Hollins v Commercial Minerals Ltd & Ors- Hollis v Auqal Pty Ltd - [1995] HCATrans 223

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S62 of 1995

B e t w e e n -
DENIS PAUL HOLLINS
Appellant
and
COMMERCIAL MINERALS LIMITED
First Respondent
and
LANDORA SECURITIES PTY LIMITED (originally NON-METALLICS LIMITED)
Second Respondent
and
AUQAL PTY LIMITED (originally QUALITY EARTHS PTY LIMITED)
Third Respondent

Office of the Registry
Sydney No S63 of 1995

B e t w e e n -
DENIS PAUL HOLLINS
Appellant
and
AUQAL PTY LIMITED (originally QUALITY EARTHS PTY LIMITED)
First Respondent
and
COMMERCIAL MINERALS LIMITED
Second Respondent
and
LANDORA SECURITIES PTY LIMITED (originally NON-METALLICS LIMITED
Third Respondent

DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 AUGUST 1995, AT 10.17 AM

MR D.F. JACKSON, QC: If the Court pleases, in each of these matters I appear with my learned friend, MS A.J. KATZMANN, for the executrix of the estate of the appellant. (instructed by Turner Freeman)

DAWSON J: Do you need to make an application?

MR JACKSON: I am about to your Honour, as soon as my learned friends have announced their appearances.

MR B.M. TOOMEY, QC: May it please your Honours, I appear with my learned friend, MR D.R. RUSSELL, for Commercial Minerals Limited which is the first respondent in the first appeal and the second respondent in the second appeal. (instructed by A.O.Ellison & Co)

DAWSON J: I have a certificate here from the Deputy Registrar that she holds a letter dated 18 April 1994 from Hickson Lakeman & Holcombe, the former solicitors for Landora Securities Pty Ltd, the second respondent in matter No S62 of 1995 and the third respondent in matter No S63 of 1995. The letter indicates that the Company has gone into liquidation and the liquidator does not wish to participate in these proceedings. No appearance has been filed by Landora Securities Pty Ltd in these matters.

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MR G.J. PARKER, for Auqal Pty Ltd, the third respondent in the first appeal and the first respondent in the second appeal. (instructed by P.V. McCulloch & Buggy)

MR JACKSON: Your Honours, in each of these matters I seek to move in terms of a notice of motion which has been filed in the Court on 11 August this year and it seeks orders pursuant to Order 18 rule 2 that Donna Therese Harris, as administratrix ad litem of the estate of the appellant, be substituted as appellant in the proceedings, and that papers in support of the application demonstrate that the appellant died last Sunday week and she has obtained, and as your Honours might expect, obtained urgently, letters of administration for the purpose of conducting the present appeals.

DAWSON J: Other parties have anything to say about that application?

MR TOOMEY: No, your Honour.

MR HISLOP: No, your Honour.

DAWSON J: The application is granted.

MR JACKSON: Your Honours have been handed, I think, copies of an outline of submissions in this matter.

McHUGH J: Do you not need to amend your notice of appeal, Mr Jackson? Is not the notice of appeal that is filed in this case the draft that was put on before Dedousis Case?

MR JACKSON: It has been amended, I think, in terms of the - your Honour, perhaps I would I say this: what had happened, as your Honour may recall, was that the present cases were ones where an application for special leave had been adjourned and then when the matter came on again, what happened on that occasion was that further submissions were put in which indicated the way in which the notice of appeal that had been - the earlier draft would be amended if the application for special leave were granted, and that amendment, as I recall it, was by deletion of a paragraph.

TOOHEY J: You finessed your grounds of appeal to remove such grounds as were overborne by Dedousis.

MR JACKSON: Yes, your Honour, that is so. I am not conscious of what your Honour is particularly putting to me.

McHUGH J: What I had in mind was, if you look at 230 ‑ no, the error is mine, Mr Jackson; 60; it is Mr Justice Handley’s error.

MR JACKSON: Yes. Your Honours, may I apologise for the length of the outline of the submissions, but the history of the matter made it necessary to try to put it in as brief a form as possible and it is, unfortunately, rather lengthy. As your Honours will see from the outline of submissions, the appeals involve two issues: one relates to the order of the Court of Appeal allowing appeals against orders extending the limitation period in respect of causes of action arising from the worker’s employment with respondents during two periods. Your Honours, the two periods are: first, 1 July 1969 to 31 March 1973 where the employer was the company, Auqal; the second period followed immediately afterwards, that is 31 March 1973 to 15 August 1986, the employer being Commercial Minerals.

The employment, your Honours, took place in the same building for the three employers. It is not as if they were completely separate in every respect. That is the first issue and the second is whether payments made under the Workers Compensation (Dust Diseases) Act 1942 should be taken into account in reduction of damages and may I deal with the issues in that order? Your Honours, in dealing with the limitation issue, may I go first and briefly to the basic facts and, having done that, turn then to the statutory provisions which are relevant in order to seek to identify more precisely the issues with which the Court is ultimately concerned.

MR JACKSON: Your Honours, if I could go first briefly to the basic facts: the worker had been employed, as I said a moment ago, at the same premises by three employers. Landora, the company that your Honours have heard is now in liquidation, was the first employer in terms of time. It had employed him on two occasions, the first of those being 25 October 1953 until 31 March 1955. There was then a break when he went to other unrelated employment and he was there again from 8 July 1957 to 12 July 1962.

Your Honours, the relevant finding which indicates the times at which he was employed, if I could give your Honours the reference, that is at page 178 lines 11 to 26. In the course of his employment the worker contracted silicosis, complicated in his particular case by what is described as progressive massive fibrosis which was held to be caused by the failure of all three of the employers to take reasonable care for his safety.

Might I take your Honours for just a moment to the findings of the primary judge in relation to that aspect which your Honours will see at page 185. It is a passage, your Honours, which commences at about line 6. It goes through to page 186 about line 7. I refer your Honours to the lot, of course, but may I refer particularly to three passages. The first is the first five lines of that passage under the heading “Causation” on page 185, the second is the last three lines on page 185 going over to the end of the section from the fifth line on page 186.

Your Honours have heard the expressions “silicosis” and “progressive massive fibrosis” and because they play some part, may I refer your Honours to some brief passages from the medical evidence indicating the nature of those two conditions and your Honours will see that in the evidence of Dr Giannoutsis which commences relevantly at page 105. Your Honours, this is a passage where he deals with the general nature of silicosis, that is 105 lines 12 to 21.

On the next page, page 106, lines 3 to 10, he refers to the inability to predict the exact course, or the future of a person, from a diagnosis of silicosis referring to the idiosyncratic nature, in effect, of the reactions to it. The fact that - - -

McHUGH J: Just stopping there, does not that evidence create enormous difficulties about bringing in a single judgment against the three tort fees?

MR JACKSON: Your Honour, I accept that. Try as one might, it is very difficult to see how one could quite do that.

McHUGH J: Yes.

MR JACKSON: Your Honour, if I could just say one thing about it. If one took, for example, the period of the first employment, there must be some pain and suffering attributable to that and that alone. If one goes from there to page 113, your Honours, and in particular at about line 46, what is set out there is the fact that it is the crystalline forms of silica which are responsible for the development of silicosis and, your Honours, at page 116, line 40, to the bottom of the page, what your Honours will see is that the progressive massive fibrosis is not always associated with silicosis and it occurs, as your Honours will see from that passage, really because the “fibroses” if that be the right word, around individual deposits coalesce and give the massive fibrosis. Your Honours, those are the passages I wish to refer to in that doctor’s evidence.

So far as the progressive massive fibrosis was concerned, the evidence was that it was not diagnosed until 1982. That is Dr Joseph page 133 lines 45 to 46. Your Honours will see at about line 47 he said, “I think it was 1982.” I should add in relation to what I just said that an earlier date was put to Dr Gianoutsos but the evidence was left equivocal. That appears at page 117 line 2 through to page 118 line 4. Now, your Honours, the limitation period for commencing proceedings against any of the employers was six years and by that I mean the ordinary limitation period as it were. That period had expired in respect of the first two employers and had almost expired in respect of causes of action against the third employer at the time when the worker commenced proceedings against the three employers and that date was 25 March 1991.

Your Honours will see that summarised in the judgment of Mr Justice Handley in the Court of Appeal at page 211 lines 4 to 16. Now, your Honours, in 1990 however the New South Wales Parliament had enacted legislation intended to benefit people in the position of the worker and that legislation was the Limitation (Amendment) Act 1990 and it introduced provisions into the Limitation Act 1969. The two parts of the Act as amended which were germane to the case were Subdivision 3 of Division 3 of Part 3 and in particular section 60G on the one hand and on the other hand Schedule 5 to that Act. Your Honours, those are the provisions considered by the Court in Dedousis v The Water Board 181 CLR 171 to which I will come a little later. I will come back if I may in a moment to the events which occurred before the primary judge and in the Court of Appeal.

GUMMOW J: The 1990 Act itself was then amended, was it not, in 1993?

MR JACKSON: Yes, your Honour.

GUMMOW J: Does that have any impact on ‑ ‑ ‑

MR JACKSON: No, your Honour. The amendment of the relevant part, I think, was just one. That required that an application for an order be made within a specified time as distinct from the order itself being made. The phraseology of one of the provisions had caused some difficulty. But there is nothing in the amendment, your Honour, that touches the present case. Your Honours, the results of the case, if I could say this first of all, were that, at first instance, the primary judge had granted an extension of the limitation period but, on appeal, the Court of Appeal overruled that decision.

Now, your Honours, could I take your Honours for just a moment to the relevant statutory provisions with a view to identifying the issue on which there was the ultimate failure on behalf of the worker, and the issue which is the subject of the present contention. Your Honours, the structure of the relevant provisions of this part of the Act, in our submission, is clear enough. In the first place, section 60F - it is at page 36 of the pamphlet - sets out the purpose of the subdivision, which is to provide for what is described as being a further discretionary extension of limitation periods, and that provision, section 60F, was held in Dedousis to be an introductory provision, and that that is so, your Honours will see, in Dedousis 181 CLR, at page 176 at the bottom of the page going to page 177 about point 7 on the page; the last three lines on page 176 going through to, as I said, point 7 on page 177.

Your Honours, it is the introductory provision, the provision which confers the power, that is, the power to extend the limitation period, is section 60G(2), and what your Honours will see from that provision is that it empowers the court to extend the time if the court is satisfied that it is just and reasonable to do so. Before the court can proceed to exercise the power, however, the precondition in section 60I must be satisfied. If I could take your Honours to section 60I, which is the provision of relevance for present purposes. What your Honours will see is that it provides that:

A court may not make an order under section 60G or 60H unless it is satisfied -

of a number of matters, and the matters fall into two parts, namely, those referred to in subsection (1)(a) and, secondly, those referred to in subsection (1)(b). Could I pause at that point to say this, your Honours, that the latter provision (1)(b) is not applicable to the present case because the proceedings were instituted on 25 March 1991 and subparagraph (b) had no application because of the terms of clause 4(4)(b) of Schedule 5.

Your Honours, if I could just say in relation to that, that was held to be the case in Dedousis and that is one of the points that that case decided. Your Honours will see that at page 179, about point 2 on the page. It is the passage that commences at about point 2 and through that paragraph. So that the terms of subparagraph (b) do not matter for present purposes. May I stay with the terms of section 60I(1)(a). In terms of section 60I(1)(a), it is clear enough, in our submission, that it is in effect a threshold provision. That is that it is intended to provide a criterion or a set of criteria which must be satisfied before the power conferred by section 60G(2) may be exercised. The opening words of section 60I(1) suggests that.

Your Honours, if I could just pause to say this: when one does come to the operative provision of section 60G(2), its terms also make it apparent that the mere fact that the threshold provision of section 60I has been satisfied does not carry with it the automatic consequence that an order extending the limitation period will be made, because it is a condition of the favourable exercise of the power that it must be just and reasonable to do so and no doubt the degree of seriousness or triviality involved in the lack of knowledge or lack of awareness referred to in section 60I(1)(a) would be relevant to the exercise of the power.

If I could return then to section 60I(1)(a), what your Honours will see is that its terms are concerned with or expressed in terms of knowledge and awareness, or knowledge and perhaps unawareness is the more exact description of it. Those terms, it is submitted, are apt in the circumstances to refer to actual knowledge and actual awareness of the matters there referred to rather than any deemed or imputed knowledge or awareness or unawareness.

Your Honours, could I refer to three matters in support of that. The first is something from Dedousis and it is this, that although the Court in that case was not dealing directly with the question in one sense, the basis of the decision appears to be that the awareness contemplated is actual awareness. Could I in that regard take your Honours to the decision again. If I could start from page 178, about point 2 on the page, what the joint judgment says - and this is purely an introductory part - is that:

There are two basic facts of which the court must be satisfied. The first -

and then there is a paraphrase of the terms of section 60I(1)(a). The second part, your Honours, is the part commencing at page 181 at about point 9 and going through to the end of the reasons where it is made apparent, we would submit, that what is being contemplated by the awareness or unawareness is a state of fact and actual knowledge or actual lack of awareness is contemplated.

Your Honours will see the way in which the case was dealt with in the last paragraph of the reasons indicates that particularly, in our submission, because the court remitted the matter to the District Court to consider whether the plaintiff was unaware of the matter set out in 60I(1)(a)(3) and then your Honours will see that threshold question, if resolved in his favour, then gave rise to the just and reasonable question under 60G(2). Your Honours, that is the first thing.

The second thing is that, when the Limitation Act is concerned with a situation other than actual knowledge, it appears to give some indication in that regard. Could I take your Honours very briefly to two provisions: section 58(2)(a). At page 32 of the pamphlet, your Honours will see a reference to “means of knowledge” ‑ are not within the means of knowledge. The second is in section 60 E(1)(g) and your Honours will see there a reference to what is to be taken into account is steps that might have been taken to give advice and what advice might have been received in comparison with what is in, for example, a couple of subparagraphs up, paragraph (e) where there is a reference to what, in our submission, were the actual awareness.

The third thing, your Honours, is this, that the ordinary meaning of terms like “awareness” and “knowledge” is that it refers to actual awareness. Could I just give your Honours one reference in that regard? In a judgment of the Court in Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1984) 155 CLR 129. The case was concerned with something entirely different, of course. There was a provision allowing a purchaser of a building unit to avoid a contract within a specified time after becoming aware of a failure to comply with specified statutory matters. The provision is at page 133, about point 7, subsection (5) and the last words above the proviso:

after he first becomes aware of the failure ‑

but the comment that is germane as to the meaning of “awareness” is at page 151 at about point 4 where your Honours will see:

Indeed, the very words “becomes aware” strongly indicate that the statute is looking to the purchaser’s actual knowledge ‑
Your Honours, what we would submit finally, perhaps as the fourth matter, is that the structure of the provisions is against the view that section 60I(1)(a) should be given a narrow meaning or a meaning other than “actual knowledge”. What I mean by that is that section 60I(1)(a) is a precondition; it casts its net wide but the degree of actual awareness and the degree of, in effect, unawareness compared with ‑ your Honours, I am putting that badly. What I am seeking to say is this: one can get through the threshold, or get through the door of section 60I(1)(a), in our submission, by showing, perhaps, not all that much. But the fact that not all that much had to be shown to get through the provision is something that can be taken into account in deciding whether it is just and reasonable under section 60G(2). That is the point I am seeking to make.

TOOHEY J: There is a shift in language in paragraph (a) from “knowledge” to “awareness”.

MR JACKSON: Yes, your Honour.

TOOHEY J: I suppose that is understandable given that one would ordinarily know that personal injury had been suffered. “Awareness” seems to let in a rather greyer area.

MR JACKSON: Yes, indeed, your Honour. It really covers a number of situations, in a sense, and what your Honour puts to me is right. If one took, for example, a simple case where a person suffered an injury which was a fracture, say a fracture of the leg or arm, now, it is a perfectly apt description to say the person knows that personal injury has been suffered. But what the person may not know or be aware of is that the occurrence of the fracture had, indeed, a second consequence and that was that a pre‑existing but dormant propensity to develop an arthritic condition or something of that kind was brought into play and so perhaps “unaware” is a slightly more apt description of the lack of knowledge or lack of perception of the event which otherwise would attract the operation of the provision.

McHUGH J: But does not the real problem in this case arise not out of the word “unaware” but the words “extent of”?

MR JACKSON: Yes, your Honour, it does, but the two are combined. What I am seeking to say by that is that really two things are involved. One is a question of what extent was, in effect, known, whatever be the precise meaning of the term “unaware”, but the other question is what does “unaware” mean. Does it mean, as the Court of Appeal seems to suggest, that there can be an awareness simply because one knows that a particular result may occur as distinct from must.

GUMMOW J: There is a definition of personal injury, too, is there not, in section 11?

MR JACKSON: Yes, thank you, your Honour. That is in section 11(1) at page 6, any disease and any impairment of the physical or mental condition of a person, and that is a very wide provision intended to cover, as it says:

any impairment of the physical or mental condition -

And, your Honours, if one read the term “personal injury” with that in mind it certainly gives it a significantly wide operation.

TOOHEY J: Mr Jackson, could I just ask you this and I appreciate it is not crucial to this appeal, but I understood you to say earlier on that the matters referred to in paragraph section 60I(1)(a) might have some relevance on the question of whether it is just and reasonable to extend the time.

MR JACKSON: Yes.

TOOHEY J: So you see that paragraph as having a twofold function, an initial hurdle that has to be met and that it may also operate, notwithstanding that the hurdle has been met, in a way that could defeat the claim ultimately.

MR JACKSON: Your Honour, I would not put it in quite that way, if I may, with respect. What I would submit is this that the hurdle one has to cross to get to section 60G(2) in effect is to satisfy the Court of the matters that are in 60I(1)(a). The function of 60I(1)(a) ‑ ‑ ‑

TOOHEY J: One or other of them.

MR JACKSON: I am sorry, yes. The function of 60I(1)(a) is then spent. However, matters that have been relevant to the determination of the question whether 60I(1)(a) has been satisfied may, just because of their nature, be relevant to the exercise of the power under section 60G(2). Can I give your Honour one example. If one had a situation where what happened was the only new fact of which a person became aware was that the condition was very slightly worse than had been known to be the case for years or was very slightly different from it. Then, your Honours, that would be likely to have the result, in our submission, that the person would get through the door of section 60I(1)(a) but the Court might well say in exercising the power under 60G(2) that the difference was so slight that it would not be just and reasonable to grant the order. That is the point I am seeking to make, your Honour.

McHUGH J: But your argument seems to lead to the conclusion that a worker could just about almost always get through 60I because of the words “unaware of the extent of personal injury”.

MR JACKSON: Well, your Honour ‑ ‑ ‑

McHUGH J: Take the case of a worker who pulls a leg muscle. The extent of the tear would be unknown to him. It might be a half inch tear, it might be a quarter inch, eighth inch; is his of awareness of the extent of the tear sufficient to bring him through 60I?

MR JACKSON: Yes, your Honour, yes. It does not guarantee you will get the order under section 60G though.

McHUGH J: That would probably mean that there would be almost no physical injury that a worker would know the full extent of, a fortiori in the case of a disease.

MR JACKSON: Your Honour, that may well be the case. Could I say, however, a couple of things about that. The first is that that view,of course, btains in circumstances where by a legislation which amended the Act and which is specifically set out in section 60F to provide a further discretionary extenson of limitation periods where those very things have occurred. Your Honours will see a couple of things about that. The first is that it is further, the second is that it is discretionary and the third is that it looks to unawareness on the part of the plaintiff.

Your Honour, there are contained within the terms of this part of the Act several restrictions upon the opening of the floodgates as it were. One is the requirement of the concluding words of section 60I(1)(a) in relation to the time at which the knowledge or lack of awareness has to exist. The second is the requirement in section 60I(1)(b), not applicable to the present case because it is in a special category but generally applicable, that the application has to be made within the time specified there and the third thing is, your Honour, that if it be right to construe section 60I as being something which gets one to the position where the Court may exercise the discretion what has to be yet exercised is the discretion and matters such as the triviality or grossness, in a sense, of the difference between what the plaintiff knew or appreciated to be the case on the one hand and what turned out to be the case on the other, are germane to the exercise of that power.
I do not know that I can take it beyond that but it is true to say, we would submit, that many cases are likely to fall with section 60I(1)(a).

McHUGH J: If you read “extent” literally or the phrase “extent of personal injury” literally the worker would breeze through it in almost every case.

MR JACKSON: Your Honour, it may be that many are called but few are chosen in the end.

McHUGH J: So that one would then have to go to 60G(2).

MR JACKSON: Yes, and your Honour will see that the test ultimately contemplated by 60G(2) is one that there has to be a decision by the Court that it is just and reasonable to do the very thing, that is, to order that the limitation period be extended.

TOOHEY J: In respect of that you took us to section 60I(1)(b) and that uses the expression “ought to have become aware”.

MR JACKSON: Yes, your Honour, that is right. In fact, the presence of that phrase in 60I(1)(b) but not in (a), where (b) is a provision limiting the time within which the floodgates, if I can use that expression again, are to be open in any case, the presence of that there militates against the view that a narrower view of the term “aware” or “knowledge” is to be taken in paragraph (a). Your Honours, could I come then to the last words of section 60I(1)(a) which were the words that perhaps ultimately were crucial to the case below. As your Honours will see from the concluding words of 60I(1)(a) the lack of knowledge or unawareness has to exist:

at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted -

so that one has to identify that time. Your Honour, could I go then to the way in which those issues were dealt with in the courts below because they were dealt with on the basis of cases that have now been overruled by Dedousis. In the Dust Diseases Tribunal the primary judge made orders under section 60G extending the limitation period to enable the present proceedings to be maintained and your Honours will see that in two passages: page 171 lines 21 to 29 where he sets out the nature of the application and then at page 176 at the conclusion of his reasons, lines 9 to 10.

Your Honours, it is apparent that in so doing his Honour followed the decision of the New South Wales Court of Appeal in James Hardie & Co Pty Ltd v Wootton (1990) 20 NSWLR 713. Your Honours, may I just say that it is apparent that he did that from two passages in his reasons which your Honours will see at page 171 lines 30 to 35 where the defendants, now of course so enthused about section 60I, simply seem to make submissions about section 60G and the second passage is at page 175 between lines 15 and 16. Your Honours, could I just say that in Wootton it had been held by the Court of Appeal that in cases such as the present, and I say that to refer to cases brought within a specified time, it had been held that the power of the court under section 60G(2) was not limited by section 60I. In other words, one did not have to satisfy section 60I. Wootton in that regard was overruled by Dedousis, and could I give your Honours the two references in Dedousis where that was dealt with: first of all, page 178, at about point 5. Your Honours, it is the paragraph commencing “However” and just going through to the end of that paragraph, really.

Now, at page 179, about point 3 on the page, your Honours will see that Wootton was overruled. Now, your Honours, if I could just say that, notwithstanding having followed Dedousis, the primary judge did, however, make a number of findings about awareness and knowledge and did so for the purpose of determining the just and reasonable question under section 60G(2) and, your Honours, one of the contentions which we advance is that those findings were findings based on a view of the oral evidence, including the evidence of the worker, and those findings were set aside by the Court of Appeal, which then substituted its own findings for them.

Now, your Honours, could I go then to the Court of Appeal. The present respondents appealed to the Court of Appeal against the orders extending time, and your Honours will see the relevant parts of the notices of appeal are at pages 199 and 202. The Court of Appeal held that it should follows its own decision in Electricity Commission v Plumb (1992) 27 NSWLR 364. Your Honours, if I could say two things about that. The effect of that decision was that a worker must establish not the matters set out in section 60I but, rather, the matters set out in section 60F and, your Honours, your Honours will see the Court of Appeal saying that in this case at page 211, line 43 through to page 212, line 6. Now, your Honours, that too was overruled by the Court in Dedousis as your Honours will see at page 177, point 3 to about point 9 on the page.

McHUGH J: Did any of the pre-Dedousis in this Court, jurisprudence of the Court of Appeal, survive that decision, or is there ‑ ‑ ‑

MR JACKSON: Your Honour, I think the answer is probably not much, as my learned friend says. In fact, the Court of Appeal, very soon I understand, is to engage upon a series of post-Dedousis cases. A test one, in effect, of which to try to set a standard was argued last week and, your Honour, it really would decide, I suppose, in New South Wales, what the structure of the matter that I have been arguing in a sense, 60I and 60G is but, your Honour, there are a large number of cases banked up which will depend on that and this, I suppose.

McHUGH J: The reason I ask you is this: for the purpose of this case, as to whether we can safely disregard all those cases before Dedousis, or is it still necessary to look at it?

MR JACKSON: Your Honour, we will not be referring to any. Our learned friends, I suspect, will seek to persuade your Honours that nothing much has changed really, but from what your Honours may have to judge. What I was going to say was that if I could come then to the findings, our submission is that the Court of Appeal made a number of findings of fact which were contrary to findings made by the primary judge after hearing, as I said, oral evidence which was open to him to accept. On issues such as awareness, lack of awareness and knowledge, they are, if I could use the expression, quintessentially issues on which so much depends on the judge’s estimation of the person whose state of knowledge is in issue.

Your Honours, may I first identify the relevant findings of the primary judge and then those of the Court of Appeal. The findings of the primary judge appears at three pages: 173, 174 and 175. May I go first to page 173. The passage commences at about line 29 where he referred to the fact that:

The plaintiff has given evidence of his reactions to his condition and its symptoms.

It is the next sentence, your Honours, that is important. It is expressed by him as being a recitation of the plaintiff’s evidence, but it is apparent from a passage a little later that he is accepting it. What he says is:

He has maintained that he thought his illness or disease would remain static and that it would not necessarily deteriorate further.

He goes on to describe what was in effect the medical evidence. If I could just observe in passing, his father, who had also had silicosis, a matter upon which much reliance was placed by the other sides before the Court of Appeal, was a man who had kept on working till he was 67 and died when he was in his 70s.

TOOHEY J: Mr Jackson, are the symptoms produced by silicosis and those produced by fibrosis similar?

MR JACKSON: Is your Honour speaking of progressive massive fibrosis?

TOOHEY J: Yes.

MR JACKSON: Your Honour, I think the answer is yes. I will just check that if I may in a moment. The progressive massive fibrosis is really an exacerbated form of it brought about by the fact that - and I am no doubt expressing this in a non‑medical way - the particular granular insertions that caused the fibrosis to arise in the first place have in effect come together to produce a massive version of the same thing and that, as the name implies, is something which is progressive and can, no doubt because of its size, produce greater complication than in the past. But they do not seem to be different in kind, your Honour.

TOOHEY J: Thank you.

MR JACKSON: Your Honours, I said a moment ago that what is set out at line 30 in effect as being what the worker said appears to have been accepted, and that that is so appears at about line 39 where his Honour said:

It would seem to me that the adoption by the plaintiff of that position in relation to his particular disease was, in the circumstances, not unreasonable.

He referred to a “particular incentive” in the next sentence. What he was referring to there was the fact that the worker was a man who had at that point six children, one of whom was a child with Down syndrome.

Your Honours, the second finding is at page 174 about line 11 where your Honours will see his Honour says:

at least as at 24 December 1982, the plaintiff would have been, on the basis of that report, in some doubt as to the cause of his disease.

Could I just invite your Honours to note two features? The first is simply the date - 24 December 1982. I mention that, your Honours, because the terms of the findings by the Court of Appeal, to which I come, say in effect he should have known all about it by 1979 - three years earlier.

The second thing is the reference to the report is reference to a report of Dr Field - that is the document at pages 165 and 166. As you will see from the address at the top, in effect, the addressee, Dr Field was seeing him on behalf of the Dust Diseases Board. The most relevant part is the top of the next page, page 166 where he says:

I am afraid the results are rather inconclusive

The third finding by the primary judge is at page 175 about line 16 immediately after the passage to which I referred earlier where he said:

I conclude that the plaintiff had some doubts as to the nature, the extent and the cause of his disease, at least until some time after 1986.

We invite the Court once again to note the particular time - “at least until some time after 1986”.

Your Honours, the findings made by the Court of Appeal in relation to these matters appear at pages 215 through to 217. The first is at page 215 line 25 where what was said by Mr Justice Handley, who gave the judgment to the court:

I can only conclude that by 1979 the worker knew that he had silicosis, the general nature of this disease, its extent as determined by the Board in 1978, and its cause.

He goes on to say:

he knew that there was “a real chance” or “a real risk” that his condition would continue to worsen.

Your Honours will see that he said “by 1979”. Your Honours will have recalled that the primary judge had held he had doubts until at least some time after 1986.

The second finding made by the Court of Appeal is at page 216 at the top of the page, where he says:

that by 1 April 1979 the worker’s knowledge of the extent of his then disability was for all practical purposes complete.

The third one is where he says the same thing at page 217 lines 9 to 14:

In my opinion the worker’s knowledge of the extent of his silicosis was for all practical purposes complete at all times between 2 April 1979 and 15 August 1986.

Your Honours, no doubt it was open to the Court of Appeal to form its own view on those matters and to reach a finding different from the findings of the primary judge if the primary judge had, in some way, misapprehended the evidence or there was no evidence to support those, or if it was otherwise something that was really unbelievable. But, your Honours, that was not the case and I will come to the evidence in just a moment.

If I could proceed now to deal with the position so far as the evidence before the primary judge was concerned. Our submission is that it was perfectly open to him to take the view that the worker was unaware of the matters referred to in section 60I(1)(a)(ii) and perhaps (iii) at all times which were material. Your Honours, I will need to go to some passages in the evidence and it will take me, I am afraid, a few moments to do so. The passages to which I am about to refer are those to which the references have been given in the outline of submissions and, in particular, your Honours will see them set out in, I think, paragraph 13.

GUMMOW J: Am I right in thinking, Mr Jackson, that the only cross‑examination of your client is at 129 and 130?

MR JACKSON: Your Honour, I do not think that is quite so.

GUMMOW J: There was more than that?

MR JACKSON: There was cross‑examination at 129, then at 130 and I think a little earlier, your Honour. There is some at 116 and 97. May I start first of all at page 50 and take your Honours to lines 10 to 54. In this passage at lines 10 to 54, he is asked about his dealings with the Dust Diseases Board over the years and the discovery that he had silicosis. At page 52 line 37 through to page 53 line 25, he deals with the fact that there was some deterioration of his condition between 1971 and 1986 which he explains. Your Honours, at page 55 in a passage which commences at line 35 and goes through to page 56 about line 18, he refers to the fact that since 1986, there has been a deterioration in his condition which is, as is apparent from what he says, a serious deterioration. He had gone from being able to walk, for example, a kilometre to only being able to walk 50 metres.

MR JACKSON: Your Honours, perhaps importantly, at page 65 in a passage between lines 35 and 40, a “depressive state” had developed and that included a reaction to an inability which had developed in only very recent times before the trial to have sexual intercourse. Your Honours, the passage commences at about line 35 on page 65. It really goes through all the remainder of that page and then through page 66 and your Honours will see the last few lines on page 66 which refer to a development which had occurred only 12 to 18 months ago, and your Honours will see from the bottom of the page he is speaking about 2 December 1992 as the reference point. Could I just say that there is not the slightest hint in the evidence that he was aware of the possibility of depressive illness or of impotence before it occurred.

Your Honours, at page 67 from the top of the page through to line 45 he describes the degree of the depression which has developed. I should note at page 69 there is some cross‑examination by Mr Petty on behalf of one of the respondents. Then, your Honours, one goes from there to page 75 and during the cross‑examination by Mr Sharpe from about line 49 through to about line 11 on page 78. I am sorry, your Honours, it is a long passage which discusses his awareness of conditions but the evidence is really inconsequential in the event and what finally emerges from it is what appears at page 78 about lines 9 to 11 where he agreed that by the time he ceased work, which was in 1986, he was well aware that it was a fairly serious condition that he had.

At page 80 he dealt with the situation of his father. The relevance of his father’s situation is no doubt that some inference is sought to be drawn from the fact that his father had died from silicosis and it was thought that his state of knowledge might be improved by saying the way in which his father died.

Your Honours will see at page 80, lines 37 to 52, that his father died when he was 73 and at page 85 your Honours will see in a passage which goes from lines 39 to 43 he said that his condition had deteriorated steadily since he left work, which was in 1986, but getting most directly to the matters - perhaps I should just say one other thing, that if I could go back to page 53 for a moment, that at about line 22 your Honours will see that he was not referred to a specialist by a GP until 1985. But getting to the evidence which most directly bore upon these findings: that commences at page 87 at the bottom of the page, about line 50, in a passage which goes through to page 88 about line 38. At the bottom of page 87 he was asked whether he had a belief as to his condition during the 1970s, whether it would interfere with his working future. He says, “I was unaware.” He was asked:

When did you first become aware that your condition would interfere with your working future. A‑‑‑Approximately 1985.

Now, your Honours, he refers then to seeing Dr Gardiner, that is the specialist. Then if I could go to about line 9:

When were you first aware, even if indeed you are, as to what is your life expectancy; have you ever discussed that with a doctor. A‑‑‑No.

The doctor had not sought to discuss it with him. He was asked then, your Honours, line 14, was he aware as to the cause of his silicosis. He said, “I’m unaware.” He was asked whether one employer caused it or a number and he said, “I’m unaware”. Your Honours will see the next question and answer, he was unaware at any stage as to the rate at which he could expect his condition to deteriorate. He was asked again:

In the 1970s, did you know whether you were going to deteriorate at the rate you did, or were you just unaware. A‑‑‑I was unaware.

Then, your Honours, one goes down to line 34. He was asked:

Were you aware in the 1980s as to what to expect in respect of your condition.

Line 37:

rate of deterioration. A‑‑‑I was unaware.
Did anyone tell you. A‑‑‑No.

Now, your Honours, that was evidence which the primary judge was perfectly entitled to accept. He had the witness there in the witness-box and could see him giving evidence. Your Honours, I should just say that there was some further material in further cross‑examination and could I take your Honours to the three passages in that regard.

McHUGH J: Just before you go, when he talks about being unaware of deterioration and rate of deterioration, is that the same thing as extent of personal injury or one is talking about the effects of personal injury?

MR JACKSON: It is really the extent of personal injury, your Honour.

McHUGH J: What about depression or sexual inadequacy, are they matters that go to extent of personal injury or are they simply the effects of personal injury suffered?

MR JACKSON: Your Honour, if I could perhaps go to the definition of what “personal injury” is, that is:

any disease and any impairment of the physical or mental condition of a person.

Now, if you take the expression “any impairment of the physical or mental condition of a person”, first of all the depressive state on the one hand is undoubtedly an impairment in the mental condition of a person. So is the impotence. And, your Honour, the extent to which the ability, say, to breathe - - -

McHUGH J: I appreciate that, but your argument assumes that personal injury suffered means all the ongoing sequelae of the defendant’s wrongful act or omission. So one is not limited to the point of time as to when the injury occurs. One does not say that you were unaware of the nature or the extent of the injury suffered at a particular point of time.

MR JACKSON: No, your Honour. What I was going to say was that a reason why that is the appropriate approach to it, in my submission, is that what one is - the point at which section 60I(1)(a) really requires one to look at the situation is expressed really in the last three lines of the provision not really to be the point at which the injury first occurs but a later time. Now, it may be that the later time is a time before the limitation period expires, but whichever of those two it be, one certainly is looking at the situation as at a particular time after the occurrence of the injury.

Now, if it be, your Honours, that there is, in fact, a situation in relation to the injury which has become exacerbated or, indeed, just different, really, by the passage of time, then that is something that does bear upon what the extent is as at that point.

DAWSON J: But you are really attempting to include the prognosis as well as the actual extent of the injury.

MR JACKSON: That is accurate in one sense, with respect, your Honour, but at the same time whilst one can in appropriate circumstances say that the prognosis is different from the injury the injury itself will, in the ordinary course of events, include its ongoing condition. Your Honour, I am sorry, I am putting that really badly, I think, but what I am seeking to say is this, that if one is looking at the situation of a particular person who has suffered, if I can use leg injury, again, as a simple example, the person will know, or is likely to know, that because of the fracture there may be some impediment in walking in the future, there maybe a loss of some ability to some percentage.

That is in one sense the prognosis. In one sense it is part of the injury itself because it includes the fact that it has some ongoing effects. Now, if a person knows that the injury that has occurred is going to cause, for example, a 10 per cent disability on the leg, then presumably that awareness exists at that time. If, however, the person knows that there is likely to be some ongoing disability which that person believes to be, say, 10 per cent - - -

DAWSON J: There is an ellipsis in all that. I mean, one may not know the extent of one’s injury if one does not know it is a progressive injury. One may know one’s disability at the time but not be aware that it is a progressive injury. If one knows that it is a progressive injury then one knows the extent of the injury and it does not matter that one does not know the rate of progression. I am just making that as a suggestion.

MR JACKSON: No, your Honour, and I appreciate that. Your Honour, the position of course is that this is a case where the - and I took your Honours earlier, I think, to the evidence of the doctor to indicate that the nature of the condition was such that it was fundamentally idiosyncratic. So that one could know of the possibility, as perhaps a possibility of varying degrees of certainty, that this is one of the things that might happen but, at the same time, when possibility becomes reality, then there would be, in the ordinary course of events, in our submission, be an awareness at that point, but not before, of the extent of the personal injury.

TOOHEY J: It is not quite as open- ended as it might seem, I suppose, because of the concluding words of subsection (1)(a) which put some sort of fine limit at which these matters are to be assessed.

MR JACKSON: Yes. The subparagraphs speak of matters that are subjective. The concluding part of the paragraph requires that, ultimately, a temporal objective test be applied.

TOOHEY J: What is meant by the words, “at a time before that expiration when proceedings might reasonably have been instituted”?

MR JACKSON: Well, your Honour, that is a difficult phrase, if I may say.

TOOHEY J: Presumably it lies in the mouth of the defendant to say, or at least to proffer, the argument that proceedings might reasonably have been instituted at some date prior to the expiration of the limitation period, and that is the date at which the matters in paragraph (a) are to be judged.

MR JACKSON: Yes. Now, your Honour, if one had a situation where - your Honour, perhaps I can put it this way: if one had a situation where an employer who had been, for example, conducting a business that involved, as events turned out, the possibility of there being dust diseases caused to employees, if the employer said to all its former employees, “We propose to go out of business because of a restructuring of company affairs”, he was going to wind the thing up in 12 months time, “so we are telling all employees of the possibility that this has occurred. We’ll pay for you to go to these doctors and these doctors”, and so on. Your Honour, one might well take the view that if satisfactory provision was made, then it would be appropriate for the proceedings to have been started at an earlier time. Your Honour, it is difficult perhaps to find examples that are really likely to attract the particular operation of the section, but it certainly exists.

McHUGH J: But just going back to “extent of personal injury”. If a person knows that he suffers from a disease which deteriorates as time goes on, does that person know the extent of the personal injury suffered?

DAWSON J: At the time at which he then considers it.

MR JACKSON: Not really, your Honour.

McHUGH J: I mean, take this case: in 1971 you are diagnosed with having 10 per cent disability; 1978, 40 per cent; 1982, 50 per cent. Plainly, he knew that he has a deteriorating condition. Why is he not then aware of the extent of his personal injury? He is suffering from silicosis and he has a deteriorating condition.

MR JACKSON: Your Honour, could I just say this: he did not know and could not have known before 1982, for example, that he had something in addition to ordinary silicosis, the progressive massive fibrosis. That is one thing, that he could not have known before then. The second thing is what he knew was that he had a condition which had been assessed as having got worse over a number of years but he did not know, as he said, what was going to happen in relation to it. He knew, I suppose, of the possibility that there might be some deterioration but that is all and if one looks at page 88 where he is asked at about line 35:

Were you aware in the 1980s as to what to expect in respect of deterioration of your condition, the rate of deterioration. A---I was unaware.
Did anyone tell you. A---No.

DAWSON J: Well, then, does it lie in uncertainty as to the rate of deterioration? In other words, if I have some disease, liver cancer, let us say and my doctor tells me, “You have six months to live” it has not happened yet but I know at the time I am told the extent of my injury ‑ disease is an injury. But, if I am uncertain, then I do not know, uncertain as to the rate.

MR JACKSON: Yes, your Honour, that is the position.

DAWSON J: It is the uncertainty.

MR JACKSON: Yes.

McHUGH J: What if the doctor says, “You’ve got two months to six months”?

MR JACKSON: Your Honour, in that case one, I suspect, does know the extent of the personal injury. It is much the same as saying to someone, “You’ve got a disability of the leg which is somewhere between 10 and 20 per cent”. It is just saying to someone, “You’ve got something wrong which is going to kill you but it’ll be in this period” so that the extent is there stated and you are aware of the extent in circumstances like that. But, in a case ‑ ‑ ‑

McHUGH J: Take a case like AIDS where, say the average life expectancy after AIDS commences may be three years, or four years or something of that nature, but one does not really know. It might be six in an individual case; it might be six months. What about that?

MR JACKSON: Your Honour, if I could just say in relation to that, the position would ‑ and I do not want to avoid what your Honour is putting to me ‑ very much depend on the facts because a condition of that kind is one that does progress at different rates and there are some people who say they have been diagnosed with AIDS and have lived for many years since the diagnosis with no apparent problem and despite the fact that they have been diagnosed in a particular way as being likely to die in the not too distant future.

Now, your Honours, in a case like that, what they would be aware of would be that the person had a condition which was likely to cause death. It may well be that the particular person would have knowledge of, in effect, all the possibilities so that it might be possible in a case like that to say that that person knew the extent of the personal injury that that person had, but if I could just move from that slightly, your Honour, to say this that if what that person had been told was that the progress of the condition was likely to follow a particular path or a particular band, if I can put it that way, but, in fact, what happened was that another symptom occurred which was not in the band that the person had been told about and was of a serious kind, then that person would be unaware of the extent of the personal injury. Your Honour, that could happen in one of the needle cases.

There was some further material in cross-examination. I am going to take your Honours very briefly to those passages. The first of them was at page 93 in a passage from line 41 through to page 95 point 4 and he said at the top of the page that at the time when he went to the board, he did not know at that stage that silicosis was a disease caused by dust. He said he did not know what the cause of his father’s silicosis was and, your Honours, if one goes from that to page 97 where the issue is taken up again at line 19 through to page 100 line 39 what your Honours will see is that he describes in effect something about his state of knowledge.

He speaks of his father’s health at about lines 10 to 15 on page 98 and your Honours will see, for example, that at line 20 on page 98 he says that by 1978 his condition was still okay. Then, your Honours, on the same page between lines 37 to about line 47 he said his condition did not really stop him from doing anything till the early 80s and then at the bottom of the page he said it was apparent that his condition was worsening. That is about line 49. He did not know how dramatic it was, your Honour. At the top of page 99.

Your Honours, at page 100 in a passage which goes to about line 39, what your Honours will see is the expression, at line 20, “a real chance”. This is a phrase picked up by the Court of Appeal used “real chance. It continued to worsen”. He said that he had seen his father’s condition worsen between lines 25 and 30 and, at the same passage, he is asked about “a real risk”. This is again a phrase that appears in the Court of Appeal, that his condition was going to worsen. That was the question. The answer was that he was in steady employment and had a mortgage and a big family to keep and he considered it to his benefit to keep on with the job. At page 101 about line 6 he was referred back to the evidence which is at page 88 about his being unaware of the rate at which his condition would deteriorate. At the bottom of page 101 and the top of 102 he says that by 1982 he knew his condition was caused by exposure to dust.

Finally, your Honours, at page 102 any depth of knowledge - this is between lines 15 and 20 - about serious effects must have been qualified by the fact that his father worked till he was 67. If one looks at that evidence, and particularly that at pages 87 and 88 to which I have referred, in our submission, the primary judge was perfectly entitled to arrive at the views which he did based on that evidence.

If I could take your Honours back to the Court of Appeal’s reasons at page 215 and, in particular, about line 25 where Mr Justice Handley refers to the position in 1979. Your Honours, in 1979 the progressive massive fibrosis had not been diagnosed; there was nothing at all in the evidence to suggest that the worker knew of the possibility of the depression or the impotence, which are significant conditions and, in particular, just to take the latter of those, that was in the last year and a half before he gave evidence in 1992. If one looks at page 215 between lines 35 and 40, if it be the position that even the doctors in the field could not have predicted the future course of the silicosis, why, we would seek to submit, should the worker be treated as having the relevant awareness?

McHUGH J: Your reliance on the depression is very iffy, is it not, because he gave evidence in 1992 and he spoke about being depressed for five or six years. The relevant period was 1986 at the latest, was it not?

MR JACKSON: Not really, your Honour. The situation was that he finished work in 1986. The limitation period for the last of the causes of action really had not expired at the time he started the action. So that if one took that back as far as it could go, there was still a period which was relevant and, indeed, covered a very large part of the employment. But if one just takes the impotence, then that is in the period 1990, 1991, 1992. That is really the period one is talking about and that in effect would cover the situation.

Your Honours, at page 215, about line 40, I referred to the fact that it was known - the court says:

It is now known that the worker’s condition continued to deteriorate after 1979 but there is no evidence which would enable this Court to determine the extent (if any) to which that deterioration was caused by the worker’s exposure to dust while employed by the second defendant between 1969 and 1973. In other words there is no evidence and no finding that the worker’s knowledge in relation to the second defendant’s contribution to his silicosis is any greater now than it was in 1979.

But the medical evidence was - and their Honours do not really refer to it - that continued exposure to dust exacerbated the progress of the disease. That was really unchallenged. It appears from the two doctors who gave evidence, Dr Gianoutsos at page 106, about line 39, going to the bottom of the page where he says:

it is my belief that it is probably the rate of progression was greater as a result of that continued exposure -

At the top of the next page through to line 7, he said it was probably both quantity of exposure and the fact of exposure. At page 115, lines 12 to 27 and particularly around line 20, he said he believed all the exposure was contributory to the problem. At page 116, lines 17 to 38, he says in particular - and I will not go through it - but your Honours will see in particular at line 35:

the likelihood is that that additional exposure or whatever happened accelerated or brought the condition to the level that it was by 1986.

The other doctor, Dr Joseph, gave evidence to the same effect. At page 132, lines 34 and 35:

once established, will inexorably progress.

Then at about line 43:

continued exposure after initial contraction exacerbate the symptoms -

At page 133, line 38:

the most probable cause of the progressive massive fibrosis was the continued exposure after that initial diagnosis -

At page 134, about line 13:

it is the total dose which is important.

Finally, at page 135, line 24:

All those exposures would have been significant -

About lines 35 to 45, he said the progression could be slow with the progressive massive fibrosis. If one goes back then to what the Court of Appeal said at page 215 at about line 48, to say that there was:

no evidence and no finding that the worker’s knowledge in relation to the second defendant’s contribution to his silicosis is any greater now than it was in 1979 -

is not really to ask the right question because the question is what the worker knew at relevant times and the approach taken by the Court of Appeal in that passage is one that does not really touch, we submit, the point.

TOOHEY J: I found the sentence that begins at line 35 rather curious when I first read it as an argument against the present appellant but I suppose what underlies it is the idea that if there was knowledge available as to the future course of silicosis but it was knowledge not available to the appellant or not made available to the appellant then it might be easier to say that he was unaware of the extent of his injury, but it seems to me something of a non sequitur really.

MR JACKSON: Yes, your Honour. What happened of course was - and I have referred to the passage already I think - it was said that progression of the disease in particular people was something that was idiosyncratic. What that does really, in our submission, is to make it more likely that as time goes by the changes in the condition will be something that give rise to a newer and greater awareness of the extent of the injury.

TOOHEY J: But it is used by the Court of Appeal as an argument against the appellant, not in his favour.

MR JACKSON: Yes, your Honour. In our submission, it just cannot be right used in that way.

DAWSON J: They are saying he knew that he had a disease, the progression of which was unpredictable, so he knew the nature and extent of his injury. That is what must be said.

MR JACKSON: That is what the court seems to be saying. What we would submit is that that is not the correct approach. Your Honours, could I go then to page 216 in the Court of Appeal’s approach. That is the passage at the top of the page where their Honours say:

that by 1 April 1979 the worker’s knowledge of the extent of his then disability was for all practical purposes complete. The further deterioration.....was reasonably foreseeable and the worker was aware of this risk or chance.

And they go on to say:

As a general rule it seems to me that variations in the later progress of a disease within limits that were reasonably foreseeable at an earlier stage cannot establish a relevant lack of awareness of the nature or extent of that disease for the purposes of s 60F.

No doubt section 60I now. Your Honours,in our submission, the approach taken by the court in that passage is one that seems to suggest that the objective test is the test to be applied.

McHUGH J: I am not sure that is right. You keep referring to it and it is good advocacy, but it is really a question of at what level of that abstraction one defines the extent of personal injury. What the court seems to be saying is, “Well, he knew he had a progressive disease and as long as the subsequent deterioration was within the limitations of reasonable foresight then that is it.” But if he become more concrete and asked does he know of the particulars of the injury then the approach of the Court of Appeal is obviously wrong.

MR JACKSON: Yes. Your Honour, I was going to add a qualification to what I had said. In the passage that commenced at line 10, the way in which the test is there expressed is one which appears to be objective simpliciter, as it were. If one goes back to the preceding sentence, it seems to be a test that involves two things; one being that what happened was reasonably foreseeable, and the second being that the person was aware of that. Now, your Honour, so far as that test is concerned, it is one that, in the light of the submission I was making earlier is, in some cases, an appropriate test, no doubt, because if one took, for example, what your Honour the presiding Judge put to me about the person who is told that the condition of the liver is going to cause death within three months to six months, or something of that order, then the person is aware of what can be described as, in the particular circumstances, the extent of the injury.

Your Honours, whilst that may be a way of expressing the test, when one comes to particular cases, what one has to look in the end to see is what is the extent of the personal injury of which the person is aware, and in a case such as the present where, for example, the person knows nothing of the progressive massive fibrosis at, say, 1979, or even of the possibility that it might occur, where the person knows nothing until a very late time about the sequelae, such as, the depression or the impotence, your Honours, it cannot be suggested that those are the things that, ordinarily, one would expect a person to know simply because the person has a potentiality of having problems because of silicosis.

Now, your Honours, could I come then to the position after 1986, that is, the position as against the third defendant?

McHUGH J: I am sorry to interrupt you again, but does your argument rely strongly on his knowledge of the fact that he had the progressive massive fibrosis or lack of knowledge of it?

MR JACKSON: Well, your Honour, it relies on it, of course. It relies on it in this sense.

McHUGH J: But if there is nothing else in the case, to what extent would you rely on that fact alone?

MR JACKSON: Your Honour, the position would be, on the medical evidence, that that is an unusual condition to happen, and I have taken your Honours to the passages earlier. Now, at best, one could say, so far as the worker was concerned, that the worker was conscious of the fact that he had silicosis and that was a disease which might get worse. It might be a cause of death, it might not be a cause. He could see a person who had had it had been able to work to at least an ordinary working age. That would be the position.

If he discovered in 1982 that he did not have what, in effect, might be the - the word is inappropriate, your Honour - more benign version of silicosis but had, in fact, a much worse version then, your Honours, that is something that would clearly demonstrate that until he found that out, he was unaware of the extent of the personal injury that he had.

McHUGH J: When did he first know he had progressive massive fibrosis?

MR JACKSON: Your Honour, it does not really appear when he first knew. What appeared was that that was diagnosed in 1982; that was Dr Joseph’s evidence. So, it does not really appear that he, in a sense, ever was conscious of the nature himself of that aspect of the disease.

McHUGH J: That is why I asked you to what extent you have depended on that, because it seemed to me to be a strong point in your favour in one sense.

MR JACKSON: Your Honour, it is in that sense. What one sees is that he could not have been aware of it before 1982. It did not ever appear that he personally had become aware of it before the hearing and one does not see any cross‑examination really of him which does more than, in effect, say, “You knew you had silicosis; you saw it was getting worse; your father had died from it; you knew there was a possibility you might get worse from it and die”. Nothing is ever really put to him to say when he became aware of that.

McHUGH J: If I have understood the evidence properly, it is the progressive massive fibrosis that is the real problem in his case?

MR JACKSON: Yes, because the two adjectives of it really describe its nature, well, your Honour. I was just going to the period of employment of the third employer: that was between 12 April 1973 and 15 August 1986. He was in time in starting his action in respect of the last part of that period; that is, from 24 March 1985 to 15 August 1986. The dates at which the limitation period expired for the earlier causes of action were 2 April 1979 to 24 March 1991. Your Honours, I think as I say that I might have made a mistake with one of those but it is in the right year but perhaps not the right date; I will just check that.

Your Honours, the way in which that was dealt with by the Court of Appeal was this: it was said first ‑ and I speak of “first” temporally rather than the order in which the Court of Appeal dealt with it ‑ it was said first that in respect of the period up to the date of retirement, which was 15 August 1986, that he knew what the position was. That is at page 217, lines 6 to 15:

knowledge of the extent of his silicosis was for all practical purposes complete at all times.....as limitation periods for causes of action against the third defendant expired.

Your Honours, that proposition, in our submission, does not accord with the evidence and the findings to which I have referred already. In relation to the period after that, it was said by the Court that that was even clearer. That appears in two passages: at line 20 on page 217 and then page 216 about line 35 and what was said there at about line 44 was:

By that date ‑

the date of retirement ‑

at the very latest he knew that his disease had progressed to the point ‑

and so on.

Your Honours will recall, apart from any other things that happened after 1986 that the evidence at page 88 was that in the 1980s he did not know what to expect. Your Honours will see first of all the 1970s referred to on page 88 between lines 20 and 25 and the 1980s referred to between lines 33 and 40 and your Honours will recall also the other matters to which I referred as being of recent origin and the position, in our submission, in reality was that the evidence demonstrated a lack of awareness at all relevant times.

Your Honours, could I just say two further things. What your Honours will see of course is that at, for example, page 217 at about line 41, what the Court of Appeal says is that the worker was fully aware that his silicosis was caused by dust inhaled and so on and the word “caused” appears in other places in the reasons. At the time when the Court of Appeal was giving its decision, the decision was based upon its view that the relevant threshold provision was section 60F, not section 60I. Section 60F is of course the provision which speaks of the plaintiff being unaware of the “fact, nature, extent or cause of the injury” et cetera, but that provision, held not to be the relevant one in Dedousis, is not in the same terms at 60I(1)(a)(iii) where what is required is that lack of awareness of the connection between the personal injury and the defendant’s act ‑ ‑ ‑

McHUGH J: This creates problems for you, does it not? Because of what was accepted as the state of the law, counsel did not rely on 60(1)(a)(iii).

MR JACKSON: Your Honour, I am not certain that is quite so, with respect. It is right to say - - -

McHUGH J: If you just look at line 25 on the page to which you referred us, “Mr Semmler submitted”. That was the submission that was put. That was what the Court of Appeal was answering in the passage to which you referred.

MR JACKSON: Yes. Your Honour, certainly, that is so, but what I am seeking to make is this, however, that when one is looking at what the Court of Appeal is saying, when it speaks about it being caused by this, it is looking at a test which is being expressed in simpler terms than, in effect, section 60I(1) itself speaks of.

McHUGH J: But is this because now you are attempting to rely on 60I(1)(a)(iii)?

MR JACKSON: Well, we would seek to, your Honour.

McHUGH J: Well, that is why I mention that it did not seem to me that reliance had been placed on that provision.

MR JACKSON: Well, the difficulty was, your Honour, of course, the binding nature of the decision of Wootton on the tribunal below.

McHUGH J: It still does not stop counsel from taking the point, Mr Jackson.

MR JACKSON: Your Honour, what was done in - no, your Honour, I appreciate that. Your Honour, what was said in relation to it, I am just reminded, is that one sees at page 88, for example, that it was not moribund because one of the things that was being dealt with is what appears between lines 15 and 16, what was being looked to was whether one employer - his awareness of the cause. Was it one employer or all employers causing it, so far as one can get an equivalent to section 60I(1)(a)(iii) - - -

McHUGH J: With respect, I do not think that is right because 60F talks about “cause of the injury” and 60I(1)(a)(iii) talks about being “unaware of the connection between the personal injury and the defendant’s act or omission”.

MR JACKSON: Your Honour, yes. But if I could just say this, if there were no section 60F there and one looked at what is at page 88 and looked at what is in 60I(1)(a)(iii) then one could say that the question there is germane to the issue - it may not be the end of it, but it is germane to the issue under 60I(1)(a)(iii). Your Honour, I do not think I can take it beyond that but that is our submission.

Your Honour, the second thing was this, that the diagnosis of “progressive massive fibrosis” really coincided with the real deterioration which commenced, in effect, perhaps in the early 1980s, because he seemed to be going along. He had been diagnosed with a higher percentage by the Dust Diseases Board but he had been going along well enough apart from that.

Your Honours, could I move then to the second issue, namely that dealing with the Workers Compensation (Dust Diseases) Act. In the Dust Diseases Tribunal the primary judge did two things. The first was that he deducted payments which had been made under the Workers Compensation (Dust Diseases) Act 1942 in respect of pre‑trial loss of earnings, deducted from damages. However, he did not do that in respect of future loss of earnings and your Honours will see that at page 189 line 16 through to page 191 line 2.

Your Honours, the Court of Appeal overruled the decision in respect of the future benefits - that is the decision that they should not be taken into account. It did not deal with the cross‑appeal from our side to the effect that the payments should not have been deducted from loss of earnings in the past. The Court of Appeal’s reasons appear at page 218 line 45 through to page 220 line 10. In dealing with that issue, as your Honours will see, the Court of Appeal followed an earlier decision of the New South Wales Full Court in Adams v Ascot Iron Foundry Pty Ltd (1986) 72 SR(NSW) 120 on a previous version of the same Act.

What we will be submitting is that neither such payment should have been taken into account and that Adams v Ascot Iron Foundry, to the extent to which it decides otherwise should, with respect, be overruled.

McHUGH J: We discussed it in Manser.

MR JACKSON: I am about to come to matter. The relevant tests have been dealt with very recently by the Court in Manser v Spry (1994) 181 CLR 428. The relevant parts are at pages 434 to 437 where the Court deals under the heading, “The general principle” with the earlier cases that have dealt with the question whether particular payments should or should not be taken into account, in effect, on the one hand, in relief of the wrongdoer and on the other hand so as to avoid double compensation.

In particular, if I could say two things: the first is that what was adopted from Adams v Ascot Iron Foundry appears at page 437 where a passage from Mr Justice Walsh is there extracted as setting out some of the considerations which are germane. One sees also at page 436 in the paragraph commencing about point 4 a reference to some of the indicia for deciding one way or another. Could I go then to the terms of the statute, itself ‑ ‑ ‑

McHUGH J: Do you submit we simply approve those passages from Justice Walsh’s judgment and not the decision?

MR JACKSON: The decision is not otherwise referred to, I do not think.

McHUGH J: Yes.

MR JACKSON: We would not even before Manser v Spry have contested the proposition - in fact, his Honour had some doubt about which side of the line the case fell but in the end thought there should be some deduction. There are a couple of provisions of the Act that are in existence now that were not in existence then that cast some further light on it, in our submission.

Your Honours, could I come then to the terms of the Act itself. The Workers Compensation (Dust Diseases) Act 1942 as it is now known provides a scheme for payment of benefits to claimants who are affected by diseases caused by the inhalation of dust. It covers a significant number of diseases which your Honours will see set out in a schedule and if your Honours have the pamphlet copy it should be on page 30.

Your Honours will see it lists various diseases and then section 3, in the definition of “dust disease”, indicate that it:

means any disease specified in the Schedule -

and then goes on to elaborate upon that. Also, your Honours, section 11 at page 29 indicates the ability to amend the schedule. Your Honours, pursuant to the section 5 of the Act there is established a workers’ compensation dust diseases board which your Honours will see has to have:

2 representatives of employers and 2 of employees and an independent chairman -

and there is established also by the Act, a Workers’ Compensation (Dust Diseases) Fund which is referred to in section 6(1). What your Honours will see is that, apart from moneys that came from the former silicosis fund ‑ that is in 6(1)(a) - the moneys that go to fund it are:

(b) all moneys paid by the WorkCover Authority.....from contributions paid by insurers
(c) moneys provided by Parliament -

and:

(d) any fees paid under section 5A.

And section 5A at page 5 allows the board to make its services and diagnostic facilities available to other people. I referred your Honours to section 5A and diagnostic facilities and so on. What your Honours will see also is another provision that was not in force at the time of Adams and that is in section 6(2)A and 6(2)B which authorises the board to make grants from the fund:

for the purpose of clinical or research work for the prevention and treatment of dust diseases -

and so on. Then 2B allows the board to:

expend money from the Fund in arranging for, and causing to be carried out medical examinations of.....workers -

in the circumstances to which it refers.

Your Honours, those provisions indicate, in our submission, that the fund is to have a kind of public nature beyond simply compensating particular persons who have become, in effect, industrial casualties. Your Honours, the board is required from time to time to make determinations, and I referring to section 6(3) as to various classes of employment and to determine whether the:

employment is of such a nature as to expose the worker to the risk of contracting a dust disease -

The board has to make estimates of its annual expenditure, that is section 6(4), but having done so, the work cover authority is then required to levy insurers in order to obtain the funds required by the board. That is referred to in section 6(6) and also, your Honours will see in subsection (7A) that the levy may be imposed upon insurers really regardless of whether they insure and indemnify employers against liability in respect of dust diseases or not. Similar provisions apply to persons who are self-insurers, that is section 6(7A)(c).

Your Honours, the result is that there is a fund obtained from levying persons. The fund also has moneys provided by Parliament and moneys obtained pursuant to the use of service in section 5A, and the moneys are used for the various purposes to which I have referred so far, but also to the fact that there is an entitlement in persons injured or suffering from a dust disease to an award of compensation, and that derives from the provisions referred to in section 8(1).

The medical authority in subparagraph (a) has to certify that a person is totally or partially disabled for work from a dust disease and that the disablement was reasonably attributable to the inhalation of dust in an occupation of that nature. That gives rise, your Honours, if there is a certification by the board, to an award from the board. Your Honours, there is no entitlement to workers compensation in the case of a person who has an entitlement from the board, and that that is so appears from section 8(6)(a).

Now, your Honours, payments are made by the board in respect of percentages of disability not calculated by reference to any economic disadvantage caused by loss of wages, for example, and that that is so appears from the concluding words of 8(1)(a) and also, your Honours, in respect of the percentage amounts from sections 8(2)(c)(i) and (ii). Your Honours, in addition to any entitlements to weekly payments of compensation, there may be an entitlement to hospital and so on services under 8(2)(d).

Your Honours, the payments may also continue until, in effect, the date of death long after a worker has left the work force and adjustments to payments may be made as adjustments to levels of disability occur but they bear no relationship to economic capacity which has occurred. And one does have a situation where people, as the facts of this case indicate, in relation to Landora, a company that is broke now but it was an employer years ago, that one does have a situation where persons the subject of the Act are suffering from diseases which they may have contracted years and years before where there are employers who just no longer exist or no longer viably exist, where it may be impossible to prove a case against them because of the state of knowledge of matters at the time. And where, your Honours, to put it shortly, one has an Act which is really society’s way of providing for the victims of an industrial cost.

It is not something which, in our submission, should be treated as conveying the parliamentary intention that it should be in relief of, in effect, tortfeasors. What we would seek to say in summary is that it is a kind of, if I could use a phrase from Manser v Spry ‑ I was looking, your Honours, at page 436 and this is an adaptation, I would say immediately, of something that is said at page 436 about point 4. It is a kind of insurance against misfortune that has been provided by the legislature. There is not any requirement for repayment. The benefit recognises that it may be impossible to allocate blame in respect of past events. And the specific nature of the types of condition and the very sad consequences that follow and the sad and inexorable consequences the evidence shows in this case that follow from the acquisition of dust diseases, makes it unlikely, in our submission, that the better view of the provisions is that the amounts are to go in relief of the amount that the wrongdoer may have to pay by way of damages.

Your Honours, the approach taken by the Court of Appeal in Adams v Ascot Iron Foundry was really one that involved deciding which side of the line the particular statute then fell and as I said, it was a statute that, at that time, did not contain provisions like section 6(2)(a) and (2)(b) which showed the overall social nature of the provision.

Your Honours, in that regard I was going to take your Honours to that case. It is in 72 SR(NSW) 120. One sees the relevant passages on page 127. In the last paragraph his Honour Justice Sugerman sets out the issue that arose as a matter of admissibility of evidence. Then he refers to Espagne’s Case on page 128, quoting in the main paragraph on the page from Justice Windeyer. Then he refers at letter E to a summary of the main features of the Act. He agrees:

that it provides for payment of compensation in the nature of workers’ compensation and that it is a characteristic of workers’ compensation that there can be no duplication of compensation and damages.

Your Honours, if I may say so with respect, that must depend on what the statute says. It is not something that is inherently so and one has to look at the nature of the benefit. His Honour goes on then through the remainder of that page and then at page 129 discusses the character of the Act as it then was. Then your Honours will see between letters E and F on page 129 he says:

Benefits having the character which I have stated cannot, in my opinion, be held to be given by way of bounty -

The really is a matter, if I may say so with respect, of deciding on which side of the line the case would fall.

Your Honours, if one goes from that to Justice Walsh, your Honours will see at page 134 he expresses the notion that - this is between letters D and E. There is then in that paragraph I think the passage which the Court extracted in Manser v Spry. Your Honours will see that he sets out what are the tests at the top of page 135 and in particular between letters C and D says:

The difficulty lies in ascertaining the relevant intention from an Act, which does not expressly declare any intention one way or the other.

He says at the end of that paragraph that if it is evenly balanced, then maybe the dominant rule is to apply, and then in effect discusses the matter through the next page. His Honour’s conclusion is at page 138 between letters D and E. It says:

With some doubt, I have decided upon the main question that the benefits should have been taken into account -

A third member of the court, Mr Justice Asprey, at the bottom of page 140 through to the top of page 141 in effect agreed that they should be taken into account. Now, your Honours, undoubtedly that decision, of course, has been followed as one might expect it to be in New South Wales, but the issue remains whether that is the better characterisation of the terms of the Act. In our submission, at least in the current form which it has, we would submit that the Act is part of a scheme whereby persons who suffer from diseases of this kind are to be paid something by a fund created by the State and a fund which is to perform other functions to assist persons who maybe ‑ assist the knowledge of the diseases and to assist other persons who may be similarly prejudiced and it is not something, your Honours, that should be treated as going to the benefit of the tortfeasors.

McHUGH J: But nevertheless Adams has stood for 26 or 27 years. No doubt the premiums that are payable in this industry by the insurers have been fixed on this particular basis and workers compensation premiums are fixed by the Workers Compensation Commission or whatever its equivalent is these days.

MR JACKSON: Your Honour, could I just say in relation to that undoubtedly in some cases - and, your Honours, one does hear a little about it in excise cases, if I may say so with respect - that considerations of that kind may militate against a change.

But really, your Honours, it is one thing to say that a decision of this Court should not be changed because it is a decision of the final court and it is one that has been followed and people legitimately base their expectations upon that. But decisions of the intermediate Appellate Courts, even if in existence for some time, are inherently subject to change when the issue comes before this Court.

Your Honours, that is why, in a sense, if one looks at the current judicial structure the need to apply for special leave is a feature of it. They are matters that can be taken into account. I do not mean only then, of course, but another feature also, your Honours, is that if one is speaking about the position of the intermediate Appellate Courts their judgments on particular matters are inherently subject to alteration by this Court.

Now, having said that, your Honours, the next thing I would seek to say is this, that the amount of premiums and so on is something that no doubt has to be worked out from year to year, maybe longer periods, maybe shorter periods sometimes.

McHUGH J: I know, but in this particular area the insurers are the Workers Compensation insurers, and I suppose it is still the case, the formulas and the - - -

MR JACKSON: Well, your Honour, in reality everyone pays for this in New South Wales because of the way in which the net is cast by the provisions which I referred goes beyond, in effect, just the insurers - insurers and employers of people who are in dust‑related diseases.

McHUGH J: Well, I appreciate that what you are talking about is this pension, but I am talking about the general cover for the common law damages.

MR JACKSON: Yes, your Honour, and could I also say in relation to that that really any decision which deals with the way in which things are or are not to be taken into account in dealing with damages is likely to have an effect of that kind.

One cannot avoid that. Take, for example, the effect of there no longer being a rule in Rylands v Fletcher. That is not damages, of course, but what it does mean is that there will be cases where risks have altered because of that, and that inevitably happens. Your Honours, if one takes Redding v Lee and Muller v Evans, the decisions in one of those cases must have affected the rates of premium. But, your Honours, these things soon pass over time. Can I also say, it is only in recent times ‑ ‑ ‑

McHUGH J: I appreciate it, but particularly in this particular area with disease and limitation periods being extended, insurers are being required now to meet liabilities that they thought had long passed and to upset the balance - also they just seem to compound injustice upon injustice - at least from their point of view.

MR JACKSON: Your Honour, the position of course is, to put it at its basest, the money does not have to be paid until the verdict. Until the money is paid any liabilities are contingent. The existence of contingent liabilities in the future is no doubt a factor which, in the ordinary course of events, one would expect to see reflected in the premiums and so on for bodies in respect of the future. If it be that the true construction of the Workers Compensation (Dust Diseases) Act has an adverse effect upon insurers to such a degree as to require intervention by the legislature, one would be a little surprised not to see them knocking on the door.

McHUGH J: That may be but, speaking for myself, I think courts have got to look at the economic consequences of their implications before they give the law a shove in any particular direction.

MR JACKSON: Your Honour, in doing that, one also needs to bear in mind, if I may say so with respect, of course, that in looking at the economic consequences, one tends to have really two sides to the equation and it is not an equation that is entirely reflected in equality because one side tends to consist of a group of articulate people, or people who are capable of having articulate advocates and lobbyists. The other consists of a group of people in a case like this, who are slowly choking to death and they lose their money.

McHUGH J: Well, that is very emotional but the fact is that, in most cases, they have articulate, well-educated representatives from the trade union there looking after their interests and if one looks at the history of the Workers Compensation Act in New South Wales, one could form the conclusion that the representatives of the workers have done very well for them.

MR JACKSON: Yes, your Honour, times have changed a bit, of course, in relation to the influence of unions in society and without going to the detail of it, but times have changed. The other feature about it, your Honour, is that the people who are injured in the categories with which this Act deals are people whose working life is likely to be seriously affected and they tend to be past members of unions. I appreciate there are solicitors who act for them, all sorts of things.

McHUGH J: The very firm that is instructing you is one of the best‑known trade union firms in the country.

MR JACKSON: Your Honour, that may be so but all I am trying to say is that there are two sides to this: one side consists of articulate people; the other side consists of people who have to have others acting for them and whose position is such that they really are not able to raise their cri de coeur with the same personal involvement as those or the other economic interest. Your Honour, I do not know that I can take it beyond that.

DAWSON J: Thank you, Mr Jackson. Mr Toomey.

MR TOOMEY: If it please your Honours.

MR TOOMEY: Your Honours, can I deal with the last point first, because it is much shorter and it seems to us, with respect, that it is really - - -

DAWSON J: Do you have an outline of submissions, Mr Toomey?

MR TOOMEY: Your Honour, I am very sorry, but our computer chewed it up at quarter past 5 last night and I do not have one. I am terribly sorry, your Honours. Can I say that it can generally be said we take issue with Mr Jackson, and I greatly regret, because of that, I am not able to assist your Honours further.

McHUGH J: We have got the third respondent’s submission.

MR TOOMEY: Yes, your Honour, and we agree with those generally. Can I take your Honours to Manser v Spry dealing with the question of how one determines whether or not the payments made under the Workers Compensation (Dust Diseases) Act should be allowed for? This was a unanimous judgment of the Court and at page 436 the Court set out what we would say is the appropriate consideration which decides this case. It consists essentially of a quotation from what was said by Chief Justice Gibbs in Redding v Lee. It starts at about point 8 on the page and it says:

Whether an implication of such a legislative intention -

that is, that either the legislature intended that it should or should not be taken into account -

depends largely on the nature of the benefit.

The Chief Justice Gibbs said in Redding v Lee:

“If the statute expressly provides (as some statutes relating to workers’ compensation have done) that a plaintiff who has recovered damages shall repay the amount of the benefit it will be clear that the receipt of the benefit must be disregarded in the assessment. In many cases, however, the statute under which the benefit is provided will give no assistance of this kind.

And I interpolate that this one does not:

Then it will be necessary to consider closely the nature of the benefit itself. The conclusion that the benefit is intended for the plaintiff personally and not in reduction of the damages may more readily be drawn when it is seen that the receipt of the benefit is not dependent on the loss of wages or earning capacity . . . for which the plaintiff claims damages (cf. Parry v Cleaver (43), per Lord Wilberforce) and is not intended to replace the lost wages or remedy the loss of earning capacity.”

Now, your Honours, my learned friend has told your Honours that payments under the Act are based on a percentage disability, not calculated on loss, but that, with respect, is not entirely correct because if your Honours look to section 8 you will see that the prerequisite for an award, which appears in 8(1)(a), is a certification by the medical authority:

that a person is totally or partially disabled for work from a dust disease -

and what is being certified when we have been talking shorthand of a 10 per cent certification in 1971 and a 40 per cent certification in 1978, 50 per cent in 1982 and so on, that means a percentage loss of capacity for work and, indeed, that fits, we say, within what Chief Justice Gibbs said in Redding v Lee, adopted by this Court unanimously in Manser v Spry:

The conclusion that the benefit is intended for the plaintiff personally and not in reduction of the damages may more readily be drawn when it is seen that the receipt of the benefit is not dependent on the loss of wages or earning capacity.....and is not intended to replace the lost wages or remedy the loss of earning capacity.

Now, when the very measuring stick provided by the Act for the payment of the benefit is a loss of ability to work, that is, the prerequisite for the payment is the certification by a medical authority:

that a person is totally or partially disabled for work from a dust disease -

then, in our respectful submission, the case is almost unarguably clear.

TOOHEY J: But it is not a measuring stick, is it?

MR TOOMEY: No.

TOOHEY J: You used the expression “measuring stick” as if somehow that was to be equated with the amounts of compensation paid. It is a condition of entitlement to the section.

MR TOOMEY: It is, your Honour, it is a measuring step.

TOOHEY J: Is it?

MR TOOMEY: Yes. If the authority certifies a person is 10 per cent disabled then he gets 10 per cent pension. If it certifies that he is 40 per cent disabled he gets a 40 per cent pension, and that is what happened to this - - -

DAWSON J: Where does that appear from, Mr Toomey?

MR TOOMEY: Well, there is a schedule, your Honour, of prescribed rates which are - - -

McHUGH J: And they are in lieu of workers’ compensation payments?

MR TOOMEY: Yes, your Honour, that is right. Your Honours, I see the time. Perhaps I can your Honours to it - - -

DAWSON J: We will sit on a little.

MR TOOMEY: Indeed, your Honour. Your Honours, assuming that to be the case, in our respectful submission, it is clear that it falls within the description of the cases given by Chief Justice Gibbs given in Redding v Lee of the cases where one ought draw the intention of the legislature as being that the payments should be taken in account in reduction of damages. The new sections to which my learned friend referred which he said give a sort of public nature beyond dealing with industrial casualties are, indeed, not in diminution of the precise intent of the Act which we are dealing with here.

One can find, also, in workers’ compensation statutes throughout Australia like provisions, duties imposed on workers’ compensation authorities to improve work practices and such like, duties of a public nature and that has not prevented this Court in Manser v Spry and in other cases in finding that the intention of the legislature was that payments made under those Acts ought be taken into account in reduction of damages.

McHUGH J: It is strange that this Act was passed in 1942 but contains no provision to the then equivalent of what was sections 63 and 64 of the 1926 Workers Compensation Act, that you could not have double recovery.

MR TOOMEY: Yes, your Honour. I cannot really advance a reason for that, your Honour, but it is of course contemplated by what the Court considered in Manser v Spry. I agree, with respect, that that does create a difficulty. It may be that at the time in 1942 perhaps common law cases for dust diseases were unusual. I do not know. Certainly they have never been as common as simple industrial accident cases. That may explain the failure to provide for repayment.

Your Honours, that is really all I want to say on that point. If I can turn to the main point. What my learned friend argues for is that essentially an injured person, if not in a position to envisage the whole course of the consequences which will flow from his or her injury, is entitled, subject to the just and reasonable discretion, to an order under section 60I. It is our basic submission that that cannot be right.

Can I hand your Honours the Oxford and the Macquarie definitions of “extent”. The appropriate definition in the Shorter Oxford, your Honours, is, we would say, definition 4:

space or a degree to which anything is extended, thus dimensions, compass, size, breadth of comprehension, scope.

In the Macquarie:

the space or degree to which a thing extends; length, area, or volume ‑

Your Honours, what my learned friend asks you to do is to read into the words “nature and extent” in section 60I(1)(a)(ii) a sort of a temporal quality.

So, he must have been unaware not of the nature or extent of the injury at the time, however qualified, but of the nature or extent of the injury which would at some future time after the expiry of the limitation period, inure. We are prepared to concede and, with respect, we think it is right to say that one would not be aware of the nature and extent of injury if one did not know at all or had no reason to believe that an injury was progressive but here, may I just remind your Honours of the facts, my learned friend relies upon what is said by the plaintiff appellant at pages 87 to 88 to found his submission that essentially the appellant was unaware of matters such as the fact that the condition was progressive, such as the fact that his condition was caused by inhalation of dust and so on, but, your Honours, that is as it was left in‑chief.

His Honour was not entitled at first instance to take what the then plaintiff said in‑chief and found on that, although the very foundation of what he had said had been cut away in his answers in cross-examination and in cross-examination at page 97, this is the material at line 19:

Mr Hollins, after you had first been to the Board -

and, your Honour, we know independently that that was in 1971 -

and you knew you had silicosis and you knew that your father had been diagnosed as having silicosis, that is right, is it not.   A---Yes.
And you had been asked questions at the Board about your contact with dust during your employment history, that is right, is it not.   A‑‑‑Yes.
And the Board you were going to was the Dust Diseases Board, was it not.   A‑‑‑Yes.
It must have gone through your mind that your silicosis was a dust disease. That follows, does it not.
Yes.
Because the Board only dealt with those sorts of diseases.....A‑‑‑Yes.
When you left the Board on that first occasion did you understand that your silicosis was a dust‑related disease.   A‑‑‑Yes.

And then, the only contact through his life was with the employers named:

When you first left the Board you must have realised, I suggested to you, that your condition of silicosis arose somehow out of those periods of employment where you had had contact with dust.....Yes.

And then at the bottom of the page:

when you had left the Board in 1971 the Board had, in its view, thought that you were 10% disabled, whatever that means, that is right, is it not.
Yes.
And by 1978 the Board’s view was that you were 40% disabled, that is right, is it not.   A‑‑‑I’m not sure of the date.
But certainly within some years the level of disability as the Board assessed it, increased to about 40%. Is that right.   A‑‑‑Yes.
It was the same year, I suggest to you, that your father died.   A‑‑‑Yes.
What was your father’s health like in 1971. He had been diagnosed as having silicosis. He was then in his late 60s.   A‑‑‑Yes.
Was he otherwise fit and healthy.   A‑‑‑Yes, reasonably.
Was the silicosis in 1971 causing him any problems.....He’d had a bad cough.
And over the following 7 years did his chest condition obviously deteriorate.   A‑‑‑Yes.
Well, by 1978 the condition of your own health had deteriorated, insofar as your capacity to load and unload.....was concerned.....A‑‑‑Not at that stage.

And he repeats:

Not at that stage.

He says he first had difficulties in the early 80s.

It was as late as that, was it. But it is the fact, is it not, that during the balance of the 1970’s - that is up to 1980 - you were having increasing problems with your chest. That is right, is it not. A‑‑‑I was still able to do my work.
Yes, I know that, but you were having, as time went by over those years, increasing problems with your work.
Yes.
By 1978 it was apparent to you that your own condition was steadily worsening.....I really do not know how to answer that.

And then he goes on to say:

The condition didn’t really stop me from doing my work without too much distress until the early 80s.
That is a different question, Mr Hollins, what I am asking you is whether between 1971 when you first went to the Board and 1978 it was apparent to you that your condition was worsening as time went by. A‑‑‑Yes.
And by 1978 the Board’s view of your level of disability had increased from 10% to 40%.....Yes.

Then, on page 100 at line 5:

In 1978, when you saw the Board - you agree you saw the Board then. Is that right.   A‑‑‑Yes. I’m not sure of the date.
Around that time the Board certified you as 40 per cent disabled.   A‑‑‑Yes.
And you knew that.   A‑‑‑Yes.
When you were told that, you could see that from the Board’s point of view, you condition had worsened from 10 per cent disabled in 1971 to 40 per cent disabled in 1978. Is that right.   A‑‑‑Yes.
By that time, your father had died of silicosis.

So it is not two coincidental facts that the appellant’s father had silicosis and that he died. He died from silicosis.

And he had a worsening of his condition in the years prior to his death.   A‑‑‑Yes.
All those things must have indicated to you, I suggest to you, that your condition carried with it a real chance that it would continue to worsen. That is right, is it not.   A‑‑‑Yes.
You had seen your own condition worsen. Is that so.   A‑‑‑Not to the point that I couldn’t do my work.
No, but you had seen it steadily worsen, although you could continue on working. Is that right.   A‑‑‑Yes.

Now, your Honours, in our respectful submission, once one accepts that a knowledge that one has a progressive condition is enough to satisfy the requirement that one knows the extent of one’s injury - - -

TOOHEY J: Or, if I could interrupt you, maybe that one knows the nature of the personal injury. Is not that the problem? Your submission would really admit of the operation of 60I(1), in a situation where a person was unaware that he or she had a progressive disease because they would be unaware of the nature.

MR TOOMEY: That is so, your Honour.

TOOHEY J: But given some knowledge for the person suffering from the progressive disease, your argument would give extent no operation in that situation as I understand it.

MR TOOMEY: Except we would, with respect, give a different operation to “nature and extent”. For instance, supposing you had a blow on the chest and you thought it had cracked a rib and in fact it had damaged a lung, that, we would say, would be nature.

TOOHEY J: Yes, but I was putting the question to you in the context of a progressive disease, and as I understand the argument, it is the awareness or not awareness that one has a progressive disease is relevant because of a component of nature. Given that you know you have a progressive disease then obviously you know the nature of the disease you would say there is no real means for asking whether you know the extent of the progression..

MR TOOMEY: Your Honour, that is so. The extent then - and this is what I meant when I referred to my learned friend importing the temporal quality and to extent: if you know the nature of it, you know it is progressive and you know, more or less, the extent at the time that you know its nature, then you have satisfied the test of nature and extent. Can I put a hard case to your Honour. Suppose someone knows that they are suffering from throat cancer. They do not know that they are going to have secondaries, that they are going to have all sorts of horrible side effects of the throat cancer, but they certainly know they are going to die from the throat cancer. It would be, in our respectful submission, absurd to suggest if they know they have a lethal cancer that because they do not know of some of the effects and some of the ways in which it is going to affect them, that they are not aware of the nature and extent and, yet, my learned friend’s argument is taken logically to its conclusion.

TOOHEY J: That is a bit different thought, is it not? In the case of silicosis the progression is quantifiable in percentage terms, or may be quantifiable, so that this year it is 10 per cent, next year it is 15 per cent and it may be easier to argue there that there is an unawareness of the extent of the progression and therefore an unawareness of the extent of the injury.

MR TOOMEY: Your Honour, indeed that is so if one accepts that “extent” refers to the extent of progression.

TOOHEY J: Sure.

MR TOOMEY: But that, in our submission, is the step that my learned friend cannot overcome.

DAWSON J: Mr Toomey, we will adjourn now until 2.15.

AT 1.01 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

DAWSON J: Mr Toomey, the Court would be assisted if we could in due course have a summary of argument; not for present purposes but perhaps for later purposes.

MR TOOMEY: Indeed, your Honour. We will get that to you by Monday. Your Honours, could I just return to the point of the correlation between the Workers’ Compensation (Dust Diseases) payments and the damages. If your Honours could go to the Workers’ Compensation (Dust Diseases) Act your Honours will see I took you to section 8(1) where it is necessary for the medical authority to certify a total or partial disability for work before a person shall be entitled to an award from the board. I regret to say that I was entirely wrong in my description to your Honours of how the Act works. If your Honours look to subsection (2) on page 13 of the print, section 8(2) says:

The prescribed rates of compensation payable under an award of the board made pursuant to subsection (1), not being an award to which subsection (2B) applies -

and, your Honours, that is the deaths subsection so it does not apply here -

shall, subject to this section, be:
(a) where the award is made pursuant to paragraph (a) of that subsection -

and that is the case here -

the weekly compensation payments prescribed by Division 2 of Part 3 of, and Schedule 6 to, the Principal Act -

which by section 1 of this Act is the Workers Compensation Act 1987 -

in respect of workers employed in or about a mine to which the Coal Mines Regulation Act 1982 applies;

Now, your Honours, the effect of that is that a person is compensated under the Workers Compensation Act and for the purposes of this Act the old sections of the 1926 New South Wales Workers Compensation Act apply which allow payments for partial loss and so on. I am told that the way it works, the mechanism by which it works is that the worker if his total or partial incapacity assessed under section 8(1) has an economic loss then he receives that economic loss no matter what his percentage of partial or total loss is up to the maximum weekly compensation sum.

TOOHEY J: When you say “economic loss”, Mr Toomey, do you mean the difference between pre-accident and post-accident earnings?

MR TOOMEY: Just so, your Honour. So it works almost exactly as the workers’ compensation legislation does. The effect, I am told, of the partial and total percentage assessments is that these are whole of life assessments, and after a worker retires, if he has a 40 per cent assessment of loss of capacity, he continues, despite the fact that he no longer has an economic loss, to receive 40 per cent of the maximum workers compensation payment. If he has 70 per cent, he gets 70 per cent. If he is total, he gets 100 per cent.

TOOHEY J: And is there any provision for lump sum payments by way of percentage loss of earning capacity?

MR TOOMEY: No, your Honour.

TOOHEY J: Just weekly payments - - -

MR TOOMEY: It is solely in substitution for workers compensation payments and it provides that a worker who receives the payments mandated by this Act cannot get workers compensation. Now, it seems strange since, effectively, they are the same, although it is governed by some sections of the 1926 Workers Compensation Act which no longer are in force for the general work force. But, your Honours, our submission is that that means that, rarely, this is to be treated just the same as other workers compensation payments and is to be taken into account in diminution of damages awarded for economic loss.

Your Honours, as I understand my learned friend’s argument on the main point, that is the finding by the Court of Appeal that the appellant was not unaware of the nature and extent of his injuries, I understand my learned friend to rely on two major arguments, the first being that in this case, because progression is an idiosyncratic reaction and not something which happens all the time, then it cannot be said that this is a progressive illness. The answer to that, in our respectful submission, is that in this case the appellant knew that it was progressive in his case. So the fact that it was idiosyncratic does not affect his case because the idiosyncrasy which he unfortunately had was such as to cause the progression in his case and he knew of it, as that passage from the cross‑examination which I read to your Honours from pages 97 to 100 of the appeal book makes manifest.

He knew that he had it; he knew it was a dust disease; he knew he was getting worse; he knew that the real chance, the real risk, was that he would continue to get worse. Your Honours, action was brought on 24 March 1991. If you go back six years from there, that is 24 March 1985, by which time he was 70 per cent incapacitated and within a little over a year he was 100 per cent incapacitated.

My learned friend’s second point, as I understand it, is that the progressive massive fibrosis was not something which became known to the appellant until 1982. Your Honours, in our respectful submission, it would not matter if that were the case because 1982 ‑ ‑ ‑

GAUDRON J: I think he said not known until after 1982. Was that not so?

DAWSON J: It was diagnosed in 1982.

MR TOOMEY: That is what my learned friend says, your Honour. We do not agree with that and I will take your Honours to the factual material which we will say makes it so. But, your Honours, the introductory words of section 60I make it plain there was an evidentiary onus on the applicant because the Court must not make an order unless it is satisfied as to certain matters and that imports an evidentiary onus. The evidence is silent as to when the appellant knew of the progress massive fibrosis. It is silent as to whether he ever knew of it, even at the time of the hearing.

DAWSON J: He could not know about it if it was not diagnosed, could he?

MR TOOMEY: No, your Honour, of course he could not but the question of when it was diagnosed is not black and white, as was suggested. If your Honours go to page 165 of the appeal book, which is the report of Dr Field on which my learned friend relied for other purposes, your Honours will see at line 29:

These findings ‑

that is, of lung function studies ‑

are consistent with the radiological appearances which are virtually diagnostic of silicosis and progressive massive fibrosis. Serial films from 11.6.1971 to 28.10.1982 reveal steady progression of the massive fibrosis with a reduction in lung volume ‑

et cetera. It simply is not correct to say, in our respectful submission, that the progressive massive fibrosis was first diagnosed in December 1982. It is plain that it had been developing over a period of 11 years.

In circumstances where the evidence is silent as to the appellant’s knowledge, he ought not to be able to rely on that because he bears the onus under section 60I. There is some evidence touching on this and I can perhaps take your Honours to it briefly. Dr Maurice Joseph at page 133 describes ‑ ‑ ‑

GAUDRON J: That was, of course, a report to the Dust Diseases Board. There is no evidence that it went to the plaintiff.

MR TOOMEY: I think that is right, your Honour. There is no evidence one way or the other.

TOOHEY J: I rather took your point to be that the report refers to serial films indicating that there had been some contact with doctors over an earlier period.

MR TOOMEY: Indeed, your Honour. He must have submitted himself to radiographs over the years and this fibrosis was progressing over the years.

TOOHEY J: The question still remains, I suppose, as to how far he was told of the implications to be drawn from the radiological films.

MR TOOMEY: Indeed, your Honour, but the only person who could answer that question was the appellant and he did not answer that question because there was no evidence of whether he knew or did not know. The basis of my learned friend’s argument is that he did not know until after December 1982 and as I understand it, it is on the basis that he could not know until after 82 because it was not diagnosed until then.

It appears from Dr Field’s report that that may not be right and in the absence of evidence from the appellant, we are in a Luxton v Vines situation. There are competing inferences of equal probability and neither of them may be drawn. If I can take your Honours shortly to the evidence. Dr Maurice Joseph was asked at 15:

Is it common?

That is, progressive massive fibrosis:

Oh, yes, your Honour.....I mean, you don’t get progressive massive fibrosis unless there is first silicosis. That is - I am sorry, I should qualify it. It can occur in other forms of pneumoconiosis.

And then, the question:

Most commonly, the progress to a massive fibrosis is associated with continued exposure, is it not.
No, I wouldn’t agree to that entirely. The factors which cause the development of PMF - progressive massive fibrosis - are first, the extent of the silicosis. The greater the silicosis, the greater the likelihood of PMF. The second factor is the super-imposition of infection.

There is no evidence here of any superimposition of infection. Your Honours, then Dr Gianoutsos at page 116 to 117 - at the bottom of page 117 line 39, Dr Field’s report was put to Dr Gianoutsos. He has asked:

Doctor, I would ask you to assume that a reporting specialist reports to the Dust Diseases Board in 1982 in these terms: He says, “Serial films from 11.6.71 to 28.10.82 revealed steady progression of the massive fibrosis”. What do you understand the specialist to be saying if he says that. A‑‑‑The specialist might have been saying one of several things. One of the things he might have been saying is that the patient had nodular disease at the outset, nodular disease in the manner that I described to you earlier, and that that nodular disease may have progressed in terms of the areas of nodules coalescing together.
He might equally mean that there was in fact evidence of massive fibrosis at the time of diagnosis in 1971, but that report does not say that, and as I said, I have not seen those films.

Your Honours, that reinforces, we would submit, our point that the appellant cannot have carried the onus in establishing to your Honours that he was not, at relevant times, unaware of the nature and extent of his condition. It might be said that his failure to address the question might be taken against him because, had it been the fact that he was not aware, one would have expect that evidence to that effect would have been placed before the court and it was not.

My learned friend in dealing with the concerns raised by the Court in argument that if his primary argument is right almost any case, certainly any case of disease, could qualify for an extension, said that that concern was met by section 60G and the provision that an extension will be allowed if it is just and reasonable. It is our respectful submission that that is not the intention of section 60G at all. Section 60G(2) is aimed, we would submit, at matters which arise after section I has been satisfied and goes to questions which are not essentially covered by section 60I such as questions of prejudice. I want, for instance, to put to your Honours the position where a potential plaintiff became aware on 1 April 1995 of facts which would allow him three years in which to bring an action. He knows that there are witnesses available to the potential defendant who are aged or sick. He makes no move whatsoever to bring his action until 31 March 1998. He is within the three years. He can satisfy section 60I but by his actions or by his lack of action he may have caused irremediable prejudice to the potential defendant.

Now, that is the situation where a judge may well say, “It is not just and reasonable that you be allowed to proceed”, and that is covered by section 60G but, in our respectful submission, section 60G does not go to anything other than prejudice unassociated with 60I.

TOOHEY J: I would not have thought that was an argument against your case, really. Say, for instance, the plaintiff gets up under section 60I(1)(a)(iii), in other words, he did know that he had suffered personal injury. He did know the nature and extent of it but he was unaware of the connection between the injury and the defendant’s act. Now that meets the hurdle in section 60I but it may be that in considering whether it is just or reasonable to extend the time, the court might say, “Well, you knew you had that injury. You knew the nature and extent of it and you said nothing about it for a number of years.”

MR TOOMEY: “You made no inquiry”.

TOOHEY J: Or “You did not tell employer anything about it”. In other words, that is the sort of consideration that might be brought within section 60G(2).

MR TOOMEY: Yes.

TOOHEY J: But your argument would say no.

MR TOOMEY: No, your Honour, with respect, what we are saying is that that matter would not go to 60I, the material your Honour has raised would not go to section 60I. He would still qualify under section 60I, but as a matter of discretion the judge might say, “Although you qualify under 60I because you didn’t bring it to anyone’s attention it’s not just and reasonable you have leave”. With respect, we agree with your Honour.

TOOHEY J: I must have misunderstood your argument. I thought you were putting really the converse of that proposition, that the considerations that are mentioned in section 60I are not considerations which bear upon whether it is just or reasonable.

MR TOOMEY: Well, your Honour, I think that is what we are putting, because we are saying this that, “You may strictly fall within 60I and satisfy every one of the provisions in 60I and yet it may not be just and reasonable because of your behaviour”.

TOOHEY J: Certainly. All I was suggesting is that if a plaintiff gets up under, for instance, the third of those possibilities in paragraph (a) it may well be that the considerations that are raised by (i) and (ii) might have some bearing upon whether it is just or reasonable to extend the term.

MR TOOMEY: Yes, your Honour. With respect, I see that. Your Honours, can I turn to my learned friend’s arguments on the findings of fact. My learned friend, Mr Hislop, has in his submission set out in ground 2 the powers of the Court of Appeal on an appeal from the Dust Diseases Tribunal. The appeal is to the Court of Appeal by way of rehearing and:

The Court of Appeal has the powers and duties of the Dust Diseases Tribunal including powers and duties concerning the drawing of inferences and the making of findings of fact and may make any finding which ought to have been made or which the nature of the case requires.

Well, what the respondents say here essentially is that the findings which his Honour made and which my learned friend relies on in which he says the Court of Appeal ought not to disturb, particularly the findings at pages 173 and 174, we say were findings which either were clearly wrong or were findings which relied on inferences from facts which the Court of Appeal was in just as good a position to draw as was his Honour, a Warren v Coombs situation. For instance, your Honours, can I take you to 173, line 30, where his Honour the learned trial judge said:

The plaintiff has given evidence of his reactions to his condition and its systems. He has maintained that he thought his illness or disease would remain static and that it would not necessarily deteriorate further.

Now, that, of course, is what he said at pages 87 and 88, which my learned friend relies upon when he continued to say he was unaware of what caused his condition, he was unaware of deterioration and so on. But, your Honours, as left by his evidence in cross-examination, it cannot be said that that is a fair summation of his evidence.

McHUGH J: Mr Toomey, could you just assist me on this? Perhaps I am being too legalistic about this, but is not the right way to look at the question under 60I to say: What was the nature or extent of the personal injury of the applicant on the day of the expiration of the limitation period, and was he aware of it as at that date? So the first question is to determine what was the extent of the personal injury as at the three dates, and then you ask the question, did he know of it as at that date? The argument of Mr Jackson and the trial judge tended to not concentrate on that critical date.

MR TOOMEY: Yes, your Honour, we agree with that.

McHUGH J: So, does that mean that you ask, as against the first respondent, what was the extent of his injury as at 12 July 1968; in respect of the second respondent, as at 31 July 1979 and in relation to the third respondent, as at 15 August 1992?

MR TOOMEY: Your Honour, we would say not in respect of the third respondent because we would say he was aware. He went into our employment in 1973, so 1979 is our date and in 1979 he knows he has 40 per cent and deteriorating loss of capacity. He started with us on 1 April 1973. He does not fall within the section unless he can satisfy the Court that, at 1 April 1979, he was unaware of the nature and extent of his condition.

McHUGH J: But why do you select 1 April 1979?

MR TOOMEY: Your Honour, actually it moves, of course, that is the problem.

McHUGH J: That is right.

MR TOOMEY: It is not one date, it is a succession of dates and at all times he can look back six years from the date. The 1992 date, with respect, is not of concern because the order of the Court of Appeal allowed a rehearing on his claim against my client from a date six years before the

date when he, in fact, filed his statement of claim and that is a date in 1985. So, it is back from then, it is back from 1985.

McHUGH J: One of the problems is that, technically speaking, I suppose, if you were pleading under the old system, you would have a separate count for every day.

MR TOOMEY: Yes, that is right.

McHUGH J: Well, theoretically, anyway.

MR TOOMEY: You would be entitled to plead it that way if you wanted to spend a week on it. Can I just say this, your Honours: we also say that a proper reading of the medical evidence demonstrates that the progressive massive fibrosis is not a separate condition but a development of the silicosis condition and, of course, you will have noticed that the schedule in the Workers’ Compensation (Dust Diseases) Act of diseases to which my learned friend took you includes silicosis but does not include fibrosis.

It is not a separate disease. It is a development of silicosis so that the nodular patches caused by silicosis on the lung join and so it is merely part of the natural progression, we would submit, of silicosis and any argument based on the suggestion that a separate and different disease was diagnosed falls on the facts. Your Honours, those are the arguments on behalf of the first respondent.

DAWSON J: Mr Hislop.

MR HISLOP: May it please the Court. Many of the matters which Mr Toomey has traversed are matters that I would otherwise have found necessary to deal with, accordingly, I can be perhaps a little shorter than otherwise would have been the case. If I might commence in the way that Mr Toomey did by dealing first with the Workers’ Compensation (Dust Diseases) Act and simply adding a few additional points. Firstly, the major point that we would make is that Adams v Ascot Iron Foundry has stood since 26 or 27 years ago; it has been followed in other cases. The essential characteristics of the Workers’ Compensation (Silicosis) Act with which that case was concerned remained the same in the current Workers’ Compensation (Dust Diseases) Act which is before the Court.

Indeed, as I understand the submissions of Mr Jackson, he points to two differences only and both in section 6, in (2A) and (2B), which changes, of course, make no difference to how one would classify the nature of payments under the Act. That is the first point. The second point is the working of the Act. Mr Toomey revisited that this afternoon. If I could add two further references in that regard. Section 8(3) really completes the trilogy. Mr Toomey took you to section 8(1), which provides the threshold through which a party must enter; section 8(2) prescribes the rates, they being the rates in accordance with the Workers Compensation Act itself, the principal Act, and then in section 8(3) the particular provisions of the Workers Compensation Act there nominated are brought into play in relation to any award which is made under the Dust Diseases Act.

I simply do that to complete the statutory background. It reinforces the point which was made by Mr Toomey that really what the worker here is receiving is workers compensation in relation to economic loss that he suffers as a result of his injuries. That is borne out by the evidence in this case itself where the worker was working for a considerable time and receiving various disability ratings: 10 per cent in 1971 ranging up to 60 per cent, I think, in 1985 and then ultimately to 100 per cent, but he did not receive any payment, any dust diseases compensation, until he had ceased work and, thus, was occasioned an economic loss.

That appears from the appeal book page 50 lines 28 to 33, page 55 line 35 to line 40 and page 74 lines 23 to 28. So it simply shows the application of the Act in practice and reinforces the nature of the payments for which we contend. A further point is that the payments here are, by virtue of section 8(1) payments as of right, a matter which, of course, was considered of importance by the majority in Redding v Lee in approaching the classification of payments in cases of this type. There was also a doubling‑up component in that the employer is required to pay premiums in respect of the payment of workers compensation insurance under the statutory scheme from which any verdict which the worker received would be paid.

Secondly, the way in which the scheme is funded is that principally the obligation to fund it falls upon workers compensation premium payments which are again drawn from employers, this time employers in dust industries. So that it makes, in our respectful submission, sense that there should be relief, because after all, ultimately in a general sense it is true to say that the payments all come from the employer’s pocket by way of the premiums that they have to pay.

The further point that we would make is that Mr Jackson said in his submissions that the payments that - the past loss of wages were the subject of a reduction in the court below in respect of payments made under the Workers Compensation (Dust Diseases) Act. That is true. He said that an appeal was lodged against that and that that appeal was not allowed by the Court of Appeal. That is incorrect. It is true that the cross‑claim which is to be found in the appeal books at 206, 29 to 35, does raise as a matter of appeal the fact that his Honour deducted payments under the Dust Diseases Act from past loss of wages. What, however, the appeal book does not reveal was that that ground of cross‑appeal was abandoned in the Court of Appeal and was not agitated in any way. It was expressly withdrawn in the written submissions which were filed on behalf of the cross‑appellant. So we would say in those circumstances the point is really not open to my friend to agitate that either as regards past payments or future payments that in this case they should be the subject of a classification and should not be taken into account.

The only other matter that we would wish to put to the Court in relation to these payments is the - I think one of the members of the Court said that there is no provision in this Act which permits the deduction of such payments from verdicts or the refund of them and Mr Toomey acknowledged quite correctly that that was so. It is suggested that perhaps a reason for that was there would have been few, if any, of these cases in the past.

We would respectfully submit that that is the most likely explanation, particularly when one bears in mind that Cartledge v Jopling, which was really the case that highlighted this problem, was not decided until 1963 so that one would have expected up till then and beyond that the Limitations Act would have prevented such actions being brought in the majority if not all of the cases.

Beyond that date in 1968, Adams v Ascot Iron Foundry was determined and, of course, it decided that these payments should be deductable so that in those circumstances there was no need, which Parliament would have perceived, to legislate to make such payments deductable. That was already the position of the common law.

They are the submissions we would make as to the deductibility of payments under the Workers’ Compensation (Dust Diseases) ‑ ‑ ‑

McHUGH J: Supposing the Court was in your favour on that particular point but against the respondents on the main question, what order would you suggest the Court should make? In other words, that the appeal should be allowed but that the trial judge was wrong in not making these deductions. What order should the Court make in that case? Perhaps it is a matter I should ask Mr Jackson about, but you have got an interest in it and what about the question of the single verdict against everybody as well?

MR HISLOP: As regards the single verdict, as I understood the position, it had been held by the Court of Appeal, albeit obiterdicta because the only point that was part of the ratio was the limitations point, but they had held that there could not be a verdict against all of them in the full amount. As I understood what Mr Jackson had said he accepted that. Certainly it is no part of any of the matters in the notice of appeal, so I would submit that would stand. The effect of that would be if the Court held that the Limitations Act point had been wrongly decided in the Court of Appeal that the matter would go back for determination of that.

TOOHEY J: That is not what is asked by the appellant. The appellant asks us to reinstate the order of the primary judge.?

MR HISLOP: Well, with respect, that, in view of the concession made by Mr Jackson, simply cannot be as regards the quantum of damages because it is accepted, as I understand it, that the - - -

TOOHEY J: I am sorry. I may not have made myself clear. Reinstating the order of the primary judge as to the extension of the period in which to claim under the Act.

MR HISLOP: Yes, we are limited to that. If the Court did that then the matter would have to be returned for a rehearing on the remaining issues.

TOOHEY J: Yes, but is it part of your submission that if this Court took the view that the Court of Appeal erred in its approach to the question of the limitation period, that in any event that question should go back or that it would be open to this Court to reinstate the order of the primary judge on that particular matter.

MR HISLOP: No, we would submit that the proper course would be for all issues, including the Limitation Act to go back for further determination if the Court was to find that the Court of Appeal had erred in that regard.

TOOHEY J: Is that on the footing that there is not sufficient evidence to allow that point to be dealt with by the Court or that it is better that - I mean there is a decision of the primary judge. What if this Court thought that the primary judge had gone about the matter in the right way.

MR HISLOP: It is difficult, with respect, to see that that was so because I think it is apparent from the judgment that his Honour took the view that all he really had to concern himself with was section 60G and perhaps did not direct his mind fully to the other aspects. The submissions I have made thus far only relate to the repayments of dust diseases matters. I do wish to say something about those other matters and point out where, in our submission, there was, in fact, no error.

McHUGH J: Yes, but I am not sure you can rely on that approach. After all, you did not challenge Dedousis in the Court of Appeal. You were quite content to accept the judge’s analysis of the relevant provisions.

MR HISLOP: What was put at first instance was that the court should have regard to the matters under section 60 - that the matter was conducted by the parties on the basis that section 60F applied.

McHUGH J: Yes, I know.

MR HISLOP: And part of section 60F is relevant to 60(1)(a). Indeed, the matter which is the point of the appeal by my learned friend as to the extent of the personal injury, that would appear to raise common questions and whilst the trial judge did not necessarily accept that section 60F was appropriate, he took the view simplistically that all he had to determine was whether it was just and reasonable to allow it. He, nevertheless, made some findings, but they were findings made, we would suggest, with that particular mind set, and that, therefore, it would be appropriate for the issue to go back if the Court was of the view that it had been wrongly determined in the Court of Appeal.

McHUGH J: Back to the same judge? The worker is now dead.

MR HISLOP: Yes.

McHUGH J: What about the worker’s evidence?

MR HISLOP: It may be necessary to reach some agreement as to whether the evidence should ‑ ‑ ‑

McHUGH J: The Court should make some order that his evidence be used in that case.

MR HISLOP: That may be seen by the Court as a fair and appropriate way to deal with that problem. Might I make some short submissions as to what his Honour the trial judge did determine in this regard. At page 175, lines 15 to 20, one has that which his Honour found in relation to this question of nature, extent and cause of his disease. At that point his Honour held that:

the second defendant has failed to appreciate the significance of what has been indicated in the case of Wootton.

But the real point is:

I conclude that the plaintiff had some doubts as to the nature, the extent and the cause of his disease, at least until some time after 1986.

It is our submission that the fact that his Honour found that he had some doubts does not mean that he was necessarily unaware. It is, in our submission, possible because there are various gradations of knowledge for someone to be aware of something, albeit to still entertain some doubt. Then we would embrace in any event the submissions which were made by Mr Toomey as to the factual situation that the evidence properly viewed does not support the trial judge’s finding as I have read it.

The remaining matter is to submit that the Court of Appeal was correct in what Mr Justice Handley said at 216 lines 10 to 16, which is the first ground of appeal. His Honour there said:

The further deterioration that has occurred since, to the extent that it was caused wholly or in part by his exposure to dust during his employment by the second defendant, was reasonably foreseeable and the worker was aware of this risk or chance.

A disease is a pathological condition importing pathological and physiological incidence and consequences and liable to follow one course or some courses more or less known or expected so that, in this particular case, the worker was well aware that he had suffered the disease of silicosis as at 1971. He knew at that stage the extent of his disability at that time; he knew it continued to progress so these were all matters which he knew at the time that the limitation period expired and, indeed, we would submit should it be necessary to go further, that extent in section 60I requires something less than awareness of the full and complete course which the disease will ultimately take. Because to hold otherwise would be to deprive the Limitations Act of effect, save where the injured party has been cured because the ultimate course of a disease will only be known, in fact, with certainty only upon the death of the person or his cure.

TOOHEY J: Do you support the reference to “reasonably foreseeable”, Mr Hislop?

MR HISLOP: Yes, we would seek to support that, your Honour, in the way I have indicated because, providing that he knows that he is suffering from a disease and knows the general course of it then, in our submission, he is aware of the extent of the disease. Otherwise, the section really would have no effect in almost all cases.

TOOHEY J: I can understand that argument but just have some difficulty with the idea of “reasonably foreseeable” in the context of a section that speaks of awareness of certain matters.

MR HISLOP: I think essentially what his Honour was seeking to express was the concept that any disease has a variable set of courses which it may follow, which are more or less known or expected, which is what was said by his Honour Chief Justice Dixon in Australian Iron and Steel v Connell which I have referred to in my written submission. Taking that into account, what this man had was that knowledge at the relevant times and accordingly, it could not be said he was unaware of the extent of his disease at any relevant time.

TOOHEY J: That may be in the particular case but it is the notion of something that is reasonably foreseeable, because the person in question might be of reduced intelligence. What is foreseeable by one person is not necessarily foreseeable by another. It just seems to introduce not a wholly objective test but some sort of component of objectivity.

MR HISLOP: Yes. I think, though, that what his Honour probably had in mind at the time was the nature of the condition being such it would have a known course. In our submission, it is really what his Honour was seeking to express there as something akin to what was expressed by Chief Justice Dixon in Australian Iron v Connell, and provided that was known, then he was aware of the extent of his condition, in this case, his disease. The concept that extent cannot be read to its fullest and widest extent is dealt with by his Honour Mr Justice Meagher in F.J. Walker Ltd v Webber. it is an unreported decision. I have got the reference in the written submissions. I shall not take the Court to it.

It is also echoed in the earlier decision of Ditchburn v Seltsam also of the Supreme Court of New South Wales, which is the subject of a reported decision, the reference to which is in the written submissions. We would also, with respect, accept what his Honour Mr Justice McHugh said, the time at which the extent is relevant is the time when the Limitation Act expires. So if it please the Court, they are the submissions on behalf of the respondent.

DAWSON J: Thank you, Mr Hislop. Mr Jackson.

MR JACKSON: Your Honours, may I say immediately in relation to the past payments under the Act and, I must say, I have only become aware of it in the last few minutes when it was checked, that in fact that ground was not pursued in the Court of Appeal, I accept that, your Honours, and it is in relation to past payments.

Your Honours, may I turn then to a couple of matters arising out of my learned friend’s argument? The first concerns the state of the evidence relating to the knowledge of the worker. May I say two things. First of all, in relation to life expectancy, the uncontradicted evidence, your Honours, appears in a passage that I may not have referred your Honours to specifically before, at page 88, about line 9, where he was asked:

When were you first aware, even if indeed you are, as to what is your life expectancy; have you ever discussed that with a doctor.

His answer:

No.
Has a doctor ever sought to discuss it with you.
No.

Your Honours, the second feature was, of course, that the medical evidence was that no‑one would be able to predict the future from a diagnosis of silicosis. That is at the top of page 106, lines 1 to 5. Immediately following that is the reference to the idiosyncratic reaction.

Could I then go to page 165 to the report of Dr Field where our learned friends referred specifically to what appears at about line 32:

Serial films from 11.6.1971 to 28.10.1982 reveal steady progression of the massive fibrosis

Your Honours, our learned friends took your Honours to the evidence at the bottom of page 117 and the top of page 118 in which this was, in fact, the subject of discussion. But, your Honours, if one goes to what is actually said there by Dr Gianoutsos, what he said was something that does not really support the case on behalf of the respondents; because what he said at 117 line 45, when asked:

What do you understand the specialist to be saying if he says that.

was this:

The specialist might have been saying one of several things. One of the things he might have been saying is that the patient had nodular disease at the outset, nodular disease in the manner that I described to you earlier, and that that nodular disease may have progressed in terms of the areas of nodules coalescing together.

That is the thing that really does not support our learned friend’s case. Then he says at the top of the next page:

He might equally mean that there was in fact evidence of massive fibrosis at the time of diagnosis in 1971, but that report does not say that, and as I said, I have not seen those films.

So, your Honours, if one looks at the report, that doctor of course not giving evidence, if one looks at a doctor who speaks of what the report says, he does not support the view that it is saying there was massive fibrosis there at an earlier time, and if one looks at the other evidence about when there was a diagnosis, that appears at page 133 and your Honours have seen between lines 45 and 50 Dr Joseph who was called on behalf of the other side said:

I think it was 1982.

Going just a little above, line 40, what your Honours will see is that what Dr Joseph said was:

the most probable cause of the progressive massive fibrosis was the continued exposure after that initial diagnosis -

Now, your Honours, if I could go then to the terms of the Limitation Act and revert to a matter that your Honour Justice McHugh raised with our learned friends and, your Honour, as I understood your Honour was putting to my learned friends it was to the effect that one had to look to what was the extent of the personal injury at the time of, for example, expiration of the relevant limitation period as being a possible construction of the provision. In our submission, your Honour, that is, with respect, not the better construction of the provision because what one is looking to see, we would submit, is to see if the Court is satisfied that at the expiration of the relevant limitation period the plaintiff was at that point unaware of, for example, the nature or extent of personal injury suffered.

Your Honours, it would be the narrower rather than the more beneficial construction of the section to take the view that it applied only to the extent that was then perceived or then known because the whole purpose of the provision, one might think, is to say because in, for example, an extent case, the extent was not - or that what has emerged as the true extent was not at that time known, that is really the reason why there has been given the further extension. Your Honour, if one goes to section 60F to see the purpose of the subdivision, it is to give a procedure, it says:

for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact.....at the relevant time.

Now, your Honour, I am conscious of the fact that it is an introductory provision, a paraphrase, not an exact paraphrase no doubt, but it gives some of the sense of it, that in a sense what has occurred afterwards was not or could not have been known at the time and, your Honours, that is what we would submit in relation to that.

Your Honours, going to the terms of the other issue, the Workers’ Compensation (Dust Diseases) Act, can I say a couple of things about that. The first is that there is not any age limitation for starting or finishing the pension provided for under that Act. The second thing relates to something that, again, your Honour Justice McHugh asked and that concerns the absence in 1942 of there being any provision for recovery of money and in effect equivalent to the old section 63.

Your Honour, in fact, the situation that has occurred over time has been that many other diseases have been added to the schedule of diseases from the original silicosis and in 1967 asbestosis and a number of other diseases were added and in 1983 mesothelioma was added and those are diseases in relation to which there has been considerable litigation over quite a period of time now.

Your Honours, there has not been an attempt to add a section 63 in that time, something which supports the view, in our submission, that what is contemplated by the Act is that the Act deals specifically with the case of people who suffer injuries of this kind in circumstances I adverted to before where there may be very considerable difficulties in attempting to enforce rights against parties who may no longer be, for practical purposes, in existence and that is a feature which militates in favour of the contention which we advance.

As to the course which should be followed in relation to the proceedings - I do not know if that is the point your Honour ‑ ‑ ‑

McHUGH J: That was all I was going to ask you about, yes.

MR JACKSON: Your Honours, the position is this, of course: so far as the appeal to the Court of Appeal was concerned, the basis on which the appeals by the other side succeeded, was in saying that the judge was wrong in granting the extension of time. Now, your Honours, in relation to that aspect of the case that is something which, in our submission, this Court, if it were otherwise in our favour on that issue, itself could and should deal with in the sense of saying that the result would be that the primary judge’s decision on the issue should be restored.

Your Honours, that becomes then a question of what happens to the remainder of the case on the assumption that our argument in relation to the Dust Diseases Act did not succeed and in those circumstances two courses, I suppose, could be followed. The first would be that the Court might give the parties some time to agree on what was an appropriate reduction of the amount of the verdicts. If the parties were not able to agree in relation to that it would then be necessary for there to have to be some alteration of the verdict by reference to the amount properly attributable in the verdict to those sums and, your Honour, that could be done, I suppose, in two ways.

One would be by the parties addressing some written submissions to this Court in order to invite the Court itself to express a view on the amount of the reduction. The second course would be for that issue to be one which might be referred to the Court of Appeal on the appeal being allowed with a view to that court arriving at that conclusion. Your Honours, the rates involved are matters that are fixed ultimately by or pursuant to statute, and in the end there might not be much difficulty about the matter.

TOOHEY J: But if the appeal were allowed on the ground relating to the limitation period but not otherwise, would it not be enough for the Court to order that the decision of the New South Wales Court of Appeal be set aside in so far as it - this is not the formal language, but in so far as it related to that matter and if your submission were accepted, the decision of the primary judge reinstated on that point, and that would really be the end of it as far as this Court is concerned, would it not?

MR JACKSON: Yes. Your Honour, it would still leave, of course, the fact that there has not been a quantification. I am working on the assumption, for the purpose of the argument, that our second contention has not succeeded on the Workers Compensation (Dust Diseases) Act.

TOOHEY J: But even on that first point there would still be the just and reasonable aspect of it, would there not, to be considered.

MR JACKSON: Well, your Honour, that has already been decided in our favour by the primary judge because there was no doubt that he dealt with that question.

TOOHEY J: Did he deal with it on the correct footing?

MR JACKSON: Your Honour, he dealt with it on the basis that the parties put the issue before him on. That was undoubtedly one issue that was fully dealt with by him. It may be of course that in the light of hindsight, parties would like to have another go and do it differently. But the fact of the matter is that that was the significant issue dealt with by the primary judge. Different hands, different minds do things in different ways, no doubt, but that issue certainly has been dealt with by him. So we would submit we are entitled to retain, if we are otherwise successful, the primary judge’s decision that the time should be extended.

Your Honours, the only other question then would be who should decide how much comes out by virtue of the decision of the Court of Appeal which I am assuming for the purpose of the argument in relation to the Dust Diseases Act would not succeed, how much the verdict is reduced by.

TOOHEY J: That could really go back to the compensation court, could it not?

MR JACKSON: It would be a matter for the judge to decide, yes. It is a matter of which court could decide it. That could be done, your Honours, by this Court by some written submissions or by the Court of Appeal or by the primary judge.

GAUDRON J: The figure involved does not appear in the trial judge’s calculations.

MR JACKSON: No, your Honour, because he took the view that there should not be a deduction because of that. Your Honours, those I think are our submissions.

DAWSON J: Thank you, Mr Jackson.

MR TOOMEY: There is one matter that I would like to bring to your Honours’ attention; it has only just been brought to my attention and it is that if your Honours look at the appeal book, your Honours will see that, where Mr Joseph’s evidence begins at page 131 of the appeal book, the transcript page from the Dust Diseases Tribunal at the bottom is 208. If your Honours go back a page before that to appeal book 130, your Honours will see that the transcript page is 167. What happened in the meantime, if I can read to your Honours from page 188 of the transcript of the Dust Diseases Tribunal, is that his Honour the trial judge told the parties that he proposed to ask for addresses on the limitation issue and to postpone the evidence of Dr Joseph on the substantive issue.

He then proceeded to hear argument and give judgment on the limitations point before he heard the evidence of Dr Joseph, so the evidence of Dr Joseph is not available on the limitations point at all, because it is not the basis on which his Honour gave judgment.

TOOHEY J: It would be available to us if we decided to take that matter on board for ourselves, would it?

MR TOOMEY: It would, your Honours, but it would not have been available to any of the parties in this case to put before your Honours and it was not considered by his Honour and it ought not to have been and I suppose was not considered by the Court of Appeal.

DAWSON J: Yes, but the fact that his Honour divided the case up in that way does not mean that we have to do so, does it?

MR TOOMEY: No, your Honour, but it does go to the question of whether or not his Honour was wrong, because it is the question of what evidence was before him. If it could have influenced him, then it ought not to be taken into account by this Court, in our respectful submission.

DAWSON J: We will see what Mr Jackson has to say about that.

MR TOOMEY: Yes, and could I say one other thing, your Honours, on what should happen. It is our respectful submission that the only appropriate orders would be for a complete rehearing, because we are in the position now where estimates were made of future loss and suchlike on the basis of what might happen in the future. We now know what has happened.

TOOHEY J: Yes, but that presents a real difficulty here in view of the death of Mr Hollins.

MR TOOMEY: Well, your Honour, with respect, in one way it removes the difficulty, because the assessment of damages now would be a matter of proved fact.

TOOHEY J: I was not thinking just of assessment of damages, but you are inviting us to send the matter back at large ‑ ‑ ‑

MR TOOMEY: Yes, indeed, your Honour.

TOOHEY J: ‑ ‑ ‑ when the evidence of the then applicant is no longer available, except in the form in which it was given before, assuming, as I would assume, that that is available to any tribunal that is called upon to reconsider the matter.

MR TOOMEY: I am sure it would be, your Honour. I am sure no points would be taken on that. But, your Honour, there are a number of possible positions. If your Honours were satisfied on the limitation point, that is the end of it perhaps. If your Honours are not satisfied on the limitation point but think the limitation point ought be reheard, that is another position, but certainly, in our respectful submission, if there is a possibility of the matter being reassessed in the light of events which have actually happened, it is obviously desirable that that be done.

TOOHEY J: When you say, “the matter being reassessed”, you mean the limitation point, do you?

MR TOOMEY: No, your Honour, I mean the damages.

DAWSON J: But why should that be so? I mean he has a judgment in his favour and he is now deceased, it is true, but why should one disturb that given that the other matters are decided in his favour.

MR TOOMEY: I am sorry, your Honour, that would only be so if your Honours sent the matter back for rehearing of the limitation point.

DAWSON J: Yes.

MR TOOMEY: It could not arise otherwise, with respect, I agree, but if your Honours sent it back for reassessment of the rehearing of the limitation point it would be our respectful submission, consequent upon the possibility of a finding in favour of the appellant on the limitation point, there should be a reassessment of damages. It should not be just a matter of reinstating the damages awarded if the limitation rehearing went in favour of the appellant.

McHUGH J: But, may not the widow then have a cause of action under the compensation - - -

MR TOOMEY: Well, she may in any event, your Honour, but that is a separate cause of action.

GAUDRON J: It appears that the verdict cannot stand up against both defendants so there has to be - even if you lose on every point, that has to be redetermined.

MR TOOMEY: Yes, your Honour.

GAUDRON J: And, presumably, at first instance.

MR TOOMEY: And, your Honour, it could raise this position: supposing a judge then has to assess how much of the $502,000 is to be assessed as against one defendant and how much against the other, he has to do so in the totally artificial situation where he has to assign amounts which he knows are in excess of what the damages would be assessed at in the events that have happened.

DAWSON J: It is not artificial in so far as that is an exercise he could have done, had the person not been deceased. It is just dividing into proportions. That is not artificial is it?

MR TOOMEY: I suppose that is right, your Honour. It is only a matter of percentages but certainly if the limitation point goes back for a rehearing it would be our respectful submission that that ‑ ‑ ‑

DAWSON J: I appreciate that you saythat. Yes, Mr Jackson.

MR JACKSON: Your Honour, may I just say a couple of things. An underlying assumption in our learned friend’s argument is one that may not be valid and by that I mean the assumption that is appropriate at this point, whereever the case goes from here. It is appropriate at this point for there now to be taken into account in diminution of damages the fact that the worker has died because it is a case where what one has is that the assessment of damages has taken into account the contingency of potential death.

Sometimes the contingency works one way, sometimes it works another. Your Honours, that that is so was dealt with and that that is not an appropriate ground for, for example, reducing a verdict, the early death of the successful plaintiff, was dealt with in a decision in the New South Wales Court of Appeal which was the subject of a refusal of a special leave by the court. Can I give the Court the reference. It is Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 and what was held in that case was, as I have said, that the damages that had been assessed should not be reduced because one of the contingencies had come to maturity.

That is the first thing. The second thing ‑ ‑ ‑

McHUGH J: How does that decision square with cases like Willis v The Commonwealth, the case on the Compensation Relatives Act in this Court where the Court said, “Well, the widow is remarried, you take that into account”. It may have been assessed under contingency at the trial but the Court prefers facts to prophesy.

MR JACKSON: Perhaps it depends on the particular contingency that is in question.

McHUGH J: In a sense, you have argued some of these cases in Kizbeau .

MR JACKSON: Your Honour, I am lost in remembering what Kizbeau is.

McHUGH J: It is a case from Victoria on the motel about change of conditions after the date of lease.

MR JACKSON: I remember that vividly; I wondered if your Honours had actually.

McHUGH J: It is still reserved.

MR JACKSON: What I was going to say was, though, your Honours, that this issue is one that had been decided in the same way in, in effect, the House of Lords in Mulholland v Mitchell and what we would submit is - and I cannot give your Honours the reference to the decision of the Court dismissing a special leave application but as I understand it, the basis of the dismissal was the decision was not attended with sufficient doubt. So we would submit what is said in the case dealing with matters such as the fact that the contingencies can go either way and if, it should not always be, to put it shortly as the judgment says, one in favour of the insurer is the one that is treated as predominant.

The second thing is that whilst it is true that there will have to be some division up of the amount of the judgment so that some of it is attributable to one respondent and some to the other, that is a matter that can be done, no doubt, by the Court of Appeal or could be done by the primary judge. Again, there would have to be some deduction on the assumption that the second argument about the dust diseases provision does not succeed, if that were to be the case. That is really all that has to happen in

relation to the case and it can be done either by the judge who heard it in the first place and made the assessment or it can be done by the Court of Appeal. Any further hearing should be limited to those matters, in our submission.

DAWSON J: What do you say about the evidence of Dr Joseph?

MR JACKSON: Your Honour, in temporal terms, just looking at the dates, what my learned friend says may be correct but I am really not in a position to be able to tell your Honours at the moment. Could we send your Honours a note concerning it and endeavour to do that the next day?

DAWSON J: If you cannot resolve it now that would be the best course and you would show that to Mr Toomey and give him an opportunity to reply.

MR JACKSON: Yes, of course, your Honour.

DAWSON J: Yes, very well.

MR JACKSON: Your Honours, we could do that in the next 24 hours.

DAWSON J: Thank you. The Court will consider its decision.

AT 3.33 PM THE MATTER WAS ADJOURNED