Machan v Comalco Aluminium Ltd

[1995] QCA 372

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 177 of 1994

Brisbane

[Machan v. Comalco Aluminium Ltd]

BETWEEN:

MICHAEL WILLIAM MACHAN

(Plaintiff) Respondent

AND:

COMALCO ALUMINIUM LTD

(Defendant) Appellant

McPherson JA
Moynihan J

Ambrose J

Judgment delivered 18/08/1995

Separate reasons for judgment of each member of the Court; all concurring as to the orders to be made.

APPEAL DISMISSED

CATCHWORDS:	CIVIL LAW - Limitation of actions - appeal against extension of time - when conflicting evidence was attained which would justify a reasonable person obtaining legal advice.
Wood v. Glaxo Australia Pty Ltd (1994) 2 Qd R 431.
Counsel:	Mr J. Clifford Q.C. for the appellant. Mr S. Jones Q.C. for the respondent.
IN THE COURT OF APPEAL	[1995] QCA 372
SUPREME COURT OF QUEENSLAND

Appeal No. 177 of 1994

Brisbane

Before McPherson J.A.
Moynihan J.
Ambrose J.

[Machan v. Comalco Aluminium Ltd.]

BETWEEN

MICHAEL WILLIAM MACHAN

(Plaintiff) Respondent

AND

COMALCO ALUMINIUM LTD.

(Defendant) Appellant

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 18th day of August 1995

I have had the advantage of reading the reasons of Ambrose J., with which I agree.

It is interesting to compare the present appeal with the
decision of this Court in Duke v. Humes Limited (App. 148/1994

Nov. 18, 1994), which involved an apparently similar industrial injury, which, like this, resulted in a successful application to extend time under the Limitation of Actions Act

It is not, of course, permissible to refer to matters
proved in one case as if they were also established in

another. It is, however, not illegitimate to derive from Duke

v. Humes Limited the information that the aetiology of the

condition of which the respondent here complains is something that was not generally recognised among medical practitioners and experts in the field in Australia or other English- speaking countries until quite recently. It has, however, been known and understood in Germany, Russia and elsewhere for many years.

Strikingly, in Duke's case and this, the revelation came in each instance when the applicant worker consulted Dr Grosser, who presumably has access to foreign language medical journals that were not available to many of his colleagues in this country or elsewhere in the English-speaking world. The fund of local expert knowledge has thus been expanded by information which, it is scarcely surprisingly to discover, the respondent here knew nothing about and of which, until he saw Dr Grosser, he had not previously been advised by those he consulted.

It is plainly desirable that information on the subject be more widely disseminated among experts in this field.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 177 of 1994
Brisbane
Before McPherson J.A.

Moynihan J. Ambrose J.

[Machan v. Comalco Aluminium Ltd.]

BETWEEN:

MICHAEL WILLIAM MACHAN

(Plaintiff) Respondent

AND:

COMALCO ALUMINIUM LTD.

(Defendant) Appellant

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 18/08/1995

I have read the reasons for judgment of McPherson J.A. and Ambrose J. and agree with the orders

for the reasons which they have given.

Solicitors:	O'Shea Corser & Wadley for the appellant. Macrossan & Amiet for the respondent.
Hearing date:	5 May 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 177 of 1994

Brisbane

Before McPherson JA
Moynihan J
Ambrose J

[Machan v. Comalco Aluminium Ltd]

BETWEEN:

MICHAEL WILLIAM MACHAN

(Plaintiff) Respondent

AND:

COMALCO ALUMINIUM LTD

(Defendant) Appellant

REASONS FOR JUDGMENT - AMBROSE J.

Judgment delivered 18/08/1995

This is an appeal by an employer against an order made under s.31 of the Limitations of

Actions Act 1974-1993 extending the time within which its employee may institute proceedings against

it for damages for negligence resulting in injuries sustained by the employee in the course of his

employment.

It is the contention of the appellant that the learned chamber judge extending time lacked

jurisdiction to do so because, upon the evidence, the application had been made more than 12 months
after any material fact of a decisive nature was within the means of knowledge of the respondent.

It is convenient to state briefly events canvassed upon the application.

The respondent was born in 1966 and was educated to year 10 at Weipa. He then obtained

employment with the appellant at Weipa as an apprentice fitter and turner in 1983. He completed his

apprenticeship in October 1986. While still an apprentice he commenced to work in the appellant's

power house at Weipa and continued to work there after he finished his apprenticeship.

All told he worked in the power house between February 1986 and October 1990 - a period

of about four years and nine months.

In about September 1990, the respondent commenced to experience cramps in his hand.

He consulted a doctor at Weipa from time to time. At that time he was working long hours and using

pneumatic tools in the course of servicing and maintaining machinery and equipment in the power house.

Eventually, in October 1990, the respondent was referred to Dr Jayasinghe, a neurologist

practising in Cairns. Various tests were performed on his hands and he was advised by that doctor that

he had a carpal tunnel problem. It was recommended that he wear splints and that he take anti-

inflammatory medication. He was advised that if that treatment did not give him relief an operation to

release his carpal tunnel would have to be considered. On the same occasion the respondent also

consulted Dr Wu who told him that she thought he was too young to be suffering from carpal tunnel

problems and that the problems he was having with his hands would go away in time.

The respondent was next referred to an orthopaedic surgeon, Dr Mansfield who, in

November 1990, recommended an operation to relieve his carpal tunnel problem. The respondent was

persuaded to have this operation, which was performed in November 1990.

At the time of his operation for carpal tunnel release, a doctor informed the respondent that
she thought that the carpal tunnel syndrome from which he suffered had been caused by the work that

he had been doing.

The respondent had experienced no trouble with his arms and wrists prior to March 1990

- nearly seven years after he had commenced work with the appellant and a little over four years since

commencing work in the power house using pneumatic tools. After his carpal tunnel operation, the

respondent again performed heavy work with the use of pneumatic tools in the power house and this

again caused him problems with his hands. He was wearing splints on his hands at this stage on medical

advice. In March 1991 the respondent again consulted Dr Mansfield in Cairns who examined him and

advised that he could find no evidence of any carpal tunnel problem and assured him that if he continued

to wear the splints and take anti-inflammatory tablets he would get over the problems he was having

with his hands and arms.

Upon his return to Weipa, the respondent consulted other doctors who visited Weipa from

time to time, there being no doctor permanently available there at that time.

Eventually, Dr Gavranic arranged to have the respondent examined by an occupational health

specialist, Dr Doughty. He was examined by Dr Doughty on 23 March 1991 at Weipa. Tests were

performed on him. However Dr Doughty did not suggest to him any explanation for the cause of the

problems he was having with his hands and arms. The day after the medical examination, the

respondent accompanied Dr Doughty on a tour of inspection of the power house where the respondent

worked and after that Dr Doughty advised him that he would not be returning to work as a fitter and

turner using the tools which he had previously been using in the power house. Dr Doughty told him that

he did not consider that his injuries were permanent and that he would get over them over a period of

time. The respondent was then transferred from working in the power house to working in the safety
department of the appellant's operations at Weipa.

In May 1991 the appellant was cutting staff levels at Weipa. However the respondent was

assured that his job was safe. In June 1991, the appellant went to Canada, and pursuant to

arrangements made by Dr Gavranic who visited Weipa, the respondent there saw a Dr Bertolini. He

discussed his problem with that doctor who informed him that people in Canada suffering from the

condition from which the respondent suffered worked normal hours at a job and undertook

rehabilitation treatment as well. Subsequently, the respondent returned to work at Weipa, but again had

problems with his hands and arms. His worker's compensation claim was re-opened and he was

referred to a neurologist, Dr John Cameron and a pain management specialist, Dr Graham Rice. He

was also referred again to Dr Doughty. He saw both Dr Cameron and Dr Doughty on 10 September

1991. He saw Dr Rice on 11 September 1991. Dr Cameron informed the respondent that he could

see no cause for his persisting symptoms.

Dr Doughty informed the respondent that he did not think that his symptoms had really

changed from when he had first seen him, but that he thought that "psychological worries" were affecting

his symptoms.

Dr Rice informed the respondent that most of the respondent's problems were in his mind and

that he would get over them in time. He suggested that he return to working in a heavy manual

environment and physically use his hands and arms and that this would bring about a quick recovery for

him.

Late in 1991, Dr Craig Smith at the Weipa Medical Centre told him that he had considered

advice from doctors in Brisbane and that he considered that the respondent should return to as much

physical activity as possible because all the pain and sensations the respondent was experiencing were
in his mind. He told him not to rely upon the medical centre "as a support base".

The respondent was confused and upset at this latest medical advice. He continued to work

for the appellant in various capacities but found that increased use of his hands and arms caused an

increase in symptoms of pain and disability.

In February 1992 Dr Bott prescribed Adalat tablets for him to treat blueness that appeared

in his hands. He was advised that these tablets would help blood flow in his hands.

In July 1992 the occupational nurse employed by the appellant at Weipa suggested that the

respondent undergo an intensive physiotherapy course similar to the one that he had undertaken after

his carpal tunnel operation. He did as recommended but this led to increased symptoms of pain. Dr

Bott then advised the respondent that he wished to refer him to Dr Grosser who was a vascular

surgeon. The respondent was sent to Cairns where he was examined by a doctor for the Workers'

Compensation Board and was then referred once more to Dr Cameron who saw him on 22 October

1992. Dr Cameron did not give him any advice on the occasion of this examination.

On 6 January 1993 the respondent was again referred to Dr Doughty for examination, who

indicated to him that his condition had improved.

In March 1993 he was referred for neurological assessment in Brisbane. The respondent

took advantage of this visit to Brisbane to attend Dr Grosser, a vascular surgeon practicing at Lismore.

The respondent said that he undertook this visit at his own expense because he felt that nobody

connected with the appellant or the Workers' Compensation Board could give him an adequate or

satisfactory explanation as to the cause of his symptoms and as to whether or not he was likely to

recover from them. He says that the only information that had been conveyed to him was that he had

"occupational muscle cramps".

Dr Grosser performed a thorough medical examination upon the respondent and informed

him that he thought that he was suffering from the effects of the continuos use of vibrating tools. He

referred to the respondent's condition as "Hand Arm Vibration Syndrome". He also informed the

respondent that he was suffering from micro vascular damage in his hands which explained the blood

flow problem from which he was suffering and for which he was taking the Adalat tablets. Dr Grosser

informed him that he thought that there was no treatment for his symptoms and that he should simply

endeavour to continue working, learning by experience what activities would cause him symptoms of

pain and thus avoid those activities.

The respondent says that before this interview and discussion with Dr Grosser he did not

believe that he had a permanent disability and thought that he would eventually completely recover.

Until that time he believed that the symptoms were involved in some fashion with the carpal tunnel

pressure for which he had had an operation. On 11 March 1993 when attending the neurology

assessment tribunal with a solicitor, he spoke to him about the possibility of litigation. This was the first

occasion upon which he had considered litigation and he did so because of the information he had been

given by Dr Grosser. He was advised by the solicitor acting on his behalf on his appearance before the

neurology assessment tribunal that a claim for damages "would be difficult because of the nature of the

injury and the fact that it would be necessary to ascertain when the injury occurred". At the time he

spoke with his solicitor, the respondent did not have Dr Grosser's report which was not in fact received

until about August 1993.

The respondent issued a writ of summons against the appellant on 12 May 1993 and

delivered a statement of claim on 16 November 1993.

On 13 September 1993 application was made on behalf of the respondent for orders, inter

alia, that:

"The period of limitation within which to commence an action for damages for negligence and/or breach of duty with respect to bodily injury suffered by the Plaintiff between February of 1986 and the 12th of May, 1990, be extended until the 12th of May, 1993."

On 25 August 1994 an order was made granting the relief sought.

Paragraph 5 of the statement of claim asserts that in the course of his duties the plaintiff was

required to use air driven pneumatic tools and an air driven impact gun and similar sorts of equipment.

It asserts that he was required to work long hours. It is further asserted that the vibration associated

with the pneumatic tools which the respondent was required to use in the course of his employment

caused him to suffer a progressive damage to his nerves, muscles and blood vessels.

The learned chamber judge, having reviewed the evidence, said:

"For the purposes of this application it is clear enough that there is evidence of a cause of action apart from questions arising through the Limitation of Actions Act. It will be seen then that so far as the pleading goes, there is no one specific incident which is alleged. Rather, it is a course of exposure to excessive vibration on which the plaintiff relies."

The respondent's case is a little unusual in that the negligence alleged against the appellant

relates to the exposure of the respondent to unnecessarily dangerous work practices over a period from

February 1986 to October 1990 - a period of about four years and nine months.

In my view, upon the evidence, the inference was open indeed if not compelling that at least

during this period of time the plaintiff had not attributed his arm and hand problems to the nature of the

activities which he and other workmen had been required to ordinarily undertake in the course of their

employment. To the extent that his employment activities may have been related to his symptomology

he seems to have taken the view that the symptoms were not permanent. Indeed, this was confirmed

by most of the doctors he consulted before and after he ceased work in the power house in October 1990. Medical opinion he received was that he had developed a carpal tunnel problem which could

be relieved by operative treatment. There is nothing to suggest that he believed, or had any reason to

believe, that that condition may have resulted from any negligence on the part of the appellant. Indeed,

subsequently and as late as the end of 1991, expert medical practitioners had informed him that his

problems "were in his mind and that he would get over them in time". As late as January 1993, Dr

Doughty informed the respondent that he thought that his condition had improved.

It is fair to say I think that the appellant relies upon what the respondent conceded in the

course of cross-examination to support the proposition that after his discussion with Dr Doughty on 24

March 1991 he knew that he could never return to specialised heavy work in the power house. It is

contended that the respondent made no suggestion "that he was not aware that the heavy work in the

power house was the cause of the condition which prevented him from returning to that work". Because

so much reliance was placed upon facts material to his cause of action which the respondent learnt from

Dr Doughty in March 1991 as emerged in the course of his cross-examination, it is useful to refer in

some detail to what emerged. He said that the impression he gained from his discussion with Dr

Doughty was: "I had a problem that would not alleviate overnight". He said that he understood that he

would not be able to return to his "heavy duties in the power house". He said that he believed that

eventually he would get back to working at the trade of fitter and turner provided those duties fell

outside the heavy work required in the power house. He said that he understood that he had suffered

a reduction in his capacity to do the heavy work required of a fitter and turner in the power house, but

not work required generally of fitters and turners. He said that the doctor had explained to him that he

would have to do alternate work "within a period of 6 months to 12 months". He said the doctor "could

have" used the words "for the foreseeable future" rather than expressing a period of time "from 6 to 12 months". He said that the doctor had told him that he would have to learn to lead a life within the limits

of his disability and that "there was occupational cramp and complications from the carpal tunnel" and

that this had resulted "from the use of gripping tools". He said that he was informed or understood in

any event, that over a period of from 6 months to 12 months his condition would improve to a stage

where he could again work within his trade as fitter and turner.

The learned chamber judge summarised the case argued at such length before him in the

following terms:

"The application is based upon the premise that it was not until March 1993 when Mr Machan saw Dr Grosser that he finally was given a coherent, intelligent and understandable opinion which not only told him what was the cause of his problem, namely, that it was work-related, but that he also would be unable to pursue his trade as a fitter and turner. This, it is said, is the material fact of a decisive kind which came to his knowledge within the relevant period, namely, in the 12 months prior to 12 May 1993. [i.e. the date on which the respondent issued his writ]...

I accept that Mr Machan himself, although he knew he was not able to continue working in the powerhouse, expected that he would be able to continue working as a fitter and turner after some period of rehabilitation. He continued in that expectation and the problems in relation to rehabilitation became very confusing following the conflicting opinions expressed in September 1991. ... Certainly it is only when he heard Dr Grosser's opinion that he felt that he is able to understand his situation and to see that he had a cause of action. He consulted a solicitor the day following his discussions with Dr Grosser."

...

Mr McMeekin [for the appellant] submitted that in the period from March 1991 through to May 1993 the plaintiff knew that he had a serious condition; that he knew it was physically based; that he knew he was suffering from severe symptoms, and that he was disqualified from carrying on his trade as a fitter and turner in some degree. In a sense, all of these matters are established. However, it seems to me that the matters are not clearly established until the opinion of Dr Grosser is obtained."

His Honour then referred to the observations of Davies JA in Wood v. Glaxo Australia Pty

Ltd (1994) 2 Qd R 431 at 442 ll.24-32. In essence, his Honour concluded that the fact that the nature, effect and cause of his muscular, nervous and vascular problems in his hands and arms was within the

means of the respondent's knowledge "only when the steady preponderance of his opinion or belief after

having taken all reasonable steps to ascertain that fact" emerged upon his visit to Dr Grosser.

His Honour then referred to the diversity of medical opinion relating to the nature of the

respondent's physical condition and said:

"there was a diversity of opinion running from Carpal Tunnel Syndrome with surgery, to occupational cramps, to Carpal Tunnel Syndrome with disuse, to exaggerated pain behaviour, to something that was close to malingering, to the Vibration Hand Arm Syndrome that Dr Grosser spoke of to the plaintiff in March 1993 so it seems to me that in this very complex set of facts it was not until March 1993 that the plaintiff had firmly before him a clear and rational explanation for his disability, which demonstrated that his disability clearly arose from the type of work that he was required to perform and that his disability was such that he was precluded from manual work thereafter. That gave him material facts of a decisive nature which led him to institute the proceedings."

This finding of the learned chamber judge was strongly criticised on behalf of the appellant.

It was contended that in fact the respondent had received a "clear and rational explanation" for his

disability from Dr Doughty in March 1991 or even in the absence of such an explanation as to the cause

of his problems as he received from Dr Grosser, the respondent, as a reasonable man, should have

deduced from what Dr Doughty told him that in fact the injury from which he suffered was work related.

In my view the learned chamber judge was not required as a matter either of logic or fairness

to come to the conclusion for which the appellant contends. For the reasons which he gave it was open

in my view for the learned chamber judge to come to the conclusion that it was not until the respondent

received the advice which he did from Dr Grosser in March 1993 that he reached a stage in the

collation of the various conflicting medical opinions he had received over the years that "the steady

preponderance of opinion or belief" was attained which then justified him as a reasonable person in

obtaining legal advice as to the institution of legal proceedings against the appellant.

Upon the facts of this case the material facts of a decisive kind which first became known to

the respondent after his examination by Dr Grosser in March 1993 were:

(1)	Permanent injury to his nerves, muscles and blood vessels had been occasioned to him by
the extent to which he was required to use pneumatic hand impact tools during the time that
he had been employed in the appellant's power house at Weipa.
(2)	That in other communities it was known that the excessive use of such vibrating tools could
lead to the condition developed in his nerves, muscles and blood vessels.
(3)	That had the respondent been required to make less use of the offending tools and in
particular had there been a limit placed on the length of time that they were used on any
particular occasion he may not have developed the medical problems that he did develop to
his nerves, muscles and blood vessels.

The critical issue to be determined in accord with the principle applied in Wood v. Glaxo Australia Pty

Ltd was not the first occasion when the respondent received information from one of the many medical

practitioners who gave conflicting opinions as to the nature of his injuries which proved to be consistent

with that received from Dr Grosser, but rather the first occasion when he reasonably achieved "the

steady preponderance of opinion or belief" that his physical incapacity resulted from unnecessary risk

of injury which he had been required to undertake as an employee of the appellant and thus be in a

position to arrive at the conclusion that an action brought against the appellant would have a reasonable

prospect of success resulting in an award of damages sufficient to justify bringing that action.

In my judgment the appellant has failed upon the whole of the evidence to show that the

learned chamber judge erred in drawing the conclusion which he did draw.

I would dismiss the appeal.