Ansett Australia Limited v Carter

[2001] HCATrans 215

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B66 of 2000

B e t w e e n -

ANSETT AUSTRALIA LIMITED

Applicant

and

DEBORAH ELIZABETH CARTER

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 27 JUNE, 2001, AT 11.07 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC:   If the Court please, I appear with my learned friend, MR L.F. KELLY, of counsel, for the applicant.  (instructed by Clayton Utz)

MR M. GRANT‑TAYLOR, SC:   If it please the Court, I appear with my learned friend, MR P.J. GOODWIN, of counsel, for the respondent.  (instructed by Hall Payne)

MR KEANE:   Your Honours, the granting of an extension of time to bring proceedings for damages for personal injuries after the expiration of the limitation period depends in Queensland, as in other States, on the state of knowledge of the applicant of facts material to the cause of action.  In many cases a party’s knowledge of facts material to the elements of negligence, causation and damage will depend on expert opinion.

McHUGH J:   Those propositions need some qualification in respect of the material facts of a decisive character, do they not, and is that not the crux of this case, that 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 have regarded those facts as showing a reasonable cause of action.

MR KEANE:   A reasonable cause of action or a worthwhile cause of action.

McHUGH J:   Yes.

MR KEANE:   That is true, your Honour.

McHUGH J:   Is that not the problem in this matter.

MR KEANE:   That is the exercise one performs after one has identified whether a person knows the facts and one of our complaints about the judgment is that the judgment has glossed that question of principle as it has also glossed the facts rather strongly, in our submission.  Your Honours, we say that because, in this case, it is absolutely clear beyond peradventure that prior to the expiration of the applicable period of limitation the present respondent knew that she had suffered an injury in the course of her employment by reason of exposure to fumes on the job.

McHUGH J:   You point, I know, to Dr Terry’s evidence, who said that her claim is irrefutable and she lodged a claim for workers’ compensation in December 1995 but the fact is that after her claim was rejected by that body, she then finds out this new information which was of a very different character.  I mean, as at 17 November 1997 – the accident was when?

MR KEANE:   18 November 1994.

McHUGH J:   Well, her claim was rejected on 17 November 1997.  As at that date any reasonable person would have regarded her as not having a proper cause of action, would they?

MR KEANE:   Well, with respect, your Honour, can one test that firstly by looking at what the respondent actually said and what was plainly her position until the day that the limitation period expired.  Your Honour sees that at page 3 of the book in paragraph [8].  This is the statement put to the Tribunal on 10 November 1997.  Can we invite your Honours to read that, in particular paragraph 2, paragraph 3:

In consequence of my exposure I suffered –

these symptoms.  Paragraph 4:

In Dr Swaine’s view ‘there is no doubt that her condition resulted from exposure to noxious fumes in the course of her employment.

Paragraph 6 - paragraph 8:

It is not possible for me to produce evidence to the Tribunal of the analysis of the fumes, it is unfair for the Tribunal to request that I do so.  I am aware of other exposure claims being dealt with by the Tribunal and understand that each case must be dealt with on its own merits.

9.  I have read the report of Dr Carroll dated 21 April, 1995.  I reject the conclusions of Dr Carroll and will address the Tribunal on Dr Carroll’s report.

HAYNE J:   Which shows the depth of her subjective belief.

MR KEANE:   Quite.

HAYNE J:   Does it show more than that?

MR KEANE:   A steady preponderance of belief reasonably based on the basis of reports from several doctors and her own experience and acted on by her in a solemn way.  The other thing we should say about this – when we say “in a solemn way” we mean acted upon by her by proffering it to the Tribunal.  May we say as well, your Honours, that it should be clearly understood that at no stage did the applicant seek to suggest that this document did not reflect her genuine steadily‑held belief right up to the day that the application was refused when her limitation period expired.

McHUGH J:   Yes, I know, but what section 31 of the Act permits is for an applicant to apply for an extension of time when:

a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant –

so that forces you to look at what is meant by “a material fact of a decisive character” and section 30 defines that as facts that:

if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as –

knowing, so it is an objective and impersonal test and surely she can point to the fact that in this particular case that a reasonable person prior to 1999 would not have thought she had a worthwhile cause of action.

MR KEANE:   Your Honour, can we take your Honour back to the provisions of the Act.  Your Honour says what is critical is “a material fact of a decisive character”.  That is the second question.  The first question is whether there is a fact that is not within her knowledge, a material fact that is not within her knowledge, if you like.

McHUGH J:   No.  Does it not have to be “a material fact of a decisive character”?

MR KEANE:   Two hurdles, your Honour, and if we could take your Honour to our bundle, to tab 3 where the statute is set out.  In the interpretation provision, section 30(1), your Honours will see that in section 30(1)(c) the first question is that what is defined is a fact being “within the means of knowledge”.  The fact must be material.  It must be “a decisive fact of material character”, but it must be “within the means of knowledge”.  As to whether it is “within the means of knowledge”:

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 –

so what it requires, first of all, is knowledge of the fact; then one goes to the exercise of characterising whether it is “a material fact of a decisive character”.  We lost this case before the Court of Appeal because they conflated the two questions and glossed the plaintiff’s evidence in an unacceptable way.

McHUGH J:   But accepting that for the purpose of 30(1)(c), if all the facts that you refer to in that affidavit are the relevant facts, the question then becomes whether or not they are material facts of a decisive character, and that brings in an objective assessment of them.

MR KEANE:   Now, your Honour, taking the position to be this, that she knew, that she did these facts, that her statement shows – her statement uncontradicted shows that she knew that she was injured in the course of her employment, that the cause of the injury was exposure to toxic fumes and that her present complaints result from that injury, so as to regard those facts – just pausing there; on that basis, reasonable advice would have been that she had a worthwhile cause of action.

McHUGH J:   Well, maybe, maybe not, but the courts below took a different view.  It is just a question of facts.

MR KEANE:   Your Honour, when one looks at the test as formulated by Justice Deane in the Do Como v Ford 154 CLR – it is one of the cases we have given your Honours - we will just read to your Honours the passage from page 251:

Thus, if any one of facts A, B or C would with other facts within the means of knowledge of the applicant, satisfy the requirement of “the material facts of a decisive character”, it will not suffice, for the purpose of s 58 –

that is of the New South Wales Act –

that the applicant was unaware of fact A while being aware that he had a worthwhile cause of action in that he was aware of both facts B and C.  In such a case, the applicant will only be, for the purposes of s 58, unaware of “any” of the material facts of a decisive character if he was unaware of facts A, B and C, that is to say, if the facts which were within his means of knowledge were not, of themselves, such as to constitute material facts of a decisive character.

McHUGH J:   Well, that is the point, that the courts below, rightly or wrongly, took the view that these were not material facts of a decisive character.

MR KEANE:   With respect, your Honour, if one goes to the reasons, one sees that their focus – this is at page 29 of the application book at about line 31:

It was submitted for the applicant that therefore the respondent, by 10 November 1997, knew that her injuries had been caused by her exposure to noxious fumes in the course of her employment.  However that submission mistakes both the nature of that statement and the nature of the inquiry which s 31(2)(a) of the Act requires.

As to the first, your Honours see what their Honours do with that.  They, in our respectful submission, fritter away what the plaintiff plainly established by her signed statement by the comment at line 45:

Plainly the statement does not purport to be an expression by her of her actual state of knowledge of the connection between the ingestion of fumes by her and her symptoms.

That is plainly wrong and what she said in her signed statement was not in any way contradicted by her.  As to the second, the more apparently highly‑qualified opinion available to the respondent was that the long‑term symptoms of which she complained could not have been caused by the ingestion of fumes.  What the submissions to the Senate inquiry revealed – this is the thing that happened later – was that such ingestion could cause and had in many other cases throughout the world caused those precise symptoms.  That was the material fact of a decisive character which made the difference between her having and not having a worthwhile cause of action.

McHUGH J:   That is the point they make, is it not?  They may be right or wrong about that.

MR KEANE:   Your Honour, it is the next question, with respect:

The facts within her knowledge or means of knowledge did not, before then, justify the bringing of an action because the apparently better opinion was that there was no such causation.

Now, your Honour, this notion that she did not have knowledge or the means of knowledge of the fact of the causal connection before then – and that is plainly what their Honours are dealing with here.  They are running these two issues together.  They are running the issue of means of knowledge together with the other and they are saying she did not know it because there was an apparently better opinion.

Now, that proposition of fact is one which the plaintiff did never contend for.  There was not even the faintest suggestion that she was even confused as to whether Dr Carroll’s opinion was right or not.  On the only evidence in the case the plaintiff had a steady preponderant belief, which, in our submission, is equivalent to knowledge, that she had been injured in the course of her employment, that the cause of that injury was an exposure to toxic fumes and that her present complaints flowed from that.

McHUGH J:   Yes, I know, but even if the point you make is a good point, there is no special leave point in this, Mr Keane.  It just means they got it wrong on the facts.

MR KEANE:   Your Honour, they got it wrong in a way which, in our respectful submission, looking at the reasoning in paragraph [15] does involve going a very long way, a very long way indeed, to get away from the actual evidence in the case.  So in terms of the administration of justice, we submit that they have got in wrong and only in a way that emerged from the court itself and only this Court can correct.

The second thing we would say is this question of when there is knowledge, not so much the question about what the phrase “material fact of a decisive character” means, because that is phraseology which is now peculiar to Queensland and New South Wales in respect of actions where the cause of action accrued before 1990, but in relation to all the other States and the ACT and Queensland and New South Wales it is still relevant to determine when an applicant for an extension knew of a fact.

It is our respectful submission that one’s knowledge of a fact, as opposed to its significance in the scheme of things, is the first and critical step on the way to an extension.  This is a question which is common throughout the Commonwealth ‑ ‑ ‑

McHUGH J:   Yes, I know, but it is by no means clear to me that they were making the distinction that you seek to make and it is certainly arguable and it may be that your view is the better view, but it is far from clear that that is the case to me.

MR KEANE:   Your Honour, if we could try to put it another way and we will not keep harping at your Honours, bearing in mind what your Honour said before, but we submit the special leave point is that when one speaks of knowledge, as opposed to what people with advice might make of it, which is whether it is of a decisive character, but when one is speaking of knowledge of a fact, the court cannot ignore what a person actually says she knows to look at what a hypothetical reasonable person might regard as being correct.

We make the point as well that in this context, the context of an application for an extension of time in which to bring an action, knowledge of a fact can never be the same as the knowledge one has which is established after a trial and there are issue estoppels.  It is, in our respectful submission, contrary to the policy of the limitations statutes, the statutes of peace, that applicants for extensions can abide their time to see if their case is getting stronger.  Those are our submissions, if your Honours please.

McHUGH J:   Yes.  We need not hear you, Mr Grant‑Taylor.

This application raises no point of principle.  It concerns the application of accepted principles to the particular facts of the case, and upon those facts it has insufficient prospects of success.  Accordingly, special leave to appeal is refused.

Do you make an application?

MR GRANT‑TAYLOR:   We do, your Honour.

McHUGH J:   Yes.  The application is refused with costs.

AT 11.21 AM THE MATTER WAS CONCLUDED