Byers v Capricorn Coal Management Pty Ltd [1990] QSCFC 6 [1990] 2 Qd R 306

\tp > 10 .20 30 40 50 60 ^C, qc IN THE SUPREME COURT OF QUEENSLAND FULL COURT BEFORE : Mr. Justice McPherson Mr. Justice de Jersey Mr. Justice Lee BRISBANE, 6 MARCH 1990 Appeal No. 65 of 1989 REVISED copies ISSUED Court Reporting Bureau □ate-.iJL/ 5 / ^tO L, 11, — ^1* (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: MARK ANDREW CHARLES BYERS (Plaintiff) -and- CAPRICQRN COAL MANAGEMENT PTY . LTD. (Appellant) JUDGMENT Respondent Appellant MR. JUSTICE McPHERSON: I would dismiss the appeal with costs. I agree with the reasons about to be published by my brother Lee. I am authorised by my brother de Jersey to say that he agrees that the appeal should be dismissed with costs and also to say that he agrees with the reasons about to be published. MR. JUSTICE LEE: In my opinion the appeal should be dismissed with costs. I publish my reasons. MR. JUSTICE McPHERSON: The order of the Court is: appeal dismissed with costs. 10 20 30 40 50 60 ‘‘ovt. Printer, Qid. l- [1990] QSCFC 6 -- 1 of 9 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 65 of 1989 BETWEENN: ]yEVRK ANDREW CHARLES BYERS ( Plaintiff) Respondent AND : CAPRICORN COAL MANAGEMENT PTY. LTD. (defendant) Appellant McPHERSON J de JERSEY J. LEE J. Reasons for Judgment delivered by Lee J on 6th March, 1990. McPherson J and de Jersey J agreeing with those reasons and the order made. 'APPEAL DISMISSED WITH COSTS -- 2 of 9 -- ^ 90(t)0 fo IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 65 of 1989 Before the Full Court Mr. Justice McPherson Mr. Justice de Jersey Mr. Justice Lee BETWEEN : MARK ANDREW CHARLES BYERS (Plaintiff) Respondent AND : CAPRICORN COAL MANAGEMENT PTY. LTD. (Defendant) Appellant JUDGMENT: LEE J. Delivered the 6th day of March, 1990. CATCHWORDS : Limitation of actions - Extension of period - Discovery of fact which would enhance prospect of success in action - New fact likely to substantially increase award of damages - Whether material fact of a decisive nature not within means of knowledge - Limitation of Actions Act 1974-1981 - ss. 30(a)(iv), 30(b), 31(2) (a) Counsel: Mr. Mr. Solicitors : Hearing date: K.C. Fleming Q.C. and Mr. M. Stewart for Appellant S.G. Jones Q.C. for Respondent Chambers McNab Tully & Wilson for Appellant Macrossan & Amiet for Respondent 15th February, 1990 -- 3 of 9 -- FC <i'D|00b IN THE SUPREME COURT OF QUEENSLAND FULL COURT BETWEEN: Appeal No. 65 of 1989 AND: MARK ANDREW CHARLES BYERS (Plaintiff) Respondent CAPRICORN COAL MANAGEMENT PTY. LTD. (Defendant) Appellant JUDGMENT - LEE J. Delivered the 6th day of March, 1990. This is an appeal from an order made on 7th September, 1989 whereby the period of limitation for the commencement of an action by the respondent for damages for negligence and/or breach of statutory duty with respect to bodily injury arising from a work related accident on 4th March, 1985 was extended up to and including 25th July, 1988. The limitation period expired on 4th March, 1988. The writ was issued on 25th July, 1988. The order can be supported only on the footing that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the respondent until after 4th March, 1987 and no earlier than 25th July, 1987: Limitation of Actions Act 1974-1981, s. 31(2); Moriarty v. Sunbeam Corporation Limited [1988] 2 Qd. R. 325 per Macrossan J. (as the Chief Justice then was) at 334. There was no dispute that there is evidence to establish the right of action apart from the defence founded on -- 4 of 9 -- 2 the expiration of the period of limitation so as to satisfy the requirements of s. 31(2)(b). The fact relied upon in this case was the oral opinion conveyed to the respondent by Dr. Fergus Wilson, orthopaedic surgeon, in June 1988 that it would be necessary for the respondent to get a different and lighter job to that of underground machine/man miner which was his occupation at the time of the accident and ever since, apart from periods off work. He had never been told this before. Up to 25th July, 1987, he had been told by numerous doctors including specialists who he had consulted that he had a muscular strain that would probably clear up. It was said that this new fact transformed his case into one which would then probably result in a substantial award of damages for future economic loss whereas previously, any such award would not have been sufficient to justify the bringing of an action. There were no light jobs in the mine so that he was forced to give up a highly paid job. The appellant submitted that the respondent had failed to prove that a material fact of a decisive character was not within his means of knowledge until after 25th July, 1987 because as at that date he knew that the pain in his hip was the result of a slip and fall whilst carrying a cable over his shoulder in order to manually pull out the cable from a reel on a shuttle car in the underground mine on 4 th March, 1985, that the injury prevented him from working on three occasions, that his condition showed no signs of improving but rather that it was deteriorating, and that his condition interfered with his ability to work. These factors, it was submitted, caused him to know -- 5 of 9 -- 3 prior to 25th July, 1987 that he had a substantial claim worth pursuing and that any reasonable person properly advised would have had a reasonable cause of action: Berg v. Kruger Enterprises (Division of Besser Old.) Ltd. (W. 4047 of 1986, Full Court, 8th June, 1989 unreported). It was further submitted that not only must a new fact be shown, but also the respondent must demonstrate that he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it: Moriarty v. Sunbeam Corporation Ltd. (supra) at 333, 336; Berg v. Kruger Enterprises (supra). In this case, according to the submission, it could not be said that Dr. Fergus Wilson's opinion was the first indication that the plaintiff realised that the injury impinged upon his ability to work. Rather, the opinion went merely to a fact going to an enlargement of his prospective damages in circumstances where, apart from this fact, the damages likely to have been recovered by the respondent would not have been too small to bother about: Taggart v. The Workers' Compensation Board of Queensland [1983] 2 Qd. R. 19. Counsel for the respondent submitted that prior to July 1987, notwithstanding his continuous pain with some relatively short periods off work during which he received workers' compensation payments, his guantum of damages, even had he then obtained legal advice, would have been too small to bother about, having regard to the receipt of workers' compensation payments which would have had to be refunded and legal costs. Other factors were also relied upon in the consideration of his overall -- 6 of 9 -- 4 circumstances such as his limited education and young age and the fact that he would be suing an employer in a very competitive industry. He would not wish to take such a course because of the risk to his job unless any award was likely to be "sufficient to justify the bringing of an action". Reliance was placed on the decision of the New South Wales Court of Appeal in Royal North Shore Hospital v. Hudson (1986) 7 N.S.W.L.R. 283 at 287 per Hope J.A. to the effect that in the context of a similar provision, it was not the policy of the law that a person should sue whenever he had the opportunity. It appears that he saw his present solicitor in June 1988 and acted promptly by the issue of the writ on 25th July, 1988 after the fact relied upon came to his knowledge. It is not necessary to set out the long history since the accident. He suffered fairly continuous pain and consulted numerous doctors including specialists. In all, he was off work on three occasions between 4th March, 1985 and 4th January, 1988 when he finally gave up work because of his hip condition. The first occasion was between 7th and 25th March, 1985 for 18 days, the second was 8th to 19th July, 1985 for 11 days, and the third occasion was 19th to 21st March, 1986 for two days. On all of these occasions, and indeed for a period after 4th January, 1988 when he finally gave up work, he was in receipt of workers' compensation. Otherwise he lost no income since the period of the accident and persevered with his job as an underground miner until finally some particular work which he was called upon to perform caused him to give up work permanently on 4th January, 1988. -- 7 of 9 -- 5 It is also clear that at all times prior to 25th July, 1987 the respondent had been told that the injury in question was a muscular type strain that would probably clear up and so allow him to continue in his fairly highly paid job. The respondent's conduct in persevering with his work over this period in spite of pain indicates that he relied and acted upon this information. ' This case differs from those where there has been a long period off work since the accident where a substantial award for past and future economic loss was always likely. It is also distinguishable from the facts in Berg v. Kruger Enterprises (supra). Applying the principle in Sugden v. Crawford [1989] 1 Qd. R. 683, as counsel for the respondent submitted, the newly discovered fact transformed the case into one where a substantial award of damages was then likely. His Honour had the advantage of hearing the respondent give oral evidence including his cross-examination. In his judgment he dealt with the matter in the following way:- "Material facts, of course, cover a great range of things including the nature and extent of the personal injury caused. It is, indeed, still the case that the precise nature of the injury that Mr. Byers has suffered is not defined with any precision by any of the many doctors he has consulted. The most consistent view is that there is some form of soft tissue injury somewhere around the hip. That describes the nature of the injury. The extent of the injury has consistently been treated by all the doctors, except Dr. Fergus Wilson, as something that will clear up with the passage of time. It is only Dr. Fergus Wilson who has indicated that the extent of the injury is such that light work is recommended. This is clearly a very significant matter and a most material fact which came to the applicant's knowledge only in June 1988. Up until that time a reasonable person knowing the facts would not, it would seem to me, have sought legal advice because he had consulted many medical practitioners and had received consistent advice that things would clear up. Up until that time no financial loss had been sustained and no future -- 8 of 9 -- 6 financial loss was within contemplation. I am satisfied that the applicant has demonstrated that the material fact of a decisive kind did not come to his knowledge until June 1988. He then acted promptly with the issue of the writ, and, in my view, the order as sought should be made ." His Honour correctly applied the provisions of s. 30(a) (iv) and s. 30(b) and was entitled to conclude as he did. The aforesaid reasons indicate that the respondent satisfied the test laid down by Macrossan J. (as the Chief Justice then was) in Moriartv v. Sunbeam Corporation Limited at 333, as adopted by Connolly J. with whom Ryan and Cooper JJ. agreed in Berg v . Kruger Enterprises (supra) as follows "in cases like the present, an applicant for extension discharges his onus not merely by showing that he has learned some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learned fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s. 30(b) comes down to : Taggart v. The Workers' Compensation Board of Queensland [1983] 2 Qd. R. 19, 23, 24 and Docarmo v. Forde Excavations Ptv. Ltd. (1984) 154 C.L.R. 234, 251 per Deane J." Accordingly, I would dismiss the appeal with costs. -- 9 of 9 --