Steele v John Holland Group Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Steele & Anor v John Holland Group Pty Ltd [2020] QSC 37

PARTIES:

AUBREY KRISTEN STEELE

(first applicant)
MADELYN MARIE MURPHY (BY HER LITIGATION GUARDIAN AUBREY KRISTEN STEELE)

(second applicant)

v

JOHN HOLLAND GROUP PTY LTD

(respondent)

FILE NO/S:

SC No 13946 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

9 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

19 and 20 June 2019

JUDGE:

Burns J

ORDER:

THE ORDER OF THE COURT IS THAT:

1. Pursuant to s 31 of the Limitation of Actions Act 1974 (Qld), the period of limitation for the first applicant’s claim as first plaintiff in proceeding BS No 826 of 2019 be extended to 25 January 2019;

2.   The costs of the application be the costs of the first applicant and the respondent as first plaintiff and defendant respectively in proceeding BS No 826 of 2019.

CATCHWORDS:

LIMITATION OF 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 brings a dependency claim in respect of the death of her husband – where the applicant did not commence proceedings within the statutory limitation period – where the applicant commenced a proceeding with respect to her claim nine years after the death of her husband – whether an extension of time should be granted – whether a material fact of a decisive character was not within the applicant’s means of knowledge prior to the expiry of the limitation period

Civil Proceedings Act 2011 (Qld), s 64

Limitations of Actions Act 1974 (Qld), s 11, s 30, s 31
Occupational Health and Safety Act 1991 (Cth), s 16, s 21, s 40
Personal Injuries Proceedings Act 2002 (Qld), Chapter 2, Part 1

Supreme Court Act 1995 (Qld), s 17

Aircraft Technicians of Australia Pty Ltd v St Clair; St Clair v Timtalla Pty Ltd [2011] QCA 188, cited

Castillon v P & O Ports Limited (No 2) [2008] 2 Qd R 219, cited

Dick v University of Queensland [2000] 2 Qd R 476, cited

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, cited

Hall v Don Faulkner Motors Pty Ltd & Ors [2013] QSC 331, cited

Hall v Nominal Defendant (1966) 117 CLR 423, cited

Hargans v Kemenes & Anor [2011] QCA 251, cited

Honour v Faminco Mining Services Pty Ltd & Anor [2009] QCA 352, cited

Jones v Dunkel (1959) 101 CLR 298, cited

Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, cited

Payne v Parker [1976] 1 NSWLR 191, cited

St Clair v Timtalla Pty Ltd [2010] QSC 296, cited

State ofQueensland v Stephenson (2006) 226 CLR 197, cited

Sugden v Crawford [1989] 1 Qd R 683, cited

Taggart v The Workers’ Compensation Board of Queensland [1983] 2 Qd R 19, cited

Ward v Wiltshire Australia…

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Details
Case
[2020] QSC 37
Decision Date

CaseChat Overview and Summary

The case of Steele v John Holland Group Pty Ltd involved a dependency claim brought by Ms Steele in respect of the death of her husband, who was electrocuted while working as a stringing supervisor for John Holland Group Pty Ltd. The claim was initiated nine years after the death, outside the statutory limitation period, prompting a request for an extension of time under the Limitation of Actions Act 1974 (Qld). The central issue was whether Ms Steele could establish that a material fact of a decisive character was not within her means of knowledge before the statutory limitation period expired.

The court needed to determine whether Ms Steele satisfied the onus of proving that certain facts, critical to her claim, were not within her knowledge prior to 25 January 2018. The material facts in question related to the circumstances of her husband's death and the alleged negligence of John Holland Group Pty Ltd. The court considered whether Ms Steele had acted reasonably in ascertaining these facts and whether she had a legitimate basis for not knowing them earlier.

In reaching its decision, the court examined the evidence and circumstances surrounding Ms Steele's husband's death. It found that Ms Steele had not acted unreasonably in her efforts to understand the facts and that the critical facts were indeed not within her means of knowledge prior to 25 January 2018. The court also addressed John Holland Group Pty Ltd's arguments against the exercise of discretion in Ms Steele's favour, including concerns about prejudice and the decision not to lodge a Notice of Claim under the Personal Injury Proceedings Act 2002 (Qld). The court concluded that despite the passage of time and some degree of prejudice, a fair trial could still be secured if the limitation period was extended.

The court granted an extension of the limitation period for Ms Steele's claim, allowing her to proceed with her dependency claim. The costs of the application were ordered to be borne by both parties equally.

Orders

Orders of the court

THE ORDER OF THE COURT IS THAT:

1. Pursuant to s 31 of the Limitation of Actions Act 1974 (Qld), the period of limitation for the first applicant’s claim as first plaintiff in proceeding BS No 826 of 2019 be extended to 25 January 2019;

2. The costs of the application be the costs of the first applicant and the respondent as first plaintiff and defendant respectively in proceeding BS No 826 of 2019.

Background

Background to the litigation

The critical question on this application therefore concerns whether Ms Steele has satisfied the onus on her to establish within the meaning of s 31 LAA that a material fact of a decisive character was not within her means of knowledge earlier than 25 January 2018.Background to the application The deceased was a civil engineer. In May 2007, he commenced work for the respondent, John Holland Group Pty Ltd, as a stringing supervisor. He was still working for John Holland in November 2009 when he was transferred to the Strathmore Ross Project and promoted to the position of construction manager. The project involved the construction of high voltage transmission lines between Strathmore and Ross, west of Townsville in North Queensland. Although promoted to a higher role, the deceased acted as a stringing supervisor while becoming familiar with the Strathmore Ross Project, and he was working in that capacity, on a “fly in / fly out” basis, at the time he died. In particular, he headed up a crew tasked with the installation of line spacers between conductors on spans between two supporting towers along the transmission line. Spacers, when installed, prevent adjacent conductors from making contact with each other. The upper and middle phase spacers were installed using a helicopter but the lower phase spacers had to be installed using a conductor cart. To achieve this, at about 1.00 pm on 5 December 2009 an Elevated Working Platform was employed to lift the conductor cart into place directly beneath the conductors. The cart was attached to the conductors by the deceased and another worker, Mr Macquin Parungao, before the deceased transferred from the EWP to the cart.[1] The EWP with Mr Parungao operating it was then lowered out of the way but, as this was occurring, the deceased was electrocuted and died at the scene. Mr Parungao received minor burns and required hospitalisation.[1]The other members of the crew – Mr Aden Ellem and Mr Marcelino Laspobres – remained on the ground. They were joined by Mr Francis Novis, the project engineer, and Ms Erin Daley, a student engineer, after the conductor cart was lifted into place. Although the conductors were not carrying generated electricity, they were nonetheless energised through electrostatic conduction from adjacent, and live, transmission lines. There was accordingly a high risk of electrocution unless the conductors were effectively earthed. A written procedure governed the performance of this work. It is described in the evidence as an Activity Method Statement and a version of it was developed in the week preceding the incident and was dated 4 December 2009. It required the lower phase conductors to be earthed at each supporting tower using an earthing lead. To do this, the workers on the EWP should have been wearing “hot gloves”. They were then supposed to attach one end of the earthing leave to the supporting tower before, while using a “hot stick” to keep clear, attaching the other end to the conductors.

Evidence

Evidence Before The Court

Given these circumstances, I am by no means persuaded that it is reasonable to expect a person in the shoes of Ms Steele to have done more than she actually did to find out the facts. I am satisfied that the facts in question were not within Ms Steele’s means of knowledge any earlier than 25 January 2018.Is there evidence to establish a right of action? I am satisfied that there is now sufficient evidence for Ms Steele to establish a right of action within the meaning of s 31(2)(b) LAA.Discretion As will already be obvious, there are two aspects to John Holland’s argument against the exercise of the discretion in Ms Steele’s favour. The first concerns Ms Steele’s decision against legal advice not to lodge a Notice of Claim under PIPA. John Holland submits that it would not be just to allow Ms Steele to resile from her decision so long after the death of her husband.[19] Whilst such a decision might in an appropriate case constitute a significant hurdle in the path of relief, I do not think this is such a case. Ms Steele’s decision not to lodge the Notice of Claim was based in substantial part on what I have now found to have been a depiction of the facts that was misleading in its effect.[19]See Hall v Nominal Defendant (1966) 117 CLR 423, 435; Ward v Wiltshire Australia Pty Ltd [2005] 51 MVR 1, [95]–[98]. The second argument concerns prejudice, that is to say, whether John Holland can obtain a fair trial if the extension of the limitation period is granted, having regard to the possibility of prejudice to it. In that regard, it cannot be doubted that there will be a degree of general (or presumptive) prejudice due to the passage of time since the fatality. The memory of witnesses will have faded, although many of those witnesses provided statements which will no doubt be employed to refresh their memories. There is also, John Holland has established, a degree of actual prejudice. At least one witness[20] is unable to be located (although he provided written statements in 2009 and 2016 and gave evidence at the Inquest) and there are a number of documents that can no longer be found. As against that, there is a considerable volume of material otherwise available to John Holland. Much of that was generated in its own investigation, some was gathered during the Comcare investigation and the balance emerged during the Inquest. I am satisfied that, on balance, a fair trial can still be secured by John Holland if an extension of the limitation period is granted.[20]Mr Hardie. There will be an extension of the limitation period to accommodate the claim that is currently stayed. Although the grant of an extension is an indulgence, Ms Steele’s application was actively opposed by John Holland. The appropriate costs order is that they be the costs of Ms Steele and John Holland in the claim.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.