Adkins v The State of Tasmania
[2005] TASSC 45
•26 May 2005
[2005] TASSC 45
CITATION: ADKINS v THE STATE OF TASMANIA [2005] TASSC 45
PARTIES: ADKINS, Nicole Maree
v
THE STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 445/2004
DELIVERED ON: 26 May 2005
DELIVERED AT: Hobart
HEARING DATES: 20 and 26 May 2005
DECISION OF: Master S J Holt
CATCHWORDS:
Limitation of actions – Extension of time – Considerations – Exercise of discretion.
Workers Rehabilitation and Compensation Act 1988 (Tas), s135.
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Plaintiff: L K Mackey
Defendant: P Turner
Solicitors:
Plaintiff: Ogilvie Jennings
Respondent: Office of the Director of Public Prosecutions
Judgment Number: [2005] TASSC 45
Number of paragraphs: 23
Serial No 45/2005
File No 445/2004
NICOLE MAREE ADKINS v THE STATE OF TASMANIA
REASONS FOR DECISION MASTER S J HOLT
26 May 2005
By her action commenced by writ filed 6 September 2004, the plaintiff claims from her employer damages for personal injury, namely, a latex allergy caused by her prolonged use of powdered latex gloves in the course of her work in the defendant’s department of Health and Human Services, Disability Services. She claims that the condition has existed from about February 2001.
The plaintiff claimed and received workers compensation payments in December 2003. The payments had the effect of attracting the operation of the Workers Rehabilitation and Compensation Act 1988 (“the Act”), s135, which was as follows:
“(1) Where any payment of compensation under this Act in respect of an injury has been accepted by a worker, no proceedings shall be commenced by him, after the expiration of a period of 3 years after the date on which the injury was suffered, against the employer to recover damages in respect of that injury.
(2) Notwithstanding anything in subsection (1), on application made in that behalf by a worker, the Supreme Court or a judge in chambers may, after giving the employer an opportunity of being heard, extend the period referred to in subsection (1) by such further period, not exceeding 3 years, as the Court or judge thinks necessary.
(3) The powers conferred on the Supreme Court or a judge by subsection (2) may be exercised notwithstanding that the period mentioned in subsection (1) may have expired.”
On 9 November 2004, the plaintiff filed an application for an extension of time under the Act, s135. Before the hearing of the application commenced the Act, s135, was repealed, by the Limitation Amendment Act 2004, which came into effect on 1 January 2005.
Both counsel for the plaintiff and counsel for the defendant submitted that notwithstanding the repeal the Act, s135 continues to apply to the action. In short, the following is common ground between counsel:
hUnless the language used in the statute plainly manifests a contrary intent a statute affecting vested rights is to be construed as prospective and a statute, merely procedural, is to be construed as retrospective: Maxwell v Murphy (1957) 96 CLR 261 at 270.
hUnless the contrary is expressly provided the repeal of an enactment does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactment: Acts Interpretation Act 1931, s16(1)(c).
hLegislation imposing limitation periods whether barring the remedy or extinguishing the right is legislation of substance not procedure: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at par100.
hThe Act, s135, concerns rights not procedure, namely, the right of a defendant (subject to the granting to the plaintiff of an extension of time) to rely upon the protection of a statutory time bar and the right of a plaintiff to call upon the court to exercise a discretion as to whether to extend time.
It being common ground that the right of the plaintiff to call upon the court to exercise a discretion has survived the repeal I turn to the merits of the application.
The discretion under the Act, s135, is the same as the discretion under the Limitation Act 1974, s5(3), namely, a discretion to be exercised in accordance with the justice of the case: Woolley v Australian Newsprint Mills Ltd [1997] TASSC 85 and Butt v Comalco Aluminium (Bell Bay) Ltd Tas U/R B9/1996. Consideration is to be given to all the relevant circumstances of the case advanced by the parties and in most cases this means that regard must be had to whether there is an arguable case, the length of the delay, the explanation for it and the degree of prejudice the delay has caused or will cause to the defendant: Hill v Iluka Corporation Ltd & Anor [2002] TASSC 113.
Counsel for the defendant has advised that the defendant does not ask me to consider prejudice either specific or general nor the explanation for delay. The defendant was content that I make assumptions about these matters in favour of the plaintiff and determine the application simply on the basis of whether or not the plaintiff has demonstrated that her claim is viable. He, however, in the end made no submission that the claim lacked viability.
There was no suggestion that I should disregard any of the plaintiff’s evidence or the evidence contained in a report from dermatologist, Dr Frances Watkins. I set out the relevant evidence.
In her affidavit the plaintiff has said that with some breaks she has worked in the defendant’s department of Health and Human Services, Disability Services, since 1994. From about March 1999 her work involved her wearing powdered latex gloves for much of each working day sometimes going through as many as 25 pairs of gloves per day. No significant problems were encountered with the use of these gloves before the plaintiff returned to work in February 2001 having taken three months’ maternity leave. From February 2001 the plaintiff’s hands would become itchy soon after putting on the powdered latex gloves. The skin on her hands gradually deteriorated with patches of dermatitis spreading across the fingers and onto the wrists. She used creams and antihistamines to try and control the symptoms and continued working. In December 2003 Dr Watkins diagnosed the latex allergy and identified the risk that continued exposure might result in the plaintiff developing anaphylaxis. The plaintiff was certified unfit for work accordingly and did not return to work until May 2004. In May 2004, the defendant issued an internal memorandum advising that it was moving away from the use of latex gloves and latex products to minimise the risk of allergic reactions and requiring steps to be taken to identify and remove from all sites all latex products. The plaintiff said that Nitrile gloves do not cause her to suffer an allergic reaction and that those gloves have been used by the department in recent times.
Dr Watkins said in her report:
“…
Miss Adkins has had several severe reactions on exposure to powdered latex gloves with facial and lip swelling as well as shortness of breath and difficulty breathing. This indicates extreme sensitivity to latex. She is at risk of developing anaphylaxis with latex exposure, particularly with exposure to powdered latex gloves.
.
Latex Allergy. Latex allergy is a type 1 hypersensitivity reaction. It is an allergy to natural rubber latex which is a plant product obtained from rubber trees. Natural rubber latex is used in the manufacture of rubber products. When rubber products are manufactured, numerous chemicals are added to the Natural Rubber Latex in the manufacturing process. It is also possible to develop allergy to these rubber chemicals. Patch testing has shown that Miss Adkins does not have allergy to rubber chemicals. Miss Adkins has developed latex allergy in the course of her work at Disability Services. Constant exposure to powdered latex gloves has produced this allergy. Miss Adkins underlying atopic eczema has predisposed her to develop latex allergy. The presence of hand dermatitis also increases the risk of latex allergy as the latex allergen is more likely to penetrate the abnormal skin and trigger an allergic response.
…
It is well recognised that powdered latex gloves are much more likely to produce latex allergy than non powdered gloves. The brand and quality of the gloves can also have a big impact on how likely that glove is to produce latex allergy. Poor quality, cheap gloves have a higher level of latex antigen and are therefore more likely to trigger latex allergy. Latex Allergy was really non existent before the 1980’s. With the development of HIV and AIDS the use of rubber gloves throughout the world increased dramatically. Along with this increased use came a poorer quality of glove to fill these increased demands. The rise in incidence of latex allergy has paralleled the increase in latex glove use in medical and para medical professions. The fact that powdered gloves are more likely to produce latex allergy has been a well known fact for many years. However I am unable to give you a more specific date. More detailed information would require an extensive literature review.”
The plaintiff was the employee of the defendant. The defendant as employer had a duty to exercise reasonable care to ensure that the system of work provided for the employee was a safe one: McDermid v Nash Dredging & Recreation Co Ltd [1987] 2 All ER 878 at 887. The plaintiff was provided with powdered latex gloves by the defendant for the purpose of carrying out her work and wore these gloves for substantial periods on each working day. According to Dr Watkins “The fact that powdered gloves are more likely to produce latex allergy has been a well known fact for many years”. According to Dr Watkins the plaintiff developed her latex allergy in the course of her employment as a result of her constant exposure to powdered latex gloves. The allergy has reached a stage where the plaintiff now suffers from the very serious health risk of developing anaphylaxis. I am satisfied that the plaintiff has a viable claim.
Counsel for the defendant submitted that there is no jurisdiction to extend time as an extension may only be granted where a primary limitation period has expired or will expire before the commencement of proceedings. He submitted that under the Act, s135(1), the plaintiff had three years from “the date on which the injury was suffered” to commence the action. He submitted that the plaintiff’s condition is a disease within the meaning of the Act and under the Act, s3(5), the injury is deemed to have occurred in December 2003 when the plaintiff first ceased working because of it. Accordingly, three years from the deemed date of the injury will not have passed until December 2006 and here the writ having issued on 6 September 2004 was well within time.
I assume that it is the defendant’s position that if I uphold the submission the defence, which is yet to be delivered, will contain no limitation plea. In addition, it appears to me that a finding that time did not commence to run until December 2003 will not benefit the defendant on any of the substantive issues which may arise at trial. The Act, s138AB, which came into effect on 1 July 2001 imposes as preconditions to the commencement of an action lodgment of an election and a degree of permanent impairment of the whole person of not less than 30%. But this has no impact on a cause of action which accrued before 1 July 2001. As set out earlier in these reasons it is common ground that absent a manifest contrary intent a statute affecting vested rights has no retrospective application: Maxwell v Murphy (supra). In response to specific questions from me counsel for the defendant did not dispute that for common law purposes the plaintiff’s cause of action accrued in February 2001 when she first suffered material symptoms as a result of the latex allergy. Counsel did not dispute that accordingly in February 2001 the plaintiff had an unencumbered right to commence proceedings in respect of her cause of action. Counsel did not dispute that that right, notwithstanding no 30% permanent impairment, survived the introduction of s138AB when it came into effect about four months’ later on 1 July 2001.
The plaintiff, to be sure of her position, wants an order extending time, notwithstanding the submissions from counsel for the defendant. Accordingly, counsel for the plaintiff submitted that notwithstanding the Act, s3(5), the time for the commencement of the action expired three years following the date of the accrual of the cause of action, namely, February 2004.
The Act, s3(5), is as follows:
“(5) For the purposes of this Act, where a worker suffers an injury that is a disease, that injury shall be deemed to have occurred –
(a) on the day on which the worker became totally or partially incapacitated by reason of that injury; or
(b) if a day cannot be ascertained under paragraph (a), on the day on which a medical practitioner has certified that the worker was first incapacitated by reason of that injury.”
Counsel for the plaintiff submits that the Act, s3(5), is confined in its operation to the time limits specified in s32 for giving notice of the injury and claiming compensation under the Act. I reject the submission. Section 3(5) is expressed to be “For the purposes of this Act”. It is not expressed to be for the purposes of Part IV of the Act or other limited purposes. The Act, s135, set the clock running for limitation purposes from “the date on which the injury was suffered” as distinct from the Limitation Act 1974, s5(1), which starts the limitation clock “from the date on which the cause of action accrued”. The legislation is beneficial and should be construed accordingly. Gradual onset diseases present limitation problems where the nature and progression of the condition is not detected for several years. The alleviation of such potential problems in the context of injured workers is not outside the scope and object of legislation having as one of its purposes the facilitation of access to appropriate compensation by injured workers.
Next, counsel for the plaintiff submitted that in any event a relevant incapacity for the purposes of the Act, s3(5) had occurred by February 2001 notwithstanding that the plaintiff had continued to work until December 2003 when she first suffered severe symptoms, received a diagnosis of latex allergy and was certified by her doctor to be unfit for work. Counsel for the plaintiff submitted that the word “incapacitated” in the Act, s3(5), means incapacitated for work . Counsel for the defendant did not dispute this proposition and so for the purpose of this application, but without deciding the matter, I proceed on the basis that “incapacitated” refers to an incapacity for work and not merely to an impairment which results in an incapacity not extending to performance of the worker’s duties.
In her affidavit at par10, the plaintiff says:
“When I returned to work from maternity leave in February 2001 the Department were still providing powdered latex gloves for my use. At this time I was particularly careful to use the gloves as much as possible as I did not want to transfer any infections from work to home and my new baby. When I returned to work I was clear of any skin irritations. Within a short time after commencing back at work my skin became dry itchy and red. It affected my hands. My hands would become itchy soon after I put on the gloves. Gradually my skin became worse to the extent that the skin between my fingers would crack and I had patches of dermatitis across the fingers and on the wrists. I was using creams and antihistamines to treat the outbreak. I assumed it was due to hormonal changes and frequent hand washing.”
In Ball v William Hunt & Sons Ltd (1912) AC 496, Lord Loreburn in the frequently quoted passage said at 499 – 500:
“I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch.”
The evidence presented is insufficient to enable me to conclude that the plaintiff’s condition in February 2001 impacted on her work in a way which affected the value of her labour. Conversely, the evidence is insufficient to enable me to conclude that in February 2001 there was not such an impact.
I am not persuaded that there was no relevant incapacity prior to the plaintiff being certified unfit for work in December 2003. It follows that I am not persuaded that the plaintiff’s writ issued within time and accordingly I do not uphold the defendant’s, lack of jurisdiction, submission.
As indicated earlier, the defendant does not suggest any specific or general prejudice nor complain about the plaintiff’s explanation for delay. I have found that the plaintiff’s claim is viable. I am satisfied that the justice of the case lies with the grant of the extension sought.
I order that the time within which the plaintiff’s action may be commenced is extended to the date of the issue of the writ, namely, 6 September 2004.