Duke v Humes Ltd t/s SCJ Steel Pty Ltd [1994] QCA 485

IN THE COURT OF APPEAL [1994] QCA 485 SUPREME COURT OF QUEENSLAND Appeal No. 148 of 1994 Brisbane Before Fitzgerald P. Davies J.A. McPherson J.A. [Duke v. Humes Limited] BETWEEN: DARRYL JOHN DUKE (Plaintiff) Appellant - and - HUMES LIMITED (now SCJ STEEL PTY LTD) (Defendant) Respondent REASONS FOR JUDGMENT - DAVIES J.A. Judgment delivered 18/11/94 This is an appeal from a judgment given in the Trial Division refusing an application pursuant to s. 31 of the Limitation of Actions Act 1974 for an extension of time within which an action might be brought by the appellant. The action in question had been commenced on 21 February 1991. It was one for negligence against the respondent as the appellant's employer in respect of the respondent's system of work. The negligence now sought to be alleged against the respondent is that between 1971 and 1976, and between 1980 and June 1988, whilst the appellant was working for the -- 1 of 19 -- 2 respondent, the respondent, by its system of work, negligently required the appellant to operate a pneumatic impact wrench continuously, either doing or undoing nuts, in consequence of which he suffered disabling injuries to one or both elbows. On these allegations the respondent's negligence extended over both of the above periods, possibly commencing as early as 1971. There is no doubt that, by the time the action was instituted, the limitation period in respect of any act or omission of the respondent during the first of these periods had expired and that it had also expired in respect of any act or omission during most of the second period, that is prior to 21 February 1988. The evidence appears to indicate that the appellant in fact ceased working for the respondent on 27 May 1988. It was not contested by the respondent that there was evidence to establish a right of action in respect of the above conduct apart from any defence founded on the expiration of a period of limitation: s. 31(2)(b). The evidence adduced by the appellant showed that there was, throughout the above periods, a body of knowledge that the use of vibrating tools such as the pneumatic impact wrench caused bone and joint disorders; and that, throughout those periods there were, to the respondent's knowledge and available to the respondent, alternative tools which, because they produced substantially lower levels of vibration, reduced the risk of such disorders. In those circumstances, once it is shown that the use of this tool -- 2 of 19 -- 3 caused the appellant's disorder, this requirement is, in my view, satisfied. The sole question therefore was whether a material fact of a decisive character relating to the right of action was not within the means of knowledge of the appellant until a date after the commencement of the year last preceding the expiration of the period of limitation: subs. (2)(a). The last date which could have been the commencement of the year last preceding the expiration of the period of limitation for the action was 28 May 1990 (the commencement of the third year after the last day on which the appellant worked for the respondent) but it must, of course, be borne in mind that what was alleged to have caused the appellant's disability was the cumulative effect of the respondent's conduct over the whole of the two periods during which he worked for it. There were two facts said by the appellant to be material facts of a decisive character relating to the right of action not within his means of knowledge before the date referred to in the preceding paragraph. They were: 1. The cause of his disability; that is repetitive trauma caused by continuous use of the pneumatic impact wrench; and 2. That there were steps which the respondent could reasonably have taken to eliminate or reduce the risk -- 3 of 19 -- 4 of occurrence of that trauma. As McPherson J.A. has pointed out in his reasons, although there was some inconsistency and uncertainty as to the aetiology of the condition in the appellant's elbows, among medical specialists who saw him during the period from 1988 to 1991, the prevailing view appears to have been that it was Panner's disease, a form of necrosis of the bony material which develops in adolescence. There was also a general view that that condition was aggravated by the work which the appellant was required to perform. It was not until September 1992 that an alternative diagnosis of osteochondrosis dessicatus was given. The doctor who then gave that opinion also said that the appellant's case "fitted into the picture" of a person whose condition had been caused by continued exposure to mechanical/traumatic stress. This diagnosis was confirmed by another specialist in March 1993 who also expressed the view that the condition was probably caused by trauma of the kind to which the appellant had been subjected by the use of the pneumatic impact wrench. This view was also supported by material, emanating from overseas, discovered by engineers engaged by the appellant and disclosed in their report of 30 August 1992. The evidence establishes therefore that it was not until the second half of 1992 or early 1993 that there was within the appellant's means of knowledge a reliable body of expert -- 4 of 19 -- 5 opinion to the effect that the work which he was required to perform by the respondent during the above periods caused the disabling condition from which he suffered. He had, prior to that time, taken all reasonable steps to ascertain the cause of his condition: s. 30(d)(ii). The failure to acquire this knowledge before that time was not due to any unreasonable failure by the appellant. Its causes appear to have been the contrary opinions up to that time expressed by medical specialists whom he had consulted; and the delay, for which he was not responsible, of the engineers in furnishing their opinion. Moreover, in my view that fact was a material fact of a decisive character. It was decisive because, once it is accepted that the respondent ought to have known that the use of vibrating tools of this kind caused bone and joint disorders, and that there were alternative tools which would have reduced the risk of their occurring, it was the only relevant fact which required to be proved. I agree with McPherson J.A., for the reasons which he gives, that it would not have been sufficient for the appellant to establish merely aggravation, by the use of the tool, of a pre-existing condition unless the respondent was aware, or ought reasonably to have been aware, that the appellant had or might have had that condition. The second alleged decisive fact referred to the existence -- 5 of 19 -- 6 of alternative means of performing the work. This came within the appellant's means of knowledge when he received the engineer's report in August 1992. I do not think that it was within his means of knowledge before then. However, because of the conclusion which I have already reached, it is unnecessary to consider whether this fact was one of a decisive character. For the above reasons I agree with the orders proposed by McPherson J.A. -- 6 of 19 -- 7 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 148 of 1994 Brisbane Before Fitzgerald P. Davies J.A. McPherson J.A. [Duke v. Humes Ltd.] BETWEEN DARRYL JOHN DUKE (Plaintiff) Appellant AND HUMES LIMITED (now S.C.J. Steel Pty Ltd) (Respondent) Defendant REASONS FOR JUDGMENT - McPHERSON J.A. Judgment delivered the 18th day of November 1994 This is an appeal against the refusal of an application for an extension of the time within which to bring an action for damages for personal injuries alleged to have been sustained by the applicant in the course of his employment by the respondent. A writ was in fact issued by the applicant against the respondent on 21 February 1991 and in May 1991 a statement of claim was delivered. The defence relies on the effluxion of the limitation period of three years applicable to an action like this. In issuing the writ on 21 February 1991, the solicitors acted on the assumption that the limitation period would expire three years after 27 May 1988, which was when the applicant ceased work. In consequence, the matter has been -- 7 of 19 -- 8 argued, both before the primary judge and in this Court, on the footing that, in terms of s.31(2)(a) of the Limitation of Actions Act 1974, the applicant was required to show that a material fact of a decisive character was not within his means of knowledge before 21 February 1990. The applicant now suffers from serious disabilities of both elbows which prevent him from working again. He was born in 1953 and started work with the respondent as a labourer when he was about 18 years of age. He had little schooling and is said to be functionally illiterate, which may be a reason why his advisers say they have had difficulty in obtaining a precise history of the progress of his ailment. So far as relevant here, it is sufficient to record that he worked for the respondent until 1977 or 1978, when he ceased work because of injury, resuming in 1980 and continuing until 1988 shortly before undergoing a surgical operation on his right elbow. The applicant's work involved tightening and loosening nuts on bolts for clamping moulds used in casting large pipes manufactured by the respondent. For this he was provided with a pneumatic impact wrench, which had to be pushed and held against the nut to be tightened or loosened. The wrench transmitted extensive vibrations and torque forces to the nuts being turned and correspondingly to the applicant's arms and wrists. The applicant was subject to such forces practically continuously, with little intermission, throughout his 10 hour working day for 5 or 6 days a week. Some of the work was carried out overhead, -- 8 of 19 -- 9 which meant raising the wrench and supporting its heavy weight vertically while it was operated. The applicant is naturally right handed; but he would change the wrench to the other hand when the hand he was using tired. So he continued until 1988, when the pain became too much for him to bear. The operation the applicant underwent in 1988 revealed that he was suffering gross osteoarthritis in his right elbow joint. A similar condition has since been diagnosed in his left elbow joint. The origin of the condition was something of a mystery to members of the medical profession, including orthopaedic specialists, who examined the plaintiff from about 1988 to 1991; but the prevailing opinion at that time was that it was attributable to Panner's disease, which is a form of necrosis of the bony material which develops in adolescents. Since that time, however, further research has been undertaken and reports have been obtained from medical experts specialising in diseases of this kind. In September 1992 a report was prepared Dr Ernst in Tasmania, whose opinion was that the applicant was suffering from severe osteochondrosis dessicatus (or O.D., for short) rather than from Panner's disease. His opinion was confirmed by Dr Grosser in a report dated 15 March 1993, in which he said that the applicant's problem was "more likely to be osteochondrosis, which typically leads to significant symptoms and complaints, and there is often a degree of mechanical trauma associated with the progression of the -- 9 of 19 -- 10 disease". Those two expert opinions given in 1992 and 1993, together with an engineering report from Geoff McDonald & Associates received in its final form on 30 August 1993, disclosed what before then was evidently not widely known by many medical experts in Australia; namely, that O.D. may be caused by trauma resulting from the relatively continuous use of equipment imparting extensive vibrations to and torque stresses upon the arms of a person using it. This has been recognised in a not inconsiderable body of professional literature published in overseas countries; but most of it appeared in German or Russian journals, which are generally not accessible to or easily read by practitioners in Australia. From the standpoint of the applicant's claim against the respondent, the medical and engineering reports served two important functions. One was to provide evidence of a causal connection between his use of the impact wrench and the osteochondrosis which in 1993 Dr Grosser suggested he was probably suffering; the other was to identify alternative equipment or methods which could have been used by the respondent to enable the applicant to perform his work without risk of injury. According to the engineering report of 30 August 1992, one viable alternative, which had been used by ICI Botany Bay over the preceding five years, was to replace the pneumatic impact wrench with a low speed high torque electric motor mounted overhead. Another was to use an oil pulse wrench, which is an air powered hydraulic -- 10 of 19 -- 11 tool producing oil pulses instead of direct impacts. The latter is a quieter piece of equipment, which is identical to the pneumatic impact wrench except that it delivers approximately only one quarter of the hand and arm vibration levels of the tool provided for use by the applicant. Oil pulse wrenches are in widespread use in industry in Australia and have been available in this country for at least the last 13 years. Some are said to have been supplied to the respondent employer. The applicant's contention is that the reports obtained in 1992 or 1993 revealed "material facts relating to" his right of action, in terms of s.31(2) of the Act, which were not within his means of knowledge at any time before 21 February 1991. Specifically, reliance was placed on paras. (i) and (iii), and to a lesser extend on para. (v), of the definition or description of that phrase in s.30(a) of the Act. Briefly stated, under the relevant provisions of that subsection, the material facts relating to the cause of action include : (i) the fact of the occurrence of negligence or breach of duty on which the right of action is founded; (iii) the fact that negligence or breach of duty causes personal injury; and (v) the extent to which the personal injury is so caused. Before the primary judge the applicant failed primarily because as his Honour saw it: "... it ought to have been evident by the end of 1988 and certainly by 1989 that the applicant was disabled to the extent of being unable to earn his living, and that there was a strong probability of a relationship between his disability and the use of the impact wrench in the course of his -- 11 of 19 -- 12 employment by the respondent." As the facts founding those conclusions were known to the applicant or his legal advisers at those times, and were facts of a decisive character in terms of s.30(b), the learned judge held that the applicant had not satisfied the requirements of s.31(2). What his Honour said is relevant primarily to the element of causation referred to in para. (iii) of s.30(a), but it also bears on the matter of negligence or breach of duty in para. (i) of s.30(a). What an employer may reasonably be expected to do to protect his employee from injury depends on the foreseeability of the injury, the risk of its eventuating, and the procedures or precautions available for averting it. In arriving at the conclusion he did concerning the applicant's actual or imputed knowledge in 1988 and 1989, the learned judge acted on medical opinion available at that time, which was to the effect that the applicant was suffering the disabling consequences of a pre- existing serious degenerative condition, probably due to Panner's disease, in his right elbow, which had been aggravated by using the pneumatic impact wrench in the course of employment. However, in order to succeed in an action for damages against the respondent, it would not be enough for him to establish mere aggravation of a pre-existing osteoarthritic condition unless the respondent was aware, or ought reasonably to have been aware, that the applicant was or at least might have been suffering from such a condition at the -- 12 of 19 -- 13 time he was employed. Otherwise, the respondent was entitled to assume, until alerted by some cogent indication of the presence of that condition, that the applicant was within the normal range of health, strength and fitness ordinarily to be expected of individuals of his gender, age, and physique : cf. Waugh v. Kippen (1986) 160 C.L.R. 156, 168-169. There is nothing in the evidence to suggest that at any time before the applicant's employment came to an end in 1988 the respondent knew or ought to have known that the applicant was suffering from the degenerative condition identified at or after that time, or that he was in that respect different from a normal individual. The significance of the medical and engineering reports and opinions given in 1992 or 1993 that the applicant was probably suffering from osteochondrosis induced by vibrations transmitted to his arms through using the impact wrench is that they simultaneously (1) eliminated the need to establish, as an element in the cause of action, the existence of knowledge on the respondent's part of the pre- existing degenerative condition; and (2) provided a proper basis in fact, founded on expert opinion, for a conclusion that the causal link between the injury suffered and the respondent's negligence or breach of duty to his employee in providing the applicant with the impact wrench for use in his work. There is evidence before us capable of establishing other matters which will have to be proved by the applicant -- 13 of 19 -- 14 in order to establish his cause of action against the respondent. It is not necessary to examine it in detail. Nothing said here should be taken as in any sense a finding or conclusion as to any of the disputed issues that will arise at the trial. It is, however, clear that the particular matters I have been discussing are material facts relating to the applicant's cause of action in terms of paras. (i) and (iii) of s.30(a) of the Act. They are also facts of a "decisive character" within s.30(b), in that a reasonable person knowing those facts would regard them as showing that the applicant's action would have a reasonable prospect of success. Without knowing those facts and consequently appreciating the advantage of proving them, the action would be liable to fail for want of proof of one or more of its essential elements. In addition, those particular matters are facts which were plainly not within the means of knowledge of the applicant until after 21 February 1990. He had, by consulting solicitors in 1988, and then and thereafter submitting to examination by and obtaining reports and advice from medical practitioners, specialists, and engineering consultants, taken all reasonable steps to ascertain the facts in question. It was not due to any fault on the part of the applicant or his advisers, but rather because of the apparent novelty of his injury and its symptoms, that the material facts were not discovered or identified any earlier than they were in 1992 or 1993. I consider that the applicant has satisfied all the -- 14 of 19 -- 15 conditions imposed by s.31 of the Limitation of Actions Act 1974 to entitle him to an extension of the limitation period for the action he has brought. The appeal should be allowed with costs. The orders made below should be set aside. It should be ordered that the period of limitation be extended to 22 February 1991, and that the applicant have leave to amend para. 4 of the statement of claim. The respondent must pay the applicant's costs of and incidental to the application, including reserved costs, if any. -- 15 of 19 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 148 of 1994 Brisbane [Duke v. Humes Ltd.] BETWEEN DARRYL JOHN DUKE (Plaintiff) Appellant AND HUMES LIMITED (now S.C.J. Steel Pty Ltd) (Respondent) Defendant Fitzgerald P. Davies J.A. McPherson J.A. Judgment delivered 18/11/94 Separate reasons for judgment of each member of the Court. All concurring as to the orders to be made. APPEAL ALLOWED WITH COSTS. SET ASIDE THE ORDERS MADE BELOW. IN LIEU ORDER THAT THE PERIOD OF LIMITATION BE EXTENDED TO 22 FEBRUARY 1991, AND THAT THE APPLICANT HAVE LEAVE TO AMEND PARA. 4 OF THE STATEMENT OF CLAIM. RESPONDENT TO PAY THE APPLICANT'S COSTS OF AND INCIDENTAL TO THE APPLICATION, INCLUDING RESERVED COSTS, IF ANY. CATCHWORDS LIMITATION OF ACTIONS - APPEAL FOR EXTENSION - Injury suffered at work over a period of time - Writ lodged within 3 years after applicant ceased work - Whether material fact of decisive character within applicant's means of knowledge before Writ lodged - Causal connection between work practices and medical condition only discovered recently. Counsel: K. Geraghty for the appellant S. C. Williams Q.C. for the respondent Solicitors: Keller Nall & Brown as T/A for Greenhow & Yeates for the appellant -- 16 of 19 -- 2 Carter Newell for the respondent Hearing Date: 8 November 1994 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 148 of 1994 Brisbane Before Fitzgerald P. Davies J.A. McPherson J.A. [Duke v. Humes Limited] BETWEEN: DARRYL JOHN DUKE (Plaintiff) Appellant AND: HUMES LIMITED (now SCJ STEEL PTY LTD) (Defendant) Respondent REASONS FOR JUDGMENT - FITZGERALD P. Judgment delivered 18/11/1994 This appeal was argued on the common assumption that the time for the commencement of the appellant's action had expired before his writ was issued on 21 February 1991, but that he was entitled to an extension of time if material facts of a decisive character relating to his right of action were not within his means of knowledge before 21 February 1990 although he had, prior to that time, taken all reasonable steps to ascertain the cause of his condition. The respondent placed considerable reliance upon the allegations in the appellant's statement of claim, which was -- 17 of 19 -- 3 delivered in May 1991; although made after the critical date, those allegations were seen as significant because (i) there is no suggestion of any change in the appellant's knowledge or means of knowledge between February 1990 and May 1991, and (ii) the allegations in the statement of claim lead to an inference that the appellant then had all necessary knowledge or means of knowledge. However, the better conclusion, on the evidence available, is that the allegations in the statement of claim were made without any basis, and that, as the appellant contends, he did not have any means of knowledge of some matters until well after that time. The circumstances by reference to which this appeal is to be decided are recited in some detail in the judgment of McPherson J.A., and, to a lesser extent, the judgment of Davies J.A., and need not be repeated. Until, at the earliest, late 1992, the only information available to the appellant concerning the causation of his injuries was that his work had aggravated a pre-existing condition; he had no information that the respondent knew, or ought have known, that the work would aggravate such a condition, or that the appellant had such a condition. The steps taken by the appellant to ascertain the cause of his condition by 21 February 1990, and the additional -- 18 of 19 -- 4 information which he obtained in late 1992 and 1993 are set out in the judgments of the other members of the Court. I agree with the conclusion that, in these circumstances, the appellant satisfied the statutory requirements for an extension of time. There are some differences of approach between the other members of the Court, but their reasons coincide to the extent necessary to dispose of this appeal in favour of the appellant. To that extent, I concur in what has been said, and in the orders proposed. -- 19 of 19 --