Dick v University of Queensland & Anor [1999] QSC 43

IN THE SUPREME COURT OF QUEENSLAND Brisbane Before White J [George Dick v University of Queensland & Anor] BETWEEN: GEORGE DICK UNIVERSITY OF QUEENSLAND AND: B.P. AUSTRALIA LIMITED (ACN 004 085 616) REASONS FOR JUDGMENT - WHITE J Judgment delivered 12 March 1999 No. 6155 of 1996 Plaintiff First Defendant Second Defendant CATCHWORDS: Limitation of Actions Act 1974 - s.31 - material fact - failure to appreciate had a common law action. Counsel: Solicitors: Hearing Date: Mr D North S.C., with him Mr Howe, for applicant. Mr M O'Sullivan for respondent. Kruger Law for applicant. Tutt & Quinlan for respondent. 8 March, 1999 [1999] QSC 43 -- 1 of 8 -- 1. 2. IN THE SUPREME COURT OF QUEENSLAND Brisbane Before White J [George Dick v University of Queensland & Anor] BETWEEN: GEORGE DICK UNIVERSITY OF QUEENSLAND AND: No. 6155 of1996 Plaintiff First Defendant B.P. AUSTRALIA LIMITED (ACN 004 085 616) REASONS FOR JUDGMENT - WHITE J Judgment delivered 12 March 1999 Second Defendant This is an application pursuant to s.31(2) of the Limitation of Actions Act (1974) to extend the period of limitation of the subject action to 25 July 1996, the date of issue of the writ. The first defendant only is respondent to the summons. The second defendant has not pleaded the Limitation of Actions Act in its defence. The plaintiff commenced employment with the first defendant in 1958 in the Department of Mechanical Engineering as a laboratory technician at the first defendant's St Lucia Campus. -- 2 of 8 -- 3. 4. 5. 2 From about 1966 until August 1995 the plaintiff was required to use a solvent in the course of his employment known as BP13 which was manufactured by the second defendant. BP13 contained a substance - n-hexane - which allegedly has caused the plaintiff to suffer a neurological injury known as "peripheral neuropathy". The plaintiff suffered from gradually worsening painful neurological symptoms in his feet and hands which are described as the "classic symptoms" of peripheral neuropathy. However, he had not lost any wages in respect of this condition. The plaintiff consulted Dr P Carroll, a physician, on referral from Dr Richard Boyle, the Director of Neurology at the Princess Alexandra Hospital on 21 July 1995. For the first time he was diagnosed as suffering from peripheral neuropathy induced by n-hexane. Another worker in the same laboratory, Mr Ross Nugent, apparently suffered from similar but more severe symptoms and another co-worker, Mr Neil Duncan, complained of symptoms similar to the plaintiff. Dr Carroll's report dated 24 July 1995 was copied to the plaintiff and concluded: "It has been recommended that the use ofBP13 be ceased and that occupational hygiene measurements should be taken to assess the severity of his [the plaintiff's] exposure. The other exposed workers should be evaluated and appropriate measures to prevent similar recurrences developing clearly need to be in place. I have contacted Tony Arkley [occupational medical practitioner with the first defendant] directly and will send a copy of this letter to David Smith [director, Division of Workplace Health & Safety Branch]. There may be a case for prosecution. " In the course of his report Dr Carroll remarked that the plaintiff was "quite severely disabled by his peripheral neuropathy in the usual way with symptoms of loss of morale, depression, impaired sleeping, impaired sexual function and loss of appetite". The first defendant maintains that on receipt of this report the plaintiff was armed with all the information he needed to pursue an action against the first defendant. It accepts that it was not until the plaintiff consulted with Dr Carroll and the diagnosis of peripheral neuropathy was -- 3 of 8 -- 6. 7. 3 made due to n-hexane that he was given a link to his workplace for the condition in respect of which he had been suffering progressively. As a consequence the plaintiff made a claim for workers' compensation on 23 October 1995 which he described as "n-hexane induced peripheral neuropathy" due to "inhalation of contaminated air over a long period of time". In his statement to the Board dated 27 November 1999 the plaintiff wrote: "Dr Carroll advised that there is no treatment for this condition apart from stopping the inhalation. This has now been done with the BP 13 removed from our laboratory .... I hereby claim Workers' Compensation for medical expenses only for the period 3.3.95 to 5.9.95. I am worried regarding the future of my condition and as to how it will affect me." The plaintiff deposes that at the time he made his claim for workers' compensation he was unaware of any rights which he might have had to claim damages for personal injury at common law. He was a man who had spent almost his entire working life in the laboratory at the University. He had never been involved in the criminal or civil justice system and had enjoyed reasonably good health all his life. His claim was in respect of the cost of medical treatment which he had undergone because that was his only financial loss. He had not lost any wages as a result of his condition. In early March 1996 he and his wife went to see a solicitor, Mr David Hoare, with Thynne & McCartney to update their wills. His wife mentioned to Mr Hoare that her husband had made a claim for workers' compensation as a consequence of the symptoms from which he was suffering. In the course of the conversation Mr Hoare advised the plaintiff that he believed that he might have a good cause of action for damages for personal injury against the first defendant and told him that he should not delay in taking some action to claim such damages. The plaintiff recalls that Mr Hoare said to him words to this effect "I'll give you two weeks to make up your mind" about commencing proceedings. The plaintiff deposes that within two weeks he made an -- 4 of 8 -- 10. 4 appointment with his solicitors for 29 March 1996 when he was to see Mr Behn, a partner in the firm. On that day he, in fact, consulted with Mr Frank Turner, another partner of the firm. He was interviewed by Mr Turner for two hours in the company of his wife for the purpose of preparing a detailed statement. Mr Turner deposes that he was given instructions on that day by the plaintiff to commence proceedings. The writ was not issued until 25 July 1996. The plaintiff has subsequently commenced proceedings against his former solicitors for negligence for delaying in issuing the writ. The issue becomes a fairly narrow one, namely, whether between the time when the plaintiff was advised by Dr Carroll that he suffered from peripheral neuropathy in July 1995 he unduly delayed in seeing his solicitors in March 1996. It is conceded that thereafter any delay lies with those solicitors who had been appropriately instructed. There is no issue of prejudice. W orkCover has extensively investigated the workplace situation at the first defendant's premises. There is a prima jacie case made against the first defendant. Dr Carroll reported that the toxic effect ofn-hexane was known since 1970. Time may be extended where it appears to the court: "( a) That 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 .... " A "material fact relating to a right of action" for the purposes of s.31 includes: • the fact of the occurrence of negligence; • the fact that the negligence or breach of duty causes personal injury; • the nature and extent of the personal injury, s.30(a). Such a fact is of a "decisive character" "if and only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing" -- 5 of 8 -- 11. 12. 5 • that an action would have a reasonable prospect of success and result in an award of damages sufficient to justify bringing the action; and • the applicant ought to bring the action in the light of the applicant's circumstances. A fact is not within the means of knowledge of the applicant "if and only if' • the applicant does not know the fact; and • has taken all reasonable steps to ascertain the facts. The material fact of a decisive character which, it is submitted, the applicant did not have, was an understanding of a right to claim common law damages in addition to the statutory right under the workers' compensation legislation. The test is one of reasonableness, that is, an objective test, but to be applied to a person in the position of the applicant and with his background and understanding, Castlemaine Perkins Limited v McPhee [1979] Qd R 469 per Connolly J (with whom Wanstall CJ and Kelly J agreed) at p.472, quoting with approval the test laid down by the Full Court of Victoria in McManamny v Hadley [1975] VR 705 at 714. The applicant had seen a number of doctors about his symptoms but it was Dr Carroll who made the diagnosis for the first time linking it to the chemical solvent used in the workplace. Dr Carroll told the applicant of his diagnosis at the consultation on 21 July 1995. The writ was issued 4 days outside the 12 month period if that event was the material fact. Dr Carroll's report is expressed in firm language in the final paragraph. Reference to a prosecution for the impugned conduct by the first defendant would not cause a person of the applicant's background and circumstances, in my view, to suppose reasonably that he had a civil cause of action. The first defendant ceased immediately using the solvent when informed of its dangerous properties. The applicant had lost no wages as a consequence of symptoms associated with the peripheral neuropathy. He had incurred medical costs having been referred to a number of specialists by other specialists and had had tests carried out. He made a claim in respect of those losses -- 6 of 8 -- 13. 14. 6 promptly to the Workers' Compensation Board in October 1995. Although anxious about his future there did not then appear any prospect of employment loss or future disability which would be productive of financia110ss or need which might prompt a reasonable person to seek further advice. His was a quiet, modest life with no exposure to litigation. It was not unreasonable of him to suppose that the workers' compensation avenue was the end of the compensation road in those circumstances. Once he was aware of his possible entitlement in March 1996 he acted promptly. If that is identified as the material fact of a decisive character then the writ has been issued within the time provided for by the legislation. If, however, the material fact is characterised as occurring on 21 July 1995 when the plaintiff was informed of the link between his symptoms and his workplace the writ has been issued outside any extended period. In that circumstance the applicant would need to seek his remedy from his former solicitors. In Meacham v Brambles Security Services Ltd No.7503 of 1996, unreported decision of Williams J of 15 December 1998, a renewal of a writ pursuant to 0.9 r.l was sought after the expiration of the limitation period. His Honour concluded that the availability of an alternative remedy "for example, a negligence action against a solicitor" was a relevant circumstance to take into account when deciding if there was "other good reason" for renewing the writ. Once the material fact of a decisive character is identified, an extension may only be made for 12 months and the discretion present on an 0.9 r.l application is not present on an application such as the present. I conclude that the material fact of a decisive character relating to the applicant's right of action occurred in "early" March 1996. The period of limitation for the action should be extended to 25 July 1996. 15. The applicant contends that ifhe is successful on this application costs ought to be costs in the cause. Mr 0' Sullivan for the first defendant submits that the applicant has come to the court for a favour and ought to pay the costs. I am of the view that the applicant does not seek -- 7 of 8 -- 7 a favour in the sense that an applicant may with respect, for example, to an 0.90 r.9 application for leave to proceed. The applicant has an entitlement granted by the legislation and ifhe can bring himselfwithin the provisions of s.31 of the Limitation of Actions Act he may have an order in his favour. Such a finding in his favour does not envisage any "indulgence" on the part of the court towards the applicant. Accordingly the appropriate order as to costs is that the costs of and incidental to the application be costs in the cause. -- 8 of 8 --