Cole v Cook Furniture Pty Ltd [1993] QSC 157

( . Sc93j 1.s7 Reporting, Bureau TRANSCRIPT OF PROCEEDIN-GS (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 DEMACK J No 49 of 1993 JOHN MUMEAS COLE and COOK FURNITURE PTY LTD MACKAY •. DATE 19/05/93 JUDGMENT REVISED COFlt:S ISSJ:eQl,. State Re;:c<rs Bw~:au··. l ·Date \ q_ iS" / q :, 1 -- --··----------.4 Plaintiff Defendant 1 . 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 6 -- .., 190593 M/T MKY144/93 (Demack J) HIS HONOUR:· On 16 April 1993, the plaintiff ·issued ·a ·writ out·'Of ·this Court ·against his then employer. On the s-ame day, ·he·. issu·ed a summons seeking an order that the period of limitation for an action for personal injuries, in writ 49 of 1993 .be extended so that it expires on 24 April' 1993. He filed an affidavit in support of that application. The affidavit discloses that he commenced working for the defendan:·t approximately nine years ago. The defendant cond,ucts a furniture retail business in Mackay. The pla~nti·ff was employed as the only full time delivery driver for the· defendant. He annexed to his affidavit four photographs showing the kind of furniture that he was required to deliver on his own, and the equipment provided by the d~fendant for such delivery. He says that he was required to deliver these articles in various circumstances, including taking them up staircases ·.and through narrow landings and verandahs. His affidavit ·also had annexed to it a report· from the Madkay Base Hospital. This shows that the pla~ntiff had attended the hospital on a number of occasions, from 1982 onwards. The first occasion in 1982 involved an incident with a motorbike, and that was clearly not related to anything involving the defendant.· He ·also attended the hospital in 1983 complaining of pain in his neck.· This also seems to be unrelated to:his employment with the defendant. In 1983, he was given a workers' compensation form for four days, but that also seems to .J. 20 c: 30 50 CJ c) ( \ . ) 2 JUDGMENT -- 2 of 6 -- ( () ( 1.90593 M/T MKY144/93 (Demack J) predate his employment with the defendant. In 1985, he attended suffering from a painful back and left shoulder for approximately two months. An X-ray of the lumbar-spine showed no abnormality. he was diagnosed as suffering from muscle strain. He_ was given workers' compensation form for three days. He did not take time off work, but continued in his employment. He again attended in October 1987 suffering from mild back pain. He stated his job involved heavy lifting. He had vague tenderness over the fourth and fifth lumbar spines. There was no.suggestio;n he was given ,any workers' compensation form on that occasion, and no treatment seems to have been offered. He again presented on 27 December 1991 suffering from a painful left shoulder.. Again there is no reference to treatment. Some time around about the beginning of April. 1992, the plaintiff attended the Aboriginal and Torres Stra.it Islanders Legal Service and was referred to a doctor. That doctor referred him to Dr Tiong, who performed X-rays. The plain X-rays were taken on 6 April and a CT scan on 21 April 1.992. On 24 April 1992, he was referred to the Base Hospital and apparently there he saw a Dr Ho. He says tha·t Dr Ho told him that his back was worn out and that his back was in a state similar to that of a person in old age. · He then saw his solicitor again and the .matter finally involved the issue of the writ, as I have indicated. In view of the date of the '0 20 30 50 3 JUDGMENT -- 3 of 6 -- 190593 M/T MKY144/93 (DemackJ) issue of the writ, obviously the relevant:date·under Section 31(2) of'.the Limitation of Actions Act is 24 April 1992. Prior to that time,<the plaintiff knew-that he had a sore back, which he attributed to the hard work that he did in the course of his employment with the defendant. He had consulted doctors. He had, on one occasion, been offered three days off work, but he had not taken advantage of that, preferring to keep working in spite of the 'discomfort and aches and pains that he had. It was only in the weeks leading up to 24 April 1992 that he began to seek legal advice and-to be referred into the series of medical examinations which· culminated in the· op.l.nion that Dr Ho expressedon 24 April. Up until he heard that opinion, he was not aware of the nature and·extent of the personal injury that he had suffered. Certainly, he was well aware that in the course of :,'his employment, he was being exposed to the stresses· and ·strains of l'ifting and carrying awkward and heaVy i terns, 10 20 () 30 · which, a· lawyer would tell him, exposed him to a significant ( ) risk of personal injury. However{ the medical.attention that he had received up to date ·never alertedhim to the' serious extent to which a personal injury had·developed. He had never lost time off 'work;' he ha'd indeed never even claimed workers' compensation, 'when'perhaps the prudent response to the medical certificate offered in 1985 ·would have been to do that. so . ) . 4 JUDGMENT -- 4 of 6 -- ( __ / 190593 M/T MKY144/93 {Demack J) It seems to me that·there was nothing known to him up until April 1992 that made it reasonable for him to go·to a solicitor. He is not a well educated man. He is of the Islander community in Mackay. His employment with the defendant was terminated on 30 April 1993. This, of course, is not a relevant issue in this application, but it is perhaps indicative-of the status that Mr Cole enjoys in the workforce. His positive response to that status has always been to work hard without complaint, even though he was suffering pain, which other people enjoying a different status may have felt justified them in absenting themselves from work from time to time. His actions were reasonable, according to his particular situation. In all the circumstances, I am satisfied that prior to 24 April 1992, he was not aware of the nature and extent of his personal injury. I am satisfied that prior to that time, he had sustained a personal injury, and that this arose out of the course of his employment in ·circumstances where there is prima facie evidence of negligence. I am satisfied that the particular information he received was of a decisive kind, because prior to 24 April 1992, he did not know and did not have the means of knowing that any award of damages would be sufficient to justify the bringing of an action on his cl0;;im for personal injuries. He had not lost time off work and was able to continue working up until that time. Indeed, he continued working for 12 months and 10 20 so 5 JUDGMENT -- 5 of 6 -- 190593 M/T MKY144/93 (Demack J) six days after he received the information from Dr Ho. I am satisfied also that he took all reasonable steps to ascertain the nature and extent of his disability. In the circumstances, the order will be in terms of the summons. HIS HONOUR: I order that the costs of the application be costs in the cause. 20 c·. (.' 30 ( ~ ) 50 6 JUDGMENT -- 6 of 6 --