Carter v Ansett Australia Ltd [2000] QCA 333

SUPREME COURT OF QUEENSLAND CITATION: Carter v Ansett Aust Ltd [2000] QCA 333 PARTIES: DEBORAH ELIZABETH CARTER (respondent) v ANSETT AUSTRALIA LIMITED ACN 004 209 410 (applicant) FILE NO/S: Appeal No 5414 of 2000 DC No 1227 of 2000 DIVISION: Court of Appeal PROCEEDING: Application for leave s 118(3) DCA (Civil) ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 18 August 2000 DELIVERED AT: Brisbane HEARING DATE: 28 July 2000 JUDGES: McPherson and Davies JJA and Mullins J Joint reasons for judgment of Davies JA and Mullins J; separate reasons of McPherson JA concurring as to the orders made. ORDER: Application for leave to appeal refused with costs. CATCHWORDS: LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF DECISIVE CHARACTER – respondent was successful in the District Court in extending the period of limitation in an action for damages for personal injuries against the applicant – the applicant sought leave to appeal against the decision – respondent suffered injuries as a result of exposure to toxic chemicals whilst in the employ of Ansett Australia – respondent was exposed to fumes in the cabin of a BAE146- 200 aircraft between 1993 and 1994 – where the respondent discerned the existence of a causative relationship between the ingestion of the fumes and the symptoms suffered at a time outside the period of limitation – whether that material fact of decisive character relating to the right of action was not within her means of knowledge until 31 August 1999 Limitation of Actions Act 1974 (Qld), s 30, s 31 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, considered -- 1 of 5 -- 2 COUNSEL: P A Keane QC with L F Kelly for the applicant P J Goodwin for the respondent SOLICITORS: Clayton Utz for the applicant Hall Payne for the respondent [1] McPHERSON JA: I agree with the joint reasons for judgment of Davies JA and Mullins J. The application for leave to appeal should be dismissed with costs. [2] DAVIES JA and MULLINS J: The applicant seeks leave to appeal against a decision of the District Court extending the period of limitation for an action by the respondent against the applicant for damages for personal injuries suffered by her as a result of exposure to toxic chemicals whilst in the employ of Ansett Australia so that it expires on 31 August 2000. The extension was granted pursuant to s 31 of the Limitation of Actions Act 1974. The parties are agreed that if leave is granted the Court should also decide the appeal. [3] The question which the learned District Court judge had to decide was whether a material fact of decisive character relating to the right of action of the respondent was not within her means of knowledge until a date after 18 November 1996. His Honour found that a material fact of decisive character relating to the right of action of the respondent was not within her means of knowledge until 31 August 1999 and accordingly extended the limitation period to 31 August 2000. [4] The material fact of a decisive character identified by the learned District Court judge was that there was a causative relationship or, as his Honour put it, a connection between the ingestion of fumes of the kind which the respondent ingested on 18 November 1994 and symptoms of the kind from which she thereafter suffered. That connection was revealed by evidence showing that, on many cases throughout the world, people who had ingested fumes of that kind had suffered symptoms of the same kind; and by evidence that Mobil Jet Oil II, from which the fumes came, contained a number of highly neuro-toxic contaminants including tri-ortho-cresyl phosphate which causes acute and chronic neuro- behavioural effects. [5] The respondent was at materially times a flight attendant employed by the applicant. Her claim arises out of ingestion of fumes during the course of her employment on a BAE146-200 aircraft on 18 November 1994 and earlier dates. She was exposed to fumes in the cabin of an aircraft of that type on a number of occasions in 1993 and 1994. As the most significant appears to have been on 18 November 1994 it is sufficient to describe what happened on that day. [6] On that day strong fumes entered the cabin of the aircraft causing her eyes and nose to burn and making it very difficult for her to breathe. This happened on a number of occasions throughout the day. She and two other flight attendants were obliged to use portable oxygen during all take offs and landings on that day. She suffered nausea, headaches, a sore throat and sore eyes. [7] Subsequently the respondent developed multiple symptoms the worst being severe pharyngitis, extreme lethargy, headaches and a skin complaint. She remained in bed for a few days after that date and then went to her general practitioner -- 2 of 5 -- 3 Dr Knowles who was in practice with a Dr Swaine and later to Dr Swaine. Dr Swaine gave a report to the Workers' Compensation Board on 18 February 1995 in which he recorded most of the symptoms we have described. The report noted that the respondent was referred to Dr Geoffrey Boyce a specialist neurologist who in turn arranged for her to be seen by Dr Carroll a toxicologist. Dr Swaine did not venture a diagnosis or prognosis. [8] Dr Carroll to whom the respondent was referred by Dr Boyce, eventually gave a report to the Workers' Compensation Board and it appears subsequently became a consultant to the applicant. He is a specialist in internal medicine and toxicology and appears to be highly qualified, holding degrees from Oxford and Harvard Universities. In his report dated 21 April 1995 to the Workers' Compensation Board Dr Carroll expressed the view that the pattern of the respondent's illness most closely resembled a resolving viral infection and that her current symptoms could not be related to her exposure to the fumes. The major symptom which he noted was of nausea although he also noted a skin rash. He said that no toxic exposure caused the manifestation of these symptoms. In the course of expressing this opinion Dr Carroll also had access to a number of reports listed by him concerning fumes in planes of the kind. He said of these: "The issue of contamination of cabin air on the BAE146 has been discussed and investigated at great length. These investigations are provided in the accompanying reports that have already been forwarded. There have been numerous detailed and extensive investigations performed in the USA, the United Kingdom, and by Ansett Australia. No levels of any clinical significance have been found." [9] The respondent also saw a Dr Terry a consultant gastroenterologist. Dr Terry is also a clinical senior lecturer at the University of Queensland. We do not think we are being unfair to Dr Terry by saying that he does not have the impressive qualifications of Dr Carroll, is not a toxicologist and apparently did not have access to the reports to which Dr Carroll had referred. Indeed, in a letter to the respondent's instructing solicitors of 22 August 1995 Dr Terry said: "I am not an aviation toxicologist and I do not know immediately who to recommend to you." Nevertheless he did conduct considerable research himself and had access to some chemical safety reports to which he referred. His conclusion was that the respondent's symptoms were typical of someone who had been exposed to fumes of xylene which is normally considered to be a toxin. He expressed the view that there were xylenes in Mobil Jet Oil II the fuel used in the BAE146-200 aircraft. [10] That was the state of expert opinion within the respondent's knowledge or means of knowledge throughout the limitation period and, indeed, until she obtained access in September 1999 to submissions made to the Senate Rural and Regional Affairs and Transport References Committee Inquiry into Air Safety – BAE146 Cabin Air Quality. Those submissions by a number of highly qualified experts in Australia, France and Canada revealed a very large number of cases, worldwide, of persons who, having been exposed to fumes in aircraft of this type, suffered symptoms of the kind which the respondent suffered; and a large body of opinion supporting the connection between the ingestion of those fumes and the development of those symptoms. -- 3 of 5 -- 4 [11] Typical symptoms from long term exposure revealed in these submissions showed a striking similarity in different countries. They included nausea, vomiting and diarrhoea; skin symptoms including itching, rashes and skin blisters; irritation of eyes, nose and upper airways; and general weakness and fatigue, leading to chronic fatigue, exhaustion, hot flushes, joint pain, muscle weakness and pain. These also bear a striking similarity to the symptoms of which the respondent has consistently complained. See the report of Professor Winder, Head of the School of Safety Science, University of New South Wales, June 1999. Professor Winder also forwarded to the Inquiry a report by Dr Jean Christophe Balouet, a French environmental scientist who had investigated similar cases worldwide, revealing almost exactly the same symptoms. [12] The submissions to that Inquiry also disclosed, for the first time, the constituent elements of Mobil Jet Oil II the fuel used in the BAE146-200 aircraft and that these included neuro-toxic contaminants including tri-ortho-cresyl phosphate, known to have acute and chronic neuro-behavioural effects; and that this entered the cabin of such aircraft due to faulty oil seals: see especially the work of Dr van Netten. It also emerged for the first time from the submission to that Inquiry of Dr Donohoe that Dr Carroll had been used extensively by the applicant to deny liability for claims of this kind. [13] The learned District Court judge concluded that a reasonable person knowing the facts proved by these reports and having taken appropriate advice on them would regard them as showing that the respondent, for the first time, had a reasonable prospect of success resulting in an award of damages sufficient to justify the bringing of her action. [14] In its submissions to this Court the applicant relied strongly on what it submitted was the actual state of knowledge of the respondent, relying on the respondent's statement of 10 November 1997 submitted in support of a claim for compensation before the general Medical Assessment Tribunal. In that statement, in which the respondent, in effect, pleaded her case, she understandably urged the Tribunal to agree with the conclusions of Dr Terry and to reject those of Dr Carroll. She said that she herself rejected Dr Carroll's conclusions. It was submitted for the applicant that therefore the respondent, by 10 November 1997, knew that her injuries had been caused by her exposure to noxious fumes in the course of her employment. However that submission mistakes both the nature of that statement and the nature of the inquiry which s 31(2)(a) of the Act requires. [15] As to the first of these, the statement was, as we have said, the respondent's pleading. In it she urges the Medical Tribunal to carefully consider the report of Dr Terry (par 6), she says that she will address the Tribunal on Dr Carroll's report (par 9), she asks the Tribunal to carefully consider the report of Dr Terry and to prefer this over the report of Dr Carroll (par 11), she asks the Tribunal to carefully consider par (a) to par (f) of Dr Terry's report (par 13), she says that she "can argue my case no higher than to urge upon the Tribunal to agree with the conclusions of Dr Terry" (par 14), and she asks the Tribunal to find that the chemically induced erosive gastritis in her presentation constitutes an injury which results in permanent partial incapacity for work (final par). Plainly the statement does not purport to be an expression by her of her actual state of knowledge of the connection between the ingestion of fumes by her and her symptoms. -- 4 of 5 -- 5 [16] As to the second, as at 10 November 1997 the more apparently highly qualified opinion available to the respondent was that the long term symptoms of which she complained, in particular nausea, eczema and fatigue, could not have been caused by the ingestion of fumes on the BAE146-200 aircraft. What the submissions to the Senate Inquiry revealed was that such ingestion could cause and had in many other cases throughout the world caused those precise symptoms. That was the material fact of a decisive character which made the difference between her having and not having a worthwhile cause of action.1 The facts within her knowledge or means of knowledge did not, before then, justify the bringing of an action because the apparently better opinion was that there was no such causation. [17] The applicant also complained about the failure of the respondent to disclose relevant legal advice obtained by her during the period of limitation. Her failure to disclose this, it was submitted, provided an additional reason why the decision of the learned District Court judge was erroneous. We do not agree. The question is whether, before the discovery of the material fact from the submissions made to the Senate Inquiry, the respondent had a worthwhile cause of action. What she had then was a cause of action which could arguably succeed only if Dr Carroll's opinion was rejected and Dr Terry's opinion was accepted. In the light of the Dr Carroll's apparent superior qualifications, speciality and access to scientific information, that seemed very unlikely. We do not think it could be described, at that stage, as a cause of action having a reasonable prospect of success. If that is correct then it does not matter what her legal advice was at that time. Moreover it is not as if her solicitors were inactive at that time. On the contrary they appeared to be doing everything which could be done on the respondent's behalf to obtain some compensation for her in respect of her quite serious disabilities. There is no reason to think that they advised her or should have advised her to institute legal proceedings. [18] In our opinion the decision of the learned District Court judge was correct. Moreover we think he reached that decision by correctly applying the provisions of s 30 and s 31 of the Limitation of Actions Act. Accordingly we would refuse leave to appeal with costs. 1 Do Carmo v Ford Excavations Pty Ltd. (1984) 154 CLR 234 at 251. -- 5 of 5 --