Merrell v SIFC
[2001] NSWDDT 17
•12/14/2001
Reported Decision 23 NSWCCR 30
Dust Diseases Tribunal
of New South Wales
CITATION: Merrell v SIFC [2001] NSWDDT 17 PARTIES: Hazel Merrell
Stevedoring Industry Finance CommitteeMATTER NUMBER(S): 266 of 2000 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Miscellaneous Matters :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 5 November 2001, 6 November 2001, 9 November 2001, 14 December 2001 DATE OF JUDGMENT:
12/14/2001LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Michael Joseph S C and R O'Keefe appeared for the Plaintiff
FOR DEFENDANT: D Tobin SC and E Cheeseman appeared for the defendant.
JUDGMENT:
Introduction
1. These are applications by Notice of Motion by the plaintiff, Hazel Merrell, against the defendant, the Stevedoring Industry Finance Committee, for an order that the period of limitation for the commencement of two actions by the plaintiff against the defendant be extended until the date of the filing of the Statements of Claim in those actions. Those actions are brought both in her character as allegedly dependent widow of the deceased pursuant to s 21 of the Supreme Court Act 1995 (Qld) and in her character as administratrix ad litem of the estate of the late Ronald Merrell ("the deceased"), pursuant to s 66 of the Succession Act 1981 (Qld). Both actions allege negligence on the part of the defendant, leading to the said Ronald Merrell being exposed to asbestos causing his contraction of the fatal disease of mesothelioma, and consequently his death. A Statement of Claim pleading the first cause of action abovementioned was filed on 9 November 2000 and an amended one pleading that first cause of action together with the second one abovementioned was filed on 22 November 2000.
2. The parties agree that as a result of s 5 of the Choice of Law (Limitation Periods) Act 1993 (NSW) as interpreted in Brear v James Hardie & Coy Pty Ltd (2000) 50 NSWLR 388, the statute governing the plaintiff’s application is the Limitation of Actions Act 1974 (Qld), in particular ss 31 and 32 thereof, under which the applications are made. I shall refer hereafter to that statute as "the Queensland legislation".
3. The application is supported by the plaintiff’s affidavit, which is PX11 before me, but the plaintiff also gave evidence in her case, in cross-examination on her affidavit, as did David John McGuinness, the defendant’s solicitor, in its case. He also swore an affidavit upon which he was cross-examined. I saw no reason to disbelieve either witness, although I shall later make observations about the extent of Mr McGuinness’ activity, and of those assisting him, in investigating the plaintiff’s claims. References to the evidence in the transcript will be rendered by the letter "T" followed by the transcript page and the approximate point on the page at which the evidence occurs. I propose to deal with the facts (if any) proven by the plaintiff/applicant and then with the applicable law.
4. Counsel assisted me considerably with detailed written and oral submissions, and in deference to them I have reserved my decision. I have not in the main referred specifically to both or either counsel’s submissions when deciding the facts or the law, for reasons of space, but I have attended carefully to them, and as they are recorded on the transcript or filed, there is no necessity to record them again in these reasons. I apologise in advance for the length of these reasons, necessitated by the parties’ complex, extensive submissions and extensive references to the evidence.
The plaintiff’s affidavit and annexures
5. The plaintiff’s affidavit establishes that the plaintiff was born on 26 June 1930 and married the deceased, Ronald Merrell, on 3 October 1953. The couple adopted two children. The deceased worked initially as a shipping clerk for Brisbane Wharves & Wool Dumping Pty Ltd and then for Conaust Pty Ltd after the first mentioned company was taken over by "P & O", as that company is referred to in paragraph 4 of the plaintiff’s affidavit. This occurred in 1977. By the time the plaintiff stopped working for Conaust in 1984, he had risen to the position of assistant manager. The commencement date of the plaintiff’s employment with Brisbane Wharves & Wool Dumping is not mentioned in the plaintiff’s affidavit, but according to both Statements of Claim it would appear to have commenced in 1944. There is other evidence establishing this (see later).
6. The plaintiff’s affidavit also establishes that before marrying the deceased she worked for some time as a telephonist, and after her marriage in that capacity on a part-time basis, and then as an office assistant until 1961, since which time she has not worked in paid employment.
7. The deceased first noticed the symptoms of the illness which was subsequently diagnosed as mesothelioma in 1984, according to the plaintiff’s affidavit, for this is given in para 25 as the date when he "became ill". The deceased thereafter entered a hospice in November 1985 and did not return home until he died on 9 December 1985: para 34.
8. The plaintiff made a claim on her husband’s employer’s workers compensation insurers and received the sum of $21,000.00 after his death: para 35.
9. In 1989 the plaintiff read an advertisement in a newspaper placed by the solicitors who presently act for her, Messrs Slater & Gordon. A copy of it is annexed to the affidavit and marked "C" and it invites persons injured by asbestos or their relatives to join a world-wide class action against a company called Johns Manville. The plaintiff contacted Slater & Gordon and took the appropriate steps to join in that class action.
10. In about July 1996 the plaintiff received approximately $6,000.00 from Johns Manville as a result of the actions of Slater & Gordon acting as agents for a United States legal firm. I regard all the facts I have set out thus far as being proved by the plaintiff’s affidavit, as cross-examination of the plaintiff in the witness box to my mind did not dent the plaintiff’s recollection of those facts, and indeed in many cases they were not canvassed in cross-examination at all. For that reason I have not so far always referred to specific paragraphs in the affidavit. What follows in the plaintiff’s affidavit is somewhat more controversial.
11. The plaintiff asserts in para 37 that when she received the $6,000.00 from John Manville as set out above, she did not believe she had any further entitlement to make any more claims for compensation arising out of the death of her husband because of a deed she signed at the time. That deed is annexure "D" to her affidavit. Whatever may have been the plaintiff’s belief about the effect of the deed, it is clear that it does not bar any action against the present defendant, and indeed neither party argued the contrary before me. In so far as the plaintiff’s belief as to the effect of the deed may have influenced her belief that she could sue nobody else in respect of her husband’s death, that is a mistake of law, not of mixed law and fact, or of fact alone, and it cannot form a basis for the present applications, and indeed the contrary was not argued by the plaintiff. Incidentally the defendant does not argue that the plaintiff has no cause of action against it because of her partial recovery against Johns Manville.
12. What next occurred was that the plaintiff read a small advertisement in a newspaper in mid November 1999 concerning a "wharfie" receiving damages for asbestos exposure. That is annexed to the plaintiff’s affidavit and marked "Z", and the effect of it is as stated in the plaintiff’s affidavit in para 38. There she asserts that she rang Slater & Gordon a few days after reading the advertisement and asked whether the case referred to in it had implications in relation to her seeking compensation for the death of the deceased. She said she was asked some questions about the deceased’s employment, and told that Slater & Gordon would be in touch with her.
13. In para 39 the plaintiff says she received a letter from Slater & Gordon, a copy of which is annexed to her affidavit and marked "E". She asserts that on reading that letter she became aware for the first time of the possible connection between the deceased’s employment and his exposure to asbestos in the Port of Brisbane, and of the defendant’s responsibility for his safety. She asserts that at that time she was still unsure as to those facts and awaited further information.
14. In para 40 she asserts that in late January 2000 she spoke with a person from Slater & Gordon on the telephone, who she thought was a woman, who said words to the effect that "we will make some enquiries in relation to your husband’s employment and then tell you whether we think you may be entitled to claim compensation".
15. She asserts in para 41 that in late February 2000 she sent various documents to Slater & Gordon, copies of which are annexed to her affidavit and marked "F", "G", "H" and "J". I shall refer to the contents of those documents shortly.
16. Para 42 asserts that on 26 May 2000 she received a further letter from Slater & Gordon, which with an enclosure is annexed to her affidavit and marked "K", and she asserts that on reading that letter and its annexure she became aware for the first time that the defendant (meaning no doubt its statutory predecessors) "did indeed have some responsibility for ensuring Ron [the deceased] performed his duties in a safe working environment" and that the defendant "had indeed committed acts and omissions that affected Ron’s working conditions and that [the defendant] could have taken steps that would have prevented Ron from inhaling asbestos" and that "information was available regarding the dangers of asbestos during the time that Ron was employed in the Port of Brisbane and that [the defendant] either knew or should have known of those dangers and should have done something to protect Ron from being exposed". She asserts that before receiving this letter on 26 May 2000 she was unaware that these acts and omissions had been committed by the defendant. I shall take 26 May 2000 as being the date upon which the plaintiff alleges she first became aware of the matters I have just set out, so as to entitle her (she says) to an extension of time under ss 31 and 32 of the Queensland legislation.
17. What occurred thereafter materially is the commencement of proceedings in the plaintiff’s character respectively as adminstratrix ad litem of the deceased and dependant widow of the deceased by Statements of Claim filed on 9 and 22 November 2000 in the Tribunal.
18. It is convenient now to examine annexures "F", "G", "H" and "J" to the plaintiff’s affidavit, as they shed considerable light on what the deceased knew before his death. This may safely be adopted generally as what the plaintiff knew at the same time as to their contents (though not as to the identity and duties of the defendant) as a result of admissions in cross-examination to that effect, although it must be said in passing that the plaintiff said in her evidence that the deceased generally "kept his work at work" and did not discuss the nature of it in detail with her. I shall set out that evidence later.
19. Annexure "F" is the deceased’s death certificate, which presumably came into existence and into the plaintiff’s possession on or about the date of death as stated in it, which is 9 December 1985. It states the cause of the deceased’s death as "mesothelioma (lung)" and establishes to my mind that the plaintiff was certainly aware of the cause of the plaintiff’s death when it occurred, and probably for a considerable time before that, and indeed from the time when the deceased was diagnosed with it. The plaintiff does not assert otherwise, and that matter is both uncontroversial and irrelevant to the present application, as the plaintiff does not rely in any way on ignorance of the deceased’s condition and its causes lying in asbestos exposure.
20. Annexure "G" can likewise be dealt with briefly, as it is simply an autopsy report establishing the same matters as were proved by the death certificate, namely that the deceased contracted, and died of, mesothelioma.
21. Annexure "H" to the affidavit is a document undated and headed with the deceased’s name and address and then "history of employment and statement of contact with asbestos". It is signed by the deceased and witnessed on the second page. I shall not set out its full contents for reasons of space.
22. What it establishes in summary is that the deceased commenced employment with a company which he names as Brisbane Stevedoring & Wool Dumping Co Pty Ltd at its head office in Eagle Street, Brisbane on 4 December 1944, and was transferred to the wharf office for a period in 1945 and then was back at head office at the end of the war in the Pacific in late August or early September 1945. He worked in head office, Hamilton wharves and New Farm wharves between 1945 and 1954, when he was transferred to Hamilton wharves as Superintendent’s clerk to the Stevedoring Superintendents/Wharf manager, a Captain Godfrey. This job, he says, involved considerable contact with all types of cargoes stacked in sheds, including asbestos. He speaks of numerous broken bags and loose asbestos present, and of the air being dusty with this cargo and of a lot of the bagged asbestos being covered with loose asbestos from broken bags.
23. He asserts that he was not told in these early days of the dangers of asbestos to the human lungs and was "not supplied with protective masks etc.". This quotation is very important both generally and in the context of what he then says, which is that he was in direct contact with dusty asbestos conditions, as he calls them, when working in sheds and other wharf areas where asbestos was being handled.
24. He then says that he worked at Hamilton wharves and visited other wharves where asbestos was being handled between 1944 and 1966, whereupon he was transferred back to head office in Hamilton as an assistant to the General Manager, Mr Baillie. He said he returned to Hamilton wharves again as Clerk or Superintendent of all other clerks following the amalgamation of "Brisbane Stevedoring Pty Ltd" (as he calls the company he then worked for) and Newstead Stevedoring Pty Ltd in early 1968. He then adds that in the latter part of 1968 he was appointed Assistant to Management, working most directly with Mr Baillie on industrial matters and special projects and quotations for stevedoring work, and that then in 1970 or a bit later he was transferred to assist a Mr Ingle, Assistant General Manager of Brisbane Wharves and Wool Dumping Pty Ltd, and in 1975 was appointed Assistant Manager of Brisbane Stevedoring Services Pty Ltd. He says that in these last two positions he was in Hamilton container terminal office, but that his duties from 1966 to 1977 involved almost daily visits to all wharves where his companies were stevedoring ships, and at times he came into contact with asbestos handling.
25. He adds that in 1977 in September, Brisbane Stevedoring Services Pty Ltd merged with Consolidated Stevedores (Qld) Pty Ltd and operated as Conaust (Qld) Pty Ltd and that he was appointed Assistant Manager. He says that his most recent contact with asbestos was during the discharge of packs of this cargo from "lash barges from P.F.E.L. vessels" just prior to or not long after the formation of Conaust (Qld) Pty Ltd, which places this as having occurred in or about September 1977. He says industrial vacuum cleaners had to be hired to clean up loose asbestos, apparently at this time.
26. He indicates that the names of the companies he worked for before Conaust were all those mentioned above, plus Queensland Shipping Services Pty Ltd, and says that these names were taken from his group certificates.
27. He says finally that he has been advised that he has a malignant tumour of the lung caused by asbestos, called mesothelioma.
28. Part of the same annexure is another statement taken from the deceased and dated 23 May 1985, again signed by him and witnessed, in this case on each page. It is fair to say that it details somewhat more fully the deceased’s exposure to asbestos, in particular the presence of broken bags thereof in the vicinity of places where the deceased had to work and the dusty atmosphere in such places. He makes the point that his office was only about 50 metres from where asbestos was stored when he was working as Superintendent’s Clerk (see above) and that his office had open hopper windows without air conditioning, and that it was invariably dusty and, he asserts, "part of the dust would be effectively asbestos" (see page 2 of the statement). He then adds that he has copies of the companies’ records in relation to the amount of asbestos that was unloaded from different ships in individual years, and gives an example from the year 1964.
29. As I shall detail when dealing with the evidence of Mr McGuinness, solicitor for the defendant, the defendant does not dispute the deceased’s exposure to asbestos, so little time need be spent on that issue. The question is what the deceased knew about the dangers of asbestos exposure and about the availability of alternative systems of work which would have avoided it.
30. As to the first issue, the deceased asserts in his first statement abovementioned, part of annexure "H", that he was not warned of the dangers of asbestos exposure. As to the second issue, he asserts in his first statement that he was not provided, as he puts it, "with protective masks etc." and that in his second one the office where he had to work as Superintendent’s Clerk did not have air conditioning, and in both that the atmosphere in which he had to work at various times was dusty and in proximity to areas where asbestos was being handled, quite often in bags which were broken.
31. It is important to recall that, as I shall detail when dealing with the applicable law, the plaintiff must prove not only her ignorance of a material fact of a decisive character under the Queensland legislation for the purposes of the action as adminstratrix on behalf of the deceased’s estate; she must also prove the deceased’s ignorance of such a fact. What the statements prove is what the deceased knew, although as I shall point out in a moment, they also allow of an inference as to what he did not know. Similarly, in view of the plaintiff’s knowledge of matters contained in the deceased’s statements, as she acknowledged in her evidence (see later), given the obvious fact that she had them in her possession from the date of death onwards, if not before, they prove what she also knew, although her evidence itself is obviously capable of showing that she knew matters other than those contained in the deceased’s statements and the other documents he executed, to which I shall come shortly.
32. To my mind however, the first of the two statements to which I have referred is nevertheless of extreme significance in ascertaining the deceased’s state of mind before his death. When given an opportunity in his statement to specify the precautions against asbestos exposure that were not taken by his employer, he specifies only the lack of "protective masks etc." and of warnings and of air conditioning in his office when he was working as Superintendent’s Clerk and, impliedly, from his description of the dusty atmosphere where he worked, the lack of ventilation. He does not specify the lack of respirators and/or a system of effective dust monitoring, for example, these being specified as appropriate precautions during the period of the plaintiff’s employment involving asbestos exposure in annexure "M" to the plaintiff’s affidavit, which is a report of Gordon James Stewart, an industrial chemist and industrial hygiene consultant commissioned by the plaintiff’s solicitors and dated 13 March 2000. I shall come to that document later.
33. It becomes of extreme importance when one applies the Queensland legislation, which I shall do later, whether the awareness of the deceased and consequently the plaintiff that he was exposed to asbestos and that this was present in considerable concentration in the atmosphere where he had to work and that he was not provided with "protective masks etc." nor given warnings or an air-conditioned office was a sufficient "bundle of facts", as it has been put in the authorities, to constitute a worthwhile cause of action in negligence against the defendant for the deceased and, by extension, for the plaintiff to sue and recover damages against the defendant in a worthwhile sum (to paraphrase the Queensland legislation which I shall analyse later).
34. Annexure "J" to the plaintiff’s affidavit is a document headed "Medical History" which again refers amongst other things to the deceased’s contraction of mesothelioma. It contains a detailed questionnaire in which exposure to asbestos is disclosed. It is evidently a document completed by the deceased himself. It underlines the knowledge of the deceased that he contracted mesothelioma, a matter not in issue between the parties, and does not particularly add to the present dispute.
Other relevant exhibits
35. There are other documents completed by the deceased and by the plaintiff relevant to the issue of the state of knowledge of the deceased, and by extension of the plaintiff, before the date of his death and thereafter, until the plaintiff’s second consultation with Slater & Gordon in the year 2000 which led to the institution of the present proceedings. They were tendered in the course of the plaintiff’s evidence, and I shall discuss them shortly.
36. Before doing so it is convenient to refer to the statutory declaration of a Mr Schultz dated 5 November 2001, which became PX33 in the plaintiff’s case. It establishes much the same matters as are set out in the statements of the deceased referred to above in relation to the exposure of the deceased to asbestos, and it is unnecessary to set out its contents in detail in that regard. It refers in paragraph 8 to the absence of masks when asbestos cargoes were being handled, and the fact that the deceased was not seen wearing one, and that workers sometimes tied handkerchiefs around their mouths in those circumstances. It also asserts that Mr Schultz was never instructed to wear a mask when working near asbestos products being unloaded. Significantly Mr Schultz does not refer either to not being provided with a respirator, as distinct from a mask, or with a work area which had a system of effective dust monitoring. In so far as Mr Schultz’s knowledge may be imputed to the deceased, it does not affirmatively establish that the deceased was aware of the precautions just mentioned, although by the same token it does not of itself prove the negative proposition that he was not so aware.
37. Before passing to the plaintiff’s evidence, it is also convenient to refer to some exhibits which to my mind cast some light on the state of knowledge of the deceased, and of the plaintiff. The first is DX66, which is a form directed to the Workers Compensation Board of Queensland headed "Application for Compensation for Death" completed by the plaintiff herself on 3 February 1986. After reciting that a claim was made for compensation under the Queensland Workers Compensation Act in respect of the death of the deceased from mesothelioma, some questions were asked in paragraph 6 of the form. Beside question (a) "nature of injury" there is inserted by the plaintiff "asbestosis/mesothelioma right lung". Against question (b) "how did the injury occur?" and (c) "what actually was the deceased doing when the injury was sustained?" the plaintiff inserted "working on wharves in Brisbane where asbestos was discharged from ships, stacked in sheds, loaded onto consignees’ trucks in the years 1954-1966, some periods before and some after". Under question (d) "was anyone to blame for the injury?" the plaintiff inserted "not known". Under question (e) "if so, give particulars", the plaintiff also inserted "not known". Under question (f) "state whether the applicant is taking or intends to take any action to recover damages from such person" the plaintiff inserted "no". The only other assertion on the form of any relevance is that the plaintiff alleges that she is the totally dependant widow of the deceased. The date of that document is 3 February 1986.
38. DX88 is a similar form, completed on 22 November 1984 by the deceased pursuant to the Queensland Workers Compensation Act and headed "Application for Workers Compensation - Non-Fatal Injuries Only". Relevantly, under "how did the injury occur?" there is inserted "working on the wharves of Brisbane as a clerk where asbestos was discharged from ships, stacked in sheds and delivered to consignees’ trucks in the years above, some periods before and some periods after". Written across the sections where answers are invited to the question "was any other person to blame for injury?" and "if yes, do you intend taking action to recover damages?" and "if yes, name your legal representative" is again written "above not known at this stage".
39. These exhibits of course are not conclusive as to the question of whether either the deceased or the plaintiff knew as at the date of their completion that a worthwhile cause of action existed, or that either of them was ignorant of a material fact of a decisive character within the Queensland legislation in relation to such a cause of action. Nevertheless they are to my mind evidence of some weight that the plaintiff and the deceased respectively, when they completed the forms, did not believe that they yet had a worthwhile cause of action at common law. The closeness with which the first form discussed above, the later in time and completed by the plaintiff, follows the wording of the second form set out above, completed by the deceased, strongly suggests that, as at the date she completed her claim form in respect of the deceased’s death, the plaintiff possessed no more knowledge as to the existence or otherwise of a worthwhile cause of action than did her husband, the deceased, before his death, and that she simply copied in her form from her husband’s earlier replies in his, and indeed she admitted as much in cross-examination (see later). For reasons to which I shall come later, I think it is indeed more probable than not that she was unaware of the existence of and duties of the defendant, if not of the lack of "protective masks etc." to quote the first statement of the deceased discussed above, and of the lack of warnings and of an air-conditioned office (noting however that the deceased’s work was obviously not confined to his office).
40. The proper significance of the two statements of the deceased discussed above, so far as his knowledge of safety precautions which could have prevented his injury is concerned, is that when given the opportunity to complain of the safety precautions that were not taken at his workplace, the deceased only chose to mention the lack of "protective masks etc." and the dusty atmosphere in his office and its close proximity to areas where asbestos was being handled and its open windows. He did not talk about the absence of a respirator; he did not complain of the absence of an effective program of dust monitoring to ascertain the effectiveness of dust minimisation programs and determine respirator wearing needs (I have quoted in this last matter the third dot point in paragraph 10.9 of the report of Gordon James Stewart, industrial chemist and industrial hygiene consultant, annexure "M" to the plaintiff’s affidavit at page 110 thereof, and I shall shortly come to that report). I think the proper inference from the absence of mention of these precautions is that the plaintiff was not aware either of the existence of such precautions, or that they would or could have either prevented his injury or reduced the likelihood of its occurring. It seems to me overwhelmingly likely that given the opportunity to complain of his working conditions in his statements, the deceased would have advanced these matters had he been aware of them. In the nature of things I have not seen and heard the deceased, but given his senior position and the knowledge of his system of work set out in his statements, particularly those he apparently composed himself, such as that set out above at paras 22 to 26 of these reasons, he seems to me to have been an articulate, intelligent and knowledgeable recorder of events surrounding his injuries, and therefore unlikely to omit anything he knew which he thought material to his claim.
41. The likelihood that the deceased was unaware of these matters is increased by the fact that in DX88, when invited to state whether he considered anybody at fault in relation to his injury, the deceased wrote "not known", this reply applying also to the question whether he intended to commence proceedings in respect of his contraction of mesothelioma. Similarly the likelihood that the plaintiff was unaware of these precautions is increased by her similar replies in DX66, the similar form completed by her claiming compensation under the Queensland Workers Compensation Act for the death of the deceased.
42. That these documents were tendered by the defendant is of no particular significance except that they contain matters which, to my mind, assist the plaintiff’s case in relation to ignorance of particular facts on her part and on the part of the deceased. Whether those are material facts of a decisive character within the Queensland Act is a matter which I shall consider after dealing with the applicable law.
The plaintiff’s evidence
43. It is now appropriate to pass to the oral evidence of the plaintiff. After brief evidence in chief, essentially repeating the contents of her affidavit in certain respects, the plaintiff was cross-examined on her affidavit. I hope I do no disrespect to the capable and extensive cross-examination of Mr Tobin QC for the defendant if I do not refer to every aspect of it, but only to those parts which have particularly assisted my determination of the issues in this application. I shall initially refer only to those parts which relate to the ignorance of the plaintiff and/or the deceased of a material fact of a decisive character within the Queensland legislation, and not to the issue of prejudice to the defendant should the plaintiff prove a prima facie entitlement to an extension of time. I shall refer to those parts of her evidence when discussing the prejudice issue.
44. The applicant conceded at T29.3 that she went with her husband to a medical board when he had to give some evidence in relation to his claim for compensation, and that he had a solicitor, a Mr Barnes, at that time. She was shown a transcript of what occurred before the medical board and could not recall (T29.7) exactly that the solicitor, Mr Barnes, had said what was recorded in it. The transcript was eventually tendered and became DX22. I am prepared to assume in view of her attendance at the board, for the purposes of this application, that it represents the plaintiff’s knowledge of the circumstances of the deceased’s employment and of his contraction of mesothelioma. I observe in passing that it does not anywhere refer to precautions such as a respirator or a dust monitoring device which could have been used to reduce or minimise the risk of asbestos exposure or the consequent contraction of mesothelioma.
45. The plaintiff was then shown (T30.2) what became DX33, a handwritten statement signed by her. She could not recall having the assistance of Mr Barnes, solicitor, after her husband’s death, but conceded that she may have had his assistance before it (T31.1) when her husband was assisted by him. The date of the statement is 7 February 1986. Therefore of course it postdates the death of the deceased on 9 December 1985 (see above). It seems probable therefore that the plaintiff did not have the assistance of Mr Barnes when she completed the statement.
46. The statement simply contains an assertion that the plaintiff is the lawful wife of the deceased who originally claimed compensation, and then gives details of payments of such compensation and of the marriage and the birth of two children, and of the widow’s total dependency and of an application made by her for the maximum weekly payment available under the Queensland Workers Compensation Act and of the date of death of the deceased and of the performance of a post-mortem. It tells me nothing of the state of knowledge of the plaintiff as to any material fact said to be of a decisive character in question in this litigation.
47. Mrs Merrell admitted providing her marriage certificate to the Workers Compensation Board in Queensland (T31.8) and that became DX44. I do not particularly see that this fact is of significance.
48. Mrs Merrell was then asked (T32.4) about what became DX55, which was a letter from the Queensland Workers Compensation Board inviting her to lodge a claim for compensation in respect of the death of her husband. This was tendered and became DX66 and I have already considered it. There is no doubt that it establishes that the plaintiff was, as she admitted in cross-examination, well aware of a number of facts disclosed in the form before her husband’s death. It was at T33.6 that Mrs Merrell first remarked that "my husband left his work at work", saying that the information that he worked on wharves where asbestos was discharged from ships, stored into sheds, and loaded onto consignees’ trucks in the years 1954-1966 was probably taken from a statement her husband made, rather than from something her husband told her. I have already remarked on the verbal similarity between DX66, Mrs Merrell’s claim form, and DX88, that completed by her husband earlier, and this reinforces and supports the plaintiff’s evidence in this respect.
49. Mrs Merrell admitted awareness of some things her husband did, such as working in an office (T33.8) and not of others, but I am prepared to assume for the purposes of the present application that she was aware, at the very least of the contents of her husband’s statements, which were annexure "H" to her affidavit, and of the contents of her husband’s claim form, DX88, and was therefore aware that her husband had worked in a dusty atmosphere and exposed to asbestos in considerable volume, and had as a result contracted mesothelioma, of which he died, and that he was neither warned of the dangers of asbestos exposure, nor provided with a "protective mask etc." to quote her husband’s first statement, part of annexure "H" to her affidavit, and was aware of all of these matters before or soon after her husband’s death, and certainly well before she consulted Slater & Gordon for the second time in late January 1990. This is so notwithstanding what Mrs Merrell said at T33.9, when she was asked whether her husband disclosed to her that on some occasions he had to leave his office and go down and inspect cargo and the like on the wharves, and she again replied "no, he left his work at work". It seems likely from this reply that the plaintiff did not have a detailed knowledge of what her husband did in his employment at any time but nevertheless, as I have said, I think that from the documents that she possessed from the date of her husband’s death, or soon after, she was aware of the matters to which I have just referred.
50. On the subject of protective masks, at T37.2 she was referred to her husband’s first statement, part of annexure "H" to her affidavit at page 29 thereof, and at that point was asked whether she had wondered why the deceased had not been provided with protective masks and she said "no", but was then asked if she thought he should have been provided with protective masks, and she said "well, yes, I do". She was then asked whether she wondered this at the time, and she answered "I did when I read this, I wondered why". She earlier admitted (at T37.2) that her husband had showed her the statement appearing as part of annexure "H" to her affidavit, at page 29 thereof, at the time he wrote it or had it typed, and she said that she read it at that time. This direct admission is the basis, amongst other things, for my conclusion that the plaintiff was from that time aware of its contents, and therefore aware of the tasks the deceased was required to perform in his employment over the years generally, and of the dusty atmosphere and consequent exposure to asbestos therein, and of the deceased’s contraction of mesothelioma, and of the absence of "protective masks, etc." to quote the last mentioned statement. This does not, for reasons to which I shall come later, resolve the question of whether the plaintiff was aware of a sufficient "bundle" of facts to give her a worthwhile cause of action on appropriate advice within the Queensland legislation before her husband’s death, or at any time before she became aware of the contents of the report of Mr Stewart, industrial chemist and industrial hygiene consultant, on or about 26 May 2000 when she received a letter from Slater & Gordon (see para 42 at page 7 of her affidavit).
51. The plaintiff was cross-examined on her first consultation with Slater & Gordon in 1989 after seeing an advertisement in a newspaper (see paragraph 36 of her affidavit, at page 6 thereof). She admitted (T39.5) that she thought when she spoke to them then that she might have a claim for damages relating to the circumstances in which her husband died, and in particular (T39.6) one related to the circumstances in which he had been exposed to asbestos dust, and that she saw a connection between the circumstances in which her husband had inhaled asbestos and the mesothelioma which caused his death. She also admitted (T39.8) that she saw a connection between the circumstances in which her husband inhaled asbestos and the mesothelioma which caused his death, and understood that it was because of his exposure to asbestos dust that he actually got mesothelioma, and that she associated all that with the circumstances in which he was working during his working life around the wharves where he was exposed to asbestos dust, and that she told Slater & Gordon those things on the phone, or sent them material relating to that information, probably both (T39.9). This reiterates the plaintiff’s awareness of her husband’s asbestos exposure at work and of the connection of it with his mesothelioma, which I have already indicated I am prepared to assume for the purposes of this application. She had no particular recollection of her actual conversations with Slater & Gordon at this time, but said she forwarded to them what they requested.
52. The plaintiff was then taken to what became DX77, an "Agreement to Provide Legal Services", which she signed for Slater & Gordon at this time. She agreed (T40.6) that the second last page of the document, containing an employment history sheet, had been written by her from records her husband had left. Indeed Mr Joseph reminded me at that point that this document also appears at page 43 of the plaintiff’s affidavit, as part of annexure "J" thereto. The plaintiff agreed (T42.2) that she sent this document to Slater & Gordon. It certainly indicates that she was aware of the identity of her husband’s employers at this time.
53. The plaintiff was then taken to her husband’s statement at page 31 of her affidavit, which is the second statement in Exhibit H thereto, and agreed that she sent that to Slater & Gordon (T42.9). She did not know (T43.3) whether the initials at the bottom of page 5 of that statement (at page 35 of the plaintiff’s affidavit) were those of Mr Barnes, the solicitor who accompanied her husband and herself to the Queensland Workers Compensation Board, because she did not know Mr Barnes’ christian name. The form of the statement, and the presence of the initials, makes it quite likely to my mind that it was taken in a legal office, but I am unable to find positively that this is so on the balance of probabilities because of the absence of any admission by the plaintiff in this respect, or of any other evidence positively establishing this. Even if it be so that the deceased had access to legal advice at this time (and he certainly did when he went to the Workers Compensation Board in Queensland with Mr Barnes, solicitor) that does not dispose of the question of whether he or the plaintiff had at that time a sufficient "bundle" of facts to constitute a worthwhile cause of action against the present defendant at that time. Indeed the Queensland legislation does not make that assumption either, because it poses the question in s 30(1)(b) whether "having taken the appropriate advice" on "material facts" they are "of a decisive character". In other words it allows of a state of affairs where a person obtains "the appropriate [i.e. legal] advice" on "material facts" which may not then be "of a decisive character" for reasons appearing in the paragraph, which I shall consider later.
54. The plaintiff was then taken to a further statement by her husband on 19 December 1984, which is the last document behind Tab 3 in PX55, the plaintiff’s tender bundle. The plaintiff thought she must have sent this to Slater & Gordon in 1989 (T44.1). Although the plaintiff did not directly admit it in cross-examination, I am prepared to assume that she was fully aware of its contents when she sent it to Slater & Gordon. It makes specific reference to tasks the deceased performed in the presence of broken bags of asbestos in the vicinity of where he was required to work, and of his developing breathing problems about two years before the date of the statement, which would place them as having occurred in 1982. The deceased then gives details of his consultations with a Dr Charles Elliott in September 1984 and of the absence of serious problems with his health before that time. The statement does not refer to protective precautions which might have reduced his asbestos exposure, as distinct from describing it and the causes of it.
55. The plaintiff was then taken to what became DX88, which I have already discussed, which was her husband’s compensation claim form for "non-fatal injuries only". She acknowledged the similarity between the section of that form, to which I have already drawn attention, where her husband indicates that it is "not known" whether anybody is at fault in relation to his injuries, and at T45.1 acknowledged the similarity between that section of her husband’s form, DX88, and the form she completed, DX66, as already discussed above. I have already indicated my reasons for thinking that these parts of DX66 and DX88 if anything indicate that the deceased and the plaintiff at the times when they completed those forms did not believe they had a sufficient "bundle" of facts necessary to constitute a worthwhile cause of action within the Queensland legislation at the times when they completed these forms. This of course does not dispose of the question of whether on "appropriate advice" as it is put in s 30(1)(b) they in fact had a worthwhile cause of action at those times.
56. The plaintiff was then shown three sheets containing a list of ships and dates and cargoes in columns from the Johns Manville file produced by Slater & Gordon. She acknowledged (T45.5) that she sent them to Slater & Gordon because she understood that there was a connection between the death of her husband of mesothelioma and his exposure to asbestos carried in various of the ships detailed in those three pages. She had in mind (T45.7) that she might have an action for damages against some company or persons involved in that asbestos, which her husband might have inhaled, leading to his death from mesothelioma.
57. The plaintiff acknowledged (T47.5) that she sent documents in 1989 to Slater & Gordon for them to assess any claim she might have for damages relating to the death of her husband. However when it was put to her (T47.6) that she was keen in her own interest and that of her family to ensure that there was some party responsible at law for the death of her husband that would entitle her to damages, and that she wanted that information with Slater & Gordon to help her to decide, she asked whether that was for "the Johns Manville case", and when it was put to her that that was also "for any other case", she said "I wasn’t thinking of any other case in 1989, I was interested in that case" and that (T47.8) she did not know if there was ever going to be another case, so that what she did in 1989 was "relative to Johns Manville case" (sic), and that (T47.9) she did not ask Slater & Gordon whether she might have another claim against some other entity, and she then asserted that "to my recollection we were dealing with Johns Manville". At T48.1 she agreed that she thought her husband’s employers "or someone else" might be responsible for the state of affairs whereby her husband was not given a respiratory mask to protect him from asbestos dust. Notably she did not say who she then thought that "someone else" might have been. She agreed (T48.2) that she was not suggesting that Johns Manville "over in America" would have been responsible for not providing such a mask.
58. She agreed (T48.3) that she was only receiving from Johns Manville (as set out in paragraph 2 on page 23 of her affidavit, the release document completed at the request of Johns Manville) an "initial 10%" of the liquidated value of the claim, and at the second line on that page indicated that she understood that it was very unlikely that she would receive any additional settlement payout after the initial payment, and that by 1996 she knew that she was only going to get 10% of the full settlement (T48.8). She could not recall contacting Slater & Gordon however on 25 July 1994, as suggested by a file note from that firm for an update on her claim (T49.8), although she did not deny contacting them at that time (T49.9), and similarly in relation to a telephone attendance on 26 October 1995 (T50.1) although she agreed that from time to time she did enquire of Slater & Gordon how her case was going (T50.2). I am quite satisfied that the plaintiff knew when she settled with Johns Manville in June 1996 or thereabouts that she knew she was only receiving a settlement of 10% of the total value of her claim. This seems to me to be explicitly acknowledged at T51.2 and T51.5.
59. The plaintiff then agreed that from the late 1980’s she had an understanding that some company or organisation might be responsible for the fact that her husband was not supplied with "a respirator or a mask". I recall the speed with which that question was asked, and the plaintiff’s ready agreement to it. It did not seem to me at the time that the plaintiff had turned her mind fully to the fact that she was being asked to agree that from the late 1980’s she was aware that her husband had not been provided with "a respirator or a mask". She nowhere before then acknowledged that she knew what a respirator, as distinct from a mask, was. I think the Tribunal may know (it was made clear in any event to my mind in the Stewart report, annexure "M" to the plaintiff’s affidavit, at page 76 onwards) that a respirator is a somewhat more elaborate apparatus, and quite a different thing from a mask. What the plaintiff had earlier acknowledged was that she was aware of her husband’s statement, part of Exhibit H to her affidavit, pages 29 and 30 thereof, and therefore of its assertion on the first page in the fourth paragraph that "we were not supplied with protective masks etc.". Nowhere does that statement refer to a "respirator" as distinct from a "mask". I do not think in fact that from the 1980’s the plaintiff had an understanding that some company or organisation might be responsible for the fact that [her husband] was not supplied with a respirator as distinct from a mask.
60. When asked (T51.8) why she did not ask Slater & Gordon at any time between 1985 and 1996 whether on the papers she had provided them with, she might have a claim against someone else, she replied "I wouldn’t know who the somebody else was". When asked why she did not ask Slater & Gordon if they could investigate whether "there was a someone else" she said "I don’t know", and "possibly because I had received workers compensation".
61. Although the plaintiff, as I have said, presented as an alert and intelligent woman, it was nevertheless my impression of her in the witness box that she was a person who was ready to trust the advice she received, and not disposed to question it or to suggest other avenues of enquiry not suggested by her legal advisers. It was my impression of her in these answers that she did not ask Slater & Gordon to investigate whether she had a cause of action against some other entity, apart from Johns Manville and/or the workers compensation insurer from whom she had already recovered, simply because she was not aware of any other entity against whom she might claim. It is a separate matter on the authorities whether Slater & Gordon might have had any knowledge on this subject, which was not in fact imparted to her at that time. The Queensland authorities, which I think are binding on me as a result of s 6 of the Choice of Law (Limitation Periods) Act 1993 (NSW), indicate as I shall show that imputation to the plaintiff of such knowledge is not a permissible legal approach.
62. The cross-examination I have covered so far took place on 5 November 2001. The remainder of the cross-examination on the following day, 6 November 2001, related to the issue of prejudice, and I shall deal with it later. The plaintiff was also re-examined that day, and that re-examination also related to the issue of prejudice, as did the evidence of Mr McGuinness, the defendant’s solicitor, which again I shall analyse when dealing with the issue of prejudice.
The Stewart report
63. It is appropriate to pass now to the Stewart report, which is annexure "M" to the plaintiff’s affidavit at page 76 onwards. It is first important however to trace how the plaintiff became aware of it. At paragraph 42 of her affidavit on pages 6-7 thereof the plaintiff asserts that she received a letter from Slater & Gordon, which was annexure "K" to her affidavit. This is a detailed letter of advice containing a further document headed "Advice to Families of Deceased Waterside Workers". The letter appears at page 45 of the plaintiff’s affidavit, and the advice at page 49. As I read them, these documents do not specifically refer to the ways in which the present defendant was allegedly negligent in relation to the deceased’s contraction of mesothelioma. However paragraph 45 of the plaintiff’s affidavit at page 8 refers to Exhibits "L" and "M" to the affidavit, being the Statement of Claim filed on 9 November 2000 on behalf of the plaintiff in her character as dependant widow claiming damages under s 21 of the Supreme Court Act 1995 (Qld) and the Stewart report to which I have referred. Exhibit L is at page 60 of the plaintiff’s affidavit, and Exhibit M at page 76. The plaintiff says at paragraph 45, in relation to annexures "L" and "M" to her affidavit:
- "Upon reading these I became aware for the first time of the numerous acts that if taken by the Stevedoring Industry Authority in the Port of Brisbane would have prevented Ron from being exposed to asbestos including prohibiting the import of asbestos in permeable hessian bags, requiring asbestos to be packaged in impermeable bags, prohibiting the use of hooks in unloading bags of asbestos and requiring exhaust fans to be used in areas where asbestos cargoes were handled and the exact state of knowledge as to the dangers of asbestos"
64. This summary does not fully cover the allegations of negligence in the Statement of Claim and set out in the Stewart report. As to the Statement of Claim, it is simply assertion and does not really to my mind constitute the imparting of knowledge of negligent acts to the plaintiff, as opposed to allegations of them. It is important therefore to turn to annexure "M", the Stewart report.
65. At paragraph 10.8 at pages 109-110 of the plaintiff’s affidavit (numbered 34 and 35 in the report) Mr Stewart, an industrial chemist and industrial hygiene consultant, after summarising the state of knowledge reasonably available to the defendant in his view between 1944 and 1956, says this:
"Accordingly in the period 1944 - 1956, a specific precautionary plan should have been introduced by the "COMMISSION" and the "BOARD", incorporating suitable available techniques. A plan formulated in accordance with reasonably prudent occupational hygiene standards of the day would have included:
· Instruction to stevedores regarding the importance of and means of minimising the exposure of waterside workers to asbestos dust, or minimising their inhalation of asbestos dust.
· Instruction to waterside workers engaged in unloading asbestos about the harmful nature of asbestos dust and fibre when inhaled and the potential health consequences for persons regularly exposed to asbestos dust and fibre over a number of years.
· The use of and training in methods of work able to minimise dust including training waterside workers in the effective use of dust respirators required during asbestos unloading.
· A requirement for the bags containing the asbestos to be sufficiently strong to resist tearing from the hook or from other mechanical damage, and to be impervious to dust.
· Alternatively, the substitution by other types of containers able to eliminate or minimise the presence of dust in the hold during loading or unloading.
· A requirement for the bags and other containers to be labelled or branded with warnings about the asbestos content and the potential health consequences of exposure to asbestos dust and fibre.
· The provision of suitable showering and laundering facilities for asbestos removal gangs and the provision of clean overalls.
· Provision and supervision of the correct use of suitable dust respirators for "holders".
· Provision of an effective program of dust monitoring to ascertain the effectiveness of dust minimisation programs and determining respiration wearing needs.
· Arrangements for regular audits to ensure the effective application of these various precautions."· The provision of regular medical tests for "holders" regularly engaged to unload asbestos cargo.
It is important to note that the Stewart report refers at the beginning to its having being prepared in relation to "Mr Ronald Wagstaff" and as to "the circumstances of his exposure to asbestos dust and fibre during his employment as a waterside worker in the Port of Sydney in the period about 1955 to about 1991". Much criticism was made by Mr Tobin QC in submissions of the fact that this report does not relate specifically to the circumstances of the plaintiff’s employment as a tally clerk, nor to the Port of Brisbane. I share Mr Tobin’s concerns about the non-specificity of this report. Somewhat reluctantly however I am prepared to recognise that some (but not by any means all) of the dot points I have summarised from paragraph 10.8 above are capable of application to the circumstances of the deceased’s employment as a tally clerk in the Port of Brisbane.
66. I have in mind particularly those not referring specifically to "waterside workers" and "holders" or to the holds of ships. For example the third dot point set out above only requires training of "waterside workers" in the use of dust respirators, whereas the third last dot point refers generally to an effective program of dust monitoring to ascertain the effectiveness of dust minimisation programs and "determining respirator wearing needs" which is capable of direct application, and I think does in fact apply, to the deceased as a clerk working on wharves in the Port of Brisbane in the presence of asbestos dust. The same applies to the fourth, fifth, sixth and last dot points set out above.
67. I consider therefore that the Stewart report is prima facie evidence to the effect that between 1944 and 1956, in relation to the deceased working as a clerk in the Port of Brisbane, the appropriate precautions were at least:
· A requirement for the bags containing the asbestos to be sufficiently strong to resist tearing from the hook or from other mechanical damage, and to be impervious to dust.
· A requirement for the bags and other containers to be labelled or branded with warnings about the asbestos content and the potential health consequences of exposure to asbestos dust and fibre.
· Provision of an effective program of dust monitoring to ascertain the effectiveness of dust minimisation programs and determining respirator wearing needs.
· Arrangements for regular audits to ensure the effective application of these various precautions.
68. It seems to me also that the precautions specifically referring to waterside workers in relation to instructions in the first two dot points first quoted above also provide prima facie evidence of duties upon the defendant vis-a-vis the plaintiff, because what are said to be safe work practices by waterside workers would have reduced the level of asbestos concentration in the atmosphere where the plaintiff was required to work in the vicinity of waterside workers, and therefore his exposure to asbestos as well as that of waterside workers who are handling it.
Conclusions as to the plaintiff’s and/or the deceased’s lack of knowledge
69. Therefore this report, when the plaintiff read it, imparted to her knowledge which she did not possess before, according to her evidence, about the means whereby her husband’s asbestos exposure might have been reduced or eliminated, and therefore about duties to her husband which had been breached. In particular, apart from one admission which I do not regard as conceding this (see above), she was before then unaware that a respirator was a suitable precaution for reducing or eliminating asbestos inhalation, and of the need for dust monitoring to ascertain whether a respirator should be worn. She was not earlier aware that there existed sufficiently strong bags to contain asbestos which would resist tearing. She was not earlier aware that the use of hooks on asbestos bags caused them to tear and that it should be banned. She was not earlier aware that bags or other containers could and should be labelled with warnings about asbestos content and about the potential health consequences of exposure to asbestos. She was not earlier aware that dust minimisation programs could reduce or eliminate asbestos exposure and that a system of monitoring them could and should be implemented. She was not earlier aware that regular audits could and should take place to ensure the effective application of the above precautions. All she was earlier aware of, by way of summary, was her husband’s exposure to asbestos in toxic concentrations, which could and did cause mesothelioma leading to his death, and of the fact that broken bags in his workplace frequently emitted asbestos, and that her husband worked in an office without air-conditioning with open hopper windows (for such time as he was not working outdoors) which admitted asbestos dust, and that he was not provided with a protective mask. The word "etc." after the words "protective mask" in the deceased’s statement, part of annexure "H" to the plaintiff’s affidavit, at page 29 thereof, does not I think convey any more information about precautions which were not taken to the plaintiff than the words "protective masks" preceding it.
70. It is a separate question whether, on the authorities, the matters of which the plaintiff was aware before she read the Stewart report provided a sufficient "bundle" of facts to give her a worthwhile cause of action on appropriate advice within the Queensland legislation, and I shall deal with that question after examining the authorities.
71. Another matter of which I am satisfied the plaintiff was not aware until informed of it by Slater & Gordon on 26 May 2000 (see paragraph 42 of her affidavit at pages 7-8) was the identity of the present defendant, the Stevedoring Industry Finance Committee, and for that matter of its statutory predecessor, the Australian Stevedoring Industry Authority (ASIC). The paragraph of the plaintiff’s affidavit to which I have just referred does not in terms refer to the plaintiff’s ignorance of the existence of ASIC, but rather to her ignorance of its duties, but her oral evidence also asserts ignorance of its existence (see para 60 above where it is related that the plaintiff said as to that "I wouldn’t know who the somebody else was"). The plaintiff’s ignorance of these matters, if established, is ignorance of a matter of mixed fact and law, as submitted by Mr Joseph S.C. in his submissions, in my view. The duties themselves were imposed by law, and the plaintiff’s ignorance of such law is not a matter upon which she can rely as ignorance of a material fact of a decisive character as that term has been interpreted in the authorities which I shall examine later. However the plaintiff’s lack of knowledge of the fact that ASIC existed and undertook such duties at the time her husband was employed on the wharves in the Port of Brisbane is in my view ignorance of a fact, namely of the identity and undertaking of such duties by of the defendant. It follows that if I accept the plaintiff’s evidence both given orally and in para 42, she was also unaware, as indeed she directly asserts there, that ASIC had committed acts and omissions which affected the deceased’s working conditions, and that it could have taken steps to prevent his being exposed to asbestos.
72. As to whether I should accept what the plaintiff says in the witness box and in para 42 of her affidavit, I have already noted the plaintiff’s cross-examination, and in particular her admission that she wondered whether "someone" was responsible for the deceased’s safety, and in particular for the lack of provision of "protective masks etc." to quote the deceased’s statement, part of annexure "H" to the plaintiff’s affidavit, at page 29 thereof. At no stage was it suggested to the plaintiff in cross-examination that she knew of ASIC or of its undertaking certain duties, and at no stage did she say that she was so aware, even in evidence in chief or in cross-examination. The plaintiff’s repeated assertion that the deceased "kept his work at work" makes it unlikely in my view that the deceased informed the plaintiff of the existence of ASIC or of its duties, even if he was aware of its existence. Given the opportunity in cross-examination, when asked whether she wondered whether "someone" was responsible for the deceased’s safety, and for the lack of "protective masks etc.", the plaintiff did not name ASIC as that person, much less refer to its undertaking duties.
73. At no stage does the evidence go so far as to establish affirmatively, the onus being on the plaintiff in this respect, that the deceased was unaware of the very existence of ASIC, or of its duties. In so far as the Queensland legislation requires me, for the purposes of the plaintiff’s action against the defendant on behalf of his estate, to examine whether the deceased as well as the plaintiff was unaware of the existence of ASIC or of its duties, I do not think it is proper to find that the deceased was ignorant of those matters. The plaintiff I think, as I have said, was ignorant of the existence and of the duties of ASIC and of its breaches of those duties.
Prejudice advanced
74. It is now convenient to examine the evidence as to prejudice to the defendant, should the plaintiff establish ignorance of a material fact of a decisive character within the Queensland legislation, and therefore a prima facie entitlement to an extension of time.
75. The first basis upon which prejudice was asserted, in the way the defendant contested this application, is that the plaintiff’s recollection of the financial arrangements between herself and her husband has dimmed to such an extent that it is impossible properly to test her allegation that she received support at a particular level from the deceased before his death, and has consequently lost it as a result of his death, so as to ground an action under the Compensation to Relatives Act. The second was that its potential witnesses’ memories may have dimmed, and that it might be more difficult to obtain documents relevant to its defence. The third was prejudice in pursuing cross claims. I shall deal with that topic separately.
Affidavit evidence by the plaintiff as to prejudice
76. It is important not to overlook that the plaintiff gave detailed evidence on this subject relevant to the quantum issue in her affidavit. This occurs particularly at paras 6-22 of her affidavit, extending over some two and a half pages between pages 2 and 4 thereof. I shall not reproduce those paragraphs for reasons of space, but it is sufficient to say that they give detailed evidence of the plaintiff’s purchase of a home with the deceased, and the source of the funds; the deceased’s wages in his last year of employment (his group certificate being annexed to the affidavit and marked "B" (see para 9 of the plaintiff’s affidavit); the deceased’s income from worker’s compensation in the 1984-85 financial year; the motor vehicles owned by the deceased and by the plaintiff as at the date of death and what was done with them; the maintenance of the deceased’s vehicle by his then employer Conaust and its use for private purposes on weekends and holidays, and its maintenance by the deceased, and his payment for parts and servicing, and ongoing running costs, apart from car maintenance and petrol which were paid for by Conaust; the deceased’s contributions to a superannuation fund, his 1985 group certificate indicating a particular contribution in that respect, and the plaintiff’s receipt of about $95,000.00 from that superannuation fund; the deceased’s receipt of wages in cash at the end of the week and his disbursement of those wages on things for himself and his wife (such amounts not being, however, specified); the saving habits of the plaintiff and the deceased; their indulgence on a holiday on the Gold Coast each year; an estimate that the deceased gave the plaintiff about $300.00 per week which she spent on food, clothing and other expenses, and her maintenance of two bank accounts for these purposes; the plaintiff’s occasional receipt of extra money from the deceased; details of her bank balances in January 1984 and certain investments made by the deceased and the plaintiff in particular sums, and the plaintiff’s payment of household expenses from a particular bank account, with an estimate that she spent a particular sum maintaining the home.
The plaintiff’s oral evidence as to prejudice
77. It can be seen from this rather lengthy recital that evidence of a high degree of specificity was offered in the plaintiff’s affidavit as to the level of support she received from her husband. As against that, in cross-examination the plaintiff was undeniably rather vague, as Mr Tobin QC for the defendant submits. Initially the plaintiff said in cross-examination (T62.5) that she gave all her bank records to her solicitors. This in my view accounts for some vagueness in her answers, these records not being available to her when she was being cross-examined. It must be remembered that her recollection would probably improve if this application is granted and a trial on the merits of her action as dependant widow takes place, and she gives evidence in it, because she would then have access to her bank records in the witness box.
78. The plaintiff indicated that she paid for household food and the like in cash, but used cheques to pay for bills other than food and clothing (T63.2). A question was asked at T63.3 as to whether the banking records showed cheques drawn but not what they were used for, and the plaintiff gave no audible response. When the plaintiff was then asked (T63.4) whether the banking records did not identify, for example, whether a cheque was used to paint the house, or for car repairs, or for some other item such as travel, the question was objected to and much discussion took place, and I allowed it, but it was not repeated.
79. The plaintiff conceded (T68.4) that in 1985 her husband was very ill and that their household was in great distress as a result, and she was giving a great deal of time and attention to her husband’s needs. She agreed (T68.5) that the expenditures of the household in the twelve month period before his death were not normal. She said (T68.6) that she has produced all of the banking and other financial records she possessed to her solicitors, and that (T68.7) many of the records prior to 1984 simply are unable to be found. She said she was aware (T68.8) that a claim was being made that she had an 80% dependency upon her husband’s earnings. She agreed (T69.1) that it was difficult to reconstruct, in dollar and cent terms, precisely what part of the household expenditure was spent on things that were going to be of benefit to her in the absence of financial records.
80. Passing to car maintenance, the plaintiff agreed that she could not remember what she received for their Chrysler motor vehicle, when it was sold after his death in 1985 (T69.4). She agreed that car maintenance and petrol were paid by Conaust, as set out in paragraph 12 of her affidavit, but that she had no idea of how much money was involved for car maintenance and petrol in the period 1980-85 (T69.5). She agreed that she could not remember how many minutes or hours a week she travelled in her husband’s Falcon (T69.8), although she said (T69.9) that when her husband was going to work the Falcon was not at home, so she could not have been travelling in it at that time. These last matters struck me as very minute details which she would have been perhaps unlikely to retain even had she sued in time.
81. She was then referred to paragraph 19 of her affidavit, in which she mentioned paying all the bills for the household (T69.9) and admitted (T70.1) that she would not know what the cost of food was in 1984 when her husband was still fit and well, nor (T70.2) what her husband consumed by way of food, although she said (T70.3) that in 1984 she would have spent $100.00 per week in 1984 for food for the whole family. She agreed in response to a question I asked (T70.5) that she was used to budgeting all her married life, and that that was what she was doing in 1984. The reason I asked that question was to test the reliability of her answer that she spent $100.00 per week for food for the whole family in 1984. It seems quite likely in view of the reply she gave me that being used to budgeting, the plaintiff would very likely have a recollection of what she spent on food in 1984, and that her answer that $100.00 per week was that sum is to be believed in view of this.
82. The plaintiff was then taken to the move, described in paragraph 25 of her affidavit, to a new home at Wavell Heights (T70.6). She agreed that her children helped around the home (T70.8) with such things as dishes, and cleaning the house and garden, and paying rent (T70.9). She could not specify the length of time her children devoted to helping her in this way (T71.8).
83. The plaintiff was then re-examined on the issue of prejudice and she agreed that when her husband was home, his car was home as well, and that he and she used it for shopping (T71.9), and that she had a licence and drove her husband’s Falcon when he was ill (T72.3), but that her husband drove her when visiting friends socially and going on holidays (T72.4), and that holidays to the Gold Coast would have taken an hour and a half of driving each way (T72.5). The plaintiff said that when her husband was ill there was extra expenditure on medication, and that records were not kept as to the cost of it (T73.8), and that any bills in this respect, the deceased being in a private health fund, would have been taken to such health fund, Medical Benefits, or to Medicare (T73.9). The plaintiff simply thought that the deceased sent all his treatment bills to Medicare and that they were paid by them, although she did not really know (T74.1). The plaintiff said that her children would be available to give evidence in the proceedings, her daughter only if she was well enough (T75.2).
Conclusions from the plaintiff’s evidence as to prejudice
84. My conclusion as to the plaintiff’s evidence about dependency is that it did not cut down the essential detail given by her in her affidavit, although it did establish that she was vague in relation to a number of matters. I shall consider later her evidence as to prejudice on the issue of whether she has established affirmatively that the defendant would not be prejudiced by my making an order for extension of time under the Queensland legislation, to an extent where the prospect of a fair trial of the action on the quantum issue would be significantly diminished. My preliminary conclusion is that it would not be, because my view is that the plaintiff’s detail in her affidavit as to her dependency upon her husband is unusually acute. It is inevitable that records will be destroyed in the best of households, and I do not think the evidence shows that this has particularly occurred because of the effluxion of time in the case of the plaintiff and the deceased. Questions of dependency in my opinion are inevitably decided to a degree on an impression rather than on precise mathematical detail, and it is in the nature of things impossible to afford precise mathematical accuracy to the infinitely shifting financial arrangements between husband and wife in the best regulated households. This approach is supported by authority, as I shall later indicate.
Mr McGuinness’s evidence as to prejudice
85. The next evidence on the subject of prejudice is that of David John McGuinness, who is as I have said the defendant’s solicitor, and it was the main evidence as to prejudice on the liability issue. His evidence was first advanced on the second leg of the defendant’s case as to prejudice, which is that it would experience greater difficulty in locating witnesses and relevant documents than would be the case had the plaintiff’s action been brought in time, although it deals with the second leg, prejudice on the issue of dependency, as well.
86. Mr McGuinness’s oral evidence consisted of cross-examination on his affidavit, sworn 2 November 2001, which is DX11.
Mr McGuinness’s affidavit
87. This affidavit certainly establishes a considerable degree of prima facie prejudice to the defendant should an extension of time to sue be granted to the plaintiff.
88. Mr McGuinness says in para 2 that he is responsible for the carriage of all proceedings against SIFC in various courts, and in para 3 annexes as annexure "A" a schedule of all proceedings in which his firm was instructed to act for SIFC, indicating incidentally that Slater & Gordon have acted, or are acting, for 75 of the plaintiffs in the schedule. In para 4 he says that seven of the proceedings against SIFC relate to exposure to asbestos in the Port of Brisbane, including the present case, and that in none of the other cases were the plaintiff’s or deceased’s working as clerks, supervisors or managers for "third party entities" in that port.
89. In para 5 Mr McGuinness says that there has been no judgment by any court or tribunal against SIFC concerning the system of stevedoring operations in relation to loading, unloading and handling of asbestos cargo in the Port of Brisbane during the period of the deceased’s employment, or as to the duties owed by the statutory predecessors of the defendant to clerks, supervisors and managers in the permanent or casual employment of third party entities.
90. In para 6 Mr McGuinness says a search has not disclosed employment of the deceased as a waterside worker. That is not asserted by the plaintiff and may be put to one side. The same applies to para 7 of the affidavit, which refers to a negative response from the Maritime Union of Australia as to the deceased’s membership of it.
91. Para 8 asserts prejudice to the defendant in that it is now unable fully to investigate the circumstances of the allegations of injury in the Statement of Claim and the quantum of damages claimed. Para 9 sets out a number of documents not produced by the plaintiff, including employment records of the deceased before the late 1960’s; any banking records of the deceased, or such records of the plaintiff before 28 June 1985; any taxation records of the plaintiff between 30 June 1980 and 1 July 1982; any taxation records of the deceased between 30 June 1981 and 30 June 1984, and any superannuation records relating to the plaintiff.
92. Para 10 asserts that on 2 October 2001 Mr McGuinness sent a letter to the plaintiff’s solicitors requesting further documentation and relates that a reply was sent by Slater & Gordon on 1 November 2001, saying that all the requested documents within the possession of the plaintiff had been produced. Those letters are annexed to the affidavit, and marked "D" and "E".
93. Para 11 of the affidavit refers to annexure "F" which is the plaintiff’s Statement of Particulars under Part 33 Rule 8A of the Supreme Court Rules. Mr McGuinness asserts that there are no records available to substantiate the plaintiff’s alleged dependency of 80% on the deceased, to substantiate or quantify the alleged loss of pension benefits, or to substantiate the loss of superannuation benefits.
94. Para 12 of the affidavit asserts that the plaintiff has provided particulars and documents asserting that the deceased was either employed by or was present when cargoes of asbestos were stevedored by certain firms. The affidavit then annexes annexures "G", "H", "I", "J", "K" and "L", indicating in large part that the companies concerned were deregistered. The obvious inference is that it will be difficult, if not impossible, to obtain the fruits of any verdict in the defendant’s favour on cross-claims if brought against these companies.
McMcGuinness’s oral evidence
95. This consisted almost entirely of cross-examination, because Mr McGuinness’s evidence in chief simply identified his affidavit. As to the cross-examination, as with the plaintiff’s, I hope I will be forgiven if I do not refer to every aspect of it, but only to those which have particularly assisted me in determination of the present issues.
96. Mr McGuinness was first taken through a number of matters mentioned in the schedule of other matters brought against the defendant, annexure "A" to his affidavit. The first of significance to my mind was the matter of White, referred to at page 1 of annexure "A" to Mr McGuinness’s affidavit, referred to in paragraph 3 of the body of the affidavit. That is the first case mentioned in the schedule relating to exposure in Queensland (see also T78.9).
97. Mr McGuinness then agreed (T79.2) that there was no resolution by way of favourable settlement or a verdict in favour of the plaintiff in any of the claims against his client until after the result in Crimmins’ case (it will be remembered that in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 the succession of SIFC to the liabilities of the ASIC was authoritatively established). McGuinness however conceded that Gibson’s case Gibson v SIFC (1998) 20 NSWCCR 203) may have been the only other case, meaning the only other case in which a verdict in favour of the plaintiff against his client in respect of asbestos exposure on the wharves was pronounced. He said that up until Crimmins was determined in the High Court, his client was taking the stance that SIFC did not owe duties of care to persons on the waterfront, or at least that duty of care was put in issue (T79.6). This was also the position until Gibson’s case was decided (T79.8), and his advice to his clients was that the transmission of liability to it was in issue (T80.3).
98. In relation to this part of the cross-examination, I have already observed that the plaintiff’s ignorance of the legal duties of the present defendant is not, on the authorities, ignorance of a material fact of a decisive character; it is ignorance of a matter of law. It cannot ground the present application for an extension of time under the Queensland legislation. Mr Joseph recognised in an exchange with me (T80.8) that the ignorance of the plaintiff of the "bundle of facts" that would enable her to obtain appropriate advice as to the identity of the defendant was a different issue from her ignorance of the legal duties of the present defendant, which were ultimately established by Crimmins’ case in the High Court. Much discussion occurred about this and the plaintiff’s re-examination was interposed before Mr McGuinness’ cross-examination was resumed.
99. Mr McGuinness indicated (T89.2) that the investigations undertaken in respect of the present matter since his client was served with the Statement of Claim consisted of the issue of subpoenas for production in an effort to gain access to relevant records and notices to produce and the seeking of particulars from the plaintiff for the same purpose, as well as enquiries of the Queensland Workers Compensation Board in relation to the insurance position of the named employers of the deceased. In response to a question by myself, he also said that he had attempted to contact Messrs Baillie and Ingle, two persons referred to in material served by the plaintiff. It is sufficient to say that those persons worked with and/or supervised the deceased during various periods of his employment on the Brisbane waterfront according to that material (presumably the deceased’s statements, annexure "H", of the plaintiff affidavit, PX11). Mr McGuinness also said that he had reviewed records of the predecessors of the defendant in relation to registration details for the deceased, and had also reviewed records of predecessors of the defendant in relation to cargo, discharge and loading records, and could not name anything else.
200. The first is that as demonstrated by my analysis above of the evidence of Mr McGuinness, the defendant’s efforts through its legal advisers and otherwise to locate and identify the plaintiff’s former employers by the examination of cargo records and Board of Reference enquiries, for example, have been somewhat rudimentary and in my respectful view inadequate. Of course the onus is on the plaintiff to negative both actual and presumptive prejudice, but where the defendant asserts both forms of prejudice and calls evidence to prove it, it is proper to evaluate that evidence to see whether or not it has that effect. In the absence of more vigorous efforts on the part of the defendant in this particular case to identify and locate the plaintiff’s previous employers, I am not satisfied on the balance that it will suffer significant prejudice in so doing.
201. The second is that it must be remembered that the deceased’s cause of action would only have vested, had he been aware of all material facts of a decisive character (as in my opinion he was not, for reasons already set out) at the earliest when he suffered damage, i.e. he experienced the symptoms of what was later diagnosed as mesothelioma. This only occurred in the early 1980’s. It seems likely from Mr McGuinness’s evidence that many of the plaintiff’s former employers may well have been deregistered before this time. Further, if their insurance indemnities were inadequate, this would have been as much of a barrier to a successful recovery on cross-claims against them had the deceased sued within time as it is now. These considerations apply even more obviously to the cause of action of the plaintiff, which only vested (apart from her lack of awareness of all material facts of a decisive character, as I have determined) on the death of the deceased.
202. The third, which is perhaps less powerful, is that it has been the usual practice of this Tribunal to determine extensions of time (when necessary) as part of the hearing of the plaintiff’s substantive action, and also to sever in appropriate cases the hearing of that action from the hearing of cross-claims. The policy underlying this approach is the resulting speed with which the claims of plaintiffs who are often (or indeed usually) suffering life threatening conditions can be determined. If the defendant’s submission is right, any case involving an extension of time cannot be determined until the defendant has had an opportunity to enquire exhaustively as to its prospects of recovery against cross-defendants, both as to their identity and as to their insurance indemnities. This appears an alarming result. To undertake such a radical change of practice with obviously deleterious consequences without clear authority that it is required would seem to me inappropriate. Another possible factor is that such prejudice could most likely be deployed to defeat any current claim against it by SIFC. It seems to me improbable that in Crimmins itself the plaintiff had any worthwhile prospect of recovery against his former employers; else why would his advisers have gone to the trouble of a High Court appeal to fix liability on SIFC in circumstances where there was a clear breach of the common law duty of the employer or employers to him. Of course the fact that a plaintiff may be deprived of a remedy if an extension of time is granted is not, as McHugh J pointed out in particular, determinative, nor can one balance the prejudice to plaintiff and defendant. However in the High Court in Crimmins the fact that the plaintiff would be without a remedy in the event of his contention as to SIFC being liable failing (probably because he could effectively no longer sue his employers) was a significant policy reason for the decision. It seems to me on balance, however, that I should not give that policy any weight, because in the final analysis it would involve balancing the prejudice, as proscribed in Brisbane South.
Conclusions
203. I have concluded that neither the plaintiff before 26 May 2000 nor the deceased were aware of the following dot points which were the relevant elements in a plan formulated in accordance with reasonably prudent occupational hygiene standards in the period 1944 to 1956, as set out in paragraph 10.8 of the Stewart report at pages 109 -110 of the plaintiff’s affidavit:
- · A requirement for the bags containing the asbestos to be sufficiently strong to resist tearing from the hook or from other mechanical damage, and to be impervious to dust.
· A requirement for the bags and other containers to be labelled or branded with warnings about the asbestos content and the potential health consequences of exposure to asbestos dust and fibre.
· Provision of an effective modern program of dust monitoring to ascertain the effectiveness of dust minimisation programs and determining respirator wearing needs.
· Arrangements for regular audits to ensure the effective application of these various procedures.
204. I have also concluded that the first two dot points in the plan at paragraph 10.8 would have assisted in reducing the deceased's asbestos dust exposure as they relate to stevedores, because they would have affected the methods by which stevedores handled asbestos in the areas where the deceased had to work, and consequently his exposure to it. They were:
- · Instruction to stevedores regarding the importance of and means of minimising the exposure of waterside workers to asbestos dust, or minimising the inhalation of asbestos dust.
· Instruction to waterside workers engaged in unloading asbestos about the harmful nature of asbestos dust and fibre when inhaled and the potential health consequences for persons regularly exposed to asbestos dust and fibre over a number of years.
The immediately preceding dot point might be seen as relating only to health warnings to waterside workers, and therefore relevant only to their safety, but one has only to reflect that if waterside workers were given adequate health warnings, they would doubtless handle asbestos with a greater care. Even if this were for the motivation of protecting their own safety, it would incidentally affect beneficially the safety of other non-waterside workers who worked around them such as the plaintiff, in my opinion.
205. It is to be emphasised that I am not trying the merits of the precautions suggested in the Stewart report; I am simply applying them on a prima facie basis to determine whether they are material facts of a decisive character within the Queensland legislation in this case.
206. I have also concluded that the plaintiff (though not the deceased) was unaware either of the existence of ASIA or of the duties which inhered in it, or of its undertaking those duties, before 26 May 2000.
Section 30(1)(a)
207. Firstly, as to their materiality, one must ask, applying the approach in Do Carmo, whether those facts fall within the categories in s 30(1)(a). Certainly insofar as the dot points in the Stewart report to which I have referred are suggested as being part of a practicable alternative system of work during the period of the deceased’s employment which was not adopted, and which might have prevented his injury, they fall within the purview of paragraph (i) of s 30(1)(a) which refers to "the fact of the occurrence of negligence … or breach of duty on which the right of action is founded."
208. The second group of material facts of which the plaintiff was in my view unaware on her oral and affidavit evidence until informed of them by letter of 26 May 2000 from Slater & Gordon, annexure "K" to her affidavit (referred to in para 42 thereof and at page 7), as I have said, are that the Stevedoring Industry Authority existed and did indeed have some responsibility for ensuring that the deceased performed his duties in a safe working environment, and the content of that responsibility in terms of specific duties.
209. The question of specific duties is in large part covered by the previous matters which I have summarised from the Stewart report, but the fact that these duties inhered in the Australian Stevedoring Industry Authority (ASIA) and not someone else is something of which the plaintiff was in my view unaware until that time.
210. I have indicated my conclusion that the plaintiff has not proven on the balance of probabilities that the deceased was unaware of the existence of ASIA or of its legal duties. Therefore the plaintiff may only rely on her ignorance of the existence of ASIA, and of the fact that duties to the deceased inhered in it, as distinct from any other body, and that it undertook those duties, in support of her application for extension of time under s 31 in relation to her action under the Compensation to Relatives Act, and not that under s 32 in relation to the representative action she brings as adminstratrix of the estate of the deceased. This is, of course, not the case in relation to the first group of facts in relation to the dot points in the Stewart report, because, as I have said, I have concluded that the deceased as well as the plaintiff was unaware of those matters.
211. The identity of ASIA and the fact that duties inhered in it and that it undertook those duties seems to me to be a matter falling within s 30(1)(a)(ii) of the Queensland legislation, which speaks of "the identity of the person against whom the right of action lies". That too seems to render that fact "material" within s 30(1)(a).
212. I conclude therefore that the plaintiff and, where relevant, the deceased, were ignorant of material facts within s 30(1)(a), namely the dot points I have set out above from the Stewart report, and (in the case of the plaintiff alone) the identity of the Australian Stevedoring Industry Authority and the fact that duties to the deceased inhered in it and that it undertook those duties. That approach seems to me to be in accordance with Do Carmo and the cases which have followed it.
Section 30(1)(b)
213. Similarly, in accordance with those authorities, one must then approach s 30(1)(b) to ask whether the facts which I have found above to be "material" within s 30(1)(a) are "of a decisive character" within s 30(1)(b). Do Carmo appears to be authority for the proposition, as I have said, that in approaching the words "if but only if a responsible person knowing those facts, and having taken the appropriate advice on those facts" in s 30(1)(b), one has regard to the situation of the person in question. One must note also of course s 30(2) which defines "appropriate advice" in relation to facts as "the advice of competent persons qualified in their respective fields to advice on the medical, legal and other aspects of the facts". Do Carmo, it is clear, requires a plaintiff to take the advice of "competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts".
214. The plaintiff in this case seems to me to have done this, having regard to her situation. It is true that she appeared an alert and intelligent woman in the witness box. She was also in a long term marriage, before his death, to the deceased, who was a person in a senior position on the Brisbane waterfront, no doubt with considerable knowledge of systems of work there, and she was in no doubt in a position to acquire day by day knowledge from him, although in fact she acquired little of this because she said (and I accept) that the deceased "kept his work at work" and did not speak much of his working conditions to her during his lifetime. On the other hand she was and is a person of no particular expertise other than in clerical occupations. She has never herself worked, and this is an important matter, on the waterfront herself, or in any other occupation involving the handling of asbestos, or for that matter in any manual occupation whatsoever. She herself had no knowledge of her own of these matters on the evidence, in my view, other than that which she acquired from the deceased (and that was little indeed on the evidence) and what she subsequently acquired from her legal advisers, in the way that I have described above. Less is required of her on the authorities than would be required of a person who did not suffer from these limitations.
215. On the other hand, one might well ask rhetorically why she did not make further enquiry of her solicitors as to her overall rights at the time of the Johns Manville litigation. Considerable passages of evidence about this from her in cross-examination have been set out above. It is clear however that however one might have expected her to do this, the fact is that she treated the Johns Manville litigation as relating only to her rights against one entity, i.e. that corporation, and did not in fact enquire as to any rights she may have against anyone else. The inference is that she thought her solicitors knew what they were doing, and that they would advise her of any other such rights had she possessed them at that time. However much her solicitors could and arguably should have known at that time that it was possible to obtain expert evidence in order to sue either the deceased’s employer or employers, or the present defendant, the statutory successor of ASIA, the fact is that they did not advise the plaintiff to do this, and the Queensland authorities establish (particularly Neilson) that any knowledge of the plaintiff’s solicitors as to what any expert report might perhaps say which was unknown to the plaintiff herself cannot be imputed to her.
216. Upon the whole of the evidence I am of the view that the plaintiff took appropriate advice on the facts she knew by consulting Slater & Gordon at the time of the Johns Manville litigation, and placing herself in their hands to advise on what remedies were appropriate at that time.
217. The next question is whether at that time or earlier, or for that matter at any time before 26 May 2000, the date referred to in paragraph 42 of her affidavit as being the date of receipt of the letter from Slater & Gordon, annexed to her affidavit and marked "K", the plaintiff was in possession of material facts of a decisive character which a reasonable person, knowing those facts and having taken the appropriate advice on those facts, would regard as showing within s 30(1)(b)(i):
- "That an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action…"
In this regard one must steadily keep in mind what was said about the necessity to prove a practicable alternative system of work which would have prevented the injury in question in Do Carmo, in the passages I have quoted above from the judgment of Wilson J, particularly at 256-7 where his Honour cites Neil v NSW Fresh Food & Ice Pty Limited (supra) and Vozza v Tooth & Co Pty Limited (supra).
218. What one must then ask is whether, equipped with the knowledge she had and with that she obtained from the deceased which I have set out above, principally in the form of his statements which were annexure "H" to her affidavit, and also the other annexures to her affidavit and the exhibits to which I have referred, she had a sufficient bundle of facts, as it has been called, to fall within s 30(1)(b)(i) quoted above.
219. With considerable hesitation I do not think she had such a bundle of facts before receipt of the letter from Slater & Gordon, referred to in paragraph 42 of her affidavit, which is annexure "K" thereto (the affidavit being PX11).
220. I reach that opinion because it seems to me that the deceased’s statements really only amount to knowledge that his office was not air-conditioned, that asbestos was in the air where he worked, in considerable quantities, that bags and other containers containing asbestos were frequently broken and leaking, and that "protective masks etc." to quote the deceased, were not provided. I have set out above a summary of the things that on the probabilities in my view the deceased did not know; for example he did not know, as I have said, that he could have been provided with a respirator. He did not know that dust monitoring systems could have been implemented and followed up for the purpose of measuring and reducing asbestos concentration in the air. He did not know that bags and other containers containing asbestos could have been labelled or branded with warnings about asbestos content and the potential health consequences of exposure to asbestos dust and fibre. This is not a comprehensive list, and one is set out earlier in my discussion of the deceased’s statements, annexure "H" to the plaintiff’s affidavit, PX11. I have already said there that it seems to me extremely likely that given the opportunity to complain in his statements about lack of appropriate precautions to prevent asbestos exposure, the deceased would have articulated what he knew of the defaults in the system of work with which he was provided, and his lack of mention of the items I have just set out, and of the more comprehensive list of such items set out earlier in these reasons where I have discussed his statements, allows me to form an inference that it is more likely than not that the deceased was not aware of these matters, and that consequently the plaintiff was not aware of them either from her perusal of his statements.
221. I do not think that the knowledge that asbestos was present in the air where the deceased worked in considerable quantities, and that asbestos containers frequently leaked, and that "protective masks etc." were not provided, would have been a sufficient bundle of facts to fall within s 30(1)(a)(i).
222. I place some weight as I have said on the fact that the deceased himself, in DX88, his Compensation Claim form, wrote "above not known at this stage" in response to questions whether any other person was to blame for his injury, and if yes, whether he intended taking action to recover damages, and if yes, who his legal representative was, and that the plaintiff herself, in DX66, her application for compensation for the death of her husband, made identical replies. This is some indication of what the deceased and the plaintiff perceived the availability of a common law remedy in negligence to be at the time those forms were completed. This is so despite the fact that the deceased on the evidence had engaged a solicitor, a Mr Barnes, when he completed at least his second statement, part of annexure "H" to the plaintiff’s affidavit. The answer "not known" written on the above form by the deceased strongly suggests in my view that Mr Barnes did not tell the deceased that an expert report might prove a practicable alternative system of work, and thus ground rights in negligence, if indeed he knew it.
223. That does not of course answer the question posed by s 30(1)(b)(i). I consider, again with some hesitation, that had the deceased or the plaintiff brought action relying only on the facts summarised above from the deceased’s statements, it is unlikely that the legal requirement to prove a practicable alternative system of work would have been met. What would have been required was something additional to what either of them could then advance, namely an expert opinion in proof of the ways in which the deceased’s injuries could have been prevented by the provision of a practicable alternative system of work, such as is described in the dot points in the Stewart report already discussed. It would have been no use, for example, proving that asbestos bags leaked without proving that there was a stronger material available from which to make them. It would have been no use proving that masks were not provided, without proving that they would have been an effective barrier to asbestos inhalation (and the Stewart report requires respirators rather than masks for this purpose, a somewhat different and more elaborate apparatus). Such a hypothetical action would have failed for lack of proof of the content of the defendant’s duty of care to provide a practicable and safe alternative system of work, and consequently its breaches of it. I do not think therefore that an action based on the facts contained in the deceased’s statements, or on any other knowledge which it may be inferred that the deceased and the plaintiff had as set out above, before her receipt of exhibit "K" to her affidavit, on 26 May 2000, would have given the deceased or the plaintiff "reasonable prospects of success" in an action based on those facts, nor a reasonable prospect of such an action "resulting in an award of damages sufficient to justify the bringing of an action on the right of action" within s 30(1)(b)(i).
224. A separate question is whether within s 30(1)(b)(ii):
- "… the person whose means of knowledge is in question ought in the persons own interests and taking the person’s circumstances into account to bring an action on the right of action".
It seems to me that one cannot say that the deceased or the plaintiff "ought" in their own interests to have brought an action on the bundle of facts which each of them knew before the plaintiff received annexure "K" to her affidavit on 26 May 2000 if one could not say that the requirements of s 30(1)(b)(i) were met in respect of what either of them knew before that time. The inadequacy of proof of a practicable alternative system of work such as that set out in the Stewart report, annexure "M" to the plaintiff’s affidavit, PX11, seems to me to indicate that one must answer "no" to the question posed by s 30(1)(b)(ii), in relation to any putative action by the plaintiff or the deceased before the plaintiff received annexure "K" to her affidavit on 26 May 2000, especially when one considers their "circumstances", which included the fact that they had engaged solicitors upon whom they were entitled to rely in my view.
Section 30(1)(c)
225. The next question is that posed by s 30(1)(c) which provides:
- "A fact is not within the means of knowledge of a person at a particular time if, but only if -
(i) The person does not know the fact at that time; and
(ii) As far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time".
Applying Do Carmo to the expression "know" in subpara (i) and to the expression "all reasonable steps" in subpara (ii), it seems to me both that the plaintiff did not know the facts set out in the dot points in the Stewart report, annexure "M" to her affidavit, PX11, before 26 May 2000, and that she took all reasonable steps to find out those facts before that time.
226. This is because I consider that the placing of her possible remedies as a result of her husband’s death in the hands of Slater & Gordon at the time of the Johns Manville litigation was all that was required of her in her particular situation (which is relevant on the authorities) by way of "reasonable steps" before 26 May 2000. The same in my view applies to the deceased engaging his solicitor, Mr Barnes, who, it is to be inferred, did not advise him of any possible expert evidence as to an alternative system of work either.
227. In this regard the comparison between the facts in this case and those in Do Carmo is instructive. Mr Do Carmo could well have found out that a practicable alternative system of work was available when he contacted the union solicitors at a time earlier than the material date he relied on in his action. No doubt those solicitors well knew how to commission an expert report to find out what alternative systems were available. The fact is that they did not, and Mr Do Carmo’s subsequent solicitors did. Even though Mr Do Carmo, before he alleged that he became aware for the first time of material facts of a decisive character sufficient to provide him with a cause of action worth pursuing, to use slightly loose language, had been in the hands of legal advisers who could well have provided him with knowledge of these facts with the exercise of due diligence in gathering evidence, the fact was that they did not do so. Thus Mr Do Carmo remained unaware of material facts of a decisive character, despite taking all reasonable steps to find them out, and was entitled to an extension of time. Queensland authority would suggest that the answer would have been the same in that state: see in particular Neilson (supra).
228. Similarly, Slater & Gordon could, with the exercise of due diligence, arguably have obtained for the plaintiff an expert report which may well have revealed the facts set out in the dot points in the Stewart report, annexure "M" to the plaintiff’s affidavit, PX11, when she consulted them in respect of the Johns Manville litigation. They could also have told her of the existence of ASIA and the duties inhering in it, and of the fact that it undertook those duties, or made appropriate enquiries to discover these matters. The fact is that they did not, and that any knowledge possessed by her solicitors as to the availability of such an expert report, and as to what it might contain (and there is no evidence of such knowledge in this case in any event) or of the other matters just mentioned cannot be imputed to the plaintiff, either on Do Carmo or on Neilson’s case (supra). Unpalatable as some may see this result as being, I do not see that there is a difference in principle between those cases and the present one merely because the earlier solicitors the plaintiff saw are those still acting for her.
229. It should be remembered that Dawson J pointed out that it is not to be assumed for the purpose of s 58(2) of the Limitation Act (NSW) that the engagement of competent legal advisers would have led to the discovery of additional material facts of a decisive character, and the same, as I have pointed out, applies to the materially identically worded s 31(2) of the Queensland legislation.
230. It seems to me that within s 30(1)(c)(i) and (ii) the plaintiff did not know the material facts of a decisive character, as I have decided them to be, in the dot points in the Stewart report before 26 May 2000 (or as to the identity and duties of ASIA) despite taking all reasonable steps to find them out, namely engaging Slater & Gordon at the time of the Johns Manville litigation, and placing the decision in their hands as to what remedy should be pursued in respect of her husband’s death. These considerations (but for those as to the identity and duties of ASIC) of course apply to the representative action as adminstratrix of her husband’s estate as well as that on her own behalf as dependent widow because the plaintiff is the same in both actions. In the representative action however, as I have said, the question is what reasonable steps the plaintiff and the deceased should have taken, having regard to what the deceased knew as well as what she knew, but as I have said, I have formed the view that consulting Mr Barnes was enough by way of reasonable steps on the deceased’s part to find out about the facts ultimately disclosed by the dot points in the Stewart report. The deceased, after all, was a tally clerk and ultimately a supervisor, not an engineer, on the waterfront, and not in my view a person of such sophistication as to be required to go behind the advice of a solicitor whom he had engaged to advise him.
Sections 31(2) and 32(2)
231. The plaintiff having satisfied s 30(1) and (2), it is now for me to decide whether the discretions in ss 31(2) and 32(2) should be exercised in her favour. It seems to me that within ss 31(2) and 32(2) the plaintiff was not aware of material facts of a decisive character, namely the dot points in the Stewart report, nor of the identity of ASIA as the statutory predecessor of the defendant, and of the duties which inhered in it, before 26 May 2000, all of these being material facts of a decisive character. I have already said that I am not satisfied that the deceased was unaware of the second group of "material facts" referred to above, namely the existence of ASIA and of the duties which inhered in it and of its undertaking those duties. For that reason, as I have said, the plaintiff is entitled to rely on ignorance of these "material facts" only under s 31(2) in relation to her action as dependant widow of the deceased, and not under s 32(2) in relation to the representative action as adminstratrix of the deceased. On a prima facie basis however the plaintiff is nevertheless entitled to an order for extension of time under both s 31(2) and s 32(2).
Is prejudice negatived?
232. I have already described in detail the plaintiff’s evidence and that of Mr McGuinness in relation to prejudice. Being careful not to "balance the prejudice" in the manner proscribed in Brisbane South, the question I must ask myself is whether the chance of a fair trial has been materially decreased as a result of the delay which has occurred in the plaintiff not bringing action within the limitation period provided by s 11 of the Queensland legislation, and I must ask this question both on the basis of actual and presumptive prejudice, as those terms are being used by the High Court in Brisbane South, and on the basis that the plaintiff must negative it, not that the defendant must establish it.
233. Dealing firstly with actual prejudice, it is my view that this is considerably cut down by the evidence of the plaintiff and by that of Mr McGuinness. As to the first, I have already set out in my summary of the plaintiff’s evidence how it is that in her affidavit in particular, she gives very detailed evidence as to her and her husband’s expenditures and division of income. It is true that the plaintiff became somewhat vague in cross-examination about this but she did not have some bank documents, as I have said, at the time she answered those questions and, they being produced on subpoena and used by the defendant in cross-examination, they will obviously be available for refreshment of her memory at the hearing of her action if there is one. I am of the view that the plaintiff’s description of her sharing of the deceased’s income with him, and of his support for her, is no more vague than that which customarily occurs in cases of this kind which are brought within time. This is a somewhat hesitant conclusion, but it seems a proper one.
234. As to Mr McGuinness’s evidence, I have already detailed the many ways in which, in my respectful view, he and those under him have failed to follow up appropriate leads, if I may so call them, to obtain both documents and witnesses who may be able to shed light on the circumstances of the deceased’s employment, and of the failures in the system of work with which he was provided. As to presumptive prejudice it seems to me difficult for Mr McGuinness to suggest this in relation to witness’s recollections and the like when he and his client have, in my view, not taken steps appropriate to ascertain the whereabouts of particular witnesses and test their recollections, and have again not taken some steps appropriate to locate documents and hence to determine their availability.
235. The most important aspect of Mr McGuinness’ evidence concerning presumptive prejudice is his frank admission that asbestos exposure is not in issue in this case and that the degree thereof might not be: see above. Against that background, it is difficult to see that the recollection of witnesses and the availability of documents is as crucial to the defendant’s defence of the plaintiff’s actions than might otherwise be so. In this connection it is important to recall that this defendant has been obliged to confront a number of actions resulting from the decision of the High Court in SIFC v Crimmins (supra) a list of which is indeed appended to Mr McGuinness’ affidavit, and no doubt the general question of asbestos exposure to workers on the Australian waterfront to whom duties were found to be owed by ASIA and consequently SIFC its statutory successor would have had to have been investigated in all of those cases. As against that, it is important to remember of course that as Mr McGuinness’s list attached to his affidavit establishes, this is only the second claim brought against SIFC in respect of the Brisbane waterfront and the first brought by a tally clerk. These matters would strongly suggest that the claim is novel, and that its particular facts may not have been investigated in any cognate case before, but against that must be placed, as I have said, Mr McGuinness’s admission that asbestos exposure is not in issue in this case either and that the degree thereof may not be. As an expert tribunal I think I may know that mesothelioma is not dose related, so the degree of the deceased’s exposure to asbestos is probably not as crucial a matter to the defendant’s defence as might otherwise be the case.
236. Actual prejudice to the defendant is in my view likewise negatived by these matters. The plaintiff, as I have said, has demonstrated what, to my mind is, in the circumstances, a reasonably comprehensive recollection of her receipt of support from the deceased. I do not see that it would have been any easier for the defendant to defend her action in this respect were it brought within time, because I do not think the plaintiff’s recollection has been particularly affected by the lapse of time when one considers the detailed nature of her affidavit in particular, and the unavailability to her of bank documents when the plaintiff was cross-examined. I have already said, and I repeat, that in the best regulated households it is frequently not possible to prove precisely how every sum expended by husband and wife was applied, and I think the deficiencies in the plaintiff’s recollection exposed by the cross-examination fall into this category, and do not constitute significant prejudice to the defendant in defending an action by the plaintiff claiming loss of support by the deceased’s death, so as to reduce substantiality the chance of a fair trial. The same applies to the representative action brought by the plaintiff as adminstratrix of the estate of the deceased. The enquiry concerning economic loss in personal injuries cases has been described as "an imprecise and indeterminate one to be carried out within very broad parameters"; see State of New South Wales v Moss [2000] NSWCA 133 at [71] (cited by Mason P in Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 at 277 [51]). This approach appears equally applicable to questions of dependency (see Luntz, Assessment of Damages for Personal Injuries and Death (3rd ed., 1990) at para [9.3.1] on pp 394-5 and the cases there cited, particularly Phali v Commissioner v Railways (1964-5) NSWR 1545 [FC] at 1547 in the passage quoted by Luntz.).
237. Actual prejudice to the defendant in defending both actions based on the unavailability of witnesses and/or their defective recollections and/or the availability of documents seems to me to be likewise rather negatived by Mr McGuinness’s admissions in cross-examination. As I have said, I frankly feel that there were a large number of avenues he could have followed to obtain documents and locate witnesses which he and his client did not pursue on the evidence. The defendant’s position would have been a lot stronger had it, through its legal representatives and other officers, made a more comprehensive effort to locate documents and witnesses. Had it done so, and had it been able to demonstrate that documents it had sought which were relevant to the defence of the plaintiff’s actions were not available and/or that relevant witnesses were not now available and/or that their recollections were affected by the lapse of time, actual prejudice may (or may not) have been demonstrated which might well have been sufficient to require that the discretion under ss 31(2) and 32(2) not be exercised in the plaintiff’s favour. As it is, I do not think that actual prejudice has been demonstrated of a significant kind, sufficient to require that the discretion not be exercised in this way.
Orders
238. I therefore order that the time of commencement of the cause of action disclosed by both Statements of Claim filed by the plaintiff be extended within s 31(2) and 32(2) of the Limitation of Actions Act 1974 (Qld) to the dates of filing thereof, namely 9 and 22 November 2000.
239. I shall hear the parties as to costs.
Mr M Joseph SC and Mr R O’Keefe instructed by Slater & Gordon appeared for the plaintiff.
Mr M Tobin QC and Ms E Cheeseman instructed by Blake Dawson & Waldron appeared for the defendant.
0
4
0