East West Airlines Limited v Turner

CATCHWORDS: PRACTICE AND PROCEDURE - amendment to statement of claim - mistake in name of party - application of subsection 64(4) Civil Procedure Act - significance of words "as if" - amendment to take effect from date of filing of statement of claim - DUST DISEASES TRIBUNAL - jurisdiction - smoke in aircraft cabin - whether smoke was dust - whether plaintiff suffering from dust-related condition - APPEAL - appeal from decision in point of law only - whether finding that smoke contained dust was a decision in point of law - whether appeal available in relation to judge's finding as to damages - application to amend notice of appeal - point not taken before Tribunal - whether further evidence could have been adduced - whether proposed amendment challenged a decision in point of law - discretionary issues.

Civil Aviation (Carriers' Liability) Act 1959 (Cth) Civil Procedure Act 2005 Dust Diseases Tribunal Act 1989 LEGISLATION CITED: Income Tax Assessment Act 1936 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998

Amaca v Cremer (as Executor of the Estate of the late Winifred Cremer) [2006] NSWCA 164; (2006) 66 NSWLR 400 Attileh v State Rail Authority [2005] NSWCA 64; (2005) 62 NSWLR 439 Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Bondi Beach Astra Retirement Village Pty Limited v Hohman [2010] NSWCA 38 B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 at 260-261 CASES CITED: East End Dwellings Co Limited v Finsbury Borough Council [1952] AC 109 at 132 Evans Constructions Co Limited v Charrington & Co Limited [1983] QB 810 Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 721 HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 Hope v Bathurst City Council (1980) 144 CLR 1 Lloyd Steel Co (Aust) Pty Limited and Anor v Jade Shipping SA and Anor (1985) 1 NSWLR 212 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 Union Fidelity Trustee Company of Australia Ltd v The Commissioner of Taxation (1969) 119 CLR 177 at 187

PARTIES: East West Airlines Limited - Appellant Joanne Turner - Respondent

COUNSEL: C Leahy SC/J Turnbull - Appellant JA McIntyre SC/DR Toomey - Respondent

SOLICITORS: Curwoods Lawyers - Appellant Turner Freeman Lawyers - Respondent

LOWER COURT JURISDICTION: Dust Diseases Tribunal

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/298331 DDT 428/2001

ALLSOP P HANDLEY AJA HOEBEN J

Thursday 1 April 2010 EAST WEST AIRLINES LTD v Joanne TURNER JUDGMENT 1 The judgment of the Court was delivered by HOEBEN J: The appellant appeals from judgments delivered by Kearns J in the Dust Diseases Tribunal on 27 August 2007 and 5 May 2009. The first of those judgments related to the joinder of the appellant to the proceedings as a defendant. The second decided liability in favour of the respondent and awarded damages in her favour against the appellant. 2 The appeal is brought pursuant to s 32 of the Dust Diseases Tribunal Act 1989 (the Act) which relevantly provides: "32(1) A party who is dissatisfied with a decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence may appeal to the Supreme Court."

It was common ground that the appeal did not relate to "the admission or rejection of evidence".

Proceedings before the Tribunal 3 On 4 March 1992 the respondent was employed by the appellant as a flight attendant. On that date she was on a flight between Sydney and Brisbane on a BAE 146 aircraft operated by the appellant. Although the respondent was not on active duty on that flight, she was in the course of her employment. 4 As the aircraft was descending into Brisbane, for a period of about 20 minutes, smoke was emitted into the cabin. There was a thick cloud of smoke. The immediate effect of that smoke upon the respondent included coughing, a burning throat, sore eyes and a headache. Thereafter the respondent suffered from a persistent cough. On occasions the cough worsened, particularly when the respondent had a cold. His Honour found that there was "an underlying cough which is emitted every couple of minutes". It was not "loud or intrusive or distracting". There was also "a more aggressive cough which the plaintiff has occasionally" (Red 111D). 5 The cough did not cause the respondent to lose any time from work. She continued to work as a flight attendant (taking time off for two pregnancies) until 4 March 2002. Her cessation of employment was not related to the cough. 6 On 23 November 2001 the respondent commenced proceedings in the Dust Diseases Tribunal (the Tribunal) against Ansett Australia Limited (Ansett). She alleged that between 1990 and 1998 she was employed by Ansett and was negligently exposed by Ansett to fumes, chemicals and dust as a result of which she developed her cough. 7 On 9 September 2003 Ansett filed a defence in which it admitted that it employed the respondent during that period. Subsequently, the solicitors for Ansett discovered that between 1990 and 31 October 1993 the plaintiff had not been employed by Ansett but by the appellant. On 18 October 2006 Ansett applied by motion to amend its defence accordingly. 8 On 1 December 2006 the respondent applied by way of notice of motion to "join" the appellant to the proceedings "as if East West Airlines Limited were a party from the date of filing of the plaintiff's original statement of claim". The application was made pursuant to sections 64(1) and (4) and 65(1), (2) and (3) of the Civil Procedure Act 2005 (NSW) (CPA). 9 The significance of the date on which the joinder was to take effect arose from amendments to the Workers Compensation Act 1987 (WCA) and the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act) which took effect on 27 November 2001. Those amendments substantially reduced an employee's entitlement to damages at common law in claims against an employer. The application of the amendments depended upon the date on which proceedings were commenced, i.e. proceedings commenced before the commencement date were not affected by the changes, but proceedings commenced after were so affected, regardless of the date on which the cause of action arose. A detailed analysis of the amended legislation and its effect is set out in Attileh v State Rail Authority [2005] NSWCA 64; (2005) 62 NSWLR 439. 10 The motions were heard in the Tribunal on 27 November 2006 and 6 August 2007. The motion by Ansett was not opposed. His Honour delivered judgment on 27 August 2007 in respect of the respondent's motion. 11 His Honour characterised the respondent's application as one to "substitute a party rather than to add one". He applied s 64 CPA on the basis that there had been "a mistake in the name of the party" within the meaning of s 64(4) CPA. Although his Honour refused to make an order to that effect he made it clear that the date on which the statement of claim was filed was the date on which the amendment should take effect. 12 After the amendment, the relevant paragraphs of the statement of claim read as follows: "1B From on or about 1990 to on or about 30 October 1993 the plaintiff was employed by the second defendant as a flight attendant upon the BAE 146 aircraft. During the course of this work upon the BAE 146 aircraft the plaintiff was exposed to and inhaled dust and fumes emanating from the aircraft engine. The dust and fumes inhaled by the plaintiff contained vapourised oil, mist and other toxic elements. 2 From on or about 1 November 1993 to on or about 1998, the plaintiff was employed by the first defendant as a flight attendant upon various aircraft including the F27, the F28 and the BAE 146. During the course of this work upon the BAE 146 aircraft, the plaintiff was exposed to and inhaled dust and fumes emanating from the aircraft engine. The dust and fumes inhaled by the plaintiff contained vapourised oil, mist and other toxic elements."

(The reference to the "first defendant" is a reference to Ansett and the reference to the "second defendant" is a reference to the appellant.) 13 At some time before the hearing, the respondent's claim against Ansett was resolved so that the hearing proceeded only against the appellant. The hearing of the claim against the appellant took place before his Honour on 16 - 19 and 25 - 30 March and 1 and 7 April 2009. His Honour delivered his reasons for judgment on 5 May 2009. In those reasons his Honour made the findings as to the respondent's cough previously referred to. He then considered whether the Tribunal had jurisdiction to hear the claim. 14 The Act does not provide a definition for "dust". Section 10(1) of the Act provides that the Tribunal has exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12. Section 12 is not relevant. Section 11(1) of the Act relevantly provides: "11(1) If: (a) A person is suffering, or has suffered, from a dust-related condition or a person who has died was, immediately before death suffering from a dust-related condition, … proceedings for damages in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other Court or Tribunal." 15 To the extent that there is a definition relevant to the meaning of "dust", this is provided by s 3 of the Act which provides: "Dust-related condition means - (a) A disease specified in Schedule 1; or (b) Any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust;"

It was common ground that the condition from which the respondent suffered was not one of the diseases specified in Schedule 1. The issue before his Honour was whether the respondent came within subs (b). 16 In relation to subs (b) of the definition, his Honour posed three questions:

(i) Did the plaintiff have a pathological condition of the lungs?

(iii) If the answer to the first two questions was 'yes', was the plaintiff's condition attributable to the dust to which she was exposed? 17 In the absence of a definition in the Act his Honour relied upon the following dictionary extracts: Macquarie Dictionary

"(1) Earth or other matter in fine, dry particles. (2) Any finely powdered substance, as sawdust. (3) A cloud of finely powdered earth or other matter in the air." Concise Oxford Dictionary "(a) Finely powdered earth, dirt etc, lying on the ground or on surfaces and blown about by the wind. (b) Fine powder of any material (pollen dust; gold-dust). (c) A cloud of dust." 18 The evidence at trial came from the respondent and two experts, Dr Crank and Dr Markovic. The respondent's evidence was that the cabin of the aircraft became filled with a thick, dense smoke, white-grey in colour, which continued to pour through vents into the cabin for about 20 minutes. It was subsequently established that the smoke was admitted into the cabin as a result of the oil in the auxiliary power unit undergoing a process of pyrolysis (pyrolysis is the thermal decomposition of organic material in oil without combustion). 19 The two experts agreed that if one could look through a microscope or other aid, what one would have seen in the smoke was ultra-small particles of carbon. Doctor Crank said that the small particles remain suspended in the air for a time and eventually settle on a surface and look like a black, sooty, dark mist. The suspended particles might have moisture in them. 20 On this issue his Honour expressed his conclusion (at Red 117P) as follows: "86 Mr Leahy SC's more telling submission, I think, is that if the Act were meant to cover smoke, it would have been a simple thing to include it and he gets support for that submission from the fact that none of the scheduled disease is a disease caused by smoke. This argument has some force especially when it is well understood and must have been known to Parliament when the Act was passed that there are many smoke-caused diseases, lung cancer from smoking perhaps being the most obvious. I do not think this submission should be upheld. In my view, the wording of the relevant sections of the Act encompasses smoke as a dust. In section 3, a dust related condition is relevantly any pathological condition of the lungs attributable to dust. In ordinary common parlance, dust encompasses smoke or ash. Dust may need to be distinguished from gas, fume or vapour. The distinction would be that dust comprises particulate matter. Smoke comprises particulate matter and, accordingly, is more comfortably described as dust rather than gas, fume or vapour. I do not consider that there is a distinction between smoke and dust such that smoke cannot be dust. When the particulate matter settled, it would, to most people, be recognised as dust. If, through the microscope or other aid, one could see the particulate matter without the smoky haze, most people would recognise the particulate matter as dust. The dictionary definitions would encompass smoke as dust." 21 His Honour rejected the submission that a dust needed to be dry to fall within the Act. He did so because dryness was not a component of some of the dictionary definitions of dust and because some of the diseases in Schedule 1 of the Act were capable of being caused by products which were not dry (e.g. Bagassosis and Farmer's Lung - both of which are caused by spores from fungi). His Honour gave other illustrations of diseases in Schedule 1 which could be caused by dusts which were not dry. 22 At Red 119F, his Honour said: "90 I do not find the evidence given as to the meaning of the term "dust" to be helpful. Indeed, I do not think it is relevant. The term is not a scientific or technical term. It is an ordinary, common English word and it takes its meaning from the text and context in which it appears in the DDT Act. Evidence from experts that terms such as dust, fume, vapour, mist, gas and smoke have certain meanings is not relevant and I do not consider such evidence in coming to a view about what "dust" means in the DDT Act. What is useful, however, is that the experts describe material that is suspended in the air as aerosol. It may be solid or liquid. It is clear that smoke in the cabin of the aircraft on 4 March 1992 was an aerosol that contained solid matter." 23 His Honour's findings of breach of duty and causation have not been challenged in this appeal. 24 His Honour assessed the plaintiff's entitlement to damages under the WCA as it was before 27 November 2001. The correctness of this basis for assessment depended upon whether his Honour had correctly decided that the joinder of the appellant should take effect from the date on which the statement of claim was filed. 25 In assessing damages for non-economic loss pursuant to s 151G WCA, his Honour took into account that the respondent had been experiencing symptoms for about 17 years and would continue to experience them for the rest of her life (approximately 38 years). His Honour concluded that the respondent's ability to lead a normal life had been significantly impaired. Applying s 151G WCA his Honour found that the respondent's level of disability was 25% of a most extreme case. This produced a figure for damages for non-economic loss of $51,000. 26 In determining the respondent's entitlement to damages for economic loss, it was necessary for his Honour to apply s 151H WCA. That section provided that no damages were to be awarded for economic loss unless the injured worker had received a serious injury. A serious injury was defined as an injury for which damages for non-economic loss of not less than $48,000 were to be awarded. 27 Although his Honour found that the respondent's cough had not prevented her from working as a flight attendant, he concluded that her symptoms would put her at a disadvantage on the open labour market and in that respect she had suffered a loss of earning capacity. In the absence of any evidence as to a precise loss, his Honour calculated the respondent's entitlement to damages for past economic loss and future loss of earning capacity on the basis of a financial buffer, i.e. $10,000 for the past and $25,000 for the future. 28 The damages awarded to the respondent were as follows: "Non-economic loss $ 51,000.00 Past loss of earnings $ 10,000.00 Future loss of earnings $ 25,000.00 Past out-of-pocket expenses $ 3,353.96 Future out-of-pocket expense $ 15,000.00 Past Griffiths v Kerkemeyer $ 14,000.00 Future Griffiths v Kerkemeyer $ 20,403.24 Total $138,757.20."

GROUNDS OF APPEAL Grounds of Appeal 1 - 5 (Amendment Application) 29 Grounds of Appeal 1 - 5 challenged his Honour's conclusion that the amendment making the appellant a defendant in the proceedings should take effect from 23 November 2001 when the statement of claim was filed. There was no issue that the respondent was entitled to join the appellant to the proceedings. The matter in dispute was the date on which that joinder should take effect. 30 In order to understand the competing submissions, it is necessary to set out the relevant statutory provisions. Sections 64 and 65 CPA provide as follows: "64 (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5) This section does not apply to the amendment of a judgment, order or certificate.

65(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.

(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as: (a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or

(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or

(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.

(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.

(4) This section does not limit the powers of the court under section 64.

(5) This section has effect despite anything to the contrary in the Limitation Act 1969.

(6) In this section, originating process , in relation to any proceedings, includes any pleading subsequently filed in the proceedings." 31 Part 6 r 6.24 and Pt 6 r 6.28 of the Uniform Civil Procedure Rules 2005 (UCPR) relevantly provide: "6.24(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party …" "6.28 If the court orders that a person be joined as a party, the date of commencement of the proceedings, in relation to that person, is taken to be the date on which the order is made or such later date as the court may specify in the order." 32 Section 17(5) of the Act provides: "17(5) If, before the holding of particular proceedings before the Tribunal or at any stage during the holding of any proceedings, the Tribunal is of the opinion that a person ought to be joined as a party to the proceedings, the Tribunal may, by notice in writing served on the person or by oral direction given during the proceedings, join the person as a party to the proceedings." 33 The Dust Diseases Tribunal Rules provide: "2(1) Except as otherwise provided by these Rules, the rules of court of the Supreme Court apply to proceedings before the Tribunal and to matters in respect of which the Tribunal has jurisdiction in the same way as they apply to proceedings before the Supreme Court and to matters in respect of which that Court has jurisdiction. (2) The rules of court of the Supreme Court apply with necessary modifications and to the extent that they are not inconsistent with the Dust Diseases Tribunal Act 1989." 34 It is also necessary to set out relevant provisions of the Supreme Court Act 1970 in order to understand the cases which were cited in support of the competing positions. Supreme Court Rule Pt 8 r 8 provided: " Addition of Parties 8(1) Where a person who is not a party: (a) Ought to have been joined as a party; or

(b) Is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon, the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceedings."

Supreme Court Rule Pt 8 r 11 provided: " Further conduct of Proceedings 11 … (3) Where in any proceedings a party is added otherwise than pursuant to an order under rule 10 or part 20 rule 4(3), the date of commencement of the proceedings so far as concerns him shall be: (a) Where he is added as a defendant - the date on which the amendment adding him as a defendant is made or the date of entry of his appearance or the date of filing his defence whichever is earliest;

(b) Otherwise - the date on which the amendment adding him as a party is made."

Supreme Court Rule Pt 20 r 1 provided: " General (1) The Court may, at any stage of any proceedings, on application by any party or of its motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit. (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings. (3) Where there has been a mistake in the name of a party, sub-rule (1) applies to the person intended to be made a party as if he were a party. (3A) An order may be made, or leave may be granted, under sub-rule (1) notwithstanding that the effect of the amendment is, or would be, to add or substitute a cause of action arising after the commencement of the proceedings, but in such a case the date of commencement of proceedings, so far as concerns that cause of action, shall, subject to rule (4), be the date on which the amendment is made. …"

Supreme Court Rule Pt 20 r 4 provided: " Statutes of Limitation 4(1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of sub-rules (2), (3), (4) and (5), the Court may in the circumstances mentioned in that sub-rule make an order giving leave accordingly, notwithstanding that that period has expired. … (3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party. (4) Where, on or after the date of filing a statement of claim, the plaintiff is or becomes entitled to sue in any capacity, the Court may order that the plaintiff have leave to make an amendment having the effect that he sues in that capacity. (5) Where a plaintiff, in his statement of claim, makes a claim for relief on a cause of action arising out of any facts, the Court may order that he have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action. (5A) An amendment made pursuant to an order made under this rule shall, unless the Court otherwise orders, relate back to the date of filing the statement of claim. …" 35 The appellant submitted that the decision by his Honour as to what legislation or rules applied to the amendment of the statement of claim sought by the respondent and the decision as to the date on which such an amendment should take effect, were decisions of the Tribunal in point of law. That being so, the appellant submitted that it was entitled pursuant to s 32 of the Act to bring an appeal in relation to those matters. I do not understand the respondent to challenge that proposition. 36 His Honour's attention was not drawn to any provisions of the Act. Specifically, his Honour's attention was not drawn to s 17(5) of the Act. At trial and on appeal the matter proceeded on the basis that the relevant source of power to make the amendment was to be found in either the CPA or the UCPR. 37 At trial the appellant submitted that the correct characterisation of the respondent's application to amend was the addition of a party and that Pt 6 r 6.24 and r 6.28 UCPR applied. The respondent submitted that either s 64 or 65 CPA applied in that what had occurred was a mistake in the name of a party and that what she was doing was to substitute the correct party. The respondent relied upon the broad interpretation of the concept of a "mistake in the name of a party" by McHugh J in Bridge Shipping Pty Limited v Grand Shipping SA (1991) 173 CLR 231 at 260-261. 38 His Honour concluded that s 65 CPA did not apply. He reached this conclusion on the basis that there was not any relevant limitation period (see s 12A of the Act), if there were a limitation period the proceedings had not been brought before its expiration and in any event, the amendments to the workers compensation legislation in late 2001 did not impose any "limitation period" nor could they be regarded as constituting a limitation period "for the commencement of proceedings". Neither the appellant nor the respondent contended that his Honour was in error in disregarding s 65 CPA. 39 His Honour's reasoning was as follows: the correct characterisation of the respondent's application was that there had been a mistake in the name of a party and that the application was to substitute a party, rather than to add one. In respect of the period from 1990 to 30 October 1993 the appellant was to be substituted for Ansett. His Honour found that it had always been the respondent's intention to bring proceedings against her employer for that period and that she had simply been mistaken as to the name of her employer for that period. 40 On the basis that the respondent had made a mistake in the name of a party, his Honour found that Pt 6 r 6.24 and r 6.28 UCPR did not apply. This was because those rules applied to the joinder of an additional party not to the substitution of a party where a mistake had been made as to the name of that party. Although s 64 CPA did not specify when an amendment made pursuant to its provisions should take effect, his Honour applied the general principle that amendments operate from the date of the original pleading. This was particularly so when an amendment was made as a result of a mistake in the name of a party. 41 The submissions before this Court raised the same issues. The appellant did not challenge the finding that there had been a mistake by the respondent in the name of a party and that when the statement of claim had been filed, the respondent had intended to bring proceedings against her employer from 1990 until 30 October 1993. 42 The Courts have had occasion to consider the words "mistake in the name of a party". Evans Constructions Co Limited v Charrington & Co Limited [1983] QB 810 concerned proceedings in which Charrington & Co had been wrongly sued in the mistaken belief that it was the plaintiff's landlord. The plaintiff's application to substitute the true landlord succeeded despite the expiry of the relevant time bar. At p 821 Donaldson LJ said: "In applying Ord 20 r 5(3) it is, in my judgment, important to bear in mind that there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matter complained of and seeking to sue B, but mistakenly describing or naming him as A and thereby ending up suing A instead of B. The rule is designed to correct the latter and not the former category of mistake. Which category is involved in any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in the light of all the surrounding circumstances." 43 That interpretation was followed by Clarke J in Lloyd Steel Co (Aust) Pty Limited and Anor v Jade Shipping SA and Anor (1985) 1 NSWLR 212. That was a case involving the application of Pt 20 r 4(3). The case involved a mistake in the name of a party in that proceedings were commenced against a defendant in the mistaken belief that it was the carrier in relation to a Bill of Lading. When the mistake in the identity of the carrier was discovered, a limitation period had expired. In applying Pt 20 r 4(3), his Honour said of the Evans Constructions case at 218: "It may be that the actual decision does not bind me in view of textual differences in the rules but whether or not it does I am attracted the majority decision and propose to apply it here. I would add that the later reference in the rule to identity supports the view that the rule is not limited to those cases where there is a mere misdescription of a particular entity but extends to cover cases where the party intended to be sued is wrongly identified." 44 The approach in those cases was approved by McHugh J (with whom the majority agreed) in Bridge Shipping. Bridge Shipping was dealing with O 36 of the Victorian Supreme Court Rules. The relevant rules, namely r 36.01(4), r 36.01(5) and r 36.01(6), were similar to the New South Wales Pt 20 r 4(3) and the English O 20 r 5(3). 45 The wording in each set of rules is different, but the interpretation in Bridge Shipping is clearly applicable to subsection 64(4) CPA. At p 259 - 261 McHugh J said: "The concluding words of sub-r. (4) "whether or not the effect is to substitute another person as a party" enable a plaintiff to substitute one person for another person as a party to the action. Those words also imply that the fact that the plaintiff intended to sue the person who was sued does not prevent the sub-rule applying provided that there was a mistake in the name of the person sued. Moreover, a plaintiff may make "a mistake in the name of a party" not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name. Thus, a plaintiff may make a mistake "in the name of a party" because, although intending to sue a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that person's name. Equally, the plaintiff may make a mistake "in the name of a party" because, although intending to sue a person whom the plaintiff knows by a particular description, eg the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description. In both cases, the plaintiff knows the person intended to be sued by reference to some property or properties which is or are peculiar to that person but is mistaken as to the name of that person. In the first case, the properties which identify the person are personal characteristics; in the second case, they are the properties which are of the essence of the description of that person. But for the purpose of sub-r. (4) that distinction is irrelevant. In both cases, the plaintiff was mistaken only as to the name of the person intended to be sued. There is no warrant for treating sub-r. (4) as dealing only with the case where the properties which identify the party are inherent properties. That is, there is no warrant for treating sub-r. (4) as dealing only with the case where the plaintiff says: "The person I wish to substitute as a party is that entity which I identified by certain inherent properties peculiar to it but whose name I mistakenly believed was X". The sub-rule applies equally to the case where the plaintiff says: "The person I wish to substitute as a party is that entity which I identified by reference to certain properties which are true of it and of no one else and whose name I mistakenly believed was X". In both cases, a mistake in the name of the party has occurred and can be seen to have occurred only because the person sued does not have or is not identified by some property or properties which is or are peculiar to the person intended to be sued and to no one else. Rule 36.01(4) is a remedial rule and should be given a beneficial interpretation. It is proper to give it the widest interpretation which its language will permit. It should be interpreted to cover not only cases of misnomer, clerical error and misdescription but also cases whether the plaintiff, intending to sue a person he or she identifies by a particular description, was mistaken as to the name of the person who answers that description. In my opinion, Evans v Charrington and Lloyd Steel were correctly decided." 46 Applying that statement of principle, it seems clear that subsection 64(4) CPA is engaged. There was a mistake in the name of a party as his Honour found and that finding has not been challenged by the appellant. It was a finding of fact. The question then becomes what is the effect of applying subsection 64(4)? 47 The appellant while not conceding the application of subsection 64(4) CPA, submitted that if it did apply it was part of a general amendment provision which should give way to a provision specifically directed to the power which the Court was being asked to exercise. Looked at in that way, the appellant submitted that the correct characterisation was not the substitution of one party for another, but the addition or joinder of a party. 48 The appellant submitted that if the correct characterisation of the Court's exercise of power was that it involved the joinder of an additional party, then the analysis of McColl JA at [43 - 46] and [81 - 83] and of Brereton J at [143 - 159] in Amaca v Cremer (as Executor of the Estate of the late Winifred Cremer) [2006] NSWCA 164; (2006) 66 NSWLR 400 made it clear that the applicable rule is the equivalent of Supreme Court Rule Pt 8 r 11, i.e. UCPR Pt 6 r 6.24 and r 6.28. Rule 6.28 provides that the date of the commencement of the proceedings in relation to the person so joined is to be the date on which the order is made. In this case that was 27 August 2007. 49 The appellant submitted that by reference to the reasoning of Brereton J in Amaca v Cremer and of Gleeson CJ in Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 721, a provision such as 64 CPA which deals with amendments generally should give way to a provision which is directed to the specific form of amendment under consideration. The appellant submitted that in this case the amendment was the joinder of a new party in the proceedings (Amaca v Cremer at [145 - 146]); and that UCPR Pt 6 r 6.24 and r 6.28 dealt specifically with such a joinder. The appellant submitted that his Honour had applied the wrong provision in making the amendment sought by the respondent and that the joinder of the appellant should have taken effect from 27 August 2007 and not 23 November 2001. 50 The respondent submitted that the appellant had misunderstood the operation of subsection 64(4) CPA. She submitted that the effect of the order sought was not the substitution of the appellant for Ansett, but the correction of a mistake which had been made. The mistake which had been made was in the name of a party. The respondent submitted that the appellant had failed to give effect to the words "as if" in subsection 64(4). Those words implied that the party in respect of whom the order was sought, had been there all the time but had not been properly named or described. She submitted that the subsection contemplated a mistaken party which had not been properly identified by name. The respondent submitted that her reliance upon subsection 64(4) did not involve the exercise of a general power of amendment, but the remediation of a mistake to which the subsection was specifically directed. 51 The Court is of the view that the submissions of the respondent should be accepted and that his Honour did not fall into error in applying subsection 64(4) when making the amendment sought by the respondent. There was, as s 64 envisages, an amendment to a document, i.e. the statement of claim, but that amendment was made to reflect the statutory direction that where a mistake in the name of a party has occurred "this section applies to the person intended to be made a party as if he or she were a party". 52 This approach to the words "as if" is supported by other cases where that form of words has been used. East End Dwellings Co Limited v Finsbury Borough Council [1952] AC 109 at 132 was such a case. Lord Asquith said the following about a resumption of land provision which provided that the value of an interest for the purposes of assessment of compensation, should be taken to be the value which it would have if the whole of the war damage had been made good before the resumption. His Lordship said: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it." 53 Similarly, in the Union Fidelity Trustee Company of Australia Ltd v The Commissioner of Taxation (1969) 119 CLR 177 at 187 Kitto J said: "In the light of the definition of "taxpayer" the expression "calculated under this Act as if the trustee were a taxpayer in respect of that income" may be expanded to read "calculated under this Act as if the trustee were a person deriving that income". But the "as if" shows beyond question that the basis of the calculation is to be a hypothesis different from the actual fact." 54 In contrast there are a number of difficulties with the approach sought to be applied by the appellant. Firstly, the effect of its submission is that a statutory enactment (s 64(4)) would give way to subordinate legislation enacted pursuant to a delegated rule making power, i.e. Pt 6 r 6.28. 55 Next, the submission that, if the effect of the respondent's amendment was to join or add an additional party, Pt 6 r 6.28 must apply to the exclusion of any other rule or section of an act, fails to take account of the legislative scheme which includes both the Civil Procedure Act and the Uniform Civil Procedure Rules. As Bridge Shipping made clear, provisions dealing with mistakes in the name of a party are remedial in nature and should be given "the widest interpretation which its language will permit": It is inconsistent with such a scheme to give pre-eminent force to a rule such as Pt 6 r 6.28 in a situation where an amendment which comes fairly and squarely under such remedial legislation might also be characterised as the addition or joinder of a party. 56 Finally such an interpretation could produce an arbitrary result and would be contrary to the intention that "all necessary amendments are to be made for the purpose of determining the real questions raised by the … proceedings, correcting any … error in the proceedings …" (s 64(2) CPA). 57 The appellant accepted that if the respondent's application had been to substitute the appellant for Ansett so that Ansett no longer remained in the proceedings, their submission would be unavailable. The appellant also accepted (leaving aside limitation considerations) that its submission would still be available even if the claim against Ansett for the period 1990-1993 was based in tort, and for the period 1993-1998 was based in contract, and if the respondent had made a mistake in the name of Ansett in respect of the period giving rise to the claim in tort. Arbitrary results such as this are usually indicative of error in interpretation, especially in a body of legislation intended for the just, quick, cheap and non-capricious resolution of civil disputes. 58 The appellant accepted that if s 64(4) CPA applied to the respondent's application to amend, the amendment should take effect from the date of filing of the statement of claim, i.e. 23 November 2001. That concession was properly made. A proper reading of s 64 CPA giving full effect to the words "as if", makes it clear that an amendment under s 64(4) should take effect from that date. This is to be contrasted with the special provision in s 64(3).

Grounds of Appeal 1 - 5 (Jurisdiction) 59 The appellant submitted that in the context of the Act the concepts of "dust" and "smoke" were mutually exclusive. It submitted that the failure of the Act to refer to "smoke" in the context of a dust-related condition and the absence of any mention of "smoke" in Second Reading Speeches relating to the Act, meant that implicitly the Act intended that the concept of "smoke" should not be included in the meaning of "dust". It submitted that if it had been intended for the meaning of "dust" to include "smoke", it would have been an easy matter for the Act to have made some reference to "smoke". 60 The appellant submitted that the word "dust" as used in the Act should not be given its ordinary meaning. It submitted that the meaning to be given to the word "dust" was to be qualified by the overall context of the Act and by its purpose as indicated in the Second Reading Speeches, i.e. the word "dust" was not to include smoke. 61 We do not agree. "Dust" is not defined in the Act. The only definition which provides guidance is that of a "dust-related condition" which is expressed in wide and unqualified terms. There is nothing in the wording of the Act which would impose the qualification sought by the appellant. In those circumstances his Honour was entitled to give to the word "dust" its ordinary meaning. 62 In relation to the appellant's first submission, His Honour did not find that, as a matter of general principle, "smoke" was a "dust" within the meaning of the Act. What he found was that the specific smoke to which the respondent was exposed contained small particles of particulate matter which would settle after being suspended in air and which could be correctly described as "dust". This was not a decision as to a point of law but a factual determination. There was ample evidence before his Honour to justify that conclusion. 63 The question can be looked at in another way. These grounds of appeal turn on whether the respondent was exposed to "dust" when the thick smoke entered the cabin of the BAE 146 aircraft on 4 March 1992. Unless the respondent was exposed to "dust" so as to develop a dust-related condition the Tribunal did not have jurisdiction to hear the matter. In Hope v Bathurst City Council (1980) 144 CLR 1 at 7 Mason J said: "Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law." 64 His Honour then qualified that general statement of principle as follows: "However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens was just such a case. The only question raised was whether the appellant's behaviour was "insulting". As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact." 65 A similar statement of principle was made by Basten JA in Bondi Beach Astra Retirement Village Pty Limited v Hohman [2010] NSWCA 38 at [28] where his Honour said: "… The generally accepted proposition is that the meaning of an ordinary English word is not a question of law and that an error of law will arise only in the circumstances of application of the definition to the facts, where it can be said that the facts necessarily fall within or without the statutory term and the fact-finder has held otherwise: See the authorities identified in Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 379 at [204]." 66 The distinction was described by Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512 as follows:

"The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the appellant's operations fall within the ordinary meaning of the words as so determined; and that is a question of law …If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact."

The issue before his Honour in that case was whether certain operations answered the description "mining operations upon a mining property" within the meaning of s 122 of the Income Tax Assessment Act 1936. 67 Applying those statements of principle to these grounds of appeal, it is clear that what is being challenged is not his Honour's determination that on the material before him different conclusions could be arrived at as to whether or not the smoke to which the respondent was exposed was a "dust", but rather his factual conclusion that this smoke did constitute "dust". That being so, what is being challenged is not a decision in point of law but a factual finding by his Honour. These grounds of appeal have not been made out. 68 The controversy before the Court was in the form of an appeal under the Act, s 32(1) not an application under the Supreme Court Act 1970 (NSW), s 69. Having said that, were the Court called upon to decide the same question as a jurisdictional fact, no error is perceptible in the approach of the learned primary judge.

Grounds of Appeal 6 - 11 (Damages) 69 The sections under consideration in these grounds of appeal are 151G and 151H WCA as they were before the amendments which came into effect on 27 November 2001. 70 Before those amendments, a plaintiff could not recover damages for non-economic loss under s 151G unless those damages were assessed to be greater than a specified proportion of the amount to be awarded for a most extreme case. The appellant's complaint was that his Honour's finding that the respondent's entitlement to such damages equated to 25 percent of a most extreme case was so beyond a proper exercise of his Honour's discretion as to amount to an error of law. 71 In the course of argument the appellant accepted that there was evidence before his Honour which established an entitlement to some non-economic loss. The appellant's complaint was what it described as the complete lack of proportionality between his Honour's finding and the evidence. 72 This statement of the appellant's submission reveals its inherent fallacy. Once one talks of a lack of proportionality or an insufficiency of evidence, one is inevitably dealing with issues of fact and not law. 73 There was ample evidence before his Honour upon which his Honour was able to base his 25 percent assessment. Assessments of this kind of their nature, involve the exercise of discretion and involve findings of fact. Since the appellant's challenge is to a factual finding by his Honour, not to a decision in point of law, the challenge to his Honour's application of s 151G WCA has not been made out. 74 The appellant's challenge to his Honour's application of s 151H WCA depended upon it being successful in its challenge in respect of s 151G. This was because damages for economic loss under s 151H depended upon a finding that a plaintiff had received a "serious injury" which was defined as an injury in respect of which damages greater than $48,000 under s 151G had been awarded. His Honour's assessment of the respondent's entitlement to non-economic loss at 25 percent of a most extreme case satisfied that definition. 75 Since the appellant's challenge to his Honour's application of s 151G has not been made out, the challenge to his Honour's application of s 151H also fails. 76 In relation to the appellant's submissions as to damages generally, the observations of Glass JA in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155G - 156A remain apposite: "To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers Compensation Commission Judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the Court arrived at the finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney: Ex parte White (1966) 116 CLR 644 at 654."

Grounds of Appeal 12 and 13 (Failure to Mitigate) 77 Section 151L WCA provides that in assessing damages the Court must consider the steps that have been taken and that could reasonably have been taken by the injured worker to mitigate his or her damages. The appellant submitted that his Honour had failed to have regard to that section in that he had not specifically referred to it in his judgment and had failed to take into account the respondent's capacity to work at her old job and at other jobs, when assessing past and future economic loss. 78 It is true that his Honour did not specifically refer to s 151L WCA. Nevertheless, he specifically took into account questions of mitigation when considering economic loss and referred in detail to the respondent's capacity for work and to her applications for employment. (Red 147 - 148) In those circumstances, there was no error of law in his Honour failing to specifically refer to s 151L in circumstances where he gave effect to that section.

The amendment application on 11 March 2010 79 On 11 March 2010, the appellant sought to amend its notice of appeal by adding grounds that the learned primary judge erred in point of law by failing to consider and apply the relevant provisions of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (the CA (CL) Act) and failing to enter a verdict compelled by that Act. 80 The Court had some time earlier raised with the parties the possibility of the CA (CL) Act applying through its application to interstate commercial flights: see generally CA (CL) Act, Parts I and IV. Central to the possible application of the CA (CL) Act was the question whether the respondent, as an employee, not on duty, but in the course of employment, could be a "passenger" for the purposes of the operation of the CA (CL) Act and the underlying international conventions. That is an important, but not straightforward question. 81 There are a number of legal aspects to the above question which would involve consideration of foreign decisions on the underlying international conventions. Importantly, however, factual material was said by the respondent to be relevant to those questions. The primary judge did not receive evidence relevant to those matters or make findings in regard to such evidence. He did not do so because the parties were unaware of the possible application of the CA (CL) Act. 82 In these circumstances, in an appeal under the Act, s 32(1) the appellant faced insurmountable difficulties in demonstrating that there was a decision in point of law which was in error. 83 The appellant's primary contention was that the matter should be remitted to the Tribunal to deal with the CA (CL) Act. That course could only be founded on a view that the primary judge made an implicit decision in point of law not to deal with an issue not put to him by the parties. We reject that. That is not an appeal from a decision in point of law: see generally HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187. Nor could it be said that there had been any error of law in the primary judge not dealing with an issue, not raised, which might or might not be found in favour of the appellant. 84 The appellant also submitted that the point could, however, be decided without further evidence and in a way which could not be affected by further evidence. Nevertheless, the appellant's argument still suffered from an absence of a decision in point of law. The amendment was bound to fail. 85 The respondent also raised discretionary considerations based on the late application and the need, at least as far as she was concerned, for a further hearing. If we had been persuaded that no further evidence could possibly affect the conclusion that the CA (CL) Act applied and an appeal was available, the lateness of the raising of the matter would not have been determinative. 86 For these reasons, we refused leave to amend the notice of appeal. 87 No application was made under the Supreme Court Act, s 69.

Conclusion 88 It follows from the above that the appellant's challenge to his Honour's judgment has not been made out. Accordingly, the orders of the Court are as follows:

(2) The appellant is to pay the costs of the motion to amend its grounds of appeal and of this appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.