Kranich v The Minister of Education No. DCCIV-96-1119 Judgment No. D3590

[1997] SADC 3590

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour the Chief Judge

Hearing

14/03/97.

Catchwords

(NON MOTOR VEHICLE) - INDUSTRIAL CLAIM FOR NON-ECONOMIC LOSS Plaintiff employed by the defendant at Urrbrae Agricultural College in April 1989 to maintain various machines and tools contained in the workshops operated by the school - defendant arranged for workshop to be treated by a pest control company - plaintiff was assured at the time that sprays were perfectly safe. Plaintiff's health started to deteriorate - experienced "incredible shakes and jolts" at night - difficulty in focusing his eyes - endured vivid and non-sensical dreams - became increasingly lethargic - experienced muscle pains at night and became depressed - all symptoms as a result of exposure to chemical sprays. Plaintiff claims damages from defendant for non-economic loss. Finding that the defendant was not in breach of its duty of care to the plaintiff - plaintiff's claim dismissed.

Materials Considered

• Workers Rehabilitation and Compensation act 1986 s54, referred to.
• The Council of the Shire of Wyong v Shirt and Others (1979-80) 146 CLR 40, applied.
• The Law of Torts by Professor J.G. Fleming (7th Edition) at pp104-105, discussed.

Representation

Plaintiff HERMANN KARL WILLI KRANICH:
Counsel: MR MCRAE - Solicitors: STANLEY &; PARTNERS

Defendant THE MINISTER OF EDUCATION:
Counsel: MR J TELFER - Solicitors: CROWN SOLICITOR'S OFFICE

DCCIV-96-1119

Judgment No. D3590

11 April 1997

(Civil)

KRANICH v THE MINISTER OF EDUCATION

Civil

The Chief Judge

In this action, the plaintiff claims damages from the defendant, his employer, in respect of an incident which occurred on 5 January 1990.The plaintiff alleges that he suffered injury in the course of his employment with the defendant when he was exposed to a pesticide which had a trade name of "Dersban."Having regard to the date upon which the incident took place, the plaintiff's claim is limited by the former provisions of section 54 of the Workers Rehabilitation and Compensation Act 1986 to a claim for non-economic loss.

The plaintiff is now 56 years of age.He was born in what was then known as Pomerania.After World War II, his family settled in eastern Germany. Subsequently, the plaintiff came to this country in 1966.

For most of his working life, the plaintiff has held positions in which his skills as a metal worker have been of significance.Since coming to Australia he has worked as an arc welder, a pattern maker, a tool maker, a machinist, a refinery pipeline operator, a fitter and turner, and in other similar positions.He also became an accomplished aeroplane pilot.

In April 1989, the plaintiff joined the employ of the defendant at Urrbrae Agricultural College.His task was to maintain the various machines and tools contained in the various workshops operated by the school.He was also required to prepare the materials needed by the teachers for instruction purposes.His immediate superior was Mr Charles McEachern and the section in which he worked was under the general supervision of Mr Robert Hunter.

At a function held late in 1989, and just prior to virtually all members of the staff of the College taking their annual vacations, Mr Hunter informed the plaintiff that arrangements had been made for the workshop which accommodated the woodworking and plastic-moulding sections of the school's curriculum to be treated early in the new year by a pest control company.Mr Hunter informed the plaintiff that the plaintiff would be the only person on the premises who had a key to the workshop at the time that had been arranged for the work to be done.Mr Hunter asked the plaintiff to indicate to the pest controllers the workshop to which their attention was to be directed.Mr Hunter further asked the plaintiff to open the workshop to give the pest controllers access to perform their work.

Pursuant to the arrangements that had been made, operators employed by Noel's Pest Control arrived at the school in the morning of 5 January 1990.The plaintiff met them and took them to the workshop that was to be treated.The plaintiff pointed out to the foreman of the group from Noel's Pest Control that, he frequently worked in the workshop for half days and whole days at a time and that teachers often spent lengthy periods of time there.He also pointed out that hundreds of students were instructed there.The plaintiff sought assurance from the foreman that the sprays that were proposed to be used were safe in the circumstances.The foreman assured the plaintiff that the sprays were perfectly safe.The foreman further stated that "All we want you to do is, as I instructed you, to open up the windows in the morning, shut them in the evening and after the third day you can go in there and work as long as you want to.It is absolutely safe."The plaintiff went ahead and opened all of the 64 windows in the building before the spraying activities commenced.

The spraying had been completed before the plaintiff started to make preparations to go home at approximately 1.30 pm.At that time, the plaintiff went to the workshop to close the windows.He described what happened when he approached and entered the building in these terms:-

"A . When I tried to enter the workshop when I got into the vicinity of it, the doors of the foyer which is between both workshops, I realised an incredible stench had literally choked off my breath.I thought, God in heaven, he told me it's completely harmless.Nevertheless I was more or less compelled to shut all the windows before I go home, so I went inside and the stench was incredible.So I put my head through the window in order to get some fresh air, so I put my head through a window and inhaled and exhaled a few times and then I stopped breathing and shut a few windows and so I carried on till all windows were shut.

..

Q You told his Honour that you felt compelled to go ahead and shut the window, why was that so.

A. That was on a Friday afternoon and I just can't leave the windows open overnight.The workshops are very close to the street off Fullarton Road, if I would have left all the windows open any larrikin could have entered and could have emptied the whole place of all the tools.In every workshop you've got tools worth probably $10,000.It was my feeling of responsibility, that's my duty, definitely shut them before you go home."

The plaintiff said in evidence that, during the evening of the same day, he had suddenly experienced a sensation like an electric shock.After suffering that sensation, he had sought to adjust his television set but had found difficulty in focusing the picture to suit his eyes.This was not a difficulty that he had previously encountered.He could not remember having experienced any other unusual occurrences during the course of the weekend which had followed.It is apparent from the plaintiff's evidence that, in his mind, he links the unusual occurrences of that Friday evening to his inhalation of the fumes of the pest controllers' spray earlier in the day.

The plaintiff went to work as usual on the following Monday morning.He entered the workshop again with a view to reopening its windows.Again, he noticed "an incredible stench".He said that covering his nose with a handkerchief had made no difference.Having opened the windows, he had proceeded to carry out his customary duties elsewhere for the rest of that day and, subject to the opening and closing of the windows in the treated workshop each day, for the rest of the week.He was asked whether he had continued to smell the vapours when in the area of the workshop.He replied, "Very definitely.The smell of this particular poison I could smell it six months afterwards or even more."

The plaintiff stated that, some little time later, his health had started to deteriorate and that since it had got progressively worse.He had experienced "incredible shakes or jolts" at night.His eyesight had become troublesome in that he had had difficulty in focusing when he wanted to read.He had endured vivid and non sensical dreams.He had become increasingly lethargic.He had experienced muscle pains, especially in his "respiratory muscles" at night.He had become depressed at the steady deterioration in his state of health.

He said that he had continued to work whilst all this had been going on but that his performance of his duties had fallen away.He had consulted his general practitioner in September 1990, some eight months after the spraying had been done.He had not been reassured by enquiries that some of the teachers had made of the pest control company.

The plaintiff was referred by his general practitioner to Dr L.A. Le Leu.Dr Le Leu is the Director of the Occupational Health Unit at the Royal Adelaide Hospital.Dr Le Leu concluded that the question as to whether or not the plaintiff had suffered any actual poisoning could not be answered at the stage when first he examined the plaintiff.His opinion was that the plaintiff had reacted to the smell of the spray, but that his reactivity had been psychogenic in origin.

The defendant arranged for the plaintiff to be examined by Dr J. Cooper-Smartt, a psychiatrist.Dr Cooper-Smartt first saw the plaintiff on 16 November 1990 and examined him further on 23 November, 1990.He opined that the plaintiff was not suffering from any specific "organic" or "physical" disorder, but that he had developed a phobic disorder that was directly linked to the incident in January 1990.

The plaintiff ceased work late in 1990.Attempts to rehabilitate him in the workforce have failed.He stated that he now feels as if he is suffering from a chronic state of fatigue.He said that his other symptoms have worsened and that he has become moody and aggressive.

It will be seen that the opinions expressed by Dr Le Leu and Dr Couper-Smartt are similar.They are opinions which the plaintiff does not accept at all. His strong belief is that he has suffered severe physical injury as a result of being poisoned.Dr Couper-Smartt has seen the plaintiff on a number of occasions since his first examination.His opinion remains that the plaintiff's symptoms are psychologically based rather than physically based.

Ultimately, the defendant determined to cease making to the plaintiff payments of compensation under the Workers Rehabilitation and Compensation Act. Proceedings were then taken before the Workers Compensation Review Panel.An appeal against the decision of the Review Officer was taken to the Workers Compensation Appeal Tribunal and heard by Her Honour Judge Parsons.Counsel for the plaintiff tendered by consent much of the evidence that had been given before the Review Officer, the reports written by Dr Le Leu and Dr Couper-Smartt and the reasons for decision of the Workers Compensation Review Panel and the Workers Compensation Appeal Tribunal respectively.

Counsel for the plaintiff contended that issue estoppels arise in this case. He referred to the decision of Judge Parsons and, in particular, to the following passage in the learned judge's reasons:-

"In his decision the Review Officer correctly identified the issue before him, summarised the evidence and made his findings.He found the worker to be an honest and truthful witness.It follows that he accepted that the worker was exposed to the vapours of the chemical, chlorpyrifos on 5 January 1990 and the days following when he closed the workshops after spraying had taken place. The Review Officer accepted that the worker's symptoms, in the nature of body shaking, commenced on the first day of exposure and that thereafter he suffered from progressively worsening symptoms.At first the symptoms were of urinary problems, sensations of choking and lacking oxygen.By September 1990 the symptoms included violent body shakes at night, involuntary muscle twitching, excessive urination, excessive headaches, blurred vision, insomnia, physical and mental exhaustion, depression, continuous pains in the body, shortness of breath, nightmares and difficulty walking.The Review Officer accepted that the worker genuinely believes that he experiences those symptoms.The Review Officer found that the worker continues to be partially incapacitated for work by the compensable disability sustained on 5 January 1990 when he was exposed to the chlorpyrifos vapours.

However, he concluded that the continuing symptoms and resultant incapacity were not attributable to the organic effects of exposure to the chemical.He preferred the evidence of Dr Waddy to that of Drs Williamson and Raymont.He therefore found that, whatever may have been the short term acute effects of the exposure, there was no evidence of peripheral or central nervous system damage from the worker's exposure to the chemical.In particular, there was no evidence of peripheral neuropathy and no clinical evidence to support a finding that any of the worker's diverse continuing symptoms were a consequence of any exposure to the chemical vapours at the Urrbrae High School on 5 January 1990 or thereafter.

He found instead that the worker's continuing physical complaints are psychogenic in nature.He found the worker to have an underlying personality that could make him obsessed about the fear of chemicals in the environment. He found that when the worker was exposed to organophosphate vapours 'he felt that he was a victim of the thing that he feared - chemical poisoning' (p.641 Appeal Book).He found that, as a consequence of the exposure, the worker became anxious and depressed and that the physical symptoms are the product of that anxiety and depression.He regarded the pesticide episode as a trigger mechanism for the worker's current psychological and emotional symptoms.

His finding as to the psychological explanation for the symptoms relies on the opinion expressed by Dr Le Leu in his reports rather than the oral evidence of Dr Couper-Smartt who described the condition as a delusional disorder which he said no longer has any causative link to the exposure to pesticide."

Counsel for the plaintiff argued that the defendant was estopped from disputing:-

(a) That the plaintiff was exposed to chemicals on 5 January 1990;

(b) That the symptoms described by the learned judge in the first paragraph quoted above were experienced by the plaintiff as a result of that exposure;

(c) That the plaintiff was partially incapacitated for work as a result of such exposure;and

(d) That the plaintiff now suffers from a psychological disorder either of the type described by Dr Le Leu or of the type described by Dr Couper-Smartt.

Counsel for the defendant did not seek to dispute the findings of fact as recorded by the learned judge.He did not dispute the proposition that the defendant owed a duty of care to the plaintiff on the day in question or that the defendant is vicariously liable for any negligent acts on the part of the employees of Noel's Pest Control.He argued, however, that there had been no breach of the duty of care on the day in question.Alternatively, he argued that the effects of any negligent act of the defendant or its agent had run their course by the time that Dr Couper-Smartt examined the plaintiff on 20 August, 1992.Finally, he argued that the plaintiff's proceedings had been brought out of time and that no good ground had been established for an extension of time to be granted.

In the statement of claim, the plaintiff's action was asserted in terms of negligence, breach of his contract of employment and breach of statutory duty. At the hearing, counsel for the plaintiff formally abandoned the claim based on breach of statutory duty.Whilst he did not abandon the claim for breach of the contract of employment, he argued only upon the basis that those for whom the defendant is responsible were negligent on the day in question.As previously noted, counsel for the defendant did not dispute the existence of a duty of care to the plaintiff, but did dispute the assertion that there had been a breach of that duty.

Counsel for the plaintiff referred me to the important decision of the High Court of Australia in The Council of the Shire of Wyong v Shirt and Others (1979-80) 146 CLR 40.The judgment of Mason J, as he then was, in that case has been referred with approval in many subsequent cases.The learned judge commenced his judgment by saying (at p44):-

"According to Lord Atkin's statement of principle in Donoghue v Stevenson [1932] AC 562, at p580, as it has been refined in later decisions, prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant's position would foresee that carelessness on his part may be likely to cause damage to the plaintiff (Home Office v Dorset Yacht Co Ltd [1970] AC 1004, at pp1027, 1034, 1054, 1060;Anns v Merton London borough Council [1978] AC 728, at pp751-752).It has not been suggested that there were present in the instant case any considerations which negated the duty. . "

I take it that it is in this sense that counsel for the defendant conceded a duty of care in the present case.Such a concession was, indeed, appropriate.

Under the heading "Application of the Standard" Professor J.G. Fleming has written in "The Law of Torts" (7th Edition) at pp104-105:-

"What are the considerations to which the reasonable man will defer in guiding his conduct?Negligence, it will be recalled, consists in conduct involving an unreasonable risk of harm.Almost any activity is fraught with some degree of danger but, if the remotest chance of mishap were sufficient to attract the stigma of negligence, most human action would be inhibited.Inevitably, therefore, one is only required to guard against those risks which society recognises as sufficiently great to demand precaution.The risk must be unreasonable before he can be expected to subordinate his own interests to those of others.Whether the act or omission in question is one which a reasonable person would recognise as posing an unreasonable risk must be determined by balancing the magnitude of the risk, in the light of the likelihood of an accident happening and the possible seriousness of its consequences, against the difficulty, expense or any other disadvantage of desisting from the venture or taking a particular precaution.

Magnitude of Risk

The gravity, frequency and imminence of the recognisable risk are among the most important factors in the balance.Conduct cannot be treated as negligent unless there is more than a mere theoretical chance that it will miscarry and thereby subject others to harm.There must be a recognisable risk of injury sufficient to cause a reasonable man to pause.Hence it is not necessarily negligent to play cricket in the vicinity of a populated area merely because there is a chance of an occasional six:at all events one would have to consider the likelihood of its actually hitting a member of the public. Similarly, the odd chance that an ordinary, well constructed bus might skid on a greasy road in wet weather does not make in unreasonable to put it into service:the risk is too small to pronounce this and all other buses for that reason as unfit for street traffic.

Commonly it is said that the risk must be 'foreseeable'.But how foreseeable? Clearly, the chance of injury need not attain comparative probability;the test of 'more probable than not' we use to establish that a certain event has happened in the past, not whether it is fraught with danger in the future.In fact, the test has become so 'undemanding' that the injury need not even by 'likely'.All that is required is that the risk be 'real' in the sense that a reasonable person would not 'brush it aside as far-fetched' or fanciful.The hazard in overtaking another vehicle below the crest of a hill or near a curve is no less unreasonable because only a few cars a day travel the stretch and the chance of meeting an on-coming vehicle is therefore statistically negligible.

Moreover, risk is a relative thing:it may be greater to one individual than to another.Hence the same act or omission may be negligent to the first, but not to the second, for example more in the way of warning against live wires is required to a layman than to a skilled electrician."

It will be noted that those words were written after the publication of the decision in The Council of the Shire of Wymond v Shirt and Others (supra).

The necessary relationship of proximity clearly existed in the present case and the defendant has conceded as much.The defendant was thus bound not to act in such a way as to expose the plaintiff to foreseeable risk.That too is conceded.The question that arises is whether, in all of the circumstances of the case, the defendant, through those for whom it was responsible, was in breach of that duty of care.

Mason J examined the specific topic of the breach of the duty of care in The Council of the Shire of Wyong v Shirt and Others (supra).He said (at p47):-

"Notwithstanding this Australian support for a narrower version of the foreseeability doctrine as applied to breach of duty, this Court would be well advised to accept that the law upon the point was correctly stated and applied by the Judicial Committee in The 'Wagon Mound' [No 2] (1967) 1 AC 617.I say this not only because The 'Wagon Mount' [No 2] was a unanimous decision given on appeal from the Supreme Court of New South Wales, but also because there are sound reasons for accepting it as a correct statement of the law.

In essence its correctness depends upon a recognition of the general proposition that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things.I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connexion with the existence of the duty of care involving a more generalized enquiry.

A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone [1951] AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful.Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable."

(The added emphasise is mine.)

The learned judge went on to say (at pp47-48):-

"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintif for to a class of persons including the plaintiff.If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk.A risk which is not far-fetched or fanciful is real and therefore foreseeable.But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty.The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

The reasons of the learned judge were expressly adopted by Stephen and Aickin JJ in that case.The judgment has been followed in many subsequent cases in the High Court (e.g. Abalos v Australian Postal Commission (1988) 171 CLR 167 esp at p180;Hackshaw v Shaw (1984) 155 CLR 614;Jaensch v Coffey (1984) 155 CLR 549;The Commonwealth of Australia v Introvigne (1982) 150 CLR 258) and in this State (e.g. in the recent cases of Martin v Stratman and Another (Full Court, 4 March, 1994, unreported, S4024);Benton v Tea Tree Plaza Nominees Pty Ltd (1995) 64 SASR 494;Visser v South Australian Housing Trust (1995) 65 SASR
571).

In the present case, the defendant, through those for whom it is responsible, was aware that the plaintiff would re-enter the workshop later in the day of the spraying to close the windows.It was aware that the plaintiff would be likely to re-enter the workshop on several occasions over the next few days to open and close the windows.It was also aware that the plaintiff, and others, would frequent the workshop on a daily basis in the not far distant future. The defendant, through the foreman, assured the plaintiff that the spray was perfectly safe.This assurance was given in response to the plaintiff's specific enquiry.In terms of physical injury, there is no evidence that could satisfy me that the statement of the foreman was anything but correct. Furthermore, the findings of the Review Officer, which both parties accept for the purposes of these proceedings, were that the plaintiff's symptoms and resultant incapacity were not attributable to the organic effects of the plaintiff's exposure to the chemicals that were used.

The evidence shows that a disagreeable odour remained in the workshop after the spraying had been completed.Having assured the plaintiff that the chemicals to be used were harmless, would the reasonable man, in the position of the foreman for whom the defendant is responsible, have foreseen that his conduct in not warning the plaintiff of the disagreeable odours that would linger in the workshop or in not taking steps to ensure that the plaintiff was not subjected to those odours, involved the risk of the plaintiff suffering symptoms of a psychogenic nature?It has not been suggested to me that there is any evidence that either the defendant, or those who were its agents on the day in question, had any knowledge that the plaintiff had, or may have had, a "personality that could make him obsessed about the fear of chemicals in the environment."Without any such warning, my conclusion is that the reasonable man would not have foreseen that "his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff."This being the case, my finding is that the defendant was not in breach of its duty of care to the plaintiff.

Lest I should be held by higher authority to be in error in reaching this conclusion, I proceed to discuss the other matters raised by counsel in their brief addresses.

The findings of the Review Officer, as endorsed by the learned judge, were that Dr Le Leu's explanation for the plaintiff's symptoms and complaints was to be preferred to that of Dr Couper-Smartt.That being so, it seems to me that it is not open to the defendant to contend that the plaintiff would have reached his present state of incapacity and disability without the occurrence of the incident with which this case is concerned.This was the opinion of Dr Couper-Smartt, but it was based upon a diagnosis of the plaintiff's condition which is at odds with that of Dr Le Leu.Dr Le Leu's opinion having been accepted by the primary finder of fact in this case, I accept that the plaintiff's present condition is but a continuance of the condition that was precipitated by the subject incident.

I have given consideration to the assessment of the damages that I would have awarded to the plaintiff had I upheld his claim.The plaintiff has now endured a period in excess of seven years during which he has experienced a number of unpleasant and debilitating symptoms.He has lost much of his former drive and energy.His problems have compounded with the passage of time.It is unlikely that he will ever have the satisfaction of returning to work.I note and accept the opinion of Dr Le Leu that the plaintiff's condition is susceptible to treatment which would enable him to "function well" in future as a retired person.As previously noted, my only function in assessing damages is to assess those which relate to the plaintiff's non-economic losses.The plaintiff has lost, since the incident, a significant part of the amenities of life previously enjoyed by him.If he undertakes the treatment recommended by Dr Le Leu, as he should, the loss will be less in future than it has been to the time of this trial.Taking everything into account as best I can, I assess the plaintiff's non-economic loss at the sum of $60,000.I apportion $35,000 of that sum to past losses and $25,000 to future losses.

There remains to be considered the plaintiff's application for an extension of time for the bringing of these proceedings.As previously noted, the incident upon which the plaintiff relies as giving him a cause of action, occurred on 5 January 1990.The plaintiff was thus required by section 36 of the Limitationof Actions Act 1936 to commence his action by 5 January 1993.The summons was not, however, issued until 2 June 1993.Accordingly, the plaintiff sought an extension of time within which to bring the action, pursuant to section 48 of the Limitation of Actions Act.All doubts as to the proper construction of that section were resolved by the decision of the High Court in Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628.

Subsection 48(3) of the Limitation of Actions Act requires, in so far as is relevant to the present case, "that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within 12 months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff."In the present case the plaintiff asserts that he was examined on 20 August 1992 by Dr Couper-Smartt and that the doctor provided a report in connection with that examination on 24 August 1992.It is alleged that, on reading that report, the plaintiff became aware for the first time that Dr Couper-Smartt was of the opinion that his clinical state had deteriorated and that he was suffering from a delusional disorder.Whilst all of those allegations were not conceded in the defence, counsel for the defendant did not contest them on the hearing of the action.

The plaintiff, as previously noted, does not accept Dr Couper-Smartt's opinion, but it is not to the point that there was "no interaction between the plaintiff's ascertainment of fresh facts and the decision to institute proceedings."(see Sola Optical Australia Pty Ltd v Mills (supra) at pp634-637).Dr Couper-Smartt's opinion was itself a material fact.In the circumstances, the conditions precedent to the exercise of the judicial discretion have been met in this case.

In the present case, I would exercise that discretion in the plaintiff's favour.The defendant knew of the nature of the plaintiff's complaints in 1990.For some time, the parties were pre-occupied with the plaintiff's rights under the Workers Rehabilitation and Compensation Act.It was only at the stage of final addresses in those proceedings that the plaintiff first took legal advice.It has not been suggested to me that there would be any unfair prejudice to the defendant if the plaintiff were to be permitted to pursue his claim.In all of the circumstances of the case, I think it appropriate to exercise the powers contained in section 48 of the Limitation of Actions Act to extend the time for the bringing of the action to 2 June 1993.

For the reasons given earlier in this judgment, however, the plaintiff's claim will be dismissed.