Oram v BHP Mitsui Coal Pty Ltd & Anor [2014] QSC 230

McMeekin J:

Prejudice

[87] The relevant principles were explained in Brisbane South Regional Health Authority v Taylor.[68] Each member of the Court was of the view that having satisfied the two conditions laid down in s 31(2) of the Act there was no presumptive right to an order. The applicant still bore the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour. The test that needed to be satisfied was expressed in slightly different terms in the judgments.

[88] Toohey and Gummow JJ said: “The real question is whether the delay has made the chances of a fair trial unlikely.”[69]

[89] Dawson J said: “I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation.”

[90] Kirby J pointed out, after recitation of authority, that “once the preconditions are made out, the positive burden on the applicant would not be one of any great severity. But if, weighing the countervailing evidence, the judge is uncertain or unconvinced that the provision of an extension would be just, it should be refused.”[70]

[91] McHugh J, with whom Dawson J agreed, said:

“The object of the discretion, to use the words of Dixon CJ in a similar context, ‘is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.’ In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.”[71]

[92] Effectively BHP argues two things. First, there is specific prejudice shown in that medical records are no longer available and it is not shown that any witness has any relevant recollection of the plaintiff over the last 20 years. Secondly, there is general presumptive prejudice given the long lapse of time since the onset of the condition.

[93] The issues that may be agitated at trial are of course broader than those relevant here. BHP limited its arguments on specific prejudice to the issue of causation of, and perhaps the extent of, the accepted psychiatric illness. It submitted that to properly defend the case it would require access to Mr Oram’s medical records going back to a time preceding the mine explosion. It is common ground that those records prior to 2010 are not available, or at least that the plaintiff, who bears the onus, cannot show that they are available.

[94] As well BHP lead evidence from Dr Nothling, an experienced psychiatrist, that the determination of “an accurate diagnosis of the causation and extent of the psychiatric injury is an extremely difficult exercise” at the best of times but particularly in the absence of medical records and evidence of the recollections of those who knew the plaintiff over the intervening years from 1994.

[95] On presumptive prejudice BHP relied on its lack of knowledge of any claim for nearly 18 years, and referred to the well known passage in McHugh J’s judgment in Taylor:

“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates.’ Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”[72]

[96] Mr Oram rarely attended any medical practitioners over the years. His Medicare records are available and they demonstrate that much. So are hospital records from Moura where he has lived continuously since 1994 and indeed most of his life. But the Medicare records do make plain that there were occasional visits, principally to a Dr Belongoff, and the doctor’s records of what transpired at those visits cannot be produced. Dr Belongoff remains in practise now in Rockhampton and his surgery has been contacted, but he apparently cannot produce records prior to 2010. No statement as to his personal recollections is proffered.

[97] Mr Newton, who appeared for Mr Oram, argued that it was still possible that records may become available with further searches and witnesses may be able to be produced who “might” assist, but that tends to emphasise the problem.

[98] No witness statements are produced by the plaintiff at all let alone going to any relevant issue. The solicitors for BHP have sought such statements but none are produced. Presumably witnesses do exist who have known Mr Oram all his life – given that he has lived principally in the one place, and that a small country town, it would be surprising if there were not many such witnesses. But it is unknown what they can say about any relevant issue.

[99] Similarly Mr Oram’s wife has not co-operated with a statement. She, it might be expected, would have good knowledge of relevant matters at least since their marriage in 2002 and perhaps since they met. While her non co-operation may be explicable that does not assist Mr Oram and his discharge of the onus on him.

[100] Psychiatrists when taxed with questions from lawyers concerning the cause of illnesses within their specialty usually advise that the cause of any such illness is “multifactorial.” And I suspect that most psychiatrists would fairly readily accept that a disaster of the proportions that occurred here, with the death of 11 work mates, associated with the guilt feelings described by Mr Oram, would be a probable cause of a subsequent psychiatric illness. But BHP is legitimately entitled to attack that casual link.

[101] A further difficulty for Mr Oram is that one issue of particular significance to a defendant in the shoes of BHP here is whether the various potential causes, eg family breakup, excessive drinking, prior disposition, now unknown and unrecognised work or other events, can be sufficiently disentangled to show that the plaintiff was very likely to have suffered from the condition complained of irrespective of the negligence of the defendant: cf. Watts v Rake[73]; Purkess v Crittenden.[74] That analysis involves a legitimate forensic attack on the assessment of proper damages. It cannot occur here in the absence of reasonably thorough evidence of Mr Oram’s medical history and reasonably cogent evidence of his character and behaviour over the years. And there would still reman the difficulty of not knowing what has been forgotten.

[102] In my view BHP has shown both specific and presumptive prejudice. The prospect of prejudice is sufficiently great that I cannot be satisfied that a fair trial can be held.

[103] It follows that Mr Oram has not discharged the burden on him even if it be of “no great severity” as Kirby J maintained.

 

David Cormack – Brisbane Barrister & Mediator

 

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