Plaintiff v First Defendant

Supreme Court of Victoria|2010-06-01|Before: WILLIAMS J

TORT - Personal Injury - Limitation of actions - claim for damages for dust related condition by executrix on behalf of deceased's estate - accident occurring in New Zealand - interpretation of s 5(1A) Limitation of Actions Act 1958 - s 20(1A) Wrongs Act 1958.

2 Ms Van Gerven sues the first defendant ('Amaca') as the manufacturer of asbestos to which the deceased was allegedly exposed whilst working for the second defendant ('NEI') (then known as John Thompson (Australia) Proprietary Limited).

3 The defendants argue that the proceedings are statute barred. Ms Van Gerven responds that the limitation period has not expired in relation to either of her claims, by reason of the operation of s 5(1A) of the Limitation of Actions Act 1958 ('the LAA') and s 20(1A) of the Wrongs Act, respectively.

4 Whilst she also seeks any necessary extension of the limitation period under s 23A and 27K of the LAA and under s 20(1A) of the Wrongs Act, those applications have not yet been made.

5 The parties seek the resolution under r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005 of the preliminary issue as to the effect s 5(1A) of the LAA and s 20(1A) of the Wrongs Act on Ms Van Gerven's claims.

6 At the relevant time, the LAA provided for a six year limitation period for personal injury actions. The LAA had also been amended in 1983 to automatically extend that period in the case of 'a disease or disorder'. The applicable provisions were in s 5 and s 5(1A) :

5. Contracts and torts

(1) The following actions shall not be brought after

the expiration of six years from the date on which

the cause of action accrued -

(a) actions founded on simple contract (including contract implied in law) or (subject to sub-section (1A)), actions founded on tort including actions for damages for breach of a statutory duty;

(1A) An action for damages for negligence nuisance or breach of duty (...where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows -

(a) that he has suffered those personal injuries; and

(b) that those personal injuries were caused by the act or omission of some person.

7 The 1983 amending legislation also introduced s 23A into Part II of the LAA giving the Court the power to extend the limitation period in personal injury cases :

23A. Personal injuries

(1) This section applies to any action for damages for negligence nuisance or breach of duty...(whether the damages claimed consist of or include damages in respect of personal injuries to any person

(2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to sub-section(3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.

(3) In exercising the powers conferred on it by sub-section(2) a court shall have regard to the all the circumstances of a case including (without derogating from the generality of the foregoing) the following -

(a) the length of and the reasons for the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;

(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. ...

8 Ms Van Gerven brought her claim as a dependent widow under ss 16 and 17 of the Wrongs Act. At the relevant time, s 20 established a limitation period of six years from the date of death for her claim. The 1983 act had also amended the legislation to provide for the automatic extension of the limitation period in cases where death was caused by a disease or disorder. The relevant sections were s 20(1) and (1A) :

Application to court as to cause of action under this Part

(1) Not more than one action shall lie for and in respect of the same subject-matter of complaint, and (subject to subsection (1A)) every such action shall be commenced within six years after the death of such deceased person or, where an application is made to a court under subsection (2), within the period referred to in the order of the court.

(1A) Where the death of a deceased person was caused by an injury consisting of a disease or disorder contracted by a person and the person did not know before he died -

(a) that he had suffered the injury; or

(b) that the injury was caused by the act or omission of some person -

an action in respect of the injury shall be commenced within six years after the date when the person claiming to have a cause of action under this Part first knows -

(c) that the death was caused by the injury; and

(d) that the injury was caused by the act or omission of some person -

or, where an application is made to a court under subsection (2), within the period referred to in the order of the court.

(2) Where on an application to a court by a person claiming to have a cause of action under this Part, it appears to the court that -

(a) the death of the deceased person was caused by a wrongful act, neglect or default; and

(b) the deceased did not before his death bring an action in respect of the wrongful act neglect or default -

the court subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.

(3) In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following -

(a) the length of and reasons for the delay on the part of the deceased or the claimant or each of them (as the case may be);

(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c) the extent, if any, to which the defendant had taken steps to make available to the deceased or the claimant or each of them (as the case may be) means of ascertaining facts which were or might be relevant to the cause of action of the deceased or the claimant or each of them (as the case may be) against the defendant;

(d) the duration of any disability of the deceased arising on or after the date of the accrual of the cause of action;

(e) the extent to which the deceased or the claimant or each of them (as the case may be) acted promptly and reasonably once he knew in relation to the injury that caused the death that the act or omission to which that injury was attributable might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the deceased or the claimant or each of them (as the case may be) to obtain medical legal or other expert advice and the nature of any such advice he may have received.

(3A) The powers conferred on a court by subsection (2) may be exercised at any time notwithstanding -

(a) that more than six years has expired since the cause of action accrued; or

(b) that an action in respect of such personal injuries has been commenced by the claimant.

(4) Where under this section a question arises as to the knowledge of a deceased person the court may have regard to the conduct and statements oral or in writing of the deceased person.

(5) A copy of an application under this section must be served on each person against whom the applicant claims to have the cause of action.

9 Against the background of the deceased and Ms Van Gerven knowing on about 6 February 1997 that he was suffering from Mesothelioma related to his exposure to asbestos between 1962 and about 1970 (when working with Amalgamated Brick & Pipe Pty Ltd), the issue arises as to whether the deceased then knew that his injury 'was caused by the act or omission of some person' under s 5(1A)(b) of the LAA and s 20(1A)(b) of the Wrongs Act.

10 The question raised by the parties is as to whether those statutory provisions require knowledge of the causal nexus between the injury and an act or omission of the prospective defendant, as opposed to an act or omission of some unidentified person.

11 Counsel argues that in this case the deceased and the plaintiff were aware that asbestos was a causative element of the condition, the deceased worked at John Thompson and that the exposure to asbestos was caused by 'some person' arising from the fact of the deceased alleged exposure.

12 I am not persuaded that the term 'some person' in s 5(1A)(b) of the LAA and s 20(1A)(b) of the Wrongs Act (as they were) refers to the prospective defendant. An injured prospective plaintiff's cause of action accrues under that legislation, in my view, once that person first knows that they have suffered an injury and that the injury was caused by the act or omission of an identified person. It is not necessary, however, that the injured person should have also known that their injury had been caused by the act or omission of the prospective defendant.

13 As far as the identification of the person responsible for the act or omission is concerned, it seems to me that one cannot sensibly contemplate the identification of a causally responsible act or omission without identification of the person who committed that act or omission. A person might, at a particular point in time, first know in the abstract that there must have been an act of some sort which, somewhere along the way, caused their condition. It is unlikely, in my opinion, that the legislature intended that time should then start running in relation to a potential claim.

14 Striking a balance between the interests of prospective plaintiffs in cases where they were unaware of injury at the time of a causative act or omission and those of prospective defendants needing to order their affairs, s 5(1A) of the LAA exempted such cases from the s 5(1) general rule that the limitation period commenced once the cause of action accrued. It also gave such prospective plaintiffs the additional benefit of the time during which they remained unaware that it was the act or omission of some person which was a cause of their injury.

15 From 1 January 1973, an injured person could apply for an extension of the limitation period under s 23A of the LAA. Section 23A referred to 'material facts' to be taken into account by the court in the exercise of its discretion which included 'the identity of the person against whom the cause of action lies'.

16 Section 23A in its present form was inserted by the Limitation of Actions (Personal Injury Claims) Act 1983 which also introduced sub-s 5(1A). It is significant, in my view, that the insertion of s 5(1A) which refers to 'some person' was effected at the same time as the introduction of the substituted s 23A which specifically refers to 'the defendant' in sub-ss 23A(3)(b), (c) and (e).

17 In Mazzeo, the learned President referred to the historical context in which s 5(1A) was introduced into the LAA:

The cause of action referred to in s 5(1) has always been taken to accrue on the date when a person has been injured by the act or omission of another. The fact that the injured person does not know or believe that the act or omission of the other person causing the injury was negligent has not prevented time from running against the injured person. It is usually only when that person has taken advice that he or she will become aware that the cause of action (which has already arisen) is actionable. That is why the six year limitation period has been set by the legislature as a compromise of fairness between the person injured and the person whose acts or omissions have caused the injury. Over the years it has been recognised that the balance of fairness can be distorted against the interests of the person injured, particularly in those cases of insidious disease caused by the act or omission of others, where the symptoms of the disease do not emerge for many years.[1]

18 Winneke P also noted the legislative responses to the problem of injury constituted by a disease, including the introduction of the 'legislative exception' to the general rule in s 5(1A):

Accordingly, many State legislatures have sought to restore the balance by permitting injured persons to apply to the court to extend the limitation period. In Victoria that was done by introducing s 23A into the Act in 1972, and by further amending the section 1983 to give the court an even wider discretion to extend the period. However the limitation period prescribed by s 5(1)(a) of the Act remains the "rule" for actions founded upon tortious conduct. Section 5(1A) prescribes a legislative exception to that "rule" by providing that where a claim, founded (inter alia) upon negligence or breach of duty, is for damages in respect of personal injuries "consisting of a disease or disorder contracted", then the cause of action "shall be taken to have accrued on" the date when the person injured first knows that he or she has suffered those injuries and that they were caused by the act or omission of another. Having regard to the framework of the Act, and in particular to the inter-relationship between the provisions of s 5(1A) and the provisions of ss 5(1)(a) and 23A it would, I think, be surprising if the legislature had intended that a word such as "wrongful" or "negligent" should be implied into s 5(1A)(b). I say that it would be surprising, because the subsection contemplates that, irrespective of any prejudice to the potential defendant, the "limitation time clock" will not start to run until a date which may be many years after the date when the breach of duty occurred. In those circumstances, it is not readily to be assumed that the legislature intended that the cause of action does not accrue until the person injured acquires actual knowledge that the act or omission causing the injuries was "wrongful", when "the general time limitation rule" provided for in s 5(1)(a) makes no such assumption.[2]

19 Significantly, the learned President cited the effect of s 5(1) of the LAA in support of his rejection of the argument that s 5(1A) referred inferentially to knowledge of the wrongfulness or negligence of the causal act or omission. He said:

Just as in the general run of personal injury claims founded on tort, which are covered by s 5(1)(a) of the Act, subs (1A) intends, in my view, that time will commence to run against the injured persons to whom it applies when such persons know that they have suffered the relevant injury and know of facts and circumstances which put them on notice that such injuries have been caused by the act or omission of some other person. To require the injured persons to "know" that the act or omission was wrongful or "negligent" is to invest such person with knowledge of a legal consequence which, in my view, is not something the subsection contemplates.[3]

20 Winneke P also noted that the legislature had isolated, from the ordinary regime (under ss 5(1) and 23A), injuries consisting of a disease or disorder for extension of the limitation period without reference to any prejudice to a defendant. This might itself support a narrow construction of sub-s 5(1A).[4]

21 Tadgell J held that there was ample evidence that the plaintiff knew that her injury had been caused by an act or omission of her employer and that the judge should be taken to have so found. That was sufficient for the rejection of the argument under s 5(1A) that the claim was not statute barred.[5]

22 The statutory context supports the view that it is some other identified person, as opposed to a prospective defendant to which sub-s 5(1A) refers. The 1983 amending legislation inserted both s 5(1A) which referred to 'some person' and s 23A which inserted the word defendant at the same time. The New Oxford Dictionary definition indicates that the expression 'some person' means an unspecified person. The deliberate use by the Parliament of that expression in the context of its specific reference to 'the defendant' in s 23A indicates an intended distinction.

23 If the term 'some person' were to be considered ambiguous, then a narrow as opposed to a 'liberal' construction would still achieve the legislative purpose in the statutory context in which an injured person can apply for an extension of time under s 23A to commence proceedings against a prospective defendant identified outside the extended limitation period of which they have already had the benefit. This situation accords with that applying in the case of conventional injuries which fall within s 5(1) and fairly balances the prejudice to both prospective plaintiffs and defendants in cases where injury is not immediately evident.

[1] (2000) 3 VR 172, 174, [4] (Winneke P) (footnotes omitted).

Court (General Civil Procedure) Rules 2005

Actions (Personal Injury Claims) Act 1983

At a glance

Court

Decision date

Before

Source

Judgment (41 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (1)