Dousi v Colgate Palmolive Pty Limited

[1989] HCATrans 209

~

,	'I
•	;;_.~,.

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S60 of 1989

B e t w e e n -

JANICE JEAN DOUSI

Applicant

and

COLGATE PALMOLIVE PTY LIMITED

Respondent

Application for special leave

to appeal

MASON CJ

Dousi

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 SEPTEMBER 1989, ATll.35 AM

Copyright in the High Court of Australia

SlT 7 /1/RB 1 15/9/89

MR P.M. HALL:  May it please the Court, I appear for the

applicant. (instructed by Carroll & O'Dea)

MR S.J. MOTBEY: If Your Honours please, I appear for the

respondent. (instructed by Rishworth Dodd & Menczel)

MR HALL:	If I might have the Court's permission to hand
six copies of an outline of submissions with four
booklets containing statutory material and the cases to which brief reference may be required.

Your Honours, in this application the focus of

the applicant's submissions is upon the provisions

of section 57(l)(e) rather than 57(l)(c), together
with the significance of the different approaches of

the judgments of this Court in DO CARMO's case.

If I could make brief reference to the outline of

submissions which, however, starts with section 57(1)(c),

outlines the issue which emerged on the notice of contention as to knowledge of an alternative work

system or practice and the issue as to whether that

issue reflected the underlying differences of the

opinion expressed in this Court in DO CARMO's case

and in the present proceedings, a question that

potentially arises as to the validity of applying

and adopting the approach of His Honour

Mr Justice Meagher, being the notion of primary and

secondary facts which is derived from the judgments

of Their Honours Justices Deane and Wilson in failing to disclose until October 1983 its policy of

terminating employees who accrued a certain amount of

workers compensation leave, 52 weeks, was a fact

that the "reasonable man" test would require to be

brought into account in determining the existence

and the knowledge of material facts of a decisive

character.

It is not necessary, for my submissions, to read the following paragraph and I do not rely upon

it.

Paragraph 2 deals with the substance of the

applicant's submissions in this application.

GAUDRON J: Before you get to that do you not have to establish

that the findings under 57(l)(c) were wrong?

MR HALL:	It is fundamental to the application that the
approach adopted by His Honour Mr Justice Dawson,
and agreed and accepted by His Honour Mr Justice Brennan
in DO CARMO's case, is applicable to the present proceedings, that is to say that knowledge of an
alternative system of work is a material fact of a
decisive character and I do assert in this application that that is the approach that must be taken.
S1T7/2/RB	15/9/89
Dousi

GAUDRON J: Before you could make that assertion, would you

not have to displace the findings of the Court of Appeal in relation to 57(l)(c) about the inquiry?

MR HALL: 

Yes, Your Honour, it would be necessary for me to

displace the finding of the majority, but only to

this extent, that His Honour Mr Justice Meagher is

the only judge who made a finding in that direction.

The other member of the majority, His Honour

Mr Justice Hope, though addressing the issue and

expressly refraining from expressing a concluded

view, rather agreed with the alternative approach,

that is to say that this division of primary and

secondary facts and as to whether that determines
whether the knowledge of an alternative system is a

fact of a decisive character, His Honour Mr Justice Meagher

was alone, as it were, in adopting that division of

primary and secondary fact, thereby finding that the

knowledge of an alternative system was not a material
fact of a decisive character.

So that, with respect, I would submit that the

President and His Honour Mr Justice Hope, in effect
in adopting and applying the approach of Their Honours

Justice Dawson and Brennan in determining the manner

of construction, would indicate that the knowledge of

an alternative work practice is in fact a material
fact of a decisive character.

If I could proceed to dealing with the important

question in the applicant's respectful submission of
section 57(l)(e)(ii) in its application and the
requirement of an employee to ascertain facts.

Before turning to these submissions, if I could say in summary it is asserted in this application

that there was a failure to disclose two relevant

and material facts by the employer: one, it had a
duty at law to disclose to the applicant and did

not, and the other, though not having a duty of law

to disclose, by failing to disclose it would render

the satisfaction of the taking of reasonable steps

complete by the applicant in the present matter.

Returning to the outline, paragraph 2(i), the question arises as to whether the majority judgments

have expressly or impliedly imported into the

analysis and the application of the section, "has .....

taken all reasonable steps", a notion of duty and

breach of duty. Secondly, the employer's duty

of ascertaining facts by employees, whether the

requirement to take all reasonable steps in an

employment relationship is or can be equated to the

employer's duty to inquire and modify its

practices.

SlT7/3/RB	3	15/9/89
Dousi

If, as in the applicant's submission is the case,

there is a standard rather than a duty, then it is

submitted that the matters set out from A to D were

critical in applying it in the present matter. A goes

to the knowledge only to disclose in October 1983

of the economic consequences which was a material fact withheld from the applicant until October of

1983, some 11 years after her employment began.

Fact B, which is the employer's failure to

advise when consulted, raises a question, it is
submitted, not only for this case but potentially
for all disease cases, whether they be mesothelioma
or any other such cases or this, where at least there
has been inquiry made or solicitation of advice by

the employee of the employer, and in putting that

submission the applicant would rely upon firstly

the connnon law duty on the employer not only to

provide but to inform,instruct and advise the employee,

and that in this case the employee did consult and

approach the employer for information about the

relevant material fact and was given no information.

So that it is respectfully put in this matter

that had the employer complied with its connnon law

duty to instruct and inform, then the employee would

have been advised of the material fact. But by

failing in its duty to inform and advise the employee,

it renders at the least it not open to an employer to

then say the employee has not taken reasonable steps

or, at the highest, the employer is estopped from

asserting, by its failure to disclose when required

by law, that the employee has not taken reasonable

steps.

So that if that be so, it would render or

facilitate the application of what is regarded as,

and termed, obscure provisions of limitation

legislation fairly straight forward, at least in

those disease cases, where an employee has, as it

were, gone to the employer and requested them to
fulfil their duty to inform him or her.	And where

there has been that inquiry and solicitation of

advice and a refusal to give it, it amounts to more

than an employer's failure to merely perform its

duty to instruct, there is the added ingredient that

it has failed to inform where there is a duty to

inform. There has been omission to supply information

critical and relevant, which the employee was not

given by the employer.

In this matter, it is respectfully submitted

that not only was the employer under a connnon law

duty in that respect, but as the master's judgment

reflects, it was asserted that the employer was

subject to a statutory duty to instruct and train,

SlT7/4/RB	4	15/9/89
Dousi

which would reinforce the common law position that
it was mandatory on this employer to give this

applicant and other employees afflicted and working

in the same place the information that the law says
she was required to. Therefore, if it be the case
that when consulted, no information is provided in
fulfillrrent of the duty, the omission to supply

information, in the respectful submission of the

applicant, would place the respondent in the position

of being prevented, or at least not open to the

respondent to allege that that same employee later has not taken reasonable steps to inquir~ When the

inquiry has been directed to that person, the law

places the duty to provide the information.

MASON CJ:  Mr Hall, are you not confronted with a finding

against you under 58(2)(a) which is quite independent

of this division of opinion within this Court in

FORD V DO CARMO?

MR HALL:	I am sorry, Your Honour, I do not understand exactly
what point Your Honour is referring to.

MASON CJ: What I had in mind was the passage at the foot of

page 51 of Mr Justice Meagher's judgment where he

finds that this matter was within the means of

knowledge of the applicant. Now, do you not have to

overcome that in any event, however the division of

opinion in FORD V DO CARMO falls out?

MR HALL:	With respect, His Honour applies an objective test
in forming that conclusion. It is plain that he is the only justice who has applied an objective test in making that finding.
MASON CJ:	Now, can you demonstrate that?
MR HALL:	Yes, Your Honour. His Honour, at lines 5 to 10 adverts
to His Honour's own information and refers to the
common law, and at line 19, His Honour having then
determined the law in that regard, without reference to the judgment of His Honour Justice Dawson or
His Honour Justice Brennan in DO CARMO, then states: The question then becomes whether a

reasonable woman in the position of the

applicant/plaintiff between 1973 and 1983

would have reasonably taken steps -

and so forth. His Honour is applying, as lines 19

and 20 demonstrate that His Honour then picks up

and applies to this applicant an objective test.

GAUDRON J:  But which takes account of her background and

situation, lines 15 and 16 of page 51.

SlT7/5/RB	5	15/9/89
Dousi

MR HALL:	But if I could, in answer to Your Honour's point,
take the Court to page 47 of the book and at
line 5 His Honour makes a factual finding about this applicant in her position, which is clearly wrong,
with respect.

The undisputed facts are that although she

was suffering considerably from 1973 until

1984 she took no steps whatsoever to

ascertain a fact which would have been a

material fact of a decisive character.

With respect to His Honour, it is plain that the

applicant had, on several occasions if not many,

approached and sought the employer for information.

She - not a hypothetical or reasonable person - for

taking her consideration into account, she herself

was the one who, as it were, approached the employer.

I would submit,with respect,that having approached

the person who the law requires to inform her, she

has taken all reasonable steps and could be expected

to take no others, in having approached the employer,

sought advice, and got no information.

In answer to Your Honour the Chief Justice, I

would submit that that does demonstrate - - -

GAUDRON J:	Do you say all reasonable steps were then taken because that was the only reasonable step to take,
or for some other reason?
MR HALL:	I would submit that in a situation where there is a
duty to inform and that duty is not performed, that
an applicant in the situation of this employee,
having sought the advice from the person upon whom
the duty lays to inform her, and does not get information at all, that that would obviate the necessity for her, as it were, to go looking for a
fact of which she is unaware, ex hypothesi, and that
having taken that approach and having sought advice- - -

GAUDRON J:  I could understand a submission if you were saying -

although I doubt whether the factual findings are

there to support it - that the employer's withholding

of information had the effect of shutting her out

from information available in others because it

operated to dissuade her from making inquiries.	But
I do not think that is what you are saying, is it?

MR HALL:	I am putting that submission, having regard to the
evidence which the learned President accepted, where he states that, at page 30, line 12:

(3) Although it is true that the claimant

raises the alternative work procedures with

her supervisors in her capacity as an

S1T7/6/RB	6	15/9/89
Dousi

officer of the union, as found by Allen J

those superiors "could not suggest methods

by which these problems could be overcome

or alleviated". Their response would

therefore simply have reinforced the

opinion of the appellant-

and further, at page 31 at lines 19 and 20

His Honour refers to the resigned acceptance,

after having made those overtures:

that nothing would be done because nothing

could be done;

GAUDRON J: But they are other findings of facts taken from

a different basis, do they not?

MR HALL:  Yes, that is so, Your Honour. If I could return to

the outline of the submission on page 3,

paragraph C deals with the effects of non-disclosure

of material facts, these not being facts which the

law would require disclosure of. The prospect,

previously unknown to the applicant, of termination
of her contract by reason of, firstly, the existence

of an undisclosed compnay policy of terminating

employment contracts due to workers compensation

leave amounting to 52 weeks regardless of an

employee's length of service; and secondly, that

the implementation of such policy without notice

prior to October 1983.

In paragraph D it is submitted that a proper

application of the test, where unexpected developments

leading to economic loss may convert material facts

into material facts of a decisive character. It

then activates the requirement under section 57(l)(e).

Paragraph 3 of the submission addresses the issue that His Honour Mr Justice Meagher proceeded

upon the basis it would have been open to the applicant

to have cotmnenced proceedings for general damages

and the point made there is that no regard was had to

the impact of section 63 (2) of the WORKERS''

COMPENSATION ACT which would have extinguished all

rights under the COMPENSATION ACT in her favour.

The last head of the applicant's submissions

is the key provisions of the LIMITATION ACT and
the statutory construction that has been applied to

them by this Court in DO CARMO's case. It is

submitted that in construing and applying

section 57(l)(e), firstly, Their Honours

Mr Justice Dawson and Mr Justice Brennan clearly

stated that a subjective approach should be taken,
which is consistent with the ASBESTOS case, which

Their Honours referred to, decided in the United Kingdom.

SlT?/7/RB	7	15/9/89
Dousi

This division of opinion as to whether an

objective or subjective approach is expressly

noted by Their Honours the President and His Honour

Mr Justice Hope and, as I have already submitted,

Their Honours took a similar approach on that

question. But unlike the President and

Mr Justice Hope, Mr Justice Meagher, who was one

of the majority, in the applicant's submission, did
adopt an objective approach leading His Honour not

to bring into account the facts concerning the

applicant and specifically in relation to the steps

that she sought to take by inquiring with her

employer, as I have submitted earlier.

The other issue of ftmdamental interpretation

is that arising under section 57(l)(c) and

His Honour Mr Justice Meagher again adopted the approach of Their Honours Mr Justice Deane and

Mr Justice Wilson in DO CARMO's case, whereas I

would respectfully submit that as the judgments of

Their Honours Mr Justice Dawson and Mr Justice Brennan

were in the majority in that case, the learned President indicated that the approach of those members of this Court ought to be followed and not

the primary/secondary division approach which

Their Honours Mr Justice Deane and Mr Justice Wilson

adopted.

In conclusion, it is submitted on behalf of the

applicant, that fundamental error has occurred in the

application of the key provisions, particularly of

section 57(l)(e) to this application and that if

in employment relationship cases or cases in which

there is an akin duty to warn and inform, which has

not been dicharged and there has been a failure to
discharge a duty required by law, that it would
require no more in a case such as this, and it would

not be open to an employer to assert that an employee

has taken reasonable steps when he or she has sought

that information from the one the law places the duty

upon to so inform and that that would be a principle

which could apply to many disease cases, at least

in those where there has been active inquiry by the

employee and a failure to provide the information in

response.

GAUDRON J: Is not that asserting a form of estoppel?

MR HALL: Yes, Your Honour, it could - I put earlier,

Your Honour, that -

GAUDRON J: But was it put in those terms in the Court of

Appeal?

MR HALL: 

Not in those precise terms, Your Honour.

GAUDRON J: 

And if you are asserting estoppel, does that not

require some factual findings that are absent in this
case, for example, reliance?

S1T7/8/RB	8	15/9/89
Dousi

MR HALL:	Your Honour, I can only rely on those conclusions
that thelearned President  I earlier took the
Court to drew from the evidence, that is to say the acceptance by an employee of the position as
given and reliance in that sense.  But I have put
that that would be, at the highest, that an estoppel
would arise from such a situation but I put as an
alternative earlier proposition that at least it
would not be open to an employer to assert failure
to take reasonable steps if that step had been taken
by the employee.

May it please the Court, they are the submissions.

MASON CJ: Yes, Mr Motbey.

MR MOTBEY:  Your Honours, the employer resisted the worker's

application on three bases: firstly, that as a

matter of law the fact that she was advancing as
being material fact of a decisive character was not
capable of being a material fact of a decisive

character because the reasoning of Justices Wilson and

Deane in the DO CARMO case was the preferred

expression of principle. And I might point out that

in subsequent decisions, a number of judges of the

New South Wales Court of Appeal and single judges of

the common law division have made decisions in

reliance upon-preferring the approaches of

Justices Wilson and Deane.

T7 MASON CJ: How does that help us, though?

MR MOTBEY: That helps my friend, I suppose, in that what it

shows is that there is a real tangible judicial

controversy as to which interpretation of law in

relation to section 57(l)(c) ought to be the law of

New South Wales.

MASON CJ: Yes, that is what I meant, but it does not seem to

help you.

MR MOTBEY:	No, but I am not trying to avoid the reality that there is a serious and important question of law in
relation to 57(1)(c), but that was my first ground
of defence in these proceedings.
The second ground of defence is purely factual, that is, Mrs Dousi knew the fact. In other words,
if the fact was entitled to be allowed into the class of material facts of a decisive character, she knew
it, and on that issue of fact I lost.

The third ground was also a pure question of

fact. If she did not actually know it, she ought

to have known it. She failed to take all reasonable

steps to ascertain it. Now, In relation to that

issue of fact, three judges of the supreme court have

S1T8/l/RB	9	15/9/89
Dousi

looked at Mrs Dousi's case, looked at her circumstances,

looked at the evidence that she was calling - and she,

of course, carried the ultimate onus of proof - and

those three justices have found as a fact that she

failed to take all reasonable steps to ascertain the

fact that she relies upon. And those justices are

Justice Allen, in the common law division, and

Justices of Appeal, Hope and Meagher in the Court

of Appeal.

The real difficulty, I submit, in the present

application to this Court is that the serious and

important controversy of law concerning the

preferability of the approaches of Justices Wilson

and Deane over the alternative approaches of

Justices Brennan and Dawson is not a killing point

of decision in Mrs Dousi's case. The issue could

be brought up into this Court, decided one way or

the other; she is still confronted with a simple
finding of fact that she failed to take all reasonable

steps to - - -

MASON CJ:	So that the Court, when it hears the appeal if special leave is granted, might, on hearing argument on the issue of fact decide to revoke the grant of special leave to appeal on the footing that the major point of principle does not arise. That is the submission,
is it?

MR MOTBEY: Yes. Well, that is an approach, I suppose, that

could be taken and I would not speak against that

except to say that this Court ought to have some

real concern as to the prospects of Mrs Dousi

succeeding in overturning a finding of fact - - -

MASON CJ: Well, it always does have real concern as to whether

an applicant can overturn findings against the applicant, whether they be findings of fact or conclusions of law.

MR MOTBEY:  In my submission, the probabilities are very much

against her in succeeding in circumstances where

no further evidence is going to be allowed; she has

called all her evidence at the trial before the

master; the case has been litigated again before

Mr Justice Allen and again by way of rehearing before three judges of the Court of Appeal and

two of Their Honours have determined that

in point of fact, she is a person who ought to have

known the point of fact that she relies upon as

justifying this discretion in her favour.

Now, in so far as it is submitted here by the

applicant that there is some misdirection or some
high point of principle in relation to section 57(l)(e)

and some suggestion that there might have been a

misdirection, that Their Honours had misdirected

SlT8/2/PLC	10	15/9/89
Dousi

themselves in the application of that section,

in my respectful submission, it simply does not

arise. In other words, there is no important

point of principle in relation to section 57(l)(e).

What is posited there is that the court examine

the evidence as it relates to the particular
individual and make an objective determination,
having regard to that evidence, as to whether or
not that particular individual has taken all

reasonable steps to ascertain the relevant fact.

And as I have said, it is a matter that has been

litigated extensively and the material fact which

she relied upon has been found to have been within

her means of knowledge and ·that. she did not take

all reasonable steps.

So that although I accept - just in summary,

whether this is an appropriate vehicle to have

I do accept, and I do not think I can run away
from the fact, that there is a large issue of law

and an important one in relation to section 57(l)(c),

that fact determined, bearing in mind that we

could proceed down some hours of an argument

in relation to the DO CARMO case and then it become

abundantly apparent that the appellant is going to

lose on the facts because she obviously had failed

to take all reasonable steps, and it would all

come to nothing.

MASON CJ: Thank you, Mr Motbey. Yes, Mr Hall?

MR HALL:  There is nothing further I wish to put in reply.

MASON CJ: Yes, thank you, Mr Hall.

Resolution of the division of opinion in this

Court in FORD V DO CAru-0 would, in an appropriate case,

call for the grant of special leave to appeal.

However, in the present case, before the proposed

appeal could succeed, the applicant must overcome

a majority finding that the applicant did not take

all reasonable steps to ascertain the relevant

fact; see section 57(l)(e) of the LIMITATION ACT 1969.

In view of this finding of fact, the case is

not an appropriate vehicle for the determination of

the major point of principle. The application for

special leave is therefore refused.

MR MOTBEY:  Your Honour, I ask for costs.

MASON CJ:  Yes, Mr Motbey. You cannot oppose that, can you, Mr Hall?

The application is refused with costs.

AT 12.08 PM THE MATTER WAS ADJOURNED SINE DIE

SlT8/3/PLC	11	15/9/89
Dousi