GEOFFREY JOHN THOMAS BREAR v JAMES HARDIE & COY PTY LTD & ANOR

GEOFFREY JOHN THOMAS BREAR v JAMES HARDIE & COY PTY LTD & ANOR - [2000] NSWCA 352 - NSWCA 2000 case summary — Zoe

[32]

Appellant's submissions on appeal 15 The appellant submits that s12A means that there is to be no limitation period for any proceedings in the Tribunal, including proceedings involving interstate torts where the Tribunal's jurisdiction to determine such proceedings is duly invoked (cf Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414). Particular reliance is placed upon the broad sweep of s12A(1) and the substantive preclusive effect of the section as a whole as conveyed by the words "Nothing … operates" in s12A(2). 16 The appellant submits that the Queensland provision falls within the words "any other statute of limitations" in s12A(2) of the DDT Act and that permitting the claim to go forth in the Tribunal without regard to the Queensland enactment gives effect to the purpose stated in s12A(1). Whether by reason of the Choice of Law Act or the common law, that enactment "operates" in New South Wales and the expressed purpose of s12A is to preclude such operation. The plaintiff in the related proceedings (Barry) also drew attention to the remarks of Kirby P in Goliath Portland (at 426-8) about the dangers of pressing too hard the presumption of a territorial interpretation of the general language of a State enactment. 17 The Court was referred to a passage in the Minister's Second Reading speech on the Workers Compensation Legislation Amendment (Dust Diseases and other Matters) Bill in which the following remarks were made concerning what became s12A: Another significant proposal in the bill is the removal of current time limits on common law claims for dust diseases. The existing provisions of the Limitation Act, which lay down a basic three-year limit for claims, running from the time an injury is received, do not easily fit the reality of gradual onset dust diseases. That Act allows the tribunal a discretion to extend the three-year and related time limit provisions, based on factors such as the claimant's having been unaware of the disease or its cause or extent. Application of such provisions, however, take time and additional expense for claimants who may have a short life expectancy. In recognition of the particular circumstances applicable to dust diseases, it is considered appropriate to remove the requirement to establish compliance with technical and arbitrary provisions on time limits for these claims. The proposed transitional arrangements for these provisions have been revised, taking account of views expressed in consultations. In those consultations some organisations raised concerns that changes such as that proposed to limitation provisions might add to the burden of claims in the Dust Diseases Tribunal, by encouraging forum-shopping from interstate or elsewhere. That kind of concern is proposed to be addressed more widely in other legislation, following a call for reform from the Chief Justice and the President of the Court of Appeal in the recent judgment in James Hardie v Grigor . Specifically, it is proposed to provide that the discretion to accept jurisdiction in forum-shopping situations can include the question of diversion of limited judicial resources and other matters of public interest.

[36]

Gardner v Wallace 24 Gardner was injured while jogging at Surfers Paradise in Queensland, due allegedly to the negligence of Wallace. Since each party resided in a different State when the High Court writ was issued, Gardner invoked the High Court's diversity jurisdiction under s75(iv) of the Constitution. He applied for leave to serve the writ on the defendant, who had moved to New Zealand. In similar proceedings that had previously been commenced in the County Court of Victoria, Wallace had invoked the limitation bar created by s11 of the Limitation of Actions Act 1974 (Qld), relying upon s5 of the Choice of Law (Limitation Periods) Act 1993 (Vic) (the Victorian counterpart of the provision in issue in the present appeal). As Dawson J pointed out (at 97), such defence assumed that the substantive law of Queensland would govern the claim. The High Court action was brought to escape that consequence, through a remitter to Queensland from the High Court. Such remitter was expected by the plaintiff to bring about the result that the Limitation of Actions Act 1974 (Qld) would not apply because, upon its proper construction, it is confined to actions brought in Queensland (cf Pedersen v Young (1964) 110 CLR 162, Fielding v Doran (1984) 59 ALJR 511, 60 ALR 342). 25 Dawson J discussed the effect of s5 of the Choice of Law Act in a lengthy passage (at 98-100). He pointed out that those responsible for its drafting may have misconceived the effect of the decision in McKain in one respect. Nevertheless, he held that the meaning of s5 was clear in its application to provisions such as s11 of the Limitation of Actions Act 1974 (Qld), namely that it reversed McKain. Henceforth, a provision such as s11 would have effect even if action was brought in an Australian court outside Queensland based upon a tort occurring in that State. 26 In John Pfeiffer, the High Court effectively approved Dawson J's analysis of McKain (see at [35]-[36]) en route to overturning McKain itself in its application of a double actionability rule for Australian torts. In lieu thereof, the Court held (at [102]): The lex loci delicti should be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort. And laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws. See also Kirby J at [157]). 27 The High Court also held that even a procedurally-expressed statute of limitation like s11 was henceforth to be regarded as part of the "law governing all questions of substance" touching a tort occurring in Queensland (see at [97]-[100], [161], [192]-[193]). In this sense the common law elided itself with the earlier enacted Choice of Law Acts. Indeed (leaving aside the reasoning of Callinan J), the reformulated common law as declared in John Pfeiffer means that the Choice of Law Acts were not drafted upon the misconception that had been pointed out by Dawson J in Gardner. 28 Nothing in the reasoning in John Pfeiffer suggested that the Choice of Law Act was ineffective in overturning the result in McKain. On the contrary, the Choice of Law Act was seen as anticipating the common law as reformulated in John Pfeiffer. It follows that there could be no question of the Choice of Law Act being unconstitutional in any respect.

[37]

Anaylsis of appellant's submissions 29 The task at hand is to identify the body of law that governs the consequences of the events established at trial. That task neither requires nor is assisted by resort to theories as to the source of any common law choice of law rule. 30 Here there are two statutory provisions (the Choice of Law Act and s12A of the DDT Act) the operation of each of which the Tribunal is required to address per force of ss79 and 80 of the Judiciary Act. 31 The appellant does not suggest that the Choice of Law Act and s12A of the DDT Act cannot stand together, with the consequence that the later provision (s12A) impliedly repealed the former to the extent of the inconsistency. It is well established that such an implied repeal is not lightly to be inferred (see Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 275, South Australia v Tanner (1989) 166 CLR 161 at 171, Kartinyeri v Commonwealth (1998) 195 CLR 337 at 375). 32 Appeal by either party to the maxim generalia specialibus non derogant casts little light on the present problem. Authority and experience tell that this maxim seldom assists. Particularly is this the case in situations, such as the present, where the two provisions can be seen as quite specific in their different fields of general operation. 33 I accept the respondent's submission that the words "any other statute of limitations" in s12A(2) are apt to pick up other statutes of the New South Wales Parliament, and only such statutes. That is the prima facie limitation to be placed on such words (see Interpretation Act 1987, s12) and such a construction leaves s12A with work to do in light of both s68 of the Fair Trading Act 1991 and what I perceive to be the clearly expressed ambulatory effect of s12A. It follows that the Choice of Law Act can be permitted to occupy the totality of its intended field, while leaving ample work for s12A of the DDT Act. 34 There was no reason to think that the Choice of Law Act missed its intended mark or that it had in some way become a dead letter by 1998. The decision in Gardner in 1995 is to the contrary of both suppositions (see also Goliath Portland at 418, 437, 440). 35 I also agree with O'Meally P's characterisation of the Choice of Law Act. By overturning the result in McKain, the Choice of Law Act ensured that the law relating to limitation of actions that is applicable to a tort occurring in Australia but outside New South Wales or in New Zealand will govern a claim concerning that tort litigated in a New South Wales court or tribunal, in preference to the forum law. It can truly be characterised as a choice of law enactment even to the extent that it is capable of importing the absence of a limitation provision if none such exists in the statute law of the place of the tort. 36 I have sought to demonstrate why the appellant can draw no support from the argument that the Choice of Law Act was passed in an era when the double-actionability choice of law principle was part of the Australian common law. Indeed, the argument harms the appellant's position in one respect, because the pre-John Pfeiffer common law, which viewed limitation provisions as part of the procedural law of the forum for choice of law purposes, only tends to highlight the displacing effect of the Choice of Law Act. By importing as substantive law the limitation laws that govern in the place of the tort, it necessarily displaces the limitation laws that might otherwise govern in the forum. Viewed this way, the Choice of Law Act, being ambulatory, may be viewed as expressing a position about the non-applicability of provisions such as s12A to tort claims arising elsewhere but litigated in a New South Wales court. 37 I have not overlooked the arguments stemming from the Second Reading speech for the Bill containing what became s12A. The appellant's strongest argument is the submission that s12A was intended to have a broad and beneficial operation, in aid of plaintiffs (and incidentally the Tribunal itself) who are to be spared the toils of contested applications for discretionary extension of time. 38 As the Second Reading speech makes plain, when s12A was enacted, there was proper recognition that the High Court's approach to the doctrine of forum non conveniens enunciated in cases such as Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 and Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 meant that victims of torts occurring elsewhere might not necessarily be turned away from New South Wales courts (see Grigor). However, matters are not quite so simple. For one thing, Grigor deals with a plaintiff coming from overseas to litigate tort claims in a New South Wales court. Such a plaintiff coming from interstate was always at greater risk of being turned away to a "more appropriate" interstate forum under the transfer provisions of the Cross-vesting Act (see Bankinvest AG v Seabrook (1988) 14 NSWLR 711 and the discussion in James Hardie & Coy Pty Ltd v Barry [2000] NSWCA 353). 39 For proper reasons, considerable restraint must be exercised in construing an enactment in light of a Minister's speech, especially as regards what the speech says as to the intended effect of the enactment as distinct from the mischief giving rise to it. Whether or not the former is to be excluded entirely (cf Interpretation Act 1987, s34), the Minister's anticipation of litigants flocking from interstate attracted by the prospect of ignoring interstate time bars is really no more than that. It cannot control the proper application of the common law (cf John Pfeiffer) or the proper construction of the Choice of Law Act itself. 40 There is a further difficulty with reliance upon what the Minister said in relation to s12A. It is at least counterbalanced by what the Minister said in relation to the Choice of Law Act, namely its intent to discourage forum shopping. Indeed, John Pfeiffer contains several statements to similar effect about the common law. 41 The appellant's reliance upon the words "Nothing…operates" in s12A(2) does not assist. The subsection cannot be tortured into a statement that no limitation bar shall apply in proceedings in the Tribunal.

[39]

Conclusion re scope of s12A 43 Accordingly, the challenge to O'Meally P's judgment relating to s12A should be rejected. Challenge to finding re loss of earning capacity 44 The damages awarded to the appellant did not include any amount for loss of earning capacity. 45 The appellant was born in 1936. He first began to experience symptoms on the left side of his chest in 1989, but those symptoms did not prevent him working in supervisory or sedentary roles. In fact he worked in such roles in the Cairns area between the late 1980s and 1992. He had not worked since 1993 (when he was aged 56). He was granted a disability pension in 1994. 46 O'Meally P explained why there was no award for loss of earning capacity in the following terms: The plaintiff left Cairns where he was working as a self-employed builder. The plaintiff, as recited, ceased his self-employment building enterprise in 1985 and in the same year commenced employment with Steel Tru Frames Pty Limited in Manunda, a suburb of Cairns. That work was as a draughtsman and it is, as it seems to me, work of a type which now he could manage. There is general agreement, as I have noted, that the plaintiff is fit for sedentary, supervisory or light work. The plaintiff, however, claims that at his age and in his condition he is unable to obtain work. In 1989 the plaintiff moved to Bundaberg. By reason of the fact of holding commissions as a judge of the Compensation Court of New South Wales I am required to have knowledge of the state of the labour market in this State. I do not know the state of the labour market in Queensland and no evidence was called to acquaint me with conditions in Queensland. I accept, with everyone involved in this case, that the plaintiff cannot engage in heavy work. I accept with everyone involved in this case, there is work which he can do. The plaintiff however, has not persuaded me to the view that there is any loss of earning capacity as a result of such pain and discomfort as he suffers. I am not persuaded to the view that the plaintiff is entitled to an amount for loss of earning capacity. I am not persuaded to the view that the plaintiff is entitled to an amount for past loss of income. He has not discharged the onus of proof on these issues.

[40]

47 The appellant submits that this reasoning discloses error of law because the judgment effectively accepted that the appellant's disease left him unfit for labouring work. It is submitted that his Honour was obliged to value the loss of earning capacity from the disease even if the task may have been difficult in light of the exiguous evidence. It is submitted that the disease process had robbed the appellant of the ability to engage in heavy work and this was the loss of capacity that had to be valued to the extent that it was productive of financial loss (cf Husher v Husher (1999) 197 CLR 138 at 143). The appellant submits that the lost capacity had a value, particularly in light of his evidence that it is difficult get a supervisory role as a carpentry foreman if you are not able to do any "hands on work" (Bk 21). 48 The appellant referred the Court to Yammine v Kalwy [1979] 2 NSWLR 151. In that decision there are statements to the effect that absence of evidence concerning wage levels will not necessarily preclude an award for economic loss (see esp at 155, 157-8. See also State of New South Wales v Moss (2000) NSWCA 133 at [66]ff per Heydon JA). 49 This appeal is relevantly confined to a question of law. On that basis I detect no error in his Honour's reasoning. It is true that a court must do the best it can with the available evidence in the necessarily impressionistic task of assessing damages for lost earning capacity. It is equally true that absence of evidence about wage rates or working conditions in a particular vocation does not necessarily or usually deprive a tribunal of fact of the capacity to make a proper assessment. 50 But it is not the law, as I understand it, that a tribunal of fact must find a positive value in such an assessment exercise. The ultimate approach is, as stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.

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