Southworth, M.M. v Commonwealth of Australia

[1992] FCA 287

Re: MAUREEN MARY SOUTHWORTH
And: COMMONWEALTH OF AUSTRALIA
No. N G573 of 1992
FED No. 287
Limitation of Actions - Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Limitation of Actions - Postponement of the Bar - Compensation to Relatives Act 1897 (NSW) - Limitation (Amendment) Act 1990 (NSW) - Construction and application of sch 5 of "Further Transactional Provisions - Construction and application of s 60H Limitation Act 1969 (NSW) - Meaning of "just and reasonable" - Application to cases of latent injury - Circumstances to consider.

Evidence - Admissibility and Relevancy - Hearsay evidence - Original maker of statement of deceased - Whether admissible in application under s 60H Limitation Act 1969 (NSW) - Construction of s 60H Limitation Act 1969 (NSW).

Compensation to Relatives Act 1897 (NSW)

Limitation Act 1969 (NSW) - s 58, s 60, s 60G, s 60H

Limitation (Amendment) Act 1990 (NSW) - sch 5

Radiation Exposed Veterans Compensation Act 1988 (US)

Pedro Juan Cubillo v Commonwealth, unreported, Federal Court of Australia, Foster J, 9 April 1992

Baker v Australian Asbestos Insulations Pty Ltd (1984) 3 NSWLR 595

HEARING

SYDNEY

#DATE 9:4:1992

Counsel for the applicant: Ms C.C. Simpson QC

with R. Goot

Instructed by: Maurice May and Co

Counsel for the respondent: J. Mccarthy QC

with P. Jones

Instructed by: Australian Government Solicitor

ORDER

The Court orders:

that the limitation period be extended for a period of

three months from today until 9 July 1992.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

The statement of claim in these proceedings was issued in the High Court on 8 March 1989. The proceedings were brought under the provisions of the Compensation to Relatives Act 1897 (NSW). The applicant, Maureen Mary Southworth sued on her own behalf as widow of the late Thomas William Southworth and also on behalf of the two children of the marriage named in the statement of claim.

1. The claim relates to the death of the deceased, Mr Southworth, which occurred on 31 October 1986. The claim made against the respondent, Commonwealth of Australia, was based upon various grounds relating to the period of service of the deceased as a sapper/plumber in the Australian Army in the Maralinga area in 1956. It is alleged in the statement of claim that as a result of negligence, breaches of duty of various kind, breaches of regulations, trespass and other matters, the deceased was wrongfully exposed to ionising radiation resulting from the atomic tests carried on in that area at that time.

2. It is put that as a result of his being so exposed, he developed at a much later period of time, in 1986, a cancerous condition of his pancreas which resulted in serious illness and in his death on 31 October of that year. It is quite plain from the evidence that there was no indication to the applicant widow or to the deceased that he was in fact suffering from this condition or any incipient form of it before the onset of severe symptoms in early 1986. When the condition was diagnosed during that year it was also made known to the deceased and to the widow that there was a prospect that the illness had been brought about by exposure to radiation. It is clear, in my view, and indeed it has not been argued to the contrary, that once that possible connection between the illness and the prior service at Maralinga became known that thereafter the applicant acted with all reasonable speed. She instructed solicitors in 1986 to take all necessary steps on her behalf including an application for legal aid. Delay occurred in relation to that application and that application remained unresolved in September 1988 when her solicitors then advised her that she should take the proceedings in the High Court, notwithstanding the absence of legal aid.

3. I consider that so far as this aspect of the case is concerned it is, for practical purposes, on all fours with the matter of Cubillo v Commonwealth which I have decided already. In my view the delay in the bringing of the proceedings has been satisfactorily explained. Furthermore there has been no indication of any prejudice on the part of the respondent occasioned by that delay. I point out now as I did in the previous proceedings that over the relevant period, the Royal Commission into these matters had been conducted and findings made so that this application would not, as it were, have come out of nowhere. I am also satisfied that Mrs Southworth genuinely wishes to prosecute this claim and that she would suffer a relevant degree of hardship were she not able to maintain it because of the lapse of the statutory period in which it otherwise would have been necessary to bring it.

4. Because of the pleading of the defences under the Limitation Act 1969 (NSW) (the "Act") it has been considered necessary that an application be made to this Court by way of notice of motion to seek an extension of the period within which to bring the action. I should add that the proceedings in the High Court in which that defence, amongst other defences, were taken have been remitted to this Court for hearing with the result, of course, that this is the proper Court in which to make this application. The application is based upon three sections of the Act namely s 60(2), s 58(2) and s 60H.

5. It is clear from the way in which the matter has been argued that it is intended that the provisions of s 60H be attracted through the operation of cl 4 of sch 5 to the Act, that schedule dealing with matters described as "Further Transitional Provisions". I find it convenient to deal with the notice of motion in so far as it is based on s 60H in the first instance. For reasons which I have already adverted in the decision which I gave in Cubillo, it is apparent, having regard to the course of the prior decision, that the applicant in these proceedings can succeed in obtaining an extension of the limitation period if she is able to persuade the Court that it is just and reasonable for that period to be extended. The words "just and reasonable" appear, of course, in s 60H(2). They are the same words and have the same operation as in s 60G(2), the section which was applicable in Cubillo's case.

6. The debate in this application has been concerned with the question of whether there has been a sufficient indication of a cause of action by the applicant. It has been quite properly conceded on behalf of the applicant that it would not in any circumstances be just and reasonable to order an extension of the limitation period if it were demonstrated that the case sought to be brought was a hopeless one. However, the submissions made on behalf of the respondent, whilst accepting that proposition, go a great deal further. It has been submitted that the material placed before the Court is simply not adequate to demonstrate the existence or potential existence of a cause of action in the applicant sufficient to warrant her being granted the extension of time that she seeks. I turn then to consider the material that has been placed before me relating to the alleged exposure of Mr Southworth to the ionising radiation referred to in the statement of claim at Maralinga in 1956.

7. In so considering the matter I will have regard to a submission that has been made as to the admissibility of a certain portion of the evidence which has been put forward in support of the application. Before dealing with that evidence, however, it is convenient to consider other evidence that has been put before me and which is not the subject of such controversy. In the first place, it is clearly established that the cause of Mr Southworth's death was an inoperable pancreatic carcinoma. It appears indeed that throughout 1986 the carcinoma spread and also involved the liver. Clearly, it was this cancerous condition that was the cause of his death. That condition did not manifest itself until, as I have already said, 1986, some 30 years after he had been posted to Maralinga with the army. There is some degree of conflict in medical opinion expressed in the evidence, and opinion which is pointed to and relied upon by the respondent, to the effect that the aetiology of such a carcinoma must always be the subject of doubt. As against that, the applicant relies upon a strongly worded report from Dr Adler which is annexure S to her affidavit.

8. Dr Adler who is a specialist in the oncology centre at the Mater Hospital at Crows Nest in Sydney says in his report of 28 February 1992:
   

"Having read the details of the report of the Buffalo Program of atomic weapons tests carried out at Maralinga in 1956 and the service details of Mr Southworth, it is clear that the deceased was in a position to have been exposed to excessive ionising radiation during the period of his service at Maralinga between 17 February 1956 and 14 November 1956. It is also established that the cause of his death on 3 November 1986 was a development of a carcinoma of the pancreas."

He goes on to state:

"Ionising radiation is a known carcinogenic agent capable of initiating the development of malignant disease in almost any part of the body, including the human pancreas. Damage to the pancreatic tissue could have occurred in a variety of ways as a result of the Buffalo Test Program. Direct exposure to gamma radiation could have occurred if the deceased had been present on the site at the time of an atomic explosion. He could have ingested plutonium through contamination of dust circulated as a result of the explosion or he could have ingested plutonium as a result of the contamination of the food chain through pollution of water or the atmosphere."

1. He goes onto say that the interval of 30 years from the time of possible exposure to the onset of malignant disease in the pancreas is consistent with current knowledge of the mode of onset of malignant disease induced by radiation. The doctor also indicates that this particular carcinoma, carcinoma of the pancreas, is listed specifically in the United States in the Radiation Exposed Veterans Compensation Act 1988 (US) as one of the diseases for which a presumption of service connection for certain radiation exposed veterans was accepted. He expressed the opinion that "excessive exposure to ionising radiation was very likely to have been a major factor in the aetiology of the subsequent development of cancer of the pancreas at the premature age of 50 years on 3 November 1986 in Mr Southworth."

2. The material relating to the Buffalo series of tests has not been put to me in specific form, although I have notionally before me the whole of the report of the Royal Commission. It is plain from Dr Adler's evidence that he gave anxious thought to material relating to those tests in the report. It has not been put to me on behalf of the respondent that his doing so would have been irrelevant or inadequate and accordingly I give that report considerable weight in the whole of the case.

3. Other evidence in the case stemming from material supplied in correspondence from the respondent or agencies of the respondent establishes that Mr Southworth was detached with his unit, the Seventh Independent Field Squadron, to the Australian Services Task Force at Maralinga from the 17 February to 14 November 1956. The letter providing this information, which is exhibit 1 to the affidavit of the applicant, goes on to say that the Department of Defence "as yet had not been able to ascertain the functional location of this task force though inquiries were proceeding." It was accepted, however, that as Mr Southworth had been cleared to enter the Maralinga security access area and the field squadron undertook engineering duties there, it would be reasonable to assume that the task force covered army units based at Maralinga. Engineering duties would have involved the construction of the atomic sites prior to the tests, the Maralinga village and airfield, together with various other camp sites.

4. Reference is made to a list of Australian personnel who were monitored at that time for external exposure to beta and gamma radiation. Mr Southworth's name was not included in that list. The inference is suggested in the letter that this would indicate that his duties were such that he was not required to enter areas with radiation levels above natural background and that therefore no monitoring device was issued to him. This statement of course falls far short of an assertion on the part of the Department that he did not in fact enter such areas. It is merely an inference from the fact that his name was not included in the list. It is, of course, a factor to be taken into consideration, but it is not a determining factor.

5. The basis of the opposition to the granting of this application might be stated shortly. That the material put before the Court, although it indicates the presence of Mr Southworth at Maralinga at an appropriate time having regard to atomic testing at the site, does not indicate that he was exposed to ionising radiation or that he was relevantly in a situation where it might be inferred that that occurred. Reliance in this regard is placed upon the absence of his name from the list in the circumstances to which I have already made reference. Reliance is also placed upon the fact that subject to the matter to which I shall shortly make reference, there was no direct indication in the material placed before the Court of his presence in an area where he might have been exposed to a dangerous radiation level.

6. His work as a sapper/plumber, it is put, did not necessarily carry with it any inference that he would have suffered such exposure. I am not certain that these particular arguments carry the weight which was attributed to them in the respondent's submissions. Clearly Mr Southworth was at Maralinga, he was doing work in relation to the bomb sites and he was there when atomic testing was being carried out. I am inclined to the view that such material when coupled with the scientific evidence, to which I have made reference, and the additional scientific evidence as to the potential danger of radiation levels evinced in a report from Dr Falk, may, in itself, be adequate to enable the Court to come to the view that, within the meaning of s 60H(2), it would be just and reasonable to make the order sought.

7. However, there is additional evidence the admission of which has been objected to. That is evidence to be found in paragraphs 6 and 7 of the applicant's affidavit. In those paragraphs she deposes to conversations that she had with her husband in relation to his work at Maralinga and as to his possible exposure to radiation. In those conversations he told her that, because he was a plumber, he would be one of the last on to the areas where detonations took place and one of the first to come back to dismantle the plumbing.

8. He also said that on some occasions he was in an area where he had to turn away from the blast of the bomb. He further indicated to her in conversation that he had never received any relevant warnings about danger or dangerous spots or situations when he was at Maralinga. This evidence was objected to as being inadmissible to establish the grounds relied upon by the applicant in these proceedings. Reference was made to decisions in the Supreme Court of New South Wales of which the decision by Yeldham J. in Baker v Australian Asbestos Insulations Pty Ltd (1984) 3 NSWLR 595 is a good example.

9. In his decision in that case, Yeldham J. made it quite clear that, although hearsay evidence was admissible and could be used in relation to applications to extend periods of limitation, that this type of hearsay evidence was not in his view admissible. He said that it fell into a particular category as being evidence which was not only hearsay but which was evidence of statements made by a person out of Court which person could not be called as a witness. In those circumstances he was of the view that the evidence was inadmissible for the purpose of advancing the applicant's claim.

10. Yeldham J.'s line of reasoning was accepted in other cases in the Supreme Court and, within the context of what had to be decided in that case and the other cases, I respectfully agree with it. However, it must be borne in mind that those cases were not concerned with an application under s 60H of the Act. They were concerned with applications under s 58 or s 60. Those latter sections have far more stringent requirements than the requirements of s 60H. Each requires that there be produced to the Court "evidence to establish the cause of action which the applicant claims to have, apart from the expiration as against the deceased of the limitation period."

11. What Yeldham J. decided in my opinion was that material which amounted to hearsay of the kind referred to, namely statements made out of Court by a person who could not be called to give evidence, did not amount in itself to evidence to establish the cause of action within the meaning of ss 58 and 60. Were I, at this stage, dealing with this notice of motion on the basis of an application pursuant to s 60(2), I would certainly follow these authorities and exclude this evidence from consideration in relation to such a motion.

12. I am, however, considering the motion on the basis that it is brought, as I have already said, under s 60H(1). It is plain from this catena of sections that s 60H(1) forms part of a series of provisions designed to provide a further discretionary extension of the period of limitation in circumstances where there has been what is called latent injury occasioned to an applicant or to a deceased. This is quite clearly a case of latent injury insofar as it may be necessary to establish that as a ground for the application of s 60H.

13. It is plain that the legislature had in mind to make the requirements for the establishment of grounds for the extension of the limitation period far less stringent in this type of case than in the cases contemplated by s 58 and s 60. The use of the words "just and reasonable" are in terms much wider and much more liberal than the more restrictive provisions that one finds in the other sections. Having regard to that fact I would not be disposed to apply the reasoning to be found in Baker's case and the other Supreme Court of New South Wales cases to an application under s 60H. I think it is simply not appropriate to apply such reasoning to restrict the otherwise wide phrase "just and reasonable".

14. I think I can have and I should have regard to the material in those paragraphs, not on the basis that it indicates that there is available to be called as a witness the maker of the statement which, of course, plainly can not occur, but to indicate that there is a reasonable range of further inquiry open to the applicant if she be allowed to proceed with this action. Mr Southworth was clearly one of a team of sapper/plumbers involved in the type of work to which he made reference in his conversation with her. Although the conversation does not indicate the identification of such persons it does suggest that there may be persons available to give evidence to support the statements that the deceased made.

15. I think that I can have regard to that fact when I am approaching in this matter in terms of s 60H, whereas I would not be able to do so if I were approaching it in terms of the other sections. Even if I felt constrained to reject that evidence entirely on the basis of the submissions so lucidly put to me by Mr McCarthy QC, I would nevertheless feel that because of the width of s 60H that there is enough material before the Court to indicate that there is a proper claim of a cause of action within the meaning of s 60H, which it would be just and reasonable to allow this applicant to pursue.

16. In all the circumstances then I am satisfied that the applicant has made out her case for relief under s 60H and that the limitation period which expired so many years ago should be extended to enable her to bring this action. Accordingly, I make the same order as in Cubillo, and extend the limitation period for a period of 3 months from today, until 9 July 1992. In these circumstances I do not find it necessary to consider what the result would have been under the other sections relied upon in the notice of motion. I reserve the question of costs.