Cocup v John Holland Constructions Pty Ltd [1990] QSC 451

10 20 30 IN THE SUPREME COURT OF QUEENSLAND CHAMBERS No. 21 of 1989 BEFORE MR. JUSTICE DEMACK ROCKHAMPTON, 7 DECEMBER 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: STEPHEN MARK COCUP -and- JOHN HOLLAND CONSTRUCTIONSPTY LIMITED JUDGMENT Plaintiff Defendant HIS HONOUR: This is an application by Stephen Mark Cocup for an order that the period of limitation of this action be extended so that it expires on 22 September 1989. The matter came on before me in Mackay on the 25 May 1989. On that occasion Mr Cocup gave evidence and was 40 cross-examined. After that in the course of submission, Mr Britton who appeared for the respondent submitted that there was simply no evidence to connect the plaintiff's disability in May 1989 with an incident at work on the 27 October 1982. Mr McMeekin obviously felt the force of that submission and 50 asked for the matter to be adjourned to a date to be fixed to be brought on at two days notice. The matter has now been brought on. In the meantime Mr cocup has been examined by an orthopaedic surgeon in Townsville, Dr. Edward Lewis. The doctor expresses the 10 20 30 40 50 ___6_0---;-,----····-----------------·------------------ 60 -Govl. Printer, Qld. 1 -- 1 of 5 -- ,,-- , - !. 10 20 30 40 50 opinion that it was not unlikely that people would have some degree of pain after an incident and be able to tolerate that over a long period before the matter developed to the point of requiring surgery or serious medical attention. The report does not clearly and categorically state the connection between the injury in October 1982 and the plaintiff's present disability. However, it seems to me that that is really what the doctor is assuming and for the purposes of this application it seems to me to be adequate evidence. --~6~0- ______ _ -Govt. Printer, Qld. 2 10 20 30 40 50 60 -- 2 of 5 -- The respondent has not suggested that Dr. Lewis should be called and cross-examined. The evidence then discloses that on 27 October 1982 Mr. Cocup injured himself in a fall at work in the course of his employment with the respondent John Holland 10 10 Constructions Pty. Ltd .. He went to the Mackay Hospital and his disability was diagnosed as muscular bruising. He had rest and aspirins and things improved. He went back to work and attended the hospital again in May the following year. He was x-rayed and the x-rays were 20 20 normal. He was told he had muscle bruising or a pinched nerve, and he thought he would get better. He returned to work and continued working hard, generally free of back trouble. There does seem, though, to have been some low grade pain, as Dr. Lewis describes it. 30 30 40 The limitation period expired on 27 October 1985. At that time, and throughout the preceding 12 months, Mr. Cocup had continued to work. His information from the doctors that he had consulted was that he would get better and, generally, there was nothing to indicate to him that he ought to seek further medical opinion or that he had a disability that made it worth his while to commence an action. There was simply nothing there to indicate that he ought commence proceedings. In early 1987 he had some back trouble and attended a 40 50 50 chiropractor. In April 1987 he attended the Mackay Base Hospital and was reviewed again in the month that followed. He was admitted to hospital in September 1988 with a history of numbness in the left foot over a three day period and in the inner thigh, with parathesia and weakness in the left --~6~0-t- ----------- ---------------------------------~ 60 -Govt. Printer, Qld. 3 -- 3 of 5 -- 10 20 leg. On 20 September 1988 a myelogram was performed which demonstrated disc protrusion at L4/5 with a large disc lesion over L5/S1. In November 1988 a decompression laminectomy of LS and a discetomy of L5/S1 and a fusion of L5/S1 were perform. On 10 March 1989 a writ of summons and the summons seeking leave to extend time were filed. It seems to me that, provided the evidence of Dr. Lewis is accepted, all of the matters that the plaintiff must establish for the extension of time have been established. I have indicated that I accept Dr. Lewis' evidence for the purposes of this application. The period of six months · expired between the myelogram, when it was clear that Mr. Cocup had a serious back problem, and the filing of this 10 20 30 30 40 50 application. However, in the meantime Mr. Cocup had pursued medical treatment, which seems to me to be quite reasonable. It would seem to me to be extraordinary for a person who has had a diagnosis of being in need of spinal surgery and fusion, to put aside that treatment in the interests of commencing an action for damages. In view of the nature of the operation which was performed in November 1988, it seems to me to be quite reasonable that he should have brought this application in March 1989. So, in all the circumstances, I am satisfied that the matters that are required to be proved have been proved, and that time should be extended as sought in the summons. In respect of the matter of costs, it seems to me that this case involves a much longer time span than customarily------=6-=-0-+·····----··· ······----------------------------------~ -Govt. Printer, Old. 4 40 50 60 -- 4 of 5 -- .,___ ( ' ' 10 20 30 40 50 arises and that, in the circumstances, it would be proper to order that the costs of the application, including the costs of the second day, be the defendant's costs in the cause. -Govt. Printer, Qld. 5 10 20 30 40 50 60 -- 5 of 5 --