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  4. Zimmerle v WorkCover Queensland - [2022] QDC 143

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Zimmerle v WorkCover Queensland[2022] QDC 143

Zimmerle v WorkCover Queensland[2022] QDC 143

DISTRICT COURT OF QUEENSLAND

CITATION:

Zimmerle v WorkCover Queensland & Another [2022] QDC 143

PARTIES:

SHANE BARRY ZIMMERLE

Plaintiff

v

WORKCOVER QUEENSLAND

First Defendant

And

SHOPFITTING HEADQUARTERS PTY LTD (ACN 156 641 404)

Second Defendant

FILE NO:

D11/20

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Southport District Court

DELIVERED ON:

24 June 2022

DELIVERED AT:

Southport

HEARING DATE:

19 May 2021

JUDGE:

Dann DCJ

ORDER:

The plaintiff’s application is dismissed

CATCHWORDS:

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – OTHER CASES AND MATTERS – where the plaintiff brought an action for personal injury against the defendants – where the plaintiff visited a medical practitioner multiple times both during and after his employment regarding the injury – where the plaintiff was made redundant in April 2016 and continued to see medical professionals after that time – whether the cause of action arose before or after the redundancy or at a later point after the plaintiff received information from certain specialist medical practitioners

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURY MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – where the plaintiff received advice from a medical specialist some years after being made redundant that his earlier employers had not contributed to the injury – where the defendants contends that report did not alter the critical mass of information in the plaintiff’s possession – whether that report is knowledge of a material fact of a decisive character extending the limitation period

Limitation of Actions Act 1974 (Qld) s 11, 30, 31

Workers Compensation and Rehabilitation Act 2003 (Qld) s 36A, 300, 302

Ballingall v WorkCover Queensland and Ors [2017] QSC 133

Castillon v P&O Ports Limited (No 2) [2008] 2 Qd R 219

Dick v University of Queensland & BP Australia Ltd [1999] QCA 474

Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234

Ervin v Brisbane North Regional Health Authority [1994] QCA 424

HWC v The Corporation of the Synod of the Diocese of Brisbane and Ors [2009] QCA 168

JNJ Resources Pty Ltd v Crouch & Lyndon (a Firm) [2015] 2 Qd R 115

Martindale v Burrows [1997] 1 Qd R 243

Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325

NF v State of Queensland [2005] QCA 110

Quinn v State of Queensland (No 2) [2016] QDC 156

Taggart v The Workers Compensation Board of Queensland [1983] 2 Qd R 19

COUNSEL:

C. Newton, counsel for the applicant/plaintiff

B.F Charrington, counsel for the respondent/defendants

SOLICITORS:

Maurice Blackburn for the applicant/plaintiff

Cooper Grace Ward for the respondent/defendants

Introduction

  1. [1]
    This is the plaintiff’s application to determine:
    1. (a)
      When his cause of action arose;
    2. (b)
      Depending on the answer to that question, whether there should be any extension of an applicable limitation period.

Background

  1. [2]
    The plaintiff is, by occupation, a spray painter.
  2. [3]
    As a child he had asthma.[1] It resurfaced in about 2007 and in July 2008 he had some days in hospital for treatment related to an infective exacerbation of asthma.
  3. [4]
    He started work as a spray painter for the precursor entity to the second defendant in June 2008. He later worked for the second defendant (its precursor ultimately became deregistered). I will refer to the two employing entities as the Headland companies, where necessary. The Headland companies shared a common director. These employment periods were continuous. The second defendant made him redundant in April 2016.
  4. [5]
    In September 2009 he reported shortness of breath and wheezing to a doctor at the Mt Warren Park Medical Centre and was prescribed Ventolin. He had a number of visits thereafter to 2016 complaining of asthma symptoms.  
  5. [6]
    From 2016 he had various communications with doctors (including some material from specialists). He applied for worker’s compensation application on 19 September 2016 and WorkCover accepted his claim on 7 December 2016.
  6. [7]
    He first contacted solicitors in May 2016 for assistance with a claim for total and permanent disability.[2]
  7. [8]
    By a claim and statement of claim filed on 22 January 2020 he commenced this proceeding for personal injury against the precursor entity and the second defendant. As the precursor entity is deregistered, the first respondent, WorkCover Queensland is named in its stead pursuant to s 300(2)(b) of the Workers’ Compensation Rehabilitation Act 2003 (WCRA).
  8. [9]
    A summary of his claim for personal injury is:
    1. (a)
      he worked for each of the Headland companies as a spray painter;
    2. (b)
      in so doing, he was exposed to hazardous chemicals and substances;
    3. (c)
      each of the Headland companies owed him a non delegable duty of care to avoid exposing him to a risk of personal injury arising from his exposure to the hazardous chemicals and substances and the system of work which they employed. (That duty was informed by the content of regulations, standards and codes of practice);
    4. (d)
      they breached that duty, inter alia, by failing to monitor the work environment (including the spray booth where he worked), provide adequate ventilation or PPE, perform risk assessments, have him monitored for his health and supervise him or warn him of relevant risks;
    5. (e)
      as a consequence of their breaches he suffered chronic airways disease and a secondary psychiatric injury;
    6. (f)
      his damage and cause of action crystallised on or about 27 February 2017 following the report of Dr Ian Brown, Thoracic and Sleep Physician dated 2 February 2017;[3] and
    7. (g)
      he claims damages for personal injury and consequential loss not exceeding $750,000 and interest.
  9. [10]
    The defendants plead (amongst other things) a limitation defence as a complete defence to his claims.
  10. [11]
    In his written application, the plaintiff seeks a declaration that his cause of action arose on or after 9 September 2016 or alternatively on or after 2 February 2017. Both dates are some time after he finished working for the second defendant in April 2016. In those circumstances it is remarkable that the pleading alleged that the cause of action did not crystallise until February 2017 and that this application proceeds on the bases of a cause of action accruing in either September 2016 or February 2017.
  11. [12]
    However, the significance of the September 2016 and February 2017 dates is, respectively:
    1. (a)
      9 September 2016 is the date of a letter from consultant respiratory specialist, Dr Lucy Burr, to the plaintiff’s general practitioner. In it she expressed the opinion that the plaintiff should consider a different career, given the exacerbation of his respiratory symptoms, when spray painting.[4] The plaintiff submits it was not until this point that every fact he is required to establish had arisen and that he had suffered loss and damage[5]. If the plaintiff’s cause of action accrued on this date, he had until 8 September 2019 to bring a claim for damages and by the service of the notice of claim for damages on 8 May 2019, together with WorkCover’s waiver of compliance on conditions on 9 May 2016 which the plaintiff accepted on 10 May 2019, the claim was brought within time;[6] and
    2. (b)
      2 February 2017 is the date of a report of Dr Ian Brown, Thoracic and Sleep Physician.[7] In that report to WorkCover, Dr Brown diagnosed persistent asthma with chronic airways obstruction and stated he believed the plaintiff’s asthma had been significantly affected by long term workplace exposure to fumes from spray painting, including extensive use of two pack isocyanate containing sprays over some 30 years.[8] If this date is accepted as the date that the cause of action accrued, the position is the same as in (a) above in that the claim is within time.
  12. [13]
    Alternatively, the plaintiff seeks an extension of the limitation period up to and including 29 May 2018. The significance of this date is that this was the date the plaintiff was told of the contents of a discussion his solicitors had with Dr Brown, on 15 May 2018, to the effect that earlier employers had not contributed to his underlying asthma.[9]  The plaintiff submits that this advice from Dr Brown is ‘the material fact of a decisive character’ which would support the extension of the limitation period. The plaintiff’s lawyers served an urgent Notice of Claim for Damages on the defendants on 8 May 2019.[10] In it, by reference to this conference with Dr Brown, they identify that the plaintiff’s extended limitation period pursuant to s 31 of the Limitations of Actions Act 1974 (Qld) (LAA) will possibly expire on or about 15 May 2019.[11]
  13. [14]
    The plaintiff, in his written outline, also made submissions on the basis that in so far as his incapacity may have been caused by employers prior to those represented by the Headland companies, there was an inability to break down the earlier periods, raising the possibility the injury was indivisible, with consequent difficulties being associated with the economic viability of any cause of action, given the plaintiff’s statutory refunds and costs.[12] In oral submissions the plaintiff’s counsel did not press this submission.[13] 
  14. [15]
    The defendants plead that the cause of action crystallised no later than either:[14]
    1. (a)
      November 2014 when the Plaintiff first reported to the office manager of the Second Defendant that he was suffering illness in relation to his work the subject of the claim. The defendants contend the plaintiff’s cause of action was complete by about 2014 at the latest when the elements of breach of duty and causation were established.[15] That cause of action became worthwhile in August 2016 when Dr Burr told the plaintiff he needed to change work;[16] or
    2. (b)
      April 2016 when the Plaintiff ceased working for the Second Defendant.
  15. [16]
    The defence contends the information learned from Dr Brown in May 2018[17] did not alter the critical mass of information within the plaintiff’s possession prior to Dr Brown’s report, which was sufficient to provide the plaintiff with a worthwhile right of action before the provision of that report;[18] as such there was no relevant material fact to bring the matter within the ambit of s 31(2)(a) of the LAA.
  16. [17]
    The defendants also point to prejudice arising from the time which has elapsed and events which have occurred which they contend would militate against the exercise of any discretion to extend the limitation period, should the preconditions to do so be enlivened.
  17. [18]
    If the defendants’ arguments prevail the proceeding has been commenced outside the limitation period and is statute barred.
  18. [19]
    The plaintiff and his solicitor Mr Walsh, swore affidavits, gave oral evidence and were cross examined on the application.  The defendant’s solicitor, Mr Jarrett, also swore an affidavit.  He was not cross examined.
  19. [20]
    Mr Zimmerle, in his evidence, presented as an honest person, who, whilst somewhat taciturn in the witness box, appeared to be genuine and doing his best in an unfamiliar environment to recall events from some years past. He answered directly the questions which were put to him agreeing readily, for example, (as I set out further below) that whilst he may not presently recall telling a doctor something, if it was in the doctor’s notes which were made at the time, he must have told the doctor what was recorded there. 
  20. [21]
    He was a man who sought legal advice early, from a firm which should have been well placed to provide him with advice in relation to his long evolving picture of work related personal injury arising from exposure to chemicals and inadequate workplace conditions over the last years of his employment.

Applicable principles arising from the statutory scheme and the authorities

  1. [22]
    It is not in dispute between the parties that:[19]
    1. (a)
      the limitation period for an action for damages for negligence is three years from the date on which the cause of action arose;[20]
    2. (b)
      a cause of action in negligence is complete when damage is suffered consequent upon a wrongful act or omission. The injury is what can be regarded as beyond negligible;[21]
    3. (c)
      if a claim in negligence is commenced out of time, where it appears to the court:
      1. 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
      2. there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

section 31(2) of the LAA confers a discretion on a court to extend the limitation period so it expires at the end of one year after that date.

  1. [23]
    Material facts relating to a right of action are set out in s 30(1)(a) of the LAA as including the fact of the occurrence of negligence or breach of duty on which the right of action is founded, the identity of the person against whom the right of action lies, the fact the negligence or breach of duty causes personal injury, the nature and extent of the personal injury caused[22] and the extent to which the personal injury is caused by the negligence or breach of duty. 
  2. [24]
    A material fact relating to a right of action is of a decisive character:[23]

“… 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 –

  1. (i)
    That an action on a 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
  2. (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 an action on the right of action”.
  1. [25]
    A fact is not within the means of knowledge of a particular person at a particular time if, but only if, the person does not know that fact and has taken all reasonable steps to find the fact out before that time.[24]
  2. [26]
    For the purposes of the application only, the defendants accepted that the plaintiff could establish a prima facie case on breach of duty, causation and an entitlement to damages.[25] 
  3. [27]
    A ‘cause of action’ is the fact or combination of facts that gives rise to a right to sue, which, in an action for negligence are the wrongful act or omission and the consequent damage.[26]  It arises in negligence upon actual loss or damage, being non-minimal or measurable damage, recognised in law being suffered.[27] Knowledge of the legal implications of the known facts is not an additional fact which forms part if a cause of action.[28]  
  4. [28]
    As to whether something is a material fact of a decisive character relating to the right of action:
    1. (a)
      it is necessary to adopt a step by step approach, where the first step is to inquire whether the facts which the plaintiff was unaware of were material facts. Material facts are those which must be proved to establish the negligent conduct upon which the cause of action in negligence is founded. If they were, the next step is whether they were of a decisive character.  A fact is of such a character if it is a fact which must be proved to establish a cause of action.  If they were, then the next step is whether those facts were within the plaintiff’s means of knowledge before the relevant date. The means of knowledge is that of the plaintiff, not a hypothetical reasonable man;[29] 
    2. (b)
      Pincus JA has observed that whether a fact is ‘of a decisive character’ “depends on whether it should have induced the applicant to sue”;[30]
    3. (c)
      the quantum of a claim will be a material fact of a decisive character “… if it added substantially to the quantum of damages likely to be recovered assuming of course that without that newly discovered fact the amount otherwise would have been too small to worry about”;[31]
    4. (d)
      this is to be distinguished from whether the information merely makes the action ‘more worthwhile’; what is relevant is when there is a critical mass of information within the plaintiff’s means of knowledge that would justify bringing the action.[32]
  5. [29]
    The Court has to ask whether an applicant has acted unreasonably in failing to pursue further inquiries into the cause of their problems, bearing in mind the nature of the condition the applicant suffers from.[33] 
  6. [30]
    The person postulated by the words of s 30(1)(c) of the LAA as the person who has taken all reasonable steps is the particular person who has suffered particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the particular person in the circumstances of the applicant.[34]
  7. [31]
    The Court must determine the date by which the necessary material fact was within the plaintiff’s means of knowledge as this is the date that confers jurisdiction on the court to extend the limitation period for one year.[35]
  8. [32]
    The Court’s discretion to extend time under s 31(2) of the LAA falls to be exercised recognising the following propositions:[36]
    1. (a)
      the applicant, having satisfied the requirements of s 31(2) of the LAA, has the onus to show good reason for the exercise of the discretion in his favour;
    2. (b)
      the principle consideration guiding the discretion is whether a claim which is prima facie out of time can be fairly litigated;
    3. (c)
      if a fair trial is unlikely the discretion should not be exercised in the applicant’s favour.
  9. [33]
    Where the Court determines the plaintiff has shown that there was a material fact of a decisive character not within his means of knowledge until after a particular date, and a prima facie case, the discretion is enlivened. Normally that discretion would be exercised in favour of the plaintiff unless there is prejudice to the respondent. The applicant carries the onus throughout the application.[37] The prejudice should be ‘significant prejudice” or “actual prejudice of a significant kind.” The respondent to the application has the onus to raise relevant issues of prejudice whilst the applicant bears the persuasive onus.[38]

The detailed factual background

  1. [34]
    In addition to asthma from childhood, the plaintiff had a history as a heavy smoker.[39]
  2. [35]
    The plaintiff had a chest infection in 2007 which developed into pneumonia at the time.[40]  His oral evidence was that he believed he began to suffer asthma symptoms again around the same time he started employment at the Headland companies.[41]
  3. [36]
    Although some improvements were made to the spray booth within the 23 months of starting,[42] he gave evidence that he was unhappy with the spray booth conditions at Headland Shopfitting.[43] Because his complaints had been ignored, he wrote a list of complaints on the booth itself and he was unhappy that he was not supplied with a working mask.[44] He had his own mask which deteriorated over time and he needed a replacement which they didn’t give him.[45]  He could not recall how long after he started at Headland that his mask deteriorated or when he wrote the complaints on the side of the booth, but his guess was that the mask deteriorated after he wrote the complaints on the booth.[46] A photograph of that note contained in the affidavit of the respondent’s solicitors provides as follows:[47]

“Advised HR WHS – [illegible]

Of code of practice breach again

19/08/[illegible]

Paint Shop

Safety issues to be addressed

As required by law

Light boxes in Booth (illegal)

Inadequate suction in Booth

““ ventilation in shed

““ 3/12/[illegible] Poor lighting

She

Will be

Right mate”

  1. [37]
    The copy of the note is in black and white and it appears, from the differing thickness of some of the writing, to have had certain sections written in different pens, and/or at different times. The plaintiff was not cross examined about the contents of the note.  It appears from the contents of the handwritten note on the next page of the exhibits that the note on the booth (or some of it) may have been written on 3 December 2012 because what I can read of the latter note says, in part,  “PLEASE NOTE On 3/12/12 I wrote a list of … safety issues and … proceeded to …” which I infer is a reference back to the earlier note on the booth.[48]
  2. [38]
    The plaintiff’s further oral evidence was that the hierarchy he worked under didn’t change when the restructure occurred and nor did his unhappiness with the conditions at the workplace.[49] He pushed until he got his mask replaced, but he could not recall when that was.[50]
  3. [39]
    The plaintiff’s oral evidence was that he’d guess the little whirly bird was put in the roof of the shed of the spray booth about 2014.[51]
  4. [40]
    The plaintiff’s general practitioner’s notes record a consultation on 14 November 2014 in which is recorded the following:

“Has had 2/7 off work with sweats, nausea and abdominal pains after working with certain chemicals at work.  Spray painter for past six years, works in poorly ventilated room with strong chemicals, often gets these symptoms after contact with certain chemicals.  I strongly encouraged Shane to flag these issues with his employer.  Well currently after 2/7 off work”[52]

  1. [41]
    Mr Zimmerle swore he recalled having the symptoms but there was no proof it was from the chemicals. This is what he was surmising to the doctor at the time[53] and he believed it.[54]  He had told the doctor he worked in poorly ventilated room with strong chemicals and that he often gets these symptoms after contact with certain chemicals[55] and the doctor strongly urged him to discuss this with his employer.[56] He did then flag it with his employer.
  2. [42]
    The plaintiff’s evidence was that by 2014 he believed that a range of symptoms he had were caused by chemical exposure at work and that this exposure happened because his employer was breaching occupational health and safety standards under the relevant code, which he raised with his employer, including a need for lung testing.[57]  He swore that his principal issue with the failure to fix the booth was to be able to do his job properly. With the inadequate ventilation and suction it was hard to do the job properly without getting overspray on stuff he had just painted.[58]  The exposure to chemicals was something he looked at later, to lean on the employer because they weren’t in any hurry to fix it, but they might be if it was a health issue.[59]
  3. [43]
    In the exhibits to the Jarrett affidavit there is an email dated 5 November 2015 from the plaintiff to a “Melinda Cavanagh”.[60] Mr Jarrett describes it as being to the plaintiff’s employer.[61]  In it, amongst other things the plaintiff writes “…Prolonged use of the chemicals I use day in day out take a toll on the nervous system, emotional well being and physical well being which I have to deal with after I have clocked off…”.
  4. [44]
    Mr Zimmerle was made redundant in about April 2016 due to a downturn in work.[62] He agreed he was agitating for improved health conditions almost the entire period he worked for the two Headland companies[63] including improved spraying conditions so he could perform his duties adequately.[64]
  5. [45]
    There are notes of a record of a consultation with his general practitioner Dr Campbell on 30 April 2016 which record relevantly:

“long consult … mood low - has been made redundant, work was supposed to be organising screening for occupational lung disease – made him redundant instead.  Advised Shane to DW Fair Work Australia – see notes 14/11/14 when Shane brought this up with Dr Galea.  Lungs much better now not working in small enclosed room with spray paint.  Will return for RFTS and bring oc lung paperwork in.”[65] 

  1. [46]
    The plaintiff said orally he could recall that health monitoring was discussed in 2016 although he could not recall that lung function testing was specifically mentioned.[66]  He agreed he must have told his GP, Dr Campbell, in April 2016 that “Work was supposed to be organising screening for occupational lung disease. Made him redundant instead” if it was written in the note.[67]
  2. [47]
    There are notes of a record of a further consultation with Dr Campbell on 8 May 2016 which record relevantly:

“long consult spiro done on the background of significant occupational lung exposure FEV/FEV1 and FEV1 ~ 50 per cent predictability with no significant reversibility.  Long discussion.  Will consult lawyers XR and then return with decision re private versus public referral.

Actions: imaging request printed to Queensland X-Ray: CXR (environmental respiratory exposure – spray painter obstructive picture on spirometry with no reversibility)”[68]

  1. [48]
    The plaintiff agreed that this consultation was a fairly significant medical consultation for him.[69]  This was the first time he became aware his lung capacity or function had been reduced by half which was distressing for him to learn.[70] He didn’t recall Dr Campbell telling him that the condition wasn’t reversible.[71] He knew he had reduced lung capacity. He didn’t know whether that was entirely caused from work or was due to his asthma or what.[72] He agreed he’d been complaining to his employer and different doctors for about eight years, at this stage, about his exposure to chemicals at work[73] and he’d attributed his symptoms of nausea and abdominal pains to that chemical exposure two years earlier.[74] His evidence in respect of this consultation as that he was told not to do spray painting again so he started with TPD where the insurance pays your wages for a period of time.[75] He recalled the doctor telling him he couldn’t return to spray painting in that consultation.[76] He disagreed that by this time he knew he had a permanent respiratory condition that would prevent him from doing his normal work as a spray painter[77] although he agreed that was what she suggested but he still had to put food in his mouth.[78] He believed his respiratory condition was exacerbated from his time at the Headland companies[79] and he knew his exposure to chemicals at the Headland companies occurred in circumstances where he believed the employer was in breach of relevant safety standards[80] and none of his other employment had been done in unsafe conditions involving either poor ventilation or inadequate PPE masks.[81]
  2. [49]
    He denied it was his belief that when he realised he couldn’t keep working as a spray painter, he blamed the Headland companies for his loss of work and consulted Maurice Blackburn about making a claim.[82]  His evidence was “I still wasn’t sure at that stage as to the extent of  the lungs … until I spoke to a specialist, because that was just a backroom sort of blow in the thing test.  .. I didn’t really take it as gospel what the readings were at that stage ... because it had happened sort of so gradually over time that I didn’t really feel there was a 50% reduction to be honest”.[83] He agreed this was talking about the consultation with Dr Campbell.[84]
  3. [50]
    The plaintiff first consulted with the firm of solicitors on 10 May 2016 which, at that stage, was in relation to a total and permanent disability claim through his superannuation fund relating to his respiratory injury.[85] He swore that the only lawyers he saw over the period was Maurice Blackburn.[86] He recalled being asked by them about a full work history, he could not recall the dates but he did provide them with that history.[87] He agreed that the only employer in his history that involved exposure to chemicals without an adequate mask was the two Headland companies[88]  and the only significant amount of exposure he had to chemicals without an adequate mask was during his time with the Headland companies.[89]
  4. [51]
    Mr Walsh, the plaintiff’s solicitor, agreed that a 50 per cent reduction in lung function is a significant matter in the context of potential litigation arising from industrial exposure to chemicals[90] and, had his office obtained the plaintiff’s medical records from the Mount Warren Medical Centre when it first discussed the plaintiff’s claim with him, that record would have illustrated that he had a 50 per cent irreversible reduction in lung function from occupational exposure to chemicals.[91] He also agreed that the combined information that was available to his firm when the plaintiff first consulted it was:
    1. (a)
      that he had exposure to chemicals through inadequate ventilation and PPR Equipment at the Headland employers;
    2. (b)
      he had a 50 per cent permanent reduction of lung capacity, irreversible, from occupational exposure; and
    3. (c)
      there were no other discernible negligent exposures in the plaintiff’s work history in terms of inadequate PPE.[92]
  5. [52]
    Mr Walsh’s evidence was that those three factors would have given Mr Zimmerle, in his view, at that time, a worthwhile cause of action against the Headland companies.[93]
  6. [53]
    Work Health and Safety (WHSQ) records show the plaintiff called them on 17 May 2016 and lodged a complaint against his former employer, the second defendant.  He told WHSQ he had raised issues with his employer regarding ventilation in the spray booth and having to spray paint outside and he reported that his employer had not performed necessary health monitoring.[94]
  7. [54]
    The notes of a record of a further consultation with Dr Campbell on 28 May 2016 record relevantly “will explore WC options this week”. At this time the plaintiff was also referred to the Logan Respiratory Hospital Specialist outpatients department the contents of the referral being:
    1. (a)
      he was wanting an opinion on the management of his occupational lung disease;
    2. (b)
      he had been a spray painter for 30 years and had noticed that his shortness of breath and wheeze had worsened over time;
    3. (c)
      his workplace would often have him enclosed in rooms whilst spray painting and without protective equipment;
    4. (d)
      since ceasing work his wheeze and cough had improved but he was very concerned about the damage to his lungs.[95] 
  8. [55]
    He had a lung function test at the Mater Hospital on 9 August 2016.
  9. [56]
    Dr Lucy Burr, consultant respiratory physician, in a letter to Dr Campbell, the plaintiff’s general practitioner, dated as typed on 9 September 2016[96] recorded relevantly:

“Problems: … asthma with fixed airflow obstruction … exacerbations in association with spray painting – likely occupationally exacerbated asthma … Management Plan … Shane was reviewed in the respiratory clinic today.  His lung function remains completely stable.  He has not noticed much difference with the addition of Seebri …  lung function is stable and fixed at 64 per cent predicted … Shane trialled a return to spray painting, however found that the PPE was too difficult to breathe whilst wearing and his symptoms flared up.  I have therefore suggested that Shane consider a different career given the exacerbation of his symptoms whilst painting.  Shane will go to Centrelink and investigate what forms he needs to fill out for this to happen …

  1. [57]
    The plaintiff’s evidence was that he recalled Dr Lucy Burr at the Mater Hospital telling him to change occupation but he did not know the date she did that.[97] That didn’t surprise him because Dr Campbell had already indicated that as well.[98] He agreed he knew from two doctors by 6 September 2016 that he couldn’t safely work as a spray painter given the condition that he had.[99]  He agreed that by this time Dr Burr, a specialist at a leading hospital, had told him, face to face and in no uncertain terms that his spray painting days were over.[100]
  2. [58]
    The plaintiff lodged a claim for workers compensation with WorkCover Queensland on 19 September 2016, after the consultation with Dr Burr.[101] That claim form records the claim as ‘long term’, the injury as ‘lungs’ and in answer to the question “How did the injury happen?” contains the statement “long term exposure to chemicals”. It also contains notes “requested health monitoring*” and “* for at least five years” and “not having health monitored”.[102]
  3. [59]
    On 4 October 2016 he first told the superannuation and insurance team at Maurice Blackburn Lawyers that he’d lodged the workers compensation claim himself.[103] Mr Walsh gave evidence that his firm was first consulted about making a WorkCover claim in respect of the plaintiff’s lung condition on or about 5 October 2016.[104] When the plaintiff consulted their firm:
    1. (a)
      he advised of allegations that there were deficiencies in relation to ventilation and the provision of personal protective equipment (masks), and that his mask had run its course and he wasn’t provided with a new working mask;[105]
    2. (b)
      it was clear to him (the solicitor) that the plaintiff had a permanent respiratory condition[106] which had an impact on his lung condition;[107]
    3. (c)
      the plaintiff considered his respiratory condition was caused by his work exposure to the Headland companies;[108] and
    4. (d)
      he agreed they could have taken a detailed history of the plaintiff’s employment but acted within his instructions at the time.[109] A detailed employment history occurred later.[110]
  4. [60]
    In his affidavit, Mr Walsh deposes that the plaintiff was given general advice and the solicitors were not retained in relation to the plaintiff’s claim with WorkCover Queensland.[111] Mr Walsh confirmed his office did not assist the plaintiff in applying to WorkCover Queensland for compensation, which he did himself[112] and he only became aware at some time after the consultation had occurred that Dr Burr had told the plaintiff in September 2016 he would have to change occupations because of his respiratory condition.[113] He agreed this was a potentially significant fact or opinion for someone in the plaintiff’s circumstances.[114]  He agreed the doctors were all broadly in agreement over the diagnosis of the plaintiff.[115]
  5. [61]
    The plaintiff deposed that he was contacted by the personal injuries arm of the firm on 5 October 2016 and by someone from the dust and latent disease department on or about 6 October 2016.[116]
  6. [62]
    From WorkCover Queensland records, a claims representative had a telephone discussion with the plaintiff on 13 October 2016.  The notes made on the WorkCover communication report[117]  are to the effect that the plaintiff stated he started noticing symptoms two years prior, the symptoms were linked with his work duties in that if he had been spraying all week he would get sick and have withdrawals from the chemicals, his lung function was down to 55% and his GP had referred him to a specialist.[118] 
  7. [63]
    Notes of a further consultation with Dr Campbell, his general practitioner, on 17 October 2016 record relevantly:

“long consult … needs to find a new career as unable to continue work as spray painter due to occupational asthma.  Not going to proceed with law suit ...”[119]

  1. [64]
    The plaintiff does not deal with this consultation in his affidavit and he was not cross examined about it.
  2. [65]
    WorkCover accepted Mr Zimmerle’s claim on or about 7 December 2016.[120] Documents from WorkCover Queensland records dated 9 December 2016 record that the plaintiff reported he could not go back to his normal line of work. At that time he is recorded as having advised the WorkCover representative he had been working for two weeks with a labour hire company and he was finding he was struggling for air as he was labouring carrying things up and down stairs. He had also had two days grinding concrete but it was too hard on his lungs.[121]
  3. [66]
    On 2 February 2017 Dr Ian Brown, thoracic and sleep physician, provided a report to WorkCover.[122]  In that report Dr Brown opined: “…the major underlying diagnosis is persistent asthma with chronic airway obstruction”.  The doctor stated he believed that “… the asthma had been significantly affected by long-term workplace exposure to fumes from spray painting including extensive use of two pack Isocyanate containing sprays over some 30 years.  It is likely that the current level of lung function or associated disability will be permanent …  The injury is stable and stationery at present. It is possible the Claimant will benefit from further training in fields not associated with heavy physical loading or exposure to fumes and irritant gases  … he has a Class 3 (26 to 50 per cent impairment of the whole person) on the basis of his impairment in FEV1 of 55 per cent of predicted after bronchodilator.  I would attribute a 30 per cent impairment of the whole person as a consequence of his occupational lung disease”.
  4. [67]
    In an email to WorkCover on 11 February 2017 the plaintiff stated, relevantly “… I have been tracked down and offered several spray painter positions offering better money than my previous employer (SFHQ) but have had to decline …”.[123]
  5. [68]
    On 27 February 2017 WorkCover issued a Notice of Assessment to the plaintiff that he had a 30% whole person impairment by reason of “aggravation to underlying chronic lung disease due to spray painting”.[124] The covering letter enclosing the Notice of Assessment stated that he could accept the offer and seek damages for injury and, if he was successful in seeking damages, any workers compensation benefits he received, including the amount of the offer, would be deductible from those damages.
  6. [69]
    Documents from WorkCover Queensland records record that on 28 February 2017 the plaintiff contacted WorkCover to confirm that he could still pursue a common law claim if he accepted WorkCover’s offer of lump sum compensation.[125]
  7. [70]
    Mr Zimmerle told his solicitors that WorkCover had accepted his claim and of the notice of assessment on 20 March 2017.[126] On 15 May 2017 they received a copy of the WorkCover claim file and reviewed it.[127] That file included:[128]
    1. (a)
      the reports of Dr Eileen McMahon, respiratory registrar dated 11 August 2016 to the Mt Warren Park Medical Centre;
    2. (b)
      Dr Burr’s report dated 9 September 2016 to Mr Warren Park Medical Centre;
    3. (c)
      Dr Burr’s report dated 3 December 2016 to WorkCover;
    4. (d)
      Dr Ian Brown’s report dated 2 February 2017 to WorkCover; and
    5. (e)
      the plaintiff’s email of 11 February 2017 to WorkCover and the correspondence from WorkCover to the plaintiff enclosing the Notice of Assessment.
  8. [71]
    Mr Walsh agreed:
    1. (a)
      it was likely the plaintiff’s work history was important[129] and they could have taken a detailed history of his exposure to chemicals in his various employment roles when first discussing a compensation claim with him, but they acted with instructions they received;[130]
    2. (b)
      the plaintiff’s exposure history was likely to be important for the future conduct of the matter;[131]
    3. (c)
      they had obtained a history at around the time they sent a letter of instructions dated 17 April 2018 to Dr Ian Brown;[132]
    4. (d)
      the only employers who the plaintiff alleged had provided inadequate PPE in relation to exposure to chemicals were the Headland companies;[133] and
    5. (e)
      the information contained in the letter to Dr Brown could have been obtained from the plaintiff when he first consulted their office in relation to making a claim for compensation.[134] 
  9. [72]
    On 20 March 2017 Mr Zimmerle spoke with a paralegal in the dust diseases department and gave her information about his workers compensation claim, his current employment and his medical condition Between March 2017 and April 2017 Mr Zimmerle’s evidence was that he received advice from Maurice Blackburn that he could potentially have a common law negligence claim against the Headland companies, but that his case was complicated due to his very extensive employment history in which he had used various chemicals and it was only worthwhile pursuing a claim if his claims were worth considerably more than WorkCover benefits he’d already received and Medicare and Centrelink refunds. He agreed to Maurice Blackburn’s request to brief a barrister to assist in providing advice and assessing if it was worthwhile for him to pursue a common law claim.[135]  
  10. [73]
    In May 2017 Maurice Blackburn sought instructions from the plaintiff about his respiratory issues and employment history, which were received in about July 2017.[136] Mr Zimmerle’s solicitor deposes that at that time they gave the plaintiff general advice and a copy of their retainer.[137]  He further deposes they were instructed to act for the plaintiff in about October 2017.[138] Further instructions were sought in November 2017[139] which were not received from the plaintiff until about March 2018.[140] Mr Zimmerle deposed that there were delays in providing information to Maurice Blackburn because of the effects of his lung condition, in particular fatigue, and early starts of a new job he had obtained, with the last of the information about his employment history being sent to Maurice Blackburn on 13 March 2018.[141]
  11. [74]
    His evidence was that Maurice Blackburn told him that in order for them to advise him on whether he had a viable claim against his former employers, they needed to obtain a further medical opinion from Dr Brown as to whether or not his employment prior contributed to his injury.[142] 
  12. [75]
    That is consistent with Mr Walsh’s chronology in his affidavit where he deposes that counsel who had been briefed in November 2017 provided advice on 12 April 2018. A letter of instructions was sent to Dr Ian Brown on 17 April 2018 seeking a telephone conference to discuss the plaintiff’s injury and exposure history.[143]
  13. [76]
    That telephone conference occurred on 15 May 2018. Advice was subsequently provided to the plaintiff on 29 May 2018.[144] The plaintiff instructed his solicitors to proceed with his common law claim on 11 August 2018,[145] and the solicitor requested further documents which were received in April 2019.[146] The plaintiff’s solicitor deposes that the plaintiff had been terminated from his job and was not well.[147] On receipt of that material in April 2019, an urgent notice of claim for damages was prepared. The plaintiff’s solicitors served an urgent notice of claim for damages on 8 May 2019, the defendants’ solicitors offered conditions of waiver of compliance which were accepted, there was a compulsory conference at which the matter did not resolve and, ultimately, the claim and statement of claim were filed on 22 January 2020.[148]
  14. [77]
    Mr Walsh agreed that s 36A of the Workers Compensation and Rehabilitation Act 2003 (relating to latent onset injuries) prescribes that the date of the injury is the date of diagnoses by a doctor, not a specialist.[149] His experience, in the practice of dust diseases, or other conditions of the lung caused by chemicals or other toxins was that often a general practitioner’s diagnosis in respect of dust born diseases of the lungs was not accepted by WorkCover Queensland or his firm as admissible evidence; this can only be done by a qualified specialist.[150] 
  15. [78]
    Under cover of a letter dated 22 May 2019, the plaintiff’s solicitors disclosed to the defendants’ solicitors documents which included:
    1. (a)
      emails and screen shots of text messages between the plaintiff and his employer concerning health monitoring from October 2014;
    2. (b)
      emails from the plaintiff to his employer in November 2015 including attaching a spray painting code of practice; and
    3. (c)
      photographs taken by the plaintiff, one of the spray painting booth with safety issues written on the side and the other showing a handwritten note regarding health and safety issues.
  16. [79]
    Mr Walsh deposed that:
    1. (a)
      in our view it was advice provided to the plaintiff after Dr Brown’s opinion which induced the plaintiff to sue because it was not until this advice was provided that the plaintiff had the means of and knowledge to proceed with the claim because Dr Brown:[151]
      1. gave his opinion was that the plaintiff’s employment with the Headland companies from 2008 – 2016 caused the harm to the plaintiff and his earlier periods of employment or other conditions did not contribute to the damage which he suffered;
      2. the earlier periods of exposure before 2008 cannot be broken down or assessed;
      3. the isocyanate (chemical used in two pack sprays) can change non-asthmatics into asthmatics and turn asthmatics into more fragile asthmatics;
    2. (b)
      if the claim had been brought prior to the knowledge the plaintiff acquired on 29 May 2018, it would have been against all of his old employers and the defendants over a 30 year period based on the opinions at that time from Dr Burr and Dr Brown who relied on a 30 year exposure history to provide their diagnosis and opinion;[152]
    3. (c)
      the statutory charges to statutory authorities are:[153]
      1. WorkCover Queensland $108,353.57;
      2. Medicare Australia estimate $3,000;
      3. Centrelink estimate $30,000; and
    4. (d)
      in light of these and any reduction of a claim limited to the defendants (had it been brought originally against all former employers but been statute barred against all those other than the defendants), such a claim would not have been worth pursuing;[154]
    5. (e)
      whilst the costs of proceeding to a compulsory conference were estimated at $57,731.31, the costs recoverable by the plaintiff under the WCRA regime, assuming the claim settled for not less than $150,000 would be $2,510;[155] and     
    6. (f)
      having regard to the statutory refunds, the costs to be incurred and likely recoverable costs if the claim resolve and the importance of Dr Brown’s opinion relayed to the plaintiff on 29 May 2018, this was when the plaintiff was induced to sue, because his claim became commercially viable.[156]
  17. [80]
    Mr Walsh also deposes that the director, Mr Scott Headland is common to both the Headland companies[157] and liability was investigated by WorkCover after the statutory claim was lodged, precluding any likelihood the defendants are not relevantly aware of material facts as a consequence of the passage of time.[158]
  18. [81]
    The defendants’ solicitor, Mr Jarrett, deposed on the application that:[159]
    1. (a)
      whilst the second defendant’s factory had been left unchanged for a year after the business shut down (which he understood to have been in April 2016), thereafter equipment including the spray booths were sold or destroyed and records were shredded;
    2. (b)
      remaining records were transferred to storage in a storage unit which flooded in approximately 2017;
    3. (c)
      the order book for replacement PPE was no longer in the possession of the director of the second defendant;
    4. (d)
      a corporate entity retained by him to carry out factual investigations:
      1. had obtained statements from two witnesses who were co-workers;
      2. had been unable to obtain documents from the director of the second defendant, a book keeper for the second defendant or the accountants which had put the first defendant through a members’ voluntary liquidation.

Did the plaintiff’s cause of action first arise in November 2014[160] or when he was made redundant in April 2016[161] as the respondent contends ?

  1. [82]
    At November 2014 the evidence discloses:
    1. (a)
      Mr Zimmerle had a history of asthma and heavy smoking;
    2. (b)
      Mr Zimmerle had been unhappy with the conditions at the Headland companies for some years and he had been agitating for changes to his working conditions. Those changes included changes to the lights in the spray booth (which would not appear to be related to his symptoms) potentially on two occasions (as the reference to lighting is made twice in the note which is provided in the respondent’s materials) as well as suction in the booth (which could have been related to whether there was overspray) as well as ‘ventilation in shed’.  The plaintiff was not asked what he was referring to when he wrote about ‘ventilation in shed’ other than the timing of the installation of a whirly bird;
    3. (c)
      Mr Zimmerle told his GP on this occasion that he was experiencing symptoms after working with chemicals at work and that he often got those symptoms after contact with chemicals. I accept the plaintiff’s evidence that he was making a link between the chemicals and his symptoms, but that there was no proof of that in fact being so at that time. That evidence is supported by the filed materials. There is nothing in the doctor’s note of the consultation in November 2014 which indicates that Mr Zimmerle had been provided with any medical opinion that supported his suspicions. The doctor’s suggestion that these issues be flagged with his employer is a practical response to what the doctor was being told, not a medical diagnosis. Further, the medical records indicate a number of consultations in preceding years where there is reference to asthma, or asthma related symptoms, without there being any reference to a connection to work. It should be remembered that this man was an asthmatic and a cigarette smoker;
    4. (d)
      by late 2015 he was informing his employer by email that the chemicals were having physical effects on him; and
    5. (e)
      in so far as he had sought to have his employer provide health monitoring (which was provided for in the WHS Regulations[162]) the evidence was that it did not occur.[163] There is no evidence of a medical nature from this time in relation to the plaintiff’s occupational health.
  2. [83]
    A review of the medical notes from the general practice[164] indicates that whilst Mr Zimmerle attended the doctor on a further 10 occasions between November 2014 and 30 April 2016, the doctors’ notes do not record him raising during these visits symptoms akin to those raised in November 2014.
  3. [84]
    Given the above matters, I am not satisfied on the present state of the material before me that it is possible to be so specific as to say that as at 14 November 2014 the plaintiff’s cause of action had accrued. That is a medical question which does not appear to be addressed expressly on the medical evidence before me:
    1. (a)
      Dr Burr in her report of 6 September 2016 records ‘given the exacerbation of his symptoms whilst painting’ (without putting any more specific date on it);
    2. (b)
      Dr Burr in her report of 1 December 2016 to WorkCover records a history that he had ‘apparently developed symptoms around two year ago with difficulty breathing particularly when wearing his safety mask’ and  ‘I do expect on the history that his spray painting is probably contributing to his condition and it would be prudent for this gentleman to seek alternative employment’; and
    3. (c)
      Dr Brown’s opinion in the file note of 15 May 2018 is recorded as “It does not seem that client’s underlying asthma was triggered during his earlier exposure” which is a statement apparently responsive to being asked whether the combined two year exposure to fumes from spray painting prior to 2008  had contributed to the plaintiff’s asthma in any particular way.[165]

Did the plaintiff’s cause of action first arise on 8 May 2016[166] as the respondent contends or 9 September 2016[167] as the plaintiff contends ?

  1. [85]
    However, the position is different by the point at which the plaintiff is made redundant in April 2016.  The reason for the redundancy was unrelated to any medical conditions, it being due to a downturn in work.
  2. [86]
    There are three consultations in quick succession, one on 30 April 2016, the next on 8 May 2016 and the third on 28 May 2016.
  3. [87]
    In the first, he reports the fact of the redundancy, there is reference back to the consultation of 14 November 2014, there is the statement recorded “lungs much better now not working in small enclosed room with spray paint” and there is a further consultation contemplated.
  4. [88]
    That occurs on 8 May 2016 with his general practitioner Dr Campbell. Some spirometry testing was done, according to the notes which record it as a long consultation. The outcome of the spirometry tests is set out as ‘50 percent predictability, with no significant reversibility’. It records ‘long discussion’ and ‘consult lawyers’.  In this consultation, it also appears that a request was printed to Qld X-Ray: CXR (environmental respiratory exposure – spray painter obstructive picture on spirometry with no reversibility).
  5. [89]
    Mr Zimmerle’s own evidence about this consultation is that he was now aware his lung capacity as reduced by half and although he didn’t know the cause, he had been complaining about his exposure to chemicals for in the order of eight years. (I observe this period coincided with the period of his employment with the Headland companies). He sought to claim on his TPD insurance. He agreed his doctor had suggested to him he could not continue as a spray painter. He believed that his condition had been exacerbated by his time with the Headland companies and his exposure to chemicals there was, he believed, in breach of relevant safety standards. He also swore that none of his other employment was done in unsafe conditions involving either poor ventilation or inadequate PPE masks.
  6. [90]
    It is apparent from the fact of the referral for further imaging, that as at 8 May 2016 the general practitioner is in the process of ascertaining, medically, the extent of Mr Zimmerle’s problems, however, they had been clearly identified.[168]
  7. [91]
    This leads to the third consultation on 28 May 2016, of which the notes are extremely brief: the imaging ordered in the earlier consultation was evidently discussed, there will be an exploring of WC (which I infer is a reference to WorkCover or workers compensation) and a referral was written to the Logan Hospital respiratory services.[169] 
  8. [92]
    In the referral to the Logan Respiratory Hospital Specialist dated 28 May 2016,[170] it is noted that the plaintiff was very concerned about the damage to his lungs.
  9. [93]
    I accept Mr Zimmerle’s evidence set out at [49]  above was honestly given. I am of the view that it sits consistently with the objective position at the time, in that the diagnosis of the extent of his illness (and ergo the full extent of the damage he had suffered) was an ongoing process in the period from 8 May 2016 to 9 September 2016. However, damage had, on any view of it, been suffered prior to him ceasing work for the Headland companies.
  10. [94]
    Mr Walsh, his solicitor agreed in his oral evidence, set out at [52] above, the matters which were known to the plaintiff at that time were matters which, in Mr Walsh’s view, would have given Mr Zimmerle a worthwhile cause of action against the defendants at that time.
  11. [95]
    In so far as the plaintiff argues that the link did not occur to him in a meaningful sense until Dr Burr’s report of 9 September 2016, there are two reports of Dr Burr in 2016 in the materials.
  12. [96]
    The latter in time of them confirms:[171]
    1. (a)
      her registrar saw the plaintiff on 15 August 2016 and she saw him on 6 September 2016;
    2. (b)
      they had performed two respiratory function tests on him, both of which demonstrate a chronic obstructive defect consistent with chronic obstructive pulmonary disease;
    3. (c)
      on the history, the spray painting is probably contributing to the condition and it would be prudent for the plaintiff to seek other employment. (my emphasis added)
  13. [97]
    The other (dictated 6 September 2016)[172] sets out:
    1. (a)
      he was reviewed in the clinic today and his lung function was stable;
    2. (b)
      his compliance with medications is suboptimal;
    3. (c)
      he had trialled a return to spray painting but found the PPE too difficult to breath while wearing and his symptoms flared up, so she suggested he consider a different career, given the exacerbation of his symptoms whilst painting; and
    4. (d)
      he could quite easily work in another occupation that did not involve the inhalation of aerosols.
  14. [98]
    The registrar’s report dictated 9 August 2016 provides that “he first noted shortness of breath approximately 5 years ago, having been spray painting for 25 years at this point. He noticed an increasing need for using Ventolin and getting night sweats at the time of painting but subsided spontaneously one to two days post spray painting … over the last five years he also noticed a general deterioration in the shortness of breach and exercise tolerance over time …”[173]
  15. [99]
    The accrual of the cause of action does not depend on when any link occurred to the plaintiff even if the Court was to accept that the first time the link was made was at this time, (which may be difficult in the face of his email to his employer in November 2015, but this was not put to him in cross examination, and his evidence that Dr Campbell had told him in early May 2016 that he could not do spray painting again).
  16. [100]
    The cause of action accrues when the damage is suffered. In weighing all the material on the application. that has to be at a time or times when he was working for the Headland companies – so by no later than April 2016 when he is made redundant.
  17. [101]
    Did the plaintiff’s cause of action first arise on 9 September 2016 (or 2 February 2017) ?
  18. [102]
    In view of my finding that the cause of action had accrued by April 2016 it is not necessary to address further the later dates contended for by the plaintiff.

Is Dr Brown’s opinion on 15 May 2018 such as to enliven the discretion under s 31(2) of the LAA ?

  1. [103]
    The information which the plaintiff’s application relies on as being first obtained in May 2018 from Dr Brown is his opinion, after reviewing the plaintiff’s complete work history, that it was his employment with the Headland companies in the period from 2008 to April 2016 which caused the balance of the plaintiff’s injury and periods before 2008 could not be broken down or assessed.[174] 
  2. [104]
    This is said to be a material fact of a decisive character because it identified for the first time that it was the Headland companies who materially caused the plaintiff’s injury.[175]  It identified that the balance of the plaintiff’s damages could be recovered against the defendants, and rendered his claim commercially viable, which is what induced him to sue.[176]  If this submission was accepted, it would attract the operation of s 30(1)(a)(ii) (identity of the person against whom the right of action lies)  and (or) (v) (the extent to which the personal injury is caused by the negligence) of the LAA.
  3. [105]
    The plaintiff’s evidence was that he believed that his respiratory condition was exacerbated by his time with the Headland companies,[177] although he didn’t know the extent of it at the time he saw Dr Campbell on 8 May 2016.[178]  As I have set out above, analysis shows that the plaintiff was experiencing symptoms well prior to April 2016. As such, it cannot be said that the injury which he experienced was indivisible.[179]
  4. [106]
    It is true that Dr Brown’s first report to WorkCover dated 2 February 2017 opined, relevantly: “I believe that his asthma has been significantly affected by long term workplace exposure to fumes from spray painting, including extensive use of two pack isocyanate containing sprays over some thirty years…”.[180] 
  5. [107]
    The plaintiff accepted in his evidence on the application that it was only the Headland companies where he had worked in unsafe conditions involving either poor ventilation or inadequate PPE masks.[181] I interpolate that, as the defendants contend,[182] this was obviously a fact which was solely within the plaintiff’s knowledge, and one which must have been known to him at all times, because he was the person who had performed the earlier periods of work and he knew the conditions under which he worked.  Further, the plaintiff had previously provided this type of information to his general practitioner in May 2016, in that it is, to some extent, reflected in the referral information contained in the letter of referral dated 28 May 2016 from his general practitioner, Dr Campbell, to the Logan Hospital Respiratory Specialist Outpatients. The referral includes the following sentence:

“ …Shane has been a spray painter for 30 years and his sob and wheeze has worsened over time. … Shane’s workplace would often have him in enclosed rooms whilst spray painting and without protective equipment. He has noted that since he has ceased working there that his wheeze and cough have improved …”.[183]  (emphasis added)

  1. [108]
    This information is expressed in the singular so far as it refers to an employer and it makes the very complaints about his workplace that he was making about the working conditions and lack of PPE at the Headland companies. It is also consistent with what is contained in the registrar’s report dated 9 August 2016 back to Dr Campbell which is set out at [99] above.
  2. [109]
    Thus, he would have been able to provide that information for a briefing letter for Dr Brown, at that time, had he been asked for it.
  3. [110]
    Information which makes a plaintiff’s claim “more worthwhile” than it might previously have been thought to be does not constitute a material fact of a decisive character: the plaintiff must be able to demonstrate that, without the newly learnt fact, he would not, even with appropriate advice, have previously appreciated he had a worthwhile action which he should pursue in his own interest.[184]
  4. [111]
    The plaintiff had consulted lawyers as early as 10 May 2016, very shortly after his general practitioner told him he could not work as a spray painter. His solicitor agreed in evidence as I have set out at [52] and [53] above that that on the information which Mr Zimmerle had in or about May 2016, he had a worthwhile cause of action against the defendants.
  5. [112]
    Mr Walsh also accepted in his evidence that:
    1. (a)
      when the plaintiff first discussed his work with the Headland companies with the firm, the plaintiff clearly said there were deficiencies in relation to ventilation and PPE and he wasn’t being provided with a new mask;[185]
    2. (b)
      when the claim was first discussed with his office it was clear to him that Mr Zimmerle had a permanent respiratory condition which Mr Zimmerle considered was caused by his work exposure to chemicals whilst in the Headland companies’ employment;[186]
    3. (c)
      they could have taken a detailed employment history but acted within Mr Zimmerle’s instructions at the time[187] however they could have obtained the information in the schedule provided to Dr Brown in early 2018 when the plaintiff first contacted their office about the claim for compensation;[188]
    4. (d)
      the plaintiff first contacted their office about making a workover claim on about 5 October 2016;[189]
    5. (e)
      the detailed employment history was not obtained until early 2018 and the exposure history was likely to be important for the matter;[190]
    6. (f)
      the only employers who the plaintiff alleged had provided inadequate PPE were the Headland companies;[191]  and
    7. (g)
      the doctors all broadly agreed in their diagnoses of the plaintiff’s injuries.[192]
  6. [113]
    Whilst it may be accepted that the plaintiff first contacted his solicitors about a total and permanent disability claim in May 2016, by October 2016 when he was seeking advice from them about a Workcover claim:
    1. (a)
      this was very proximate to his general practitioner receiving Dr Burr’s opinion that he could not continue to work as a spray painter; and
    2. (b)
      the plaintiff knew and would have told his solicitors if they had asked him, that it was only the Headland companies who had failed to provide proper ventilation and PPE to him for his work duties and/or would have been able to furnish an employment history which pointed to that being the position. This is what he told them when he was asked by them to do so from sometime later in 2017.[193]
  7. [114]
    The plaintiff did not have other solicitors about these matters throughout this period.[194]
  8. [115]
    One can accept the observation of principle referred to at 4.7 of the plaintiff’s outline as to the policy of the Act, drawn from HWC v The Corporation of the Synod of the Diocese of Brisbane and Ors[195]  however the factual matrix of that case is very different. The plaintiff there suffered sexual abuse as a child and, whilst aware that this could have adversely affected his psychological well being, having turned his mind to it at one point as an adult, he concluded it had not done so and he did not suffer economic loss as a result of the alleged manifestation of those difficulties for about another 14 years.  The observation was made in that context.
  9. [116]
    In the case before me, however, the plaintiff had been raising his concerns about the impacts of the Headland companies’ actions upon him with them, then with his doctors and then with WorkCover, he was plainly keen to understand his legal rights and continued to provide information to solicitors retained on his behalf throughout the period of the retainer, and in response to requests from them for information. As such, the principle from HWC falls to be applied in a qualitatively different sense in this case, if it is to be applied.
  10. [117]
    Quinn v State of Queensland (No2) [196] can be distinguished from this case in a factual sense because, in that case, the medical opinions differed as to diagnosis. There, two specialists expressed different views about the negligence of the medical practitioner’s performance of surgery on the plaintiff in that case and it was only the later opinion, obtained outside the limitation period, which supported the plaintiff having a cause of action in negligence against the doctor.[197]  In this case, it seems readily apparent that had Dr Brown been provided with the plaintiff’s complete employment history earlier, he would have expressed his opinion about that earlier and, in any case, all the doctors broadly agreed on the diagnosis.
  11. [118]
    In those circumstances I accept the defendants’ submission that the reason no action was taken to preserve the limitation period in or around October 2016, when the firm was first consulted about a Workcover claim was because of his solicitors’ approach to an exclusionary process to maximise damages in an otherwise valid and worthwhile claim.[198]
  12. [119]
    I accept that the plaintiff took reasonable steps to instruct solicitors, doing so first in May 2016 and specifically in respect of his WorkCover claim in October 2016, very shortly after receiving Dr Burr’s opinion. There were, as the defendants point out, processes which the plaintiff’s solicitors could have taken at that time to preserve the plaintiff’s limitation period.[199] I observe they were not taken when it seems, on the material presently before the Court, that they should have been.  
  13. [120]
    In these circumstances, I find that the plaintiff’s solicitors obtaining Dr Brown’s opinion in May 2018 is not a material fact of a decisive character so as to support an extension of the limitation period pursuant to s 31(2)(a) LAA (noting the defendants accepted, for the purpose of the application, that s 31(2)(b) LAA was satisfied[200]). 
  14. [121]
    A such, it is not necessary to consider the issue of discretionary exclusion for prejudice.

The disposition of the application

  1. [122]
    I dismiss the plaintiff’s application.
  2. [123]
    I will hear the parties as to costs.

Footnotes

[1]  Affidavit of Shane Barry Zimmerle affirmed on an unspecified date (Zimmerle affidavit) [2]

[2]  Zimmerle affidavit [4] 

[3]  Paragraph 12 of the Statement of Claim

[4]  Applicant’s outline [2.1]. The letter containing the opinion is at p 58 of the exhibits to the affidavit of Jonathan Francis Walsh affirmed 12 January 2021 (Walsh affidavit)

[5]  Outline for the applicant plaintiff at [5.3]

[6]  S 302(2)(a)(ii) WCRA

[7]  Paragraph 12 of the statement of claim

[8]  Pages 62-65 of the Exhibits to the Walsh affidavit.

[9]  Applicant’s outline [2.1]. The file note is at page 97 of the exhibits to the Walsh affidavit. The fact of the communication of that information to the plaintiff is deposed to at paragraph 22 of the Walsh affidavit.

[10]  Paragraph 25 of the Walsh affidavit

[11]  Page 14 of the exhibits to the Walsh affidavit

[12]  Applicant’s outline [5.18] and [5.20]

[13]  Transcript 1-34 ll 14 – 16

[14]  Paragraph 13 of the defence

[15]  Respondents’ outline [27]

[16]  Respondent’s outline [28]. This date does not coincide with any meeting with Dr Burr: I have assumed this is a typographical error and the reference is meant to be September 2016 

[17]  The respondents’ outline refers to the plaintiff learning of the report of Dr Brown on 30 September 2020 however this appears to be an error; no such date appears in any material on the application

[18]  Respondents’ outline [2]

[19]  Applicant’s outline submissions at [4.1] – [4.5]; Respondents’ outline of submissions at [2] 

[20]  Section 11 Limitation of Actions Act 1974 (Qld) (LAA)

[21] Martindale v Burrows [1997] 1 Qd R 243 at 246 per Derrington J

[22]  S 30(1)(a)(iv) LAA

[23]  Section 30(1)(b) LAA

[24]  Section 30(1)(c) LAA

[25]  Respondents’ outline of submissions at [45]

[26] Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 per Wilson J at 245

[27] JNJ Resources Pty Ltd v Crouch & Lyndon (a Firm) [2015] 2 Qd R 115 at [6] per Jackson J; see also  Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 per Wilson J at 241

[28] Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 per Wilson J at 245, Dick v University of Queensland & BP Australia Ltd [1999] QCA 474 at [18] per Thomas JA

[29] Dick v University of Queensland & BP Australia Ltd [1999] QCA 474 at [26] – [29] per Thomas JA

[30] Ervin v Brisbane North Regional Health Authority [1994] QCA 424

[31] Taggart v The Workers Compensation Board of Queensland [1983] 2 Qd R 19 at 23 – 24 per Andrews SPJ

[32] Castillon v P&O Ports Limited (No 2) [2008] 2 Qd R 219 at [34] per Keane JA 

[33] NF v State of Queensland [2005] QCA 110 at [27] per Keane JA as his Honour then was

[34] NF op cit at [29]

[35] Dick v University of Queensland & BP Australia Ltd [1999] QCA 474 at [30] per Thomas JA

[36] NF op cit at [44] per Keane JA

[37] Ballingall v WorkCover Queensland and Ors [2017] QSC 133 at [4] per McMeekin J

[38] Ballingall v WorkCover Queensland and Ors [2017] QSC 133 at [55] – [56] per McMeekin J

[39]  See eg Walsh affidavit JFW6 p 46

[40]  Transcript 1-14 ll 5 – 6; Zimmerle affidavit [2] 

[41]  Transcript 1-13 ll 45 – 46

[42]  Transcript 1-15 ll 6 -13

[43]  Transcript 1-14 ll 8 - 10

[44]  Transcript 1-14 ll 12 - 20

[45]  Transcript 1-14 ll 22 – 25

[46]  Transcript 1-14 ll 27 - 33

[47]  Affidavit of Damien Paul Jarrett sworn 13 May 2021 (Jarrett affidavit) DPJ1 p 58

[48]  Jarrett affidavit DPJ1 p 59

[49]  Transcript 1-14 ll 42 - 46

[50]  Transcript 1-15 ll 1-4

[51]  Transcript 1-15 l 24

[52]  Jarrett affidavit p 80 in the Exhibits. On p 77 there are notes of a consultation for acute asthma in April 2014 – with no reference to work at that time. On p 72 there is a reference in notes of a consultation in July 2012 of ‘asthma and reflux’ with no reference to work. On p 70 of the notes there is a reference of a consultation ‘For flu inj. – Asthma” again, without reference to work.  On p 68 he had a consultation in August 2011 the notes of which record that he had a callus to his right hand (spray painter); notably, there is no reference to any breathing difficulties at that time. On p 66 in notes of a consultation on 21 April 2011 there is a reference to asthma but no reference to work. On p 63 there is a reference to a bit of sob and wheezes; no reference to work in a consultation which appears to have occurred in September 2009.

[53]  Transcript 1-17 ll 22 – 24

[54]  Transcript 1-17 l 26

[55]  Transcript 1-17 ll 35 - 36

[56]  Transcript 1-17 ll 40 – 41

[57]  Transcript 1-17 l 46 – 1-18 l 10. The questions he was asked was no more specific in date terms than as to identify the year as 2014.

[58]  Transcript 1-15 ll 32 - 34

[59]  Transcript 1-15 ll 36 – 40

[60] Jarrett affidavit DPJ1 p 57

[61]  Jarrett affidavit DPJ1 p 6

[62]  Zimmerle affidavit paragraph 3

[63]  Transcript 1-17 ll 4 – 6

[64]  Transcript 1-17 ll 9 - 10

[65]  Page 87 of the Exhibits to the Jarrett affidavit.

[66]  Transcript 1-16 ll 6 – 9

[67]  Transcript 1-16 ll 31-45

[68]  Page 88 of the Exhibits to the Jarrett affidavit.

[69]  Transcript 1-18 ll 21 – 22

[70]  Transcript 1-18 ll 21 – 32

[71]  Transcript 1-18 ll 34 -36

[72]  Transcript 1-19 ll 2 – 5

[73]  Transcript 1-19 ll 7 - 9

[74]  Transcript 1-19 ll 11 – 12

[75]  Transcript 1-19 ll 21 – 24

[76]  Transcript 1-19 ll 28 – 29

[77]  Transcript 1-21 ll 9 - 13

[78]  Transcript 1-21 ll 15 - 17

[79]  Transcript 1-21 ll 19- 21

[80]  Transcript 1-21 ll 27 - 29

[81]  Transcript 1-21 ll 31 – 32

[82]  Transcript 1-21 ll 34 - 37

[83]  Transcript 1-21 ll 37 – 43

[84]  Transcript 1-21 ll 44 – 45

[85]  Zimmerle affidavit [4]

[86]  Transcript 1-19 ll 34 – 35

[87]  Transcript 1-19 ll 37 - 41

[88]  Transcript 1-20 ll 17 - 19

[89]  Transcript 1-20 ll 27 – 29

[90]  Transcript 1-10 ll 1-3

[91]  Transcript 1-10 ll 5 - 9

[92]  Transcript 1-10 ll 11 - 25

[93]  Transcript 1-10 ll 23-25

[94]  Jarrett affidavit [7]

[95]  Jarrett affidavit [6(d)] and DPJ2 p 109

[96]  Walsh Affidavit JRW6 p 68

[97]  Transcript 1-20 ll 31 - 34

[98]  Transcript 1-20 ll 35 - 36

[99]  Transcript 1-20 ll 38 – 39

[100]  Transcript 1-22 ll 1 – 9

[101]  Zimmerle affidavit [5], Walsh affidavit [11]

[102]  Jarrett affidavit JJP4 p 123

[103]  Zimmerle affidavit [6]

[104]  Transcript 1-12 ll 31 – 33

[105]  Transcript 1-7 ll 15 - 21

[106]  Transcript 1-7 ll  23 – 24

[107]  Transcript 1-7 ;ll 27 - 28

[108]  Transcript 1-7 ll 37 – 40

[109]  Transcript 1-7 ll 42   44

[110]  Transcript 1-7 ll 46 – 47

[111]  Walsh affidavit [12]

[112]  Transcript 1-10 ll 35 - 37

[113]  Transcript 1-10 ll 27 – 30

[114]  Transcript 1-10 ll 44 – 45

[115]  Transcript 1-11 ll 18 – 19

[116]  Zimmerle affidavit [7] and [8]

[117]  Jarrett affidavit DPJ5 p 134

[118]  Jarrett affidavit [9(a)]; Jarrett affidavit DPJ5 pp 134 and 135

[119]  Page 90 of the Exhibits to the Jarrett affidavit.

[120]  Walsh affidavit [13]

[121]  Pages 127 and 128 of DPJ5 to the Jarrett affidavit 

[122]  Pages 62-65 of the Exhibits to the Walsh affidavit.

[123]  Page 141 of DJP6 to the Jarrett affidavit

[124]  Page 146 of DJP7 to the Jarrett affidavit

[125]  Page 126 of DPJ5 to the Jarrett affidavit

[126]  Zimmerle affidavit [11] 

[127]  Walsh affidavit  [10]

[128]  Jarrett affidavit [13]

[129]  Transcript 1-8 ll 1 - 5

[130]  Transcript 1-8 ll 7 - 11

[131]  Transcript 1-8 ll 15 - 17

[132]  JRW6 to the Walsh affidavit; Transcript 1-8 ll 35 – 36 

[133]  Transcript 1-9 ll 19 - 21

[134]  Transcript 1-9 ll 29 - 33

[135]  Zimmerle affidavit [11]

[136]  Walsh affidavit [15] – [16]

[137]  Walsh affidavit [17]

[138]  Walsh affidavit [17]. Mr Zimmerle deposes he told his psychiatrist in about October 2017 that his lawyers were looking into a negligence claim against the Headland companies and if it was successful he’d have to refund WorkCover what they had paid to him already: Zimmerle affidavit [12]

[139]  The defendants’ solicitor deposed that he received in disclosure from the plaintiff’s solicitor a number of Material Safety Data Sheets which were printed by the firm on 16 November 2017: Jarrett affidavit [14]

[140]  Walsh affidavit [19]

[141]  Zimmerle affidavit [13] and [14]

[142]  Zimmerle affidavit [14]

[143]  Walsh affidavit [20]

[144]  Mr Zimmerle deposes he was told on this occasion that based on Dr Brown’s opinion, counsel felt a common law claim could be commenced: Zimmerle affidavit [15]

[145]  Zimmerle affidavit [17]

[146]  Zimmerle affidavit [18], Walsh affidavit [23]

[147]  Walsh affidavit [23]; Mr Zimmerle also deals with these matters at Zimmerle affidavit [18]

[148]  Chronology forming part of annexure A to the applicant’s outline

[149]  Transcript 1-11 ll 21 – 30

[150]  Transcript 1-11 ll 32 -  42;  1-12 ll 6 - 11

[151]  Walsh affidavit [41]

[152]  Walsh affidavit [42]

[153]  Walsh affidavit [44]

[154]  Walsh affidavit [44]

[155]  Walsh affidavit [45]

[156]  Walsh affidavit [46]

[157]  Walsh affidavit [53]

[158]  Walsh affidavit [54]

[159]  Jarrett affidavit [15] and [16]

[160]  Respondent’s outline [63]

[161]  Transcript 1-41 ll 1-2

[162]  DPJ1 p 31 Jarrett affidavit

[163]  JRW6 p 40 Walsh affidavit

[164]  DJP2 pp 80 – 86 Jarrett affidavit

[165]  Walsh affidavit JRW7 p 97

[166]  Respondents’ outline [62], [64]

[167]  Applicant’s outline [5.8]

[168]  DPJ2 Jarrett affidavit, p 88

[169]  DPJ2 Jarrett affidavit, p 88

[170]  DPJ2 Jarrett affidavit, p 109 and following

[171] JRW6 Walsh affidavit, p 59. Written to WorkCover and dated as dictated 1 December 2016

[172]  JRW6 Walsh affidavit, p 58

[173]  Walsh affidavit JRH6 p 54

[174]  Applicant’s outline [5.16]

[175]  Applicant’s outline [5.17 ]

[176]  Applicant’s outline [5.19]

[177]  Transcript 1-21 ll 20-21

[178]  Transcript 1-21 ll 24-25

[179]  Cf Applicant’s outline [5.20]

[180]  Walsh affidavit JRW6 p 64

[181]  Transcript 1-21 ll 31-32

[182]  Respondents’ outline at [29]

[183]  Walsh affidavit JRW6 p 45

[184] Castillon v P&O Ports Limited (No 2) [2008] 1 Qd R 219 at 231, [30] – [50] per Keane JA, where His Honour also set out a passage from Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325 at 333

[185]  Transcript 1-7 ll 15-21

[186]  Transcript 1-7 ll 37 - 40

[187]  Transcript 1-7 ll 46-47

[188]  Transcript 1-9 ll 29- 33

[189]  Transcript 1-12 ll 31-33

[190]  Transcript 1-8 ll 18-11, 14-16

[191]  Transcript 1-9 ll 19-21

[192]  Transcript 1-11 18-19.

[193]  Transcript 1-19 37 – 41

[194]  Transcript 1-19 ll 31-35

[195]  [2009] QCA 168

[196]  [2016] QDC 156

[197] Quinn v State of Queensland (No 2) op cit at [14] and [40]

[198]  Respondents’ outline [37]

[199]  Respondents’ outline [39] – [41]

[200]  Respondents’ outline [44] – [47]

Close

Editorial Notes

  • Published Case Name:

    Zimmerle v WorkCover Queensland & Anor

  • Shortened Case Name:

    Zimmerle v WorkCover Queensland

  • MNC:

    [2022] QDC 143

  • Court:

    QDC

  • Judge(s):

    Dann DCJ

  • Date:

    24 Jun 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ballingall v WorkCover Queensland [2017] QSC 133
3 citations
Jump To
Cite 1 - [2017] QSC 133
Cite 2 - [2017] QSC 133
Cite 3 - [2017] QSC 133
Carmo v Ford Excavations Pty Ltd (1984) 154 C.L.R 234
4 citations
Jump To
Cite 1 - (1984) 154 C.L.R 234
Cite 2 - (1984) 154 C.L.R 234
Cite 3 - (1984) 154 C.L.R 234
Cite 4 - (1984) 154 C.L.R 234
Castillon v P&O Ports Limited (No 2) [2008] 1 Qd R 219
1 citation
Jump To
Cite 1 - [2008] 1 Qd R 219
Castillon v P&O Ports Ltd[2008] 2 Qd R 219; [2007] QCA 364
2 citations
Jump To
Cite 1 - [2008] 2 Qd R 219
Cite 2 - [2008] 2 Qd R 219
Ervin v Brisbane North Regional Health Authority [1994] QCA 424
2 citations
Jump To
Cite 1 - [1994] QCA 424
Cite 2 - [1994] QCA 424
HWC v The Corporation of the Synod of the Diocese of Brisbane [2009] QCA 168
2 citations
Jump To
Cite 1 - [2009] QCA 168
Cite 2 - [2009] QCA 168
JNJ Resources Pty Ltd v Crouch & Lyndon (a firm)[2015] 2 Qd R 115; [2014] QSC 13
2 citations
Jump To
Cite 1 - [2015] 2 Qd R 115
Cite 2 - [2015] 2 Qd R 115
Martindale v Burrows [1997] 1 Qd R 243
2 citations
Jump To
Cite 1 - [1997] 1 Qd R 243
Cite 2 - [1997] 1 Qd R 243
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
2 citations
Jump To
Cite 1 - [1988] 2 Qd R 325
Cite 2 - [1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110
4 citations
Jump To
Cite 1 - [2005] QCA 110
Cite 2 - [2005] QCA 110
Cite 3 - [2005] QCA 110
Cite 4 - [2005] QCA 110
Quinn v State of Queensland (No 2) [2016] QDC 156
3 citations
Jump To
Cite 1 - [2016] QDC 156
Cite 2 - [2016] QDC 156
Cite 3 - [2016] QDC 156
Taggart v Workers' Compensation Board of Queensland [1983] 2 Qd R 19
2 citations
Jump To
Cite 1 - [1983] 2 Qd R 19
Cite 2 - [1983] 2 Qd R 19
University of Queensland v Dick[2000] 2 Qd R 476; [1999] QCA 474
4 citations
Jump To
Cite 1 - [1999] QCA 474
Cite 2 - [1999] QCA 474
Cite 3 - [1999] QCA 474
Cite 4 - [1999] QCA 474

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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