Cumner v Rea - [2018] QSC 159

SUPREME COURT OF QUEENSLAND

CITATION:

Cumner v Rea & Ors [2018] QSC 159

PARTIES:

JENNIFER ALIX CUMNER

(applicant)

v
RICHARD ALLEN REA

(first respondent)
and
A & K INVESTMENTS PTY LTD
(second respondent)
and
WORKCOVER QUEENSLAND
(third respondent)

FILE NO:

9167 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

24 July 2018

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2017

JUDGE:

Daubney J

ORDER:

I will hear the parties as to the necessary form of order.

CATCHWORDS:

WORKERS COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – TIME FOR CLAIM – whether the limitation period had passed in respect of a wrongful death claim against second respondent – where applicant contends she was not aware her late husband was an employee – whether applicant had knowledge her late husband was an employee of the second respondent prior to lodging wrongful death claim – whether there is sufficient evidence for a claim to be brought against the second respondent

Limitation of Actions Act 1974 (Qld)
Personal Injuries Proceedings Act 2002 (Qld)
Workers Compensation and Rehabilitation Act 2003 (Qld)

Workplace Health and Safety Act 2011 (Qld)

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
NF v State of Queensland [2005] QCA 110
Randel v Brisbane City Council [1984] 2 Qd R 276.
Weis Restaurant Toowoomba v Gillogly [2013] QCA 21
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431

COUNSEL:

M Grant-Taylor QC with PB DePlater for the Applicant

J O McClymont for the Third Respondent

SOLICITORS:

Slater & Gordon Lawyers for the Applicant

J F Connolly of HBM Lawyers for the First Respondent
BT Lawyers for the Third Respondent

The applicant is the widow of David Bryan Cumner, who died on 15 January 2014. On that day, the deceased and his friend, Richard Allen Rea, who is the first respondent, were pulling scrub, i.e. clearing vegetation on rural land. Each was driving a bulldozer, and the bulldozers were linked by a chain. While performing this scrub pulling, an incident occurred which resulted in the deceased suffering fatal crush injuries.
On 14 December 2016, the applicant’s solicitor caused a Part 1 Notice of Claim under the Personal Injuries Proceedings Act 2002 (“PIPA”) to be served on the first respondent.
On 16 December 2016, the applicant’s solicitor caused a Notice of Claim for Damages under s 275 of the Workers Compensation and Rehabilitation Act 2003 (“WCRA”) to be served on the third respondent, WorkCover Queensland (“WorkCover”). This notice identified the first respondent as the deceased’s employer. The solicitor who prepared this notice, Mr Michael Callow, has deposed that he served this notice “out of an abundance of caution and with the third anniversary of the deceased’s death approaching, in order to protect any claim that may exist under the [WCRA] in lieu of a potential claim under [PIPA]”.[1] That notice was also served on the first respondent under cover of…

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.

Keep reading for free

Create a free CaseChat account to read Cumner v Rea and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] QSC 159
Decision Date: 24 July 2018

CaseChat Overview and Summary

Cumner v Rea is a case where the applicant seeks to extend the time for bringing a claim for wrongful death compensation against the second respondent. The applicant contends that she was unaware her late husband was an employee of the second respondent, Richard Allen Rea, until after the statutory limitation period had passed. The legal issues the court needed to decide were whether the applicant had knowledge that her late husband was an employee of the second respondent prior to lodging the wrongful death claim and whether there is sufficient evidence for a claim to be brought against the second respondent.

The court found that the applicant had pointed to sufficient evidence to establish the right of action against the second respondent. The applicant had testified that she was unaware of any payment in the form of wages from Mr Rea or his company, A & K Investments Pty Ltd, to her late husband for the work that he did. The applicant also testified that she never questioned her late husband when he said he was going up to Mr Rea’s property to help out, and he would just tell her basic details about what they would be doing such as felling trees or making dams. The court found that the applicant’s testimony was credible and that there was sufficient evidence to establish the right of action against the second respondent.

The court also found that the requirements of s 31(2)(a) and (b) of the Limitation Act had been satisfied, and that the period of limitation for the applicant’s loss of dependency action against the second respondent ought to be extended to 10 February 2018. The court noted that the third respondent did not raise any issue of prejudice or likely prejudice.

The court will hear the parties as to the necessary form of order. The court found in favour of the applicant and granted an extension of time for bringing a claim for wrongful death compensation against the second respondent.

Orders

Orders of the court

I will hear the parties as to the necessary form of order.

Background

Background to the litigation

Before turning to the merits of the present application, it is necessary to set out much more detail of the background.Background It is convenient to recite matters deposed to by the applicant in the present application. She was cross-examined before me, but not challenged on these matters. The applicant said:“6. At the time of my late husband’s death, and in the years preceding his death, I was aware that my late husband visited and spent time with one of his old Army friend’s (sic), Richard Allen Rea, the abovenamed First Respondent, on Mr Rea’s property in Central Queensland. I understood that they went fishing and shooting on Mr Rea’s property and that they would share meals and drink at hotels together. I understood that Mr Rea had some tractors, bulldozers and similar machinery and that my late husband would repair and service and drive the machines. My late husband had worked as a mechanic in the Army and he enjoyed working with vehicles, especially big ones.7. I believed that when my husband went away to Mr Rea’s property, it was just my late husband helping a friend, having a good time and bonding with a mate. I was never aware that there was any payment in the form of wages from Mr Rea or his company, A & K Investments Pty Ltd, to my late husband for the work that he did.8. I never questioned my late husband when he said he was going up to Mr Rea’s property to help him out. He would just tell me that he was going up there. Sometimes he would tell me why he was going up to help out Mr Rea, but he would just tell me basic details about what they would be doing such as felling trees or making dams.9. I was aware that Mr Rea used to pay for my late husband’s beer and provide accommodation while he was up working with him. I also was aware that Mr Rea took my late husband to golf on occasions. I was also aware that Mr Rea paid for the air-conditioning in our caravan which I called ‘being paid in kind’. ...10. I knew that Mr Rea’s company was called A & K Investments Pty Ltd. I knew its name because Mr Rea had given me and my late husband the bank account details of A & K Investments Pty Ltd so that we could transfer some money into that account when we had to pay some money to Mr Rea. In or around late 2010, Mr Rea had lent us some money to buy a caravan because our money was going to take too long to come through. We paid the money back to him. However, he wanted the money to be paid to his company which was called A & K Investments Pty Ltd.11. Apart from the air-conditioning in our caravan being paid for by Mr Rea, I was unaware of any other payments of cash or otherwise being paid to my late husband by Mr Rea or A & K Investments Pty Ltd.” The applicant then referred to consulting with her solicitors and the lodgement of the PIPA Notice of Claim and the WCRA Notice of Claim for Damages in December 2016. She said that at the time she completed the WCRA Notice of Claim for Damages she was unaware of the precise circumstances of her husband’s fatal accident and also unaware of any potential employment relationship between her husband and the second respondent. She said:“13. At the time that I completed the WorkCover Notice of Claim on 16 December 2016, I was aware that there was a Workplace Health and Safety Queensland ongoing prosecution. However, I had been unable to obtain any records from the prosecuting authority and I had been informed by my solicitors that they had also been unable to obtain any such records and that those records would not be made available until after the scheduled completion of the prosecution on 21 February 2017. ...”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my view, the applicant has pointed to sufficient evidence to establish the right of action against the second respondent.Conclusion For the reasons I have given, I am satisfied that the requirements of s 31(2)(a) and (b) of the LAA have been satisfied, and that the period of limitation for the applicant’s loss of dependency action against the second respondent ought be extended to 10 February 2018. I note for completion that the third respondent did not raise any issue of prejudice or likely prejudice. I will hear the parties as to the necessary form of order.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cumner v Rea & Ors [2018] QSC 159
PARTIES:	JENNIFER ALIX CUMNER (applicant) v RICHARD ALLEN REA (first respondent) and A & K INVESTMENTS PTY LTD (second respondent) and WORKCOVER QUEENSLAND (third respondent)
FILE NO:	9167 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	24 July 2018
DELIVERED AT:	Brisbane
HEARING DATE:	3 October 2017
JUDGE:	Daubney J
ORDER:	I will hear the parties as to the necessary form of order.
CATCHWORDS:	WORKERS COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – TIME FOR CLAIM – whether the limitation period had passed in respect of a wrongful death claim against second respondent – where applicant contends she was not aware her late husband was an employee – whether applicant had knowledge her late husband was an employee of the second respondent prior to lodging wrongful death claim – whether there is sufficient evidence for a claim to be brought against the second respondent Limitation of Actions Act 1974 (Qld) Personal Injuries Proceedings Act 2002 (Qld) Workers Compensation and Rehabilitation Act 2003 (Qld) Workplace Health and Safety Act 2011 (Qld) Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 NF v State of Queensland [2005] QCA 110 Randel v Brisbane City Council [1984] 2 Qd R 276. Weis Restaurant Toowoomba v Gillogly [2013] QCA 21 Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431
COUNSEL:	M Grant-Taylor QC with PB DePlater for the Applicant J O McClymont for the Third Respondent
SOLICITORS:	Slater & Gordon Lawyers for the Applicant J F Connolly of HBM Lawyers for the First Respondent BT Lawyers for the Third Respondent