Enkelmann v Queensland Windows Pty Ltd
[2002] QSC 318
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- Unreported Judgment
- Enkelmann v Queensland Windows Pty Ltd[2002] QSC 318
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Enkelmann v Queensland Windows Pty Ltd[2002] QSC 318
Enkelmann v Queensland Windows Pty Ltd[2002] QSC 318
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
DELIVERED ON: | 11 October 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 July 2002 |
JUDGE: | Mullins J |
ORDER: | That the period of limitation for proceeding S 11319 of 2000 be extended, so that it expires at the end of 1 year after 14 April 2000. |
CATCHWORDS: | LIMITATION OF ACTIONS – APPLICATION FOR EXTENSION – Limitation of Actions Act 1974 (Q), s 30(1)(c), s 31(2) – damages claim for negligence by plaintiff who developed occupational asthma through inhalation of Akwa wood dust in course of employment – whether being incapacitated amounting to permanent impairment of the whole person of 50% was within means of knowledge of plaintiff 1 year prior to commencing proceeding – whether plaintiff took all reasonable steps to find out relevant material fact relating to permanency and extent of impairment – not reasonable in all the circumstances to expect plaintiff to ask advice or question on this aspect when plaintiff’s return to the same employment on basis that Akwa dust was to be avoided was endorsed by those treating and dealing with him in relation to his occupational asthma LIMITATION OF ACTIONS – APPLICATION FOR EXTENSION – Limitation of Actions Act 1974 (Q), s 30(1)(c), s 31(2) – no significant prejudice to defendant from extension of time – time limit extended Limitation of Actions Act 1974 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 |
COUNSEL: | GJ Cross for the plaintiff/applicant |
SOLICITORS: | Turner Freeman for the plaintiff/applicant |
[1] MULLINS J: Malcolm Douglas Enkelmann (“the applicant”) who is the plaintiff in this proceeding is applying pursuant to s 31(2) of the Limitation of Actions Act 1974 (“the Act”) for an order that the period of limitation for the action pursued in this proceeding be extended for 1 year from 14 April 2000. The defendant in the proceeding, Queensland Windows Pty Ltd (“the respondent”), opposes the application.
[2] The action which the applicant seeks to pursue in this proceeding is one for damages for negligence against the respondent as his employer arising out of the applicant’s claim that he contracted occupational asthma in the course of his employment with the respondent up until 31 December 1995. It was common ground between the parties that the latter date was the relevant date as the cut off for any liability at common law on the part of the respondent to the applicant, because that date immediately precedes the date of commencement on 1 January 1996 of relevant amendments to the Workers’ Compensation Act 1990, particularly ss 182A to 182E.
[3] The applicant’s cause of action is therefore one to s 31 of the Act applies. Section 31(2) of 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 1 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.”
[4] Section 30(1)(b) and (c) of the Act provides:
“(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 an action on the right of action;
(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.”
The definition of “appropriate advice” for the purpose of s 30(1) of the Act is set out in s 30(2):
“‘appropriate advice’, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”
Facts
[5] The applicant was born on 9 August 1959. He commenced working for WC Pronger & Sons Pty Ltd trading as Pronger Industries as an apprentice carpenter/joiner on or about 6 May 1975. The respondent acquired the business of Pronger Industries on 19 October 1992.
[6] For the first 8 years of his employment the applicant worked mainly on timber and ply doors, working with silky oak, meranti, hoop pine and western red cedar. His duties included docking timber, nailing frames, window framing and wooden door manufacture. After the first 8 years, the applicant started working on timber frames which included routing, docking, planing and sanding.
[7] From about 1982 Pronger Industries’ premises were located at Pronger Parade Industrial Estate at Gympie.
[8] In or about 1992 Pronger Industries started using Akwa wood products which were imported from Malaysia. Akwa products were used increasingly until Akwa products made up about 50% of the wood products that were being used at Pronger Industries.
[9] When the applicant started using Akwa wood, he noticed he experienced symptoms which he did not experience when using other wood products such as silky oak and western red cedar. These symptoms were aggravation of his sinuses, watering and burning of his eyes, tightness in his chest and sneezing.
[10] In about 1993 Pronger Industries bought a new bandsaw to rip timber and this caused a massive increase in the amount of Akwa wood dust and other types of wood dust being circulated in the air.
[11] Between 1992 and approximately 1996 the applicant complained at meetings of employees with management about the difficulties he was experiencing when using Akwa wood and the dust it created.
[12] During this period the applicant also complained about using a paper face mask while wearing eye glasses which would fog up if the paper mask was worn, making it impossible to perform the work properly and concerns were raised about the blower exhaust fans which were often clogged and ineffective which, according to the applicant, resulted in massive amounts of dust staying within the workshop. The applicant described the paper masks as “thin and flimsy” and that dust would often come through the mask during the working day.
[13] The applicant stated that these meetings of employees with management did not result in better eye glasses, better face masks or a better system of wood dust extraction via the blower exhaust machine and the meetings were subsequently disbanded.
[14] In para 21 of the applicant’s affidavit filed on 21 June 2002 (“the first affidavit”), the applicant stated:
“In or about 1995 I first noticed that I was becoming a little unfit. However, even with attendance at my General Practitioner, Dr Young, I was not prescribed a Ventolin puffer or told that I had any condition of concern.”
[15] After this unfitness had continued for about 3 years, in about August 1998 the applicant suffered a respiratory tract infection and attended upon Dr Young who referred the applicant to thoracic physician, Dr Michael Bint. Dr Bint first saw the applicant in or about early October 1998 when the applicant had a cough, wheeze and chest tightness with some breathlessness. The applicant stated in para 23 of his first affidavit:
“I informed Dr Bint that I had noticed an association of my symptoms of wheezing, chest tightness and breathlessness, to exposure to Akwa dust at Pronger Industries. My symptoms first commenced when Akwa wood was introduced at Pronger Industries.”
[16] The applicant had noted that his symptoms improved on weekends when he was away from the workplace, but deteriorated when he returned to the workplace.
[17] The applicant gave oral evidence on the hearing of this application. He stated that Dr Bint suggested to him in this first consultation that it was most likely that his symptoms were associated with the Akwa sawdust.
[18] Dr Bint reported to Dr Young on the first consultation with the applicant as follows:
“I strongly suspect that he has occupational asthma. He has no history of childhood asthma, and has been symptomatic with wheeze, chest tightness and breathlessness with upper airway response on exposure to akwa over a five year period. He has developed significant small airways disease, which seems excessive for his very minimal smoking history.
To better link his airway hyperreactivity with his workplace exposure, I have asked that he begin a peak flow chart to identify variability triggered by akwa dust. I have asked that he consider his future employment options, and if he does have occupational asthma he will need to assiduously avoid exposure, or risk progressive disability due to lung disease.”
[19] Dr Bint reviewed the applicant on 30 October 1998 and in a letter of the same date to Dr Young, Dr Bint stated:
“His peak flow chart demonstrates dips after exposure to akwa dust, and certainly after a three week period where he allowed himself to be exposed to the akwa dust, his lung function is significantly impaired.”
Dr Bint stated in that letter that he had informed the applicant “that I have little doubt that his asthma is occupationally induced, and due predominantly to exposure to akwa”. That letter also recited that Dr Bint had suggested that it was a “compensable illness” and then stated:
“He feels uncomfortable in undertaking compensation as he fears for his job prospects but I have told him that my understanding is that as this is a compensable illness, his rights would be protected. Nevertheless he wants to defer this action for some eight weeks till after Christmas and I have told him that as a second best option, he should take vigorous avoidance measures in the workplace, and continue with his asthma treatment.”
[20] There was no suggestion in Dr Bint’s letter that the applicant was permanently disabled and Dr Bint clearly did not advise the applicant at that stage that he may be unable to continue working, but endorsed the applicant’s proposed course of action that he work until Christmas, provided he avoided dust in the workplace. There was no suggestion made on behalf of the respondent and nor was it likely from the contents of the letter that Dr Bint was alluding to any action for damages, when giving advice to the applicant that he had a “compensable illness”.
[21] The applicant took recreational leave between 23 December 1998 and 16 January 1999. Prior to returning to work, he was reviewed by Dr Bint on 14 January 1999. Dr Bint in his report to Dr Young dated 15 January 1999 noted that the applicant felt “much improved in the 3 weeks away from work”, but Dr Bint was of the opinion that the applicant still had “quite significant airflow limitation consistent with ongoing asthma”. Dr Bint also stated that the evidence “strongly supports a diagnosis of occupational asthma due to aqua (sic) dust”. Dr Bint gave the applicant a certificate for workers’ compensation.
[22] The applicant completed an application for compensation on 15 January 1999 describing his injury as “occupational asthma” which happened over a period of time and nominated the timing of the injury as August 1998.
[23] Dr Bint reviewed the applicant on 1 February 1999. Dr Bint prepared a report for WorkCover dated 1 February 1999, a copy of which was read by the applicant in the latter part of July 1999, in which Dr Bint expressed the following opinion:
I felt that there was a strong probability that he had asthma either directly caused by exposure to ‘akwa’, or at the very least significantly exacerbated by ‘akwa’ exposure. He undertook a peak flow chart in which he measured his peak flows both at home and in the workplace, and this demonstrated unequivocal peak flow dips on exposure to ‘akwa’, and some improvement when he was removed from the workplace. Despite quite intensive treatment with inhaled steroids he has persistent, and fixed airflow limitation, with a demonstrated 10% 200ml acute bronchodilator response on most occasions.
In my opinion he has asthma which is a result of, or at least significantly exacerbated by, exposure to ‘akwa’ sawdust in the workplace. Because of his persistent airflow limitation despite intensive treatment I have advised complete avoidance of exposure to this material, in attempt to optimise his lung function. In my opinion, his workplace exposure is entirely causative of his disability and incapacity and his exposure occurred in his normal daily activities in the workplace.”
[24] Although Dr Bint referred to the applicant’s spirometry tests showing “severe small airways airflow limitation with a borderline significant acute bronchodilator response” and that the applicant’s airflow limitation was “fixed” or “persistent” in the report dated 1 February 1999, there was no reference made by Dr Bint in respect of the likely permanency or otherwise of the condition. The advice of Dr Bint was limited to avoiding exposure to the Akwa sawdust in the workplace and was not directed on any limitation on the applicant’s capacity otherwise to undertake employment. Instead Dr Bint referred in the report dated 1 February 1999 and a letter of the same date to Dr Young to steps “to optimise [the applicant’s] lung function”.
[25] Dr Bint reviewed the applicant on 1 March 1999. In his report of that date to Dr Young, Dr Bint noted that the applicant had less wheezing and breathlessness and his peak flow had improved, but he did have persistent wheeze and breathlessness and his spirometry was unchanged. Dr Bint expressed the following opinion in that letter:
“He has therefore developed fixed airflow limitation. Clearly Aqua (sic) has played a role in this, and has been associated with significant occupational asthma.”
Again this report does not deal with the permanency of the fixed airflow limitation.
[26] Dr Bint reviewed the applicant on 25 March 1999 and provided a report to Dr Young of the same date in which he stated:
“Unfortunately his level of disability is unchanged in that he has persistent exercise induced breathlessness, though he has noticed that he has had less airway irritability and certainly no upper airway congestion, on avoidance of akwa sawdust. His advanced lung function confirms moderately severe small airways disease with gas trapping, and no evidence of emphysema.”
On the basis that the applicant informed Dr Bint that there had been no change in the work environment, Dr Bint gave the applicant a certificate for a further month off work.
[27] The applicant received a copy of the letter that Dr Bint sent to his employer dated 30 March 1999 in which Dr Bint confirmed that the applicant has “moderately severe fixed airflow limitation” which Dr Bint strongly suspected was due to asthma related to Akwa sawdust. Dr Bint set out the advice that he had given to the applicant which was to avoid any exposure to Akwa sawdust and that his lung function was such that he would not be disabled from working for his employer, as long as he avoided exposure to Akwa sawdust.
[28] At the request of WorkCover, the applicant was examined by allergist Dr Graham Solley on 23 April 1999. Dr Solley prepared a report dated 29 April 1999 for WorkCover which was made available to and read by the applicant in the latter part of July 1999. Dr Solley recited that the applicant was “concerned now that he is developing chronic respiratory tract problems. He indicated for example that mowing the lawn or climbing stairs will induce quite significant breathing difficulty and he does at times have some wheezing at night. These symptoms were never present prior to developing the respiratory tract problems in the past five years.”
[29] Dr Solley relied on the specific lung function tests carried out by Dr Bint and did not consider it necessary to carry out a specific skin test with Akwa wood dust. Dr Solley was of the opinion that Akwa wood dust was the primary reason for the applicant’s recurrent rhinitis, conjunctivitis and asthma. Dr Solley concluded:
“I believe that the problem has become a permanent one but if he can avoid exposure to wood dust, there is no reason why his upper or lower respiratory tract problems should worsen.
I understand that he may be able to gain further employment at Prongers Industries working with aluminium. I would think that this would be a reasonable job for him to carry out provided that the area that he would be placed in is sterile in regard to his exposure to Akwa wood dust particles.”
[30] Although Dr Solley did express the opinion that the problem which was the cause and effect relationship between Akwa wood dust and the applicant’s respiratory tract symptoms was permanent, he also did not expressly equate the problem with any diminution in working capacity, as he considered it was reasonable for the applicant to continue to work for the respondent in the aluminium section where the applicant would not be exposed to Akwa wood dust particles.
[31] The applicant made a statement to WorkCover on 18 May 1999 in which, on Dr Bint’s advice, he requested that the workplace be checked out prior to his return to work to ensure that he would be able to work without being affected by Akwa wood dust.
[32] The applicant was aware that monitors were put up in the workplace and the result was that he was told it was safe for him to work in the aluminium section. The Department of Employment, Training and Industrial Relations (“DETIR”) provided WorkCover with a report dated 15 June 1999 in respect of the inspirable dust monitoring undertaken by DETIR at Pronger Industries at the request of WorkCover in order to measure the levels of Akwa wood dust in the air. The monitoring took place on 27 May and 4 June 1999 for approximately 4 hours each day.
[33] Although the report concluded that inspirable dust levels at Pronger Industries in the wood working areas may pose a significant risk to health, it was concluded that in the metal working area of the workshop, exposure to wood dust did not appear to pose a risk to health.
[34] During cross-examination on the hearing of this application, it was put to the applicant that there was no improvement in his condition over the period of 6 months to June 1999 in which there had been no exposure to the Akwa dust. The applicant responded that:
“Michael Bint said that it was improved when I was away but not - when I was back with the akwa it was worse but when I was away from it, it was improved to 55 or 60 per cent when I had a peak flow chart thing that he gave me.”
When asked about how he felt himself, the applicant responded “I felt a lot better when I was away from the akwa sawdust”. The applicant also stated that during this period his symptoms were being monitored, to see if they did improve.
[35] The applicant remained on WorkCover benefits until 20 June 1999 after which he returned to working in the aluminium section of Pronger Industries. At one stage the applicant was placed in the office which required him to go into the factory in relation to undertaking quotes and the applicant noted that when he returned to the factory, he again suffered from asthma. He was off work on compensation between 13 and 16 August 1999, as a result. When he returned to work, it was to the aluminium section.
[36] In about May 1999 the applicant had sought legal advice from a firm of solicitors (not his current solicitors) in relation to his condition. Those solicitors had the applicant complete a request to WorkCover dated 7 July 1999 seeking all statements and medical reports from his file. Those medical reports and statements were provided to the applicant by WorkCover under cover of letter dated 16 July 1999 which gave the applicant the opportunity at that stage to read those medical reports and statements.
[37] The applicant received a letter from his then solicitors dated 9 July 1999 advising that the viability of his claim depended entirely upon whether he was able to return to work at Pronger Industries on a long term basis and that if he successfully returned to work, unless he suffered a substantial pay cut, it was likely that compensation entitlements from a successful damages claim would not justify the expense of pursuing legal proceedings. They also stated:
“The only circumstances in which you would be guaranteed of a substantial damages pay out would be where expert medical opinion confirms that you are unable to return to work as a joiner (whether at Prongers or elsewhere) because of your increased sensitivity to sawdust etc.
Our recommendation at this stage is simply to monitor the situation. On your instructions the specialist has not expressed a final view on your capability of returning to work at Prongers. We can only await his further advices.”
[38] Those solicitors obtained a report from Dr Bint dated 13 July 1999 that made specific reference to his report of 1 February 1999 and responded to specific questions that were posed by the applicant’s solicitors which were not concerned with the permanency or extent of the applicant’s disability arising from his impaired lung function. A copy of the letter from Dr Bint was forwarded by his then solicitors to the applicant under cover of letter dated 5 August 1999 together with a copy of the DETIR report. There was no change in the advice given by the applicant’s solicitors to that given under cover of their letter dated 9 July 1999. Not surprisingly, those solicitors did not apprehend from the medical reports and statements obtained from the WorkCover file and Dr Bint that there had been established that the applicant had a permanent disability which would affect his capacity to work in the future. That was the very issue which the medical reports did not address, as they were concerned with the conditions on which the applicant could return to work at Pronger Industries.
[39] Dr Bint reviewed the applicant on 2 September 1999. In his report dated 7 September 1999 to Dr Young, Dr Bint expressed the opinion that the applicant remained reasonably well and was avoiding exposure to Akwa in the workplace and continued to have fixed airflow limitation which was unchanged from October 1998. At that stage the applicant had been prescribed Salmeterol metered aerosol and Fluticasone which had been increased to 1000mg bd. Dr Bint suggested that treatment with Fluticasone be maintained at 500mg bd as that should be sufficient “to suppress any residual airway inflammation”.
[40] Dr Bint provided a report to WorkCover dated 15 September 1999. He expressed the opinion that the applicant “had persistent fixed and moderately severe airflow limitation with an FEV150% predicted” and concluded:
“Unfortunately I suspect that his airflow limitation will prove long-standing and he will need to continue with his inhaled steroids indefinitely.”
[41] When cross-examined about these letters that Dr Bint wrote in September 1999, the applicant stated:
“The only time when I knew I had - when I had serious problem that - when I was assessed from WorkCover they - and Michael Bint said that I had 55 per cent or 50 per cent lung - or 45 to 50 per cent lung thing, and when - when I received it I had 50 something thousand dollars for that and I had 45 per cent.”
The applicant conceded that he knew he had a problem before the end of 1999, but he stated that he did not know the extent of it until he was assessed and that he did not know it was going to be permanent, until he was assessed. Although the applicant was using “puffers” from August 1998, that use was not an impediment to his working.
[42] Although Dr Bint expressed the opinion in his report to WorkCover dated 15 September 1999 that the applicant’s airflow limitation would prove “long-standing”, the applicant was not provided with a copy of that report and I accept the applicant’s evidence which is consistent with the contents of Dr Bint’s letter of 7 September 1999 to Dr Young and the applicant’s conduct in September 1999 that he was not told by Dr Bint in September 1999 that his condition would be long standing.
[43] Dr Bint has deposed in his affidavit sworn on 26 July 2002 to the fact that if he had been requested to do so, he could have provided an assessment of the applicant’s permanent impairment during the first half of 1999. He does not suggest that he had advised the applicant during 1999 that he had sustained a permanent impairment or the extent of it.
[44] The applicant’s employment with Pronger Industries was terminated on 3 September 1999 due to a shortage of work. That termination was challenged by the applicant and his employment was reinstated on 11 October 1999. He worked until 17 February 2000, at which time his employment was terminated due to a shortage of work, as the aluminium joinery fabrication had ceased operation.
[45] At the hearing of this application the applicant was cross-examined on why he did not ask Dr Bint during 1999 about the permanency and extent of his impaired lung function. The following exchange took place:
“Why didn’t you ask Dr Bint back in ’99 about these things that you say you weren’t aware of until 2000? Why didn’t you ask Dr Bint for his view about these things that-----?-- Well, he said he was going - monitoring it and - and he was going to see - it could have improved, it mightn’t improve.
It could improve and it might not improve?-- Yeah.
Is that what he said in /99?-- He was - he was monitoring it. He was seeing if steroids and puffers, just to see if it did improve.
Then he said it could improve but then again it might not improve?-- Well, he didn’t exactly say that. He said he’s just going to see what happens and when he - and see what damage was done.
But again why didn’t you ask Dr Bint what he thought about-----?-- He said I had-----
-----measurement of your impairment in ’99?-- He was monitoring it. He was taking it and he-----
Did you ask him what the results were?-- He said I had 55 per cent or something like that.
In ’99?-- Or 50 or something like that.
In ’99 didn’t he?-- Yeah.
And he said it might get better or it might not?-- He was monitoring it and he was going to see when it was away from AKWA and all that sort of stuff.
And he said there’s 55 per cent impairment; it might get better and it might not because he’s monitoring it; isn’t that right?-- Yeah. Well, it was down to 450 or something like that then it went up to 600 or something when I was away. So, it was sort of going up from 600 to 500 or it was getting up like about 600 or 550 or something like that when I was away on weekends.
But in ’99 he told you that it might get better and then again it might not?-- He didn’t actually say that. He was just monitoring it and just see if it did improve.
And maybe it wouldn’t have improved?-- And maybe it wouldn’t improve.”
[46] It was submitted by Mr Grant-Taylor of Senior Counsel on behalf of the respondent that the applicant had conceded in cross-examination that Dr Bint’s assessment of his lung function revealed a variable incapacity between 40% and 60%. That submission did not accord with my understanding of the applicant’s evidence at the time of the hearing which has been confirmed by a perusal of the transcript. The applicant stated, in effect, that he understood that his lung capacity was being monitored and had been given the results by Dr Bint such as 55% and that it did go up and down, but he did not understand that figure for lung capacity equated with a permanent impairment, because Dr Bint was waiting to see if it did improve.
[47] Following the termination of his employment, the applicant asked his then solicitors to have his lung condition assessed by WorkCover. The request to WorkCover was made on or about 29 February 2000. WorkCover arranged for the applicant to be assessed by Dr Bint on 14 April 2000. Dr Bint considered that the applicant was suffering a 50% permanent partial disablement.
[48] In para 50 of the first affidavit, the applicant stated that prior to being examined by Dr Bint in April 2000, he considered that his asthma symptoms were aggravated by exposure to Akwa dust, but they would settle, if he were not working with it and he then stated:
“On reading Dr Bint’s report of 14 April 2000 I only then became aware that I suffered a significant permanent disability whether I was working with Akwa dust or not. I then became concerned that with such a disability I might not be able to return to employment even with different duties.”
[49] On 8 June 2000 WorkCover issued a notice of assessment in respect of the applicant’s injury of occupational asthma determining the degree of permanent impairment attributable to the injury as 45% and the amount of lump sum compensation to which the applicant was entitled as being $53,020.
[50] The applicant decided to change his solicitors, because he felt there was nothing being achieved with his then solicitors. He consulted the solicitors who now act for him who filed the claim and statement of claim in proceeding S11319 of 2000 on 22 December 2000.
Respondent’s concessions
[51] For the purpose of this application only, the respondent quite properly made the following concessions:
(a)the applicant contracted occupational asthma sometime during the period from 19 October 1992 to 31 December 1995;
(b)the applicant developed the condition as a consequence of his performing the duties of his employment at the factory of Pronger Industries;
(c)a causal association exists between the applicant’s exposure to Akwa dust in the course of his employment and the condition of occupational asthma admitted to by the respondent;
(d)that particular facts, namely:
- “That the applicant suffers from a significant lung function disability which will remain unchanged and which will give rise to a need for long term treatment” and/or
- “That the applicant suffers a 50% permanent impairment of the whole person due to his lung condition” and/or
- “That the applicant will suffer possible significant economic loss due to his breathlessness with heavy activity, such breathlessness being permanent as opposed to temporary”
constitute material facts of a decisive character relating to the applicant’s right of action against Pronger Industries within the meaning of s 31(2)(a) of the Act.
[52] Although the respondent conceded three material facts, the first and third facts are aspects of the second material fact, that the applicant suffered a 50% impairment of the whole person due to his lung condition and it is that fact which has consequences for the applicant’s economic loss, due to the resultant restriction on his employability.
Issues
[53] The primary issue is whether the material fact that the applicant had suffered a 50% permanent impairment due to his lung condition was within the means of knowledge of the applicant until a date after 22 December 1999, being 1 year prior to the date on which this proceeding was commenced. As set out above, I am satisfied that was not a fact that the applicant knew prior to 22 December 1999. In order to satisfy s 30(1)(c) of the Act, the applicant needs to show that the applicant has taken all reasonable steps to find out the relevant material fact before 22 December 1999.
[54] The respondent does not seek to argue a case that there is no evidence to establish a right of action independently of the limitation defence.
[55] If the applicant can show that he had taken all reasonable steps to find out the relevant material fact before 22 December 1999, the respondent relies on prejudice to the respondent by reason of the effluxion of time, since the relevant events were in the mid 1990s as relevant to whether the discretion to grant relief under s 31 of the Act should be exercised in favour of the applicant.
The law
[56] The test of whether a person has taken all reasonable steps to find out the particular fact for the purpose of s 30(1)(c)(ii) of the Act is an objective one, although regard may be had to the background and situation of the person: Castlemaine Perkins Limited v McPhee [1979] QdR 469, 473. The test was formulated in the joint judgment of Thomas JA and Atkinson J in Carlowe v Frigmobile Pty Ltd [1999] QCA 527 (22 December 1999) as follows (omitting footnotes) at para [39]):
“The test for whether or not a fact was within his means of knowledge depends on whether the respondent took all reasonable steps to find out that fact. This test has both subjective and objective elements. What is relevant is the means of knowledge of the respondent and not of some hypothetical reasonable person.”
[57] Mr Cross of Counsel on behalf of the applicant relied on the following passage from the reasons for judgment in the Court of Appeal in Healy v Femdale Pty Ltd (Appeal No 37 of 1993, 9 June 1993) which was followed in Maguire v Plumbing Industry Group Training Scheme Inc [2001] QCA 248 at para [35]:
“The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one’s health and legal rights. 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.”
See also Muir v Franklins Limited [2001] QCA 173 at paras [15] and [16] per Thomas JA.
Findings
[58] It is therefore relevant in considering whether the applicant took all reasonable steps prior to 22 December 1999 to find out whether or not he had a permanent disability which would affect his future employability to consider the circumstances of the applicant during 1999.
[59] The applicant had commenced consulting Dr Bint in October 1998 after a severe bout of influenza where he was left with residual symptoms which Dr Bint connected to the applicant’s exposure to Akwa dust at his workplace.
[60] The focus of Dr Bint’s treatment of the applicant between October 1998 and June 1999 was monitoring the applicant’s lung capacity with a view to the applicant’s returning to work for the respondent. It was implicit in this approach that the applicant was capable of returning to work which he did in June 1999 substantially without difficulty.
[61] In each of the reports of Dr Bint which were read by the applicant in 1999 and which reflect what advice the applicant was given by Dr Bint during 1999, the diagnosis of occupational asthma and airways limitation was not considered in the context of whether or not it was permanent.
[62] The assumption underlying the applicant’s then solicitors’ advice on 9 July 1999 to the applicant was that there was no medical opinion that his capacity to work was affected. The applicant could not have ignored the fact that the respondent, WorkCover and Dr Bint were all working towards the steps that needed to be taken in the workplace to enable the applicant to remain employed by the respondent. Although Dr Solley referred to the applicant’s disability as “permanent”, that was qualified in the context of endorsing the return of the applicant to work at Pronger Industries, provided he was not exposed to Akwa wood dust.
[63] It is difficult to conclude that the applicant should have asked Dr Bint prior to 22 December 1999 whether or not his disability was permanent and of such a degree as to affect his future employability, when it was implicit in the steps being undertaken by all who were dealing with him including Dr Bint that he was able to return to work, provided he avoided Akwa wood dust.
[64] In those circumstances it was not a reasonable step to expect the applicant to take prior to 22 December 1999 to seek out advice from Dr Bint on the permanency and extent of his lung function disability.
[65] It was reasonable for the applicant to seek out that information when his employment by the respondent was terminated in February 2000. As it took until 14 April 2000 to obtain the expert assessment of Dr Bint on that question, that is the appropriate date for the purpose of extending the limitation period under s 31(2) of the Act.
Prejudice
[66] There is an evidential onus on the respondent to show prejudice. The respondent has obtained witness statements from fellow employees of the applicant. The respondent commissioned a loss adjustor’s report dated 27 June 2001. The respondent has been able to disclose a large volume of invoices which reflect the Akwa wood purchased for use from 1992 to 31 December 1995. The respondent had the applicant examined by Dr Solley and thoracic physician Dr Robert Edwards.
[67] The respondent therefore does not rely on specific prejudice, but that which should be assumed by reason of the effluxion of time: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551. That is a matter, however, which must be taken into account together with all other matters that bear on the question of prejudice.
[68] It is apparent from the recitation of facts included in these reasons that there is a significant amount of material available to both parties relating to the issues of liability and quantum, despite the relevant events relating to liability occurring between 1992 and 1995.
[69] Taking all matters relevant to the issue of prejudice into account, I am satisfied that the applicant has discharged the onus which he bears to show that the extension of the limitation period would not result in significant prejudice to the respondent and that the discretion to extend the limitation period should be exercised in favour of the applicant.
Order
[70] It is therefore appropriate to make the order sought by the applicant:
That the period of limitation for proceeding S11319 of 2000 be extended, so that it expires at the end of 1 year after 14 April 2000.
[71] I will hear submissions from the parties on costs.