Written by Peter CarterSeptember 24, 2014
A millworker injured at a plant operated by the Mackay Sugar co-operative has sued the organisation for an injury sustained in September 1994 for which no witnesses or incident report could be located to verify the fact that the accident even occurred.
In an application to extend the customary three-year limitation period, former rigger Bruce Drew – who remained a Mackay Sugar employee in the intervening period – relied on a diagnosis of a serious right wrist injury made in 2012.
His role back then was to erect scaffolding in the course of which, while carrying two 3 m long/30 kg scaffold tubes, he lost his footing on the muddied concrete floor behind the mill centrifuges and fell onto his right wrist.
He thought nothing of it and sought no medical treatment. Nor did he take any time off work. He only became aware of the wrist condition in November 2012 when it first became symptomatic.
Orthopaedic surgeon Philip Duke opined in a report to WorkCover that the rupture was related to the 1994 incident and noted that it “is quite common for someone with such a rupture to then develop an arthritic wrist over the next decade or two as this gentleman has.”
The diagnosis of “ligament rupture and advanced collapse” that requires a total wrist fusion was – Drew contended – a “material factor of a decisive nature” entitling him to bring the claim 20 years after his accident.
Judge Stuart Durward agreed that Dr Duke’s 2013 report disclosed the requisite “material and decisive fact” that wasn’t by reasonably available steps able to be discovered sooner. He also ruled that the fall was arguably caused by the negligence of the operators of the Marian Mill by allowing the thoroughfare to become muddied and slippery.
But to gain the favourable exercise of the court’s discretion to extend the limitation period, Drew was also required to establish that a fair trial could take place if the extension of time were to be granted.
Needless to say, the mill claimed “irreparable prejudice from the passage of 20 years since the date of the incident” given also that the actual date of the accident was unknown and none of the 15 persons working in the vicinity at the time could recall any such incident.
The judge agreed, concluding that a fair trial for the defendant was impossible: “I consider that the defendant has established that there is actual prejudice and at least a real possibility, if not a certainty, of significant prejudice in respect of which the defendant is not able to address. To exercise the discretion would be patently unfair.”
The court refused the application and dismissed Drew’s claim. He can now only recover for that portion of the condition that can be proved related to occupational aggravation of the injury over the last three years.