Limitation application: means of knowledge for known back injury & prejudice

Ballingall v WorkCover Queensland & Ors [2017] QSC 133

The application came before McMeekin J arising out of an incident on 20 June 2013 from a back injury alleged to have been sustained from being violently thrown about in a drift runner (a vehicle used in underground coal mines).

The applicant Mr Ballingall alleged he sustained a back injury as a passenger in a drift runner driven along a road in the Crinum Underground Coal Mine. His claim was out of time by 6 months from the date of compliance, but Mr Ballingall was successful in extending the limitation period on the primary date, despite arguments that Mr Ballingall knew of the injury and the prejudice claimed by the respondents, especially since the employer’s liquidation.

The second respondent was Mr Ballingall’s employer and in liquidation. Hence, the first respondent was named as a party being the statutory workers’ compensation insurer. The third respondent was the party responsible for the state of the roadway in the mine, which Mr Ballingall blamed for his injuries.

The application was premised on the relevant material fact of a decisive character being Mr Ballingall “became possessed of knowledge of circumstances relating to his injury that might result in an award of damages sufficient to justify the bringing of the claim”.  Mr Ballingall submitted that it was only after he sought legal advice on 24 November 2016 did he appreciate that the on-going effects of the injury would interfere with his employment and make his claim worthwhile.

There was no dispute Mr Ballingall sustained a back injury, having attended upon Dr Maree, a general practitioner on 25 June 2013. He had a CT scan and was advised that he had a bulging disc. Mr Ballingall applied for and received workers’ compensation benefits.

McMeekin J was satisfied that the threshold test of a right of action would be made out under the test in Wood v Glaxo Australia Pty Ltd [1993] QCA 114[1994] 2 Qd R 431 at pp 434-435 per Macrossan CJ. His Honour was satisfied based on the evidence of Mr Ballingall that he was injured when “he was tossed up in his seat so forcefully as to strike the hood of the vehicle and then land heavily back in his seat”; the evidence of Mr McDougall an engineer specialising in workplace safety that this was a known risk and could be prevented; together with the evidence of witnesses as to the condition of the roadway.

The next issue his Honour needed to be satisfied with was the decisive character of the material fact under s. s 30 and s 31 of the Limitation of Actions Act 1974 (the Act). His Honour considered the authorities of State of Queensland v Stephenson [2006] HCA 20(2006) 226 CLR 197 at 206-208; 227 ALR 17[2006] HCA 20 at [22]– [30]; Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 per Macrossan J at p 333[4]; and Connolly J in Sugden v Crawford [1989] 1 Qd R 683 at p 685.

After reviewing the medical evidence McMeekin J concluded that Mr Ballingall appreciated his symptoms, including the reoccurrence in 2015 were related to the incident, but the key issue was whether it informed Mr Ballingall as to his future employment prospects. If it did not, then it would not be worthwhile because McMeekin J accepted litigation is expensive which was supported by the evidence of his solicitor that legal costs would exceed $40,000 to the compulsory conference stage.

Hence, it turned as to Mr Ballingall’s means of knowledge (s.30(1)(c) of the Act) and taking all reasonable steps to ascertain it.  His Honour applied Keane JA (as his Honour then was) in NF v State of Queensland [2005] QCA 110 at [29] as the appropriate test.

The respondents submitted that on the reoccurrence in 2015, Mr Ballingall ought to have sought advice. His Honour considered Healy v Femdale Pty Ltd [1993] QCA 210 and found in the absence of ongoing symptomology or interference with Mr Ballingall’s work meant that it was reasonable he did not seek advice.

McMeekin J considered the earliest point in time the means of knowledge crystallised was around when Mr Ballingall gave up his employment on 17 January 2016. Critically, his Honour found that in 40 years of practice he had not seen a claim for damages for a significant back injury to be based on a general practitioners’ opinion, but rather specialists. Applying  Dick v University of Queensland per Thomas JA [1999] QCA 474[2000] 2 Qd R 476, 488 [35], McMeekin J considered that a period of at least 6 weeks and probably longer (holiday period) would be have been necessary to seek specialist opinion, taking it past the limitation period.

His Honour found:

[53] All that assumes a need to seek advice from the time he gave up his employment. The respondents argue that Mr Ballingall should have acted even sooner. I think that sets the bar too high. True, his symptoms were returning in December 2015 but he could maintain his employment, he had had no time off, he sought no treatment and evidently Mr Ballingall was expecting that with rest, his symptoms would improve. After all, they had before. He attempted to return to work but found it too much in January. Even then he hoped that a three month rest would be sufficient. It is not shown that his view was unreasonable. Had his symptoms not then improved then it would have been reasonable to act. As it happens his symptoms did improve. In about May 2016 his symptoms worsened. In my judgment, it was then that a reasonable person should have gone about finding out what the future held.

The last hurdle was prejudice in being able to hold a fair trial as explained in Brisbane South Regional Health Authority v Taylor [1996] HCA 25(1996) 186 CLR 541; NF v State of Queensland [2005] QCA 110 Keane JA (as his Honour then was) and the analysis of Beazley JA in Sauer v Allianz Australia Insurance Limited [2006] NSWCA 364 at [14] to [24].

His Honour noted from the authority of Brisbane South that the evidence:

“…must show that there is “significant prejudice” (per Dawson J at p 544) or “actual prejudice of a significant kind” (per McHugh J at p 555). That approach seems to me consistent as well with the view of Toohey and Gummow JJ and their identification of the crucial question as “whether the delay has made the chances of a fair trial unlikely” (at p 550).”

The objections to a fair trial by the respondents were not identical and included:

(a) The second respondent is in liquidation.

(b) The sole director of that company says that he has limited recollection of events. He cannot identify the driver of the vehicle or the other passengers in the drift runner.

(c) There are records that show the applicant has said that he was the driver and the record takers cannot be called;

(d) If the driver is not the applicant and could be identified then it may have been possible to bring contribution proceedings against him. That is not now possible. He may have been insured;

(e) The road is not able to be inspected now. The precise area of the road is not identified by the applicant;

(f) A critical issue at trial will concern the existence of any pre-existing condition of the applicant’s spine. A first aid officer and a general practitioner (a Dr Gert Maree) have each recorded the applicant as giving a history of symptoms in the spine pre-dating the subject incident. The identity of the first aid officer is unknown and cannot be established and the general practitioner has left Australia and his whereabouts are presently unknown.

His Honour was not satisfied prejudice was established because the respondents had not asked potential witnesses relevant questions. His Honour noted that prejudice is not shown by the absence to discover what the witnesses would say.

His Honour was satisfied in respect of the relevant witnesses, such as the driver of the drift runner, that there were reasonable prospects he would be located.

As to certain documents, his Honour noted the difficulties encountered would have been encountered in any event because access by the person who searched the documents was not authorised. His Honour noted the issue about incremental prejudice (over time), but it was not a factor. In relation to documents alleged to have been handed over to the liquidator, which the liquidator reported they did not have, his Honour was not satisfied with the explanation of where they went, were stored or the steps taken to preserve them.

As to the mechanical features, such as the condition of the seats in the drift runner, his Honour observed there was no evidence that checks were carried out and if so, what the condition would have been.

While his Honoured found, there was no evidence of the precise section of the roadway where the incident occurred, there was evidence the roadway was not long and was regularly traversed on a daily basis. Hence there would be available a significant number of witnesses who could address the question of the condition of the roadway.

His Honour was not prepared to draw the inference that any prejudice was simply caused by delay, without cogent explanation.

The respondents further alleged prejudiced because of the allegation that Mr Ballingall was not a passenger, but the driver. For this, support was found in the first aid records and Dr Maree’s.

Similar observations were made by his Honour of the first aid personnel, namely little had been done to identify or locate them. As to Dr Maree who had left Australia, his Honour noted apart from tendering the recordings under s 92 of the Evidence Act 1977 that the accuracy of doctors notes about matters not relevant to health care, are matters which doctors concede mistakes can easily occur. His Honour made the point that the evidence of Mr Ballingall’s colleagues in the drift runner putting Mr Ballingall as the passenger were not contradicted and so the actual prejudice of the Dr Maree not being available was less cogent.

The more important point to his Honour’s mind about the absence of Dr Maree related to the prior complaints by Mr Ballingall to Dr Maree. His Honour noted that the prior complaints were not limited to Dr Maree, but other practitioners who could be called. Furthermore, his Honour observed Mr Ballingall did not deny the prior complaints but considered these matters to be symptoms of tension and muscle strain. His Honour observed that specialists far more skilled than a general practitioner would be likely to be called to give evidence and provide an opinion about the prior complaints, which would impact on the issue.

Considering these matters, McMeekin J was of the view a fair trial could be held.

David Cormack – Brisbane Barrister & Mediator

 

Related Posts

Recent Comments

    Categories