Brett v Townson Plumbing Pty Ltd

[2002] QSC 456

[2002] QSC 456

SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION

DUTNEY J

No S151 of 2002

ROBERT ALEXANDER BRETT	Applicant
and
TOWNSON PLUMBING PTY LTD	Respondent
ROCKHAMPTON ..DATE 06/12/2002
JUDGMENT

06122002 D.1 T26/MLH03 M/T ROK3-4/2002 (Dutney J)

1

HIS HONOUR: This is an application for an extension of time within which to bring an action for personal injuries arising out of a fall by the applicant into a trench on the 17th of April 1998.

10

The applicant is a plumber, presently aged 30 years. He was,
at the relevant time, working for Townson Plumbing at the
Burton Downs Mine. A trench had been dug with a backhoe
parallel to the side of a donga containing the toilets. A

second trench was dug from an office block back past the end	20
of the first trench to a septic tank. The second trench was located a metre out from the side of the donga containing the toilets, and was approximately 30 metres in length.
The applicant's task involved running PVC pipe along the	30
trenches connecting the piping to the outlets from the donga
and office block, and connecting the piping to the septic
tank. In the course of performing the work, as he was walking
between the donga and the trench, close to the edge of the
trench, the edge of the trench collapsed and he went over on	40
his left ankle and twisted it. There was apparently nobody else present at the time, and he was working on his own. The applicant continued working, although over the weekend was quite sore.
50
The incident was reported to his supervisor on the 20th of practitioner who recommended rest, ice, and elevation, and

JUDGMENT

2   60

06122002 D.1 T27-28/BAO ROK M/T ROK4/2002 (Dutney J)

provided a certificate for one week. There was not much	1
improvement thereafter, and a claim was made on Workers Compensation.
In 1999, with the pain in the ankle continuing, the applicant

10

saw Doctor Cook, an orthopaedic surgeon, who advised him that
there was no bony injury, and that he had tendonitis, and
recommended physiotherapy. The applicant had various forms of
treatment thereafter, including acupuncture from a Doctor

Wang, without any evident relief, and in October 2000, first

20

consulted Doctor Shaw.

In January 2001, Doctor Shaw advised that there were two loose bodies evident on x-ray in the ankle, and recommended surgery to have them removed. Doctor Shaw was cross-examined. He

30

says that he expected the operation to be successful but
warned that there were some risks associated with it. The
operation was not carried out until September 2001 because
apparently the injury was not sufficiently serious that the

applicant was prepared to take time off work to have the

40

operation.

Between suffering the injury and consulting Dr Shaw, the applicant had established his own business as a plumber, and appears to have been coping well with it. After the operation

50

was carried out, Doctor Shaw, in his oral evidence today,
indicated that he was pleased with the outcome, and expected a
good result. He observed degeneration in the ankle but
06122002 D.1 T27-28/BAO ROK M/T ROK4/2002 (Dutney J) 4 JUDGMENT 60

commented that in his view it was not sufficiently advanced as	1
to be likely to cause a problem.
Doctor Shaw expected that recovery would take some time, but after a period of some months, the recovery that Doctor Shaw

10

expected had not occurred, and by December 2001, when Doctor that the applicant had a five per cent permanent disability.

In January 2002, the applicant attended solicitors for the

20

first time, and subsequently, additional medical reports have ankle progress, it will affect his ability to work as a
been obtained. In particular, the applicant went back to
Doctor Cook, who advises in an affidavit sworn on the 20th of

30

plumber on roofs and on uneven surfaces. I would expect that
the degenerative changes will impact on Robert Brett's ability

to work in the aforementioned areas in 10 to 15 years."

If Doctor Cook is right, and I should immediately say that

40

Doctor Shaw is less pessimistic about the progress of the degenerative change, then the applicant would only be 40 to 45 years of age when his ability to work would be significantly curtailed. The end result would be a probable significant income loss at that time.

50

In any event, it seems to me that what the applicant had up until at least the 11th of December 2001, when he was reviewed by Doctor Shaw following the operation, was a minor injury to 06122002 D.1 T27-28/BAO ROK M/T ROK4/2002 (Dutney J) 4 JUDGMENT 60

the ankle causing some pain, but not interfering with	1
employment, and not interfering, it would seem, with the applicant continuing to play cricket, and not providing sufficient discomfort, and that the operation was considered urgent.

10

In those circumstances, and up to that point in time, it seems to me, that having regard to the risks associated with the action, the absence of any economic loss component, and the relatively minor nature of the injury, that it was not an

20

injury that was such that a reasonable person, knowing the
facts and taking appropriate advice, would regard those facts
as showing that he had a right of action with reasonable
prospects of success, and of resulting in an award of damages

sufficient to justify the bringing of an action, and that he

30

ought, in his own interests, to bring such an action.

Thereafter, the circumstances have changed somewhat. Prior to
the expiration of the limitation period on the 17th of April

2001, the most that could be said is that there was the

40

possibility that if the operation was unsuccessful, there
might be some economic loss. It seems to me that the fact
that the operation would not succeed, and that the applicant
would be left with degenerative change in relation to which

there was a real prospect of future economic loss, means that

50

he became aware of a material fact of the relevant kind on or
after the 11th of December 2001.
06122002 D.1 T27-28/BAO ROK M/T ROK4/2002 (Dutney J) 4 JUDGMENT 60

1

The respondent does not contest that up to the limitation
period there is a prima facie cause of action but seeks to
raise prejudice as a grounds for a discretionary refusal of
the application. The prejudice is said to be that co-workers

do not now recall the incident and that the supervisor, Mr	10
Townsend, does not know who carried out the trenching work.
There is also the fact that there are few records in relation
to the work retained by Townson Plumbing Pty Ltd.
In response to this the applicant submits that there were, in
fact, no witnesses so that the lack of knowledge on the part	20
of co-workers is either irrelevant or of such little relevance
that I should disregard it for present purposes. The trench
was not, in fact, dug by Townson Plumbing but by a contractor
employed by Thiess Contractors with whom no inquiries have
been made. The circumstances were set out in the	30
contemporaneous documents provided to WorkCover at the time of the initial claim. In all of the circumstances it seems to me that I am not satisfied that a fair trial cannot now be held
in relation to this matter or that the respondent is unfairly
prejudiced by the delay.	40
…
HIS HONOUR: I order that the period of limitation within
which to commence an action for damages for negligence and or
breach of statutory duty and or breach of contract with
respect to bodily injury arising from the work performed by	50

the applicant on the 17th of April 1998 be extended to and
including the 11th of December 2002.
06122002 D.1 T27-28/BAO ROK M/T ROK4/2002 (Dutney J) 4 JUDGMENT 60

Now a further application is made for an order pursuant to	1
Section 305 of the WorkCover Queensland Act 1996 for proceedings to be commenced notwithstanding that the provisions of the Act had not been complied with. That order is not opposed and accordingly I give leave to the applicant

10

to bring a proceeding for damages for personal injury pursuant before the 7th of January 2003.
to Section 305 of the WorkCover Queensland Act 1996, such
leave being conditional on a notice of claim pursuant to

20

… party's costs in any cause or any proceedings instituted.

-----

30

40

50

4 JUDGMENT 60