Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17;

Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; - HCA 1984 case summary — Zoe

[21]

2. The appellant at all material times was a labourer. Born in Portugal, he lived and worked in France for two or three years before coming to Australia in 1971 at the age of about twenty-eight years. In May 1971 he commenced employment with the respondent as a labourer and remained in that employment until June 1974 save for a break of six months from August 1973 when he returned to Portugal for a holiday. His duties involved working on various building sites in the Sydney metropolitan area, carrying out excavation and building work. Thereafter, he was employed as a labourer by two other companies. In June 1976 he developed chest pain, breathlessness, coughing and fatigue. He consulted a doctor who referred him to a chest specialist, Dr. Lee. In November 1976 he sought advice respecting his condition from his union and was referred to the union's solicitors. Those solicitors continued to advise him until late in 1978. From time to time they sought the professional opinion of Dr. Lee who, after an initial uncertain diagnosis, confirmed the presence of silicosis but considered the condition unlikely to cause any significant disability. On the other hand the Workers Compensation (Dust Diseases) Board certified on 7 April 1977 that the appellant had contracted silicosis-tuberculosis and found him totally disabled for work. In February 1978 a further certificate from the Board stated that, following upon successful treatment of his tuberculosis, his silicosis was such as could render him "30 per cent disabled for work only". At no time did the union solicitor advise the appellant that he had a cause of action against the respondent. Master Allen, who dealt with the application for an enlargement of time in the first instance found the appellant to be a "non-English speaking, poorly educated, dull-witted immigrant". He also found that in October or November 1978 the solicitors gave the appellant the impression that there was no reasonable basis for commencing an action and that the latter was in no position to dispute that view. (at p240)

[29]

physical or mental condition of a person;

(b) the material facts relating to a cause of action include the following -

(i) the fact of the occurrence of negligence nuisance or breach of duty on which the cause of action is founded;

(ii) the identity of the person against whom the cause of action lies;

(iii) the fact that the negligence nuisance or breach of duty causes personal injury;

(iv) the nature and extent of the personal injury so caused; and

(v) the extent to which the personal injury is caused by the negligence nuisance or breach of duty;

(c) material facts relating to a cause of action are of a decisive character if, but only if, a reasonable man, knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing -

(i) that an action on the cause of action would (apart from the effect of the expiration of a limitation period) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action; and

(ii) that the person whose means of knowledge is in question ought, in his own interests, and taking his circumstances into account, to bring an action on the cause of action;

(d) 'appropriate advice', in relation to facts, means the advice of competent persons, qualified in their respective fields to advise on the medical legal and other aspects of the facts, as the case may require;

(e) a fact is not within the means of knowledge of a person at a particular time if, but only if -

(i) he does not, at that time, know the fact; and

(ii) in so far as the fact is capable of being ascertained by him, he has, before that time, taken all reasonable steps to ascertain the fact; and

(f) 'limitation period' means a limitation period fixed by an enactment repealed or omitted by this Act or fixed by or under this Act. (2) In this Division the expression 'breach of duty' extends to the breach of any duty, whether arising by statute, contract or otherwise, and includes trespass to the person. 58. (1) This section applies to a cause of action founded on negligence nuisance or breach of duty, for damages for personal injury, not being a cause of action which has survived on the death of a person for the benefit of his estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944, and not being a cause of action which arises under section 3 of the Compensation to Relatives Act of 1897. (2) Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that - (a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action; and (b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period, the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court, and for the purposes of paragraph (b) of subsection (1) of section 26 of this Act, the limitation period is extended accordingly. (3) This section applies to a cause of action whether or not a limitation period for the cause of action has expired - (a) before the commencement of this Act; or (b) before an application is made under this section in respect of the cause of action."

[46]

20. Nevertheless, there are serious difficulties in the way of accepting Mr. Leslie's submission. It is true that the use of the words "the fact of the occurrence of negligence nuisance or breach of duty" in s. 57(1)(b)(i) to describe a material fact identifies in its application to this case something more than the mere failure of the employer to take steps to minimize the inhalation of dust. That failure of itself would not necessarily amount to negligence. The "something more" that is required, namely, the reasonable availability of appropriate precautions, may accurately be described as a fact and indeed as a material fact within the meaning of s. 57(1)(b)(i). But it is a fact of a secondary nature because its significance lies in the impact it makes on what might be called the primary fact. In this case that primary fact is the inhalation of dust in a working environment where no provision was made by the employer to reduce the hazard. The question of the precautions, if any, that were available to a prudent employer at the material time is a question of the state of knowledge and current practice pertaining to the industry generally. It relates to the general state of affairs in the industry and only indirectly to the actual occurrence of facts which cause personal injury to a particular worker. Its relevance and importance lie in the role it plays in determining the true quality of the primary fact, whether or not the primary fact is a wrongful act constituting negligence or breach of duty. The significance of this line of thought, it seems to me, is that it supports the reasoning of Reynolds J.A. in shifting the focus from "material facts" to "material facts of a decisive character". The fact that a reasonably careful employer could and would have provided safeguards may be a material fact of which at all relevant times the appellant was ignorant. But it will not be a material fact of a decisive character if the reasonable man, having taken appropriate advice on the facts of which the appellant did have knowledge, would regard those facts as showing that an action would have a reasonable prospect of success and ought to be taken. "Appropriate advice" is not confined to legal advice. It includes the advice of a competent person, qualified to advise on matters of industrial safety in relation to excavation work in Sydney, on the particular aspect of the known material facts now under consideration, namely, the absence of any provision to minimize the inhalation of dust during such excavation work. If it be the fact, although unknown to the appellant prior to October 1979, that precautions such as water hosing the area of drilling and the wearing of face masks were effective to reduce the inhalation of dust and were known in the industry in 1971, then appropriate advice to that effect would be available to the hypothetical reasonable man. A conclusion in favour of the institution of proceedings must then follow. That being the case, the appellant cannot now say that his ignorance of that fact is relevant to an application by him under s. 58(2). It is a material fact but it is not of a decisive character. (at p249)

[54]

6. In the Supreme Court in the present case, the learned master found that the appellant did not, until the month before the institution of the proceedings against the respondent, have certain facts within his means of knowledge. That finding was confirmed by Cross J. and was not challenged in this Court. The facts not within the appellant's means of knowledge were (i) that there were, during the period in which the appellant was employed by the respondent, practical and available steps which could have been taken to reduce the level of silica dust and (ii) that the effectiveness of those steps was well known in the building industry throughout that period. On the other hand, the appellant had within his means of knowledge the critical particular facts of his case against the respondent. Those facts included the nature of his ailment, his exposure to dust in his employment with the respondent, that his ailment was "a dust disease" which "could or must be attributed to his period of employment" with the respondent and, most important for present purposes, that the respondent had taken no steps at all to minimize the level of silica dust to which the appellant had been exposed in the course of his employment. Those facts constitute the particular or primary factual basis of the appellant's case in negligence against the respondent. The facts of which the appellant was unaware were general facts of which any appropriate adviser on standards or safety in the building industry would be aware and which would constitute part of the context in which appropriate advice on whether the respondent had been guilty of negligence had been formulated. In the Court of Appeal, Hutley J.A. expressed the view that the facts within the knowledge of the appellant were such as to raise a case of res ipsa loquitur. Regardless of whether that be the case, it appears to me to be plain that the facts within the appellant's knowledge were such as to lead a reasonable man, knowing those facts and having taken the appropriate advice on them, to conclude that the appellant had a worthwhile cause of action against the respondent. In other words, the fact within the appellant's means of knowledge were, of themselves, adequate to satisfy the requirement of "material facts of a decisive character". (at p253)

At a glance

Court

Decision date

Source

Judgment (83 paragraphs)

Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234; (1984) 154 CLR 234; (1984) 52 ALR 231; (1984) 58 ALJR 287; (1984) Aust Torts Reports 80-302 (4 April 1984)

Parties

Legislation Cited (6)

Cases Cited (7)