Laminex (Australia) Pty Ltd (trading as Laminex Industries) & Anor v Coutts; Royal & Sunalliance Insurance Group PLC UK v Coutts; Government Insurance Office of New South Wales & Anor v Coutts; CSR Ltd v Coutts

Court of Appeal (NSW)|2006-07-07|Before: Giles JA, Hodgson JA, Bryson JA, Duck J

Background 2 Between the early 1960s and 1998 the respondent worked as a cabinet maker and then a shopfitter in England and Australia. His occupation meant that he inhaled substantial quantities of wood dust, most commonly from working with medium density fibre board. 3 For some years prior to 1999 the respondent had regular nose blockage and loss of smell. In early 1999 it was found that he had adenocarcinoma of the sinuses, also known as ethmoid cancer. There was a large tumour, described as like a pigeon's or maybe hen's egg, between the eyes. Its invasion was such that its surgical removal involved loss of one eye and much of the sinus tissue, and the respondent underwent extended hospitalisation and was left with disfigurement. 4 As a post-operative complication the respondent suffered a period of atelectasis, the collapse of part of a lung. That resolved after a short time. The removal of the sinus tissue, however, meant that air inhaled by the respondent was not warmed and filtered, and caused chronic irritation to his lungs and a tendency to cough. That will continue indefinitely. Further, at later times the respondent suffered from septic arthritis in the knee and epilepsy, and alleged that both conditions were attributable to the surgery. 5 In May 2000 the respondent brought proceedings in the Tribunal against CSR Ltd, a manufacturer and distributor of medium density fibre board and other wood products, and J Odlin (International) Pty Ltd, an employer in his shopfitting work for many years. He alleged negligence in the defendants' respective capacities whereby he was exposed to wood dust which caused the ethmoid cancer, and that consequent upon the surgery for that condition he suffered a pathological condition of the lungs and thus a dust-related condition within the meaning of the Act. 6 In May 2001 Duck J heard as a separate question under Pt 31 r 2 of the Supreme Court Rules, as applicable to the Tribunal, the then defendants' contention that the respondents' proceedings were not within the Tribunal's jurisdiction. In a judgment given on 22 May 2001 his Honour decided that the Tribunal had jurisdiction in the proceedings. The defendants did not then apply for leave to appeal. 7 By 2006 the proceedings had been enlarged, and there were eight defendants in all. The third defendant was the insurer of J Odlin Shopfitting Pty Ltd, another employer in the respondent's shopfitting work. The fourth, fifth, sixth, eighth and ninth defendants were, or were the insurers of, respectively Woodland Pty Ltd, Anfor Investments Pty Ltd, Amcor Ltd, Laminex (Australia) Pty Ltd and Amatek Ltd, all manufacturers and distributors of medium density fibre board and other wood products. The respondent had discontinued against the seventh defendant. All the additional defendants were sued for negligence in their respective capacities, and the ultimate dust-related condition was alleged against them, in like manner to the original defendants. 8 In the defences of each of the additional defendants it was contended that the respondent's proceedings were not within the Tribunal's jurisdiction. The defences were in similar terms; it is sufficient to note that the defence of the third defendant included that it - " … says that the Plaintiff does not suffer from and has not suffered from a 'dust-related condition' within the meaning of the Dust Diseases Tribunal Act, 1989 ("the DDTA") and therefore the Dust Diseases Tribunal does not have jurisdiction to hear and/or determine the plaintiff's claim." 9 The proceedings were set down for a three week hearing to commence on 26 June 2006. At the commencement of the hearing Duck J heard as a separate question under Pt 28 r 2 of the Uniform Civil Procedure Rules, the successor to Pt 31 r 2 of the Supreme Court Rules, the additional defendants' contentions that the respondent's proceedings were not within the Tribunal's jurisdiction. The evidence which had been tendered on the May 2001 separate issue was again tendered, without supplement. On 28 June 2006 his Honour gave a judgment in which he again decided that the Tribunal had jurisdiction in the proceedings. 10 The hearing in the Tribunal was adjourned, and the fourth, eighth and ninth defendants filed applications for leave to appeal from the decision of 28 June 2006. Bryson JA ordered that the hearing of the applications be expedited, and they were fixed for hearing on 7 July 2006. At the hearing leave was given to other defendants to file applications for leave to appeal returnable instanter, in the cases of the original defendants being appeal from the decision of 22 May 2001 with extensions of time. 11 The respondent had requested the June 2006 separate issue, wishing to avoid a lengthy trial when jurisdiction was under challenge. He did not oppose the indulgence granted to the original defendants, recognising that they` should be bound by the one decision. The question has some general importance, and in the circumstances which have arisen leave to appeal should be granted to the several defendants.

The legislation 12 Section 10 of the Act relevantly provides - " 10 Jurisdiction and functions of the Tribunal

(1) The Tribunal has, except as provided by sections 29 and 32, exclusive jurisdiction to hear and determine proceedings referred to in sections 11 and 12.

(2) The Tribunal has such other jurisdiction as may be conferred on it by or under any other Act.

(3) The Tribunal has, wherever sitting, jurisdiction throughout New South Wales.

(4) In any proceedings brought under section 11 or transferred under section 12, the Tribunal has the same power to make decisions as the Supreme Court would, but for this section, have had in relation to similar proceedings brought in the Supreme Court.

(5) Subject to sections 13 (6) and 14, a decision of the Tribunal has the same effect as, and may be enforced in the same way as, a decision of the Supreme Court.

(6) … " 13 The exceptions in s 29 (assessing costs, now repealed) and 32 (appeal) are not material to whether the Tribunal has jurisdiction to hear the proceedings. It was not suggested that any other act conferred relevant jurisdiction. 14 Section 11 provides - "11 Claims for damages for dust diseases etc to be brought under this Act

(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, and (b) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person, and (c) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death, 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. (1A) Proceedings by any tort-feasor liable in respect of damages referred to in subsection (1) to recover contribution from any other tort-feasor liable in respect of that damage may be brought before the Tribunal. Note. This subsection does not prevent those proceedings being brought in another court. (2) In subsection (1), a reference to a duty includes a reference to a duty imposed by statute as well as a duty imposed under the common law. (3) If the cause of action giving rise to proceedings to be brought under subsection (1) or (1A) also gives rise to a claim in respect of some other matter, the claim may be included in those proceedings even though it does not relate to a dust-related condition from which a person is suffering or has suffered. (4) Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) or (1A) may also be included in those proceedings. (5) In subsection (1) (c), the reference to a person claiming through a person who is or was suffering from a dust-related condition includes a reference to a relative for whose benefit an action may be brought under the Compensation to Relatives Act 1897." (italics added) 15 The italicised parts of s 11 were added by amendment in 2005, when the proceedings were already on foot as against all the defendants. By the transitional provision the amendment "extends to a cause of action that arises before the commencement of the amendment". It is not necessary to decide whether and how the amendment might apply to the respondent's proceedings, see Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135 at 144 per Hodgson JA. 16 "Dust-related condition" is defined in s 3 of the Act to mean - "(a) a disease specified in Schedule l, or

(b) any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust." 17 Section 12 requires the transfer from the Supreme Court or the District Court to the Tribunal of "proceedings of the kind referred to in section 11(1)", whether pending at the commencement of s 12 or thereafter "brought … or pending in the Supreme Court or the District Court." 18 Other provisions of the Act will be mentioned as appropriate later in these reasons.

The decisions of Duck J 19 The separate question ordered to be decided in June 2006 was "Whether the Tribunal has jurisdiction to hear and determine these proceedings". The order in May 2001 was not before us, but was taken in the appeals to have been to the same effect. 20 Duck J noted in his judgment of 22 May 2001 that for the purposes of deciding the question the parties "have proceeded on the footing that whether or not there has been a breach of duty is something that can be left until later. That is breach of duty has been assumed for the purposes of this argument". Nothing was said of breach of duty in the judgment of 28 June 2006. 21 An assumption, with its correctness left until later, is generally inappropriate where there is decision of a separate question as occurred here. The decision should bind the parties to a result, not a contingency, cf Baxter v Abacelo Pty Ltd (2001) 205 CLR 635 at [14], [63]. At least for the breach of duty to which s 11(1)(b) refers, neither proof nor assumption is necessary and it is sufficient if there is an allegation, see Anderson v Kaufman (1991) 7 NSWCCR 198 at 203 per Mahoney JA, 204 per Priestley JA and 207 per Clarke JA. Section 11(1)(c) can not by the reference to entitlement to bring an action require that the allegation be made good in order that there be jurisdiction. The earlier versions were not before us, but in the respondent's seventh further amended statement of claim there were adequate allegations that the defendants' negligence caused the respondent's injuries, including pathological conditions of the lungs. 22 The respondent had not suffered and did not suffer from a disease specified in Schedule 1 to the Act. On appeal, it was common ground that the ethmoid cancer was not a pathological condition of the lungs, peritoneum or pleura. 23 Taken from the judgments of 22 May 2001 and 28 June 2006, the reasoning of Duck J was relevantly -

(a) because of the period of atelectasis the respondent had suffered from, and because of the chronic irritation to his lungs he was suffering from, pathological conditions of the lung;

(b) these conditions were attributable to dust and were therefore dust-related conditions;

(d) The Tribunal thus had (exclusive) jurisdiction in relation to the dust-related conditions; and

(e) the Tribunal also had (non exclusive) jurisdiction in relation to the ethmoid cancer and its other consequences by virtue of s 11(3) or alternatively s 11(4) of the Act. 24 Although his Honour did not expressly take step (e) in his second judgment, he there implicitly adopted what he had said in his first judgment at [60] - "60. The cause of action giving rise to the proceedings in respect of those dust-related conditions also gives rise to another matter that is the entitlement to damages arising from the tumour and its treatment. Those matters may be dealt with in those proceedings. Alternatively the substantial claim relating to the tumour and its treatment is a matter which is related to the claim relating to the two minor identified dust-related conditions. I conclude therefore that the matter is within the jurisdiction of the Tribunal." 25 In the judgment of 22 May 2001 the judge came to his decision in favour of jurisdiction notwithstanding that he said - "50. My initial reaction to the plaintiff's submissions was that they seemed to be producing an unlikely result. In particular the proceedings for damages it seemed to me were really not in respect of the two relatively minor dust related conditions identified but rather in respect of the ethmoid cancer and that the plaintiff did not come within the terms of section 11. An examination of the various stages through which the Statement of Claim has passed confirms that the plaintiff's real complaint and the substance of his action is to do with that cancer rather than the minor dust related conditions. Learned counsel for the plaintiff submits however that the proceedings for damages are in respect of those two minor matters inter alia and the only place the plaintiff can go to be compensated for them is the Tribunal.

If the plaintiff is correct about jurisdiction then a position will be achieved in which a very small tail is wagging a very big dog. The defendant submits (2 T56) that a construction of the section which produces such an outcome is not correct. The plaintiff submits that if the words of the section are met then the jurisdiction is enlivened." 26 In the judgment of 28 June 2006 the judge dealt with an argument which seems not to have been put to him on the earlier occasion. His Honour said - "21. Mr Parker raised a consideration which was conceptual in nature and which he said demonstrated that the conclusion I had previously come to could not be correct as a matter of principle. As I understand and recollect the submission it proceeded this way: the plaintiff has a cause of action, he does not have multiple causes of action in respect of the multiple aspects of his damage. So much is not contested. The cause of action was complete when damage was first suffered or evident. That may have been in 1998. It was certainly complete when the ethmoid cancer manifested itself, and at that stage there was nothing affecting the plaintiff's lungs at all. It was only after surgery to treat the cancer that the plaintiff was left with lung troubles, about which I have spoken. The submission was then developed by saying, the plaintiff could bring proceedings in the Supreme Court in respect of the cancer and the sequelae of treatment would be aspects of damage which could be considered in the proceedings. It was submitted that it cannot be right that the plaintiff has some separate action for those sequelae affecting his lungs needing to be brought in the Tribunal on the one hand, and the other sequelae which can be the subject of the proposed action in the Supreme Court. Hence it is submitted that to consider the matter in that way demonstrates that the proposition that the pathological condition of the lungs identified may be sued upon only in the Tribunal is just wrong.

In further development of the submission learned counsel also pointed out that s 11(1) deals with a cause of action for damages in respect of a dust related condition and does not deal with separate heads of damage being separated out to be dealt with separately.

The analysis of the correct position I think ultimately requires the Tribunal to go to the terms of the statute conferring jurisdiction to see what they say. It is an obvious approach, it is probably correctly the only approach, and it was certainly the approach taken, for example, in Anderson v Kaufman (1991) 7 NSWCCR 198. Firstly, the section directs attention to the person who is suffering or has suffered from a dust related condition. It is by reference to the sequelae of exposure to dust that the section commences to address the conferring of jurisdiction. I think to attempt to analyse the jurisdictional question by reference to the conceptual matters raised by learned counsel for the eighth and ninth defendant turns the attention of the Court away from what the parliament has provided in the Act and that the correct answer will be found by considering the Act itself."

The issues on appeal 27 The appellants accepted on appeal that the atelectasis and the chronic irritation of the lung had been and were pathological conditions of the lung. They otherwise took issue with the judge's reasoning, not at the point of inclusion of a claim in respect of the ethmoid cancer and its other consequences in the proceedings pursuant to s 11(3) or (4) of the Act, but as to whether the respondent's conditions were attributable to dust and whether his proceedings were "proceedings for damages in respect of that dust-related condition" within s 11(1) at all.

Attributable to dust 28 The appellants submitted that the judge had erred in law in holding that the respondent's conditions were attributable to dust, because he had given the phrase "attributable to" a construction wider than its context permitted; they submitted that the conditions were indirect and remote consequences of exposure to dust, and were properly to be seen as attributable to the surgery. 29 In Anderson v Kaufman "attributable to" in s 11(1)(b) was regarded as referring to causal connection. Priestley JA at 204 considered it possible that the phrase operated differently in s 11(1)(b) and in the definition of "dust-related condition", but it was not necessary for their Honours to explore the phrase further. The judge referred to this case, and found further guidance in the discussion by Toohey J in Law v Repatriation Commission (1980) 29 ALR 64, taking from it that - " … the extent of the causal relationship required is not as direct as the expression 'caused by' might require. I note that Toohey J ultimately came to the view that some causal connection was required. I note the views of Donaldson J referred to above [ Walsh v Rother District Council (1978) 1 All ER 510 at 514] to the effect that the causal connection need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is quite sufficient. Applying those expressions of principle to the present circumstances I conclude that the after affects of the operation made necessary by the tumour which resulted from exposure to wood dust are attributable to that exposure." [at [56]] 30 The appellants pointed out, correctly, that Toohey J was applying the combination of phrases "has arisen out of or is attributable to", and that when the case went on appeal the Full Court took the two limbs separately (Repatriation Commission v Law (1980) 47 FLR 57 at 67-8). They submitted that in Roncevich v Repatriation Commission (2005) 79 ALJR 1366 at [27] it was said in the joint judgment of McHugh, Gummow, Callinan and Heydon JJ that the disjunctive use of the two phrases manifested a legislative intention to give a broad meaning. 31 However, while the Full Court described "arisen out of" as satisfied if a "less proximate causal relationship" was established than might be required by phrases such as "caused by" or "results from", their Honours also noted a number of cases construing "attributable to" and said that in each case it involved "an element of causation" and that "[t]he cause need not be the sole or dominant cause; it is sufficient to show 'attributability' if the cause is one of a number of causes provided it is a contributory cause" (at 68). The cases noted included Walsh v Rother District Council, applying the phrase "attributable to", from which Toohey J had cited for that limb of the combination of phrases. 32 In Roncevich v Repatriation Commission their Honours went on at [27] to say that "[a] causal link alone or a causal connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate". This was directed to the "attributable to" limb of the combination of phrases, with footnote reference to Walsh v Rother District Council and R v Monopolies and Mergers Commission; ex parte National House Building Council (1994) TLR 38. In the latter case the question was whether action was "attributable to the existence of a monopoly situation", and it was said that this connoted a causal connection but not the sole cause. 33 In my opinion, the judge did not err in the construction he gave to "attributable to" in the definition of "dust-related condition". The context in which it appears, part of the definition of the condition for which a claim may be brought under the Act, does not call for a more confined notion of causation that suffices for liability for the consequences of a tortious act, which can undoubtedly include consequences from medical treatment (see Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 528-30 and cases cited). 34 The judge's determination that, on this basis, the atelactasis and the chronic irritation of the lung were attributable to dust was open to him, and was a question of fact.

Proceedings for damages in respect of a dust-related condition 35 The appellants described the dust-related conditions as merely consequential effects on the respondent's lungs of his primary condition, the ethmoid cancer, which was not a dust-related condition. Their argument was similar to that with which the judge dealt in his [21]-[23] set out above, and in summary went as follows. The Tribunal was given jurisdiction to hear and determine proceedings which could have been heard in other courts, and the Act did not create new causes of action. In referring to proceedings, then, ss 10 and 11 meant proceedings on causes of action, relevantly to the respondent's proceedings causes of action for the common law tort of negligence or for breach of statutory duty. The causes of action were complete when the respondent first suffered damage, which was at the latest when it was found that he had ethmoid cancer in early 1999. Any further damage thereafter suffered by the respondent was compensable as part of the same cause of action. The respondent could bring proceedings for damages in respect of his condition of ethmoid cancer, which was not a dust-related condition, but he could not bring separate proceedings for damages in respect of the dust-related conditions of atelectasis and chronic lung irritation: they were no more than consequential disabilities compensable within the cause of action which was complete at a time prior to their emergence. The proceedings were therefore not for damages in respect of those conditions. 36 It may be accepted that the Act did not create new causes of action. The Act created a specialist tribunal to hear proceedings for damages of specified kinds which would otherwise be heard in the Supreme Court or the District Court, see Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 at 417; Amaca Pty Ltd v Cremer [2006] NSWCA 164 at [28]-[29], [107]. In the first of these cases, Gleeson CJ said at 417 that "the Tribunal's jurisdiction replaces that formerly exercised by those courts". 37 However, the Tribunal's jurisdiction is not described in terms of causes of action. Rather, it is described in terms of a set of conditions in s 11(1)(a), (b) and (c) concerned with suffering a dust-related condition and entitlement to bring an action for recovery of damages in respect of that condition or related death, and the statement that proceedings for damages in respect of the dust-related condition or death may be brought. 38 The express conferral of jurisdiction in s 10(1) is of jurisdiction to hear and determine "proceedings referred to in sections 11 and 12". The proceedings are relevantly described in s 11(1) as proceedings "for damages in respect of that dust-related condition", being the dust-related condition from which a person had suffered or was suffering and in respect of which the person would, but for the Act, have been entitled to bring an action for the recovery of damages. Their statutory feature is that they are for damages of a particular kind, damages in respect of the dust-related condition. That is satisfied if, by the proceedings, the person claims damages as compensation for suffering the dust-related condition. 39 It is made plain that the proceedings may be brought although the person's cause of action extends to claims for other damages. Section 11(3) distinguishes between the person's cause of action, on the one hand, and that to which the cause of action gives rise, on the other hand. The phrases "giving rise" and "give rise" are not terms of art; they convey legal entitlement on the cause of action. From the word "also", giving rise to proceedings to be brought under s 11(1) is equated to giving rise to a claim. Again, the proceedings brought under s 11(1) are proceedings in which the person claims damages of a particular kind, damages in respect of the dust-related condition. 40 In my opinion, the criterion for the Tribunal's jurisdiction is not whether the person's cause of action when first accruing was a cause of action to recover damages for a dust-related condition. It is sufficient that on the cause of action the person claims or comes to claim damages in respect of the dust-related condition, even though the person's claimed entitlement on the cause of action is also to damages in respect of other matters. 41 The appellants sought to gain support from observations of Mahoney JA in Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100. It was there held that the Tribunal had jurisdiction in proceedings in respect of the death of a person caused by a dust-related condition to hear and determine claims for damages pursuant to the Compensation to Relatives Act 1897 and for nervous shock pursuant to the Law Reform (Miscellaneous Provisions) Act 1944 ("the LR Act"). For Samuels AP, with whom Clarke JA agreed, this involved "claiming through" in s 11(1)(c). Mahoney JA considered that it involved "proceedings for damages in respect of that dust-related condition or death" in s 11(1), and that both claims were within those words; but he added (at 110) -

"It is, in my opinion, at least arguable that some restriction is to be placed upon the generality of the words 'in respect of' in that provision. The matter may be tested by an example. Assume that X defamed one of the present defendants by publishing a statement that it had caused the death of the relevant deceased by a dust-related condition which it deliberately induced. A proceeding against X for defamation would, in the widest meaning of the phrase, be a proceeding for damages in respect of the dust-related condition or death of that person. But it is at least questionable whether such a proceeding would be within the jurisdiction of the Tribunal.

In my opinion, if the generality of 'in respect of' is to be conditioned, it is to be conditioned by reference to the objective which the legislation sought to achieve and the means it chose to achieve it. Without pursuing the detail of this matter, the kind of 'proceeding for damages' that the legislature envisaged as described by the term "in respect of" is a proceeding deriving from the kind of situation adverted to in particular in par (b), viz, the situation where the condition or death of the person suffering from a dust-related condition is attributable to a breach of duty owed to him by another." 42 The appellants submitted that this recognised that there was a limit to "in respect of", and that it at least opened the way for the respondent's proceedings being outside the generality of the words. 43 The Court returned to Mahoney JA's observations in Anderson v Kaufman. It was held that proceedings brought against a medical practitioner for negligent failure to examine and diagnose a lung condition, whereby the plaintiff developed advanced mesothelioma (a dust-related condition), were proceedings for damages in respect of that condition. Clarke JA said (at 207-8) that the claim was a claim for damages for the very dust-related condition, and that it did not matter that it was brought against an employer, a public authority or a medical practitioner; he referred to Mahoney JA's observations and said (at 208) that he "would not be prepared to agree with the proposition that there should be any greater restriction placed upon the apparent width of the phrase 'in respect of'." Mahoney JA said (at 202-3) - "In Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100 at 109, I referred to the obvious width of the words 'in respect of' and to the necessity of considering in due course whether the words are to be given their widest meaning or whether they are to be limited in some way: at 110. In the present case I do not think that it is necessary to attempt to define precisely such limits as may be appropriate to be applied to the words. It may be that the proceedings in question must be shown to be proceedings for those damages or losses that come from the dust related condition in question. Such an understanding of the words would mean that the kind of defamation proceeding to which I refer in Mangion's case would be outside the section: those damages would come not from the condition but from the publication of the allegations to which I there refer. However, such a definition, if treated as exhaustive, might not be a satisfactory definition so as to accommodate proceedings such as proceedings under the Compensation to Relatives Act or nervous shock cases of the kind which, in the Mangion case, were held to be within s11. It is sufficient, therefore, for present purposes to hold that where there is a claim for damages and those damages are, as the present damages are, alleged to have been caused by the dust related condition in question, the proceedings are within the section." 44 The example of the defamation proceedings is distant from the present case. They would be brought on a different cause of action, whereas in the present case the respondent's claim is within the kind of proceedings considered to be within the scope of "in respect of", namely, that the condition of the person suffering from a dust-related condition is attributable to a breach of duty owed to him by another. No doubt a de minimis principle will apply, so that an insignificant claim will not mean that proceedings are for damages in respect of a dust-related condition. That can not be said of the respondent's claim. 45 Section 11A of the Act allows the Tribunal to make successive awards of damages, changing the common law principle that damages are awarded once and for all. Section 11A(1) refers to the chance that at a future time the person "suffering from the dust-related condition in respect of which the proceedings are brought" will develop another dust-related condition "as a result or partly as a result of the breach of duty giving rise to the cause of action". This is consistent with distinguishing between the cause of action and a claim on the cause of action to damages in respect of a dust-related condition, and with the latter being the criterion for jurisdiction. 46 Section 12A of the Act provides that no statute of limitations "operates to prevent the bringing or maintenance of proceedings before the Tribunal in relation to dust-related conditions". In Wallaby Grip (BAE) Pty Ltd (in liquidation) v Eraring Energy (2004) 60 NSWLR 701 it was held that the "proceedings before the Tribunal" were those capable of being brought under s 11(1), and not claims which could be included within the proceedings as ancillary or related matters pursuant to s 11(4). The ancillary or related claim in question was a defendant's claim for statutory contribution; s 11(1A) of the Act may have changed this outcome. 47 The appellants submitted that support for their position was found in the observations of Mason P, with whom Sheller and Ipp JJA agreed, at [26] - "26 Section 11(4) of the DDT Act provides: Any matter that is ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1) may also be included in those proceedings. This provision recognises that ' ancillary or related matters' are part of proceedings falling within the jurisdiction of the Tribunal and subject to the powers and procedures of the Tribunal according to the general sections upon which the respondent relies. But, significantly for present purposes, s11(4) speaks of matters that are ' ancillary or related to a matter that is the subject of proceedings to be brought under subsection (1)' . The subsection permits such ancillary or related matters to be ' included in those proceedings' , but it does not treat them as the proceedings themselves or the basis for commencing the same in the Tribunal." 48 The appellants submitted that, in like manner, a claim in respect of some other matter as referred to in s 11(3) is not the proceedings or the basis for commencing the proceedings in the Tribunal. Even if correct, that is not in point if the Tribunal's jurisdiction is enlivened by the respondent's claim to damages in respect of the dust-related conditions of atelectasis and chronic lung irritation. The parasite cannot exist without a host; the present question is whether there is a host. 49 Section 12B of the Act does not so clearly distinguish between the cause of action and a claim on the cause of action to damages in respect of a dust-related condition. Its purpose is to entitle the estate of a person whose death has been caused by the dust-related condition to recover damages for non-economic loss, as an exception to the ordinary limitation in s 2(2)(d) of the LR Act to the statutory survival of a deceased person's cause of action for the benefit of the person's estate. Section 12B(2) provides - "(2) Section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 does not apply in relation to proceedings commenced by a person before his or her death and pending before the Tribunal at his or her death, where the cause of action is for damages in respect of a dust-related condition." 50 In Amaca Pty Ltd v Cremer it was held that s 12B did not entitle the estate of a person to recover damages for non-economic loss from a defendant joined in the proceedings only after the person's death. The question was whether the "proceedings commenced by a person before his death" were the proceedings generally, or the proceedings against the particular defendant. A cause of action had to be against a particular defendant, and the appellants submitted that the discussion of proceedings brought pursuant to the Act supported their argument. 51 McColl JA said at [75] that "proceedings" was a word of great generality which took its meaning from the context in which it appeared, and - "77 The word 'proceedings' ordinarily refers to the 'method permitted by law for moving a court or judicial officer to some authorised act' ( Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532 (at 536-537) per Isaacs and Gavin Duffy JJ), or 'any application by a suitor to a court in its civil jurisdiction for its intervention or action' ( Cheney v Spooner at 538-539, per Starke J) or to 'the invocation of the jurisdiction of the court by process other than writ' ( Herbert Berry Associates Ltd v Inland Revenue Commissioners at 1446).

78 'Proceedings' when used in ss 10-11 of the Tribunal Act plainly refers to the invocation of the Tribunal's jurisdiction to enforce the cause of action to recover damages in relation to the breach of duty referred to in s 11(1)(b) against the person said to have breached that duty. 'Proceedings' in s 12B also refers to the invocation of the Tribunal's jurisdiction, clearly refers to s 11(1) proceedings and must, therefore, be given the same meaning as in that section: see Herbert Berry Associates Ltd v Inland Revenue Commissioners at 1446. 79 This approach accords with Wallaby Grip (BAE) Pty Ltd (in liq) v Eraring Energy (at [25], [29]) where Mason P held that the 'proceedings' referred to in s 12A should be understood by reference to ss 11(1) or 12 which identified the persons entitled to commence proceedings that 'may be brought before the Tribunal'. Accordingly s 12A(2) did not operate to displace the operation of s 26 of the Limitation Act 1969 on cross-claims for statutory contribution in the Tribunal or elsewhere." 52 Basten JA, who dissented in the result, said at [107] that the proceedings for damages in respect of a dust-related condition or death "must relate to a general law cause of action, namely negligence, which will survive the death of the plaintiff … ". His Honour accepted at [127], however - " … that the ordinary meaning of the word "proceedings" as used in the Tribunal Act is wider than a single cause of action and supports the conclusion that each claim for damages against each defendant constitutes part of "proceedings in respect of a dust-related condition", in circumstances where several defendants were joined." 53 Brereton J referred particularly to ss 11(1), (3) and, (4) and, after noting that in Wallaby Grip (BAE) Pty Ltd (in liquidation) v Eraring Energy at [26] it had been said that s 11(4) did not treat the ancillary or related matters as the proceedings themselves or the basis for commencing proceedings in the Tribunal, said at [171] - "171 Nor, however, does it treat them as separate proceedings. Thus the "proceedings" referred to in s 11(1) are proceedings for damages in respect of a dust-related condition, but in which may be included claims in respect of other matters arising out of the same cause of action, and ancillary and related matters. The circumstance that proceedings under s 11 may be more wide-ranging than a single claim for damages in respect of a dust-related condition, by including ancillary and related claims, shows that the general notion of "proceedings" in the Act is wider than a single cause of action, and, consistent with the more usual meaning of "proceedings", tells against the view that each claim for damages against each defendant constitutes separate proceedings. However, this does not otherwise illuminate whether the exception provided by s 12B - in which there is specific reference to "the cause of action" - is limited to the proceedings on "the cause of action" commenced before death, or extends to all claims for damages in respect of a dust-related condition, whensoever brought, in such proceedings." 54 I do not think that the way s 12B is framed, or the discussion of proceedings brought pursuant to the Act in Amaca Pty Ltd v Cremer, call for a different view of the jurisdiction conferred on the Tribunal. While s 12B speaks of "the cause of action … for damages in respect of a dust-related condition", the reference to a cause of action is understandable when the LR Act spoke of survival of a cause of action, and the amendment's degree of disharmony with the original framing of the Act is explicable by the particular task to which it was directed. McColl JA referred to enforcing the cause of action to recover damages in relation to the breach of duty, but the jurisdictional significance of damages in respect of the dust-related condition was not before her Honour: a plaintiff in the Tribunal is suing on a cause of action, and it was sufficient for their Honours' consideration that the proceedings are brought to enforce the cause of action. Even then, Basten JA and Brereton J recognised that "proceedings" in the Act brings regard to the claims for damages arising out of the cause of action. 55 The appellants finally submitted that the Act should not be construed so as have an impractical or absurd operation. Taken from the written submissions, they said that the construction favoured by Duck J would - " … play havoc with the distribution of jurisdiction between the Supreme Court and District Courts on the one hand and the Tribunal on the other. At the time the opponent developed ethmoid cancer, he had not suffered any adverse effect upon his lungs. At that point, he could only have instituted proceedings in the Supreme or District Courts. Those Courts would then, in the ordinary course of events, have determined the opponent's claim and, if the opponent was successful, awarded damages to compensate the Plaintiff for the whole of his loss on that cause of action. If the Tribunal's construction is correct, then as soon as the plaintiff suffered a consequential effect on his lungs, the Supreme or District Court's jurisdiction to award damages for that head was withdrawn and was vested exclusively in the Tribunal. There can be no justification in policy or the words of the legislation for such an inconvenient and surprising result." 56 The appellants added that, if the plaintiff's proceedings in the Supreme Court or the District Court were statute-barred, as soon as the plaintiff suffered the consequential effect on his lungs s 12A of the Act would apply. There would be at least partial retrospective negation of the bar to maintaining the cause of action, and depending on how s 12A would apply to any "claim in respect of some other matter" within s 11(3) there would either be a wholesale negation of the bar or differential bars for different parts of the cause of action. It was submitted that this operation of the Act could not have been intended by the legislature. Reference was made to the acceptance by Mason P in Wallaby Grip (BAE) Pty Ltd (in liquidation) v Eraring Energy at [34] that it would be anomalous "that the availability or otherwise of a limitation defence in a claim for statutory contribution depends on the fortuity of the cross-claim being filed in the Tribunal", and it was said that in like manner it would be anomalous if the court granting relief and even the entitlement to damages depended on the fortuity of consequential emergence of a dust-related condition. 57 There is some force in these submissions. However, it is clear that legislature intended that the Tribunal should have exclusive jurisdiction in relation to the suffering of dust-related conditions; it described the basis for the jurisdiction through ss 10 and 11 of the Act. There would not be bifurcation of the cause of action and the necessity to have determinations in two courts. The Tribunal could hear and determine the plaintiff's cause of action in its entirety, and how s 12A would apply is not a matter for decision in this appeal; partial negation of the bar is undoubtedly consistent with the Act's purpose, and wholesale negation is not so startling that it governs the construction of the Act. 58 On many occasions it has been recognized that the Act established a special regime. In BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at [241] Callinan J said - "No doubt for reasons thought to be good and valid by the legislature of New South Wales, the regime is one established for the benefit of sufferers of dust-related diseases. It is not a regime in which, as a practical matter, defendants are likely to have the same rights both procedurally and substantively, as plaintiffs, and as they would have in the ordinary course in proceedings in the Supreme Courts of the States." 59 The focus must be on the language of the Act, which for the reasons I have given seems to me to catch the respondent's proceedings. In my opinion, Duck J came to a correct decision.

Orders 60 I propose the orders in each application -

Grant leave to appeal and direct the filing of a notice of appeal within seven days.

Appellant(s) pay the costs of the application for leave to appeal and the appeal. 61 HODGSON JA: I agree with Giles JA. I would add the following. 62 Where a defendant's breach of a duty of care to a plaintiff causes injuries to the plaintiff which include both a dust-related condition and other conditions, the plaintiff has a single cause of action for damages for these injuries; and unless there is some statutory warrant to the contrary, those damages must be sought in a single court action. 63 Unless there is some authorisation in the Dust Diseases Tribunal Act 1989 (the Act), or in some other legislation, for splitting this cause of action, s.11(1) of the Act requires that this single cause of action be brought in the Tribunal, at least unless the dust-related condition is de minimis or is not included in the damages claimed. The Act does not authorise the splitting of the cause of action, and indeed s.11(3) makes it clear that the whole cause of action may be dealt with by the Tribunal. In that sense, it makes explicit what was already implicit in s.11(1). 64 Thus, unless there is some other statutory warrant for splitting the cause of action (and none is suggested), the plaintiff cannot pursue the claim for damages in respect of other conditions in another court without abandoning the claim for damages in respect of the dust-related condition. On the other hand, pursuit of the claim in respect of the dust-related condition in the Tribunal does not prevent claims referred to in s.11(4) being pursued in another court, subject possibly to Anshun considerations. 65 This means in turn that, if a dust-related condition arises after other conditions have been caused by the defendant's breach of duty, the cause of action then changes from one in respect of which the Tribunal has no jurisdiction into one in which the Tribunal does have jurisdiction, and indeed sole jurisdiction if the plaintiff wishes to include a claim for damages for the dust-related condition. If proceedings had previously been commenced in another court, they would need to be transferred to the Tribunal under s.12. If proceedings had not been commenced and were otherwise statute-barred, s.12A of the Act would permit them to be brought, at least to the extent that damages were claimed for the dust-related condition, and perhaps generally. 66 To my mind, this is not an absurd conclusion, either generally or in relation to the present case. In the present case, as I think would generally be so, the whole of the plaintiff's injuries were caused by dust, and the problem has arisen only because the main injuries are neither a disease specified in Schedule 1 to the Act nor a pathological condition of the lungs, pleura or peritoneum (but rather a pathological condition of the sinuses). 67 BRYSON JA: I agree with Giles JA. **********

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.

CITATION: Laminex (Australia) Pty Ltd (trading as Laminex Industries) & Anor v Coutts; Royal & Sunalliance Insurance Group PLC UK v Coutts; Government Insurance Office of New South Wales & Anor v Coutts; CSR Ltd v Coutts [2006] NSWCA 186

Amaca Pty Ltd v Cremer [2006] NSWCA 164; Anderson v Kaufman (1991) 7 NSWCCR 198; Baxter v Abacelo Pty Ltd (2001) 205 CLR 635; BHP Billiton Ltd v Schultz (2004) 221 CLR 400; Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414; Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; CASES CITED: Law v Repatriation Commission (1980) 29 ALR 64; Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100; R v Monopolies and Mergers Commission; ex parte National House Building Council (1994) TLR 38; Repatriation Commission v Law (1980) 47 FLR 57; Roncevich v Repatriation Commission (2005) 79 ALJR 1366; Wallaby Grip (BAE) Pty Ltd (in liq) v Eraring Energy (2004) 60 NSWLR 701; Walsh v Rother District Council (1987) 1 All ER 510.

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWDDT 21

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Judgment (29 paragraphs)

Cases Cited (16)