Camp v State of Queensland [2001] QSC 352

SUPREME COURT OF QUEENSLAND CITATION: Camp v. State of Queensland [2001] QSC 352 PARTIES: PAUL JASON CAMP (plaintiff/applicant) v STATE OF QUEENSLAND (defendant/respondent) FILE NO/S: S.313 of 1999 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court Townsville DELIVERED ON: 28 September 2001 DELIVERED AT: Townsville HEARING DATE: 18 September 2001 JUDGES: Cullinane J ORDER: Application dismissed with costs to be assessed CATCHWORDS: LIMITATION OF ACTIONS – PERSONAL INJURY – EXTENSION OF TIME – where pl injured on 27 March 1986 – where pl later found had some vertiginous symptoms, complete hearing loss in right ear and two thirds loss in left – pl continued in employment but unable to work around noisy machinery – where pl as a result of an increasing vertiginous condition lost capacity to continue employment – whether a reasonable person similarly circumstanced to pl having taken appropriate advice would have brought an action in respect of the loss of hearing and earlier vertiginous symptoms COUNSEL: D. Turnbull for applicant M. Drew for respondent SOLICITORS: Giudes & Elliott for applicant Crown Solicitor for respondent -- 1 of 7 -- 2 [1] The Plaintiff seeks an extension of time within which to institute proceedings against the Defendant in respect of injuries sustained by him on 27th March 1986 whilst an employee of the Department of Main Roads. The Writ of Summons contains an endorsement which is considerably wider than this and includes a claim for loss of hearing which I understand to be associated with alleged exposure to excessive noise levels over a significant period. However the application was conducted upon the basis that the condition which the Plaintiff suffers from now and which has resulted in his incapacity to work was the result of a specific incident on the 27th March 1986. [2] On that date the Plaintiff, who was born on 23rd May 1963 was working as an offsider to the operator of a drilling rig which was engaged in drilling holes for foundations for bridges on the Bruce Highway. [3] It is the Plaintiff’s case that he was required to bring his head in close proximity to the shaft of the drilling rig whilst removing dirt from the hole being drilled. A loud explosion occurred, the force of which knocked him to the ground. The Plaintiff saw that the drill had stopped turning after the explosion. The Plaintiff relies upon a statement of an inspector who was employed at the time by the Main Roads Department who expressed the opinion in a statement to the Workers’ Compensation Board that from time to time shafts break in drilling rigs and shearing pins also break and explosions result. It is the Plaintiff’s claim that he ought not to have been required to place his head in such proximity to an operating drill, given the risk of such explosions and that what should have occurred is that from time to time the machine should have been turned off so that he could remove the soil. The Plaintiff was asked whether there was any reason why it could not have been turned off to allow him to do this and he said “No, not really". [4] The evidence on the subject was quite slight and it was contended by the Defendant that the requirements of s.31(2)(b) were not made out. I think this material, although fairly perfunctory, is sufficient to justify a finding in favour of the Plaintiff on this issue. [5] The Plaintiff left school at age 15, having been educated at the Ingham Special School. I do not have anything which suggests that he was anything other than of normal intelligence, although it might be inferred that he is towards the bottom of the range. [6] Following the incident on 1st April the Plaintiff ceased work and was referred to an ear, nose and throat specialist, Dr Wilson. There is a report of Dr Wilson on the Workers’ Compensation Board’s file which is before the court. The Plaintiff deposes to the fact that Dr Wilson told him that he should cease work until he recovered and also informed him that he had lost the hearing in his right ear completely and had lost some 2/3rds of the hearing in his left ear and he would need in future to wear a hearing aid. Dr Wilson, according to the Plaintiff, told him that he should cease working with noisy machinery as if he continued to do so, his left ear would “pop”. The Plaintiff said in cross-examination that he was told he would lose most of his hearing if he worked around such machinery. He was off work for some four months. -- 2 of 7 -- 3 [7] He returned to work wearing ear protection and whilst he went back to broadly the same work, he avoided exposure to drilling rigs although he worked with other machinery. After some relatively short period he was transferred to a position in the maintenance section of the department’s operations at Ingham. It appears from what the Plaintiff has said in evidence, that he had discussed what Dr Wilson had said to him with his superiors and that the changes in his work which occurred following the accident were taken in consequence. He did not lose any income as a result of the change in his employment to the maintenance section. That work in the main involved driving a tractor pulling a slasher in the course of slashing grass on roadsides. The tractor had an enclosed cabin which was air conditioned. The Plaintiff commenced to wear a hearing aid some time after the accident and was wearing one when he commenced maintenance work. [8] Although the Plaintiff refers to some episodes of tinnitus and vertigo together with episodes of vomiting and nausea in the immediate aftermath of the accident. Dr Wilson does not refer to this and indeed in his report, suggests that there had been no episodes of vertigo as such. [9] It is however, clear from what the Plaintiff has said and from other evidence before the court that the Plaintiff suffered thereafter dizzy spells, nausea and vomiting which became more frequent and severe as time progressed. As a result he was referred firstly to Dr Robinson, an ear nose and throat specialist and then subsequently Dr Laing who was also such a specialist. [10] According to a report of Dr Robinson of 8th September 1988 the Plaintiff was complaining of episodes of light headedness and impairment of balance lasting for a few seconds only. His hearing was substantially impaired at that time. The right ear was described as being “dead” and the left as having profound sensori-neural loss which had deteriorated in the last preceding two years. Dr Robinson saw him again a little later at which time he diagnosed the Plaintiff as suffering probably from a perilymph leak which could result in total deafness if unexplored. He says he told the Plaintiff this at a time when the Plaintiff expressed some reluctance to have anything done about the matter. [11] Thereafter it appears Dr Laing who was based in Cairns entered the scene. He saw the Plaintiff sometime in the latter part of 1989. The Plaintiff complained of tinnitus and vertigo. Dr Laing relates that the Plaintiff had been steadily losing hearing in the left ear having suffered immediate total sensori-neural loss in the right ear at the time of the incident. [12] Dr Laing carried out bilateral tympanotomies on 7th December 1989 in the course of which he found a small fistula in the left ear which was easily repaired and a huge fistula in the right. He repaired this also. The vertigo settled and for some time after the operation the Plaintiff had no vertigo. [13] However, the symptoms returned and deteriorated and a further operation was carried out on 18th September 1990. This was in the nature of a revision tympanotomy of the right ear where a small leak was found and a graft applied. [14] The Plaintiff had six weeks off work following each of the procedures. As with the earlier period he was off work he received income. In the first period he was off -- 3 of 7 -- 4 work he received workers’ compensation payments and in the periods that he was off work following the two procedures he received social security payments. [15] According to the Plaintiff, following the second operation the frequency of the symptoms that he suffered from (that is, dizziness, vomiting and nausea) decreased considerably. He nonetheless continued to suffer from them from time to time. The occasions which the evidence reveals and the treatment which the Plaintiff received for these symptoms is set out in a chronology which the Defendant handed to the court and to which there was no challenge. [16] The Plaintiff says that he did not have any difficulty performing his work and regarded himself as being in secure employment. [17] In late 1997 or early 1998 his hearing appeared to be getting worse and he consulted his general practitioner and went to the Ingham hospital as an outpatient. In early 1998 the dizzy spells, vomiting and nausea got worse and he suffered a black out. [18] I have a number of reports from a number of medical practitioners including specialists dealing with the Plaintiff’s condition after this time. The evidence satisfies me that the Plaintiff as a result of a vertiginous condition, the consequence of the incident, the subject of this application, has lost his capacity to continue in his employment. There is some suggestion that with successful surgery he might be able to return to the work force although other medical practitioners hold the view that he is not capable of working in the future. I am satisfied that the Plaintiff was not aware that he had or may have lost his earning capacity as a result of injuries sustained in the incident until after the 14th April 1998, that is, one year prior to the issue of writ. [19] The issue which arises in this case is whether a reasonable person similarly circumstanced to the Plaintiff would, knowing what the Plaintiff knew, or having knowledge of those matters which the Plaintiff must be taken to have means of knowledge of, and having taken appropriate advice on those facts, have regarded them as showing that a right of action would have reasonable prospects of success resulting in an award of damages sufficient to justify the bringing of the action and that he ought in his own interests to bring such an action. The Plaintiff has the persuasive onus in this regard. [20] I should mention at this point an area of dispute on an issue of fact. [21] In a report from the Ingham Hospitals Board to the Workers’ Compensation Board dated 9th February 1987 the following appears: “This man was seen here in 1974 and specialist ENT report then showed normal left auditory acuity and complete congenital deafness right ear. He again presented 1st April 1986 with deafness left ear after working with noisy machinery. As far as I can tell there is no record of vertigo nausea or vomiting nor is there any evidence that the deafness is episodic ---“ [22] It appears that the records of the Ingham Hospital, going back to 1974, were destroyed some years ago. -- 4 of 7 -- 5 [23] There is evidence that the Workers’ Compensation Board had obtained the records of Ingham Hospital prior to the assessment made by the Ear Nose and Throat Board which is referred to in a letter to the Plaintiff by the Workers’ Compensation Board of 26th May 1987. The Plaintiff’s disability was assessed as being 47% of left sensori-neural hearing. There was no reference to the right ear. [24] As counsel for the Plaintiff put it, it probably does not matter a great deal in the overall assessment of the Plaintiff’s damages if he was a person with an existing loss of hearing of the right ear who then sustained a significant loss of hearing in the left ear as a result of the Defendant’s negligence or whether the Defendant’s conduct was the cause of the total loss in the right ear and the significant loss in the left ear. Nonetheless there must necessarily be some difference in the amount of damages recoverable. [25] The Plaintiff and his parents deny adamantly that he had any impairment of his hearing prior to this incident. He would have been 11 at the time of the examination in 1974. Mrs Camp, the Plaintiff’s mother gave evidence that on a couple of occasions the Plaintiff was taken to the hospital to have a build up of wax in his ears removed. [26] It is difficult to draw any firm conclusions about the matter in the absence of documentation relating to the 1974 examination. It is to be noted that those ear nose and throat specialists who saw the Plaintiff following the 1986 incident where the subject is discussed, speak of the loss of hearing in the right ear occurring at the time of the explosion. (Dr Wilson’s report suggests the hearing loss was a result of exposure to the excessive noise of the rig over a period.) It is a little surprising if it was congenital in nature that this was not detected and one ought to have expected that the Plaintiff and his mother would have been aware of a complete loss of hearing in one of the Plaintiff’s ears during his childhood and adolescence. It is conceivable that the records are incorrect or that in some way a temporary impairment of the Plaintiff’s hearing has come to be recorded as a permanent congenital loss of hearing. For the purposes of this application I propose to proceed upon the basis that the Plaintiff can ascribe the whole of his loss of hearing to the incident in 1986 although the fact that there is a dispute about this is not irrelevant to the question of the court’s discretion. [27] It is clear that before the expiration of two years following the 1986 incident, the Plaintiff was aware that he had lost the whole of the hearing in one ear and a substantial part of the hearing in the other ear and that he should not work around noisy machinery. This resulted in some changes to the nature of his employment. He was also suffering vertigo and associated symptoms although he had not seen a doctor about this. [28] The Plaintiff sought medical advice about the vertiginous condition in 1988 and was told that he could lose his hearing if the condition was not explored. In fact after two operations he obtained a significant reduction in the vertiginous condition. Although he continued to suffer from vertigo from time to time he was able to continue in employment until the recent serious deterioration. [29] Nonetheless at the end of the two-year period the Plaintiff was aware that he had suffered a substantial loss of hearing and was suffering significant ongoing -- 5 of 7 -- 6 symptoms of vertigo and nausea. He was also aware that there were restrictions on his capacity to work in areas that he had previously worked in. Thereafter, the only alteration in his position until the recent deterioration, was the reduction in the vertigo I have referred to. [30] In Pizer v. Ansett Australia Ltd (CA Qld Appeal No 6807 of 1998 unreported) Thomas J addressing the general question which arises in this case said at paragraph 20: . . . “At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery a serious condition will plainly justify an extension, and an appeal court could readily detect error in a refusal to grant it. At the other end of the spectrum, cases of patently serious orthopaedic injury productive of observable economic loss followed by belated realisation that the consequences are likely to be worse than had been contemplated, will not justify an extension, an appeal court could likewise readily correct an erroneous decision. Somewhere between these extremes there is a range of cases where different minds might reasonably form different assessments of the level of the Plaintiff’s knowledge and as to whether the reasonable person contemplated by s.30(b), endowed with such knowledge and having taken appropriate advice, would have brought proceedings". [31] In this case the issue to be addressed is where in the spectrum and in particular on what side of the dividing line this case falls. [32] Whilst it is possible to have a good deal of sympathy for the Plaintiff who I assess as a genuine person who has worked hard all of his life until recently forced out of the workforce and who has had relatively little education, I think that the facts of which he was aware and which I have described prior to the expiration of the two year period following the accident stand in the way of an order being made in this case. I think that a reasonable person in the Plaintiff’s circumstances and with his attributes and background, ought to have realised that acting in his own interests and having taken proper advice, he ought to have instituted proceedings. He would undoubtedly have been advised that whilst he would not have recovered any damages for past economic loss, (beyond what he had already been compensated for) he had an impairment of his earning capacity would result in a significant award for future economic loss and the nature and extent of his disabilities were such that a significant award of general damages would be made. (I do not overlook in reaching this finding of fact that the Plaintiff would have had to repay to the Workers’ Compensation Board a significant sum including a lump sum payment of some $11,000). The substantial loss of hearing, the restriction of his employment, quite apart from the other symptoms he was then suffering, ought to have led him to seek appropriate advice which would have, I am satisfied, resulted in action being instituted. Such advice would have involved medical advice about his vertigo and associated symptoms and legal advice about his position generally. [33] It also seems to me that the plaintiff was, after the two years and before his recent deterioration, in a similar position so that well before 14th April 1998 he ought reasonably, acting in his own interests, to have instituted proceedings after taking appropriate advice. -- 6 of 7 -- 7 [34] Although I have expressed the matter positively, it is more correct to say that the plaintiff has not satisfied me that a reasonable person in his position would not have, after taking appropriate advice, instituted proceedings. [35] As to the discretionary matter raised, I accept that the loss of the hospital’s records would be a disadvantage in advancing a claim that the Plaintiff already had an impairment of hearing. However I am not convinced that, had the Plaintiff otherwise made out a case for extension, this factor should lead to the refusal of the application. It is not clear that this would have any great impact on damages and in any case it may well be that there are other avenues of inquiry open to the Defendant on this issue. It is not necessary to repeat the comments I made earlier on this subject in paragraph 26 but they also touch on this issue. [36] The application is dismissed with costs to be assessed. -- 7 of 7 --