Bews v Consolidated Bearing Company (Qld) Pty Ltd [1992] QSC 376

I -- . . · . \'RE\ilsf:o COPIES ISSUED , state Reporting Bureau TRANSCRIPT OF PROCE.EDING§:ate z (_I ' o 1 ~-r m~r- (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold wi~hout the written authority of the Director, State Reporting Bureau.) --' - - SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 7 of 1992 GEOFFREY GRAHAM BEWS and CONSOLIDATED BEARING COMPANY (QLD) PTY LIMITED ROCKHAMPTON .... ~·-- ..:._ .. _________ ...... ,....._ ....... _ .., __ _ .. DATE 21/10/92 .. JUDGMENT 1 Plaintiff Defendant 4th Floor; The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 6 -- HIS HONOUR: In this applicat~on I have reduced my reasons to writing v,rhich I now publish. The application is dismissed with costs. .' .... ~. 10 10 20 20 30 30 ,J 40 ....... ·-· .. - .. ··-·-··-·4"··---~---···-·· -·-·-- ··-·-···- ···-· ·-· 40 CJ 50 so ---- 60 60 -Govt. Printer, Qld. -- 2 of 6 -- c IN THE SUPREME COURT OF QUEENSLAND MACKAY DISTRICT REGISTRY BETWEEN: GEOFFREY GRAHAM BEWS AND: No. 7 of 1992. Plaintiff CONSOLIDATED BEARING COMPANY (OLD) PTY LTD Defendant JUDGMENT - DEMACK J. DELIVERED the 21st day of October 1992. CATCHWORDS: Limitation of Actions - Extension of Period - Cause of Action in Respect of Personal Injuries - Whether Material Fact of a Decisive Character was within Applicant' s Means of Knowledge C - Application Dismissed. c Limitation of Actions Act 1974 ss 30, 31. COUNSEL: SOLICITORS: HEARING DATES: Mr P Land Mr D McMeekin MESSRS Beckey, Knight & Elliott MESSRS John Taylor & Co (Mackay) by R. M. South & Geldard (T/Ags) 12th day of October, 1992. for Applicant/ Plaintiff for Respondent/ Defendant for Applicant/ Plaintiff for Respondent/ Defendant -- 3 of 6 -- c IN THE SUPREME COURT OF QUEENSLAND MACKAY DISTRICT REGISTRY BETWEEN: GEOFFREY GRAHAM BEWS AND: No. 7 of 1992 CONSOLIDATED BEARING COMPANY (OLD) PTY LTD JUDGMENT - DEMACK J. DELIVERED the 21st day of October 1992. Mr Bews commenced employment with the defendant in November 1979. He was employed as sales representative and he serviced mining equipment, especially draglines. He travelled extensively, often on rough roads, and frequently lifted heavy objects. In 1988 he was off work for approximately nine months because of an injury to one of his cervical discs. His surgeon told him the injury "was attributed to the long times I was spending driving and the work I was doing", (transcript p. 5, 1. 1). He returned to work, but did less driving. However, he C continued with frequent heavy lifting. On 30 March 1990, he bent down to pick up a bucket and experienced severe lumbar c pain. He had not previously experienced such pain. After conservative treatment and investigation, a decompression was performed on 12 July 1990. He appeared to progress well, but by October 1990 he was experiencing continuing leg pain. A MRI showed a mixture of disc recurrence and fibrosis around the nerve root . He was told further surgery offered a 50% chance of worthwhile improvement. This surgery was performed on 13 December 1990, but did not produce worthwhile improvement. He was on Worker's Compensation until 7 February, 1992 when he received a permanent partial disability payment. It was suggested to him, apparently by someone on the orthopaedic board, that he seek legal advice. He did that and a writ was -- 4 of 6 -- ·. .. c issued on 12 February 1992. The bending incident on 30 March 1990 was the "straw that broke the camel's back" according to Dr Weidmann who ·has been Mr Bews' surgeon. The doctor says that repeated heavy lifting and driving over prolonged distances have contributed to his injury. Assuming that Mr Bews can prove that the defendant was negligent in exposing him to a significant risk of injury to his lower spine, that negligence occurred right from the beginning of his employment. It cannot be said to have occurred on 30 March 1990. It was assumed in argument that it had occurred long ago. The relevant date then is 7 February 1991, because the Court can only extend time to the date the writ was issued, if a material fact of a decisive kind was not within his means of knowledge until after 7 February 1991 . Under s.31 (2) time ~ can only be extended for one year. c ~ Mr Bews was a very honest and candid witness, as appears in the following passage (p. 3, 1. 15). According to Dr Weidmann' s report, that conversation he had with you regarding the less than 50 per cent chance of success was held in October of 1990?-- Yes. A couple of months before your operation?-- Yes, it was. So to summarise your position then, after seeing DrWeidmann in October of 1990 you knew you had significant pain, you knew you couldn't work with that pain and you were told you had less than a 50 per cent chance of alleviating the pain; is that the position?-- That's correct, although as far as working in concerned, I was sort of arguing on the case that I would not be able to be employed at the work that I was doing previously but I felt there was other work that I could possibly do and I would remain, you know, viable in the workforce. That wasn't to be though.But you were well aware that the range of employment opportunities you could pursue was greatly narrowed if you had to put up with this disabling pain?-- Yes. No doubt you were very concerned about your future after you had had that discussion with Dr Weidmann?-- Very. And following your discussion with him, you were aware, were you not, that even if successful, you would still need to be careful with you back in terms of having to lift weights, spend long hours in a car, maintaining one position; you knew that would always be a trouble for you through your life?-- Yes.And as I understand your affidavit, the duties you had required you to spend virtually all day in the car driving over rough roads at times, lifting heavy weights -- 5 of 6 -- r-· L c c c at times?-- That's correct. They were all parts of your job?-- Yes. Those aspects of the job really you knew you couldn't return to no matter how successful the operation might be?-- That's correct. At that time Mr Bews did not know he could sue his employer. He learned that when he consulted his solicitor in February 1992. Section 30 (d) of the Limitation of Actions Act provides that a fact is not within the means of knowledge of a person at a particular time if he did not know that fact and had taken all reasonable steps to ascertain the fact. Mr Bews in effect attempted to deal with his injury by undergoing surgery and by pursuing Workers' Compensation, without seeking legal advise. Has he taken all reasonable steps to ascertain the extent to which his injury was caused by negligence (s.30 [a] [v] )? This seems to be the material fact defined by s.30 (a) which is appropriate. The fact of negligence (s.30 [a][iii]) is also a material fact here. Once consulted, the solicitor obtained an engineer's report about the steps that could have been taken to avoid exposure to the risk of injury. It would not seem to me to be reasonable to say that Mr Bews should have consulted an engineer, before consulting a solicitor. However, it seems to me to be an inescapable conclusion that "all reasonable steps" in this case included seeking legal advice. If he had consulted a solicitor in October 1990 he would have been advised he had a reasonable prospect of success resulting in an award of damages sufficient to justify the bringing of the action and that he ought in his own interest and taking his circumstances into account to bring an action. The facts he admitted in the answers I have quoted coupled with what he had been told in 1988 about the effect of driving upon his spine would have called for that advice. It follows then in my opinion that the application must be dismissed. -- 6 of 6 --