Zimmerle v WorkCover Queensland

Case [2022] QDC 143

DISTRICT COURT OF QUEENSLAND

CITATION:

Zimmerle v WorkCover Queensland & Another [2022] QDC 143

PARTIES:

SHANE BARRY ZIMMERLE

Plaintiff

v

WORKCOVER QUEENSLAND

First Defendant

And

SHOPFITTING HEADQUARTERS PTY LTD (ACN 156 641 404)

Second Defendant

FILE NO:

D11/20

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Southport District Court

DELIVERED ON:

24 June 2022

DELIVERED AT:

Southport

HEARING DATE:

19 May 2021

JUDGE:

Dann DCJ

ORDER:

The plaintiff’s application is dismissed

CATCHWORDS:

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – OTHER CASES AND MATTERS – where the plaintiff brought an action for personal injury against the defendants – where the plaintiff visited a medical practitioner multiple times both during and after his employment regarding the injury – where the plaintiff was made redundant in April 2016 and continued to see medical professionals after that time – whether the cause of action arose before or after the redundancy or at a later point after the plaintiff received information from certain specialist medical practitioners

LIMITATION OF ACTIONS – EXTENSION OR POSTPOEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURY MATTERS – KNOWELDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – where the plaintiff received advice from a medical specialist some years after being made redundant that his earlier employers had not contributed to the injury – where the defendants contends that report did not alter the critical mass of information in the plaintiff’s possession – whether that report is knowledge of a material fact of a decisive character extending the limitation period

Limitation of Actions Act 1974 (Qld) s 11, 30, 31

Workers Compensation and Rehabilitation Act 2003 (Qld) s 36A, 300, 302

Ballingall v WorkCover Queensland and Ors [2017] QSC 133

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

Dick v University of Queensland & BP Australia Ltd [1999] QCA 474

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

Ervin v Brisbane North Regional Health Authority [1994] QCA 424

HWC v The Corporation of the Synod of the Diocese of Brisbane and Ors [2009] QCA 168

JNJ Resources Pty Ltd v Crouch & Lyndon (a Firm) [2015] 2 Qd R 115

Martindale v Burrows [1997] 1 Qd R 243

Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325

NF v State of Queensland [2005] QCA 110

Quinn v State of Queensland (No 2) [2016] QDC 156

Taggart v The Workers Compensation Board of Queensland [1983] 2 Qd R 19
COUNSEL:

C. Newton, counsel for the applicant/plaintiff

B.F Charrington, counsel for the respondent/defendants
SOLICITORS:

Maurice Blackburn for the applicant/plaintiff
Cooper Grace Ward for the respondent/defendants

Introduction

  1. This is the plaintiff’s application to determine:

    (a)When his cause of action arose;

    (b)Depending on the answer to that question, whether there should be any extension of an applicable limitation period.

Background

  1. The plaintiff is, by occupation, a spray painter.

  2. As a child he had asthma.[1] It resurfaced in about 2007 and in July 2008 he had some days in hospital for treatment related to an infective…

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Details
AGLC
Zimmerle v WorkCover Queensland [2022] QDC 143
Case
[2022] QDC 143
Decision Date

CaseChat Overview and Summary

In the case of Zimmerle v WorkCover Queensland, the plaintiff brought an action against the defendants for personal injury, alleging that his asthma was exacerbated by exposure to dust and fumes in the workplace. The plaintiff had visited medical practitioners multiple times during and after his employment regarding his condition. He was made redundant in April 2016 and continued to see medical professionals after that time. The central legal issue was determining when the plaintiff's cause of action arose—whether it was before or after his redundancy, or at a later point after he received information from certain specialist medical practitioners.

The court was required to decide whether the plaintiff's cause of action accrued before his redundancy, which would mean that the limitation period had expired, or whether the plaintiff received a material fact of decisive character after his redundancy that extended the limitation period. The defendants argued that the report the plaintiff received did not alter the critical mass of information in the plaintiff’s possession. The court had to examine whether this report constituted knowledge of a material fact of a decisive character that extended the limitation period.

The court determined that the plaintiff had not shown that there was a material fact of a decisive character not within his means of knowledge until after a particular date, nor had he shown a prima facie case. As such, the discretion to extend the limitation period was not enlivened. The court found that the prejudice to the defendants would be significant if the limitation period were extended. Therefore, the plaintiff's application was dismissed.

Orders

Orders of the court

The plaintiff’s application is dismissed

Background

Background to the litigation

Where the Court determines the plaintiff has shown that there was a material fact of a decisive character not within his means of knowledge until after a particular date, and a prima facie case, the discretion is enlivened. Normally that discretion would be exercised in favour of the plaintiff unless there is prejudice to the respondent. The applicant carries the onus throughout the application.[37] The prejudice should be ‘significant prejudice” or “actual prejudice of a significant kind.” The respondent to the application has the onus to raise relevant issues of prejudice whilst the applicant bears the persuasive onus.[38] [37]Ballingall v WorkCover Queensland and Ors [2017] QSC 133 at [4] per McMeekin J [38]Ballingall v WorkCover Queensland and Ors [2017] QSC 133 at [55] – [56] per McMeekin JThe detailed factual background In addition to asthma from childhood, the plaintiff had a history as a heavy smoker.[39][39]See eg Walsh affidavit JFW6 p 46 The plaintiff had a chest infection in 2007 which developed into pneumonia at the time.[40] His oral evidence was that he believed he began to suffer asthma symptoms again around the same time he started employment at the Headland companies.[41] [40]Transcript 1-14 ll 5 – 6; Zimmerle affidavit [2] [41]Transcript 1-13 ll 45 – 46 Although some improvements were made to the spray booth within the 23 months of starting,[42] he gave evidence that he was unhappy with the spray booth conditions at Headland Shopfitting.[43] Because his complaints had been ignored, he wrote a list of complaints on the booth itself and he was unhappy that he was not supplied with a working mask.[44] He had his own mask which deteriorated over time and he needed a replacement which they didn’t give him.[45] He could not recall how long after he started at Headland that his mask deteriorated or when he wrote the complaints on the side of the booth, but his guess was that the mask deteriorated after he wrote the complaints on the booth.[46] A photograph of that note contained in the affidavit of the respondent’s solicitors provides as follows:[47] “Advised HR WHS – [illegible]Of code of practice breach again19/08/[illegible]Paint Shop[42]Transcript 1-15 ll 6 -13 [43]Transcript 1-14 ll 8 - 10[44]Transcript 1-14 ll 12 - 20[45]Transcript 1-14 ll 22 – 25 [46]Transcript 1-14 ll 27 - 33[47]Affidavit of Damien Paul Jarrett sworn 13 May 2021 (Jarrett affidavit) DPJ1 p 58 Safety issues to be addressedAs required by lawLight boxes in Booth (illegal) Inadequate suction in Booth“ “ ventilation in shed“ “ 3/12/[illegible] Poor lighting SheWill be Right mate” The copy of the note is in black and white and it appears, from the differing thickness of some of the writing, to have had certain sections written in different pens, and/or at different times. The plaintiff was not cross examined about the contents of the note. It appears from the contents of the handwritten note on the next page of the exhibits that the note on the booth (or some of it) may have been written on 3 December 2012 because what I can read of the latter note says, in part, “PLEASE NOTE On 3/12/12 I wrote a list of … safety issues and … proceeded to …” which I infer is a reference back to the earlier note on the booth.[48] [48]Jarrett affidavit DPJ1 p 59

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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