Polzin v Shaw
[1997] QSC 70
•16 April 1997
IN THE SUPREME COURT
OF QUEENSLAND
Cairns District Registry No 37 of 1993
Before the Honourable Justice White
[Polzin v. Shaw]
BETWEEN:
ANDREW THOMAS POLZIN
Applicant
AND:
IAN DOUGLAS SHAW
RespondentJUDGMENT - WHITE J
Judgment delivered 16/04/1997
CATCHWORDS: LIMITATION PERIOD - material fact of a decisive character - amendment to statement of claim - O.32 - negligence - personal injury.
Counsel:Mr M Glen for applicant
Mr A Philp for respondent
Solicitors:Gayler Cleland Towne for applicant
Williams Graham & Carman for respondent
Hearing Date: 13 March 1997
IN THE SUPREME COURT
OF QUEENSLAND
No 37 of 1993
Cairns District Registry
[Polzin v. Shaw]
BETWEEN:
ANDREW THOMAS POLZIN
Applicant
AND:
IAN DOUGLAS SHAW
RespondentJUDGMENT - WHITE J
Judgment delivered 16/04/1997
The applicant has brought an action against his former employer seeking damages for personal injury as a result of negligence/breach of contract/breach of statutory duty. He now seeks
•leave to amend the writ by amending the name of the defendant which is not opposed;
•leave to amend the statement of claim in alternative forms;
•an extension of time for the period of limitation.
The writ was taken out on 23 April 1993 and served on the defendant on 14 April 1994. The Workers's Compensation Board was served on 18 April 1994. The statement of claim was delivered on 20 January 1995 and the defence on 4 April 1995. The claim endorsed on the writ is for damages for personal injuries suffered as a result of the negligence and/or breach of statutory duty and/or breach of contract of the defendant as employer, without specifying any dates, together with a claim for interest and costs.
The applicant was employed as a meat delivery driver by the respondent from about June 1981 when he was 15½ years old until June 1995. His duties involved the manual loading and unloading without assistance of quarters of beef, pig and other meat products. The average weight of the quarters of beef was 50-70kg. They were awkward and heavy to lift. The meat was transferred manually, occasionally from truck to truck, but generally from the delivery truck to delivery points which in the main were butcher shops in and around Cairns. The applicant carried out much the same work until 14 December 1992 when he sustained a severe back injury.
On 14 December 1992 the applicant was transferring quarters of beef from a frigmobile to a semi-trailer via the rear openings of the vehicles. In the course of carrying the meat from the frigmobile to the semi-trailer the applicant sustained an injury to his lower back. It is this event which is pleaded as the cause of his loss which in turn was allegedly due to the negligence and breach of statutory duty of the respondent in failing to provide a safe system of work. Following this incident the applicant was absent from work for about a month. For approximately six weeks after his return he carried out no lifting. In the month following he attempted to lift quarters of beef again but this caused him extreme pain. From about March or April 1993 the applicant rarely lifted quarters of beef. He remained in the respondent's employ until June 1995 and had another employee to do the lifting. For a number of reasons the applicant then moved to Western Australia to live.
The applicant suffered occasional backaches from to time during the course of his employment which he thought were minor strains. They abated relatively quickly and did not preclude him from working. In about October 1989 the applicant experienced aching in his lower back. It did not preclude him from employment but it did not abate so he attended his general practitioner. His general practitioner advised him that he had muscle strain from heavy lifting at work and issued him with a medical certificate for time off work. He underwent physiotherapy paid for by the Workers' Compensation Board. Between October 1989 and December 1992 the applicant suffered from nagging aches in his lower back but was not prevented him from working. From time to time he informed his employer of these backaches which were associated with heavy lifting duties.
The applicant now seeks an extension of the period of limitation for bringing an action against the respondent to allege negligence and breach of statutory duty during the whole of his employment from 1981. In the alternative he seeks to amend the statement of claim pursuant to Order 32 of the Rules to plead negligence from 23 April 1990. This alternative relief seeks to plead the period which would lie within the limitation period of the writ issued on 23 April 1993.
It is convenient to deal with the extension of the limitation period first. Section 11 of the Limitation of Actions Act 1974 provides that an action in which the damages claim consists of or includes damages in respect of personal injury shall not be brought after the expiration of three years from the date on which the cause of action arose. Section 31(2) of the Act provides that where it appears that a material fact of a decisive character relating to the right of action was not within the means of knowledge of an applicant for extension of time until a date after the commencement of the year last preceding the expiration of a period of limitation for the action and there is evidence to establish the right of action apart from the limitation defence the court may order the period of limitation for the action to be extended so that it expires at the end of one year after that date. Section 30 provides, inter alia, that material facts relating to a right of action include the nature and extent of the personal injury. Such facts are of a decisive character only if a reasonable person knowing those facts and having taken the appropriate advice would regard them as showing that an action would have reasonable prospects of success and result in an award of damages sufficient to justify the bringing of the action.
Although not conceded by Mr Philp who appeared on behalf of the respondent, there is sufficient evidence to establish a right of action in the applicant's affidavit and report of an engineer, Mr R Kahler. Mr Philp submitted that the applicant was aware of his back problems from at least October 1989. Mr Glen who appeared for the applicant, submitted that it was not until the receipt of a report from Dr P Muscio dated 10 October 1995 that there was any suggestion that the severe symptomology from which the applicant suffered after the incident on 14 December 1992 was connected with the backaches and pain which he had experienced previously and which were attributable to his heavy lifting at work. Indeed the various medical reports obtained by the applicant's solicitors before then suggested that the applicant's substantial back disability arose solely from the acute incident on 14 December 1992.
The applicant consulted with Dr Michael Sainsbury a general practitioner on 14 December 1992 complaining of low back pain. He was admitted to hospital and managed conservatively. Dr Sainsbury stated in his report dated 6 May 1993 to the applicant's solicitors:"In summary Mr Polzin has degenerative disc disease, aggravated by his occupation."
He referred the applicant to Dr Muscio an orthopaedic surgeon who saw him on 6 April 1993. His report to the applicant's solicitors is dated 5 July 1993. He noted that the applicant had been involved in a strenuous occupation and had had episodes of low back pain "which generally have not caused any long term incapacity". He noted the severe episode in December and that he was able to return to work in January. He viewed the x-rays taken in December 1992 at the Cairns Base Hospital which showed slight narrowing of the lumbo-sacral disc space and irregularity of the L3-4 and L2-3 disc spaces due to Scheuermann's Epiphysitis. Dr Muscio suggested that the applicant should look for alternate work to heavy lifting.
The applicant was examined by Dr JL Beecher an orthopaedic specialist on 18 February 1994. His report to the applicant's solicitors is dated 20 February 1994. Dr Beecher was told of a history of recurrent minor backache which benefited by treatment from a chiropractor every two months or so during the two or three years prior to the injury on 14 December 1992. Dr Beecher described the 1992 injury as a "twisting" injury. He concluded that the Scheuermann's condition shown on the x-rays "would probably explain the occasional back problems he has had for many years". Dr Beecher explained that Scheuermann's disease is a condition which occurs in teenagers and usually resolves without long term effect. It is a growth abnormality but should a teenager be engaged in very heavy lifting the condition may produce premature degenerative changes. He stated
"The past back problems have been quite unlike the acute incidents occurring on 14 December 1992, the history of which is much more typical of an acute disc lesion."
Dr Beecher assessed Mr Polzin as having a 5% permanent total body disability from the work injury in December 1992 and added that there was probably a similar 5% permanent disability related to his degenerative disease "which I believe has no connection with the more recent problem".
Dr R Watson a specialist in rehabilitation medicine examined the applicant on 3 November 1994. His report to the applicant's solicitors is dated 22 November 1994. Dr Watson accepted that the applicant had a pre-existing Scheuermann's condition which could have been responsible for the lower thoracic and "possibly upper lumbar spine" minor symptoms prior to 1992. He considered that this pain "was of a different nature to that experienced since the 1992 acute episode". He stated
"The localised tenderness at the lumbo-sacral level plus the lower limb radiation suggests that his current symptoms are coming from the lumbo-sacral disc space which is radiologically narrowed. The lack of associated osteophytic reaction tends to make this an acute rather than very longstanding disc degenerative problem consistent with the onset in 1992."
Dr Watson considered that the Scheuermann's condition was not a specific predisposition to the applicant's current disability.
The applicant saw Dr Muscio on 8 June 1995 for an updated medico legal report. This report is dated 10 October 1995. Dr Muscio concluded
"Mr Polzin has well established degenerative change occurring in his lumbo-sacral spine for a man of 29 years. Part of the degenerative changes occurred from the Scheuermann's disease which has been responsible for the changes at the L2-3 and L3-4 levels. The disc degeneration seen at the lumbo-sacral level appears in keeping with a degenerative disc caused by recurrent trauma.
From Mr Polzin's history and from appearances of his x-rays in 1992, it was evident that degenerative change in the lumbo-sacral level was well advanced and the further acute injury that he sustained to his back in 1992 was simply a further exacerbation of a pre-existing condition."
It is this opinion which has given rise to the present application.
Dr ER Griffiths a general surgeon saw the applicant on 12 March 1996 in Perth. He reviewed the earlier reports and concluded that the degenerative changes were of very longstanding and "almost certainly due to excessive load bearing and lifting effort, commencing in early adolescence, and the result of excessive stress upon the lumbar spine over very many years past". In respect of the incident that occurred on 14 December 1992 Dr Griffiths reported
"The pattern of degeneration in the lumbar spine was set prior to the episode occurring at work on 14 December 1992, which caused symptoms to arise, but not to cause the disturbance in the vertebral shape or the degeneration at the L2-3 and the L3-4 segment. It is possible the accident [incident of 14 December 1992] may have had an influence to bear upon the disc protrusion seen, especially at L5-S1 level, where there is no degeneration, or gas infiltration as seen in the vertebra above. There is indeed a large disc protrusion which could well be from lifting effort occurring in December 1992."
The effect of the medical opinion to which I have referred suggests that the work practice of requiring a lad of 15½ years constantly to carry heavy loads of meat as described by the applicant caused or contributed to the degenerative condition in his spine and was cumulative from 1981 when he commenced work. The applicant gradually experienced the onset of "nagging" back pain which did not prevent him from working at his job until October 1989. He was given time off work by his general practitioner which the applicant recalls him describing as "muscle strain due to heavy lifting". He was treated with rest and physiotherapy and was able to return to work. He continued to work at his previous job minimising the amount of heavy lifting and experiencing "nagging" aches in his lower back from time to time. He lost no work time and consequently no wages. He had no intimation from the doctors whom he consulted that he had a condition which was likely to cause problems in the future. There were no facts then within his knowledge which would have suggested to him that he had a worthwhile action or should take appropriate advice to ascertain his position, Berg v. Kruger Enterprises Ltd [1990] 2 Qd. R. 301; Byers v. Capricorn Coal Management Pty Ltd, ibid 306; Opacic v. Patane [1997] 1 Qd. R. 84.
Until Dr Muscio's report of 10 October 1995 there had been no suggestion in the medical opinion available to the applicant and his legal advisers that there was a link between his severe symptoms apparent on 14 December 1992 and his general spinal degeneration as revealed on x-ray shortly thereafter. Indeed the opinion was to the contrary as I have set out above. Dr Griffiths' report supports Dr Muscio's opinion and makes clearer the link between the system of work and the very early onset of degeneration whilst still leaving open a distinct trauma affecting the lower spine on 14 December 1992.
The writ was issued promptly on 23 April 1993 in respect of the event on 14 December 1992. Although the Limitation of Actions Act clearly contemplates that proceedings will ordinarily be commenced after the material fact has come within the knowledge of an applicant and an application will then be made for an extension of time, there is no reason why the extension of time should not be granted to the date the writ was issued and give leave to amend statement of claim in an appropriate case, Opacic v. Patane, ibid; Lynch v. Keddell (No 2) [1990] 1 Qd. R.10.
Mr Philp has submitted that the respondent will be prejudiced by the long delay if the amendment (extension) is permitted. He points to no specific prejudice apart from the prejudice which is inherent in delay. Whilst that is a recognised form of prejudice and must always be present when events occurring in the distant past are to be litigated, the present situation does not give rise to great difficulty. The applicant worked continuously for the respondent for twelve or so years as a meat delivery driver doing the same work. His final years did not involve heavy lifting. In all that time the system is not alleged to have changed and the respondent/owner of the business was himself involved in the work and saw the applicant at work. The Workers' Compensation Board file obtained on a Freedom of Information application by the applicant contains the relevant forms, medical certificates and assessment sheets in respect of the applicant's time off work in October 1989. The complaint about the system of work is the same for the whole period of employment. There is no prejudice which should override the exercise of a discretion in favour of the applicant to extend time and to amend the statement of claim to include the whole period of employment.
In view of the conclusion to which I have come on the limitation point I do not propose to canvass the question whether the cause of action proposed to be added arises substantially out of the same facts, O.32r.5.
The applicant has sought an order that the costs of the application be costs in the cause. No submissions to the contrary should the applicant be successful have been advanced by the respondent. If the respondent submits that some other order ought to be made then submissions to that effect should be received by my associate in Brisbane within 14 days of the registrar reading this judgment, with a copy to the solicitors for the applicant.
The formal orders are
By consent the applicant have leave to amend the writ of summons and statement of claim by striking out the name "Ian Douglas Shaw" as defendant and substituting therefore the name "Ian David Shaw".
The period of limitation for bringing an action against the defendant in respect of a claim for the period from 1981 until 23 April 1990 be extended up to and including 23 April 1993.
The applicant have leave to amend the statement of claim in the form of Annexure "B" to the summons with a further amendment to proposed paragraph 7A 1 to delete "30 April 1993" and include "30 June 1995".
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