van der Berg v Key Solutions Group

Case [2021] QCA 157

SUPREME COURT OF QUEENSLAND

CITATION:

van der Berg v Key Solutions Group & Anor [2021] QCA 157

PARTIES:

PETRUS STEFANUS VAN DER BERG
(appellant)
v
KEY SOLUTIONS GROUP (A FIRM)
(first respondent)
WORKCOVER QUEENSLAND
(second respondent)

FILE NO/S:

Appeal No 10240 of 2020
SC No 768 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Rockhampton – [2020] QSC 262 (Crow J)

DELIVERED ON:

30 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2021

JUDGES:

Fraser and Mullins JJA and Boddice J

ORDERS:

1.   Leave to adduce evidence on appeal is refused.

2.   The appeal is dismissed.

3.   The parties provide written submissions as to costs, limited to three pages, within fourteen (14) days.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – JUDGE MISTAKEN OR MISLED – GENERALLY – where the appellant made application for orders pursuant to s 31 of the Limitation of Actions Act1974 (Qld) and for declaratory relief under the Workers’ Compensation and Rehabilitation Act2003 (Qld) – where the appellant’s application was dismissed – where the appellant appeals that decision – where the appellant submits the primary Judge erred in finding that the employer had made a full disclosure of all relevant material safety data sheets – where the appellant submits the employer wrongfully positively asserted that he was not exposed to chemicals that caused his injury – whether this positive assertion induced a misunderstanding as to the product list leading to the primary Judge considering irrelevant information in respect of the products and a failure to consider the opinion of what they did in relation to the appellant’s skin condition – where the appellant submits the primary Judge incorrectly found that the appellant became aware of a material fact that was within his means of knowledge on 5 April 2019, that date preceding the relevant date for extension, namely 3 August 2020, by more than 12 months – where the appellant further submits the primary Judge erred in finding there was no special reason for declaratory intervention – where the respondent submits that there is no basis for interfering with what was a discretionary judgment and also that there was no basis to adduce further evidence

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – EVIDENCE NOT AVAILABLE AT HEARING – WHEN ADMISSIBLE – where the appellant seeks leave to adduce further evidence, being documents he says he was not aware were in his solicitor’s possession until after judgment – whether the additional material sought to be adduced as evidence on appeal detracts from such conclusions falling within a proper exercise of discretion

COUNSEL:

The appellant appeared on his own behalf with C M van der Berg assisting
R J Douglas QC, with S J Deaves, for the respondents

SOLICITORS:

The appellant appeared on his own behalf with C M van der Berg assisting
Hall and Wilcox Lawyers…

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AGLC
van der Berg v Key Solutions Group [2021] QCA 157
Case
[2021] QCA 157
Decision Date

CaseChat Overview and Summary

The appeal in van der Berg v Key Solutions Group was brought by the appellant against the decision of the primary Judge which dismissed the appellant’s application for orders pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) and for declaratory relief under the Workers’ Compensation and Rehabilitation Act 2003 (Qld). The appellant argued that the first respondent had not made full disclosure of all relevant material safety data sheets and had wrongfully asserted that he was not exposed to chemicals that caused his injury. He also submitted that he was prejudiced by his dyslexia and the absence of legal assistance. The first respondent argued that there was no basis for interfering with what was a discretionary judgment and that there was no basis to adduce further evidence.

The legal issues before the court were whether the primary Judge erred in finding that the employer had made a full disclosure of all relevant material safety data sheets, whether the positive assertion by the employer induced a misunderstanding as to the product list leading to the primary Judge considering irrelevant information, and whether the primary Judge correctly found that the appellant became aware of a material fact that was within his means of knowledge on 5 April 2019, that date preceding the relevant date for extension, namely 3 August 2020, by more than 12 months. The court also considered whether the primary Judge erred in finding there was no special reason for declaratory intervention.

The court found that the evidence before the primary Judge supported the factual findings that the relevant material safety data sheets had been disclosed by the first respondent to the appellant at an early stage in 2013 and that Dr Noakes had consistently opined that the appellant had suffered from irritant contact dermatitis, caused in the course of his employment. The court concluded that it was open to the primary Judge, in the exercise of his discretion, to find that any assertion by the first respondent that the chemicals at its workshop could not have contributed to the appellant’s condition, did not constitute special reasons for the granting of declaratory relief. The court also found that the appellant’s dyslexia, lack of legal assistance and the circumstances in which the appellant’s application for compensation had been determined, did not give rise to special reasons warranting a grant of declaratory relief. The primary Judge did not err in his legal interpretation of s 31 of the Limitation of Actions Act nor in his conclusion that there was no proper basis for success in an application for an extension of the limitation period.

The appeal was dismissed and leave to adduce evidence on appeal was refused. The parties were ordered to provide written submissions as to costs, limited to three pages, within fourteen days.

Orders

Orders of the court

1. Leave to adduce evidence on appeal is refused.

2. The appeal is dismissed.

3. The parties provide written submissions as to costs, limited to three pages, within fourteen (14) days.

Background

Background to the litigation

The appellant also seeks leave to adduce further evidence, being documents he says he was not aware were in his solicitor’s possession until after judgment.[1][1]Transcript 1-6/25 – 1-7/10.Background The appellant was born on 20 February 1968. He is a boilermaker by occupation. On 25 June 2012, the appellant commenced employment as a boilermaker with the first respondent. That employment required him to use certain chemicals. The appellant alleges he consulted a general practitioner in relation to a rash he developed within two days of the commencement of his employment. He had consulted a different general practitioner on 4 April 2012 in respect of a rash to the palm of his left hand. On 27 August 2012, the appellant was referred by his general practitioner to a dermatologist, Dr Noakes. The appellant consulted Dr Noakes on 6 December 2012. By that stage, the rash had spread to his other hand. As part of the consultation, the appellant provided Dr Noakes with a list of chemicals said to have been used in his employment. That list had been obtained, at his request, from a representative of the first respondent. On 27 June 2013, the appellant ceased active work with the first respondent. He subsequently attended upon Dr Noakes for treatment before making application under the WCRA for compensation. That application was accepted by the second respondent on 19 August 2013. However, a review sought by the first respondent resulted in that acceptance being set aside on 3 October 2013. After having received a number of reports from Dr Noakes, to the effect that the appellant was suffering from irritant contact dermatitis, relating to mechanical and environmental factors, the second respondent rejected the appellant’s application for compensation on 5 November 2013. An application by the appellant, for a review of that decision, was rejected by the Regulator in March 2014. On 15 April 2014, the first respondent terminated the appellant’s employment, having given the appellant a show cause letter in respect of termination of employment dated 25 March 2014. The appellant did not lodge an appeal to the Queensland Industrial Relations Commission in relation to the rejection of his compensation application within the specified time period. However, on 25 January 2015, the appellant applied for an extension time within which to lodge such an appeal. That application was refused on 2 September 2015. On 18 January 2019, the appellant sought information from the first respondent in relation to the use of chemicals in the course of his employment. The first respondent responded to that request by production of a list on 5 April 2019. Subsequent to the provision of that list, the appellant obtained a report from Dr Adib, dermatologist, who opined that the likely cause of the irritant contact with dermatitis injury was the recurrent exposure over his employment period to irritating chemicals.Application On 3 August 2020, the appellant was granted leave, pursuant to s 298 of the WCRA, to commence proceedings against the first respondent for damages for personal injuries allegedly suffered over the period of his employment, despite non-compliance with s 275 of that Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The appellant contended that he was entitled to relief as the first respondent had unlawfully not disclosed information as to the chemicals used in his employment and had wrongfully positively asserted that he was not exposed to chemicals which may cause his injury; and, further, that he was prejudiced in his application by dyslexia and the absence of legal assistance.Primary decision The primary Judge found that the appellant had deposed to receiving a copy of the material safety data sheets used at the workshop in 2013, which he sent to Dr Noakes without reading himself. That being so, the relevant material safety data sheets had been disclosed by the first respondent to the appellant at an early stage in 2013. The primary Judge further found that Dr Noakes had consistently opined that the appellant had suffered from irritant contact dermatitis, caused in the course of his employment. Accordingly, an assertion by the first respondent that the chemicals at its workshop could not have contributed to the appellant’s condition, did not support a conclusion there were special reasons to avail the appellant of declaratory relief rather than pursue his statutory remedies under the WCRA. Similarly, the appellant’s dyslexia, in circumstances where the appellant had an ability to draft detailed and cogent submissions with the assistance of his wife, did not give rise to special reasons nor did the inability to obtain a lawyer willing to act on a no win no fee basis. As there was no special reason for intervention, and the WCRA provided a detailed path to determine the rights of injured workers, which path had been followed by the appellant who did not appeal the decision of the Queensland Industrial Relations Commission, refusing an extension of time, it was inappropriate to make the declarations. Finally, the primary Judge found that, even if it be accepted that the material safety data sheets for the chemical store at the workshop were not made available to the appellant until 5 April 2019, that date preceded 3 August 2020 by more than 12 months. Accordingly, there was no proper basis for success in an application for an extension of the three-year time limitation period.Appellant’s submissions The appellant submits the primary Judge erred in finding that the employer had made a full disclosure of all relevant material safety data sheets. The material safety data sheets for half the chemicals failed to comply with the Regulations as they did not contain Australian addresses and business numbers. Further, the employer failed to respond to requests for additional information, and thereby withheld information which would have assisted in the plaintiff’s treatment. The appellant submits the employer wrongfully positively asserted that he was not exposed to chemicals that caused his injury. This positive assertion induced a misunderstanding as to the product list leading to the primary Judge considering irrelevant information in respect of the products and a failure to consider the opinion of what they did in relation to the appellant’s skin condition. The appellant was also prejudiced by the combination of his dyslexia and the conduct of WorkCover in the hearing and determination of his application. Procedural fairness was not awarded to him and no regard was had for the impact of his dyslexia.

Ratio Decidendi

Legal Principle Established

Finally, the respondent submits that the primary Judge correctly found there were no special circumstances warranting declaratory relief and that there was no material fact of a decisive character not within the appellant’s means of knowledge, warranting an extension of time under the Limitation of Actions Act.Consideration Whilst the appellant contends the primary Judge erred in fact in dismissing each application, the evidence before the primary Judge amply supported the factual findings that the relevant material safety data sheets had been disclosed by the first respondent to the appellant at an early stage in 2013 and that Dr Noakes had consistently opined that the appellant had suffered from irritant contact dermatitis, caused in the course of his employment. Nothing in the further material sought to be adduced by way of additional evidence undermines those factual findings. The appellant’s contention on appeal that the relevant material safety data sheets were noncompliant, as they did not contain relevant details in accordance with the Regulations, does not alter the significance of those findings. Apart from the fact that that contention was not advanced before the primary Judge, the alleged noncompliance was immaterial. Those facts having been properly found, it was open to the primary Judge, in the exercise of his discretion, to conclude that any assertion by the first respondent that the chemicals at its workshop could not have contributed to the appellant’s condition, did not constitute special reasons for the granting of declaratory relief. Dr Noakes continued to opine that the appellant’s irritant contact dermatitis was caused in the course of his employment, notwithstanding the first respondent’s assertion to the contrary. It was also open to the primary Judge to find, in the exercise of that discretion, that the appellant’s dyslexia, lack of legal assistance and the circumstances in which the appellant’s application for compensation had been determined, did not give rise to special reasons warranting a grant of declaratory relief. Notwithstanding the appellant’s dyslexia and lack of legal assistance, the applicant had, through the assistance of his wife, drafted cogent submissions. Again, nothing in the additional material sought to be adduced as evidence on appeal detracts from such conclusions falling within a proper exercise of discretion. Similarly, the fact that the appellant did not lodge an appeal to the Queensland Industrial Relations Commission regarding the rejection of his compensation application within time, and had been refused an extension of time within which to lodge such an application, was properly a factor taken into account by the primary Judge in the exercise of his discretion as supporting a conclusion that it was inappropriate to grant the declaratory relief sought by the appellant. Finally, the primary Judge did not err in his legal interpretation of s 31 of the Limitation of Actions Act nor in his conclusion that there was no proper basis for success in an application for an extension of the limitation period.