Do Carmo v Ford Excavations Pty Ltd

[1984] HCA 17

HIGH COURT OF AUSTRALIA
MURPHY A.C.J. WILSON, BRENNAN, DEANE AND DAWSON JJ.
Do Carmo v Ford Excavations Pty Ltd
[1984] HCA 17

ORDER
Appeal allowed with costs. Order of the Court of Appeal of the Supreme Court of New South Wales set aside. In lieu thereof substitute the following order:

(i) the appeal be allowed in respect of the cause of action for breach of statutory duty;

(ii) the appeal be dismissed in respect of the cause of action in negligence;

(iii) the appellant in the Court of Appeal to pay the costs of the appeal.

Cur. adv. vult.

The following written judgments were delivered:—

1984, April 4
MURPHY A.C.J.

This is an appeal by special leave from a judgment of the New South Wales Court of Appeal which allowed an appeal from an order of Cross J. extending the limitation period for the commencement of proceedings pursuant to s. 58(2) of the Limitation Act 1969 N.S.W. ("the Act"). Section 58(1) of the Act provides:

This section applies to a cause of action founded on negligence nuisance or breach of duty, for damages for personal injury
Section 58(2) provides:
Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that—

(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action; and

(b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of the limitation period,

the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court the limitation period is extended accordingly.

Section 57(1) provides:

(b) the material facts relating to a cause of action include the following—

(i) the fact of the occurrence of negligence nuisance or breach of duty on which the cause of action is founded;

(ii) the identity of the person against whom the cause of action lies;

(iii) the fact that the negligence nuisance or breach of duty causes personal injury;

(iv) the nature and extent of the personal injury so caused; and

(v) the extent to which the personal injury is caused by the negligence nuisance or breach of duty;

(c) material facts relating to a cause of action are of a decisive character if, but only if, a reasonable man, knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—

(i) that an action on the cause of action would (apart from the effect of the expiration of a limitation period) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action; and

(ii) that the person whose means of knowledge is in question ought, in his own interests, and taking his circumstances into account, to bring an action on the cause of action;

(d) "appropriate advice", in relation to facts, means the advice of competent persons, qualified in their respective fields to advise on the medical legal and other aspects of the facts, as the case may require.

The applicant plaintiff is about forty years old. He was born in Portugal and migrated to Australia in 1971. He is poorly educated and is barely able to speak English. Whilst he was employed in work with the respondent he was exposed to silica dust which caused progressive pulmonary disease and disability. The appellant claims that his first solicitor did not advise him that he had a cause of action; but that it was well known in the industry in 1971 when he began working for the respondent as a labourer, that water hosing and the wearing of face masks were available to minimize the risk of silicosis by the reduction of dust concentration. He claims that he only became aware of this after his second solicitor had obtained a report from Dr. Lee on 10 September 1979. Upon such discovery he promptly sued his employer for damages for negligence and breach of statutory duty. However, by that time the six years' limitation period specified in s. 14(1) of the Act had expired.

The Court of Appeal (Reynolds, Hutley and Samuels JJ.A.) followed McIntyre v. Armitage Shanks Ltd. [1] ("McIntyre's Case") and Harris v. Gas and Fuel Corporation (Vict.) [2] ("Harris's Case"). They held that the words in s. 57(1)(b)(i) of the Act, "negligence nuisance or breach of duty on which the cause of action is founded", refer only to the acts or omissions alleged to constitute the relevant tort, and not to legal concepts or causes of action. The Court of Appeal held that prior to 5 November 1978 the appellant had within his means of knowledge "material facts" within the meaning of s. 57(1)(b) of the Act, which, once he took the appropriate advice, would show "that an action on the cause of action would (apart from the effect of the expiration of a limitation period) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action" (s. 57(1)(c)(i)). Thus, they held, he had within his means of knowledge "material facts of a decisive character" (s. 58(2)(a)) and therefore was not entitled to an extension of time to bring an action against the respondent. The question is whether the existence in law of a right of action is a relevant "material fact" for the purposes of the legislation.

1. [1980] S.L.T. 112.

2. [1975] V.R. 619.

The Act is of very great importance to workers who may be injured by occupational disease. Its relevant sections are derived from and copy the complexity and obscurity of the English Limitation Act 1963 which Lord Reid in Smith v. Central Asbestos Co. [3] ("the Asbestos Case") stated had "a strong claim to the distinction of being the worst drafted Act on the statute book". The English legislation was remedial, designed to overcome the difficulties of Cartledge v. E. Jopling and Sons Ltd. [4] in which it was held that a cause of action commences when an injury occurs, not when it becomes apparent.

3. [1973] A.C. 518, at p. 529.

4. [1963] A.C. 758.

It is therefore appropriate to consider the relevant English decisions. In the Asbestos Case (although it is difficult to determine a ratio decidendi for that case: see Harper v. National Coal Board [5] ) Lord Reid and Lord Morris held that it is a "material fact" within the relevant legislation that the prospective plaintiff knew that he or she had a worthwhile cause of action [6] . Lord Pearson stated "I do not think the plaintiff has to know what is the proper legal label to be attached to the defendants' wrongful conduct. He does have to know as a matter of fact that the defendants' conduct was wrongful as against him and that it brought about his injuries. In using the words "wrongful" I am not intending to imply that he must form or obtain a legal opinion that the defendants' conduct was tortious: I mean that he has to know as matters of fact that the defendants were at fault and his injuries were attributable to their fault the plaintiff does not know all the material facts unless he knows (as a matter of fact in the same manner as a jury would decide) that the defendants were at fault and that his injuries were attributable to the fault" [7] . Lord Salmon, although dissenting, also refers to the "fault" of the defendants [8] .

5. [1974] 1 Q.B. 614.

6. [1973] A.C., at pp. 533-534, 538-540.

7. [1973] A.C., at pp. 543-545.

8. [1973] A.C., at p. 557.

The appellant did not know until after the commencement of the year preceding the expiration of the limitation period that the risk of injury was real or proximate and could reasonably have been forseen and avoided by his employer. He thus did not know "material facts of a decisive character" before the period expired. In this respect, the case differs from McIntyre's Case [9] and Harris's Case [10] . In McIntyre's Case, such facts were conceded to have been known by Mr. McIntyre at all material times. The facts of Harris's Case were quite different, involving not an employer-employee relationship but the explosion of a gas stove, so that the source, cause and fact of injury were quite clear contemporaneously.

9. [1980] S.L.T. 112.

10. [1975] V.R. 619.

Further, I accept that the existence of a worthwhile case is also a "material fact" within s. 57(1)(b). This follows if the word "include" in that section is given its natural meaning. Such an application of the section is consistent with the statements of Lord Reid and Lord Morris cited from the Asbestos Case [11] , although on this issue they were not in the majority. Because s. 57(1)(c) refers to "appropriate advice" this does not mean that knowledge of the law is not material to any of the facts in s. 57(1)(b). Section 57(1)(c) is dealing not only with legal advice, but with all manner of expert advice including medical and engineering advice. This view contrasts with McIntyre's Case and Harris's Case, as well as with a technical majority view in the Asbestos Case. However, I find the views of Lord Reid and Lord Morris highly persuasive and, despite his disclaimer, regard the substance of Lord Pearson's judgment as being supportive of that view. A case such as the present, where legal advice was apparently sought but correct guidance was not provided by his former legal advisers, highlights the need to interpret the Act in this way, if its remedial intention is to be fully implemented.

11. [1973] A.C. 518.

The appeal should be allowed but only in respect of the action in negligence (as argument was not presented in relation to the cause of action for breach of statutory duty). The judgment and orders of the Court of Appeal of the Supreme Court of New South Wales should be set aside. The respondent should pay the costs of this appeal and of the proceedings in the Court of Appeal.

WILSON J.

This is an appeal by special leave from a unanimous decision of the Court of Appeal of the Supreme Court of New South Wales (Reynolds, Hutley and Samuels JJ.A.). It concerns the construction and application of ss. 57 and 58 of the Limitation Act 1969 N.S.W., as amended ("the Act").

The Facts.

The appellant at all material times was a labourer. Born in Portugal, he lived and worked in France for two or three years before coming to Australia in 1971 at the age of about twenty-eight years. In May 1971 he commenced employment with the respondent as a labourer and remained in that employment until June 1974 save for a break of six months from August 1973 when he returned to Portugal for a holiday. His duties involved working on various building sites in the Sydney metropolitan area, carrying out excavation and building work. Thereafter, he was employed as a labourer by two other companies. In June 1976 he developed chest pain, breathlessness, coughing and fatigue. He consulted a doctor who referred him to a chest specialist, Dr. Lee. In November 1976 he sought advice respecting his condition from his union and was referred to the union's solicitors. Those solicitors continued to advise him until late in 1978. From time to time they sought the professional opinion of Dr. Lee who, after an initial uncertain diagnosis, confirmed the presence of silicosis but considered the condition unlikely to cause any significant disability. On the other hand the Workers Compensation (Dust Diseases) Board certified on 7 April 1977 that the appellant had contracted silicosis-tuberculosis and found him totally disabled for work. In February 1978 a further certificate from the Board stated that, following upon successful treatment of his tuberculosis, his silicosis was such as could render him "30 per cent disabled for work only". At no time did the union solicitor advise the appellant that he had a cause of action against the respondent. Master Allen, who dealt with the application for an enlargement of time in the first instance found the appellant to be a "non-English speaking, poorly educated, dull-witted immigrant". He also found that in October or November 1978 the solicitors gave the appellant the impression that there was no reasonable basis for commencing an action and that the latter was in no position to dispute that view.

In July 1979 the appellant took independent advice. His new solicitors sought a further report from Dr. Lee. On 10 September 1979 Dr. Lee maintained his former opinion that the patient's silicosis was not disabling him from working. He considered that he was physically capable of undertaking any form of work. However, on this occasion, Dr. Lee was more explicit with respect to the cause of and safeguards against the disease. He said the disease had been recognized for many years as a potential hazard affecting the lungs of men employed in jackpick operations on sandstone in the Sydney metropolitan area. The risk could be minimized by reducing dust concentration by measures such as water hosing the area of drilling and the wearing of a face mask, this information being "generally available to the industry in 1971". On receipt of that report the appellant's solicitors advised him to institute proceedings, which he did.

The Litigation.

The writ was issued on 5 November 1979. In his statement of claim the appellant sought damages for personal injury, namely, silicosis and silico-tuberculosis, caused by the alleged negligence of the respondent and by its breach of statutory duty arising out of an alleged failure to comply with a regulation made in December 1973 under the Construction Safety Act 1912 N.S.W.. However, he had to face the problem arising from the fact that a cause of action in negligence or breach of statutory duty accrues when damage is caused by the negligence or breach and not when it is first ascertained: Cartledge v. E. Jopling & Sons Ltd. [12] . Section 14(1)(b) of the Act bars the commencement of an action in negligence or breach of a statutory duty after the expiration of six years from the date on which the cause of action accrued. The prospect of being met by a defence based on s. 14 led to the present application for an order under s. 58 of the Act extending the relevant limitation period.

12. [1963] A.C. 758.

The application was heard by Master Allen. He was satisfied that it was not until October 1979 that the appellant knew that there were practical precautions which the respondent could have taken to keep down the level of silica dust and further that these precautions were generally known in the building industry throughout the period of his employment. Likewise, he was unaware that there were any safety regulations which required that such precautions be taken. The master was further satisfied that the appellant had not failed to take all reasonable steps to ascertain those facts at an earlier date. He extended the time for commencing the proceedings to 1 October 1980.

The respondent appealed from the master's decision to a single judge of the Supreme Court (Cross J.). The learned judge dismissed the appeal. His Honour not only found no reason to interfere with the exercise of discretion by the master but he also expressed his agreement with that decision. He would also have extended the time for a further reason not relied on by the master, namely, that the ignorance of the appellant prior to October 1979 that he had a cause of action against the respondent was itself ignorance of a material fact of a decisive character.

The respondent appealed to the Court of Appeal. The Court of Appeal rejected both the grounds upon which Cross J. would have relied and dismissed the application for an enlargement of time.

The Act.

The relevant provisions of the Act are as follows:

57.

(1) For the purposes of this Division —

(a) "personal injury" includes any disease and any impairment of the physical or mental condition of a person;

(b) the material facts relating to a cause of action include the following —

(i) the fact of the occurrence of negligence nuisance or breach of duty on which the cause of action is founded;

(ii) the identity of the person against whom the cause of action lies;

(iii) the fact that the negligence nuisance or breach of duty causes personal injury;

(iv) the nature and extent of the personal injury so caused; and

(v) the extent to which the personal injury is caused by the negligence nuisance or breach of duty;

(c) material facts relating to a cause of action are of a decisive character if, but only if, a reasonable man, knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing —

(i) that an action on the cause of action would (apart from the effect of the expiration of a limitation period) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action; and

(ii) that the person whose means of knowledge is in question ought, in his own interests, and taking his circumstances into account, to bring an action on the cause of action;

(d) "appropriate advice", in relation to facts, means the advice of competent persons, qualified in their respective fields to advise on the medical legal and other aspects of the facts, as the case may require;

(e) a fact is not within the means of knowledge of a person at a particular time if, but only if —

(i) he does not, at that time, know the fact; and

(ii) in so far as the fact is capable of being ascertained by him, he has, before that time, taken all reasonable steps to ascertain the fact; and

(f) "limitation period" means a limitation period fixed by an enactment repealed or omitted by this Act or fixed by or under this Act.

(2) In this Division the expression "breach of duty" extends to the breach of any duty, whether arising by statute, contract or otherwise, and includes trespass to the person.

58.

(1) This section applies to a cause of action founded on negligence nuisance or breach of duty, for damages for personal injury, not being a cause of action which has survived on the death of a person for the benefit of his estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944, and not being a cause of action which arises under section 3 of the Compensation to Relatives Act of 1897.

(2) Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that —

(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action; and

(b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period,

the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court, and for the purposes of paragraph (b) of subsection (1) of section 26 of this Act, the limitation period is extended accordingly.

(3) This section applies to a cause of action whether or not a limitation period for the cause of action has expired —

(a) before the commencement of this Act; or

(b) before an application is made under this section in respect of the cause of action.

The Issues.

There are two questions to be resolved in the present appeal. The first is a question of the proper construction of ss. 57 and 58 of the Act, namely, whether ignorance of the existence of a cause of action is ignorance of a material fact such as would empower a court to extend the limitation period. The second question is whether in any event the master rightly concluded in the present case that there were material facts of a decisive character relating to the cause of action which were not within the means of knowledge of the appellant until October 1979, thereby satisfying the provisions of s. 58(2)(a) of the Act.

(a) Ignorance of a cause of action.

The first of these questions is of fundamental importance to the operation of Pt III of the Act. It is one which has been thoroughly agitated, in relation to broadly comparable legislation, in a number of jurisdictions over the past decade and the Court is fortunate to have the benefit of such extensive consideration. In Smith v. Central Asbestos Co. [13] an appeal from the Court of Appeal, a majority of their Lordships (Lord Pearson, Lord Simon of Glaisdale and Lord Salmon) construed the Limitation Act 1963 U.K. so as to exclude the legal consequences of a fact or facts from the category of material facts. The strength of the views of their Lordships in this regard is not affected by the fact that Lord Pearson took a view of the facts which led him to join Lord Reid and Lord Morris of Borth-y-Gest in the decision of the case. Lord Pearson said [14] :

It seems to me the Parliament has drawn the line between ignorance of facts (material and decisive facts) and failing to draw the conclusions which a reasonable man, with the aid of expert advice, would have drawn from those facts as to the prospect of success in an action. If the plaintiff did not know one or more of the material and decisive facts, his lateness in bringing the action is excused. If he knew all the material and decisive facts, but failed to appreciate his prospects of success in an action because he did not take expert advice or obtained wrong expert advice, his lateness in bringing the action is not excused.

13. [1973] A.C. 518.

14. [1973] A.C., at pp. 541-542.

In McIntyre v. Armitage Shanks Ltd. [15] the House of Lords held unanimously that the Prescription and Limitation (Scotland) Act 1973 did not assist a plaintiff to bring an action where he learned too late that the facts already known to him gave rise to a good cause of action. Their Lordships were emphatic that in speaking of material facts that Act was concerned with knowledge or ignorance of facts in the ordinary sense, not with the legal consequences of those facts. Lord Russell of Killowen [16] , expressed the point succinctly in these words:

The primary question in this appeal is whether the existence in law of the right of action can be a relevant material fact. I cannot, my Lords, see how the existence in law of the right of action in question in capable of being described as a "material fact relating to that right of action". That phrase presupposes the existence in law of the right of action, and the reference to material facts relating to that which is assumed to exist can only be a reference to matters other than that existence.
In the course of their speeches, several of their Lordships referred with approval to the reasoning of the "interpretative majority" (as it was described) of the House of Lords in Smith v. Central Asbestos Co.

15. [1980] S.L.T. 112.

16. [1980] S.L.T., at p. 121.

A similar view was taken of the Victorian legislation by the Full Court of the Supreme Court of Victoria in Harris v. Gas and Fuel Corporation (Vict.) [17] , overruling the decision of Gowans J. in Evans v. Repco Transmission Co. Pty. Ltd. [18] . Likewise, in Queensland, W. B. Campbell J. (as he then was) in Ex parte Bolewski [19] held that the failure of solicitors, possessed of full knowledge of all relevant circumstances, to advise a client that he has a right of action is not "a material fact of a decisive character relating to the right of action" within the meaning of s. 31(2) of the Limitation of Actions Act 1974 Q..

17. [1975] V.R. 619.

18. [1975] V.R. 150.

19. [1981] Qd R. 54.

Mr. Leslie, counsel for the appellant, acknowledges the strong persuasive drift against his submission of this body of case law. Nevertheless, in a careful and competent argument, he seeks to bring the Court back to the precise wording of the Act and to distinguish the particular decisions by reference to the variations in wording of the relevant provisions of the different statutes. At the heart of his submission is the proposition that s. 57(1)(b)(i) of the Act, in referring to "the fact of the occurrence of negligence nuisance or breach of duty on which the cause of action is founded" speaks of "negligence nuisance or breach of duty" as legal concepts establishing a cause of action and not merely the acts or omissions which will serve to ground the relevant tort.

The concept of a "cause of action" would seem to be clear. It is simply the fact or combination of facts which gives rise to a right to sue. In an action for negligence, it consists of the wrongful act or omission and the consequent damage: cf. Cooke v. Gill [20] ; Read v. Brown [21] ; Trower and Sons Ltd. v. Ripstein [22] ; Board of Trade v. Cayzer, Irvine & Co. Ltd. [23] ; Shtitz v. C.N.R. [24] ; Williams v. Milotin [25] . Knowledge of the legal implications of the known facts is not an additional fact which forms part of a cause of action. Indeed, a person may be well appraised of all of the facts which need to be proved to establish a cause of action but for want of taking legal advice may not know that those facts give rise to a right to relief.

20. (1873) L.R. 8 C.P. 107, at p. 116.

21. (1888) 22 Q.B.D. 128, at p. 131.

22. [1944] A.C. 254, at p. 263.

23. [1927] A.C. 610, at p. 617.

24. [1927] 1 D.L.R. 951, at p. 953.

25. (1957) 97 C.L.R. 465, at p. 474.

In my opinion, Mr. Leslie's first argument must fail. In its natural or ordinary meaning the paragraph in referring to the occurrence of negligence nuisance or breach of duty means the occurrence of "a wrongful act or omission", the phrase which was under consideration in McIntyre . It requires such knowledge of the circumstances in which an act or omission causes personal injury as to demonstrate fault or wrongfulness on the part of the person who is to be sued. This construction of s. 57(1)(b)(i) is confirmed by s. 57(1)(c) which defines the concept of "material facts of a decisive character". The paragraph draws a clear distinction between facts and the legal consequences of those facts. It refers to the attitude of a reasonable man to facts in the light of "appropriate advice" (s. 57(1)(d)). The implication is that the advice itself is not a material fact and therefore knowledge of the legal consequences of material facts is not intended to be itself knowledge of a material fact. If it were otherwise, the central provision in the legislative scheme — s. 58(2) — would have to be read as if par. (a) of the sub-section contemplated that the existence in law of the right of action in question was itself one of the "material facts relating to the cause of action". Such a construction is untenable for the reason stated by Lord Russell of Killowen in McIntyre [26] to which I have referred.

26. [1980] S.L.T. 112.

There is another consideration which militates against the construction of s. 57(1)(b)(i) which would include as a material fact the existence of a worthwhile case. It is that the occurrence of negligence nuisance or breach of duty, including in those terms the legal concepts associated with them, is not sufficient of itself to establish a cause of action. The element of damage, in this case personal injury, is essential. Yet that element clearly is not comprehended by par. (i) but by par. (iii).

I therefore accept with respect the decision of the Court of Appeal on the first of the two questions and in doing so express my indebtedness to the thorough analysis of the legislation by Reynold J.A.

(b) Ignorance of material facts.

In support of his second contention, Mr. Leslie argues that until October 1979 the appellant was ignorant of material facts falling within s. 57(1)(b)(i). Those facts were that at all material times the risk of injury was real and could reasonably have been foreseen and avoided by the respondent. It was not until Dr. Lee's report of September 1979 provided information relative to these matters and the contents of that report were made known to the appellant that the facts came within his means of knowledge. They were material facts of a decisive character, proof of which would be an essential ingredient of a successful action. The submission has the support of the findings of Master Allen and the concurrence of Cross J. However, the Full Court came to a different conclusion. Reynolds J.A. identified the following facts as those which were within the means of knowledge of the appellant prior to November 1978: (1) that during the years 1971-1974 he had been exposed whilst in the employment of the respondent to dust and had inhaled it; (2) that inhalation of dust was capable of producing harmful effects; (3) that he was suffering from lesions in his lungs producing disabling symptoms; (4) that this condition was "a dust disease"; (5) that it could or must be attributed to his period of employment with the respondent; (6) that no provision had been made by the respondent for the prevention or reduction of the liberation of dust; (7) that there was an authoritative medical view that he was wholly or substantially incapacitated for work and that he was seriously affected in his daily life. His Honour then posed the hypothetical question required by s. 57(1)(c), namely, whether a reasonable man knowing those facts and having taken appropriate advice would regard them as justifying the bringing of an action which ought to be brought. He concluded that the answer must be in the affirmative.

Mr. Leslie challenges this conclusion. He argues that the Full Court drew more significance than was warranted from the fact numbered six. It did not necessarily follow from that fact that a reasonably prudent employer could and would have provided safeguards against the inhalation of dust. Yet awareness of the reasonable availability of appropriate safeguards was essential to a knowledge of the wrongfulness of the employer's failure to prevent or reduce the liberation of dust. It was essential to the knowledge of a material fact, namely, the fact of the occurrence of negligence or breach of duty. It should be noticed in this regard that the decision of the House of Lords in McIntyre is open to be distinguished because in that case the wrongfulness of the employer's inaction was taken to be a known material fact.

With the benefit of hindsight this submission might well be received with scepticism. Indeed, Hutley J.A., having agreed substantially with Reynolds J.A., expressed the opinion that the union's solicitors, whose advice was sought by the appellant, should have "at least classed it as a "res ipsa loquitur" case and advised that any such excuses advanced by an employer would excite such scepticism as to justify proceeding".

On the other hand, one is not necessarily justified at least without some inquiry, in imputing to employers within the industry in 1971 an awareness of the risk and knowledge and capacity with respect to safety standards which are commonplace some years later. Advances in the field of industrial safety obviously will lead to changes in the perception of what the duty of reasonable care requires of an employer. It is true, as Mr. Brownie urges for the respondent, that the making of the regulation in December 1973 evidences the state of awareness within the industry at that time of the desirability and practicality of the precautions which are stipulated therein. However, the bulk of the period of the appellant's employment by the respondent had elapsed before the making of that regulation and the question remains as to the state of knowledge and practice in the industry in the preceding years.

Nevertheless, there are serious difficulties in the way of accepting Mr. Leslie's submission. It is true that the use of the words "the fact of the occurrence of negligence nuisance or breach of duty" in s. 57(1)(b)(i) to describe a material fact identifies in its application to this case something more than the mere failure of the employer to take steps to minimize the inhalation of dust. That failure of itself would not necessarily amount to negligence. The "something more" that is required, namely, the reasonable availability of appropriate precautions, may accurately be described as a fact and indeed as a material fact within the meaning of s. 57(1)(b)(i). But it is a fact of a secondary nature because its significance lies in the impact it makes on what might be called the primary fact. In this case that primary fact is the inhalation of dust in a working environment where no provision was made by the employer to reduce the hazard. The question of the precautions, if any, that were available to a prudent employer at the material time is a question of the state of knowledge and current practice pertaining to the industry generally. It relates to the general state of affairs in the industry and only indirectly to the actual occurrence of facts which cause personal injury to a particular worker. Its relevance and importance lie in the role it plays in determining the true quality of the primary fact, whether or not the primary fact is a wrongful act constituting negligence or breach of duty. The significance of this line of thought, it seems to me, is that it supports the reasoning of Reynolds J.A. in shifting the focus from "material facts" to "material facts of a decisive character". The fact that a reasonably careful employer could and would have provided safeguards may be a material fact of which at all relevant times the appellant was ignorant. But it will not be a material fact of a decisive character if the reasonable man, having taken appropriate advice on the facts of which the appellant did have knowledge, would regard those facts as showing that an action would have a reasonable prospect of success and ought to be taken. "Appropriate advice" is not confined to legal advice. It includes the advice of a competent person, qualified to advise on matters of industrial safety in relation to excavation work in Sydney, on the particular aspect of the known material facts now under consideration, namely, the absence of any provision to minimize the inhalation of dust during such excavation work. If it be the fact, although unknown to the appellant prior to October 1979, that precautions such as water hosing the area of drilling and the wearing of face masks were effective to reduce the inhalation of dust and were known in the industry in 1971, then appropriate advice to that effect would be available to the hypothetical reasonable man. A conclusion in favour of the institution of proceedings must then follow. That being the case, the appellant cannot now say that his ignorance of that fact is relevant to an application by him under s. 58(2). It is a material fact but it is not of a decisive character.

In my respectful opinion, therefore, the Court of Appeal was correct in ruling that the appellant had not brought himself within the provisions of s. 58(2) of the Act. Having come to this conclusion, it is unnecessary for me to consider the proper construction of s. 57(1)(e) describing the circumstances in which a fact is not within the means of knowledge of a person at a particular time. In the Court of Appeal, Hutley J.A. expressed the opinion that where a solicitor acting for a client obtains knowledge or has knowledge as part of his general fitness to advise the client of the material facts relating to his client's cause of action, those facts form part of the actual knowledge of the client. With all respect, I would wish to reserve my opinion on that question because it seems to me there may be a strong argument that the plain words of the paragraph exclude the operation of any general principle that might otherwise apply.

I would dismiss the appeal.

BRENNAN J.

I agree with the reasons of my brother Dawson. I would allow the appeal and restore the order extending time in so far as it relates to the cause of action in negligence.

DEANE J.

The issues involved in this appeal and the relevant facts and legislative provisions are set out in the judgment of Wilson J. I agree, for the reasons which he gives, with Wilson J.'s conclusion that ignorance of the existence of a cause of action is not, in itself, ignorance of a material fact for the purposes of ss. 57 and 58 of the Limitation Act 1969 N.S.W. ("the Act"). The ignorance of a material fact to which those sections refer is, in my view, ignorance of factual matter in the ordinary sense and not ignorance either of the law itself or of the legal consequences of the material facts. There remains for consideration the question whether "any of the material facts of a decisive character" relating to the cause of action were not "within the means of knowledge" of the appellant at the date being twelve months before the commencement of the proceedings. I agree with Wilson J. that the answer to that question is in the negative. Subject to what is said below, I agree with the reasons given by Wilson J. for that conclusion.

The Act provides (s. 57(1)(c)) that "material facts relating to a cause of action are of a decisive character if, but only if, a reasonable man, knowing those facts and having taken the appropriate advice on those facts", would regard them as showing that "an action on the cause of action would have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing" of the action and that the person in question "ought, in his own interests, and taking his circumstances into account, to bring" the action. In some cases, that provision may be adequate to enable the identification of a particular combination of facts as being the facts which constitute "the" material facts of a decisive character relating to the particular cause of action. In other, and probably most, cases however, there will be a number, and possibly a very large number, of different combinations which satisfy all of the criteria which that provision designates as determinative of the question whether particular facts constitute material facts of a decisive character. Thus, for example, any one of a variety of different facts or combinations of facts may suffice to establish "the fact of the occurrence of negligence" and any one of a number of different heads or items of damage may suffice to make the action worthwhile. In such cases, the provisions of s. 57(1)(c) are inadequate to identify any one set of facts as "the" material facts of a decisive character and there is an unfortunate element of ambiguity in the requirement of s. 58 of the Act that, at the designated time, any of "the" material facts of a decisive character relating to the cause of action be not within the means of knowledge of the applicant. That ambiguity cannot be resolved as a matter of internal linguistics. It is necessary, for its resolution, to refer to the general legislative policy which can be discerned in the Act.

The benefit of any extension of the limitation period pursuant to the provisions of ss. 57 and 58 of the Act is conferred at the cost of a corresponding detriment to the potential defendant in the action. The legislative policy underlining the sections is plain enough. It is that the limitation period should be extended only in favour of a person who was, without fault on his part, unaware that he had a worthwhile cause of action until not more than twelve months before the commencement of proceedings. In that context, the reference in s. 58 to "any" of the material facts of a decisive character not being within the means of knowledge of the applicant should be construed as being to a fact or facts which would need to be within the means of knowledge of an applicant before it could be said that the facts within his means of knowledge constituted "material facts of a decisive character". Thus, if any one of facts A, B or C would, with other facts within the means of knowledge of the applicant, satisfy the requirements of "the material facts of a decisive character", it will not suffice, for the purpose of s. 58, that the applicant was unaware of fact A while being aware that he had a worthwhile cause of action in that he was aware of both facts B and C. In such a case, the applicant will only be, for the purposes of s. 58, unaware of "any" of the material facts of a decisive character if he was unaware of facts A, B and C, that is to say, if the facts which were within his means of knowledge were not, of themselves, such as to constitute material facts of a decisive character.

The material facts to which ss. 57 and 58 refer are the material facts "relating to the cause of action". They include, in the case of a cause of action based on negligence, "the fact of the occurrence of negligence on which the cause of action is founded", "the identity of the person against whom the cause of action lies", "the fact that the negligence causes personal injury", "the nature and extent of the personal injury so caused" and "the extent to which the personal injury is caused by the negligence" (s. 57(1)(b)). In other words, the "material facts relating to a cause of action" include all those facts which, in combination, constitute the cause of action and the resulting personal injury. Subject to an important qualification, one or more of the material facts of a decisive character will be shown not to have been within the means of knowledge of an applicant if it appears that an applicant did not have within his or her means of knowledge some fact or facts which, in the context of the facts within his or her means of knowledge, made the difference between his or her having and not having a worthwhile cause of action. The qualification is of critical importance in the present case. I turn to consider it.

Section 57(1)(c) provides that the question whether material facts relating to the cause of action are of a decisive character is to be determined by reference to the hypothetical opinion of a "reasonable man, knowing those facts and having taken the appropriate advice on those facts". Paragraph (d) of s. 57(1) defines "appropriate advice", in relation to facts, as meaning "the advice of competent persons, qualified in their respective fields to advise on the medical legal and other aspects of the facts, as the case may require". The necessary qualifications to provide appropriate advice on the particular facts would include knowledge of those matters of general fact which fall within the particular field of expertise and the assumption that appropriate advice has been taken carries with it an assumption that that advice will have been formulated with due regard to those general matters of fact of which an appropriate adviser would be aware. That being so, a distinction must be drawn, for the purpose of determining whether an applicant had the material facts of a decisive character within his means of knowledge, between the primary or particular facts relating to a particular cause of action, and general or secondary facts which are material to the cause of action in the sense that they provide the context in which, or by reference to which, the significance of the particular or primary facts should be assessed and any expert legal or other advice should be formulated. It would not suffice for an applicant to show that some general or secondary fact was not within his means of knowledge if that fact was a matter of common knowledge among appropriate advisers whose advice is, for the purpose of determining whether material facts are of a decisive character, postulated as having already been taken.

In the Supreme Court in the present case, the learned master found that the appellant did not, until the month before the institution of the proceedings against the respondent, have certain facts within his means of knowledge. That finding was confirmed by Cross J. and was not challenged in this Court. The facts not within the appellant's means of knowledge were (i) that there were, during the period in which the appellant was employed by the respondent, practical and available steps which could have been taken to reduce the level of silica dust and (ii) that the effectiveness of those steps was well known in the building industry throughout that period. On the other hand, the appellant had within his means of knowledge the critical particular facts of his case against the respondent. Those facts included the nature of his ailment, his exposure to dust in his employment with the respondent, that his ailment was "a dust disease" which "could or must be attributed to his period of employment" with the respondent and, most important for present purposes, that the respondent had taken no steps at all to minimize the level of silica dust to which the appellant had been exposed in the course of his employment. Those facts constitute the particular or primary factual basis of the appellant's case in negligence against the respondent. The facts of which the appellant was unaware were general facts of which any appropriate adviser on standards or safety in the building industry would be aware and which would constitute part of the context in which appropriate advice on whether the respondent had been guilty of negligence had been formulated. In the Court of Appeal, Hutley J.A. expressed the view that the facts within the knowledge of the appellant were such as to raise a case of res ipsa loquitur. Regardless of whether that be the case, it appears to me to be plain that the facts within the appellant's knowledge were such as to lead a reasonable man, knowing those facts and having taken the appropriate advice on them, to conclude that the appellant had a worthwhile cause of action against the respondent. In other words, the fact within the appellant's means of knowledge were, of themselves, adequate to satisfy the requirement of "material facts of a decisive character".

The appeal should be dismissed.

DAWSON J.

Section 57(1)(b)(i) of the Limitation Act 1969 N.S.W. provides that for the purposes of the division of the Act relating to personal injury cases "the material facts relating to a cause of action include (i) the fact of the occurrence of negligence nuisance or breach of duty on which the cause of action is founded". By themselves, the words "negligence nuisance or breach of duty" contain an ambiguity in that they may be taken, on the one hand, to refer to the facts which give rise to a cause of action in each instance or, on the other hand, to refer to the cause of action itself. Put another way, the words may either be a reference to acts or omissions of a particular character or to the legal consequences of those acts or omissions. The ambiguity is particularly evident with the word "negligence" because in ordinary, every-day use, that word is used to described careless conduct, not necessarily sufficient to found a cause of action, but in law it is used to identify a cause of action.

Despite the inherent ambiguity in s. 57(1)(b)(i), I think that the reference to "the fact of the occurrence of negligence", when read in context, is clearly enough a reference to facts rather than to a cause of action which arises as a matter of law upon those facts.

In the first place, s. 57(1)(b) initially speaks of "material facts relating to a cause of action". If the reference to negligence as a material fact in par. (i), which follows, was a reference to the cause of action, the initial words would have to be construed as embracing a cause of action relating to a cause of action — a construction which is clearly inapt. Moreover, par. (i) itself refers to "the fact of the occurrence of negligence on which the cause of action is founded". It is no less inapt to speak of a cause of action on which a cause of action is founded. And the use of the word "facts" rather than some wider word such as "matters" or "circumstances" is itself an indication of the construction which the language to my mind suggests.

If the reference to negligence in par. (i) were a reference to the cause of action, then the inclusion of par. (iii) as a material fact would be inappropriate. Paragraph (iii) refers to "the fact that the negligence causes personal injury" but in a case of negligence in which personal injury constitutes the damage, that damage is a part of the cause of action. It may be added that each of pars. (ii) to (v) which, together with par. (i), describe what may constitute material facts, deals with facts as that word is ordinarily understood and not with legal concepts, thus suggesting that the proper construction to be placed upon par. (i) is that it similarly deals with facts in the form of acts or omissions which may found a cause of action rather than with the cause of action itself.

If the alternative construction of par. (i) were adopted, the result would necessitate a highly artificial construction of s. 57(1)(c), which provides that material facts as defined are of a decisive character if, amongst other things, they show that an action on the cause of action would have a reasonable prospect of success. If the existence of a cause of action in negligence were itself a material fact, s. 57(1)(c) would have to be construed as contemplating a cause of action showing that an action on the cause of action would have a reasonable prospect of success — a construction which can hardly have been intended.

For all of these reasons it seems to me that the reference to material facts in par. (i) of s. 57(1)(b) does not include a reference to a cause of action in negligence but is rather a reference to the facts which constitute the acts or omissions, including those facts which are necessary to show the negligent character of those acts or omissions, upon which such a cause of action might be founded. In reaching this conclusion I have derived both assistance and comfort from Smith v. Central Asbestos Co. [27] which deals with the Limitation Act 1963 U.K. and from the other decisions which deal with legislation which, together with the New South Wales Act, derives, to a greater or lesser extent, from the United Kingdom legislation (McIntyre v. Armitage Shanks Ltd. [28] ; Harris v. Gas and Fuel Corporation (Vict.) [29] ; Ex parte Bolewski [30] ). Because the particular wording of the Acts in question varies it is sufficient to say that similar considerations have led me to a conclusion similar to that reached in each of these cases.

27. [1973] A.C. 518.

28. [1980] S.L.T. 112.

29. [1975] V.R. 619.

30. [1981] Qd R. 54.

That brings me to the problem raised by this case which I have found more difficult to solve. Section 57(1)(c) provides:

material facts relating to a cause of action are of a decisive character if, but only if, a reasonable man, knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing —

(i) that an action on the cause of action would (apart from the effect of the expiration of a limitation period) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action; and

(ii) that the person whose means of knowledge is in question ought, in his own interests, and taking his circumstances into account, to bring an action on the cause of action;

Under s. 58 the court may within the limits there set out order an extension of time where it appears to the court that any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until after a specified time and there is evidence to establish the cause of action apart from any defence founded on the expiration of a limitation period. By reason of s. 57(1)(e), a fact is not within the means of knowledge of a person at a particular time if, but only if he does not, at that time, know the fact and, in so far as the fact is capable of being ascertained by him, he has, before that time, taken all reasonable steps to ascertain the fact.

It is common ground, I think, that before the specified time the appellant knew, or had within the means of his knowledge, the fact that during the period of 1971 to 1974, whilst he was employed by the respondent, he had been exposed to dust which upon inhalation was capable of causing harm. He also knew, or had within the means of his knowledge, the fact that he was to some extent suffering from a serious and disabling condition of his lungs which could be attributed to the inhalation of dust during his period of employment with the respondent. He knew that within that period of employment the respondent took no steps to prevent or reduce the inhalation of dust by him.

What the appellant says he did not know before the specified time was the fact that there were means available during his period of employment with the respondent to prevent or reduce the inhalation of dust and that it was generally known at the time by employers of persons engaged in work of the type performed by the appellant that such means were available.

To this the respondent, as I understand his submissions, replies that this lack of knowledge on the part of the appellant was not lack of knowledge of a fact of a decisive character or, if it was, it was within the means of knowledge of the appellant before the specified time.

The master who heard the application for an extension of the period of limitation found as facts that the appellant did not know until after the specified time that there were practical precautions which the respondent could have taken to keep down the level of silica dust and, further, that he did not know until after the specified time that these precautions were general knowledge in the building industry throughout the period of his employment by the respondent. The precautions referred to, it seems clear, were the wearing of face masks by those, such as the appellant, who operated jackpicks and the hosing of the area of operations with water. The master went further and found that the appellant had not failed to take reasonable steps to ascertain those facts of which he was unaware. There has been no challenge to these findings.

The form of the legislation requires, I think, a step-by-step approach. The first step is to inquire whether the facts of which the appellant was unaware were material facts: s. 57(1)(b). If they were, the next step is to ascertain whether they were of a decisive character: s. 57(1)(c). If so, then it must be ascertained whether those facts were within the means of knowledge of the appellant before the specified date: s. 58(2).

Having formed the conclusion, as I have, that the reference in s. 57(1)(b)(i) to the fact of the occurrence of negligence — by definition a material fact — is an elliptical reference to those facts which must be proved in order to establish the negligent conduct upon which the cause of action in negligence is founded, it is necessary to identify those facts in this case. In most cases, proof of negligent conduct requires no more than proof of the act or omission which is relied upon as constituting the negligent conduct. This, however, is a case in which it is alleged that the respondent was negligent by failing to provide a safe system of work for the appellant. That is no more than an allegation that the respondent failed to take reasonable steps for the safety of the appellant but in such a case it may not be enough merely to establish the actual omission constituted by the employer's conduct in order to establish the negligent character of the conduct. It may be necessary to establish as a fact that the system of work was defective by calling evidence of the steps which might have been taken to minimize or eliminate the risk of injury in the performance of the work: Neil v. N.S.W. Fresh Food and Ice Pty. Ltd. [31] . As Windeyer J. pointed out in Vozza v. Tooth & Co. Ltd. [32] :

The statement that the common law requires that an employer have a safe system of work for his employees means only that he must take reasonable care for their safety. It does not mean that he must safeguard them completely from all perils. "The ruling principle is that an employer is bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to this principle." That statement, made by Lord Keith of Avonholm in Cavanagh v. Ulster Weaving Co. Ltd. [33] was repeated and approved in the House of Lords in Brown v. Rolls Royce Ltd. [34] . The latter case and Neill v. N.S.W. Fresh Food and Ice Pty. Ltd. establish that the legal burden of proving an absence of reasonable care on the part of a defendant employer remains on the plaintiff workman throughout For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment. To quote a sentence from one of the cases to which counsel referred, "What is "a proper system of work" is a matter for evidence, not for law books": per Lord Denning in Qualcast (Wolverhampton) Ltd. v. Haynes [35] .

31. (1963) 108 C.L.R. 362.

32. (1964) 112 C.L.R. 316, at pp. 318-319.

33. [1960] A.C. 145, at p. 165.

34. [1960] 1 W.L.R. 210; [1960] 1 All E.R. 577.

35. [1959] A.C. 743, at p. 760.

In other words, where a safe system of work cannot otherwise be inferred, evidence will be necessary to identify it: Da Costa v. Australian Iron & Steel Pty. Ltd. [36] , per Mason J. One way of providing that evidence may be by calling an expert witness. Another may be by calling evidence of the practice in the industry. But what is clear is that in such a case the safe system of work is a fact to be proved in order to establish the negligent character of the conduct of the employer before reliance can be placed upon that conduct. It is one of the ingredients which go to make up "the fact of the occurrence of negligence" and for that reason is, in my view, and material fact within the meaning of s. 57(1)(b) of the Act on which the cause of action in negligence is founded.

36. (1978) 20 A.L.R. 257, at p. 266.

It was not suggested in this case that a safe system of work could be inferred from the nature of the respondent's operations, at all events during the relevant period. Evidence was necessary in order to establish that a safe system of work involved the use of precautions such as the use of face masks or the hosing down of the area of operations. It was found that the applicant was unaware during the relevant period of the availability of these precautions and this amounted to a lack of knowledge of a safe system of work as an alternative to the system under which he was employed. It, therefore, in my view, amounted to a lack of knowledge on his part of a material fact.

It has been suggested that a distinction can be drawn between primary and secondary facts and that the material facts to which s. 57(1)(b) refers must be primary facts. With all due respect this distinction is one which I do not think is relevant in the present context; certainly it is not a distinction drawn by the legislation itself. What is relevant is what the applicant had to prove in order to establish negligent conduct. Without evidence of what was a safe system of work his case in negligence was bound to fail because of the failure to prove the fact of the occurrence of negligence. Proof of a safe system of work would, therefore, seem to me to have been proof of a primary fact but, in any event, I think it was proof of a material fact relating to a cause of action within the meaning of the section.

Was the lack of knowledge of an alternative safe system of work a material fact of a decisive character? The test laid down by s. 57(1)(c) is an objective one to be applied by reference to the reaction of a reasonable man who has taken appropriate advice. I think that it must be assumed that the reference to appropriate advice contemplates not only the taking, but also the receiving, of such advice upon the facts which are relied on as being of a decisive character. Whatever else may be said of this paragraph of the section, it is clear to my mind that it characterizes as decisive at least each of those facts which must be proved in order to establish a cause of action. The question is whether a reasonable man, having received appropriate advice, would regard at least that concatenation of facts as showing "a reasonable prospect of success". In this case the appellant would not have been advised that that prospect of success was shown if the fact of an alternative safe system of work was omitted from the facts upon which advice was sought. The existence of an alternative safe system of work was, in this case, a material fact of a decisive character.

The next question is whether the existence of an alternative safe system of work was, for the purposes of s. 58(2), "within the means of knowledge" of the appellant during the relevant period. It is not enough that the appellant did not know. It is not really in dispute that he did not. It is a question of his means of knowledge. Moreover, it is to be noted that unlike s. 57(1)(c), s. 58(2) posits a subjective rather than a objective test. It is the means of knowledge which were available to the appellant which are relevant and not the means of knowledge of a hypothetical reasonable man. And s. 57(1)(e) provides that a fact is outside his means of knowledge if he does not know it and he has taken reasonable steps to ascertain it. The remarks of Lord Reid in Smith v. Central Asbestos Co. [37] , made in reference to a similarly worded provision, are to the point:

In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with "the reasonable man". Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience.

37. [1973] A.C., at p. 530.

It is also to be noted that it does not matter what advice the appellant received. In fact he sought advice and, it would appear, did not receive the advice which he ought to have been given. However, s. 58(2), unlike s. 57(1)(c), makes no assumption that appropriate advice was received when it was sought. What is important is the means of knowledge which were reasonably available to the appellant. And that must mean available in a practical and not a theoretical sense.

The master found, as I have said, that the appellant had not failed to take, before the specified time, reasonable steps to ascertain those facts which would have provided him with knowledge of an alternative safe system of work. There is no reason to doubt this finding of the master. The appellant is, as he found, "a non-English speaking, poorly educated, dull-witted immigrant in this country". Within some four or five months after experiencing the symptoms of his lung disease he saw his union representative and inquired about his rights. He was referred by the union to the union solicitors. He was medically examined at the instance of the union solicitors but was given no indication during the relevant period that he had the basis of an action against the respondent and certainly no indication that an alternative system of work was available during the appellant's period of employment with the respondent. It was not until the appellant sought advice from solicitors other than the union solicitors that he or those solicitors learnt from a medical report that the risk of injury from dust could be minimized by hosing the area of operations with water and the wearing of face masks and that this information would have been generally available at the relevant time. Within a month those solicitors commenced an action on behalf of the appellant. Having consulted his union, the solicitors to whom the union referred him and the medical advisers to whom those solicitors in turn referred him and having received no advice of an alternative safe system of work, it could not have been said that during the relevant time the appellant had within his means of knowledge at least one material fact of a decisive character within the meaning of the Limitation Act.

The appellant in his statement of claim pleaded, in addition to negligence, breach of a statutory duty created by a regulation made under the Construction Safety Act 1912 N.S.W. and this also formed the basis of a ground of appeal. If this ground was not formally abandoned, it was not argued before us and it is inappropriate that the Court should express any view upon it. I would allow the appeal and restore the order extending time in so far as it relates to the cause of action in negligence.