Ferrier v WorkCover Queensland [2019] QSC 11

SUPREME COURT OF QUEENSLAND CITATION: Ferrier v WorkCover Queensland [2019] QSC 11 PARTIES: MICHAEL NEIL FERRIER (applicant) v WORKCOVER QUEENSLAND (respondent) FILE NO/S: SC No 76 of 2018 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Mackay DELIVERED ON: 31 January 2019 DELIVERED AT: Rockhampton HEARING DATE: 28 November 2018 JUDGE: Crow J ORDER: 1. The period of limitation for the action in respect of personal injury suffered by the applicant arising from an incident in the course of his employment on 31 July 2010 be extended so that it expires up to and including 60 days from the date the applicant complies with s 295 of the Workers’ Compensation and Rehabilitation Act 2003; 2. The respondent file and serve written submissions as to costs within 7 days hereof and the applicant file and serve written submissions in reply within 3 days’ receipt of the respondent’s written submissions. CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF TIME IN PERSONAL INJURIES MATTERS – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – PRINCIPLES UPON WHICH DISCRETION EXERCISED - where applicant alleges he suffered an injury during the course of employment - where the applicant wishes to pursue a claim for damages against the respondents – where the limitation period for the claim has expired – whether the newly learned fact had the necessary quality of decisiveness - whether the applicant was in possession of sufficient information before the critical dates – whether the respondents would suffer prejudice at trial – whether time should be extended. -- 1 of 20 -- 2 Limitations of Actions Act 1974 (Qld) s 30, s 31(2) Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 295 Moriarty v Sunbeam Corp Limited [1988] 2 Qd R 325 Byers v Capricorn Coal Management Pty Ltd (1990) 2 Qd R 306 Castlemaine Perkins Ltd v McPhee [1979] Qd R 469 Dick v University of Queensland [2000] 2 Qd R 476 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Healy v Femdale Pty Ltd [1993] QCA 210 Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 Workers’ Compensation Regulator v Pryszlak [2018] QCA 157 Fuller v Bunnings Group Ltd [2007] QCA 216 Baillie v Creber & Anor [2010] QSC 52 R v Lawrence [1982] AC 510 Ballingall v WorkCover Queensland & Ors [2017] QSC 133 COUNSEL: C Heyworth-Smith QC for the applicant A Mellick for the respondent SOLICITORS: Macrossan & Amiet for the applicant BT Lawyers for the respondent Background Facts [1] Michael Neil Ferrier applies for an order pursuant to s 31(2) of the Limitations of Actions Act 1974 (Qld) extending the period of limitation for an action for personal injury up to and including 60 days from the date upon which Mr Ferrier complies with s 295 of the Workers’ Compensation and Rehabilitation Act 2003. [2] Mr Ferrier is currently 29 years of age having been born on 18 March 1989. Mr Ferrier left school after completing Year 10 in 2005 and then attended Mackay TAFE to commence a mechanical course. Whilst attending Mackay TAFE, Mr Ferrier was offered a traineeship as a motor mechanic with DP Auto on Malcomson Street, Mackay. [3] Mr Ferrier left TAFE and took up that employment which lasted for three months. Mr Ferrier then found himself out of employment for a brief period of time as a 16 year old before obtaining employment as a labourer, then as a shipwright, then as a boat builder, then as a farm labourer, then as a re-tread fitter at a tyre business. [4] On 31 May 2010, Mr Ferrier found employment as a trades’ assistant at MACS Engineering Pty Ltd of 2D Victoria St, Mackay. Mr Ferrier’s duties consisted of fitting accessories to vehicles, typically 4WD vehicles. [5] Mr Ferrier swears, and it was not disputed, that two months after he obtained employment as a trades’ assistant, that is, on Saturday 31 July 2010, he was directed to fit a tow bar and a bull bar on a Toyota Hilux. Mr Ferrier identifies the bull bar as an ECB, being an aluminium bull bar purchased from East Coast Bull Bars. -- 2 of 20 -- 3 [6] Mr Ferrier swears that when attempting to fit the bull bar which weighed approximately 35kg, he had to lift the bull bar up and hold it in position while another worker got under the vehicle, lay on the floor, and inserted bolts through a hole in the passenger side of the vehicle chassis rail from underneath. Mr Ferrier says it was whilst holding the 35kg weight of the bull bar and leaning forward, he felt a sharp stabbing pain in his lower back. [7] Although complaining of pain in his lower back to his fellow worker, he continued working and completed the task of fitting the bull bar. Mr Ferrier then ceased work at 11:00am and went home and rested. Mr Ferrier says that the work procedure he described in holding the bull bar whilst leaning was the standard work procedure for completing the task and that he never received any advice or instruction from his employer in relation to the task of fitting bull bars to vehicles. Mr Ferrier was only 21 years of age when the incident occurred. [8] Mr Ferrier attended at the Mackay Base Hospital emergency section on the following day, Sunday 1 August 2010, because the pain in his back had become more severe and he had difficulty sleeping. Mr Ferrier was referred for a CT scan of his spine, given medication for the pain and was released from Mackay Base Hospital later that day. [9] Exhibit GCP13 is a copy of the Mackay Base Hospital records. That confirms that at 4:52pm on 1 August 2010, Mr Ferrier did attend Mackay Base Hospital complaining of significant back pain which was radiating down his right leg, and importantly “onset after lifting a bull bar yesterday 9:00am.” [10] Mr Ferrier thereafter consulted three general practitioners before he was medically certified as fit to return to normal duties on 27 September 2010. [11] Dr Redmond, neurosurgeon, examined Mr Ferrier on 17 September 2010 and provided a report to Dr Jayaram on that date. The history recorded by Dr Redmond is consistent with Mr Ferrier’s evidence as described. Dr Redmond said the radiology showed a prominent L5/S1 disc protrusion with impingement on the exiting S1 nerve root. Dr Redmond’s opinion, provided to Dr Jayaram for his guidance records: “At this stage, there is a gradual recovery in his condition and I do not think it is necessary to embark on any further investigations or treatments, but should the condition fail to respond to his satisfaction, or should it worsen, then it may be appropriate to have him reviewed by me for consideration of a discectomy procedure.” [12] Mr Ferrier, accepting his specialist’s and general practitioner’s advice, returned to work doing normal duties. Mr Ferrier did suffer from back pain from time to time. In particular, Mr Ferrier attended upon his general practitioner on 23 February 2011 complaining of suffering low back pain, was given a script for Panadeine Forte, and then again returned to work. Additionally, on 3 April 2012 Mr Ferrier attended again on Dr Jayaram complaining of back pain and was given a script for Panadeine Forte, which he consumed and returned to work. [13] Mr Ferrier’s work history is set out in Paragraph 37 of his affidavit. Mr Ferrier was cross- examined on his working history and his symptoms of pain. Since he has been injured, Mr Ferrier has worked as a trades’ assistant, a suspension technician, a labourer and a stationhand. All of the work has been manual, and has, at times, required heavy manual -- 3 of 20 -- 4 labour. Mr Ferrier has not left any of his jobs due to back pain and was able to manage his back pain by avoiding activities which provoked the pain and, when he could not, by resting and finishing work early. [14] When he was injured, Mr Ferrier was working for MACS Engineering in Victoria Street in Mackay and remained working there until June 2012. In June 2012, Mr Ferrier obtained work with R J Spinks Pty Ltd trading as Minecorp as a trades’ assistant. In August 2012 Mr Ferrier obtained work with Haynes Mechanical, a labour hire firm, for a period of a week or so, before working at Autobarn as a trades’ assistant. Mr Ferrier then worked as a suspension technician for Pedders Suspension in the 2014 financial year, before obtaining work as a labourer at Keystone Group. [15] Between July 2013 and June 2015 Mr Ferrier performed some work at Glendon Station as a stationhand. [16] Mr Ferrier then obtained employment with Mackay Sugar for the crush of 2014/2015. Mr Ferrier says that was the only time he underwent a medical for employment, however, Mr Ferrier could not remember the results of the medical but, assumed he passed as he obtained the job. Mr Ferrier then after finishing the crush in November 2015 obtained work again at Pedders Suspension and worked there from 2 February 2016 until present. During that entire period Mr Ferrier coped with his back pain. [17] On 13 March 2018, whilst working at Pedders Suspension, Mr Ferrier suffered pain in his lower back when exiting a vehicle that was on a hoist. Mr Ferrier attempted to manage the pain with rest, hot showers, taking medication, and avoiding activities that aggravated the pain, but the pain continued. In terms of the advice of Dr Redmond, it was then that Mr Ferrier’s “conditions fail[ed] to respond to his satisfaction.” [18] Mr Ferrier thereafter sought and received medical advice, and on 25 September 2018 sought legal advice from Macrossan and Amiet Solicitors. Mr Ferrier told a solicitor, Mr Paterson, of his history of the back injury of 31 July 2010, and 13 March 2018, of the history of symptoms in between, and Mr Ferrier’s attendance on the Mackay GP Super Clinic on 5 June 2018 with a further referral for a lumbosacral spinal x-ray and CT scan. Mr Ferrier told Mr Paterson that he had made an application for workers’ compensation for the 13 March 2018 incident, but the claim was rejected and so Mr Ferrier was accordingly concerned about his future. He was then aged only 29 years. [19] Mr Paterson provided Mr Ferrier with advice, and lodged a notice of claim for damages on 27 September 2018. WorkCover had arranged for Mr Ferrier to be examined by Dr Christopher Cunneen on 12 October 2018. Mr Paterson arranged for Mr Ferrier to be examined by Dr Scott Campbell on 22 October 2018. [20] Dr Campbell completed his report of 22 October 2018 and provided it to Macrossan and Amiet Solicitors who provided it to Mr Ferrier, who read the report. Dr Campbell diagnosed that, as a result of the injury of 31 July 2010 Mr Ferrier had suffered from an L5/S1 disc injury. In Paragraph 48 of his affidavit, Mr Ferrier swears (and he was not challenged in cross-examination) that prior to reading the report of Dr Campbell, he was not aware that: (a) he had suffered a 2% whole person impairment as a result of the injury to his lower back on 31 July 2010; -- 4 of 20 -- 5 (b) the injury to his lower back suffered on 31 July 2010 made him more susceptible to injuring his lower back in the future; (c) the injury to his lower back that he suffered on 31 July 2010 made him more susceptible to the injury he suffered on 13 March 2018; (d) any exposure to heavy lifting and bending is likely to cause re-injury to his back and would be best avoided; (e) as a consequence of the injury sustained on 31 July 2010, that Mr Ferrier ought to avoid employment involving any exposure to heavy lifting and bending, and he is best suited now only to light sedentary type work; and (f) Mr Ferrier may be required to undergo discectomy surgery in the future which would cost between $12,000 and $15,000. Material Fact of a Decisive Character [21] Section 31(2) of the Limitations of Actions Act 1974 (Qld) provides:- 31 Ordinary actions […] (2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court— (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly. [22] Section 30 of the Act provides: 30 Interpretation (1) For the purposes of this section and sections 31, 32, 33 and 34— (a) the material facts relating to a right of action include the following— (i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded; (ii) the identity of the person against whom the right of action lies; (iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury; -- 5 of 20 -- 6 (iv) the nature and extent of the personal injury so caused; (v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty; (b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing— (i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and (ii) that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action; (c) a fact is not within the means of knowledge of a person at a particular time if, but only if— (i) the person does not know the fact at that time; and (ii) as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time. [23] In order to succeed in an application to extend the time period pursuant to s 31 of the Act, the applicant bears the onus of showing: (a) that a material fact; (b) of a decisive character; (c) was not within his or her means of knowledge until a date no more than 12 months prior to the date to which the extension is granted; (d) there is evidence to establish a right of action; and (e) that no prejudice, in the relevant sense, would be occasioned to the respondent that would justify disallowing the application. [24] The step by step approach, that is, considering each of the above elements sequentially, is required as a matter of construction of the statute.1 Step 1: A Material Fact [25] Mr Ferrier identifies the material facts in Paragraph 48 of his affidavit, being the information received as a result of reading Dr Campbell’s report, which relates to the nature and extent of the injury sustained on 31 July 2010. That is, Dr Campbell’s report provides evidence that the incident caused permanent whole person impairment, made Mr Ferrier more susceptible to lower back injury in the future, rendered it inadvisable for 1 See Dick v University of Queensland (2002) 2 Qd R 476 at [26]. -- 6 of 20 -- 7 Mr Ferrier to engage in occupations which required heavy lifting or bending as that might then re-injure his lumbar spine, and that as a result of the injury of 31 July 2010, Mr Ferrier is best suited to light sedentary type work in the future. [26] Mr Ferrier additionally received advice from Dr Campbell that if required to undergo surgery in the future, a discectomy would cost him a sum in the vicinity of $12,000 to $15,000. [27] The nature and extent of a personal injury so caused by an incident is expressly defined to be a material fact relating to a right of action pursuant to s 30(1)(a)(iv) of the Limitations of Actions Act, as are the economic consequences of the injury.2 Step 2: Of a Decisive Character [28] In the present case, the provision of Dr Campbell’s report containing his opinions does provide a material fact relating to cause of action. The requirement of material facts related to a right of action being of a decisive character has been explained by Macrossan J (as he then was) in Moriarty v Sunbeam Corp Limited as follows:3 “In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt 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 learnt 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 Do Carmo v. Ford Excavations Pty Ltd (1984) 154 C.L.R. 234, 251 per Deane J.” [29] In the present case, it is clear that prior to the provision of Dr Campbell’s report, Mr Ferrier would not, even without the benefit of appropriate advice, have appreciated that he had a worthwhile action to pursue and should, in his interests, pursue it. [30] Prior to the receipt of Dr Campbell’s report, the medical evidence, whilst confirming that Mr Ferrier had an injury to a lumbosacral disc, did not suggest that the injury would be permanent, nor likely to impact upon his ability to engage in manual work. [31] In Greenhalgh v Bacas Training Limited & Ors4 Keane JA (with whom Cullinane J and Lyons JA agreed) said: “[21] In Wood v Glaxo Australia Pty Ltd, Macrossan CJ said: 2 Byers v Capricorn Coal Management Pty Ltd (1990) 2 Qd R 306; Watters v Queensland Rail (2001) 1 Qd R 448 at 453 at [11] per Thomas JA. 3 Moriarty v Sunbeam Corp Limited [1988] 2 Qd R 325 at 333 adopted by Connolly J in Berg v Kruger Enterprises Ltd [1990] 2 Qd R 301 (with whom Ryan J , Cooper J (as he then was) agreed). 4 [2007] QCA 327 at [21] – [24] (footnotes omitted). -- 7 of 20 -- 8 The body of evidence which a plaintiff collects, or … his assemblage of 'material facts', will only constitute a 'decisive' collection when an appropriately advised reasonable man in his position is possessed or would, if he had enquired in appropriate fashion, be possessed of what he would regard as reasonable and worthwhile litigation prospects. The policy detectable in this legislation does not suggest that a potential plaintiff with the limitation period running against him must necessarily always commence his proceedings when he has no more than a hint of the existence of a necessary link in his chain of proof but, of course, if being at that point he delays he will do so at his peril because he will only subsequently save himself if he can persuade a judge that he did not know enough or would not, even if he had undertaken appropriate enquiries, have known enough to justify commencing proceedings at an earlier time. [22] Whether an action for damages is worthwhile is an assessment which must be made having regard to the expense and risks of litigation. When an assessment of costs, risks and benefits should reasonably have led to a conclusion that an action was worthwhile must be determined having regard also to the plaintiff's previous attempts to overcome any adverse economic consequences of his injuries. These attempts had largely been encouraged by medical opinion; that the plaintiff persisted with these attempts in these circumstance can hardly be said to have been unreasonable. [23] As Thomas JA said in Pizer v Ansett Australia Ltd: In the present case leave was granted to appeal, mainly on the Court's perception that the case was reasonably arguable, and that the effect of the decision would produce significant consequences. In appeals of the present kind, when the material fact concerns the nature and extent of personal injury, questions of degree are necessarily involved. At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it. At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension, and an appeal court could likewise readily correct an erroneous decision. Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the plaintiff's knowledge and as to whether the reasonable person contemplated by s 30(b), endowed with such knowledge and having taken appropriate advice, would have brought proceedings. Appeals involving extensions of periods of limitation commonly raise these particular issues which involve factual assessments. Although -- 8 of 20 -- 9 the eventual decision is discretionary the determination of these issues is not. They involve findings of fact and a determination whether those facts satisfy the requirements of the statute. It is worth mentioning however that such findings and determinations are made in an area where different minds might reasonably reach different conclusions. In such a situation the appeal court is not free to decide the question according to its own preference. Unless the judgment reveals that the conclusion is affected by some error of law or fact, or the ultimate discretion can otherwise be seen to have miscarried, there is no basis for appellate interference. [24] I can discern no error of law or fact in the learned primary judge's conclusion that Dr Van der Walt's opinion of 21 June 2006 was a material fact of a decisive character. In my respectful opinion, it was open to the learned primary judge to regard the 21 June 2006 opinion of Dr Van der Walt as providing to the plaintiff, for the first time, unequivocal evidence enabling the plaintiff to prove a level of economic loss which would make an action for damages worthwhile.” [32] There are some factual parallels between Greenhalgh’s case and the applicant’s case. Greenhalgh was aged 20 years when he suffered personal injury on 21 June 2007. The material fact of a decisive character being relied upon was the opinion of Dr Van der Walt, orthopaedic surgeon, as to the extent of the plaintiff’s injury not being within the plaintiff’s knowledge until the receipt of Dr Van der Walt’s opinion. It is recorded in the Court of Appeal’s judgment at Paragraph 9, Greenhalgh returned to full work duties one month after the accident, and continued to work, no doubt in the hope his injury would resolve, however it did not resolve completely. [33] A little over three years after the injury the applicant Greenhalgh sought out and received Dr Van der Walt’s opinion to the effect that Greenhalgh ought to receive some physiotherapy treatment for six weeks, return to work, complete his apprenticeship, then after completing his apprenticeship, Greenhalgh was advised to find alternative light work for a period of 6 months to see if his injury recovered. Greenhalgh accepted Dr Van der Walt’s advice, however he did not recover and so after Dr Van der Walt’s second report of 5 May 2005, after noting Greenhalgh’s symptoms had worsened, Dr Van der Walt opined that Mr Greenhalgh had indeed suffered a 5% whole person impairment due to his shoulder injury and advised Mr Greenhalgh: “To find alternative employment which avoids repetitive use of the right shoulder girdle and avoidance of working above shoulder level for a period of time following completion of the apprenticeship.” [34] It was in Dr Van der Walt’s third report of 21 June 2006 that Dr Van der Walt provided a definitive statement to the effect that Greenhalgh was medically advised to find alternative employment. Mr Greenhalgh’s application to extend the time limitation period was allowed on 30 March 2007, i.e. some 5 years 5 months after the injury. -- 9 of 20 -- 10 Step 3: Means of Knowledge [35] A fact is only within the means of knowledge of an applicant when the steady preponderance of opinion or belief of the person who has taken all reasonable steps to ascertain the fact, would have believed that was so.5 The test of what reasonable steps had been taken to ascertain a fact is an objective one, but regard must be had to the applicant’s background and understanding.6 [36] In Healy v Femdale Pty Ltd7 the Court of Appeal said: “The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one's health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take "appropriate advice" or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.” [37] The Court must determine which knowledge was practically and not theoretically available to an applicant.8 [38] In the present case, Mr Ferrier was a young man when injured and of limited formal education. He sought the assistance of the Mackay Base Hospital, three general practitioners (Dr Gadiyar, Dr Jayaram, and Dr Mowen) and a neurosurgeon (Dr Michael Redmond) yet it would appear that no medical practitioner had told Mr Ferrier that he had in fact suffered permanent impairment on 31 July 2010 and in his own health interests, he ought not to have been performing heavy manual work. [39] Mr Ferrier’s own experience aligned with the advice of the general practitioners, certifying him fully fit to return to work, and the specialist, Dr Redmond, that he ought to be able to return to work. Mr Ferrier was a determined person who was able to “get on with his life and return to employment” and while Mr Ferrier suffered some pain and difficulty, he did not suffer “significant pain or disability” in the sense that Mr Ferrier had a good work history and presented as a stoic young man. The early medical advice received by Mr Ferrier was to adopt a “wait and see” type of approach. It was reasonable for Mr Ferrier to act on this advice. [40] The material fact of a decisive character, being those opinions of Dr Campbell being reported to Mr Ferrier, was not therefore within Mr Ferrier’s means of knowledge until the date of receipt of Dr Campbell’s report. 5 See Dick v University of Queensland (2000) 2 Qd R 476 at [35]. 6 Castlemaine Perkins Ltd v McPhee (1979) Qd R 469. 7 Healy v Femdale Pty Ltd [1993] QCA 210. 8 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 per Dawson J at 259; Dick v University of Queensland (2000) 2 Qd R 476 at [30]. -- 10 of 20 -- 11 Step 4: Evidence to Establish a Right of Action [41] The respondents accept that the applicant Mr Ferrier has established a prima facie case. That is a fair concession as the test required to establish a right of action is undemanding, namely, all an applicant needs to do is “point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case.”9 Step 5: Prejudice [42] The respondent’s substantial argument orally and by written submissions related to the fifth element of prejudice. [43] In Brisbane South Regional Health Authority v Taylor10 Toohey and Gummow JJ said: “The discretion conferred by the subsection is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission of Victoria in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd: ‘It is for the respondent to place in evidence sufficient facts to lead the court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.’” [44] In NF v State of Queensland11 Keane JA said: “[44] The Brisbane South decision is concerned to ensure that an extension of time under the Act should not become the occasion for a trial which is unfair to the defendant. It is authority for the following propositions: (a) the onus is upon the applicant who has satisfied the conditions in s 31(2) of the Act to show good reason for the exercise in his or her favour of the discretion vested in the court by that provision; (b) the principal consideration which guides the exercise of that discretion is the concern whether a claim, which is prima facie out of time, may yet be fairly litigated; 9 Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431 at 435. 10 (1996) 186 CLR 541 at 547 (footnotes omitted). 11 NF v State of Queensland [2005] QCA 110 at [44] (footnotes omitted). -- 11 of 20 -- 12 (c) if a fair trial is unlikely, the discretion conferred by s 31(2) should not be exercised in the applicant's favour.” [45] In the present case, the respondent argues that it has suffered eight matters of specific or actual prejudice and points to the general presumption of prejudice that arises from the long delay of some 8 years and 3 months between the date of the accident and the application being heard. [46] The matters of prejudice raised by the respondent are:12 (a) the general presumption of prejudice occasioned by delay; (b) the employer has been wound up; (c) the applicant did not identify a number of persons in his affidavit; (d) the employer disputed the occurrence of the alleged event; (e) the applicant in his application for workers’ compensation answered “no” to question 23 as to whether he advised the employer about the injury; (f) issues that emerged from the report of Ms Rowlands relating to the location of persons; (g) lack of opportunity to have the applicant medically examined closer to the date of the injury; (h) a lack of opportunity to have the applicant medically examined whilst he was working in his various occupations; (i) the failure of the applicant to seek medical treatment following the latter injury of 13 March 2018 until 5 June 2018. (a) General prejudice [47] I accept that there is general prejudice occasioned by the delay, however, having regard to the matters below, it is not such that a fair trial cannot be had. (b) The employer has been wound up [48] It is the case that the employer has been wound up. The employer, MACS Engineering Pty Ltd was placed into external administration on 25 June 2005 and was finally delisted on 19 August 2017. [49] PricewaterhouseCoopers (‘PwC’) were appointed as the external administrator and liquidator. A few weeks before the hearing and on 12 November 2018, Ms Rowlands, an investigator, employed by MJM Corporate Risk, acting on instructions from WorkCover, telephoned PwC and made attempts to speak to the PwC partner overseeing the file. After three telephone calls, no progress has been made. Given that the company has only 12 Paragraph 36 of the respondent’s written submissions. -- 12 of 20 -- 13 recently been deregistered, there is no evidence, nor any reason to believe that any document held by PwC which may have been relevant, would no longer be available. A notice of non-party discovery may be issued against PwC to obtain the documents. At trial, if necessary, any partner or employee may be subpoenaed to court. [50] In respect of any documents held by the employer, it has not been established that the documents are no longer available. With respect to the information otherwise held by the corporate defendant, the employer’s former HR manager, Ms Angela Bailey, is available, as are former director, Mr Ross Frederickson, and his brother, Mr Chris Frederickson, who is the former safety officer of the employer. The other former directors of the employer, Shane McNealy, Simon Mortess, and Andrew Davis are all able to be contacted. Although the employer has been wound up, it has not been shown that there is any prejudice which has been occasioned by the employer being wound up. (c) The applicant did not identify a number of persons in his affidavit [51] The respondent alleges that it is prejudiced because the applicant failed to identify a number of persons who may be able to give evidence upon the incident of 31 July 2010. That is, in particular, the respondent says the applicant did not identify who provided him with instructions to fit the bull bar, nor the identity of the worker who assisted the applicant with the task. When the applicant was cross-examined, he was not asked as to who provided him with instructions to fit the bull bar, nor the identity of the other worker. [52] What has been established, however, from Mr Chris Frederickson, is that the fitting of the bull bar in the manner alleged by the plaintiff was the standard method by which the bull bar would be fitted, accordingly it is a matter of no or little importance as to who directed the applicant to fit the bull bar in the usual fashion. [53] Whilst it is true that the applicant did not, in Paragraph 14 of his affidavit, identify the worker that assisted him, it is also true that the applicant was not asked in cross- examination as to the identity of the co-worker who assisted him. [54] There is no criticism of the respondent’s counsel in this regard as it is common ground that it was known to the respondent that the person assisting the applicant was Mr Matthew Golder. On 16 November 2018, Ms Rowlands spoke to Matthew Golder, and Matthew Golder confirmed that he was assisting the applicant at the time the incident occurred. It is reported that he was saying “not confident he could recall the circumstances of the event”. [55] What the evidence establishes is that Mr Golder is available to be called as a witness (even if by subpoena) and was in fact the person assisting the plaintiff, and has some recollection of the incident, but has expressed from the first time he was contacted, an understandable reluctance to say that he could recall all of the circumstances of the event. [56] It has not been demonstrated that any prejudice other than the general presumption of prejudice through delay can arise with respect to Mr Golder’s ability to provide evidence. (d) and (e) the employer disputed the occurrence of the alleged event, and the applicant in his application for workers’ compensation answered “no” to question 23 as to whether he advised the employer about the injury -- 13 of 20 -- 14 [57] The respondent’s argument is that the employer disputed the occurrence of the alleged event. It is perhaps overstating it to submit that the employer disputed the occurrence of the event because there was an eye witness to the event, being Mr Golder. It is true to say however that the HR manager, Angela Bailey, disputed the event. However, it is not suggested for one moment that Ms Bailey was on the workshop floor at or any time, near or when the incident occurred. [58] It is to be recalled that Mr Ferrier commenced work on Saturday 31 July 2010 and in fact suffered the injury at approximately 9:30am, such injury being witnessed by Mr Golder. Despite suffering the injury, Mr Ferrier persevered, leaving work at about 11:00am, after having worked for approximately 4 hours; that is, it is not in dispute that Mr Ferrier left work early. It is further not in dispute and has been proved that Mr Ferrier attended the Mackay Base Hospital emergency section on the following day, Sunday 1 August 2010, then on Monday 2 August 2010 attended for the first occasion upon the general practitioner Dr Gadiyar, where he first received the workers’ compensation medical certificate. [59] The certificate was for suitable duties, however it was replaced by a further certificate, issued by Dr Jayaram on 3 August 2010, certifying Mr Ferrier unable to work at all until 10 August 2010. Furthermore, Mr Ferrier received physiotherapy treatment from Active Physiotherapy on 3 August 2010 and then attended upon the Mackay Base Hospital on 5 August 2010 and received a further workers’ compensation certificate advising he was unable to return to any work until 13 August 2010. [60] Within this time frame (that is, from 31 July 2010 to 13 August 2010) a number of things occurred. The first is that an electronic application for compensation dated 3 August 2010 was brought into existence. It is not shown how it was brought into existence. It is not signed by Mr Ferrier and as the respondent complains, did state at Question 23 “Did you advise your employer about your injury?” “No”. Despite being cross-examined, it was not clarified with Mr Ferrier as to who filled out the form, why it was filled out in that manner, why his co-worker knew he had suffered the injury causing him to leave work early, nor what his foreman or supervisor did in respect of him leaving early. [61] There is no suggestion that Ms Bailey was working on Saturday 31 July 2010, let alone anywhere near the workshop where the incident occurred. Ms Bailey did complete the employer’s response to the application on 11 August 2010. Ms Bailey did say that she first received a worker’s medical certificate on 2 August 2010 which can only be a reference to the medical certificate of Dr Gadiyar. [62] The document provided as Exhibit GCP5 is a copy of the employer’s report which appears to have two different types of pen or handwriting upon it. Given the signature of Ms Bailey, it is apparent that Ms Bailey filled out most, if not all, of the form. In that form, Ms Bailey did state that she was not satisfied that the materials provided in the worker’s application were correct and she did not accept that it was a work related injury or condition. Ms Bailey then said “we dispute that Michael’s injury occurred as per reported and we now believe that he had a pre-existing injury prior to this report. Please see the following.” [63] Ms Bailey then set out a three page handwritten document. The complaint from Ms Bailey appears to be that although MACS Engineering management were aware that Mr Ferrier left after working only four hours on Saturday 31 July 2010, he failed to -- 14 of 20 -- 15 mention anything to his co-workers about hurting his back or feeling any back pain and he was seen walking from the workshop in a normal fashion. The main complaint that was recorded by Ms Bailey is “he was seen that evening at the speedway by a number of employees with no visible sign of pain.” [64] Mr Ferrier was not cross-examined as to whether he went to the speedway and if so, under what circumstances. Ms Bailey does not say that she attended the speedway but rather refers to a number of employees. What, precisely, the employees were able to see and were not able to see is a matter of conjecture. The expertise of those employees in detecting signs of pain likely to be resulting from a back injury is entirely speculative. [65] The other major complaint raised by Ms Bailey is that Mr Ferrier appeared to have a pre- existing injury, however, there is no suggestion in the medical records, nor anywhere else that could form any reasonable basis or any positive conclusion that Mr Ferrier did have a pre-existing back injury. To be fair to Ms Bailey, however, it needs to be recorded that she specifically said “MACS is concerned” that Mr Ferrier had the back injury. That is, that was something that needed to be explored. [66] Ms Bailey complains substantially in her report that Mr Ferrier kept on going to see the Base Hospital instead of seeing “our company doctor or his private doctor” which she complained makes “managing the injury very difficult.” It can be seen on the record that this complaint is inaccurate in that, whilst certainly, Mr Ferrier did attend at the Mackay Base Hospital on two occasions, he also attended his own “private doctor”. Exercising his own health rights and attending upon the Mackay Base Hospital as well as three general practitioners is not unreasonable conduct of any person, let alone a 21-year-old male. [67] As is ably demonstrated by the decision of Sofronoff P in Workers’ Compensation Regulator v Pryszlak13, it sometimes happens that employers’ representatives act in overly enthusiastic ways in defence of some legitimate WorkCover claims and that what at first blush may appear to be a questionable claim, on further and closer investigation, it may be determined that the criticisms raised of an applicant or his or her claim are entirely unjustified. [68] After Ms Bailey raised her concerns, (and there can be no implied criticism in Ms Bailey raising her concerns), the statutory insurer, WorkCover Queensland considered the matters raised, and 19 days later, on 30 August 2010, and by email in the form of Exhibit GCP6 accepted Mr Ferrier’s claim “for L5/S1 lower back injury sustained 31 July 2010” and agreed to pay benefits from 2 August 2010 (i.e. the date of the first medical certificate). [69] Importantly, however, WorkCover did say “this application has been accepted as a work- related aggravation of a pre-existing condition. WorkCover Queensland will only cover treatment for the work related aggravated [sic], not the pre-existing condition.” It would seem that the response of the WorkCover representative, Mr Donaghue, satisfied Ms Bailey because there is no further correspondence which has been referred to by which the previously-expressed concerns were further raised. 13 [2018] QCA 157 -- 15 of 20 -- 16 [70] Furthermore, and in particular with Ms Bailey’s detailed three page handwritten record, there can be no suggestion that Ms Bailey cannot re-raise her concerns if WorkCover Queensland wish to. There are, however, formidable obstacles to success in such arguments, namely that the co-worker eyewitness, Mr Golder, has confirmed that an injury in fact occurred on the day and as alleged and despite the garnering of numerous medical records, there is no suggestion that Mr Ferrier had previously suffered from any lower back injury. It cannot therefore be reasonably concluded that any or any real prejudice arises out of items (d) and (e). (f) Issues that emerged from the report of Ms Rowlands relating to the location of persons [71] By Paragraph 36(f) of the respondent’s written outline, counsel for the respondent argues that it has suffered from prejudice as a result of: “[t]he issues that emerge from the report of Ms Rowlands, exhibit SR3 to her affidavit: there are persons who haven’t been located or have been located but will not cooperate; there are persons who have no recollection and there are persons who have a vague recollection but, because of the effluxion of time, are not confident as to the accuracy of any recollection they have. That is particularly significant in respect of Ms Bailey who completed the employer’s report to WorkCover: Exhibit GCP5 at pp30- 34.” [72] As discussed above in respect of Ms Bailey, Ms Bailey has the benefit of a detailed three page handwritten contemporaneous document listing her concerns. This document may be used by Ms Bailey to refresh her memory. [73] It is true that in the investigation report of Ms Rowlands dated 21 November 2018 (Exhibit SR3) it is recorded that there are persons who haven’t been located or have been located and will not cooperate, and persons who have no recollection or a vague recollection. The report records that Ms Bailey thought, with access to some supporting documentation, “such as the claimant’s photo ID, personnel file, and the rehabilitation file” that may jog her memory. That is a process which, in particular with the three page letter of complaint, may be of great assistance to Ms Bailey. [74] Given that Ms Bailey has been contacted only on two occasions, that is 14 November 2018 and 16 November 2018, there is no reason to think that, as Ms Bailey has conceded to Ms Rowlands, her memory may not be able to be jogged with some further assistance. [75] I have mentioned above that Mr Golder confirmed the incident occurred but on first having contact on 16 November 2018, was not confident he could recall all the circumstances of the event. It is further recorded in Ms Rowlands’ report that Mr Golder failed to return two telephone calls and it may be that he is difficult to locate. Given that the loss adjustor is aware of Mr Golder’s name, and the contact details of his father, Mr Darryl Golder and given that the telephone numbers are known for both Mr Golder and his father, there is no reason to think that Mr Matthew Golder cannot be made available to provide evidence if required. [76] I have mentioned above the availability of the directors of the employer, Mr Ross Frederickson, Mr Shane McNeally, Mr Simon Mortess, Mr Andrew Davis. Each of the directors are contactable, however, it is difficult to conclude that there is much prejudice -- 16 of 20 -- 17 with respect to the directors. For example, Mr Shane McNeally was the director who worked in the engineering section of the business located at Paget. That is, in a different workshop to where the incident occurred. Mr McNeally confirmed at the time there are around 135 employees and he did not know everyone, and the best persons to speak to that might be of any assistance are Chris Frederickson and Angela Bailey, who are both available. [77] Similarly, Simon Mortess, director, was engaged in sales and marketing and was nowhere near the workshop and had no knowledge of anything of any relevance. Similarly, Andrew Davis, former director, was tasked with respect to the business finance, and therefore had no operational duties which could in any way be of any assistance to any of the parties in this matter. The director Ross Frederickson, similar to Mr McNeally, advised Ms Rowlands that the only persons that could reliably have any assistance with respect to the matter are his brother Chris Frederickson, the safety officer, and Ms Angela Bailey, the HR manager. [78] As discussed above, the HR Manager Ms Bailey did have some initial concerns about Mr Ferrier’s WorkCover claim, however she has no direct evidence to offer, at least according to the documents which are currently in existence. That is, Ms Bailey has concerns based perhaps on matters that others have told her and the failure to report the injury at the time of the event, thus questioning whether the injury occurred at all, however, there is an eyewitness confirming the injury did occur. [79] The other relevant officer of the employer, Chris Frederickson, has been contacted by Ms Rowlands on 16 November 2018 and is available and advised Ms Rowlands that he “could recall the claimant, the injury event, etc. However, due to the passage of time, not in detail” and that he could “offer no further comment unless presented with the employer’s documents such as the incident report and the rehabilitation documents”. That is yet to occur. [80] On 23 November 2018 Mr Paterson, solicitor, telephoned Mr Chris Frederickson and spoke to Mr Frederickson about the incident. Mr Frederickson confirmed, amongst other things, that he was still employed in the same capacity as he was in 2010 but with different owners of the business, that he was indeed the safety officer of MACS Engineering in 2010, that the description given by Mr Ferrier in Paragraph 40 of his notice of claim for damages is still the process that he used in the workshop today, and that with vehicles such as Toyota Hilux vehicles, it was the practice to have one tradesman hold the bull bar whilst another inserted the bolts, however, with the larger vehicles, the practice was to have two tradesmen hold the bull bar. Furthermore, the specific items involved in the incident, being the type of bull bar, is known. (g) and (h) lack of opportunity to have the applicant medically examined closer to the date of the injury and lack of opportunity to have the applicant medically examined whilst he was working in his various occupations [81] With respect to Paragraphs 36(g) and (h) of the respondent’s written submissions, the respondent complains as a matter of prejudice, that there was no opportunity to have Mr Ferrier medically examined closer to the date of injury for medicolegal purposes and there was no opportunity to have Mr Ferrier medically examined when he was working as a trades’ assistant, storeman or a suspension technician in the time since 31 July 2010. -- 17 of 20 -- 18 [82] The respondent cites two cases in support of this proposition, namely, Fuller v Bunnings Group Ltd14 and Baillie v Creber & Anor15. In Fuller, Williams J said: “The respondent is also precluded from exploring whether the injuries subsequent to 23 June 2003 played a more significant role in the development of calcific tendonitis because of the absence of medical examination between 1 July 2003 and 22 June 2006. If the respondent had been notified of the claim earlier it could have requested a medical examination which could have thrown light on that issue.” [83] It may be accepted, as Williams J said, in some cases where there are a series of injuries alleged, that some prejudice may arise from a failure to report or bring a claim, thus denying a defendant an opportunity to arrange a medical examination to assist in the disentanglement of causation issues. In Fuller, however, as Williams J set out at Paragraph 21, there was a further injury and a series of further incidents (as set out in Paragraph 23). There are no such incidents or injuries alleged by Mr Ferrier between the time of the initial incident (31 July 2010) and subsequent injury on 13 March 2018. [84] In this regard, I have not overlooked that there is evidence that when he worked hard, Mr Ferrier felt some back pain, however, that was precisely what he had been advised may occur without suggesting there was any major injury or impediment with Mr Ferrier continuing to work as a manual labourer for the balance of his life. [85] In Baillie (supra) at Paragraph 54 and 55, McMeekin J referred to the decision of Fuller v Bunnings Group Ltd, and the prejudice that may arise from a failure to have a plaintiff undergo a medical examination in a timely manner. In Baillie v Creber, however, the facts were again significantly different. As recorded by McMeekin J at Paragraph 10, although the applicant Mr Baillie alleged he suffered the injury and did in fact attend upon a general practitioner soon after the injury, no record was made of any complaint of back pain by the general practitioner and on latter attendance at a chiropractor. Although complaint was made of back pain, there was no reference to any incident causing the back pain and with a further inconsistent history, namely with back pain presenting over the previous 2 weeks, i.e. early January 2005, whereas the incident which occurred was said to have occurred on 14 August 2004. In Baillie, in addition there were several further inconsistent allegations, no eyewitnesses and no WorkCover lodged at the time of the accident. [86] Mr Ferrier’s case, factually, is significantly different, with an accurate history on multiple occasions at the Mackay Base Hospital and three general practitioners and a specialist. On cross-examination of Mr Ferrier, it was elicited that in the numerous occupations and employment which Mr Ferrier had since injury, he had only once been the subject of an employment medical examination, and that was prior to his employment with Mackay Sugar Ltd. Mr Ferrier said he couldn’t recall who performed the medical and presumed he passed the medical, because he was in fact employed as a labourer during the 2015 sugar crush by Mackay Sugar Ltd. [87] The respondent alleges it is prejudiced because it did not have access to the Mackay Sugar medical document, yet, in his notice of claim for damages sent by Mr Ferrier to 14 [2007] QCA 216 per Williams J at [44]. 15 [2010] QSC 52 paragraphs [54] – [55]. -- 18 of 20 -- 19 WorkCover on 5 October 2018 (which is exhibited to Ms Rowlands’ affidavit) Mr Ferrier disclosed all of his subsequent employment, including his employment at Mackay Sugar Ltd of 49 Christoe Street, Farleigh. [88] Therefore, had the respondent thought it important to obtain a copy of the employer medical report, then it had almost 2 months to do so, however it did not. The respondent has not discharged its evidential onus suggesting that there is any prejudice in this regard. [89] Assuming that there is some prejudice that flows from the respondent not obtaining the medical employment report from Mackay Sugar Ltd, then it is difficult to see how this could be a matter of any significant prejudice. (i) The failure of the applicant to seek medical treatment following the latter injury of 13 March 2018 until 5 June 2018 [90] Finally in Paragraph 36(i) of its written submissions, the respondent argues that there is prejudice flowing from the fact that the applicant did not seek medical treatment following the injury on 13 March 2018 until 5 June 2018 and then gave, on that date, and on 7 June 2018, a history different to the history that he and his wife are now giving to the court. [91] Given the applicant’s history of the initial injury and his subsequent medical examinations and advice, as well as the two occasions that he did seek medical assistance for flare ups of his back pain, it is difficult to glean what prejudice is said to flow from a delay in attending upon medical treatment from the date of the second incident 13 March 2018 until 5 June 2018. The delay in reporting for medical treatment may, at trial, be contrasted with the earlier attendances and then it will be a matter for the medical experts briefed with the accurate history to provide guidance as to what, if any, significance the delay in treatment caused. [92] If it is accepted that different histories are provided, then that is a matter which may be the subject of cross-examination at trial. It is difficult to see what prejudice arises. [93] In every case where there is an extension of time, there is likely to be some prejudice which flows because, as a general rule, “where there is delay, the whole quality of justice deteriorates.”16 [94] In the present case, whilst I accept that there is some small prejudice which arises, as detailed above, and there is a general presumption of prejudice which arises due to delay, given that Mr Ferrier promptly attended for medical treatment with multiple medical practitioners, including a specialist, at a time proximate to the accident, and given that a workers’ compensation application was immediately brought and allowed, I conclude that the prejudice is not of sufficient amount to conclude that a fair trial is unlikely. It is proper in all the circumstances for the discretion pursuant to s 31(1) of the Act to exercise the discretion in the applicant’s favour. [95] I accordingly allow the application and make an order in terms of Paragraph 1 of the originating application. 16 R v Lawrence [1982] AC 510 at 517 per Lord Hailsham cited by McHugh J in Brisbane South Regional Health v Taylor (1996) 186 CLR 541 at 551. -- 19 of 20 -- 20 Costs [96] The applicant seeks its costs.17 The respondent seeks an order that costs be reserved, relying on Ballingall v WorkCover Queensland & Ors.18 According to r 681 of the Uniform Civil Procedure Rules 1999 (Qld), costs of a successful application ordinarily follow the event. However, in view of the respondent’s submission at Paragraph 40 of its written submissions, I intend to allow the respondent fair opportunity to provide a further written submission upon the issue of costs, expanding upon, if so advised, the submission made in Paragraph 40. [97] I order that the respondent file and serve written submissions as to costs within 7 days hereof and the applicant file and serve written submissions in reply within 3 days’ receipt of the respondent’s written submissions. 17 Paragraph 32 of the applicant’s written submissions. 18 [2017] QSC 133 at [81]. -- 20 of 20 --