Breed v Alcoa of Australia Ltd T/as Alcoa World Alumina Australia [No 2] - [2011] WADC 169

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BREED -v- ALCOA OF AUSTRALIA LTD T/as ALCOA WORLD ALUMINA AUSTRALIA [No 2] [2011] WADC 169

CORAM: REGISTRAR KINGSLEY

HEARD: 1 JULY 2011

DELIVERED : 12 OCTOBER 2011

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:

Practice - Application for stay of proceedings - Concurrent proceedings in WorkCover

Legislation:

Nil

Result:

Application refused

Representation:

Counsel:

Plaintiff: Mr B Nugewela
Defendant: Mr A Harman

Solicitors:

Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Harman Legal Pty Ltd

Case(s) referred to in judgment(s):

Chappel v Hart [1998] HCA 55
March v E and MH Stramare Pty Ltd (1991) 171 CLR 506
Ordynski v Bunnings [2008] WACC C16-2008

REGISTRAR KINGSLEY: The plaintiff is the widow of Peter John Richard Breed (the deceased) who died on 19 May 2002. From July 1978 until 19 May 2002 the deceased worked for Alcoa as a process operator at the Kwinana refinery. The plaintiff alleges that the deceased died of 'left maxillary sinus cancer with metastasis'. The plaintiff's allegation is that between July 1978 until 19 May 2002 the industrial processes at the refinery resulted in emission into the atmosphere of harmful material including, amongst other things, volatile organic compound dusts and aerosols and ionizing radiation which either individually or in combination caused the deceased's cancer.
The writ was issued in May 2003 and the action has proceeded at a leisurely pace. There have been a number of summonses for directions. In February 2006 there were amendments to the statement of claim and in March 2007 the plaintiff brought an application seeking to strikeout par 35 of the defendant's re‑amended defence dated 29 September 2006. That application was dismissed in September 2007.
In May 2011 the plaintiff brought an application that the action be stayed pending a determination of WorkCover applications SD 796/08 and SD 1449/09 between the plaintiff and the defendant. That application is supported by the affidavit of Kevin Hsien Ming Wong sworn 8 June 2011. Wong deposes that the proceedings were commenced in May 2003 just before the expiry of the limitation period under the Fatal Accidents Act 1959 as it then applied.
A significant issue in the proceedings is whether the workplace exposure to various carcinogens materially contributed to the cancer that the deceased suffered. The plaintiff has commissioned a scientific expert who has undertaken a study of the documentation discovered by the defendant. The expert has produced a report supporting a causal connection between the workplace exposure and the various carcinogens.
Wong goes on to depose that the WorkCover proceedings SD 796/08 are directed solely to the causation issue and were commenced in July 2008. Due to a technical issue raised by Alcoa in the WorkCover proceedings the plaintiff was required to file alternative proceedings namely SD 1449/2009.
At a directions hearing on 19 May 2011 at WorkCover Arbitrator Spivey determined that the matter proceed to an arbitration hearing without a medical assessment panel determination first being made. That arbitration hearing is listed in December 2011.
The statutory objectives for all matters in the Dispute Resolution Directorate is that a dispute be determined in the manner that is 'fair, just, economical, informal and quick' and timely (s 3D and s 279(1)(c)). Once a matter is before an arbitrator there is a power to refer the matter to a medical assessment panel. However before that assessment occurs the arbitrator must assess the evidence and the parties submissions and form a view, on the merits, whether one medical opinion should be preferred over the other (Ordynski v Bunnings [2008] WACC C16-2008). Ordynski is also authority for the proposition that the arbitrator's function is to identify and weigh up relevant factors with a view to deciding upon the preferable method of resolving the dispute in keeping with the objectives of the Act.
It is the case of the plaintiff in this application that the issue of causation arising from the statement of claim is the same issue of causation that is in the WorkCover proceedings. Further in the WorkCover proceedings, pursuant to s 44 of the Act, there is a reversal of the onus of proof. For the purpose of the WorkCover proceedings, where there is an industrial process and a worker suffers a cancer, then it is deemed that the cancer arises from the industrial process unless the employer proves otherwise. It is plaintiff's counsel's argument that the ultimate fact to be determined in the District Court proceedings is the same as that ultimate fact to be determined in WorkCover.
Thus as the statutory objectives in WorkCover are for a quick efficient and timely proceeding and as the Act is a beneficial Act for the worker the plaintiff should be able to take advantage of that and the reversal of onus of proof, and have the issue of causation determined in the Directorate.
It is the defendant's counsel submissions that the causation issue has a different test in the Directorate to that at common law.
In my opinion the issue of causation is different. At WorkCover the issue is whether the injury arose out of the work environment. For the benefit of the worker there is a deemed provision: if there was an industrial process and a worker suffers cancer, then the causative link is deemed and it is for the employer to prove otherwise.
At common law the 'but for' test has been specifically rejected as the exclusive test of causation (March v E and MH Stramare Pty Ltd (1991) 171 CLR 506). As a result the High Court has refused to regard the concept of remoteness of damage as the appropriate mechanism for determining the extent to which policy decisions should limit the consequences of causation. Value judgments, as well as experience of the constant conjunction or regular sequences of pairs of events are regarded as central to the common law's concept of causation (Chappel v Hart [1998] HCA 55). Thus the mere fact that injury would not have occurred but for the defendant's act or omission is often not enough to establish causation for legal purposes at common law. Further before a defendant will be held responsible for the plaintiff's injury, the plaintiff must prove the defendant's conduct materially contributed to the plaintiff suffering that injury (March (514)).
Thus the field of inquiry is much broader at common law than that required under the Act. The fact that a causative link may be established under the Act, for the purposes of the Act, does not mean the plaintiff no longer has to establish causation at common law according to the tests set out in March and Chappel.
Plaintiff's counsel submits that a determination in the plaintiff's favour in the Directorate will create an estoppel. Plaintiff's counsel argues that issue estoppel is not concerned about process only about outcome. Thus given the context of causation at the Directorate is the same as in common law, plaintiff's counsel submits this will create a binding estoppel on a District Court judge.
However, in my opinion, the context of causation is not the same in both jurisdictions. Once the context of causation is shown not to be the same then no issue estoppel can arise.
Plaintiff's counsel argues there would be significant expense incurred by the plaintiff and defendant in commissioning expert reports on the question of causation. But as, in my opinion, the questions of causation are different, that expense will have to be incurred.
In opposing the plaintiff's application for a stay the defendant's counsel raised issues of case management principles and delays. In my opinion it is unnecessary to delve too deeply into these issues. Whilst the defendant's counsel raised issues of abuse of process because of the plaintiff's delay, in reality the defendant's counsel is seeking the action be more closely cased managed by the court.
Finally the plaintiff's counsel submits that the plaintiff is unable to fund the commissioning of the expert's report. The plaintiff's counsel submits that if there is a determination in the plaintiff's favour in the Directorate then she will have funds to commission experts reports. There is some evidence produced by the defendant by way of affidavit indicating that the plaintiff may have the ability to raise funds. In any event the plaintiff has brought these proceedings knowing that there were complex causative issues involved requiring careful scientific analysis. The funding issue, certainly after eight years is not, in my opinion, a relevant issue.
For these reasons I am of the opinion that the plaintiff's application for a stay be refused. I will hear counsel on the form of orders, for costs, and the future programming of the action.