Davidson v Guyra Meat Packing P/L

Mr C Hoeben SC with Mr I Pike (Defendant) Watson McNamara & Watt Plaintiff) SOLICITORS : Hickson Wisewoulds (Defendant) CATCHWORDS : Extension of time - s 151D Workers Compensation Act - Q-Fever LEGISLATION CITED : Workers Compensation Act Salido v Nominal Defendant (1993) 32 NSWLR 542 CASES CITED : Brisbane South Regional Health Authority v Taylor (1996) 186 CLR; 139 ALR 1 Holt v Wynter [2000] NSWCA 143; (1999-2000) 49 NSWLR 128 Robert v Guyra Meat Packaging Pty Limited (unreported 25 September 1998, Blanch DCJ) DECISION : (1) Leave is granted to the plaintiff to commence proceedings against the defendant for personal injuries in relation to the alleged contraction of Q-Fever in 1988; (2) The statement of claim is to be filed and served within 14 days; (3) Costs, costs in the cause.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11582/2000 - PHILLIP JOHN DAVIDSON v GUYRA MEAT PACKING PTY LIMITED

JUDGMENT (Extension of time - s 151D Workers Compensation Act - Q-Fever)

1 MASTER: By summons filed 23 June 2000 the plaintiff seeks an extension within which to commence proceedings pursuant to s 151D(2) of the Workers Compensation Act (the Act). The plaintiff relied on his affidavit filed 15 June 2000 and the affidavits of his solicitor Darryl Wilson sworn 15 June 2000, Jack O'Toole sworn 8 September 2000 and Etoline Gailbraith sworn 24 January 2001. The defendant relied on the affidavits of Geoffrey Thayne Yarham sworn 27 October 2000 and John Jackson sworn 28 November 2000. 2 The plaintiff claims that he was employed by the defendant as a labourer handling meat and animal products at its premises the Guyra Abattoirs, Guyra (the abattoir). In September 1988 the plaintiff alleges that during the course of his employment with the defendant he contracted a chronic infection known as acute Q-Fever infection. Paragraph 5 of the draft statement of claim gives the specific particulars of negligence. Additionally, the plaintiff attributes the acute inferior myocardial infarct he suffered in 1997 to the Q-Fever infection. He suffers extreme fatigue and has been unable to work since 1992. 3 I carefully observed the plaintiff when he was giving evidence and being cross examined, and I formed the view that his evidence was truthful. For the purposes of this application I have taken the plaintiff's case at its highest and I find the following facts.

(1) The plaintiff was born on 22 May 1969 and is now 31 years of age. He is married with three children.

(2) In June 1987 the plaintiff commenced employment with the defendant. He was employed as a meat pusher pushing carcasses into the chiller or meat boning room. The work involved exposure to blood and animal products. Almost every day his clothing was bloody and messy and he was covered in blood.

(3) On 24 September 1988 the plaintiff was admitted to Tweed Heads district hospital whilst on holidays. He was suffering the symptoms of chills, hot and cold sweats, fever, vomiting, sore throat and he had had a headache for a few days. The plaintiff was fatigued and unable to stand. On the Monday or Tuesday prior to attending the hospital he consulted Dr David Allen a general practitioner in a practice at Tweed Heads. He was given a panadol. As the symptoms kept progressing and he was unable to stand up the plaintiff attended the Tweed Heads hospital. He was initially kept for a few hours and sent home. When the plaintiff still had not recovered he went back to the hospital the next day. He saw Dr Follent who performed x-rays, a urine sample and blood tests and was prescribed tablets. Dr Follent told him to return to his general practitioner.

(4) The plaintiff then attended Dr Darryl Smith, a general practitioner in the same practice as Dr David Allen at Tweed Heads where he had blood taken. The plaintiff was told that the test results would be forwarded to his local general practitioner. The plaintiff did not see any results around that time. He consulted Dr Darryl Smith a further time to obtain another prescription. Dr Smith referred the plaintiff to a specialist and he admitted that the doctor may have told him to come back in two weeks for further tests. By that time the plaintiff's holiday was up so he did not have time to see the specialist and he returned to work. The medical records of Dr Smith were destroyed after 7 years. The hospital records are available as is the referral letter to Dr Smith which question whether the plaintiff had Q-Fever.

(5) Since September 1988 the plaintiff has been continually fatigued, lacking in energy and tires easily. His memory and concentration is also poor.

(6) Between 1988 and 1993 the plaintiff saw either Dr Sharma or Dr David Mark in Guyra if he was ill. In relation to Dr Mark, he no longer practices in the area but the Guyra hospital stores some of his records. There is no list of patients' names and all records must be searched. It is unlikely that these documents exist. Dr Sharma has kept records. He saw the plaintiff once on 4 September 1991 for a severe migraine type headache. The plaintiff's medical records from 1995 onwards are available.

(7) In April 1992 the defendant's abattoir closed down and the plaintiff was retrenched. Although the plaintiff has done some further study he has not worked since that time.

(8) At the time the plaintiff contracted Q-Fever up until the time he left employment with the defendant, he was aware that other employees had become ill with Q-Fever. He was aware that other employees exhibited similar symptoms to those he was suffering and his symptoms were similar to the symptoms he had seen other employees suffer from, and that it was probable he had contracted Q-Fever while working in the abattoirs. However, at that time the plaintiff had been tested for Q-Fever and the result had come back negative. So the plaintiff thought nothing of it.

(9) On 7 June 1997 the plaintiff attended Armidale New England hospital with a retrosternal chest discomfort and was diagnosed as having an inferior infarct.

(10) At the end of 1998 the plaintiff saw an advertisement in the Guyra Argus then proceeded to a holiday in Tweed Heads where he saw his friend Mr Roberts. Mr Roberts had also worked in the abattoirs and is pursuing legal proceedings against the defendant in relation to contracting Q-Fever. Mr Roberts and the plaintiff had a conversation in which Mr Roberts told the plaintiff that his heart attack may have been related to Q-Fever. Mr Roberts had a folder which contained medical reports on Q-Fever. The plaintiff read this report and decided that it was possible he had Q-Fever. After this conversation with Mr Roberts the plaintiff sought legal assistance in relation to the advertisement that he had seen in the Guyra Argus regarding Q-Fever.

(11) In January 1999 the plaintiff contacted his solicitors who then obtained medical reports. The plaintiff was told that he may have a case against his employer because it did not take necessary protective steps to make the work place safe, and it did not have a system in place which would prevent the contraction of Q-Fever. Up until that point the plaintiff was unaware that he would have contracted Q-Fever because of the defendant's negligence. Nor was the plaintiff aware that he had a right for damages in relation to the personal injuries he suffered as a result of contracting Q-Fever.

(12) On 14 June 2000 Dr Baron in his report stated that because the plaintiff aged 28 years had no cardiac risk factors, but developed an occlusion of one of his coronary arteries it was highly likely the causative agent was acute infection with Coxiella Burnetii (Q-Fever). According to Dr Baron the plaintiff has suffered long term consequences of an acute rickettsial infection which is known to particularly affect the lining of his arteries.

(13) On 10 February 2000 the plaintiff was tested for Coxiella DNA, as the result proved positive. "Results Rickettsia - Coxiella burnetii (Q Fever) IgG Phase 1 Positive: Evidence of IgG Phase 1 antibodies Serology: Rickettsia - Coxiella burnetii (Q Fever) IgG Phase 2 Low Positive: Specific IgG Phase 2 antibodies present Serology: Suggestive of recent or past infection Coxiella DNA: Positive" 4 I turn now to consider whether leave to commence proceedings should be granted. Section 151D(2) of the Act provides: "a person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay for compensation more than three years after the date on which the injury was received except with the leave of the court in which the proceedings are to be taken." 5 The authorities clearly establish that the onus is on an applicant for extension of time to satisfy the court that it is just and reasonable to extend the time, or as it has often been expressed, that justice is best served if the applicant be given leave to proceed. The starting point for examination of the way in which this discretion should be exercised is Salido v Nominal Defendant (1993) 32 NSWLR 524. Salido was recently considered by the Court of Appeal in light of the intervening High Court decision of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR; 139 ALR 1 in Holt v Wynter [2000] NSWCA 143; (1999-2000) 49 NSWLR 128. The Court of Appeal held that the effect of the High Court decision in Taylor is that an application for an extension of time under the limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. 6 The exposure to Q-Fever occurred on 24 September 1988. The notice of motion was filed on 23 June 2000. It was only in 1999 that the plaintiff sought legal advise and was diagnosed as having suffered from Q-Fever. The defendant did not submit that the plaintiff did not have a prima facie case or a real case to advance. In any event, it is my view that he has a real case to advance. 7 However, the defendant submitted that it will suffer actual prejudice because a witness is no longer available to give evidence and some vital medical and employment records are missing because they have either been lost or destroyed.

(A) Medical records 8 In relation to the medical records, when the symptoms first appeared, the plaintiff was on holidays in Tweed Heads. He attended upon a local general practitioner named Dr David Allen who prescribed a panadol and told him to rest. The symptoms continued for three more days. Dr Allen's records have been destroyed. The plaintiff attended Tweed River Hospital. Some tests were done and after a few hours he was sent home. He returned to the hospital the next day and Dr Follent prescribed some tablets and took some blood. He suspected that the plaintiff may have contracted Q-Fever. The hospital records are available. A referral from a specialist was written to Dr Smith requesting a follow up blood test. Dr Follent has died but his notes remain. The plaintiff did not attend Dr Smith as he was due back at work and did not want to lose his job. 9 The defendant referred to page 8 of the report of Dr Sullivan dated 4 April 2000 where he stated that the establishment of a temporal link between the two conditions is an essential requirement for making the diagnosis of a post Q-Fever debility state. In a person complaining of abnormal fatigue it is not sufficient to establish that a bout of acute Q-Fever has occurred at some time in the past. At least within the limitations of current technology, the diagnosis of post Q-Fever debility state can only be sustained, if the symptoms and disabilities complained of began during or immediately after the acute episode. 10 The defendant submitted that Dr Smith's records are vital because they would be able to confirm whether or not the plaintiff had complained of fatigue in an acute bout of Q-Fever. The plaintiff's evidence is that he did not return to Dr Smith during this possible acute phase but got on with his work. If he did not return to Dr Smith, there would be nothing in the notes that would be relevant but the defendant will not have the opportunity to test whether the plaintiff's recollection is correct. However there are enough medical records available to test the plaintiff's credibility and his version of his medical history. 11 Between 1988 and 1993 the plaintiff consulted either Dr David Mark or Dr Sharma in Guyra if he was sick. As previously stated Dr Mark no longer practices in the Guyra area. Guyra hospital holds some of his records in storage but they are not indexed. It is believed that the plaintiff's records do not form part of these records. Hence, Dr Mark's records are unavailable. Dr Sharma in his letter of 18 January 2001 stated that the plaintiff consulted him once on 4 September 1991 for a severe migraine type headache. From 1993 to date the plaintiff's medical records are available.

(B) Employment records 12 In 1991 the defendant became a wholly owned subsidiary of Australia Meat Holdings (AMH). The actual abattoir is a rabbit farm. Many of the records were transferred to AMH's head office at 175 Riverview Road, Dinmore, but not all the records that would normally have been available in an operating plant. In 1993 many records were destroyed by water damage when the building which contained a substantial number of records became unroofed. In 1996 a culling took place and a substantial number of records were also lost. Due to these events only one third of the defendant's records still remain. Records lost during this time include personnel files, health and safety records and many past injury claims which were made. In May 1996 the plant ceased to be operational and the company ceased operating. Nevertheless, about one third of the health and safety documents still exist. 13 Mr Geoffrey Yarham an employee of AMH is available to give evidence. Mr McAuliffe who was the manager of the defendant from a 1989 to at least 1994 and Mr Pavey who became the manager after Mr McAuliffe left are available to give evidence. Also available are Mr Col Berridge the paymaster/personnel officer, Mr Clive Brazier the slaughter floor foreman, Mr Shane Corry a boning room supervisor., Mr Terry Mulligan foreman of the load-out, Mr Erroll Archibald the assistant manager, Mr John Davis the by products manager and Mr Keith Parry. The first aid officer who was the first point of call for any employee seeking treatment has since died. Mr Jackson was the general manager of the Guyra abattoirs between 1 January 1988 to 1990, and was responsible for the day to day running of the abattoir. Mr Jackson is available to give evidence but is not confident that he can make statements as to specific events that occurred between 1988 and 1990. There are some contemporaneous notes available, namely those of Dr Cullen of 24 November 1988, correspondence from the Department of Health dated 15 November 1988 and some other relevant documents. There is available material concerning the problems associated with zoonotic diseases including Q-Fever, and the code of practice that was then used by management and employees in abattoir. Nevertheless, in relation to the defendant's records I agree with Blanch DCJ, in Robert v Guyra Meat Packaging Pty Limited (unreported 25 September 1998) where he stated that it is abundantly clear that a number of people who occupied significant positions in the company at the relevant times are available to give evidence. 14 Even though the records of Dr Smith are not available and the lack of some of the defendant's records (referred to above), I am not satisfied that the defendant would suffer significant prejudice should the application be granted. The plaintiff has discharged his onus and I am satisfied that it is just and reasonable to extend the limitation period. Leave pursuant to s 151D of the Workers Compensation Act is granted. 15 Costs are discretionary. The appropriate order is that costs be costs in the cause. 16 The orders I make are:

(1) Leave is granted to the plaintiff to commence proceedings against the defendant for personal injuries in relation to the alleged contraction of Q-Fever in 1988.

(2) The statement of claim is to be filed and served within 14 days.

(3) Costs are costs in the cause. **********

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