Goebel v Cameron Pastoral Company

[2000] QSC 408

SUPREME COURT OF QUEENSLAND

CITATION:	Goebel v Cameron Pastoral Company [2000] QSC 408
PARTIES:	CECIL JAMES GOEBEL (applicant) v CAMERON PASTORAL COMPANY BN 2403122 (respondent)
FILE NO/S:	S8310 of 2000
DELIVERED ON:	9 November 2000
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2000
JUDGE:	Williams J
ORDER:	Extend the period of limitation for one year from 4 January 2000. Costs of each party to be that party’s costs in the proceeding to be commenced.
CATCHWORDS:	LIMITATION OF ACTIONS – GENERAL - STATUTES OF LIMITATION - OPERATION OF STATE STATUTES – application to extend limitation period – applicant diagnosed with acute Q-fever in 1987 - after recovery from this episode no symptoms until diagnosed with chronic Q-fever in 1999 – whether condition was a fact within his means of knowledge prior to 1999 - whether applicant provided “evidence to establish a right of action” as required by s 31(2)(b) Limitation of Actions Act 1974 - where applicant satisfied relevant tests in Act, exercise of court’s discretion called into play.
Limitation of Actions Act 1974 (Qld), s 30, s 31
186 CLR 541, applied Dwan v Farquhar [1988] 1 Qd R 234, distinguished
Brisbane South Regional Health Authority v Taylor (1996) applied
COUNSEL:	G J Cross for applicant M Grant-Taylor SC for respondent
SOLICITORS:	Watling Roche for applicant Thynne & Macartney (Brisbane) acting as Town Agents for Hedge Byrne & Hall (Toowoomba) for respondent

1. WILLIAMS J: This is an application by Cecil James Goebel for an order pursuant to s 31 of the Limitation of Actions Act 1974 (“the Act”) extending the limitation period with respect to a cause of action against his employer for damages for negligence. The applicant commenced employment with the respondent, Cameron Pastoral Company, in 1984. The respondent carried on grazing and farming activities on a number of properties in the Goondiwindi district. The applicant was primarily engaged on the farming side of the business (the allegation is he was in charge of crop farming), but from time to time he was called upon to perform duties with respect to the grazing side of the business. At all material times the applicant and his family lived in quarters on the respondent’s property “Lundauara”.

2. The material also suggests, not surprisingly, that the applicant had contact with wild and domestic animals over the relevant period of time otherwise than in the course of his employment. Whilst there is some dispute as to when in relation to August- September 1989 (which is said to be the critical time), there is evidence suggesting that the applicant had contact with feral pigs, dairy cattle, poddy calves, and household poultry, and engaged in the butchering of sheep for consumption, and the shooting and skinning of kangaroos.

3. Records of the Goondiwindi Medical Centre, which the applicant has attended since 1985, clearly establish that on 7 September 1987 he was diagnosed suffering from acute Q-fever. That diagnosis was essentially established by serological testing.

4. According to the plaintiff, and there is nothing to contradict this in the material presently before the court, he returned to work after having rested in bed for a couple of weeks, and was thereafter able to carry out normal duties. The material suggests that the applicant had no symptoms of relevance from his return to work until late 1999. Because he was feeling unwell he visited the Goondiwindi Medical Centre and serological testing on 31 December 1999 indicated chronic Q-fever. Testing over the ensuing few months confirmed that diagnosis.

5. As I read the article on Q-fever which is exhibit “C” to the affidavit of K J Owens filed 22 September 2000, chronic Q-fever may develop as a consequence of acute Q-fever. Further, and importantly for present purposes, that article suggests that it is “very rare” for an individual to experience a second attack of acute Q-fever. The chronic Q-fever, according to the medical opinion contained in that article, is referable to the first onset of acute Q-fever. That means that, at least for the purposes of this application, there is available evidence tending to establish that the chronic Q-fever diagnosed late 1999 was a consequence of the acute attack of Q- fever the applicant suffered in September 1987.

6. The applicant is now also suffering endocarditis with mitral valve damage; he also suffered a stroke in the first half of 2000. Each of those could be referable to the chronic Q-fever; endocarditis is a medically recognised manifestation of chronic Q- fever. However, Dr William Hope, Infectious Diseases Registrar, Infection Management Services Southern Queensland, has expressed some doubt as to the relationship here between the chronic Q-fever and the applicant’s endocarditis and stroke. In his view those conditions may be explained by a streptococcus infection which was also present at material times.

7. The causation of the endocarditis and stroke need not be resolved for present purposes. It is sufficient for present purposes, in my view, that there is no doubt that the applicant is suffering chronic Q-fever first diagnosed in December 1999.

8. It is the applicant’s case that he only became aware on or about 4 January 2000 (when the test results were made known to him) that he was suffering chronic Q- fever. That, on his case, was a material fact of a decisive character for purposes of s 30 and s 31 of the Act.

9. The respondent accepted for purposes of the application that the applicant only became aware of his chronic Q-fever early in 2000. But the respondent submitted that such was a fact “within the means of knowledge of the applicant” well prior to that time. The submission on behalf of the respondent is that the applicant unreasonably made no enquiries of his doctors about the possible consequences of the attack of acute Q-fever in September 1987. It was contended that “any reasonable person in the applicant’s position would have asked his medical advisers whether there was any prospect of a recurrence of the disease or whether any other health problems could be expected in the future as a result of having contracted the disease”.

10. The applicant appears to have been a fairly regular patient of the Goondiwindi Medical Centre. That Centre holds his records from 1985 to the present. It appears that doctors who saw the applicant between 1987 and 1999 did not require any tests to be carried out to identify possible consequences of the acute attack of Q-fever; in particular there is nothing to suggest that the doctors suspected chronic Q-fever until it was diagnosed on 31 December 1999. The plaintiff appears to have worked throughout the 12 year period, much of the time with the respondent. There is nothing to suggest that during that 12 year period there was any indicia of chronic Q-fever which ought to have alerted the applicant, or a reasonable person in his position, to the possibility of some ongoing problem associated with the attack of Q-fever in 1987.

11. If the doctors responsible for treating the condition in 1987 did not advise the applicant of the possibility of his developing chronic Q-fever, and the applicant has sworn that they did not, then it is difficult to see why, in the absence of any particular symptom, the applicant ought to have raised such a possibility with his medical advisers. In my view it is not unreasonable for an ordinary, reasonable person to believe there will be no lasting or recurring consequences of a serious illness if the treating medical personnel merely advise that the illness has passed and the patient is fit to resume normal duties.

12. In all the circumstances I am satisfied that the fact that the applicant was suffering chronic Q-fever was a material fact of a decisive character which was not within his means of knowledge until about 31 December 1999 - 4 January 2000.

13. The respondent also contended that on the material before the court the applicant has not provided “evidence to establish a right of action” as required by s 31(2)(b) of the Act. It is clear from Dwan v Farquhar [1988] 1 Qd R 234 at 235-7, following Minoque v Bestobel Industries Pty Ltd [1981] Qd R 356, that:

    “It is incumbent upon an applicant to make it appear that there is evidence which can be adduced from which the court could form an opinion that the applicant has a right of action. … In an application under the section it is not necessary for the applicant to either set out the relevant evidence as it will be led at the trial or test it by reference to whether it is sufficient for the case founded upon it to go to the jury.”

14. A proposed statement of claim forms part of the applicant’s material. From that, and the supporting affidavit material, it is clear that it is his case that in August 1987 he was required by the respondent to help unload bags of “blood meal/cattle offal” from a truck. It was necessary to manhandle the bags containing fine red powdery meal and carry them into a shed for stacking. According to his affidavit the applicant helped unload about 20 pallets and the blood meal was escaping from the white nylon bags. He says at the end he was covered from head to toe in fine red powder. When he got home he was hosed down before entering the house.

15. Significantly the applicant says in his affidavit that it was “about 3 weeks after that incident” that he came down with the high fevers and shivers which resulted in his attending the doctor and being diagnosed as having acute Q-fever.

16. It is true that the lapse of time of more than 13 years from the date of the alleged incident will make it difficult for the court at trial to consider which of the variety of exposures to animals and animal product caused the applicant to develop Q-fever in September 1987. But a court may well accept (apparently some other employees will speak of a similar incident) that the applicant was exposed to blood meal some 3 weeks before his condition was diagnosed.

17. Because of the lapse of time the defendant’s records relating to the purchase of blood meal have been destroyed. However, there is some evidence that the blood meal had been prepared by what is known as the “ring drier operation”. A Peter Husband, a food technologist and industrial chemist with Aus-Meat Limited, has given a statement describing that process. That was put to Dr Hope, who has been referred to previously. In a report of 23 October 2000 that doctor said:

    “… its impossible to be certain about the source from which Mr Goebel contracted Q-fever. The most common association is contact with infected animals. On balance it would seem unlikely that Q- fever was contracted from exposure to spilt blood meal, but given it is impossible to ascertain with any certainty the temperature reached in the production process it is possible that viable organisms could survive the production process and potentially lead to infection.”

18. All of that to my mind indicates that it will be a question of evidence at trial as to whether it was the exposure to the blood meal which caused the onset of Q-fever. Once the exposure is established the material currently before the court does not rule it out as a possible, or even probable, cause.

19. The next relevant matter for present purposes is whether or not the applicant has shown a basis for a finding that the respondent was negligent in exposing the applicant to the blood meal. The evidence establishes that Q-fever was identified for medical purposes in the 1930s; at that time the bacteria was isolated. It was known that infected wild and domestic animals, and their products, were the main source of the infection of humans. The article on Q-fever referred to above states that infected aerosols from infected animals, including from their tissues or products, may be released into the environment, and consequently infect humans via the respiratory tract. Vaccination is now seen as a possible protection against air borne Q-fever, but an effective vaccine has only been available since 1989, that is some 2 years after this applicant contracted the disease.

20. Included in the applicant’s material is an extract of evidence given by a Professor Wakefield, a pathologist, during the course of a trial in this court earlier this year. His opinion is that wearing a surgical type mask could give at least partial protection from Q-fever.

21. That is said to support the applicant’s allegation that the respondent failed to provide him with appropriate protective equipment at the time he was unloading the bags of blood meal. What has concerned me is that there is no direct evidence indicating that reasonable employers in 1987 would have provided employees with protective clothing or masks if the employees were obliged to work in the presence of blood meal or blood meal dust. However, I have ultimately come to the conclusion that that is really a matter of evidence. The case can, in my view, be distinguished from Dwan v Farquhar where the real relationship between blood and AIDS was not known to the medical professional at the material time. Here there is evidence to suggest that the dangers of Q-fever were generally known and relatively simple procedures may have lessened the risks associated with exposure to sources of the bacteria.

22. It is true to say that the applicant will have to overcome a number of hurdles in order to succeed, but that does not mean that he has not established a right to the extension of the applicable limitation period. In my view he has satisfied the tests laid down by the sections of the Act. That calls into play the exercise of discretion referred to in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. The material before this court indicates that a number of people who were working with the applicant in 1987 are available as witnesses, as are the principals of the respondent. Further, it appears that the applicant’s full medical records from 1985 to date are available.

23. Undoubtedly the lapse of time will create some problems at trial which would not have existed if the matter had been heard and determined closer to the critical events of 1987. But as the chronic Q-fever did not become manifest until late 1999 the delay is not of the applicant’s making.

24. I am not satisfied that the delay in the circumstances of this case is such that this court ought, in the exercise of its discretion, decline to extend the limitation period.

25. In all the circumstances there will be an order extending the period of limitation for one year from 4 January 2000, and an order that the costs of each party be that party’s costs in the proceeding to be commenced.