Antoniou v Boyne Smelters Limited
[1999] QDC 44
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- Antoniou v Boyne Smelters Limited[1999] QDC 44
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Antoniou v Boyne Smelters Limited[1999] QDC 44
Antoniou v Boyne Smelters Limited[1999] QDC 44
DISTRICT COURT | Plaint No 34 of 1997 |
CHAMBERS
JUDGE FORDE
TONY MICHAEL ANTONIOU | Applicant/Plaintiff |
and
BOYNE SMELTERS LIMITED | Respondent/Defendant |
GLADSTONE
DATE 16/03/99
JUDGMENT
HIS HONOUR: This is an application to extend the period of limitation for any cause of action which the plaintiff may have against the defendant arising out of or in the course of his employment with the defendant prior to 3 November 1994 so that it expires on 3 November 1997. The plaintiff commenced employment with the defendant on or about 11 January 1982. A chronology has been provided by the plaintiff's counsel and it is attached to these reasons for judgment. It accords with the evidence in all material respects.
The plaintiff was born on 29 December 1940. The cause of action relied upon is to be found in paragraph 5 of the plaint:
“The plaintiff commenced his employment with the defendant in or about 1982. The plaintiff terminated his employment with the defendant on or about the 30th day of June 1996. During the whole of the period of his employment with the defendant the plaintiff was required to perform heavy labouring duties. He was frequently required to lift and throw into pots bags of soda ash. Initially the bags of soda ash weighed 40 kgs but subsequently were reduced to 25 kgs. Even when the bags were reduced in weight to 25 kgs, the plaintiff found the work extremely heavy and that it placed considerable strain on his lower back. He and other workers were required to throw 120 bags of soda ash into each pot within a short period of time. Further, the plaintiff was required frequently to manually drag along the concrete floor of the smelter large wedges weighing approximately 90 kgs each. The wedges were required to be dragged distances of 3-4 metres. The plaintiff found this work very heavy. Further, the plaintiff was required frequently to lift and manoeuvre sections of dirty pipes so that they could be picked up by means of a forklift. The pipes weighted approximately up to 100 kgs and the plaintiff found the work very heavy. On the 3rd day of April 1996 whilst performing the task of manoeuvreing the sections of dirty pipes outside the shed, the plaintiff felt a sudden sharp pain in his lower back.”
Evidence of the plaintiff
The plaintiff in his affidavit deposed to the fact that he had suffered an injury to his lower back on 25 July 1982. He bent over to pick up a wedge which weighed about 3 kilograms. He was in hospital for two weeks and off work for three months. On his return to work he did light duties, initially in the ‘Cathode Preparation Section’ and then in 1983 and 1984 began work around the pot lines. After about five years, rotation of the crew was introduced and he assisted in the process known as ‘fluxing the pot’. This work continued until 3 April 1996. He could not recall any time off work between 1984 to 1994. He confirmed the facts set out in paragraph 5 of the plaint.
An injury occurred on 16 December 1994. He was doing warm-up exercises with other members of his crew and felt pain down both of his legs. He did light duties for a couple of weeks and consulted Dr Cebuliak at his workplace. He returned to work after a day off. On 3 April 1996 whilst fluxing a pot he felt a sudden sharp pain in his lower back.
The process of fluxing required the plaintiff to throw a 25 kilogram bag of soda ash into the pot. Blocked crucibles are taken out of the lime and brought to the area known as the ‘crucible cleaning area’. Two people separate the pipes from the actual crucible. The piping is about 15 centimetres in diameter and made of cast iron. Four sections of pipe once removed from the crucible are transported by crane and placed in a special stand. Although the transporting of the pipes was done by means of a forklift, when it was necessary to place the sections of a pipe on the forklift each section had to be physically positioned in such a way as to allow the forklift to lift it up and it was necessary for the plaintiff to physically manoeuvre piping around on the concrete floor. Whilst doing this he hurt his back.
Medical care after injury on 3 April 1996
The plaintiff initially saw Dr Cebuliak who referred him to Mr Langton, a chiropractor. Even on light duties the plaintiff suffered increasing pain. A CT scan showed a central posterior disc prolapse at L5/S1. Dr Ryan, an orthopaedic surgeon, examined the plaintiff on 23 May 1996 on behalf of Dr Cebuliak who is the doctor who attends to workers on behalf of the defendant. Dr Ryan reported:
“I thought his symptoms were due to lumbosacral disc degeneration with S1 nerve root irritation. I thought it likely to resolve without operative treatment and I recommended back education and continuation at work.”
On 11 June 1996 the plaintiff accepted a redundancy package from the defendant. His services were terminated in July 1996. The plaintiff accepted the package because his back did not improve. He was seen by Dr White, an orthopaedic surgeon, on 4 June 1998. Dr White opined:
“This man suffered a lumbar disc prolapse consistent with the history given. The 1982 injury and subsequent aggravations are presumed to have weakened the annulus of the disc rendering it vulnerable to the final incident of 1996.”
In examination before me this morning Dr White confirmed that the fibres around the discs would tear as a result of work from time to time and he gave evidence that damage was of a permanent nature in 1982 and that had he been approached by the plaintiff prior to 1996 he would have warned the plaintiff to watch the type of work he carried out and to do lighter duties. He said that any competent surgeon would have given similar advice. Unfortunately the plaintiff had seen Dr Ryan who gave contrary advice and gave the opinion that a continuation of work was feasible without any restriction mentioned whatsoever in his report.
It is submitted that the report by Dr Ryan is limited and it does not set out the full history of the plaintiff. However, that ignores the fact that Dr Cebuliak was the doctor who referred the plaintiff to Dr Ryan and most of the medical reports exhibited to Miss Mison's affidavit show a fairly extensive history of the plaintiff available to the defendant at that time including results of an x-ray done in August 1982.
On 1 September 1997 the plaintiff attended Dr Macfarlane, an orthopaedic surgeon. In his report of 4 September 1997 Dr Macfarlane states that the injury occurred over a period of time and that the plaintiff suffers from a 5 per cent impairment of the whole patient which he related to the work practices and problems when rolling the pipe. He expressed the view that the plaintiff was not fit to return to heavy work in the smelter. Dr Baker was also of the view in November 1997 that the nature of the work aggravated the plaintiff's symptoms.
As submitted by the plaintiff's counsel, the fact that the action had commenced and that the material fact was established after that event does not deprive him from getting relief under section 31 of the Limitation of Actions Act: see Patane v. Opacic unreported decision of the Court of Appeal, 27 March 1996. A similar point was made by Justice Muir in Bartlett v. BHP Australia Coal Pty Ltd writ number 38 of 1996, an unreported decision of 3 November 1998 at page 6.
Involvement of solicitors
The plaintiff approached his present solicitors on 7 March 1997. Dr Macfarlane saw him on 1 September 1997. After referring to the 1982 incident Dr Macfarlane expressed the following diagnosis:
“(1) a posterior and central disc prolapse at L5/S1, now clinically settled;
- (2)minor degenerative changes in the thoraco-lumbar spine.”
He then went on to express the opinion:
“The prognosis is for matters to remain as is, with any changes on a longer term basis being related to age and normal degeneration rather than to any previous work.”
Dr Macfarlane was reporting to the plaintiff's solicitors. The solicitors then wrote to Dr White setting out the detail in some history: see exhibit D to the affidavit of Mr Lyons. Reference has been made to Dr White's earlier report which is exhibit E and there is a further report of 5 January 1999. The “subsequent aggravations” which Dr White referred to were the heavy duties which the plaintiff performed from time to time leading to his complaints of ongoing and recurrent back and right leg pain. Dr White opined that each of the activities referred to in the letter of the plaintiff's solicitors were consistent with “subsequent aggravations” of his L5/S1 disc pathology.
As recorded in the chronology, a plaint was issued on 3 November 1997. The plaintiff deposes that:
- When he first approached his solicitors he had no information which suggested to him that the symptoms which he was suffering in his back and right leg were due to anything which may have been caused prior to December 1994 or that they might be due to any injury occurring over a period of time due to the nature of his duties which he had been required to perform since he was in place in the crew working on pot lines in 1983 and 1984.
- None of the medical practitioners had suggested that the system of work had caused any injury to his back prior to 3 April 1996.
- It was not until Dr White told him that he was aware that the 1982 accident was responsible in any way for the symptoms which he experienced in 1994 to 1996 and subsequently.
I have generally accepted the evidence of the plaintiff for the purposes of this application.
The statutory framework
“S31(2) of the Limitation of Actions Act (‘the Act’) provides:
‘(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court -
- (a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
- (b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.’
A right of action in negligence is a right of action to which s31 applies: See subs(1).
S30 defines ‘material facts' inclusively as follows:
‘(a) the material facts relating to a right of action include the following:—
- (i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
- (ii)the identity of the person against whom the right of action lies;
- (iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
- (iv)the nature and extent of the personal injury so caused; and
- (v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty.’
Whether a material fact is of a decisive character for the purposes of s31(2) is defined in s30 in the following terms:
‘(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing -
- (i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
- (ii)that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring and action on the right of action.’
Whether a fact is within the means of knowledge of a person for the purpose of that subsection is defined negatively in s30 in the following terms:
‘(c) a fact is not within the means of knowledge of a person at a particular time if but only if -
- (i)the person does not know the fact at that time; and
- (ii)as far as the fact is able to be found out by the person, the person has taken all reasonable steps to find out the fact before that time.’”
In Healy v. Femdale Pty Ltd, Court of Appeal 37 of 1992, 9 September 1993 it was said in the judgment of the Court that :
“It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take ‘appropriate advice’ or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.”
Macrossan Jin Moriarty v. Sunbeam Corporation Limited (1988) 2 Queensland Reports 325 stated:
“In cases like the present, an applicant for extension discharges his onus not simply by showing that he has learnt some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s.30(b) comes down to: Taggart v. The Workers' Compensation Board of Queensland [1983] 2 Qd.R. 19, 23, 24 and Do Carmo v. Ford Excavations Pty Ltd (1984) 154 C.L.R. 234, 251 per Deane J.”
It was noted by Justice Muir in Bartlett v. BHP Australia Coal Pty Ltd that section 31(2) applies to cases where the plaintiff commences proceedings after the expiration of limitation period but before acquiring the means of knowledge of material fact. He referred to the case of Opacic v. Patane.
Material fact of a decisive character
After the initial accident in 1982 the plaintiff was back at work for some 15 years. He was off work in 1994 for a short period of time. Records show that the plaintiff was off work for some 12 weeks from April 1996 but in evidence it was stated that he broke his ankle.
Following the exacerbation on 3 April 1996 Dr Ryan assessed the plaintiff as able to continue to work. Therefore, if the plaintiff had sought the opinion of an orthopaedic surgeon before this then it cannot be said he would have received advice that any ongoing problem was due to his work. In fact, Dr Macfarlane specifically said in September 1997 that any ongoing problems were due to degeneration. It is submitted that the plaintiff relied on the advice of Dr Ryan and returned to work. The newly discovered facts add substantially in my view to the quantum of damages and that without those facts damages may have been too small to worry about. It is submitted that the plaintiff has acted reasonably in attending upon his general practitioner and Dr Ryan. Dr Ryan's advice has proved to be incorrect in retrospect, but the plaintiff, I find, acted reasonably in accepting that advice and going back to work. I accept his evidence that he was not aware up until he saw Dr White that the 1982 accident was a cause of his ongoing symptoms.
Defendant's submissions
The defendant submits that 3 November 1996 is the date after which the plaintiff must demonstrate that he learned of a material fact of a decisive nature. The defendant submits that each fact of a material nature was within the applicant's knowledge or means of knowledge more than 12 months prior to the issue of the Plaint, that is before 3 November 1996. It is further contended that each material fact of a decisive nature was capable of being ascertained by the applicant if he had taken reasonable steps to do so more than 12 months prior to the issue of the plaint. This submission ignores the opinion expressed by Dr Ryan that the plaintiff could return to work as late as June 1996. Certainly if the plaintiff had acted reasonably and seen Dr Ryan he would have been led to believe he had a small claim for damages. The thrust of the defendant's submission ignores this fact. It was unlikely that the general practitioner would have challenged Dr Ryan's view. I am satisfied that without the newly learned fact of the historical nature of the injury that the plaintiff would not even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. As Justice Muir said in Bartlett ibid page 8:
“Where specialist medical practitioners were not questioning the role played by the applicant's working conditions in producing his physical deterioration let alone the desirability of his continuing to work, it is hardly reasonable to expect of the applicant that he seek further or different advice.”
Right of action
The defence says that it has not been shown that apart from the limitation of action defence that the plaintiff has failed to produce evidence which “can be reasonably expected will be available at trial” to prove his case. It is not contradicted by the defence that the following changes deposed to by the plaintiff have occurred in the defendant's workplace:
- The soda ash is no longer tipped manually but rather by a fork-lift.
- The dirty pipes are no longer manually handled but rather a jib is attached to a crane.
Reference was made in argument to Ford Excavations v. Do Carmo (1984) 154 CLR 234 at page 257 where in order to persuade the Court evidence should be available as to what the defendant had failed to do by taking reasonable steps or that the defendant had unreasonably failed to take such steps, it is submitted that the two changes reflect practical solutions, but in my view this is prima facie evidence of what could have been done to provide a safer system of work.
Any breach need only be a material contributing factor to the injury to be actionable. The remarks of Macrossan J in Wood v. Glaxo Australia Pty Ltd (1994) 2 Queensland Reports 431 to 434 are apposite.
I am satisfied that the applicant has discharged the onus in respect of section 31(2)(b) of the said Act.
PREJUDICE TO DEFENDANT
The defendant relies upon the observations of the High Court in Brisbane South Regional Health Authority v. Taylor (1996) 186 Common Law Reports 541 at 544.
An order may be refused in the discretion of the Judge hearing such an application where the plaintiff has failed to discharge the onus of proving that an extension beyond the limitation period would not result in significant prejudice to the defendant. It is submitted that the records of Dr McClymont who saw the plaintiff in 1982 have been destroyed. There are two responses available to this unmeritorious submission:
- In a medical report exhibited to Miss Mison's affidavit, the following appears: “Lumbar spine 10.8.82 no boney lesion is detected. Disc spaces normal” (Exhibit TM2).
- In Exhibit D to the affidavit of the plaintiff the report of Dr Cebuliak states:
“He had a history of recurrent low back pain dating from 1982, when he had clinically, a lumbar disc lesion with (L) sided sciatica.”
In my opinion, any loss of records seems to have been adequately covered by other sources. The plaintiff has been employed by the defendant throughout the period from 1982 to July 1996. It has exhibited detailed medical records relevant to the period.
CONCLUSIONS
It is ordered in terms of paragraph 1 of the summons. It is further ordered that the costs of and incidental to the application be costs in the cause.