Bradford v Darling Downs Bacon Co-Operative Assoc Ltd [2000] QCA 404

SUPREME COURT OF QUEENSLAND CITATION: Bradford v Darling Downs Bacon Co-operative Association Limited [2000] QCA 404 PARTIES: ROBERT MAXWELL BRADFORD (plaintiff/respondent) v DARLING DOWNS BACON CO-OPERATIVE ASSOCIATION LIMITED ACN 051 834 309 (defendant/appellant) FILE NO/S: Appeal No 10038 of 1999 SC No 57 of 1998 SC No 7716 of 1999 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 3 October 2000 DELIVERED AT: Brisbane HEARING DATE: 31 August 2000 JUDGE: McPherson and Thomas JJA, Muir J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: Appeal dismissed with costs. CATCHWORDS: LIMITATION OF ACTIONS – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – GENERAL MATTERS LIMITATION OF ACTIONS – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS WHETHER REASONABLE STEPS TAKEN TO ASCERTAIN FACTS – whether a material fact of a decisive character relating to the cause of action within plaintiff’s means of knowledge prior to relevant time – where plaintiff abattoir worker had contracted brucellosis from contact with swine – where plaintiff had worked at two abattoirs - whether the identity of the correct defendant was within plaintiff’s means of knowledge – whether plaintiff had taken all reasonable steps to ascertain at which abattoir the infection occurred – where plaintiff coped effectively with disability and no loss of earnings – whether fact that action worthwhile -- 1 of 6 -- 2 pursuing within plaintiff’s means of knowledge – limits upon requirement that claimant be deemed to have taken advice Limitations of Actions Act 1974 (Qld), s 31(2) Dick v University of Queensland [1999] QCA 474, CA No 6155 of 1996, 12 March 1999, cited Healy v Femdale Pty Ltd CA No 37 of 1992, 9 September 1993, cited Pizer v Ansett Australia Ltd [1998] QCA 298, CA No 6807 of 1998, 29 September 1998, cited Randel v BCC [1984] 2 Qd R 276, cited Watters v Queensland Rail [2000] QCA 51, Appeal No 4626 of 1999, 3 March 2000, cited COUNSEL: R J Douglas SC for the appellant W D P Campbell for the respondent SOLICITORS: Clewett Corser and Drummond for the appellant Wonderly & Hall for the respondent [1] McPHERSON JA: I have read the reasons prepared by Thomas JA. I agree with them. The appeal should be dismissed with costs. [2] THOMAS JA: This is a defendant's appeal against a successful application by the plaintiff under s 31(2) of the Limitation of Actions Act 1974. The plaintiff's action, which was commenced on 19 August 1998, was for damages consequential upon a condition of brucellosis which the plaintiff contracted following exposure to infected stock. He alleged inter alia that the defendant negligently exposed him to the risk of contracting the disease and that it failed to provide appropriate protection. [3] The plaintiff worked at the defendant's abattoir for over 30 years, but ceased work there on 12 August 1993. He commenced work almost immediately with another employer Oakey Abattoir by whom he is still employed. [4] It is common ground for the purposes of these proceedings that the plaintiff bore the onus of showing that a material fact of a decisive character relating to the right of action was not within his means of knowledge until some time after 19 August 1997, which is the date 12 months before the actual commencement of the proceedings. [5] The learned Supreme Court judge who determined the application found that there were two such material facts. These, briefly stated, were: (a) The correct defendant, (ie the employer who was responsible for exposing him to the disease); (b) That his medical condition was serious enough to warrant the commencement of a common law action. -- 2 of 6 -- 3 [6] Counsel for the appellant (defendant) Mr R Douglas challenged the factual findings and conclusions of the learned judge in these respects. He conceded that such findings and determinations are of a kind where different minds might reasonably reach different conclusions and acknowledged the inherent difficulty of persuading an Appeal Court to interfere with such findings and conclusions.1 It is necessary to examine the facts upon which the application was based so that Mr Douglas' submissions may be properly considered. [7] The plaintiff's affidavit reveals considerable exposure to and direct contact with the blood of cattle, pigs and sheep during his lengthy employment with the defendant. It is not disputed that there is evidence to establish his right of action apart from a defence based on the Statute of Limitations. He left the defendant's employment on 12 August 1993 and a few days later took up a position with Oakey Abattoir as a plant manager. About a month before ceasing employment with the defendant he had suffered from flu-like symptoms for which he had consulted his general practitioner. He had symptoms described as "night sweats" but did not suffer other symptoms of concern. Apparently those symptoms continued, but did not affect his employment or lifestyle. Some years later in January 1996 he saw his general practitioner with pain in his left thigh which he thought had been caused by lifting an object with his foot. He was then referred to Dr Bookless, an orthopaedic surgeon, in Toowoomba and in March 1996 it was found that he had an abscess in his left thigh which was drained. Subsequent cultures were sterile. The pain persisted and he underwent a series of steroid injections which provided some relief. In June 1996 Dr Bookless recommended exploration of the iliac crest, but this was not done at that time. Some iliac discomfort persisted and the open exploration was carried out on 17 November 1996. Subsequent tests then showed that the plaintiff was positive for brucellosis. Two further abscesses developed in December 1996 which were surgically removed. The plaintiff therefore became aware of the fact that he had a condition called brucellosis on or about 4 December 1996, but no prognosis or statement of what the future might hold seems to have been given to him. [8] None of the above procedures resulted in loss of earnings or any application for workers' compensation. The plaintiff's short absences were covered by his sick pay and holiday entitlements. When brucellosis was diagnosed the plaintiff mentioned to Dr Bookless that he had experienced night sweats over a period of three years prior to the onset of "these troubles" (presumably the hip and abscess problems), Dr Bookless considered that such symptoms were consistent with low grade brucellosis infection. On commencement of antibiotic treatment the night sweats ceased. [9] On 4 December 1996 Dr Bookless provided a medical certificate with a view to the plaintiff's medical treatment being paid by the Workers' Compensation Board. Some reliance was placed by Mr Douglas upon the statement in Dr Bookless' certificate of that date where he stated "Work at KR" as the claimant's statement of the cause of the condition. ("KR" is a reference to the defendant). The doctor certified that the plaintiff had been fit for work from 19 February 1996 (when he had first seen him) but that future treatment was required. That however cannot be taken as a clear indication of awareness by the plaintiff that his condition had been caused by exposure whilst employed by the defendant, because on the following 1 Pizer v Ansett Australia Ltd [1998] QCA 298, CA No 6807 of 1998, 29 September 1998. -- 3 of 6 -- 4 day the plaintiff caused a more detailed form to be filled out for the same purpose of obtaining payment for medical expenses, in which he described his condition as "Brucellosis caused by contact with swine" and answered the question "Where did the injury occur?" as "Oakey Abattoir". It will be remembered that by this time he had been working at Oakey Abattoir for more than 3 years as a supervisor. [10] Considerable reliance was placed by Mr Douglas on the following passage from Dr Bookless' report which describes the plaintiff's treatment between February and November 1997: "Mr Bradford's osteomyelitis of the pelvis was not well controlled with the antibiotic treatment and he was submitted to further debridements of his pelvis on 27 February 1997, 27 March 1997, 24 April 1997 and 22 May 1997. Mr Bradford had an ongoing problem of osteomyelitis of his pelvis which was not being controlled by antibiotics and in consultation with the pathologists a change of his antibiotics to Ciproxin, Flagyl and Rifampicin was instituted. With this change there was a significant improvement in his condition and a draining sinus gradually closed such that by September 1997 his wound was dry and the ESR on his haematology test had returned to normal. By November 1997 Mr Bradford was reasonably comfortable and was walking with the aid of a walking stick and continued at work. Again screening blood tests and a CT examination at that stage revealed that the infection was under control and there was no evidence of ongoing abscess collections or osteomyelitis." (My italics). [11] Mr Douglas submitted that the critical period is between February and August 1997 and that it should be inferred that by 19 August 1997 the plaintiff had enough information to enable him to ascertain that his employment with the defendant was the likely cause of his condition, and that his condition was serious enough to know that it was worthwhile to bring an action for damages. It should be remembered however that the direct symptom of the condition (night sweats) had quickly disappeared on the taking of certain antibiotics. The passage quoted in para [9] above, with particular reference to the italicised portion, suggests that the more troubling secondary consequences of the disease (osteomyelitis) proved less tractable but that a change in antibiotics led to a significant improvement in those symptoms also, with a cessation in symptoms and the closing of a sinus by September 1997. His improvement would therefore seem to have been noticeable some time before then. It is to be noted that the plaintiff seems to have been an inveterate worker and that he was able and prepared to work even when he required the aid of a walking stick. The plaintiff's evidence (which was not challenged) was that he kept thinking that he would get better. He first consulted a solicitor on 4 August 1997 and, after receiving preliminary advice, indicated that he did not wish to commence proceedings at that time, as he had not suffered any loss of earnings and was unsure as to whether his health would be compromised in the future. If that is accepted, and there is no reason why it should not, it is difficult to sustain the defendant's submissions on this point. [12] On the plaintiff's case it was the receipt of a report from Dr Bookless on 3 June 1998 with a prognosis of permanent impairment to the left lower limb of 12 per -- 4 of 6 -- 5 cent and 5 per cent overall incapacity as a result of the infection which brought home to the plaintiff an awareness of more than transitory disability. It is unnecessary to determine whether that was the earliest date when he first knew (actually or constructively) that his medical condition was serious enough to warrant the commencement of an action against the defendant. The real question is whether this was not within the means of knowledge of a reasonable person knowing what he knew by 19 August 1997. [13] So far as the first question is concerned, namely whether the correct defendant could reasonably have been identified by that date, I am satisfied that a reasonable person knowing what the plaintiff knew could have overcome that difficulty had he taken all reasonable steps to ascertain the likely source of infection. Indeed, he knew he had had extensive direct contact with animals at the defendant's abattoir but less exposure at Oakey Abattoir. His knowledge of other facts, including the onset of night sweats if submitted to an expert, would have enabled the defendant to be identified. It is true that expert opinion making the necessary connection with the Darling Downs abattoir was not obtained by the plaintiff's solicitors until 27 May 1998, although it had been in the possession of the Workers' Compensation Board since February 1997. It is probable that when first told that he had brucellosis he at least suspected the Darling Downs abattoir. There were only two potential defendants if he were minded to sue, and as Mr Douglas rightly submitted, he could have sued both to the intent that liability be established against the appropriate defendant.2 No particular difficulty or disadvantage in costs would be expected in that situation, as the same compulsory insurer existed in relation to both defendant candidates. If he had instructed his solicitor (or possibly even his medical practitioner) to ascertain the probable source of his infection, there is no reason to think that any great difficulty would have been encountered in doing so or that any substantial period would have been involved in ascertaining the necessary fact. I therefore have difficulty in agreeing with the learned judge's conclusion that the fact that during his employment with the defendant he had become infected with brucella was not within his means of knowledge until after 19 August 1997. That issue is to be determined on the footing that he had before that time taken all reasonable steps to ascertain such a fact. There is of course no requirement, actual or notional, to take "appropriate advice" if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the plaintiff to have done so.3 In order to determine whether he should have done so, one needs to look at the other question, namely whether the plaintiff was actually or constructively aware of a medical condition serious enough to justify for the commencement of a common law action. [14] On that question the dominant factor is the character of the plaintiff as a man who wanted to get on with his life and fend for himself. He was coping with his work and lost no earnings at all. From December 1996 he knew he had a condition named brucellosis and he started to be afflicted with a series of abscesses which were related to it. These were however successfully eliminated by relatively minor surgery, although a number of such procedures were involved and the plaintiff must be taken to have come close to realisation that he had a condition which, if it continued, might have an adverse effect upon his future working life. However I 2 UCPR r 65. 3 Pizer v Ansett Australia Ltd above at para [18] per Thomas JA. -- 5 of 6 -- 6 cannot say that that state of affairs had necessarily been reached by August 1997, or that it was not reasonably open to her Honour to conclude as she did that the plaintiff had displayed "appropriate caution" before commencing a common law action and that he did not obtain sufficient information calling for the commencement of such an action until after receipt of the report of 3 June 1998. The plaintiff seems to be a person who copes with disability more effectively than most and he is not to be judged by the standards of persons with less than average fortitude. Mr Douglas submitted that the plaintiff should have asked his doctors and solicitors for opinions in relation to his likely future disability at a much earlier stage. As to that – "It is difficult to say that a person who finds [himself] able to get on with [his] life, and returns to employment without significant pain or disability fails the test merely because [he] fails to ask for opinions from [his] doctor about the prospect of future disability or effect upon [his] working capacity."4 Further, as already noted there is no requirement, actual or notional, to take advice or to ask appropriate questions if in all the circumstances it would not be reasonable to expect a reasonable person in the shoes of the plaintiff to have done so.5 [15] The conclusion of the learned judge, favourable to the plaintiff, on the question whether a sufficiently serious medical condition to warrant the commencement of legal proceedings was not within his means of knowledge until after 19 August 1997, was reasonably open. It was not suggested that such a matter was other than a material fact of a decisive character.6 Neither was it suggested that the learned judge's finding on absence of material prejudice to the defendant should be disturbed. [16] The appeal should be dismissed with costs. [17] MUIR J: I agree with the reasons of Thomas JA and with the order he proposes. 4 Healy v Femdale Pty Ltd CA No 37 of 1992, 9 September 1993; cited with approval in Pizer v Ansett Australia Ltd above. 5 Pizer v Ansett Australia Ltd above at para [18]; Dick v University of Queensland [1999] QCA 474, CA No 6155 of 1996, 12 March 1999 at para [34]; Randel v BCC [1984] 2 Qd R 276, 281, 285-286. 6 Watters v Queensland Rail [2000] QCA 51, Appeal No 4626 of 1999, 3 March 2000. -- 6 of 6 --