Coleman v BHP Coal Pty Ltd [2000] QCA 232

SUPREME COURT OF QUEENSLAND CITATION: Coleman v BHP Coal Pty Ltd [2000] QCA 232 PARTIES: PETER WILLIAM DOUGLAS COLEMAN (plaintiff/appellant) v BHP COAL PTY LTD ACN 010 595 721 (defendant/respondent) FILE NO/S: Appeal No 8399 of 1999 SC No 171 of 1998 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 16 June 2000 DELIVERED AT: Brisbane HEARING DATE: 28 April 2000 JUDGES: McPherson JA, Mackenzie J, Fryberg J Separate reasons for judgment of each member of the court, each concurring as to the orders made. ORDER: 1. Appeal allowed. 2. Order of Chamber judge set aside. 3. Period of limitation in Writ 171 of 1998 extended until 15 December 1998. 4. Costs are plaintiff's costs in the cause to be assessed. CATCHWORDS: TORTS - NEGLIGENCE – GENERAL MATTERS – Appeal against refusal to extend period of limitation in which to commence personal injuries action – applicant entitled to extension – nature and extent of injury not known to him until after commencement of year last preceding expiration of the limitation period – adjustment disorder followed by post traumatic stress disorder. Limitation of Actions Act 1974 (Cth), s 31(2) COUNSEL: S C Williams QC, with B Harrison for the appellant P A Keane QC, with R A I Myers for the respondent SOLICITORS: Taylors Solicitors for the appellant Thynne & McCartney for the respondent -- 1 of 5 -- 2 [1] McPHERSON JA: I agree with the reasons of Mackenzie J and with the order he proposes for disposing of this appeal. [2] MACKENZIE J: In this matter, an application for extension of the period of limitation in which to commence an action for personal injuries was refused and the applicant appeals against that decision. [3] Where a person claims to have a right of action for personal injuries caused by negligence the court may order an extension of the period of limitation if: (a) 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) there is evidence to establish the right of action apart from a defence founded upon the expiration of a period of limitation (s 31(2) Limitation of Actions Act 1974). [4] The facts upon which the applicant relies are that shortly before midnight on 7 August 1994 an explosion occurred in the underground workings at Moura Number 2 Mine, trapping miners underground. The applicant who was employed by the respondent as an underground miner was not on duty, but was advised of the situation in his capacity as a member of the Queensland Mines Rescue Brigade. He went to the mine area in the expectation that he would have to go underground to attempt a rescue but after the risks were assessed it was eventually decided that conditions were too dangerous to do so. He was stood down and sent home late on the afternoon of 8 August 1994. One of the trapped miners was a close friend of his. Others were well known to him. [5] On 9 August 1994 the applicant and another employee were taking gas samples from bore holes around the mine site when there was another very large explosion which blew up a fan house when they were about 150 metres away. The fan house was a very substantial structure and metal and rock were thrown into the air. A cloud of gas which the applicant was told was poisonous was emitted from the ventilation shaft. They had to flee the scene. The applicant was also aware that there were workers at the fan house and he feared for their safety as well. [6] On 10 August 1994 after the second explosion occurred and it was believed that any hope that the miners could be saved was gone, the mine was sealed. The applicant became "teary, angry and upset" and had difficulty sleeping and in facing the widows of the men who had been killed. He had one counselling session with a counsellor employed to assist in the town in the aftermath of the disaster. [7] Eventually he accepted underground mining work at North Goonyella Mine. On 29 December 1997 when he was working underground a message came to evacuate the mine. He had to wait for transport to the surface for some time and because he was about two kilometres underground the journey took about 15 minutes. Over the next few days the miners were not allowed to return underground because of high gas readings and the fear of heating. On New Year's Eve, he and the other miners were sent home. -- 2 of 5 -- 3 [8] While away from the mine his thoughts constantly turned to the events at Moura. When he returned to the mine on 15 January 1998 he was overwhelmed by panic and nausea and could not face the prospect of returning underground. He had a number of counselling sessions over the next 12 months and was able to work at general labouring on the surface. As part of his rehabilitation he worked underground on occasions but only for half of the 12 hour shift and always with a feeling of trepidation. Throughout 1998 he had suffered a number of symptoms including panic attacks, flashbacks and moodiness manifesting itself in a variety of ways. On or about 17 January 1999 he found he could no longer face up to going underground and ended his employment with the company by agreement on 28 February 1999. [9] The applicant's need to link his present condition to the Moura disaster is due to the absence of negligence in the Goonyella incident. A number of reports from psychologists and psychiatrists were in evidence before the chamber judge. He referred particularly to a report of Mr Salzman, a clinical neuropsychologist. In Mr Salzman's opinion the applicant suffered an adjustment disorder following the Moura disaster. He said that an adjustment disorder can be somewhat similar to a post traumatic stress disorder but does not satisfy all of the criteria for that diagnosis. Then, in Mr Salzman's opinion, the applicant developed "full blown post traumatic stress disorder" after the evacuation in December 1997. He also expressed the following opinion: "The research certainly suggests that if a person is a member of a rescue crew and involved in rescue activities, successful or otherwise then it would not be unusual for some members of the rescue crew to develop significant psychological problems either immediately or sometime after the disaster occurred. Following exposure to, or involvement in a disaster, it would be reasonable to expect that a person who then had to return to an environment similar to that in which the disaster occurred, would experience some level of stress. While they may have been able to cope on a day to day basis when working in this environment, their resilience would have been significantly compromised. Then when a further insult to the person's psyche occurred, one with very similar precursors to the earlier event, their ability to cope is significantly reduced. They decompensate to the point where they are no longer able to return to the environment in which they were working and they begin to experience very significant psychological problems both at work and in their personal lives." He concluded that it was more likely than not that the applicant's onset of post traumatic stress disorder was directly related to the Moura disaster. [10] The relevant passage in the chamber judge's judgment is as follows: "10. The evidence read on the application includes a report of a Mining Warden's Inquiry which established a case of negligence -- 3 of 5 -- 4 against the defendant. The first question is whether the evidence shows sufficient proximity between that negligence and Mr Coleman's psyhiatric (sic) illness. Mr Coleman suffered no physical injury. It seems to me that the way the matter is pleaded ......Mr Coleman was within the area of the mine where there was a significant risk of injury to him. In the light of Mr Salzman's evidence, it was reasonably foreseeable that he would develop an adjustment disorder. I am prepared to accept that this raises an arguable case. 11. However, it is clear that his present illness began after the North Goonyella incident. Prior to that incident he had worked for more than three years as an underground miner. The Moura incident may have left him with a significantly reduced capacity to cope, as Mr Salzman says, but until an incident occurred which reminded him of Moura, he continued with his work. The North Goonyella incident did not provide him with new information about the nature and extent of his psychiatric illness. It gave him his illness." [11] In paragraph 10 the chamber judge resolved the issues of negligence and proximity, in the context of adjustment disorder, in the applicant's favour, satisfying those elements of a cause of action for the adjustment disorder for the purposes of s 31(2)(b). However, the thrust of paragraph 11 is that there is no link between the condition of adjustment disorder suffered following the Moura disaster and the "full blown" post traumatic stress disorder which manifested itself after the Goonyella incident. The chamber judge treated the two conditions as separate. [12] The judgment proceeds on the basis that the post traumatic stress disorder was a new illness and not an exacerbation or further development of the adjustment disorder suffered after the Moura disaster. It seems to have been premised on the view that the possibility that post traumatic stress disorder might develop in a case where the first incident had significantly compromised the applicant's resilience in the event of an incident with similar features occurring was not a sufficient link between the two conditions. [13] In addition to the opinions of Mr Salzman referred to above, Dr Kingswell (a consultant physician in psychology) expressed the opinion that the applicant was predisposed to the reaction suffered as a result of the Goonyella incident by his exposure to the Moura disaster. Dr Byrne, a consultant physician in psychology, gave an opinion that there appeared to be a direct relationship between the events which occurred at Moura and Goonyella and the development of the symptoms of post traumatic stress disorder. [14] The earliest mention of a diagnosis of post traumatic stress disorder appears in a report dated 25 February 1998 by the applicant's treating GP, Dr Cartmel. The possible diagnosis of post traumatic stress disorder occurred after the commencement of the year last preceding the expiry of the limitation period. [15] Many people are, from time to time, subjected to experiences which frighten them as incidents of their everyday lives. When a person wishes to bring an action claiming that such an incident is the cause of a psychological condition which has developed a considerable time later and especially where the limitation period has -- 4 of 5 -- 5 elapsed, care must be taken to limit the capacity for unmeritorious claims to be pursued. That is likely to involve making a judgment of the nature of the claim on a case by case basis. [16] However, in this case, the evidence provides a sufficient basis for the applicant's case that his present condition is a direct consequence of the condition that he developed following the Moura disaster due to the negligence of the defendant. Once that is so, it also establishes that the nature and extent of the applicant's injury was not within his means of knowledge until after the commencement of the year last preceding the expiration of the limitation period. In the circumstances the applicant was entitled to an extension of the limitation period. The extension of the limitation period to 15 December 1998, as sought in the summons, would result in the action being commenced within the limitation period. [17] The appeal is allowed. The order of the Chamber judge is set aside and in lieu thereof, an order is made that the period of limitation for an action for personal injuries in Writ 171 of 1998 be extended so that it expires on 15th day of December, 1998. The costs of the appeal shall be plaintiff's costs in the cause, to be assessed. [18] FRYBERG J. I agree with the reasons of Mackenzie J. [19] I add that in my view s 31(2)(b) requires no more than that it appear there is some evidence to establish the right of action. It is not appropriate to examine the issues of law or fact which might arise with a fine toothcomb on this sort of application. Neither is it appropriate to reframe issues properly arising under s 31(2)(b) to try to fit them under s 31(2)(a). [20] The order should be as proposed by Mackenzie J. -- 5 of 5 --