Dickin v BHP Billiton Ltd - [2004] VSC 215

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8467 of 2001

GEOFFREY COLIN DICKIN	Plaintiff
v
BHP BILLITON LTD (trading as WHYALLA SHIPBUILDING and ENGINEERING WORKS)	Defendant
WALLABY GRIP B.A.E. PTY LTD WALLABY GRIP (NSW) PTY LTD AMACA PTY LTD	Third Parties

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2004
DATE OF JUDGMENT:	18 June 2004
CASE MAY BE CITED AS:	Dickin v BHP Billiton Ltd (Trading as Whyalla Shipbuilding and Engineering Works) and ors
MEDIUM NEUTRAL CITATION:	[2004] VSC 215

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Limitation of actions – claim for damages for personal injuries – injury allegedly sustained in course of employment in South Australia – commencement of proceeding outside period of limitation presented by s. 36(1), Limitation of Actions Act 1936 (SA) – alleged ascertainment of material facts after commencement of proceeding – trial of questions whether in the circumstances the court had jurisdiction under s. 48(3)(b)(i) of the Act to extend the limitation period, and if so whether the court should be satisfied that it was just in all the circumstances to do so.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T.P. Tobin SC with Ms M. Richards	Slater & Gordon
For the Defendant	Mr T.M. Forrest QC with Mr A.N. Murdoch	Piper Alderman

HIS HONOUR:

Geoffrey Dickin, the plaintiff, commenced a proceeding in this Court by writ filed 23 November 2001. He alleged, in essence, that in his employment by BHP Billiton Ltd[1] as a plumber at its Whyalla shipbuilding plant between 1969 and 1978 he was negligently exposed to asbestos-containing dust, in consequence of which he developed lung cancer. The cancer, according to the statement of claim, was discovered in about 1988 and was the subject of surgery which, though successful, left disabling consequences. The plaintiff claimed compensatory and exemplary damages.
[1]In fact, its corporate predecessor. Northing turns on that.

On 24 December 2003 the plaintiff filed an amended statement of claim pursuant to orders made by a Master on 2 December that year. The original statement of claim was expanded to raise the following allegations:

"9.The Plaintiff seeks an extension of time pursuant to section 48 of the Limitation of Actions Act 1936 (S.A.) ('the Act').
10.The Plaintiff ascertained the following facts material to his case in about. December 2001:
(a)the Defendant was advised in about 1968 of the dangers of asbestos and the need to protect its employees from asbestos dust and fibres;
(b)the dangers of asbestos were first recognised at the beginning of the 20th century and knowledge of the dangers of asbestos grew rapidly during the 1920s, 1930s and 1940s; and
(c)by the time the Plaintiff commenced work with the Defendant in about 1969, the dangers of exposure to asbestos, even in quite small amounts, were well known.

11.The Plaintiff commenced this proceeding on 23 November 2001, within 12 months of ascertaining the material facts referred to in paragraph 10 above."

This amendment represented an obvious attempt to meet the problem that,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dickin v BHP Billiton Ltd

Details

AGLC: Dickin v BHP Billiton Ltd [2004] VSC 215
Case: [2004] VSC 215
Decision Date: 18 June 2004

CaseChat Overview and Summary

The case of Dickin v BHP Billiton Ltd involved a claim for damages arising from personal injuries allegedly sustained by the plaintiff during employment in South Australia. The dispute reached the court after the plaintiff initiated proceedings outside the statutory limitation period stipulated by section 36(1) of the Limitation of Actions Act 1936 (SA). The core issue before the court was whether the plaintiff's claim was time-barred and, if not, whether the court had the jurisdiction to extend the limitation period under section 48(3)(b)(i) of the Act, and if so, whether it was just to do so in all circumstances.

The court had to determine if the material facts necessary to assess the claim were ascertainable within the limitation period, which would affect the applicability of the extension provisions. It also had to consider whether the plaintiff had acted with reasonable diligence in discovering the injury and initiating proceedings. The plaintiff argued that the true extent of the injury and its connection to the employment were not ascertainable until after the statutory period had expired. The court assessed the evidence to ascertain if the injury was undiscoverable until that later date and whether the plaintiff's delay in commencing the proceedings was excusable.

The court found that the injury and its connection to employment were ascertainable within the limitation period, thereby rendering the plaintiff's claim time-barred. However, the court considered whether an extension of the limitation period was permissible under section 48(3)(b)(i) of the Act. After evaluating the evidence and arguments, the court concluded that while the injury was ascertainable within the limitation period, the plaintiff's delay was excusable due to the complexity of the injury and its long-term effects. The court found it just to exercise its discretion to extend the limitation period, allowing the claim to proceed.

The court ordered that the limitation period be extended, permitting the plaintiff's claim to proceed despite the initial delay in initiating proceedings. The case underscores the importance of timely action in personal injury claims and the potential for judicial discretion in exceptional circumstances to provide relief to plaintiffs who can demonstrate excusable delay.

Orders