Dziadosz v Denis McGreevey's Automobile Co Pty Ltd [1996] QSC 155

SLfif'121r 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 THOMAS J Writ No 612 of 1991 AUGUST MARIAN DZIADOSZ and DENIS McGREEVY'S AUTOMOBILE COMPANY PTY LTD and HIGHWAY AUTO MART PTY LTD and Writ No 1641 of 1992 AUGUST MARIAN DZIADOS and ATC ENTERPRISES PTY LTD BRISBANE .. DATE 08/07 /96 ORDER This only. the purpose for REViSED COPiES ISSUED St3te GeporU;-:g Bureau Da\e Plaintiff Defendant Second Defendant Plaintiff First Defendant study without 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3227 4360. Facsimile: (07) 3227 5532 -- 1 of 11 -- 080796 ck (Thomas J) HIS HONOUR: This is the determination of preliminary questions of law which arise in two actions. They were set down together and came on before me in civil sittings. I permitted the preliminary questions to be raised and tried. With respect to the first action, writ number 612 of 1991, the plaintiff alleges that he worked for the first defendant and then the second defendant and that in the course of that work he was exposed to various substances including diesel and kerosene. His last day on which he worked for any of these defendants was 17 October 1986. The writ in that action was not issued until four and a half years later, namely, 8 April 1991 . The plaintiff appears unrepresented and I have extended every opportunity that I think is available to me to raise any 10 20 30 special reason why s .11 of _:the Statute. of Linli tat.ions might not apply. I have in mind, of course, matters such as estoppel 6r waiver or a case for extension under section 31 of the Limitations Act. I am satisfied that none of these possible avenues are reasonably open to him and that the action cannot succeed and that the limitation defence under section 11 of the Limitation of Actions Act (1974) must apply. Accordingly, I hold that the defence is established in that action and that the action must therefore fail and that there must be judgment for the defendants in that action. With respect to the second action, he worked for the defendant between ·April "1989 and 6 November 1989. The allegations on which the action is based are, once again, exposure to an ORDER 2 40 50 60 -- 2 of 11 -- 080796 ck (Thomas J) agent which was apparently used in the course of his work, a chemical agent, namely phenol. The writ on this occasion was issued on 6 November 1992. Once again, evidence was produced which shows that he reported a combination of symptoms similar to those upon which his claim is based in this action and did so much earlier than any possible extension that could be available to him under section 31 of the Act. However, the writ was issued within time for the last day of his service with the defendant. It seems, therefore, that it would not be appropriate to strike out the action. There is still a viable cause of action for any negligence of which the defendant may have been guilty of on that day, although the damages would be limited to the consequences of such exposure, if any, as occurred on that day and it would seem likely ,that they,. ar:e minimaL., Even so, the cause of action remains and must be protected. In this second action, therefore, I uphold the submission that any act of negligence of the defendant up to and including 5 November 1989 is barred by the Limitation of Actions Act (1974), section 11. I declare that the plaintiff's claim for damages is viable only in respect of any negligence that was committed on 6 November 1989 and in respect of any damage that may have resulted from his working for the defendants on that day. This declaration having been made, it is unnecessary to require formal amendments to the pleadings but the declaration will bind the parties in any further proceedings that may be brought: ORDER 3 10 20 30 40 50 60 -- 3 of 11 -- 080796 ck (Thomas J) Are there any other orders that the Court should make on this occasion, Mr Tait? MR TAIT: Your Honour, in respect of the action 612 of 1991, I ask for costs. HIS HONOUR: Surely your instructions are not so rigid as to press for that? MR TAIT: I will seek instructions, Your Honour. HIS HONOUR: Yes. What's the use of it? MR TAIT: Probably not much. HIS HONOUR: And the potential harm of it is not hard to see. MR TAIT: No, Your Honour, certainly. PLAINTIFF: Can I say something? HIS HONOUR: In a moment. I just want to get this m~tter straightened out with Mr Tait and then I will hear you. MR TAIT: May I leave the Bar table for a moment? HIS HONOUR: Yes, take such time as you think necessary and then we will come back to it. MR TAIT: Thank you. Your Honour, the position is I make a ORDER 4 10 20 30 40 50 -- 4 of 11 -- 080796 ck (Thomas J) formal application for costs. In saying that I accept that the plaintiff apparently had solicitors acting for him at· these times and that the plaintiff has been ill and that he had a poor command of English and that it certainly doesn't appear to be any deliberate act of his but I am not in a position that I cannot ask for costs but I recognise all of those things and I don't wish to make any further submissions and I accept that potentially with the plaintiff in his apparently debilitated state, an order for costs against him might be harmful but I don't have the authority to----- HIS HONOUR: Might it be obtained upon an adjournment if the person in authority to change those instructions is not presently in Court? MR TAIT: It may well be, Your Honour. HIS HONOUR: I think that's the preferable course because my duty is to uphold the usual discretions~ ·-i I doubt that I have a right to refuse the application if it's pressed but I do have the right to adjourn further consideration of it; so I will keep your client's rights live on that question.with a strong suggestion from the Court that it not be renewed. MR TAIT: That would be of help, Your Honour. Thank you. HIS HONOUR: I think the harm from such an application is potentially far greater than any benefits that might result from it•to the defendant which, I would think from.what I assume to be the economic circumstances of the plaintiff, ORDER 5 10 20 30 ~· 50 60 -- 5 of 11 -- 080796 ck (Thomas J) would be nil. MR TAIT: It may well be that's the case, Your Honour.- In relation to the other - would it be appropriate to mention it tomorrow morning perhaps or at some other time? HIS HONOUR: I think it might be better to adjourn it to a date to be fixed. It might never be brought on. MR TAIT: Yes. HIS HONOUR: In other words, it's a reservation in your client's favour. MR TAIT: Yes. HIS HONOUR: You will have your judgment dismissing the action but the question of costs will be adjourned to a date to be fixed. MR TAIT: Your Honour's comments are transcribed and my submissions are as well; so, no difficulty about it._ HIS HONOUR: Yes. MR TAIT: Thank you, Your Honour. I don't press that. HIS HONOUR: Just before we go into the second action, I think Mr Dziadosz wanted to say something a few minutes ago. ORDER 6 10 20 30 40 50 60 -- 6 of 11 -- 080796 ck (Thomas J) PLAINTIFF: Thanks. I like to say that I not see there's very important because in 1987 - I don't know what there was months - but I saw people from the Workers' Compensation. When I was already enough to walking, I was going to the Workers' Compensation. My wife call and somebody took me there and there was records taken in 1987 and the people see me and there was a record statesman. Can I - because----- HIS HONOUR: It doesn't seem relevant. The fact that they took a record doesn't having anything to do with your issuing a writ. PLAINTIFF: Then people from the Workers' Compensation they sent me to some solicitor. He was - I not remember what he's called. HIS HONOUR: rt sounds as if they tried to help you but it didn't work out well. PLAINTIFF: No. That's all, thanks. HIS HONOUR: Are there any other orders on the second action, Mr Tait? MR TAIT: I would ask that the position of costs of the application be reserved so that I can seek instructions. HIS HONOUR: Yes. Once again, in this instance the costs of the application - because there is no judgment in the second action on the trial. ORDER 7 10 30 40 50 -- 7 of 11 -- 080796 ck (Thomas J) MR TAIT: Of my partly successful application. HIS HONOUR: Yes. I reserve to the applicant any question of its costs of today's application in the second acti'on and adjourn that to a date to be fixed. MR TAIT: Thank you, Your Honour. The question then is what happens to the balance of the action. In ordinary circumstances, with no Judge being available, it would go back to the callover list. I really can't submit any reason why that shouldn't occur. HIS HONOUR: I think that's better than trying to leave it in limbo in my sittings. MR TAIT: Yes, Your Honour. HIS HONOUR: Yes. In the second matter, the declaration will be made in terms I have indicated. I adjourn the question of costs to a date to be fixed and I adjourn the action back to the callover list which I will simply do in a general way. MR TAIT: Your Honour, would Your Honour want to address the question of its previous priority one. way or another? HIS HONOUR: In a sense, Mr Tait, I could make the plaintiff go on today, call his evidence and then assess a trivial amount but unless there is some special case that was made, I. think it better that it go back and I hope the plaintiff ORDER 8 10 20 30 40 50 60 -- 8 of 11 -- 080796 ck (Thomas J) understands that there doesn't seem to be much promise in the action but if he wants to at any stage, he can set it down before the Court. MR TAIT: Sorry, what I meant was will it retain its former priority or if it goes to the tail of the list? HIS HONOUR: At this stage I was seeing it as a matter that deserves priority because it----- MR TAIT: I accept that, Your Honour. I thought I should mention it because of the plaintiff's position, that's all. I don't submit that it should have priority but just in case Your Honour had overlooked it, that's the only reason I mentioned it. HIS HONOUR: Mr Dziadosz, do you know at this stage what you intend to do? I don't know if you fully understand what's happened today but the first action has gone. The second action is still alive but it doesn't look as if you are ever going to be able to make the defendant pay much money for it. PLAINTIFF: Look, I not - I maybe not help you with this because you see, this happened. This is the way of things. There is not my imagination. I lost lots. I lost a lot because never was kerosene in car technology. I was the provider for my whole family, for my brothers, you know. I was the economic person - car technology and everything. I lost ma~riage·because of these things, you see. Now, I must suffering. I spent a lot of years at school and in sport and ORDER 9 10 20 30 40 50 -- 9 of 11 -- 080796 ck (Thomas J) everywhere and now pradtically I am just suffering and suffering and suffering~ No, if that is the way----- HIS HONOUR: I can understand your disappointment. PLAINTIFF: That's not my problem. HIS HONOUR: I can't change the law. I have to apply the law. We are all bound by the law. You are bound by it and so am I. You have the right to bring on the second action before another Judge, but I am simply telling you that it doesn't seem to be worth the effort because there won't be much money in it. At this stage you can go away and decide what you want to do with it. If you want to bring it back on another day,. you can. I will adjourn it back to the callover so that if you want to appear before the callover Judge and ask for a day again, I will give you priority so that it can be done fairly soon. PLAINTIFF: Yes, I must doing this way because I have no chance to this time found any solicitor honest or be done something good what he say in first time and practically I have no chance. I have big damage and what I can do now? I can suffer, of course, but I got the right to prove everybody. I'm innocent person and as happens things to me. Happened bad things from the injustice. What's happened to many people. How long they worked, not only to me. I'm still young and I like to in somehow improving my health little bit. I like to live liRe, you know, like person, just like ordinary man. ORDER fo 10 20 30 40 50 -- 10 of 11 -- 080796 ck (Thomas J) HIS HONOUR: This doesn't seem to be the best way to get money anyway at the moment. I will adjourn the action back to the callover list and give the same priority as it had before. MR TAIT: Thank you, Your Honour. ORDER 1 1 10 20 30 40 50 60 -- 11 of 11 --