-existing degeneration all required examination by an appropriately qualified medical expert.  

[32] No one suggests that Mr Morris received any opinion, let alone evidence likely to persuade a court,[15] relating his ongoing symptoms after the second incident to the subject incident. Any lawyer proficient in the field of personal injury law and so familiar with the authorities[16] would have cautioned against commencing proceedings without cogent evidence on the point. No reasonable man, appropriately advised, would have brought proceedings only on the facts already in Mr Morris’ possession. An essential link in his proof was missing.

[33] BHP seeks to meet his point by arguing that Mr Morris did not need to concern himself with issues of causation. Whatever incident was responsible for his symptoms he would succeed to damages. That followed it was said from the effect of the decisions in Watts v Rake[17] and Purkess v Crittenden.[18] That ignores the advice that Mr Morris had received about degeneration in his spine being a possible cause. But assuming that should be ignored, the contention is that a reasonable man would pursue a cause of action against his employer for injuries suffered without proof that the subject incident had in fact caused harm. It is at least a novel point to argue that proof of an essential element of the tort can be ignored and that the existence of an entirely separate cause of action justifies pursuing the subject action. Further it assumes that the second incident is actionable – a fact not shown.

[34] That is of some importance. If Mr Morris fails to establish liability in his employer for the consequences of the second accident the issue of what damage was caused in the first is all important.

[35] But I do not accept that the overall argument is right for two reasons. First, while the onus may be on the defendant to disentangle causes any person appropriately advised would give consideration to various matters before issuing proceedings, not least of which would be the costs of uselessly doing so. Secondly, the focus in this application is on this cause of action, not what might be achieved in another.

[36] As to the second of the material facts – the nature and extent of the injury sustained – the relevant issue, of course, is the quantification of damages. Essentially what is now argued is that Mr Morris did not appreciate that his condition was a permanent one.

[37] Again the issue should be addressed from the viewpoint of the facts that Mr Morris did have prior to 8 May 2013. But sight should not be lost of the causation issue – it complicates the matter.

[38] Mr Morris does not succeed on the issue merely by demonstrating that until Dr Gillett’s opinion was received he did not appreciate he had an injury to a disc in his spine with a 3% impairment under the AMA guides. If his symptoms attributable to the subject incident were at such a level that he must have known that he had a serious and disabling condition that was likely to be permanent then the precise label that medical practitioners put to the condition would hardly be decisive.

[39] The qualification that the symptoms be attributable to the subject incident is an important one. It does not follow, as was argued, that because there were symptoms continuing for over two years Mr Morris knew that the injury caused by the subject incident was a permanent one. It would at least need to be shown that Mr Morris knew that the symptoms were caused by the subject incident and not some other cause. For this reason the emphasis that BHP placed on the problems that were evident after the second incident does not advance matters greatly.

[40] BHP is critical of Mr Morris’ credibility, at least his reliability if not his honesty. I was impressed by him. BHP sought to argue that the differences in the versions to be found in certain physiotherapy records, the history given to Dr Gillett, and in his evidence justify treating his evidence with some scepticism. I did not think the differences so significant or indeed all the one way.

[41] Of importance on this issue is the degree of symptoms suffered up to the time of the second incident. In his report to physiotherapists on the day of the second incident Mr Morris is recorded as saying that he had had “couple of months of problems” following the injury of interest here.[19]  That was said 12 months after the subject incident and is the closest description in time to the event that I have found. It suggests strongly that there was a significant recovery.

[42] Mr Morris has never denied that he had some continuing symptoms up until the second incident. Whether his recovery be put at 50% or 80% - a very subjective and inherently imprecise assessment – is hardly crucial. And if there was a significant recovery then I cannot see why I should disbelieve Mr Morris when he says that his view was that the physiotherapy treatment was effective and he believed in optimistic prognostications. No evidence has been led contradicting that claim.

[43] Mr Morris said on a number of occasions that until he received Dr Gillett’s report he thought that his condition would eventually resolve, albeit that it would evidently take a longer period of time than he initially thought. There is good reason to accept that evidence. It is certainly not inherently unlikely. Experience has shown that treating practitioners are typically optimistic, taking the view that such an approach is therapeutic. There is no doubt that Mr Morris improved after the subject incident, as the physiotherapists told him he would with their treatment. The very fact that he attended on physiotherapists suggests that he saw his problem as a muscular one.

[44] BHP argues that even on his own case Mr Morris already knew that he had a long term problem. So much is true. But that long term problem, as Mr Morris understood it, was unlikely to sound significantly in damages. It is only if the problem was likely to persist over the decades that Mr Morris has any prospect of persuading a court that he should receive significant damages.  That Mr Morris was concerned that the injury was taking longer than he had expected to resolve prompted his visit to the solicitors but it does not prove that he knew the condition was a permanent one.

[45] Up until the critical date – and indeed up and until the present time - Mr Morris has suffered no loss of income. To the contrary his earnings have increased substantially. He has incurred no treatment costs of significance. To achieve damages at a significant level justifying the risks and expense of litigation Mr Morris will need to persuade a court that in the longer term his ability to maximise his income as an engineer – and at present his interest is in the mining industry – is affected by this injury. An injury that was temporary, even if the effects were likely to last a few years, would be very unlikely to result in a significant award given Mr Morris’ actual income and based on current knowledge of Mr Morris’ capacities and employability.

[46] It is not to the point that Dr Gillett has expressed the view that the injury will not have an impact on earning capacity. Dr Gillett’s opinion is not relied on to show that there is such an impact. Nor is it essential that there be such an opinion. Dr Gillett is not a practising engineer. He has not demonstrated an intimate knowledge of the insults that Mr Morris’ spine is likely to suffer through a long career as an engineer in the mining field. What assumptions he has made as to the degree of physical work undertaken by mechanical engineers is not revealed. His opinion that Mr Morris can continue to work as a mechanical engineer is not the same as saying that his income earning capacity has not been impaired and that that impairment will not be productive of financial loss over his career.

[47] Mr Morris has sworn that his capacity to carry out field work has already been impacted. He believes that he has fallen behind his peers in terms of his practical experience. And evidence is given frequently in the courts that employers favour those employees who are able and adaptable. But he has, as yet, suffered no loss. BHP points out that Mr Morris’ statement to his solicitors made in early November 2012 shows that he was very much alive to the potential impact of his continuing back problems on his earning capacity. But without evidence that his problems would be permanent no competent lawyer would advise that the prospective damages justified bringing action. The potential impact could not be shown to satisfy the second limb of the test in Graham v Baker[20] – that the impairment of the earning capacity “is or may be productive of financial loss”.

[48] Here, to adapt the words of Connolly J in Sugden, the newly discovered facts do not merely go to an enlargement of the prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the bringing of the action. Without the newly learned facts there were effectively no damages.

[49] In my view the two material facts have the necessary quality of decisiveness – without them Mr Morris could not succeed to a significant award of damages sufficient to justify incurring the risks and expense of litigation. 

[50] I turn then to the question of whether these material facts were within Mr Morris’ means of knowledge.

Means of knowledge

[51] 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.’

[52] BHP contends that had Mr Morris taken ‘all reasonable steps’ as required by s 30(1)(c)(ii) of the Act, then he would have discovered the material facts now relied upon at a time prior to 8 May 2013, if he in fact was ignorant of them. 

[53] I am satisfied that Mr Morris did not in fact know that he had a disc injury, nor did he know that whatever the nature of the injury it was permanent, nor did he have evidence that the injury whatever its nature or description, could be causally connected to the subject incident. He certainly had reason to be concerned to enquire about these matters.  And it is reasonable to argue, as BHP did, that Mr Morris’ actions in consulting solicitors in October 2012 demonstrate the existence of that concern in his mind.

[54] I note that Mr Rabey, the physiotherapist who saw Mr Morris on 16 March 2013, has recorded that Mr Morris had been told by a physiotherapist at some earlier time that his pain was “likely disc pain” but that seems to have been in relation to the second incident and appears to have been contradicted by the CT scan, at least so far as the results were conveyed to Mr Morris, and the advice of the general practitioners. Mr Rabey himself did not record a diagnosis of disc problems. His analysis was “flexion motor control impairment with fear avoidance++”.[21]

[55] This evidence does not contradict Mr Morris’ claims of his beliefs concerning the effects of the subject incident.

[56] BHP points to a questionnaire completed by Mr Morris on 13 March 2013.[22] In my view the answers given there are contradictory. In one Mr Morris circles “9” indicating that there is a “very large chance” that he will be working in his normal duties in three months. In another he circled “8” to indicate that something just short of a “very large risk” that his pain “may become persistent”. In another he circles “6” in response to a proposition: “I should not do my normal work with my present pain” – indicating a half way point between acceptance and disagreement. In my view these answers evidence increasing concern about his condition but the fact he saw solicitors five months before shows so much.

[57] The essential question then is whether Mr Morris should have consulted an orthopaedic surgeon in sufficient time to receive an opinion before 8 May 2013. That he could have done so is clear but whether he acted unreasonably in failing to do so is quite another matter.

[58] In judging reasonableness it is necessary to consider what urgency the issue had for Mr Morris. It is what was reasonable for him personally, not some hypothetical reasonable person, that needs to be assessed. The Act, in s 30(1)(c) does not speak of ‘a reasonable person’.  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.  ...’

[59] In assessing this question of “what can reasonably be expected from the actual person in the circumstances of the applicant” it needs to be borne in mind that the limitation period expired on 11 March 2014. Mr Morris mistakenly thought that he had until April 2014. The very fact that the limitation statute gives an injured person three years in which to bring action suggests that using that time to collect necessary evidence is not prima facie unreasonable.

[60] In my view consulting an orthopaedic surgeon eight months – and on his mistaken beliefs, nine months – before the limitation period expired is not, without more, acting unreasonably.

[61] There are three periods of delay – the period before he consulted solicitors, the period after he consulted them until he confirmed his instructions, and the period from then until the opinions were within his actual knowledge. The test postulated by the Court of Appeal in Healy v Femdale Pty Ltd[23] was “the extent to which [the injury] or any other facts might be thought to call for prudent enquiry to protect one's health and legal rights”.

[62] As to the first period Mr Morris’ condition plainly improved with physiotherapy in the period between the subject incident up and until the second incident in April 2012. To that point in time I can see no reason why he would have contemplated legal action or consulted medical practitioners. There was then a significant set back in April 2012 in the second incident. Six months later he attended on solicitors. That is to respond with considerable alacrity, particularly given that in the meantime he again had improved to a degree. In Femdale the focus was on a failure to ask the treating doctors for their opinions about future disability. Here Mr Morris was seeking advice. The medical advice he received was conflicting but overall was encouraging. No one suggested that he needed to see a specialist. In my view he cannot be criticised for delaying until October 2102 in first approaching solicitors.

[63] BHP argued that Mr Morris was quite capable of pursuing necessary evidence without legal assistance given his tertiary qualifications and evident intellect. That his background is relevant is clear: Castlemaine Perkins Limited v McPhee.[24]It is said that he was quite capable of asking questions and seeking medical records. No doubt he was, but the issue is whether it was reasonable for him, as his first step, to consult a solicitor. I would have thought that eminently reasonable. I note that in Randel v Brisbane City Council[25] McPherson J (as he then was) pointed out that “the conduct expected by [s 30(1)(c)] does…ordinarily extend to consulting a solicitor, keeping in touch with him, and acting according to his advice.”[26] While his Honour’s comments were directed to the facts in issue in that case, they exemplify the point that, so far as I am aware, it has never been held that to consult a solicitor to determine ones’ legal rights was an unreasonable step to take, or that self help was the preferred and reasonable course.

[64] The delay from October 2012 until February 2013 is understandable. The solicitors needed time to consider their instructions and Mr Morris needed time to weigh up his options. There was no particular urgency about the matter. Mr Morris had suffered no significant loss at all to that time.  He was contemplating suing his then employer – a major employer, if not the major employer, in the mining industry. Any person would be entitled to reflect and tread warily. It is not the policy of the law that persons should sue whenever they have an opportunity of doing so: Royal North Shore Hospital v Henderson.[27] Mr Morris was not to know at this time that when he confirmed his instructions that Dr Gillett would take four further months to see him. Nor is it shown that other competent medico-legal practitioners in that field are significantly quicker, or that it would make the slightest difference if they were.

[65] At most, the failure to confirm instructions delayed progressing his knowledge by a few months. It is not evident that Mr Morris ought to have perceived in late 2012 that clarifying these matters any earlier would potentially make any difference to his rights, or, if relevant, to the rights of the respondent.

[66] As well he had personal and professional issues to deal with. This delay was over the Christmas period and occurred at a time when Mr Morris was endeavouring to maximise his income – and so incidentally potentially reduce any damages claim – by moving to Western Australia. It was not unreasonable to put the possibility of litigation to one side for a period, as he did and for the reasons he gave.

[67] The delay thereafter is also perfectly explicable. He effectively placed himself in the hands of the solicitors from mid February 2012.  Even though Mr Morris is a tertiary trained engineer, articulate and intelligent, he still had every reason to trust that the solicitors were doing their job efficiently and well. The delay thereafter is explained by the vagaries of the system that he had engaged and with which he was, probably happily, unfamiliar.

[68] Mr Morris’ health and legal rights were not prejudiced by the delays that occurred here, either prospectively when looked at from the vantage point of October 2012, or retrospectively, looking at the issues now.

[69] The usual argument in these applications is that an injured person has delayed until after the expiration of the limitation period in obtaining crucial opinions despite suffering symptoms that manifestly called for some enquiry. Here all that is conceded – there were problems and Mr Morris eventually came to the view that he had better seek advice and did so. That advice was that he needed a medico-legal opinion and he obtained one. All was done in good time, adopting the limitation period as a guide to what is good time.

[70] In my opinion the material facts were not within Mr Morris’ means of knowledge prior to the critical date.

[71] BHP argues that there was a failure to promptly protect Mr Morris’ rights after the receipt of Dr Gillett’s opinions. That is true. But it is irrelevant under the statute, at least on this question. It may be relevant to the question of the exercise of the discretion to which I now turn.

Prejudice

[72] The argument advanced here is not that there cannot be a fair trial – it is conceded that there can be one – but that the discretion should be exercised adversely to Mr Morris because of the unexplained delay from the time that the report of Dr Gillett was obtained until the filing of this application on 23 April 2014.

[73] This should be assessed, it is submitted, against a background that Mr Morris knew there was a limitation period as did his solicitors. The solicitors were well aware that steps could be taken under the Workers’ Compensation and Rehabilitation Act 2003 to preserve Mr Morris’ rights but no step was taken until after the expiration of the limitation period.

[74] With respect this is a bold submission in the light of the events that did occur. If the argument is sound, and I do not think it is, this is a particularly poor set of facts to advance it.

[75] Before turning to the facts I will explain why I do not think the argument is sound. The relevant principles were explained in Brisbane South Regional Health Authority v Taylor.[28] Each of the justices were of the view that having satisfied the two conditions laid down in s 31(2) of the Act there was no presumptive right to an order. The applicant still bore the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour. What needed to be shown was not exhaustively explored. McHugh J, with whom Dawson J agreed, said:

“The object of the discretion, to use the words of Dixon CJ in a similar context, ‘is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.’ In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.”[29]

[76] There was nothing said by Toohey and Gummow JJ in their joint judgment, or by Kirby J in his, to suggest this is not an accurate exposition of the relevant principle.

[77] Effectively BHP argues two things – Mr Morris could have sued within the limitation period and he did not; and he had available to him alternative remedies which he failed to avail himself of.

[78] As to the first point, one of the peculiarities of this legislation is that it clearly contemplates permitting proceedings to be brought even though all material facts are known within the limitation period.  The material fact must not be within the applicant’s means of knowledge until “a date after the commencement of the year last preceding the expiration of the period of limitation for the action.”[30]

[79] This feature is not unique to this case. I can recall having been involved in successful applications as counsel bearing this aspect. The legislation does not provide, as it could have, that the material fact of a decisive character must come within the applicant’s means of knowledge only after the expiration of the limitation period. So the argument amounts to a complaint that Mr Morris seeks to take advantage of an express entitlement in the legislation. It is without merit.

[80] As to the second point, it is irrelevant in my view that the law provides alternative remedies. Given that the legislature has not seen fit to exclude recourse to the Act in proceedings governed by the Workers’ Compensation and Rehabilitation Act 2003 (Qld), the inescapable implication is that the legislature intended that the alternative remedies be available.

[81] The search is for relevant facts and circumstances that would make it unfair or unjust to permit a trial of the proceedings. What fact or circumstance might show such unfairness or injustice cannot be stated in the abstract. But it seems to me that a failure to avail one self of those alternative remedies simply cannot be seen as a relevant circumstance of prejudice or unfairness.

[82] What might be relevant would be informed by the reasons for the existence of the limitation period. McHugh J examined the rationale for limitation periods in Taylor and concluded:

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:

‘The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.’

Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”[31]

[83] The shortness of the delay precludes any rational argument that any of those four matters are engaged here.

[84] Kirby J pointed out, after recitation of authority, that “once the preconditions are made out, the positive burden on the applicant would not be one of any great severity. But if, weighing the countervailing evidence, the judge is uncertain or unconvinced that the provision of an extension would be just, it should be refused.”[32]

[85] Here there is no countervailing evidence. There is complaint about the delay being unexplained but without complaint of any accompanying prejudice. In Mr Morris’ favour is the concession that, prima facie, he has a good cause of action, one which the law therefore says merits compensation. Another feature is that given his very substantial earning capacity he may be entitled to significant damages if it has been impaired. While determination of each of these points is for another time refusal of his application could mean the loss of a potentially valuable chose in action. Every case of this type which reaches this point shares these considerations – no doubt that is why the burden is of no great severity. But there are other considerations. The delay is short. The application to extend time was brought only 33 days after the expiration of the limitation period. A fair trial can be had. There is nothing that suggests any reason to decline the exercise of the discretion. To the contrary there is a circumstance that excites sympathy and suggests that the extension should be granted.

[86] I mentioned that this is a poor vehicle for BHP to argue the questions it has raised. That is so because BHP has itself contributed to Mr Morris failing to bring action within time.

[87] It will be recalled that Mr Morris had told the solicitors, mistakenly, that the incident occurred in April 2011. Mr Morris was aware that he did not have the precise date of the injury but was confident of the month. In November 2012 he sought from BHP a copy of the incident report that he had lodged. BHP refused to disclose it. No reason has been advanced why Mr Morris was denied access to the document. Had it been forthcoming there is no doubt, given what did happen, that the solicitors would have been aware of the correct date and proceedings would have been launched in a timely way.

[88] The affidavit material discloses that in March 2014 the solicitors were conscious of the imminent expiry of the limitation period. On 12 March 2014 they emailed Mr Morris to advise that they proposed issuing a Notice of Claim for damages. Service of the Notice would have stopped time running. Unfortunately for Mr Morris they were already one day late. In response presumably to that Notice, or advice that the Notice was coming, BHP’s solicitors advised on 14 March 2014 that they had an incident report of 11 March 2011 but not one for April.

[89] So BHP’s argument amounts to this: We are under no duty to supply our documents to our employees upon request. There was a timely request here. Had we complied, and there was no good reason for us not to comply save that we insisted on our rights, our employee would have brought his action in time. Because of our actions he did not realise his limitation period was about to and did expire. He therefore took no timely action to preserve his rights. We are therefore prejudiced if the application be allowed.

[90] The conclusion does not follow and is, in any case, an extremely unattractive proposition.

[91] In my view Mr Morris has discharged that positive burden of no great severity that Kirby J referred to.

Summary

[92] The application for the extension of the limitation period is allowed.

[93] Mr Morris also seeks an orderpursuant to section 298 of the WCRA that he be given leave to bring proceedings despite non-compliance with the requirements of section 275 of that Act. That order is unopposed.

[94] I will hear from counsel as to costs.