Borowy v ACI Operations Pty Ltd (No. 1)

[2002] NSWDDT 22

Dust Diseases Tribunal

of New South Wales

CITATION:	Borowy v ACI Operations Pty Ltd (No. 1) [2002] NSWDDT 22
PARTIES:	Margaret Irene Borowy as Executrix of the late Johann Heinz Jorchim Borowy (Plaintiff) ACI Operations Pty Ltd (Originally Australian Glass Manufacturers Company) (First Defendant) Rowley Miller Pty Ltd (Second Defendant) Waterside Services Pty Ltd (Third Defendant) Conaust Ltd (Formerly Irvine & McAtee Pty Ltd) (Fourth Defendant) Sun Alliance and Royal Insurance Australia Ltd (Fifth Defendant) Wallaby Grip Ltd (Formerly Meggitt Overseas Ltd) (Sixth Defendant) Wallaby Grip (BAE) Pty Ltd (In Liquidation) (Seventh Defendant) Blue Star Line (Australia) Pty Ltd (Eighth Defendant)
MATTER NUMBER(S):	36 of 1990; 251 of 2000
JUDGMENT OF:	Johns J at 1
CATCHWORDS:	Proceedings :- Limitation of actions No limitation period for proceedings "in relation to" dust-related conditions including estate and "Compensation to Relatives" claims Dust Diseases Tribunal Act 1989 s 11 s 12A
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989, ss 3, 11, 12A Limitation Act 1969
CASES CITED:	Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388; 21 NSWCCR 133; Griffiths v Kerkemeyer (1977) 139 CLR 161; Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100; 6 NSWCCR 208
DATES OF HEARING:	30 April 2002, 1 May 2002
EX TEMPORE JUDGMENT DATE :	05/01/2002
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr J L Sharpe instructed by Turner Freeman FOR DEFENDANTS: Mr N E Chen instructed by Moray and Agnew for 3rd and 5th Defendants Mr G M Watson instructed by Ebsworth & Ebsworth for 4th Defendant Mr A C Scotting instructed by Acuiti Legal for 6th and 7th Defendants

JUDGMENT:

1

1. The fourth defendant in this matter seeks leave to amend its defence in order to raise a defence pursuant to the provisions of the Limitation Act 1969. The fourth defendant raises this defence in respect of the Estate claim which relates to pecuniary sums sought by the estate in respect to earnings loss, Griffiths v Kerkemeyer (1977) 139 CLR 161 expenses and medical expenses of the deceased between the periods of April 1982 and 23 April 1984.

2. The fifth, sixth and seventh defendants press the defence of the Limitation Act 1969 in respect of both the Estate claim and the claim in respect of the Compensation to Relatives Act. There is significance in the statement by the sixth and seventh defendants, at the beginning of the case, as indicated at page 8 of the transcript of 30 April 2002, that the real issues would be exposure and supply and that the sixth and seventh defendants would not be making any submissions in relation to any other matters. So much was affirmed on page 9 of the transcript that as far as the sixth and seventh defendants were concerned, the real issue was exposure and supply.

3. The issue was not raised by the fourth defendant, until the beginning of the hearing today. Mr Watson did not conceive the nature of the argument, and the submission, until last evening. The submission made is relied upon by the fifth, sixth and seventh defendants. The submission made at the commencement of today's hearing was not raised by the defendants during the running of the case over the previous days nor was it when the matter was listed for hearing.

It is fair to say, however, that in respect of the fourth, sixth and seventh defendants it remained a part of their filed defences.

No cross-examination of any of the witnesses, in particular the plaintiff in the Compensation to Relatives action, was made in respect of any question relating to the Limitation Act.

4. It is said that given the nature of the submission it is unnecessary. It seems to me, therefore, that the parties are relying merely upon the fact that the proceedings had been filed well after the allowed statutory period.

5. The submission as I understand it, for which no authority has been put before me in support of the contention of the parties, is that s 12A of the Dust Diseases Tribunal Act which eliminates the Limitation Act 1969 from matters in respect to dust-related conditions, is to be construed within the confines of the definition of a dust related condition contained in s 3 of the Dust Diseases Tribunal Act.

Section 11 confers jurisdiction, in ancillary proceedings founded upon original proceedings which properly allows for these two causes of action to be brought before the Tribunal. However, the defendants' submission is that the limitation question in s 12A relates to the main cause of action and not in respect of other proceedings brought pursuant to the provisions of s 11.

6. Accordingly, the provisions of s 12A do not apply to the Estate action, or to the Compensation to Relatives actions before me. Therefore the defendants are at liberty, or ought to be at liberty in Mr Watson's case, to raise the defence and rely upon such defence in these courses of action.

7. The leading authority in respect of s 11 of the Dust Diseases Tribunal Act is the case of Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100; 6 NSWCCR 208. In this case it was indicated that the objective of the section sought to be achieved by the Dust Diseases Tribunal Act was that where a person is liable for damages because of his liability for a dust related condition, all aspects of his liability should be determined by one tribunal.

It was said that the legislature no doubt had in mind that under the pre-existing law the person affected by such condition or his legal personal representative might bring multiple litigation in various jurisdictions. The objective of avoiding multiple litigation would, to that extent, have been defeated if claims by relatives, and in particular under the Compensation to Relatives Act, were not to be brought before the Tribunal.

Thus the legislature no doubt saw as a mischief to be avoided the possibility of inconsistent decisions in different courts or tribunals in respect of claims based upon a dust-related condition.

8. Mahony JA in broadly stating the purpose of s 11, (as it then was, in relation to paragraphs (a), (b) and (c)) indicated that the section was to ensure that where a person affected by a dust-related condition, or a person claiming through him, who would have been entitled to bring an action for damages for that condition must bring the proceedings before the Tribunal, and all other proceedings for damages in respect of that condition: Mangion, supra, 20 NSWLR at 109; 6 NSWCCR at 220.

He also reiterated that the purpose of the section was to limit the operation of the restrictions on the jurisdiction imposed by the section in respect of dust-related conditions, and limit them further to cases in which a right of action for damages in respect of the condition, or death from it, was vested in the person affected by the condition, or a person claiming through that person.

9. Thus it was held that s 11 operates in respect of proceedings, not only for the person primarily affected by the condition, or a person claiming through that person, but also a plaintiff in a Compensation to Relatives action.

The restriction applied by s 11(1) in respect of actions arising out of dust-related conditions included Compensation to Relatives actions. Section 11 has since been amended to give legislative clarity to the matters referred to in that judgment.

In that regard s 11(1)(b) and (c) specifies,

11.(1) If -

(a) it is alleged that the dust-related condition was attributable or partly attributable to a breach of a duty owed to the person by another person; and

(b) the person who is or was suffering from the dust-related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death,

(c) proceedings in respect of that dust-related condition or death may be brought before the Tribunal and may not be brought or entertained before any other court or tribunal.

Therefore an action regarding s 11(1)(c) relates to an action by a person who was suffering from a dust-related condition or a person claiming through that person who would, but for the Act, have been entitled to bring an action for the recovery of damages in respect of that dust-related condition or death. Section 11(1)(c) confers these proceedings exclusively upon the Tribunal. It is within these terms that the exclusive jurisdiction in relation to these dust-related conditions has been conferred in respect to dust-related matters.

10. As Samuels AP indicated in Mangion, supra, 20 NSWLR at 105; 6 NSWCCR at 215:

It seems to be a reasonable view of the language used in the context of this Act to regard, for example, a claim by a widow for damages for nervous shock sustained upon the death of her husband from a dust-related condition attributable to his employer's breach of duty as made 'through' the husband, in these sense of in consequence of his dust-related death.
He further indicated that the explanatory note to the bill made clear that s 11 was intended to provide that claims arising out of the death of persons affected by dust-related conditions should be dealt with by the Tribunal.

11. When s 12A was enacted the Parliamentary debates in the Legislative Assembly of 29 October, the following remarks were made concerning what became s 12A.

The existing provisions of the Limitation Act which lay down a basic 3-year limit for claims running from the time an injury is received do not easily fit the reality of gradual onset dust diseases. That Act allows the tribunal the discretion to extend the 3-year and related time limit provisions based on factors such as the claimant's having been aware of the disease or its cause or extent. Mangion supra at 106

12. In recognition of the particular circumstances applicable to dust diseases it is considered appropriate to remove the requirement to establish compliance with technical and arbitrary provisions on time limits for these claims. One might suggest that when the Minister referred to these claims it included all claims pursuant to s 11, that being the jurisdiction of the Tribunal.

13. Moreover in Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388; 21 NSWCCR 133, Mason P considered it a strong argument that s 12A was intended to have a broad and beneficial operation in aid of plaintiffs. Incidentally he said the Tribunal itself was to be spared the toils of contested applications for discretionary extensions of time. The provisions of s 12A(1), are as follows:

The purpose of this section is to enable proceedings to be brought before the tribunal in relation to dust-related conditions at any time.
In subsection (2) it goes on and says:

Nothing in the Limitation Act 1969 or any other statute of limitations operates to prevent the bringing of maintenance of proceedings before the tribunal in relation to dust-related conditions.

14. It seems to me that the submission by the defendants construes too narrowly the provisions of s 12A. To adopt the construction submitted would seem to me to disregard, or not give any legislative intent or power to, the words "relation to". It seems to me that the submission seeks to construe the section as if it were to be read as proceedings to be brought before the Tribunal in dust-related conditions at any time.

15. When one looks at the words "relation to" and seeks to determine their meaning, the Shorter Oxford Dictionary defines the word "relation" as:

The particular way in which one thing is thought of in connection with another; any connection, correspondence, or association, which can be conceived as naturally existing between things. The Shorter Oxford English Dictionary on Historical Principles, Volume II (3rd edition, 1990, Clarendon Press: Oxford) p 1786
It would seem to me that if one were to give the proper construction to the words of the section, a Compensation to Relatives action and an Estate claim would be actions in relation to a dust-related condition. The Compensation to Relatives action is in respect of the death of a person caused by a dust-related condition. The Estate claim is the consequence of a person suffering wrongfully from a dust-related condition who would, in other circumstances, have been entitled to bring an action for a dust-related condition.

16. It seems to me that such a construction provides the consistency that in my view is not only necessary but just in actions brought pursuant to the jurisdiction conferred upon the Tribunal by s 11. Moreover, it is consistent with the decision in Mangion (supra).

To submit, therefore, that s 12A relates merely to the main cause of action seems to me to be far too narrow a construction of s 12A and would, in my view, bring about an inconsistent and an unjust result. Section 12A applies to causes of action arising before or after 1 December 1998 and extends to proceedings pending in the Dust Diseases Tribunal at that date.

17. For those reasons I conclude that s 12A prevents the defendants from relying upon the Limitation Act 1969.

Mr J L Sharpe instructed by Turner Freeman appeared for the Plaintiff

Mr N E Chen instructed by Moray and Agnew appeared for 3rd and 5th Defendants

Mr G M Watson instructed by Ebsworth & Ebsworth appeared for 4th Defendant

Mr A C Scotting instructed by Acuiti Legal appeared for 6th and 7th Defendants