Kuligowski v Alice Roof Tiles Aust. Pty Ltd

[2005] QSC 167

SUPREME COURT OF QUEENSLAND

CITATION:

Kuligowski v Alice Roof Tiles Aust. Pty Ltd & Anor [2005] QSC 167

PARTIES:

TROY TERRENCE KULIGOWSKI
(applicant)
v.
ALICE ROOF TILES AUST. PTY LTD
(ACN 060197 480)
(first respondent)
and
MERAFERN PTY. LIMITED (ACN 011 039 437)
trading as KARREMAN ROOF TILES (BN17483979)
(second respondent)

FILE NO:

BS 416 of 2005

DIVISION:

Trial

PROCEEDING:

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

16 June 2005

DELIVERED AT:

Brisbane

HEARING DATES:

3 February and 1 June 2005

JUDGE:

Helman J.

CATCHWORDS:

LIMITATION OF ACTIONS – PERSONAL INJURIES – EXTENSION OF PERIOD – application for extension of time for commencement of action – whether sufficient evidence of causation to satisfy requirement of s. 31(2)(b) Limitation of Actions Act 1974 (Qld)

Limitation of Actions Act 1974 (Qld), ss. 31(2)(a) and 31(2)(b)

COUNSEL:

Mr. J.S. Miles for the applicant

Mr. W.D.P. Campbell for the respondents

SOLICITORS:

Quinn & Scattini for the applicant

Abbott Tout Lawyers for the respondents

1. The applicant seeks an order pursuant to s. 31 of the Limitation of Actions Act 1974 that the period of limitation for an action he began on 8 October 2004 against the respondents be extended to enable him to pursue it. In his action he claims damages for personal injury he alleges he sustained in the course of his employment by the first respondent and later by the second respondent at a factory at Bellwood Street, Darra, Queensland where concrete tiles were made. The applicant alleges that in the course of his employment with the respondents he was exposed frequently and almost continuously to a hazardous product called Acrolak as well as other hazardous chemicals.

1. Beginning in late 1993 and ending in October 2003 the applicant was employed at the factory in various capacities including colour applicator, machine operator, leading hand, and forklift driver.   He was not employed continuously.  He swears that at the factory he was exposed to the sealant Acrolak used to coat tiles in a General Efflorescence Protection machine.  The aromatic hydrocarbon solvents toluene, xylene and Solvesso 100 are present in Acrolak:  20-30 per cent., 30-40 per cent., and 15-25 per cent. respectively.  The applicant, according to his account, inhaled vapours from the solvent in the factory, which was very poorly ventilated, and the solvent was from time to time splashed onto his skin.  No protective clothing was used.  In about June 2003 he began to suffer from severe headaches and lethargy.  In July 2003 he consulted Dr Ruban Ratnam, general practitioner, who found he had no intracranial disorders and his blood pressure was normal.  On 3 September 2003 Dr Ratnam found the applicant’s blood pressure to be high.  On 2 October 2003 the applicant collapsed at work and was taken to the Ipswich Hospital and thence to the Princess Alexandra Hospital with renal failure.  On 16 October 2003 a renal biopsy was performed.  The diagnosis by Dr Carmel Hawley, consultant nephrologist, was of IgA nephropathy with malignant hypertension and severe renal impairment. 

1. In a report dated 8 April 2005 the applicant’s present ailments are described by Dr Bruce Hocking, specialist consultant in occupational medicine, as IgA nephropathy, end-stage renal failure, hypertension, secondary depression, short-term memory loss, and dizziness.  He will require a kidney transplant in the near future. At present he receives a disability pension.  The causes of IgA nephropathy are not known.  It can be a benign disorder, but 15-40 per cent. of cases progress to end-stage renal disease for reasons that are not well understood;  but Dr Hocking’s conclusion, based on scientific study of the relationship between IgA nephropathy and aromatic solvents and the applicant’s history of exposure by inhalation and percutaneous absorption associated with working with Acrolak and the GEP machine from 1996 to 1999 is that the applicant’s exposure to aromatic solvents was ‘a significant factor’ in the progression of his IgA nephropathy to end-stage renal failure.

1. Consistent with Dr Hocking’s opinion were the contents of a letter dated 25 November 2004 from Dr Ratnam to WorkCover Queensland in which he gave under the heading ‘Diagnosis of all work related condition(s)’:

1.      Severe bilateral renal impairment.

2.      Malignant hypertension.

3.      Severe depression.

1. On behalf of the respondents no argument was advanced that the applicant had failed to satisfy the requirement provided for in s. 31(2)(a) of the Limitation of Actions Act. Clearly the evidence shows his condition and its possible relationship to his work at the Darra factory was not within his means of knowledge until a date after the commencement of the year last preceding the expiration of the period of limitation for his action. On behalf of the respondents it was argued, however, that the applicant had failed to satisfy the requirement provided for in s. 31(2)(b) that it must appear to the court that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation, and, even if that requirement had been satisfied, he had failed to show that the court’s discretion should be exercised in his favour.

1. The issue as to the requirement provided for in s. 31(2)(b) turned on the question whether there was any, or any sufficient, evidence that the applicant’s condition was caused in the workplace. In my view there is sufficient evidence of causation to satisfy that requirement. While Dr Hocking is not a renal physician and while he makes it clear that the causes of IgA nephropathy are not known, he was able to give the opinion within the area of his expertise, which includes toxicology, that the applicant’s exposure to aromatic solvents was significant in the progression of the disorder beyond the benign stage to end-stage renal failure, i.e., it was a cause of that progression. Mr Warren Carmichael, who has worked at the factory from about March 1993 and who is now the production manager of the second respondent, swore that from September 1997 to some time in 2002 Durasol and not Acrolak was used in the GEP machine at the factory. Durasol, Mr Carmichael swore, contains no toluene but does contain 30-50 per cent. xylene. It was said on behalf of the respondents that because the applicant’s claim based on Dr Hocking’s opinion appears to rest on the presence of toluene as well as xylene in the solvent, the absence of toluene in Durasol casts substantial doubt on the applicant’s case. In my view, however, Dr Hocking’s opinion was not confined to the effect of toluene and was based on the effect of aromatic solvents in general. Furthermore, this is not the occasion for the resolution of any issue of fact of that kind.

1. On behalf of the respondents it was submitted that the unavailability of records of the first defendant to establish the nature of the chemicals used before September 1996, conflicting evidence as to when the applicant worked at the factory, and conflicting evidence as to the nature of the chemicals used renders the chance of a fair trial unlikely.  According to a statement dated 31 January 2005 made by Ms Debra Wise, licensed private investigator, there are documents of the first respondent available from its administrators.  Disputed issues of fact as to when the applicant worked at the factory, and, as I mentioned before, as to the nature of the chemicals used at the factory, cannot be resolved now.  What does appear to be clear from Mr Carmichael’s affidavit is, however, that he was able to give a detailed account of events and circumstances at the factory relevant to the applicant’s claim, and appeared to have no difficulties of recollection.   In the circumstances, I am not persuaded that the chance of a fair trial is unlikely.   Accordingly, I conclude that it has not been demonstrated that the application should be refused on discretionary grounds.  

1. The applicant will have the relief he seeks.   I shall invite further submissions on the form of the order and costs.