Davies v Amaca Pty Limited

[2004] NSWDDT 34

Reported Decision (2004) 1 DDCR 635

Dust Diseases Tribunal

of New South Wales

CITATION:	Davies v Amaca Pty Limited & Anor [2004] NSWDDT 34
PARTIES:	Richard Davies Amaca Pty Limited
MATTER NUMBER(S):	206 of 2003
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	21 & 22/04/04, 30/06/04 & 01/07/04
DATE OF JUDGMENT:	07/02/2004
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr G Holland instructed by Turner Freeman FOR DEFENDANT: Ms W Strathdee instructed by Phillips Fox

JUDGMENT:

1. The plaintiff brings proceedings against the defendant alleging negligent exposure to the products of the defendant as a consequence of which he suffered the inhalation of asbestos dust and fibre. He pleads that as a result he suffers from asbestosis, asbestos related pleural disease and symptoms related to and emanating from those conditions. The hearing thus far has occupied 21 April, 30 June, 1 July and 2 July, today. The exposure occurred in South Australia, the plaintiff is resident in South Australia and all his treatment has been administered here. The fact of exposure in this state means that the tort occurred in this state and the law of South Australia is to be applied.

2. In the statement of claim the plaintiff seeks an extension of time pursuant to s 48 of the Limitation of Actions Act 1936 (South Australia) within which to commence his proceedings. The evidence on the application has been heard in conjunction with the evidence in the case itself. I have come to the view that it is not in the interests of justice that the extension be granted and it is to explain that view that these reasons are directed.

3. The plaintiff filed in the proceedings and relied upon an affidavit. It is a convenient way of telling the story to refer to the affidavit although criticisms have been made of it, with justification. The following things emerge.

4. The plaintiff was born on 7 January 1929 in Liverpool, England. He went to school until the age of 14. He then had employments in 1943 in Liverpool. Then in 1944 he became an apprentice painter and then a painter employed by John Cothliff in Liverpool. His work involved the painting of houses, mostly houses that had been damaged by bombs during the war. He said that he worked in the post-war years on a number of prefabricated houses. In 1950 from about January to March he worked as a painter for WA Gale in Bootle painting factories. From March 1950 until June 1950 he said he worked as a painter employed by Costains at the Evans Medical Supplies premises in Speke, Liverpool. His work involved painting houses and buildings.

5. It is to be observed in respect of the employment with WA Gale and in the employment with Costains that the plaintiff asserted in his affidavit that this was not dusty work. He goes on to say that in 1950 for about three months he worked as a painter for a painting company in Liverpool the name of which he can no longer remember. He then worked at the English Electric Company building at Preston for about six weeks. As to that work he said:

On occasion I was required to paint preformed asbestos pipe sections at this employment. This was not dusty work.

6. Then in 1950 for about three months he worked as a painter for the Bootle Corporation in Liverpool painting houses and buildings. He said on occasions he was required to paint preformed asbestos pipe sections at this employment. This was not dusty work. In 1951 for nine months he worked as a painter for Norwest Constructions in Liverpool painting factories and buildings. "I was not exposed to asbestos at this employment". During the years 1951 to 1956 the plaintiff worked as a heavy turner's mate for Harland and Wolff Ship Repairers at Bootle. He was assisting in the making of pistons out of casts which pistons were later placed in ships.

7. From 1956 until 1966 he worked at the British American Tobacco Company factory in Liverpool as a painter. He said on occasions he was required to paint pipes lagged with asbestos slurry and preformed asbestos pipe sections. He said this was not dusty work. In the years 1966 until 1968 he worked as a self-employed painter in Liverpool and Warrington, painting houses and offices with no exposure to asbestos.

8. In November 1968 the plaintiff migrated with his wife and his children to Australia. They ended up in Adelaide. Between the years 1968 and 1990 he worked as a painter and decorator in Australia. He asserts that he worked with James Hardie asbestos cement sheets, including Versilux and some other named products. When he gave his evidence he could remember Versilux but not the other ones. He also worked with asbestos cement flat sheets.

9. At par 15 he said he was required to sand, brush, paint and manually work with and handle asbestos cement sheeting and sweep off cuts and dust liberated from asbestos cement sheeting. In addition he said that he worked in the vicinity of other workers who cut, installed, sanded, brushed, painted and manually worked with and handled asbestos cement sheeting, and swept off cuts and dust liberated from asbestos cement sheeting. At par 16 he said he cannot remember the names of any other contractors who hired workers who worked in his vicinity during this period.

10. The affidavit then includes a description of various products of the defendant, those descriptions are contained in par 17 to 21 of the affidavit. The plaintiff described an asbestos cutter and its working in par 23. He refers to the use of power tools in the same paragraph, which he said liberated dust into the air. All of the methods liberated dust, he said, but by far the most dust was liberated with power tools. Similarly an electric power drill was said to have released dust into the air about him which he inhaled. A similar result was achieved when saws, both hand saws and electric powered saws, were used on flat sheets to cut them.

11. Between November 1968 and September 1969 the plaintiff deposes to working for Ken Pratt as a painter and decorator. The work was mainly on residential houses. The work was all in South Australia. The plaintiff said that he is not able to remember the names of other contractors who hired workers who worked in his vicinity. He describes in a similar way exposure to the defendant’s products in that employment. During the period October 1969 until December 1989 the plaintiff was a self-employed contract painter. He describes similar exposure. At par 47 he deposes to the fact that for three days he did some work at the James Hardie factory in Elizabeth where the dust was, to use his word, incredible. Between 1989 and August 1990 he worked for 18 months or so for Alan Norman as a painter. In 1978 the plaintiff deposes to the fact that he did some renovations at home using Hardie products.

12. He said at par 68 that he retired in about 1990 because of a knee injury which happened after he dropped an extension ladder onto his knee. In 1980 he had some chest pain, which led in June 1981 to a heart bypass operation at the Royal Adelaide Hospital. In 1992 he had a hernia operation. He then goes on to describe, from 2000 onwards, a worsening shortness of breath on exertion and the symptoms relevant to the pleaded ailments are described. He instructed solicitors in July 2001, because of his shortness of breath and some chest pain, in order to investigate the possibility of a claim in relation to his exposure in Australia and in the United Kingdom. The solicitors sent the plaintiff to see Professor Alpers, whom he saw in January 2002 and then again in June 2002.

13. The proceedings with which we are presently concerned were commenced by the filing of a statement of claim on 29 May 2003. According to par 81 of the affidavit in about March of 2003 the plaintiff received information, no doubt through his solicitors, that a firm in England who had been consulted on his behalf were not willing to commence proceedings in that country, that is in England, because of difficulties about the claim. The plaintiff then, at par 82, deposes to the fact that he received a modest lump sum compensation from the United Kingdom government and monthly payments of 46 pounds per month. Those payments, he said, were related to his exposure in the United Kingdom.

14. The plaintiff says, at par 83, that on 27 May 2002 he learnt from his solicitors that Professor Alpers had expressed the opinion that he had asbestos related pleural disease and asbestosis and the extent of his disability was 25 per cent. I am not sure what the percentage relates to but that is the way the material is set out in the affidavit. The plaintiff said that he was shocked by the extent of the disability referred to in the doctors opinion. He then instructed Turner Freeman to issue proceedings in relation to his asbestos related conditions in this Tribunal.

15. In the light of the contents of affidavit the plaintiff gave some evidence on 21 April 2004 which may be fairly described as surprising. At transcript p 9, after some questions about dust in the work places in England, at line 13 he was asked:

Question Let us just deal with asbestos dust?

Answer No asbestos.

Question Do you say that you were exposed to any asbestos dust or fibre at any time whilst you were working in the United Kingdom?

Answer No.

Question Not at all?

Answer No.

Question Never?

Answer Never.

Question Despite working in five or six different occupations where you were working near asbestos pipe sections you say you were not exposed to it at all?

Answer No.

That evidence, just stopping there, is breathtaking in the circumstance that the plaintiff was not only later to recant it but he was receiving money from Britain because of the exposure.

16. He was asked, page 10 at the foot:

Question Why is it, sir, that you would make a claim on a United Kingdom authority for exposure to asbestos dust when your evidence before his Honour here today is that you were not exposed to any asbestos dust in the United Kingdom?

Answer I cannot explain.

Question No explanation?

Answer I was just told it and that’s what I done.

17. Then he was asked, in relation to his work in the United Kingdom, page 11 at the top:

Question I suggest, sir, it exposed you to asbestos dust on a regular basis from January 1950 until late 1968?
The plaintiff answered, "M’mm".

Question You knew that you were exposed to asbestos dust on a regular basis throughout your period of employment and self-employment working as a painter in the United Kingdom, did you not?

Answer No, I didn’t know nothing about asbestos dust, that’s all I’m saying now. I didn’t know nothing about asbestos dust.

18. Then he was asked this question:

Question Just so as I am not confusing you, Mr Davies, do you tell his Honour today that you were or were not exposed to asbestos dust while you worked as a painter in the United Kingdom?

Answer Well, I’d better say yes, hadn’t I.

19. In the light of what had gone before, that too is an extraordinary answer. Then at line 14:

Question Sir, you were there we were not. Were you exposed to asbestos dust at any time whilst you were working as a painter in the United Kingdom?

Answer All right, yes. Sorry about that.

20. Then he had to acknowledge that his previous answer was wrong. The questioner then went through the various employments about which he had spoken. As to the employment in Lanka Lane in Bootle, he was asked was he exposed to dust, he said, yes. When he was working at Costains in Liverpool:

Question Were you exposed to asbestos dust?

Answer Yes.

Question Whilst you were working in the English Electric Company building were you exposed to asbestos dust?

Answer Yes.

Question Whilst you were working of the Bootle Corporation in Liverpool you were exposed to asbestos dust?

Answer Yes.

Question Whilst you were working for Norwest Constructions in 1951 you were exposed to asbestos dust?

Answer Yes.

Question Whilst you were working for the British American Tobacco company in Commercial Road, Liverpool you were exposed to asbestos dust?

Answer Yes.

21. When he was asked about his self-employment as a painter in Liverpool and Warrington he did not admit that he was exposed to asbestos dust in that work. Then at line 36 we get another variant on the position.

Question Mr Davies, please do not let me push you into an answer one way or the other, if you could just tell his Honour whether you were or were not exposed to asbestos dust in the course of your employment in the United Kingdom at any stage?

Answer Well, I can’t say yes or not definitely.

22. In the light of the fact that he was drawing money from the U.K. I find that extraordinary. A few questions later the plaintiff became distressed and the hearing was abandoned for the day.

23. I have taken some trouble to recount that evidence because it demonstrates something which I think is a real difficulty in the case. The plaintiff is an elderly man now of 75 and to a layman his health seems to be indifferent. He has had a heart bypass, he is presently under investigation for a gastric bleed which is not understood. He has suffered from angina over the years since the heart operation. All of those things, plus the passing of the years, might induce in anybody a difficulty about remembering things, and that may indeed be part of his trouble. But the evidence which I have just recounted cannot be excused in that way. It seemed to me that both the affidavit he swore and the evidence that he gave in the tribunal were just wrong and deliberately wrong. Later, during the course of giving his evidence, he said, when he was confronted with the inconsistencies:

I didn’t know it is as serious as it is. I didn’t think it would go this far. I can’t explain this.

24. It may be noted that his exposure to asbestos in the United Kingdom had been disclosed to Dr Alpers, see his report of 23 January 2002. It cannot be that the plaintiff did not remember it. And the denials about exposure in his affidavit may be seen in pars 5, 6, 7 and 11.

25. Those are not the only difficulties with his evidence. I mention some others. He said in his affidavit at par 79, that Professor Alpers was the first person to tell him that he suffered from an asbestos related condition including asbestosis which event happened, he said, in June 2002. When giving his evidence he said that when he consulted a doctor in Ceduna in 2000 he was told that he had asbestosis. Later, when persistent questioning raised the obvious inference that what happened in Ceduna may be important, the plaintiff altered his evidence to say:

I’m not sure whether he told me or whether he asked me whether I was exposed to asbestos.

26. It seems to me that the shift in evidence was intended to best protect his position as far as he could.

27. The plaintiff was asked whether DX.1, which had been MFI.1, which is his application to the United Kingdom authority for benefits was in his own writing. Initially he denied it, or that he had placed some ticks in various boxes. A little later he had to admit that the form had been filled out by him.

28. Further, there were many times in his evidence when the plaintiff did not remember things. I accept that some of the time his inability to remember was genuine, but I thought there were other times when his inability to remember was a convenient means of avoiding answering questions.

29. The plaintiff was questioned about his affidavit and the fact that he had signed it. He said that he had read only the first few pages and glanced at the rest, then he signed every page. Just stopping there for a moment, that seems to be an extraordinary piece of evidence about the swearing of an affidavit. He was then asked,

Question Did the first pages accord with your recollection?

Answer No.

30. It was in that context that he gave the answers to which I have already made reference about not knowing it was as serious as it was and he did not think it would go this far, and then he said he could not explain it.

31. During the course of giving his evidence, not on the first day but on a subsequent day, the plaintiff said that he had a slight heart attack at court last time. I do not have the transcript of that evidence and I am relying on my own notes about it. He then said words to the effect that he went to the doctor two days later and at 3.00 o'clock in the afternoon he was in the Queen Elizabeth Hospital for low haemoglobin. He apparently related those two conditions, at least in his own mind. He then said he was in hospital for five days and that he had had a full blood transfusion. DX.6, that is the hospital notes relating to that admission, suggests that some of those things that he said then were right, that is they were true, but if one looks at the clinical records for 5 June 2004, and particularly at the entry with the time notation 15.45 on that day, the primary cause for his admission to hospital was a rectal bleed from unidentified source. A note was made to the effect that he had also had chest pain like normal angina, on and off, since admission. The note went on:

For the last two weeks he has been getting angina six times per day which lasts for a minute.

32. As I say, part of what he said was right but the overall effect of the way he described it, when giving his evidence, seemed to me to suggest that the facts had been twisted to support his case, and perhaps to gain sympathy.

33. I return then to the consideration which started all of this. The Limitation of Actions Act 1936 as amended, imposes by s 36 the relevant limitation period. S 36(1) says:

All actions in which the damages claimed, consist of or include damages in respect of personal injuries to any person, shall be commenced within three years next after the cause of action accrued, but not after.

34. S 36(2) says:

Personal injuries include any disease and any impairment of a person’s physical or mental condition.

35. In this case the cause of action accrued, on the plaintiff’s case, when damage was suffered to complete the tort. It may be that that was as early as 17 January 1991 or it may be, if one has regard to Professor Alpers' report of 23 January 2002, that it was about in the year 1992. I do not think much turns on the difference. The limitation imposed by s 36 required proceedings to be commenced within three years, unless the time were extended pursuant to s 48. S 48 says:

(1) Subject to this section, where an act, regulation, rule or by-law prescribes or limits the time for a) instituting an action, b) doing any act or taking any step in an action, or c) doing any act or taking any step with a view to instituting an action, a court may extend a time so prescribed or limited to such an extent and upon such terms, if any, as the justice of the case may require.

36. S 48(2) has no present relevance, s 48 (3):

This section does not - a) apply to criminal proceedings, or b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied

(1) That facts material to the plaintiff’s case were not ascertained by him until some point of time occurring within 12 months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff, or

[Two does not apply presently.] And that in all the circumstances of the case it is just to grant the extension of time.

[S 48(4) deals with procedural matters] s 48(5) provides: Proceedings under this section may be determined by the court at any time before or after the close of pleadings.

S 48(6): This section does not derogate from any other provision under which a court may extend or abridge time prescribed or limited by an Act, regulation, rule or by-law.

37. The first issue which arises is that thrown up by s 48(3)(b), and in this case the issue is whether or not facts material to the plaintiff’s case were not ascertained by him until after the expiration of the period of limitation and that the action was instituted within 12 months after the ascertainment of those facts by the plaintiff. It is submitted that the evidence permits the conclusion that the relevant fact ascertained by the plaintiff was the opinion of Dr Alpers, to the effect that the extent of his disability was 25 per cent. I accept that that is a material fact. It is submitted against the plaintiff that his assertion that he first learned about asbestosis from the Professor in that way was inconsistent with the evidence he had given about what he was told in Ceduna, but I do not think that that bears on this issue. There was some evidence also that Professor Alpers did not discuss his medico-legal opinions with his patients for reasons that he gave, and hence, for that reason, the plaintiff’s assertion ought not be accepted. I do not think the two things follow one from the other and on balance I accept that the solicitors told the plaintiff, when they got the doctors letter, of the content of it so that the doctor’s opinion of the extent of his disability, became known to the plaintiff somewhere around June 2002. That would mean that the statement of claim relevantly was filed at an appropriate time and that the limitation period might properly be extended provided that it is just to extend it.

38. I have been directed by learned counsel to various authorities. I do not think it is necessary or helpful to go through all of them. It is clear that the discretion is a wide one. It is clear that it is proper for the court to have regard to what the High Court had to say in Taylor v Brisbane South Regional Health Authority (1996) 186 CLR 541 and in particular to those things that McHugh J had to say about time limit legislation generally. I am greatly assisted in this regard by what was said by Doyle CJ, in Pommeroy v Thwaites and Whitham Pty Ltd (2001) SASC 125; (2001) 79 SASR 489, in particular at 497. As the Chief Justice observed the matters adverted to by McHugh J are significant. I note in passing that the Chief Justice thought that in that case a delay of six or seven years was considerable.

39. The fundamental question clearly remains the same: has the plaintiff shown that in all the circumstances of the case it is just to grant the extension of time? What then are the features about this case. It is one concerned with exposures allegedly to asbestos, which occurred 35 years ago, and thereafter, a little more recently. The prejudice asserted in submissions by the respondent is the inability to make any inquiry about the exposure alleged to its products which caused the plaintiff to inhale asbestos dust and fibre.

40. The fundamental point which has troubled me since the evidence was given, and about which I made disclosure to learned counsel during the running of the case, was this. Why is it just to permit a man to avoid the ordinary laws of the land, so far as commencing proceedings is concerned, when the evidence upon which he proceeds is riddled with falsehood and is unreliable? When I expressed my concern, learned counsel submitted in dealing with the limitation question I should deal with the matter on the basis of what is disclosed by the pleadings because there would be many cases in which that is what would have to be done. I do not think, with respect, that that can be right. In this case we have had the advantage of hearing all of the evidence. The Tribunal is now in a position to say that the evidence relied upon by the plaintiff is so unreliable that it ought not be accepted unless it is corroborated by some other evidence. I just do not see that justice is served by granting to a litigant an extension of time to permit a case of that type to be presented.

41. It seems to me that the whole of the evidence relating to exposure in Australia is uncorroborated. The unacceptability of the evidence infects not only the plaintiff’s account of his own work and his own doings, but it affects the evidence about his condition. It affects whether or not one may comfortably accept what doctors say, because they rely upon his history. Those things make the litigation unsatisfactory. I have come to the view that in those circumstances an order extending the time ought not to be made. I dismiss that application. That effectively, I think, brings the proceedings to an end.

42. There is one issue to which I wish to make reference and that is that the evidence that has been made available does not attempt to deal with all of the plaintiff’s physical troubles. He has given evidence that in recent times he has lost three stone and has been suffering from bleeding which is undiagnosed. It is apparently not related to asbestos related conditions, but there has been no attempt to explain what part that is playing in his ill health. There are conflicting medical views about why he is breathless. Dr Alpers thinks it is because of asbestos exposure. Dr Antic thinks it is because he has late onset asthma. When issues of that type have to be resolved, then once again, the credit of the person complaining has a vital part to play and that too bears upon whether the litigation can be satisfactory and whether the time ought to be extended.

43. I dismiss the application for the extension of time.

44. I formally enter a verdict for the defendant.

45. The defendant has made application that the plaintiff be ordered to pay the defendant’s costs and that from 5 May 2004 the costs be assessed on an indemnity basis. Three letters have been tendered from the defendant’s solicitors to the plaintiff's. The first is dated 15 April 2004 making a settlement offer inclusive of costs. The second of them is a letter of 5 May 2004 which was sent after the plaintiff had given his evidence on the first day. The letter proposed a verdict and judgment in favour of the defendant and an order that the plaintiff pay the defendant’s costs as agreed or assessed. The letter made it clear that if the offer were not accepted, and if the Tribunal at the conclusion of the hearing made an order which is not more favourable than the terms of the offer, then indemnity costs would be sought.

46. The real yardstick about assessing these things is whether or not it was unreasonable of the plaintiff, in the circumstances, not to accept the offer. He had not finished his evidence. What he was being invited to do was give up his case and consent in the middle of it to paying the defendants at that stage. It is true that his evidence had been effectively shredded by the time the end of the first day had arrived. Nonetheless, it was submitted by Mr Holland, the letter really contained little if anything by way of compromise and was simply an invitation to give up. In the prevailing circumstances I do not conclude that it was unreasonable to fail to accept that offer. I think an order should be made that the plaintiff should pay the defendant’s costs, but that is all, as agreed or assessed. I add the notation, I decline to order indemnity costs from 5 May 2004 or at all.

Mr G G Holland instructed by Turner Freeman appeared for the plaintiff

Ms W Strathdee instructed by Phillips Fox appeared for the defendant