Farrington v Culpans Electrical Contractors P/L & Anor [2001] QDC 365

DISTRICT COURT OF QUEENSLAND CITATION: MICHAEL JOHN FARRINGTON v CULPANS ELECTRICAL CONTRACTORS PTY LTD AND BAKEWORTH PTY LTD T/AS INDEPENDENT SWITCHBOARDS [2001] QDC 365 PARTIES: MICHAEL JOHN FARRINGTON Plaintiff CULPANS ELECTRICAL CONTRACTORS PTY LTD (ACN 052 453 933) First Defendant BAKEWORTH PTY LTD (ACN 010 176 173) T/as INDEPENDENT SWITCHBOARDS (ACN 000 001 276) Second Defendant FILE NO/S: D925 / 2000 DIVISION: District Court PROCEEDING: Application ORIGINATING COURT: District Court Southport DELIVERED ON: 8th October 2001 DELIVERED AT: Southport HEARING DATE: 27 – 28 August 2001 JUDGE: Alan Wilson SC, DCJ ORDER: I order that the time for commencing this action be extended to 1 November 2000 CATCHWORDS: Limitation of Actions – s30, s31 Limitation of Actions Act– material fact: undiagnosed post traumatic stress disorder – earlier psychiatric symptoms attributed to another cause. Reasonable Person Test – Applied: Moriarty v Sunbeam (1988) 2 Qd. R. 325; Pizer v Ansett Australia (1998) QCA No 6807/1998, 29 September 1998; Healy v Femdale (9 September 1993, No 37 of 1992). – reasonable person with the knowledge of the Plaintiff COUNSEL: Mr Trotter for the Plaintiff -- 1 of 16 -- ii Mr Holyoak for the First Defendant -- 2 of 16 -- IN THE DISTRICT COURT OF QUEENSLAND SOUTHPORT No: D925 of 2000 MICHAEL JOHN FARRINGTON Plaintiff CULPANS ELECTRICAL CONTRACTORS PTY LTD (ACN 052 453 933) First Defendant BAKEWORTH PTY LTD (ACN 010 176 173) T/AS INDEPENDENT SWITCHBOARDS (ACN 000 001 276) Second Defendant REASONS FOR JUDGMENT – ALAN WILSON SC, DCJ (Delivered the 8th day of October 2001) The plaintiff, an electrician born 10 July 1958, alleges he suffered burns and other injuries on 26 November 1996 when a switchboard on which he was working at premises at Mermaid Beach exploded. He did not commence an action for damages until 1 November 2000 when he sued his employer (the first defendant) and another party said to have manufactured and/or supplied the switchboard (the second defendant). Hence, the action was begun almost one year outside the three-year limit set by the Limitation of Actions Act 1974. 1 Both defendants pleaded the statute. On 31 May 2001 the plaintiff brought an application to extend time for his action, under s31 of that Act, and it was heard on 27 August 2001. Mr Trotter represented the plaintiff, and Mr Holyoak the first defendant. 1 s11 -- 3 of 16 -- 2 The second defendant did not appear. The plaintiff gave evidence, as did his solicitor and three psychiatrists: Drs Whittington, Chittenden, and Rowe. Although the plaintiff frankly admitted he had suffered quite bad burns in the accident requiring hospitalisation for 19 days, an operation for skin grafts, almost three months off work, and the wearing of a body stocking for another year, his application was advanced on the ground the “material fact” 2 he did not know and which warranted an extension of time was his reasonable ignorance of the nature and extent of the injuries he had suffered. 3 He only learned after the three-year period expired, he said, following a consultation with Dr Chittenden in August 2000, that the accident had caused him to suffer a post-traumatic stress disorder (“PTSD”), first diagnosed by her, which explained much of his behaviour and many of his symptoms in the years since the accident. 4 He had suffered some psychiatric symptoms after 1996, requiring six months treatment with an antidepressant medication in 1997, and 10 consultations with a psychiatrist commencing in May 2000 but, he said, he had attributed those symptoms to the effects of a prolonged and traumatic marriage breakdown which began in mid-1996, 4-5 months before the accident. S31 provides: 31.(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person. 2 s31 3 s30(1)(a)(iv) 4 Sleep disorders, depression, anxiety and suicidal ideation: Dr Chittenden, reports 11 August 2000 & 24 August 2001 -- 4 of 16 -- 3 (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. (3) This section applies to an action whether or not the period of limitation for the action has expired – (a) before the commencement of this Act; or (b) before an application is made under this section in respect of the right of action.” S 30 defines what may be “material facts”: 30.(1) For the purposes of this section and sections 31, 32, 33 and 34 - (a) the material facts relating to a right of action include the following - (i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded; (ii) the identity of the person against whom the right of action lies; (iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury; (iv) the nature and extent of the personal injury so caused; (v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty; (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 at that time know the fact; and (ii) so far as the fact is able to be found out by the person, the person has before that time taken all reasonable steps to find out the fact before that time. -- 5 of 16 -- 4 (2) In this section – “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. Contests involving this legislation and, in particular, s30(1)(a)(iv) are often complex and finely balanced, as Thomas JA remarked in Pizer v Ansett Australia,5 at para 20: “In appeals of the present kind, when the material fact concerns the nature and extent of personal injuries, questions of degree are necessarily involved. At one end of the spectrum, a case of latent symptoms of apparently trivial injury, followed by eventual discovery of 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 and 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 s30(b) endowed with such knowledge and having taken appropriate advice would have brought proceedings. Appeals involving extensions of periods of limitation commonly raise these particular issues which involve factual assessments. Although the eventual decision is discretionary the determination of these issues is not. They involve findings of fact and a determination whether those facts satisfy the requirement of the statute. It is worth mentioning however that such findings and determinations are made in an area where different minds might reasonably reach different conclusions.” (My italics). This case involves issues within that spectrum, and a variable: the plaintiff’s initial physical injuries were quite serious; but, the “material fact” which is at the root of his application is a discovery concerning the alleged existence of a psychiatric condition. Central to the dispute is the severity and consequences of the former, and whether the initial (physical) injuries were so bad that the plaintiff must fail to overcome the hurdle set up by s30(1)(b). It is appropriate to make some initial finding of facts, based upon the affidavits filed by both sides, and the oral evidence. 5 (1998) QCA No 6807/1998, 29 September 1998 -- 6 of 16 -- 5 The plaintiff was 38 when injured. He spent one day in the Gold Coast Hospital and was then transferred to John Flynn Hospital where he was an inpatient for 18 days undergoing treatment for 1 st and 3rd degree flash burns to his right elbow, right anterior trunk, and various other parts of his body. On 4 December 1996 he underwent surgery to excise areas of full thickness burns, and repair by split skin grafts. He was off work, convalescing, until 17 February 1997. He wore compression garments for his burns and grafts until the latter part of 1997. He is by all accounts, and presented in the witness box as, a stoic and uncomplaining man, and would only concede that he suffered “discomfort” from his injuries, and a continuing need to avoid exposure to the sun. 6 After his return to employment with the first defendant he was sent, for the next 2.5 years, to work on large jobs in Brisbane. He threw himself into this work. Dr Rowe, the psychiatrist who examined the plaintiff at the behest of the first defendant, described the sequence of events this way: 7 “When he went back to work he was kept busy and worked long hours although he still suffered from disturbed sleep, largely because of the pain. Prior to returning to work, the patient became somewhat stressed and despondent due to the continuing pain together with frustration due to the ongoing family problems. At one stage he felt suicidal although made no active attempt to take his life. The patient was prescribed the antidepressant, Aropax, which he took for six months although he felt it was of little help. Settlement and divorce went through the following year - 26 November 1997 - and it seems that his former wife was given 75% of the assets and was given custody of the children who were then in their early teens. His former wife got “tied up” with a man whom it was later discovered was psychiatrically disturbed, but who encouraged his former wife to embark on a settlement fight. His son then came to live with the patient because of the unpleasant atmosphere between his mother and her new partner. … There have been significant personal problems for some time since the separation in 1997 and divorce in 1998 and he has considerable anger and 6 Transcript pps 45 & 46 7 Report 18 December 2000 -- 7 of 16 -- 6 hostility in regard to the legal proceedings and the changes all this has made in his life.” The plaintiff said that because he was able to immerse himself in hard work he did not realise he had any psychiatric condition until he saw Dr Chittenden’s report. He had not bothered, he said, to commence legal proceedings (although he knew a workmate injured in the same accident had commenced an action) because he did not think his injuries were sufficiently serious to warrant suing his employer. 8 The psychiatrist who treated him last year, Dr Whittington, said both his marriage breakdown and the accident “had a very dramatic effect on him”. 9 Dr Chittenden said that “avoidance and numbing” are clear effects of PTSD and agreed that persons with that disorder sometimes exhibit a tendency not to seek treatment;10 and, that the plaintiff was a particularly stoic man and “a hard nut to crack”. 11 Dr Rowe agreed the plaintiff was “…able to more than most people sort of hide his feelings…” 12 In her second report 13 Dr Chittenden said: “Mr Farrington was severely psychologically affected, but in the background was the breakup of his marriage (which was occurring anyway). He obsessively concentrated on his children’s welfare and his work to a “driven” extent to exclude the memory of the accident. This was his defence mechanism in order to cope with life events. … Mr Farrington became very emotionally upset when reminded or when discussing the accident. He avoided this (which made him difficult [unconsciously] to obtain a history from during the assessment). Mr Farrington 8 Applicant’s affidavit sworn 25 May 2001, paras 9 & 10 9 T p6, ll 24-28 10 T p28, ll 7-22; p33, ll 8-18 11 T p27, ll 46-51 12 T p12, ll 29 & 30 13 24 August 2001, p2 -- 8 of 16 -- 7 on one occasion made a serious suicide attempt. This mainly appeared to be a response to his distress at the time, although his marital separation was an added stress. … His background of marital disharmony, separation and divorce as well as care of the children obscured his real psychiatric diagnosis. His defence to PTSD is that of denial and avoidance, which has made more superficial assessments invalid in my opinion.” Dr Chittenden concluded the plaintiff had suffered, and was still suffering from, a moderate degree of post-traumatic stress disorder with symptoms of depression and anxiety, requiring long-term psychiatric treatment. Dr Rowe thought that while he was still under strain he was not, however, suffering from any psychiatric disorder. In cross- examination Dr Rowe conceded he had only seen the plaintiff for an hour, whereas Dr Chittenden had seen him on two occasions for up to three hours, and Dr Whittington on nine or 10 occasions last year. The plaintiff’s demeanour in the witness box, where he presented as a very quiet, taciturn (but not rude) man who appeared to take great care to answer questions honestly corroborated, I thought, Dr Chittenden’s description of him as a very stoic person who would, indeed, tend to struggle with his own problems by denying them, and getting on with his work and life as best he could. My observations of him, combined with Dr Chittenden’s much longer examination of him, persuade me to accept her views, and to reject those of Dr Rowe. I am satisfied, therefore, that as a consequence of the accident he did develop a post- traumatic stress disorder of moderate severity, which persists; that other elements of his life and, in particular, his prolonged matrimonial/family breakdown and the upset it caused him, distracted him from the perception that his symptoms might somehow be related to the accident; similarly, that his suicidal ideation and attempt in 1997, consultation with a doctor and prescription of an antidepressant in that year, and visits to Dr Whittington last year were all, in his mind, referable to the consequences of the marriage breakdown (and it did not occur to him that they might also be a product of the accident); that none of the medical practitioners he consulted before Dr Chittenden -- 9 of 16 -- 8 penetrated his psyche far enough to detect the condition; and, therefore, that his discovery of the diagnosis of the PTSD did not, in truth, occur until a date some time after that referred to in s31(2)(a) - i.e. after the commencement of the year last preceding the expiration of the period of limitation for the action. The first defendant also argued that the plaintiff’s mental symptoms during the limitation period - involving a suicide attempt, suicidal ideation, six months on antidepressants, and ongoing sleep disturbance, and depression - establishes the material fact upon which the plaintiff relies was, in truth, within his means of knowledge during the limitation period. In light of these facts, the first defendant submits, the plaintiff cannot reasonably argue that Dr Chittenden’s diagnosis would not, had he sought proper advice earlier, have been available. The test of reasonableness under s30(1)(b)(i) is an objective one, to be applied to a person in the plaintiff’s circumstances. 14 I was not persuaded that, taking the plaintiff’s circumstances into account (vide s30(1)(b)(ii)) this argument would prevail against him: the nature of post-traumatic stress disorder, and his own personality, and the existence of other significant stressors upon him mean that, in my view, the existence of his psychiatric disorder was at all material times outside his means of knowledge. That is not, however, the end of the matter. The question arising under s30(1)(b) is whether or not his physical injuries were sufficient, if he had taken appropriate advice, to establish that he had a right of action which had reasonable prospects of success and would result in an award of damages sufficient to justify an action, and warrant a finding that he ought, in his own interest, and taking his circumstances into account, 14 Castlemaine Perkins Limited v McPhee (1979) Qd R 469 at 472-3; Healy v Femdale Pty Ltd, unreported (Court of Appeal, 9 September 1993) -- 10 of 16 -- 9 have brought an action within time. In Byers v Capricorn Coal Management Pty Ltd15 Lee J, with whom McPherson and de Jersey JJ agreed, cited and approved the following passage from the judgment of Macrossan J in Moriarty v Sunbeam Corporation Limited:16 “In cases like the present, an applicant for extension discharges his onus not merely by showing that he has learned some new fact which bears upon the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that, without the newly learned fact or facts, he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interest pursue it. That is what the application of the test of decisiveness under s30(b) comes down to: Taggart v Workers’ Compensation Board of Queensland (1993) 2 Qd R 19, 23 and 24 and Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 per Deane J at 251.” 17 In Moriarty Derrington J posed the test in terms referable to a positive or negative finding about the quality and quantity of facts which confronted the plaintiff before the time limit expired:18 “…If prior to the respondent’s learning that fact, there were sufficient material facts of a decisive character which would have lead a reasonable man appropriately advised to regard those facts as showing that there was a good cause of action and that in his own interest the respondent ought to have brought proceedings, then the newly discovered fact, although it might be described as material, could not be said to be of a decisive character.” (My italics). S30(1)(b)(i) must require the putative plaintiff to consider whether the award of damages, referable to facts known before the expiration of the time limit, is likely to be sufficient to justify the bringing of an action; but, the authorities show, even if there is a 15 (1990) 2 Qd R 306 16 (1988) 2 Qd R 325 17 This passage was also adopted by Connolly J with whom Ryan and Cooper JJ agreed in Berg v Kruger Enterprises (1992) Qld Reports 301; and, see Peabody Resources Limited v Norton (Appeal 200-/1994, judgment 16 June 1995); Ipswich City Council v Smith (1997) QCA 263 per Pincus JA at p 3, and Davies JA at p 6; and Pizer v Ansett Australia Ltd (Court of Appeal 29 September 1998, Appeal 6807/98). 18 Supra, at 326 -- 11 of 16 -- 10 cause of action worth pursuing it might nonetheless be reasonable for a person, after proper advice, to decline to do so - consistent with what has been held to be the underlying legislative intent that a person should not sue merely because they have the opportunity to do so and that many facts may influence that decision.19 Relevant circumstances will include the amount to be refunded to a workers’ compensation authority, 20 the likely quantum of the plaintiff’s action, referable to the time, risks and expense involved in the particular litigation, and the possibility that suing the employer may have some effect on job security. 21 The first defendant’s contention is that having regard to his physical injuries and associated treatment, and pain and discomfort prior to the expiration of the time limit the plaintiff, giving proper instructions to a lawyer, would certainly have been advised to commence an action within that period. He had suffered severe burns; undergone a significant operation; been hospitalised for 19 days; was off work for almost three months; was required to wear a pressure garment for almost a year; and, had suffered and continued to suffer pain and discomfort as a result of the burns. It was also argued by the first defendant, albeit faintly, that the plaintiff has not put forward evidence to establish the right of action, apart from a defence founded on the expiration of the time limit: s31(2)(b). The plaintiff swears, however, 22 that some 11 days before the accident he provided a report to his employer that the switchboard in question was dangerous and, notwithstanding that warning, nothing was done to rectify it; and, Dr Chittenden records23 that he had told the employer the switchboards were 19 Do Carmo (supra) per Deane J at 250-1 20 Taggart (supra) 21 Byers (supra) per Lee J at 308 22 Plaintiff’s affidavit sworn 25 May 2001, para 12 23 Report 11 August 2000, p5 -- 12 of 16 -- 11 overloaded and the demand for electricity supply was highly likely to outstrip them. He told the doctor he had conveyed this information to his boss, and left it to him to contact the electrical engineers and switchboard manufacturers to estimate the dangers and take the appropriate steps. Evidence of that kind is sufficient to surmount the test. Nor did the first defendant adduce any evidence of prejudice arising as a consequence of the delay save by reference to the inevitable dimming of the memories of witnesses 24 , but the delay has not been inordinately long; the commencement of proceedings last year meant that within a year after the expiration of the time limit the defendants were aware of the allegations against them; and, a co-worker sued in respect of the same event within the limitation period. The critical issue in this case is, rather, that arising under s30(1)(b); and it falls at a difficult point within the spectrum discussed by Thomas JA in Pizer.25 On the one hand, it seems harsh to criticise a plaintiff who has been stoic in the face of his injuries and managed to continue working, by all accounts, hard and well and, by so doing, resolve his symptoms without recourse to litigation; but, on the other, he faces the hurdle of the Moriarty test, i.e. that those initial physical injuries and their consequences might have persuaded a reasonable person that he had a right of action, and the potential damages justified bringing it. The first defendant argues the severity of the plaintiff’s original injury and his prolonged hospitalisation and convalescence, (and absence from work on Workers’ Compensation benefits) are indicia that the plaintiff’s discovery of his PTSD condition occurred against a background of facts and circumstances which would have persuaded 24 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 per McHugh J at 554-5 25 Supra, at p6 -- 13 of 16 -- 12 any prudent person to seek legal advice and (as his co-worker did) begin proceedings, within the limitation period. The plaintiff’s solicitor, Mr Ellis, conceded Mr Farrington’s original injuries and the known consequences would have persuaded him to recommend an action, had he been consulted within the statutory period. 26 Hence, the first defendant argues, the information the plaintiff received from Dr Chittenden is nothing more than an enlargement of his potential damages, in a quantitative sense. The plaintiff is, it is said, now barred because he fails to show that his material fact is of a decisive character. 27 As Thomas JA said in Pizer (supra): 28 “If a reasonable (man), knowing what the plaintiff must have known and having taken appropriate advice on those facts would 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) interest…bring it, then the plaintiff fails to show `that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant’ prior to the necessary date.” It is not every plaintiff who suffers injury which might warrant an action who fails the Moriarty29 test. As the Court of Appeal said in Healy v Femdale: 30 “It is difficult to say that a person who finds herself able to get on with life and returns to employment without significant pain or disability, fails the test merely because she fails to ask for opinion from her doctor about the prospect of future disability or effect from 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.” Material to the question will be issues like past, and potential future economic loss. As Thomas JA noted in Pizer (supra): 26 T 16-17 27 S30(1)(b) 28 At para 16 29 Supra at 326; and see Sugden v Crawford (1989) 1 Qd R 683, per Connolly J at 685 30 (9 September 1993, No. 37 of 1992) -- 14 of 16 -- 13 “…The plaintiff’s economic loss prior to April 1995 is fairly trivial, while the additional information which the plaintiff gained later in 1995 suggests to her that it would be quite substantial. That makes a reasonable case for saying that this additional information might reasonably have made the difference between bringing an action and not bringing one…” In those cases in which the discretion has been exercised against the plaintiff - e.g. Taggart, Files, and Pizer - the applicant had suffered ongoing pain and symptoms and/or economic loss at a higher level, and for longer duration, than Mr Farrington. Workers’ Compensation details suggest his lost wages, and expenses, were met by that insurer. He did not just cope with his work, he was able to perform it with vigour and application. His consultations with doctors leading to the prescription of antidepressants, and counselling do not seem to have caused him time off work, or economic loss; but, as he has now discovered, he still has “fairly active” PTSD 31 requiring ongoing medication and psychiatric treatment, of unknown duration and outcome: Dr Chittenden’s report, 11 August 2000:32 “…Mr Farrington’s prognosis now is very dependent on the outcome of his treatment of his post-traumatic stress disorder but he is dealing with great difficulties in his personal life as well, in that, his financial difficulties as a result of leaving his job are a major problem to him, and are apt to affect him, his family, and his subsequent relationships until he manages to obtain some control and security over his own destiny.” While the plaintiff’s subsequent treatment from Dr Whittington appears to have alleviated his symptoms, Dr Chittenden’s second report 24 August 2001 shows that they are still quite serious, and the need for treatment continues: “Mr Farrington continues to be anxious, irritable and moderately depressed in his outlook. He requires long-term psychiatric treatment, but has difficulty accepting this, as it means facing and coping with the trauma of 1996…I have no reason to change any details of my previous report. Mr Farrington still has a moderate degree of post-traumatic stress disorder with depressive and anxiety symptoms which have interfered with his normal psychological functioning.” 31 T38 l4, Dr Chittenden 32 p.15 -- 15 of 16 -- 14 In Dick v University of Queensland33 Thomas JA postulated a step by step approach to applications of this kind34 . With reference to that formula I am, for the reasons set out above, satisfied the fact of which the appellant was unaware - i.e., that he was suffering from PTSD as a consequence of the subject incident - was a material fact; that it was of a decisive character because, although his initial physical injuries had been serious he made a good recovery from them, suffered no real financial loss, and was able to return to his former work and continue in it up to the present time; and, the existence of the PTSD condition was not within his means of knowledge before the specified date. I order, then, that the time for commencing this action be extended to 1 November 2000. The parties are invited to make submissions as to costs. 33 (2000) 2 Qd R 476 34 At p 485 -- 16 of 16 --