Duke v Humes Ltd t/a SCJ Steel Pty Ltd [1994] QSC 195

. sc..q<t/J~s 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 Bu~eatl.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MOYNIHAN J No 3 of 1991 DARRYL JOHN DUKE and HUMES LIMITED BRISBANE .;DATE 03/08/94 JUDGMENT 1 REVISED COPIES ISSUED Stata Reporting Bureau Date I tf? 1 Applicant Respondent 4th Hoor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 15 -- 030894 ck (Moynihan J) HIS HONOUR: In this matter the orders will be that I dismiss the application to extend the limitation period and refuse the application·for the amendment to the statement of claim, which I apprehend to be related to that, for the reasons which I publish. 10 20 30 40 50 60 JUDGMENT 2 -- 2 of 15 -- IN THE SUPREME COURT OF QUEENSLAND No. 3 of 1991 TOOWOOMBA DISTRICT REGISTRY BETWEEN DARRYL JOHN DUKE HUMES LIMITED (NOW S.C.J. STEEL PTY LTD) JUDGMENT - MOYNIHAN J Delivered the 3rd day of August, 1994 COUNSEL: Applicant- K Gereghty Respondent- S.C. Williams QC SOLICITORS: Greenhow & Yeats Shine Murdoch (t/a/ for Carter Newell) HEARING DATE: 28 February, 1994 Applicant Respondent -- 3 of 15 -- IN THE SUPREME COURT OF QUEENSLAND No. 3 of 1991 TOOWOOMBA DISTRICT REGISTRY BETWEEN DARRYL JOHN DUKE Plaintiff HUMES LIMITED !NOW S.C.J. STEEL PTY LTD) Defendant JUDGMENT- MOYNIHAN J Delivered the 3rd day of August, 1994 By writ issued on 21 February, 1991 the Applicant sued the Respondent, his employer, for negligence and breach of duty (including statutory duty) as a consequence of which he alleges he suffered personal injuries. This is an application to extend the limitation period and is designed to preserve the action from being defeated by a plea of having been commenced out of time. The summons also seeks to amend paragraph 4 of the Statement of Claim so that it reads:- "Between approximately 1971 and approximately 1976 and between 1980 and June 1988 in the course of his said employment the Plaintiff operated continuously a pneumatic impact wrench, either doing up or undoing nuts for up to twelve ( 12) hours per day with a fifteen ( 15) or twenty (20) minute break in the morning and a half hour lunch break in the middle of the day." -- 4 of 15 -- 2 (I have underlined the proposed insertion.) The Applicant proceeded on the basis of affidavit evidence. There was no oral evidence and there was no cross-examination. As will emerge there is controversy in respect of issues such as the medical diagnosis of the condition which the Applicant suffers and the causal connection between that condition and his employment and the employer's duty of care. lt is unnecessary to resolve those issues here. The Statement of Claim was delivered on 21 May, 1991. Paragraphs 5, 6 and 7 are to the effect that the use of an impact wrench in the course of his employment caused constant jarring and twisting to the Applicant's upper limbs. lt is further alleged that on 30 May, 1988 the Applicant began to suffer substantial pain in his right elbow and subsequently sought medical attention. The pleading continues that medical examination has revealed degenerative changes in the right elbow and less advanced degenerative changes in the left elbow. lt is contended that the degenerative condition referred to is caused by the use of the impact wrench and the Respondent's failure to appropriately deal with the risk that was involved in the use of such a tool. The case now sought to be made out on the Applicant's behalf at trial is in essence that prolonged use over many years of a pneumatically driven impact wrench caused degenerative conditions in both the Applicant's elbows. An alternative view which emerged earlier may be that the use of the wrench exacerbated a pre-existing condition which, that aside, may in any event have become disabling. The Applicant's right elbow troubled him before the left. lt -- 5 of 15 -- 3 seems he is right handed but that he used both hands, although predominantly the right, to operate the tool. The Applicant was born on 9 June, 1953. He left school at 14 or 15 and is illiterate. To all intents and purposes he has relied on his professional advisers in respect of the matters canvassed in these proceedings. He was first employed by the Respondent in about 1971 when he was of the order of 18 years of age. Sometime in 1976 in the course of his employment the Applicant suffered a jarring injury to his right arm while using a sledge hammer. He was off work for about a week. A month after he had resumed work, the pain in his right arm troubled him to the extent that he was advised by his treating doctor to obtain other employment. In the event he was unable to do so, but during the period of consequent unemployment his arm settled down. The Applicant resumed employment with the Respondent in 1978 and has been in no other employment during the course of the events canvassed. As has been previously indicated, throughout his employment the Applicant consistently used an impact wrench to tighten and loosen nuts securing bolts on moulds used to cast pipes. An impact wrench apparently is a pneumatically driven device which delivers, as the name suggests, repetitive impacts to the relevant nut to either tighten or loosen it. Its operation required the Applicant to exert force to push mould components together and to maintain pressure to hold the wrench against the nut, at the same time supporting the weight of the gun itself. The Applicant was also required to resist the impact torques generated by the gun as he manipulated it during operations. A portion of these activities were carried out with the Applicant operating the gun above his head. -- 6 of 15 -- 4 The material indicates that early in his employment with the Respondent the Applicant suffered occasional soreness and aches which he attributed simply to the hard work. He used straps to support his wrists. On 27 May, 1988, while using an impact wrench, the Applicant suffered a jarring or wrench to his right elbow which caused him to have a different experience of pain and discomfort from any he had previously suffered. He attended on Dr Geaney, an orthopaedic specialist, on 3 June, 1988. On 6 July the Applicant was operated on. The articular surfaces of his right elbow were found to be "very degenerate". Bone fragments were removed and a detached lateral ligament was screwed back into place and the wound closed. Dr Geaney, in a report to the Workers' Compensation Board of 8 August, 1988, expressed the view that it was not certain whether the degenerative arthritis in the Applicant's elbow joint was caused by the "very heavy work" he had been carrying out but "it could have certainly aggravated the condition". Dr Geaney concluded by expressing the view that the Applicant was unlikely to be able to undertake very heavy work in the near future. Dr Geaney conveyed these views to the Applicant in September. At some stage during this time Dr Geaney told the Applicant that the use of the impact wrench had killed nerves or damaged tendons in his right arm. The Applicant first consulted his solicitors on 24 October, 1988. This was apparently as a consequence of the advice given by Dr Geaney. On 23 November, 1988 Dr Geaney reported to the Applicant's solicitors to the effect that: • The degenerative arthritis of the right elbow had not been caused by his work but had been aggravated by the heavy work he was doing. • There was no evidence of any fresh injury to the elbow joint at the operation -- 7 of 15 -- 5 performed on 6 July, 1988. • The degenerative changes to the right elbow would not have been caused by rotating forces, "which I presume you mean would be applied through the forearm." Dr Robert W lvers, a specialist orthopaedic surgeon, provided a medical report dated 17 November, 1988, apparently to the Applicant's referring doctor. The Plaintiff had been referred to Dr lvers on account of complaints, detailed in the report, concerning his right elbow. Dr lvers stated that x-rays revealed "advanced degenerative changes" in the right elbow and described the elbow as representing a "very difficult" treatment problem. He then canvassed four options, the first being non-intervention, the remaining three being surgical interventions of escalating degrees of seriousness, with his preference being the first. In January, 1989 Dr lvers indicated to the Applicant's solicitors that he was not prepared to involve himself in what he described as medico-legal discussions and declined to provide reports. lt seems clear enough that by September 1988 the Applicant and his legal advisers had material showing there was a probable causal connection between the Applicant's use of an impact wrench in the course of his employment and the condition of his elbow - and his condition had progressed to the extent that he was unemployable. On 14 August, 1989, Dr Bruce Meinbusch, a specialist orthopaedic surgeon, reported to the Applicant's solicitors. Dr Meinbusch was of the view that the Applicant had gross osteoarthritis in the right elbow. The aetiology of the plaintiff's condition was in his view, problematic. He canvassed three causes. First was osteoarthritis arising "de novo" in a previously normal joint which Dr -- 8 of 15 -- 6 Meinbusch regarded as extremely rare and to be discounted. Secondly was gross osteoarthritis in the elbow joint secondary to the use of the impact wrench. Dr Meinbusch had, however, never seen a case involving such a mechanism as the sole cause of the degree of destruction apparent in the Applicant's joint. Nor in this context could he explain why the wrist joint was radiologically normal, given the condition of the elbow joint. In other words Dr Meinbusch appears to have discounted this cause. The third possibility raised by Dr Meinbusch was that the elbow joint was not normal but there had been an accelerating exacerbation of a pre-existing condition. Dr Meinbusch offered the conclusion that the use of the impact wrench did not cause the Applicant's condition but it "significantly contributed" to it. On 19 October, 1989 an Orthopaedic Board constituted pursuant to the Workers' Compensation legislation determined in respect of the Applicant that:- 1. "The incapacity for work occasioned by the injury of 27 May, 1988 is partial. 2. The incapacity is permanent. 3. The nature of the disability which is employment caused is aggravation of pre-existing Panner's Disease of the right elbow with Osteoarthritis and loose bodies." The Board attributed 25% loss of efficient use of the Applicant's upper right limb to what was described as employment-related disability. Towards the end of 1989 the Applicant became troubled by his left elbow. Apparently his claim for compensation was re-opened as a result. Dr Geaney reported to the Workers' Compensation Board on 15 December, 1989 in respect of an examination of the left elbow carried out on 17 November. There had been apparently no previous signs but x-rays taken at about that time showed a small -- 9 of 15 -- 7 loose body near the radio-ulnar joint but no degenerative changes. Dr Geaney thought that at that time it was not possible to be certain as to the "exact pathology" or to offer any prognosis. On 29 November, 1989 the Applicant's solicitors sought advice from consulting engineers specialising in investigating the causes of accidents, ergonomics and design considerations. For reasons which do not really appear, it was not until 13 May, 1992 that that firm submitted what was described as a preliminary report. I will return to this in a moment. Before returning to the sequence of events it is pertinent to recall that the writ was issued on 21 February, 1991 and the Statement of Claim delivered on 23 May, 1991. On 13 May, 1992 Dr Geaney again reported to the Applicant's solicitors. The Applicant's left elbow had continued to deteriorate. After referring to an arthroscopy performed on 2 July, 1990 by a Dr Hebbell, he concluded that:- "the left elbow disability would seem to be related to early significant changes in the elbow joint, although the appearance of the joint in arthroscopy was not too bad. When the Applicant was using the hammer gun in his work he did use the gun in either hand. I think it is quite likely that the use of the hammer gun has contributed to the state of the left elbow, as well as to the right elbow." On 16 October, 1991 and 22 April, 1992 Dr Blue, a specialist orthopaedic surgeon, reported to the solicitors for the Respondent's insurer. This material came to the attention of the Applicant's solicitors. Dr Blue was of the view that the Applicant's disability was due to bilateral Panner's Disease, which had been aggravated by his work activity. Dr Blue did not believe that there had been any significant aggravation of the osteoarthritis between the months of February and June, 1988. He concluded that the Applicant had 35% permanent partial -- 10 of 15 -- 8 disability of his upper right limb and 25% of the left. In his view two thirds of this disability was due to what he described as constitutionally caused arthritis and the balance to "work aggravation over the 14 years he worked for Humes ... " As I have mentioned, the consulting engineers retained by the Applicant's solicitors reported in a preliminary way on 13 May, 1992. The report discussed various aspects of the Applicant's work and "the likelihood of a worker with a normal range of health and strength" being put at risk on account of the use of an impact wrench. The report suggested that there was research which showed that the use of such a wrench:- "had the potential not only to create disorders as a consequence of vibration, but also disorders as a consequence of the working posture which had to be adopted on the larger pipes. However, it will be necessary to inspect and complete further tests to establish the potential for damage to a healthy member of the work force, even though such potential is considered highly probable." The facts as to working posture were of course known to the Applicant. The evidence is to the effect that there was an accessible body of material available throughout the period under consideration establishing a link between the use of vibrating or repetitive impact tools and bone and joint disorders. The engineer put the plaintiff's solicitors in touch with a doctor in Tasmania, Dr Ernst, who on 29 September, 1992 reported that as a consequence of a search of the literature (largely German), the following picture emerged; "Your client does in fact suffer from severe osteochondrosis dissecans rather than Panner' s Disease". The report went on that, "poor management such as continuation of heavy exposure to mechanical/traumatic stress would invariably lead to a severe form of O.D. with poor prognosis. Your client's case fits into this picture." This report apparently did not eliminate the possibility of pre-existing morphological changes in the elbow joint due to Panner's Disease with mechanical traumatic ' ' -- 11 of 15 -- 9 disease. On 30 August, 1993 the consulting engineers previously mentioned reported to the Applicant's solicitor on the forces to which the Plaintiff had been subjected in his work and the availability during the period of the Applicant's employment of means of avoiding or reducing their impact. The material contains little or nothing as to why this process took so long. On 17 December, 1993 the consulting engineers again reported forwarding Or Ernst's report and a report from a Or Grosser, apparently a consultant cardiovascular surgeon, who had examined the Applicant on 13 October, 1992. In a report dated 15 March, 1993, Or Grosser expressed the view:- "I don't think there is anything conclusive that proves he has an underlying problem such as Panner's Disease. He does have major destruction of the right elbow associated with osteochondrosis dissecans which is most likely related to traumatic damage with localised stress causing necrosis of the subchrondral bone. It is possible in a weakened state, that a sudden jerk could break up the joint surface, that is; give chondral fractures as well. By the data presented to me it appears most likely his problem stems directly from multiple trauma from relatively continuous use of a torque gun over a long period of time at Humes Pipes". The application for an extension of limitation period seeks to enliven the jurisdiction conferred by s.31 of the Limitation of Actions Act. s.31 (2) relevantly provides:- "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 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 -- 12 of 15 -- 10 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." The provision must be read in conjunction with s.30 of the Act which relevantly provides:- 30. Interpretation [Cf. N.S.W. 1969, s. 57]. For the purposes of this section and sections 31, 32, 33 and 34 - (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; (b) material facts relating to a right of action are of a decisive character if but only if a reasonable man 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 his own interests and taking his circumstances into account to bring an action on the right of action; (c) "appropriate advice", in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts, as the case may require; (d) a fact is not within the means of knowledge of a person at a particular time if but only if:- ' ' -- 13 of 15 -- 1 1 (i) he does not at that time know the fact; and (ii) so far as the fact is capable of being ascertained by him, he has before that time taken all reasonable steps to ascertain the fact. As I have already indicated, it seems to me that 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 an impact wrench in the course of his employment by the Respondent. The facts founding those conclusions were known to the Applicant (I include his solicitors in the term). The facts were of a decisive character in the sense in which that term is defined in s.30(b)(ante) in that a reasonable man knowing them etc (as the subsection provides). There is a well-canvassed distinction between material facts and evidence of material facts; see for example de Carma -v- Ford Excavations Ptv Ltd ( 1984) 154 CLR 234, Wood -v- Glaxo Australia Pty Ltd (appeal 37/1992 C of A Qld unrep.) Since 1988/89 the Applicant has become possessed of information which, assuming it to be in admissible form, is capable of supporting the conclusion of a causal connection between employment and disability. That is not, as I understand it, sufficient to satisfy the requirements of the statute with respect to knowledge of a material fact of a decisive character. In other words the knowledge is of evidence to provide material facts earlier known. I have so far been concerned with the issue of causal connection between disability and employment. The Applicant, as I understand it, would also point to the need to establish breach of duty of care between Applicant and Respondent. This is for the purpose of saying that material facts of a decisive character came -- 14 of 15 -- 12 forward as late as the consulting engineer's report of 30 August, 1993. This dealt with the availability of alternative methods of carrying out the tasks he was engaged in. The necessity to establish breach of duty was, of course, obvious, no later than when the causal connection was apparent. The Applicant was thereupon obliged to take all reasonable steps to ascertain facts founding that conclusion in so far as the facts were capable of being ascertained by him; s.30(d) (supra). lt seemed that the first step taken by the Applicant to pursue this avenue was the approach to the consulting engineer on 29 November, 1989 The first response was the preliminary report of 13 May, 1992. This largely focussed on what I have called the "causal issue". The report of 30 August, 1993 dealt with the duty of care issue. lt revealed that apparently mutable alternatives had been available in Australia for 13 years or more. This seems to be knowledge of evidence rather than material facts. If it is the latter, there is no satisfactory explanation for the delay in ascertaining those facts. There is reference to the indisposition of a solicitor but that is far from sufficient. In terms of s.30(d)ii it cannot in my view be said that the Applicant took all reasonable steps to ascertain the facts upon which this particular aspect of the cause of action turned. The considerations being those I have canvassed I refuse the extension of time sought by the Applicant. In those circumstances there seems no point in granting the application for amendment of the statement of claim. Otherwise I would have granted it. The application is dismissed with costs. I -- 15 of 15 --