Jutta Brigitte Payne as Widow and Executor of the Estate of Kenneth Charles Payne (Dec'd) v Architectural Ceiling Systems Pty Ltd - [2000] WADC 271

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: JUTTA BRIGITTE PAYNE as Widow & Executor of the Estate of KENNETH CHARLES PAYNE (Dec'd) -v- ARCHITECTURAL CEILING SYSTEMS PTY LTD [2000] WADC 271

CORAM: FENBURY DCJ

HEARD: 11 SEPTEMBER 2000

DELIVERED : 22 SEPTEMBER 2000

PUBLISHED : 27 OCTOBER 2000

FILE NO/S: CIVO 102 of 2000

BETWEEN: JUTTA BRIGITTE PAYNE as Widow & Executor of the Estate of KENNETH CHARLES PAYNE (Dec'd)
Plaintiff
AND
ARCHITECTURAL CEILING SYSTEMS PTY LTD
Defendant

Catchwords:

Fatal Accidents Act 1985, s 7 - Application for leave to commence proceeding out of time - Turns on own facts

Legislation:

Fatal Accidents Act 1985, s 7

Result:

Application allowed

Representation:

Counsel:

Plaintiff: Mr A C Dimsey
Defendant: Mr A S Inglis

Solicitors:

Plaintiff: Slater & Gordon
Defendant: Phillips Fox

Case(s) referred to in judgment(s):

Western Australia v Watson [1990] WAR 248

Case(s) also cited:

Nil

FENBURY DCJ: Kenneth Payne died of complications caused by mesothelioma on 11 October 1994. His disease had been diagnosed a year earlier in October 1993. The applicant, Mr Payne's widow, seeks leave to bring an action for loss of dependency under the Fatal Accidents Act.
The Fatal Accidents Act requires such an application to be brought within 12 months of death. Obviously this application should have been brought by 11 October 1995 at the latest. It is thus nearly five years out of time.
Section 7 of the Fatal Accidents Act provides relief in certain circumstances for those who do not commence proceedings within 12 months. The criteria are:
1.The delay has to be occasioned by mistake.
2.The delay has to be occasioned by any other reasonable cause.
3.The absence of material prejudice to the prospective defendant in his defence by the delay.
If one or the other of those criteria is established, and it appears to the Court to be just to grant leave, then leave may be granted to bring the application out of time.
In this application it is not suggested that the delay is occasioned by mistake or that there was any other reasonable cause. The application is based upon the proposition that the defendant has not been materially prejudiced by the delay and that in the circumstances it would be just for the Court to grant leave to bring the action.
As I mentioned the deceased was diagnosed with mesothelioma in October 1993 and he died in October 1994. On about 13 April 1994 the deceased commenced a worker' compensation claim which was subject to a preliminary review. A record of the proceedings of that review dated 1 July 1994 is annexed to the affidavit of Allister Inglis, the respondent's solicitor, dated 13 July 2000.
In those proceedings the plaintiff was the deceased and the respondent was a company called Bells Thermalag. Certain orders were made on 1 July 1994 and the record of proceedings reveals that apart from the representative of WorkCover, there was present at the proceedings solicitors for Commercial Union Assurance Corporation, and further a solicitor representing SGIO, MMI Insurance Group and FAI Insurance Group.
The third order made on that day was that within a specified period the applicant was to file and serve a statement of claim setting out certain information. The statement of claim was to be served upon "the representatives of the other parties in attendance at today's preliminary review". Amongst other parties referred to in the order is Architectural Ceiling Systems Pty Ltd, this proposed defendant. However, apart from the mention of the name of that company, there is no clear mention of the company being present by counsel or some other representative. It is not clear whether the company was represented at the hearing.
The fourth order was that the respondent "have leave to issue a third party notice and/or contribution notice against each of…Architectural Ceiling Systems Pty Ltd…".
There is no evidence that any such proceedings were ever issued against Architectural Ceiling Systems Pty Ltd.
The plaintiff asserts that there is no prejudice to the defendant because it was represented at these proceedings and therefore had notice of the plaintiff's claim, or the nature of the potential claim, well within time.
At the hearing of this matter before me the issue of whether or not the defendant was in fact represented at the workers' compensation proceedings was not vigorously pursued by counsel for the plaintiff. There has been affidavit evidence filed to the effect that the defendant was never made aware of those proceedings and no third party notice or contribution notice or the like was ever served upon it. In judging the question of whether or not the defendant is prejudiced by the late notice I think it must be assumed, on the basis of all the materials that have been provided to the Court, that the defendant was not aware of those proceedings and never given notice of them in 1994 or thereabouts.
However that is not the basis of the plaintiff's application as formulated during the hearing. At the hearing counsel for the plaintiff, in his submissions, asserted that:
"There is no material prejudice occasioned to the prospective defendant by reason of the delay;
(a)the employment which forms the basis of the proposed claim took place between 1973 and 1987;
(b)the potential cause of action arose when Mr Payne died as a result of his pleural mesothelioma in October 1994…"
Counsel then submitted that the relevant period for consideration in determining whether the respondent has "not been materially prejudiced by the delay" is that period from October 1995 to the present day. (October 1995 being the date upon which time ran out for this sort of application).
Counsel then finally submitted that the respondent must establish actual material prejudice and no such prejudice has been referred to.
The factual background relied on by the applicant is contained in the affidavit of Mr Dimsey sworn 16 June 2000, in par 1 of which it is stated that Mr Payne was employed as a sub‑contractor by the respondent company from about 1973 to 1984. He was a ceiling fixer. It is during that period that it is asserted that the late Mr Payne was exposed to asbestos dust and fibre.
Apart from that there is little in the affidavit filed on behalf of the applicant which can be relied upon to show that the respondent is not prejudiced by the delay. Counsel seemed more to rely upon submissions that he made concerning the nature of the respondent's case concerning prejudice.
As I have mentioned it has been asserted on behalf of the respondent that it had no knowledge of the proceedings at all until the plaintiff's solicitors contacted it in mid 2000. It is stated that the respondent has no record of ever engaging the late Mr Payne as a sub‑contractor. Furthermore, the respondent asserts that it no longer has any record of insurance policies it had in place between 1973 and 1984. In the 1980's, according to the affidavit of Allister Inglis sworn in July 2000, the respondent's insurance broker was Alexander Stenhouse Pty Ltd and in particular one Greg Stenburg. Apparently neither Mr Stenburg nor Stenhouse has any recollection or record relating to an insurance policy with the defendant during the relevant period.
A company known as Aon Risk Services apparently now owns Alexander Stenhouse Pty Ltd and upon enquiry it neither has records nor any information concerning the matter.
In a later affidavit of Allister Inglis dated 6 September 2000 the information is no different. The defendant has no records of having employed Mr Payne as a sub‑contractor nor of any insurance policy at the relevant period. All enquiries that can be made have been made and "no record" has been discovered whatsoever.
It is submitted on behalf of the defendant that, in the circumstances, it has been materially prejudiced in its defence of the action by reason of the very late notice. In the concluding submissions counsel for the defendant puts the case like this:
"The defendant has provided affidavit evidence in support of its contention that the grant of leave would cause it to be disadvantaged.
The defendant would suffer prejudice in its defence of the claim if the application for leave were granted, as it was not made aware of the potential claim until 4 May 2000. The defendant would suffer actual material prejudice if the application for leave was granted as it is unable to locate records of its insurers between 1979 and 1984 due to the length of time that has elapsed.
The defendant submits that in view of the material prejudice it would suffer if the application for leave were granted it would not be just to grant leave to bring this action."
Counsel for the plaintiff makes the point that, given the respondent's inability to locate records in the year 2000, and given that the deceased died in October 1994 and an application should have been filed by October 1995, and given that the period of employment was approximately 1973 until 1984, that there is no evidence that the respondents difficulties in obtaining records arose since the deceased died. In other words, it is argued that for the purposes of assessing prejudice time commences to run from the period when the deceased died. Having regard to the respondent's reply to the applicant's case it is just as likely its difficulties in obtaining records were manifest though unknown prior to the deceased's death and therefore delay has not resulted in the issues of prejudice that are now raised by the respondent.
The further point is made on behalf of the applicant that the issues raised by the respondent are not matters of prejudice that are material but amount to difficulties that the respondent may well have if it was found negligent and subject to a judgment. The issues do not relate in any causal sense to the nature of the injury or the alleged negligence but simply to matters that would impact upon the respondent's abilities to meet a judgment.
I think that counsel for the plaintiff has a valid point which is further supported by the observation that some regard should be had to the nature and circumstances of the proposed action. Obviously, in order to succeed, the plaintiff would need to prove that the deceased was employed by the defendant. If the plaintiff cannot prove that then the plaintiff will not succeed. I think it can be observed that it is unlikely, generally, for it to be falsely asserted that a person was employed by a particular corporation at a particular time. The issue should be capable of proof one way or the other and the passage of time is not likely, really, to have any effect upon the litigation of that kind of issue. Presumably there would be some written records available which can clarify the point. The deceased was either employed as a sub‑contractor with the respondent or he was not and the mere inability of the respondent, now to collect records about it does not seem to me to be to the point.
Similarly it would need to be proved by the plaintiff that the deceased was exposed to and breathed in asbestos dust in the work place. This, too, is an issue that can either be established or not. He was either exposed or he was not. The defendant either conducted business that involved the use of this material and resulted in the exposure of employees and sub‑contractors or it did not. The defendant would know this and the passage of time is not likely to have prejudiced it in its ability to defend itself in whichever way is required.
I think that the other two basic issues in a claim of this kind are even more obviously one in relation to which the passage of time and delay and lack of notice have no real relevance. So far as the knowledge of the danger of exposure to asbestos dust which must be proved by the plaintiff I note that the period 1973 to 1984 is relatively late in the historical scheme of these things. There are other cases, for example Western Australia v Watson [1990] WAR 248, where knowledge was found to have existed in the 1960's.
Finally, the question of injury and damages needs to be addressed. The medical evidence would be that the deceased died of pleural mesothelioma and that the only known cause of this disease is exposure to respirable asbestos dust. It is not a contentious issue in a medical sense and thus the lack of notice about it and the lack of ability to conduct contemporaneous research and obtain medical opinion and the like would not have resulted, I think, in material prejudice to the respondent.
In all the circumstances, furthermore, it seems to me that it would be just to grant leave to the plaintiff to bring this action.
In my opinion the plaintiff should have leave to bring this action and I would propose to make orders in terms of the originating summons that:
"1.The plaintiff be granted leave pursuant to s 7(2) of the Fatal Accidents Act 1959 to commence proceedings outside the time provided in s 7(1) of the Fatal Accidents Act 1959.
2.The costs of this application be costs in the cause of the proposed substantive proceedings."