Carter v Ansett Australia Ltd [2000] QDC 49

DISTRICT COURT OF QUEENSLAND CITATION: Carter v Ansett Australia Ltd [2000] QDC 049 PARTIES: DEBORAH ELIZABETH CARTER (Applicant) v. ANSETT AUSTRALIA LIMITED (ACN 004 209 410) (Respondent) FILE NO/S: D 1227 of 2000 PROCEEDING: Civil COURT: District Court DELIVERED ON: 1 June 2000 DELIVERED AT: Brisbane HEARING DATE: 19 May 2000 JUDGE: ORDER: CATCHWORDS: Judge Brabazon Q.C. Pursuant to s. 31 of the Limitation of Actions Act 1974 (as amended) the period of limitation for an action by Deborah Elizabeth Carter against Ansett Australia Limited, for damages for personal injury suffered by her as a result of exposure to toxic chemicals whilst in the employ of Ansett, be extended so that it expires on 31st August 2000. That the costs of and incidental to this application including the costs of the adjournment of 13th April 2000 be the parties costs in the action to be commenced by her. LIMITATION OF ACTIONS – personal injuries – extension of time - applicant seeks leave to appeal on basis of lack of knowledge of a “material fact of a decisive character” as per Limitation of Actions Act 1974 Limitations of Actions Act 1974 s.31 Chew v East West Airlines Limited and Ansett Moriarty v Sunbeam Corporation Ltd (1988) 2 Qd R 325 Do Carmo v Ford Excavations Pty Ltd (1983) 154 CLR. 234 Berg v Kruger Enterprises (Division of Bessser Qld Limited) Ltd 2 [1990] Qd R 301 Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R -- 1 of 20 -- 2 COUNSEL: SOLICITORS: Mr Goodwin for the applicant Mr Keane Q.C. and Mr Kelly for the respondent Messrs Hall Payne Lawyers for the applicant Messrs Clayton Utz for the respondent [1] Ms Carter used to work for Ansett Australia Limited as a flight attendant. She often flew on BAE 146-200 series aircraft. She says that toxic fumes in the cabin have damaged her health. She wants to sue Ansett. However, the three year limitation period has expired. [2] She now applies pursuant to s. 31 of the Limitations of Actions Act 1974, for an extension of time to bring proceedings against Ansett. The application is opposed. [3] The facts are set out in Ms Carter’s affidavit, and in an affidavit by Ansett’s solicitor. There has been no cross-examination. The Facts [4] Ms Carter has already made an unsuccessful application for worker’s compensation. It will be helpful to look at that application with some care. The history of it is closely linked to the merits of her present application. [5] Ms Carter identifies 18th November 1994 as the date of her most serious exposure to cabin fumes. She was on a BAE 146-200 aircraft. On that date, she says, the cabin was filled with strong fumes on several occasions. All three flight attendants had to use portable oxygen during the takeoffs and landings during that day. She -- 2 of 20 -- 3 developed nausea, headaches, a sore throat and sore eyes during the day. Afterwards, she complained of chronic symptoms, the worst being severe pharyngitis, extreme lethargy and headaches. [6] She went to see her general practitioner in Cairns, Dr Simon Knowles, on 23rd November 1994. On 8th December 1994 she lodged a claim for worker’s compensation, with the Workers’ Compensation Board of Queensland. However, the Board would not accept her claim. On 10th December 1995 she attended a General Medical Assessment Tribunal Hearing. No decision was made on her claim. Then, on 11th November 1997 she attended a further Medical Assessment Tribunal Hearing. On 17th November 1997 she was advised that her claim for compensation had been rejected. [7] The 17th November 1997 had a double significance. It was three years, almost to the day, after the incidents of 18th November 1994. The usual three year limitation period on claims for personal injury also expired. It is common ground that, at the latest, the three years would have run from 18th November 1994. [8] On 10th November 1997 Ms Carter signed her statement to put before the Tribunal. It was used in these proceedings to show her knowledge of her own position at a critical time. It is convenient to set it out in full: “1. My full name is Deborah Elizabeth Carter and I am a claimant for compensation in respect of my employment with Ansett Airlines of Australia. My claim arises out of my working as a Flight Attendant on the BAE 146-200 series aircraft. 2. On 18 November, 1994 I suffered nausea, headaches, a sore throat and sore eyes as well as headaches in consequence of flying on this aircraft. I say that during travel on four -- 3 of 20 -- 4 sectors on the BAE 146-200 I was breathing in an acrid fume. This fume burned my eyes and I found it difficult to breath(e). I was on oxygen twice during the day. 3. In consequence of my exposure I suffered multiple symptoms, the worse being severe pharyngitis, extreme lethargy and headaches (see the report of Dr Swaine. 18 February, 1995). 4. In Dr Swaine’s view ‘there is no doubt that her condition resulted from exposure to noxious fumes in the course of her employment.’ (see Dr Swaine’s report, 18 February, 1994) 5. On 10 April 1995 I presented to Dr Shaughan Terry. I refer to his report dated 26 April, 1995 to the Workers’ Compensation Board of Queensland. 6. I urge the Medical Assessment Tribunal to carefully consider the report of Dr Terry. In his report Dr Terry concludes that the proper diagnosis of my symptoms is ‘chemically induced erosive gastritis.’ 7. In his report Dr Terry notes ‘without knowing precisely what the fumes are composed of, which would require analysis of the fumes at the times that they are produced. It is difficult to know whether the two are causally related, but in the absence of contradictory evidence I believe that they are and that the story is consistent with an occupational exposure to multiple chemicals by inhalation which have caused a chronic gastritis.’ 8. It is not possible for me to produce evidence to the Tribunal of the analysis of the fumes , it is unfair for the Tribunal to request that I do so. I am aware of other exposure claims being dealt with by the Tribunal and understand that each case must be dealt with on its own merits. 9. I have read the report of Dr Carroll dated 21 April, 1995. I reject the conclusions of Dr Carroll and will address the Tribunal on Dr Carroll’s report. 10. I refer to and rely on the following reports:- (i) Dr S Terry 1 June, 1995 (ii) Report dated 4 September, 1995 from Dr S Terry to the Workers’Compensation Board of Queensland with enclosure (iii) Letter 22 August, 1995 from Dr S Terry to MacDonnells -- 4 of 20 -- 5 (iv) Medical Certificate No. 3011956 dated 21 September, 1995 of 4 September, 1995 and to prefer this report over the report of Dr P Carroll dated 21 April, 1995 11. In particular I ask that the Tribunal carefully consider the report of Dr Terry of 4 September, 1995 and to prefer this report over the report of Dr P Carroll dated 21 April, 1995. 12. In Dr Terry’s view (4 September, 1995) my ‘clinical syndrome is within the range of toxic effects described for the agents concerned.’– Dr Terry believes my claim is valid and has considerably reviewed the material prior to preparing his report of 4 September, 1995. 13. In particular I would ask the Tribunal to carefully consider paragraphs (a) to paragraph (f) on page 2 of Dr Terry’s report. 14. I can argue my case no higher than to urge upon the Tribunal to agree with the conclusions of Dr Terry:- ‘The history, physical signs and laboratory data are all well in keeping with a recurrent occupational exposure to xylenes and possibly other organic chemicals as well. A particularly heavy exposure took place on November, 18 1994. This produced an acute reaction and sub- acute/chronic illness, which has been pathologically verified and which still has not completely settled over eight months. Her claim is irrefutable.’ I ask the Tribunal to find that the chemically induced erosive gastritis in my presentation constitute an injury, which results in a permanent partial incapacity for work.” [9] The evidence here also reveals some additional facts: (a) On 6th and 20th December 1994, Dr Knowles signed medical certificates in relation to her compensation claim. He recorded that she was suffering from “recurrent pharyngitis and malaise” (?) which Ms Carter had stated was caused by “fumes in aircraft – fumes at work”. (b) On 8th December 1994, Ms Carter signed a statement to the Board. In relation to 11th November 1994, she said that “during four sectors -- 5 of 20 -- 6 on BAE 146-200 I was breathing in an acrid fume. This fume burnt our eyes and I found it difficult to breathe. I was on oxygen twice during the day”. (c) On 31st January 1995, Dr Swaine signed a certificate saying that she was suffering from “multiple chemical sensitivity” which she claimed to be caused by “exposure to noxious fumes in aircraft”. He prepared further certificates to the same effect on 19th May and 21st September 1995. (d) In her application for worker’s compensation, Ms Carter was represented by solicitors, Messrs MacDonnells of Cairns. (e) On 22nd August 1995, Dr Terry wrote to her solicitors, saying that: “my opinion is that there is good clinical and pathological evidence that there has been occupational exposure to a toxin or toxins and that Ms Carter’s present illness is a direct consequence of this exposure”. (f) Ms Carter remained off work between January 1995 until August 1995. She then believed that she could not continue in her employment because of her ongoing symptoms as a result of her exposure to the fumes. She left Ansett. (g) After leaving Ansett, she says that she started to feel better, and hoped that her symptoms would eventually pass as she would not be working again as a flight attendant. However, while working at the Cairns Base Hospital in July 1997, she noticed a type of dermatitis appearing on her body. She recalled having had a similar reaction both before and shortly after the incidents of November 1994. -- 6 of 20 -- 7 She made a further worker’s compensation claim. However, that was also rejected. Dr Carroll [10] Doctor Carroll is a physician with an interest in internal medicine and toxicology. His formal qualifications are impressive - BE (Chem), BM B Ch (Oxon), MPH (HBD) FRACP. [11] He first saw Ms Carter on 6 March 1995. He wrote a report for the Workers’ Compensation Board of Queensland on 21st April 1995. In summary, he said that a claim for multiple chemical sensitivity could not be justified, as there was no such entity. Her illness most closely resembled a resolving viral infection. Her claim for compensation could not be supported. He recorded a number of sources of information. Those sources included a letter from Ansett’s medical director addressed to the Workcover authority in another State. He also referred to reports about the cabin air supply in certain BAE 146 aircraft (not necessarily the BAE 146-200 model). After what appeared to be a careful and thorough examination of her condition, he said this: “The issue of contamination of cabin air on the BAE 146 has been discussed and investigated at great length. ... No levels of any clinical significance have been found. The presenting features of the claimant are much more consistent with a viral illness. No toxic exposure causes this manifestation of symptoms. In particular, the skin rash is simply not compatible with toxic exposure and is compatible with a viral illness, particularly its resolving nature. ... Essentially there is no diagnosis (as multiple chemical sensitivity) ... I am unable to find any supporting evidence for this plan”. It is apparent that Dr Carroll’s opinion was accepted by the Tribunal. -- 7 of 20 -- 8 Ms Carter’s Knowledge [12] Ms Carter knew about the conflicting medical opinions. No doubt, because of the views of Drs Knowles, Swaine and Terry, she believed that her symptoms were caused by the cabin fumes. She must have believed that she was entitled to worker’s compensation. However, in November 1997, she must also have known that Dr Carroll’s views had been accepted by the Tribunal. [13] In paragraph 13 of her affidavit, she describes her own belief about possibly bringing a claim against Ansett: “Following the rejection of my claim for worker’s compensation I believed that I could not bring an action for my exposure in 1993 and 1994 with any reasonable prospects of success, as I was totally unable to adduce any evidence as to what substance I was exposed to on any date. At or about this time I was also informed by a solicitor whose name I cannot now recall that there was a three year limitation period to commence a claim against Ansett which had already expired”. [14] That paragraph 13 led to a request from Ansett’s solicitors, that she disclose any correspondence, advices and fee notes passing between herself and her solicitor at the time. It was asserted that, as the legal advice was a fact in issue, there could be no claim for legal professional privilege. There was no response to that request. It is now submitted for Ansett, that it should be inferred that there was no legal advice given to Ms Carter before 17th November 1997, that a claim for damages did not have a reasonable prospect of success. It is observed that Ms Carter, or her then solicitors, have not given evidence about any such advice having been sought or given. -- 8 of 20 -- 9 [15] Indeed, in paragraph 20 of her affidavit, this appears: “I say that prior to September 1999 as a result of the matters I have referred to above I did not believe that I had any reasonable prospect of success in any such action”. [16] In my opinion, it is not necessary, or desirable, to attempt to infer what she and her solicitor would have discussed about the prospects of bringing an action against Ansett. It should be accepted that she believed that she did not have any reasonable prospects of success. Because of Dr Carroll’s report, and the rejection of her claim by the workers’ compensation authorities, that is hardly surprising. Whatever advice she may have received, or did not receive, she must surely have believed that Dr Carroll’s report was a barrier to success. [17] It is also submitted on behalf of Ansett that appropriate legal advice, if obtained before 17th November 1997, would have been to the effect that it was in her interests to sue Ansett. In my opinion, it is impossible to accept that submission. Her solicitors had obviously gone to considerable efforts to persuade the Board and the Tribunal to accept her case. Their efforts had failed. In the light of that discouragement, and Dr Carroll’s report it is difficult to see why a solicitor would have advised her to sue Ansett for negligence and breach of duty. Later Developments [18] Ms Carter belongs to a union. In about September 1999, the union sent her the judgment of Judge Moran of the Compensation Court of New South Wales. Delivered on 28th April 1999, it is a decision in Chew v East West Airlines Limited -- 9 of 20 -- 10 and Ansett. (Matter1956/1995, unreported) It seems that Ansett had taken over East West Airlines. [19] Secondly, also in September 1999, she says that she received for the first time copies of submissions to a Senate inquiry. It was an inquiry by a committee of the Senate into air safety, and in particular the cabin air quality of the BAE 146. She says that she received 24 submissions. Eight of those related to cabin air quality. Those eight are exhibited to her affidavit. Nothing has been said about any of the other reports. [20] Judge Moran’s judgment deals with similar complaints from Miss Chew, who was a flight attendant on the same type of aircraft. She had complained about her exposure to smoke and fumes in the aircraft cabin. Miss Chew’s case was supported by five medical practitioners, whereas at least six gave contrary opinions in favour of rejecting a claim for compensation. Doctor Carroll was one of that group. In the end Judge Moran preferred the evidence given by Ansett’s doctors, and in particular by Dr Carroll and Professor Lobley, that the diagnosis of multiple chemical sensitivity was wrong. He found that Miss Chew was suffering from an aggravation of glandular fever or Epstein Barr virus. That finding was enough to secure the compensation that Miss Chew was claiming, as the exposure to the fumes had aggravated her existing condition. He found that as a result of her injury, she was totally incapacitated for work for a little over four years, and thereafterwards partially incapacitated for work. While many people would have recovered quickly from the effects of the fumes, Miss Chew was a susceptible person. The cause of her incapacity was the fumes in the cabin of the aircraft. -- 10 of 20 -- 11 [21] The eight Senate reports were all prepared in about mid-1999. They are from: (a) Dr Mark Donohoe (an Australian medical practitioner with an interest in the long term effect of low levels of chemicals on human health); (b) Dr Richard Teo (an Australian psychologist who had diagnosed brain damage in two pilots and three flight attendants of BAE 146 aircraft); (c) Mr Stephen Tyrrell (an Australian physicist, he believed the fumes from the engine oil of the BAE 146 to be “highly suspect” as a cause of the reported illnesses); (d) Dr J.C. Balouet (Head of the Department of the Environment at the Sorbonne University, and Chair of the Occupational (Safety Sub- Committee of the Aero Space Medical Association). He says that some aircraft types, including the BAE 146, as operated by Ansett, are the cause of 90 per cent of worldwide problems involving cabin fumes; (e) Associate Professor Chris Winder (toxicologist and Head of the School of Safety Science at the University of New South Wales.) The executive summary to his report is attached to this judgment, as it contains his opinions about air quality in BAE 146 aircraft cabins. (Later in the report, he explains that the problem in the BAE 146 is caused by toxic chemicals in the lubricating oil escaping through engine seals into the ventilation system); -- 11 of 20 -- 12 (f) Dr Judith Ford (geneticist). She says that studies on cabin crew and pilots from the BAE 146 (5 people) show chromosome damage caused by chemical toxins. (g) Dr C. Van Netten, (University of British Columbia), reports that the BAE 146 aircraft have an inherent problem with leaking oil seals. The engine oil contains compounds with neuro-toxic properties. (h) Drs Kristensen and Hartley, report on the toxicity of Mobil Jet Oil II that was used in BAE 146 aircraft. [22] The above reports were written about four years after Dr Carroll’s report. A check of Dr Carroll’s references shows that they go back to 1991-1993. It seems that more information has become available in the intervening years. It shows that the BAE 146-200 aircraft had a problem with oil seals, allowing toxic fumes to enter the cabin. Those fumes have been shown to cause long term health problems. The main culprit appears to be the compound TOPC to be found in Mobil Jet Oil II. The reports contain strong corroborative evidence for Dr Terry’s opinions. If accepted, they tend to show that Dr Carroll’s opinions about Ms Carter were wrong. There is also a suggestion, by Dr Donohoe, that Dr Carroll was not an impartial expert. [23] It is necessary to return to Ms Carter’s reaction to this new material: “Since reading both the judgment of Judge Moran and (the eight reports referred to above) I have become aware that there is significant evidence now of the actual constituent parts of Mobil Jet Oil II and the existence of TOCP. I am now aware of the existence of evidence which, in my opinion, sufficiently supports my case to make me believe that there is now sufficient evidence to warrant my commencing an action with what I believe to be now reasonable grounds to believe that I have sufficient prospects of success to warrant bringing that action. ....” -- 12 of 20 -- 13 The Limitation of Actions Act [24] Ansett resists this application, on the basis that Ms Carter knew all of the “material and decisive facts” by November 1994. That is the only ground relied on. It is not suggested, that an action would not result in an award of damages sufficient to justify the bringing of the action. (Section 31(2)(b)). There is no suggestion of prejudice to Ansett, caused by the passing of time. [25] Pursuant to s. 30(2) of the Act, Ms Carter must establish, as a condition precedent to the extension of the three year limitation period, that a “material fact of a decisive character” as defined in the Act, was not within her means of knowledge – at least until 31st August 1999, one year before the date to which it is sought to extend the limitation period. The court can only order an extension of limitation period to expire at the end of one year after the date at which the material fact of a decisive character came within her means of knowledge. That is matter of jurisdiction, and not just discretion. See the decision of the Full Court of Queensland in Moriarty v Sunbeam Corporation Ltd (1988) 2 Qd R 325 at 335. [26] Section 30(b) of the Act relevantly provides: “(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 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; and (ii) that the person whose means of knowledge is in question ought, in the person’s own interests, and taking the person’s -- 13 of 20 -- 14 circumstances into account, to bring an action on the right of action”. “Appropriate advice” is defined as follows: “... 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” (s.30(2) of the Act). [27] The policy of the Act was explained by the High Court in Do Carmo v Ford Excavations Pty Ltd (1983) 154 CLR. 234 in its consideration of the New South Wales limitation provisions which were in relevantly identical terms to the Queensland Act. Wilson J. (at 264) cited with approval the following passage from Lord Pearson’s speech in Smith v Central Asbestos Co [1973] AC 518 at 541-542: “It seems to me that Parliament has drawn the line between ignorance of the facts (material and decisive facts) and failing to draw the conclusions which a reasonable man, with the aid of expert advice, would have drawn from those facts as to the prospect of success in an action. If the applicant did not know one or more of the material and decisive facts, his lateness in bringing the action is excused. If he knew all the material and decisive facts, but failed to appreciate his prospects of success in an action because he did not take expert advice or obtained wrong expert advice, his lateness in bringing the action is not excused.” See also Deane J in Do Carmo at 250, and 252-253. Lord Pearson’s statement was also approved unanimously by the Full Court of the Supreme Court of Queensland in Berg v Kruger Enterprises (Division of Bessser Qld Limited) Ltd [1990] 2 Qd R 301 at 302. [28] The discovery of a material fact will not justify an extension of the limitation period where the applicant already knew sufficient facts before that discovery to make it in his or her own interests to institute proceedings. As stated by Macrossan CJ in Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325 at 333:- “In cases like the present, an applicant ... must show that without the newly learned fact or facts he would not, even with benefit of -- 14 of 20 -- 15 appropriate advice, have previously that he had a worthwhile action to pursue and should in his own interests pursue it. this is what the application of the test of decisiveness under s. 30(b) comes down to: Taggart v The Workers’Compensation Board of Queensland ... and Do Carmo v Ford Excavations (1984) 154 CLR 234, per Deane J.” See also Berg v Kruger Enterprises, supra, at 304-305. [29] In a case of this type, guidance can be obtained from the decision of the Queensland Court of Appeal in Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431. There, a patient underwent a myelogram which involved the injection of dye into her spine. She alleged that that caused a painful condition in her spine. Medical opinion at the time was uncertain about the connection between the use of the dye and her painful back. It was not until years later that she received a clinical report, to the effect that the most likely cause of her condition was the myelogram. [30] The Court of Appeal had to consider whether or not a material fact of a decisive character had been within her knowledge. Macrossan CJ put the matter this way: “The statutory scheme constituted by sections 30 and 31 seems to assume that an applicant either may or may not at some earlier time have knowledge of particular matters which are in the category of material facts but she has nevertheless not excluded from the possibility of obtaining an extension of limitation period. If she has not yet (and even if she had made reasonable inquiries and taken advice would not yet be) in possession of some one or more material facts of a decisive character. When some critical knowledge of facts is belatedly gained which puts her over the borderline into a position where for the first time she has reasonable prospects and should in her own interests commence his proceedings she may be entitled to an extension. See Berg v Kruger Enterprises [1990] 2 Qd R 301; Sugden v Crawford [1989] 1 Qd R at 686 and Moriarty v Sunbeam Corporation Limited [1998] 2 Qd R 325 ... ... The body of evidence which a plaintiff collects or, as it may be put in terms of the expressions used in section 30, her assemblage of ‘material facts’ will only constitute a ‘decisive’ election when an -- 15 of 20 -- 16 appropriately advised reasonable woman in her position is possessed or would, if she had inquired in appropriate fashion, be possessed of what she would regard as reasonable and worthwhile litigation prospects. The policy detectable in this legislation does not suggest that a potential plaintiff with the limitation period running against her must necessarily always commence her proceedings when she has no more than a hint of the existence of a necessary link in her chain of proof but, of course, if being at that point she delays he will do so at her peril because she will only subsequently persuade herself if she can persuade a judge that she did not know enough or would not, even if she had undertaken appropriate inquiries, have known enough to justify commencing proceedings at an earlier time.” [31] Davies JA dealt with the difficult question of an applicant’s means of knowledge, faced with conflicting medical reports. The important thing was to identify the fact of the existence of the causal relationship, rather than evidence of that fact. The more difficult question is to work out when that fact comes within a person’s means of knowledge. The patient did not herself know what caused her back pain. She had to rely on the opinions of others. The judge quoted a New South Wales decision, where the opinions of others were vital. There are particular difficulties in the case where diametrically opposed opinions are offered. In such circumstances, when does the recipient of the opinions “know” what happened? [32] Davies JA answered the question in the case before him this way: “I would apply the (above tests) to the resolution of this question; that is, the fact that the myelogram caused the patient’s back pain was within the means of knowledge of the patient, only when the steady preponderance of opinion or belief of a person who had taken all reasonable steps to ascertain that fact would have been that that was so. ... That would not necessarily have been when a favourable opinion was first communicated to her, particularly where, as in this case, there were for a time thereafter conflicting opinions. ... -- 16 of 20 -- 17 There can be no doubt as to the persistence of the patient in her attempts to establish the necessary causation. I do not think it could be said that there are any steps which she ought reasonably to have taken which she did not. And I would conclude that, at least until she received the opinion expressed by Dr Burton in April 1989, the steady preponderance of opinion of a reasonable person in her position would not have been that her back pain was the consequence of the myelogram. ... I would therefore conclude that she has shown that a material fact of a decisive character relating to the right of action was not within her means of knowledge until on or after 23 March 1989, namely that her back pain was the consequence of the myelogram in July 1972. ...” [33] Therefore, both the Chief Justice and Davies JA allowed the extension of time. However, the third judge, Ambrose J, took a more critical view. In substance, he thought that the plaintiff had delayed merely until her prospects of success appeared to be better. He put the matter this way: “In my view there is nothing in Sugden v. Crawford or Berg v. Kruger Enterprises to support the bald proposition that the applicant who had been advised over a period of many years by medical practitioners that they believed she suffered from arachnoiditis, and by one that he believed it had probably been caused by injection of myodil into her spine in 1972, was able to postpone indefinitely the institution of proceedings to enforce her right of action until a time was reached when she and/or her legal advisers were persuaded that upon the state of medical opinion and medical knowledge then available she might be more confident in establishing essential facts material to her right of action because expert witnesses might then give evidence to support her case with more confidence having regard to the results of various medical investigations and reports conducted since 1972. ... The essence of the applicant’s case is that s. 31(2)(a) of the Limitation of Actions Act permitted her to postpone the institution of proceedings, to succeed in which she must establish a material fact or material facts, not merely until she had knowledge of such facts but until such time as she or her legal advisers were persuaded upon examination of all information and evidence then at hand that her prospects of success in establishing in court her right of action based upon those facts were better than they would have been had -- 17 of 20 -- 18 proceedings been instituted when those facts, first came within her knowledge more than 12 months before her application for extension of the limitation period was made. Keeping in mind the constraints of s. 30 of the Limitation of Actions Act, such a contention could only succeed if having regard to her state of knowledge and the evidence and advice at her disposal prior to 23 March 1989, it could be said that in the circumstances it was reasonable for her to refrain from commencing action until her state of knowledge, available evidence and advice thereon, reached a level which upon objective evaluation would for the first time make it reasonable for her to commence the action. See Smith v. Central Asbestos Co. at 542.” [34] Bearing in mind the explanations of the Act in Glaxo, and applying them in this case, these conclusions should be reached: (a) While Ms Carter believed the opinions of Drs Knowles, Swaine and Terry, she did not “know” that her condition was caused by cabin fumes in the BAE 146-200. (b) She did not “know” that connection, because she, and her advisers, were faced with a diametrically opposed medical report by Dr Carroll, apparently an expert with strong qualifications. Her own medical advisers were not able to pinpoint why there was a causal link between that aircraft and her condition. (c) When she could not even persuade the Medical Assessment Tribunal that she had a workplace injury, her prospects of launching court action against Ansett could hardly have appeared to be worthwhile. (d) The decision in Chew showed her that an applicant for compensation in a similar position might recover it because of an aggravation of an existing condition, even though Dr Carroll’s views about multiple chemical sensitivity were accepted. (e) The eight reports to the Senate inquiry went further. They identified the precise reason for the cabin fumes in the BAE 146 aircraft – the -- 18 of 20 -- 19 presence of faulty oil seals combined with the presence of the toxic chemical TOCP in the lubricating oil. They also confirmed that there were widely reported links between diffuse symptoms, such as those suffered by Ms Carter, and work as a flight attendant or aircrew in such aircraft. (f) For the first time, Ms Carter learned of facts which quite strongly suggested that Dr Carroll’s opinion was wrong, and should not be accepted. The facts suggest a causal link between her work and her symptoms. (g) It was reasonable to delay her proceedings until that further information became available. [35] In my opinion it is clear, on the material in this application, that “material facts of a decisive character” were not within her means of knowledge until after 31st August 1999. She should be granted an extension of time, as she requests, to commence an action against Ansett. [36] (In the event that another court takes a different view, or she fails on the issue of liability, then consideration at least might be given to a reopening of the compensation claim, if that is possible.) [37] The order is, that pursuant to s. 31 of the Limitation of Actions Act 1974 (as amended) the period of limitation for an action by Deborah Elizabeth Carter against Ansett Australia Limited, for damages for personal injury suffered by her as a result of exposure to toxic chemicals whilst in the employ of Ansett Australia Limited, be extended so that it expires on 31st August 2000. -- 19 of 20 -- 20 [38] Subject to any further submissions about costs, it is ordered that the costs of and incidental including the costs of the adjournment of 13th April 2000 to this application be the parties costs in the action to be commenced by Ms Carter. -- 20 of 20 --