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

LOWER COURT JURISDICTION : Dust Diseases Tribunal LOWER COURT DDT 51/95 FILE NUMBER(S) : LOWER COURT O'Meally P JUDICIAL OFFICER :

App: C Hoeben SC COUNSEL : 1st R: FM Douglas QC/DE Graham/TGR Parker 2nd R: J Fernon Attorney General (NSW) intervening: M G Sexton SC/ S Gageler App: McLaughlin & Riordan SOLICITORS : 1st R: Holman Webb 2nd R: Toomey Pegg & Drevikovsky I V Knight, State Crown Solicitor (Intervener) CATCHWORDS : Conflict of laws - appellant claiming damages for asbestos related pleural disease - s11 Limitation of Actions Act 1974 (Qld) - characterising laws as procedural or substantive for choice of law purposes - s5 Choice of Law (Limitation Provisions) Act 1993 (NSW) (the Choice of Law Act) - whether the Choice of Law Act has been displaced by s12A Dust Diseases Tribunal Act 1989 ( the DDT Act) - the Choice of Law Act not a statute of limitations - double actionability rule for Australian torts - Choice of Law Act occupies totality of intended field - importation as substantive law the limitation laws governing in place of tort displaces limitation laws governing in forum - discussion of Second Reading speech for the DDT Bill - restraint to be exercised in construing enactment in light of Minister's speech - intended effect of enactment as distinct from mischief giving rise to it - no error of law in the trial judge's refusal of an award for economic loss - loss of earning capacity - no error of law where tribunal unpersuaded of financial loss - no evidence about availability of relevant remunerative work in area plaintiff lives - appeal dismissed with costs. (D) DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40850/99 DDT 51/95

SPIGELMAN CJ MASON P PRIESTLEY JA

Geoffrey John Thomas BREAR v JAMES HARDIE & COY PTY LTD & Anor In 1995 the appellant commenced proceedings in the Dust Diseases Tribunal claiming damages for asbestos-related pleural disease. He sued three defendants: the Commonwealth of Australia, James Hardie & Co Pty Ltd and Seltsam Pty Ltd. Among other things he claimed that, James Hardie, had manufactured and supplied asbestos cement products to which he was exposed during employment in various callings between 1952 and 1985. The proceedings were tried before O'Meally P in 1999. They resulted in a verdict and judgment for the appellant against James Hardie in the sum of $10,952 and verdicts in favour of the other defendants (see Brear v Commonwealth (1999) 18 NSWCCR 637). It was common ground that choice of law rules could result in a different outcome in relation to this disease for the Queensland torts as distinct from the New South Wales torts.

The Queensland-based claims were held barred by application of s11 of the Limitation of Actions Act 1974 (Qld) which provides that actions for personal injury damages for negligence shall not be brought after the expiration of 3 years from the date on which the cause of action arose, notwithstanding any other Act or law or rule of law. O'Meally P held the issue to be whether the Queensland provision was, or was to be regarded as, part of the substantive law of Queensland. In accordance with McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 40-43, s11 would have been characterised as a procedural law for choice of law purposes. However, s5 of the Choice of Law (Limitation Provisions) Act 1993 (NSW) (the Choice of Law Act) reversed this, and deemed the Queensland provision to be a substantive provision of Queensland law.

His Honour then addressed the argument with which this appeal is concerned, namely whether the Choice of Law Act has been displaced for all purposes in the Dust Diseases Tribunal by s12A of the Dust Diseases Tribunal Act 1989 (the DDT Act), which was inserted in 1998. Section 12A of the DDT Act was inserted by the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998. It provides: No limitation period 12A (1) The purpose of this section is to enable proceedings to be brought before the Tribunal in relation to dust-related conditions at any time.

(2) Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust-related conditions.

O'Meally P held that s12A is confined in its operation to the Limitation Act 1969 (NSW) and to any other statute of limitations operating in or relevantly affecting New South Wales proceedings. He held that the Choice of Law Act fell outside the scope of s12A of the DDT Act, characterising the former as a choice of law statute and not "a statute of limitations". This appeal primarily involved the correctness of these conclusions. There was also a challenge relating to the refusal of an award for economic loss.

HELD (by Mason P, Spigelman CJ and Priestley JA agreeing dismissing the appeal):

1 Discussion of relationship between John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, 74 ALJR 1109 and Choice of Law Act. John Pfeiffer (discussed); Gardner v Wallace (1995) 184 CLR 95 (discussed); McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 (discussed).

2 O'Meally P was correct in his characterisation of the Choice of Law Act 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. 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.

3 The Second Reading speech for the Choice of Law Bill containing what became s12A does not show that limitation bars will not apply in proceedings in the Tribunal. Oceanic Sun Line Special Shipping Line Co Inc v Fay (1988) 165 CLR 197 (referred); Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (referred).

4 It was unnecessary and inappropriate to deal with the respondents' argument whereby they invoked s118 of the Constitution in an attempt to give s11 of the Limitation of Actions Act 1974 (Qld) primacy over s12A of the DDT Act.

5 The trial judge did not err in law in the refusal of an award for economic loss. Yammine v Kalwy [1979] 2 NSWLR 151 (referred); State of New South Wales v Moss (2000) NSWCA 133 (referred); Briginshaw v Briginshaw (1938) 60 CLR 336 (referred); Giorginis v Kastrati (1988) 49 SASR 371 (referred).

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40850/99 DDT 51/95

SPIGELMAN CJ MASON P PRIESTLEY JA

Geoffrey John Thomas BREAR v JAMES HARDIE & COY PTY LTD & Anor JUDGMENT 1 SPIGELMAN CJ: I agree with Mason P. 2 MASON P: In 1995 the appellant commenced proceedings in the Dust Diseases Tribunal claiming damages for asbestos-related pleural disease. He sued three defendants: the Commonwealth of Australia, James Hardie & Co Pty Ltd and Seltsam Pty Ltd. Among other things he claimed that, James Hardie, had manufactured and supplied asbestos cement products to which he was exposed during employment in various callings between 1952 and 1985. The employment between 1969 and 1985 was in the Cairns area. 3 The proceedings were tried before O'Meally P in 1999. They resulted in a verdict and judgment for the appellant against James Hardie in the sum of $10,952 and verdicts in favour of the other defendants (see Brear v Commonwealth (1999) 18 NSWCCR 637). His Honour concluded that the appellant's pre-1969 exposure in New South Wales to James Hardie's products caused 10 percent of his compensable disability. As to the later (Queensland) exposure, 88% was attributable to James Hardie's products and 2% to Seltsam's products. It was common ground that choice of law rules could result in a different outcome in relation to this disease for the Queensland torts as distinct from the New South Wales torts. (There was no cross appeal from this conclusion.) 4 The Queensland-based claims were held barred by application of s11 of the Limitation of Actions Act 1974 (Qld) which provides: Notwithstanding any other Act or law or rule of law, an action for damages for negligence... in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person... shall not be brought after the expiration of 3 years from the date on which the cause of action arose.

5 O'Meally P referred to Gardner v Wallace (1995) 184 CLR 95 and Thompson v Hill (1995) 38 NSWLR 714. He held the issue to be whether the Queensland provision was, or was to be regarded as, part of the substantive law of Queensland. In accordance with McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 40-43, s11 would have been characterised as a procedural law for choice of law purposes. However, s5 of the Choice of Law (Limitation Provisions) Act 1993 (NSW) (the Choice of Law Act) reversed this, and deemed the Queensland provision to be a substantive provision of Queensland law. 6 His Honour then addressed the argument with which this appeal is concerned, namely whether the Choice of Law Act has been displaced for all purposes in the Dust Diseases Tribunal by s12A of the Dust Diseases Tribunal Act 1989 (the DDT Act), which was inserted in 1998. O'Meally P held that s12A is confined in its operation to the Limitation Act 1969 (NSW) and to any other statute of limitations operating in or relevantly affecting New South Wales proceedings. He held that the Choice of Law Act fell outside the scope of s12A of the DDT Act, characterising the former as a choice of law statute and not "a statute of limitations". 7 This appeal primarily involves the correctness of these conclusions. There is also a challenge relating to the refusal of an award for economic loss.

Brear challenged in a related appeal 8 On 24 and 25 August 2000 the Court similarly constituted heard two related applications under the Jurisdiction of Courts (Cross-vesting) Act 1987 (the Cross-vesting Act) relating to a proceeding pending in the Tribunal. Judgment in those matters will be handed down concurrently with judgment in the present appeal (James Hardie & Coy Pty Ltd v Barry & Anor; Seltsam Pty Ltd v Barry & Anor [2000] NSWCA 353). One issue in those proceedings was the correctness of the decision presently under appeal. 9 Arrangements were made for the hearing of this appeal to be expedited. The Court is grateful for the co-operation of the legal advisers. Since those involved in this appeal had access to the transcript of hearing in the other proceedings, it will be convenient to address in this judgment the arguments advanced on the common issue at the two hearings.

The "competing" statutes 10 The long title of the Choice of Law Act is "an Act relating to limitation periods for choice of law purposes". Relevantly it provides: Definitions

"court" includes arbitrator; "limitation law" means a law that provides for the limitation or exclusion of any liability or the barring of a right of action in respect of a claim by reference to the time when a proceeding on, or the arbitration of, the claim is commenced.

4. This Act extends to a cause of action that arose before the commencement of this Act, but does not apply to proceedings instituted before the commencement of this Act.

5. If the substantive law of a place, being another State, a Territory or New Zealand, is to govern a claim before a court of the State, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court.

6. If a court of the State exercises a discretion conferred under a limitation law of a place, being another State, a Territory or New Zealand, that discretion, as far as practicable, is to be exercised in the manner in which it is exercised in comparable cases by the courts of that place. 11 The Minister's second reading speech in the Legislative Assembly stated that the purpose of the Bill was to reverse McKain in light of the problems identified in chapter 10 of the Australian Law Reform Commission Report, Choice of Law, No 58 1992. He pointed out that: The bill seeks to recognise the law of a jurisdiction dealing with limitation periods as part of the substantive law of that jurisdiction. The result will be to curtail forum shopping. (New South Wales Parliamentary Debates, Assembly, 17 November 1993)

12 It is clear that the Choice of Law Act is expressed in general and ambulatory terms. 13 Section 12A of the DDT Act was inserted by the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998. It provides: No limitation period 12A (1) The purpose of this section is to enable proceedings to be brought before the Tribunal in relation to dust-related conditions at any time.

(2) Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust-related conditions.

(3) Without limiting subsection (2): (a) sections 14, 18A, 60C and 60G of, and Schedule 5 to, the Limitation Act 1969 do not prevent the bringing or maintenance of any such proceedings before the Tribunal, and (b) any such proceedings may be brought or maintained before the Tribunal even though a limitation period has already expired under that Act, and (c) any such proceedings may be brought or maintained before the Tribunal as if Division 1 of Part 4 of that Act had never been in force.

14 Because the Commonwealth was a party, the Tribunal was exercising federal jurisdiction. Accordingly, ss 79 and 80 of the Judiciary Act 1903 (Cth) were the juridical sources of application of the statute law of the New South Wales Parliament to the instant proceedings. Nothing, however, turns upon this. The question of reconciling the possible conflict between the Choice of Law Act and s12A of the DDT Act remains. The parties are agreed that the ultimate issue is whether s12A ousts the importation of Queensland law through the choice of law principle stated in the Choice of Law Act.

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.

18 The appellant relies upon this passage as recognition that: • s12A serves a beneficial purpose; and

• the enactment of s12A without more would encourage forum-shopping from interstate or elsewhere in light of the principles recognised by the Chief Justice and myself in James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 esp at 40-41 and 43 ( Grigor ). 19 The appellant submits that the reasoning of O'Meally P, wherein he characterised the Choice of Law Act as a choice of law statute and not a statute of limitations, is flawed. His Honour cited the judgment of Dawson J in Gardner, whose reasoning in some respects has recently been overturned by the High Court in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, 74 ALJR 1109, 172 ALR 625. The upshot, according to the appellant, is that the Choice of Law Act does no more than codify the common law as declared in John Pfeiffer. 20 It is unclear where this lastmentioned submission leads, especially since the common law as reformulated in John Pfeiffer accords fully with the Choice of Law Act as construed in Gardner. The fact that Gardner discusses the double-actionability choice of law principle is irrelevant to the matter at hand. If, however, there is an implicit suggestion that the meaning and perhaps force of the Choice of Law Act is somehow diminished because the High Court subsequently re-formulated the common law to similar effect then I must emphatically reject it. It is bad enough for a clearly expressed remedial statute to be construed by reference to the earlier common law, but to do so by reference to the later reformulated common law is to overlook the supremacy of Parliament over the common law. The Choice of Law Act was intended to alter the common law as declared in McKain, it achieved that intention in 1993 as explained in Gardner, and courts in this State are obliged to give effect to the statute (properly construed) regardless of later developments in the common law in Australia.

Respondents' submissions on appeal 21 The Commonwealth was not a party to the appeal. 22 The two respondents (James Hardie and Seltsam) submit that the primary judge was correct in the application of the Choice of Law Act. 23 They have also filed notices of contention asserting that • s12A is incapable of application because the common law formulated in John Pfeiffer requires resort to the Queensland limitation statute; and • s118 of the Constitution required the Tribunal to apply the Queensland limitation statute in preference to s12A of the DDT Act .

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.

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.

Constitution, s118 42 It is unnecessary and inappropriate to deal with the respondents' constitutional argument whereby they invoke s118 of the Constitution in an attempt to give s11 of the Limitation of Actions Act 1974 (Qld) primacy over s12A of the DDT Act. There are difficulties with using s118 to guide choice of law in a context that does not involve a State court refusing to apply an interstate enactment on the grounds of public policy (see John Pfeiffer).

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.

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.

51 No error of law emerges if a tribunal of fact is unpersuaded of financial loss, in the absence of evidence about the availability of relevant remunerative work in the area where the plaintiff lives or is likely to live. 52 Between the late 1980s and 1992 the appellant did supervisory/sedentary work in the Cairns area. The appellant moved to Bundaberg, Queensland in mid 1992. Initially he was not employed while he was building his home there. Later - and for only a short period in mid 1993 - he was engaged as a building supervisor in a project in Bundaberg "while I agreed to, and I wasn't to do any manual work, there was only supervisory capacity, and unfortunately I didn't receive any money for it, I got dudded". Thereafter from 1993 onwards he was entirely unemployed. His evidence was that he sought work as a building supervisor but that he was unable to get it in a context where he could not do "hands on" work. He ceased trying after 1994 when he went on a disability pension. The judge was entitled to take into account the fact that the appellant called no evidence about matters upon which it might have been expected that the appellant or witnesses called by him might have cast light (see Giorginis v Kastrati (1988) 49 SASR 371 at 375). 53 Contrary to the appellant's submission, I do not accept that the experienced trial judge equated loss of earning capacity with loss of earnings or that he otherwise erred in law. 54 I also note that the respondent submits (correctly) that there is no explicit finding that the disease which became symptomatic in May 1989 deprived the appellant of his then capacity to engage in heaving work. There was evidence of earlier back and other health problems that could have affected the appellant's capacity to perform heavy work prior to the lung disease becoming symptomatic. 55 The appeal should be dismissed with costs. 56 PRIESTLEY JA: I agree with Mason P. ************

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