Dickin v BHP Billiton Pty Ltd

5. On 24 December 2003 the plaintiff filed an amended statement of claim pursuant to orders made by a Master on 2 December that year. The original statement of claim was expanded to raise the following allegations:

"9. The Plaintiff seeks an extension of time pursuant to section 48 of the Limitation of Actions Act 1936 (S.A.) ('the Act'). 10. The Plaintiff ascertained the following facts material to his case in about. December 2001:

(a) the Defendant was advised in about 1968 of the dangers of asbestos and the need to protect its employees from asbestos dust and fibres;

(b) the dangers of asbestos were first recognised at the beginning of the 20th century and knowledge of the dangers of asbestos grew rapidly during the 1920s, 1930s and 1940s; and

(c) by the time the Plaintiff commenced work with the Defendant in about 1969, the dangers of exposure to asbestos, even in quite small amounts, were well known.

11. The Plaintiff commenced this proceeding on 23 November 2001, within 12 months of ascertaining the material facts referred to in paragraph 10 above."

13. This amendment represented an obvious attempt to meet the problem that, by operation of s. 36 of the Limitation of Actions Act 1936 (SA) ("the Act"), the plaintiff's action was open to the defence that it was statute-barred (the period of limitation being three years, and thus a period which expired at latest three years after mid-1988 when the plaintiff's lung cancer was treated). It was an attempt to bring the situation within the circumstances addressed by s. 48 of the Act.

16. On 2 April this year the defendant obtained leave from a Master to file a further amended defence. The document, filed that day, alleged the following:

"11. Save that it admits that section 48 of the Limitation of Actions Act 1936 (SA) provides that the Court may grant an extension of time, the Defendant otherwise denies that the plaintiff is entitled to such an extension of time. 12. It denies the allegations contained in paragraph 10 thereof. 13. Save that it admits that the plaintiff commenced this proceeding on 23 November 2001, it otherwise denies the allegations contained in paragraph 11 thereof. 14. Further and alternatively, in the premises the plaintiff did not institute this action within 12 months after the ascertainment of the material facts alleged in paragraph 10 of the Amended Statement of Claim within the meaning of s 48(3)(b)(i) of the Limitations of Actions Act 1936 (SA). 15. By reason of the matters set out in paragraph 14 hereof the Court is not empowered to extend a limitation of time prescribed by the Limitations of Actions Act 1936 (SA)."

"2. The questions raised by paragraphs 9, 10 and 11 of the amended statement of claim and paragraphs 11 to 15 of the further amended defence be tried as preliminary question pursuant to Rule 47.04."

24. It is the trial of the preliminary questions thus identified which is now before the court; or, more accurately, the trial of questions more clearly articulated in argument.

27. The trial proceeded upon the following material: an affidavit of the plaintiff sworn 6 May 2004; an exhibit to that affidavit, being a report of the 1987-1993 treating respiratory physician; and a report by Dr K.J. Wilson dated 23 December 1968 concerning asbestos hazards at the defendant's Whyalla Shipbuilding Works, a copy of which was forwarded to the works manager under cover of letter dated 15 January 1969.

30. The burden of the plaintiff's evidence, relevantly for present purposes, made good the allegations pleaded by paragraph 10 of the amended statement of claim. His evidence was to the effect that he was informed about the matters there alleged by an industrial hygienist who consulted with him with respect to this proceeding on 12 December 2001. Up to that time, according to his evidence, his understanding of what the defendant knew at pertinent times about the risks of asbestos exposure had been very limited. It was his understanding that in 1974 one of the unions whose members worked at the shipbuilding yard had expressed concern to management about the allegedly harmful qualities of a particular material used by those members in their work at that site. He knew also, from 1988, that his own doctors implicated his asbestos exposure in the defendant's employment as a possible cause of his lung cancer. But that, of course, said nothing as to the defendant's knowledge of the health risks of exposure to asbestos in the period 1969 to 1978.

33. The plaintiff's evidence aside, Dr Wilson's report gave some support for the substance of the allegation raised by paragraph 10(a) of the amended statement of claim.

36. Section 48(1) of the Act empowers a court to extend time in an appropriate case. This court may exercise that power. Sub-section (3)(b)(i) is of prime importance. Relevantly it says this:

(b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied -

(i) that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within 12 months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff;

. . .

and that in all the circumstances of the case it is just to grant the extension of time."

43. It is necessary to note a number of aspects of that provision. First, the relevant concept is of "facts material to the plaintiff's case". Second, what is pertinent is ascertainment of those facts by the plaintiff. Third, one of the situations which is embraced is ascertainment of those facts after the expiration of the period of limitation. Fourth, there is a requirement that "the action was instituted within 12 months after the ascertainment of those facts by the plaintiff". Fifth, the court must be satisfied that in all the circumstances of the case it would be just to grant the extension of time.

46. In Reid v AGCO Australia Ltd & Ors[2], I analysed the meaning of the phrase "facts material to the plaintiff's case"[3]. I adhere to that analysis which, according to the position jointly adopted by counsel, remains presently relevant. Of that position, more in a moment.

49. Against the background of the joint agreement, counsel for the defendant did not submit that the facts pleaded by paragraph 10 of the amended statement of claim did not constitute "facts material to the plaintiff's case" within the meaning of s. 48(3)(b)(i). Rightly so, upon an assumption that "facts material" attracted the meaning described in Reid v AGCO; for the matters pleaded to have been late ascertained are certainly of considerable potential importance a propos proof of the defendant's negligence; and as well with respect to the pleaded entitlement to exemplary damages.

52. Now I should briefly mention the position jointly adopted by counsel to which I referred a few moments ago. Neither counsel referred in his submissions to amendments made to s. 48(3) by the Law Reform (Ipp Recommendations) Act 2004 (SA)[4]. If the amendments had applied they would have had application to two aspects of s. 48(3)(b): first, the conception of "facts material to the plaintiff's case"; second, the operation of the residual discretion.

55. I assumed in the course of the hearing that counsel had not addressed the amendments because they had respectively concluded that the same did not apply in light of the transitional provision contained in Schedule 1 of the amending Act. From abundance of caution, however, I enquired before delivering these Reasons why it was that counsel had not mentioned the amendments. Counsel informed me that they did, in fact, take the position that the transitional provision made the amendments irrelevant. I will decide this matter upon the assumption that such position is correct. I do not decide whether or not it is correct.

58. Against the background described, counsel for the defendant focused in his submissions upon the chronology of events. So, he noted that the proceeding had been commenced on 23 November 2001, and that according to the evidence, amplifying para 10 of the amended statement of claim, the material facts were ascertained by the plaintiff on 12 December that year. Counsel for the defendant submitted that in those circumstances it could not be said that "the action was instituted within 12 months after the ascertainment of those facts". Section 48(3)(b)(i) required the facts to be ascertained and the proceeding to be commenced thereafter. Counsel relied in support of that proposition upon a tangential reference to s. 48 in Napolitano v Coyle[5] and upon the judgment of then District Court Judge Burley in Syrett v Vorbach[6]. Counsel also relied upon a fragment of my judgment in Reid[7].

61. According to counsel's argument, the plain words of s. 48(3)(b)(i) compelled the reading for which he contended. It was beside the point that such reading might create inconvenience or harshness. Probably the plaintiff, on ascertaining the particular facts, could have discontinued and then commenced another action afresh, so as to avoid the consequence for which counsel contended. But that created no absurdity such as should preclude the words of the sub-section being given their plain meaning.

64. Counsel for the plaintiff submitted, to the contrary, that s. 48(3)(b)(i) does not require the proceeding to be commenced after the particular facts are ascertained; but only that the proceeding be commenced within one year after such ascertainment. The sub-section simply creates a window that closes a year after facts are ascertained. Within that year the proceeding must be commenced. Counsel relied upon the judgments of the majority of the Northern Territory Court of Appeal in Ward v Walton[8] and upon the judgment of O'Loughlin J in Cubillo & Anor v The Commonwealth (No. 2)[9], each of which concerned s. 44(3)(b)(i) of the Limitation Act 1981 (NT), a sub-section using the same language as s. 48(3)(b)(i) of the South Australian Act. Counsel relied also upon Susiatin v Minister for Immigration and Multicultural Affairs[10] and Plumor Pty Ltd v Handley[11], in each of which cases the construction placed upon the preposition "within" by Asche CJ in Ward v Walton was adopted. Counsel further submitted that it was relevant to consider the aim of the pertinent legislation; and what he claimed would be the anomalous consequences if the defendant's construction were to be adopted.

67. Counsel for the defendant, in reply, pressed upon me the submission that Ward and Cubillo were wrongly decided. In the event that I so concluded, he submitted, I was not obliged to follow them.

70. In my opinion, the words of s. 48(3)(b)(i) do not plainly say what the defendant's counsel contended; rather the contrary. Further, I consider that Ward and Cubillo, so far as is presently pertinent, were rightly decided. They suggest a reading of s. 48(3)(b)(i) favourable to the plaintiff. Napolitano does not stand in the way of that construction. Syrett proceeded upon a view of what had been said in Napolitano that does not stand examination. Each of Susiatin and Plumor provides some additional support for the conclusion that Ward was correctly decided. I should explain these conclusions.

73. First, the defendant's submission really proposes that the pertinent sub-section be read as if it required that action be instituted after the ascertainment of the facts by the plaintiff and within 12 months of such ascertainment. But that is not what the sub-section says. The guiding concept is that the action must be instituted within 12 months after the facts are ascertained. It is the ascertainment of facts which sets the 12-month period running. Naturally, the period is prospective from the time when the facts were ascertained; hence "after".

76. Second, the judgment of Asche CJ in Ward shows that "within" has often enough been read to mean "before the end of". "Within" can be so read in the context of s. 48(3)(b)(i) without doing any violence to the word "after", having regard to the import of the latter word as I described it a moment ago.

79. Third, it seems to me that Asche CJ gave a sensible explanation why reading the provision to set an outer limit for commencement of a proceeding would sufficiently preclude the mischief constituted by undue delay in bringing a proceeding after the late ascertainment of material facts[12].

82. Fourth, O'Loughlin J, in Cubillo, was evidently pressed that he was not bound to follow Ward; and implicitly he accepted this was so[13].

85. The argument advanced in the present matter, particularly focusing upon the word "after", was put to the learned judge, who nonetheless decided to adhere to his interlocutory decision that he should follow the majority in Ward. He said of an opposite result that it "would amount to an injustice"; and he gave what I consider was a cogent example to make good the point. He made the point also, though not in the present connection, that it is unnecessary that the material fact complete the cause of action.[14] That this is so is compatible with a proceeding being commenced before ascertainment of a material fact.

88. Fifth, each of Susiatin and Plumor is a contemporary authority providing an example of "within" being given a meaning such as was assigned it in Ward. In Plumor, I add, McLelland CJ in Eq, specifically rejected the submission that a requirement that a purchaser apply for Foreign Investment Review Board consent within 24 hours of the date of a contract meant that the making of the contract must precede the application.[15]

91. Sixth, in Napolitano, Bray CJ referred to the 1972 and 1975 versions of what is now s. 48. He said that for the purposes of that case there was no material difference between the provisions. On the footing that, by the 1972 version, it seemed clear that the facts must be ascertained before the action was commenced, counsel for the defendant argued that the Chief Justice had said, in substance, that the language of the 1975 version should be so understood. But that is not so, for the question of commencement before a material fact was ascertained did not there arise.[16]

94. Seventh, in Syrett the plaintiff sought to rely upon facts ascertained both before and after the proceeding was commenced. Judge Burley held that the plaintiff could not rely upon the latter. His Honour concluded that under the 1972 version of s. 48 the fact must have been ascertained before the proceeding was commenced. He built upon that conclusion by relying upon the remarks of Bray CJ in Napolitano that there was no material difference between the 1972 and 1975 provisions. For reasons indicated, nothing pertinent could be made of the remarks of the learned Chief Justice in that connection. I should add that Judge Burley also relied upon the fact that, by s. 48(4), the initiating process must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to the section. But I concluded in Reid that process could be subsequently endorsed; and indeed that is what happened by order of the Master in this case.

97. The second area of contest before me concerned the exercise of the residual discretion vested in the Court by s. 48(3). Counsel for the defendant submitted that I should not be satisfied in all the circumstances of the case that it was just to grant an extension of time. Counsel for the plaintiff submitted to the contrary.

100. Counsel for the defendant particularly relied upon the extent of delay in commencement - it was 13 years or so after accrual of the cause of action. He focused also upon the plaintiff's explanation for the delay, submitting that the plaintiff had been far from diligent in his dealings with solicitors over the years. He acknowledged hardship to the plaintiff if extension of time was denied. As to prejudice to his client, counsel fairly stated that he did not rely upon any specific prejudice; but rather relied upon the general prejudice flowing from the delay in initiating the proceeding.

103. Counsel for the plaintiff acknowledged that the delay in commencement had been substantial, and that this must be regarded as having been prejudicial to the defendant in a general way. He submitted, however, that the plaintiff had made reasonable attempts over the years to obtain legal advice and that there would be hardship to the plaintiff if his right to proceed was denied. He submitted also that this defendant was in a somewhat different position to other defendants confronted by late made claims. It was peculiarly able to meet the plaintiff's claim. It was shown to have had particular knowledge of the industrial hazard of asbestos exposure as early as January 1969, and on the plaintiff's evidence had been further put on notice of asbestos hazards in 1974. Further, it had set up an asbestos register of former employees in the 90s, it had been provided with a report concerning the plaintiff from his treating physician in 1994, the plaintiff's treating medical history was inferentially available, and the public record showed that the defendant must have prepared a defence to a series of asbestos claims emanating from the Whyalla shipbuilding yard over the last six years.

106. I discussed the operation of the residual discretion in Reid[17]. I adhere to that analysis in considering the present case.

109. The matter is doubtful, but in the end I have been persuaded that it is just in all the circumstances to exercise my discretion in the plaintiff's favour.

112. The consideration most running against the plaintiff is the sheer period of delay in instituting the proceeding. It can fairly be said that by 1988 the plaintiff knew that he had lung cancer, knew that one possible cause - according to his doctors - was his exposure to asbestos in the defendant's employ, and knew or believed that the defendant had been told by a union in 1974 that one material used by some workers was hazardous to health.

115. As against that, however, the plaintiff did consult solicitors in the late 1980s - apparently for the most part in connection with his entitlement under an accident and sickness policy, but also with respect to rights he might have had against the defendant. He continued to see those solicitors, until, it seems, about 1993. He was told, he said, a propos the defendant, that cases were in train, and to just wait. I should think it was very likely that he was so advised; and that such advice was sensible. He should not be blamed for taking it. Common law litigation involving asbestos exposure, it is a matter of notoriety, was still in its infancy in the late 1980s and early 90s. Particularly that was so with respect to lung cancer. Contrast mesothelioma.

118. It is next to be noted that the plaintiff attended the defendant in 1994, essentially in connection with the asbestos register that the defendant was then compiling. He was advised, entirely sensibly and humanely, to consult a solicitor. He did so, he said, and was fobbed off. The register, as I apprehend it, was designed to set up a regime whereby former workers would have their lungs periodically x-rayed and their health periodically assessed. The plaintiff already had undergone radical surgery to a lung. He presented, then, something of a dilemma. That may explain the circumstances in which he was fobbed off. Be that as may, I do not think it is surprising that he desisted from attempts to assert rights against the defendant until he moved to Victoria and saw his present solicitors' "no win no fee" advertisement.

121. What I have said in explaining the plaintiff's conduct does not detract from the fact of his delay in commencement. It does, however, set his delay in a context which is not altogether adverse to him.

124. It is next the fact that the plaintiff will suffer hardship if he is left without remedy. He suffered severe ill-health which he alleges has left him with residual disability. On his account he has suffered substantial economic loss in consequence, loss which is continuing. If his ill-health could be related to his being negligently exposed to asbestos inhalation by the defendant, the quantum of his entitlement could be substantial.

127. Acknowledging, next, the general prejudice to a defendant if it is faced with an old claim, it does seem to me that the defendant is likely to be better equipped than most to meet such a claim. It seems likely to have at its disposal a substantial body of information pertinent to the liability issue. It is certain, also, that it has had in its possession since 1994 a report from the plaintiff's treating physician. It can reasonably be inferred too that the plaintiff's treating medical records will be available; and perhaps relevant pathology specimens.

130. Another matter which weighs to some extent, though not at all decisively, in the exercise of discretion is the plaintiff's claim to exemplary damages. It seems to me that it would be undesirable in principle, if it were arguably the case that a plaintiff should be entitled to exemplary damages by reason of the disgraceful conduct of a defendant in exposing such plaintiff to a risk of serious injury of which that defendant knew, that the plaintiff should not be shut out too readily from litigating his or her entitlement to damages of that kind.

133. I should next refer to the significance of the late ascertained facts, and the circumstances in which they were ascertained. It could not be said that there was contrivance or artificiality in their ascertainment - though it might fairly be said that it was fortuitous that the plaintiff was appraised of them when he was. Again, the facts themselves are of considerable potential importance, as I earlier observed. The allegations made, inter alia, by particulars (f) to (o) subjoined to paragraph 5 of the statement of claim have a particular significance if it be established that, throughout the period of the plaintiff's employment by the defendant, the defendant either knew or had the means of reasonably knowing the health hazards created by exposure to asbestos-containing dust. Further, if the defendant did in fact have such knowledge, it would be pertinent to the claim for exemplary damages raised by paragraph 8 of the amended statement of claim.

136. In the event, as I said earlier, I am satisfied that I should exercise my discretion in the plaintiff's favour. Subject to anything that counsel may wish to say as to form, I think that I should resolve the trial of the matters confided for my determination under R. 47.04 by ordering that the time within which the plaintiff may institute an action for damages for personal injuries against the defendant in respect of injury allegedly sustained by him in his employment by the defendant between 1969 and 1978 be extended to 20 December 2001. I have selected a date, you will see, somewhat later than the date on which the writ was actually filed, and a little later than the date on which the plaintiff ascertained the material facts pleaded by paragraph 10 of the amended statement of claim. I would also order, subject to anything that counsel might wish to say, that costs be costs in the cause.

(Discussion ensued).

HIS HONOUR: I will make orders accordingly.

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[1] In fact, its corporate predecessor. Northing turns on that.

[2] [2000] VSC 363

[4] No. 9 of 2004, assent 8 April, commencement 1 May.

[5] (1997) 15 SASR, 560-561

[6] (2001) SADC 46 at paras 20-24

[9] (2000) FCA 1084

[10] (1998) 83 FCR 574

[11] (1996) 41 NSWLR 30