Robertson v Sellin

[2011] QSC 421

SUPREME COURT OF QUEENSLAND

CITATION:

Robertson v Sellin & anor [2011] QSC 421

PARTIES:

COLIN ROBERTSON
(applicant)
v
LESLIE GEORGE FRANCIS SELLIN
(first respondent )
SUNCORP METWAY INSURANCE LIMITED
ABN 83 075 695 966

(second respondent)

FILE NO/S:

SC No 9725 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

Delivered ex tempore 1 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2011

JUDGE:

Atkinson J

ORDERS:

1.   The limitation period for bringing of the proceedings by the Applicant against the Respondents be extended to 3 November 2011;

2. Pursuant to s 39(5)(c)(ii) of the Motor Accident Insurance Act 1994 (as amended) (“the Act”), the Court authorises further proceedings based on the claim despite non compliance by the Applicant;

3.   Pursuant to s 57 (2)(b) of the Act, the Applicant be given leave to commence proceedings within 60 days of one of the following events occurring:

(a)     A conference being held pursuant to ss 51A and 51B of the Act and Mandatory Final Offers being exchanged in accordance with s 51C of the Act;

(b)     In the event of the parties agreeing to dispense with (a) above, pursuant to s 51A(4) of the Act, the date of the said agreement; 

(c)      In the event of the Court making an order to dispense with (a) above, pursuant to s 51A(5)(b) of the Act, the date of such order.

4.   Each party have liberty to apply by giving at least 3 business days notice in writing to the other party or parties.

5.   There be no order as to costs.

CATCHWORDS:

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 applicant was injured when the brakes failed in the truck he was driving in the course of his employment – where the applicant originally filed a claim under the Workers' Compensation and Rehabilitation Act 2003 (Qld) – where WorkCover subsequently determined that the claim fell outside the ambit of that Act and opined that the matter was instead governed by the Motor Accident Insurance Act 1994 (Qld) – where the applicant was informed of this by letter received 3 November 2010 – whether the limitation period should be extended

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

Carlowe v  Frigmobile Pty Ltd [1999] QCA 527, cited

Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20, cited

COUNSEL:

R F King-Scott for the applicant

R B Dickson for the respondents

SOLICITORS:

Jon Kent Lawyers for the applicant

Jensen McConaghy for the respondents

HER HONOUR:  This is an application pursuant to sections 30 and 31 of the Limitations of Actions Act 1974 (Qld) to extend the limitation period to 3 November 2011.  The applicant is Colin Robertson who was a truck driver and the application is supported by an affidavit from himself and his solicitors, Jon
Kent and Michael Fitzgibbon.

The applicant deposes that he left school at the completion of
Year 9 and thereafter worked as a slaughter man, butcher,
truck driver and various other unskilled or semiskilled
employment.

He commenced employment with E & R Stansfield & Sons Transport (“Stansfield”) for approximately six months before the accident in which he was injured, which took place on 26 May 2007.  He worked for Stansfield as a truck driver.

His duties, he deposes, did not include any maintenance or
servicing of the vehicles and he would be told by his employer
which vehicle he would drive and he would then go and pick it
up from a truck depot.

He deposes that he has a recollection of being contacted by
someone from the Department of Transport a couple of years ago
to go to court and he was subsequently contacted by another
person from the Department of Transport who advised he did not
have to attend court as his employer was pleading guilty.

That was the subject of cross-examination of Mr Robertson and
I am satisfied on the basis of that cross-examination that is
indeed what he was told.  That matter has some importance
because it is relevant to the question of his state of mind
about the liability of his employer for his injury.

As I mentioned, there is an affidavit from one of the
solicitors acting for him, Mr Kent, which adds a little more
detail to that.  Mr Kent said that on 27 October 2011 he
inspected a case file in the Southport Magistrates Court
relating to a prosecution by the Department of Transport of
Eric John Stansfield, the director of the employer of
Mr Robertson.

He had been charged pursuant to section 51(D) of the Transport
Operations (Road Use Management - Vehicle Standards and Safety) Regulations 1999 (Qld) (“TORUM”) with the charge of operation of the vehicle not in a safe condition.  Mr Kent says it was revealed from his search of that file that a plea of guilty was entered by Mr Stansfield to the charge on 9 December 2008 and the file also revealed that the charge related to the vehicle driven by Mr Robertson in which he suffered the injuries in the accident the subject of the proceedings.

The solicitor annexes a verdict and judgment record which
shows, indeed, that Mr Stansfield was convicted of that charge
on 9 December 2008.  Counsel for the respondent endeavoured to make something of the fact that the verdict and judgment record shows that the plea entered was "not guilty" and the verdict/result is shown as found "guilty".

I have nothing before me to show whether or not that records
the fact that a plea of not guilty was initially entered and
that plea was changed to a plea of guilty or whether, in fact,
there was a trial and a finding of guilt.  In either event, it
is clear that Mr Robertson knew of the prosecution of his
employer for that matter and he believed that his employer was
pleading guilty and so accepting responsibility.

He, of course, as he says in his affidavit, instructed
solicitors in January 2008 and he deposes that since that date
they have taken whatever steps are necessary to protect his
interests.

It is hardly surprising that a truck driver of limited
education who was seriously injured would repose trust in his
solicitors to take whatever steps were necessary to protect
his interests and that shows his state of mind.

He deposes that he has been in receipt of statutory benefits
from WorkCover since shortly after the accident and that his
injuries still prevent him from returning to work in any of
his pre-accident roles.

He gives a brief description of the accident as being that he
was driving a truck on Mystery Road, Mt Tamborine, when the
brakes failed and the truck crashed.  He deposes that he did
not know why the brakes failed and there was no indication
prior to the failure of the brakes that there was anything
wrong with the vehicle.  He deposes that most maintenance of
the vehicle was carried out by Mr Stansfield or his sons and
gives an example of the work that they did on the vehicle.

Mr Fitzgibbon deposes in his affidavit to correspondence that
he had with WorkCover.  It appears a notice of claim was first
filed with WorkCover on 24 May 2010. There is a letter from WorkCover dated 26 May 2010 referring to that notice and the injuries suffered and saying that the claim fell within the ambit of the Workers' Compensation and Rehabilitation Act 2003 (Qld), and then dealing with the prelitigation steps needed to take place and difficulties with the claim prepared by the solicitor and setting out a series of steps that WorkCover required in order for them to waive compliance.

Pursuant to those requirements the applicant solicitors gave
another notice to WorkCover. The response from WorkCover on
27 May 2010 was that WorkCover was satisfied with the action
taken by the plaintiff to remedy the non-compliance and advice
was given that the notice of claim complied with the Act.

Further information and documentation was sought about the
circumstances of the event resulting in the injury and the
nature of the injuries suffered.  On 1 October 2010 the
solicitors for WorkCover sent a letter to the solicitors for
the plaintiff which was received on 6 October 2010, pressing
the solicitors’ opinion that the matter was governed by the
Motor Accident Insurance Act 1994 (Qld) and that notices of contribution should be issued against the proposed defendant, the first respondent to this application and the second respondent to this application and enclosing a report prepared by the Department of Transport suggesting that, in fact, the first respondent was responsible and that the inspection conducted by the first respondent was in error.

They submitted that it was appropriate for the notice of
claim, under the Workers' Compensation Rehabilitation Act to
be withdrawn and a notice of claim pursuant to the Motor
Accident Insurance Act be served on the CTP insurer.
However, it was not until a letter dated 2 November 2010
received by the applicant's solicitor on 3 November 2010 that
WorkCover informed the solicitors for the plaintiff that they
would be denying liability.

The applicant submitted that the applicant's solicitors first
became aware of the possible further respondent on 6 October
2010 when they received the letter to which I have referred of
1 October 2010 which enclosed the records of the Queensland
Department of Transport in relation to subsequent inspections
of the truck.

Notwithstanding that gave them notice of certain facts,
those facts were not of a decisive character, it was submitted, until the letter was received refusing to indemnify the plaintiff for his claim on 3 November 2010.  Until that time, as can be seen by this recitation of the facts, the plaintiff was justified in believing that he had a good cause of action against WorkCover and so the facts were not of a decisive character in his mind until liability was denied by WorkCover.

The application is made pursuant to sections 30 and 31 of the
Limitations of Actions Act 1974 (Qld) ("the Act") which has
previously been referred to by me and many other judges as an
unnecessarily complicated statutory provision. As was said in
Carlowe v  Frigmobile Pty Ltd [1999] QCA 527 at [9], "That the
extension provisions are complex and extremely technical and
have been a fertile source of litigation has been adversely
commented upon by the Queensland Law Reform Commission in the
review of the Limitation of Actions Act 1974."

Those comments have been echoed in the High Court. Gummow, Hayne and Crennan JJ said in Queensland v Stephenson [2006] HCA 20 at [1], "Of the British ancestor of Part 3 [of the Act], Lord Reid observed that it had a strong claim to the distinction of being the worst drafted Act on the statute book." It is unnecessary for me to set out in full sections 30 and 31 of the Act.

The High Court observed in Queensland v Stephenson that the
test set out in the Act is a composite test of which the
practical result is that,  "an applicant always has at least
one year to commence proceedings from the time when his or her
knowledge of material facts (as defined in s 30(1)(a)) coincides with the circumstance that a reasonable person with
the applicant's knowledge would regard the facts as justifying
and mandating that an action be brought in the applicant's own
interests (as in s 30(1)(b)).  If this conjunction of circumstances first occurs before the commencement of the last year of the limitation period, no application for an extension could be brought; the applicant has the benefit of at least one year before the limitation period expires and is required to act within that time.  If the conjunction occurs after the commencement of that last year, the court is empowered, if the other criteria in s 31 are satisfied, to extend time for one year from the date of that conjunction of circumstances.”

What is a material fact is governed by section 30(1)(a) of the
Act.  What gives material facts a decisive character is
governed by section 30(1)(b) of the Act.  Material facts are
taken to be of a decisive character if, but only if, a
reasonable person knowing those facts and having taken the
advice of competent persons qualified in their respective
fields to advise on the medical, legal and other aspects of
the facts would regard those facts as showing that an action
on the right of action would, apart from the effect of the
expiration of a period of limitation, have a reasonable
prospect of success and of resulting in an award of damages
sufficient to justify the bringing of an action on the right
of action and that the person whose means of knowledge is in
question ought, in the person's own interest and taking the
person's circumstances into account, to bring an action on the
right of action.

In this case the material facts only attained the decisive
character when the plaintiff realised that if he did not take
action against the proposed respondents he had the potential of not having a successful action at all.  Prior to that he had reason to believe that he had an action which could and should be taken against WorkCover which would satisfy his claim.

As was submitted, it was reasonable for the applicant and his
solicitors to take some time to determine whether the claim
against the CTP insurer had a reasonable prospect of success
sufficient to bring the action, when he apparently had an
existing right of action against his employer.  As was
submitted, it would be reasonable to interpret the solicitors’
letter of 6 October 2010 as raising a serious claim of
contribution against the CTP insurer and the first respondent
but not necessarily a case of excluding the applicant's claim
under the Workers' Compensation Rehabilitation Act.

Notwithstanding my satisfaction that the extension sought
should be granted for the reasons already given, I
have a discretion to nevertheless refuse the application.
There appears to me to be no seriously arguable case of
prejudice to the proposed defendants and no particular case is
articulated and no material read or relied upon by the
respondents to suggest any such prejudice other than what
might usually be expected by the effluxion of time. This is a case where the insurer has the advantage of the report prepared soon after the accident by an inspector from
the Department of Transport and that matter means that the
circumstances in which the injury occurred cannot seriously be in doubt.

There is no doubt that there is evidence which could
reasonably be expected, if available at trial and unopposed by
other evidence, to be sufficient to prove the plaintiff's
case.  In all the circumstances I propose to grant the
application.

...

HER HONOUR:  No order as to costs.

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