Turner v Roche Mining (Mt)
[2006] QDC 94
•9 May 2006
DISTRICT COURT OF QUEENSLAND
CITATION:
Turner v Roche Mining (MT) [2006] QDC 094
PARTIES:
RICKY ALAN TURNER
Applicant
And
ROCHE MINING (MT)
Respondent
FILE NO/S:
D615 of 2005
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
Southport
DELIVERED ON:
9 May 2006
DELIVERED AT:
Brisbane
HEARING DATE:
20 February 2006
JUDGE:
McLauchlan QC DCJ
ORDER:
Application dismissed
CATCHWORDS:
Leave to Proceed s31 Limitations of Actions Act 1974; Personal injury caused progressively by breach of duty; When cause of action arises.
COUNSEL:
Mr Boulton for the Applicant
Mr McDougall for the Respondent
SOLICITORS:
Hunter Solicitors for the Applicant
Blake Dawson for the Respondent
This is an application for the extension of the limitation period pursuant to section 31 of the Limitation of Actions Act 1974, in respect of an injury allegedly progressively suffered by the applicant in the course of his employment, between 29 January 2002 and 17 December 2003.
The applicant was born on 13 July 1981 and commenced work for the respondent as a laboratory technician on or about 29 January 2002. The applicant experienced no real difficulties as a result of that employment until about December 2003. On 17 December 2003 he was bending down on his right knee to reach out to adjust a connection part on a pump. He said that at that time he experienced a very sharp pain in his back located approximately between his shoulder blades, and that the pain felt as if someone had stabbed him in the back with a knife. He was driven by a fellow worker to Pindarra Hospital where he was given pethidine to relieve the pain. He underwent an x-ray or CT scan of his chest and thoracic spine and a report was duly received dated 17 December 2003, which detected no abnormality.
The applicant was unable to return to work immediately following the incident and on the same date applied for WorkCover benefits. The application was accepted and the applicant received benefits pursuant to the legislation. The applicant received medical treatment from Dr Abrahams, the company doctor retained by the respondent. He was prescribed analgesics and anti-inflammatory medication and was told to rest. His condition then improved and he was authorised to return to work in early January 2004. For a short time he performed light duties and then returned to his normal duties.
On about 26 February 2004 he experienced a further episode of severe pain in his back during the course of the work. He says that there was no particular activity or incident at that time which appeared to be related to the pain which he experienced. Medical diagnosis at this time was that the applicant had suffered a prolapsed disc in his thoracic spine but there was guarded optimism about his prospects of returning to full time duties. It appears that the applicant then returned to work on 24 March 2004 initially on light duties, but subsequently performing normal duties.
On 30 August 2004 the applicant received a notice of assessment from WorkCover with an offer of a lump sum payment together with the usual advice that he must elect either to accept the offer or seek damages. He arranged an appointment to see his solicitor and saw him on 1 October 2004. The solicitor referred him to Dr Noel Langley, an orthopaedic surgeon. Dr Langley produced a report dated 1 February 2005 which confirmed a prolapse of the disc at the T6/7 level with radicular type pain on the right side. He was assessed as having an overall permanent impairment of 16% to his whole person as a result of the injury. Dr Langley opined: -
“if he continues to have conservative treatment for his condition, he would need to be on light duties with work and he should be under the guidance of a rehabilitation officer to help monitor his work program at the Roche Mining Company, or he should be on light duties permanently and not lift anything weighing more than five kilograms at a time.”
The applicant says that after perusing that report he was aware for the first time that he had suffered a serious injury to his thoracic spine which was likely to permanently interfere with his employment as a laboratory technician, and which might require him to undergo surgery in the future.
The applicant’s solicitor also referred him to MaxNetWork for a functional capacity assessment which was performed on 16 December 2004. The report obtained and dated 29 December 2004 identified serious functional restrictions affecting the applicant.
At that stage the solicitor informed the applicant that he needed to investigate whether the duties of his employment were directly or indirectly the cause of his injury, and recommended a report from Intersafe. A report was duly obtained from the Intersafe Group Pty Ltd prepared by Dr Justin Ludcke and dated 4 February 2005. The conclusions of that report included the following: -
“This report has examined the work conducted by Ricky Alan Turner when he sustained a back injury whilst working in the laboratory at Roche Mining as a laboratory technician. An analysis of the tasks demonstrated the presence of recognised mechanisms or risk factors associated with musculoskeletal injuries. An analysis using the 1991 NIOSH equation and other recognised tools demonstrated that the tasks performed prior to the onset of pain provided a moderate to high risk of musculoskeletal damage. It was shown that the risk factors could have been identified by the employer through task assessments using simple checklists.
Controls included the provision of appropriate manual handling aids, of which there were numerous possibilities for each task analysed. Some manual handling aids have been provided by Roche Mining since the incident. Also, the provision of or direction for extra staff to assist with heavy lifting tasks could reduce the weight of the lift. In addition, the provision of manual handling training and the creation of a workplace culture that questions heavy manual handling work could have significantly reduced the risk of injury.
The report shows that musculoskeletal injuries are predictable outcomes from manual handling tasks involving high force exertion. These should be a prime consideration during routine orders of a system of work involving a risk management approach that should be adopted by the management of the workplace.”
Following the Intersafe Report the solicitor sought a further opinion from Dr Langley as to the causal connection between the applicant’s thoracic spinal injury, and the work he had been doing in the course of his employment, as detailed in that report. Dr Langley’s report consisted of a letter dated 14 July 2005 which advised as follows: -
1. “The injury suffered by your client on 17 December 2003 was caused directly by the heavy work that your client was required to do in the performance of his duties prior to that date.
2. The instructions from the Intersafe report set out details of the type of work that he can do as a result of his injury.
3. His disc prolapse occurred on 17 December 2003 and he had a recurrence of symptoms on 27 February 2004 when he was carrying a bucket.”
The applicant deposes that until receipt of that report he had no medical or other expert evidence to the effect that the duties of his employment were responsible for the injury that he had suffered in December 2003.
The solicitor, Mr Hunter, deposes that upon receipt of the Intersafe Group report he was of the opinion that he required expert medical evidence that there was a causal connection between the applicant’s injury and the heavy work he had performed after commencing employment with Roche in January 2002, and he accordingly sought the further report from Dr Langley dated 14 July 2005. He says that having received that report he was of the opinion that there was sufficient evidence for the applicant to bring proceedings for damages against his employer and he advised the applicant accordingly.
A further, clarifying, report was obtained from Dr Langley dated 3 February 2006. That report states: -
“further to my report dated 1 February 2005, I believe the heavy work that Ricky Turner did in the course of his employment over a period of about 2 years before 17 December 2003, has caused repetitive minor damage to the concentric fibrous layers, which constitute the annulus of the disc.
In the course of his employment the disc progressively weakened to the point that it prolapsed on 17 December 2003.”
Against this background the applicant wishes to bring an action against the respondent alleging negligence on its part over the period from 29 January 2002 up to and including 17 December 2003, being the date on which he suffered the disc prolapse. The contention is that not only did the breach of the duty of care on the part of the respondent extend over that period, but that damage was progressively inflicted upon the respondent over that period. On that view of the matter a cause of action against the respondent might be said to have arisen at an early period after January 2002 because even at such an early point in time the applicant would have suffered a degree of musculoskeletal damage which was, however, not then symptomatic. It is trite to say that in actions for damages for personal injury in negligence, the cause of action is not complete until damage has been suffered, and that the relevant limitation period runs from that point in time, however far back in time the relevant breach of duty may have occurred. The applicant sees his case as requiring proof that such progressive damage to his thoracic spine occurred over the period mentioned, culminating in the prolapse on 17 December 2003.
The respondent, on the other hand submits that the proper view of the matter is that the injury suffered by the applicant occurred on 17 December 2003, so that is the date from which the limitation period runs and that period would extend to 17 December 2006. On that footing, the present application is unnecessary and misconceived.
There is a useful discussion of the matter in the 9th Edition of Fleming on Torts at page 217, in a discussion of damage in the tort of negligence. Omitting footnotes the text reads (relevantly) as follows: -
“Since damage is an essential element of liability, no cause of action accrues until damage has occurred. The statute of limitation therefore begins to run from the time not of the culpable conduct but its injurious consequences. This may make it more attractive to sue in tort rather than contract (where the cause of action accrues on breach and nominal damages are recoverable even in the absence of actual loss). …
But what precisely qualifies as damage in cases of bodily injury or property damage, and when does it occur so as to start the limitation period running? According to the English rule, disabling symptoms need not have appeared nor injurious consequences become discoverable; “the secret onset” of the disease or some physical change in property is sufficient. For example, asbestosis often remains undiagnosed for many years after exposure, yet the injury is evidently deemed to occur as soon as a lesion would have been discoverable by x-ray. Similarly, a complaint against the designers of a chimney was statute barred because time ran not from discovery of the first substantial cracks but their earlier formation. The selection of this occurrence not only lacks scientific basis but is also difficult to apply. It does postpone claims after an exposure until threatened injury has become actual and thereby defeats speculation about possible future damage; it also affords the plaintiff some extra time in cases of latent injury. On the other hand, the victim may lose his cause of action before becoming aware of it. In order to avoid this inequity, the English rule was subsequently reversed by statute; nor was it followed in Canada or New Zealand. In Australia it has also been thought not to apply to purely economic loss, such as that of a purchaser of a defective dwelling. In case of personal injury modern statutes are either authorise courts to extend the period when it is “just and reasonable” or postpone its running until the plaintiff has the means of knowing that his (personal) injuries are significant and attributable to the defendant.” (My emphasis).
I think that the applicant’s situation should be distinguished from the cases where diseases begin, but take some time to become symptomatic. In this case what is complained of is repetitive damage. It is not a case of damage being inflicted at a particular time, but not becoming symptomatic until a later time.
More importantly, it is not accurate to say that the spinal damage merely became symptomatic on 17 December 2003. Until that date, the damage suffered by the applicant did not include a prolapsed disc. When that occurred, the applicant suffered a further injury, which, in my view subsumed the injury earlier inflicted. That injury did not occur at the same time as a relevant breach of duty on the part of the respondent, but such a situation is well recognised and is acknowledged in the principle already stated, that the limitation period runs from the date the damage is suffered, even though caused by earlier events.
It follows that, in my view, the contention of the respondent is correct. The applicant’s injury was suffered on 17 December 2003 and the limitation period expires on 17 December 2006. In that situation, Dr Langley’s report of 14 July 2005, even if it could otherwise be regarded as a material fact of a decisive character, does not meet the requirements of s31(2)(a) of the Limitations of Actions Act 1974.
The application is dismissed.
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