Carlowe v Frigmobile Pty Ltd [1999] QCA 527

SUPREME COURT OF QUEENSLAND CITATION: Carlowe v Frigmobile P/L [1999] QCA 527 PARTIES: CEDRIC CARLOWE (plaintiff/respondent) v FRIGMOBILE PTY LTD ACN 000 196 618 (defendant/appellant) FILE NO: Appeal No 1512 of 1999 SC No 8806 of 1998 DIVISION: Court of Appeal PROCEEDING: General Civil appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 22 December 1999 DELIVERED AT: Brisbane HEARING DATE: 9 November 1999 JUDGES: Pincus JA, Thomas JA and Atkinson J Joint reasons for judgment of Thomas JA and Atkinson J; separate reasons of Pincus JA dissenting. ORDER: Appeal dismissed CATCHWORDS: LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where respondent commenced an action for personal injuries suffered during employment with appellant – where respondent later conclusively diagnosed with psychiatric as well as physical injuries – whether extension of time should be granted to allow respondent to commence an action for psychiatric injuries. Anti-Discrimination Act 1991 (Qld) Limitation of Actions Act 1974 (Qld), s 30, s 31 Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541, referred to Byers v Capricorn Coal Management Pty Ltd [1990] 2 QdR 306, followed Dick v University of Queensland [1999] QCA 474, CA No 3204 of 1999, 12 November 1999, followed Hicks v State of Queensland [1998] 1 QdR 644, referred to Moriarty v Sunbeam Corporation Ltd [1988] 2 QdR 325, followed Pizer v Ansett Australia Ltd [1998] QCA 298, CA No 6807 of -- 1 of 10 -- 2 1998, 29 September 1998, followed Sugden v Crawford [1989] 1 QdR 683, referred to Taggart v The Workers’ Compensation Board of Queensland [1983] 2 QdR 19, referred to COUNSEL: Mr R J Douglas SC, with him Mr B L P Hoare for the appellant Mr A G Munt for the respondent SOLICITORS: Bradley & Co Solicitors for the appellant Trilby Misso & Co Solicitors for the respondent [1] PINCUS JA: The circumstances giving rise to this appeal are set out in the joint reasons of Thomas JA and Atkinson J which I have had the advantage of reading. As it appears to me, the critical issue is whether the respondent proved that he did not, before 22 September 1997, know or have means of knowing that he had a substantial psychiatric disability caused by his work. The respondent’s position is that although he knew, years before 22 September 1997, that he had serious psychological difficulties related to his work it was not until he saw Dr Andrew Byth, after 22 September 1997, that he appreciated that his condition was a psychiatric one, of a substantial kind; I refer to paras 27 and 28 of the respondent’s affidavit and to his statements at pp 33 and 34. The strength of the respondent’s case lies in the difference between two psychiatric reports: that of Dr Mayze of 11 October 1996 and that of Dr Byth dated 27 November 1997. Discussing the former report, the primary judge remarked: “The view was expressed as well that any psychiatric component of the applicant’s symptoms would resolve given certain conditions. In other words, the psychiatric component was treated as a relatively minor and insignificant one”. [2] In my respectful opinion, Dr Mayze’s report should not be so characterised. After discussing the respondent’s symptoms, the doctor remarked: “It was my opinion that from psychiatric perspective he was suffering from major depression and relational problems. Given the absence of other stressors and his focus on work related problems I felt that the work related problems were significant in the aetiology and/or the exacerbation of his symptoms”. It is true that the doctor also thought that the major factors in the case were organic rather than psychiatric and that the latter would resolve “with some satisfactory resolution of his employment problems”. But this statement does not appear to have been intended to contradict the earlier passage and in particular the reference to “major depression and relational problems”. [3] At the time the report I have discussed was written, 11 October 1996, the respondent had been off work since March of that year and after the report the respondent, who had been seeing Dr Mayze monthly, continued to do so for seven more months. It appears from Dr Byth’s report of 27 November 1997 that the treatment Dr Mayze prescribed “was intermittently helpful but did not settle his anxiety or depression satisfactorily and did not affect his chest pain”. Dr Mayze thought resolution of the respondent’s “employment problems” would solve the -- 2 of 10 -- 3 psychiatric difficulties. As I have pointed out, when Dr Mayze’s report was written the respondent had been off work for months and he continued to be so thereafter. The hoped for resolution of the major depression which Dr Mayze had diagnosed, in October 1996, did not occur. [4] The appellant also relied upon information which it was said the respondent should have acted on, obtained in May 1997 at a hearing before a Medical Assessment Tribunal, determining a claim for worker’s compensation. It does not appear to me, however, that that Tribunal’s opinion added anything of significance to the respondent’s knowledge. He then had good reason to think that he had a significant psychiatric condition, related to unpleasant treatment at his work over some years, and also to think that since he had given up work a year before and had psychiatric attention the condition would not easily be cured. As was pointed out by counsel for the appellant, what Dr Mayze’s opinion was in April 1997 when he last saw the respondent does not appear from the material; what does appear is that the psychiatric condition had not significantly improved. I do not think that at the end of his treatment by Dr Mayze the respondent could reasonably have thought that his psychiatric illness was a “relatively minor and insignificant one”. [5] The case is one in which the respondent obtained relief from the operation of the limitation statute on the basis of having got a report from another specialist more favourable to his case than an earlier report. But the two reports cannot be properly compared, in my opinion, without taking into account the intervening events, just discussed. [6] I appreciate that one should not too readily reverse conclusions reached in such cases, albeit reached without such benefit as oral evidence provides. But here the evidence shows that well before the critical date, 22 September 1997, the respondent knew or had means of knowledge that there was evidence that he had a psychiatric condition caused by his work - one which had not succumbed to long cessation of work and long psychiatric treatment. It is true that he did not have, before Dr Byth’s report was given, a written medical report stating that symptoms continued despite cessation of work, and treatment; but he knew that himself. In my respectful opinion, although Dr Byth’s report made the condition sound much worse than had Dr Mayze’s, the evidence did not establish that Dr Byth’s report conveyed “a material fact of a decisive character”. [7] I would allow the appeal. [8] THOMAS JA AND ATKINSON J: The appellant seeks to have this Court set aside an order made pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”) that the time for commencement of an action for personal injuries be extended to 22 September 1998. That was the day on which the respondent commenced an action by writ of summons in which he claims damages for a psychiatric condition allegedly sustained by him in the course of his employment from 1992 until 6 March 1996. -- 3 of 10 -- 4 [9] That the extension provisions are complex and extremely technical and have been a fertile source of litigation has been adversely commented upon by the Queensland Law Reform Commission in their review of the Limitation of Actions Act 19741. [10] The question2 determined by the learned Chamber judge was whether a material fact of a decisive character was within the means of knowledge of the respondent earlier than one year before the date of commencement of the action3. [11] A fact which may be material to a right of action includes the fact of the occurrence of the negligence or breach of duty on which the right of action is founded, the identity of the person against whom the right of action lies, the fact that the negligence or breach of duty has caused personal injury, the nature and extent of the personal injury so caused and the extent to which the personal injury was caused by the negligence or breach of duty. 4 [12] A material fact will be of a decisive5 character if, but only if, firstly under subsection 30(1)(b)(i) of the Act a reasonable person knowing those facts and having taken the appropriate advice on those facts would regard those facts as showing that an action on the right of action would 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 secondly, pursuant to subsection 30(1)(b)(ii) of the Act 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, bring an action on the right of action. Appropriate advice means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts. [13] In this case a material factor of a decisive character relating to the right of action must not have been within the means of knowledge of the respondent until 22 September 1997, being one year before the commencement of the action. It would not have been within the means of knowledge of a person at a particular time if, but only if, the person did not know the fact at that time and so far as the fact was able to be found out, the person had taken all reasonable steps to find out the fact before that time6. [14] Unless the appellant can show that “the judgment reveals that the conclusion is affected by some error of law or fact . . . there is no basis for appellate 1 Report number 53, September 1998 at 37-39. 2 Stripped of its double negatives. 3 Moriarty v Sunbeam Corporation Ltd [1988] 2 QdR 325 at 334 per Macrossan J; Byers v Capricorn Coal Management Pty Ltd [1990] 2 QdR 306 at 307 per Lee J. 4 Limitation of Actions Act 1974 s 30(1)(a). 5 Limitation of Actions Act 1974 s 30(1)(b), 30(2). 6 Limitation of Actions Act 1974 s 30(1)(c). -- 4 of 10 -- 5 interference”7. This Court should be cautious in overturning a decision and not do so merely because if it were considering the application rather than the appeal, it may have come to a different decision. The findings of fact and the determination of whether those facts satisfy the requirements of the statute are made in an area where different minds might reasonably reach different conclusions. [15] The facts of this case are that the respondent commenced employment with the appellant in August 1976. From then until 1991, he worked as an “order picker”, collating customer orders by selecting product items from storerooms, including the chiller and freezer sections, in order to fulfil the order. In 1991 an incentive system was introduced to measure productivity and the respondent thereafter found the workplace more stressful. His supervisor said he was a very good order picker. The respondent took long service leave because of the illness of his father and found the justification he was required to give when seeking this leave increased his anxiety. From February until November 1992, the respondent undertook work which he considered a promotion but was then returned to his former position to help with the Christmas rush. A number of changes had been made in the interim to that work but he alleges he was given no training or assistance to cope with the new system. One of his superiors told him that his work performance was unsatisfactory. [16] On 19 February 1993 the respondent injured his shoulder and was absent from work. When he returned he was again under pressure to attain productivity targets. He says that the appellant’s premises were a very dusty and therefore dirty place to work. [17] During the period when he was employed by the appellant, the respondent, who was born in Burma, was subjected to vicious racial taunts by other employees. [18] In 1994 and 1995 he developed a severe cough and chest pain. In 1994 he feared he was suffering from a myocardial infarction and attended Dr Devereau, a rheumatologist, and received mild analgesics and a series of injections to the chest wall for a diagnosis of costochondritis. On 6 March 1996, he ceased work because of his cough and chest pain. During 1996 and 1997 he consulted his general practitioner with anxiety and depression. [19] The respondent now believes that stress in the workplace caused by management practices and racial taunts has caused him psychiatric injury which manifested itself in physical symptoms. He had believed that his coughing and chest pains were the result of the constant changes in temperature from working in and out of the chiller and freezer system. He believed this on the preponderance of the medical opinion and diagnosis he received. [20] After ceasing work on 6 March 1996, the respondent consulted Dr Heiner, a thoracic physician, on 29 May 1996. Dr Heiner certified that the respondent was totally incapacitated for work as a result of “cough variant asthma” which he developed by working in and out of the chiller and freezer sections. The respondent 7 Pizer v Ansett Australia Ltd [1998] QCA 298; CA No 6807 of 1998, 29 September 1998 per Thomas JA at 9. -- 5 of 10 -- 6 applied for workers’ compensation relying on Dr Heiner’s diagnosis. In a report dated 13 August 1996 Dr Heiner said that he had diagnosed asthma and noted that the respondent was anxious. He referred the respondent to Dr Mayze, a psychiatrist, because the respondent said he was anxious because of the racial jokes and slurs to which he had been subjected at work. [21] As a result of Dr Heiner’s diagnosis of cough variant asthma, the respondent applied for WorkCover benefits on 24 July 1996. On 25 July 1996, the respondent’s solicitors commenced proceedings for personal injury in respect of the asthma condition in Supreme Court Writ No. 6135 of 1996. There was no claim for anxiety or stress. [22] Dr Mayze saw the respondent on 24 July, 28 August, 18 September and 9 October 1996. In a report written on 11 October 1996, Dr Mayze diagnosed “major depression and relational problems”. However he said that it was his impression that “the major factors in this man’s case are organic rather than psychiatric and that his residual psychiatric symptoms would resolve with some satisfactory resolution of his employment problems.” Dr Mayze continued to see the respondent monthly between November 1996 and April 1997. [23] After requests on 25 July and 15 August 1996, the respondent made a statement to the Workers’ Compensation Board in which he complained of unfair management practices, stress, a cough, chest pains and the previous right shoulder injury. On 30 October 1996, the respondent made a statement to the Workers’ Compensation Board to be considered with his application made on 24 July 1996. He described his cough and chest pains and then said: “I continued to work but I was suffering extreme chest pains whilst carrying out my duties. This caused me anxiety and stress. I sometimes thought I was having a heart attack but all ECG’s have been cleared. I am consulting Dr Mayze with regards to my stress condition.” He also mentioned in passing some of the racial epithets which he had been called. [24] Dr Heiner in a report written on 11 November 1996, repeated his diagnosis of asthma and costochondritis/fibromyalgia precipitated by the work related environment ie being in and out of hot and cold temperatures. He again noted that the respondent stated that he had been subjected over the years to various racial taunts and comments and that these racial taunts and comments could contribute to his development of the costochondritis syndrome which is classically seen in anxious individuals. [25] On 5 December 1996, the respondent told the Workers’ Compensation Board that he wished to state the “major cause” of his stress. He said that: “My stress and depression was caused by my supervisor of not being able to voice my opinion where after working 20 years and just being promoted in 1992 and after eight months getting demoted and just to keep my job suppressed my feelings which has now caused me great chest wall pain and anxiety and this is the reason why I have to see Dr Thomas Mayze to be able to come to terms with my suppression and release some of my anxieties that has been built up over the months.” (sic) -- 6 of 10 -- 7 On 18 December 1996, the respondent related to the Workers’ Compensation Board the names of the other employees who had subjected him to racial taunts and said that they had contributed to his development of the costochondrial syndrome. He applied for “full compensation relating to stress”. [26] On 24 March 1997, the appellant entered an appearance to the Writ No. 6135 of 1996 issued on 25 July 1996. Thereafter an undated statement of claim was delivered. A defence was delivered to the statement of claim on 17 June 1997. [27] On 29 May 1997, the respondents claim for workers’ compensation had still not been accepted and was referred to the General Medical Tribunal (Thoracic). The members of the Tribunal considered that the respondent did not have work-related asthma and noted that he was under the care of a psychiatrist and was on a significant dose of anti-depressant medication. [28] On 18 June 1997, Dr Heiner wrote to the respondent’s general practitioner, Dr Fraser, saying that he had spoken to one of the board members of WorkCover who told him that the reason the respondent’s compensation claim on the basis of asthma was disallowed was because he was no longer restricted in his activities by asthmatic symptoms. However, he was also told “quite plainly” that if the respondent reapplied on the basis of psychiatric illness, then he would be favourably received. A copy of this report was sent to Dr Mayze. On 2 July 1997, Dr Heiner reiterated his advice to Dr Fraser that a member of the Tribunal stressed that the respondent should see a psychiatrist and then be reassessed. He said that he knew the general practitioner was going to refer the respondent elsewhere. The respondent did not, at that stage, have an opinion from a psychiatrist to support the further application for compensation and it was considered necessary to refer the respondent to another psychiatrist in order to obtain such opinion. These letters were in Dr Fraser’s file although there was no evidence to suggest that these letters, which were not addressed to the respondent, had been read by him. [29] The appellant submits that the four month period between 29 May and 22 September 1997 was critical and there was both actual knowledge by the respondent that he had psychiatric symptoms and that it was within his means of knowledge that his problems were psychiatric rather than organic in origin. [30] Further steps were taken in Supreme Court action No 6135 of 1996 in October 1997 including disclosure on 9 October 1997 and delivery of the respondent’s statement of loss and damage on 16 October 1997 and the appellant’s statement of expert and economic evidence. [31] The respondent was then seen by another psychiatrist, Dr Byth, on 30 October and 24 November 1997. Dr Byth wrote to Dr Fraser on 7 November 1997 saying the respondent’s history was of chronic anxiety and depression which dated back to stress in his work from 1992 to when he left work in 1996. Dr Byth then discussed the respondent’s case in detail with Dr Heiner. The respondent gave a history of recurring chest pain, anxiety attacks and low moods from 1992 related to incidents at work. Dr Byth diagnosed a mixed state of chronic anxiety and depression which had features of panic disorder and major depression. This illness commenced between 1992 and 1996 as a reaction to work place factors. He also suffers from a -- 7 of 10 -- 8 chronic pain disorder as a result of his high anxiety levels. In a report for WorkCover written on 27 November 1997 Dr Byth concluded: “His anxiety and depression and pain disorder have come on over a period of four years of sustained stress in his work as a storeman and have taken a chronic course. His symptoms have persisted and probably worsened since he has been off work for the last eighteen months. His symptoms have not improved in the time he has been away from the stress of his work however the stress factors in his employment between 1992 [sic] can still be considered the major contributing causes of these psychological conditions.” [32] On 28 November 1997, the respondent told WorkCover that Dr Byth had suggested he claim compensation and explained why his claim was lodged late. On 21 April 1998, the claim was referred to the General Medical Assessment Tribunal (Psychiatric). [33] The appellant submitted that the November 1997 consultation with, and the subsequent report by, Dr Byth did not result in the respondent’s being apprised of anything that he did not know already, save possibly the diagnostic appellation for his condition; that the respondent had the means of knowing that he was suffering from psychiatric symptoms which were significant, which were impacting on his enjoyment of life, and which had their origin in his employment with the appellant; and that there was an unexplained failure promptly to secure any further psychiatric opinion which might have been thought necessary to mount a claim. [34] On 28 May 1998 the respondent’s claim was accepted and he was assessed as having 2% permanent impairment attributable to adjustment disorder with anxiety. The Tribunal considered that in view of the lack of improvement since ceasing work that work circumstances were not playing any significant part in his current emotional state. [35] On 20 July 1998, the Supreme Court proceedings (No. 6135 of 1996) were remitted by consent to the District Court. Interrogatories for the examination of the respondent were delivered on 1 December 1998 but have not yet been answered. [36] On 22 September 1998 the respondent’s solicitors commenced new proceedings with respect to the psychiatric injuries he had suffered. The respondent therefore sought an order extending the period of limitation in relation to any cause of action for psychiatric injuries which arose prior to 22 September 1995 until the date after the issue of the Writ of Summons in these proceedings on 22 September 1998. [37] There was a different diagnosis made by Dr Byth from that of Dr Mayze and more particularly a different view was taken of the aetiology of his condition. Dr Byth viewed the cause of his symptoms as primarily psychiatric, whereas Dr Mayze viewed the cause as primarily organic. The learned chamber judge held that it was not until the respondent saw Dr Byth in November 1997 that “he had a true appreciation of his [psychiatric] condition and of the fact that such a condition justified bringing proceedings in respect of it”. It is not to the point that Dr Heiner, a thoracic physician, suspected that the respondent’s symptoms may be psychiatric in nature. This suspicion was not confirmed by Dr Mayze, the psychiatrist, whose opinion was that the major factors in the respondent’s symptoms were “organic -- 8 of 10 -- 9 rather than psychiatric”. The respondent relies on Dr Byth’s report of 27 November 1997 as constituting a material fact of a decisive character. The learned chamber judge was entitled to conclude, as he did, that prior to receiving the report of Dr Byth or at least oral advice from him in November 1997, the respondent did not know that the major cause of his disability was psychiatric. [38] Was this within his means of knowledge? The respondent had been frank about his symptoms but the psychiatric diagnosis on which he could be expected to rely was that his problems were primarily organic rather than psychiatric in nature. He could hardly be expected to readily reject such a diagnosis. Until he received Dr Byth’s report, the respondent had no medical evidence from a psychiatrist, other than a general practitioner or informally from a panel of thoracic physicians, to support a common law claim or a WorkCover statutory claim for psychiatric illness. The time between Dr Heiner’s suggesting another psychiatrist be consulted on 2 July 1997 and the respondent’s first appointment with Dr Byth on 30 October 1997 was not an excessive delay. The learned chamber judge was entitled to be satisfied that the respondent (through his treating medical practitioners) acted promptly in response to the Thoracic Medical Assessment Tribunal decision and intimation by arranging an appointment with Dr Byth. [39] The test for whether or not a fact was within his means of knowledge depends on whether the respondent took all reasonable steps to find out that fact8. This test has both subjective and objective elements9. What is relevant is the means of knowledge of the respondent and not of some hypothetical reasonable person10. The only step the respondent had not taken was to obtain a second psychiatric opinion before 22 September 1999. There is an adequate explanation for his failure to do so. He had taken all reasonable steps to find out whether or not his symptoms were caused by psychiatric or physical infirmity by relying on the advice of medical practitioners who were specialists in their respective fields. [40] Once the respondent has satisfied the requirements of an extension of time under s 31(2) of the Act, he still bears the onus of showing that the justice of the case requires the exercise of discretion in his favour 11. In this case, the appellant’s employees about whom the respondent has made allegations, gave statements to WorkCover in February 1997. There is no reason to believe that any delay by the respondent in commencing proceedings would prejudice the appellant or make the chances of a fair trial any less likely. [41] It should be noted that the appeal was argued on the basis that the respondent had a claim for negligence against his employer. For the reasons set out by Moynihan J 8 Moriarty v Sunbeam Corporation Limited (supra) at 329; Taggart v The Workers’ Compensation Board of Queensland [1983] 2 QdR 19 at 23-24; Sugden v Crawford [1989] 1 QdR 683 at 685. 9 Dick v University of Queensland [1999] QCA 474; CA No 3204 of 1999; 12 November 1999 at [36] per Thomas JA. 10 Dick v University of Queensland (supra) at [30] per Thomas JA. 11 Brisbane South Regional Health Authority v Taylor (1997) 186 CLR 541 at 551. -- 9 of 10 -- 10 in Hicks v State of Queensland12 the respondent’s claim for breach of statutory duty of the Anti-Discrimination Act 1991 does not contribute to the existence of any right of action under s 31(2)(b) of the Limitation of Actions Act. However, there is a sufficient basis for an action based on negligence to satisfy the requirements of that subsection. [42] The appeal should be dismissed. 12 [1998] 1 QdR 644. -- 10 of 10 --