Wintle v Stevedoring Industry Finance Committee and Ors [2002] VSC 265

Supreme Court of Victoria|2002-07-01|Before: Ashley J

Limitation of actions - claim by dependant under Part 3 of Wrongs Act 1958 - application under s. 20(2) - whether requirements of s. 20(2)(a) satisfied - whether just and reasonable to extend time within which action may be brought - discretionary considerations.

By her statement of claim the plaintiff alleges that

[diamond] her late husband died on 12 May 1989 from pleural mesothelioma, having been incapacitated from his work as a waterside foreman for a period prior to his death.

[diamond] He contracted his fatal disease by inhalation of asbestos-containing dust to which he was exposed from time to time in his work on the Melbourne Waterfront between about 1960 and 1969.

[diamond] Some of the asbestos handled by the late Mr Wintle was manufactured, packaged and shipped by CSR, and some was imported by Hardie.

According to the statement of claim each of the defendants owed the late Mr Wintle a duty of care, each of them breached its duty, and in each case the breach was relevantly causative of his injury, incapacity and death.

On 13 November 2001 Bongiorno J as judge in charge of the Major Torts List ordered that certain questions in the proceeding be determined by me before trial at a hearing fixed for 25 March 2002. His Honour's order was relevantly as follows:

"2. The following questions and issues (`the preliminary issues') be heard as preliminary matters prior to the trial of the proceeding and be determined by the Honourable Mr Justice Ashley on the 25th day of March 2002. a) Having regard to such relevant and admissible evidence as has been adduced, are the plaintiff's claims (i) against the second defendant (ii) against the third defendant insofar as brought by her as executrix of the Will and Estate of the late George Wintle barred by operation of s. 5 of the Limitation of Actions Act 1958? b) Having regard to such relevant and admissible evidence as has been adduced, are the plaintiff's claims (i) against the second defendant (ii) against the third defendant insofar as brought by her pursuant to Part III (sic) of the Wrongs Act 1958 barred by operation of s. 20 of that Act? Such issues to be heard on the preliminary issues hearing date. 3. The hearing of the plaintiff's summons dated 1 September 2000 concerning extension of time pursuant to s. 23A of the Limitations of Actions Act 1958 and/or pursuant to s. 20(2) of the Wrongs Act 1958 be adjourned to the preliminary issues hearing date."

On 21 February 2002 CSR, supported by Hardie, sought that I disqualify myself from hearing the questions to which I have just referred on the ground of apprehended bias. SIFC took no part in that application. By then it had settled with the plaintiff.

On 1 March 2002 I declined to disqualify myself[1].

By 25 March 2002, when the issues specified by Bongiorno J were to come on for hearing, the plaintiff had also settled with Hardie. Further, on that day the plaintiff elected to pursue against CSR only her application for extension of time under s. 20(2) of the Wrongs Act - that is, in respect of her claim under Part 3 of that Act[2]. In that connection, as will be seen, the matters put into dispute were really quite restricted.

The plaintiff relied upon her affidavit sworn 2 August 2000, affidavits of Mr Peter Gordon sworn 3 August 2000, 3 November 2000 and 19 March 2002 and the affidavit of Dr David Kilpatrick sworn 1 August 2002. She specifically did not rely, however, upon paragraphs 26-28 of Mr Gordon's affidavit sworn 3 August 2000 and Exhibits 25 and 26 thereto, or upon paragraphs 21-26 of Mr Gordon's affidavit sworn 3 November 2000 and Exhibits 44-47 thereto. There was thus removed from my consideration matters deposed to by Mr Gordon which were at the heart of the disqualification application. I have had no difficulty in putting that material to one side.

CSR, for its part, relied principally upon the affidavit of Mr Phillip Rowell sworn 1 September 2000.

Mr Peter Gordon is the plaintiff's present solicitor. Mr Rowell is CSR's solicitor. Each of Mr Gordon and Mr Rowell is shown by their affidavits to have considerable familiarity with earlier asbestos-related personal injuries legislation, specifically litigation[3] brought against CSR and involving exposure to workers on the Melbourne waterfront.

The plaintiff carries the burden of persuading me that an order should be made under s. 20(2) of the Wrongs Act. Of this, more later. At all times I have kept that firmly in mind, notwithstanding that argument focussed on two issues pressed by senior counsel for CSR. Simply as a matter of convenience I will deal with those issues by first referring to the submissions made for CSR.

The submissions, broadly expressed, were these:

First, the plaintiff had not made it appear that her husband's death was caused by CSR's wrongful act, neglect or default. There was a deficiency of evidence of his exposure to what may shortly be called CSR asbestos and a deficiency of medical evidence establishing a probable causal link between any disclosed exposure and the fatal illness. Second, if s. 20(2)(a) of the Wrongs Act was, contrary to the first submission, satisfied, and there being no argument that in that event s. 20(2)(b) was also satisfied, the plaintiff had not established that it was just and reasonable to order that the period for bringing an action on the cause of action be extended.

Before I turn to consideration of focus of those submissions I should note a number of matters which were plainly made to appear on the material placed before me. Thus:

(1) The plaintiff is the widow of the late Mr Wintle.

(2) She was his dependant.

(3) She has not remarried or taken up some other personal relationship since his death.

(4) Mr Wintle worked on the Melbourne waterfront from about 1961 until not long before his death in 1989.

(5) Between about 1961 and 1969, as a waterside worker, Mr Wintle was periodically exposed to asbestos-containing dust in consequence of handling bagged asbestos.

(6) Mr Wintle contracted pleural mesothelioma. It was detected in August 1988. It brought about his death on 12 May 1989.

(7) The mesothelioma was almost certainly caused by Mr Wintle's exposure to asbestos - I leave aside what asbestos - in his work on the Melbourne waterfront. There is very commonly a long latent period between exposure and the disease becoming manifest.

(8) Most of the asbestos shipped through the Port of Melbourne between 1 July 1960 and 30 June 1969, 120617 short tons in all, was chrysotile - that is, white asbestos.

(9) Crocidolite, that is, blue asbestos, 11604 short tons in all, was shipped by CSR through the Port of Melbourne between 1 July 1960 and approximately 26 January 1967.

(10) Asbestos other than white asbestos was shipped through the Port of Melbourne in the period between 1 July 1960 and 30 June 1967 in a total of 25951 short tons. Wittenoom-sourced asbestos represented about 45 percent of that quantity. The material placed before me did not disclose whether any part of that quantity, CSR asbestos aside, was blue asbestos.[4]

(11) Records of the amounts and generally the types of asbestos shipped through the Port of Melbourne in the relevant years, and the amount of CSR asbestos shipped year-by-year, are available[5].

In addition to the matters plainly made to appear, there was a particular concession and a matter of apparent concession to which I should refer. As to the former, Mr Kaye of Queen's Counsel, who with Mr Noonan appeared for CSR, stated that if, contrary to his first main submission, the plaintiff had sufficiently established "causation", then he did not seek to argue, for the purposes of that application before the Court, that Mr Wintle's death was not caused by a wrongful act, neglect or default of his client[6]. That very proper concession relieves me of the need to rehearse a substantial body of material which would certainly have led me, for the purposes of this application, to a similar conclusion.

As to the latter, Mr Wilson of Queen's Counsel, who with Mr J. Gordon appeared for the plaintiff, placed before me from the Bar Table, without objection, certain facts concerning settlement amounts received or receivable by the plaintiff from SIFC and Hardie; and an opinion as to the potential quantum of the plaintiff's claims under Part 3 of the Wrongs Act and as executor in the estate claim. He did so essentially in support of an exercise of discretion in his client's favour. But what he said also bears on the question whether the plaintiff's claim under Part 3 against CSR has a money value. Mr Kaye did not dispute that it does; and I will accept that such is the case.

Mr Kaye submitted, in the context of his first main submission, that guidance to the meaning of the phrase "(where) it appears to the Court" in s. 20(2) of the Wrongs Act could be found in authorities pertaining to s. 23A of the Limitation of Actions Act in its old form. He contended that for the purposes of satisfying s. 20(2) "it needs to be made to appear that evidence exists which could support the cause of action"[7]. He accepted also that it would be sufficient "if the plaintiff were, by evidence admissible in this interlocutory hearing, to establish the existence of evidence which, if accepted, would establish the cause of action". The plaintiff could use hearsay; but "it has got to be proper hearsay to identify that evidence".[8]

Mr Kaye submitted that the test which he framed accepted a submission made by Mr Wilson. It is true that Mr Wilson did make a submission to that effect. But it was certainly not his submission of first resort. His primary contention[9] was that s. 20(2) would be satisfied if the plaintiff established that it was possible, not far-fetched or fanciful, that death was caused by a wrongful act, neglect or default. That would be achieved by demonstrating that the deceased died of a preventable industrial disease as a consequence of exposure to a toxic product in the course of his employment.

The language of the old s. 23A and of s. 20(2) is not identical; but the provisions are pretty similar. Authorities concerning the meaning of the old s. 23A are probably a useful guide to the meaning of s. 20(2). That meaning is more favourable to CSR than is Mr Wilson's formulation of the test and what would satisfy it. I will apply the meaning contended for by Mr Kaye.

I should next refer to a further point of construction concerning s. 20(2). Mr Kaye submitted, and Mr Wilson agreed, that the wrongful act, neglect or default referred to in paragraph (a) must be taken to be the wrongful act, neglect or default of the respondent to the application. So, in the present case, it would not be pertinent if it appeared to the Court that there had been wrongful act, neglect or default of, say, SIFC which had caused or contributed to the death of the late Mr Wintle.

As presently advised, I consider that the agreed position of counsel was correct. I approach the factual analysis on that footing.

Exhibited to Mr Gordon's first affidavit were three affidavits sworn by the late Mr Wintle. Two of them, dated 12 January 1989 and 23 January 1989, were sworn in an application brought by Mr Wintle seeking an extension of time in which to bring proceedings against five waterfront employers in respect of his mesothelioma. That application failed at first instance and on appeal, the judgment of the Full Court being delivered on 2 March 1989[10].

The third affidavit by Mr Wintle, sworn 29 March 1989, was made in support of an application to extend time to commence a proceeding against SIFC. It was in some respects similar to, but it differed from, the affidavit which he had sworn on 12 January 1989. That application succeeded, an order being made by McGarvie J in Mr Wintle's favour on 5 April 1989[11].

Also exhibited to Mr Gordon's first affidavit was the transcript of an examination de bene esse of the late Mr Wintle. The examination was conducted on 26 April 1989, that is, just a few weeks before Mr Wintle's death. It took place in a consolidated proceeding which emanated out of two proceedings commenced by Mr Wintle by writs filed on 7 April 1989. The first of those proceedings, No. 1113 of 1989, was brought against four of the stevedoring companies which had been respondents to Mr Wintle's earlier unsuccessful extension application. The second, No. 1114 of 1989, was brought against SIFC, consequential upon the order of McGarvie J made on 5 April 1989.

The consolidated proceedings, numbered (it seems) 1113 of 1989, are on foot to this day. They have been the subject of various applications since the commencement of the proceeding which is now before me.[12] Some of those applications were dealt with by Hedigan J in an interlocutory judgment which his Honour delivered on 30 August 2001.[13] That judgment was the subject of an application for leave to appeal. The application was resolved by consent orders made by the Court of Appeal on 26 October 2001. On the same day Minutes of Consent Orders were filed which had the effect of bringing to an end any claim in the consolidated proceedings against SIFC.

There remains outstanding in the consolidated proceedings an application, made by the plaintiff's summons filed 2 June 2000,

"That the Supreme Court proceeding number 4950 of 2000 between Anne Wintle and Stevedoring Industry Finance Committee as Firstnamed Defendant, James Hardie & Coy Pty Ltd as Secondnamed Defendant and CSR Limited as Thirdnamed Defendant be consolidated with the amended Statement of Claim of Supreme Court proceeding number 1113 and 1114 of 1989 and the Statement of Claim in proceeding 4950 of 2000 stand as the Statement of Claim in the consolidated action."

That application was referred to in paragraph 2 of orders made by Hedigan J on 30 August 2001.[14] It was not, however, a matter the subject of order by Bongiorno J on 13 November 2001.

I have described the provenance of the affidavits sworn by Mr Wintle and of the examination the bene esse because both Mr Wilson and Mr Kaye referred extensively to the first of the affidavits and to the examination in the course of other submissions. It was never suggested by either counsel that the material was not, in general, receivable on the application. Indeed, Mr Kaye's submissions relied upon what he claimed were gaps in the picture thereby disclosed; and upon the prejudicial impact of the affidavit and examination becoming evidence at trial in circumstances where his client could not cross-examine the late Mr Wintle.

The basis upon which counsel referred to and respectively relied upon the first affidavit and the examination the bene esse was not made clear. It appears that each of them accepted, or there was agreement, that the affidavit and examination were evidence which existed and which could be adduced at trial[15].

This proceeding is one in which procedural disputation has been the norm; witness the observations of Hedigan J in paragraph 1 of his Reasons delivered 30 August 2001. Having regard to the way in which the matter went forward before me, eminent Queen's Counsel being briefed for CSR, I consider that I should treat the affidavit and the examination as being evidence which exists and which could be adduced at trial.[16]

In addressing the factual content of his first main submission Mr Kaye contended that Mr Wintle by his first affidavit and in his examination had given little if any evidence of his exposure to CSR asbestos. There was, in consequence nothing enabling the plaintiff to make it appear, having regard to the opinion of Dr Rosalion[17], that there was a probable rather than a possible connection between Mr Wintle's exposure to CSR asbestos and the development of his mesothelioma.

It is clear that this application is not to be treated as if it was the trial of an action. It would be wrong to analyse the material adduced on the application on the footing that the specified matters could only appear to the Court if the material persuaded the Court, on the balance of probabilities, that the plaintiff had proved those matters. Approaching the matter, as I have said I would do, on the basis of the applicability of the s. 23A analogy, it is enough if it appears to the Court that "evidence exists to support the plaintiff's claim"[18]; or "that there is evidence to establish the cause of action"[19]; or again "whether evidence is available which gives the applicant' a reasonable prospect of ... establishing the cause of action'".[20]

In my opinion, and contrary to Mr Kaye's submission, the material before the Court pertaining to the causation issue satisfies any of those formulations, as well as the test enunciated by Gowans J in Evans and cited with approval by Starke J in Cuthill - formulations and a test which are to be regarded as saying the same thing.[21]

So, in my view, the material shows the availability of evidence from which it might properly be concluded that the late Mr Wintle did handle CSR asbestos in his work between 1961 and 1967; and that his handling of that asbestos was in fractional terms compatible with the extent to which CSR asbestos formed a part of asbestos imports through the Port of Melbourne in that period[22].

Concerning the overall dimensions of his work with asbestos, the available evidence, by way of Mr Wintle's estimates, would entitle a conclusion that on average he worked with asbestos cargo no less than 35 and not more than 100 days per year.[23] It would be open to conclude that the higher estimate was the more likely.[24]

Next, the material before me discloses evidence which would justify a conclusion that working conditions when Mr Wintle was unloading asbestos were uniformly bad.

I go to the material pertaining to Mr Wintle's handling of CSR asbestos. In paragraph 6 of his affidavit sworn 12 January 1989 he said this:

"The asbestos unloaded was imported asbestos and also it was unloaded from coastal boats. The coastal boats I believe contained asbestos from the Wittenoom mine in Western Australia."

Mr Kaye took specific objection to the statement of belief in that passage. He submitted that no source of the belief was identified.

I refer next to Mr Wintle's examination in chief on the examination de bene esse. Bear in mind that four of five defendants in that case were stevedoring companies. The question of the extent of Mr Wintle's exposure to asbestos in those employments was of importance to both Mr Wintle and the defendants. So also it must have been important for Mr Wintle to establish, so far as was possible, that he had been exposed to blue asbestos; and CSR's Wittenoom mine and mill, as was then very well known, was the major if not the only Australian producer of blue asbestos in the relevant period.

Against that background Mr Wintle's examination was as follows:

"Well, over the time that you were working on the wharves in the 1960s, did you engage in work from time to time with the United Stevedoring Company?--- The United Stevedoring Company, yes. And did you engage in unloading asbestos cargo with them?--- I would say, yes. What about the Victorian Stevedoring?--- Yes. Likewise you did work with them?--- Yes. And unloading asbestos?--- Yes. What about E.P. & A. Fraser Pty Ltd?--- Yes. And F.G. Strang?--- I - it is very hard to think back on, as I say, chopping and changing over all these years from ship to ship and company to company, but in the back of my mind it seems to stick out, I would say, F.G. Strang would be one of the biggest. Biggest of what?--- Of importing of asbestos. Yes. Well, of those four that I mentioned to you, that is United Stevedoring, Vic Stevedoring, Fraser's and Strang's, which one of those do you believe you would have done most of your unloading of asbestos with?--- As I say, I would think F.G. Strang's. And after them?--- Possibly Victorian Stevedoring Company. Which one the least?--- It is very hard to say there - It would be out of United and Fraser's because they are the other two?--- United was a big one. I think those three you have just mentioned, I would say would be the three main ones. And would Fraser be one of the smaller ones - a smaller one than those?--- A smaller one, I would say. Yes?--- I think from memory Fraser's, I think they may have done a lot of the coastal - we had asbestos coming from, as you know, Western Australia, and then you had your overseas ships, I think. The ships that you unloaded, were they, some of them did you understand that the asbestos was on coastal ships, that is, that it came from Australia from one port to another and some of it came from overseas to Australia?--- You knew, you knew by the name of the ship as time - not me first day on the waterfront, but after a couple of years, you know, you would say, here's a coaster, this one at 16 dock, it is a coastal ship, one of Fraser's, you know, or one of so and so's, and different names of ships you knew - you knew they were - Well, is this the position, did you know that some of the ships were bringing asbestos from overseas, some of it -?--- Yes. It was just within Australia?--- Yes, yes."

It is certainly open to conclude from that examination that EP & A Fraser Pty Limited was, of the four stevedoring defendants, the defendant least involved with shipping asbestos handled by Mr Wintle; but that its vessels relevantly plied the coastal trade, carrying CSR asbestos.

Now it is the case that in cross-examination Mr Wintle agreed that many stevedoring companies operated on the Melbourne waterfront in the relevant period and that about half of them, as he recalled it, carried asbestos cargoes. It is also the case that, speaking of William Holyman & Co, a coastal shipper, Mr Wintle said that he did not know if it carried CSR asbestos; and that he "presumed" the coastal trade had cargo of asbestos.[25] It is further the case that he exhibited doubt about the identity of the shipping line which carried asbestos on the coastal trade.[26]

It does not at all follow, however, from Mr Wintle's cross-examination that evidence is not available from which it could be properly be concluded that he handled CSR asbestos in his work; and that his handling of it was in fractional terms compatible with the extent to which CSR asbestos formed a part of asbestos imports through the Port of Melbourne between 1961 and 1967. His evidence that he "presumed" the coastal trade had cargo of asbestos stood in sharp distinction to other evidence which he gave upon that matter; and in context might well be taken to have reference to the role of William Holyman & Co.[27] Further, cross-examination about the identity of the shipping line which mainly carried asbestos in the coastal trade might be thought to say nothing about the identity of a stevedore or stevedores for whom Mr Wintle worked in unloading such cargoes. Again, the evidence shown by Mr Rowell's affidavit to be available concerning the type and extent of asbestos shipped through the Port of Melbourne between 1961 and 1969 and Mr Wintle's examination in chief on the de bene esse examination are in my opinion compatible.[28] It seems to me that there is plenty of room to conclude that evidence is available to sustain the two conclusions which I have expressed[29]. I see no reason, I add, why it should be concluded that an exposure to CSR asbestos of the order of 13.5% of total asbestos exposure in a six year period between 1961 and 1967 was de minimis.

In connection with his first main submission Mr Kaye placed considerable reliance upon an analysis of the opinion provided by Mr Rosalion.

Having summarised in his report Mr Wintle's likely exposure to asbestos dust during the 1960s,[30] Mr Rosalion said this:

"3. As noted in the body of my report, all 3 types of asbestos can lead to mesothelioma. Crocidolite (blue asbestos) is certainly the most toxic and most likely to lead to mesothelioma. Amosite (brown asbestos) is less likely to lead to mesothelioma and chrysotile (white asbestos) on a dose for dose basis, is the least likely to lead to mesothelioma. All 3, however, can lead to the disease and the likelihood of development of mesothelioma rests not only with the type of asbestos, but also the degree and duration of exposure. 4. As noted in my report, mesothelioma can be caused even by light asbestos exposure, but the risk of developing the disease is increased by the extent and duration of the exposure. I would thus agree that the total dose of asbestos fibre of all types of asbestos and from all sources is the most relevant factor in the risk of developing mesothelioma. 5. As noted from the above points, it is my opinion that Mr Wintle's mesothelioma must be attributed to the total exposure of asbestos and that each of the exposures would have contributed to the development of his terminal disease. This includes the exposure to CSR's crocidolite, which as I have stated before is the form of asbestos most likely to cause mesothelioma".

According to Mr Kaye's argument this opinion only justified a conclusion that any exposure which Mr Wintle had to CSR asbestos was a possible cause of his mesothelioma. That was not enough, for the plaintiff had to show the availability of evidence that any such exposure was a probable cause. Mr Kaye sought to meet paragraph numbered 5 in Mr Rosalion's report by contending that it was an unsupported conclusion, dependent upon matters which were expressed only as possibilities in paragraphs numbered 3 and 4.

Mr Kaye referred me to a number of authorities. This case, he submitted, was factually unlike Bonnington Castings Ltd v. Wardlaw,[31] for here available evidence did not support a conclusion that there were two contributing causes. Nicholson and Ors v. Atlas Steel Foundry & Engineering Co. Ltd[32] and McGhee v. National Coal Board[33] proceeded, he argued, from the same starting point as Bonnington Castings, and were thus not in point. Chappel v. Hart[34] he contended, said nothing about resolution of this case. There, causation was established because in fact the plaintiff brought herself within the area of risk by undergoing surgery.

Mr Wilson argued, in response to Mr Kaye's submissions, that it was enough for the plaintiff to show the availability of evidence that Mr Wintle died of preventable industrial disease as a consequence of exposure to a toxic product in the course of his employment. Alternatively, it was sufficient to show the availability of evidence that exposure to CSR asbestos was a possible cause of the mesothelioma. In any event, the material before me, if led at trial, would create a strong prima facie case against CSR on the balance of probabilities. He argued that in any case of inhalation injury one is dealing with possibilities vis-a-vis the role played by a particular breach of duty. He referred in particular to Bonnington Castings, Atlas Foundry, McGhee, Bennett v. Minister of Community Welfare[35] Chappel, Naxakis v. Western General Hospita and Anor l[36] and Jsekarb Pty Ltd v. Plane & Anor[37].

With great respect to the arguments elaborated by counsel, it appears to me that the issue now under consideration is susceptible of simple resolution. The question to be answered, adopting the test which Mr Kaye preferred - Mr Wilson's least favoured alternative - is this: has it been made to appear that there is evidence which, if led at trial, could establish as a matter of probability a connection between exposure to CSR asbestos and the development of Mr Wintle's mesothelioma? To that question the answer is, in my opinion, yes.

There is more than one way of arriving at that answer. Evidence has been shown to be available which, if led at trial, would entitle the following conclusions as matters of probability:

[diamond] Mr Wintle was exposed to dust from CSR asbestos in the period 1961 to 1967 as a significant fraction of the asbestos-containing dust to which he was exposed in that period;

[diamond] CSR asbestos, blue asbestos, is the form of asbestos most likely to cause mesothelioma.[38]

[diamond] There is an absence of evidence that Mr Wintle was exposed to any dust from blue asbestos other than CSR asbestos.[39]

[diamond] Mr Wintle in fact contracted mesothelioma. Although exposure to amosite, or even chrysotile, was a possible cause of Mr Wintle contracting the disease, his exposure to CSR asbestos was the likely cause of his doing so.

[diamond] Alternatively, all types of asbestos fibre are toxic and are capable of leading to mesothelioma. The total dose of asbestos fibre of all sorts of asbestos is the most relevant factor in the risk of developing mesothelioma. Here the risk became the fact. The total exposure to asbestos, including CSR asbestos[40], contributed in fact to the development of the disease.

In considering whether the plaintiff has made it appear that there is evidence which could establish causation as a matter of probability it should be borne in mind that the question is one for determination upon all the evidence shown to be available, not simply the medical evidence. Even if, which in my opinion is not the case, Mr Rosalion's foreshadowed evidence spoke only in terms of possibility, I consider that, in combination with other available evidence, it would support a conclusion as to causation as a matter of probability.

I go to Mr Kaye's second main submission. I may only make an order extending time under s.20(2) if I decide that it is just and reasonable to do so. Mr Kaye submitted that it would not be just and reasonable to do so. His submission focused principally upon the length of the period of delay on the plaintiff's part - 11 years, he said - and upon the extent to which there was likely to be prejudice to CSR having regard to that delay.

Mr Kaye relied upon the judgment of McHugh, J. in Brisbane South Regional Health Authority v. Taylor.[41] He frankly stated that he did not rely upon specific prejudice. He submitted that a point made by McHugh, J. in Brisbane South,[42] that a defendant will not always know what has been lost, was borne out by experience.

Mr Kaye argued that prejudice due to inordinate delay would affect his client both with respect to questions of liability and quantum. He submitted that CSR would not have the ability to cross-examine Mr Wintle although the plaintiff would have his affidavit and examination evidence at her disposal.

Mr Wilson submitted that s.20(2) is cast in different terms to the provision considered by the High Court in Brisbane South. By s.20(3) regard must be had to all the circumstances of the case. That is the guiding principle. Then various matters are set out on an inclusionary basis. One, but only one, of them is actual or likely prejudice to the defendant. It is not the overriding consideration when applying s.20(2). He referred by analogy to authorities concerning s.23A(2)(3) of the Limitations of Actions Act in their present form.

Mr Wilson catalogued a number of matters which in his submission required an exercise of discretion in his client's favour. They were not put precisely as I now summarise them; but this was their import:

(1) The plaintiff has suffered severe, long-term and continuing loss and damage by reason of her husband's death at age 47.[43]

(2) The plaintiff has only been compensated in part for her loss and damage by the accumulation of a small worker's compensation settlement in January 1995, an ex gratia payment of an unknown amount, and the settlements reached with SIFC and Hardie in recent times.

(3) The plaintiff was advised by her then solicitors, following her husband's death, that she did not have a good claim for damages, and that the solicitors would not pursue any common law action on her behalf, but would rather pursue a workers' compensation claim. She was told by her solicitors that this decision followed discussion between her then solicitors and her late husband's union, the Australian Foremen Stevedores Association. Reasonably, she accepted the advice she was given.

(4) The plaintiff was unaware before consulting her present solicitors that between 1990[44] and 2000 a number of waterside workers had made (and settled) claims against CSR in respect of asbestos-related disease allegedly caused by exposure to CSR asbestos whilst working at the Port of Melbourne. At least in the case of all claims settled up to late 1999 the plaintiff's present solicitors had acted for all the claimants, who were probably members of a different union (if union members they were) than that of which Mr Wintle was a member.

(5) The plaintiff acted promptly, by seeking advice from her present solicitors in March 2000, following publicity given to the judgment of the High Court in Crimmins v. Stevedoring Industry Finance Committee.[45]

(6) The proceeding in respect of which the present application is made was issued very soon after the plaintiff first consulted her present solicitors and was then appraised of circumstances, of which she knew nothing, which supported her bringing a claim against CSR and Hardie as well as SIFC.[46]

(7) CSR was put on notice of an application to extend time (albeit under s.23A of the Limitation of Actions Act) by the plaintiff's summons filed 1 September 2000; that is, not long after the proceeding was initiated. Affidavit material passed between the parties in August and September 2000.

(8) According to Mr Rowell's affidavit[47] CSR has been prejudiced by not having the opportunity to cross-examine the late Mr Wintle. But in a claim under Part 3 of the Wrongs Act it cannot be expected that a defendant will have the opportunity of cross-examining the deceased. Here CSR has the positive advantage that Mr Wintle gave affidavit and oral evidence of his exposure to asbestos in his work on the waterfront - with the strengths and weaknesses of that evidence revealed. Mr Wintle's evidence, said Mr Wilson, "really was never going to be any better for (CSR) than it was".[48]

(9) It is of the nature of mesothelioma that the onset of the disease will long post-date relevant exposure. That diminished the potential significance of any delay since 1989. Even had the plaintiff brought her claim in 1989 it would have called for recollection of events and documents brought into existence 20 to 27 years earlier.

(10) CSR has in fact been the subject of claims by a number of former Melbourne waterfront employees since about 1990. It has had reason to search for and retain relevant documents relating to shipments of CSR asbestos through the Port of Melbourne during the 1960s. Mr Rowell's affidavit at paragraphs 13 to 16 suggested that CSR had in fact retained or obtained pertinent documents.

(11) CSR was shown to have been since 1979 the defendant in a good deal of litigation concerning its liability to former employees and others in respect of asbestos-related disease. It had contested a number of trials, some very lengthy. It should be concluded that it was by 1989, and has remained, particularly well-equipped to meet claims of the kind now pursued.

(12) This was not a case - contrast Brisbane South - which depended upon particular personal contact between the plaintiff and the defendant long ago.

(13) CSR, by its concession, took no steps to inform the plaintiff of any potential right of action she might have against it.[49]

(14) CSR was uniquely aware, or was able to be aware, of the circumstances of the deceased and of his potential claim (and, in consequence, the potential claim of the plaintiff) against it. That was because, against the background that claims were being made against it arising out of exposure on the Melbourne waterfront, the decision of the Full Court on Mr Wintle's appeal, in which there was reference to Mr Wintle's assertion that he had, he believed, been exposed to CSR asbestos, was reported.

Consistent with Brisbane South, though the language of s. 20(2) is considerably different from the legislation there under consideration, the plaintiff does carry an onus of showing that the justice of the case requires the exercise of the s. 20(2) discretion in her favour. The reason why such an onus exists is bound up with what have been said to be the rationales of limitation periods and the fact that an extension provision is an exception to the general rule expressed by a limitation provision.

It is, I think, not clear whether in the case of all extension applications a court is to take as a starting point a presumptive prejudice to the defendant by reason simply of the elapse of the limitation period.[50] But it matters not to the resolution of this application whether or not there is that presumption of prejudice.

Next, the law in this State has long been that mere delay, when it is inordinate, may be taken as evidence of prejudice to a defendant; that is, absent any identification of specific prejudice.[51]

Prejudice to a defendant, however, whether it can be presumed simply by reason of the elapse of a limitation period, whether it may be taken to exist by reason of inordinate delay, or whether it is the subject of specific material, is not the only matter which is to be taken into account in considering the exercise of discretion under s. 20(2). The question set up by s. 20(2) is whether it is just and reasonable to extend time; and that involves, by sub-section (3), the court having regard to all the circumstances of the case. This court has often said, consistently with s. 20(2) and (3), that all the circumstances of the case must be considered.[52]

I accept that, after considering all the circumstances, a court might decide in a particular case that because of prejudice inferentially suffered by a defendant by reason of a plaintiff's inordinate delay it would not be just and reasonable to order that time be extended. That was, in substance, what Mr Kaye contended for here.

Notwithstanding the arguments pressed by Mr Wilson, I am prepared to accept that the delay between 1989 and 2002[53] has been a cause of some, undefined prejudice to CSR. But I am positively persuaded that in all the circumstances it is just and reasonable to order that time be extended.

There are a number of aspects to that conclusion. First, the plaintiff's own conduct over the years has been beyond criticism. So far as she knew, reasonably so, for a long period the law stood between her and bringing a damages claim with any prospect of success. When she became aware of an apparent change in the law she acted quickly. Second, the plaintiff's husband died aged 47; and she has not remarried. It is reasonable to infer that she has suffered hardship, notwithstanding that to some degree she has been (for the most part recently) compensated. Third, whatever prejudice to the defendant might be inferred from the fact of the plaintiff's delay, there are a series of circumstances which together suggest its extent should not be considered significant. In that connection I refer to the matters raised by Mr Wilson at paragraph 57, subparagraphs (8) - (13) of these Reasons.

Concerning the third aspect, some of the matters raised by Mr Wilson concerning prejudice to CSR may be developed a little. It is reasonable to think, in light of the history of CSR's long involvement in asbestos litigation, that there would probably be few live issues on trial between the plaintiff and CSR in respect of which there would be room for prejudice to work against the defendant. Assuming that the interlinked issues of exposure and causation were of central importance, the delay could occasion no prejudice to the defendant so far as medical opinion evidence is concerned.

That leaves exposure. In that connection CSR at least has the records which form the basis of paragraphs 13 - 16 of Mr Rowell's affidavit; and it will have Mr Wintle's affidavit and oral evidence with its revealed strengths and weaknesses.

As Mr Wilson submitted, exposure was already an event long past in 1989. Nothing before me suggests that records which might have cast light on Mr Wintle's exposure to asbestos, particularly CSR asbestos, existed in 1989 but do not exist now. CSR, having faced Melbourne waterfront claims since about 1990,[54] was well-placed to so depose if that was the case.

The most likely source of prejudice, in the event, would be the failing recollection of older men; or the disappearance or death of some such person. If there had been a person known to CSR in 1989 whose memory was useful concerning the work done by particular waterfront workers on asbestos-cargo ships in the 1960s, no doubt I would have been told by CSR if he had died, or if his memory had since failed. That takes one to the prospect that in 1989 CSR might have located someone who could speak of Mr Wintle's exposure (or non exposure) to CSR asbestos, but who has since died or whose memory has failed. I do not exclude the possibility that such a person might have been located - albeit that in 1989 the pertinent events were long past. Further, it is a matter of logic that it might now be more difficult to locate such a person, and that if located the person's memory might well be the worse. There is also the prospect that such a person might have died in the interim. That said, those postulates do suggest, having regard to the nature of waterside work in the 1960s as revealed by Mr Wintle's affidavit and oral evidence,[55] and having regard also to the elapse of time by 1989, a prejudice to CSR more apparent than real.

The plaintiff, then, should have an order under s. 20(2). Mr Kaye foreshadowed an application that, if I intended to make such an order, I should extend the period within which an action might be brought to a date some weeks after judgment in order to give his client time to commence contribution proceedings. He volunteered, fairly, that I should not deal with such an application without giving others who might be disadvantaged an opportunity to be heard. In the circumstances I shall delay making any order for a period of about 3 weeks. That will give CSR time to consider whether it wishes to bring any contribution proceedings; and if it does, to put any proposed contributor on notice of its foreshadowed application.

[2] The plaintiff's summons filed 1 September 2000 referred only to s. 23A of the Limitation of Actions Act. Paragraph 3 of the order of Bongiorno J dated 13 November 2001 referred also to s. 20(2) of the Wrongs Act. The parties proceeded before me on the footing that the summons of 1 September 2000 did seek relief under s. 20(2). Perhaps, I was not told, the Summons was at some stage amended.

[3] And foreshadowed litigation which culminated in compromise.

[4] Paragraph 9 of Mr Gordon's first affidavit deposes that the overwhelming majority (if not the only) blue asbestos which was imported through the Port of Melbourne in the relevant period was CSR asbestos. Counsel for CSR objected to receipt of this evidence as evidence of the fact. Mr Gordon's statement, he submitted, could only represent a belief. No basis for the belief was stated. I have treated the objection as well-founded.

[5] The details set out in sub-paragraph (8) - (10) are drawn from paragraphs 13 to 16 of Mr Rowell's affidavit.

[6] See s. 20(2)(a) Wrongs Act and T 163-164.

[7] T.105; see Evans v Repco Transmission Co Pty Ltd [1975] VicRp 14; [1975] VR 150 at 152, cited with approval in Cuthill v State Electricity Commission of Victoria [1981] VicRp 85; [1981] VR 908 at 910-911.

[11] His Honour's Reasons are exhibit PG12 to Mr Gordon's first affidavit.

[14] The plaintiff's summons was dated 1 June 2000. It was filed on 2 June. This is the date in the orders explained.´

[15] In that connection the possible consolidation of this proceeding with the previously consolidated proceeding may have been considered by the parties to be a relevant matter.

[16] Though it would make no difference if I treated it as material indicating that evidence exists to that effect, and can be adduced.

[17] Exhibit 1 to Mr Gordon's third affidavit

[20] See the Reasons of McGarvie J referred to in footnote 11, at 6-7.

[21] Still further formulations are referred to by Phillips J, dissenting in the result, in Cuthill at 959. Again, they must all mean the same thing.

[22] That fraction being, according to the records which inform paragraphs 13-16 of Mr Rowell's affidavit, some 13.5%.

[23] Compare paragraph 2 of his affidavit sworn 23 January 1989, part of exhibit PG 1 to Mr Gordon's first affidavit and paragraph 6 of his affidavit sworn 12 January 1989, also part of that exhibit.

[24] See his examination, exhibit PG 16 to Mr Gordon's first affidavit, at T 31 and T 59.

[28] Mr Wintle's evidence implied that coastal-shipped asbestos from Western Australia represented a recognised but smaller part of the asbestos which he unloaded. That sits comfortably with paragraphs 13-16 of Mr Rowell's affidavit.

[29] To say that is not, of course, to suggest that a conclusion might be drawn that Mr Wintle was exposed to asbestos-containing dust from all or nearly all the asbestos cargo, of whatever type, shipped through the port in the relevant years.

[30] The summary was not based wholly on the affidavit and oral evidence of Mr Wintle. But it was consistent with conclusions which in my view are open upon the material which is disclosed to be available.

[37] High Court of Australia, Special Leave Application, 8 October 1999

[38] Mr Rosalion's report, paragraphs numbered 3 and 5; Mr Rowell's affidavit, paragraph 12

[39] Mr Rowell's affidavit at paragraph 16 does not show that there was any blue asbestos other than CSR asbestos in the non-chrysotile fraction imported through the Port of Melbourne between 1961 and 1967. I do not rely upon the positive assertion made in Mr Gordon's first affidavit, as to which see footnote 4 of these Reasons.

[40] As to which see the first of these points.

[43] He was born on 21 November 1941 and died on 12 May 1989

[44] Or perhaps 1998; see paragraph 36 of Mr Gordon's first affidavit.

[45] [1999] HCA 59; (1999) 200 CLR 1, judgment delivered 10 November 1999

[46] The writ was filed on 6 April 2000, the plaintiff having consulted her solicitors on 15 March 2000

[49] See T5. This was an intended paraphrase of s. 20(3)(c).

[50] A matter which I considered, by reference to Brisbane South, in Reid v Agco Australia Ltd and Ors [2000] VSC 363 at paragraphs 55-63.

[51] Myer Melbourne Ltd v Hammond [1984] VicRp 4; [1984] VR 40 at 49, Ford Motor Company (Aust) Ltd v Kulic [1988] VicRp 20; [1988] VR 152 at 157, Tavsanli v Phillip Morris (Australia) Ltd (Young CJ, 18 September 1989, unreported at 11) , Repco Corporation Ltd v Scardamaglia [1996] VicRp 2; [1996] 1 VR 7 at 13-14.

[52] Kulic at 155, Tavsanli, at 8, Scardamaglia at 11.

[53] In CSR's favour I have ignored, in computing delay, the fact that a summons raising the same general issue was filed on 1 September 2000.

[55] It was central to the resolution of the Full Court appeal.

Limitations of Actions Act 1958

At a glance

Court

Decision date

Before

Source

Judgment (127 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (5)