Baillie v Creber & Anor [2010] QSC 52

I refer to my earlier posting and the discussion of Gillespie v Swift Australia P/L [2009] QCA 316 and NF v State of Qld [2005] QCA 110, together with the posting on Spain v Dipompo Jacs Constructions P/L & Anor [2009] QCA 323 .

His Honour McMeekin J in rejecting the application reviewed the above decisions, together with:

His Honour notes the test for a prima facie case in respect of liability for work related accidents is not demanding:

[19] The applicant says that the frame became unbalanced, exposing him to injury because there was no proper work system in place. There had been no risk assessment performed, he had received no instructions, had no supervision or assistance, and the consequence of the welding operation was to create what he called “swarf balls” which had the potential to destabilise the frame when placed on the trestles.

[20] There is some force in the respondents’ argument that the risk could easily have been avoided by the use of the crane that was available rather than the applicant man handling it, as he said he did, and that such a response was self evident. The crane had been used by the applicant a short time before to position the frame. That was why the applicant had been given the crane. The frame was of a very substantial weight – obviously well beyond the safe manual handling capacity of any individual. The presence of the swarf balls should have been obvious to the applicant and the potential for the frame to become destabilised when set up on trestles should also have been obvious.

[21] Nonetheless the test is undemanding. In the absence of any direction as to what he should have done in the circumstances, and given the demanding standards imposed on an employer both at common law and under the Workplace Health and Safety Act 1995 (Qld), I am satisfied that the applicant has established a prima facie case.

Quality of decisiveness

 [24] 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 333.[5]

[25] Relevant on this point too is the observation of Connolly J in Sugden v Crawford [1989] 1 Qd R 683 at 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…

Means of knowledge

 [31] 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.

[32] I bear in mind that the correct approach is to determine the state of knowledge attainable by this applicant and that 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…

[36] Mr Crow submitted that the applicant here was in an analogous position to the applicant in Healy v Femdale [1993] QCA 210 a case often cited on this issue. There the court said:

The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take “appropriate advice” or to ask appropriate questions if in all circumstances it would not be reasonable to expect the plaintiff to have done so.

Conclusion

[41] If I was satisfied that Mr Baillie had raised the issue with medical practitioners, provided them with a full history, and been told that his problems were not due to the subject incident but rather a degenerative process, then he could not be criticised for not taking the matter further. In my view he would have done all that was reasonable for a working man to do.

[42] The difficulty is that it is far from clear that he did any such thing. As I have said where it is clear that he did see a medical practitioner about his back there is no note made of the subject incident at all. There were many other visits to medical practitioners where there is no mention of the back problems at all. Mr Baillie would have it that he told the doctors of his back pain on many occasions and they must not have noted it down. It is not necessary to decide whether that is a credible claim. It is safe to assume that if there was any mention of the back pain on these occasions where there is no record of his complaints then it was not the primary reason for the visit and there is no warrant for assuming that a full and detailed history was provided and the crucial opinion sought. Significantly Mr Baillie does not assert that he gave to any practitioner a full and accurate history and sought their advice as to the question of whether he could attribute his ongoing difficulties to the subject incident.

[43] Mr Crow’s submission was that Mr Baillie should not be expected to make such enquiries – the Healy v Femdale point. I disagree. The facts here are not akin to those discussed in Femdale at all. Here Mr Baillie says that there was significant pain and disability commencing with the subject incident, pain with which he eventually could not continue to cope, and a disability sufficient enough to restrict his working ability and which forced him to seek work with a known sympathetic employer. In my view these facts “call[ed] for prudent enquiry to protect [his] health and legal rights”. Mr Baillie did not make such enquiry. Like the applicant in Spain v Dipompo Jacs Constructions Pty Ltd & Anor [2009] QCA 323, Mr Baillie must have appreciated that he was “in a situation of vulnerability in the labour market” (per Keane JA at [61]).

[46] Two things seem to me to be relevant. The first concerns the onus of proof. It is for the applicant to establish that the material fact would not have been discoverable prior to the critical date. So much was decided in Kambarbakis v G and L Scaffold Contracting Pty Ltd [2008] QCA 262 per Holmes JA at [48]. See also Gillespie v Swift Australia Pty Ltd [2009] QCA 316 at [20][21]. Mr Crow’s submission goes no further than asserting that the applicant may not have received the same advice, but the obligation on the applicant is to show that he would not have received that advice. The relevant standard of proof is the normal civil standard.

Prejudice

[53] The events in question have occurred over a 5 and a half year period. There is no medical record of any injury to the back, or of any presenting symptoms attributed to the back, following the subject injury. It is highly unlikely that medical practitioners would have any recollection of the presenting symptoms years after the presentation, particularly where no note was made. The plaintiff says that there were four or five incidents of exacerbations over the years – the first in January 2005 when he consulted the chiropractor, the welding incident of March 2008, a slip and fall in February 2009, an event mentioned to Dr Shaw about which the applicant could give no details, and a car accident in April 2009. The plaintiff asserts that there were several presentations to medical practitioners where his complaints went unrecorded.

[54] The first notice that the respondents had of the claim was in December 2008 – over four years after the event. They therefore had no chance of requesting a medical examination that might assist in establishing the degree and nature of the injury suffered in August 2004. While that is often a defendant’s position in litigation of this type, and while a defendant must simply bear whatever prejudice follows when litigation is commenced within the limitation period, a different approach is taken once the limitation period has expired. So much follows from the decision in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

[55] Mr Mellick has drawn my attention to the approach of the Court of Appeal in Fuller v Bunnings Group Ltd [2007] QCA 216 where it was held that relevant prejudice was established where a respondent was precluded, by the lateness of notice of the claim, from exploring, by timely medical examination, the significance of injuries subsequent to the subject injury: see Williams JA at [44].

[56] In my view the respondents are in an analogous position here.

Brisbane Barrister – David Cormack

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