Prior, Dennis Noel v Pickands Mather and Company International
[1998] TASSC 38
•24 April 1998
38/1998
PARTIES: PRIOR, Dennis Noel
v
PICKANDS MATHER & COMPANY INTERNATIONAL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 277/1992
DELIVERED: 24 April 1998
HEARING DATE/S: 18 March 1997
JUDGMENT OF: Slicer J
CATCHWORDS:
Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Amendments - Statement of claim - Amendment to plead a new cause of action - Extension of time in which to institute proceedings.
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; Klein v DomusPty Ltd (1963) 109 CLR 467, applied.
Weldon v Neal [1887] 19 QBD 394, followed.
Kingston Earthworks Pty Ltd v Iles (1996) 6 Tas R 433, referred to.
Aust Dig Procedure [276]
REPRESENTATION:
Counsel:
Plaintiff/Applicant: A R McKee
Defendant/Respondent: D A Bessell
Solicitors:
Plaintiff/Applicant: Gunson Pickard & Hann
Defendant/Respondent: Page Seager
Judgment category classification:
Court Computer Code:
Judgment ID Number: 38/1998
Number of pages: 8
Serial No 38/1998
File No 277/1992
DENNIS NOEL PRIOR v PICKANDS MATHER &
COMPANY INTERNATIONAL
REASONS FOR JUDGMENT SLICER J
24 April 1998
The applicant/plaintiff seeks leave to amend his statement of claim, so as to permit the pleading of new causes of action, and makes application for an extension of time in which to institute proceedings. On 28 October 1992, the plaintiff commenced proceedings against the defendant seeking damages arising from a claimed negligent exposure to "a high level of chemical fumes" occurring on 13 September 1992. The pleadings were incorrect in that the claimed event occurred on 13 September 1991. Thereafter the action has proceeded, albeit in a desultory manner, with the defendant making discovery of its relevant records and other documentation in November 1995.
Part of the application to amend relates to the need to regularise the date of the event and to plead breaches of contractual and statutory duty, in addition to those of negligence already pleaded in relation to the event of 13 September. Given that the parties have conducted their respective cases with the knowledge of a particular occurrence, and in the absence of opposition from the defendant, detailed consideration of this portion of the application is not required and leave will be granted.
The real issue between the parties is whether leave to amend should be granted and time extended so as to permit the plaintiff to plead a claim of continued exposure to noxious chemicals since the commencement of his employment in November 1968. The plaintiff was employed since November 1968 as a plant operator with the defendant, which was the operator of a mining and processing company. His duties included working on a "reclaimer" loading ships, and as such, he was exposed to chemical fumes. His action as originally pleaded claims:
"4On the 13th day of September 1992 the Plaintiff, whilst working a reclaimer was exposed to a high level of chemical fumes ('the exposure').
5As a result of the exposure the Plaintiff was injured and has suffered loss and damage."
Insofar as the amendments seek to rectify the date, add further particulars and plead breaches of contractual and statutory duty, no real difficulty or prejudice arises. But the amendments contain, directly or by necessary implication, three new causes of action referable to the period between November 1968 and 12 September 1991. The relevant amendments are:
"4 The Plaintiff commenced employment with the Defendant during the month of November 1968.
4aThroughout the period of time the Plaintiff was employed by the Defendant, he was exposed to chemical fumes on a regular basis.
4bIn November, 1968 the Plaintiff commenced working on a reclaimer loading ships.
4cOn the 13th day of September, 1991 the Plaintiff, whilst working in a reclaimer was exposed to a high level of chemical fumes ('the exposure').
5As a result of the exposure and the previous exposure of the Plaintiff to chemical fumes throughout the duration of his employment, the Plaintiff was injured and has suffered loss and damage.
...
7It was a term of the contract of employment entered into between the Plaintiff and the Defendant, when the Plaintiff commenced employment with the Defendant in 1968, and was the duty of the Defendant to:
(a)Take all reasonable precautions for the safety of the Plaintiff while he was engaged upon his work;
(b)Not to expose the Plaintiff to any risk or damage or injury of which the Defendant knew or ought to have known;
(c)Taken all reasonable measures to ensure that the place where the Plaintiff carried out his work was safe;
(d)To provide and maintain adequate ventilation in the reclaimer vehicle;
(e)To provide and maintain and [sic] adequate ventilation in the reclaimer vehicle for the use of the Plaintiff.
...
9Further and in the alternative, the Defendant was negligent or was in breach of its statutory duty in that it failed to comply with Section 32 of the Industrial Safety, Health & Welfare Act, 1977 and Regulation 386(A) of the Industrial Safety, Health & Welfare Regulations, 1979."
The amendments do more than simply claim that as of 13 September 1991 the plaintiff was, by reason of previous exposure, more susceptible to risk and entitled to expect protection from a particular occurrence. They raise causes of action based on claimed breaches of duty between 1968 and 1991. They constitute new causes of action in the sense stated by Scholl J in Harris v Raggatt [1965] VR 779, and by Lord Wright in Marshall v London Passenger Transport Board [1936] 3 All ER 83. They significantly alter the nature of the case by claiming prolonged and systemic exposure to noxious chemicals and employment in a workplace which was inherently unsafe. They raise complex evidentiary issues.
The principles governing an application to extend time are well settled (Hall v Nominal Defendant (1966) 117 CLR 423, Klein v DomusPty Ltd (1963) 109 CLR 467, Knight v Smith [1975] Tas SR 83, Scott v Ellis A35/1979) as are those concerning amendments to a statement of claim involving the "setting up of a new cause of action which, if a writ in respect thereof was issued at the time of amendment, would be subject to a limitation defence", Zeeman J in Hall v Hall (No 2) B64/1996 at 4 (Harris v Raggatt (supra), Black v The Mayor, Councillors and Citizens of the City of South Melbourne (1964) 38 ALJR 309). Those principles are:
Whether an applicant can show a prima facie case.
Whether the conduct of the plaintiff occasioned the delay and the nature of the reasons giving rise to delay.
Prejudice.
Prima Facie Case
The plaintiff seeks to plead negligence and breaches of contractual and statutory duty. Each requires separate consideration.
Negligence
The plaintiff relies on evidence set out in his affidavit sworn 17 March 1998 in which he stated:
"... as a result of the exposure to a high level of chemical fumes and the previous exposure to chemical fumes throughout the duration of my employment I was injured and have suffered loss and damage. I base my belief that I suffered injury due to exposure to chemicals as alleged in the Amended Statement of Claim, upon information I have received from Dr Keith McCarthy, my General Practitioner at the time of my injury, Janet M Whitta, a Clinical Psychologist and Dr Colin H Little, a specialist in allergies."
The relevant material referred to in that affidavit is to be found in the reports of Dr Little, dated 10 September 1992 and 14 April 1993, the relevant portions of which consecutively state:
"If an injury has resulted from the exposure to the chemical fumes in September of 1991, as I would suspect, then a difficulty arises concerning an explanation as to how this injury was incurred. There seem to be two possible explanations:
a) he incurred some toxic insult, not well understood at this time, or
b)that as a consequence of the high level of exposure in September 1991 to certain chemical fumes, possibly various hydrocarbons, he has become sensitised to chemicals at low concentration. If so sensitised, exposure to chemicals encountered in everyday life could possibly elicit adverse reactions with his various ongoing problems. This disorder is increasingly called in the literature 'multiple chemical sensitivity'.
From the literature forwarded to me, there is no evidence to date to suggest a severe toxic insult to explain his ongoing problems. What is of some interest is that he may have had similar symptoms to what he is currently experiencing before the accident, albeit in milder and more transient form. (I would be interested to receive further information regarding this issue). If so, the possibility arises that he may have been developing a sensitivity to chemicals before the accident but that the exposure to the fairly high concentration of fumes in September of 1991 may have escalated the problem to a major extent.
There is still sufficiently [sic] known regarding the problem of multiple chemical sensitivity. I would refer to the recent publication entitled 'Multiple Chemical Sensitivities' published by National Academy Press. There are a number of features of this disorder which may enable it to provide an explanation for at least some of ongoing problems.
A)The disorder may develop relatively acutely following a relatively high level exposure to certain chemicals. This has been reported for quite a number of chemicals, including hydrocarbons. (For further information see an article on Chemical Sensitivity in the Journal of Occupational Medicine, October to December 1987). Industrial workers are reported by Ashford and Miller as being particularly prone to develop this disorder.
B)The symptoms associated with multiple chemical sensitivity include the following : fatigue, headache, musculoskeletal pain, irritability, sleep disturbance and impairment of both concentration and memory. Such symptoms are closely similar to those reported by Mr Prior."
"One final issue concerns the relationship between his work environment and his current health problems. Although the events of September 1991 may have caused an acute toxic effect, there appears to have been pre-existing difficulties before that time as described above. The episode of collapse seems to have been superimposed on a period of increasing ill health. I would suspect that the collapse exacerbated his symptoms to such a degree that he was no longer able to work. However, his current disability is attributable, at least in part, to his being sensitive to a range of common foods and airborne chemicals. There are growing reports of patients developing such sensitivities after a period of relatively high chemical exposure. (References to this association are mentioned in my earlier correspondence dated 10th September 1992). He is likely to have incurred fairly high exposure to chemicals such as nitrogen dioxide and quite likely a range of hydrocarbons derived from the bunker oil used to heat the furnace. There would additionally be exposure to fumes from heated iron.
It may perhaps be appropriate to seek assistance in evaluating the chemical exposure in the previous work environment by an appropriate person such as Dr Kilpatrick. These regular chemical exposures may have been important in his developing a chemical sensitivity. These considerations are additional to the episode of collapse. Also, it seems likely, at least on the basis of his history, that he became chemically sensitive during the time he worked at Port Latta. If so, this would account for his varying symptomatology and the increase in symptoms with relatively high exposure to chemicals such as hydrocarbons during the course of ship-loading. It seems likely, at least during 1991, if not earlier, that exposure to such chemicals in the work environment resulted in an increase in symptoms such as forgetfulness, irritability and shortness of breath. On this basis, aside from any role it may have had in him becoming chemically sensitive in the first place, exposure to chemicals to which he is likely to have been sensitive at the work environment would have aggravated his symptoms. (It should be mentioned that testing in the Environmental Control Unit demonstrated sensitivity to chemicals such as nitrogen dioxide and vehicle exhausts)."
The material is insufficient to ground a prima facie case of negligence. There is no material from which it can be inferred that the chemicals were released at greater than permitted levels, that such chemicals were released as a consequence of defective equipment, that inadequate protection was afforded employees, or that the process of reclamation was inherently unsafe. The material differs significantly from that pleaded in respect of the occurrences in September 1991 which allege a particular identifiable exposure to a high level of chemicals. The assertion by the plaintiff in his affidavit is no more than that - an assertion. There is no identification of a negligent act or course of conduct on the part of the defendant in the period between November 1968 and September 1991. In my opinion, the material relied upon is insufficient to make out a prima facie case of negligence.
Breach of Statutory Duty
The proposed amendments plead a variety of matters in general form and seek the aid of the Industrial Safety Health and Welfare Regulations 1979, reg386A. But there is no material capable of establishing a prima facie case that the defendant was ever in breach of any statutory duty. There was no identified event, occurrence or course of conduct giving rise to an inference of breach of duty. For the reasons given in relation to the issue of negligence, the plaintiff has not made out a prima facie case.
Breach of Contract
Different considerations apply to this claimed cause of action. The plaintiff's case is essentially that the contract of employment required the provision of a safe workplace, the provision of proper equipment and a duty to protect the employee from exposure to harm. The material establishes that the plaintiff suffers from a medical condition arising, in all probability, from prolonged contact with chemicals. He is able to establish an event occurring in September 1991, but the material suggests that any exposure exacerbated a condition caused by previous exposure. The consequence (that is, the medical condition) is capable of supporting the inference that he had not worked in a safe place of work. Since his condition is unusual and is referable to his employment, it can be inferred that the conditions of his workplace departed from a standard required by a term of "safe place of work". The plaintiff has made out a prima facie case of breach of contractual duty.
Reasons for Delay
I am satisfied that the plaintiff has conducted his case with due diligence. The proposed causes of action have been sought after careful consideration by his present solicitors and arise as a consequence of his original instructions and commencement of proceedings. Counsel for the defendant raised one matter concerning the delay between the referral to his present solicitors and the making of the application, pointing out that had the application been made earlier, there was a chance that some documentation may have been discovered at the time of the transfer of ownership of the mining operation in March 1997. The point is valid but is best considered in relation to the issue of prejudice. Any delay ought not preclude the plaintiff from obtaining either amendment or extension.
Prejudice
The effect of amendment would permit the plaintiff to litigate matters occurring some thirty years ago. In 1968, the mine, owned by a consortium which is not a party to the action, was managed and operated by the defendant. In 1991, the operation was both owned and operated by the defendant, which, in turn, transferred its interest to Australian Bulk Minerals in 1997. At each change, certain records were transferred, some archived, and personal files and documents were often retained or disposed of by officers of the corporation. There also existed a practice of destroying certain material at the end of each seven year period. The practice was neither capricious nor unwarranted. In November 1995 a personnel officer of the defendant made discovery of records pertaining to the plaintiff's existing cause of action. The discovery document is both comprehensive and doubtless useful to the plaintiff's cause. But it comprises little, if anything, pertinent to the claim encompassing the period 1968 to 1991. Evidence was adduced by the defendant relating to the existence or otherwise of its relevant records. In 1997, the defendant closed down its operations in Australia, a process which had commenced in April 1996. It has neither operations nor employees in Australia. The defendant has retained solicitors on the record since its entry of appearance in late 1992. It has engaged Allan Jones, a former employee, as a consultant to look after its interests in this state. Jones received a copy of the plaintiff's application shortly after its filing on 11 September 1997. He immediately notified the office of the defendant in the United States, receiving a reply that no one associated with management had knowledge or information concerning the complaint. He then caused a search to be made of the remaining records of the company, some of which were in the possession of Australian Bulk Minerals, whilst others were archived under the control of the defendant. He searched some 374 boxes of documents situate at Wynyard, Savage River and Port Latta. He made contact with a number of former employees. He had no success in locating any relevant material. I accept that he has made all reasonable enquiry. Whilst it is true that he could have made more extensive research, it is not incumbent upon the defendant to take extraordinary measures which might advantage the plaintiff. It had retained all records relevant to the known claim of the plaintiff. The absence of documentation makes its position as a potential defendant untenable. The allegations of breach of duty are general and extensive. The company would find it difficult to answer any claims of excessive emission levels, inadequacy of equipment, absence of effective procedures and training and the non-provision of "safety" equipment. It would be difficult to meet any claimed challenge concerning events occurring some thirty years previous. Even had notice been given before March 1997, it is unlikely that it would have been able to recover relevant documentation. But any prospects were worsened by that failure. The defendant faces the additional burden in that any failure to call evidence on a central issue might leave it susceptible to the implications of Jones v Dunkel (1959) 101 CLR 298. The defendant would suffer significant prejudice which renders unfair the grant of leave. If the conclusions already reached concerning the claims based on negligence and breach of statutory duty are erroneous, I would nevertheless decline to permit amendment and extension on the basis that the delay has occasioned irredeemable prejudice to the defendant.
Limitation Act 1974
The application was made on 11 September 1997, some two days before the six year period prescribed by the legislation. The defendant contends that leave ought not be given since the application was for an extension of time "to institute proceedings" and that such is precluded by virtue of the principles discussed in the decisions of Rogers v Tootal Australia Pty Ltd A102/1982, and Excell v Balym A77/1984. The problem is complex by reason of circularity. The plaintiff must first obtain leave to amend his statement of claim before he can seek extension. The Rules of Court require him to seek leave to "institute proceedings". Reference has already been made to the relevant principles discussed by Zeeman J in Hall v Hall (supra).
The reality is that both applications were made before the expiration of the six year period. The amendment would operate as of 11 September 1991, and its effect would be to amend the writ as of 28 October 1992. In neither Rogers v Tootal Australia Pty Ltd nor Excell v Balym (supra), had any proceedings been commenced. The process of amendment so as to permit the inclusion of an additional cause of action differs. The cause of action sought to be added remains connected to the events of September 1991. The plaintiff ought not be precluded by reason of a restrictive interpretation of the term "institution of proceedings".
However, different considerations apply with respect to the claimed causes of action commencing in 1968. Assuming that leave is granted to amend the writ in accordance with the application dated 11 September 1997, the effect would be to amend the writ as of 28 October 1992. The writ would then plead a cause of action commencing some twenty-four years previous. The defendant would be able to plead limitation, at least for all events occurring before 1986. Even if such were permitted, or the plaintiff permitted to rely on events occurring between 1986 and 1991, the amendments would be contrary to the principles stated in Weldon v Neal [1887] 19 QBD 394 at 395:
"If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion, improper and unjust. Under very peculiar circumstances, the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so."
The application of those principles has been consistently applied in this jurisdiction (Tasmanian Mines Ltd v Merrywood Coal Company Pty Ltd; Hampshire Mines Pty Ltd v Avoca Transport Company Pty Ltd, A97/1996; Kingston Earthworks Pty Ltd v Iles (1996) 6 Tas R 433, National Mutual Life Association of Australasia Limited v Chris Poulson Insurance Agencies Pty Ltd (No 3) 5/1998). The plaintiff relies on Rules of the Supreme Court, O31, r1, as affording power, and the statement of Zeeman J in Kingston Earthworks (supra) at 5, namely:
"In my view, an application for leave to amend a statement of claim to raise a new cause of action after the expire of the time limit provided for by s135(1), but within the period within which an application may be made under s135(2), ought not to be the subject of the strict application of the rule in Weldon v Neal. Counsel were unable to refer to any authority concerning the application of the rule in a case where, although the limitation period has expired, the court retains the power to extend time. There is relevant authority.
Crafter v Webster (1979) 23 SASR 61 concerned the provisions providing for electoral petitions contained in the Electoral Act 1929 (SA). The Act required a petition to be lodged within twenty-eight days after the return of the writ for the election. The question arose whether the court could permit an amendment to the petition after the expiration of the period of twenty-eight days. The Limitation of Actions Act 1936 (SA), s48 permitted the court to extend the period of twenty-eight days. Mitchell, Walters and Sangster JJ said, at 66:
'Applying s48, not to a new petition lodged out of time, but to an application to amend which, but for s48, would be inhibited by the Weldon v Neal (1887) 19 QBD 394 principle, it seems to us that the Court considering whether to permit the amendment must first decide whether it would, under the circumstances, have extended the time for lodging a fresh petition based on the same allegations as those in the proposed amendments. If it considers that it would have granted such an order under s48 then it may well find the Weldon v Neal (1887) 19 QBD 394 principle to be inapplicable.'
A differently constituted Full Court approved that approach in Danae Investment Trust Plc v MacIntosh Nominees Pty Ltd (1993) 11 ACSR 523 at 531. Whilst the South Australian provision providing for extensions of time which was the subject of those decisions differs somewhat from s135(2), I consider the principle to be sound and of application whenever an amendment is sought after expiration of a limitation period but at a time when the court retains a discretion to extend it. Whether in those circumstances the application for leave to amend ought to be taken to carry with it an application for an extension of time or whether the discretion is to be exercised bearing in mind the power to extend time matters not.
The purpose of the rule in Weldon v Neal is to avoid a defendant being deprived of a limitation defence by reason of a cause of action introduced by way of amendment being taken to have been raised at the time of the issue of a writ. If it is just to permit the cause of action sought to be introduced by way of amendment to be raised out of time and leave is sought at a time when the court has jurisdiction to grant an extension of time, there is no reason to apply an inflexible rule which requires the refusal of leave. It is irrelevant that there would be no jurisdiction to grant an extension of time on an application made now. The relevant time is the date on which the application was filed (Australian Newsprint Mills Ltd v Williams [1979] Tas R 234)."
However, the circumstances under consideration in Kingston Earthworks were significantly different. The amendment sought in that case involved the addition of a new claim of breach of statutory duty to those already pleaded. Here, the plaintiff seeks to plead new causes of action covering different events and times. The circumstances under consideration raise issues similar to that considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1.
Conclusion
The plaintiff is entitled to amendment of all matters pertaining to the events of 13 September 1991. He ought be permitted to add the new causes of action of breach of contract and statutory duty. Leave will not be granted to either amend or extend time so as to permit the pleading of causes of action arising between November 1968 and September 1991. Insofar as the claim is based on negligence and breach of statutory duty, the bases of refusal are: failure to show prima facie case and prejudice, whilst the rejection of that claiming breach of contract is based solely on prejudice to the defendant. Leave is not granted to the amendment sought by:
par4(a) of the statement of claim;
the words "and the previous exposure of" and "throughout the duration of his employment" appearing in the statement of claim, par5;
the words "when the Plaintiff commenced employment with the Defendant in 1968" in the statement of claim, par7.
The Court is conscious of the logical problems associated with the amendment to the statement of claim, par7. In the event that either party believes the above to be an inadequate reflection of the purport of this judgment, leave will be afforded to counsel to make further submissions, or to provide alternate draft amendments. Insofar as it is necessary, leave is granted to extend time so as to permit the addition of the new causes of action of breach of contract and breach of statutory duty to the pleading concerning the claimed accounts on 13 September 1991. In all other respects the application is refused.
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