LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION
PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS
– GENERALLY
– where the applicant seeks to recover damages for personal injuries
Source
Original judgment source is linked above.
Catchwords
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATIONPERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS– GENERALLY– where the applicant seeks to recover damages for personal injuriesallegedly suffered in or caused by a workplace accident at a mine –where the accident occurred on 30 September 2021 and the three years limitationperiod expiredon 30 September 2024 – where the applicant applies pursuantto s 31(2) of the Limitations of Actions Act 1974 (Qld) to extend thetime limit to commence proceedings claiming damages for personal injuriesagainst the respondent – wherethe respondent resists the application onthe ground that the applicant failed to establish that a material fact of a
decisive character
was not within the applicant’s knowledge until a date
after 30 September 2023 – where a material fact is considered decisive
if
absent the alleged newly learned fact the applicant would not, even with the
benefit of appropriate advice, have previously recognised
that they had a
worthwhile action to pursue and should in their own interests pursue it –
whether the material facts were able
to be found out by the applicant had the
applicant taken all reasonable steps before the commencement of the year last
preceding
the expiration of the period of limitation – whether the time
limit for the applicant to commence proceedings against the respondent
should be
extended
Limitations of Actions Act 1974 (Qld), s 31(1), s
31(2)
Personal Injuries Proceedings Act 2002 (Qld), s 43
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s
278A
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR
541
Grapes v AAI Limited [2025] QCA 60
Grapes v AAI Limited
[2024] QSC 267
Healy v Femdale Pty Ltd [1993] QCA 210
Kosky v The Trustees of the Sisters of Charity [1982] VicRp 98
[1982] VR
961
Love v North Goonyella Coal Mines Pty Ltd [2017] QSC
140
Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR
430
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
Raschke v Suncorp Metway Insurance Limited [2005] QCA 161
[2005] 2 Qd R 549
Judgment (46 paragraphs)
[1]
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - GENERALLY - where the applicant seeks to recover damages for personal injuries allegedly suffered in or caused by a workplace accident at a mine - where the accident occurred on 30 September 2021 and the three years limitation period expired on 30 September 2024 - where the applicant applies pursuant to s 31(2) of the Limitations of Actions Act 1974 (Qld) to extend the time limit to commence proceedings claiming damages for personal injuries against the respondent - where the respondent resists the application on the ground that the applicant failed to establish that a material fact of a decisive character was not within the applicant's knowledge until a date after 30 September 2023 - where a material fact is considered decisive if absent the alleged newly learned fact the applicant would not, even with the benefit of appropriate advice, have previously recognised that they had a worthwhile action to pursue and should in their own interests pursue it - whether the material facts were able to be found out by the applicant had the applicant taken all reasonable steps before the commencement of the year last preceding the expiration of the period of limitation - whether the time limit for the applicant to commence proceedings against the respondent should be extended
[2]
Limitations of Actions Act 1974 (Qld), s 31(1), s 31(2)
[1] The applicant has applied pursuant to s 31(2) of the Limitations of Actions Act 1974 (Qld) ("the Limitations Act") to extend until 30 September 2025, the time limit for him to start proceedings claiming damages for personal injuries against the respondent ("Dawson Management"). The applicant also seeks certain orders pursuant to s 43 of the Personal Injuries Proceedings Act 2002 (Qld) ("the PIP Act").
[2] The applicant seeks to recover damages for personal injuries allegedly suffered in or caused by a workplace accident at the Dawson Mine, located at the southern end of the Bowen Basin in Central Queensland near the town of Moura ("the Mine"). The accident occurred on 30 September 2021. The three years limitation period expired on 30 September 2024.
[3] By s 31(2) of the Limitations Act, the Court may order an extension of a limitation period in certain circumstances, relevantly:
[15]
"(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 -
[16]
(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
[17]
(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
[18]
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."
[19]
[4] Section 30(1) of the Act defines some of the concepts contained within s 31(2)(a) as follows:
[20]
"(1) For the purposes of this section and sections 31, 32, 33 and 34 -
[21]
(a) the material facts relating to a right of action include the following -
[22]
(ii) the identity of the person against whom the right of action lies;
[23]
(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."
[24]
[5] The applicant's case for an extension of time depends upon his establishing that a fact which was material and of a decisive character was not known to him or within his means of knowledge until a date after 30 September 2023, the commencement of the year last preceding the expiration of the period of limitation. The relevant facts are that Dawson Management was the operator of the Mine and that Anglo Coal (Dawson Services) Pty Ltd ("Dawson Services"), the applicant's employer, had agreed with Dawson Management to make its employees available to Dawson Management in its operation of the Mine and to enable Dawson Management to comply with its obligations as the Mine's operator.
[6] Dawson Management resisted the application to extend the limitation period principally on the ground that the applicant failed to establish that a material fact of a decisive character was not within his knowledge until a date after 30 September 2023. In that regard, it was submitted that the applicant had failed to take all reasonable steps to find out that Dawson Management was the Mine's operator before that time in circumstances where reasonable inquiries could have discovered that fact. It was submitted that the applicant should have consulted a solicitor prior to the last year preceding the expiration of the period of limitation "such that it follows that [the applicant] has not taken all reasonable steps to obtain the knowledge of the material fact".[1] Dawson Management also submitted that there was no evidence to establish a right of action as against it and that it had suffered prejudice. Those latter submissions, although outlined in writing, were not developed orally.
[7] The facts can be outlined as follows. The applicant worked as an electric shovel operator at the Mine. He suffered a left shoulder injury when he attempted to physically roll a spare tyre down a highwall at the Mine. The tyre had become stuck part way down the highwall and the applicant manually pushed the tyre which caused immediate pain. The applicant reported the injury to Dawson Services on the same day and was seen by a nurse on site within an hour of the accident. The applicant claims that he was forced to cease work following the accident. He caused to be filed with WorkCover a Claim Summary dated 15 March 2022 in which he identified Dawson Services as his employer and the place of the accident as the Mine, and noted that he had reported the accident to Dawson Services and a nurse on site. The applicant then went on WorkCover benefits from 28 April 2022. From 8 August 2022, the applicant undertook host employment at the direction of WorkCover with St Vincent De Paul ("Vinnies") in Yeppoon. In the course of that role, because of his limited use of his left shoulder, he performed lifting tasks with his right arm. He developed pain in his right shoulder. An orthopaedic surgeon has assessed the left shoulder injury at 12 per cent whole person impairment and the right shoulder injury at 5 per cent impairment. A pain medicine physician has opined that the applicant suffers "persistent chronic neuropathic pain" with an additional pain related whole person impairment of 3 per cent. A psychiatrist has opined that the applicant has suffered a work related adjustment disorder with depressive symptoms.
[25]
"Gaining knowledge of the identity of the person against whom a right of action lay is clearly a fact of a decisive character because knowing the identity of a defendant would be a matter a reasonable person would regard as showing that an action against [that person] would have a reasonable prospect of success."
[26]
[15] The real issue as framed by Dawson Management by reference to s 30(c)(ii) of the Limitations Act concerned whether the material facts were able to be found out by the applicant had he taken all reasonable steps before the commencement of the year last preceding the expiration of the period of limitation.
[16] In Healy v Femdale Pty Ltd[1993] QCA 210, the Court of Appeal considered an appeal in which the principal issue was whether a material fact, being the nature and extent of an injury, was within an appellant's means of knowledge at the relevant date. The issue centred around the appellant's knowledge of the material fact and whether the nature and extent of her injury was within her means of knowledge. The Court of Appeal recognised that the appellant's application depended upon her being able to show that a material fact of a decisive nature was not within her means of knowledge until the relevant date. In that context, the Court observed as follows:
[27]
"The question then is whether it can be said that in the circumstances the plaintiff took all reasonable steps to ascertain the fact that her injury was serious enough to justify the bringing of an action. She did not ask her doctor questions of this kind. 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. A question of fact is involved here ..."
[28]
[17] In Grapes, Copley J considered the claim of a paramedic employed by the Queensland Ambulance Service who had attended the scene of a motor vehicle accident in which a single vehicle had been involved. The first respondent was the driver and the second respondent the compulsory third party insurer covering the driver's liability for personal injury caused by, through or in connection with the use of the vehicle. The applicant had witnessed horrific injuries at the scene and thereafter been diagnosed with post-traumatic stress disorder caused by her exposure to trauma. The applicant had not brought an action claiming damages against the driver and the compulsory third party insurer before the expiry of the limitation period. She asserted that she did not know the identity of the driver and insurer until after she received documents disclosed by the State of Queensland to her lawyer which had allowed the lawyer to do a vehicle registration search on 8 November 2023. Copley J accepted the applicant's evidence that it was beyond her capacity to discover the identity of the driver and the insurer. His Honour then reasoned as follows:
[29]
"[52] ... A reasonable step to take to discover their identity would have been to instruct solicitors to pursue the issue with a view to commencing an action. The applicant did this in March 2023. I accept [the solicitor's] evidence that until she could ascertain the registration number of the vehicle involved in the collision, it was not possible for her to ascertain the identity of the insurer. This was important because if an action is brought for damages for personal injuries arising out of a motor vehicle accident the action must be brought against the insurer and the insured person.
[30]
[53] [The solicitor's] evidence was that the steps she took to ascertain the identity of the [insurer] did not result in her obtaining that information until November 2023. I consider that she took reasonable steps to do so. ...
[31]
[56] However, in view of my conclusions about what was within the means of the applicant's knowledge by about the middle of 2021, I consider that it was then that the applicant was obliged to take reasonable steps to find out the identity of the first and third respondents. A reasonable step would have been to have instructed solicitors to pursue this information with a view to making a claim, as consulting a solicitor would have resulted in the applicant being informed about the possibility of pursuing a CTP claim. Even allowing for the hurdles [the solicitor] encountered in ascertaining the identity of the [insurer and the driver] it would have been within the means of the applicant's knowledge if assisted by a solicitor to have discovered their identity by early 2022."
[32]
[18] In the Court of Appeal, Bradley JA (with whom Bond JA and Ryan J agreed) relevantly said of this passage of the reasons of Copley J:[5]
[33]
"To the extent that the appellant challenged the primary judge's expression, it may be accepted that the Act did not oblige the appellant to take reasonable steps at any time. Rather, for the appellant to prove that the identities were not within her means of knowledge on 8 November 2023, the Act required the appellant to prove she had taken all reasonable steps to find out the identities before that time. This second proposition is the point his Honour was seeking to make.
[34]
The primary judge's 'conclusions', referred to in this part of paragraph [56], included the following:
[35]
(a) By April 2021 the appellant knew she had a right of action against the driver and the CTP insurer.
(b) By mid-2021, a reasonable step for the appellant to take was instructing a solicitor to find out their identities with a view to pursuing an MVA claim."
[36]
[19] Bradley JA went on to observe that, read in that context, the primary judge was "conveying no more than a summary of the effect of the factual conclusions made earlier, namely that by mid-2021 it was reasonable for the appellant to take the step of engaging solicitors to find out the identities".[6] That is, in that case on its facts as found by the primary judge, it was reasonable for the appellant to take the step of engaging solicitors to find out the identities of the parties being the driver and the insurer against whom the appellant knew she had a right of action.
[20] The present case is quite different as the applicant was, until early 2025, unaware of the existence of a possible cause of action against Dawson Management. There were no circumstances which had put him on inquiry as to the existence of any such cause of action. In the circumstances of the present case, it could not be said that there was any requirement for the applicant to take "appropriate advice" or to "ask appropriate questions" because in all the circumstances it was not reasonable to expect the applicant to have done so. The particularly relevant circumstances were that the applicant did not know of the existence of Dawson Management, had not been made aware that Dawson Management was the Mine's operator and was not aware that his services were being made available by Dawson Services to Dawson Management to facilitate the Mine's operation. In those circumstances, it is not clear at all how the existence of Dawson Management as the Mine's operator and that Dawson Services had made its employees available to Dawson Management pursuant to the undisclosed labour agreement were facts able to be found out by the applicant. These facts, though known by his employer, had not been disclosed by his employer. Further, his employer had not put the applicant in a position from which he might reasonably have been expected to make inquiries as to the existence of these facts. I find that in so far as the existence of Dawson Management as the operator of the Mine and that Dawson Services had made its employees available to Dawson Management to facilitate the operation of the Mine pursuant to the labour agreement were facts able to be found out by the applicant before the commencement of the year last preceding the expiry of the period of limitation, the applicant took all reasonable steps available to him in his particular circumstances by reporting the accident on site to Dawson Services and the nurse on site and then identifying his employer in his WorkCover claim form.
[37]
[24] The orders I make are as follows:
Pursuant to s 31(2) of the Limitations Act the period of limitation for the applicant's right of action against Dawson Management be extended to 30 September 2025.
Pursuant to s 43 of the PIP Act, the applicant is given leave to commence proceedings within 60 days of one of the following events occurring:
A conference being held pursuant to s 36 of the PIP Act and mandatory final offers being exchanged in accordance with s 39 of the PIP Act; or
The date of agreement if the parties dispense with the compulsory conference by agreement pursuant to s 36(4) of the PIP Act;
An order by the Court pursuant to s 36(5) of the PIP Act dispensing with the compulsory conference.
[8] On 4 October 2023, the applicant retained a solicitor to act on his behalf. On 14 November 2023, the solicitor took detailed instructions from the applicant about his claim for personal injuries. The applicant identified Dawson Services as his employer. At this time, the applicant was advised that it was important to identify all potential parties responsible for his injuries. The applicant checked his employment contract with Dawson Services dated 28 March 2018 ("the employment contract") and pay slips. He said that those documents "indicated that there was only one party being my employer [Dawson Services]". The applicant also instructed his solicitors to consider a claim against Vinnies in relation to what was described as a "related injury". The applicant deposed to his belief that at this time when he initially instructed his solicitor, he "did not believe there were any other potential parties liable for my injuries". The applicant was cross-examined. It was not suggested to him that he did not genuinely hold this belief. The applicant appeared to me to be an honest witness who was doing his best to provide his best recollection. He gave direct, responsive answers. I accept his evidence. I find that at or about the time when he engaged his solicitors, the applicant believed that the only potential parties who might be liable for the injuries suffered in the accident or for related injuries were his employer Dawson Services and Vinnies.
[9] On or about 18 June 2024, the applicant's notice of claim for damages was served on Dawson Services and the relevant insurer, WorkCover Queensland ("WorkCover") ("the Dawson Services Notice of Claim"). The content of the Dawson Services Notice of Claim was wholly consistent with the applicant's belief that his claim for damages was against his employer, Dawson Services. At item 40 of the Dawson Services Notice of Claim, the applicant provided extensive details about "the event resulting in the injury". Those details extended to the "system of work" the applicant had been taught extending to four alternative methods meant to avoid damage to plugs at the end of power cables used in the operation of electric shovels. The details provided by the applicant asserted that the accident occurred in the context of the applicant attempting to implement one of the alternative methods to avoid damage to the plugs.
[10] On 12 September 2024, the applicant's solicitor received a copy of a contribution notice issued pursuant to s 278A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the Workers' Compensation Act"). The contribution notice had been issued by the solicitors acting for WorkCover and was addressed to Dawson Management. By that contribution notice, WorkCover's solicitors noted that they were "instructed that [Dawson Management] was the operator of the mine at the time the incident occurred". By the notice, Dawson Services and WorkCover claimed indemnity and/or contribution from Dawson Management in respect of the applicant's claim. The contribution notice relevantly asserted that the applicant was injured at the Mine while performing his duties as a mine technician for Dawson Services. The contribution notice referenced a labour agreement dated 3 August 1999 between Dawson Services and Dawson Management ("the labour agreement"). Various clauses of the labour agreement were extracted into the contribution notice, including clause 7(a) which provided for Dawson Management to indemnify Dawson Services against all liabilities, losses, claims, damages or costs which might be incurred by or against Dawson Services directly or indirectly in connection with the employment of employees whose services Dawson Services "will, has made or makes available to [Dawson Management] in accordance with the terms of the agreement". An employee was defined as any person employed by Dawson Services pursuant to clause 3. Clause 3 relevantly stated that Dawson Services agreed to make available to Dawson Management from time to time the services of employees to enable Dawson Management to operate the Mine and comply with its obligations. The contribution notice asserted that the accident had occurred during the normal course of the applicant's employment at the Mine and that clause 7 of the labour agreement was engaged.
[11] The applicant had commenced employment with Dawson Services at the Mine pursuant to the employment contract which identified Dawson Services as the employer. The employment contract made no reference to the labour agreement and included no reference whatsoever to Dawson Management. The employment contract included some letterhead which referenced "Anglo-American" and referred to "the Anglo-American PLC Group". Dawson Management submitted that these features of the letterhead placed the applicant upon reasonably inquiry as to the existence of Dawson Management as the operator of the Mine. I reject that submission. The letterhead, viewed in context with the employment contract, did not constitute a reasonable ground for further inquiries.
[12] The applicant deposed that in early 2025 he received advice from his solicitor that Dawson Management "may share some liability for my claim". He said that prior to receiving this advice, he was "totally unaware that there were any other parties to my claim." The applicant recalled that upon being informed of the existence of Dawson Management, he confirmed with his solicitor that he had never heard of Dawson Management, had never seen its name written anywhere and did not know anything about his employer's corporate structure. He said that he had believed that Dawson Services operated the Mine and was the only responsible entity. He had never seen any document that referred to or suggested the involvement of another party let alone Dawson Management. All of this evidence was not challenged in cross examination. I accept this evidence and find that until early 2025, the applicant was unaware that Dawson Management was a potential party that might be liable for the injuries suffered in the accident. I accept the applicant's evidence that until early 2025 he had not been aware of the existence of Dawson Management. I also find that until this time he was not aware, and had not been provided with a copy, of the labour agreement. I accept his evidence that until this time he had believed that Dawson Services had operated the Mine. That was a reasonable belief for a person in the position of the applicant who had only been provided with the employment contract and did not have any understanding of Dawson Services' "corporate structure".
[13] In accordance with the advice of his solicitor, the applicant subsequently provided instructions to prepare a notice of claim pursuant to the PIP Act dated 26 May 2025 for the purpose of commencing a concurrent claim against Dawson Management ("the Dawson Management Notice of Claim").
[14] The identity of the person against whom a right of action lies is a material fact.[2] A material fact is considered decisive if absent the alleged newly learned fact the applicant would not, even with the benefit of appropriate advice, have previously recognised that he had a worthwhile action to pursue and should in his own interests pursue it.[3] As was observed by Copley J in Grapes v AAI Limited:[4]
[21] As to s 31(2)(b) of the Limitations Act, in Raschke v Suncorp Metway Insurance Limited,[7] Keane JA observed that "... [i]t is quite clear from the authorities in relation to s 31(2)(b) ... that the information available to establish all the facts material to a right of action does not have to satisfy the court on the balance of probabilities as to the existence of the fact." His Honour went on to speak in terms of s 31(2) not being allowed to "facilitate the prosecution of hopeless cases". It has been observed that "[a] certain amount of speculation as to the precise nature of the evidence which will be called at the trial necessarily must be permitted".[8] Further, where the claimed cause of action is in negligence, whilst an applicant "must make it appear on the application that there is evidence which, if called at a trial, could establish a set of circumstances from which, in law, a duty of care arises", it is not incumbent on an applicant "to satisfy the court upon the application that a duty of care did arise, just as it is not incumbent on him to establish a breach of any such duty or to establish that a breach caused or contributed to the personal injuries for which he claims damages".[9] In the present case, there is evidence that the labour agreement speaks in terms of Dawson Services making its employees available to Dawson Management "to enable ... operation of the mine" and to enable Dawson Management to "comply with its obligations". It is well arguable that Dawson Management utilising Dawson Services' employees in that manner may have owed a duty of care to the applicant.[10] Ultimately, whether a duty of care was owed will depend on factual findings concerned with the degree of control exercised by Dawson Management over the employees and the workplace and the systems of work directed or imposed by Dawson Management. The Dawson Management Notice of Claim includes an allegation that Dawson Management failed to ensure that Dawson Services implemented safe systems of work and thereby permitted breaches of duty that were foreseeable and avoidable by Dawson Management exercising proper oversight and control over the Mine's safety management. The extensive description of the events which led to the accident as provided by item 40 of the Dawson Services Notices of Claim are sufficiently clear to make it appear on this application that there is evidence which, if called at a trial, could establish a set of circumstances from which, in law, a breach of duty of care may have arisen. The applicant has discharged its burden to make it appear to the Court that there is evidence to establish a right of action against Dawson Management apart from a defence founded on the expiration of a period of limitation.
[22] Section 31 of the Limitations Act does not confer a presumptive right to an order extending the limitation period once the two conditions contained in s 31(2) are satisfied.[11] The applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his favour.[12] In the present case, Dawson Management's submissions about prejudice were couched in general, unparticularised terms. By way of submission, it was asserted that Dawson Management had been "deprived of the opportunity to investigate the claim against it by reason of the applicant's failure to serve a part 1 notice of claim until 26 May 2025". It was also asserted that Dawson Management did not have a presence at the Mine, despite being the operator of the Mine. The affidavit of the solicitor with the conduct of the matter on behalf of Dawson Management did not address the issue of prejudice. It may be accepted that where there is delay "the whole quality of justice deteriorates".[13] The delay in the present case is not inordinate and is explained. There was no evidence of any actual prejudice in the sense of lost documents or other relevant evidence or relevant witnesses being no longer available to give evidence. It may be observed that from a point in time within the expiry of the three years limitation period, Dawson Management had been on notice of a claim for indemnity against it by Dawson Services arising out of the circumstances of the accident. I am satisfied that the applicant has shown that his case is a justifiable exception to the rule that the welfare of society is best served by the imposition of the limitation period in question.[14] The applicant has discharged his burden of demonstrating that the justice of the case requires the extension.
[23] On the basis of the submissions made by each party, it was uncontroversial that, in the event that the applicant obtained an extension of time, the orders under the PIP Act were appropriate.