West v Anglo Coal

CITATION:

West v Anglo Coal [2005] QSC 162

PARTIES:

GRAEME DAVID WEST

(Applicant)

v  

ANGLO COAL (CAPCOAL MANAGEMENT) PTY LTD

(Respondent)

FILE NO:

S103 of 2003

DIVISION:

Trial Division

DELIVERED ON:

15 June 2005

DELIVERED AT:

Rockhampton

HEARING DATES:

20 May 2005

JUDGE:

Dutney J

ORDERS:

1. that the period within which the applicant may bring an action for damages for an injury suffered over a period of time from April 1994 until March 2002 is extended, so far as is necessary, until 16 March 2003; and
2. that the respondent’s application to strike out the action be dismissed.

CATCHWORDS:

LIMITATION OF ACTIONS – PERSONAL INJURIES – EXTENSION OF TIME – whether limitation period should be extended

WORKERS’ COMPENSATION – CONSTRUCTION OF STATUTE – whether s 308 of WorkCover Queensland Act 1996 prohibits an extension of the limitation period under s 31 of the Limitation of Actions Act 1974 – whether limitation period can be extended after the commencement of the action

Gardiner v Car Choice Pty Ltd [2004] QCA 480, considered.

Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2004] 1 Qd R 378, considered.
Pickwick v Central Pack house Pty Ltd and Anor [2004] QDC 71 (Unreported, Britton DCJ, 25 February 2005), not followed.

Coal Mining Safety and Health Regulation 2001 (QLD), s 46

Motor Accident Insurance Act 1994 (QLD), s 57
Limitation of Actions Act 1974 (QLD), ss 11, 31
WorkCover Queensland Act 1996 (QLD), ss 252A, 262, 280, 302, 303-305, 308
Workers’ Compensation Act 1990 (QLD), s 182D

COUNSEL:

Mr D. V. C. McMeekin S.C. for the Applicant

Mr G. C. O’Driscoll for the Respondent

SOLICITORS:

Rees R & Sydney Jones for the Applicant

Swanwick Murray Roche Lawyers for the Respondent

1. Mr West, the applicant, was an underground fitter in the mining industry who has suffered an increasing disability from back pain.  He attributes this to his employment at the Central Colliery near Middlemount over 11 years from April 1994 until he was retrenched for medical reasons in April 2005.

1. On 14 March 2003, Mr West commenced proceedings against Capricorn Coal Management Pty Ltd alleging that his employer’s negligence over the period from April 1994 until March 2002 has resulted in the progressive onset of his present condition.

1. This application seeks an extension of the limitation period in relation to that period of employment prior to 14 March 2000.  To obtain such an extension Mr West must satisfy me that a material fact of a decisive character relevant to his action was not within his means of knowledge prior to 14 March 2002.  The fact on which Mr West relies is that his condition was such that he would not be able to continue to work as an underground fitter.  This information was first given to him by Dr Baker, a neurosurgeon, in the days following an operation on Mr West’s back by Dr Baker to excise a lumbo-sacral disc prolapse.  That operation was performed on 15 March 2002.

1. Mr West has had a history of…