Bartlett v BHP Australia Coal Pty Ltd [1998] QSC 237

IN THE SUPREME COURT OF QUEENSLAND Writ No. 38 of 1996 Mackay District Registry Before the Hon. Mr Justice Muir [Bartlett v BHP Aust. Coal P/L] BETWEEN: GARRY FRANCIS BARTLETT Plaintiff AND: BHP AUSTRALIA COAL PTY LTD Defendant REASONS FOR JUDGMENT - MUIR J. Judgment delivered 3 November 1998 CATCHWORDS: LIMITATION OF ACTIONS - application to extend limitation period under s.31(2) Limitation of Actions Act 1974 (Qld) - personal injuries - whether material facts were within plaintiff's knowledge prior to expiration of limitation period - discussion of “material fact” within meaning of s.30 Limitation of Actions act - possibility of prejudice to respondent. Counsel: Mr A.S. Mellick for the plaintiff Mr L.F. Kelly for the defendant Solicitors: Bill Cooper & Associates for the plaintiff Barry, Beverson & Stenson, town agents for Clayton Utz for the defendant Hearing date: 2 October 1998 -- 1 of 16 -- -- 2 of 16 -- IN THE SUPREME COURT OF QUEENSLAND No 38 of 1996 Mackay District Registry Before the Hon. Mr Justice Muir [Bartlett v BHP Aust. Coal P/L] BETWEEN: GARRY FRANCIS BARTLETT Plaintiff AND: BHP AUSTRALIA COAL PTY LTD Defendant REASONS FOR JUDGMENT - MUIR J. Judgment delivered 3 November 1998 1 The applicant/plaintiff applies to extend the limitation period to 27 March 1996 in respect of injuries which he claims were sustained in 1991 and in subsequent years. It was common ground between the parties that there was evidence to establish the right of action by the applicant within the meaning of s.31(2)(b) of the Limitation of Actions Act 1974. The action was commenced on 26 March 1996. 2 The applicant is now 42 years old. He commenced employment with the respondent mining company as a truck driver in 1988 or 1989. His duties, for the most part, required him to drive trucks carrying overburden from the place of excavation to other locations. The roads over which the applicant was required to drive were “extremely rough and poorly maintained”. He swears that “whilst the road was graded occasionally, it was not maintained to a proper standard”. The roads which were travelled by the applicant were in fact constantly being changed in the course of his employment and their condition varied for a variety of reasons. Sometimes holes or uneven patches developed in roads because of underlying soil characteristics. At other times roads became rough in consequence of the effect of the use of mining equipment. The applicant -- 3 of 16 -- 2 asserts that “on an average day, the truck seat would ‘bottom’ out six times a day and that on a severe day it was not uncommon for 40 to 50 ‘bottomings’ to occur”. He swears that he received no instructions about how to adjust his seat. The central allegations of negligence in the statement of claim are - (a) a failure to maintain adequately the network of roads at the mine with the result that they were extremely rough; (b) a failure to fit the Triton truck and the Caterpillar 785 rear dump truck with ergonomically sound and adjustable seats - with the seats bottoming out and not providing adequate back support; (c) a failure to warn the applicant of the dangers associated with the work; (d) a failure to instruct the applicant as to how to adjust the seat. The applicant's medical history 3 The applicant has a long history of back problems, so much so that he acquired the nickname “bad back”. In August 1988 the applicant was seen by an orthopaedic surgeon who reported - “The L4/5 and L5/S1 disc spaces are narrowed consistent with disc degeneration. There is associated degenerative spurring of the L4 and L5 vertebral bodies. The remaining disc spaces are well preserved. CONCLUSION: L4/5 and L5/S1 disc degeneration.” Prior to that time he had been the recipient of medical advice and extensive physiotherapy for his back condition. It is relevant to note that he commenced driving trucks at the mine in about 1988 or 1989 and that his back condition in 1988 was most unlikely to have resulted from activities connected with truck driving. In late December 1991 he experienced mild discomfort in his lower back. He consulted a general practitioner and received chiropractic treatment. In July 1993 he was prescribed anti-inflammatory medication by his general practitioner and was referred to -- 4 of 16 -- 3 a radiologist who reported - “Degenerative changes at the L5/S1 level. No radiological evidence of ankylosing spondylitis.” 4 In April 1994 he experienced severe back pain after throwing a quilt on top of his bed. He was referred by his general practitioner to Dr Cook, orthopaedic surgeon, who in a report dated 10 August 1994, stated - “He said that with rest and physiotherapy which included traction. ... he improved a lot initially but that he has failed to progress any further since. He has a past history of low back pain off and on for some years. He has never had anything like this before.” ... There is some mild generalised bulging at L4/5 but this is not causing significant compression. L5/S1 disc on the other hand appears to be normal. ... I have advised that he continue with treatment with Gary and to continue with his Feldene. I am still hopeful that we will get his back settled down and back to work without resorting to any surgery.” 5 A Dr Mullins performed a lumbar sympathetic nerve block “at L3” on the applicant on 16 June 1994. He was either off work or on light duties for about 11 months after the April 1994 incident. 6 The applicant swore that since having the nerve block, the condition of his back has fluctuated. “There are days when my back pain is stable, however there are more frequent days when the pain is a constant dull ache.” His pain worsened in February 1995 and he consulted a general practitioner, Dr McIntosh, who referred him to Dr Shaw, orthopaedic surgeon. Dr Shaw reported to Dr McIntosh on 13 March 1995 stating - “The problem is back pain that radiates into the left posterolateral thigh and left calf. It is associated with numbness in the heal of the left foot. There is a similar pain that occurs in the right leg. The pain is presently quiescent but he develops recurrence of pain regularly. He has had two severe bouts in the last six weeks. ... There was no abnormal neurological finding.” -- 5 of 16 -- 4 In a report to Dr McIntosh of 27 March 1995 Dr Shaw reported - “I have recommended that he go back onto trucks at the mine and see whether he can maintain this occupation. If his pain recurs to an intolerable level then we know that he cannot persist in this occupation.” That he continued to suffer from his back complaint may be seen, inter alia, from the fact that he was seen by Dr Rowles who reported on 2 February 1996 - “Regarding Garry Bartlett's problem in relation to operating certain types of machine. i.e. Titans, wheel dozers, track dozers. He sustained an injury some time ago. He is anxious to avoid surgery to his lower back. He is able to manage his back problems by a range of conservative means. He finds that the above machines are more likely to cause pain if he has to operate them for a prolonged period of time. He has been operating the above for the last 9 - 12 months with occasional episodes of lower back pain and he is happy to continue to do so. If has the option to request a change should his back become too painful. Medically his back is improving slowly. If given the chance he should completely recover. He has been reassured by the orthopaedic specialist that his back problem will not necessarily deteriorate, as long as he is careful.” On 22 January 1996 the respondent's prestrip superintendent wrote to the applicant referring to a meeting on 22 January 1996 and stating - “Garry, you outlined to us your thoughts on driving Titan trucks. You are not entirely sure if your perceived problem was the truck or in your words, a psychological problem, but on some occasions that you have driven those trucks you have experienced back pain. Garry, we have asked you to attend a Coal Board medical examination so that your doctor can inform us of any problems you may have in operating machines within your particular skills. In the meantime you can only operate Cat trucks and continue with shovel training. Under no circumstances can you operate dozers, wheel dozers or Titan trucks.” Shortly after 22 January 1996 the applicant wrote a letter, referring to the 22 January meeting and stating - “I went into this meeting with the full intention of negotiating some arrangement with the company that would allow me to be introduced back onto these machines -- 6 of 16 -- 5 slowly so as to become accustomed to (illegible). I stated to them that I have operated these machines in the past, but after a short period of time I felt some aggravation and pain in my back. I have also stated that of late I have been able to operate these same machines for a longer period of time than I was first able to, and was hoping to be able to continue to operate these machines for short periods of time until I was capable of operating on a full time basis (as has been the practise [sic]) for the past nine months.” 7 After receiving the memorandum from the respondent, the applicant consulted his solicitors who gave him some advice. On 17 February 1997 the applicant's solicitors obtained a report from a Mr McDonald, an engineer who specialises in work place safety matters. The report commences - “This report is based on the assumption that Garry Francis Bartlett suffered damage to his back as a result of driving a rear dump truck at the Goonyella Riverside Mine. It is understood that the truck was used for carrying overburden ...” The report expressed the opinion that - “There is a well recognised problem of spinal damage from driving heavy vehicles. The operation of the vehicle should be controlled to give acceptable ride with the seating installed. This requires control of surfaces over which the vehicles operate and speed of the vehicle. To get maximum value out of suspension seat, drivers need to be trained to adjust the seats and the seats must be regularly maintained.” The report identified steps the respondent could have taken to avoid risk of injury to the applicant. 8 The action was commenced on 26 March 1996. 9 In a report dated 7 November 1997 Dr Guazzo, neurosurgeon, reported to the applicant's solicitors that - “This man has a long history of lower back pain, beginning in the 1970s and there are well documented episodes of exacerbations and remissions, typical of lumbar spondylosis. In 1994 he further aggravated his back when bending over throwing a quilt across a bed. This was a significant aggravation from which he took some considerable time to partially recover.” He remains disabled by his symptoms, attributable to this condition of lumbar -- 7 of 16 -- 6 spondylosis. Lumbar spondylosis is a degenerative condition of the spine, which typically follows a course of exacerbations, followed by remissions. ... It is my opinion that his occupation at Goonyella contributed in a minimal way to the continuing progression of his lumbar spondylosis and that the predominant condition was evident long before he began occupation with his employer.” 10 Dr White, orthopaedic surgeon, examined the applicant in March 1998 and reported on 16 June 1998 to the applicant's solicitors that - “It is not possible to apportion any particular part of his impairment to specific incidents. It would appear from the evidence available however that a significant proportion of his problem relates to the jarring associated with the driving of relatively unsprung machinery, namely dump trucks and bulldozers. He would be well advised to cease his present occupation and seek alternative employment.” 11 The applicant swears that - (a) before receiving the memorandum of 22 January 1996 he was not aware that he had a severe and disabling problem (or a potential one) in relation to his lower back which might preclude him from continuing in employment as a truck driver at a mine; (b) prior to receiving the memorandum he did not understand that his work was causing or was capable of causing the problems which he was experiencing with his back; (c) it was not until after seeing the reports of Mr McDonald and Dr White and receiving legal advice in relation thereto that he appreciated that it would be worthwhile bringing the claim against the respondent. The statutory framework 12 Section 31(2) of the Limitation of Actions Act (“the Act”) provides: -- 8 of 16 -- 7 “(2) Where on application to a court by a person claiming to have a right of action to which this section applies, 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; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.” A right of action in negligence is a right of action to which s.31 applies: see subs. (1). 13 Section 30 defines “material facts” inclusively as follows: “(a) the material facts relating to a right of action include the following:- (i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded; (ii) the identity of the person against whom the right of action lies; (iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury; (iv) the nature and extent of the personal injury so caused; and (v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty.” 14 Whether a material fact is of a decisive character for the purpose of s.31(2) is defined in s.30 in the following terms: “(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 of action 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 on the right of 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 circumstances into account to bring an action on the right of action.” Whether a fact is within the means of knowledge of a person for the purpose of that subsection -- 9 of 16 -- 8 is defined negatively in s.30 in the following terms: “(c) a fact is not within the means of knowledge of a person at a particular time if but only if - (i) the person does not know the fact at that time; and (ii) as far as the fact is able to be found out by the person, the person has taken all reasonable steps to find out the fact before that time.” Relevant legal principles 15 The test of reasonableness is an objective one to be applied to a person with this applicant's background and circumstances: Castlemaine Perkins Limited v McPhee [1979] Qd R 469, 472-3. In Healy v Femdale Pty Ltd, (C.A. No. 37 of 1992, 9 September 1993, unreported), it was said in the Judgment of the Court that - “The question then is whether it can be said that in the circumstances the plaintiff took all reasonable steps to ascertain the fact that her injury was serious enough to justify the bringing of an action. She did not ask her doctor questions of this kind. The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call for prudent enquiry to protect one's health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinion from her doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take ‘appropriate advice’ or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to have done so.” 16 In Byers v. Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, Lee J, with whom McPherson and de Jersey JJ agreed, cited the following passage from the judgment of Macrossan J in Moriarty v. Sunbeam Corporation Limited [1988] 2 Qd R 325– "In cases like the present, an applicant for extension discharges his onus not merely by showing that he has learned some new fact which bears upon the nature of extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learned -- 10 of 16 -- 9 fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated 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 Worker's Compensation Board of Queensland [1983] 2 Qd R 19, 23, 24 and Do Carmo v. Ford Excavations Pty Ltd (1984) 154 CLR 234, 251 per Deane J". 17 The above passage was adopted by Connolly J, with whom Ryan and Cooper JJ agreed in Berg v. Kruger Enterprises [1990] 2 Qd R 301. 18 Section 31(2) applies to cases where the applicant (plaintiff) commences proceedings after the expiration of the limitation period but before acquiring the means of knowledge of a material fact: Opacic v. Patane [1997] 1 Qd R 84. Material facts of a decisive character asserted by the applicant 19 The material facts relied upon by the applicant as having come within his means of knowledge within the requisite times are: (a) Advice from the respondent, on 22/1/96, that the applicant’s back condition was such that limits had to be placed upon the plant and equipment that the applicant could operate at the respondent's mine. (b) That the applicant’s lower back problems are probably causally related to driving work performed by the applicant in the course of his employment with the respondent given the condition of the roads at the respondent’s mine and the ergonomically unsound seats provided by the respondent in the vehicles driven by the applicant, as analysed by Mr McDonald, Ergonomist, in his report dated 17/2/97. That report identifies steps the respondent could have taken to avoid such risk of injury. (c) That a significant proportion of the applicant's low back problems relates to the jarring associated with the driving of relatively unsprung machinery, in the course of his employment with the respondent, that he would be well advised to cease his present occupation with the respondent and seek alternative employment involving light semi-sedentary duties where he has some degree of freedom to sit, stand or move around as dictated by any discomfort that he may be feeling from time to time as per the report of Dr White, Orthopaedic Surgeon. -- 11 of 16 -- 10 20 The respondent resists the extension of the limitation period on the grounds that - (a) the applicant has not established on the balance of probabilities that a material fact of a decisive character only came within his means of knowledge as late as 27 March 1995; (b) the respondent will suffer prejudice if the limitation period is extended and the applicant's action is allowed to continue. Conclusion as to the existence of a relevant material fact of a decisive character 21 It is true, as Mr Kelly for the defendant points out, that the applicant was aware long before the expiration of the limitation period that - (a) he had a severe and potentially disabling disability in his lower back; and (b) that disability caused him discomfort and pain when carrying out his duties as a truckdriver. Mr Kelly placed reliance on the following passage from the judgment of Thomas JA. in Pizer v Ansett Australia Limited (C.A. No. 6807 of 1998, 29 September 1998, unreported) at pp 9-10 - “However, the level of pain, its persistence and recurrence following performance of ordinary duties at work and the continuity of need for ongoing physiotherapy all over a period spanning several years, suggests that it should have been obvious that this plaintiff had a viable action for very significant pain and suffering, and also more than trivial warnings of potentially serious economic loss.” 22 Ansett however is a rather different type of case to the one under consideration. In Ansett it was the plaintiff’s case that at a very early stage she identified the cause of the relevant pain as arising from her duties of employment. She received medical advice and treatment and substantial physiotherapy treatment for a number of years but failed to realize the seriousness of her condition. A material fact on which she relied was the fact that her condition was likely to render her unable to cope with her chosen career. Thomas JA observed that he found the case “particularly difficult to assess”. Immediately before the passage from his judgment relied on -- 12 of 16 -- 11 by Mr Kelly and quoted above he observed - “I have hesitated in determining whether the learned Chamber Judge’s determination (against the appellant) was erroneous having regard to the fact that the evidence of the plaintiff’s economic loss prior to April 1995 is fairly trivial, while the additional information which the plaintiff gained later in 1995 suggested to her that it would be quite substantial.” Byrne J. accepted in his reasons that the matter was one “on which minds might fairly differ”. 23 The applicant here was advised in 1988 that he was suffering degenerative changes to his discs. Before receiving that advice he was already receiving extensive physiotherapy. The diagnosis of degenerative changes in the discs was confirmed in July 1993. The applicant was not advised that the degenerative changes resulted from the work he was doing for the respondent. Nor, in my view, would a reasonable person in the position of the applicant have arrived at such a conclusion having regard to the applicant's previous medical history, the medical advice received and the omission in that advice to query the role played by the applicant's work in his physical deterioration. 24 The applicant then suffered his August 1994 injury. Neither he nor his medical advisers associated the symptoms experienced after that incident with his work. The view taken by the applicant and seemingly shared by Drs Shaw and Rowles was that the applicant's work may well cause the applicant to suffer pain as a result of his injury and back condition but there was no suggestion that continuing to drive trucks would worsen the underlying condition as opposed to the symptoms of pain resulting from it. 25 Until some time in 1997 or 1998 the applicant was unaware of “the extent to which the personal injury as caused by the negligence ... or breach of duty” of the respondent. It is also probable that until such time the applicant was unaware that the alleged negligence of the defendant caused his personal injury. The passage from the judgment of the Court in Healy v Femdale (supra) is generally applicable to the facts of this case. Where specialist medical -- 13 of 16 -- 12 practitioners were not questioning the role played by the applicant's working conditions in producing his physical deterioration let alone the desirability of his continuing to work, it is hardly reasonable to expect of the applicant that he seek further or different advice. 26 Without the advice of Mr McDonald and Dr White in June 1998, coupled with the advice of the applicant’s solicitors in 1997 and 1998, the facts can not be reasonably regarded as establishing - “(i) Prospects of an award of damages sufficient to justify the bringing of an action; and (ii) That the applicant ought, in his own interests, taking his personal circumstances into account, to have brought the action.” Accordingly, I conclude that the applicant has satisfied the requirements of s.31(2) of the Act. The respondent's allegations of prejudice 27 Once the requirements of paragraphs (a) and (b) of s.31(2) of the Act are satisfied the applicant has the onus of satisfying the court that the discretion should be exercised in the applicant's favour. In Brisbane South Regional Health Authority v. Taylor (1996-97) 186 CLR 541 Dawson J said at 544 – "The onus of satisfying the court that the discretion should be exercised in favour of the applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is, prima facie, prejudicial to the defendant who would otherwise have the benefit of the limitation." 28 That approach seems consistent with that taken in the other judgments. See Toohey and -- 14 of 16 -- 13 Gummow JJ. at 547; McHugh J at 870 at 872 and Kirby J at 880. Toohey and Gummow JJ observed in their joint judgment at 868 - "The discretion conferred by the subsection is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v. State Electricity Commission of Victoria in a passage which was endorsed by Gibbs J in Campbell v. United Pacific Transport Pty Ltd. ‘It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice’." 29 Kirby J's approach to "the evidentiary onus" is set out in a paragraph numbered 4 on pp.879-880. It is substantially the same as that contained in the passage from the joint judgment quoted earlier. 30 The respondent gave a detailed account of matters potentially prejudicial to it. Many of them, in my view, were not of real substance. Included in this category is the fact that the actual trucks driven by the applicant are no longer in operation at the mine or even owned by the respondent; the fact that many of the actual seats used by the applicant would not be in existence; the roads were continually changing and that specific records of road conditions on a daily basis were not maintained. I am satisfied that in relation to each of those matters there will be adequate evidence available to the respondent in order to properly test and respond to the applicant’s claims. Even if the applicant had commenced his action within the limitation period the evidence relevant to the road conditions would have tended to have been of a generalized nature dealing with matters such as the relative degree of frequency of severe bumps and their causes rather than evidence as to the description of specific imperfections in specifically identified lengths of roadway. -- 15 of 16 -- 14 31 It is contended that the applicant does not appear to have consulted an orthopaedic surgeon until he saw Dr Cook in April 1994 and that there may be difficulties for the respondent in seeking to persuade a court that Dr White’s opinion ought not be accepted over that of another medical practitioner. Linked with this argument is the contention that medical witnesses will be asked to provide opinions on a subject that has become inherently more difficult as time has elapsed. Mr Kelly points, in particular, to a opinion expressed by a Dr Morgan, who was retained by the respondent, that - “A more precise analysis of the relative contributions of those two possible causes for his current circumstance [existing underlying constitutional anomaly ... in the form of lumbar spondylosis or work practices] would have been easier had the analysis been performed contemporaneously. That is to say, an analysis in about 1995 when Mr Bartlett found he could no longer cope with those duties would have been more accurate than an analysis performed now.” 32 Dr Morgan did not give any sworn evidence. His report was exhibited to an affidavit sworn on information and belief. Dr Morgan’s report was in response to a letter from the respondent's solicitors of 14 September 1998 seeking inter alia advice on whether the respondent has been prejudiced “from a medical perspective” by the delay. Dr Morgan’s comments are rather limited and perhaps even circumspect. I am satisfied from the evidence adduced by the respondents that there are - (a) sufficiently detailed medical records tracing the development of the applicant’s condition; and (b) a great many eye witnesses and access to other relevant materials and data sufficient to avoid the suffering by the respondent of any material prejudice should this application succeed. 33 I order in terms of paragraphs 1 and 2 of the summons. -- 16 of 16 --