Dickson v Hassum & Levitt Pty Ltd & Anor - [2024] QCA 15

SUPREME COURT OF QUEENSLAND

CITATION:

Dickson v Hassum & Levitt Pty Ltd & Anor [2024] QCA 15

PARTIES:

DUNCAN ALEXANDER DICKSON
(appellant)
v
HASSUM & LEVITT PTY LTD
(first respondent)
WORKCOVER QUEENSLAND
(second respondent)

FILE NO/S:

Appeal No 12392 of 2023
SC No 10008 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 7 September 2023 (Muir J)

DELIVERED ON:

13 February 2024

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2024

JUDGES:

Mullins P, Boddice JA and Applegarth J

ORDERS:

1. Appeal dismissed.

2. The appellant must pay the respondents’ costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the appellant’s application for an extension of the limitation period pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (Act) was dismissed – where the primary judge on occasions during the hearing and in the reasons referred to “material facts” – whether the primary judge made an error in the interpretation of s 31 of the Act by referring to “material facts” rather than “material facts of a decisive character”

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where the appellant applied for an extension of the limitation period pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) – where the appellant was self-represented – where the appellant asserts the primary judge demonstrated significant apprehension of bias during the hearing – where the primary judge’s questioning was to clarify the material fact of a decisive character that was the basis of the application – whether the questioning by the primary judge raised a significant apprehension of bias

Limitation of Actions Act 1974 (Qld), s 30, s 31

COUNSEL:

The appellant appeared on his own behalf
C S Harding for the respondents

SOLICITORS:

The appellant appeared on his own behalf
McInnes Wilson Lawyers for the respondents

THE COURT: During the course of his employment by the first respondent Hassum & Levitt Pty Ltd (to which we will refer as the respondent), the appellant Mr Dickson claims to have injured his back on 1 June 2002 and then sustained injuries to his knee on 19 June and 4 July 2002. Mr Dickson lodged applications for compensation under the WorkCover Queensland Act 1996 (Qld) (WQA) in respect of the incidents on 19 June and 4 July 2002 relating to his left knee but never made a claim for compensation in respect of the back injury. Prior to the expiration of the limitation period in June/July 2005, Mr Dickson had neither filed Court proceedings nor delivered a complying notice of claim for damages in accordance with the WQA which remains the relevant legislation applicable to Mr Dickson’s claims: s 603 of the Workers’…

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.

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Details

Case: [2024] QCA 15
Decision Date: 13 February 2024

CaseChat Overview and Summary

The appeal was brought by Mr Dickson against Hassum & Levitt Pty Ltd and another respondent. The dispute arose from the primary judge's dismissal of Mr Dickson's application for an extension of the limitation period under section 31 of the Limitation of Actions Act 1974 (Qld). Mr Dickson sought the extension to allow him to bring a personal injury claim against the respondents, stemming from work-related incidents in 2002. The primary judge's decision was based on the contention that Mr Dickson had not demonstrated knowledge of material facts of a decisive character that would have led to the discovery of his injuries.

The central legal issues in this case revolved around the interpretation and application of section 31 of the Limitation of Actions Act 1974 (Qld). The court had to determine whether the primary judge correctly applied the statutory provisions by assessing whether Mr Dickson had knowledge of material facts of a decisive character. Additionally, the court examined whether the primary judge's questioning during the hearing created a significant apprehension of bias against Mr Dickson.

The court held that the primary judge did not err in interpreting section 31 by referring to "material facts" instead of "material facts of a decisive character." The court found that the primary judge's use of the term "material facts" was consistent with the statutory language and did not alter the outcome of the application. The court also found no significant apprehension of bias in the primary judge's questioning, which was aimed at clarifying the facts relevant to the application. Consequently, the appeal was dismissed, and Mr Dickson was ordered to pay the respondents' costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant must pay the respondents’ costs of the appeal.

Background

Background to the litigation

Mr Dickson appeared for himself before the primary judge and is also self-represented on his appeal against the primary judge’s orders.Relevant background Mr Dickson is 63 years old. Mr Dickson was employed by the respondent to deliver kitchens to site, aid tradepersons, clean and pick up and dispose of materials. Mr Hassum who is the managing director of the respondent (and who swore an affidavit relied on by WorkCover to oppose the application) recalled that Mr Dickson was an employee in the relevant period when he was injured but Mr Hassum has “a very limited memory of any injury suffered by him in 2002/2003”. Mr Dickson described in his affidavit the injury that he sustained about two weeks prior to 19 June 2002 as follows. Around 2.00 pm, a tall red haired second year apprentice named Tony became angry and lifted a large pantry cupboard pinning Mr Dickson against the stairwell. Mr Dickson visited the doctor the next day and had a week off work to recover. Mr Dickson described the incident on 19 June 2002 in which he injured his left knee in the following terms in which he refers to himself as “the worker”:“19.06.02 left knee injury around three Pm the worker was helping the rigger load the crane basket but walking backwards and he was pushing the cabinet until I caught my heel on a loose board, he pushed the pantry cupboard into my left knee. Visiting the doctor next day given a cortisone injection through the left knee cap and return to work but the knee continued to cause problems.” Those details were confirmed by the content of Mr Dickson’s application for compensation signed on 24 June 2002 and supported by the employer’s report to WorkCover. According to these documents, Mr Dickson stopped work on 20 June 2002 and returned to work on 24 June 2002. The incident on 4 July 2002 that resulted in the claim for compensation for a second injury to his left knee was recorded by Mr Dickson in his application for compensation dated 8 July 2002 in these terms:“I was breaking up kitchen cupboards to go in the bin and a shelf spun out and hit me in the leg.” Mr Dickson’s general practitioner, Dr Hendry reported to WorkCover as follows. Mr Dickson was off work until 29 July 2002. On his return to work he was having pain. He had physiotherapy and on 8 August 2002 was having difficulty flexing his left knee. Mr Dickson “was put on total incapacity” and referred to orthopaedic surgeon, Dr Leigh Sampson, who recommended ongoing physiotherapy. The report which WorkCover obtained from Dr Sampson who first saw Mr Dickson on 19 August 2002 noted that an MRI of the left knee carried out on 28 October 2002 revealed chondromalacia involving the medial half of the patella with some erosion of the articular cartilage and Mr Dickson returned to work on restricted duties. He underwent a bone scan on 24 December 2002 which revealed “increased uptake in the left patella, compatible with the changes of chondromalacia seen on the MRI scan”. His symptoms improved after holidays and when he was reviewed on 6 January 2003, his symptoms were much better and he returned to work.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Dickson v Hassum & Levitt Pty Ltd & Anor [2024] QCA 15
PARTIES:	DUNCAN ALEXANDER DICKSON (appellant) v HASSUM & LEVITT PTY LTD (first respondent) WORKCOVER QUEENSLAND (second respondent)
FILE NO/S:	Appeal No 12392 of 2023 SC No 10008 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 7 September 2023 (Muir J)
DELIVERED ON:	13 February 2024
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2024
JUDGES:	Mullins P, Boddice JA and Applegarth J
ORDERS:	1. Appeal dismissed. 2. The appellant must pay the respondents’ costs of the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL – LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the appellant’s application for an extension of the limitation period pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (Act) was dismissed – where the primary judge on occasions during the hearing and in the reasons referred to “material facts” – whether the primary judge made an error in the interpretation of s 31 of the Act by referring to “material facts” rather than “material facts of a decisive character” APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FOR BIAS IN JUDICIAL PROCEEDINGS – where the appellant applied for an extension of the limitation period pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) – where the appellant was self-represented – where the appellant asserts the primary judge demonstrated significant apprehension of bias during the hearing – where the primary judge’s questioning was to clarify the material fact of a decisive character that was the basis of the application – whether the questioning by the primary judge raised a significant apprehension of bias Limitation of Actions Act 1974 (Qld), s 30, s 31
COUNSEL:	The appellant appeared on his own behalf C S Harding for the respondents
SOLICITORS:	The appellant appeared on his own behalf McInnes Wilson Lawyers for the respondents