Heathcote v Oaky Creek Coal Pty Ltd - [2021] QSC 184

SUPREME COURT OF QUEENSLAND

CITATION:

Heathcote v Oaky Creek Coal Pty Ltd [2021] QSC 184

PARTIES:

STEVEN ANDREW HEATHCOTE

(applicant)

v
OAKY CREEK COAL PTY LTD
ACN 010 202 936

(respondent)

FILE NO/S:

SC No 31 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

6 August 2021

DELIVERED AT:

Rockhampton

HEARING DATE:

15 July 2021

JUDGE:

Crow J

ORDER:

1. The period of limitation within which to commence an action for damages for negligence and/or breach of statutory duty with respect to bodily injury arising from an incident in the course of the applicant’s employment on 27 March 2013 be extended up to and including 60 days from the date upon which the applicant complies with Section 295 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

2. The respondent file and serve written submissions as to costs within 7 days hereof and the applicant file and serve written submissions in reply within 3 days’ receipt of the respondent’s written submissions.

CATCHWORDS:

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE – GENERALLY- where the applicant was employed by the respondent and had duties as part of the rescue team – where on 27 Match 2013 a dozer, whilst operating on the coal stockpile, fell into a void – where the applicant was part of the rescue team – where the applicant suffered a heart attack – where the applicant was informed by a doctor that the heart attack was by a blocked left ventricle which was hereditary – where the applicant was diagnosed in 2019 has having a 40% work impairment and was payed an advance by the respondents workers’ compensation insurers – where, in March 2021, the applicant received a copy of a report into the subject incident which made findings as to causation and liability - where the limitation period in which to commence proceedings expired on 27 March 2016 pursuant to s 11 of the Limitation of Actions Act 1974 (Qld) – where the applicant seeks to extend the period in which to commence under s 31 of the Limitation of Actions Act 1974 (Qld) - whether an extension of time within which to file a claim ought to be granted

Limitation of Actions Act 1974 (Qld) s 11, s 30, s 31

Baillie v Creber & Anor [2010] QSC 52, applied
Dick v University of Queensland [2000] 2 Qd R 476; [1999] QCA 474, followed
Do Carmo v. Ford Excavations Proprietary Limited (1984) 154 CLR 234; [1984] HCA 17, cited
HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, cited
Opacic v Patane [1997] 1 Qd R 84, cited
Wolverson v Todman [2016] 2 Qd R 106; [2015] QCA 74, followed
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431;

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: [2021] QSC 184
Decision Date: 6 August 2021

CaseChat Overview and Summary

In the matter of Heathcote v Oaky Creek Coal Pty Ltd, the applicant, Mr Heathcote, seeks an extension of the limitation period to bring a personal injury claim against the respondent, Oaky Creek Coal Pty Ltd. Mr Heathcote suffered a heart attack during a rescue operation on 27 March 2013, where he was part of the rescue team responding to an incident at the Oaky Creek Coal Mine involving a dozer falling into a void. He was diagnosed with a 40% work impairment in 2019 and received an advance from the respondent’s workers’ compensation insurers. The limitation period under the Limitation of Actions Act 1974 (Qld) expired on 27 March 2016, but Mr Heathcote received a report on the incident in March 2021, which led to his application for an extension.

The primary legal issue before the court was whether an extension of the limitation period should be granted under s 31 of the Limitation of Actions Act 1974 (Qld). The court needed to determine if Mr Heathcote had knowledge of material facts of decisive character before the limitation period expired, and if the extension was justified under the statutory provisions. The court examined whether Mr Heathcote knew or ought to have known that his heart attack was connected to the incident and the potential liability of the respondent, which could have prompted him to take legal action.

The court found that Mr Heathcote did not have knowledge of the material facts of decisive character before the limitation period expired. It was held that his understanding that the heart attack was hereditary did not equate to knowledge of the connection to the incident or the respondent's liability. The court considered that the receipt of the incident report in March 2021 provided new information that constituted knowledge of decisive facts. The court was satisfied that the application met the criteria for an extension under s 31 of the LAA, and granted the extension up to 60 days after Mr Heathcote complies with Section 295 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). The court also ordered the respondent to file and serve written submissions on costs within 7 days, with the applicant to respond within 3 days of receipt of the respondent’s submissions.

Orders

Orders of the court

1. The period of limitation within which to commence an action for damages for negligence and/or breach of statutory duty with respect to bodily injury arising from an incident in the course of the applicant’s employment on 27 March 2013 be extended up to and including 60 days from the date upon which the applicant complies with Section 295 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

2. The respondent file and serve written submissions as to costs within 7 days hereof and the applicant file and serve written submissions in reply within 3 days’ receipt of the respondent’s written submissions.

Background

Background to the litigation

Mr Heathcote applies under s 31 of the Limitation of Actions Act 1974 (Qld) (LAA), to extend the limitation period applicable to the subject proceedings. Background Mr Heathcote was born on 10 February 1968. Mr Heathcote completed his formal education to Grade 10 at Moranbah State High School and then obtained an apprenticeship as a Heavy Diesel Fitter Mechanic.[2] Mr Heathcote was trade qualified by the age of 19 in 1987 and was then in constant employment as a fitter, diesel fitter, boilermaker or mechanical fitter until he resigned on 7 November 2019.[3][2]Affidavit of Steven Andrew Heathcote filed 1 July 2021, paragraph 3-5. [3]Affidavit of Steven Andrew Heathcote filed 1 July 2021, paragraph 6-14, 37. On Wednesday 27 March 2013, Mr Heathcote was working as an operator/maintainer on the coal handling and preparation plant at Oaky Creek Coal Mine. Mr Heathcote commenced his shift at 6:15pm. At approximately 8:00pm, Warren Nunn, who was operating a dozer pushing coal on a coal stockpile at Oaky Creek made an emergency call. Mr Nunn called on his radio to alert his work colleagues that his dozer had fallen backwards into the F22 feeder. Mr Heathcote was a part of the emergency response. After receiving the emergency call, Mr Heathcote ran some 300 metres to the top of a stacker where he was able to observe that the large dozer being operated by Mr Nunn had been engulfed in coal with only the blade of the dozer being exposed.[4] [4]Affidavit of Steven Andrew Heathcote filed 1 July 2021, paragraph 18. Mr Heathcote then assisted in coordinating an excavator to move onto the stockpile and to dig the coal away from the dozer. This took time, and as the cabin of the bulldozer had become engulfed there was reasonable concern that the oxygen supply in the cabin could be exhausted. A retrieval ladder was obtained, and the emergency situation was assessed. Difficult decisions had to be made, namely whether to attempt a “snatch and grab”, that is, with the deployment of the ladder by putting the rescue workers’ lives at risk to attempt to save Mr Nunn’s life, or to continue with the excavation which may have caused the stockpile to further collapse, resulting in Mr Nunn’s death. The mine manager made the difficult decision to attempt the snatch and grab and as a result, Mr Heathcote, as a part of the rescue team, was required to climb into the stockpile below the surface of the trench and place the ladder onto the dozer. Mr Nunn was then able to get out of the cabin of the dozer, climb up the ladder and was successfully rescued. The photographs attached to the “ICAM incident investigation report”[5] (“ICAM report”) show that the dozer was in an extremely precarious position in a large void, with the dozer having slid backward into a void, such that the dozer was almost vertical when the rescue occurred. In any event, the rescue was a great success as Mr Nunn was retrieved and ostensibly no other worker was injured. [5]Exhibit GCP7 to the affidavit of Gene Christopher Paterson filed 1 July 2021, page 268.

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:	Heathcote v Oaky Creek Coal Pty Ltd [2021] QSC 184
PARTIES:	STEVEN ANDREW HEATHCOTE (applicant) v OAKY CREEK COAL PTY LTD ACN 010 202 936 (respondent)
FILE NO/S:	SC No 31 of 2021
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	6 August 2021
DELIVERED AT:	Rockhampton
HEARING DATE:	15 July 2021
JUDGE:	Crow J
ORDER:	1. The period of limitation within which to commence an action for damages for negligence and/or breach of statutory duty with respect to bodily injury arising from an incident in the course of the applicant’s employment on 27 March 2013 be extended up to and including 60 days from the date upon which the applicant complies with Section 295 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). 2. The respondent file and serve written submissions as to costs within 7 days hereof and the applicant file and serve written submissions in reply within 3 days’ receipt of the respondent’s written submissions.
CATCHWORDS:	LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – KNOWLEDGE – GENERALLY- where the applicant was employed by the respondent and had duties as part of the rescue team – where on 27 Match 2013 a dozer, whilst operating on the coal stockpile, fell into a void – where the applicant was part of the rescue team – where the applicant suffered a heart attack – where the applicant was informed by a doctor that the heart attack was by a blocked left ventricle which was hereditary – where the applicant was diagnosed in 2019 has having a 40% work impairment and was payed an advance by the respondents workers’ compensation insurers – where, in March 2021, the applicant received a copy of a report into the subject incident which made findings as to causation and liability - where the limitation period in which to commence proceedings expired on 27 March 2016 pursuant to s 11 of the Limitation of Actions Act 1974 (Qld) – where the applicant seeks to extend the period in which to commence under s 31 of the Limitation of Actions Act 1974 (Qld) - whether an extension of time within which to file a claim ought to be granted Limitation of Actions Act 1974 (Qld) s 11, s 30, s 31 Baillie v Creber & Anor [2010] QSC 52, applied Dick v University of Queensland [2000] 2 Qd R 476; [1999] QCA 474, followed Do Carmo v. Ford Excavations Proprietary Limited (1984) 154 CLR 234; [1984] HCA 17, cited HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168, cited Opacic v Patane [1997] 1 Qd R 84, cited Wolverson v Todman [2016] 2 Qd R 106; [2015] QCA 74, followed Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431;