Dixon v Australian Meat Holdings Pty Ltd [2001] QSC 297

SUPREME COURT OF QUEENSLAND CITATION: Dixon v Australian Meat Holdings Pty Limited [2001] QSC 297 PARTIES: DONNA-MARIE DIXON (Plaintiff) v AUSTRALIA MEAT HOLDINGS PTY LIMITED (Defendant) FILE NO: 313 of 1999 DIVISION: Trial Division DELIVERED ON: 3 August 2001 DELIVERED AT: Rockhampton HEARING DATE: 1 June, 2001 JUDGE: Dutney J ORDER: The period of limitation for the plaintiff’s action herein for damages for personal injuries be extended so that it expires on 3 December 1999 and I order that each parties costs be that party’s costs in the action. CATCHWORDS: LIMITATIONS OF ACTIONS – PERSONAL INJURIES – EXTENTION OF TIME – Whether a material fact of a decisive character – Whether defendant prejudiced – Whether plaintiff injured prior to employment by defendant Limitation of Actions Act 1974 (Qld), s.30, s.31 Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 referred Wood v. Glaxo Australia Pty Ltd [1994] Qd R 431 followed COUNSEL: A. Mellick for the Plaintiff M. Grant-Taylor SC for the Defendant SOLICITORS: Rees R & Sydney Jones for the Plaintiff Thompson Hannan Lawyers for the Defendant -- 1 of 7 -- 2 [1] DUTNEY J: Donna-Marie Dixon (the applicant) seeks an order extending the period of limitation for bringing an action until 3 December 1999, the date on which the Claim was filed. [2] The applicant was employed by Australia Meat Holdings Pty Limited (the respondent) as a packer from 7 August 1995 to 8 September 1999. She has been off work since September 1999 and is said not to be able to return to her trade as a hairdresser. [3] The applicant’s difficulties first manifested themselves after the commencement of her employment by the respondent on 13 October 1995 when she attended the AMH work clinic complaining of symptoms in the right side of her neck. From February 1996 the applicant complained of pain in the lower neck region. On 27 May 1996 the applicant consulted Dr John Baker and reported a “3-4 year history of a continuous ache in the right arm and neck.” [4] On 7 October 1996 the applicant was first seen by Dr Simon McMahon. Dr McMahon is an orthopaedic surgeon. The applicant applied for workers compensation on 28 October 1996 and Dr McMahon performed an arthroscopy on her right shoulder on 9 December 1996. The applicant returned to work on 20 January 1997. Less than two months later, on 7 March 1997, she attended Dr David Harding-Smith, a general practitioner, and was prescribed anti-inflammatory drugs. The applicant attended Dr Harding-Smith again on 25 June 1997 and two days later applied to reopen her workers compensation claim to cover physiotherapy expenses. -- 2 of 7 -- 3 [5] The applicant was back at the AMH work clinic on 5 March 1999 complaining of right shoulder pain and on 8 March lodged a further application for workers compensation. On 2 May 1999 the applicant commenced job sharing. She applied again for workers compensation on 5 August 1999. She went onto weekly compensation on 5 September 1999. [6] To succeed in the application the applicant must overcome three hurdles. The first is showing that a material fact of a decisive character relating to her right of action against the respondent was not within her means of knowledge until a date after the commencement of the year last preceding the expiration of the period of limited. In this case the earliest expiration date, on the assumption that the injury began progressively from the commencement of employment was 7 August 1998. In addition the knowledge must not come to the applicant more than 12 months before the commencement of proceedings which, in this case, was 3 December 1999. The knowledge must, therefore, be acquired after 3 December 1998. [7] As at 3 December 1998 the applicant had been suffering shoulder and neck pain for at least 3 years and 2 months. She had attended the AMH work clinic at least once. She had lodged claims for workers compensation on two occasions and had undergone physiotherapy and an arthroscopy. She had also taken anti-inflammatory drugs. There is some evidence that a physiotherapist, Ms Marmack, told the applicant in mid 1998 “that it was about time [she] gave [her] job away”. [8] The “material fact” is said to be that the shoulder injury was of such severity as to preclude the applicant from maintaining employment. -- 3 of 7 -- 4 [9] Despite pain and discomfort the applicant did in fact continue to work until May 1999 when she commenced job sharing. Despite intervals of treatment she was always cleared to return to work. The reservations felt by Dr Harding-Smith were not communicated to the applicant. Dr Harding-Smith finally suggested to the applicant that she give up meat packing work in March 1999. [10] A material fact for the purposes of s.31 of the Limitation Act is defined in s.30. It includes the nature and extent of the personal injury. The material fact is decisive only if a reasonable person knowing the fact and taking appropriate advice would regard the fact as showing that an action would, inter alia, result in a sufficient award of damages as to justify bringing it. [11] While a fact going only to quantum will not satisfy the requirement, a fact which converts a trivial action or one where the costs and risks render the likely return insufficient to justify commencement into a worthwhile action will suffice. [12] Here, until the advice of Dr Harding-Smith in 1999 the applicant had not suffered loss of income and, in view of her clearances to return to work, approximately had no imminent prospect of such loss. The fact that the applicant worked from June 1997 until March 1999 without apparent interruption is significant. I do not think the opinion expressed by the physiotherapist in mid 1998 alters the situation. Interestingly, the physiotherapist has no record of treating the applicant at the time this advice was said to be given. Nor does she recall giving such advice. The applicant had been under the care of qualified doctors who had expressed no such reservation. These included an orthopaedic surgeon, Dr McMahon who recorded the applicant’s right shoulder operation in October 1996 a success. While as noted the -- 4 of 7 -- 5 applicant suffered pain, it did not apparently interfere with her ability to continue work. The advice of a physiotherapist to give up work is advice no doubt given with a view to reducing discomfort. I would not regard it as within a physiotherapist area of expertise to make a judgment on the capacity to continue work. If a lay person is coping at work I would not consider a reasonable person would necessarily go and have herself investigated by medical practitioners. Indeed it is not clear on the material that medical advice in mid 1998 would necessarily have been to give up work if one has regard to Dr McMahon’s first report. Without economic loss and with treatment costs covered by Workers Compensation I would regard any action the applicant had without the relevant fact to be of such a modest value as not to justify the anxiety, cost and risk involved. I am satisfied the applicant has crossed the first hurdle. [13] The second hurdle is that the applicant must show an otherwise viable cause of action. [14] The respondent points under this head to evidence of some neck and arm pain before the commencement of work at the meatworks. There is a dispute between Dr Lloyd who treated the applicant before she commenced work with the respondent and the applicant as to the treatment she received and the symptoms to which it was related. I do not have to resolve that dispute on this application. Dr Gillett accepts that the injury is work related as do Drs McMahon and Blue. Even if there was a pre-existing condition the evidence supports an arguably significant aggravation. The injury is described by Dr McMahon as of a progressive wearing away of the joint. Coupled with the engineer’s report of Mr Kahler I am satisfied to the extent required by Wood -- 5 of 7 -- 6 v Glaxo Australia Pty Ltd [1994] Qd R 431 at 434-5 that the applicant has a viable cause of action. [15] The third hurdle is to persuade me to exercise my discretion favourably. [16] I am not persuaded that the delay involved in this case (since 1995 at the earliest) is such as to require me to assume fatal prejudice merely from the effluxion of time: cf Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 at 551. There is an abundance of medical records detailing the progress of the applicant’s condition. The Doctor who treated the applicant before she commenced with the respondent retains some of his records and gave clear evidence before me on the application. The relevant work practices are not difficult to reconstruct. [17] The specific prejudice identified by the respondent is twofold. First is the apparent loss of attendance records relating to the applicant for 1995 and 1996. I cannot see that these records will be of much, if any relevance, to the conduct of the defence in view of the abundance of medical evidence of treating doctors which is available. I am not sure, in any event, what the attendance records would be likely to have to say on the topic of onset of symptoms which would not be obtainable from other records which do exist such as those of Dr Harding-Smith, Dr Baker and Dr McMahon. The second area of specific prejudice contended for by the respondent is the loss of some of Dr Lloyd’s records. Dr Lloyd conducted two surgeries at the relevant time. The records produced on the application before me were sourced from one of these practices. It is likely the records from the other practice would also have relevance. The other practice was conducted at St Brenden’s College at which the applicant then worked. Despite the loss of the records of the practice conducted at St Brendan’s -- 6 of 7 -- 7 College, Dr Lloyd is able to speak in detail of the applicant’s treatment and symptoms on the basis of the records which Dr Lloyd still holds. Since the issue raised by Dr Lloyd is whether the condition from which the applicant suffers predates her employment by the respondent, the respondent is still in the position of being able to cast significant doubt on the applicant’s account of when the symptoms first appeared. I am doubtful whether further records would be likely to improve the respondent’s position in this regard. [18] In the circumstances I am satisfied that this is a proper case in which to exercise the discretion favourably to the applicant. [19] I order that the period of limitation for the plaintiff’s action herein for damages for personal injuries be extended so that it expires on 3 December 1999 and I order each parties costs to be that party’s costs in the action. -- 7 of 7 --