…knowledge of material facts of a decisive character – reasonable steps taken to ascertain material fact
The plaintiff was injured when a 40-foot trailer carrying three sugar cane bins overturned, and disconnected, from the prime mover he was driving.
The truck left the road and collided with a power pole and shed. The plaintiff alleges that the loader of the cane bins had loaded them unevenly, causing the accident.
The general limitation date for the plaintiff’s action ended on 14 August 2019, three years after the date of the accident. In June 2019, the plaintiff’s solicitors served a notice of claim on the first defendant (Sugar Mill) under the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), and a notice of claim on his employer at the time under the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
In the PIPA notice, the plaintiff made allegations identifying the reason he believed the first defendant caused the incident, however, there was no allegation at that time alleging the accident had been caused by the manner in which the bins were loaded. The judge also noted that there was a failure to identify any connection between the loader and the first defendant.
On 22 July 2019, the solicitors for the first defendant agreed to allow the plaintiff to start a proceeding, despite non-compliance with the requirements of PIPA. On 2 August 2019, the plaintiff’s statement of claim was filed against the first defendant, and in that pleading alleged that the first defendant employed the loader who was said to have negligently loaded the sugar cane bins, causing the accident.
On 30 September 2021, a compulsory conference was held, during which the solicitors for the first defendant informed the plaintiff of the possibility the loader may have caused the accident, and was in fact employed by Central Harvesting Co-operative Limited (Central Harvesting) – that is, not a party to the proceeding. In light of that information, the plaintiff subsequently served notices of claim under PIPA on a number of other parties, including Central Harvesting. That notice was served on 14 October 2021.
On 3 February 2022, the solicitors for Central Harvesting confirmed their staff were responsible for filling the sugar cane bins transported by the plaintiff before the incident. The plaintiff then applied to extend the limitation period of his action against the respondent, on the basis that, prior to the compulsory conference on 30 September 2021, he was not aware that the loader was employed by another party, namely Central Harvesting.
The plaintiff’s action is dismissed, and the court will hear the parties as to cost.
The court referred to the power to extend the time from bringing an action outside the relevant limitation period – that is, section 31 of the Limitation of Actions Act 1974 (Qld) (the Act), noting that the section raises three matters for consideration:
- whether the unknown fact relating to the right of action is a ‘material fact’
- whether the material fact relating to a right of action is ‘of a decisive character’
- whether the fact in question was not within the plaintiff’s means of knowledge at the relevant time.
The judge considered that the identity of the respondent, as the employer of the loader whose negligence is alleged to have caused the incident, and against whom a right of action might lie, was a material fact relating to a right of action and was of a decisive character.
The judge also held that a reasonable person – knowing the identity of Central Harvesting as the employer of the loader alleged to have negligently loaded the bins, and other facts relevant to the incident – would, on seeking advice, have regarded those facts as demonstrating that a claim against Central Harvesting could succeed, and that an action could be commenced.
However, the real issue for determination is whether the loader’s employment by the respondent was not within the plaintiff’s knowledge until after the date specified in the Act. The plaintiff must show that, until the relevant date, he did not know the respondent was the employer of the loader, and that he had taken all reasonable steps to identify the respondent prior to the relevant date. Reasonable steps are to be judged on an objective basis with regard to the background situation of the applicant.
The plaintiff had filed an affidavit, as had his solicitors. The judge noted that there was no evidence from the plaintiff about what steps he had taken to ascertain the identity of the loader’s employer.
The plaintiff had submitted that he had acted reasonably prior to the expiration of the limitation date, because he assumed that the first defendant had employed the loader. Further, that when Sugar Mill received the PIPA notice and responded accordingly, that the first defendant was aware the plaintiff had wrongly assumed the loader was employed by the first defendant.
This assumption was carried through when he filed the claim and statement of claim. The judge did not accept it was reasonable for the plaintiff to have solely relied on absence of notice from the first defendant under PIPA, and then to have proceeded upon the assumption that the first defendant employed the loader.
The plaintiff’s solicitors’ evidence was that the plaintiff was informed, on 18 June 2018, that his solicitor needed to know the name and address of the loader’s employer. The judge did not accept the plaintiff’s submission that the need to discover the identity of the employer did not arise prior to the expiry of the limitation period.
There was no evidence the plaintiff took any steps, or instructed his solicitors to take any steps, to confirm the correctness or otherwise of the understanding that the loader was employed by Sugar Mill. It would have been a simple case of making inquiries of Sugar Mill as to whether or not it employed the people who loaded cane bins – at the siding where the bins were attached to the plaintiff’s truck – on the day of the accident.
If this had been asked, it is likely that the plaintiff’s misapprehension would have come to light, and further inquiries concerning the identity of the employer might have been made. Inquiries might also have been made of the plaintiff’s employer or his co-workers.
The judge did not consider it unreasonable to expect a person in the plaintiff’s position would make inquiries of the type discussed, or even have his solicitors make such inquiries where he did not know the identity of the loader’s employer.
This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Tim McClymont, is a Partner. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.