Beattie v Queensland Abattoir Corporation [2001] QSC 407

4bOOS- (~ Que~ns~and Governm'.ent state Rep Ort ing Bure au ~ Dep3nment oi justl~.n<l ~=y~ral [~00 Q ~SC 401 Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILSON J No 10902 of 1998 NEVILLE GEORGE BEATTIE and QUEENSLAND ABATTOIR CORPORATION BRISBANE .. DATE 15/10/2001 JUDGMENT Floor, The law Courts, George Street, Brisbane, a. 4000 1 REVISED COPIES ISSUED State Reporting Bureau Date)?! /of D I Plaintiff Defendant Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 9 -- 15102001 T3/SA2 M/T 1/2001 (Wilson J) HER HONOUR: This is an application by the defendant to strike out the plaintiff's action [sic] pursuant to Uniform Civil Procedure Rules, Rule 171, on the basis that the pleadings do not disclose a sustainable cause of action or, alternatively, for summary judgment pursuant to Rule 293. There is a cross-application by the plaintiff to extend the limitation period pursuant to section 31 of the Limitation of Actions Act 1974. It is a master and servant action in which the plaintiff claims damages for personal injuries caused by the negligence, breach of contract and/or breach of statutory 1 10 20 duty of the defendant. 30 The plaintiff was employed by the defendant as a slaughterman from 1970 until 1998 or beyond. Between 1986 and 1995, he worked on hide pullers. In 1995, he alternated, week about, between hide pulling and flanking. 40 He claims to have suffered a chronic musculoligamentous strain type injury to his left shoulder and to have suffered a permanent reduction in bodily function as a result. The injury is alleged to have developed over time rather than to · 50 have been the result of a single traumatic incident. The claim relates to injury allegedly sustained up until 31 January 1997. On 1 February 1997, the WorkCover Queensland Act 1996 commenced and it is common ground that the 2 JUDGMENT 60 -- 2 of 9 -- 15102001 T3/SA2 M/T 1/2001 (Wilson J) plaintiff has failed to comply with the requirements of that legislation in relation to any injury sustained since it commenced. The writ was issued on 24 November 1998. The limitation period being three years, the defendant has taken the point that the plaintiff's claim for any injury sustained before 25 November 1995 is statute barred. I shall deal first with the application under section 31 of the Limitation of Actions Act. The issue before me is whether there is evidence to establish the right of action apart from a defence founded on the expiration of the limitation period. (See section 31(2) (b)). Counsel for the defendant formulated the issue as being whether there is sufficient evidence of the plaintiff having sustained an injury up until 31 January 1997. Counsel for the plaintiff agreed with this formulation, except that he submitted that the relevant concept is damage rather than injury. The parties agreed that all other requirements of section 31 were satisfied, so that if this were answered in the positive, I would then 1 10 20 30 40 have a discretion whether to extend the limitation period. 50 The defendant did not raise any prejudice and acknowledged that in those circumstances it would be proper to exercise the discretion in favour of the plaintiff. 3 JUDGMENT 60 -- 3 of 9 -- 15102001 T3/SA2 M/T 1/2001 (Wilson J) Further and better particulars of the statement of claim were delivered on 31 August 2001. The plaintiff cannot point to any particular dates on which he sustained any discrete injury or injuries. Rather, his injury is alleged to be one of accumulated damage over a period of time. He identified three periods in which he is alleged to have suffered injury. Between 1986 and 1993 on the number 1 hide puller, between 1993 and early 1995 on the number 2 hide puller and between early 1995 and 31 January 1997 on hide puller number 2 and flanking. The particulars contained a description of the activities 1 10 20 alleged to have caused him to suffer injury: 30 ( i) In relation to hide puller No. 1, attempting to free the chains upon which the hide was supported, when the chains were fully supporting the weight of the hide, requiring the Plaintiff to apply a 40 j~rking motion with his left hand when the chain was bearing a weight of 40 to 80 kilograms; (ii) in respect of hide puller No. 2, the Plaintiff would also be required to apply moderate to very · 50 strong forces with the left hand to free the hide and chain, which involved jerking the chain while the Plaintiff was in a forward flexed position; 60 4 JUDGMENT -- 4 of 9 -- 15102001 T3/SA2 M/T 1/2001 (Wilson J) (iii) in relation to flanking, the activities were performing the work of flanking, that is, pulling the hide away from a carcass with the left hand while using an air knife with his right hand. This activity was performed through a wide range of postures from standing erect to being significantly flexed and reaching forward, bending to ankle height or lower. The Plaintiff was therefore applying significant forces while at the limit of his reach and in flexed and awkward postures. On 4 September 1997, he was working on the flanking stand when he felt severe pain in his left shoulder. He could not continue working. He was then on compensation until 17 November 1997 when he returned to work on light duties. After three months, he was told to go back to the slaughter floor but his problem persisted. He saw his general practitioner on 8 September 1997 and was referred to Dr James Fardoulys, an orthopaedic surgeon. Dr Fardoulys said he had either muscular or joint strain of the lower cervical or upper thoracic spine and that the shoulder pain was referred from that area. He certified that on 3 November 1997 he was fit to return to light duties although he should continue with his rehabilitation program and the strain would heal in time. 5 JUDGMENT 1 10 20 30 40 50 60 -- 5 of 9 -- 15102001 T3/SA2 M/T 1/2001 (Wilson J) On 25 May 1998, the plaintiff consulted Dr David Morgan, another orthopaedic surgeon, who diagnosed a strain injury of the supporting structures around the left shoulder girdle which he said would gradually settle such that the plaintiff would be able to return to gainful employment as a slaughterman and that he was unlikely to be left with permanent or partial disability. The plaintiff also consulted Dr Tony Blue, an orthopaedic surgeon, who was of similar opinion. However, his problem persisted. In October 1998, he consulted his union and was referred to solicitors the next month. Those solicitors obtained a report from another orthopaedic surgeon, Dr Gillett, dated 15 March 1999. Dr Gillett noted that the plaintiff had had no pre-existing symptoms. He diagnosed a strain type injury to the region of the left shoulder girdle, probably involving the scapular stabilising muscles and left rotator cuff. He went on: "His w.ork practices as described would be consistent with producing stresses and strains to the region of the left shoulder girdle. No specific event has occurred and it just relates to use of his arm in the working practices as a slaughterman and then persistence of pain and discomfort related to a variety of activities that he has done. In general terms, his condition has left him with persistent and ongoing pain at this point. It is 6 JUDGMENT 1 10 20 30 40 . 50 60 -- 6 of 9 -- 15102001 T3/SA2 M/T 1/2001 (Wilson J) likely at this length of time from his onset of symptoms he will have persistent troubles related to the left shoulder girdle with pain and discomfort related to the region of the interscapular area, shoulder area and neck. He would be regarded as a chronic musculoligamentous strain type injury representing a three per cent impairment of bodily function due to the consequences of his working practices over a period of time." In a supplementary report dated 14 July 2000, Dr Gillett said: "1. I do not believe that I can say that injury occurred directly at the time when he first experienced symptoms in the left shoulder. 2. I believe it is more likely than not that the injury essentially developed from his exposure to 1 10 20 30 the same work activity without rotation over an 40 extensive period of time in his employment." In his submissions, counsel for the defendant highlighted the absence of complaint of difficulty with the left shoulder prior to 4 September 1997. He drew a distinction 50 between vulnerability and injury or damage. He submitted that the plaintiff's body had worked itself into a position of vulnerability but not injury or damage up until that point. 60 7 JUDGMENT -- 7 of 9 -- 15102001 T3/SA2 M/T 1/2001 (Wilson J) He relied on a decision of Justice Derrington, Martindale v. Burrows (1997] 1 QdR 243. In that case, the plaintiff was an employee suffering from asbestos caused mesothelioma, a condition which had been asymptomatic until years after his exposure to asbestos. Injury had occurred when the asbestos particles he had ingested began to cause the condition of his lungs which led to the development of the mesothelioma. In principle a valid distinction can be drawn between vulnerability and damage or injury, but as cases such as Harris v. Commercial Minerals Limited (1996) 186 CLR 1 illustrate, there can be slow damage with consequential dramatic development of a serious nature. 1 10 20 30 The question here is whether there is sufficient evidence of damage prior to 4 September 1997. The standard of proof which must be met by an applicant was discussed by Macrossan CJ in Wood v. Glaxo Australia Pty Ltd [1994] 2 QdR 431 at 434-435. The plaintiff must be able to point 40 to the existence of evidence which it can reasonably be expected will be available at trial and which will, if unopposed by other evidence, be sufficient to prove his case. Here the only evidence is that of Dr Gillett. The defendant's counsel submitted that the Court could not be satisfied of morbid changes amounting to damage before 4 September 1997; that this could just be a case of vulnerability. He submitted that the Court must be left 8 JUDGMENT 50 60 -- 8 of 9 -- 15102001 T4/LDV22 M/T 1/2001 (Wilson J) wondering, and that in the circumstances the evidence was not good enough to satisfy section 31(2) (b). However, in my opinion the contents of Dr Gillett's supplementary report, which I have set out, do provide some evidence of slow damage which was asymptomatic until 4 September 1997. In my •view, that evidence is good enough for present purposes. It follows that in the exercise of the discretion invested in me by the Limitation of Actions Act, I am prepared to extend the limitation period. The defendant's application should be dismissed. HER HONOUR: With respect to the plaintiff's application, I am going to make the costs costs in the cause. With respect to the defendant's application, no order as to costs. HER HONOUR: I am still of the view that there should be no 1 10 20 30 40 order as to the costs of the defendant's application and 50 that the costs of the plaintiff's application should be costs in the cause. 60 9 JUDGMENT -- 9 of 9 --