Aitcheson v Amcor Ltd
[1995] QDC 298
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- Unreported Judgment
- Aitcheson v Amcor Ltd[1995] QDC 298
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Aitcheson v Amcor Ltd[1995] QDC 298
Aitcheson v Amcor Ltd[1995] QDC 298
DISTRICT COURT | No 87 of 1995 |
CIVIL JURISDICTION
JUDGE O'BRIEN
THOMAS GORDON AITCHESON | Plaintiff |
and
AMCOR LTD | Defendant |
TOWNSVILLE
DATE 20/06/95
JUDGMENT
HIS HONOUR: This is an application for an extension of the period of limitation within which to commence an action for personal injuries. The material before me discloses that between 23 April 1981 and 4 November 1988 the applicant was employed as a fork lift operator at the defendant's fibre packaging plant at Townsville. It is alleged that during the course of that employment he was exposed to airborne respirable soft wood dust and sodium hydroxide as a result of which he sustained injury to his health.
According to the applicant's affidavit, approximately three years after commencing employment with the defendant he suffered an asthma attack for the first time and has since received regular and ongoing treatment for his respiratory complaints. His condition continued to deteriorate such that he resigned from his employment with the defendant in November 1988.
Between 30 April 1994 and 2 May 1995, he received treatment for his condition as an in-patient at the Townsville General Hospital. Upon his discharge, Dr Anthony Matthiesson, the consultant physician in respiratory medicine, who had treated the applicant during that hospitalisation, advised as follows in a letter of 4 May 1994 to the applicant's solicitors.
“While he was exposed to dust from cardboard packaging at work for a number of years he has also smoked heavily before, during and after the dust exposure. I think the dust has most probably been a significant aggravating factor but it is certainly not the only factor in his airways' pathology.”
The applicant became aware of this opinion on or about 12 May 1994 and shortly thereafter he sought legal advice from his solicitors who have since pursued this matter on his behalf. On or about 10 June 1994 the solicitors acquired a copy of a Workplace Dust Survey conducted on the defendant's premises in August 1993. A copy of this Survey is annexed to Ms Gorey's affidavit of 9 May 1995.
I accept the evidence of the applicant that it was not until May 1994 that he became aware of medical opinion as to a connection between his employment and his respiratory problems. It is not suggested by the respondent that this is not a material fact within the meaning of section 30(a) of the Limitation of Actions Act (1974).
It is however argued that the material does not reveal sufficient evidence of a viable course of action to satisfy the requirements of section 31(2)(b) of the Act or to show that the material fact is of a decisive character in terms of section 30(b)(ii) of the Act.
Essentially the argument for the defendant is that according to the evidence of Dr Matthiesson, the applicant's long standing cigarette addiction might of itself be enough to have caused the applicant's present condition and that the contribution of the, “Work dust”, factor is therefore no more than speculative.
Dr Matthiesson was cross-examined in relation to this issue and has certainly expressed the view that smoking was probably the major factor in the applicant's position. However, as the doctor put it, “That is not to say that the dust at work isn't a substantial factor.”
It must also be kept in mind that in his letter of 4 May 1994 to which I have referred above, Dr Matthiesson spoke of the probability of the dust as a, “Significant aggravating factor”. Again in a letter to the applicant's solicitors of 20 August 1994, Dr Matthiesson said:
“This pattern of lung disease is commonly associated with long term cigarette smoking. While the heavy smoking is a sufficient explanation of obstructive lung disease of this degree in many people, others with equivalent smoking histories escape without major lung problems. In some patients other factors contribute to their lung disease. In some cases high alcohol consumption is a contributing factor and in others regular exposure to organic dusts over a long period appears to compound the effect of cigarettes. In my experience exposure to soil dusts is a definite aggravating factor in obstructive lung disease in farmers and plant operators and exposure to wood dusts is a definite aggravating factor in carpenters and joiners. I think cardboard dust would fit into this category.”
In the circumstances I would consider the following observations of Macrossan C.J., in Wood v Glaxo Australia Pty Ltd, (1994) 2 Queensland Reports, 431 at 434 to be appropriate.
“It can be said that applicants for extension of limitation periods are not intended by the legislation to be placed in the position where they must establish an entitlement to recover on two occasions, first on the hearing of the application and once more at the trial of the action. Although the requirements of the legislation must be complied with if an extension is to be granted, the extent to which an applicant must show a case on the hearing of the application to extend time will frequently depend on the impression on the Judge's mind of the material which the applicant presents or the existence of which he demonstrates or points to. it is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions. A Judge may harbour a feeling that there is a strong chance that particular applicants will fail at trial but, in my opinion, he should not act on the basis of this impression both because that is a question reserved for another occasion and because he cannot know and should not insist on being able to see in all of its ramifications the full strength of the case which will eventually be presented at trial. There are some resemblances in this to the situation of a defendant who resists a summary judgment application. The Court should be cautious in shutting out a party from the opportunity to make his case at the appropriate time. In any situation where proof of a case is difficult and very far from straightforward, it would be very expensive to require a party applying to extend time to demonstrate his case with any high degree of elaboration. Fundamentally, the standard required on an application for extension of time under the Act comes from the literal words of s. 31(2)(b): ‘evidence to establish the right of action.’ These words will be construed according to the evident policy of the legislation.
A number of decisions in the past have endeavoured to make clear the onus which, under the formula just quoted, the applicant for extension must discharge: Sugden v. Crawford (1989) 1 Qd.R. 683 at 686, Minoque v. Bestobel Industries Pty Ltd (1981) Qd.R. 356 at 358, Martin v. Abbott Australasia Pty Ltd (1981) 2 N.S.W.L.R. 430 at 443 and Swan v. Farquhar (1988) 1 Qd.R. 234 at 239. One way in which the onus has been expressed is that the applicant must demonstrate something like a prima facie case. The evidence need not at the stage at which the application is brought be in a form which would be admissible at trial and it may indeed be hearsay. It will not be possible to predict whether the plaintiff's evidence will prevail at trial when it will be subjected to challenge and forced to confront the opposing evidence of the defendant, but it is probably accurate enough to say that an applicant will meet the requirement imposed by s. 31(2) (b) if he can point to the existence of evidence which it can reasonably be expected will be available at the trial and which will, if unopposed by other evidence, be sufficient to prove his case.”
It is my view that the evidence to which I have referred above is sufficient to satisfy the requirements of the test which I have set out above. I therefore consider that this is an appropriate case in which to grant the extension which is sought. In the circumstances I make an order in terms of paragraph (A) of the summons and I further order that the costs of an incidental to the application should be costs in the cause.