Ballingall v WorkCover Queensland [2017] QSC 133

SUPREME COURT OF QUEENSLAND CITATION: Ballingall v WorkCover Queensland & Ors [2017] QSC 133 PARTIES: CHRISTOPHER LEE BALLINGALL (Applicant) v WORKCOVER QUEENSLAND (First Respondent) And SDV LONGWALL PTY LTD (EXTERNALLY ADMINSTERED) (Second Respondent) And BM ALLIANCE COAL OPERATIONS PTY LTD (Third Respondent) FILE NO: S238 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Mackay DELIVERED ON: 23 June 2017 DELIVERED AT: Rockhampton HEARING DATE: 6 June 2017 JUDGE: McMeekin J ORDERS: 1. The applicant is directed to bring in minutes of the necessary order within seven days. 2. If there is a disagreement about the orders proposed the parties have liberty to apply. 3. In the absence of the filing of written submissions within seven days costs are reserved. CATCHWORDS: LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – where the applicant wishes to pursue a claim for damages against the respondents – where the limitation period for the claim has -- 1 of 16 -- 2 expired – whether a prima facie case is shown – whether the applicant was in possession of sufficient information before the critical dates – whether the respondents would suffer prejudice at trial – whether time should be extended. Limitation of Actions Act 1974 (Qld), s 30, s 31 Personal Injuries Proceedings Act 2003 (Qld) Berg v Kruger Enterprises [1990] 2 Qd R 301, cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, followed Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, cited Dick v University of Queensland [2000] 2 Qd R 476, followed Healy v Femdale Pty Ltd [1993] QCA 210, followed Hintz v WorkCover Qld & Anor [2007] QCA 72, cited Hoy & McCormack v Honan [1997] QCA 250, cited Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, followed NF v State of Queensland [2005] QCA 110, followed Sauer v Allianz Australia Insurance Limited [2006] NSWCA 364, cited State of Queensland v Stephenson (2006) 226 CLR 197; 227 ALR 17; [2006] HCA 20, cited Sugden v Crawford [1989] 1 Qd R 683, considered Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, followed COUNSEL: GW Diehm QC for the applicant SJ Deaves for the first and second respondents MT O’Sullivan for the third respondent SOLICITORS: Macrossan and Amiet Solicitors for the applicant Dibbs Barker for the first and second respondents HWL Ebsworth Lawyers for the third respondent [1] McMeekin J: Christopher Lee Ballingall applies under s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”) to extend the limitation period applicable to a claim for damages that he seeks to pursue against the respondents. -- 2 of 16 -- 3 [2] The limitation period within which he was permitted to commence such a proceeding expired on 20 June 2016 without action being commenced. A PIPA1 Notice of Claim against the third respondent was deemed compliant on 5 January 2017. A Notice of Claim under the WorkCover legislation was deemed compliant on 20 February 2017.2 That Notice is relevant to the claim against the second respondent. The first respondent is the statutory insurer of the second respondent and will conduct the defence of the claim. The application is brought directly against the insurer because the second respondent is in liquidation. The Incident [3] Mr Ballingall was employed by the second respondent at the material time. On 20 June 2013, and whilst engaged in the course of that employment, he asserts that he was thrown about violently when travelling in a drift runner (a vehicle used in underground coal mines) along a road in the Crinum Underground Coal Mine. He says that his back was injured as a result. He blames the incident, inter alia, on the state of the roadway. He claims that the facts give rise to an action against both his employer and the third respondent, that respondent being responsible for the state of the roadway. The Requirements of the Act [4] 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, 5 January 2016 (third respondent) or 20 February 2016 (first and second respondents): s 31(2)(a) of the Act. I will refer to these as the critical dates. There must also be a prima facie case: s 31(2)(b) of the Act. 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.3 The onus lies throughout on the applicant. The Basis of the Application [5] Mr Ballingall submitted that the relevant material fact of a decisive character is that he “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”. It is urged that only after the critical dates did Mr Ballingall come to realise that he had a worthwhile case on liability, and that he had an injury that was both on-going 1 Personal Injuries Proceedings Act 2003 (Qld) 2 I observe that a Notice of Claim alerting the respondent to the injury and prospective damages claim was first given on 8 December 2016. That was said to be non-compliant, no doubt for good reason. What is puzzling is that it was thought that there was no urgency about the matter because the limitation period had already expired. That could only be correct if the parties knew when it was that the applicant was in possession of the necessary material facts of a decisive character. Absent that knowledge it could not be known when the 12 month limit imposed by the Act would expire. The respondent now argues that the delay until February was critical. 3 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 per Dawson J; 555 per McHugh J -- 3 of 16 -- 4 and sufficiently serious that it would permanently interfere with his employment. This realisation is said to have occurred at about the time he in fact took steps to obtain legal advice. He first saw solicitors on 24 November 2016. The Respondents’ Case [6] The respondents differ in their approaches. Each argues that the material facts within Mr Ballingall’s means of knowledge were decisive in the relevant sense well before the critical dates. Each argues that there is prejudice shown such that a fair trial cannot be held. The third respondent concedes there is a prima facie case. The first and second respondents do not. Subsequent Work and Treatment History [7] The relevant period to consider is up to 5 January 2016 (third respondent) or 20 February 2016 (first and second respondents). [8] Following the subject incident Mr Ballingall attended on Dr Maree, a general practitioner, on 25 June 2013. He had a CT scan. He was advised that he had a bulging disc in his spine. He applied for and received workers’ compensation benefits. [9] On 16 July 2013 Mr Ballingall was referred for a CT guided injection into the nerve in his back thought to be causing his pain. He had relief from his pain within 24 hours and steady improvement over the next two weeks. [10] On 19 August 2013 he was certified fit to resume his normal duties. On 2 September 2013 he was discharged from his GP’s care. His advice was to maintain his core fitness and he could lead a normal life. [11] Mr Ballingall then maintained employment until January 2016 as a trades’ assistant for various employers. The most significant period out of employment was a period of three months from August 2014. That time out of employment was not related to any back problems. [12] He had one flare up of his condition in April 2015. He sought treatment from a general practitioner, was prescribed medication and again received a CT guided injection on 11 June 2015. [13] Medical practitioners have Mr Ballingall giving slightly differing histories as to his then condition. He told a Dr McPhee he had minimal relief following the injection. A Dr Cuneen has it that he said he had no relief. A Dr Yang has a similar history – “did not improve the pain even for one day”. However despite the relative lack of success of the injection what is plain is that Mr Ballingall continued in his employment. His general practitioner at that time, a Dr Voisot, swears that he gave him no advice as to his future work or need for surgery. So while it is evident that there was a level of pain it was not such as to stop Mr Ballingall working. Mr Ballingall says that he sought no further treatment after the injection until nearly a year later on 6 June 2016. -- 4 of 16 -- 5 [14] I note that Mr Ballingall attended on his general practitioner in September 2015 with an unrelated condition. Significantly there was no record made of any back complaint. [15] Mr Ballingall says that his symptoms began to worsen in the December of 2015. On 8 January 2016 Mr Ballingall returned to work after his Christmas break. He lasted a week and decided he needed to give his back a rest. He resigned his employment on 17 January 2016. He planned to have three months off work. He reports that his symptoms did ease over a month to eight weeks. He describes his pain as manageable and that he could pursue normal activities. [16] This then is the history to the time of the critical dates. He had maintained employment in physical occupations but decided to rest late in that period. He had increasing problems in the last month or thereabouts. He had not sought medical treatment nor did he seek legal advice. [17] Mr Ballingall next sought treatment on 6 June 2016, again from Dr Voisot. He swears that about a month before he saw the doctor the pain in his back and leg reoccurred and became severe and continuous. He sought a re-opening of his workers’ compensation claim. He saw a Dr Cuneen at WorkCover’s request and was referred for an MRI scan. His re-opening was accepted on 26 August 2016. He saw his general practitioner again on 30 August 2016 and was referred to a specialist, Dr Yang, whom he saw on 13 October 2016. Dr Yang recommended surgery. He advised that there was a 70% chance of the surgery being successful in the sense of reliving back and leg pain. In the meantime he had attempted a host employment program but could not persist with it. [18] Mr Ballingall then followed such treatment as he was advised without relief of his symptoms. A CT guided injection on 11 November 2016 afforded him considerable improvement in pain and flexibility but he was admitted to hospital later that day apparently because of complications caused by his pain medication. [19] He attended on solicitors on 24 November 2016. [20] That is a sufficient summary of the relevant background. I turn now to the relevant issues. A right of action [21] In order to satisfy the test in s 31(2)(b) an applicant must be able to point to the existence of evidence which, it can reasonably be expected, will be available at trial and will, if unopposed by other evidence, be sufficient to prove his case: Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at pp 434-435 per Macrossan CJ. [22] Mr Ballingall says 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. His case is that the drift runner either entered a pot hole or hit a bump in the road. Evidently he did not see whatever it was that caused him to be thrown about. [23] Mr Ballingall says that the incident occurred three-quarters of the way along the “drift road”. The drift road is the main road along which vehicles travelled in the -- 5 of 16 -- 6 mine. It was the road the miners took to the work area where the longwall move was taking place. That was the work on which Mr Ballingall was engaged at the time. [24] Nathan Kilner was also engaged in that work. He heard about the injury having occurred on that road. He swears: “Prior to 20 June 2013 complaints had been made by people in the crew that I was working in concerning the state of the road, the A Heading which was the main travel road. The road was rough and wet. There were areas where there was water on the surface of the road. The road was extremely rough to travel on.” [25] As well Mr Kilner reports that an almost identical incident occurred several days later involving injury to another worker suffered on the same stretch of road. [26] Wade Kinderis was, like Mr Ballingall, employed by the second respondent. He was with Mr Ballingall in the drift runner at the time Mr Ballingall complains of suffering injury on 20 June 2013. He reports that the seats of the drift runner were of “worn foam” and rigidly fixed. The suspension of the vehicle was “limited”. He says: “The road conditions on the day that we travelled from the ‘go’ line to the crib hut were terrible.” [27] Mr McDougall is an engineer specialising in workplace safety. He swears that it is “well documented that passengers travelling in drift runners are susceptible to injury from vibration and jarring”. He expresses his opinions as to how the risk can be met. [28] These various pieces of evidence taken together establish the fact of injury, the probable cause of injury, that the risk of injury of that type and through that cause was reasonably foreseeable, and that the risk could have been met by measures reasonably open to the employer or those in charge of the mine roads. That is sufficient to sustain the causes of action that Mr Ballingall wishes to pursue. [29] The first and second respondents argue that the witnesses who speak of the road conditions do not explicitly relate the conditions to the precise area of the incident, and make no complaint that the conditions were worse than usual or that anything had not been done that they thought ought to be done. Further, it is argued that it cannot be known whether whatever it was that caused the problem had been present for a long time or a very short time, whether it was due to lack of maintenance of the road surface or something falling from a preceding vehicle, or if due to lack of maintenance whether the problem could have been identified with any reasonable method of inspection. [30] In my view these arguments do not impact on the essential question. [31] There is a certain air of unreality about a complaint that the applicant cannot say to the metre what section of road is under discussion given the evidence that is available. Mr Ballingall has identified the section of the road as between the 12 and 14 “cut throughs”. There were inspections undertaken on the day of the road at least very near that area – there is a reference to 12 cut through in the records - -- 6 of 16 -- 7 suggesting work was needed because of the condition of the surface. If the road conditions were “terrible” as one witness attests and were no worse than usual (as the respondent now says is a possibility) then it would be interesting to hear what defence there is to the claim. Prima facie, employers and those in a like position are required to maintain roads sufficiently well so as to prevent the workers being thrown about violently and being thereby exposed to risks of injury. The standard expected would hardly be lessened when the expectation is that the vehicles carrying the workers are equipped with limited suspension and worn seats. [32] Otherwise the complaints raise either irrelevant points – the workers’ opinions of what should be done – or hypotheses unsupported by evidence. There is no evidence at all that anything ever fell from any drift runner on that day or any other day. Indeed there is no evidence that anything was ever carried on any drift runner in such a location that it was likely to fall off. [33] I am satisfied that Mr Ballingall has established a prima facie case. Decisive Character [34] The respondents argue that Mr Ballingall was in possession of sufficient information before the critical dates such that “a reasonable person knowing those facts and having taken advice on those facts” would regard those facts as showing that he had reasonable prospects of success to an award sufficient to justify bringing an action. That is a “means of knowledge” point. But the critical enquiry is when material facts that have the necessary quality of decisiveness are within the means of knowledge of the applicant: see State of Queensland v Stephenson (2006) 226 CLR 197 at 206-208; 227 ALR 17; [2006] HCA 20 at [22]-[30]. It is useful then to identify that quality of decisiveness here. [35] Section 30(1)(b) of the Act which 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.” [36] Section 30(2) of the Act provides that for the purposes of s 30 “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.” -- 7 of 16 -- 8 [37] 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 333.4 [38] Relevant on this point too is the observation of Connolly J 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 ...’. [39] Here there is no suggestion that Mr Ballingall did not appreciate that his symptoms, to the extent that they re-occurred in 2015, were not related to the subject incident. [40] The key issue it seems to me is the view that Mr Ballingall should reasonably have taken concerning his future employment prospects. Unless he was likely to suffer a significant interference with his income he had no damages worth pursuing or at least sufficient to justify incurring the risks and expense of litigation and no reason to see a solicitor to see what his rights might be. As to expense I think it notorious that litigation is an expensive exercise. The evidence here comes from his solicitor, Mr Paterson, who speaks of legal costs of over $40,000 to prepare a matter to the mandatory conference stage. [41] Mr Ballingall was not told that his ability to continue to work was compromised before February 2016 nor was he told that he had a worthwhile action to pursue. I do not understand it to be in issue that these matters would have the necessary quality of decisiveness. No sensible person would pursue damages or be interested in pursuing damages for the amount of Mr Ballingall’s actual loss as it stood before the critical dates. It was only the potential future losses that could justify such action. [42] I turn then to the question of Mr Ballingall’s means of knowledge prior to the critical dates. Means of knowledge [43] Section 30(1)(c) of the Act provides: 4 Cited with approval in Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306; Berg v Kruger Enterprises [1990] 2 Qd R 301; Hintz v WorkCover Qld & Anor [2007] QCA 72 at [38] – [39]. -- 8 of 16 -- 9 ‘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.’ [44] 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 emphasized 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. ...’ [45] The respondents contend that had the applicant 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 either of the critical dates. Discussion [46] Up until April 2015 the facts in Mr Ballingall’s possession were that he had had successful treatment in the past, that he had maintained his employment and suffered no or no significant loss of income. No reasonable person would have seen any need to seek advice medical or legal at that point. His understanding was that he had a “bulging disc” and that it would go away. [47] In June 2015 he again underwent the CT guided injection. It provided no relief on this occasion. But his symptoms eased sufficiently and he returned to work. He evidently received no advice that he should not follow that course. It is evident that his general practitioner did not refer him to a specialist. He appears not to have asked questions about his future. [48] The respondents’ argument essentially is that Mr Ballingall ought to have sought advice at this point. Healy v Femdale Pty Ltd [1993] QCA 210 is usually cited as providing guidance on this issue. The Court (Macrossan CJ, McPherson and Thomas JJ) said: -- 9 of 16 -- 10 “The question then is whether it can be said that in the circumstances the plaintiff took all reasonable steps to ascertain the fact that her injury was serious enough to justify the bringing of an action. She did not ask her doctor questions of this kind. 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 the circumstances it would not be reasonable to expect the plaintiff to have done so.” (my emphasis) [49] Whatever the level of symptomatology from June 2015 clearly it was not impacting significantly on Mr Ballingall. He was getting on with his life. He maintained his employment and in physical work. He sought no medical treatment. He took no medication. His treating doctor had not seen the need to volunteer any cautionary advice. In my view it was not reasonable that he seek any further advice at this stage. [50] There was another step down in Mr Ballingall’s function in December 2015/January 2016. Again it is significant that he did not give up his employment until 17 January 2016. He was obviously considering his future then. I think that the earliest it could be said that he might have sought advice was at around this time. Even that assertion is arguably too stringent. I will discuss this point further in a moment. But this finding means that the third respondent’s argument fails on this point. [51] What of the first and second respondents’ argument? It was accepted by the respondents here that an applicant is entitled to a reasonable time within which to obtain advice once the need for it is appreciated or ought to have been appreciated. That is in accord with authority: Dick v University of Queensland per Thomas JA [2000] 2 Qd R 476, 488 [35]. Essential advice would be that of a specialist. In 40 years of practice I have not seen a claim for damages for a significant back injury to be founded on a general practitioners’ opinion. [52] Accepting that it is necessary to allow some further reasonable time to get advice once the need for some advice is recognised the issue is how long that might be. That issue was not specifically dealt with in the evidence. What is known is that from the time that Mr Ballingall saw his general practitioner on 30 August it was six weeks before he saw the surgeon Dr Yang in mid-October. Assuming a similar time period applies in January–February (and given the traditional holiday period I suspect that it would be longer) Mr Ballingall would not have received essential advice, had he appreciated the need to obtain it on the day he decided to give up -- 10 of 16 -- 11 work, until the end of February. That again is after the critical date for the first and second respondents. [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. Prejudice [54] The relevant principles were explained in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In NF v State of Queensland [2005] QCA 110 Keane JA (as his Honour then was) summarised the effect of that decision (at [44] with citations omitted) as follows: “The Brisbane South decision is concerned to ensure that an extension of time under the Act should not become the occasion for a trial which is unfair to the defendant. It is authority for the following propositions: (a) the onus is upon the applicant who has satisfied the conditions in s 31(2) of the Act to show good reason for the exercise in his or her favour of the discretion vested in the court by that provision; (b) the principal consideration which guides the exercise of that discretion is the concern whether a claim, which is prima facie out of time, may yet be fairly litigated; (c) if a fair trial is unlikely, the discretion conferred by s 31(2) should not be exercised in the applicant's favour.” [55] I would add that it is evident from the judgments in Brisbane South that the question is not merely whether some prejudice might be arguable. 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). It is also consistent with Kirby J’s view that the burden on an applicant is “not of any great severity” (at p 567). Support for this view of the effect of Brisbane South is found in the analysis of Beazley JA in Sauer v Allianz Australia Insurance Limited [2006] NSWCA 364 at [14] to [24]. -- 11 of 16 -- 12 [56] Finally I note that the authorities are consistent in the view that it is for the respondent to raise relevant issues of prejudice with the applicant bearing the persuasive onus: see Hoy & McCormack v Honan [1997] QCA 250 and cases there cited by Derrington J; Sauer (supra) at [17]. [57] The arguments advanced by the respondents are not identical although each contends that there cannot be a fair trial. The arguments are these: (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. [58] The third respondent principally stressed the last issue. [59] The liability issues raised in the Notice of Claim relate to the state of the roads, the standard of lighting on the drift runner, the state of the seating, and the failure of the driver to observe the defect in the road and so travelling at an excessive speed when the vehicle encountered the defect. [60] Save for the observations already made and that I am about to make, the respondents have not asked potential witnesses anything about any of these matters. Prejudice is not shown by an absence of effort to discover what relevant witnesses can say. [61] The director of the second defendant is Mr Scott Vella. A file note of an attendance on him indicates that he would need to see the contract the second respondent had with the third respondent in order to assist with two issues – who was maintaining the roads and what his companies’ obligations were. There appears to have been no follow up. I am not persuaded that this is of any great relevance - counsel for the third respondent submitted that the third respondent had responsibility for the roads. Mr Vella was not a witness to the incident but is evidently aware of it and recalls it. Mr Vella spoke of an incident report being completed and medical staff attending. Given that he was not a witness I assume that he could never have known from his own knowledge who the occupants of the drift runner were at the relevant time. So -- 12 of 16 -- 13 it is not evident that his inability to assist has come about because of the delay, which is the relevant enquiry: Sauer (supra) at [38]. [62] A list of persons potentially in the drift runner at the time has been provided. Most have not been contacted. [63] A Mr Andrew Burrows was identified in the Notice of Claim as the person to whom the injury was reported. He is available and has been spoken to. He was a Deputy at the mine at the relevant time. He recalls travelling in the drift runner with the applicant and the applicant reporting having suffered an injury in the course of the journey. He completed an incident report as was required by BMA protocols. Such reports are expected to have been archived and kept for 6 years.5 He recalls that the road conditions were poor. He reports that he is aware of similar incidents where miners reported injury to neck and back when travelling in machinery. An available inference from the information that he has provided is that holes in the road surface are difficult to see. He cannot recall who the driver of the drift runner was or identify who else may have been in the drift runner at the time. [64] Mr Burrows points out that there are several pieces of evidence that will assist in identifying the driver. If the driver was employed by a contractor there would need to be a contract in place for the supply of services – hence such contractors can be identified. Drivers undergo training, which is recorded, and have competency tickets. One would expect a record of those holding such certificates. There is some reason to think that whoever the driver was he will recall the matter - Mr Burrows says that the drift runner operator returned Mr Ballingall to the Medical Centre at the surface once it was recognised he was injured. I expect that is not an everyday event. I note that the witnesses that the applicant’s solicitors have spoken to (Messrs Kinderis and Kilner) appear to have a lively recollection of the events. [65] Shift reports identify each employee who entered and exited the mine site on the day in question. The record also identifies that person’s employer. The respondents have not spoken to those witnesses. [66] In summary, not only is it not shown that the identity of the driver cannot be established, there seem reasonable prospects that he will be. [67] There is a complaint that searches are yet to uncover documents that might turn out to be relevant. The force of that complaint is somewhat weakened by the fact that the person who conducted the search was not authorised to access all documents. It is further weakened by the fact that the difficulty in retrieving documents does not come about solely because of delay. The ability to retrieve is dependent on the appropriate saving and naming of documents and the level of access permitted. In other words the respondent would have had the same difficulties whether the proceedings were commenced a month after the subject accident or three and a half years later. I appreciate that incremental prejudice is not the relevant question (Brisbane South at pp548-549) but prejudice not arising from delay but an inefficient filing system is not relevant to the issue: again see Sauer at [38]. 5 See Exhibit SB22 to the affidavit of Stacey Boulton, sworn 31 May 2017. -- 13 of 16 -- 14 [68] If the condition of the drift runner is of concern – beyond features that they all shared which seems to have been a limited suspension system – then pre-start check reports are done at the commencement of each shift. The real issue seems to be whether the seats were worn. No evidence is led that any check of the seats was carried out and if so whether the condition of the seats was the subject of reports. [69] Records exist demonstrating that inspections of the relevant road, in a general sense, were carried out in the period around the time of the accident. There is no evidence that any record was ever kept of the precise section of road identified by Mr Ballingall as the location of the incident. See my earlier remarks. It is evident that it is not a long section of road. A “BMA timeline” shows the drift runner entering the 23 Portal at 7.05am, then travelling in-bye along “A” heading and a report of an injury at 7.10am. The section of the road in question then can be traversed by a drift runner in five minutes. One would expect that there would exist a substantial body of evidence from workers as to the state of a relatively short section of road apparently travelled every day by a significant number of workers. Apart from the witnesses I have mentioned no-one has yet asked the people who are most likely to know. [70] While the respondents seek to make something of missing records, what is striking is the lack of evidence as to what has been done with the records that evidently once existed. The respondents apparently assume that an inference is to be drawn that any prejudice arising is caused by delay. I cannot see why. The liquidators of the second respondent report they do not have the information sought. Mr Vella says that he handed over all his documents to the liquidators. Where Mr Vella’s documents went, how they were stored, what steps were taken to preserve them, and how diligent the search to recover them is all left unexplained. [71] As to the injury suffered and the assessment of damages issue – Mr Ballingall was seen shortly after the incident by first aid personnel and the records are available. It is said that the first aid officers have not been identified but there seems to have been little effort made yet to do so. Those personnel are known to be employed by a particular company and their records are yet to be examined. [72] Mr Ballingall attended on a general practitioner and his records are available although the practitioner is not. He attended on a physiotherapist and those records are available. [73] The absent general practitioner is a Dr Gert Maree. While the absence of a potential witness is always a matter of concern the issue is how significant is his evidence likely to have been? The principal point to calling Dr Maree would be to establish that he was given the history he has recorded. That can be done by tendering his notes under s 92 of the Evidence Act 1977. [74] There are two matters of interest to the respondents. The first is that the doctor records that Mr Ballingall was the driver of the drift runner. The first aid record is to the same effect. Mr Ballingall denies both that that was the fact or that he ever said that. The coincidence of the records is a factor against Mr Ballingall but that issue is -- 14 of 16 -- 15 patent already. But I query just how serious that issue is given the lack of any challenge to the two witnesses who have sworn affidavits and claim to have been in the drift runner at the relevant time. The plain inference from their affidavits is that Mr Ballingall was not the driver. Mr Burrows, says that he was sitting next to the driver and that the driver took Mr Ballingall back to the surface. Mr Burrows was not cross examined. That Mr Ballingall was taken back is shown by the BMA “time line”. So a more or less contemporaneous record supports Mr Burrows’ memory, at least to a degree. [75] Assuming that the issue is a live one the respondents argue that they are disadvantaged because they cannot call Dr Maree to say that his records are accurate or add to them. If there is a disadvantage, I struggle to see that it is a significant one. I doubt that it adds much to have a witness say that his or her records are accurate. Very few practitioners ever attest that their own records are deliberately inaccurate and most, if not all, concede that mistakes can easily occur, particularly on matters irrelevant to the health provider’s task which it seems to me would be the case on this issue. [76] The more cogent point for the respondents is a history that Dr Maree recorded of prior problems. The complaint here is that he may be able to add to the information in his notes about this past history but again that is difficult to sustain. [77] That there were prior problems is evident from records of other health care providers who treated Mr Ballingall at the time and noted presenting symptoms. It seems an X-ray was taken by a chiropractor. He was seen at the Base Hospital. There is no evidence that the persons who saw and treated Mr Ballingall in the past and made those records are unavailable. Those contemporaneous accounts will be of far greater significance than Dr Maree’s notes of what he thinks Mr Ballingall was attempting to convey about those symptoms a substantial time later. Dr Maree is in no position to provide any evidence on a condition that he did not observe, let alone treat. [78] In any case Mr Ballingall does not deny a past history of back problems associated with leg symptoms although he referred to those latter symptoms as a “tension” in his leg following “muscle strain”. Specialists far more skilled than a general practitioner will no doubt be able to comment on the significance of these prior symptoms. It is difficult to see what Dr Maree could say that would be likely to have an impact on any relevant issue. [79] In my view a fair trial can be held. Conclusion [80] The limitation period should be extended. The submissions suggest that there is a dispute about the precise terms of the appropriate order if I reached this view. The applicant is directed to bring in minutes of the necessary order within seven days. If there is a disagreement about the orders proposed the parties have liberty to apply. -- 15 of 16 -- 16 [81] I propose to reserve the question of costs to the trial judge. If any different order is sought then I direct that written submissions be filed within seven days. In the absence of submissions the order will be as I have indicated. -- 16 of 16 --