Cousins v Mount Isa Mines Ltd - [2005] QSC 349

SUPREME COURT OF QUEENSLAND

CITATION:

Cousins v Mount Isa Mines Ltd [2005] QSC 349

PARTIES:

TRENT JEFFERY COUSINS
(applicant)
v
MOUNT ISA MINES LTD ACN 009 661 447
(respondent)

FILE NO/S:

SC No 664 of 2005

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

29 November 2005

DELIVERED AT:

Townsville

HEARING DATE:

25 November 2005

JUDGE:

Cullinane J

ORDER:

Application is dismissed with costs to be assessed

CATCHWORDS:

LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - PERSONAL INJURY CASES - where the applicant was injured in a work accident in August 2003 - where the applicant first consulted a solicitor in December 2004 - where the required notice under the Personal Injuries Proceedings Act 1992 was given to the respondent on 15 August 2005 - where the respondent asserts that the applicant has not provided a reasonable excuse for the delay in providing the notice

Personal Injuries Proceedings Act 1992, s 9; s 18

COUNSEL:

W Elliott for the applicant
S Durward SC for the respondent

SOLICITORS:

Maurice Blackburn Cashman for the applicant
CLS Lawyers for the respondent

The applicant seeks by his application a declaration that he has given a reasonable excuse for any delay in giving a notice to the respondent complying with the requirements of s 9 of the Personal Injuries Proceedings Act 2002 (Qld) as amended and thus has given a notice compliant with the Act. In the alternative, he seeks an order that he has remedied any non-compliance (s 18(1)(c)(i)), or alternatively that he be authorised to proceed further with the claim despite non-compliance (s 18(1)(c)(ii)). It was the latter rather than the former of the two alternative claims under s 18 which was pressed.

The applicant who was born on 25 April 1977 and has a grade 11 education, was injured in the course of his employment with Sandvik Materials Handling Pty Ltd at Mount Isa on 21 August 2003. The work that he was performing was being carried out on a site of the respondent. In fact it is described in the Notice of Claim as “Old Belt Splicers Workshop, Mount Isa Mines”. He was moving a metal plate which was part of a vulcaniser and which is described as being in excess of 100 kilograms. It appears that he was being assisted by another person in manoeuvring it and that when the vulcaniser was put on beams for the purposes of being slid along it slipped and the vulcaniser fell from the top of the beams causing him to bear the whole weight and as a result he suffered an injury.

The applicant was off work for a considerable period, returning to work on light duties on 15 December 2003. He had in the meantime undergone surgery to repair a hernia. He was seen in the latter part of 2003 by a neurosurgeon and it was as a result of his recommendation that the applicant returned to work on light duties from 15 December 2003.

He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cousins v Mount Isa Mines Ltd

Details

AGLC: Cousins v Mount Isa Mines Ltd [2005] QSC 349
Case: [2005] QSC 349
Decision Date: 29 November 2005

CaseChat Overview and Summary

The case of Cousins v Mount Isa Mines Ltd involved a claim for damages arising from a personal injury sustained by the applicant in a work accident in August 2003. The applicant first sought legal advice in December 2004, but did not provide the requisite notice to the respondent, Mount Isa Mines Ltd, under the Personal Injuries Proceedings Act 1992 until 15 August 2005. The respondent objected to the late notice, claiming that the applicant had not provided a reasonable excuse for the delay. The case was brought before the court to determine whether the applicant's delay in providing notice was justifiable and whether the respondent's objection should succeed.

The primary legal issue before the court was whether the applicant had provided a reasonable excuse for the delay in providing the notice to the respondent as required by section 18 of the Personal Injuries Proceedings Act 1992. The court needed to assess the circumstances leading to the delay and whether there were any mitigating factors that would excuse the applicant's failure to comply with the statutory requirement. The respondent argued that the delay was unreasonable and prejudiced their ability to adequately prepare a defence, while the applicant contended that there were justifiable reasons for the delay.

The court examined the provisions of the Personal Injuries Proceedings Act 1992, particularly section 9 which sets out the requirement for timely notice, and section 18 which allows for an extension of time if a reasonable excuse is provided. The court considered the applicant's reasons for the delay, including their initial consultation with a solicitor in December 2004, and the factors that may have contributed to the delay in providing the notice. Ultimately, the court found that the applicant had not provided a reasonable excuse for the delay, and therefore the respondent's objection was upheld.

As a result, the court dismissed the application with costs to be assessed. The court held that the applicant's delay in providing the required notice was not justified under the circumstances, and the respondent's objection was valid. The court's decision emphasised the importance of timely notice in personal injury cases and the need for claimants to adhere to statutory requirements to ensure a fair and efficient legal process.

Orders

Orders of the court

Application is dismissed with costs to be assessed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Cousins v Mount Isa Mines Ltd [2005] QSC 349
PARTIES:	TRENT JEFFERY COUSINS (applicant) v MOUNT ISA MINES LTD ACN 009 661 447 (respondent)
FILE NO/S:	SC No 664 of 2005
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	29 November 2005
DELIVERED AT:	Townsville
HEARING DATE:	25 November 2005
JUDGE:	Cullinane J
ORDER:	Application is dismissed with costs to be assessed
CATCHWORDS:	LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - PERSONAL INJURY CASES - where the applicant was injured in a work accident in August 2003 - where the applicant first consulted a solicitor in December 2004 - where the required notice under the Personal Injuries Proceedings Act 1992 was given to the respondent on 15 August 2005 - where the respondent asserts that the applicant has not provided a reasonable excuse for the delay in providing the notice Personal Injuries Proceedings Act 1992, s 9; s 18
COUNSEL:	W Elliott for the applicant S Durward SC for the respondent
SOLICITORS:	Maurice Blackburn Cashman for the applicant CLS Lawyers for the respondent