Dixon v Isis Central Sugar Mill Company Ltd & Ors [2022] QSC 185 [2022] 39 QLR

SUPREME COURT OF QUEENSLAND CITATION: Dixon v Isis Central Sugar Mill Company Ltd & Ors [2022] QSC 185 PARTIES: DARRYL JAMES MUN DIXON (applicant/plaintiff) v ISIS CENTRAL SUGAR MILL COMPANY LIMITED ACN 009 657 078 (first defendant) LYANTA HAULAGE PTY LTD ACN 155 393 061 (second defendant) CENTRAL HARVESTING CO-OPERATIVE LIMITED (respondent) FILE NO/S: BS No 8181 of 2019 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 19 September 2022 DELIVERED AT: Brisbane HEARING DATE: 16 August 2022 JUDGE: Cooper J ORDER: 1. The plaintiff’s application is dismissed. 2. The court will hear the parties as to costs. CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – KNOWLEDGE – REASONABLE STEPS TAKEN TO ASCERTAIN FACTS – where the plaintiff commenced proceedings claiming damages for personal injuries sustained during his employment – where the plaintiff applies for leave to join the respondent as a further defendant – where the limitation period for any action against the respondent has expired – where the plaintiff applies for an order extending the limitation period – where the plaintiff alleges that the identity of the respondent as a defendant to the proceedings was unknown – whether the plaintiff had taken all reasonable steps to ascertain the identity of the respondent – -- 1 of 11 -- 2 whether a material fact of a decisive character was not within the means of knowledge of the plaintiff Limitation of Actions Act 1974 (Qld), s 11, s 30, s 31 Personal Injuries Proceedings Act 2002 (Qld), s 9(7), s 44(8)(b), Part 1 Chapter 2 Personal Injuries Proceedings Regulation 2014 (Qld), r 6 Uniform Civil Procedure Rules 1999 (Qld), r 222 Workers’ Compensation and Rehabilitation Act 2003 (Qld) Castlemaine Perkins Limited v McPhee [1979] Qd R 469, cited NF v State of Queensland [2005] QCA 110, cited Randel v Brisbane City Council [1984] 2 Qd R 276, cited COUNSEL: C Newton for the applicant/plaintiff A P Collins for the first defendant K Weber (solicitor) for the second defendant A C Harding for the respondent SOLICITORS: Hall Payne Lawyers for the applicant/plaintiff Barry.Nilsson. Lawyers for the first defendant Jensen McConaghy Lawyers for the second defendant HBM Lawyers for the respondent [1] The plaintiff has commenced proceedings against the first and second defendants claiming damages for personal injuries. He now applies for leave to join the respondent as a further defendant to the proceeding and for consequential orders under the Personal Injuries Proceedings Act 2002 (Qld) (PIPA). Further, in circumstances where the limitation period for any action against the respondent has already expired, he applies for an order extending the limitation period for the action under s 31 of the Limitation of Actions Act 1974 (Qld) (the Act). [2] When the matter came on for hearing, I was informed that the respondent opposed the application to extend the limitation period but, if the extension was granted, did not oppose the other relief sought by the plaintiff. [3] At the commencement of the hearing, two preliminary issues were identified. First, the respondent sought to cross-examine the plaintiff and his solicitor. The plaintiff opposed this, but it was common ground that if the respondent was permitted to cross- examine then the matter would have to be adjourned to the civil list. Secondly, the respondent sought production of the solicitor’s file pursuant to r 222 of the Uniform Civil Procedure Rules 1999 (Qld). [4] Counsel for the plaintiff and the respondent addressed me on those preliminary issues as well as the substance of the application to extend the limitation period. Both agreed during the course of argument that if I was not prepared to allow the respondent to cross-examine or to order production of the solicitor’s file that I should then proceed to determine the application to extend the limitation period on the basis of the material presently before the court. [5] In the end, I have reached the view that the plaintiff’s evidence, even if it is accepted, is not sufficient to discharge the onus on him of establishing that a material fact of a -- 2 of 11 -- 3 decisive character was not within his means of knowledge until after the date specified in s 31(2)(a) of the Act. Having reached that conclusion there would be no utility in permitting the respondent to cross-examine the plaintiff or his solicitor, nor in ordering production of the solicitor’s file. Further, there would be no utility in granting any of the other relief sought in the application. [6] What follows are my reasons for refusing the application to extend the limitation period. Background [7] The plaintiff claims to have suffered personal injuries as a consequence of an accident which occurred when he was transporting sugar cane to the mill owned by the first defendant on 14 August 2016. At the time of the accident the plaintiff was employed by the second defendant. [8] The accident is alleged to have occurred when a 40 foot trailer carrying three sugar cane bins overturned and disconnected from the prime mover being driven by the plaintiff. The prime mover left the road and collided with a power pole and shed. The bins had been loaded with sugar cane at a siding where they were placed onto the trailer. The person who loaded the bins is referred to in the plaintiff’s pleading, and in the other material before me, as “the loader.” The plaintiff alleges that the loader overloaded the bins and loaded them unevenly, and that it was this conduct which caused the accident. [9] Pursuant to s 11 of the Act, the limitation period for the plaintiff’s action ended on 14 August 2019, three years after the date of the accident. [10] On or about 20 June 2019, the plaintiff’s solicitors served: (a) a notice of claim under PIPA on the first defendant; and (b) a notice of claim for damages under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) on WorkCover Queensland as the second defendant’s workers’ compensation insurer. [11] In the PIPA notice of claim the plaintiff was required to identify the reasons why he believed that the first defendant caused the incident. This required the plaintiff to identify, in particular, the step, process or acts of the person that caused the incident and the link to the first defendant. The response to that requirement was set out in Annexure D to the notice of claim. Annexure D asserted that (among numerous more generally expressed failings) the first defendant failed to ensure that the cane bins were loaded in accordance with relevant guidelines, and failed to ensure the safe loading and/or positioning of the cane bins on the semi-trailer. It did not, however, assert that the accident had been caused by the manner in which the loader had loaded the cane bins. Nor did it identify any connection between the loader and the first defendant. [12] The PIPA notice of claim informed the first defendant that within one month after having received it, it must: -- 3 of 11 -- 4 (a) if it considered itself a proper respondent to the claim, give the claimant written notice of whether it was satisfied that the notice of claim complied with the PIPA requirements; (b) if it was unsure whether it was a proper respondent to the claim, give the plaintiff written notice of the further information it reasonably needed to decide whether it was a proper respondent; or (c) if it considered it was not a proper respondent to the claim, give the plaintiff written notice of the reasons why it held that view and any information it had that may have helped the plaintiff identify a proper respondent to the claim. [13] The first defendant’s response was not included in the materials before the court, but it was common ground at the hearing of the application that the first defendant confirmed to the plaintiff that it considered itself a proper respondent to the claim. The reason the first defendant held that view is not apparent from the material. [14] On 22 July 2019, the solicitors for the first defendant agreed to allow the plaintiff to start a proceeding for a claim despite non-compliance with the requirements of Part 1 of Chapter 2 of PIPA. [15] On 2 August 2019, the plaintiff filed a claim and statement of claim against the first defendant. Paragraph 2(c) of the statement of claim alleged that the first defendant employed the loader who is said to have negligently loaded the sugar can bins which caused the accident. [16] The plaintiff did not serve the claim and statement of claim at that time because, pursuant to s 44(8)(b) of PIPA, the proceeding was stayed until the parties complied with the requirements of Part 1 of Chapter 2 of PIPA. A copy of the claim and statement of claim was provided to the solicitors for the first defendant on 6 August 2019. [17] On 30 September 2021, a compulsory conference was held in relation to the plaintiff’s claim under PIPA and his workers’ compensation claim. During the course of that compulsory conference, the solicitors for the first defendant informed the plaintiff of the possibility that the loader whose negligence is alleged to have caused the accident was employed by the respondent. [18] In light of that information, the plaintiff subsequently served notices of claim under PIPA on a number of other parties, including the respondent on 14 October 2021. There was then an exchange of correspondence between the solicitors for the plaintiff and the solicitors for the respondent. In the course of that exchange, in an email sent on 3 February 2022, the solicitors for the respondent confirmed that the respondent’s staff were responsible for filling the sugar cane bins transported by the plaintiff, but the respondent was unable to identify the specific person who loaded the bins on the date of the incident. [19] The plaintiff now applies to extend the limitation period of his action against the respondent on the basis that, prior to the compulsory conference on 30 September 2021, he was not aware that the loader was employed by the respondent. Relevant principles -- 4 of 11 -- 5 [20] The power to extend the time for bringing an action outside the relevant limitation period is conferred by s 31 of the Act. It provides: “31 Ordinary actions (1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person. (2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court— (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly. (3) This section applies to an action whether or not the period of limitation for the action has expired— (a) before the commencement of this Act; or (b) before an application is made under this section in respect of the right of action.” [21] The section raises three matters for consideration:1 (a) whether the unknown fact relating to the right of action is a “material fact”; (b) whether the material fact relating to a right of action is “of a decisive character”; and (c) whether the fact in question was not within the means of knowledge of the plaintiff. 1 Randel v Brisbane City Council [1984] 2 Qd R 276 at 277-278. -- 5 of 11 -- 6 [22] The expressions “material facts relating to a right of action”, “of a decisive character” and “means of knowledge” are defined in s 30 of the Act: “30 Interpretation (1) For the purposes of this section and sections 31, 32, 33 and 34— (a) the material facts relating to a right of action include the following— (i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded; (ii) the identity of the person against whom the right of action lies; (iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury; (iv) the nature and extent of the personal injury so caused; (v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty; (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; (c) 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 that 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. -- 6 of 11 -- 7 (2) In this section— 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.” [23] The identity of the respondent as the employer of the loader whose negligence is alleged to have caused the accident and, thereby, a person against whom the right of action lies is a “material fact relating to the right of action” by reason of s 30(1)(a)(ii) of the Act. [24] That material fact is, in my view, “of a decisive character” within the meaning of s 30(b) of the Act. A reasonable person knowing the identity of the respondent as the employer of the loader alleged to have negligently loaded the cane bins and knowing the other material facts of the incident, would on taking appropriate advice have regarded those facts as showing that an action against the respondent had a reasonable prospect of success and also that the plaintiff ought to bring an action against the respondent. [25] The real issue for determination is whether the fact of the loader’s employment by the respondent was not within the plaintiff’s knowledge until after the date specified in s 31(2)(a) of the Act. For the discretion to extend the limitation period to arise, the plaintiff has to show that until the relevant date he did not know that the respondent was the employer of the loader and that, so far as that fact was capable of being ascertained by him, he had taken all reasonable steps before that date to ascertain that fact. [26] The reasonableness of the steps taken by an applicant to ascertain a material fact is to be assessed on an objective basis, but with regard to the background and situation of the applicant.2 [27] Expressed another way, 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. If that person has taken all the steps that he or she is able to take to find out the fact, and has not found it out, that fact is not within the person’s knowledge for the purposes of s 30(1)(c) of the Act.3 Conversely, if that person has not taken all the steps that he or she is able to take to find out the fact, then the person will not have established that the fact was not within his or her means of knowledge.4 Consideration [28] The plaintiff affirmed an affidavit on 3 August 2022 in which he addressed the question of the identity of the loader and the employer as follows: “5. I do not know who was loading the cane bins at the siding on 14 August 2016. 2 Castlemaine Perkins Limited v McPhee [1979] Qd R 469 at 473; Randel v Brisbane City Council [1984] 2 Qd R 276 at 281, 285. 3 NF v State of Queensland [2005] QCA 110 at [29]. 4 Castlemaine Perkins Limited v McPhee [1979] Qd R 469 at 472. -- 7 of 11 -- 8 6. I am unable to assist the Court with who the people were that were loading the cane bins at the siding. I do not know who employed these people, but I have no reason to doubt the now made assertion that they were employed by the [respondent], but I was not aware of that fact.” [29] Otherwise, the plaintiff simply confirmed the contents of an affidavit affirmed by Kym Greinke, his solicitor, on 2 August 2022. In that affidavit, Ms Greinke deposed to: (a) service of the notices of claim under PIPA and the WCR Act and the responses to those notices; (b) the compulsory conference held on 30 September 2021 and the reference by the solicitors for the first defendant at that conference to the possibility that the respondent employed the loader; and (c) subsequent steps undertaken by Ms Greinke to identify the employer of the loader. [30] Ms Greinke then affirmed a further affidavit on 15 August 2022 which addressed the period prior to the expiry of the limitation period in the following terms: “2. I had a conversation with the Plaintiff on 9 February 2017 in relation to another incident and at this time he mentioned to me about an incident he had on 14 August 2016. A copy of his worker’s compensation file was obtained to review. 3. On 14 May 2018 I received a call from the Plaintiff advising he was still in receipt of WorkCover benefits for the incident on 14 August 2016 and that his claim was probably going to close soon. 4. On 7 June 2018 I received a call from the Plaintiff and he advised that his workers compensation claim had been closed. A copy of his workers compensation claim file was requested from WorkCover Queensland and the Plaintiff advised that he would obtain a statement from his co-worker. 5. The Plaintiff provided a Statement from his co-worker by email on 17 June 2018. 6. I requested the Plaintiff to provide the name of the person that loaded his truck and the name and address of the employer of that person and the address of the property where he was loaded on 18 June 2018. The Plaintiff advised that he did not have that information but thought it would be the Childers Mill. 7. On 18 June 2018 I telephoned the Plaintiff and he advised that the Mill at Childers basically runs and organizes everything. I received further communication from the Plaintiff advising that the Mill is in fact Isis Mill. -- 8 of 11 -- 9 8. On 12 July 2018 I telephoned the Plaintiff and advised that Hall Payne Lawyers were willing to act on his behalf in relation to a claim for damages. 9. A Client Agreement was forwarded to the Plaintiff on 16 July 2018 for his signature and this is the day that is shown in the PIPA Notices of Claim. 10. Consistent with the existing evidence the Plaintiff did not know the name of the person that loaded his truck or who employed the loader, but after discussions with the Plaintiff it was assumed the Isis Central Sugar Mill, because the Plaintiff was being loaded to cart to the Isis Sugar Mill and the Plaintiff understood his employer’s contract was with the Isis Sugar Mill and on that basis a PIPA Part 1 Notice of Claim was issued against the Isis Central Sugar Mill Company on 20 June 2019 and a Notice of Claim for Damages was issued against the Plaintiff’s employer on 20 June 2019. … 11. At that point there was no reason to suspect we didn’t have the relevant party.” [31] There was no evidence from the plaintiff about the matters addressed in Ms Greinke’s affidavit of 15 August 2022. In particular, there was no evidence from him as to what steps, if any, he had taken to ascertain the identity of the employer of the loader. [32] On the basis of the evidence in Ms Greinke’s affidavit of 15 August 2022, it was submitted on behalf of the plaintiff that the fact that the respondent was the employer of the loader was not within the means of knowledge of the plaintiff in circumstances where: (a) the plaintiff had caused his solicitors to issue the PIPA notice of claim and to file proceedings within the limitation period on the assumption that the first defendant was responsible for loading the cane bins; and (b) the first defendant had raised no objection to the claim or notified the plaintiff that it had not employed the loader. [33] The absence of objection by the first defendant is said to be relevant because of the obligation imposed by s 9(7) of PIPA which provides: “(7) If a proceeding based on a claim may be started against 2 or more persons, the person to whom part 1 of a notice of a claim is given must, within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving it— (a) give a copy of it to each other person known to the person who may be a person against whom a proceeding might be started by the claimant based on the claim; and (b) advise the claimant of each other person to whom a copy of it has been given and give the claimant a -- 9 of 11 -- 10 short statement of the person’s reasons for considering the other person may be a person against whom a proceeding might be started based on the claim.” [34] Under r 6 of the Personal Injuries Proceedings Regulation 2014 (Qld) , the prescribed period for s 9(7) of PIPA is the later of 1 month after the person receives part 1 of the notice of claim or 7 days after the person identifies another person against whom a proceeding might be started by the claimant based on the claim. This emphasises that a party who receives a notice of claim might not appreciate at the time of receipt that another person may be a proper respondent to the claim. [35] In the course of oral argument it was submitted that the plaintiff acted reasonably prior to the expiration of the limitation period in assuming that the first defendant had employed the loader in circumstances where, upon being informed by the plaintiff of his understanding of who employed the loader, Ms Greinke immediately issued pre- court proceedings under PIPA against the first defendant and the first defendant did not tell the plaintiff that any other party may be a proper respondent to the claim. [36] The plaintiff’s argument assumes that, when it received and responded to the PIPA notice of claim, the first defendant was aware that the plaintiff had wrongly assumed the loader was employed by the first defendant. It is not clear that this was the case, given the matters discussed in [11] above. The first clear indication that the plaintiff understood that the loader was employed by the first defendant was given in the statement of claim which, as discussed in [15] and [16] above, was provided to the solicitors for the first defendant on 6 August 2019 in circumstances where the proceeding was stayed pending the compliance with the requirements of Part 1 of Chapter 2 of PIPA. This allowed a period of only nine days for the first defendant to recognise and correct the plaintiff’s misunderstanding before the limitation period expired. [37] In those circumstances, I do not accept that it was reasonable for the plaintiff to have relied solely upon an absence of notice from the first defendant under s 9(7) of PIPA in proceeding upon his assumption that the first defendant employed the loader. [38] On Ms Greinke’s evidence, the plaintiff was informed on 18 June 2018 that his solicitor needed to know the name and address of the employer of the loader. In those circumstances, I am unable to accept the submission made on behalf of the plaintiff that the need to discover the identity of the employer did not arise prior to the expiry of the limitation period. That submission is consistent with the PIPA notice of claim and the proceedings having been prepared based on the plaintiff’s understanding that the first defendant was the employer. There is, however, no evidence that the plaintiff took any steps, or instructed his solicitor to take any steps, to confirm the correctness or otherwise of that understanding. [39] That confirmation might have been sought by making inquiries of the first defendant as to whether it employed the people who had loaded cane bins at the siding where the bins were put onto the plaintiff’s truck on the date of the accident. If that question had been asked of the first defendant before the relevant date, it is likely that the plaintiff’s misapprehension would have come to light and further inquiries concerning the identity of the employer might have been made. -- 10 of 11 -- 11 [40] Inquiries might also have been made of the plaintiff’s employer or his co-workers. On 12 November 2021, the plaintiff filed an amended statement of claim which pleaded the claim for damages against the second defendant. Paragraph 2A(c) of that amended statement of claim pleads that the second defendant employed a supervisor, identified as Jeff Sommers, who was engaged in the same task as the plaintiff on the date of the accident. In the affidavit affirmed by Ms Greinke on 2 August 2022, she deposed in paragraph 42 to information provided to her by Mr Geoffrey Sommer on 29 July 2022 to the following effect: he was employed by the second defendant at the date of the plaintiff’s accident; he was at the siding where the plaintiff’s truck was loaded on that date; he recalls two or three drivers filling the cane bins on that date; those drivers were employed by the respondent, not the first defendant, as Mr Sommer understands that the first defendant contracts the respondent to cut the cane. [41] There is no evidence that any attempt was made to speak to Mr Sommer, or anyone else from the second defendant, about who employed the loader before the relevant date. Again, if those inquiries had been made the plaintiff’s misunderstanding is likely to have come to light and further inquiries could have been made. [42] I do not consider it unreasonable to expect that a person in the plaintiff’s position make inquiries of the type just discussed, or to instruct his solicitors to make such inquiries, where the plaintiff does not know the identity of the employer of the loader. Conclusion [43] I am satisfied that the plaintiff did not know that the respondent was the employer of the loader until, at the earliest, the compulsory conference held on 30 September 2021. However, where the plaintiff had been put on notice on 18 June 2018 of the need to identify the employer of the loader, I am not satisfied that the plaintiff had taken all reasonable steps to find out that fact before the date specified in s 31(2)(a) of the Act. Accordingly, the plaintiff has failed to establish that the identity of the respondent as the employer of the loader was not within his knowledge until after the date specified in s 31(2)(a) of the Act and the power to order that the limitation period be extended is not enlivened. [44] The plaintiff’s application is dismissed. I will hear the parties as to costs. -- 11 of 11 --