Brett v Townson Plumbing Pty Ltd [2002] QSC 456

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[2002] QSC 456 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DUTNEY J No S151 of 2002 ROBERT ALEXANDER BRETT Applicant and TOWNSON PLUMBING PTY LTD Respondent ROCKHAMPTON ..DATE 06/12/2002 JUDGMENT -- 1 of 7 -- 06122002 D.1 T26/MLH03 M/T ROK3-4/2002 (Dutney J) JUDGMENT 2 1 10 20 30 40 50 60 HIS HONOUR: This is an application for an extension of time within which to bring an action for personal injuries arising out of a fall by the applicant into a trench on the 17th of April 1998. The applicant is a plumber, presently aged 30 years. He was, at the relevant time, working for Townson Plumbing at the Burton Downs Mine. A trench had been dug with a backhoe parallel to the side of a donga containing the toilets. A second trench was dug from an office block back past the end of the first trench to a septic tank. The second trench was located a metre out from the side of the donga containing the toilets, and was approximately 30 metres in length. The applicant's task involved running PVC pipe along the trenches connecting the piping to the outlets from the donga and office block, and connecting the piping to the septic tank. In the course of performing the work, as he was walking between the donga and the trench, close to the edge of the trench, the edge of the trench collapsed and he went over on his left ankle and twisted it. There was apparently nobody else present at the time, and he was working on his own. The applicant continued working, although over the weekend was quite sore. The incident was reported to his supervisor on the 20th of April 1998. Thereafter, the applicant attended his general practitioner who recommended rest, ice, and elevation, and -- 2 of 7 -- 06122002 D.1 T27-28/BAO ROK M/T ROK4/2002 (Dutney J) 4 JUDGMENT 1 10 20 30 40 50 60 provided a certificate for one week. There was not much improvement thereafter, and a claim was made on Workers Compensation. In 1999, with the pain in the ankle continuing, the applicant saw Doctor Cook, an orthopaedic surgeon, who advised him that there was no bony injury, and that he had tendonitis, and recommended physiotherapy. The applicant had various forms of treatment thereafter, including acupuncture from a Doctor Wang, without any evident relief, and in October 2000, first consulted Doctor Shaw. In January 2001, Doctor Shaw advised that there were two loose bodies evident on x-ray in the ankle, and recommended surgery to have them removed. Doctor Shaw was cross-examined. He says that he expected the operation to be successful but warned that there were some risks associated with it. The operation was not carried out until September 2001 because apparently the injury was not sufficiently serious that the applicant was prepared to take time off work to have the operation. Between suffering the injury and consulting Dr Shaw, the applicant had established his own business as a plumber, and appears to have been coping well with it. After the operation was carried out, Doctor Shaw, in his oral evidence today, indicated that he was pleased with the outcome, and expected a good result. He observed degeneration in the ankle but -- 3 of 7 -- 06122002 D.1 T27-28/BAO ROK M/T ROK4/2002 (Dutney J) 4 JUDGMENT 1 10 20 30 40 50 60 commented that in his view it was not sufficiently advanced as to be likely to cause a problem. Doctor Shaw expected that recovery would take some time, but after a period of some months, the recovery that Doctor Shaw expected had not occurred, and by December 2001, when Doctor Shaw again reviewed the applicant, Doctor Shaw formed the view that the applicant had a five per cent permanent disability. In January 2002, the applicant attended solicitors for the first time, and subsequently, additional medical reports have been obtained. In particular, the applicant went back to Doctor Cook, who advises in an affidavit sworn on the 20th of November 2002 as follows: "As the degenerative changes in his ankle progress, it will affect his ability to work as a plumber on roofs and on uneven surfaces. I would expect that the degenerative changes will impact on Robert Brett's ability to work in the aforementioned areas in 10 to 15 years." If Doctor Cook is right, and I should immediately say that Doctor Shaw is less pessimistic about the progress of the degenerative change, then the applicant would only be 40 to 45 years of age when his ability to work would be significantly curtailed. The end result would be a probable significant income loss at that time. In any event, it seems to me that what the applicant had up until at least the 11th of December 2001, when he was reviewed by Doctor Shaw following the operation, was a minor injury to -- 4 of 7 -- 06122002 D.1 T27-28/BAO ROK M/T ROK4/2002 (Dutney J) 4 JUDGMENT 1 10 20 30 40 50 60 the ankle causing some pain, but not interfering with employment, and not interfering, it would seem, with the applicant continuing to play cricket, and not providing sufficient discomfort, and that the operation was considered urgent. In those circumstances, and up to that point in time, it seems to me, that having regard to the risks associated with the action, the absence of any economic loss component, and the relatively minor nature of the injury, that it was not an injury that was such that a reasonable person, knowing the facts and taking appropriate advice, would regard those facts as showing that he had a right of action with reasonable prospects of success, and of resulting in an award of damages sufficient to justify the bringing of an action, and that he ought, in his own interests, to bring such an action. Thereafter, the circumstances have changed somewhat. Prior to the expiration of the limitation period on the 17th of April 2001, the most that could be said is that there was the possibility that if the operation was unsuccessful, there might be some economic loss. It seems to me that the fact that the operation would not succeed, and that the applicant would be left with degenerative change in relation to which there was a real prospect of future economic loss, means that he became aware of a material fact of the relevant kind on or after the 11th of December 2001. -- 5 of 7 -- 06122002 D.1 T27-28/BAO ROK M/T ROK4/2002 (Dutney J) 4 JUDGMENT 1 10 20 30 40 50 60 The respondent does not contest that up to the limitation period there is a prima facie cause of action but seeks to raise prejudice as a grounds for a discretionary refusal of the application. The prejudice is said to be that co-workers do not now recall the incident and that the supervisor, Mr Townsend, does not know who carried out the trenching work. There is also the fact that there are few records in relation to the work retained by Townson Plumbing Pty Ltd. In response to this the applicant submits that there were, in fact, no witnesses so that the lack of knowledge on the part of co-workers is either irrelevant or of such little relevance that I should disregard it for present purposes. The trench was not, in fact, dug by Townson Plumbing but by a contractor employed by Thiess Contractors with whom no inquiries have been made. The circumstances were set out in the contemporaneous documents provided to WorkCover at the time of the initial claim. In all of the circumstances it seems to me that I am not satisfied that a fair trial cannot now be held in relation to this matter or that the respondent is unfairly prejudiced by the delay. … HIS HONOUR: I order that the period of limitation within which to commence an action for damages for negligence and or breach of statutory duty and or breach of contract with respect to bodily injury arising from the work performed by the applicant on the 17th of April 1998 be extended to and including the 11th of December 2002. -- 6 of 7 -- 06122002 D.1 T27-28/BAO ROK M/T ROK4/2002 (Dutney J) 4 JUDGMENT 1 10 20 30 40 50 60 Now a further application is made for an order pursuant to Section 305 of the WorkCover Queensland Act 1996 for proceedings to be commenced notwithstanding that the provisions of the Act had not been complied with. That order is not opposed and accordingly I give leave to the applicant to bring a proceeding for damages for personal injury pursuant to Section 305 of the WorkCover Queensland Act 1996, such leave being conditional on a notice of claim pursuant to Section 280 of the Act being delivered to WorkCover on or before the 7th of January 2003. … HIS HONOUR: I make the costs of the application - each party's costs in any cause or any proceedings instituted. ----- -- 7 of 7 --