Bevington v Queensland Alumina Ltd [2002] QSC 455

State Reporting Bureau LIBRARIAN %?€xu] (5?SC455" Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DUTNEY J No S441 of 2002 LESLIE GRAHAM BEVINGTON and QUEENSLAND ALUMINA LTD ROCKHAMPTON ..DATE 06/12/2002 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date: 11 December, 2002 Applicant Respondent WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.1 1 4 th F r, The Law Com Georm > Strer T. 'risbare, Q. 4 r ion 7) 32-: 360 Fax: C 3247 5."32 -- 1 of 6 -- HIS HONOUR: This is an application to extend the limitation period in relation to an injury suffered by the applicant at work on the 22nd of July 1998. The applicant was doing maintenance work inside a tank with a slippery sloping floor. It is alleged that no handrails or other form of assistance was provided, and that he fell and suffered a knee injury. The point which is taken in relation to the application by the respondent is that no material fact of a decisive character came within the means of knowledge of the applicant within the period prescribed by section 31 subsection 2 of the Limitation of Actions Act 1974. A brief chronology of the marter is as follows: Cn the day following the accident the applicant consulted a Doctor Huff, a general practitioner, who informed the applicant that there was nothing specific wrong with him. The injury did not ° improve, and ultimately in September 1998, the applicant consulted Doctor McMahon, an orthopaedic specialist. An operation for the excision of a meniscal tear was performed on the 2nd of October 1998, following which the applicant was on light duties for a period before returning to normal duties. There was further review by Doctor McMahon in November 1990, and a repeat arthroscopy was performed in that month . 06122002 D .1 T11/MLH03 M/T ROK1/2002 (Dutney J) 1 10 20 30 40 50 2 JUDC- ’ 'TNT 30 -- 2 of 6 -- 06122002 D.l T11/MLH03 M/T ROK1/2002 Putney J) In February of 2000, Doctor McMahon provided a report to WorkCover, the contents of which were made known :o the applicant. Ir. that report Doctor McMahon expressed the opinion chat the applicant had ongoing anterior and medial knee pain following the partial medial meniscectomy. The injury was work related. Importantly, Doctor McMahon opined that the injury was now stable and stationery and would not significantly benefit from further physiotherapy, do more hydrotherapy. Doccor McMahon expressed the view that the medial knee pain would continue and that further treatment would make little difference. The permanent incapacity was assessed at 7 per cent. At that point in time Mr Bevington had been suffering, more or less, continuous knee pain for a period of more than a year and a half. He was continuing to work. He was on ordinary duties, although he was taking Panadeine Forte to relieve pain caused by working 12 hour shifts with continual- ascending and descending of stairs. For the applicant, Mr Arnold submits that at that time a reasonable person in Mr Bevington's position would not have commenced proceedings. He had suffered no loss of income, he was in fact working, he was in fact on full duties, and the advice he had received, which it seems to me reasonable to rely upon, was that his condition was stable., even though it was unlikely to improve. 1 10 20 30 40 50 3 JUDGMENT 30 -- 3 of 6 -- 06122002 The applicant's case is chat circumstances changed after the applicant consulted a solicitcr on the 31st of October 2001, after receiving a notice of assessment from WorkCover. The solicitor advised the applicant chat he was out of time to commence proceedings, but referred him to Doctor White, an orthopaedic surgeon. Doctor White's prognosis was more pessimistic than ant 7 that the applicant had previously received. Doctor White expressed the view that there was a probability of further degeneration of the knee joint, such that a total knee replacement would have to be considered. In the report, Doctor White considered that the applicant, at the date of assessment, was suffering a 25 per cent injury to the left lower limb as a whole, and that that would increase to 35 to 40 per cent, which would necessitate the total knee replacement. Perhaps more importantly, . Doctor White indicated that Mr Bevington was permanently unfit for work involving heavy physical labour, climbing, squatting, or work on rough ground. In other words, the applicant was physically unfit for the work that he was doing, and had been doing for some considerable time. The applicant is 53 years of age. He had intended tc -work at least to the age of 65, which indicates no remaining working life of about 12 years. It seems to me that a reasonable 2.1 I11/MLH03 M/T RCKI/2:02 (Dutney J) 1 10 20 30 40 50 JUDGM r NT 0 -- 4 of 6 -- 1 061220 C 2 D.l T11/MLH03 K'T RCK1/2002 (Dutney J) person in the applicant's position might well not consider the bringing of proceedings in circumstances where he was working, and coping, and had suffered r.o economic loss, but that it was worth commencing proceedings when there became a probability that there would be an economic, and perhaps a significant economic loss. In those circumstances, it seems to me that the report of Doctor White does constitute a material fact of a decisive nature within the meaning of the legislation, and that that fact became known to the applicant, at the earliest, when he consulted Doctor White or. the 9th of July 2002, or more probably, when the report was received on the 24th of July 2002. In those circumstances, and there being no issue of prejudice or other opposition to the application, I extend the period of limitation pursuant to section 31, subsection 2 until the 9th of July 2003. HIS HONOUR: There is on foot an action for personal injuries< which was filed on the 16th of September 2002 contemporaneously with the application to extend time. That action was commenced without complying with the pre-Court procedures in the WorkCover Act, and without any leave being sought or obtained. Consequently it seems clear that the 10 20 30 40 50 >0 5 JUDGMENT -- 5 of 6 -- 06122002 D.l T11/MLH03 M/T ROK1/2002 (Dutr.ey J) action is a nuilicy, and I order that clair. number 441 of 2002 be struck out. HIS HONOUR: I make the respondent's coses in any action commenced pursuano to the extension of time, and in the event that no action is commenced, I order the applicant to pay the respondent's costs of this application. 1 10 20 30 40 50 60 JUDGMENT -- 6 of 6 --