Oats v Mt Isa Mines Limited

[1995] QSC 78

IN THE SUPREME COURT
OF QUEENSLAND
MT ISA DISTRICT REGISTRY

No.  3 of 1994

[Oats v. Mt Isa Mines Limited]

BETWEEN

PHILLIP REGINALD OATS

Plaintiff

AND

MT ISA MINES LIMITED
  Defendant

JUDGMENT - SHEPHERDSON J.

Judgment delivered  10/5/1995

CATCHWORDS:           PRACTICE - Construction of Statute.  Section 31 Limitation of Action Act 1974 (Qld) Sugden v. Crawford (1989) 1 QdR 683 applied

Counsel:R.J. Douglas for applicant/plaintiff

R. Myers for respondent/defendant

Solicitors:Nicol Robinson & Kidd acting as T/A

for V.R. Moffatt & Asssociates  for applicant

Thynne & Macartney acting as T/A for L.A. Evans for respondent

Hearing date:          26 April 1995

IN THE SUPREME COURT
OF QUEENSLAND
MT ISA DISTRICT REGISTRY

No.  3 of 1994

[P.R. Oats v. Mt Isa Mines Limited]

BETWEEN

PHILLIP REGINALD OATS

Plaintiff

AND

MT ISA MINES LIMITED
  Defendant

JUDGMENT - SHEPHERDSON J.

Judgment Delivered  10 May 1995 - at Brisbane

In this application the plaintiff has sought an order pursuant to s.31 of The Limitation of Actions Act 1974 extending the limitation period in respect of a cause of action by the plaintiff against the defendant for personal injury and loss arising from an accident which occurred on or about 4 January 1988.
          The writ of summons was filed on 15 February 1994 and the claim, as endorsed on the writ is based on alleged breach of contract, negligence and breach of statutory duty.
          The material before me shows the following:-

(a)The applicant was born on 12 May 1947 and left school at age 16 after finishing grade 10.

(b)On 4 January 1988 the applicant was a trainee raise borer operator employed by the defendant and working at L49, 12 level Hilton Mine Mt Isa.

(c)At about 4.30pm on that date, while he was levelling out planks to put rods on, he was injured.

(d)In an application for workers' compensation which he signed on 12 February 1988, the applicant described how the injury occurred.  He said -

"Rocks fell out of the roof, knocked me to the ground - hit in back and head - lacerating head".

(e)In a signed statement dated 23 February 1988, he referred to treatment given and mentioned "neck and back injuries also sustained in the rock fall."  He said his middle back had "been x-rayed at the referral of Dr Foreman" and went on to say -

"I was bending over to pick up a plank when struck by a rock in the middle of the back.  The rock had fallen from a height of approximately 12 feet.  I was knocked to the ground and as I was trying to get up was struck in the head after my helmet was knocked off by a couple more rocks from the rock fall.  I experienced muscular pain in the middle of the back ..."

(f)at the conclusion of that signed statement he said -

"My claim is for medical expenses only.  My back and neck are not 100%."

(g)In his affidavit sworn on 3 March 1995, the applicant further described the incident of 4 January 1988.  He said -

"12.  Whilst so bending over I was struck by a rock in the lower back knocking me to my hands and knees.  Whilst on my hands and knees more rock fell hitting me in the middle back.  Another rock dislodged my helmet and the last rock cut me open requiring 12 sutures.

13.  In the mine, whilst I was working there, I observed a system of underground meshing and rock bolting on the backs of drives therein.

14.  In the area I was working there was meshing on the back of the drive, down to about head height as the back curved around to the walls of the drive but stopped about three or four metres from where the man car was located and where I was working at the time of the accident.

15.Thus there was no bolting or meshing immediately above where I was working.

16.The effect of rock bolting and meshing is to keep rock in place and in the event of loosening  to hold it in place."

(h)as to treatment, the applicant attended Dr Foreman a medical practitioner at Mt Isa - Dr Foreman practised at Barkly Medical Centre.  There is no material directly from Dr Foreman.

1. a letter dated 22 March 1994 from Dr C. Black from Barkly Medical Centre (ex.PRO6) shows (in part) the following in relation to the applicant -

   "This fellows medical records at the Barkly Medical Centre first date back to the 11.01.88 when he consulted with Dr. Rosco Forman.  I am uncertain whether this consultation was for the same injury that was sustained approximately June 1987.  On the 11.01.88 Mr Oates consulted with Dr. Rosco Forman stating that he had been hit by racks (sic) at Mount Isa Mines whilst working underground.  He had apparently been hit between the shoulder blades and on the back of the head.  He sustained lacerations to the scalp but was not knocked out.  He complained of pain in the lower thoracic region for which he was prescribed anti-inflammatory medication and micro-wave therapy.  An x-ray of the thoracic spine showed some degenerative changes in the 11th and the 12th thoracic vertebrae with no mention of lumbar back pain during this consultation.  He was prescribed Voltaren again in May 1989 by Dr Forman, the site of his joint pain not mentioned.

The next mention of any lower abdominal discomfort was on 24.07.90 when Mr Oates (sic) complained of pain in the right illiac (sic) fossa ..."

The applicant himself has sworn as follows:-

"20.  I first saw Dr. Foreman a week or so after the accident and then over several months.  I continued to suffer pins and needles in my thoracic spine over this period particularly with heavy exertion.  I continued working.

21.  Dr. Foreman prescribed some medication for me which I took.  Dr Foreman told me at the time I last consulted him that the pins and needles sensation I was feeling, described earlier but also suffered by me from time to time in my left arm would go away after a while."

I pause to say that he mentions in those passages only the thoracic spine.

(k)The applicant has sworn that in mid 1988 he consulted Dr Joyce of Home Hill, he having formerly been his family doctor;  he said he consulted him because he was having difficulty with the healing of the wound at the back of his head.

(l)In his sworn material the applicant has continued -

"23.  From mid 1988 I was content to accept the advice that had been given to me up to that time and I remained working.  I worked at Mount Isa Mines until 23rd November 1989 and then commenced as an owner/operator taxi driver which I continued until just recently. [affidavit sworn 3.3.1995]

24.  I did not change occupation because of my physical problems.  Whilst I was mindful of problems in my back, including a pins and needles sensation, on an intermittent basis, in my thoracic spine, I was seeking to advance my prospects for remuneration.

25.  In mid to late 1989 I believed I may have attended upon a general practitioner, which may have been Dr Foreman, with complaint about my thoracic spine symptoms, but I have no accurate recollection of the same other than to say that it was only on the one occasion.

26.I continued to suffer from the pins and needles sensation to my thoracic spine on an intermittent basis."

(m)The applicant went on to swear:-

"27.  In July 1990 I commenced to suffer from lower abdominal discomfort. I consulted Dr Black a general practitioner in Mount Isa.  No cause of the pain could be located and I was told to wait and see if the pain got worse.

28.  The pain to my abdominal region would go or lessen significantly, and then after a while would return.  This continued throughout 1990, 1991 and 1992, with the pain gradually becoming worse in mid 1992.  I consulted Dr Black when he told me that I was suffering from a stomach complaint and he prescribed medicine for this.

29.  In January 1993 I again visited Dr Joyce, this time concerning the pain I was suffering from to my groin which had gradually become worse.  I was told by Dr Joyce and verily believed that I could be suffering from a bowel condition.

30.  In February 1993 I visited Dr Black in respect to the abdominal pain and a 'numb' or 'swollen' sensation to my lower back.

31.He caused me to undertake certain tests.

32.  In mid 1993, I again attended upon Dr Black.  I so attended upon him because of the pain to my groin and lower back was continuing.  I had commenced to suffer from pain in my left leg.

33.Dr Black arranged for a scan of my lower back. This was undertaken in July 1993.

34.  Dr Black suggested that I attend upon Dr Roger Watson in Townsville, I telephoned the surgery of Dr Watson and after being informed that I would not be able to see Dr Watson for at least six (6) weeks I decided not to travel to Townsville to see him."

(n)Dr Black in his letter (ex. PRO6) basically confirms the applicant's visits to him in July 1990 with lower abdominal discomfort.  He said:-

"The next mention of any lower abdominal discomfort was on the 24.07.90 when Mr Oates (sic) complained there were pain in the right illiac (sic) fossa.  Examination of his abdomen at that stage revealed no abnormality and it was decided that we would wait and see what symptoms progressed.  There were no further consultations regarding either spine or abdominal pain for the rest of 1990, 1991 and until March 1992.  At this stage had abdominal pain and diarrhoea consistent with a bacterial gastro enteritis, being treated as such. "

(o)Dr Black's letter of 22 March 1994 (ex. PRO6) differs from part of the applicant's sworn evidence.  He said -

"It was not until February 1993 that Mr Oats first discussed his left lower quadrant and back pain with me.  We felt at this stage that it was probably musculo skeletal pain but that we needed to exclude any deep seated gastro intestinal or genito-urinary pathology.  An ultra sound of his upper abdomen was performed the results being normal.  He also had a barium enema and abdominal x-ray performed, the results also being normal.  In June 1993, he returned stating that his low back pain was persisting with left buttock discomfort and occasional pain to the left foot.  There also appeared to be some anterior thigh pain which was worse with bending forward.  We organised some anti inflammatory medication and a CT Scan of the lumbo-sacral spine.  This was performed on the 05.07.93.  It showed degenerative osteophytic lipping present on all of the lower lumbar vertebraes and a bulge in the L3-4 disc with no evidence of disc protrusion at any level.  There was no evidence of neural compression.  When I spoke with Mr Oats regarding this result on the 14.07.93 it was decided that he should perhaps go to Townsville to be consulted by Dr Roger Watson regarding his constant back problems.  To my knowledge Mr Oats has not yet been to Townsville and I have only seen him twice since - in July 1993 regarding an unrelated lip problem."

I pause to say that although Dr Black says the CT Scan of 5 July 1993 showed changes in the applicant's lumbar spine the applicant does not swear that he knew of those changes.  All he swears to is Dr Black having arranged a scan of his lower back.  The applicant did not consult Dr Watson.

(p)On 1 December 1993, the applicant consulted Dr John Warren another Mt Isa G.P.  He swears that Dr Warren referred him to Dr Yau a radiologist in Townsville for a scan "in respect of my back".

(q)Dr Yau has given a report dated 9 December 1993 (ex. PRO5).  It shows degenerative changes in the thoracic spine the lumbo sacral spine and in the lumbar spine.  Details are given and the comment portion of Dr Yau's report includes the following -

"L3-4 central stenosis has worsened since last study in June 1993.  The small left lateral disc herniation at L5 - S1 was not as apparent in the last CT Scan."

(r)Dr Warren referred the applicant to Dr Bruce Low an orthopaedic surgeon of Townsville.

(s)The applicant has sworn -

"37.  Only after the undertaking of a scan by Dr Yau in my consultations after that time did I realise that my symptoms were likely to persist and indeed worsen.

...

41.Until I saw a Dr Warren after the scan by Dr Yau I had no real concern about my future ability to work."

(t)A number of reports from Dr Low to the applicant's solicitors show -

(i)On 10 May 1994, (ex.PRO9) Dr Low considered the applicant's main problem to be 'mechanical back ache' and he later said that he would regard the injury which had been suffered in the rock fall accident some six years earlier as "an aggravating and underlying tendency towards degeneration of the cervical and lumbar spine by which he now has symptoms apparent."

(ii)On 24 May 1994, (ex. PRO10) Dr Low believed that six years earlier the applicant had injured his neck and low back in the rock fall incident at Mt Isa Mines and that he then believed "the symptoms are due to narrowing and degeneration of the L3-4 discs and ... this degeneration is consistent with him having suffered a rock fall injury when he was hit in the back by a large rock approximately some 6 years ago."

(iii)By letter of 31 May 1994, (ex.PRO11) Dr Low reported the applicant as having complained of progressive low back pain following the incident of 4 January 1988.  Dr Low later said that "the applicants primary problem was low back pain with some radiation of the left leg."  He went on to say -

"He feels pain between the shoulder blades which is due to some cervical and thoracic degeneration.  The worse pain is in the lumbar spine however.  I believe the accident which occurred at work in the described fashion and with described date was significant in the causation of his low back symptoms.  He did not have any back pain before this accident.  The treatment for this pain is to modify his life around the pain which he has done by ceasing underground work and taking a lighter job driving a taxi which he finds even doing that is becoming more and more difficult because of his ongoing pain.  The pain is due to degenerative changes in the lumbar spine.  I believe these have been aggravated by the accident.  I believe his pain will get slightly worse in the future.  I don't believe that surgery will ever be indicated."

(iv)After the applicant's solicitors wrote seeking clarification as to the cause of the applicant's symptoms in his lower back and groin Dr Low wrote in his letter of 14 November 1994 (ex.PRO12) -

"I would like to make it clear that the statement which Mr Oats gave on 23/2/88 to the Workers' Compensation Board stating that he was bending over to pick up a plank and was struck by a rock in the middle of the back, that this is certainly consistent with trauma to the middle of the patients back.  It is consistent with Mr Oats history of trauma causing symptoms to the low back and groin.  It is a well known fact that  low back pain can radiate into the groin.  Also, any irritation of higher lumbar nerve root that is the L3-4 nerve root can cause pain in the groin."

(u)Dr Warren has provided the applicant's solicitors with a report dated 14 February 1994 (ex.PRO7) to which it is unnecessary to refer because of Dr Low's opinions. Dr Warren said he first saw the applicant on 1 December 1993.

1. The applicant has sworn that he gave up taxi driving because he found that he could not continue on a daily basis with driving because of the pain.  He describes this pain as being in his middle and lower back.  He also swore (on 3.3.1995) -

   "42.  Although I have been able to obtain work at the Kalamia Sugar Mill recently, and although the work which I am required to perform in my employment does not require any heavy lifting or moderate or heavy exertion I am nonetheless suffering from continuous and regular pain to my middle and lower back.  As at the date of swearing this affidavit I do not feel confident that I will be able to continue in this employment for much longer due to the pain."

The writ of summons in this action was as I have said issued on 15 February 1994.  The statute requires the applicant to make it appear to me that a material fact of a decisive character relating to his right of action 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 the action. (subs.31(2)(a)).  Mr Douglas for the applicant has submitted that there are in effect two material facts of a decisive character. They are:-

1. That only from some date on or after 1 December 1993 when the applicant first consulted Dr Warren and thereafter Dr Low was it first within the applicant's means of knowledge that the back injury sustained in the January 1988 accident would significantly affect his ability to engage in employment;

2. That only after such date and such consultations it was within the applicant's means of knowledge that his persisting "groin" and related problems were attributable to the subject injury.

   In argument Mr Douglas conceded that it could well be that each of these material facts was within the means of the applicant's knowledge in July 1993 after the applicant had his lower back scan on the advice of Dr Black.  It really doesn't matter whether the date when each material fact was within the applicant's knowledge was in July 1993 or in December 1993, because each was well within the twelve months proceeding 15 February 1994.  The applicant has had no training in medicine and in the circumstances of  this case I conclude that it was on some date after the applicant first consulted Dr Low probably in December 1993 or January 1994 that he first became aware that the low back pain was causally related to the incident of 4 January 1988.
             What seems to have been critical for this applicant was his knowledge that his ability to work in the future was in effect jeopardised by his low back pain and groin pain.  As he said in the above paragraph 37 of his affidavit - "only after the undertaking of a scan by Dr Yau did I realise that my symptoms were likely to persist and indeed worsen."
             It is true that contemporary records show that for quite some time after the incident of 4 January 1988, the applicant did not complain of low back pain and now Dr Low believes that the plaintiff did injure his lower back on  4 January 1988 and complained of low back pain thereafter.
             This is not the occasion to decide whether or not that belief by Dr Low is well founded.  It may be that at a trial the applicant's credit will be impugned, but that is of no concern to me on this application. (see the comments of Macrossan CJ. in Wood v. Glaxo Australia Pty Ltd (1994) 2 Qd.R 431 at 434-5)
             What is important are the opinions of Dr Low which I have set out above and which causally relate the present low back pain and groin pain problems to the incident of 4 January 1988.
             In my view, Dr Low's opinions, if accepted by a court, do make the knowledge gained by the applicant as to the low back injury and groin complaints and their causal relationship to the 1988 incident a material fact of a decisive character.  It bore on the extent of the injury which the applicant initially believed he had suffered.  The extent of the injury was, as has subsequently transpired, important to the plaintiff because it converted what he originally believed to be a minor injury into one which, as he now believes, and has believed since December 1993 - January 1994, substantially affected his ability to earn an income.
             That the applicant initially believed the rock fall injury to have been minor appears in his above statement of 23 February 1988, when he sought recovery of expenses only.  The principle of Sugden v. Crawford (1989) 1 Qd.R 683 applies to the present case. While it is no doubt true to say of the applicant that had he taken appropriate advice he must have known, well before the limitation period expired, that on the facts then known, he had reasonable prospects of success in any action he might have begun against the present defendant for the injuries suffered based on negligence at the least.
             He did not do so and appears not to have heeded the injuries and their consequences as then known to him as sufficient to justify the bringing of an action.
             Once he gained knowledge of Dr Low's above opinions in December 1993 - January 1994 his case against the defendant was transformed from one of a minor character to one which had a reasonable prospect of resulting in an award of damages sufficient to justify the bringing of the action (see subs.30(b)(i)).  The component for impairment of earning capacity now assumes great significance for the applicant.
             I should at this stage say that the applicant has satisfied me that the requirements of subs.31(2)(b) of The Limitation of Actions Act have been met.
             On all the material before me I am satisfied that the applicant has made out his case and I make an order pursuant to s.31 of The Limitations of Actions Act that the period of limitation for the plaintiff's action No. 3 of 1994 in the Mt Isa District Registry be extended to expire on 15 February 1994.
             The parties have addressed me on the issue of costs.  Mr Douglas argues that they should be reserved.  It is true that the applicant has been forced to seek an indulgence from this court.  However, he was not aware of the material fact of a decisive character until December 1993 - January 1994 and considering his educational background it seems to me that it would be unfair to order at this stage that he pay the respondent's costs of the application.  In all the circumstances I propose to order and do order that the costs of and incidental to this application be reserved to the trial judge.