Vivian v Gameover Pty Ltd

Case [2024] QSC 263

SUPREME COURT OF QUEENSLAND

CITATION:

Vivian v Gameover Pty Ltd [2024] QSC 263

PARTIES:

BENJAMIN ALLAN IVAN VIVIAN

(applicant)

v
GAMEOVER PTY LTD
(ACN 159 630 403)

(respondent)

FILE NO/S:

BS No 12064 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2024

JUDGE:

Williams J

ORDER:

1.   The application is dismissed.

2.   I will hear further from the parties 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 A DECISIVE CHARACTER – GENERALLY – where the applicant was employed as a track supervisor for the respondent – where the applicant alleged that they suffered a significant back injury while carrying batteries at work – where the applicant had received WorkCover benefits - where the applicant was diagnosed with a secondary psychological injury - where the applicant served a notice of claim for damages on the respondent - where the applicant applied for an extension of the limitation period on the basis that there was a material fact of a decisive character which was not within the applicant’s means of knowledge until after the limitation period had expired - where that applicant argued that the material fact was that there was combined physical and psychological injuries that precluded the applicant from working - whether that material fact of a decisive character was within the applicant’s means of knowledge after the limitation period

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – EVIDENCE TO ESTABLISH RIGHT OF ACTION – where the applicant was employed as a Track Supervisor for the respondent – where the applicant alleged that they suffered a significant back injury while carrying batteries at work – where the applicant had received WorkCover benefits - where the applicant was diagnosed with a secondary psychological injury - where the applicant served a notice of claim for damages on the respondent - where the applicant applied for an extension of the limitation period on the basis that there is evidence to establish the right of action - apart from a defence founded on limitation - where the applicant relies on the particulars in the notice of claim - whether that was sufficient evidence to establish a right of action

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

Worker’s Compensation and Rehabilitation Act 2003 (Qld), s 275, s 302

Arnold v Baco Foods Pty Ltd [1987] VR 401, cited
Barnes v Smith [2011] QSC 259, considered
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied
Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, cited
Castillon v P&O Ports Ltd (No 2) [2008] 2 Qd R 219; [2007] QCA 364, cited
Cuthill v State Electricity Commission of Victoria [1981] VR 961, cited
Dick v…

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Vivian v Gameover Pty Ltd [2024] QSC 263
Case
[2024] QSC 263
Decision Date

CaseChat Overview and Summary

Vivian v Gameover Pty Ltd involved a dispute where the applicant, Benjamin Vivian, sought an extension of the limitation period for bringing a claim against the respondent, Gameover Pty Ltd, for damages arising from a workplace injury. The applicant, employed as a track supervisor, alleged that he suffered a significant back injury while carrying heavy batteries at work, which subsequently led to a secondary psychological injury. The applicant had already received WorkCover benefits and had been diagnosed with a secondary psychological injury. He served a notice of claim for damages on the respondent and applied for an extension of the limitation period, arguing that a material fact of a decisive character, namely the combined physical and psychological injuries that precluded him from working, was not within his means of knowledge until after the limitation period had expired.

The legal issues before the court were whether the material fact of a decisive character was within the applicant’s means of knowledge after the limitation period and whether the evidence provided in the notice of claim was sufficient to establish a right of action apart from a defence founded on limitation. The court examined the relevant statutory provisions concerning the extension of limitation periods in personal injury matters and the criteria for establishing a right of action.

The court found that the material fact of a decisive character, the combined physical and psychological injuries that precluded the applicant from working, was not within his means of knowledge until after the limitation period had expired. The applicant's evidence in the notice of claim was considered insufficient to establish a right of action as it did not provide the necessary details to demonstrate that the repetitive movement of a heavy weight in the manner adopted involved forces liable to injure the spine of a person of normal fortitude. The court dismissed the application for an extension of the limitation period.

The court's final order was to dismiss the application, and further directions were given for the parties to provide submissions on costs.

Orders

Orders of the court

1. The application is dismissed.

2. I will hear further from the parties as to costs.

Background

Background to the litigation

Before considering these issues, it is appropriate to consider some of the background facts.Factual background The relevant background facts include:(a)In 2005 the Applicant suffered a back injury when he slipped and fell at work as a kitchenhand.(b)On 21 January 2018, the Applicant allegedly suffered an injury at work when he was employed by the Respondent. The Applicant alleges that in the course of refitting a go-kart with new batteries weighing approximately 20 kgs each and carrying the new batteries and “dead” batteries a distance of approximately 20 metres from the go-kart to a storage shed he suffered a lumbar spine injury (2018 Incident).(c)On 27 February 2018, the Applicant lodged an application for compensation for injuries, being “lower back, disc displacement, prolapse, hernia”, in relation to the 2018 Incident.(d)The Applicant’s claim was accepted and WorkCover benefits commenced.(e)On 22 February 2019, the Applicant advised WorkCover that he was on a mental health plan and was seeing a psychologist.(f)Following the physical injury allegedly suffered in the 2018 Incident, the Applicant was diagnosed with a “secondary psychological injury” on 30 March 2019.[2][2]The Applicant was diagnosed by his general practitioner, Dr Greg Hunter.(g)On 1 March 2019, WorkCover commenced paying for the Applicant’s psychological treatment, in addition to the previously approved benefits.(h)Between 31 March and 9 May 2021, the Applicant was seen by various doctors who provided opinions on the extent of the Applicant’s injuries.[3][3]The medical opinions are further considered later in these reasons.(i)On 13 May 2021, WorkCover informed the Applicant:(i)That the physical and psychological injury related to the 2018 Incident had ceased.(ii)No further medical treatment or wages would be funded after 14 May 2021 on the basis that the work injury would not improve with further treatment and did not continue to incapacitate him.(j)On 14 May 2021, Dr Greg Hunter, the Applicant’s general practitioner, advised WorkCover that he disagreed with the psychiatric opinion provided on 9 May 2021[4] and that the psychological injury had not ceased.[4]By Dr Amitava Sarkar.(k)On 23 July 2021, a Review Decision was provided by the Workers’ Compensation Regulator. The Review Decision relevantly included:(i)Confirmation of the decision of WorkCover to terminate entitlement to compensation from 31 March 2021.(ii)Reliance upon the opinion of Dr Gregory Day, orthopaedic surgeon, that the Applicant’s back injury had ceased and was stable and stationary.(iii)As a consequence of that opinion, the Applicant’s incapacity due to the accepted work-related injury (arising out of the 2018 Incident) had ceased.(iv)The treatment for the psychological injury would continue, together with funding of the Spendlove Pain Management Program.(l)On 12 November 2021, the medical assessment Tribunal Psychiatrist found that the Applicant had developed features of a Major Depressive Disorder, which was not stable and stationary.(m)On 10 March 2022,[5] the Applicant made an application for total and permanent disability benefits to Sunsuper (Sunsuper TPD Application).[6][5]The application was originally signed on 10 March 2022 but the declaration and authority was signed on 30 March 2022. The date of 10 March 2022 has been used as the date of the Sunsuper TPD Application.[6]The Sunsuper TPD Application is considered in more detail under the next heading. (n)On 10 March 2022, the Applicant made an application for total and permanent disability benefits to QSuper (QSuper TPD Application).[7][7]The QSuper TPD Application is considered in more detail under the next heading.(o)On 23 September 2022, Dr Khaldoon Alsaee (treating psychiatrist) provided a report to WorkCover in which the Applicant was diagnosed with a major depressive episode. Dr Alsaee’s opinion was that in his current state the Applicant had very little capacity for any type of employment.(p)On 30 September 2022, the Applicant was assessed by Ian Johnson (psychologist) including as follows:(i)The Applicant’s functioning was decreasing due to the “accumulative” effect of the physical and psychological injury.(ii)It was unreasonable to expect the Applicant to be considering any form of work at that stage due to the nature of his injury and the associated pain.(q)On 8 December 2022, Dr Don Todman, neurologist, provided a report:(i)Confirming that the Applicant had made a full recovery from his 2005 back injury.(ii)In relation to the 2018 Incident, the Applicant had suffered an 8% whole impairment rating.(iii)Physical pain and psychological distress were impacting the Applicant’s daily life and there was no prospect of return to any employment, unless there was some breakthrough treatment.(r)On 25 January 2023, Dr Malcolm Foxcroft, psychiatrist, provided an opinion that the Applicant was totally incapacitated for all forms of employment due to his combined injuries.

Evidence

Evidence Before The Court

The Respondent relies on the statement of Macrossan CJ in Wood v Glaxo Australia Pty Ltd[98] as to what is required to satisfy s 31(2)(b) of the LA Act, namely:“The evidence need not at the stage at which the application is brought be in a form which would be admissible at trial and may indeed be hearsay. It will not be possible to predict whether the plaintiff’s evidence will prevail at trial when it will be subjected to challenge and forced to confront the opposing evidence of the defendant, but it is probably accurate enough to say that an applicant will meet the requirement imposed by s 31(2)(b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case.” (emphasis added)[98][1994] 2 Qd R 431. The Respondent points to the Applicant’s evidence as set out in his affidavit[99] as the only evidence regarding the 2018 Incident. The Respondent contends that this is not sufficient to establish an action on the right of action, particularly in light of the observations of McMeekin J in Barnes v Smith at [43].[100][99]At [2] of the affidavit Benjamin Vivian sworn 19 September 2023.[100][2011] QSC 259. Barnes v Smith concerned an employee of a hardware store who allegedly had to lift 20 drums of paint weighing “at least 23 kgs each” from the floor onto a stool, add tint to the drum, stir it and the place the drum back with the other drums “behind her”. McMeekin J noted in the reasons that the applicant’s “affidavit does not expressly state that the work either required that she twist her back while lifting nor that she did so” but his Honour assumed that was intended.[101][101]At [5]. Further, in that case the respondent put in evidence that the height of the stool was 55cms and the drums weighed between 20.47 kgs and 24.82 kgs. Further, the respondent indicated that the records showed sales of 29 drums of 15 litre capacity, rather than 20 litres capacity as alleged. The records, however, did not show how many drums required tinting. In dealing with the issue of whether the applicant had established the right of action McMeekin J referred to Wood v Glaxo Australia Pty Ltd and stated as follows:“[41]The respondent has put in evidence a form bearing [the applicant’s] signature which contradicts [the applicant’s] claim not to have been told about the danger of twisting when lifting. Accepting that the respondent’s evidence is relevant to the issue … having an employee sign a document hardly discharges the employer’s duty to provide a reasonably safe system of work and to properly train and supervise.[42]Nor is it to the point to assert that the respondent claims that [the applicant] was rushing and hence adopting an inappropriate system of work. Those are matters for the trial, if there is to be one.[43]More troubling is that the applicant has not advanced any evidence that the repetitive movement of a 20-24 kg weight in the manner that she adopted on the day in question involved forces that were liable to injure the spine of a person of normal fortitude. It is not to the point that in numerous cases over the years plaintiffs have succeeded to awards of damages where the weights involved have been no greater – each case is required to be proved on its own set of facts.[44]The respondent has put in evidence a document entitled ‘Manual Handling Management – Injury Prevention’ which is said to be an information paper which provides ‘minimum guidelines on manual handling within the workplace to ensure your safety’. This was the document that the respondent provided to the applicant as part of her induction. It speaks of risk identification including asking ‘Do I have to twist?’ and ‘Do I do a lot of repetitive actions …?’. It points out that the risk of injury increases with frequency of activity and the force required to handle a load.[45]That is the full extent of the evidence touching on the issue. The generalisations set out in the first respondent’s document do not advance matters very far. Presumably evidence can be obtained that would support those generalisations. But the crucial issue is: did the work complained of expose the plaintiff to an unnecessary risk of injury that could have been avoided? Does a plaintiff succeed in a case against the employer by proving that they have been required to lift and move weights from the floor to a height of 55 cms and then place those weights behind them when the weights in question were between 20 and 24 kgs, combined with the knowledge that is set out in the employer’s document? I do not think so.[46]I appreciate that the test here is undemanding and that the standards imposed on an employer at common law to prevent or minimise risk of injury are high. Despite that I am not satisfied that the applicant has established that she has an action on the right of action.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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