May 28, 2014

A graduate mine engineer has defeated a questionable limitation strategy adopted by the world’s biggest miner to deny him compensation rights arising from a serious back injury sustained in an underground mine in central Queensland.
Bart Morris was troubleshooting a boom pivot in the confined space of a “continuous miner machine” – a self-drive vehicle with a large rotating steel drum equipped with tungsten carbide teeth to scrape coal from the seam as it passes underneath – when he twisted his spine.

That was on 11 March 2011.

When being treated for the pain the medical advice was “conflicting but overall was encouraging”. No one suggested that he needed to see a specialist. By the time he eventually decided it might be a good idea to get legal advice (October 2012); give the go ahead on a claim (February 2013) and get in to see a busy medical specialist for a medico-legal report, it was already July 2013.

That was when orthopedic surgeon Greg Gillett reported an L5/S1 disc protrusion and the overall 6% impairment would most likely be attributed equally between the incident and another in April 2012, on which there was less information available.

Armed with Gillett’s report, Morris finally had the evidence needed to bring a sustainable claim against BHP. But because of the second incident in April 2012, he and his solicitors were working to April 2015 as marking the 3-year deadline to file the claim in court.

The relative (in)significance of the second incident did not become clear to those advising him, until BHP finally decided to provide a copy of “the incident report” (which turned out only to have been for the March 2011 injury), three days after the expiration of the March 2014 limitation date.

How should such a position be managed?

Even though Morris had all “material facts” to hand once Orthopedist Gillett’s report was received in July 2013 – well within the 3 year limitation period – s 31 of the Limitation of Actions Act allows reliance on a fact of a decisive nature, if it comes into existence more than two years following the accident. The only proviso being that proceedings must be commenced within 12 months of the date of the “new fact” date.

One would have expected the extension application to, therefore, be relatively routine. Morris had, after all, attempted to obtain the incident report the previous November but BHP had declined his request.

BHP Coal – a subsidiary of global resources company BHP Billiton – opposed the application with vigour. The Gillett revelations were not “of a decisive nature”, it claimed. The seriousness of the injury and its causation simply must have been known to the claimant before then.

Not so, said the court. “Without the newly found facts there were effectively no damages to claim”, ruled Justice Duncan McMeekin. Before then, Morris did not know that he had a disc injury; did not know that it was permanent, and did not know whether his condition could be causally connected to the March incident.

As to delay, the judge made clear that Morris should not “be criticised for delaying until October 2012 in approaching solicitors” and being unaware that it might take many months to gain a consultation with a leading specialist such as Gillett.

These observations put paid to BHP’s argument that had Morris taken all reasonable steps, he would have discovered the material facts now relied upon, much earlier. There was nothing in his conduct which demonstrated unreasonable delay or other adverse conduct.

The court also rejected as “irrelevant”, BHP’s argument that prudent practice would have been to file the claim promptly after receipt of Dr Gillett’s opinion, because, the statute plainly allows a further12 months to do so.

“The Limitations Act clearly contemplates permitting proceedings to be bought even though all material facts are known within the limitation period”.

With a measure of desperation, BHP also contended it was prejudiced by the delay. This assertion was roundly rejected.  In refusing to provide a copy of the incident report to Morris when he had requested, BHP had itself contributed to the confusion.

BHP was ordered to pay its employee’s costs of having to make the application. Morris’s liability trial and damages assessment will come before the court for determination in the coming months, if not resolved sooner.

Morris v BHP Coal Pty Ltd [2014] QSC 096 McMeekin J published 21/05/2014


Categories: Personal Injury , Litigation & Law Practice

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