Limitation period & the plaintiff’s sister’s notes

Spain v Dipompo Jacs Constructions P/L & Anor [2009] QCA 323

The appeal by WorkCover Queensland and their insured was allowed in respect of the decision by the learned primary judge to extend the limitation.

In particular His Honour Justice Keane relied on the evidence of the plaintiff’s sister in the Dr Ratnam’s notes to dismiss the plaintiff’s claim, with whom Her Honour Holmes JA concurred:

[57] The basis of that difference lies in the significance to be attributed to Mr Spain’s account recorded by Mr Spain’s sister of his career change in 2006. That account was relevantly in the following terms: “22.11.02 … From this time and up until the 10.7.06 I had also work [sic] for several construction companies employed as a form work carpenter. Throughout this period I was forced to take annual leave and RDO’s [sic] due to continuous inflammation. I was to [sic] concerned to give reason for my absence from work as I felt it could jeopardise my future employment. Also throughout this time I was elected by my fellow employees as W H & S rep & union delegate. I reluctantly accepted these positions knowing that it would give me time off the tools. 10.7.06 I became extremely concerned with the condition of my lower back and was forced to look for a new career path. I gained employment as an apprentise [sic] plumber with Apprentiships [sic] Qld. I transferred my apprentiship [sic] from Apprentiships [sic] Qld to Contrax Pty Ltd. This company was liquidated in May 2008. I was then forced to go back into form work with a company known as Triform Constructions. I was only with this company for approximately a month when I felt my lower back injury start to flare up again.” (emphasis in original).”

 

However,  The Honourable Justice  McMurdo P dissented strongly:

[48] The judge’s reasons did not deal with the notes made by Mr Spain’s sister for Dr Ratnam in mid-2008. They nevertheless sufficiently explained to the appellants why the judge considered that material facts of a decisive character relating to Mr Spain’s right of action against the employer were not within his means of knowledge until July 2008. It was only then that he realised he had suffered a spinal injury in 2002 of such gravity as to permanently prevent his employment in heavy manual work.

[49] I am not persuaded that the judge’s reasons were inadequate or otherwise demonstrate some error of law or fact warranting this Court’s intervention. I would not interfere with her Honour’s findings of fact or her conclusions drawn from them.

It highlights the utility of clinical notes and cross examination in such applications.

Brisbane Barrister – David Cormack.

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