Toombs v PFD Food Services Pty Ltd

[2012] QDC 84

[2012] QDC 84

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1366 of 2012

JOSHUA TOOMBS	Applicant
and
PFD FOOD SERVICES PTY LTD & ANOR	Respondent

BRISBANE

..DATE 17/04/2012

ORDER

CATCHWORDS

Limitation of Actions Act 1974 s 31

Material fact of a decisive character discovered within the 12 months leading up to the application for extension of the limitation period was a work disrupting recurrence in 2011 in unprecedentedly serious form of 'locking' of a knee injured in an incident in 2008 for which the respondent was alleged to bear responsibility
HIS HONOUR: In this application by Mr Toombs, the court will make the orders sought in the originating application filed 10 April 2012 which are to extend the limitation period in respect of his cause of action alleged to have arisen out of breaches of duty owed by the first respondent employer on 3 July 2008 under section 31 of the Limitation of Actions Act 1974 so that it expires tomorrow and also that, pursuant to section 298 of the Workers' Compensation Rehabilitation Act 2003, the applicant have leave to bring a proceeding based on the injury he suffered on 3 July 2008, despite non-compliance with section 275, on condition that any proceeding commenced is stayed until there is compliance by Mr Toombs with the relevant provisions of parts 5 and 6 of Chapter 5 of the Act.

Mr Toombs is a young man, born on 19 December 1988.  On 3 July 2008 while working at his employer's premises he fell on a set of steps about a metre high, having been distracted by something or other.  He contends that the steps were dangerous, that he would not have fallen and hurt his left knee if there had been a railing on the side of the steps away from the wall at the other side.  As it happens, there is a railing in place now which appears to have been installed within a week or so of the accident but not as a reaction to the accident, rather as part of renovations that had already been planned.

The material fact of a decisive character which the applicant says came to his knowledge only within the last 12 months and, in particular, on 18 April last year, coupled with things that happened afterwards, was an incident of locking of the knee while dressing for work on that day.  This locking phenomenon had occurred on what Dr Gillett's report calls a "recurrent" basis since about December 2008 which, in the respondent's argument, showed that from that time in 2008 it was within Mr Toombs' means of knowledge that he might be suffering from a significant disability of his knee.

After the initial injury on 3 July 2008, he had medical investigations which resulted in an arthroscopic procedure conducted the following month by a orthopaedic surgeon, Dr Wilson.  Dr Wilson's report of 6 August 2008 reports on the surgery having some vascular compromise.  As was sometimes evident with tears in the relevant region, "the knee was otherwise satisfactory."

On the evidence before the court, subject to the interruption associated with the treatment just alluded to, Mr Toombs continued at work with a succession of three employers, losing no time from work.

The incident of 18 April 2011 led to a period of some weeks away from work supported by a medical certificate.  A claim was made for worker's compensation which WorkCover rejected on the basis that the exercise of dressing for work, which Mr Alldridge says was donning boots, occurred "within the boundary of your home" rather than outside the boundary of the home on the journey to work.  It was considered that Mr Toombs sought to advance his 2011 claim to compensation by changing his story to say that the serious locking incident occurred while he was in his car "parked outside the boundary of your home against the kerb."

Mr Toombs came under criticism from Mr Sapford, representing WorkCover, for seeking to rely on an earlier incident, namely, the one of 2008 when he found himself knocked back in April 2011.  I am unable to join in that criticism.  It appears to me natural enough, if a claim based on a recent incident is rejected, to link what has happened with some pre-existing injury which can be precisely dated and connected to employment.  When it is the same part of the body that is involved, it is not difficult to draw the link, as Dr Gillett does.

What the section 31 issue boils down to is whether the applicant was placed on notice that he had a cause of action that he ought to do something about vindicating promptly unless he wished to lose it by what happened in December 2008 and similar events that occurred afterwards or whether he was not put on notice until the work-disrupting incident of 18 April 2011.

The "recurrent locking of the knee from late 2008 to the present" described by Dr Gillett is, in my view, consistent with the applicant's version that every month or so he would experience locking which he could attend to on the spot by manipulating the knee himself.  That he could not do on April 18 2011.

In connection with 2011 claim to WorkCover, Dr Seckler, for WorkCover, examined Mr Toombs.   He considered that treatment for the initial injury in 2008 had finished and that the 2011 injury could be considered as stable and stationary.  He reported Mr Toombs as giving a history that "his left knee got worse again at the end of 2008 when he climbed on a forklift and his knee locked up.  Since then the left knee locks up daily, sometimes several times, mainly when walking and he has to perform stretching manoeuvres to free it up."

Mr Sapford asked the court to find that Mr Toombs reported to Dr Seckler that since about December 2008 he had suffered daily, sometimes more than daily, incidents of his left knee locking.  That strikes me as an absurd construction and I would assume that Dr Seckler has missed something, that is "since then" ought to refer to April 2011; otherwise, Mr Toombs presents a remarkable case of soldiering on.  He has missed no time from work, apart from that for his treatment back in 2008 and that associated with the 18 April 2011 incident.

Mr Toombs still has not sought treatment for his knee.  Mr Alldridge tells the court that on the basis that he has to seek treatment in the private system he is simply without the resources to do it and perhaps without the resources to manage loss of income during the treatment period.

In my opinion, there is a quantum difference between the earlier locking incidents and the one that occurred a year less a day ago.

I gained assistance from the well known passage in Healy v. Femdale Pty Ltd [1993] QCA 210 at page 4 which has been relied on in many subsequent decisions, including Gillespie v Swift Australia Pty Ltd [2009] QCA 316, which bears some similarity in its facts to Mr Toombs' situation, and Eldridge v Coles Group Limited [2012] QSC 39 at paragraph 54.

In Eldridge, the applicant failed. Given her Honour's view that the repeated and regular painful events, which an applicant originally injured more than five years before suffered, meant she had knowledge of material facts of a decisive character at a stage too early to prevent relief under section 31(2).

All of these cases depend on their own facts.  My view is that the present applicant does satisfy the relevant tests and, accordingly, he ought to have the relief he seeks.

...

‑‑‑‑‑