Bradford v Darling Downs Bacon
[1999] QSC 299
•14 October 1999
IN THE SUPREME COURT
OF QUEENSLAND
No 7716 of 1999
Brisbane
Before the Hon Justice Atkinson
[Bradford v Darling Downs Bacon]
BETWEEN:
ROBERT MAXWELL BRADFORD
Plaintiff Applicant
AND:
DARLING DOWNS BACON CO-OPERATIVE ASSOCIATION LIMITED (ACN 051 834 309)
Defendant Respondent
REASONS FOR JUDGMENT - ATKINSON J
Judgment delivered 14 October 1999
CATCHWORDS: LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - PERSONAL INJURY CASES - application for extension of time - where plaintiff contracted brucellosis - whether material prejudice would be suffered by defendant if extension of time granted.
Brisbane South Regional Authority v Taylor (1996) 186 CLR 541
Byers v Capricorn Coal Management Pty Ltd [1990] 2 QdR 306
Castlemaine Perkins Limited v McPhee [1979] QdR 469
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
Moriarty v Sunbeam Corporation Ltd [1988] 2 QdR 325
Opacic v Patane [1997] 1 QdR 84
Pizer v Ansett Australia Ltd (unreported, Court of Appeal of the Supreme Court of Queensland, CA No 6807 of 1998, 29 September 1998)
Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283
Smith v Central Asbestos Co [1973] AC 518
Sugden v Crawford [1989] 1 QdR 683
Taggart v The Workers’ Compensation Board of Queensland [1983] 2 QdR 19
Wood v Glaxo Australia Pty Ltd [1994] 2 QdR 431
Limitation of Actions Act 1974, s 31
Counsel: W D Campbell for the applicant/plaintiff
K F Holyoak for the respondent/defendant
Solicitors: Wonderley & Hall Solicitors for the applicant/plaintiff
Clewett Corser & Drummond for the respondent/defendant
Hearing Date: 20 September 1999
IN THE SUPREME COURT
OF QUEENSLAND
No 7716 of 1999
Brisbane
[Bradford v Darling Downs Bacon]
BETWEEN:
ROBERT MAXWELL BRADFORD
Plaintiff Applicant
AND:
DARLING DOWNS BACON CO-OPERATIVE ASSOCIATION LIMITED (ACN 051 834 309)
Defendant Respondent
REASONS FOR JUDGMENT - ATKINSON J
Judgment delivered 14 October 1999
This is an application to the court pursuant to section 31 of the Limitation of Actions Act 1974 (Qld) that the time for the commencement of the action be extended to 19 August 1998. That was the date on which the plaintiff commenced an action in the Toowoomba district registry of this court claiming damages for negligence and/or breach of statutory duty. That writ was served on WorkCover Queensland, Toowoomba office on 6 July 1999 and by post on the defendant. On 12 July 1999 a Statement of Claim was delivered and on 3 August 1999 a Notion of Intention to Defend and Defence was filed.
The statement of claim alleged that between 31 May 1962 and 12 August 1993 the plaintiff, Mr Bradford, was employed by the defendant, Darling Downs Bacon Co-operative Association Limited, in various capacities including labouring, boning, slaughtering and “hands‑on” supervisory and managerial positions. It is alleged that in or about 1993 whilst engaged in his various employment duties with the defendant, the plaintiff suffered personal injury when he contracted brucellosis following exposure to infected livestock. It is alleged that the brucellosis has led to the development of abscesses around the plaintiff’s left hip and the development of granulomatous osteomyelitis.
The defence, which contains a number of non-admissions some of which counsel was prepared to concede are no longer sustainable, pleads a defence under the Limitations of Actions Act 1974 as follows:
“5 (a)Further, or alternatively, the Defendant says that if the Plaintiff did suffer personal injury by contracting brucellosis following exposure to infected stock in or about 1993 as alleged in paragraph 4 of the Statement of Claim, the Plaintiff’s claim is statute barred pursuant to the provisions of Section 11 of the Limitations of Actions Act 1974 in that:-
(i)If the plaintiff contracted the disease brucellosis, the said disease was contracted in or about 1993 as alleged in paragraph 4 of the Statement of Claim;
(ii)The plaintiffs writ was issued on the nineteenth day of August 1998.”
It is not disputed by the defendant that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation[1].
[1]Wood v Glaxo Australia Pty Ltd [1994] 2 QdR 431 at 434-435.
The present application for extension of the limitation period was filed on 23 August 1999. The application for extension of time is made pursuant to section 31 of the Limitation of Actions Act 1974 which provides:
“31.(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
(2) 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 the 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 so that it expires at the end of 1 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.
(3) This section applies to an action whether or not the period of limitation for the action has expired -(a)before the commencement of this Act; or
(b)before an application is made under this section in respect of the right of action.”
The interpretation of s 31 is governed by s 30 which provides:
“30. For the purpose 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;
(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 person 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 the person’s own interests and taking the person’s 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 -
(i)the person does not at that time know the fact; and
(ii)so far as the fact is capable of being ascertained by the person, the person has before that time taken all reasonable steps to ascertain the fact.”
That the extension provisions are complex and extremely technical and have been a fertile source of litigation has been adversely commented upon by the Queensland Law Reform Commission in their review of the Limitation of Actions Act 1974[2]. The question to be determined is whether a material fact of a decisive character was not within the means of knowledge of the plaintiff until the date after the commencement of the year last preceding the expiration of the period of limitation for the action and no earlier than one year before the date of commencement of the action[3].
A fact which may be material to a right of action includes the fact of the occurrence of the negligence or breach of duty on which the right of action is founded, the identity of the person against whom the right of action lies, the fact that the negligence or breach of duty has caused personal injury, the nature and extent of the personal injury so caused and the extent to which the personal injury was caused by the negligence or breach of duty.
A material fact will be of a decisive character if, but only if, firstly under subsection 30(b)(i) a reasonable person knowing those facts and having taken the appropriate advice on those facts would regard those facts as showing that an action on the right of 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 secondly, pursuant to subsection 30(b)(ii) that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action. Such appropriate advice means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.
[2]Report number 53, September 1998 at 37-39.
[3]Moriarty v Sunbeam Corporation Ltd [1988] 2 QdR 325 per Macrossan J at 334; Byers v Capricorn Coal Management Pty Ltd [1990] 2 QdR 306 at 307 per Lee J.
In this case a material fact of a decisive character relating to the right of action must not have been within the means of knowledge of the plaintiff until after 12 August 1995 and no earlier than 19 August 1997. It is not within the means of knowledge of a person at a particular time if, but only if, the person does not know the fact at that time and so far as the fact is able to be found out, the person has taken all reasonable steps to find out the fact before that time.
It is important therefore to examine the factual background in this matter to determine whether or not there was a material fact of a decisive character which was not within Mr Bradford’s means of knowledge before 19 August 1997.
Mr Bradford swore an affidavit on which he was not required for cross examination. In that affidavit he said that he commenced employment with the defendant as a labourer progressing to working as a slicer, then a boner working in every section of the abattoir until he became abattoir manager. During his employment he had contact with cattle, pigs and sheep. Many of the tasks he was required to perform included the handling of cuts of meat which resulted in his hands being covered with blood. He also suffered nicks and small cuts to his hands which then came in contact with blood from animals. He was issued with some protective clothing but not gloves, even when he was slicing and boning, nor any other protective gear such as face masks. He was never given any warnings by the defendant as to the dangers associated with contracting brucellosis or any other disease if he did not wear protective clothing.
He recalls that there were occasions where his job description required extraction of blood from foetuses which blood was then sent to serum laboratories. He recalls injecting needles into the foetuses to extract the blood by way of a pump. On insertion of the needle and on removing the needle after the extraction, invariably he was sprayed with the blood from the foetuses. On another occasion he can recall as part of his supervisory role having to enter what was known as the “condemned room”. This room was isolated from the rest of the works as it received diseased carcasses which were fed into the rendering machine. The carcasses were then boiled down to make meat and bone meal and tallow. He was never provided with protective gear when he entered that room. He left the employ of the defendant on 12 August 1993 and on 17 August 1993 took up a position with Oakey abattoir as a plant manager.
On about 19 July 1993 Mr Bradford suffered from flu like symptoms for which he consulted his general practitioner. He was investigated for leptospirosis but not brucella or Q‑fever. Although he thereafter had night sweats, he did not suffer any other syptoms of concern. On about 23 January 1996 he again saw his general practitioner with pain in his left thigh which he thought was as a result of a strain while lifting an aeroplane footrest with his foot. He was referred to see Dr Bookless, an orthopaedic surgeon in Toowoomba, on 19 February 1996 when he had a small lump in his groin. Dr Bookless reviewed him in March 1996 when it was found that he had an abscess in the left thigh which was drained. The subsequent cultures were sterile. The pain persisted and he underwent a series of steriod injections which provided temporary relief.
In June 1996 he again saw Dr Bookless who recommended open exploration of the iliac crest which was not carried out at that time. On 31 October 1996 he was again reviewed by Dr Bookless with persisting iliac discomfort and an open exploration was again recommended which was carried out on 17 November 1996. Dr Bookless told him there was an abscess on his hip which he drained and he also scraped the bone. Dr Bookless also told him that subsequent tests showed that he was positive for brucellosis. He had increasing pain in the left hip and had developed another abscess by 4 December 1996 when he again saw Dr Bookless. He underwent further surgery by Dr Ivers to debride the abscess on 11 December 1996.
On 4 December 1996, the plaintiff provided a medical certificate to the Workers’ Compensation Board (as WorkCover was then called) in which Dr Bookless said he was fit to return to work on 19 February 1997 and that he was suffering from brucellosis/osteomyelitis which the plaintiff stated was caused by “work at KR”. However on 5 December 1996, Mr Bradford’s application for workers’ compensation reveals he was at that time not certain of the place of his injury. He said he was suffering from brucellosis caused by contact with swine. However he says that the injury occurred at Oakey Abattoir. On 23 December 1996 Dr Bookless provided a report to the Workers’ Compensation Board. After reciting Mr Bradford’s history, Dr Bookless said that he was no expert in the condition of brucellosis which had been diagnosed in this case by Dr Robson from Sullivan and Nicolaides, pathologists. He said that on her advice it appeared “possible” that Mr Bradford had contracted his brucellosis “perhaps” while in contact with pigs at “KR Darling Downs”. Dr Bookless said he expected that antibiotic treatment would cure Mr Bradford and that he would be left without residual disability.
On 27 February 1997 the Workers’ Compensation Board received a report it had commissioned from Dr Whitby, a consultant physician in infection. Dr Whitby regarded the claim as medically acceptable. Although the diagnosis was not definitively proven, brucella appeared on the balance of probabilities to be an appropriate diagnosis. The possibility of transmission of brucellosis in a worker who spent more than 30 years in the industry in a meatworks that had killed both cattle and pigs was one Dr Whitby considered fairly high, both from cattle killed prior to the 1980s and feral pigs which might have slipped in with the domestic pigs normally slaughtered. That report alerted the Board to the serious nature of Mr Bradford’s condition and also to their potential liability. No copy was provided to Mr Bradford.
Mr Bradford underwent a further four operations by May 1997. He was still undergoing treatment when he first consulted solicitors on 4 August 1997. Although he had been told by Dr Bookless in November/December 1996 that he had contracted brucellosis, his affidavit evidence was that he was not aware how or where he had contracted it nor what the future held for him. He had not gone on worker’s compensation benefits for the time he had off whilst undergoing surgery and had used his sick pay and holiday pay from his employment. He told his solicitors that he did not wish to commence proceedings at that time as he had not suffered any loss of earnings and he was unsure as to whether his health would be compromised in the future. There is no suggestion that his solicitors gave him other than competent advice[4]. He swore that he kept thinking it would get better but it was something that just when on and on.
Once his treating practitioners were satisfied the infection was under control, he again consulted his solicitors in April 1998 and instructed them to commence proceedings. On 14 May 1998, the plaintiff’s solicitors received copies of the WorkCover file relating to his statutory claim. Counsel was briefed a week later to advise and to draw initiating proceedings against the defendant and/or Oakey Abattoir. On 27 May 1998, his solicitors received a letter from Dr Whitby enclosing his report to WorkCover dated 26 February 1997. This was not within Mr Bradford’s knowledge prior to this date but was within his means of knowledge had he instructed his solicitors to seek the WorkCover file when he first consulted them.
[4]cf Ex parte Bolewski [1981] QdR 54 at 60.
On 3 June 1998, the plaintiff’s solicitor received a report from Dr Bookless setting out the plaintiff’s surgical history and saying that he had a 12% permanent impairment to his left lower limb together with a 5% permanent incapacity as a result of the infection. It was then that the plaintiff would have known that a common law action was worth pursuing. He then knew that the nature and extent of his personal injury was likely to result in an award of damages sufficient to justify the bringing of the action. Taking into account what he already knew, this was not just a question of enlargement of damages but whether the extent of his injury justified the bringing of an action of common law[5]. This is a case closer on the spectrum to cases of latent symptoms of apparently trivial injury followed by eventual discovery of a serious condition which justifies an extension of time[6]. On 18 August 1998, counsel who had been briefed, advised that a writ should be issued against the defendant and that the plaintiff’s solicitors should “obtain a report from Dr Whitby as to the causation aspects of Mr Bradford’s case” and the writ was issued.
[5]Moriarty v Sunbeam Corporation Limited (supra) at 329; Taggart v The Workers’ Compensation Board of Queensland [1983] 2 QdR 19 at 23-24; Sugden v Crawford [1989] 1 QdR 683 at 685.
[6]Pizer v Ansett Australia Ltd (unreported, Court of Appeal of the Supreme Court of Queensland, CA No 6807 of 1998, 29 September 1998) per Thomas JA at [20].
Mr Bradford swears it was not until his solicitors received a report from Dr Whitby on 15 September 1998 that he became aware that it was probably during his employment with the defendant that he had become infected with brucella, even though it was not until more than three years after that employment had ceased that he was first diagnosed as suffering from brucellosis. Mr Bradford’s evidence was not disputed by requiring him for cross-examination on this or any other point. This report was to the effect that although the average incubation period of brucellosis was two weeks, there were cases of patients with focal infection from brucella being reported many years after their initial contact. This report established that the negligence of the defendant probably caused the injury to Mr Bradford and that such a delayed onset was not a reason to think otherwise. Mr Bradford then knew that he had reasonable prospects of success and who was the proper defendant. The fact that the material fact was established after the action had commenced does not deprive him of obtaining relief under s 31[7]. This report confirmed to him that he had probably become infected with brucella during his employment with the defendant in or about June/July 1993, even though he had not been particularly ill at that time, and even though it was more than 3 years after that employment had ceased that he was first diagnosed as suffering from brucellosis.
[7]Opacic v Patane [1997] 1 QdR 84 at 87.
On 3 June and 15 September 1998 Mr Bradford learned of material facts of a decisive character which were not within his means of knowledge until after 19 August 1997[8]. Neither report had been written prior to that date and each established a material fact of a decisive character as set out. Mr Bradford displayed an appropriate caution before commencing a common law action[9]. After these reports he became concerned that at the age of 56, because of the effects of the disease and surgery he might not be able to continue in his occupation as Plant Manager of Oakey Abattoir until his planned retirement age[10].
[8]Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 249, 259 per Brennan and Dawson JJ; Castlemaine Perkins Limited v McPhee [1979] QdR 469 at 472.
[9]It is not the policy of the law that persons should sue whenever they have an opportunity of doing so: Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283 at 287 per Hope JA.
[10]Byers v Capricorn Coal Management Pty Ltd (supra) at 307; cf Moriarty v Sunbeam Corporation Limited (supra) at 331; Pizer v Ansett Australia Ltd (supra) per Thomas JA at [12].
I am satisfied that material facts of a decisive character were not within the means of knowledge of the plaintiff before 19 August 1997[11].
[11]Smith v Central Asbestos Co [1973] AC 518 at 541-542 per Pearson LJ; Do Carmo v Ford Excavations Pty Ltd (supra) at 244, 254.
Once the plaintiff has satisfied the requirements of an extension of time under s 31(2), he still bears the onus of showing that the justice of the case requires the exercise of discretion in his favour[12]. In this case, Mr Bradford has been appropriately cautious in his actions. WorkCover has had the benefit of promptly obtained medical reports. On the other hand, Mr Myatt, the Manager, Human Resources of the defendant has given evidence of a large business with a high annual turnover with a poor archival record keeping system so that it would be extremely time consuming, if it were possible at all, to retrieve relevant documents. Those documents have either been destroyed or have been filed in such a way as to make them impossible to find. The personnel officer at the relevant time is retired and has an unreliable memory.
[12]Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 at 551.
Mr Bradford is not responsible for the poor record keeping of the defendant. There is no evidence put forward to suggest that only the personnel manager could give evidence of the relevant work practices of the defendant in early 1993 and so his age and deteriorating memory is not conclusive or even persuasive. I am not persuaded that there is material prejudice and I am therefore satisfied that the justice of the case requires the exercise of my discretion to extend the limitation period by granting relief under s 31 of the Limitation of Actions Act 1974.
I order that the time for commencement of the action be extended to 19 August 1998 and that the defendant pay the plaintiff’s costs of and incidental to the application to be assessed.
0
4
0