Bates v Australian Meat Holdings P/L [2001] QSC 262

SUPREME COURT OF QUEENSLAND CITATION: Bates v Australia Meat Holdings P/L [2001] QSC 262 PARTIES: GENENE MARIE BATES (applicant) v AUSTRALIA MEAT HOLDINGS PTY LTD ACN 011 062 338 (respondent) FILE NO: 4099 of 2001 DIVISION: Trial Division DELIVERED ON: 25 July 2001 DELIVERED AT: Brisbane HEARING DATE: 17 July 2001 JUDGE: Mullins J ORDER: The period of limitation for the action proposed to be brought by the applicant against the respondent be extended so that it expires 1 year after 6 August 2000. CATCHWORDS: LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – PERSONAL INJURY – whether a material fact of a decisive character was within means of knowledge. Limitation of Actions Act 1974 Carlowe v Frigmobile Pty Ltd [1999] QCA 527 (22 December 1999) Goebel v Cameron Pastoral Company [2000] QSC 408 (9 November 2000) Pizer v Ansett Australia Ltd [1998] QCA 298 (29 September 1998) COUNSEL: M Morrisey with JM Barnett for the applicant M Grant-Taylor SC for the respondent SOLICITORS: Watling Roche Lawyers for the applicant Thompson Hannan for the respondent [1] MULLINS J: The applicant applies pursuant to s 31 of the Limitation of Actions Act 1974 ("the Act") for an extension of the limitation period applicable to the applicant's cause of action which she alleges arises out of her contracting the -- 1 of 5 -- 2 disease Q Fever in the course of her employment with the respondent in or around June or July 1993. Facts [2] The applicant was born on 24 March 1963. She commenced employment with the respondent at its meatworks in Townsville on 8 May 1989. The applicant worked on the slaughter floor and in the boning room, pet food offal room, tripe room and offal room. The applicant was tested for Q Fever and bucella serology on 27 July 1991 and was negative for both. [3] Around the end of June or July 1993 the applicant began to feel ill and had several weeks off work staying in bed. On 27 September 1993 the applicant saw Dr Peterson who was employed by the respondent. On 30 September 1993 the applicant had blood tests at the direction of the respondent which revealed serological evidence of past infection with Q Fever. [4] On 20 October 1993 the applicant applied for workers' compensation. Dr Peterson gave a medical certificate dated 20 October 1993 stating that the applicant was suffering from Q Fever endocarditis. That was the description of the injury shown in the application for compensation. The applicant unsuccessfully endeavoured to return to work on 22 November 1993. The applicant applied to re-open her compensation claim from 22 November 1993. Cardiologist Dr Thoreau examined the applicant and considered that the applicant's heart murmur was congenital and unrelated to Q Fever. The Workers' Compensation Board also sent the applicant to Dr Whitby, consultant physician in infection, who examined the applicant in or around late December 1993. [5] The applicant received a letter from the Board dated 1 February 1994 which rejected her claim for compensation which was accompanied by a statement of reasons. That referred to the consideration of the medical report from Dr Whitby dated 11 January 1994 from which it was concluded: "It is considered the stable Q Fever titres represent previous infection, and the aortic valve lesion represents congenital disease unrelated to infection. Medical evidence indicates no evidence of chronic Q Fever." The decision maker on behalf of the Board considered that the applicant's absence from work in the periods from 21 October 1993 and 23 November 1993 did not constitute any injury as defined in the Workers' Compensation Act 1990. [6] The applicant did not return to working for the respondent, after ceasing work on 22 November 1993. [7] In or around July 1994 the applicant consulted the law firm Suthers Taylor in Townsville with respect to bringing a common law action, but did not commence any action because of insufficient funds. The applicant was also advised by Legal Aid that it was unwilling to provide assistance. -- 2 of 5 -- 3 [8] The applicant states that around the end of 1994 she attended the Townsville General Hospital and told a doctor whose name she does not recall that she believed she had Q Fever and that she was always tired, but that she was informed by the doctor that there was nothing wrong with her and that she should consider seeing a psychiatrist. [9] During 1994 the applicant completed a year long business/computer course at the Townsville TAFE and during 1995 commenced part-time employment as a telephonist with the Townsville Taxi Company. The applicant remained in that employment until prior to the birth of her first child in February 1998. The applicant gave birth to her second child in December 1999. [10] On 6 June 2000 the applicant underwent a heart valve replacement at the Prince Charles Hospital at Chermside. Following that, the applicant was tested for Q Fever. On or around 6 August 2000 the applicant received a letter from Dr Mark O'Brien, cardiac surgeon, of the Prince Charles Hospital dated 4 August 2000 advising that the results of the tests showed evidence of Q Fever. The applicant states that prior to receiving that letter from Dr O'Brien, she had no real knowledge of her condition of Q Fever. She was subsequently informed in September 2000 by a clinical microbiologist, Dr Robert Norton, that she has chronic Q Fever and Q Fever endocarditis. The applicant states that, although she had come across the term chronic Q Fever endocarditis in 1994 when she did some research herself on Q Fever, Dr Norton was the first medical practitioner to explain the condition to her. [11] The applicant consulted her current solicitors on 3 February 2001. This application was filed on 8 May 2001. Respondent's position [12] For the purposes of this application, the respondent makes the following concessions: (a) the applicant contracted Q Fever sometime during the period from July 1991 to mid 1993; (b) the applicant contracted the disease as a consequence of her performing the duties of her employment at the respondent's meatworks; (c) a causal association exists between the Q Fever which the applicant contracted by mid 1993 and the condition of chronic Q Fever endocarditis for which the applicant was treated, after being diagnosed in August 2000; (d) the fact that "serious health conditions such as endocarditis can follow (and, in the applicant's case, did follow) from one's contracting Q Fever" constitutes a material fact of a decisive character relating to the applicant's right of action against the respondent within the meaning of s 31(2)(a) of the Act. [13] The respondent opposes the application on the basis that, armed with the knowledge in late 1993 that she had in fact contracted Q Fever, she failed to take all reasonable steps to secure appropriate advice about the matter from other health professionals and that if she had made appropriate inquiries about the possible consequences of her contracting Q Fever, she would have been informed that: "Endocarditis is the most serious manifestation of chronic Q fever. In some patients it may develop within a year after the acute attack, -- 3 of 5 -- 4 but in others it may not become apparent for 5 or so years. It occurs more commonly in patients with pre-existing valvular heart disease … ", and would also have been informed that: "… signs and symptoms of, for example, endocarditis may develop years after an acute infection [from Q Fever] after a period of apparent quiescence." In summary, the respondent submits that in terms of s 30(1)(c)(ii) of the Act the applicant did not take all reasonable steps to find out the material fact before August 2000. [14] Both parties refer to the decision of Williams J (as he then was) in Goebel v Cameron Pastoral Company [2000] QSC 408 (9 November 2000). The respondent concedes that to be successful in opposing the applicant's application, the facts relating to this application must be able to be distinguished from those the subject of the decision in Goebel. [15] In Goebel, Mr Goebel was also seeking an extension of the limitation period to bring an action for damages for negligence against his employer. On 7 September 1987 Mr Goebel was diagnosed as suffering from acute Q Fever. After resting for a couple of weeks, Mr Goebel returned to work and was able to carry out normal duties and had no symptoms of relevance until late 1999. When feeling unwell at that time, testing established chronic Q Fever. It was submitted on behalf of the employer in that case that Mr Goebel unreasonably made no inquiries of his doctors about the possible consequences of the attack of acute Q Fever in September 1987. Williams J stated at para [11]: "If the doctors responsible for treating the condition in 1987 did not advise the applicant of the possibility of his developing chronic Q- fever, and the applicant has sworn that they did not, then it is difficult to see why, in the absence of any particular symptom, the applicant ought to have raised such a possibility with his medical advisers. In my view it is not unreasonable for an ordinary, reasonable person to believe there will be no lasting or recurring consequences of a serious illness if the treating medical personnel merely advise that the illness has passed and the patient is fit to resume normal duties." [16] The respondent submits that the decision in Goebel is distinguishable because there is no evidence that the applicant was not advised of the possibility of the later development of chronic Q Fever and there is no evidence of the applicant's experiencing an absence of symptoms over the intervening period between 1994 and 2000. The Law [17] There was no issue between the parties as to the law to be applied in determining this application. The test for whether or not a material fact was within the applicant's means of knowledge depends on whether the applicant took all -- 4 of 5 -- 5 reasonable steps to find out that fact and that test has both subjective and objective elements: Carlowe v Frigmobile Pty Ltd [1999] QCA 527 (22 December 1999) at para [39]. What is relevant is the means of knowledge of a reasonable person endowed with the knowledge and experience of the applicant in determining whether the applicant has taken all reasonable steps to find out the material fact: Pizer v Ansett Australia Ltd [1998] QCA 298 (29 September 1998) at para [15]. Findings [18] Although the applicant was aware of the expression chronic Q Fever endocarditis at least from 1994, it is apparent on the material that despite the applicant's being diagnosed as suffering from Q Fever (at least by October 1993), no doctor whom the applicant consulted or was seen by from mid 1993 and throughout 1994 explained to the applicant about the possible severe consequences of chronic Q Fever and endocarditis which could follow from having contracted Q Fever. [19] If the doctors who treated and examined the applicant at that stage did not disclose that information or suggest that she should be aware of the possible sequelae, it must follow that a reasonable person who was not alerted to possible sequelae by treating or examining doctors could not be expected to independently pursue medical inquiries about possible consequences. [20] The fact that the applicant consulted solicitors about a common law action after she had a period away from the respondent's workplace and had ceased working for the respondent does not affect this conclusion in relation to whether or not a reasonable person (knowing what the applicant did know) should have sought independent medical advice about possible consequences. [21] It is implicit from the applicant's work and personal history subsequent to 1994 that the applicant appears not to have suffered any symptoms of chronic Q Fever which should have alerted her to seek earlier medical advice than the testing that was carried out after her operation in June 2000. [22] The facts of this application cannot be materially distinguished from those in Goebel. Conclusion [23] It is therefore appropriate for the period of limitation to be extended to expire 1 year after the date on which the applicant deposes to being informed about the relevant material fact which was 6 August 2000. The order which I will make is: The period of limitation for the action proposed to be brought by the applicant against the respondent be extended so that it expires 1 year after 6 August 2000. [24] I will hear submissions from the parties on the question of costs. -- 5 of 5 --