Buckton v BHP Coal P/L[2001] QCA 35

SUPREME COURT OF QUEENSLAND

1. PINCUS JA:   As Davies JA and Byrne J point out in their reasons, which I have had the advantage of reading, the respondent's case is that he hurt his neck in 1983 while moving sieve bends and subsequently the same sort of thing happened on other occasions.  The statement of claim alleges that these incidents – i.e. those relating to moving the sieve bends – caused him damage for which the appellant is liable.  In short, the respondent's case depends on injury from moving sieve bends.

2. There are passages in the evidence supporting the primary judge's conclusion, as the joint reasons of Davies JA and Byrne J demonstrate. But the proper fate of the appeal is a question I have found difficult.

3. The respondent's solicitors commissioned a report from a consultant, made in October 1999, which says that "incidents involving the sieve bend occurred in May 1983, 13^th September, 1991, 17^th November, 1991 and 3^rd March, 1993".  This contrasts with the respondent's affidavit made on 21 January 2000, which seems to complain of numerous incidents involving moving a sieve bend.  It incorporates a statement the respondent made in 1993 which attributes all the respondent's back injuries to moving sieve bends.

4. It seems clear, however, that there were other causes of the respondent's difficulties. It appears that the respondent told a doctor in May 1999 that the respondent's medical problem has been "aggravated by a number of his duties and practices at work". The recommendations the doctor made related, not to moving sieve bends, but to console operation and to operation of mobile equipment (123). The reference to "mobile equipment" appears to have been to operation of bulldozers in 1999 (117, 120). In May 1999 the respondent was assessed by an occupational therapist who said that the respondent's condition was:

"Aggravated by prolonged sitting;  any operating, due to vibration and jarring of machinery;  and heavy manual handling work e.g. sweeping, mopping, shovelling, lifting/carrying, pushing/pulling".

5. When the respondent saw an orthopaedic surgeon engaged by his solicitors in June 1999, he said in effect (according to the doctor) that ever since being injured in 1983 in relation to a sieve bin he had had "ongoing problems". The only specific injuries post-1983 which the doctor then recorded were that the respondent banged his head on a cross-bar in 1996 and jarred his neck when driving a bull-dozer in 1999; the former incident is also mentioned in par 59 of the respondent's affidavit.

6. It should also be noted that in the respondent's statement made in July 1999 (151) he mentions the 1983 injury and subsequent, apparently intermittent, pain from what he "considered at the time to be minor incidents". The only specific incident, post-1983, which was then said to have caused pain was one involving a bulldozer in March 1999. In that statement the respondent also mentioned that he continued to ride horses until Christmas 1998.

7. It is evident that incidents unrelated to sieve bends, occurring in 1999, had a substantial effect on the respondent's condition. The occupational therapist's report of May 1999, previously referred to, includes reference to considerable difficulty with driving, particularly on bumpy surfaces and:

"... severe symptoms with operating machinery even for very short periods.  Not able to operate for past 6 months".

This, again, seems to be a reference to bulldozer driving.  It is consistent with the respondent's statement of 29 July 1999 to the effect that his pain "only became debilitating in recent months" (152).

8. The learned primary judge might well, on the basis of these documents, have taken the view that there was a substantial deterioration in the respondent's condition, in the months prior to May 1999, for reasons unrelated to moving sieve bends, and that it was this deterioration which led to the review of the respondent's "whole position" in 1999, referred to in par 75 of his affidavit, and prompted the bringing of his action in May 1999.

9. But his Honour took a rather different view:

"... the injuries that finally brought home to [the respondent] the seriousness of the injury he had much earlier sustained ... involved a jarring of his neck when he was driving a bulldozer.

...

I am satisfied that it was only when he received advice following examination by a specialist in March 1999 that he became aware that the effect of the injury he sustained in 1983 was to reduce his capacity to continue to earn the high level of income available in a coal mine".  (emphasis added)

The question, to my mind, is whether the advantage which the primary judge is taken to have had by seeing and hearing witnesses is such as to outweigh the impression which much of the written material before the judge creates.  The respondent might be thought unfortunate not to have obtained a finding that what led to the suit was a change in the level of disability, in 1999, caused by activities unrelated to the sieve bends, rather than advice he received in 1999 about the effect of his 1983 injury.

10. Another troubling feature is that for a trial judge to reach a state of satisfaction, after so many years, as to the results of activities relating to sieve bends beginning in 1983, when there are plainly other causes of the respondent's spinal difficulties, will be difficult indeed. It must be an unusual case in which it is fair to a defendant to permit a suit for personal injuries as long as 16 years after an alleged tort, particularly when the injuries complained of are to the back and neck, an area in which it is especially difficult for experts to ascribe causes.

11. Despite these reservations, I have concluded in the end that the appeal must fail. The law requires an appellate court to exercise considerable restraint when considering challenges to factual findings based in part on oral evidence. Respect for that principle has led me to the conclusion that the appeal must be dismissed with costs.

12. DAVIES JA and BYRNE J:  This is an appeal by a defendant in an action from an order of a Supreme Court judge extending the period of limitation for the action so that it expired on 12 May 1999.  The statement of claim in the action alleges that the plaintiff commenced employment with the defendant on 24 April 1978 and commenced working in the capacity of a wash plant operator at the defendant's mines at Goonyella from April 1979 and at Riverside from 1994.  It alleges that on 10 May 1983 whilst moving sieve bends in a manner described he suffered a strain to his neck;  that thereafter from time to time after performing work of a similar kind he experienced pain in his back and neck, including specifically on 2 November 1991;  that the repetition of these tasks caused injuries to his thoracic and cervical spine;  and that these were caused by the negligence and breach of contract of the defendant.

13. The order which his Honour made was:

"That the period of limitation for an action for personal injuries sustained by the applicant in the course of his employment with the respondent from April 1978 onwards be extended so that it expires on the 12th day of May, 1999."

It is conceded by the plaintiff before this Court that the first of those dates should be 10 May 1983 and nothing turns on that.

14. The principal question in issue before the learned primary judge and before this Court is whether a material fact of a decisive character relating to the plaintiff's right of action was not within his means of knowledge until a date after 12 May 1998 which was one year before the action was commenced. The other question before this Court is whether, assuming the first question is decided in the plaintiff's favour, the learned primary judge erred in exercising his discretion to extend the limitation period. In this respect the only question which was raised is whether he erred in concluding that the defendant was not so prejudiced by the extension as to justify refusing to grant it. It was conceded that there was evidence to establish the right of action apart from the defence founded on the limitation period.

15. The fact which the learned primary judge held to be a material fact of a decisive character not within the means of knowledge of the plaintiff until after 12 May 1998 was, his Honour said, awareness that the effect of the injury which he sustained in 1983 was to reduce his capacity to continue to earn the high level of income available in a coal mine. This he said, significantly changed the plaintiff's understanding of the nature and extent of his injury.

16. It was not disputed before this Court that it was in March 1999 that the plaintiff first became aware that his work related disability prevented him from continuing to work in the defendant's coal mine. His Honour's finding of fact in this respect appears to be based on the evidence of the plaintiff himself and that of his doctor, Dr Rowles. It is not entirely clear whether the plaintiff was first informed of this by Dr Rowles or by the defendant. Dr Rowles' recollection is that he informed the plaintiff of this in March 1999. The plaintiff in his affidavit says, without stating the source of this information:

"It was not until about March 1999 when the various enquiries were made by the Defendant in relation to my condition that I first became aware that I may lose my position.

...

It then became apparent to me that my whole position was going to be reviewed and I became concerned as to whether or not I would be able to hold down a position with the Defendant."

However the source of this information is of no great relevance.  It was not disputed before this Court that the plaintiff was first informed of this in March 1999.

17. The answer to the principal question then depends on the answer to two further questions; first whether this information constituted a material fact of a decisive character; and secondly whether that fact was within the means of knowledge of the plaintiff at a time prior to 12 May 1998.

18. Plainly a material fact may be of a decisive character notwithstanding that it is only one relating to the nature and extent of personal injury caused. Otherwise there would be no point in s 30(1)(a)(iv). But such fact would be of a decisive character only if it gave the plaintiff, for the first time, a worthwhile cause of action, that is, one worth suing on. That would be so, in our opinion, if, without that fact, the plaintiff's action in the present case would have been one in which the only claim which could have been made would have been one for pain and suffering and loss of amenities caused by intermittent pain and there was a serious dispute about liability; and that fact revealed, for the first time, a substantial claim for loss of earning capacity. There is no doubt that there was a serious dispute about liability. The answer to the other questions and to the question whether that fact was within the means of knowledge of the plaintiff before 12 May 1998 should, however, be deferred pending a consideration of the relevant facts most of which were undisputed.

19. The wash plant at each of the defendant's coal mines was, as its name implies, a plant used for washing coal and cleaning it of impurities. One of the jobs which the plaintiff was required to perform on a regular basis was the turning of sieve bends in the plant which was heavy work. It required a worker such as the plaintiff, in a bent over position, to push upwards with his back and neck against a box, called a spreader box, above him. This placed considerable strain on the back and neck. Sometimes the sieve bends were particularly difficult to move. This work had to be done every shift.

20. It was whilst performing this work on 10 May 1983 that the plaintiff strained his neck. He finished his shift but noticed severe pain at the base of his neck and the top of his shoulders. He visited a general practitioner, Dr Wignall and was off work for two days. He returned to the same work and continued in it. While performing the same work in 1987 he suffered sudden pain in his lower back and after some time consulted a doctor. He did not take any time off work on this occasion. In fact it appears that he did not take any time off work, except for the two days to which we have already referred, until well after some injuries, to which we will refer later, in 1999. He received a certificate from the defendant on 31 May 1999 recognizing 16 years free of time lost through injury.

21. He continued to have intermittent pain, principally in his cervical and thoracic spine, related to the work we have described. He saw both his general practitioner and a specialist in respect of this in March 1990 and the specialist gave him a handout, as he described it, on the common sense care of his back and suggested further modifications to his activities. But it is not suggested that he was told he should no longer perform this work or that his capacity to perform it, albeit with intermittent pain, was impaired.

22. In June 1991 he again suffered some pain in his sacral spine but this appears to have been a consequence of picking his son up to put him on a side show ride. In September and November 1991 he complained of pain in his back performing work of the kind we have already described.

23. On 24 December 1992 he consulted his general practitioner Dr Rowles because of increasing pain in his neck and back when undertaking the work we have described. However there is no indication that Dr Rowles gave him any indication that his capacity to perform this work was in jeopardy. On the contrary, when it was put to him in cross-examination that every time the plaintiff had to perform these heavy physical tasks the problem would assert itself, Dr Rowles said:

"Certain activities may have done this but Mr Buckton has always, you know, he's been a fairly stoic individual.  He's always, you know, endeavoured to perform at work and go back to work when he could and we have a lot of people who work on the mines in these conditions that, you know, we can show degenerative changes on cervical vertebrae and, you know, we don't, you know, rate them as being, you know, incapacitated for work and they do go back to work and they're able to, you know, to continue to work in a reasonable, you know, capacity in heavy industry and that.  Yeah, but not the sort of thing where I would have thought that, you know, I would have put him off work and claimed that he was incapacitated."

24. On 24 March 1993 the plaintiff submitted a statement to WorkCover although he did not take any time off work then. In that statement he said that he had experienced a constant ache in his back since his first injury. He said that when the pain became too bad he would try and rest wherever possible. He said that at the time of his statement he was carrying out work of a lighter nature though there had not been any real improvement in his back condition. The lighter work must have been of a temporary nature for it appears that, during virtually the whole of his period with the defendant, including after that date, he continued to perform work of the kind we have described. Moreover in cross-examination he explained what he meant by the term constant –

"It's not like – it wasn't like it was there 24 hours a day.  Sort of like it'd be there and you'd stretch and loosen up and then you're okay again."

25. The plaintiff jarred his neck in March 1996 when he bumped his head on an iron cross brace but he did not consider this serious and did not lodge any claim for compensation. By this time he had moved to Riverside where the work was generally easier because, although he was doing work of the same kind, the mechanism of the plant was easier to operate than it had been at Goonyella. He did not have any substantial problems with his back or neck between March 1996 and August 1997.

26. In August 1997, he said in his affidavit, he suffered pain to his neck and back after performing the same work. However there is a document, dated 27 October 1997, described as a statement, on what is plainly a Workers' Compensation Board form, signed by him but written out by someone else which is inconsistent with this. In it the plaintiff said that he suffered an increase in neck pain in August whilst sitting at a course at his place of work for a prolonged period. However there are some curious aspects of this statement and some which are plainly wrong. Curiously it attributed his neck and back pain to ageing whereas in earlier statements he attributed that pain to his work (see for example, his statements of 3 March 1993 and 11 September 1997 and Dr Rowles' report of 3 December 1997) as he did, for example, again, in December 1997, to Dr Rowles.  It appeared to say (the writing is not clear) that he had never consulted a doctor about the pain which, if that was the statement, is plainly wrong.  And it said that he had never reported it to management, which is inconsistent with his other evidence and his employer's records and therefore plainly wrong.  These apparent inconsistencies were not put to the plaintiff and his Honour wisely appears to have ignored this document.

27. There were no further specific incidents, involving pain to his neck and back until, in January 1999 and again in March 1999 the plaintiff jarred his neck operating a bulldozer. These resulted in his consulting Dr Rowles again in March 1999 who referred him to Dr Shaw, an orthopaedic surgeon. It was his disablement following these injuries which resulted in his being advised that he could no longer continue in his work at the mine.

28. Although the plaintiff swore that his expectation was, until March 1999, that he would be able to continue to work at his employment, he did concede that towards the end of 1998 the levels of pain in his back and neck increased gradually and, although he was still able to cope with his work, he was finding it more difficult. That concession was not sufficient, however, to show that his likely incapacity for work of that kind was within his means of knowledge before 12 May 1998. For that the defendant relied principally upon some findings of the learned primary judge and some answers in cross-examination by Dr Rowles.

29. As to the first of these his Honour said:

"It seems to me that although Mr Buckton knew the things that Mr Kelly has pointed to, it would not (be) unreasonable for him to continue working as he did and it was not at that stage in his interests to contemplate suing his employer.

I am satisfied that it was only when he received advice following examination by a specialist in March 1999 that he became aware that the effect of the injury he sustained in 1983 was to reduce his capacity to continue to earn the high level of income available in a coal mine.  This significantly changed his understanding of the nature and extent of his injury."

30. His Honour's reference to Mr Kelly was to counsel for the defendant before him who submitted that, by late 1997 the plaintiff knew that –

"(a)his back injury had been caused by the incident in May 1983 and aggravated by subsequent incidents, each in relation to the manual manipulation of sieve bends;

2. the nature of the injury was chronic, continuing and significant;

3. it was not likely to improve;

4. it interfered with his ability to perform heavy duties at work;  and

5. so far as he was concerned, had been caused by outdated practices employed by his employer."

31. These seem to be the things to which his Honour referred to which Mr Kelly had pointed. These were no doubt significant matters. It is also significant however that Mr Kelly did not submit that, by late 1997 the plaintiff knew that his condition was getting worse. Moreover in considering paragraph (d) two points should be noted. The first is that, from some time in 1994 when he moved from Goonyella to Riverside his duties were less heavy than they had been. And the second is that his condition did not prevent him, in 1997 and until 1999, from performing the work he was employed to do, which was still the work of a wash plant operator although that job was not as demanding as it had been at Goonyella.

32. So the position in late 1997 and indeed until after May 1998 was that he had continuing intermittent pain in his back, from time to time aggravated by the nature of his work. But, subject to what is said in the following paragraph, there was no indication to him that the frequency of these aggravations was increasing or that his condition was getting worse. Nor was his back condition preventing him from doing this work. Moreover, although he consulted doctors on the occasions we have mentioned, none of them told him that he should not do this work or that, if he continued in it, he would be likely to be disabled from continuing it.

33. As to the second point, Dr Rowles, when asked in cross-examination when the plaintiff's episodes and severity of back pain increased, said:

"Probably from the latter part of about 95/97 because in the last, probably, couple of years".

He then added:

"... more frequent from 95 to 97 to the early 99's?"

His answers in this respect are not entirely clear and appear, at least on one view, to be stating a range of commencing dates for increasing frequency of incidents of pain or possibly increasing severity of symptoms, his main impression being that this was in the last couple of years before the date on which he gave evidence which was in April 2000.  That is not necessarily inconsistent with the plaintiff's evidence that he suffered gradually increasing pain in his neck and back, to the extent that it made his work more difficult, towards the end of 1998.  Moreover he was asked these questions for the first time in cross-examination in this application.  They do not appear to be matters to which he specifically adverted in anything he wrote at an earlier date.  Indeed neither the hospital records nor the medical notes of Dr Rowles or his predecessor indicate any increasing frequency of complaints or incidents in the period up to the end of 1998.

34. No doubt there may be many cases in which it would be correct to conclude that a man who has had chronic intermittent pain of this kind and degree over such a long period ought to have sought advice as to whether his earning capacity was thereby impaired. But we think it was reasonable of his Honour to conclude that that was to set too high a standard of reasonableness for a man in the plaintiff's position. He was a labourer in a secure position with a long term employer performing work of much the same kind over a period of, by the end of 1998, nearly 20 years. Although his disabilities caused him some difficulty in performing his work, that difficulty did not increase in any way which ought to have put him on inquiry as to this until towards the end of 1998. And notwithstanding that he saw doctors over a period of 16 years on a reasonably frequent basis, there was no suggestion from any of them to him that his back might deteriorate to such an extent as to prevent or even substantially impair his capacity to continue in that same employment.

35. The fact that the plaintiff's disability, in consequence of his initial injury and of the constant repetition of the tasks that caused that injury, caused a reduction of his earning capacity which prevented him from continuing to earn at the high level of income available in a coal mine is, in our opinion, a material fact of a decisive character. It was decisive because it converted a cause of action in which liability was disputed and the damages would be no more than for pain, suffering and loss of amenities for his constant but intermittent pain into one which included a substantial component for lost earning capacity. This converted a cause of action which was not, in the circumstances, worthwhile pursuing, because it was both risky and, if successful, would yield only small damages, into one which was.

36. For those reasons, especially when one accords such deference as should be given to the findings of fact made by the primary judge, we do not think that he was wrong in concluding that a material fact of a decisive character was not within the means of knowledge of the plaintiff until after 12 May 1998.

37. Nor do we think that his Honour erred in the exercise of his discretion in concluding that there was no prejudice to the defendant or incapability of obtaining a fair trial in consequence of which the application to extend should be refused. On this question the defendant adduced no evidence and conceded that there was evidence to establish the right of action. As to that, two of the plaintiff's fellow workers during the relevant period, one of them a supervisor, swore affidavits but were not required for cross-examination. Moreover the plaintiff and others had filed grievance reports as early as 1991 about the system of work.

38. On the question of the relationship between the plaintiff's work and his disabilities there was a great deal of evidence, oral and documentary, including that of Associate Professor McPhee who, in the course of giving a report to the defendant, thought it reasonable to accept the plaintiff's working history as the cause of his condition, noting the unusual fact of spinal degeneration in his thoracic but not in his lumbar spine. There was no evidence that any of the treating doctors during the relevant period were not available to give evidence at the trial and, in respect of all except Dr Wignall, their availability appears to be established. Moreover the notes of all of them and all relevant hospital records, appear to be intact. There are also Workers' Compensation records and no doubt the defendant has records of complaints by the plaintiff of his injury as the summary produced by it implies.

39. For those reasons we would dismiss the appeal with costs.