Merrell v SIFC

JUDGMENT: Introduction

1. These are applications by Notice of Motion by the plaintiff, Hazel Merrell, against the defendant, the Stevedoring Industry Finance Committee, for an order that the period of limitation for the commencement of two actions by the plaintiff against the defendant be extended until the date of the filing of the Statements of Claim in those actions. Those actions are brought both in her character as allegedly dependent widow of the deceased pursuant to s 21 of the Supreme Court Act 1995 (Qld) and in her character as administratrix ad litem of the estate of the late Ronald Merrell ("the deceased"), pursuant to s 66 of the Succession Act 1981 (Qld). Both actions allege negligence on the part of the defendant, leading to the said Ronald Merrell being exposed to asbestos causing his contraction of the fatal disease of mesothelioma, and consequently his death. A Statement of Claim pleading the first cause of action abovementioned was filed on 9 November 2000 and an amended one pleading that first cause of action together with the second one abovementioned was filed on 22 November 2000.
2. The parties agree that as a result of s 5 of the Choice of Law (Limitation Periods) Act 1993 (NSW) as interpreted in Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388, the statute governing the plaintiff's application is the Limitation of Actions Act 1974 (Qld), in particular ss 31 and 32 thereof, under which the applications are made. I shall refer hereafter to that statute as "the Queensland legislation".
3. The application is supported by the plaintiff's affidavit, which is PX11 before me, but the plaintiff also gave evidence in her case, in cross-examination on her affidavit, as did David John McGuinness, the defendant's solicitor, in its case. He also swore an affidavit upon which he was cross-examined. I saw no reason to disbelieve either witness, although I shall later make observations about the extent of Mr McGuinness' activity, and of those assisting him, in investigating the plaintiff's claims. References to the evidence in the transcript will be rendered by the letter "T" followed by the transcript page and the approximate point on the page at which the evidence occurs. I propose to deal with the facts (if any) proven by the plaintiff/applicant and then with the applicable law.
4. Counsel assisted me considerably with detailed written and oral submissions, and in deference to them I have reserved my decision. I have not in the main referred specifically to both or either counsel's submissions when deciding the facts or the law, for reasons of space, but I have attended carefully to them, and as they are recorded on the transcript or filed, there is no necessity to record them again in these reasons. I apologise in advance for the length of these reasons, necessitated by the parties' complex, extensive submissions and extensive references to the evidence. The plaintiff's affidavit and annexures
5. The plaintiff's affidavit establishes that the plaintiff was born on 26 June 1930 and married the deceased, Ronald Merrell, on 3 October 1953. The couple adopted two children. The deceased worked initially as a shipping clerk for Brisbane Wharves & Wool Dumping Pty Ltd and then for Conaust Pty Ltd after the first mentioned company was taken over by "P & O", as that company is referred to in paragraph 4 of the plaintiff's affidavit. This occurred in 1977. By the time the plaintiff stopped working for Conaust in 1984, he had risen to the position of assistant manager. The commencement date of the plaintiff's employment with Brisbane Wharves & Wool Dumping is not mentioned in the plaintiff's affidavit, but according to both Statements of Claim it would appear to have commenced in 1944. There is other evidence establishing this (see later).
6. The plaintiff's affidavit also establishes that before marrying the deceased she worked for some time as a telephonist, and after her marriage in that capacity on a part-time basis, and then as an office assistant until 1961, since which time she has not worked in paid employment.
7. The deceased first noticed the symptoms of the illness which was subsequently diagnosed as mesothelioma in 1984, according to the plaintiff's affidavit, for this is given in para 25 as the date when he "became ill". The deceased thereafter entered a hospice in November 1985 and did not return home until he died on 9 December 1985: para 34.
8. The plaintiff made a claim on her husband's employer's workers compensation insurers and received the sum of $21,000.00 after his death: para 35.
9. In 1989 the plaintiff read an advertisement in a newspaper placed by the solicitors who presently act for her, Messrs Slater & Gordon. A copy of it is annexed to the affidavit and marked "C" and it invites persons injured by asbestos or their relatives to join a world-wide class action against a company called Johns Manville. The plaintiff contacted Slater & Gordon and took the appropriate steps to join in that class action.
10. In about July 1996 the plaintiff received approximately $6,000.00 from Johns Manville as a result of the actions of Slater & Gordon acting as agents for a United States legal firm. I regard all the facts I have set out thus far as being proved by the plaintiff's affidavit, as cross-examination of the plaintiff in the witness box to my mind did not dent the plaintiff's recollection of those facts, and indeed in many cases they were not canvassed in cross-examination at all. For that reason I have not so far always referred to specific paragraphs in the affidavit. What follows in the plaintiff's affidavit is somewhat more controversial.
11. The plaintiff asserts in para 37 that when she received the $6,000.00 from John Manville as set out above, she did not believe she had any further entitlement to make any more claims for compensation arising out of the death of her husband because of a deed she signed at the time. That deed is annexure "D" to her affidavit. Whatever may have been the plaintiff's belief about the effect of the deed, it is clear that it does not bar any action against the present defendant, and indeed neither party argued the contrary before me. In so far as the plaintiff's belief as to the effect of the deed may have influenced her belief that she could sue nobody else in respect of her husband's death, that is a mistake of law, not of mixed law and fact, or of fact alone, and it cannot form a basis for the present applications, and indeed the contrary was not argued by the plaintiff. Incidentally the defendant does not argue that the plaintiff has no cause of action against it because of her partial recovery against Johns Manville.
12. What next occurred was that the plaintiff read a small advertisement in a newspaper in mid November 1999 concerning a "wharfie" receiving damages for asbestos exposure. That is annexed to the plaintiff's affidavit and marked "Z", and the effect of it is as stated in the plaintiff's affidavit in para 38. There she asserts that she rang Slater & Gordon a few days after reading the advertisement and asked whether the case referred to in it had implications in relation to her seeking compensation for the death of the deceased. She said she was asked some questions about the deceased's employment, and told that Slater & Gordon would be in touch with her.
13. In para 39 the plaintiff says she received a letter from Slater & Gordon, a copy of which is annexed to her affidavit and marked "E". She asserts that on reading that letter she became aware for the first time of the possible connection between the deceased's employment and his exposure to asbestos in the Port of Brisbane, and of the defendant's responsibility for his safety. She asserts that at that time she was still unsure as to those facts and awaited further information.
14. In para 40 she asserts that in late January 2000 she spoke with a person from Slater & Gordon on the telephone, who she thought was a woman, who said words to the effect that "we will make some enquiries in relation to your husband's employment and then tell you whether we think you may be entitled to claim compensation".
15. She asserts in para 41 that in late February 2000 she sent various documents to Slater & Gordon, copies of which are annexed to her affidavit and marked "F", "G", "H" and "J". I shall refer to the contents of those documents shortly.
16. Para 42 asserts that on 26 May 2000 she received a further letter from Slater & Gordon, which with an enclosure is annexed to her affidavit and marked "K", and she asserts that on reading that letter and its annexure she became aware for the first time that the defendant (meaning no doubt its statutory predecessors) "did indeed have some responsibility for ensuring Ron [the deceased] performed his duties in a safe working environment" and that the defendant "had indeed committed acts and omissions that affected Ron's working conditions and that [the defendant] could have taken steps that would have prevented Ron from inhaling asbestos" and that "information was available regarding the dangers of asbestos during the time that Ron was employed in the Port of Brisbane and that [the defendant] either knew or should have known of those dangers and should have done something to protect Ron from being exposed". She asserts that before receiving this letter on 26 May 2000 she was unaware that these acts and omissions had been committed by the defendant. I shall take 26 May 2000 as being the date upon which the plaintiff alleges she first became aware of the matters I have just set out, so as to entitle her (she says) to an extension of time under ss 31 and 32 of the Queensland legislation.
17. What occurred thereafter materially is the commencement of proceedings in the plaintiff's character respectively as adminstratrix ad litem of the deceased and dependant widow of the deceased by Statements of Claim filed on 9 and 22 November 2000 in the Tribunal.
18. It is convenient now to examine annexures "F", "G", "H" and "J" to the plaintiff's affidavit, as they shed considerable light on what the deceased knew before his death. This may safely be adopted generally as what the plaintiff knew at the same time as to their contents (though not as to the identity and duties of the defendant) as a result of admissions in cross-examination to that effect, although it must be said in passing that the plaintiff said in her evidence that the deceased generally "kept his work at work" and did not discuss the nature of it in detail with her. I shall set out that evidence later.
19. Annexure "F" is the deceased's death certificate, which presumably came into existence and into the plaintiff's possession on or about the date of death as stated in it, which is 9 December 1985. It states the cause of the deceased's death as "mesothelioma (lung)" and establishes to my mind that the plaintiff was certainly aware of the cause of the plaintiff's death when it occurred, and probably for a considerable time before that, and indeed from the time when the deceased was diagnosed with it. The plaintiff does not assert otherwise, and that matter is both uncontroversial and irrelevant to the present application, as the plaintiff does not rely in any way on ignorance of the deceased's condition and its causes lying in asbestos exposure.
20. Annexure "G" can likewise be dealt with briefly, as it is simply an autopsy report establishing the same matters as were proved by the death certificate, namely that the deceased contracted, and died of, mesothelioma.
21. Annexure "H" to the affidavit is a document undated and headed with the deceased's name and address and then "history of employment and statement of contact with asbestos". It is signed by the deceased and witnessed on the second page. I shall not set out its full contents for reasons of space.
22. What it establishes in summary is that the deceased commenced employment with a company which he names as Brisbane Stevedoring & Wool Dumping Co Pty Ltd at its head office in Eagle Street, Brisbane on 4 December 1944, and was transferred to the wharf office for a period in 1945 and then was back at head office at the end of the war in the Pacific in late August or early September 1945. He worked in head office, Hamilton wharves and New Farm wharves between 1945 and 1954, when he was transferred to Hamilton wharves as Superintendent's clerk to the Stevedoring Superintendents/Wharf manager, a Captain Godfrey. This job, he says, involved considerable contact with all types of cargoes stacked in sheds, including asbestos. He speaks of numerous broken bags and loose asbestos present, and of the air being dusty with this cargo and of a lot of the bagged asbestos being covered with loose asbestos from broken bags.
23. He asserts that he was not told in these early days of the dangers of asbestos to the human lungs and was "not supplied with protective masks etc.". This quotation is very important both generally and in the context of what he then says, which is that he was in direct contact with dusty asbestos conditions, as he calls them, when working in sheds and other wharf areas where asbestos was being handled.
24. He then says that he worked at Hamilton wharves and visited other wharves where asbestos was being handled between 1944 and 1966, whereupon he was transferred back to head office in Hamilton as an assistant to the General Manager, Mr Baillie. He said he returned to Hamilton wharves again as Clerk or Superintendent of all other clerks following the amalgamation of "Brisbane Stevedoring Pty Ltd" (as he calls the company he then worked for) and Newstead Stevedoring Pty Ltd in early 1968. He then adds that in the latter part of 1968 he was appointed Assistant to Management, working most directly with Mr Baillie on industrial matters and special projects and quotations for stevedoring work, and that then in 1970 or a bit later he was transferred to assist a Mr Ingle, Assistant General Manager of Brisbane Wharves and Wool Dumping Pty Ltd, and in 1975 was appointed Assistant Manager of Brisbane Stevedoring Services Pty Ltd. He says that in these last two positions he was in Hamilton container terminal office, but that his duties from 1966 to 1977 involved almost daily visits to all wharves where his companies were stevedoring ships, and at times he came into contact with asbestos handling.
25. He adds that in 1977 in September, Brisbane Stevedoring Services Pty Ltd merged with Consolidated Stevedores (Qld) Pty Ltd and operated as Conaust (Qld) Pty Ltd and that he was appointed Assistant Manager. He says that his most recent contact with asbestos was during the discharge of packs of this cargo from "lash barges from P.F.E.L. vessels" just prior to or not long after the formation of Conaust (Qld) Pty Ltd, which places this as having occurred in or about September 1977. He says industrial vacuum cleaners had to be hired to clean up loose asbestos, apparently at this time.
26. He indicates that the names of the companies he worked for before Conaust were all those mentioned above, plus Queensland Shipping Services Pty Ltd, and says that these names were taken from his group certificates.
27. He says finally that he has been advised that he has a malignant tumour of the lung caused by asbestos, called mesothelioma.
28. Part of the same annexure is another statement taken from the deceased and dated 23 May 1985, again signed by him and witnessed, in this case on each page. It is fair to say that it details somewhat more fully the deceased's exposure to asbestos, in particular the presence of broken bags thereof in the vicinity of places where the deceased had to work and the dusty atmosphere in such places. He makes the point that his office was only about 50 metres from where asbestos was stored when he was working as Superintendent's Clerk (see above) and that his office had open hopper windows without air conditioning, and that it was invariably dusty and, he asserts, "part of the dust would be effectively asbestos" (see page 2 of the statement). He then adds that he has copies of the companies' records in relation to the amount of asbestos that was unloaded from different ships in individual years, and gives an example from the year 1964.
29. As I shall detail when dealing with the evidence of Mr McGuinness, solicitor for the defendant, the defendant does not dispute the deceased's exposure to asbestos, so little time need be spent on that issue. The question is what the deceased knew about the dangers of asbestos exposure and about the availability of alternative systems of work which would have avoided it.
30. As to the first issue, the deceased asserts in his first statement abovementioned, part of annexure "H", that he was not warned of the dangers of asbestos exposure. As to the second issue, he asserts in his first statement that he was not provided, as he puts it, "with protective masks etc." and that in his second one the office where he had to work as Superintendent's Clerk did not have air conditioning, and in both that the atmosphere in which he had to work at various times was dusty and in proximity to areas where asbestos was being handled, quite often in bags which were broken.
31. It is important to recall that, as I shall detail when dealing with the applicable law, the plaintiff must prove not only her ignorance of a material fact of a decisive character under the Queensland legislation for the purposes of the action as adminstratrix on behalf of the deceased's estate; she must also prove the deceased's ignorance of such a fact. What the statements prove is what the deceased knew, although as I shall point out in a moment, they also allow of an inference as to what he did not know. Similarly, in view of the plaintiff's knowledge of matters contained in the deceased's statements, as she acknowledged in her evidence (see later), given the obvious fact that she had them in her possession from the date of death onwards, if not before, they prove what she also knew, although her evidence itself is obviously capable of showing that she knew matters other than those contained in the deceased's statements and the other documents he executed, to which I shall come shortly.
32. To my mind however, the first of the two statements to which I have referred is nevertheless of extreme significance in ascertaining the deceased's state of mind before his death. When given an opportunity in his statement to specify the precautions against asbestos exposure that were not taken by his employer, he specifies only the lack of "protective masks etc." and of warnings and of air conditioning in his office when he was working as Superintendent's Clerk and, impliedly, from his description of the dusty atmosphere where he worked, the lack of ventilation. He does not specify the lack of respirators and/or a system of effective dust monitoring, for example, these being specified as appropriate precautions during the period of the plaintiff's employment involving asbestos exposure in annexure "M" to the plaintiff's affidavit, which is a report of Gordon James Stewart, an industrial chemist and industrial hygiene consultant commissioned by the plaintiff's solicitors and dated 13 March 2000. I shall come to that document later.
33. It becomes of extreme importance when one applies the Queensland legislation, which I shall do later, whether the awareness of the deceased and consequently the plaintiff that he was exposed to asbestos and that this was present in considerable concentration in the atmosphere where he had to work and that he was not provided with "protective masks etc." nor given warnings or an air-conditioned office was a sufficient "bundle of facts", as it has been put in the authorities, to constitute a worthwhile cause of action in negligence against the defendant for the deceased and, by extension, for the plaintiff to sue and recover damages against the defendant in a worthwhile sum (to paraphrase the Queensland legislation which I shall analyse later).
34. Annexure "J" to the plaintiff's affidavit is a document headed "Medical History" which again refers amongst other things to the deceased's contraction of mesothelioma. It contains a detailed questionnaire in which exposure to asbestos is disclosed. It is evidently a document completed by the deceased himself. It underlines the knowledge of the deceased that he contracted mesothelioma, a matter not in issue between the parties, and does not particularly add to the present dispute. Other relevant exhibits
35. There are other documents completed by the deceased and by the plaintiff relevant to the issue of the state of knowledge of the deceased, and by extension of the plaintiff, before the date of his death and thereafter, until the plaintiff's second consultation with Slater & Gordon in the year 2000 which led to the institution of the present proceedings. They were tendered in the course of the plaintiff's evidence, and I shall discuss them shortly.
36. Before doing so it is convenient to refer to the statutory declaration of a Mr Schultz dated 5 November 2001, which became PX33 in the plaintiff's case. It establishes much the same matters as are set out in the statements of the deceased referred to above in relation to the exposure of the deceased to asbestos, and it is unnecessary to set out its contents in detail in that regard. It refers in paragraph 8 to the absence of masks when asbestos cargoes were being handled, and the fact that the deceased was not seen wearing one, and that workers sometimes tied handkerchiefs around their mouths in those circumstances. It also asserts that Mr Schultz was never instructed to wear a mask when working near asbestos products being unloaded. Significantly Mr Schultz does not refer either to not being provided with a respirator, as distinct from a mask, or with a work area which had a system of effective dust monitoring. In so far as Mr Schultz's knowledge may be imputed to the deceased, it does not affirmatively establish that the deceased was aware of the precautions just mentioned, although by the same token it does not of itself prove the negative proposition that he was not so aware.
37. Before passing to the plaintiff's evidence, it is also convenient to refer to some exhibits which to my mind cast some light on the state of knowledge of the deceased, and of the plaintiff. The first is DX66, which is a form directed to the Workers Compensation Board of Queensland headed "Application for Compensation for Death" completed by the plaintiff herself on 3 February 1986. After reciting that a claim was made for compensation under the Queensland Workers Compensation Act in respect of the death of the deceased from mesothelioma, some questions were asked in paragraph 6 of the form. Beside question (a) "nature of injury" there is inserted by the plaintiff "asbestosis/mesothelioma right lung". Against question (b) "how did the injury occur?" and (c) "what actually was the deceased doing when the injury was sustained?" the plaintiff inserted "working on wharves in Brisbane where asbestos was discharged from ships, stacked in sheds, loaded onto consignees' trucks in the years 1954-1966, some periods before and some after". Under question (d) "was anyone to blame for the injury?" the plaintiff inserted "not known". Under question (e) "if so, give particulars", the plaintiff also inserted "not known". Under question (f) "state whether the applicant is taking or intends to take any action to recover damages from such person" the plaintiff inserted "no". The only other assertion on the form of any relevance is that the plaintiff alleges that she is the totally dependant widow of the deceased. The date of that document is 3 February 1986.
38. DX88 is a similar form, completed on 22 November 1984 by the deceased pursuant to the Queensland Workers Compensation Act and headed "Application for Workers Compensation - Non-Fatal Injuries Only". Relevantly, under "how did the injury occur?" there is inserted "working on the wharves of Brisbane as a clerk where asbestos was discharged from ships, stacked in sheds and delivered to consignees' trucks in the years above, some periods before and some periods after". Written across the sections where answers are invited to the question "was any other person to blame for injury?" and "if yes, do you intend taking action to recover damages?" and "if yes, name your legal representative" is again written "above not known at this stage".
39. These exhibits of course are not conclusive as to the question of whether either the deceased or the plaintiff knew as at the date of their completion that a worthwhile cause of action existed, or that either of them was ignorant of a material fact of a decisive character within the Queensland legislation in relation to such a cause of action. Nevertheless they are to my mind evidence of some weight that the plaintiff and the deceased respectively, when they completed the forms, did not believe that they yet had a worthwhile cause of action at common law. The closeness with which the first form discussed above, the later in time and completed by the plaintiff, follows the wording of the second form set out above, completed by the deceased, strongly suggests that, as at the date she completed her claim form in respect of the deceased's death, the plaintiff possessed no more knowledge as to the existence or otherwise of a worthwhile cause of action than did her husband, the deceased, before his death, and that she simply copied in her form from her husband's earlier replies in his, and indeed she admitted as much in cross-examination (see later). For reasons to which I shall come later, I think it is indeed more probable than not that she was unaware of the existence of and duties of the defendant, if not of the lack of "protective masks etc." to quote the first statement of the deceased discussed above, and of the lack of warnings and of an air-conditioned office (noting however that the deceased's work was obviously not confined to his office).
40. The proper significance of the two statements of the deceased discussed above, so far as his knowledge of safety precautions which could have prevented his injury is concerned, is that when given the opportunity to complain of the safety precautions that were not taken at his workplace, the deceased only chose to mention the lack of "protective masks etc." and the dusty atmosphere in his office and its close proximity to areas where asbestos was being handled and its open windows. He did not talk about the absence of a respirator; he did not complain of the absence of an effective program of dust monitoring to ascertain the effectiveness of dust minimisation programs and determine respirator wearing needs (I have quoted in this last matter the third dot point in paragraph 10.9 of the report of Gordon James Stewart, industrial chemist and industrial hygiene consultant, annexure "M" to the plaintiff's affidavit at page 110 thereof, and I shall shortly come to that report). I think the proper inference from the absence of mention of these precautions is that the plaintiff was not aware either of the existence of such precautions, or that they would or could have either prevented his injury or reduced the likelihood of its occurring. It seems to me overwhelmingly likely that given the opportunity to complain of his working conditions in his statements, the deceased would have advanced these matters had he been aware of them. In the nature of things I have not seen and heard the deceased, but given his senior position and the knowledge of his system of work set out in his statements, particularly those he apparently composed himself, such as that set out above at paras 22 to 26 of these reasons, he seems to me to have been an articulate, intelligent and knowledgeable recorder of events surrounding his injuries, and therefore unlikely to omit anything he knew which he thought material to his claim.
41. The likelihood that the deceased was unaware of these matters is increased by the fact that in DX88, when invited to state whether he considered anybody at fault in relation to his injury, the deceased wrote "not known", this reply applying also to the question whether he intended to commence proceedings in respect of his contraction of mesothelioma. Similarly the likelihood that the plaintiff was unaware of these precautions is increased by her similar replies in DX66, the similar form completed by her claiming compensation under the Queensland Workers Compensation Act for the death of the deceased.
42. That these documents were tendered by the defendant is of no particular significance except that they contain matters which, to my mind, assist the plaintiff's case in relation to ignorance of particular facts on her part and on the part of the deceased. Whether those are material facts of a decisive character within the Queensland Act is a matter which I shall consider after dealing with the applicable law. The plaintiff's evidence
43. It is now appropriate to pass to the oral evidence of the plaintiff. After brief evidence in chief, essentially repeating the contents of her affidavit in certain respects, the plaintiff was cross-examined on her affidavit. I hope I do no disrespect to the capable and extensive cross-examination of Mr Tobin QC for the defendant if I do not refer to every aspect of it, but only to those parts which have particularly assisted my determination of the issues in this application. I shall initially refer only to those parts which relate to the ignorance of the plaintiff and/or the deceased of a material fact of a decisive character within the Queensland legislation, and not to the issue of prejudice to the defendant should the plaintiff prove a prima facie entitlement to an extension of time. I shall refer to those parts of her evidence when discussing the prejudice issue.
44. The applicant conceded at T29.3 that she went with her husband to a medical board when he had to give some evidence in relation to his claim for compensation, and that he had a solicitor, a Mr Barnes, at that time. She was shown a transcript of what occurred before the medical board and could not recall (T29.7) exactly that the solicitor, Mr Barnes, had said what was recorded in it. The transcript was eventually tendered and became DX22. I am prepared to assume in view of her attendance at the board, for the purposes of this application, that it represents the plaintiff's knowledge of the circumstances of the deceased's employment and of his contraction of mesothelioma. I observe in passing that it does not anywhere refer to precautions such as a respirator or a dust monitoring device which could have been used to reduce or minimise the risk of asbestos exposure or the consequent contraction of mesothelioma.
45. The plaintiff was then shown (T30.2) what became DX33, a handwritten statement signed by her. She could not recall having the assistance of Mr Barnes, solicitor, after her husband's death, but conceded that she may have had his assistance before it (T31.1) when her husband was assisted by him. The date of the statement is 7 February 1986. Therefore of course it postdates the death of the deceased on 9 December 1985 (see above). It seems probable therefore that the plaintiff did not have the assistance of Mr Barnes when she completed the statement.
46. The statement simply contains an assertion that the plaintiff is the lawful wife of the deceased who originally claimed compensation, and then gives details of payments of such compensation and of the marriage and the birth of two children, and of the widow's total dependency and of an application made by her for the maximum weekly payment available under the Queensland Workers Compensation Act and of the date of death of the deceased and of the performance of a post-mortem. It tells me nothing of the state of knowledge of the plaintiff as to any material fact said to be of a decisive character in question in this litigation.
47. Mrs Merrell admitted providing her marriage certificate to the Workers Compensation Board in Queensland (T31.8) and that became DX44. I do not particularly see that this fact is of significance.
48. Mrs Merrell was then asked (T32.4) about what became DX55, which was a letter from the Queensland Workers Compensation Board inviting her to lodge a claim for compensation in respect of the death of her husband. This was tendered and became DX66 and I have already considered it. There is no doubt that it establishes that the plaintiff was, as she admitted in cross-examination, well aware of a number of facts disclosed in the form before her husband's death. It was at T33.6 that Mrs Merrell first remarked that "my husband left his work at work", saying that the information that he worked on wharves where asbestos was discharged from ships, stored into sheds, and loaded onto consignees' trucks in the years 1954-1966 was probably taken from a statement her husband made, rather than from something her husband told her. I have already remarked on the verbal similarity between DX66, Mrs Merrell's claim form, and DX88, that completed by her husband earlier, and this reinforces and supports the plaintiff's evidence in this respect.
49. Mrs Merrell admitted awareness of some things her husband did, such as working in an office (T33.8) and not of others, but I am prepared to assume for the purposes of the present application that she was aware, at the very least of the contents of her husband's statements, which were annexure "H" to her affidavit, and of the contents of her husband's claim form, DX88, and was therefore aware that her husband had worked in a dusty atmosphere and exposed to asbestos in considerable volume, and had as a result contracted mesothelioma, of which he died, and that he was neither warned of the dangers of asbestos exposure, nor provided with a "protective mask etc." to quote her husband's first statement, part of annexure "H" to her affidavit, and was aware of all of these matters before or soon after her husband's death, and certainly well before she consulted Slater & Gordon for the second time in late January 1990. This is so notwithstanding what Mrs Merrell said at T33.9, when she was asked whether her husband disclosed to her that on some occasions he had to leave his office and go down and inspect cargo and the like on the wharves, and she again replied "no, he left his work at work". It seems likely from this reply that the plaintiff did not have a detailed knowledge of what her husband did in his employment at any time but nevertheless, as I have said, I think that from the documents that she possessed from the date of her husband's death, or soon after, she was aware of the matters to which I have just referred.
50. On the subject of protective masks, at T37.2 she was referred to her husband's first statement, part of annexure "H" to her affidavit at page 29 thereof, and at that point was asked whether she had wondered why the deceased had not been provided with protective masks and she said "no", but was then asked if she thought he should have been provided with protective masks, and she said "well, yes, I do". She was then asked whether she wondered this at the time, and she answered "I did when I read this, I wondered why". She earlier admitted (at T37.2) that her husband had showed her the statement appearing as part of annexure "H" to her affidavit, at page 29 thereof, at the time he wrote it or had it typed, and she said that she read it at that time. This direct admission is the basis, amongst other things, for my conclusion that the plaintiff was from that time aware of its contents, and therefore aware of the tasks the deceased was required to perform in his employment over the years generally, and of the dusty atmosphere and consequent exposure to asbestos therein, and of the deceased's contraction of mesothelioma, and of the absence of "protective masks, etc." to quote the last mentioned statement. This does not, for reasons to which I shall come later, resolve the question of whether the plaintiff was aware of a sufficient "bundle" of facts to give her a worthwhile cause of action on appropriate advice within the Queensland legislation before her husband's death, or at any time before she became aware of the contents of the report of Mr Stewart, industrial chemist and industrial hygiene consultant, on or about 26 May 2000 when she received a letter from Slater & Gordon (see para 42 at page 7 of her affidavit).
51. The plaintiff was cross-examined on her first consultation with Slater & Gordon in 1989 after seeing an advertisement in a newspaper (see paragraph 36 of her affidavit, at page 6 thereof). She admitted (T39.5) that she thought when she spoke to them then that she might have a claim for damages relating to the circumstances in which her husband died, and in particular (T39.6) one related to the circumstances in which he had been exposed to asbestos dust, and that she saw a connection between the circumstances in which her husband had inhaled asbestos and the mesothelioma which caused his death. She also admitted (T39.8) that she saw a connection between the circumstances in which her husband inhaled asbestos and the mesothelioma which caused his death, and understood that it was because of his exposure to asbestos dust that he actually got mesothelioma, and that she associated all that with the circumstances in which he was working during his working life around the wharves where he was exposed to asbestos dust, and that she told Slater & Gordon those things on the phone, or sent them material relating to that information, probably both (T39.9). This reiterates the plaintiff's awareness of her husband's asbestos exposure at work and of the connection of it with his mesothelioma, which I have already indicated I am prepared to assume for the purposes of this application. She had no particular recollection of her actual conversations with Slater & Gordon at this time, but said she forwarded to them what they requested.
52. The plaintiff was then taken to what became DX77, an "Agreement to Provide Legal Services", which she signed for Slater & Gordon at this time. She agreed (T40.6) that the second last page of the document, containing an employment history sheet, had been written by her from records her husband had left. Indeed Mr Joseph reminded me at that point that this document also appears at page 43 of the plaintiff's affidavit, as part of annexure "J" thereto. The plaintiff agreed (T42.2) that she sent this document to Slater & Gordon. It certainly indicates that she was aware of the identity of her husband's employers at this time.
53. The plaintiff was then taken to her husband's statement at page 31 of her affidavit, which is the second statement in Exhibit H thereto, and agreed that she sent that to Slater & Gordon (T42.9). She did not know (T43.3) whether the initials at the bottom of page 5 of that statement (at page 35 of the plaintiff's affidavit) were those of Mr Barnes, the solicitor who accompanied her husband and herself to the Queensland Workers Compensation Board, because she did not know Mr Barnes' christian name. The form of the statement, and the presence of the initials, makes it quite likely to my mind that it was taken in a legal office, but I am unable to find positively that this is so on the balance of probabilities because of the absence of any admission by the plaintiff in this respect, or of any other evidence positively establishing this. Even if it be so that the deceased had access to legal advice at this time (and he certainly did when he went to the Workers Compensation Board in Queensland with Mr Barnes, solicitor) that does not dispose of the question of whether he or the plaintiff had at that time a sufficient "bundle" of facts to constitute a worthwhile cause of action against the present defendant at that time. Indeed the Queensland legislation does not make that assumption either, because it poses the question in s 30(1)(b) whether "having taken the appropriate advice" on "material facts" they are "of a decisive character". In other words it allows of a state of affairs where a person obtains "the appropriate [i.e. legal] advice" on "material facts" which may not then be "of a decisive character" for reasons appearing in the paragraph, which I shall consider later.
54. The plaintiff was then taken to a further statement by her husband on 19 December 1984, which is the last document behind Tab 3 in PX55, the plaintiff's tender bundle. The plaintiff thought she must have sent this to Slater & Gordon in 1989 (T44.1). Although the plaintiff did not directly admit it in cross-examination, I am prepared to assume that she was fully aware of its contents when she sent it to Slater & Gordon. It makes specific reference to tasks the deceased performed in the presence of broken bags of asbestos in the vicinity of where he was required to work, and of his developing breathing problems about two years before the date of the statement, which would place them as having occurred in 1982. The deceased then gives details of his consultations with a Dr Charles Elliott in September 1984 and of the absence of serious problems with his health before that time. The statement does not refer to protective precautions which might have reduced his asbestos exposure, as distinct from describing it and the causes of it.
55. The plaintiff was then taken to what became DX88, which I have already discussed, which was her husband's compensation claim form for "non-fatal injuries only". She acknowledged the similarity between the section of that form, to which I have already drawn attention, where her husband indicates that it is "not known" whether anybody is at fault in relation to his injuries, and at T45.1 acknowledged the similarity between that section of her husband's form, DX88, and the form she completed, DX66, as already discussed above. I have already indicated my reasons for thinking that these parts of DX66 and DX88 if anything indicate that the deceased and the plaintiff at the times when they completed those forms did not believe they had a sufficient "bundle" of facts necessary to constitute a worthwhile cause of action within the Queensland legislation at the times when they completed these forms. This of course does not dispose of the question of whether on "appropriate advice" as it is put in s 30(1)(b) they in fact had a worthwhile cause of action at those times.
56. The plaintiff was then shown three sheets containing a list of ships and dates and cargoes in columns from the Johns Manville file produced by Slater & Gordon. She acknowledged (T45.5) that she sent them to Slater & Gordon because she understood that there was a connection between the death of her husband of mesothelioma and his exposure to asbestos carried in various of the ships detailed in those three pages. She had in mind (T45.7) that she might have an action for damages against some company or persons involved in that asbestos, which her husband might have inhaled, leading to his death from mesothelioma.
57. The plaintiff acknowledged (T47.5) that she sent documents in 1989 to Slater & Gordon for them to assess any claim she might have for damages relating to the death of her husband. However when it was put to her (T47.6) that she was keen in her own interest and that of her family to ensure that there was some party responsible at law for the death of her husband that would entitle her to damages, and that she wanted that information with Slater & Gordon to help her to decide, she asked whether that was for "the Johns Manville case", and when it was put to her that that was also "for any other case", she said "I wasn't thinking of any other case in 1989, I was interested in that case" and that (T47.8) she did not know if there was ever going to be another case, so that what she did in 1989 was "relative to Johns Manville case" (sic), and that (T47.9) she did not ask Slater & Gordon whether she might have another claim against some other entity, and she then asserted that "to my recollection we were dealing with Johns Manville". At T48.1 she agreed that she thought her husband's employers "or someone else" might be responsible for the state of affairs whereby her husband was not given a respiratory mask to protect him from asbestos dust. Notably she did not say who she then thought that "someone else" might have been. She agreed (T48.2) that she was not suggesting that Johns Manville "over in America" would have been responsible for not providing such a mask.
58. She agreed (T48.3) that she was only receiving from Johns Manville (as set out in paragraph 2 on page 23 of her affidavit, the release document completed at the request of Johns Manville) an "initial 10%" of the liquidated value of the claim, and at the second line on that page indicated that she understood that it was very unlikely that she would receive any additional settlement payout after the initial payment, and that by 1996 she knew that she was only going to get 10% of the full settlement (T48.8). She could not recall contacting Slater & Gordon however on 25 July 1994, as suggested by a file note from that firm for an update on her claim (T49.8), although she did not deny contacting them at that time (T49.9), and similarly in relation to a telephone attendance on 26 October 1995 (T50.1) although she agreed that from time to time she did enquire of Slater & Gordon how her case was going (T50.2). I am quite satisfied that the plaintiff knew when she settled with Johns Manville in June 1996 or thereabouts that she knew she was only receiving a settlement of 10% of the total value of her claim. This seems to me to be explicitly acknowledged at T51.2 and T51.5.
59. The plaintiff then agreed that from the late 1980's she had an understanding that some company or organisation might be responsible for the fact that her husband was not supplied with "a respirator or a mask". I recall the speed with which that question was asked, and the plaintiff's ready agreement to it. It did not seem to me at the time that the plaintiff had turned her mind fully to the fact that she was being asked to agree that from the late 1980's she was aware that her husband had not been provided with "a respirator or a mask". She nowhere before then acknowledged that she knew what a respirator, as distinct from a mask, was. I think the Tribunal may know (it was made clear in any event to my mind in the Stewart report, annexure "M" to the plaintiff's affidavit, at page 76 onwards) that a respirator is a somewhat more elaborate apparatus, and quite a different thing from a mask. What the plaintiff had earlier acknowledged was that she was aware of her husband's statement, part of Exhibit H to her affidavit, pages 29 and 30 thereof, and therefore of its assertion on the first page in the fourth paragraph that "we were not supplied with protective masks etc.". Nowhere does that statement refer to a "respirator" as distinct from a "mask". I do not think in fact that from the 1980's the plaintiff had an understanding that some company or organisation might be responsible for the fact that [her husband] was not supplied with a respirator as distinct from a mask.
60. When asked (T51.8) why she did not ask Slater & Gordon at any time between 1985 and 1996 whether on the papers she had provided them with, she might have a claim against someone else, she replied "I wouldn't know who the somebody else was". When asked why she did not ask Slater & Gordon if they could investigate whether "there was a someone else" she said "I don't know", and "possibly because I had received workers compensation".
61. Although the plaintiff, as I have said, presented as an alert and intelligent woman, it was nevertheless my impression of her in the witness box that she was a person who was ready to trust the advice she received, and not disposed to question it or to suggest other avenues of enquiry not suggested by her legal advisers. It was my impression of her in these answers that she did not ask Slater & Gordon to investigate whether she had a cause of action against some other entity, apart from Johns Manville and/or the workers compensation insurer from whom she had already recovered, simply because she was not aware of any other entity against whom she might claim. It is a separate matter on the authorities whether Slater & Gordon might have had any knowledge on this subject, which was not in fact imparted to her at that time. The Queensland authorities, which I think are binding on me as a result of s 6 of the Choice of Law (Limitation Periods) Act 1993 (NSW), indicate as I shall show that imputation to the plaintiff of such knowledge is not a permissible legal approach.
62. The cross-examination I have covered so far took place on 5 November 2001. The remainder of the cross-examination on the following day, 6 November 2001, related to the issue of prejudice, and I shall deal with it later. The plaintiff was also re-examined that day, and that re-examination also related to the issue of prejudice, as did the evidence of Mr McGuinness, the defendant's solicitor, which again I shall analyse when dealing with the issue of prejudice. The Stewart report
63. It is appropriate to pass now to the Stewart report, which is annexure "M" to the plaintiff's affidavit at page 76 onwards. It is first important however to trace how the plaintiff became aware of it. At paragraph 42 of her affidavit on pages 6-7 thereof the plaintiff asserts that she received a letter from Slater & Gordon, which was annexure "K" to her affidavit. This is a detailed letter of advice containing a further document headed "Advice to Families of Deceased Waterside Workers". The letter appears at page 45 of the plaintiff's affidavit, and the advice at page 49. As I read them, these documents do not specifically refer to the ways in which the present defendant was allegedly negligent in relation to the deceased's contraction of mesothelioma. However paragraph 45 of the plaintiff's affidavit at page 8 refers to Exhibits "L" and "M" to the affidavit, being the Statement of Claim filed on 9 November 2000 on behalf of the plaintiff in her character as dependant widow claiming damages under s 21 of the Supreme Court Act 1995 (Qld) and the Stewart report to which I have referred. Exhibit L is at page 60 of the plaintiff's affidavit, and Exhibit M at page 76. The plaintiff says at paragraph 45, in relation to annexures "L" and "M" to her affidavit: "Upon reading these I became aware for the first time of the numerous acts that if taken by the Stevedoring Industry Authority in the Port of Brisbane would have prevented Ron from being exposed to asbestos including prohibiting the import of asbestos in permeable hessian bags, requiring asbestos to be packaged in impermeable bags, prohibiting the use of hooks in unloading bags of asbestos and requiring exhaust fans to be used in areas where asbestos cargoes were handled and the exact state of knowledge as to the dangers of asbestos"
64. This summary does not fully cover the allegations of negligence in the Statement of Claim and set out in the Stewart report. As to the Statement of Claim, it is simply assertion and does not really to my mind constitute the imparting of knowledge of negligent acts to the plaintiff, as opposed to allegations of them. It is important therefore to turn to annexure "M", the Stewart report.
65. At paragraph 10.8 at pages 109-110 of the plaintiff's affidavit (numbered 34 and 35 in the report) Mr Stewart, an industrial chemist and industrial hygiene consultant, after summarising the state of knowledge reasonably available to the defendant in his view between 1944 and 1956, says this: "Accordingly in the period 1944 - 1956, a specific precautionary plan should have been introduced by the "COMMISSION" and the "BOARD", incorporating suitable available techniques. A plan formulated in accordance with reasonably prudent occupational hygiene standards of the day would have included: · Instruction to stevedores regarding the importance of and means of minimising the exposure of waterside workers to asbestos dust, or minimising their inhalation of asbestos dust. · Instruction to waterside workers engaged in unloading asbestos about the harmful nature of asbestos dust and fibre when inhaled and the potential health consequences for persons regularly exposed to asbestos dust and fibre over a number of years. · The use of and training in methods of work able to minimise dust including training waterside workers in the effective use of dust respirators required during asbestos unloading. · A requirement for the bags containing the asbestos to be sufficiently strong to resist tearing from the hook or from other mechanical damage, and to be impervious to dust. · Alternatively, the substitution by other types of containers able to eliminate or minimise the presence of dust in the hold during loading or unloading. · A requirement for the bags and other containers to be labelled or branded with warnings about the asbestos content and the potential health consequences of exposure to asbestos dust and fibre. · The provision of suitable showering and laundering facilities for asbestos removal gangs and the provision of clean overalls. · Provision and supervision of the correct use of suitable dust respirators for "holders". · Provision of an effective program of dust monitoring to ascertain the effectiveness of dust minimisation programs and determining respiration wearing needs. · The provision of regular medical tests for "holders" regularly engaged to unload asbestos cargo. · Arrangements for regular audits to ensure the effective application of these various precautions." It is important to note that the Stewart report refers at the beginning to its having being prepared in relation to "Mr Ronald Wagstaff" and as to "the circumstances of his exposure to asbestos dust and fibre during his employment as a waterside worker in the Port of Sydney in the period about 1955 to about 1991". Much criticism was made by Mr Tobin QC in submissions of the fact that this report does not relate specifically to the circumstances of the plaintiff's employment as a tally clerk, nor to the Port of Brisbane. I share Mr Tobin's concerns about the non-specificity of this report. Somewhat reluctantly however I am prepared to recognise that some (but not by any means all) of the dot points I have summarised from paragraph 10.8 above are capable of application to the circumstances of the deceased's employment as a tally clerk in the Port of Brisbane.
66. I have in mind particularly those not referring specifically to "waterside workers" and "holders" or to the holds of ships. For example the third dot point set out above only requires training of "waterside workers" in the use of dust respirators, whereas the third last dot point refers generally to an effective program of dust monitoring to ascertain the effectiveness of dust minimisation programs and "determining respirator wearing needs" which is capable of direct application, and I think does in fact apply, to the deceased as a clerk working on wharves in the Port of Brisbane in the presence of asbestos dust. The same applies to the fourth, fifth, sixth and last dot points set out above.
67. I consider therefore that the Stewart report is prima facie evidence to the effect that between 1944 and 1956, in relation to the deceased working as a clerk in the Port of Brisbane, the appropriate precautions were at least: · A requirement for the bags containing the asbestos to be sufficiently strong to resist tearing from the hook or from other mechanical damage, and to be impervious to dust. · A requirement for the bags and other containers to be labelled or branded with warnings about the asbestos content and the potential health consequences of exposure to asbestos dust and fibre. · Provision of an effective program of dust monitoring to ascertain the effectiveness of dust minimisation programs and determining respirator wearing needs. · Arrangements for regular audits to ensure the effective application of these various precautions.
68. It seems to me also that the precautions specifically referring to waterside workers in relation to instructions in the first two dot points first quoted above also provide prima facie evidence of duties upon the defendant vis-a-vis the plaintiff, because what are said to be safe work practices by waterside workers would have reduced the level of asbestos concentration in the atmosphere where the plaintiff was required to work in the vicinity of waterside workers, and therefore his exposure to asbestos as well as that of waterside workers who are handling it. Conclusions as to the plaintiff's and/or the deceased's lack of knowledge
69. Therefore this report, when the plaintiff read it, imparted to her knowledge which she did not possess before, according to her evidence, about the means whereby her husband's asbestos exposure might have been reduced or eliminated, and therefore about duties to her husband which had been breached. In particular, apart from one admission which I do not regard as conceding this (see above), she was before then unaware that a respirator was a suitable precaution for reducing or eliminating asbestos inhalation, and of the need for dust monitoring to ascertain whether a respirator should be worn. She was not earlier aware that there existed sufficiently strong bags to contain asbestos which would resist tearing. She was not earlier aware that the use of hooks on asbestos bags caused them to tear and that it should be banned. She was not earlier aware that bags or other containers could and should be labelled with warnings about asbestos content and about the potential health consequences of exposure to asbestos. She was not earlier aware that dust minimisation programs could reduce or eliminate asbestos exposure and that a system of monitoring them could and should be implemented. She was not earlier aware that regular audits could and should take place to ensure the effective application of the above precautions. All she was earlier aware of, by way of summary, was her husband's exposure to asbestos in toxic concentrations, which could and did cause mesothelioma leading to his death, and of the fact that broken bags in his workplace frequently emitted asbestos, and that her husband worked in an office without air-conditioning with open hopper windows (for such time as he was not working outdoors) which admitted asbestos dust, and that he was not provided with a protective mask. The word "etc." after the words "protective mask" in the deceased's statement, part of annexure "H" to the plaintiff's affidavit, at page 29 thereof, does not I think convey any more information about precautions which were not taken to the plaintiff than the words "protective masks" preceding it.
70. It is a separate question whether, on the authorities, the matters of which the plaintiff was aware before she read the Stewart report provided a sufficient "bundle" of facts to give her a worthwhile cause of action on appropriate advice within the Queensland legislation, and I shall deal with that question after examining the authorities.
71. Another matter of which I am satisfied the plaintiff was not aware until informed of it by Slater & Gordon on 26 May 2000 (see paragraph 42 of her affidavit at pages 7-8) was the identity of the present defendant, the Stevedoring Industry Finance Committee, and for that matter of its statutory predecessor, the Australian Stevedoring Industry Authority (ASIC). The paragraph of the plaintiff's affidavit to which I have just referred does not in terms refer to the plaintiff's ignorance of the existence of ASIC, but rather to her ignorance of its duties, but her oral evidence also asserts ignorance of its existence (see para 60 above where it is related that the plaintiff said as to that "I wouldn't know who the somebody else was"). The plaintiff's ignorance of these matters, if established, is ignorance of a matter of mixed fact and law, as submitted by Mr Joseph S.C. in his submissions, in my view. The duties themselves were imposed by law, and the plaintiff's ignorance of such law is not a matter upon which she can rely as ignorance of a material fact of a decisive character as that term has been interpreted in the authorities which I shall examine later. However the plaintiff's lack of knowledge of the fact that ASIC existed and undertook such duties at the time her husband was employed on the wharves in the Port of Brisbane is in my view ignorance of a fact, namely of the identity and undertaking of such duties by of the defendant. It follows that if I accept the plaintiff's evidence both given orally and in para 42, she was also unaware, as indeed she directly asserts there, that ASIC had committed acts and omissions which affected the deceased's working conditions, and that it could have taken steps to prevent his being exposed to asbestos.
72. As to whether I should accept what the plaintiff says in the witness box and in para 42 of her affidavit, I have already noted the plaintiff's cross-examination, and in particular her admission that she wondered whether "someone" was responsible for the deceased's safety, and in particular for the lack of provision of "protective masks etc." to quote the deceased's statement, part of annexure "H" to the plaintiff's affidavit, at page 29 thereof. At no stage was it suggested to the plaintiff in cross-examination that she knew of ASIC or of its undertaking certain duties, and at no stage did she say that she was so aware, even in evidence in chief or in cross-examination. The plaintiff's repeated assertion that the deceased "kept his work at work" makes it unlikely in my view that the deceased informed the plaintiff of the existence of ASIC or of its duties, even if he was aware of its existence. Given the opportunity in cross-examination, when asked whether she wondered whether "someone" was responsible for the deceased's safety, and for the lack of "protective masks etc.", the plaintiff did not name ASIC as that person, much less refer to its undertaking duties.
73. At no stage does the evidence go so far as to establish affirmatively, the onus being on the plaintiff in this respect, that the deceased was unaware of the very existence of ASIC, or of its duties. In so far as the Queensland legislation requires me, for the purposes of the plaintiff's action against the defendant on behalf of his estate, to examine whether the deceased as well as the plaintiff was unaware of the existence of ASIC or of its duties, I do not think it is proper to find that the deceased was ignorant of those matters. The plaintiff I think, as I have said, was ignorant of the existence and of the duties of ASIC and of its breaches of those duties. Prejudice advanced
74. It is now convenient to examine the evidence as to prejudice to the defendant, should the plaintiff establish ignorance of a material fact of a decisive character within the Queensland legislation, and therefore a prima facie entitlement to an extension of time.
75. The first basis upon which prejudice was asserted, in the way the defendant contested this application, is that the plaintiff's recollection of the financial arrangements between herself and her husband has dimmed to such an extent that it is impossible properly to test her allegation that she received support at a particular level from the deceased before his death, and has consequently lost it as a result of his death, so as to ground an action under the Compensation to Relatives Act. The second was that its potential witnesses' memories may have dimmed, and that it might be more difficult to obtain documents relevant to its defence. The third was prejudice in pursuing cross claims. I shall deal with that topic separately. Affidavit evidence by the plaintiff as to prejudice
76. It is important not to overlook that the plaintiff gave detailed evidence on this subject relevant to the quantum issue in her affidavit. This occurs particularly at paras 6-22 of her affidavit, extending over some two and a half pages between pages 2 and 4 thereof. I shall not reproduce those paragraphs for reasons of space, but it is sufficient to say that they give detailed evidence of the plaintiff's purchase of a home with the deceased, and the source of the funds; the deceased's wages in his last year of employment (his group certificate being annexed to the affidavit and marked "B" (see para 9 of the plaintiff's affidavit); the deceased's income from worker's compensation in the 1984-85 financial year; the motor vehicles owned by the deceased and by the plaintiff as at the date of death and what was done with them; the maintenance of the deceased's vehicle by his then employer Conaust and its use for private purposes on weekends and holidays, and its maintenance by the deceased, and his payment for parts and servicing, and ongoing running costs, apart from car maintenance and petrol which were paid for by Conaust; the deceased's contributions to a superannuation fund, his 1985 group certificate indicating a particular contribution in that respect, and the plaintiff's receipt of about $95,000.00 from that superannuation fund; the deceased's receipt of wages in cash at the end of the week and his disbursement of those wages on things for himself and his wife (such amounts not being, however, specified); the saving habits of the plaintiff and the deceased; their indulgence on a holiday on the Gold Coast each year; an estimate that the deceased gave the plaintiff about $300.00 per week which she spent on food, clothing and other expenses, and her maintenance of two bank accounts for these purposes; the plaintiff's occasional receipt of extra money from the deceased; details of her bank balances in January 1984 and certain investments made by the deceased and the plaintiff in particular sums, and the plaintiff's payment of household expenses from a particular bank account, with an estimate that she spent a particular sum maintaining the home. The plaintiff's oral evidence as to prejudice
77. It can be seen from this rather lengthy recital that evidence of a high degree of specificity was offered in the plaintiff's affidavit as to the level of support she received from her husband. As against that, in cross-examination the plaintiff was undeniably rather vague, as Mr Tobin QC for the defendant submits. Initially the plaintiff said in cross-examination (T62.5) that she gave all her bank records to her solicitors. This in my view accounts for some vagueness in her answers, these records not being available to her when she was being cross-examined. It must be remembered that her recollection would probably improve if this application is granted and a trial on the merits of her action as dependant widow takes place, and she gives evidence in it, because she would then have access to her bank records in the witness box.
78. The plaintiff indicated that she paid for household food and the like in cash, but used cheques to pay for bills other than food and clothing (T63.2). A question was asked at T63.3 as to whether the banking records showed cheques drawn but not what they were used for, and the plaintiff gave no audible response. When the plaintiff was then asked (T63.4) whether the banking records did not identify, for example, whether a cheque was used to paint the house, or for car repairs, or for some other item such as travel, the question was objected to and much discussion took place, and I allowed it, but it was not repeated.
79. The plaintiff conceded (T68.4) that in 1985 her husband was very ill and that their household was in great distress as a result, and she was giving a great deal of time and attention to her husband's needs. She agreed (T68.5) that the expenditures of the household in the twelve month period before his death were not normal. She said (T68.6) that she has produced all of the banking and other financial records she possessed to her solicitors, and that (T68.7) many of the records prior to 1984 simply are unable to be found. She said she was aware (T68.8) that a claim was being made that she had an 80% dependency upon her husband's earnings. She agreed (T69.1) that it was difficult to reconstruct, in dollar and cent terms, precisely what part of the household expenditure was spent on things that were going to be of benefit to her in the absence of financial records.
80. Passing to car maintenance, the plaintiff agreed that she could not remember what she received for their Chrysler motor vehicle, when it was sold after his death in 1985 (T69.4). She agreed that car maintenance and petrol were paid by Conaust, as set out in paragraph 12 of her affidavit, but that she had no idea of how much money was involved for car maintenance and petrol in the period 1980-85 (T69.5). She agreed that she could not remember how many minutes or hours a week she travelled in her husband's Falcon (T69.8), although she said (T69.9) that when her husband was going to work the Falcon was not at home, so she could not have been travelling in it at that time. These last matters struck me as very minute details which she would have been perhaps unlikely to retain even had she sued in time.
81. She was then referred to paragraph 19 of her affidavit, in which she mentioned paying all the bills for the household (T69.9) and admitted (T70.1) that she would not know what the cost of food was in 1984 when her husband was still fit and well, nor (T70.2) what her husband consumed by way of food, although she said (T70.3) that in 1984 she would have spent $100.00 per week in 1984 for food for the whole family. She agreed in response to a question I asked (T70.5) that she was used to budgeting all her married life, and that that was what she was doing in 1984. The reason I asked that question was to test the reliability of her answer that she spent $100.00 per week for food for the whole family in 1984. It seems quite likely in view of the reply she gave me that being used to budgeting, the plaintiff would very likely have a recollection of what she spent on food in 1984, and that her answer that $100.00 per week was that sum is to be believed in view of this.
82. The plaintiff was then taken to the move, described in paragraph 25 of her affidavit, to a new home at Wavell Heights (T70.6). She agreed that her children helped around the home (T70.8) with such things as dishes, and cleaning the house and garden, and paying rent (T70.9). She could not specify the length of time her children devoted to helping her in this way (T71.8).
83. The plaintiff was then re-examined on the issue of prejudice and she agreed that when her husband was home, his car was home as well, and that he and she used it for shopping (T71.9), and that she had a licence and drove her husband's Falcon when he was ill (T72.3), but that her husband drove her when visiting friends socially and going on holidays (T72.4), and that holidays to the Gold Coast would have taken an hour and a half of driving each way (T72.5). The plaintiff said that when her husband was ill there was extra expenditure on medication, and that records were not kept as to the cost of it (T73.8), and that any bills in this respect, the deceased being in a private health fund, would have been taken to such health fund, Medical Benefits, or to Medicare (T73.9). The plaintiff simply thought that the deceased sent all his treatment bills to Medicare and that they were paid by them, although she did not really know (T74.1). The plaintiff said that her children would be available to give evidence in the proceedings, her daughter only if she was well enough (T75.2). Conclusions from the plaintiff's evidence as to prejudice
84. My conclusion as to the plaintiff's evidence about dependency is that it did not cut down the essential detail given by her in her affidavit, although it did establish that she was vague in relation to a number of matters. I shall consider later her evidence as to prejudice on the issue of whether she has established affirmatively that the defendant would not be prejudiced by my making an order for extension of time under the Queensland legislation, to an extent where the prospect of a fair trial of the action on the quantum issue would be significantly diminished. My preliminary conclusion is that it would not be, because my view is that the plaintiff's detail in her affidavit as to her dependency upon her husband is unusually acute. It is inevitable that records will be destroyed in the best of households, and I do not think the evidence shows that this has particularly occurred because of the effluxion of time in the case of the plaintiff and the deceased. Questions of dependency in my opinion are inevitably decided to a degree on an impression rather than on precise mathematical detail, and it is in the nature of things impossible to afford precise mathematical accuracy to the infinitely shifting financial arrangements between husband and wife in the best regulated households. This approach is supported by authority, as I shall later indicate. Mr McGuinness's evidence as to prejudice
85. The next evidence on the subject of prejudice is that of David John McGuinness, who is as I have said the defendant's solicitor, and it was the main evidence as to prejudice on the liability issue. His evidence was first advanced on the second leg of the defendant's case as to prejudice, which is that it would experience greater difficulty in locating witnesses and relevant documents than would be the case had the plaintiff's action been brought in time, although it deals with the second leg, prejudice on the issue of dependency, as well.
86. Mr McGuinness's oral evidence consisted of cross-examination on his affidavit, sworn 2 November 2001, which is DX11. Mr McGuinness's affidavit
87. This affidavit certainly establishes a considerable degree of prima facie prejudice to the defendant should an extension of time to sue be granted to the plaintiff.
88. Mr McGuinness says in para 2 that he is responsible for the carriage of all proceedings against SIFC in various courts, and in para 3 annexes as annexure "A" a schedule of all proceedings in which his firm was instructed to act for SIFC, indicating incidentally that Slater & Gordon have acted, or are acting, for 75 of the plaintiffs in the schedule. In para 4 he says that seven of the proceedings against SIFC relate to exposure to asbestos in the Port of Brisbane, including the present case, and that in none of the other cases were the plaintiff's or deceased's working as clerks, supervisors or managers for "third party entities" in that port.
89. In para 5 Mr McGuinness says that there has been no judgment by any court or tribunal against SIFC concerning the system of stevedoring operations in relation to loading, unloading and handling of asbestos cargo in the Port of Brisbane during the period of the deceased's employment, or as to the duties owed by the statutory predecessors of the defendant to clerks, supervisors and managers in the permanent or casual employment of third party entities.
90. In para 6 Mr McGuinness says a search has not disclosed employment of the deceased as a waterside worker. That is not asserted by the plaintiff and may be put to one side. The same applies to para 7 of the affidavit, which refers to a negative response from the Maritime Union of Australia as to the deceased's membership of it.
91. Para 8 asserts prejudice to the defendant in that it is now unable fully to investigate the circumstances of the allegations of injury in the Statement of Claim and the quantum of damages claimed. Para 9 sets out a number of documents not produced by the plaintiff, including employment records of the deceased before the late 1960's; any banking records of the deceased, or such records of the plaintiff before 28 June 1985; any taxation records of the plaintiff between 30 June 1980 and 1 July 1982; any taxation records of the deceased between 30 June 1981 and 30 June 1984, and any superannuation records relating to the plaintiff.
92. Para 10 asserts that on 2 October 2001 Mr McGuinness sent a letter to the plaintiff's solicitors requesting further documentation and relates that a reply was sent by Slater & Gordon on 1 November 2001, saying that all the requested documents within the possession of the plaintiff had been produced. Those letters are annexed to the affidavit, and marked "D" and "E".
93. Para 11 of the affidavit refers to annexure "F" which is the plaintiff's Statement of Particulars under Part 33 Rule 8A of the Supreme Court Rules. Mr McGuinness asserts that there are no records available to substantiate the plaintiff's alleged dependency of 80% on the deceased, to substantiate or quantify the alleged loss of pension benefits, or to substantiate the loss of superannuation benefits.
94. Para 12 of the affidavit asserts that the plaintiff has provided particulars and documents asserting that the deceased was either employed by or was present when cargoes of asbestos were stevedored by certain firms. The affidavit then annexes annexures "G", "H", "I", "J", "K" and "L", indicating in large part that the companies concerned were deregistered. The obvious inference is that it will be difficult, if not impossible, to obtain the fruits of any verdict in the defendant's favour on cross-claims if brought against these companies. McMcGuinness's oral evidence
95. This consisted almost entirely of cross-examination, because Mr McGuinness's evidence in chief simply identified his affidavit. As to the cross-examination, as with the plaintiff's, I hope I will be forgiven if I do not refer to every aspect of it, but only to those which have particularly assisted me in determination of the present issues.
96. Mr McGuinness was first taken through a number of matters mentioned in the schedule of other matters brought against the defendant, annexure "A" to his affidavit. The first of significance to my mind was the matter of White, referred to at page 1 of annexure "A" to Mr McGuinness's affidavit, referred to in paragraph 3 of the body of the affidavit. That is the first case mentioned in the schedule relating to exposure in Queensland (see also T78.9).
97. Mr McGuinness then agreed (T79.2) that there was no resolution by way of favourable settlement or a verdict in favour of the plaintiff in any of the claims against his client until after the result in Crimmins' case (it will be remembered that in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 the succession of SIFC to the liabilities of the ASIC was authoritatively established). McGuinness however conceded that Gibson's case Gibson v SIFC (1998) 20 NSWCCR 203) may have been the only other case, meaning the only other case in which a verdict in favour of the plaintiff against his client in respect of asbestos exposure on the wharves was pronounced. He said that up until Crimmins was determined in the High Court, his client was taking the stance that SIFC did not owe duties of care to persons on the waterfront, or at least that duty of care was put in issue (T79.6). This was also the position until Gibson's case was decided (T79.8), and his advice to his clients was that the transmission of liability to it was in issue (T80.3).
98. In relation to this part of the cross-examination, I have already observed that the plaintiff's ignorance of the legal duties of the present defendant is not, on the authorities, ignorance of a material fact of a decisive character; it is ignorance of a matter of law. It cannot ground the present application for an extension of time under the Queensland legislation. Mr Joseph recognised in an exchange with me (T80.8) that the ignorance of the plaintiff of the "bundle of facts" that would enable her to obtain appropriate advice as to the identity of the defendant was a different issue from her ignorance of the legal duties of the present defendant, which were ultimately established by Crimmins' case in the High Court. Much discussion occurred about this and the plaintiff's re-examination was interposed before Mr McGuinness' cross-examination was resumed.
99. Mr McGuinness indicated (T89.2) that the investigations undertaken in respect of the present matter since his client was served with the Statement of Claim consisted of the issue of subpoenas for production in an effort to gain access to relevant records and notices to produce and the seeking of particulars from the plaintiff for the same purpose, as well as enquiries of the Queensland Workers Compensation Board in relation to the insurance position of the named employers of the deceased. In response to a question by myself, he also said that he had attempted to contact Messrs Baillie and Ingle, two persons referred to in material served by the plaintiff. It is sufficient to say that those persons worked with and/or supervised the deceased during various periods of his employment on the Brisbane waterfront according to that material (presumably the deceased's statements, annexure "H", of the plaintiff affidavit, PX11). Mr McGuinness also said that he had reviewed records of the predecessors of the defendant in relation to registration details for the deceased, and had also reviewed records of predecessors of the defendant in relation to cargo, discharge and loading records, and could not name anything else.
100. To test this answer I then asked Mr McGuinness why it was that he had not reviewed the records of the statutory predecessors of the defendant in relation to persons who were employed in the area where he now knew that the deceased (wrongly referred by me in the question as "the plaintiff") worked (T89.8) with a view to attempting to locate them and obtain statements, and (T89.9) Mr McGuinness said "in the context of this particular proceeding I cannot explain that position, but enquiries that have been made in relation to some other Queensland Port claims we have not been able to identify any relevant living employee of predecessor" [sic], and that in that context he decided not to try again (T89.9). He could not recall the names of the cases in which he had made those enquiries (T90.1) nor could he precisely recall what attempts were made to find out the identity of relevant personnel from the Australian Stevedoring Industry Authority.
101. Mr McGuinness was asked (T93.4) whether he knew what cargo returns his client had, and he said he knew, to the extent that they are referred to in the list of documents, and when he was asked whether he believed that cargo records were still in existence in respect of all cargoes entering the Port of Brisbane from 1960 onwards, he said he was not aware as to whether they (the lists he had) were a complete record of all cargoes entering the Port of Brisbane at any time, but that he was aware that there were records in respect of cargoes from 1960 onward (T93.5), and that he did not know whether there were records before that, but that there might be (T93.6). He said he had not been able to locate any cargo returns before 1959 (T93.7). I asked at T93.8 whether he had made or caused to be made any efforts to find out whether the ships concerned (in the cargo returns) were owned by shipowners which were still in existence, and he said he did not believe he had, and when I then asked (T93.9) whether he had made any attempts, therefore, to ascertain whether any person could be found in the employ of the relevant shipowners at the times referred to in the Statement of Claim may be able to cast light on the working conditions of the plaintiff in any way, he said he had not.
102. The cross-examination then passed to whether there were any complaints or Boards of Reference or enquiries made by the defendant in its various guises (referring to its statutory predecessors) arising from discharges (of cargo) (T94.1), and he agreed that it might be possible that identification of the vessels concerned could lead to documents in which there might have been complaints made about the manner of discharge of cargoes on the vessels concerned, which led to investigation by the various statutory authorities. Mr Joseph put by way of example (T94.2) that if the reference to the City of Hereford, mentioned in the documents, referred to one of the vessels in 1969, and if there were excessive amounts of asbestos dust, there might have been an inquiry made and an investigation conducted by the statutory authority and its inspectors. Mr McGuinness agreed that this was a possibility. He agreed (T94.9) that no investigations, which he had caused to be made, enquired as to whether the loading or unloading of the vessels (in the plaintiff's list), in particular the unloading of them, led to any statutory investigation by the defendant or its employees or by its predecessors. He agreed (T95.1) that there was a mechanism for complaints being referred to and investigated by the defendant's predecessors, and that this mechanism was first that there would be a local inspector who would investigate it, and that the dispute may then be referred to a Board of Reference.
103. Mr Joseph then at T96.6 to T96.9 referred Mr McGuinness to references in PX55, the plaintiff's tender bundle under tab 13, to references in the affidavit of documents under that tab filed in Crimmin's case, in the annexure thereto, which is a list of documents. The references were to documents numbered 139, 140 and 141, all of which are set in the list just referred to as being "Board of Ref. Disputes and Stoppages Brisbane". Mr McGuinness said that he had seen those references (T96.9) and said that he had not inspected the boxes referred to under those numbers in the list of documents. Mr McGuinness then conceded (T97.9) that if there were disputes on the waterfront because of "dust issues" and there was a Board of Reference, and there was a record held in relation to it, he would expect there would be a reference to it if the dispute proceeded to the Board of Reference. He said on the basis of the list of documents that without knowing the subject matter, it seemed to suggest that there were disputes and that there were still in existence Board of Reference documents for the Port of Brisbane. He said (T97.7) that he was not aware of any destruction of records for the Port of Brisbane.
104. It was put to Mr McGuinness that only a small proportion of the documents, referred to in the list of documents just mentioned, referred to the Port of Brisbane, and that it would not have been a superhuman task for him or for those under to him to inspect the files relating in particular to Board of Reference disputes in Brisbane, to see if any of them concerned disputes relating to asbestos dust. He said he was not aware as to what volume there were, but that it would have been a task that could have been undertaken, and that those records may have revealed the names of people who responded to complaints by the Union about asbestos dust if such complaints were made (T97.9). He agreed that he had not personally inspected those particular files to see if they disclosed any dispute about asbestos dust, and if so the names of any people who might now still be alive, but said that these records may well have been inspected for the purpose of answering interrogatories (T98.1), but not in relation to preparing his defence to this litigation (T98.4, in response to a question I asked). He said that the Board of Reference documents may have had the name of the relevant local inspector (T98.6).
105. Mr McGuinness was then taken to documents 649 (I think that is an error for 650) to 660 in the list of documents annexed to the affidavit of documents under tab 13 of the plaintiff's tender bundle, PX55, and he agreed that "there is a reference to 1942, 1945, 1946" being at least part of the period of the plaintiff's employment. Those references are to "Minutes of Stevedoring Industry Commission" for various periods from 26 October 1942 (650) to 1949 (660). None, I observe, are specifically said to relate to Brisbane. Mr McGuinness was not aware whether those documents had been looked at, but I observed (T98.8) that none of those appeared to make any reference to the Port of Brisbane, and Mr Joseph replied (T98.9) that documents 662, 663, and 664 clearly relate to the Port of Brisbane. I do not regard the documents between 650 and 660 as being of particular significance since they do not relate specifically to the Port of Brisbane, as I pointed out to Mr Joseph at the time.
106. However Mr McGuinness said (T98.9) that he did not know whether the documents under the headings 662, 663 and 664 had been looked at. They indeed are described as "Minutes of Waterside Employment Committees Brisbane" extending between the years 1942 to 1949 and do therefore clearly relate to the Port of Brisbane. Mr McGuinness was also taken to documents under the heading 759 (erroneously numbered by Mr Joseph as 659) which are said to be "Minutes of meetings of Port Safety Advisory Panels, Brisbane and Port Kembla", and he said that he did not know whether they had been looked at.
107. Mr McGuinness said (T99.1) that he did not know whether tally clerks had a consolidated pay office like the waterside workers, and in particular whether they were paid through the "AWL" (probably an erroneous reference to "AEWL", being the Association of Employers of Waterfront Labour), and he said that he did not know. He conceded (T99.3) that at one stage a central paying office was created on the waterfront but he did not know when, nor did he know (T99.4) whether included in that central paying office was the payment of tally clerks as well as waterside workers. He was asked whether he had made any enquiries of the Association of Employers of Waterside Labour (which I think should read "Waterfront Labour"), and he said he had not, and he said that this might be a fruitful line of enquiry, but observed that it was asserted, as he understood it, that the deceased was a permanent employee throughout his whole time on the waterfront at the Port of Brisbane. This is indeed so, and it means that, as I understand it, enquiries of AEWL as to the employment history of the deceased would not have been fruitful, because I think I may know that it only controlled the casual employment of waterside workers and not of permanent employees. The same remarks apply to the cross-examination of Mr McGuinness on the records of the AEWL and of the MUA (the Maritime Union of Australia) at T101.
108. At T102.7 Mr McGuinness was then taken to seven proceedings mentioned in the annexure to paragraph 4 of his affidavit in respect of the Port of Brisbane, and to the fact that the present one was the only one involving a clerk. He said (T102.8) that he could not be sure that he had identified the dates upon which the other six persons (in the proceedings against the defendant in respect of the Port of Brisbane) claim to have been exposed (to asbestos) to see whether they correlated with the deceased in these proceedings, nor did he know whether it was the case (T102.9) that any of those six persons identified vessels the same as those which are identified in these proceedings (as being those where the asbestos exposure had occurred). He was asked (T102.9) whether there had been investigations carried out in those other proceedings in respect of the exposure which the waterside workers concerned claimed to have had, as to whether there were witnesses to their exposure, or whether they identified tally clerks as witnesses to their exposure, and he said (T103.1) that he could not answer as to the extent of detailed investigation in respect of those other six, and whether witnesses of the kind referred to had been identified, or whether apart from those witnesses, any board inspectors had been identified in respect of those six proceedings (T103.2). He said that he did not know positively or negatively whether those matters might have indeed been available if he were to read the files relating to those other six proceedings (T103.3), admitting, in response to a question I asked at that point, that he had not gone back and read the relevant portions of the files in those proceedings for the purposes of this application. This struck me as an easy thing to do, and therefore a particularly significant omission.
109. Mr McGuinness said he was not aware of the movement of Port inspectors between cities, the defendant and its predecessors being Federal organisations (T103.4). He agreed that people who had given evidence in Crimmins' case and who were available but not called in Gibson's case may be Messrs Fleming and Dalziel, and referred to the fact that a Mr Neild gave evidence in Crimmins' case, he being a Port inspector with the Australian Stevedoring Industry Authority in the Port of Melbourne (T103.5, T103.6). He did not know (T103.7) whether at any stage Mr Neild was a Port inspector in Brisbane with ASIA, and conceded that Mr Neild had not been contacted for the purpose of his inquiries in relation to prejudice in these proceedings (T103.7). He agreed that a Mr Farr may have given evidence in Gibson. I drew Mr Joseph's attention (T103.8) to the question of whether any of these persons had or have any association with the Port of Brisbane. I remain in doubt as to whether any of these persons (Messrs Fleming, Dalziel, Neild and Farr) could have assisted the defendant in its enquiries about prejudice in these proceedings, and I draw no particular significance from the fact that Mr McGuinness did not interview them, in view of the lack of demonstration by any evidence that they could have cast light on the deceased's employment in the Port of Brisbane. Mr Joseph's reference to the fact that ASIA, the statutory predecessor of the defendant, was "an Australia-wide organisation" at T105.3, does not convince me otherwise.
110. At T107.7 Mr McGuinness was asked whether in paragraph 4 of his affidavit he was attempting to ask the Tribunal to consider "the present case" as peculiar, because all of the claims being made relate to a clerk in the Port of Brisbane. He referred to the fact that all of the cases that proceeded to determination involved questions of duty of care and breach (of duty) in relation to the Authority and registered waterside workers, but not in relation to clerks, supervisors and managers, being positions similar to those in which the deceased was engaged. However at T107.8 I asked whether the fact that the plaintiff was a tally clerk and not a waterside worker created prejudice in the enquiries which Mr McGuinness might feel himself advised to make, and he said "some of it may well be unknown, Your Honour" referring apparently to presumptive prejudice and then admitted that he was unable to identify any such prejudice in specific terms, in response to a question by Mr Joseph (T107.9) and said that he could not advance any such prejudice at that moment.
111. Of course what has been called in the authorities presumptive prejudice is a relevant matter is assessing any prejudice likely to be occasioned by the defendant as a result of a successful application for extension of time by a plaintiff. Nevertheless the weight of any allegation of actual prejudice is, to my mind, to be tested by whether there is specific evidence of it. None such was identified by Mr McGuinness in this reply (or, as I read the evidence, elsewhere) relating to the fact that the present claim was novel in that the deceased was a tally clerk and not a waterside worker, and employed in the Port of Brisbane rather than elsewhere. Were there any specific prejudice in relation to these matters one would have thought that Mr McGuinness would have advanced it. I am likewise unable to identify any presumptive prejudice, in the way that the authorities have used that term, which would be indicated by the mere fact that the deceased was a tally clerk and not a waterside worker, and employed in the Port of Brisbane rather than in the Port of Sydney, for example, which has often been the subject of allegations in previous cases.
112. Mr McGuinness conceded that there in fact have been settlements of cases (as opposed to court verdicts) involving waterside workers in the Port of Brisbane (T108.1), and said that the name of "Tyso" rang a bell. Mr Joseph pointed out, and Mr McGuinness agreed (T108.3) that reference on the last page of the list of cases, annexure "A" to Mr McGuinness's affidavit, to the case of "Tyso" identified the jurisdiction without identifying the place of exposure, and Mr McGuinness said that without more information he could not answer the question (whether Tyso was a case concerning exposure in the Port of Brisbane).
113. I was then prompted to ask whether the matter of White, identified in the first page of annexure "A" to Mr McGuinness's affidavit, related to exposure in Queensland, and Mr McGuinness agreed (108.5) that this was so, as he understood it. I asked whether it would have been a relevant priority in Mr White's case to have asked of the defendant whether its statutory predecessor's records showed the name of any inspectors or the like who could cast light on the extent of his exposure, and he replied that, as he recalled, the proceedings were discontinued against the present defendant not long after their institution. This may provide a legitimate reason why these enquiries were not made in White's case, in my view.
114. Mr McGuinness said at T108.9 that claims made by John Mulcay [sic] and Lorraine Mulcay and Tyso, Martin and Moylen were brought in respect of exposure in the Port of Brisbane, and that (T109.1) "there might be a claim of Smith". He identified Tyso as a Port of Brisbane claim that had been settled (T108.2). Mr McGuinness was asked (T108.7) whether he had settled a tally clerk's case, and he identified that of a Mr Coyle, who was a tally clerk as well as a waterside worker in the Port of Sydney (T110.3). I am unconvinced of the relevance of that case in the present situation, as it related to the Port of Sydney.
115. Mr McGuinness was then taken (T110.9) to the fact that interrogatories were answered in the present matter and agreed that this was the case. He conceded (T111.1) that it was part of his duties as a solicitor witnessing and authorising of answers to interrogatories to ensure that his client had done all that was reasonable and necessary to answer them. He said, however, that he did not ask a Mr Kelso, who signed the affidavit (referring presumably to Mr Kelso having sworn the affidavit) what enquiries he had made to answer the interrogatories (T111.2). He could not specifically recall advising Mr Kelso as to the enquiries which needed to be made of any employees or any former employees of the Authority and its predecessor. When answering the interrogatories (T111.5) he said that he did not tell Mr Kelso that he should ensure that all relevant enquiries were made of employees or former employees of the defendant or its predecessor, because that was a task which Mr Kelso was relying on "us" (referring presumably to the defendant's solicitors) to do (T111.7). Mr McGuinness said that he was not aware (T112.5) of whether any employee or former employee (of the Authority, referring presumably to ASIA, or the defendant) was contacted by his office for the purpose of answering the interrogatories. He said he would have possibly expected to be aware if some employee or former employee had been contacted for the purpose of answering any of the interrogatories (T112.7). Nor was he aware of what efforts had been made by his office to contact any employee or former employee for the purpose of answering the interrogatories (in the present proceedings): T112.8. He could not recall that the interrogatories were in part specific to the Port of Brisbane, there being a number of questions. But when he was shown the Notice to Answer Interrogatories he agreed that the Port referred to in the Interrogatories was in fact "the Ports New Farm, Hamilton and Brisbane", as one of the definitions (T112.9). The Notice to Answer Interrogatories was then tendered (T113.9) as PX77, this containing the definition of the Port of Brisbane. I do not draw any other particular significance from this exhibit.
116. Mr McGuinness said (T114.6) that efforts had been made to contact Mr Baillie the day before, but that he did not contact him, but that somebody in his office attempted to locate and contact him, but had not done so, and that these efforts were made by telephone. He said (T114.8) that this was the first time that efforts had been made by his office since the case had started to contact Mr Baillie, conceding at that point that Mr Baillie's statement had been in his firm's possession, although he was not sure how long they had had it, and he thought it was part of the bundle that came from the Workcover Authority, but was not sure "when we got it". Extraordinarily, he could not say why efforts had not been made by his office between approximately May this year and yesterday (i.e. 5 November 2001, the date before Mr McGuinness gave his evidence) to contact Mr Baillie (T114.9), other than to say that the material contained in Mr Baillie's statement in the Workcover Authority file only went to part of the period. He agreed (T115.1) that the statement went to the deceased's employment, and he thought it referred to the deceased's statement about his employment and history of exposure to asbestos dust, although he was not sure that it went to critical issues on which he now claimed there was prejudice.
117. Equally extraordinarily, when it was put to Mr McGuinness that the statement went firstly to the deceased's employment, and secondly to his history of exposure to asbestos, and that these were critical issues in respect of which he had claimed prejudice in paragraph 8 of his affidavit, saying that he was unable to investigate the circumstances of the alleged injury, Mr McGuinness said "well, the fact that he was exposed to asbestos is not an issue in the proceedings" (T115.2), and when it was put to him that the extent of the deceased's exposure remained an issue, he said (T115.3) that "I don't know that the extent of his exposure is an issue".
118. With due respect to Mr McGuinness, it is difficult to see that significant prejudice is occasioned to the defendant in investigating whether the deceased was exposed to asbestos if he, as the defendant's solicitor, presumably with full authority from it, admits that exposure to asbestos is not an issue in the present proceedings and that he does not know that the extent of the deceased's exposure is in issue either, although the latter statement, to be fair, is susceptible also of the interpretation that without information as to the extent of the exposure from his own enquiries, he is unable to say whether the extent of the exposure is an issue or not. Nevertheless these admissions (honestly made against the interest of his clients, one must add) undercut greatly in my view the degree of prejudice likely to be suffered by the defendant in its defence of the current proceedings on the issue of asbestos exposure.
119. This is underlined by the reply Mr McGuinness gave me at T115.4, when I asked what he meant when he said that the SFIC was unable fully to investigate the circumstances of the alleged injury in para 8 of his affidavit. He said that he was there referring to presumptive prejudice, and was not asserting that there was actual prejudice (T115.5). He agreed that what he meant was that when he found people, if he did, then he may find that there memory was poor, and that documents which they may have been able to locate years ago they could not locate now, and that one way or the other, the conventional means of investigating a claim may be more difficult having regard to the period of time involved, which was in turn brought about by the delay on the plaintiff's part (T115.6). He also said (T115.7) that his affidavit identified actual prejudice in paragraph 9 (which refers to the lack of taxation and other financial records produced by the plaintiff and the deceased) but he said (T115.7) that "the fact that Mr Bailey [sic] exists and Mr Ingle exists and Mr Shultz still exists, that is not an issue to which I take in terms of prejudice" although he then conceded (T115.8) that even in paragraph 8 he was advancing presumptive rather than actual prejudice.
120. At T116.3 I wondered aloud what was in issue if exposure to asbestos was not, and the degree of exposure may not be, and Mr Tobin agreed (T116.6) that quantum at the very least was in issue, and asserted that prejudice could be advanced in relation to it, and that he referred to that in the cross-examination of the plaintiff. This comes very close to, although it is not, an admission by the defendant through its counsel that the only real prejudice it faces is on the issue of quantum rather than defence of the claim on liability.
121. At T116.7 Mr McGuinness said that efforts had been made to contact Mr Ingle by telephone, but in response to a question from me (T116.8) as to whether anybody had thought of the electoral roll, he said "possibly, your Honour", without indicating that any attempt had definitely been made in this way.
122. Mr McGuinness agreed (T117.4) that in light of the plaintiff's evidence in para 6 of her affidavit, PX11, that after she and the deceased were married the deceased closed his bank accounts and arranged for her to do all the banking for the family, and that this remained the case until he died in 1985, there was no prejudice to the defendant from the plaintiff's failure to produce the deceased's banking records. Although Mr McGuinness did not answer a question (T117.6) about this, it seems to me that this makes para 9(iii) of his affidavit, DX11 (see page 3 thereof) inaccurate, although as I said at the time (T117.8) I of course do not draw any sinister significance of any kind from this.
123. As to the implied suggestion that para 9(iv) of the affidavit is inaccurate because the plaintiff did not work during the period in question, Mr McGuinness said (T117.8) that taxation records could evidence other sources of income despite the plaintiff not working, and that taxation records may again be relevant (T118.1) in relation to the period of the plaintiff's employment with Conaust, not only in relation to income but also in relation to contributions to superannuation and other deductions for the purposes of determining the level of dependency of the plaintiff (this was relevant to paragraphs 9(v) of Mr McGuinness's affidavit).
124. As to para 9(vi) of the affidavit, it was put to Mr McGuinness that under tabs 34, 35 and 36 of PX55 there was superannuation records relating to the deceased, and he pointed out that para 9(vi) of his affidavit related to superannuation records relating to the plaintiff. When it was put to him that the plaintiff was not working, so that there would be no superannuation records in relation to the relevant period and therefore "nil prejudice", he said that this was so, unless contributions were being made to a scheme in the name of the plaintiff by her husband, and that he did not know whether these existed or not (118.3). He agreed that this suggestion was not put to the plaintiff in any questions in the witness box (T118.4).
125. Mr McGuinness agreed that he had had an accountant's report prepared in respect of the damages in this case by Horwaths (T118.8) and agreed (T119.1) that in part Horwarths assessed the level of dependency of the plaintiff as based on a number of objective assessments made on Australian households. He was shown a copy of the report, which subsequently became PX88 (T119.8) and he agreed (T119.3) that Horwaths firstly relied on Luntz' book (presumably the well known text by that author on assessment of damages for personal injury) as to what is the level of dependency in a person such as the plaintiff at the time of her husband's death at 8.6 of the report. This is indeed the case when one looks at paragraph 8.6 of PX88 on page 15 thereof, which says in relation to the claim of the plaintiff of dependency on the deceased's employment income that "we note that this figure is well above the level of dependency indicated in the tables appearing in Luntz's book, which indicates that the dependency of the plaintiff, statistically speaking, was is [sic] in the order of 63% to 69%". Mr McGuinness was unprepared to concede that the Horwath report relied also on a survey of household expenditure from the Australian Bureau of Statistics for periods from 1984 until approximately 1999, but in response to a question (T119.4) whether there was information available outside the plaintiff's own records that assisted him in determining the level of dependency which it might be reasonable to expect in someone in the position of the plaintiff when her husband died, he said there was obviously statistical information that the expert accountant had referred to in formulating his assessment. This admission is correct on an examination of PX88 and its annexures, particularly when one looks at paragraph 5.2 at pages 7-8 of the exhibit.
126. Mr McGuinness was then asked whether he was aware of the documents behind tab 32 in the plaintiff's tender bundle, PX55, referring to correspondence between the plaintiff and the Department of Social Security. I corrected that reference to point out that what was being referred to was tab 42 in PX55, which was in fact a reference to correspondence between the plaintiff and "Centrelink", an emanation of the Department of Social Security (T119.8). He disagreed that the reference in para 11(ii) to prejudice to his client in his affidavit did not in fact demonstrate any such prejudice. He said (T120.3) that the plaintiff's tender bundle, PX55, was not available to him at the time he swore his affidavit, thus conceding, as I read this reply, that when he considered the issue of prejudice in para 11(ii) of his affidavit, he did not have those documents available to him. The information behind tab 42 in PX55, being the plaintiff's correspondence with Centrelink, seems to me to clearly set out the plaintiff's receipt of an age pension, and provides considerably more information on that particular subject than Mr McGuinness had, as it seems to me, when he swore his affidavit.
127. The cross-examination then passed at T121.1 to deregistration of certain of the companies which employed the deceased, as referred to in para 12 of Mr McGuinness' affidavit, DX11. He said (T121.5) that if records of those companies still exist, they may be relevant to the deceased's employment. He conceded (T121.8) that there was no dispute as to the deceased's employment by Brisbane Stevedoring & Wool Dumping and Conaust, but said that there could be significance in the failure of those companies to provide documents as set out in paragraph 12 of his affidavit, because they may be relevant to the nature of work and the stevedoring operations in which those companies were engaged at the relevant time (T121.9). I am not sure that I fully understand the prejudice alleged in this regard, in view of Mr McGuinness's earlier concession that the fact of asbestos exposure to the deceased is not an issue in these proceedings, but I suppose there may be relevance in these records to the maintenance of cross-claims against these companies or against the suppliers of the asbestos products which they handled.
128. A number of questions follow at T122.1 to T122.5 about efforts made in relation to these companies to follow their ownership until the present time and to examine cargo returns and Board of Reference material. I am prepared to assume without deciding (for reasons which I shall explain later) that prejudice to the defendant is occasioned in its potential prosecution of cross-claims against other entities such as the employers of the plaintiff in the event of their deregistration, and I shall examine the significance of that when dealing with the authorities. I do not however understand there to be significant prejudice to the defendant arising from these last mentioned matters in terms of its defence of the plaintiff's actions in view of Mr McGuinness's admission that asbestos exposure of the deceased is not an issue, and that the extent of his asbestos exposure may not be. Even if that is not a valid approach, my view is that the lack of action, with all due respect, by Mr McGuinness and his client in attempting to contact employees, either of the ship owners concerned or of the plaintiff's former employers, by reference to the vessels identified by the plaintiff as having been unloaded in the Port of Brisbane during his employment, or by reference to possible Board of Reference enquiries by the defendant's statutory predecessors, rather undercuts his allegation of prejudice because of the deregistration of the deceased's former employers and the presumed destruction of their records, that being not the only line of enquiry open to the defendant to ascertain the deceased's asbestos exposure and its extent because of the other lines of inquiry to which I have just referred, which in large part have been unpursued by Mr McGuinness and those assisting him, in my view.
129. Mr McGuinness did say (T122.7) that there was some review of the documentation done in this case as to cargo returns with respect to interrogatories, and that this was done by one of the employees (by which I presume he meant employees of the defendant) a Karl Kristal. Mr McGuinness said he would have identified the cargo returns as a source of documents and other documents reviewed in the past for other claims in relation to the Port of Brisbane (T112.9).
130. Mr McGuinness was then re-examined, and at T123.2 and T123.9 he was then asked about prejudice in relation to the deregistration and, in some cases, liquidation of the various companies which employed the deceased, and he indicated (T124.1) that it was in relation to access to insurance and the availability of the companies in terms of being sued for contribution or indemnity by the defendant. As I have said, I shall examine the extent to which the authorities recognise that as being relevant prejudice in an extension of time application brought by a plaintiff allegedly injured in the employ of the defendant potentially claiming such contributions or indemnity, but this reply amounts in my view to a concession that the prejudice alleged by the defendant from the deregistration and/or liquidation of the deceased's former employers is not in relation to its defence of the plaintiff's claim, but rather relates to its prosecution of cross-claims against others, claiming contribution or indemnity in respect of any verdict recovered against it by the plaintiff.
131. Mr Joseph S.C. was then permitted by leave to ask further questions in cross-examination of Mr McGuinness, and at T124.9 Mr McGuinness said that it may or may not be the case that one insurer in respect of the employers nominated in para 12 of his affidavit would be the Queensland Workers Compensation Board. He conceded he had not made any enquiries of any former director of these companies as to the issue of insurance. He was not aware (T125.1) of whether there would be anything stopping his client restoring the companies which formerly employed the plaintiff (to the register) for purposes of suing them on a cross-claim, although he did not know (T125.2) whether there was any equivalent provision to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) in Queensland. It was afterwards conceded by both counsel in this case that there is no such equivalent provision. However he said he was still waiting (T125.2) for an answer from the Queensland Workers Compensation Board as to whether they had any record of any insurer of the companies which formerly employed the plaintiff.
132. Re-examination of Mr McGuinness then resumed, and at T125.8 he said that his attempts to find out the nature of the insurance and extended indemnity and other records in relation to the companies which previously employed the plaintiff had been fruitless thus far, but that they were being pursued. He said he was not aware of any differences in the way ASIA conducted itself in Brisbane as compared to Sydney (T125.9), but restricted that reply to his own subjective knowledge. He said (T126.1) that he was not aware of what efforts had been made by others to contact "further" (?former) employees of ASIA to answer to interrogatories, but restricted that reply to his personal knowledge. He agreed with a question I asked to the effect that insofar as he was equipping himself to give evidence about prejudice, if he thought that the extent of such enquiries was relevant to the question of prejudice he would have equipped himself of knowledge of it before giving evidence. Conclusions from Mr McGuinness's evidence as to prejudice
133. The detailed summary I have set out of Mr McGuinness's evidence to my mind reveals a number of areas in which his enquiries, or of those under him, have been somewhat less than complete on the issue of prejudice. One does not expect counsels of perfection, particularly having regard to the fact that the first Statement of Claim originating these proceedings were only issued on 9 and 19 November 2000. As against that, Mr McGuinness's affidavit was sworn on 2 November 2001, only a week short of a year after the date of issue of the first of the Statements of Claim, and probably about a year after it was served in my view, although I am unable to find the exact date of such service in Mr McGuinness's affidavit, or elsewhere in the evidence. My view is that the defendant's case as to prejudice would have been a lot stronger had Mr McGuinness, or perhaps more fairly those under him, or those assisting him in the employ of the defendant, made greater efforts to contact persons and/or to locate documents of relevance in defending the plaintiff's allegations. With due respect, a defendant cannot consciously abstain from taking steps on the simple basis that they had in other cases proven fruitless or less than helpful, and then assert prejudice because when (or if) it gets around to taking those steps, problems may be encountered in terms of witnesses' recollections and/or availability of documents, considering the effluxion of time.
134. The defendant's allegation of prejudice was also considerably undercut in my view by Mr McGuinness's concession that the deceased's exposure to asbestos is not in issue, and that the extent of such exposure may not be, although as I have said, to be fair, the reason for the latter reply may be his lack of information as to the extent of such exposure. By the same token that lack of information is to some extent, with all due respect, in all probability the result of the lack of steps taken by Mr McGuinness as pointed up in his replies in cross-examination, or perhaps more fairly, as I have said, the lack of steps taken by those under him, or by those assisting him in the employ of the defendant. I say this with reluctance, and I am not in any way making any professional criticism of Mr McGuinness or of his personal diligence in prosecuting the defendant's defence. It is impossible, however, to escape the fact that on his admissions in cross-examination, there are many lines of inquiry which, for whatever reason, have not been pursued, and which may have reduced the actual prejudice to the defendant, in the event of the orders sought by the plaintiff under the Queensland legislation being granted.
135. This of course does not resolve the question of presumptive, as opposed to actual prejudice. There is no denying that in this case, as in any case, memories are likely to dim and documents to become less available as time passes. The detail required of the defendant in investigating the plaintiff's claims is considerable. Not only is it necessary for the defendant to investigate the plaintiff's allegations of asbestos exposure to the deceased, and as to the lack of safety precautions taken to prevent or minimise this (although I repeat the remarks I have made above about that prejudice being lessened in view of Mr McGuinness's admission that asbestos exposure of the deceased is not in issue and the extent of such exposure may not be) but the defendant is also required to investigate and evaluate the question of quantum of damages by testing, as best it can, the plaintiff's allegations of dependency on the deceased. I have already referred to the evidence about its difficulty in so doing. I think nevertheless, as I have already said, that the defendant's difficulties are not so unusual, and not so much the result of the effluxion of time in this case, as compared to what would have been the situation had the plaintiff brought her actions in time, as to occasion significant and particular prejudice to the defendant in its defence of the plaintiff's actions on the quantum issue, such as to reduce significantly the chances of a fair trial. The Queensland legislation
136. It is now appropriate to examine the Queensland legislation and the law relating to it before determining the proper result of this application. It is not disputed by the parties that the Choice of Law (Limitation Periods) Act 1993 (NSW) applies in this case. S 5 reads: "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." "Limitation law" is defined in s 3 as follows: " "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". S 6 provides: "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". 137. It is not disputed either by the parties that the Limitation of Actions Act 1974 (Qld) therefore applies. S 11, which is headed " Actions in Respect of Personal Injury ", reads:

"Notwithstanding any other act or law or rule of law, an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person shall not be brought after the expiration of three years from the date on which the cause of action arose". S 30, s 31 and s 32, which are all relevant to this case, read "30(1) For the purposes of this section and ss 31, 32, 33 and 34- (a) The material facts relating to a right of action include the following - (i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded; (ii) the identity of the person against whom the right of action lies; (iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury; (iv) the nature and extent of the personal injury so caused; (v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty; (b) Material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing- (i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and (ii) that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action; (c) A fact is not within the means of knowledge of a person at a particular time if, but only if - (i) the person does not know the fact at that time; and (ii) so far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time. (2) In this section - "Appropriate advice in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts. 31(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person. (2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court - (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly. (3) This section applies to an action whether or not the period of limitation for the action has expired - (a) before the commencement of this Act; or (b) before the application is made under this section in respect of the right of action. 32(1) This section applies to actions founded on negligence, trespass, nuisance or breach of duty for damages for personal injury that have survived on the death of a person for the benefit of the person's estate under s 66 of the Succession Act 1981. (2) Where on application to a court by a person claiming to have a right of action to an action in respect of which this section applies, it appears to the court - (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the deceased person or the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) there is evidence to establish the right of action, apart from defence founded on the expiration of the period of limitation; the court may order that the period of limitation for the action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of the action brought by the deceased or the applicant in that court, the period of limitation is extended accordingly (3) For the purposes of this section the material facts of a decisive character do not include facts relating only to - (a) damages not recoverable by the applicant; (b) funeral expenses of the deceased. (4) This section applies to an action whether or not a period of limitation for the action has expired - (a) before the commencement of this Act; or (b) before an application is made under this section in respect of the right of action" It should carefully be noted that, as pointed out previously, the words "of the deceased person or the applicant" in s 32(2)(a) have the effect that the applicant, in respect of the surviving action on behalf of the estate of the deceased which she brings in her character as adminstratrix of his estate, must prove not only her own ignorance of a material fact of a decisive character, but also that of the deceased. 138. The parties have differed in their submissions on the effect of s 6 of the Choice of Law (Limitation Periods) Act 1993 (NSW). Mr Joseph for the plaintiff submitted that it meant that I was bound by Queensland authority as to the proper interpretation of the Queensland legislation only when it came to exercise the discretion in ss 31(2) and 32(2), and that therefore only the manner of exercise of the discretion should be guided by previous decisions of the Queensland Supreme Court. Mr Tobin for the defendant, on the other hand, submitted that I was bound in all respects as a matter of stare decisis by decisions of the Queensland Supreme Court, as to the proper meaning of the Queensland legislation as well as the matter of exercise of the discretions contained in it. 139. In the event the result at which I have arrived would probably be no different, whichever approach I take. I have however chosen to accept the somewhat more conservative submission of Mr Tobin as set out above, and to regard myself therefore as bound by previous decisions of the Supreme Court of Queensland, as well as of course those of the High Court that are relevant to this case, insofar as they are binding on the courts of Queensland, as they are upon me when exercising jurisdiction in a New South Wales court. Authority on the Queensland legislation 140. I shall analyse Queensland authority and authorities binding on Queensland courts so far as they have been referred to me by the parties. I have not myself undertaken an exhaustive search of the relevant law in the state of Queensland, apart from those authorities. 141. I was first referred by the defendant to Re Sihvola (1978) Qd.R. 458. There Wanstall CJ refused an application for extension of time, but materially to the present issues, held at 463 that the compound phrase "material fact … relating to a right of action" in s 31(2)(a) of the Queensland legislation is capable of embracing factors beyond those which comprise the bare and essential ingredients of a given "cause of action" as defined in Cooke v Gill (1873) L.R. 8 C.P. 107 at p. 116, and that it was consonant with the inclusion of the facts mentioned in subparagraphs (iv) and (v) of s 30(a) of the Act (as it then stood) all of which may not be strictly necessary to constitute the cause of action. These facts are now set out in s 30(1). This is a very important case in the context of the present facts. It shows that one may have the "bare essentials" of a cause of action without knowing all material facts of a decisive character in relation to it. 142. I was next referred by the defendant to Castlemaine Perkins Limited v McPhee (1979) Qd.R. 469. That case is authority for the proposition that s 31(2) of the Queensland legislation requires the court to determine the date when the relevant material fact came within the means of knowledge of the applicant, and that the particular time at which the fact in question was not within the means of knowledge of the applicant for the purpose of what was then s 30(d) of the Act (now s 30(1)(c)) is the period leading up to the date when the relevant material fact came within the means of knowledge of the applicant. That point appears to have been made clear by the addition of the words "before that time" at the end of s 30(1)(c)(ii), which did not appear in s 30(d) as it existed at the time of this decision. 143. This case is also authority for the proposition that the discretion to extend the limitation period would not arise had there been failure to take reasonable steps to ascertain a fact in question before a particular date (that being the date on which the plaintiff alleged that he became aware of a material fact of a decisive character). Delay thereafter, it was said, would go to the exercise of the discretion as a factor material thereto. 144. Finally, this case is also authority for the proposition that the test of the reasonableness of the steps taken by the applicant to ascertain the material fact is objective, with regard however being had to the background and situation of the applicant. 145. This was a case where the plaintiff was injured by an exploding stubby of beer which exploded in his hand on a particular date in 1974. He retained solicitors within a week, and in 1975 they wrote letters of demand to the manufacturer. In 1976 an expert in chemical engineering gave an opinion inconsistent with the bottle having been defective in manufacture, but the plaintiff did not learn of this until 1977. He was aware that expert opinion was to be taken and that his solicitors had given the broken bottle to the expert for examination. A further expert opinion was not obtained until March 1978, and it was on the obtaining of that opinion that the plaintiff first knew that the bottle was in fact defective. He applied in 1978 for an extension of time and received it, and the appeal was from that order. 146. At 471, referring to the trial judge's finding, Connolly J, with whom the remainder of the Court agreed, said: "The material fact relating to the cause of action as found by Lucas J was that negligence had occurred. Mr Jackson who argued the appeal for the appellants disputes this but concedes that the existence of a defect in manufacture was itself a material fact relating to the right of action. This concession was, in my opinion rightly made. In Re Sihvola (1979) Qd.R. 458 Wanstall CJ said: "In any event it is clear enough that the compound phrase "material facts relating to a right of action" is capable of embracing factors beyond those which comprise the bare and essential ingredients of a given "cause of action" as classically defined in Cooke v Gill (1973) L.R. 8 C.P. 107 per Brett J at p. 116". and again: " The issuing of a writ presupposes knowledge, or at least belief, by the plaintiff or his legal advisers that he can establish the cause of action alleged in his writ by proving the facts that are then within his knowledge. The antithesis of this proposition becomes the basic assumption of the scheme, i.e., that he has not issued a writ because he lacked knowledge of some material fact, on proof of which cause is dependent, either entirely or for a worthwhile result. The scheme is designed to relieve such a plaintiff from the consequence of a failure to issue a writ within time which is shown to be due to ignorance of this kind". In relation to the relevance of the background and situation of the applicant for extension of time to the objective test of the reasonableness of the steps taken by him or her to ascertain a material fact, Connolly J at 472, referring to the trial judge's decision, said: "On the former point Lucas J said: "The intending plaintiff was formerly a jockey and also a trainer. As a result of the injuries which he has suffered he is no longer able to ride as a jockey and the expense of carrying on his training business has greatly increased. The question is whether a man of that background can be expected to do anything more than consult a solicitor, keep in touch with him and act according to the advice which the solicitor gives him from time to time, and that, it seems to me, is what the material shows that the intending plaintiff did in this case. The test of reasonableness was laid down by the Full Court of Victoria in McManamny v Hadley (1975) VR 705, in terms similar in some respect to the test which was laid down by the Full Court in Waters v McKean to which I have already referred. In a unanimous judgment the members of the Victorian Full Court said at p. 714:

"The test to be applied is, we think, an objective one to be applied to a person in the position of the plaintiff and with her background and understanding."

I think that test has been satisfied in the circumstances of the present case…" I agree with this conclusion." Therefore this case, to which I was referred by the defendant, is authority for the proposition that under the Queensland legislation the question of what are "reasonable steps" within s 30(1)(c)(ii) is to be approached having regard to the background of the applicant and his or her situation, even though the test is an objective one, as indicated by the use of the word "reasonable" in the subparagraph. Indeed this approach seems to be supported by Do Carmo which I shall shortly discuss. 147. The defendant referred me also to Neilson v Peters Ship Repair Pty Ltd (1983) Qd.R. 419. The principle proposition for which this case is authority is that under what was then s 30(d)(i) of the Queensland legislation (now s 30(1)(b) and (c)) the knowledge in question was that of the plaintiff himself or herself, and that the knowledge of the plaintiff's solicitor of a particular fact could not be imputed to the plaintiff if he or she was not actually aware of it (see particularly Macrossan J at 424-5). 148. Thus it appears in this case that I must consider the actual knowledge of the plaintiff (and of the deceased in the action of the plaintiff as adminstratrix of his estate) of material facts of a decisive character at relevant times; what may or may not have been the awareness of her solicitors of such facts is irrelevant unless it was conveyed to her (or to him). 149. The defendant referred me also to Randel v Brisbane City Council (1984) Qd.R. 276. There a plaintiff was aware of the existence of Brisbane City Council as a potential defendant but did not become aware of the existence of a potential second defendant, the Commissioner of Water Resources, until a later time because his solicitors did not themselves become aware of that potential second defendant until that later time. There the Queensland Full Court held that as the identification of the Commissioner of Water Resources as a potential defendant required legal expertise, the applicant could not be said to have failed to take reasonable steps to ascertain this material fact in leaving the matter in the hands of experienced solicitors acting on his behalf. 150. It might be thought that ignorance of the identity of a defendant in these circumstances was ignorance of a matter of law rather than of a material fact of a decisive character as required by the Queensland legislation; however McPherson J at 280 applied Neilson (supra) in preference to the contrary view of Hutley JA in Ford Excavations Pty Limited v Do Carmo (1981) 2 NSWLR 253 at 266-7, in holding that knowledge of a solicitor is not automatically to be imputed to a client seeking an extension of time. The safer way at the present time to approach Randel is, in my view, with due respect, to apply what was decided by the High Court in Do Carmo, rather than contrasting the earlier competing views of the Queensland Full Court and the New South Wales Court of Appeal. 151. The next Queensland authority to which the defendant referred me is Moriarty v Sunbeam Corporation (1988) 2 Qd.R. 325. There, in a way that does not need tracing here, the plaintiff was injured in his employment as a shearer, allegedly as a result of a defective handpiece manufactured by the defendant, and did not know until a particular time that his injury was permanent. The Full Court allowed an appeal against the trial judge's order granting an extension of time, on the basis that if the plaintiff was aware before the expiration of the limitation period of material facts of a decisive character sufficient to support a substantial action for damages, he was not entitled to an extension of time merely because he did not know the full extent or seriousness of his injuries. 152. I apprehend however that the proposition for which the defendant cites this case is that expressed at the end of the headnote and by Macrossan J at 334 that: "If an applicant is out of time and he then issues his writ or applies for an order for extension of the limitation period but it emerges that the decisive facts have been within his means of knowledge for a period of more than one year and he had delayed and neglected to issue proceedings or apply for relief, then the court cannot help him and this is a matter of jurisdiction and not just discretion." Macrossan J commented this was clear from the wording of the final portion of s 31(2) which describes the form of order which the court may make to extend a limitation period "so that it expires at the end of one year after that date". 153. With great respect, this appears to be another way of saying that if ignorance of a material fact of a decisive character until a particular date is to ground an order for extension of time, the resulting extension of time may only extend for a year after such ignorance ceases, i.e. the application for extension of time must be made within one year of the discovery of the material fact of a decisive character. Thus the plaintiff here must establish that she became aware of a material fact of a decisive character of which she was previously ignorant (and, in the case of the action as adminstratrix on behalf of the deceased's estate, the deceased was also ignorant) less than one year before the issue of proceedings by her. 154. The next case to which I was referred by the defendant was Berg v Kruger Enterprises (Division of Besser Qld Limited) Ltd (1989) 2 Qd.R. 301. This is authority for the proposition that under the Queensland legislation, for ignorance of a material fact of a decisive character to be established, such ignorance must be of the facts constituting alleged negligence rather than the legal consequences of those facts. For that proposition Smith v Central Asbestos Co. (1973) AC 518 as well as Moriarty (supra) and Do Carmo v Ford Excavations Pty Limited (1984) 154 CLR 234 (to which I shall come later) were cited, amongst other authorities. 155. Thus the plaintiff here may not allege that she was ignorant merely of the legal consequences of the facts of which she was admittedly aware at certain times; she must also prove that she was ignorant of a fact which was material and of a decisive character. 156. The next case referred to me by the defendant was Wood v Glaxo Australia Pty Limited (1992) 2 Qd.R. 431. That is a rather involved piece of litigation and I shall not fully trace its facts. The headnote refers to the proposition (in fact occurring in the judgment of Macrossan CJ at 434-5), that to satisfy the requirement under s 31(2)(b) that there be evidence to establish the right of action, the applicant need only point to the existence of evidence which it can reasonably be expected will be available at the trial, and which will, if unopposed by other evidence, be sufficient to prove the case. This is not really relevant in the current context, where it is not suggested by the defendant that the plaintiff's knowledge as it now is, is not of sufficient material facts of a decisive character to constitute a worthwhile cause of action; rather is it the defendant's argument that the plaintiff's knowledge of all these facts preceded the date when the plaintiff alleges she finally acquired it. 157. A more relevant proposition to the present issues is, in my view, that also adverted to by the headnote from the judgment of Davies JA, who was in the majority, at 442, which is that a material fact is only within the knowledge of an applicant for purposes of s 31(2)(a) when the steady preponderance of opinion or belief of a person who has taken all reasonable steps to ascertain that fact would have been that it was so. 158. The relevance of that statement in this case was that the plaintiff was earlier aware that she had undergone a myelogram resulting in adhesive arachnoiditis, and was earlier aware of medical opinion tentatively indicating a causal connection between this condition and the myelogram, but did not become aware until a later time that the defendant was the distributor of the relevant dye used in the myelogram, and did not become aware until a month after that, by way of a medical report, that the most likely cause of her condition was the myelogram. 159. At 440 Davies JA referred to one of the facts alleged to be material and of a decisive character by the plaintiff, which was the fact that her arachnoiditis was the consequence of the myelogram, and said: "Paragraph (i) states an ultimate fact in issue; one which depends on expert opinions. Means of knowledge of that fact must be distinguished from means of knowledge of evidence of that fact although, in the end, means of knowledge of that fact will depend on the evidence, such as medical opinions, within the means of knowledge of the plaintiff. " That distinction between facts which found expert opinions (in this case as to a practicable alternative system of (work) and the opinions themselves becomes important in the present case, as I shall later explain. 160. A very extensive review of the authorities, in both New South Wales and Queensland as well as elsewhere, occurs in the judgment of Davies JA in support, inter alia, of the proposition that, as I have said, a material fact is only within the knowledge of an applicant for extension of time for purposes of s 31(2)(a) when the steady preponderance of opinion or belief of a person who had taken all reasonable steps to ascertain that fact would have been that it was so. 161. This proposition also becomes important in the present case, particularly when considering the plaintiff's allegation that it was not until she became aware of the Stewart report that she knew either the content of the defendant's duty of care to the deceased, or of the respects in which it had been breached, and that until she became aware of those matters she was not possessed of knowledge of material facts of a decisive character within the Queensland legislation. 162. It is now appropriate to consider Do Carmo v Ford Excavations Pty Limited (1983) 154 CLR 234, to which the defendant also referred me. That of course was a case on the Limitation Act 1969 (NSW), but it was decided principally on ss 57 and 58 of the Act as they then stood which, as I shall demonstrate, are in all material respects identical to the Queensland legislation. Another matter is that Do Carmo has been followed in the Queensland authorities on the legislation in that state, in particular Moriarty (supra). 163. It will be recalled that the majority in Do Carmo consisted of Murphy ACJ and Dawson J, with whom Brennan J agreed. Wilson and Deane JJ dissented. Murphy ACJ upheld the appeal on the basis that, as his Honour put it at 239, "… the existence of a worthwhile case is also a "material fact" within s 57(1)(b)". The other justices in the majority did not decide the appeal on this basis, and I do not think this case stands as authority for the proposition that ignorance of the legal consequences of facts said to be of a decisive character is itself a fact of a decisive character, and indeed the plaintiff did not submit otherwise. The ratio of the case seems to me to emerge from what was said by Dawson J, with whom Brennan J agreed, as I have said. 164. The facts appear in the judgment of Wilson J at 240-1. It is important to note them, as they bear considerable resemblance to those in the present case. Briefly, the plaintiff (he was the appellant in the High Court but to avoid confusion I shall refer to him as "the plaintiff") was born in Portugal, lived and worked in France for two or three years, and came to Australia in 1971 at about 28 years of age. In May 1971 he commenced employment with the defendant (the respondent to the appeal) Ford Excavations Pty Limited, and remained in that employment until 1974, apart from a short break in Portugal for a holiday. After 1974 he was employed as a labourer by two other companies. In 1976 he developed chest pain, breathlessness, coughing and fatigue, went to a doctor and was referred to a chest specialist, a Dr Lee. In November 1976 he sought advice about his condition from his union and was referred to its solicitors. They continued to advise him until late in 1978. They sought the view of Dr Lee from time to time, who thought that there was silicosis but thought it unlikely to cause significant disability. In 1977 however, the Workers Compensation (Dust Diseases) Board (NSW) certified on 7 April 1977 that the plaintiff had contacted silicosis-tubercolosis and found him totally disabled for work, giving him a further certificate however in February 1978 that he was 30% disabled for work only. At no time did the union solicitor advise the plaintiff that he had a cause of action against the defendant. 165. The Master in the Supreme Court of New South Wales found that in October or November of 1978 the union solicitors gave the plaintiff the impression that there was no reasonable basis for commencing an action and that he was in no position to dispute that view. In 1979 the plaintiff took independent advice and a further report from Dr Lee was sought by his new solicitors. Dr Lee adhered to his earlier view that there was no significant disability, but he was more explicit in the report as to the cause of, and safeguards against, the disease. He said it had been recognised for many years as a potential hazard affecting the lungs of men employed in jackpick operations on sandstone in the Sydney metropolitan area, and that the risk could be minimised by reducing dust concentration by measures such as water hosing the areas of drilling and the wearing of a facemask, this information being generally available to the industry in 1971 according to Dr Lee. On receipt of that report the plaintiff's solicitors advised him to institute proceedings, which he did. An extension of time was of course required, and was ultimately granted by a Master in the Supreme Court, and confirmed by a single judge of that Court on appeal from the Master. The Master's orders were reversed by the Court of Appeal. 166. After impliedly rejecting the reasoning of Murphy ACJ to which I have already referred, at 254 Dawson J then passed to s 57(1)(c) of the Limitation Act 1969 (NSW). It read: "Material facts relating to a cause of action are of a decisive character if, but only if, a reasonable man, knowing those facts and having the appropriate advice on those facts, would regard those facts as showing - (i) That an action on the cause of action would (apart from the effect of the expiration of the limitation period) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action; and (ii) That the person whose means of knowledge is in question ought, in his own interests, and taking the circumstances into account, to bring an action on the cause of action. It will be noted that the wording there is materially identical to s 30(1)(b) of the Queensland legislation. 167. Dawson J at 256 said: "The form of the legislation requires, I think, a step by step approach. The first step is to enquire whether the facts of which the appellant was unaware were material facts: s 57(1)(b). If they were, the next step is to ascertain whether they were of a decisive character: s 57(1)(c). If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date: s 58(2)". The same approach seems to be appropriate on the Queensland authorities which have followed Do Carmo, particularly Moriarty (supra) by examining firstly s 30(1)(a) to ascertain whether the facts of which the plaintiff was allegedly unaware (or of which the deceased was also unaware in the representative action) were material, secondly to examine s 30(1)(b) to ascertain whether they were of a decisive character, and thirdly to examine s 30(1)(c) and s 30(2) to ascertain whether they were within the means of knowledge of the plaintiff before the date relied on by her. Only then can the discretion in ss 31 and 32 be considered. 168. Dawson J then traces at 256-7 how it is that the reference to the fact of the occurrence of negligence in s 57(1)(b)(i) (corresponding to s 30(1)(a)(i) of the Queensland legislation) is an elliptical reference to those facts which must be proved in order to establish the negligent conduct upon which the cause of action in negligence is founded, so that those are the facts which must be identified in the case in question. His Honour points out that was is a case where it was alleged that the defendant had failed to provide a safe system of work for the plaintiff, which, he said, is no more than an allegation that it failed to take reasonable steps for his safety, but at 256 his Honour then said that: "…in such a case it may not be enough merely to establish the actual omission constituted by the employer's conduct in order to establish the negligent character of the conduct. It may be necessary to establish as a fact that the system of work was defective by calling evidence of the steps which might have been taken to minimise or eliminate the risk of injury in the performance of the work" referring then to Neil v NSW Fresh Food & Ice Pty Limited (1963) 108 CLR 362, and quoting at 357 from what was said by Windeyer J in Vozza v Tooth & Co Limited (1964) 112 CLR 316 at 318-319 about the requirement for proof of a practicable alternative system of work. His Honour referred on that page also to Da Costa v Australian Iron & Steel Pty Limited (1978) 20 ALR 257 at 266 per Mason J. His Honour then said at 257: "One way of providing that evidence may be by calling an expert witness. Another may be by calling evidence of the practice in the industry. But what is clear is that in such a case the safe system of work is a fact to be proved in order to establish the negligent character of the conduct of the employer before reliance can be placed on that conduct. It is one of the ingredients which go to make up " the fact of the occurrence of the negligence " and for that reason is, in my view, a material fact within the meaning of s 57(1)(b) of the Act, on which the cause of action in negligence is founded" 169. His Honour then went on at 258 to ask whether the lack of knowledge of an alternative safe system of work was a material fact of a decisive character within s 57(1)(c), observing then that the test laid down by that section (with which s 30(1)(b) of the Queensland legislation is materially identical): "…is an objective one to be applied by reference to the reaction of a reasonable man who has taken appropriate advice". Further down the page his Honour said: " The question is whether a reasonable man, having received appropriate advice, would regard at least that concatenation of facts as showing " a reasonable prospect of success ". In this case the appellant would not have been advised that the prospect of success was shown if the fact of an alternative safe system of work was omitted from the facts on which the advice was sought. The existence of an alternative safe system of work was, in this case, a material fact of a decisive character." 170. Dawson J at 258-9 then referred to the question of whether the existence of a safe system of work was for the purposes of s 58(2) of the New South Wales legislation "within the means of knowledge" of the plaintiff during the relevant period. S 58(2) of the New South Wales legislation is materially identical to s 30(1)(c) and s 30(2) of the Queensland legislation. As to whether, within s 58(2) of the New South Wales legislation, the existence of a safe system of work was "within the means of knowledge" of the plaintiff during the relevant period, and the provision in s 57(1)(e) that a fact is outside the means of knowledge of a person if he does not know it and has taken reasonable steps to ascertain it (c.f. s 30(1)(c)(ii) of the Queensland legislation) Dawson J referred with apparent approval to Smith v Central Asbestos Co. (supra) where Lord Reid said: "In order to avoid constructive knowledge the plaintiff must have taken all such action as was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with " the reasonable man ". Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience." 171. Dawson J then added at 259: "It is also to be noted that it does not matter what advice the appellant received. In fact he sought advice and, it would appear, did not receive the advice which he ought to have been given. However, s 58(2), unlike s 57(1)(c), makes no assumption that appropriate advice was received when it was sought. What is important is the means of knowledge which were reasonably available to the appellant. And that must mean available in a practical and not a theoretical sense." S 58(2) is set out in the judgment of Wilson J at 243, and as I have said it reads materially identically to s 31(2) of the Queensland legislation being considered here, so the remarks of Dawson J just referred to about s 58(2) apply equally to s 31(2) of the Queensland legislation. 172. Dawson J at 259 then went on to ask the question posed by s 58(2), which was whether knowledge of a practical alternative safe system of work was within the means of knowledge of the plaintiff before the date relied on by him, and said at 258-9: "The Master found, as I have said, that the appellant had not failed to take, before the specified time, reasonable steps to ascertain those facts which would have provided him with knowledge of an alternative safe system of work. There is no reason to doubt this finding of the Master. The appellant is, as he found, " a non English speaking, poorly educated, dull witted immigrant in this country ". Within some four or five months after experiencing the symptoms of his lung disease he saw his union representative and inquired about his rights. He was referred by the union to the union solicitors. He was medically examined at the instance of the union solicitors but was given no indication during the relevant period that he had the basis of an action against the respondent and certainly no indication that an alternative system of work was available during the appellant's period of employment with the respondent. It was not until the appellant sought advice from solicitors other than the union solicitors that he or those solicitors learnt from a medical report that the risk of injury from dust could be minimised by hosing the area of operations with water and the wearing of face masks and that this information would have been generally available at the relevant times. Within a month those solicitors commenced an action on behalf of the appellant. Having consulted his union, the solicitors to whom the union referred him and the medical advisers to whom those solicitors in turn referred him and having received no advice of an alternative safe system of work, it could not have been said that during the relevant time the appellant had within his means of knowledge at least one material fact of a decisive character within the meaning of the Limitation Act." Accordingly the appeal against the reversal by the New South Wales Court of Appeal of the orders of the Master granting an extension of time was upheld by majority. 173. The relevance of this case to the facts in the present case is obvious. If I find that the dot points to which I have referred above in extenso from the Stewart report, and the existence of and the duties inhering in ASIA, the present defendant's statutory predecessor, and its undertaking of those duties, were material facts of a decisive character relating to an alternative system of work for the deceased, of which the plaintiff (and the deceased in the representative action, in the case of the dot points in the Stewart report) was unaware within the Queensland legislation before the date relied on in her affidavit, and that these facts were not within the means of knowledge of the plaintiff (nor of the deceased in the representative action) within the meaning of the Queensland legislation before that date, she is entitled to succeed in her application. Those matters must be determined in accordance with Do Carmo in the steps I have traced. 174. Do Carmo was applied in Flemming v Gibson unreported, Supreme Court of Queensland, Court of Appeal, 19 December 1997, no. 2523 of 1997 another case to which I was referred by the defendant in submissions. There at pp. 10-11 Lee J (with whom McPherson JA and Williams J agreed) referred specifically to what was said by Dawson J in Do Carmo as follows: "In Do Carmo v Ford Excavations Pty Limited , Dawson J said that the test was subjective rather than objective (as in s 30(1)(b)). His Honour said that " it is the means of knowledge which were available to the appellant which are relevant and not the means of knowledge of a hypothetical reasonable man ". His Honour further said at 259, " what is important is the means of knowledge which were reasonably available to the appellant and that must mean available in a practical and not a theoretical sense ." In that case, the appellant was, a " non English speaking, poorly educated, dull witted immigrant in this country ". There was no suggestion that he otherwise suffered any diminution in mental capacity as in the present case. Nor was there any discussion on the qualifying words of the equivalent of s 30(1)(c)(ii) "insofar as the fact is capable of being ascertained by him …" 175. Lee J went on to say that that test was accepted as being consistent with that laid down by the Full Court of Queensland in Castlemaine Perkins Limited v McPhee (supra), and stated that as being: " That the test of reasonableness of the steps taken by an applicant to ascertain the material facts is objective with regard being had to the background and situation of the applicant. In other words, having regard to the background and situation of the applicant, the applicant must take reasonable steps for him or her which import an objective test of the steps that a person in his or her particular position or circumstances would reasonably be expected to take: Do Carmo v Ford Excavations Pty Limited per Dawson J at 259". That makes it abundantly clear that what was said by Dawson J in Do Carmo in relation to s 58(2) of the Limitation Act (NSW) applies to s 30(1)(c) of the Queensland legislation. Authorities on prejudice 176. As to prejudice the defendant relied primarily on Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. There it was held, in relation to s 31(2) of the Queensland legislation, that an applicant for extension of time under it does not have a presumptive right to an order once the conditions in s 31(2)(a) and (b) have been satisfied, and that an applicant for an extension of time still bears the legal onus of showing that the justice of the case requires the discretion to be exercised favourably, and to do so must prove that an extension beyond the limitation period would not result in significant prejudice to the prospective defendant, and that s 31(2) does not require a weighing process between the potential prejudice to the applicant and to the prospective defendant. 177. The facts of that case are in my view not as important as what was said by the justices. In particular McHugh J, whose judgment is usually referred to in the subsequent authorities with greatest frequency, referred to the policy behind limitation periods in a passage referred to me by the defendant in this case at 552, where he said: " The effect of delay on the quality of justice is no doubt one of the most important influences motivating the legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost: Jones v Belgrove Properties Limited (1949) 2 KB 700 at 704. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed: Re Policies at Lloyd's v Butler (1950) 1 KB 76 at 81-82. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them: NSW Law Reform Commission, Limitation of Actions for Personal Injury Claims (1986) LRC 50 p. 3; Law Reform Commission of Western Australia, Limitation and Notice of Actions, Discussion Paper (1992) Project No. 36, Pt II, p. 11. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period". At 553 his Honour said: "In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cutoff point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. The limitation period is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is " to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced "; Sola Optical Australia Pty Limited v Mills (1987) 163 CLR 628 at 635. But whether an injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the state is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension". This passage was particularly referred to me, not surprisingly, by the defendant. Similarly it referred me to what McHugh J said at 555, as follows: " Legislatures enact limitation periods because they make a judgment, inter alia , that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or there is a significant chance that this is so, the case is no longer one of presumptive prejudice; the defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceived that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provisions should trump the limitation period". 178. His Honour then referred at 556 to various matters of evidence suggesting actual prejudice. 179. In like reasoning, Toohey and Gummow JJ said at 549-50: "In this regard we have difficulty with the notion of weighing prejudice to an applicant as against prejudice to the respondent: c.f. Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 at 514 per Kirby P. In one obvious sense the prejudice to the present respondent is absolute if her application is refused. She can never litigate her claim. But that cannot be enough of itself to warrant an extension of time; in truth there would be no discretion to be exercised. For that reason we do not accept the respondent's argument that the District Court fell into error in failing to balance the prejudice to the appellant against the prejudice against the respondent. It may be appropriate to temper that approach and to say that because the respondent has satisfied par (b) of subs (2), there is therefore evidence to establish a right of action. Even then, a weighing process is not called for. The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent." The defendant referred me to this passage too. 180. The defendant referred me also to Carter v The Corporation of the Sisters of Mercy of the Diocese of Rockhampton and Ors [2001] QCA 335 (24 August 2001) where Brisbane South was followed, and the approach mandated in it was applied to deny a plaintiff/appellant an extension of time under the Queensland legislation. McPherson JA at [18] said, inter alia: "Some of the potential witnesses are very old and their memories have faded; and some have moved away or have died. In dismissing the application, the learned judge took account of the disadvantages that the third defendant might suffer in attempting to defend the plaintiff's claim so long after those events had taken place. That is a factor that may legitimately affect a decision not to exercise the discretion under s 30(2) to extend the limitation period". His Honour then referred to Brisbane South, and also specifically recognised that equality in the prejudice likely to be suffered by plaintiff and defendant in a trial in relation to events long ago was rejected by Toohey and Gummow JJ and also by McHugh J with whom Dawson J agreed in Brisbane South at [19]. Muir J remarked to the like effect at [34]. Atkinson J dissented. The same approach, although it is a New South Wales case, was followed in Sydney City Council v Zegarac (1998) 43 NSWLR 195. What was said by Mason P at 199F is of great interest, but I do not think that strictly I should apply it as it is not said in a Queensland context. 181. The plaintiff referred me to a number of cases on the New South Wales legislation. No doubt they are binding on me insofar as they are from higher courts in this state, but s 6 of the Choice of Law (Limitation Periods) Act 1993 (NSW) quoted above seems to me to require the approach that as far as possible I should exercise the discretion in the same manner as the courts of Queensland. As I have said I do not think that provision refers simply to the step at which the discretion is to be exercised under s 31(2) or s 32(2); I think it applies also to ascertaining whether the grounds for exercise of the discretion exist by applying s 30(1) and (2). As I have said, the safer course is, I think, where possible to follow Queensland authority, and to apply it along with High Court authority in deciding this case. Authorities on prejudice in pursuing cross claims 182. The defendant also submitted that prejudice arose from its actual or possible inability to recover verdicts on cross-claims against the plaintiff's former employers because of their deregistration or insolvency or winding up, as referred to in paragraph 12 of Mr McGuinness's affidavit. It referred to the absence in Queensland law to s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) which of course would permit it to sue the relevant insurers directly. 183. The plaintiff's reply to this was that the defendant was not thus prejudiced because it could proceed directly against those insurers under s 601AG of the Corporations Law. This reads: "A person may recover from the insurer of a company that is deregistered an amount that was payable to the company under the insurance contract if: (a) the company had a liability to the person; and (b) the insurance contract covered that liability immediately before deregistration. 184. The defendant submits that any claim against the "company" referred to in the section would be for contribution or indemnity under s 6 of the Law Reform Act 1995 (Qld), and that any such liability was not in existence at or before the time of the plaintiff's former employers' deregistration, and that no claim could therefore be made by the defendant against their insurers: Suncorp Metway Insurance Limited v Clonmel Pty Limited unreported, Supreme Court of Queensland, Muir J, 12 May 2000. 185. The defendant submits further that even if s 601AG permits suing in respect of contingent liabilities, it does not enable the defendant to proceed directly against any insurer (of the plaintiff's former employers) because it only came into operation on 1 July 1998 and has been construed as creating a new statutory right of action and not as a procedural provision, and that it is therefore prospective only in its operation: Norsworthy v State Government Insurance Corporation (SA) (1999) SASC 496 at [92-93]. 186. I have examined both Suncorp Metway and Norsworthy and they appear to be authority for the propositions for which the defendant advances them, but as Mr Joseph submits, neither court appears to have had the decision of the High Court in Crimmins cited to it for the proposition that a "liability" may be a contingent one. This decision may have relevance to the interpretation of s 601AG in the event of the defendant attempting to rely on it in cross-claims against the deceased's employers, should they be identifiable and should they have insurance indemnities worth pursuing, but that is not something I can or should decide as no cross claim is before me. 187. The defendant submits that it has no right under Queensland worker's compensation legislation to sue the Workers Compensation Board directly if an employer is deregistered, that right being available only to a worker who has a cause of action against an employer (s 9A(2a) of the Workers Compensation Act 1916 (Qld) which applies to injuries before 1 January 1991, the deceased's period on the Brisbane waterfront being alleged to have been from 1944 to 1984 and his asbestos exposure being alleged to have been between 1944 and 1947). The defendant further asserts that it has been unable to establish the insurance position of each of the companies that employed the plaintiff during each period of exposure or the extent of insurance indemnity available in respect of those companies. 188. It further submits that there is no equivalent under Queensland law to s 151AB of the Workers Compensation Act 1987 (NSW) and submits that even if it obtained a court order that ASIC reinstate the deregistered companies under s 601AH of the Corporations Law, it would still be prejudiced if it were unable to identify and recover from the relevant insurers for the whole of the period of exposure. It then lists a number of companies said by the plaintiff to have employed him at various times, and says that it has been unable to find on an ASIC search a company known as Brisbane Stevedoring & Wool Dumping Pty Limited, referred to in para 12(iv) of Mr McGuinness's affidavit. It says that the plaintiff concedes that even if the defendant could pursue the relevant insurers of the plaintiff's employers, that right would only be in respect of part of the period of the deceased's material exposure, presumably because of the unsuccessful ASIC search referred to above. 189. The defendant submits that it is appropriate when exercising a discretion to extend a limitation period to take into account the prejudice that may be suffered by the defendant, if an extension is granted, in not being able to pursue a claim for contribution and indemnity against any third party. It relies in this respect on Wintle v Conaust (Vic) Pty Limited unreported, Supreme Court of Victoria, Hedigan J, 30 August 2001. 190. That was a case where a plaintiff sought to invoke rule 36.01(1) of the Victorian Supreme Court Rules, which read: "For the purpose of determining the real question of controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding". 191. Relevantly, the plaintiff had sought leave to file and serve an amended Statement of Claim so as to add a claim under part 3 of the Wrongs Act 1958 (Vic) to claim as widow in respect of the death of her deceased husband (i.e. under the Victorian equivalent of the Compensation to Relatives Act (NSW)) and not merely as executrix of his estate (see p. 2 of Hedigan J's reasons in para [2]). 192. Such leave was refused inter alia because the defendant would be prejudiced in pursuing contribution or indemnity against third parties (see pp. 10-12 of the judgment in paras [18]-[22]). This, as I read the judgment, was an application of s 34(1) of the Limitations Act 1958 (Vic) which provides: "If a court would, but for the expiry of any relevant period of limitation after the day a proceeding in the cause commenced, allow a party to amend a document in the proceedings, the court must allow the amendment to be made if it is satisfied that no other party to the proceeding would by reason of the amendment be prejudiced in the conduct of that party's claim or defence in a way that could not be met by an adjournment, award of costs or otherwise." That provision is set out by Hedigan J at pp. 3-4 of his reasons in para [6] thereof. 193. However, importantly at p 14 Hedigan J said: "[27] The plaintiff does not lose her right to prosecute the Wrongs Act claim in 2950 of 2000. She loses the ease and convenience of the single action, but, in my judgment, I am not left with the state of satisfaction that the opposing parties would not be prejudiced.

[28] I wish to emphasise that I do not regard the view I take about the risk of prejudice, or my judgment of actual prejudice, in the context of Rule 36.01(6) as being in any way the kind of prejudice that a court might have to consider in the plaintiff's s 23A application. The matters there involving prejudice are to my mind of a different character." 194. What his Honour described as the s 23A application would appear to refer to s 23A of the Limitations Act (Vic) mentioned above, which I shall not quote for reasons of space, but which was then (and is) the precise equivalent of ss 30, 31 and 32 of the Queensland legislation now being considered, although it is not identical in its terms. 195. It is thus clear that Hedigan J was specifically excluding from his ruling that prejudice to the defendant in pursuing cross claims was relevant to exercise of the discretion in s 34(1) of the Limitations Act and/or Rule 36.01(6) any suggestion that such prejudice was relevant to any application for extension of time by the plaintiff to sue the defendant under s 23A abovementioned, and indeed his Honour said that the plaintiff did not lose her right to prosecute a Wrongs Act claim, but only lost the ease and convenience of doing so in a simple action, and that the matters involving prejudice under the s 23A were "not in any way the kind of prejudice that a court may have to consider in the plaintiff's s 23A application" and that "the matters there involving prejudice are to my mind of a different character." 196. As I have said, ss 31 and 32, and s 30 which precedes them and governs their application, in the Queensland legislation are provisions of precisely the same character and operation as, although they are not identical in their terms to, s 23A considered above. Thus, far from being authority for the proposition for which the defendant advances it, Wintle is if anything authority for the reverse proposition, namely that prejudice in pursuing cross-claims is not relevant prejudice for the purposes of an application for extension of time by a plaintiff under a limitation statute to sue a defendant, as here, although one must observe firstly that what his Honour said was obiter dicta and not therefore in any event binding, and secondly that this decision is one of the Victorian Supreme Court and therefore not binding upon me as a matter of strict stare decisis, although obviously it is of great persuasive authority. 197. Nevertheless, no other authority as I understand its submissions is advanced by the defendant for the proposition for which it contends as set out above, and I am unable to infer from what was said in Brisbane South in the passages I have quoted or elsewhere that prejudice in pursuing cross-claims against potential cross-defendants or their insurers is relevant on an application under ss 30, 31 and 32 of the Queensland legislation. In the most general of terms, the reference by McHugh J to parties "arranging their affairs" in the passage I have quoted above from Brisbane South may be tortured into a reference to difficulty pursuing cross-claims, but in the absence of specific authority other than the one case to which the defendant has referred me, which in anything goes the other way, I do not think that I should hold that such difficulty is relevant prejudice for purposes of ss 30, 31 and 32, and I do not do so. 198. In those circumstances, although, as I have said, I am prepared to assume (without, I may add, deciding) that the defendant will suffer actual as well as presumptive prejudice in pursuing cross-claims if time is extended in this case, I do not take such prejudice into account in exercising my discretion in that regard. Discretionary matters as to prejudice in pursuing cross-claims 199. Again assuming without deciding that the defendant will suffer prejudice in pursuing cross-claims as above, and assuming it to be relevant prejudice (as I do not think it is), there are three reasons why in any event it would have seemed to me inappropriate to allow it to "trump" (to use McHugh J's word in Brisbane South) the plaintiff's prima facie entitlement to an extension of time. 200. The first is that as demonstrated by my analysis above of the evidence of Mr McGuinness, the defendant's efforts through its legal advisers and otherwise to locate and identify the plaintiff's former employers by the examination of cargo records and Board of Reference enquiries, for example, have been somewhat rudimentary and in my respectful view inadequate. Of course the onus is on the plaintiff to negative both actual and presumptive prejudice, but where the defendant asserts both forms of prejudice and calls evidence to prove it, it is proper to evaluate that evidence to see whether or not it has that effect. In the absence of more vigorous efforts on the part of the defendant in this particular case to identify and locate the plaintiff's previous employers, I am not satisfied on the balance that it will suffer significant prejudice in so doing. 201. The second is that it must be remembered that the deceased's cause of action would only have vested, had he been aware of all material facts of a decisive character (as in my opinion he was not, for reasons already set out) at the earliest when he suffered damage, i.e. he experienced the symptoms of what was later diagnosed as mesothelioma. This only occurred in the early 1980's. It seems likely from Mr McGuinness's evidence that many of the plaintiff's former employers may well have been deregistered before this time. Further, if their insurance indemnities were inadequate, this would have been as much of a barrier to a successful recovery on cross-claims against them had the deceased sued within time as it is now. These considerations apply even more obviously to the cause of action of the plaintiff, which only vested (apart from her lack of awareness of all material facts of a decisive character, as I have determined) on the death of the deceased. 202. The third, which is perhaps less powerful, is that it has been the usual practice of this Tribunal to determine extensions of time (when necessary) as part of the hearing of the plaintiff's substantive action, and also to sever in appropriate cases the hearing of that action from the hearing of cross-claims. The policy underlying this approach is the resulting speed with which the claims of plaintiffs who are often (or indeed usually) suffering life threatening conditions can be determined. If the defendant's submission is right, any case involving an extension of time cannot be determined until the defendant has had an opportunity to enquire exhaustively as to its prospects of recovery against cross-defendants, both as to their identity and as to their insurance indemnities. This appears an alarming result. To undertake such a radical change of practice with obviously deleterious consequences without clear authority that it is required would seem to me inappropriate. Another possible factor is that such prejudice could most likely be deployed to defeat any current claim against it by SIFC. It seems to me improbable that in Crimmins itself the plaintiff had any worthwhile prospect of recovery against his former employers; else why would his advisers have gone to the trouble of a High Court appeal to fix liability on SIFC in circumstances where there was a clear breach of the common law duty of the employer or employers to him. Of course the fact that a plaintiff may be deprived of a remedy if an extension of time is granted is not, as McHugh J pointed out in particular, determinative, nor can one balance the prejudice to plaintiff and defendant. However in the High Court in Crimmins the fact that the plaintiff would be without a remedy in the event of his contention as to SIFC being liable failing (probably because he could effectively no longer sue his employers) was a significant policy reason for the decision. It seems to me on balance, however, that I should not give that policy any weight, because in the final analysis it would involve balancing the prejudice, as proscribed in Brisbane South. Conclusions 203. I have concluded that neither the plaintiff before 26 May 2000 nor the deceased were aware of the following dot points which were the relevant elements in a plan formulated in accordance with reasonably prudent occupational hygiene standards in the period 1944 to 1956, as set out in paragraph 10.8 of the Stewart report at pages 109 -110 of the plaintiff's affidavit: · A requirement for the bags containing the asbestos to be sufficiently strong to resist tearing from the hook or from other mechanical damage, and to be impervious to dust. · A requirement for the bags and other containers to be labelled or branded with warnings about the asbestos content and the potential health consequences of exposure to asbestos dust and fibre. · Provision of an effective modern program of dust monitoring to ascertain the effectiveness of dust minimisation programs and determining respirator wearing needs. · Arrangements for regular audits to ensure the effective application of these various procedures. 204. I have also concluded that the first two dot points in the plan at paragraph 10.8 would have assisted in reducing the deceased's asbestos dust exposure as they relate to stevedores, because they would have affected the methods by which stevedores handled asbestos in the areas where the deceased had to work, and consequently his exposure to it. They were: · Instruction to stevedores regarding the importance of and means of minimising the exposure of waterside workers to asbestos dust, or minimising the inhalation of asbestos dust. · Instruction to waterside workers engaged in unloading asbestos about the harmful nature of asbestos dust and fibre when inhaled and the potential health consequences for persons regularly exposed to asbestos dust and fibre over a number of years. The immediately preceding dot point might be seen as relating only to health warnings to waterside workers, and therefore relevant only to their safety, but one has only to reflect that if waterside workers were given adequate health warnings, they would doubtless handle asbestos with a greater care. Even if this were for the motivation of protecting their own safety, it would incidentally affect beneficially the safety of other non-waterside workers who worked around them such as the plaintiff, in my opinion. 205. It is to be emphasised that I am not trying the merits of the precautions suggested in the Stewart report; I am simply applying them on a prima facie basis to determine whether they are material facts of a decisive character within the Queensland legislation in this case. 206. I have also concluded that the plaintiff (though not the deceased) was unaware either of the existence of ASIA or of the duties which inhered in it, or of its undertaking those duties, before 26 May 2000. Section 30(1)(a) 207. Firstly, as to their materiality, one must ask, applying the approach in Do Carmo, whether those facts fall within the categories in s 30(1)(a). Certainly insofar as the dot points in the Stewart report to which I have referred are suggested as being part of a practicable alternative system of work during the period of the deceased's employment which was not adopted, and which might have prevented his injury, they fall within the purview of paragraph (i) of s 30(1)(a) which refers to "the fact of the occurrence of negligence … or breach of duty on which the right of action is founded." 208. The second group of material facts of which the plaintiff was in my view unaware on her oral and affidavit evidence until informed of them by letter of 26 May 2000 from Slater & Gordon, annexure "K" to her affidavit (referred to in para 42 thereof and at page 7), as I have said, are that the Stevedoring Industry Authority existed and did indeed have some responsibility for ensuring that the deceased performed his duties in a safe working environment, and the content of that responsibility in terms of specific duties. 209. The question of specific duties is in large part covered by the previous matters which I have summarised from the Stewart report, but the fact that these duties inhered in the Australian Stevedoring Industry Authority (ASIA) and not someone else is something of which the plaintiff was in my view unaware until that time. 210. I have indicated my conclusion that the plaintiff has not proven on the balance of probabilities that the deceased was unaware of the existence of ASIA or of its legal duties. Therefore the plaintiff may only rely on her ignorance of the existence of ASIA, and of the fact that duties to the deceased inhered in it, as distinct from any other body, and that it undertook those duties, in support of her application for extension of time under s 31 in relation to her action under the Compensation to Relatives Act, and not that under s 32 in relation to the representative action she brings as adminstratrix of the estate of the deceased. This is, of course, not the case in relation to the first group of facts in relation to the dot points in the Stewart report, because, as I have said, I have concluded that the deceased as well as the plaintiff was unaware of those matters. 211. The identity of ASIA and the fact that duties inhered in it and that it undertook those duties seems to me to be a matter falling within s 30(1)(a)(ii) of the Queensland legislation, which speaks of "the identity of the person against whom the right of action lies". That too seems to render that fact "material" within s 30(1)(a). 212. I conclude therefore that the plaintiff and, where relevant, the deceased, were ignorant of material facts within s 30(1)(a), namely the dot points I have set out above from the Stewart report, and (in the case of the plaintiff alone) the identity of the Australian Stevedoring Industry Authority and the fact that duties to the deceased inhered in it and that it undertook those duties. That approach seems to me to be in accordance with Do Carmo and the cases which have followed it. Section 30(1)(b) 213. Similarly, in accordance with those authorities, one must then approach s 30(1)(b) to ask whether the facts which I have found above to be "material" within s 30(1)(a) are "of a decisive character" within s 30(1)(b). Do Carmo appears to be authority for the proposition, as I have said, that in approaching the words "if but only if a responsible person knowing those facts, and having taken the appropriate advice on those facts" in s 30(1)(b), one has regard to the situation of the person in question. One must note also of course s 30(2) which defines "appropriate advice" in relation to facts as "the advice of competent persons qualified in their respective fields to advice on the medical, legal and other aspects of the facts". Do Carmo, it is clear, requires a plaintiff to take the advice of "competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts". 214. The plaintiff in this case seems to me to have done this, having regard to her situation. It is true that she appeared an alert and intelligent woman in the witness box. She was also in a long term marriage, before his death, to the deceased, who was a person in a senior position on the Brisbane waterfront, no doubt with considerable knowledge of systems of work there, and she was in no doubt in a position to acquire day by day knowledge from him, although in fact she acquired little of this because she said (and I accept) that the deceased "kept his work at work" and did not speak much of his working conditions to her during his lifetime. On the other hand she was and is a person of no particular expertise other than in clerical occupations. She has never herself worked, and this is an important matter, on the waterfront herself, or in any other occupation involving the handling of asbestos, or for that matter in any manual occupation whatsoever. She herself had no knowledge of her own of these matters on the evidence, in my view, other than that which she acquired from the deceased (and that was little indeed on the evidence) and what she subsequently acquired from her legal advisers, in the way that I have described above. Less is required of her on the authorities than would be required of a person who did not suffer from these limitations. 215. On the other hand, one might well ask rhetorically why she did not make further enquiry of her solicitors as to her overall rights at the time of the Johns Manville litigation. Considerable passages of evidence about this from her in cross-examination have been set out above. It is clear however that however one might have expected her to do this, the fact is that she treated the Johns Manville litigation as relating only to her rights against one entity, i.e. that corporation, and did not in fact enquire as to any rights she may have against anyone else. The inference is that she thought her solicitors knew what they were doing, and that they would advise her of any other such rights had she possessed them at that time. However much her solicitors could and arguably should have known at that time that it was possible to obtain expert evidence in order to sue either the deceased's employer or employers, or the present defendant, the statutory successor of ASIA, the fact is that they did not advise the plaintiff to do this, and the Queensland authorities establish (particularly Neilson) that any knowledge of the plaintiff's solicitors as to what any expert report might perhaps say which was unknown to the plaintiff herself cannot be imputed to her. 216. Upon the whole of the evidence I am of the view that the plaintiff took appropriate advice on the facts she knew by consulting Slater & Gordon at the time of the Johns Manville litigation, and placing herself in their hands to advise on what remedies were appropriate at that time. 217. The next question is whether at that time or earlier, or for that matter at any time before 26 May 2000, the date referred to in paragraph 42 of her affidavit as being the date of receipt of the letter from Slater & Gordon, annexed to her affidavit and marked "K", the plaintiff was in possession of material facts of a decisive character which a reasonable person, knowing those facts and having taken the appropriate advice on those facts, would regard as showing within s 30(1)(b)(i): "That an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action…" In this regard one must steadily keep in mind what was said about the necessity to prove a practicable alternative system of work which would have prevented the injury in question in Do Carmo, in the passages I have quoted above from the judgment of Wilson J, particularly at 256-7 where his Honour cites Neil v NSW Fresh Food & Ice Pty Limited (supra) and Vozza v Tooth & Co Pty Limited (supra). 218. What one must then ask is whether, equipped with the knowledge she had and with that she obtained from the deceased which I have set out above, principally in the form of his statements which were annexure "H" to her affidavit, and also the other annexures to her affidavit and the exhibits to which I have referred, she had a sufficient bundle of facts, as it has been called, to fall within s 30(1)(b)(i) quoted above. 219. With considerable hesitation I do not think she had such a bundle of facts before receipt of the letter from Slater & Gordon, referred to in paragraph 42 of her affidavit, which is annexure "K" thereto (the affidavit being PX11). 220. I reach that opinion because it seems to me that the deceased's statements really only amount to knowledge that his office was not air-conditioned, that asbestos was in the air where he worked, in considerable quantities, that bags and other containers containing asbestos were frequently broken and leaking, and that "protective masks etc." to quote the deceased, were not provided. I have set out above a summary of the things that on the probabilities in my view the deceased did not know; for example he did not know, as I have said, that he could have been provided with a respirator. He did not know that dust monitoring systems could have been implemented and followed up for the purpose of measuring and reducing asbestos concentration in the air. He did not know that bags and other containers containing asbestos could have been labelled or branded with warnings about asbestos content and the potential health consequences of exposure to asbestos dust and fibre. This is not a comprehensive list, and one is set out earlier in my discussion of the deceased's statements, annexure "H" to the plaintiff's affidavit, PX11. I have already said there that it seems to me extremely likely that given the opportunity to complain in his statements about lack of appropriate precautions to prevent asbestos exposure, the deceased would have articulated what he knew of the defaults in the system of work with which he was provided, and his lack of mention of the items I have just set out, and of the more comprehensive list of such items set out earlier in these reasons where I have discussed his statements, allows me to form an inference that it is more likely than not that the deceased was not aware of these matters, and that consequently the plaintiff was not aware of them either from her perusal of his statements. 221. I do not think that the knowledge that asbestos was present in the air where the deceased worked in considerable quantities, and that asbestos containers frequently leaked, and that "protective masks etc." were not provided, would have been a sufficient bundle of facts to fall within s 30(1)(a)(i). 222. I place some weight as I have said on the fact that the deceased himself, in DX88, his Compensation Claim form, wrote "above not known at this stage" in response to questions whether any other person was to blame for his injury, and if yes, whether he intended taking action to recover damages, and if yes, who his legal representative was, and that the plaintiff herself, in DX66, her application for compensation for the death of her husband, made identical replies. This is some indication of what the deceased and the plaintiff perceived the availability of a common law remedy in negligence to be at the time those forms were completed. This is so despite the fact that the deceased on the evidence had engaged a solicitor, a Mr Barnes, when he completed at least his second statement, part of annexure "H" to the plaintiff's affidavit. The answer "not known" written on the above form by the deceased strongly suggests in my view that Mr Barnes did not tell the deceased that an expert report might prove a practicable alternative system of work, and thus ground rights in negligence, if indeed he knew it. 223. That does not of course answer the question posed by s 30(1)(b)(i). I consider, again with some hesitation, that had the deceased or the plaintiff brought action relying only on the facts summarised above from the deceased's statements, it is unlikely that the legal requirement to prove a practicable alternative system of work would have been met. What would have been required was something additional to what either of them could then advance, namely an expert opinion in proof of the ways in which the deceased's injuries could have been prevented by the provision of a practicable alternative system of work, such as is described in the dot points in the Stewart report already discussed. It would have been no use, for example, proving that asbestos bags leaked without proving that there was a stronger material available from which to make them. It would have been no use proving that masks were not provided, without proving that they would have been an effective barrier to asbestos inhalation (and the Stewart report requires respirators rather than masks for this purpose, a somewhat different and more elaborate apparatus). Such a hypothetical action would have failed for lack of proof of the content of the defendant's duty of care to provide a practicable and safe alternative system of work, and consequently its breaches of it. I do not think therefore that an action based on the facts contained in the deceased's statements, or on any other knowledge which it may be inferred that the deceased and the plaintiff had as set out above, before her receipt of exhibit "K" to her affidavit, on 26 May 2000, would have given the deceased or the plaintiff "reasonable prospects of success" in an action based on those facts, nor a reasonable prospect of such an action "resulting in an award of damages sufficient to justify the bringing of an action on the right of action" within s 30(1)(b)(i). 224. A separate question is whether within s 30(1)(b)(ii): "… the person whose means of knowledge is in question ought in the persons own interests and taking the person's circumstances into account to bring an action on the right of action". It seems to me that one cannot say that the deceased or the plaintiff "ought" in their own interests to have brought an action on the bundle of facts which each of them knew before the plaintiff received annexure "K" to her affidavit on 26 May 2000 if one could not say that the requirements of s 30(1)(b)(i) were met in respect of what either of them knew before that time. The inadequacy of proof of a practicable alternative system of work such as that set out in the Stewart report, annexure "M" to the plaintiff's affidavit, PX11, seems to me to indicate that one must answer "no" to the question posed by s 30(1)(b)(ii), in relation to any putative action by the plaintiff or the deceased before the plaintiff received annexure "K" to her affidavit on 26 May 2000, especially when one considers their "circumstances", which included the fact that they had engaged solicitors upon whom they were entitled to rely in my view. Section 30(1)(c) 225. The next question is that posed by s 30(1)(c) which provides: "A fact is not within the means of knowledge of a person at a particular time if, but only if - (i) The person does not know the fact at that time; and (ii) As far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time". Applying Do Carmo to the expression "know" in subpara (i) and to the expression "all reasonable steps" in subpara (ii), it seems to me both that the plaintiff did not know the facts set out in the dot points in the Stewart report, annexure "M" to her affidavit, PX11, before 26 May 2000, and that she took all reasonable steps to find out those facts before that time. 226. This is because I consider that the placing of her possible remedies as a result of her husband's death in the hands of Slater & Gordon at the time of the Johns Manville litigation was all that was required of her in her particular situation (which is relevant on the authorities) by way of "reasonable steps" before 26 May 2000. The same in my view applies to the deceased engaging his solicitor, Mr Barnes, who, it is to be inferred, did not advise him of any possible expert evidence as to an alternative system of work either. 227. In this regard the comparison between the facts in this case and those in Do Carmo is instructive. Mr Do Carmo could well have found out that a practicable alternative system of work was available when he contacted the union solicitors at a time earlier than the material date he relied on in his action. No doubt those solicitors well knew how to commission an expert report to find out what alternative systems were available. The fact is that they did not, and Mr Do Carmo's subsequent solicitors did. Even though Mr Do Carmo, before he alleged that he became aware for the first time of material facts of a decisive character sufficient to provide him with a cause of action worth pursuing, to use slightly loose language, had been in the hands of legal advisers who could well have provided him with knowledge of these facts with the exercise of due diligence in gathering evidence, the fact was that they did not do so. Thus Mr Do Carmo remained unaware of material facts of a decisive character, despite taking all reasonable steps to find them out, and was entitled to an extension of time. Queensland authority would suggest that the answer would have been the same in that state: see in particular Neilson (supra). 228. Similarly, Slater & Gordon could, with the exercise of due diligence, arguably have obtained for the plaintiff an expert report which may well have revealed the facts set out in the dot points in the Stewart report, annexure "M" to the plaintiff's affidavit, PX11, when she consulted them in respect of the Johns Manville litigation. They could also have told her of the existence of ASIA and the duties inhering in it, and of the fact that it undertook those duties, or made appropriate enquiries to discover these matters. The fact is that they did not, and that any knowledge possessed by her solicitors as to the availability of such an expert report, and as to what it might contain (and there is no evidence of such knowledge in this case in any event) or of the other matters just mentioned cannot be imputed to the plaintiff, either on Do Carmo or on Neilson's case (supra). Unpalatable as some may see this result as being, I do not see that there is a difference in principle between those cases and the present one merely because the earlier solicitors the plaintiff saw are those still acting for her. 229. It should be remembered that Dawson J pointed out that it is not to be assumed for the purpose of s 58(2) of the Limitation Act (NSW) that the engagement of competent legal advisers would have led to the discovery of additional material facts of a decisive character, and the same, as I have pointed out, applies to the materially identically worded s 31(2) of the Queensland legislation. 230. It seems to me that within s 30(1)(c)(i) and (ii) the plaintiff did not know the material facts of a decisive character, as I have decided them to be, in the dot points in the Stewart report before 26 May 2000 (or as to the identity and duties of ASIA) despite taking all reasonable steps to find them out, namely engaging Slater & Gordon at the time of the Johns Manville litigation, and placing the decision in their hands as to what remedy should be pursued in respect of her husband's death. These considerations (but for those as to the identity and duties of ASIC) of course apply to the representative action as adminstratrix of her husband's estate as well as that on her own behalf as dependent widow because the plaintiff is the same in both actions. In the representative action however, as I have said, the question is what reasonable steps the plaintiff and the deceased should have taken, having regard to what the deceased knew as well as what she knew, but as I have said, I have formed the view that consulting Mr Barnes was enough by way of reasonable steps on the deceased's part to find out about the facts ultimately disclosed by the dot points in the Stewart report. The deceased, after all, was a tally clerk and ultimately a supervisor, not an engineer, on the waterfront, and not in my view a person of such sophistication as to be required to go behind the advice of a solicitor whom he had engaged to advise him. Sections 31(2) and 32(2) 231. The plaintiff having satisfied s 30(1) and (2), it is now for me to decide whether the discretions in ss 31(2) and 32(2) should be exercised in her favour. It seems to me that within ss 31(2) and 32(2) the plaintiff was not aware of material facts of a decisive character, namely the dot points in the Stewart report, nor of the identity of ASIA as the statutory predecessor of the defendant, and of the duties which inhered in it, before 26 May 2000, all of these being material facts of a decisive character. I have already said that I am not satisfied that the deceased was unaware of the second group of "material facts" referred to above, namely the existence of ASIA and of the duties which inhered in it and of its undertaking those duties. For that reason, as I have said, the plaintiff is entitled to rely on ignorance of these "material facts" only under s 31(2) in relation to her action as dependant widow of the deceased, and not under s 32(2) in relation to the representative action as adminstratrix of the deceased. On a prima facie basis however the plaintiff is nevertheless entitled to an order for extension of time under both s 31(2) and s 32(2). Is prejudice negatived? 232. I have already described in detail the plaintiff's evidence and that of Mr McGuinness in relation to prejudice. Being careful not to "balance the prejudice" in the manner proscribed in Brisbane South, the question I must ask myself is whether the chance of a fair trial has been materially decreased as a result of the delay which has occurred in the plaintiff not bringing action within the limitation period provided by s 11 of the Queensland legislation, and I must ask this question both on the basis of actual and presumptive prejudice, as those terms are being used by the High Court in Brisbane South, and on the basis that the plaintiff must negative it, not that the defendant must establish it. 233. Dealing firstly with actual prejudice, it is my view that this is considerably cut down by the evidence of the plaintiff and by that of Mr McGuinness. As to the first, I have already set out in my summary of the plaintiff's evidence how it is that in her affidavit in particular, she gives very detailed evidence as to her and her husband's expenditures and division of income. It is true that the plaintiff became somewhat vague in cross-examination about this but she did not have some bank documents, as I have said, at the time she answered those questions and, they being produced on subpoena and used by the defendant in cross-examination, they will obviously be available for refreshment of her memory at the hearing of her action if there is one. I am of the view that the plaintiff's description of her sharing of the deceased's income with him, and of his support for her, is no more vague than that which customarily occurs in cases of this kind which are brought within time. This is a somewhat hesitant conclusion, but it seems a proper one. 234. As to Mr McGuinness's evidence, I have already detailed the many ways in which, in my respectful view, he and those under him have failed to follow up appropriate leads, if I may so call them, to obtain both documents and witnesses who may be able to shed light on the circumstances of the deceased's employment, and of the failures in the system of work with which he was provided. As to presumptive prejudice it seems to me difficult for Mr McGuinness to suggest this in relation to witness's recollections and the like when he and his client have, in my view, not taken steps appropriate to ascertain the whereabouts of particular witnesses and test their recollections, and have again not taken some steps appropriate to locate documents and hence to determine their availability. 235. The most important aspect of Mr McGuinness' evidence concerning presumptive prejudice is his frank admission that asbestos exposure is not in issue in this case and that the degree thereof might not be: see above. Against that background, it is difficult to see that the recollection of witnesses and the availability of documents is as crucial to the defendant's defence of the plaintiff's actions than might otherwise be so. In this connection it is important to recall that this defendant has been obliged to confront a number of actions resulting from the decision of the High Court in SIFC v Crimmins (supra) a list of which is indeed appended to Mr McGuinness' affidavit, and no doubt the general question of asbestos exposure to workers on the Australian waterfront to whom duties were found to be owed by ASIA and consequently SIFC its statutory successor would have had to have been investigated in all of those cases. As against that, it is important to remember of course that as Mr McGuinness's list attached to his affidavit establishes, this is only the second claim brought against SIFC in respect of the Brisbane waterfront and the first brought by a tally clerk. These matters would strongly suggest that the claim is novel, and that its particular facts may not have been investigated in any cognate case before, but against that must be placed, as I have said, Mr McGuinness's admission that asbestos exposure is not in issue in this case either and that the degree thereof may not be. As an expert tribunal I think I may know that mesothelioma is not dose related, so the degree of the deceased's exposure to asbestos is probably not as crucial a matter to the defendant's defence as might otherwise be the case. 236. Actual prejudice to the defendant is in my view likewise negatived by these matters. The plaintiff, as I have said, has demonstrated what, to my mind is, in the circumstances, a reasonably comprehensive recollection of her receipt of support from the deceased. I do not see that it would have been any easier for the defendant to defend her action in this respect were it brought within time, because I do not think the plaintiff's recollection has been particularly affected by the lapse of time when one considers the detailed nature of her affidavit in particular, and the unavailability to her of bank documents when the plaintiff was cross-examined. I have already said, and I repeat, that in the best regulated households it is frequently not possible to prove precisely how every sum expended by husband and wife was applied, and I think the deficiencies in the plaintiff's recollection exposed by the cross-examination fall into this category, and do not constitute significant prejudice to the defendant in defending an action by the plaintiff claiming loss of support by the deceased's death, so as to reduce substantiality the chance of a fair trial. The same applies to the representative action brought by the plaintiff as adminstratrix of the estate of the deceased. The enquiry concerning economic loss in personal injuries cases has been described as "an imprecise and indeterminate one to be carried out within very broad parameters"; see State of New South Wales v Moss [2000] NSWCA 133 at [71] (cited by Mason P in Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 at 277 [51]). This approach appears equally applicable to questions of dependency (see Luntz, Assessment of Damages for Personal Injuries and Death (3rd ed., 1990) at para [9.3.1] on pp 394-5 and the cases there cited, particularly Phali v Commissioner v Railways (1964-5) NSWR 1545 [FC] at 1547 in the passage quoted by Luntz.). 237. Actual prejudice to the defendant in defending both actions based on the unavailability of witnesses and/or their defective recollections and/or the availability of documents seems to me to be likewise rather negatived by Mr McGuinness's admissions in cross-examination. As I have said, I frankly feel that there were a large number of avenues he could have followed to obtain documents and locate witnesses which he and his client did not pursue on the evidence. The defendant's position would have been a lot stronger had it, through its legal representatives and other officers, made a more comprehensive effort to locate documents and witnesses. Had it done so, and had it been able to demonstrate that documents it had sought which were relevant to the defence of the plaintiff's actions were not available and/or that relevant witnesses were not now available and/or that their recollections were affected by the lapse of time, actual prejudice may (or may not) have been demonstrated which might well have been sufficient to require that the discretion under ss 31(2) and 32(2) not be exercised in the plaintiff's favour. As it is, I do not think that actual prejudice has been demonstrated of a significant kind, sufficient to require that the discretion not be exercised in this way. Orders 238. I therefore order that the time of commencement of the cause of action disclosed by both Statements of Claim filed by the plaintiff be extended within s 31(2) and 32(2) of the Limitation of Actions Act 1974 (Qld) to the dates of filing thereof, namely 9 and 22 November 2000. 239. I shall hear the parties as to costs. Mr M Joseph SC and Mr R O'Keefe instructed by Slater & Gordon appeared for the plaintiff. Mr M Tobin QC and Ms E Cheeseman instructed by Blake Dawson & Waldron appeared for the defendant.

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