Dickson v Hassum & Levitt Pty Ltd & Anor
[2024] QCA 15
•13 February 2024
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 2023DIVISION:
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 respondentsSOLICITORS:
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’ Compensation and Rehabilitation Act 2003 (Qld).
On 14 December 2022 Mr Dickson lodged a notice of claim for damages with the second respondent WorkCover Queensland that was considered deficient by WorkCover. Mr Dickson served a further notice of claim for damages dated 19 April 2023 in respect of the three incidents that was accepted by WorkCover on 2 May 2023 as compliant with s 280 of the WQA. On 11 August 2023 Mr Dickson commenced his proceeding against the respondent and WorkCover in the Supreme Court for damages for personal injuries for an amount in excess of $900,000. On the same date he filed the application seeking an extension of the limitation period pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) (Act). On 7 September 2023 the learned primary judge dismissed the application and ordered Mr Dickson to pay the respondent’s and WorkCover’s costs of the application to be assessed on the standard basis.
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.
WorkCover accepted Mr Dickson’s application for the injury sustained on 4 July 2002 for exacerbation of pre-existing chondromalacia-left knee as a work-related aggravation of a pre-existing condition and that he was entitled to compensation benefits for the aggravation only and not the pre-existing condition. Mr Dickson was advised by WorkCover by letter dated 15 January 2003 that WorkCover had decided he was no longer entitled to compensation as he had ceased suffering the effects of the work-related injury sustained on 4 July 2002.
Mr Dickson ceased working for the respondent in April 2003 and then obtained a new job repairing forklifts on a casual basis. He had ongoing problems with the knee in early 2005 and was referred to orthopaedic surgeon Dr Malisano who advised WorkCover that Mr Dickson underwent a left knee arthroscopy in early 2005, then a right knee arthroscopy on 23 June 2005. Mr Dickson’s bilateral knee pain persisted after this surgery.
Mr Dickson presented at a hospital in September 2016 complaining of bilateral knee pain. An x-ray of his left knee showed moderately prominent degenerative change in the patellofemoral joint and a small effusion. Mr Dickson applied to WorkCover to reopen his claim for compensation in respect of the 4 July 2002 incident and was referred to occupational physician, Dr Robert McCartney, who provided a report to WorkCover dated 9 March 2018 after examining Mr Dickson on 27 February 2018. In respect of the work-related injury of left knee contusion with exacerbation pre-existing chondromalacia patellae, Dr McCartney expressed the opinion that the injury was “stable, stationary and at maximum medical improvement” and assessed the permanent impairment at five per cent lower extremity impairment from the work-related left knee injury.
On 28 March 2018 WorkCover issued a notice of assessment in relation to the injury sustained by Mr Dickson on 19 June 2002 that WorkCover considered that he had not sustained permanent impairment from the injury and that his work-related impairment was therefore nil. By letter dated 11 May 2018 WorkCover notified Mr Dickson that his statutory workers’ compensation claim for the injury suffered on 19 June 2002 was finalised.
On 16 March 2018 WorkCover issued a notice of assessment for the injury sustained on 4 July 2002 and offered Mr Dickson a lump sum payment of $10,970.50 for this left knee injury which was not accepted by Mr Dickson. He attended the Orthopaedic Assessment Tribunal on 25 October 2022 for assessment of the injury to his left knee which was the subject of that claim. As a result, WorkCover offered a lump sum of $12,371.75 by letter dated 3 November 2022. That offer was not accepted and instead Mr Dickson sent to WorkCover on 7 December 2022 a draft statement of claim that was an earlier version of the statement of claim that was ultimately filed in this proceeding before sending to WorkCover on 14 December 2022 the notice of claim for damages.
The notice of claim for damages noted that surgery was required in 2016 for “latent onset osteophyte growths to left knee and right knee for the aggravation caused by the injury 19.06.02 and 04.07.02 to left knee” and that after surgery had been performed in 2005 to both knees, Mr Dickson was “warned of post operatively that osteophyte growths could be removed to stop the bones growing outward”.
As the notice of claim for damages also claimed for an injury to his lumbar spine suffered on 1 June 2002 for which no application for compensation had previously been made, WorkCover advised Mr Dickson by letter dated 22 May 2023 that it rejected his claim for an injury to lumbar spine on the basis that none of the medical reports obtained in 2002 and 2003 in relation to his knee injury referred to an incident in which he suffered a back injury and made no reference to complaints of any symptoms in his lumbar spine. That means that under s 273A of the WQA, Mr Dickson has no entitlement to pursue a claim for damages in respect of the injury sustained on 1 June 2002.
The relevant legislation
Subsections (1) and (2) of s 31 of the Act provide:
“(1)This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
(2)Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—
(a)that 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)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.”
What constitutes a material fact relating to a right of action for the purpose of s 31 is dealt with by s 30 of the Act.
The hearing before the primary judge
Mr Dickson relied on his affidavit affirmed on 10 August 2023 that gave details of the three incidents that are subject of his proceeding, exhibited the two letters from Dr Malisano dated 29 April and 23 June 2005, Dr McCartney’s report dated 9 March 2018 and Dr Hendry’s report 3 October 2002, and summarised several case authorities. The affidavit also disclosed that when the limitation period expired on 4 July 2005, Mr Dickson had a severe disability and could not walk after surgery that started in April 2005, he was unable to litigate, he was quoted “large upfront sums to litigate” and “the material facts were unknown”. He stated that in 2015 he suffered two “third party” injuries to his middle fingers and left thumb and then suffered hearing loss. He also stated that he was involuntarily detained in hospital in October 2021 and was granted a disability pension in March 2022. It appeared from Mr Dickson’s statement of claim that he was claiming lost wages for various periods between 1 July 2006 and 30 June 2015 and that he was unemployed from July 2015.
The respondent and WorkCover relied on the affidavit of Mr Hassum and an affidavit from Ms Barber, the solicitor acting on behalf of the respondent and WorkCover. Mr Hassum stated that when he was contacted by WorkCover in 2018 when Mr Dickson was seeking to reopen his statutory claim for compensation, Mr Hassum arranged an extensive search for old employee records but was unable to find any that related to 2002 or 2003. The respondent moved premises in September 2021 and any records older than 10 years were destroyed. Mr Hassum has made enquiries of the other four persons who were employed in 2002-2003 and remained employed by the respondent. Each of those persons recalled Mr Dickson but none of them had any recollection of the circumstances of a knee injury sustained by him. Ms Barber’s affidavit exhibited relevant documents from the WorkCover file and her firm’s file relating to Mr Dickson’s claim and provided a chronology for Mr Dickson’s dealings with WorkCover.
At the outset of the hearing, the primary judge informed Mr Dickson that for him to succeed on his application to extend the limitation period, he needed to point to a material fact of a decisive nature occurring no earlier than 2 May 2022 (which was the critical date for the purpose of s 31(2) of the Act). The primary judge therefore asked Mr Dickson to identify the material fact or facts of a decisive nature that had recently come to his attention.
The primary judge questioned Mr Dickson about when he became aware of the full extent of the injuries he sustained in 2002 and their impact upon his ability to work. Mr Dickson responded as follows. It was “over a period of time” and that after the surgery (in 2005), he never regained his full fitness. He suffered three more injuries in 2015 and had not worked since 2015. He made a claim against WorkCover New South Wales for the 2015 injuries and submitted that the material fact that he relied upon to extend the time for filing his claim was “the coincidence of having the injuries [caused by a] third party”. That coincidence became apparent to him in 2019 in other proceedings. Mr Dickson also told the primary judge that if he had had the money, he would have started litigation after the surgery in 2005. He did not understand the legal implications of the fact that he had been injured by a third party before 2019 when he saw all his injuries written down on paper. When the primary judge explained again that her Honour needed to understand what date it was that Mr Dickson first discovered facts that made him aware that he had a potential cause of action, he explained that it was only when he was filling out the statement of claim, that he discovered a fact that made him aware that he had a potential cause of action against the respondent relying on “trespass to person”.
The reasons
The primary judge noted that the authorities, including Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 256, established a three-tier approach to an application for extension of the limitation period:
“First, it is necessary to determine whether the facts of which the applicant were unaware were material. Secondly, whether they were of a decisive character. And, thirdly, whether they were in the means of knowledge of the applicant before the specified date.”
The primary judge was not satisfied that Mr Dickson “has in any way overcome his onus of identifying a material fact, let alone one of a decisive nature”. The primary judge found there was no evidence to suggest that Mr Dickson learnt of some fact regarding the consequences of his left knee injuries after 2 May 2022. The primary judge noted that was consistent with Mr Dickson’s statement of claim that asserted after his surgery in 2005, he was vulnerable in the open market, prone to frequent job changes and suffered loss of wages between 2006 and 2015 of some $282,000. Even if Mr Dickson had been able to satisfy the requirements of s 31(2) of the Act, the primary judge found that, as the respondent’s records had been destroyed and witnesses had died or were unable to be identified, the prejudice to the respondents would be significant and Mr Dickson would not have been able to discharge the onus of showing that the justice of the case required the discretion to extend the limitation period be exercised in his favour.
Grounds of appeal
The grounds set out in Mr Dickson’s notice of appeal reflect a commentary on the hearing before the primary judge and a summary of case law (much of it being irrelevant) rather than an articulation of the specific grounds on which Mr Dickson seeks to appeal the primary judge’s orders. The following grounds can be extracted from assertions in the notice of appeal and Mr Dickson’s outlines:
(1)The questioning by the primary judge of Mr Dickson during the course of the hearing raised a significant apprehension of bias on the part of the primary judge.
(2)The primary judge erred in the interpretation of s 31 of the Act.
(3)The Act should not be used to prevent the Court’s exercising jurisdiction where an indictable offence has been committed by one employee against another employee.
(4)The costs order should not have been made against Mr Dickson as that restricts access to the Court by those who have a genuine need for its remedies.
Apprehended bias
On the basis of the material filed by Mr Dickson in support of his application for extension of the limitation period, his application was doomed to fail. The questioning by the primary judge of Mr Dickson during the hearing was to clarify what Mr Dickson considered was the operative material fact of a decisive nature and ascertain whether there was any material fact of a decisive nature that had emerged since 2 May 2022 on which Mr Dickson could rely to seek the extension of the limitation period. The primary judge explained to Mr Dickson the relevance of inquiring about the material fact or facts of a decisive character on which Mr Dickson based his application which was essential to establish the threshold condition under s 31(2) of the Act before the court could consider whether to exercise the discretion to extend the limitation period.
There is no substance whatsoever in Mr Dickson’s submission that the questioning of him by the primary judge that was undertaken to better understand the basis for his application raised an apprehension of bias on her Honour’s part.
Interpretation of s 31 of the Act
Mr Dickson submits that during the hearing and in the reasons the primary judge focused on “material facts” and not “material facts of a decisive character”. Mr Dickson relies on State of Queensland v Stephenson (2006) 226 CLR 197 at [29] where Gummow, Hayne and Crennan JJ explained:
“The better view is that the means of knowledge (in the sense given by para (c) of s 30(1)) of a material fact is insufficient of itself to propel the applicant outside s 31(2)(a). For circumstances to run against the making of a successful extension application, the material fact must have ‘a decisive character’. Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial.”
The problem for Mr Dickson is that, even applying the composite expression of “material fact of a decisive character relating to a right of action” in the sense explained in Stephenson does not assist Mr Dickson by reference to the evidence which was adduced on the application.
In any case, it is quite apparent from the transcript of the hearing that at the outset the primary judge made it clear that her Honour wanted to hear further from Mr Dickson “about what you say is the material fact of a decisive nature”. To the extent that in exchanges with Mr Dickson and in the reasons, the primary judge may have referred in a shorthand way to “material fact” did not alter the focus of the hearing. The reasons of the primary judge show that the correct interpretation of the concept of “a material fact of a decisive character relating to the right of action” for the purpose of s 31(2) of the Act was applied by the primary judge.
Court should not apply the Act
It appears from Mr Dickson’s submissions before the primary judge and his written material that it was not until 2019 that he became aware of the significance of an employer’s duty in respect of the conduct of one employee towards another where the first employee inflicted what Mr Dickson described as a “third party injury”. To the extent that realisation related to the incident of 1 June 2002 in respect of which he never made an application for compensation, it was therefore not relevant to the application for extension. It seems that Mr Dickson’s realisation in 2019 also related to the incident of 19 June 2002 which he then understood could also be described as a “third party injury”. The essence of Mr Dickson’s argument is that he sustained an injury on 19 June 2002 because of the unlawful act of another employee and that it is unfair in those circumstances that the Act should be used against him. The primary judge was bound to apply the Act according to its terms and by reference to the evidence that was adduced on the application and not by notions of fairness.
Costs
It was Mr Dickson’s choice to pursue his proceeding for personal injuries and the application to extend the limitation period when he was unable to obtain legal representation. It is usual that costs are ordered to be paid by the unsuccessful party. The fact that Mr Dickson is a disability pensioner was not a reason not to order costs against Mr Dickson as the unsuccessful party to the application. There was no error in the primary judge’s exercise of discretion to make a costs order against Mr Dickson.
Orders
Mr Dickson’s appeal is unsuccessful. Mr Dickson’s parlous financial situation is not a reason not to make a costs order against him on the appeal. The orders which should be made are:
1.Appeal dismissed.
2.The appellant must pay the respondents’ costs of the appeal.
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