Coleman v BHP Coal Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Coleman v BHP Coal Pty Ltd [2000] QCA 232

PARTIES:

PETER WILLIAM DOUGLAS COLEMAN
(plaintiff/appellant)
v
BHP COAL PTY LTD ACN 010 595 721
(defendant/respondent)

FILE NO/S:

Appeal No 8399 of 1999
SC No 171 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 June 2000

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2000

JUDGES:

McPherson JA, Mackenzie J, Fryberg J
Separate reasons for judgment of each member of the court, each concurring as to the orders made.

ORDER:

1.  Appeal allowed.
2.  Order of Chamber judge set aside.

3.  Period of limitation in Writ 171 of 1998 extended until 15 December 1998.

4.  Costs are plaintiff's costs in the cause to be assessed.

CATCHWORDS:

TORTS  - NEGLIGENCE – GENERAL MATTERS – Appeal against refusal to extend period of limitation in which to commence personal injuries action – applicant entitled to extension – nature and extent of injury not known to him until after commencement of year last preceding expiration of the limitation period – adjustment disorder followed by post traumatic stress disorder.

Limitation of Actions Act 1974 (Cth), s 31(2)

COUNSEL:

S C Williams QC, with B Harrison for the appellant
P A Keane QC, with R A I Myers for the respondent

SOLICITORS:

Taylors Solicitors for the appellant
Thynne & McCartney for the respondent

1. McPHERSON JA:  I agree with the reasons of Mackenzie J and with the order he proposes for disposing of this appeal.

1. MACKENZIE J:  In this matter, an application for extension of the period of limitation in which to commence an action for personal injuries was refused and the applicant appeals against that decision.

1. Where a person claims to have a right of action for personal injuries caused by negligence the court may order an extension of the period of limitation if:

(a)      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)       there is evidence to establish the right of action apart from a defence founded upon the expiration of a period of limitation (s 31(2) Limitation of Actions Act 1974).

1. The facts upon which the applicant relies are that shortly before midnight on 7 August 1994 an explosion occurred in the underground workings at Moura Number 2 Mine, trapping miners underground.  The applicant who was employed by the respondent as an underground miner was not on duty, but was advised of the situation in his capacity as a member of the Queensland Mines Rescue Brigade.  He went to the mine area in the expectation that he would have to go underground to attempt a rescue but after the risks were assessed it was eventually decided that conditions were too dangerous to do so.  He was stood down and sent home late on…