Clarke v Harpier Acoustics Pty Ltd & Ors [1991] QSC 129

10 20 30 40 50 60 ~'--l j --2-0/ 'i'JIN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION No. 2678 of 1988 BEFORE MR. 'JUSTICE MACKENZIE BRISBANE, 20 MAY 1991 Ii': Rf:V!SED CO:-';.;:=:s ISSUED Ccurt !·~t-:~)')rt:11~J ~ure2u Dc.~3: Zl;-J S- I °:1/ ------·--·----·-~-- (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: ALAN CHARLES CLARKE -and- HARPIER ACOUSTICS PTY. LIMITED (in liquidation) -and- ERIBELL PTY. LIMITED (in liquidation) -and- JOHN HOLLAND PTY. LTD. JUDGMENT Plaintiff First Defendant Second Defendant Third Defendant HIS HONOUR: In this matter I extend time for the bringin of the action to 15 July 1988. In the circumstances, it is my view that the applicant, having come to Court to seek an indulgence ought to pay the respondent's costs, and I so order. I publish my reasons. G 214-Govt. Printer, Qld. 1 10 20 30 40 50 60 -- 1 of 13 -- ,IN THE SUPREME COURT OF QUEENSLAND Mr. Justice Mackenzie BETWEEN: Counsel: Solicitors: Hearing date: ALAN CHARLES CLARKE HARPIER ACOUSTICS PTY. LIMITED (IN LIQUIDATION) ERIBELL PTY. LIMITED (IN LIQUIDATION) JOHN HOLLAND PTY. LTD. JUDGMENT - MACKENZIE J. No. 2678 of 1988 Plaintiff First Defendant Second Defendant Third Defendant Delivered the 20th day of May, 1991. K. Boulton for Applicant. M. Moriarty for First and Third Respondents. Watkins Stokes t/a for Adamson, Bernays, Kyle and Jones for Applicant. W.H. Tutt and Quinlan for First and Third Respondents. 10th April, 1991 -- 2 of 13 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: ALAN CHARLES CLARKE HARPIER ACOUSTICS PTY. LIMITED (IN LIQUIDATION) ERIBELL PTY. LIMITED (IN LIQUIDATION) JOHN HOLLAND PTY. LTD. JUDGMENT - MACKENZIE J. No. 2678 of 1988 Plaintiff First Defendant Second Defendant Third Defendant Delivered the 20th day of May, 1991. This is an application for extension of time for the commencement of an action for damages for personal injuries arising out of a work related incident which allegedly occurred on the 2nd July, 1985. The writ was filed on the 15th July, 1988 a fortnight beyond the expiration of the limitation period. The plaintiff's case is that while working as a plasterer he inhaled fumes from spray painting which was being carried on nearby and suffered as a result of such inhalation a respiratory condition which has now proved to be permanent with the result that, inter alia, he cannot work at his trade. -- 3 of 13 -- 2 After the incident in July 1985 he worked from time to time, the gaps being caused more by lack of work than by ill health, although he did suffer from respiratory problems during that period and in his verbal evidence before me he said he had basically become an asthmatic which interfered with his enjoyment of life. In December 1986 he was advised by his medical practitioner to have a period away from dusty environments in the workplace to see if his problem could be resolved. In January 1987 he applied for workers' compensation again. He was gran tea workers' compensation for six months at the end of which the case went before the General Medical Board which on the 2nd June, 1987 determined that the nature of the injury was bronchial hyperreactivity following exposure to fumes at work, that the extent of the incapacity for work was total but that the incapacity was temporary. The Board recommended that the claimant be given a trial of rehabilitation and that the claimant be reviewed in three months time. Then on the 22nd September, 1987 by another decision the General Medical Board determined that the incapacity was permanent and that the extent of the disability was 20 per cent of his working capacity prior to the date of the injury. In early 1987 the applicant had a consultation with Paul Richards & Associates, solicitors, at the suggestion of the applicant's union secretary. At that time the applicant was involved in legal action arising from the financial difficulties that he was then in. In his affidavit he says:- "Not long after I first engaged Paul Richards & Associates that firm raised with me the possibility of my bringing a common law action for damages." -- 4 of 13 -- 3 He said that he had no money to pursue an action and an application for legal aid was subsequently made. On the 5th May, 1987 approval was given by the Legal Aid Office for the investigation of the claim and the obtaining of counsel's opinion. That opinion was eventually rendered on or after the 16th May, 1988. There is no evidence as to when the brief was delivered. The applicant says that he asked Mr. Richards from time to time throughout 1987 and early 1988 about the progress of the common law action and received assurances that everything was under control. However by the end of 1987 he said that he formed the opinion that these enquiries were irritating Mr. Richards. On the 11th May, 1988 he gave instructions to Mr. Kyle of Adamson, Bernays, Kyle & Jones, solicitors of the Gold Coast, to take over the personal injury action and the conduct of any other matters which were still current. The applicant says he told Mr. Kyle in general terms of his injury and its effects on him. However he said he was not a good historian and did not tell Mr. Kyle the precise date of his injury. He said that at no time had he been told by anyone of a three year limitation period. Attempts to get the file from Paul Richards & Associates began immediately. There was some reluctance on the part of Mr. Richards to hand his file over because of concern over his position so far as fees were concerned. After correspondence involving the two firms and the Legal Aid Office the file was eventually received by the new solicitors on the 1st July, 1988, the day before the limitation period expired. An appointment was -- 5 of 13 -- 4 made for the 6th July, 1988. Apparently it had not been noticed that the limitation period would expire the day after the file was received by the new solicitors. At the appointment on the 6th July, 1988 advice was given that an action should be commenced and at a further appointment on the 8th July, 1988 the applicant gave instructions for the action to be commenced. Under s. 31(2)(a) of the Limitation of Actions Act 1974-1981 the applicant must show that a material fact of a decisive character was not within his knowledge until a date after the commencement of the year last preceding the expiration of the period of limitation. Here, it is said, the applicant was not aware of the permanency of his condition until the General Medical Board declared it to be so on the 22nd September, 1987 and that therefore a material fact of a decisive character was not within his knowledge until a date after the commencement of the year last preceding the expiration of the period of limitation. If it is established that there is a "material fact of a decisive character", it is also necessary to be satisfied that it was not within the applicant's means of knowledge within the relevant period. Under s. 30(d) of the Limitation of Actions Act a fact is not within the means of knowledge of a person at a particular time if, but only if - (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. Under s. 30(a) the nature and extent of the personal injury caused to the applicant is a material fact. -- 6 of 13 -- 5 To constitute a material fact of a decisive character the material fact must be one where a reasonable man knowing the fact and having taken appropriate advice on the facts would regard the facts as showing - (i) That an action would 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 bring an action on the right of action. In Taggart v. The Workers' Compensation Board (1983) 2 Qd. R. 19 at 23 Andrews S.P.J. with whom Macrossan J. agreed said in the context of a submission that the fact that an injury was more serious than the applicant had realised and that that amounted to a material fact of a decisive character:- " ... it was correctly decided to the effect that the newly discovered fact should not be considered asseparate from facts already known and that it should be regarded in context with such other facts. The question of damages likely to be recovered is properlyto be regarded in determining whether the bringing of an action for damages for personal injury is justified. The following statement appears in the reasons for judgment: 'It follows, in my judgment, that if a reasonable man, appropriately advised, would have brought the action on the facts alreadyin his possession and the newly discovered fact merely goes to an enlargement of his prospective damages, the newly discovered fact cannot be described as a material fact of a decisive character within the meaning of section 31(2)(a). '" (See also Moriarty v. Sunbeam Corporation Limited (1988) 2 Qd. R. 325 per Kelly S.P.J. at 331 and Macrossan J. at p. 333.) -- 7 of 13 -- 6 It is well established that the court should take a realistic view of the benefit of bringing an action. The applicant is not required to adopt a sympathetic view towards the Workers' Compensation Board and need have regard only to the net amount which he would receive in order to determine whether he ought to bother with the risks of litigation and the time and expense involved. (Taggart (supra) at 24; Moriarty (supra) per Kelly S.P.J. at 331, Derrington J. at 339.) The thrust of the applicant's argument is that he did not know of the permanence of his condition until the General. Medical Board had pronounced upon that in September 1987. To that he must of course add in terms of the statutory requirements that the extent of the injury was not within his means of knowledge until a date after the 2nd July, 1987. He has sworn that he believed from what his medical practitioner had said that there was some prospect of his recovery. The question of permanence is referred to in Moriarty (supra) by Macrossan J. Macrossan J. makes it plain that the issue of permanence is not necessarily critical in matters of this kind. As he says at 332:- " this contention that he became possessed of a relevant new insight on that day seems artificial when attention is given to what the material discloses musthave been previously understood by him Undue concentration upon the presence or absence of thefeature of permanence in an injury when deciding whether the statutory test has been satisfied may mislead rather than enlighten." (See also Derrington J. at 336-7.) It is necessary to look at the facts that would have been known to the applicant prior to the 2nd July, 1987 in assessing the effect that one should give to the fact that a finding of -- 8 of 13 -- 7 permanence was not made by the General Medical Board until September 1987. According to his evidence the applicant had difficulty completing a full day's work on a lot of days. He said however that as he was mostly working by himself or for himself, if he could only work six hours a day, "that was it". He agreed that by the time he gave up work he was basically an asthmatic and that his condition interfered with his enjoyment of life and his ability to earn in his chosen field. He had been seriously affected financially by reason of the illness from which he suffered. When he contacted Mr. Richards in early 1987 he had serious physical problems. Throughout the nine months he was off work until his incapacity was determined to be permanent by the General Medical Board he stayed at home unless he had to take "the odd trip into town". He said that in that environment he was alright "unless someone sprayed some hairspray around or something" and that his condition at home was much better. His throat and bronchial passages seemed to improve. There is nothing particularly optimistic in the two reports dated 17th February, 1987 and 22nd May, 1987 from Dr. R. Wilson to the Workers' Compensation Board. made to the Legal Aid Office for When the application was legal assistance medical information was submitted to the Legal Aid Office. According to ex. F to the applicant's affidavit that appears to have been a report by Charles Mitchell, respiratory physician, which had been received by the applicant from Dr. Richard Wilson. Although there is no evidence as to the contents of the brief to counsel, it would be inconceivable that information of the kind to which -- 9 of 13 -- 8 I have referred would not have been provided to counsel. In view of the conclusion to which I finally come, there is one matter to which I feel obliged to refer. That is that in the material actually read on the application that report is not to be found. The application had commenced before the luncheon adjournment and extended beyond the adjournment for lunch. During the luncheon adjournment I read the file without discriminating between the documents which had been read and those which had not. Amongst the material filed on an application for renewal of the writ there was a letter dated the 26th November, 1986 from Dr. Mitchell to Dr. Wilson and a further letter from him dated the 19th May, 1987 to Paul Richards & Associates. In the first letter Dr. Mitchell said that "only time will tell whether or not he is likely to improve any further but since it is now well over 12 months I doubt that we will see much further improvement." In the second letter he concluded "It is likely that as a result of this exposure he suffered severe airway inflammation which has resulted in the initiation of asthma. The fact that this has persisted for approximately two years suggests that it may not improve significantly in the foreseeable future." When I was being addressed on the medical aspects of the case I enquired whether my recollection that there was medical information to the effect that the condition was unlikely to improve. Counsel for the applicant simply informed me that that material had not been read. That aspect was not pursued further. It may be that there was some reason of which I am unaware for the annexure to Mr. Richards' letter contained in ex. F not -- 10 of 13 -- 9 having been put in the proceedings before me. However, as it is referred to as an enclosure with ex. F one might have expected that it would have found its way into evidence as part of ex. F. In the event counsel provided an opinion dated the 16th May, 1988 that subsequently justified advice being given by the applicant's new solicitors that an action should be commenced. Cases of this kind are always difficult. It is easy to sympathise with applicants who find themselves in the position of having to seek an extension of time especially when one can easily conclude that his legal advisers have substantially contributed to the action not having been brought in time. However neither of those factors are relevant. The proper framework for resolving the application is that discussed above. It is clear that the applicant had on the advice of his then solicitor been pursuing the question of a common law action for some time before the commencement of one year before the expiration of the limitation period. That legal adviser kept telling him that the matter was under control. At least the applicant must have realised that he was suffering from a condition that was at least potentially disabling for a substantial period of time. He had been virtually a prisoner in his home. The medical reports from his doctors were not optimistic. Had he specifically requested advice from them it seems probable that what is in the reports is what he would have been told. If the application rested solely on the basis of that material, I would have thought that the application should fail. -- 11 of 13 -- 10 However there is the additional factor of the determination of the General Medical Board on the 2nd June, 1987, one month before the critical date, that the applicant's incapacity was total but temporary. The decision of that Board that the incapacity was permanent was not made until 22nd September, 1987, within the relevant period. Whilst my mind has fluctuated on the question, I have finally come to the conclusion that a reasonable man faced with the information from his own doctors, which did not give him cause for optimism that his condition would improve, but nevertheless also faced with the decision of the General Medical Board, which no doubt, he would assume had assessed and adjudicated on his condition on the basis of the information available to it, would not have concluded before the 2nd July, 1987 that his condition was permanent. That being the case, I have to decide whether a reasonable man in his position would have regarded the facts, after having taken appropriate advice as showing that an action would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action and that he ought in his own interests and taking his circumstances into account bring an action. Bearing in mind the proposition that the applicant is not required to adopt a sympathetic view towards the Workers' Compensation Board and need have regard only to the net amount which he would receive in order to determine whether he ought to bother with the risks of litigation and the time and expense involved, I have come to the conclusion that the applicant has satisfied me that a reasonable man at the critical -- 12 of 13 -- 1 1 date would not have so concluded on the evidence then available. Accordingly I will extend the time for the bringing of the action to the 15th July, 1988. As the applicant has come to the court to seek an indulgence, I am of the view that he ought to pay the respondent's costs. -- 13 of 13 --