Wednesday 26 November 2003
CSR LIMITED & ANOR v JOHN LEONARD THOMPSON
JOHN LEONARD THOMPSON v CSR LIMITED & ANOR
Judgment
1 HANDLEY JA: I agree with Ipp JA.
2 SHELLER JA: I agree with Ipp JA.
3 IPP JA: This is an appeal and an application for leave to cross-appeal on "points of law" (under s 32(1) of the Dust Diseases Tribunal Act 1989) against a judgment of O'Meally P in the Dust Diseases Tribunal.
4 Between 1960 and 1963, the respondent was employed in a factory owned and operated by the second appellant. He was there exposed to and inhaled asbestos dust and fibre. During that period the first appellant supplied asbestos to the second appellant.
5 In June 2002 the respondent first began to experience symptoms of mesothelioma. In August 2002 a diagnosis of malignant mesothelioma was made. The parties agreed that the respondent is likely to die from the mesothelioma on 13 February 2004.
6 The appellants admitted liability to the respondent for damages, recoverable at law, caused by the mesothelioma.
7 O'Meally P held that the respondent was entitled to damages in the amount of $465,899.49. Included in this sum was the amount of $165,480, being the respondent's loss of capacity to care for his disabled wife. This sum was awarded even though the respondent had - in the past - provided such care gratuitously. This head of damages is commonly known as Sullivan v Gordon damages, following Sullivan v Gordon (1999) 47 NSWLR 319 where damage of this kind was held to be recoverable.
8 Sullivan v Gordon held that this head of damages is related to damages for gratuitous care awarded in accordance with Griffiths v Kerkemeyer (1977) 139 CLR 161. That is to say, the loss is loss of capacity rather than financial loss as such.
9 The appellants appeal on the ground that O'Meally P wrongly allowed Sullivan v Gordon damages. They rely on two grounds of appeal. The first ground is simply that Sullivan v Gordon was wrongly decided. The second ground is based on the proposition that a State statute, the Wrongs Act 1936 (SA), alters the common law as applied in Sullivan v Gordon. The South Australian Wrongs Act is relevant, as O'Meally P held that "the negligence in respect of which the [respondent] sues occurred wholly within the State of South Australia". Accordingly, the substantive law of South Australia applies in determining the respondent's rights: John Pfeiffer Pty Limited v Rogerson (2002) 203 CLR 503. The respondent submits that s 33(1) of the Wrongs Act alters the common law of Australia, insofar as it applies in South Australia, in a way that precludes the application of Sullivan v Gordon.
10 I turn to the first ground of appeal.
11 The appellants submit that the decisions of the High Court since Griffiths v Kerkemeyer suggest that the principle applied in that case should not be extended: Kars v Kars (1996) 187 CLR 354 and Grincelis v House (2000) 201 CLR 321. See also Diamond v Simpson (No 1) (2003) Aust Torts Reports 81-695. They draw attention to the fact that Sullivan v Gordon was not followed by a majority of the Full Court of South Australia in Weinert v Schmidt (2002) 84 SASR 307; that being particularly relevant as (for the reasons stated) the substantive law of South Australia applies.
12 In my view, however, the appellants should not be granted leave to re-argue Sullivan v Gordon in this Court. In that case a five judge bench was specially constituted to determine the issue. The judgment of the Court, in effect, followed the decision of the Queensland Court of Appeal in Sturch v Willmott (1997) 2 Qd R 310. It has since been followed in Western Australia (Easther v Amaca Pty Limited [2001] WASC 328) and in the ACT (Brown v Willington [2001] ACTSC 100). In my view, it would be undesirable for this Court, so soon after a specially constituted five judge bench has sought to resolve the issue, to allow the question to be re-opened. Accordingly, for this policy reason, I would not grant leave to the appellants to argue that Sullivan v Gordon is wrong. It does not, of course, follow that this necessarily means that I think that Sullivan v Gordon is correct.
13 I turn to the second ground.
14 Section 33 of the South Australian Wrongs Act provides:
"33(1) Where a person causes injury to another by wrongful act, neglect or default, he shall (whether or not the injury results in death) be liable in damages to the wife of the injured person for loss or injury suffered by her as a result of the loss or impairment of the consortium of husband and wife.
(2) The damages shall be assessed in the same manner as upon a claim by a husband for damages in tort in respect of loss or impairment of consortium".
15 The appellants submit:
"The presence of the statutory entitlement of the wife to sue militates against the extension, in South Australia, of the spouse's entitlement to damages along the lines adopted in Sullivan v Gordon ".
16 The appellants had difficulty in articulating why s 33 should affect the reasoning in Sullivan v Gordon. It seems to me that the only possible relevance that s 33 might have is that, in certain circumstances, it might give rise to double payment by a defendant.
17 The respondent, however, drew attention to Sloan v Kirby (1979) 20 SASR 263 at 276 to 277 and Kite v Malycha (1998) 71 SASR 321 at 352 where it was held that s 33 did not entitle a wife to recover damages after the death of her husband. That is because, in terms of s 33(2), the damages of the wife are to be assessed "in the same manner as upon a claim by a husband for damages in tort in respect of loss or impairment of consortium". The Sullivan v Gordon damages awarded by O'Meally P were for the period after the notional death of the respondent. Accordingly, there is no potential for overlap between the claim for such damages made by the respondent and any claim that might later be brought by his wife under s 33 of the Wrongs Act.
18 It seems to me, nevertheless, that there is room for some potential overlap by reason of Pt 2 of the Wrongs Act 1936 (SA) (which legislates for Lord Campbell's Act type provisions). The overlap might occur in this way. During his lifetime a plaintiff might claim and be awarded Sullivan v Gordon damages. He might then apply those damages otherwise than in connection with the provision of care for his wife. Upon his death, his wife might then claim damages for loss of support under Pt 2 of the Wrongs Act.
19 How such a situation is to be resolved is not yet settled. It may be that, should consecutive suits arise in the circumstances postulated, the second claim should be reduced to the extent necessary to avoid double recovery (see Thorne v Strohfeld (1997) 1 Qd R 540 at 542 to 543 and Read v Great Eastern Railway Company (1868) LR3QB 555). It is, however, unnecessary to comment further on this question. It was not raised by counsel for any of the parties and does not arise in the present case. There is no suggestion of an overlap or double counting in regard to the respondent's claim.
20 In the circumstances, I see no reason why s 33 of the Wrongs Act should affect the common law recognition of a Sullivan v Gordon head of damages. I would dismiss the second ground of appeal.
21 I turn now to the application for leave to cross-appeal.
22 This application concerns O'Meally P's dismissal of a claim made by the respondent for damages arising out of the fear of suffering mesothelioma that he experienced before he in fact contracted the disease.
23 The facts found by his Honour relating to the damages claimed for fear are sparse. His Honour observed that the respondent had a friend and an uncle who died of asbestos disease, and stated:
"Following their deaths, and because he considered his exposure to asbestos to be at a level greater than theirs, he had a fear of contracting mesothelioma or another asbestos related disease. … The onset of his fear ante-dated the contraction of mesothelioma by something in the order of 14 years".
24 The respondent's fear did not give rise to a recognisable psychiatric illness.
25 Mr Joseph SC, who together with Mr Catsanos, appeared for the respondent, put the case for the respondent in two ways.
26 Firstly, he submitted that from the moment when the respondent's cause of action was complete (that is, in August 2002 when mesothelioma was diagnosed) the respondent was entitled to recover all damage, of whatever kind, flowing from the appellants' negligent acts, irrespective of whether the damage was incurred before or after the cause of action was complete.
27 In other words, Mr Joseph submitted that, once the respondent was diagnosed as having malignant mesothelioma, he suffered physical harm and his cause of action was complete. That being so, he is entitled to recover damages for mental harm even though the mental harm was experienced before the physical harm was sustained, was unconnected to the physical harm, and did not involve a recognised psychiatric illness.
28 According to Mr Joseph, this argument does not rest on the mental harm being "parasitic" on the physical harm. He submitted that the principle is simply that, once a cause of action is established, a plaintiff is entitled to recover all damages sustained "as part of the consequential losses resulting from the tortious conduct", including damages in respect of fear of contracting a disease, even if the cause of action arose after the fear was experienced.
29 The alternative argument is that the respondent's cause of action arose before he began to experience the fear. This argument rests on the proposition that the respondent, unbeknown to any person, had contracted mesothelioma before 1988 when he first began to experience the fear. On this basis, the physical harm (that is, contracting the mesothelioma) had been sustained before the fear manifested itself. It was submitted that, if these facts were made out, the case so put would be entirely orthodox.
30 I turn to the first argument.
31 Mr Joseph submitted that the first argument is supported by the decision of the United States Supreme Court in Norfolk and Western Railway Company v Ayers (Supreme Court of the United States, No 01-963, unreported, 10 March 2003).
32 Norfolk and Western Railway Company v Ayers concerned employees of the Norfolk and Western Railway Company ("Norfolk") who alleged that Norfolk had negligently exposed them to asbestos and thereby caused them to contract asbestosis. They sued for damages, including damages for mental anguish resulting from their fear of contracting cancer.
33 Ginsburg J delivered the opinion of the Supreme Court. On my reading of her Honour's judgment, it does not support the argument advanced on the respondent's behalf. The relevant finding of the Court appears from the following statement by Ginsburg J:
"In resolving the first issue, we follow the line drawn by Metro-North Commuter Railway Company v Buckley, 521 US 424 (1997), a decision that relied on and complemented Consolidated Rail Corporation v Gottshall , 512 US 532 (1994). In Metro-North , we held that emotional distress damages may not be recovered under the [US Federal Employers' Liability Act ("FELA")] by disease-free asbestos-exposed workers; in contrast, we observed, workers who 'suffe[r] from a disease' (here, asbestosis) may 'recover for related negligently caused emotional distress' … We declined to blur, blend or reconfigure our FELA jurisprudence in the manner urged by the practitioner; instead, we adhere to the clear line our recent decisions delineate. Accordingly, we hold that mental anguish damages resulting from the fear of developing cancer may be recovered under the FELA by a railroad worker suffering from the actionable injury asbestosis caused by work-related exposure to asbestos".
34 As I understand her Honour's observations, the reasoning of the Court was based on the proposition that, once it is established that a plaintiff is suffering from asbestosis caused by the negligence of the defendant, that plaintiff may recover damages for mental anguish resulting from the fear that, in addition to suffering from asbestosis, he or she may also develop cancer.
35 The point to be made is that, in Norfolk, the plaintiffs' fear of developing cancer arose after they had contracted asbestosis. Norfolk is not a case where the fear preceded any negligently caused physical injury.
36 Ginsburg J treated the plaintiffs' claims for fear as being "parasitic" on the physical injury of asbestosis. She stated:
"Unlike stand-alone claims for negligently inflicted emotional distress, claims for pain and suffering associated with, or 'parasitic' on, a physical injury are traditionally compensable. The Re-statement (Second) of Torts s456 (1963-1964) … states the general rule:
'If the actor's negligent conduct has so caused any bodily harm to another as to make him liable for it, the actor is also subject to liability for (a) fright, shock, or other emotional disturbance resulting from the bodily harm or from the conduct which causes it … '". (emphasis added)
37 The reasons of Ginsburg J do not suggest that a plaintiff might be able to recover for fear of injury before any physical injury was sustained. Indeed, her Honour made remarks to the contrary, observing:
"Physically injured plaintiffs, it is now recognised, may recover for 'reasonable fears' of a future disease. D Dobbs, Law of Torts , 822 (2000) at 844. As a classic example, plaintiffs bitten by dogs succeeded in gaining recovery, not only for the pain of the wound but also for their fear that the bite would someday result in rabies or tetanus. The wound might heal, but '[t]he ghost of hydrophobia is raised, not to down [sic] during the lifetime of the victim' The Lord Derby , 17 F265, 267 (ED La 1883)". (emphasis added)
38 Her Honour did say:
"Once found liable for 'any bodily harm', a negligent actor is answerable in damages for emotional disturbance 'resulting from the bodily harm or from the conduct which causes it' Restatement s456(a)(emphasis added)".