Drew v Mackay Sugar Ltd - [2014] QDC 216

DISTRICT COURT OF QUEENSLAND

CITATION:

Drew v Mackay Sugar Ltd [2014] QDC 216

PARTIES:

BRUCE OSWALD DREW
(Plaintiff)

and

MACKAY SUGAR LTD
(Defendant)

FILE NO/S:

Mackay D46/2014

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court Mackay

DELIVERED ON:

18 September 2014

DELIVERED AT:

Mackay

HEARING DATE:

15 August 2014

JUDGE:

Durward SC DCJ

ORDERS:

1 Application refused

2 The plaintiff to pay to the defendant its costs of the application assessed on the standard basis.

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF DECISIVE CHARACTER – where plaintiff commenced action against defendant claiming damages for personal injuries resulting from a workplace incident in 1994 – where the incident allegedly occurred about 20 years before the claim was filed - where extension of time under s 31 of the Limitation of Actions Act 1974 (Qld) necessary to maintain action – where the issue on the application was whether the defendant was substantially prejudiced so as to prevent a fair trial.

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – PRINCIPLES UPON WHICH DISCRETION EXERCISED – SUBSTANTIAL PREJUDICE - whether defendant had shown substantial prejudice – whether plaintiff able to show that a the defendant could have a fair trial.- where the defendant had no contemporaneous documents or records – where there were no eye witnesses to the incident – where plaintiff fell and landed on buttocks and right wrist - where no incident report was made and plaintiff made no application for compensation – where plaintiffs right wrist did not become symptomatic until 2011 – where other employees in the vicinity of where incident was alleged to have occurred had no recollection of any incident – where no records or anecdotal evidence of system of work – where defendant still occupied work premises and the material location had not changed – whether plaintiff had discharged onus – whether fair trial possible - whether discretion should be exercised to extend limitation period.

LEGISLATION:

Sections 11, 30 and 31 Limitation of Actions Act 1974.

CASES:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Hertess v Adams [2011] QCA 73; HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168; Page v The Central Queensland University [2006] QCA 478; Limpus v State of Queensland [2004] 2 QD R 161; Page v The Central Queensland University [2006] QCA 478.

COUNSEL:

P Cullinane of counsel for the Plaintiff
J Wiltshire for the Defendant

SOLICITORS:

Sciacca’s Lawyers & Consultants for the plaintiff
Jensen McConaghy for the Defendant

The plaintiff has applied for an extension of the period of limitation to commence proceedings for personal injury allegedly suffered in about September 1994 during his employment as a rigger/scaffolder with Mackay Sugar Ltd at its Marian Mill (the “Mill”).

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 Drew v Mackay Sugar Ltd

Details

AGLC: Drew v Mackay Sugar Ltd [2014] QDC 216
Case: [2014] QDC 216
Decision Date: 18 September 2014

CaseChat Overview and Summary

The matter of Drew v Mackay Sugar Ltd involved a plaintiff who sought to claim damages for personal injuries sustained in a workplace incident that allegedly occurred in 1994. The plaintiff did not file the action until 2014, which raised the issue of whether an extension of the limitation period under section 31 of the Limitation of Actions Act 1974 (Qld) was appropriate. The court had to determine if the plaintiff could demonstrate that the defendant was not substantially prejudiced, which would allow for the fair trial of the case.

The primary legal issue before the court was whether the defendant had shown substantial prejudice that would prevent a fair trial. The plaintiff argued that the defendant could still conduct a fair trial despite the delay in filing the claim, given that the defendant still occupied the work premises and the material location had not changed. The court considered whether the plaintiff had discharged the onus of showing that the defendant could have a fair trial, and whether the discretion to extend the limitation period should be exercised.

The court concluded that the plaintiff had not demonstrated that the defendant was not substantially prejudiced, as the defendant lacked contemporaneous documents or records, there were no eye witnesses to the incident, and other employees had no recollection of the incident. Additionally, the plaintiff's right wrist did not become symptomatic until 2011. The court found that the plaintiff had not discharged the onus of showing that a fair trial was possible. Consequently, the application for an extension of the limitation period was refused. The court also ordered that the plaintiff pay the defendant's costs of the application assessed on the standard basis.

Orders

Orders of the court

1 Application refused

2 The plaintiff to pay to the defendant its costs of the application assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Drew v Mackay Sugar Ltd [2014] QDC 216
PARTIES:	BRUCE OSWALD DREW (Plaintiff) and MACKAY SUGAR LTD (Defendant)
FILE NO/S:	Mackay D46/2014
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court Mackay
DELIVERED ON:	18 September 2014
DELIVERED AT:	Mackay
HEARING DATE:	15 August 2014
JUDGE:	Durward SC DCJ
ORDERS:	1 Application refused 2 The plaintiff to pay to the defendant its costs of the application assessed on the standard basis.
CATCHWORDS:	LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF DECISIVE CHARACTER – where plaintiff commenced action against defendant claiming damages for personal injuries resulting from a workplace incident in 1994 – where the incident allegedly occurred about 20 years before the claim was filed - where extension of time under s 31 of the Limitation of Actions Act 1974 (Qld) necessary to maintain action – where the issue on the application was whether the defendant was substantially prejudiced so as to prevent a fair trial. LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – PRINCIPLES UPON WHICH DISCRETION EXERCISED – SUBSTANTIAL PREJUDICE - whether defendant had shown substantial prejudice – whether plaintiff able to show that a the defendant could have a fair trial.- where the defendant had no contemporaneous documents or records – where there were no eye witnesses to the incident – where plaintiff fell and landed on buttocks and right wrist - where no incident report was made and plaintiff made no application for compensation – where plaintiffs right wrist did not become symptomatic until 2011 – where other employees in the vicinity of where incident was alleged to have occurred had no recollection of any incident – where no records or anecdotal evidence of system of work – where defendant still occupied work premises and the material location had not changed – whether plaintiff had discharged onus – whether fair trial possible - whether discretion should be exercised to extend limitation period.
LEGISLATION:	Sections 11, 30 and 31 Limitation of Actions Act 1974.
CASES:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Hertess v Adams [2011] QCA 73; HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168; Page v The Central Queensland University [2006] QCA 478; Limpus v State of Queensland [2004] 2 QD R 161; Page v The Central Queensland University [2006] QCA 478.
COUNSEL:	P Cullinane of counsel for the Plaintiff J Wiltshire for the Defendant
SOLICITORS:	Sciacca’s Lawyers & Consultants for the plaintiff Jensen McConaghy for the Defendant