Amaca Pty Ltd v BHP Iron Ore Pty Ltd
[2002] NSWDDT 7
•05/23/2002
Dust Diseases Tribunal
of New South Wales
CITATION: Amaca Pty Ltd v BHP Iron Ore Pty Ltd [2002] NSWDDT 7 PARTIES: Amaca Pty Ltd
BHP Iron Ore Pty LtdMATTER NUMBER(S): 80 of 2001 JUDGMENT OF: Curtis J at 1 CATCHWORDS: Miscellaneous Matters :- Contribution LEGISLATION CITED: S 5 Law Reform ( Miscellaneous Provisions) Act 1946 NSW CASES CITED: DATES OF HEARING: 10 May 2002 DATE OF JUDGMENT:
05/23/2002LEGAL REPRESENTATIVES:
Mr T G R Parker instructed by Holman Webb appeared for the cross claimant
Mr T Rowles instructed by Sparke Helmore appeared for the cross defendant
JUDGMENT:
1. A plaintiff, Thomas Hyde Fletcher, on 2 March 2001, issued a statement of claim in this Tribunal claiming damages from Amaca Pty Ltd, (Amaca), in respect of his disease of mesothelioma said to be contracted through exposure to the defendant’s products whilst employed by Mt Newman Mining Company Pty Ltd between 1969 and 1979.
2. On 4 April 2001 Amaca issued a cross-claim against BHP Iron Ore Pty Ltd, (BHP), the present corporate identity of Mt Newman Mining Pty Ltd, claiming contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act (1946) NSW, or in the alternative s 7 of the Law Reform Contributory Negligence and Tort Feasor Contribution Act 1947 (WA).
3. On 12 July 2001 the plaintiff settled his claim against Amaca. Amaca consented to a judgment in favour of the plaintiff in the sum of $650,000.
4. Before the issue of the cross-claim the plaintiff had taken no steps to satisfy the constraints upon his seeking damages against his former employer Mt Newman Mining Pty Ltd imposed by Division 2 of the Workers Compensation and Rehabilitation Act 1981 (WA), s 93E(3) of which provided as follows:
- 93E(3) [damages]. Damages can only be awarded if -
(a) it is agreed or determined that the degree of disability is not less than 30 per cent and that agreement or determination is recorded in accordance with the regulations; or
(b) the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.
5. It is common ground that the worker did suffer from mesothelioma and is now dead. I assume for present purposes that his death resulted from his disease.
6. BHP now moves the Tribunal pursuant to Pt 13 r 5 of the Supreme Court Rules for an order that the cross-claim be struck out as hopeless because at the time the cross-claim issued, BHP was not a tort feasor who would if sued by the plaintiff have been liable for the same damage.
7. Relying on Baldry v Jackson (1976) 1 NSWLR, BHP asserts that the cross-claimant must establish that all necessary ingredients of the cross-claim existed at the date of issue including a presently enforceable cause of action by the plaintiff against the cross-defendant pursuant to which the cross-defendant would be held liable to the plaintiff in damages.
8. Baldry v Jackson is authority for the proposition that "the cause of action in respect of which a litigant approaches the court of justice must be complete at the time when he issues his process" (per Lord Hanworth MR in Re Keystone Knitting Mills Trademark). S 78 of the Supreme Court Act constitutes the sole exception to the rule permitting cross-claims for contribution to be made before the determination of the cross-claimant's liability to the plaintiff although that liability be then inchoate. (Andrews v Nominal Defendant (1963) NSWLR 359). It is BHP's contention that because it was not liable to be sued by the plaintiff at the time the cross claim issued the cross claim by Amaca must fail.
9. In answer to this contention Amaca submits that, in the words of Windeyer J in Brambles Constructions Pty Ltd v Helmers (1965-66) 114 CLR 213 at 221:
- The description, a tort feasor who if sued would have been liable, denotes any person who would have been held liable in tort had he been sued in a competent Court, by proper process, at a proper time and on evidence properly presented - that is anyone whose liability as a tort feasor could have been ascertained in an action....it is enough that there was a time, before the liability of the defendant tort feasor was actually ascertained, at which the plaintiff (the victim of the tort) could have successfully brought an action against some other person (the third party) either independently of or jointly with the defendant.
10. In the present case, the submission continues, a question for trial on the cross-claim is whether, before the issue of the cross-claim, the plaintiff, had he been so minded, may have brought himself within the procedural requirements of s 93E(3) of the Workers Compensation and Rehabilitation Act 1981 (WA) and so have been entitled to an award of damages. This is a question of fact. It is not accurate, the submission continues, to assert that at no time before his death did the plaintiff have no cause of action - rather he may have had a cause of action the enforcement of which was suspended pending compliance with Div 2. The words of s 93E(3)(b) support this reading by use of the expression, ". . .retain the right to seek damages".
11. The submissions of Amaca do have some substance. In considering the application of the rule in Baldry v Jackson it is important to identify the cause of action to which it is said to apply. We are here concerned with two causes of action. First, the plaintiff's putative common law action against BHP and secondly, the statutory cause of action conferred on Amaca by the contribution statute.
12. The rule in Baldry v Jackson requires that the ingredients of the statutory cause of action exist at the time the cross claim issued. Brambles Constructions v Helmers is authority for the proposition that the contribution statute does not require that the putative liability of the cross defendant to the plaintiff exist at the time the cross claim issues, provided, as on the facts of that case, it existed, had proper processes been followed, at some time before the liability of the cross claimant was established.
13. Amaca's argument however is defeated by the provisions of s 93F(4) of the Workers Compensation and Rehabilitation Act 1981 (WA) in the following terms:
- 93F(4)[not liable for contribution] If -
(a) S 93E(3) does not allow damages to be awarded in respect of the disability; or
(b) damages in respect of the disability have been awarded in accordance with (1) - [here irrelevant]
the employer is not liable to make any contribution under the Law Reform Contributory Negligence and Tort Feasors Contribution Act 1947 in respect of damages awarded against another person in relation to the disability.
14. Amaca, however, in the alternative, relies upon s 93B(3)(a) of the Act which provides as follows;
- 93B(3)(a)[ death of a worker ]. This division does not apply to the awarding of damages if the disability results in the death of the worker.
15. S 4 of the Law Reform Miscellaneous Provisions Act (1941) (WA) provides that the plaintiff’s action against BHP would, had he not already sued the cross-claimant, have survived against the cross-defendant, notwithstanding the plaintiff’s death. Amaca argues that such an action was not subject to the procedural limitations of Div 2 of the Workers Compensation and Rehabilitation Act 1981 and that neither s 93E(3) nor s 93F(4) apply to limit the liability of employers to contribution in cases where s 93B(3)(a) applies. A triable issue on the present cross-claim is whether the death of the plaintiff resulted from his disabilities.
16. In response BHP points out that Brambles Constructions v Helmers (supra) does not directly support these contentions because that case concerned a plaintiff who, having had a viable cause of action against the cross-defendant, lost it by force of the Limitation Act. That is, the putative liability of the cross-defendant existed before the liability of the cross-claimant was ascertained. In the present case, the putative liability has arisen after the liability of the cross-claimant to the plaintiff has been ascertained; s 93F(4) of the Workers Compensation and Rehabilitation Act 1981 (WA) barred a statutory action for contribution pursuant to s 7 of the Law Reform Contributory Negligence and Tortfeasor Contribution Act 1947 (WA) at the time the cross claim by Amaca issued and the rule in Baldry v Jackson renders the present cross claim a nullity.
17. The construction advanced by Amaca does however avoid an anomalous operation of the Workers' Compensation and Rehabilitation Act 1981 pursuant to which, if a plaintiff not complying with s 93E(3) of the Act sues a joint tort feasor who was not an employer, the right to contribution from the employer is lost but if he dies from his injuries before suit and his estate brings the surviving action the right to contribution is maintained.
18. As Hodgson J pointed out in Servcorp (Aust) Pty Ltd v Abgarus Pty Ltd (1995) 38 NSWLR 281, the rule in Baldry v Jackson involves doubtful distinctions between causes of actions and remedies and may easily be circumvented by the grant of leave to issue further proceedings returnable immediately. I have not been addressed upon whether such a course is available in this case.
19. Anomalies created by contribution legislation have for a long time been the subject of judicial adversion. The solution to the present conundrum is a matter in respect of which reasonable minds may differ. The marginal utility to the cross-defendant in preventing the trial of the cross-claim in substance is to my mind outweighed by the convenience of presenting an appellate court with final orders upon the merits of the action.
20. Further complications exist. At the trial Amaca wishes to rely upon an assertion that while a Western Australian employer may not be liable pursuant to the Western Australian contribution statute it may be liable pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) which is not modified by s 93E(3) of the Workers Compensation and Rehabilitation Act 1981 (WA), or pursuant to common law principles of unjust enrichment. Relying upon Wickstead v Brown (1991) 30 NSWLR 1, Amaca submits that because these complex legal issues are arguable the matter ought not be disposed of upon a summary basis. While I have reservations as to the merits of the arguments I agree that in all the circumstances the cross claim should not be struck out.
21. Orders on the motion are refused. I will hear the parties on costs.
Mr T G R Parker instructed by Holman Webb appeared for the cross-claimant
Mr T Rowles instructed by Sparke Helmore appeared for the cross-defendant
0
3
1