O'Grady & O'Grady v State of Qld

[1995] QSC 183

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  No. 576  of 1995

Before the Hon. Mr Justice Shepherdson

[O'Grady & O'Grady v. State of Qld]

BETWEEN

GERALD MICHAEL O'GRADY

First Plaintiff

AND

COLLEEN JOAN O'GRADY
  Second Plaintiff

AND

STATE OF QUEENSLAND
  Defendant

JUDGMENT - SHEPHERDSON J.

Judgment delivered  15/08/1995

CATCHWORDS: NEGLIGENCE - application by first plaintiff s.31(2) Limitation of Actions Act - 59 year old man spent working life exposed to sun's rays - In 1994 developed squamous cell carcinoma - surgery - first learned then of potential for that type of cancer to metastasise - material fact of a decisive nature - had known for some 10 years that he suffered skin cancers.

Counsel:Land for applicant first plaintiff

Flanagan for defendant

Solicitors:Kevin Bradley of Booval for applicant

K.M. O'Shea Crown Solicitor for respondent

Hearing date:          1 August 1995

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  No. 576  of 1995

Before the Hon. Mr Justice Shepherdson

[O'Grady & O'Grady v. State of Qld]

BETWEEN

GERALD MICHAEL O'GRADY

First Plaintiff

AND

COLLEEN JOAN O'GRADY
  Second Plaintiff

AND

STATE OF QUEENSLAND
  Defendant

JUDGMENT - SHEPHERDSON J.

Judgment Delivered  15 August 1995

The abovenamed first plaintiff has applied for an order pursuant to s.31(2) of the Limitation of Actions Act 1974 that the period of limitation for the above action be extended so that it expires on 6 April 1995.
          The summons before me was filed on 15 May 1995.
          The writ of summons was issued on 6 April 1995 and in it the first plaintiff claims damages for personal injuries caused by the negligence and/or breach of statutory duty of the defendant its servants or agents.
          I mention in passing that I was informed from the bar table that the second plaintiff does not intend to press her claim as endorsed on the writ.
          It is not in dispute that on this application the applicant is required to establish the following three factors:-

1. That a material fact of a decisive character relating to the applicant's right of action was not within the applicant's means of knowledge until a date after the commencement of one year last preceding the expiration of the period of limitation (s.31(2)(a));

2. That there is evidence to establish the right of action (s.31(2)(b));

3. That the application is brought within 12 months of the applicant ascertaining the material fact of a decisive character relating to his right of action (s.31(2)).

Factor One
          The affidavit evidence before me shows:-

1. That the applicant was born on 28 December 1935;

2. That in early May 1994, the applicant discovered a sun spot on the top of his left ear, that he went to see his general practitioner Dr Ratnam about it and was referred to Dr Brumm who diagnosed it as a squamous cell carcinoma;

3. That Dr Brumm removed this carcinoma in his surgery; the applicant did not go to hospital and did not lose any time off work as a result of this minor surgery;

4. That a few weeks after this carcinoma was removed the applicant noted a small lump under his left ear at about the top of his neck; that this lump started to get bigger so he again saw Dr Ratnam who again referred him to Dr Brumm and by this time the lump was about the size of a golf ball.  This lump was not present when Dr Brumm removed the squamous cell carcinoma from the top of the applicant's left ear in May 1994;

5. That on 19 July 1994, the applicant saw Dr Trevor John Harris a specialist practising in plastic and reconstructive surgery.  Dr Brumm had referred the applicant to Dr Harris.  Dr Harris saw a left upper cervical node which was quite mobile and needed removal.  On 27 July 1994, Dr Harris performed a left neck dissection which showed that two out of four lymph nodes in this region were totally destroyed by metastatic squamous cell carcinoma and that some of the large peripheral nerve bundles had also been invaded and destroyed by squamous cell carcinoma tissue.  Dr Harris also saw venous invasion.  This surgery occurred while the applicant was a hospital inpatient;

6. That as a result of that surgery the applicant had post operative radiotherapy from about 1 September 1994 to mid October 1994;  he has lost some of the use of his left upper limb, he has constant problems with a dry mouth; he has hypersensitivity and his left shoulder aches;

7. That on about 27 July 1994 the applicant ceased work and has not since worked.  About the end of 1994 Dr Ratnam suggested to the applicant that he should go and see a solicitor; before then it had not occurred to the applicant that he should see a solicitor; he took the advice and saw a solicitor;

8. Dr Harris has opined:-

   (a)the main damage caused by the sun occurs in persons before the age of 20 years and it is during this early period that the exposure to sunlight initiates changes in the cells;

   (b)that approximately 85% of skin cancers are basal cell carcinomas which are not malignant and do not spread and that approximately 15% of skin cancers are squamous cell carcinomas which do have the potential to spread;

   (c)that the left upper cervical node which he saw on 19 July 1994 was most likely the result of a secondary cancer spreading from the squamous cell carcinoma which the applicant had on his left ear;

   (d)that the squamous cell carcinoma found by Dr Brumm on the applicant's left ear in approximately May 1994 was the cause of the invasion by the metastatic squamous cell carcinoma into some of the applicant's lymph nodes in the area of his left neck;

   (e)that skin cancers have a latent development period of 12 to 15 years;

   (f)that an unavoidable consequence of successfully endeavouring to eradicate the secondary cancer in the applicant's left neck is that the applicant has been left with a disability to his left shoulder and pain and restriction of movement in that area; some hypersensitivity to his left neck and some of the saliva glands have either been destroyed or substantially damaged.  The applicant may also have suffered some hearing loss as a further unavoidable consequence of radiation treatment.

9. Dr Robin Arthur Cooke a specialist pathologist has opined:-

   (a)that most of the sun damage done to the applicant's skin occurred when he was young - say in the first 20 to 30 years of his life;

   (b)that a squamous cell carcinoma which is a type of skin tumour has the potential to metastasise, that is to spread to other parts of the body particularly to the lymph nodes which drain the region of the squamous cell carcinoma.

   Mr Land, counsel for the applicant, submitted that in the present case the material fact of a decisive nature was the metastatic nature of the squamous cell carcinoma which developed in the applicant's left ear in May 1994 and the metastatic nature of that carcinoma was not within the applicant's knowledge or means of knowledge until July 1994 after Dr Harris had operated on him.
             In dealing with factor 1 the applicant's material shows:-

   (a)from 5 March 1963 until 27 July 1994, the applicant, in his employment with Main Roads Department of the State of Queensland worked initially in outdoor occupations such as labouring, truck driving, being powder monkey and grader driving; that from the beginning of 1968 he became road works construction supervisor and from the beginning of 1968 to 1991/1992 worked each day outdoors supervising the construction of the Brisbane Freeway system;

   (b)from 1968 to the present and while employed by the Main Roads Department the applicant:-

   (i)from the beginning of 1968 to about 1985 wore short sleeved shirts and hard hats with no protection to face or neck;

   (ii)from 1986 used sunscreen then being supplied by his employer which he found not particularly effective because it washed off with sweat or was frequently accidentally wiped off during the course of a days work and it was impractical to replace it continually during the course of a days work;

   (iii)from 1989, following advice given him by his general practitioner, plaintiff wore a broadbrimmed hat but often, because of the requirement of his employer that at particular times he wear a hard hat, he could not wear that broadbrimmed hat;

   (c)in 1984 the applicant first knew that he had skin cancer - on this occasion he saw his Ipswich general practitioner a Dr Dougherty.  This was the first occasion when the applicant became aware that he had skin cancer; that particular skin cancer was diagnosed as a squamous cell carcinoma, as the applicant knew, and was removed in the surgery of Dr Dougherty's partner after the applicant had finished his day's work.  The applicant took no time off work as a result of this minor surgery. He has sworn that it did not occur to him that the skin cancer may have been caused by his work.  He received no advice from either Dr Dougherty or his partner to give up work or to alter his mode of dress or anything of that sort.

   (d)Thereafter for the next 2 -3 years, Dr Dougherty noticed sun spots on the applicant's face, his lower neck, the top of his chest and his forearms.  The applicant was referred to a Dr V. Hart who removed the sun spots and on each occasion the applicant returned to work.  The applicant's recollection is that he probably saw Dr Hart every 3 to 6 months.  He lost no income.

   (e)In 1985 or 1986 a melanoma was discovered on the applicant's back. Dr Hart diagnosed it as a melanoma - it was removed by Dr Brumm.  The applicant took three months off work following the removal of the melanoma and to the best of his recollection he used up accumulated sick and holiday pay owing him; he does not think he applied for workers' compensation or that he had any substantial medical costs because at that time he had what he called "top private health cover insurance" and he had to pay an apparently comparatively small amount.

   (f)From 1986 to 1993 Dr Ratnam regularly monitored sun spots which appeared on the applicant.  Dr Ratnam sent the applicant to Dr Brumm an Ipswich surgeon who removed them.  The applicant says these visits and procedures did not cost him any money and to the best of his recall he did not take any time off work.

   The surgery which the applicant underwent in late July 1994 was very radical compared with the minor surgery he had previously undergone.  The melanoma caused 3 months off work but the impression I have is that the surgery on the melanoma was minor compared to that in late July 1994.  As a result of that latter surgery, the applicant has lost some of the use of his left upper limb, he has the dry mouth problems, he has hypersensitivity and aches in his left shoulder.  Dr Harris believes he has successfully eradicated the cancer.
             The surgery performed by Dr Harris has also resulted in the applicant ceasing work - I infer that his earning capacity has been impaired and that that impairment will sound in damages.
   Mr Flanagan, Counsel for the respondent, has argued that the material fact of a decisive character for which Mr Land contends is not in fact so. In my view, Mr Land's submission is correct. The vital knowledge which the applicant gained for the first time after Dr Harris had operated in July 1994, was that squamous cell cancers had the potential to metastasise. There is not the slightest evidence that when the applicant first suffered a squamous cell carcinoma in 1984 he was told that that type of carcinoma could metastasise. Furthermore, given this man's work history and background I am not satisfied that he is the type of person who ought at that time to have taken "appropriate advice" as defined in s.30(c) of the Limitation of Actions Act in order to find out whether that type of carcinoma could metastasise.  (see Castlemaine Perkins Ltd v. McPhee (1979) Qd.R 469 at 472). He regularly attended doctors for his sunspots and none of them, who were medical men suggested or told him of the metastasising potential. Why should he be expected to enquire whether this characteristic existed in squamous cell carcinomas? I am satisfied on the material before me that it was in late July 1994 that the applicant first learned of this potential for metastasising.
             There is of course no dispute that the applicant knew he had skin cancer long before 1994, but that knowledge is not in my view sufficient to help the respondent in this present application.  The metastasising of the squamous cell carcinoma into the lymph glands with the resultant above injuries following upon the surgery must, in my view have caused a reasonable man, when properly advised, to have considered for the first time in the history of his knowledge of prior skin cancers that an award of damages sufficient to justify the bringing of an action such as the present would be justified.  Up to that stage the applicant had very little expense in respect of prior removals of skin cancers and a melanoma.  In my respectful view the following words of Andrews SPJ (as he then was) in writing the judgment of Court in Taggart v. The Workers' Compensation Board of Queensland (1983) 2 Qd.R. 19 at p.24 apply to the present case:-

   "I think that in a proper case such a newly discovered fact as we are considering here could be described as a material fact of a decisive nature ...  if it added substantially to the quantum of damages likely to be recovered assuming of course that without that newly discovered fact the amount otherwise would be too small to bother about."

Effectively then, the applicant has satisfied me of two material facts of a decisive nature I have already indicated what they are.
          In my view the applicant has established the first factor.
Factor Two
          The applicant does not have to show, on the balance of probabilities, that it is likely that he will succeed in his right of action against the defendant (Wood v. Glaxo Australia Pty Ltd (1994) 2 Qd.R. 431 at 434). In the same case Macrossan C.J. said (at p.434):-

"The Court should be cautious in shutting out a party from the opportunity to make his case at the appropriate time."

The applicant is required to point to facts which make it appear that at the trial he will be able to adduce evidence from which, if unopposed, the Court could form an opinion that the applicant has a right of action (ex parte Minoque (1980) Qd.R. 350 at 351-2; Minoque v. Bestobel Industries Pty Ltd (1981) Qd.R. 356 at 358; Dwan v. Farquhar (1988) 1 Qd.R 234 at 235, 239 and 245).
          The material read before me discloses:-

(a)     The relationship between exposure to the sun and the subsequent development of skin cancer has been known for a long time e.g. the Encyclopedia of Occupational Health and Safety first published in 1972 by the International Labour Office contains references to this fact and also at p.1326 said, 'actinic keratosis, basal cell epitheliomas and squamous cell carcinomas of the exposed areas are the most commonly encountered neoplasias among outdoor workers.'

(b)     In October 1980 the National Health and Medical Research Council adopted the occupational health guide 'Occupational diseases of the Skin' and according to that guide farmers, sailors, fishermen and others exposed to solar radiation are prone to develop dry adherent scales on the skin, solar keratosis or various types of skin cancer.

(c)     An employer must keep abreast of developing knowledge and must not be slow to apply it (Thompson v. Smiths Ship Repairers (North Shields) Ltd (1984) 1QB 405 at 415; Stokes v. Guest Keen and Nettlefold (Bolts and Nuts) Ltd (1968) 1 WLR 1776 at 1783.

(d)     The squamous cell carcinoma on the applicant's left ear which led to the metastatic  squamous cell carcinoma probably developed in 1980 or 1981.

(e)     At that time the Main Roads Department of Queensland took no precautions against what was then, I infer, a foreseeable risk of outdoor workers such as the applicant developing skin cancer.

I infer that one reasonably available means of reducing or eliminating the risk (during 1980 to 1983) of the applicant developing squamous cell carcinomas was the wearing of a broadbrimmed hat and appropriate cream or sunscreen liquid applied to the parts of the body exposed to the sun.
          In McLean v. Tedman (1984) 155 CLR 306 at p.313 Mason, Wilson, Brennan and Dawson JJ. in their joint judgment said:-

"The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system.  Accident prevention is unquestionably one of the modern responsibilities of an employer ..."

In my respectful view, the applicant has led before me sufficient evidence from which I have formed the opinion that he has a  right of action.  I find that factor two has been established.
Factor Three
          In this matter the writ, was as I have said, issued on 6 April 1995 and the application for leave to extend time was filed on 15 May 1995.  The period of twelve months referred to in the statute expired on 11 July 1995.  Factor three has also been established.
          The result then is that the application by the first plaintiff succeeds and I order that the period of limitation for this action be extended so that it expires on 6 April 1995.
          I shall hear from the parties on the question of costs.