Bull v Copper Refineries Pty Ltd [1999] QSC 323

• - o ~1~3~ S( QQ/3;)'3 _State Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION REVISED COPIES ISSUED State Reporting Bureau Date 13110199 o CULLINANE J No S868 of 1997 THOMAS EDWARD BULL Applicant (Plaintiff) and COPPER REFINERIES PROPRIETARY LIMITED Respondent (Defendant) o TOWNSVILLE o .. DATE 12/10/99 JUDGMENT 1 4Th Floor, The Law Courts Complex, George Street, Brisbane Q. 4000. Telephone: (07)32474360. Facsimile: (07) 3247 5532 -- 1 of 6 -- o o o 121099 T19/DLD MIT TSVSC6404 (Cullinane J) sustained by him on 24 September 1990 in the course of his employment. A writ was issued on 5 September 1997. The applicant was injured in circumstances which it is accepted satisfy the requirements of section 31(2) (b) of the Limitation of Actions Act. The applicant, who was born on 9 November 1944, was driving a forklift which was on his case unsuitable for the task that he was being asked to perform which involved carrying loads by the forklift up a ramp to the next level. In order to do this, it was necessary to develop as much speed as possible so that the forklift and the load could reach the top of the ramp. On the first occasion that he tried to do so with the load being carried when he was injured, he was not able to get all of the way up to the top of the ramp. He backed down and when on the second occasion he tried to do so, the forks at 10 the front of the machine dug into the ramp and the applicant 20 o was flung over the steering wheel onto the ramp. The applicant sustained some injuries in the area of his chest and had trouble breathing. He was taken to the hospital where X-rays were taken of his chest. He says that he was having a good deal of difficulty breathing and after being given some painkillers, went home. He found that he was sore in the muscles in his chest and stomach and remained off work the following day. He went to see Dr Keyes, who gave him a certificate to remain off work until 22 October 1990. A copy 30 2 JUDGMENT -- 2 of 6 -- o 121099 T19/DLD M/T TSVSC6404 (Cullinane J) of Dr Keyes' report to the Workers' Compensation Board is in evidence. During the following month, he received physiotherapy treatment and suffered a good deal of pain in his chest, but was able to return to work on 22 October 1990. He had not prior to this, noticed any problems with his neck. When he returned to work, however, he noticed that his neck would from time to time be sore and stiff and that he would get episodes of headaches and neck soreness. I should mention that he had a history of headaches prior to the accident, as appears from the records of the respondent recording complaints made by o employees. o o However, he says that those after the accident were different, in that they were associated with some neck soreness. He says he put up with the problem and obtained painkilling drugs over the counter at a pharmacy. In his affidavit he says he did not seek any treatment in relation to his neck injury. In evidence before me he says that on one occasion he mentioned it to Dr Arlett, his general practitioner, who prescribed some painkilling drugs. However, he says that Dr Arlett did not suggest to him that he had any injury of any significance and he did not thereafter seek any further treatment about the matter. It was common ground that Dr Arlett's records contain no reference to these matters. He describes intermittent pain which did not interfere with his capacity to work and it is not suggested that he had any time off work. 3 JUDGMENT 10 20 30 -- 3 of 6 -- o o o 121099 T19/DLD M/T TSVSC6404 (Cullinane J) On 7 March 1996 he rolled over in bed and put his right hand up beneath the pillow. At this time he suffered the onset of intense pain and that day went to see Dr Arlett, who made arrangements for an orthopaedic surgeon to see him, as a result of which he was put into hospital immediately and underwent a number of tests. Extensive degenerative changes were identified and subsequently a disc herniation at C7 T1 was identified. A spinal fusion was carried out at that level on 18 March 1996. Since that time he has ceased his employment with the respondent. He has a significant disability of the cervical spine which prevents him from carrying out the work he previously did. Dr Guazzo does not think there is any connection between the accident of 1990 and his present condition. Dr Guazzo performed the fusion. Dr Lewis thought that the 1990 accident contributed to his present condition as to one third of the total disability. 10 It would see, however, that the first time that the applicant 20 <:> obtained an opinion from any medical specialist in support of the material fact that he relies upon here, namely, that the 1990 predisposed him to the development of the disc herniation in 1996, was when Dr Watson, a specialist in rehabilitation medicine, provided a report of 28 June 1999. He was called in evidence and cross-examined. It is his view that the disc rupture in 1996 would not have occurred in what he describes as the trivial circumstances in which it did without the injury which he says the applicant sustained to his spine in 1990. 4 JUDGMENT 30 -- 4 of 6 -- • o 121099 T19/DLD MIT TSVSC6404 (Cullinane J) There was some argument before me as to what the applicant had to satisfy the Court of as to the existence of the material fact alleged. As would be apparent from what has been said, a substantial dispute existed between Dr Watson and Dr Guazzo as to the existence of this material fact. Dr Guazzo contradicted Dr Watson's opinion, expressing the view that there was no connection between the 1990 accident and the applicant's current condition. It is of course not the Court's function on an application of this kind to try this issue. It is, in my view, sufficient for present purposes for the applicant to point to competent o medical advice that his condition was probably caused by the o accident for which, on the applicant's case, the respondent is negligent. It was not suggested that if the applicant brought himself within section 31 of the Act, any discretionary grounds existed for refusing relief. It is true that the applicant for a considerable time suffered 10 from symptoms in the upper spine and headaches and apart from 20 o raising the matter briefly, apparently in passing, with Dr Arlett, he did not seek any further advice on the subject. However, he was able to continue his work without taking any time off and the pain was intermittent. He did not at any time associate it with the injury that he sustained whilst driving the forklift. I do not think that his conduct should be regarded as anything other than reasonable in the circumstances. The applicant has satisfied me that the appropriate course to take is to order 30 5 JUDGMENT -- 5 of 6 -- o o o o 121099 T19/DLD M/T TSVSC6404 (Cullinane J) the extension of the limitation period. I order that the time for the institution by the applicant of proceedings against the respondent in respect of injuries sustained by him on 24 September 1990 in the course of his employment with the respondent be extended so that the time expires on 6 September 1997. I order that each party's costs be costs in cause. 6 JUDGMENT 10 -- 6 of 6 --