Breed v Alcoa of Australia Ltd T/as Alcoa World Alumina Australia
[2007] WADC 154
•7 SEPTEMBER 2007
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BREED -v- ALCOA OF AUSTRALIA LTD T/as ALCOA WORLD ALUMINA AUSTRALIA [2007] WADC 154
CORAM: GROVES DCJ
HEARD: 1 AUGUST 2007
DELIVERED : 7 SEPTEMBER 2007
FILE NO/S: CIV 1004 of 2003
BETWEEN: ANNA MARGARET BREED
Plaintiff
AND
ALCOA OF AUSTRALIA LTD T/as ALCOA WORLD ALUMINA AUSTRALIA (ACN 004 879 298)
Defendant
Catchwords:
Limitation of actions - Tort - Accrual of cause of action - Plea that action is statute barred
Legislation:
Limitation Act 1935
Result:
Application dismissed
Representation:
Counsel:
Plaintiff: Mr B Nugewela
Defendant: Mr M H Zilko SC
Solicitors:
Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Harman Legal Pty Ltd
Case(s) referred to in judgment(s):
Harding v Lithgow Corporation (1937) 57 CLR 186
Hawkins v Clayton (1988) 164 CLR 539
Nunan v Southern Railway Company [1924] 1 KB 223
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Williams v Mersey Docks and Harbour Board [1905] 1 KB 804
GROVES DCJ: The plaintiff is the widow and personal representative of Peter John Richard Breed (deceased) who died on 19 May 2002.
By writ issued on 6 May 2003 the plaintiff brings action pursuant to the provisions of the Law Reform (Miscellaneous Provisions) Act 1941 and the Fatal Accidents Act 1959 on her own behalf as the lawful widow of the deceased, on behalf of the deceased's estate and on behalf of the deceased's three children.
From 17 July 1978 until 19 May 2002 (the material time) the deceased worked for the defendant as a process operator at the defendant's refinery at Kwinana.
It is alleged that the deceased died of "left maxillary sinus cancer with metastasis (three months)".
It is alleged that during the material time industrial processes at the refinery resulted in an emission into the atmosphere of harmful materials including, inter alia, volatile organic compounds, dusts and aerosols, and ironising radiation which either individually or in combination caused the deceased's cancer.
By its Re‑amended Defence the defendant pleads inter alia:
"35Further, or alternatively the alleged cause of action did not accrue within 6 years before this action and is barred by s 38 of the Limitation Act 1935."
The plaintiff makes application that this paragraph of the Re‑amended Defence be struck out on the ground that it does not disclose a valid or meritorious cause of defence.
In grounds in support of the application the plaintiff says:
"(i)Paragraph 35 … does not disclose a valid or meritorious cause of defence in that it incorrectly pleads that the alleged cause of action did not accrue within 6 years before the within action was commenced and is accordingly statute barred pursuant to s 38 of the Limitation Act 1935.
(ii)It is trite law that in the case of the development of a latent illness or disease resulting in death (in this case oral cancer), and in circumstances where it is medically impossible to ascertain precisely upon what date the deceased … first contracted the fatal disease or illness, the cause of action for the purposes of compliance with the Limitation Act 1935 only accrues from the date of death, which in the within action was 19 May 2002.
(iii)Accordingly, the applicable 6 year statute of limitation period commences to run from this date and no other date, and as a writ of summons was filed in May 2003, the within action was commenced well within the applicable 6 year limitation period and is not statute barred.
(iv)Accordingly, par 35 … discloses no valid or meritorious cause of defence whatsoever, it is vexatious, frivolous and embarrassing and the entire offending paragraph should be struck out from the re‑amended defence."
Limitation periods and the Fatal Accidents Act 1959
Section 4 of the Fatal Accidents Act 1959 (as it relates to the current proceedings) provides that:
"Where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to a crime."
The Fatal Accidents Act 1959 was amended by the Limitation Legislation Amendment and Repeal Act 2005 on 15 November 2005. Nevertheless, s 4 as it was immediately before the commencement day, continues to apply to causes of action that accrued before the commencement day (Limitation Legislation Amendment and Repeal Act 2005, s 13(2)).Thus s 4 as it was prior to amendment applies to this action which was commenced by writ dated 6 May 2003.
Section 7 of the Fatal Accidents Act 1959 (as it relates to current proceedings) provides a limitation period of 12 months from the date of death subject to the possibility of an extension at the discretion of the Court to six years. Thus, the plaintiff's action has been brought within that limitation period of 12 months.
However, the availability of a claim is dependent upon the deceased having been able to sue the defendant had he survived. It is a prerequisite for an action by or on behalf of the dependants of the deceased that the deceased could have successfully maintained an action against the defendant. Simply stated, if the limitation period had fully run against the deceased before his death, the cause of action of his dependants is statute barred. This has been the law for over 100 years: Williams v Mersey Docks and Harbour Board [1905] 1 KB 804; Nunan v Southern Railway Company [1924] 1 KB 223 at 228 per Scrutton LJ; Harding v Lithgow Corporation (1937) 57 CLR 186 at 198 per McTiernan J.
Against that background the question then is when did the deceased's alleged injury or damage resulting in his cancer occur? It would be from that point in time from which time begins to run for the purposes of s 38 of the Limitation Act 1935. That section provides that action must be commenced within six years from the date when the cause of action accrued. When the cause of action accrued is a question of fact which in the particular circumstances of this case will have to be determined upon such expert evidence as may be called.
Limitation periods and negligence
A cause of action in negligence is complete when the damage caused by the breach of duty is sustained. It is at that time that, in the ordinary case, the cause of action "first accrues" for the purposes of s 38 of the Limitation Act.
In certain circumstances however such as the onset of a slow developing disease (also referred to as latent injury) the potential plaintiff will not necessarily be aware, at the time the loss or damage occurs, that loss or damage has been suffered. This problem of latent injury and limitation periods was raised in the Report on Limitation and Notice of Actions by the Law Reform Commission of Western Australia in January 1997. The report noted:
"5.2The problem of latent injury first caused concern in personal injury cases, particularly those involving diseases such as pneumoconiosis in its various forms including silicosis and asbestosis and mesothelioma which have a long latency period. It may be 30 years or more before people who have contracted asbestosis or mesothelioma become aware that they have the disease. The shortcomings of the traditional Limitation Act with its fixed limitation periods running from the accrual of the cause of action became apparent as a result of the decision of the House of Lords in England in Cartledge v E Jopling & Sons Ltd [1963] AC 758. In this case the plaintiffs claimed damages from their employer for pneumoconiosis contracted through inhalation of silicate dust between 1939 and 1950. The proceedings were commenced in 1956 and alleged negligence and breach of statutory duty. It was held that the limitation period began to run when damage was first suffered, even though it did not become discoverable until much later, after the limitation period had expired, with the result that there was never any point in time at which the plaintiff could make an effective claim."
This statement still represents the common law; Hawkins v Clayton (1988) 164 CLR 539 at 560‑561, 587‑588; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 540, 554‑555.
In Western Australia the only provision in the Limitation Act under which ordinary limitation periods running from accrual can be extended is where a person is suffering from "a latent injury that is attributable to the inhalation of asbestos". (Limitation Act 1935 s 38A). It is worthy of note in passing that the LRC when asked to make proposals for the reform of the Limitation Act as it applied to disease and injury in its report to Government in October 1982 recommended that in personal injury actions the limitation period should not apply where a court determined that it was just that it should not apply. The LRC did not confine its recommendations to latent disease and injury, although it was clear that it would be in such cases that the suggested provisions would have their main application. The LRC's recommendation was not implemented. Instead the Limitation Act was amended only in relation to asbestos related diseases. Again, that remains the situation today. It is a matter of regret that Western Australia has for years lagged behind most jurisdictions in failing to enact extension provisions to the present limitation restrictions.
The law sometimes works an injustice and that will continue to be the case until Parliament amends the law. Whether or not it works an injustice in this case is, of course, not for me to consider on this application.
The principles applied to the present case
The defendant in its outline of submissions has indicated that expert evidence will be led at trial by the defendant to address the limitation issues. It is said that
"… there is ample scientific evidence to demonstrate the proposition that there is often a long period of latency between low level exposure to carcinogens, which may cause damage to the person concerned, and the overt development of a fatal tumour."
Written materials to this effect were annexed to the affidavit of the defendant's solicitor in opposing the application.
Ultimately the question of what harmful materials if any allegedly caused damage resulting in cancer to the deceased and when that occurred will be a matter for expert evidence to be led at trial. Accordingly, it is undesirable to decide this limitation point in interlocutory proceedings. In this regard see Wardley Australia Ltd v State of Western Australia (supra) at 533 per Mason CJ, Dawson, Gaudron and McHugh JJ where it was said:
"We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question."
Conclusion
The issue so far as the limitation point is clear. So far as the issues raised by the plaintiff by way of both written and oral submissions are concerned they are without foundation. No authorities were cited which contradict or even question the principles of long standing to which reference has been made. Contrary to the plaintiff's assertion in the second ground of its application it is not "trite law" that for compliance with the Limitation Act 1935 time "… only accrues from the date of death …". That assertion is, in the circumstances of this case, clearly contradicted by the law.
The pleading of s 38 of the Limitation Act 1935 by the defendant does not require further articulation. Plaintiff's counsel clearly understands what is pleaded and no "… proper material facts …" are necessary. Nor is the pleading embarrassing.
The plaintiff's application is dismissed.
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