Thornton v Amaca Pty Ltd

[2004] QDC 459

DISTRICT COURT OF QUEENSLAND

CITATION:	Thornton v Amaca Pty Ltd & Ors [2004] QDC 459
PARTIES:	BRIAN THORNTON Plaintiff v AMACA PTY LTD First Defendant And SELTSAM PTY LTD Second Defendant And EDWIN SAMUEL NUNN AND MARGARET BURNS NUNN Third Party
FILE NO:	D1248 of 2001
PROCEEDING:	Application to extend time
DELIVERED ON:	10 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	1 September 2004
JUDGE:	Judge Brabazon QC
ORDER:	Application refused
COUNSEL:	Mr P Goodwin for the plaintiff Miss J Dalton for the first defendant Mr N J Burkett for the second defendant
SOLICITORS:	MurphySchmidt for the applicant Allens Arthur Robinson for the first defendant Ebsworth & Ebsworth Lawyers for the second defendant
The Application

1. This is an application by a plaintiff for an extension of time, under the provisions of the Limitations of Actions Act 1974, within which proceedings can be started against the first defendant.

2. Mr Brian Thornton’s claim for personal injuries was filed in this Court on 19 March 2001. He would have had a year to commence his claim, after all the material facts of a decisive character about his injury were within his means of knowledge – see s.31(2)(a) of the Act.

3. The application is opposed. It is submitted for the first defendant that all relevant matters were within his knowledge before 19 March 2000.

   The Facts

4. He is now a retired man, born on 21 April 1937. His Statement of Claim says that he was a carpenter, between 1963 and 1983. During that time he was exposed to asbestos cement products made by the first defendant. He had to handle, cut and erect asbestos products and work in areas where they were being used. He says that he was exposed to airborne fibres.

5. He says that he has developed asbestos related pleural disease of the lungs with a resultant reduction in lung function. He says he first became aware of the nature and extent of that impairment when he saw the report of Dr W A Oliver, a thoracic physician, dated 26 February 2001.

6. He was called as witness, and was cross examined by counsel for the first defendant. He impressed as a straight forward and honest man.

7. His Statement of Loss and Damage signed in May 2002 contains a short statement which is consistent with his evidence:

   “Over the past 10 years I have gradually become short of breath. I become distressed after climbing approximately 15 stairs, however I can walk approximately one kilometre at my own pace on the flat and play 18 holes of golf on a flat course pulling my own buggy. While I was working I would cope by pacing myself throughout the day. I am now retired.

   I have a minimal cough with scanty white sputum at times. However, over the last 10 years I have lost vital capacity at twice the normal rate. I have a current impairment of 25%, of which 15% is asbestos related. However, over the next 10 years this percentage of impairment will move into a higher level of impairment.”

   (The percentages about his impairment relate to Dr Oliver’s opinion).

8. It is common ground that the only issue for the Court, is that relating to Mr Thornton’s knowledge of his condition before the claim was filed, on 19 March 2001. It is accepted that the evidence here shows, or might show, that Mr Thornton has a cause of action against the first defendant. There are no discretionary considerations.

9. In early 1991 Mr Thornton felt unwell for about six or eight weeks. He had symptoms such as fever, the shakes, and was coughing up green phlegm. At first he thought he had a virus. Because his symptoms did not pass he went to see a general practitioner Dr Jenny Crane in February. She told him that his condition might be pneumonia. She ordered an X-ray. She then told him that he had pneumonia, and should take antibiotics.

10. In late March 1991 Dr Crane ordered another X-ray of his chest. The antibiotics had not made him better as expected.

11. In February, the radiologist reported this:

    “Slow resolution is not unexpected and as long as the patient is improving clinically further X-rays could be delayed for at least 3-4 weeks.”

12. That radiologist reported again on 26 March 1981:

    “The static appearances make an acute inflammatory aetiology less likely. They could be of long standing due to an earlier inflammatory episode but other causes including underlying malignancy must also be considered. An opinion from a respiratory physician is recommended.”

13. Dr Crane referred him to Dr McKeon, who was a thoracic physician. He sent Mr Thornton for a CT scan of the thorax, and that was done on 3 April 1991.

14. When Mr Thornton saw Dr McKeon, in early April 1991, he took a full medical history from him. He told Dr McKeon that he had previously been exposed to asbestos cement products during his employment. Before that consultation, he had not been aware of any dangers associated with asbestos.

15. Dr Thornton told him about the possibilities of fatal mesothelioma, or asbestosis, about which the doctor was uncertain. The doctor did explain that he had at least benign asbestos pleural disease. He offered the opinion that the pleural disease had not resulted in any significant impairment of his vital capacity. He went on to say in his report that his predominant abnormality on lung function testing was air flow obstruction probably due to chronic bronchitis (Mr Thornton had been a smoker).

16. Mr Thornton expressed to the doctor his concern about mounting medical costs. The doctor suggested a Workers Compensation application. He wanted to see Mr Thornton in two months time. Mr Thornton was very concerned, mainly because of the possibility of his having mesothelioma.

17. He made his application for compensation on 10 April 1991. As he said in his statement:

    “I believe I am suffering from asbestos related lung disease caused by working with asbestos cement sheeting … . I first became aware of this disease when being treated for pneumonia recently by Dr J Crane who referred me to Dr G McKeon. …”.

18. He went for another X-ray in May 1991. The report showed that there were no changes since the previous X-rays. He returned to Dr Crane who reported to the Workers Compensation Board on 16 May 1991. She concluded her report by saying this,

    “As you may be aware, asbestosis may often be found as an incidental finding in chest X-ray in a person previously exposed to asbestos and not cause any symptoms. It may also cause significant scarring and limitation of respiratory function as well as contribute to recurrent or persistent chest infections. It may also eventually lead to the development of very malignant lethal mesothelioma at any time after exposure to the minute amounts of asbestos. Therefore his prognosis is really very uncertain. However, at the moment, he is well with only minimal cough.”

19. Dr McKeon also reported to the Workers Compensation Board, on 16 May 1991. He referred to his earlier letter of 8 April. His report concluded this way:

    “At this stage, his vital capacity is within normal limits. Therefore he has no significant impairment due to his asbestos pleural disease. …

    I believe that it is very important to follow Mr Thornton carefully with X-rays in order to determine whether he has mesothelioma or any form of progressive pleural restrictive disease. He has four medical problems … asbestos pleural disease … . When I saw him on 3 April ’91 he had no significant impairment of lung function and minimal disability. He needs to be followed up very carefully in the future for possible complications of asbestos pleural disease.”

20. In result, the Medical Assessment Tribunal recommended the payment of his medical expenses. The Tribunal found that he was still working, as indeed he was, apart from his temporary incapacity earlier in 1991.

21. Dr McKeon saw him again on 3 June 1991. He wrote to Dr Crane. He said he noted that Mr Thornton’s test for lung capacity was slightly better than on the last visit. A recent CT scan was unchanged from early 1991 as, was his chest X-ray. Thus, there was the same evidence of significant right pleural thickening which had not worsened over a four-month period of observation: “Hopefully his pleural thickening is benign asbestos related pleural disease. I would have expected mesothelioma to be much more rapidly progressive. He still has no disability and no impairment from this condition.”

22. Dr McKeon saw him on 4 December 1991. His chest X-rays showed an unchanged position. His letter to Dr Crane concluded this way:

    “I am glad that he has remained stable. Workers Compensation accepted his claim as a work related condition. If you agree, I would be happy to review him in 12 months time with another chest X-ray.”

23. The substance of that report was conveyed to Mr Thornton. So, by the end of 1991, Mr Thornton certainly knew that he had an asbestos related condition, and that it was permanent. While there was still some risk of mesothelioma, he had been reassured about that by the doctors of the Medical Assessment Tribunal. He asked them about mesothelioma. They told him that he’d got as much chance of mesothelioma as getting run over by a bus, and that he should just go home and forget about it. Indeed, at least up to the present time that advice was correct, as there is still no sign of mesothelioma.

24. In 1991, Mr Thornton knew that the effects of the lung disease could get worse. However, by the end of 1991 Dr McKeon was able to say that his condition was stable. It must also be recalled that he was continuously working as a carpenter, apart from the time off work in early 1991. During 1991 the deterioration in his lung function tests appeared to be related to his bouts of pneumonia. His breathing difficulties in 1991, referred to paras 20, 21 and 22 of his affidavit, appear to be related to the bronchitis of which Dr McKeon spoke, or to another pneumonia.

25. He returned to see Dr McKeon on 2 December 1992. His report to Dr Dutney (a colleague of Dr Crane) said this:

    “I reviewed Mr Thornton today on 2.12.92. He has not had any significant symptoms. … Chest X-ray on 30.11.92 was unchanged from 30.12.91. … his asbestos related pleural disease is quite stable. I have advised him to have another chest X-ray of he develops any significant symptoms such as haemoptysis, chest pain or breathlessness. He will be seeing you for follow-up. I would be happy to review him at any time if he has problems … ”.

26. So, by the end of 1992, it can be seen that Mr Thornton did not have any worthwhile prospects of a claim against the first defendant. He had only one episode off work, and there were good chances that that would not be repeated. A specialist reported his condition to be stable over a period of more than a year.

27. Some more time passed and Mr Thornton did not notice any changes. In 1993 he got a job as a carpenter at the Bundaberg Hospital. He still felt the same. After some more time, about which he was uncertain, but probably around 1995, he started to feel breathless after exertion, such as walking up stairs. He agrees that the above account about that in his Statement of Loss and Damage is accurate.

28. In October 1997 he went to see his general practitioner, Dr Dutney. Dr Dutney ordered a CT scan and a lung function test.

29. The scan found no malignancy. It did find extensive pleural plaques and pleural calcification on both sides of the lungs. Dr Dutney told him about those results. Mr Thornton accepted that the results of the X-ray showed that his condition had deteriorated. Mesothelioma and asbestosis were excluded. Mr Thornton knew that his lung disease could, or would, get progressively worse as he had been told that originally. At the time of his visit to Dr Dutney, he seemed to have accepted that the deterioration was an ongoing thing.

30. Just before Christmas 2000 he noticed his breathing becoming increasingly more difficult. About that time he saw an advertisement in a magazine in relation to compensation for people who had been exposed to asbestos related products. He spoke to Sydney solicitors to find out what rights he may have had because of his condition. He thought it may deteriorate even further. In due course the Sydney solicitors referred him to his present solicitors. They made arrangements for him to be examined by Dr W Oliver on 19 February 2001.

31. The effect of Dr Oliver’s report is this:

    “… The CT of the chest of 3 June 1991 showed quite marked pleural thickening posteriorly on the right. … By the CT scan of 27 October 1997 there was more thickening bilaterally and more calcification. … No evidence of asbestosis is seen on the CT. Following my review he had a further CT dated 19 February 2001. Again there was extensive pleural thickening with a multiple calcified pleural plaques. …

    Spirometry was performed. … He has lost the 600 mls in vital capacity which is double the calculated rate and would be in keeping with an increasing restrictive problem. He would appear to have some significant small airways narrowing with mid-expiratory flow of only .89 or 26% of predicted. There is excessive loss of volume in his total lung capacity which is only 73% of predicted whereas in smoking inducted lung disease the total lung capacity would tend to be normal or raised. The residual volume to total lung capacity ration is high at 49.1%, the predicted 38.5% in keeping with their being an element of obstructed airway disease. …

    Over 10 years, Mr Thornton has lost vital capacity at twice the normal rate. On average he would have another 15 years to live which means he could lose another 900 mls of volume instead of the predicted 450. This would put his vital capacity down at 1.8 litres at 78 years, which although disabling would not threaten life. … With a vital capacity below the limit of normal, but with figures of 62% of predicted he falls into Class II 10%-25% impairment of whole person and would place his disability towards the upper limit of this 25% impairment of the whole person. Obviously he does have some smoking induced lung disease but I feel the majority of the reduction is due to the asbestos related pleural disease and I would allocate 15% to asbestos related pleural disease and 10% to tobacco related obstructive airway disease. I would predict that over the next 10 years he will move into a higher level of impairment.”

32. Mr Thornton expresses his appreciation of his own position this way:

    “In about 1991 when I first suffered pneumonia I became aware that I had suffered some form of pleural injury as a result of my exposure to asbestos during the course of my employment.

    I was unconcerned that I had suffered any significant health problems at all as a result of the various advices which were given to me … .

    Between November 1992 and October 1997 I had no breathing difficulties at all which caused me any concern that my health had been significantly affected by my exposure to asbestos. The results of the CT scan on 27 October 1997 did not cause me any concern that my condition had deteriorated to any extent or that I had suffered any significant injury.

    It was only when I became aware of increasing breathing difficulties just prior to Christmas 2000 and as a result of my reading the advertisement that I became concerned that I had suffered something more serious than I had previously believed. Shortly thereafter I sought legal advice and had the further examination by Dr Oliver which resulted in the commencement of these proceedings by way of Claim and Statement of Claim filed herein on 19 March 2001.”

33. It is submitted for the first defendant that Mr Thornton always knew his condition could deteriorate, and that is exactly what has happened. It is submitted that Dr Oliver’s opinion is neither a new material fact nor is it of a decisive character, within the meaning of the legislation. That is because, it is said, Mr Thornton knew that his condition could or would deteriorate, and because Dr Oliver was only confirming, in terms of his expert knowledge, what Mr Thornton had known for a long time when he was climbing stairs and felt the need to pace himself at work. It is also pointed out that Mr Thornton was never prevented from working, right up to his retirement, which seems to have been voluntary. He makes no claim for economic loss in his Statement of Loss and Damage.

34. For Mr Thornton, it was submitted that the report from Dr Oliver did amount to a material fact of a decisive character, compared to his state of knowledge in 1991 and 1997.

    Conclusions

35. It is accepted that the discovery of new facts will not justify an extension of the limitation period if Mr Thornton already knew sufficient facts before that discovery, to make it in his own interest to institute legal proceedings. As it was put by Macrossan J in Moriaty v Sunbeam Corporation Limited [1988] 2 Qd R 325 at 333:

    “In cases like the present the applicant must show that without the newly learned fact or facts he would not even with the benefit of appropriate advice have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it. This is what the application of the test of decisiveness under s 30(b) of the Act comes down to …”

36. There are often difficult questions in deciding if a fresh medical opinion amounts to new information of a decisive nature, or whether it is no more than a better informed description of something that the patient is already aware of. An example of the inquiry that must be made and can be seen in Healy v Femdale Pty Ltd [1993] QCA 210:

    “The question whether an injured person has taken all reasonable steps to ascertain the seriousness of the injury depends very much on the warning signs of the injury itself and the extent to which it or any other facts might be thought to call off a prudent inquiry to protect one’s health and legal rights. It is difficult to say that a person who finds herself able to get on with her life, and returns to employment without significant pain or disability fails the test merely because she fails to ask for opinions from a doctor about the prospect of future disability or effect upon her working capacity. There is no requirement to take ‘appropriate advice’ or to ask appropriate questions if under the circumstances it would not be reasonable to expect the plaintiff to have done so. A question of fact is involved here. In the present matter the Chamber Judge before when the plaintiff appeared was cross examined has some advantage. … In these circumstances there was adequate evidence upon which the Chamber Judge could reach the conclusions he did (that is, that there should be a grant of an extension of the period of limitation to commence an action for damages for personal injuries).”

37. In 1997, having seen Dr Dutney, Mr Thornton knew that he had still escaped mesothelioma and asbestosis. However, his lung disease was progressing and was the cause of the shortness of breath that prompted the visit. While he had every reason to believe that his condition was stable back in 1992, that was no longer the case. His condition in 1997 was no surprise to him, because of the advice that he had been given five or six years before.

38. Mr Thornton is not a man to go to the doctor unless he has to. It should also be said that he seems to have been entirely frank about his condition, when giving evidence in this Court. As he said here, he was told in the first instance (that is, 1991-1992) that his condition was going to get progressively worse. He knew that he just had to face it. When pressed as to why he had not asked Dr Dutney for a prognosis, he responded, “it’s no good asking them every time you go to see them”. While Mr Thornton’s attitude was an admirable one, it is not necessarily a reason for escaping the requirements of the Act. That is to say, in asking for an extension of time to commence legal proceedings, it is assumed that he should have obtained the appropriate advice, both legal and medical, in 1997. He did not do that. He was only prompted to do so by looking at an advertisement about such things in late

1. The conclusion is that any prospects of success he may have had were just as worthwhile in 1997 as they are now. That is, Dr Oliver’s report has really added very little to the things that he knew by 1997. The report has outlined his condition, and at the increasing difficulties he will face in the years ahead, with more precision. However, there is nothing that is new or surprising about it. Unfortunately for Mr Thornton, it is not possible to regard the report as a material fact of a decisive character. If that finding could have been made, then his delay would have been excused and his present action able to proceed. Unfortunately, it is just not possible to make such an order in this case.

2. The application is dismissed.