Broxholme v Studorp Limited

[2020] NZHC 1760

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-000842

[2020] NZHC 1760

BETWEEN

MARJORIE BROXHOLME

Plaintiff

AND

STUDORP LIMITED

Defendant

Hearing:	On the papers
Counsel:	J Walsh for the Plaintiff
Judgment:	21 July 2020

JUDGMENT OF DUFFY J

This judgment is delivered by me on 21 July 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

Maurice Blackburn Lawyers, Brisbane, Australia (J Walsh)

Address for Service: Medico Law Lawyers Grey Lynn

Auckland New Zealand

BROXHOLME v STUDORP LIMITED [2020] NZHC 1760 [21 July 2020]

[1]The plaintiff in this proceeding filed her statement of claim on 7 May 2019.

[2]        The claim is an action for damages brought in negligence for her personal injury; the development of pleural mesothelioma, a type of cancer caused by asbestos exposure. The plaintiff alleges that her pleural mesothelioma was caused by exposure to asbestos dust released from asbestos cement building products manufactured by the defendant while undertaking home renovation works in July 1972 and May 1973. This was before the coming into force of the first Accident Compensation Act 1972.1

[3]        On 8 July 2019, this court delivered judgment in Calver v Accident Compensation Corporation.2 Before delivery of Calver v Accident Compensation Corporation the general understanding was that the Accident Compensation Act 2001 did not provide cover to people like the plaintiff who suffered from mesothelioma caused by exposure to asbestos outside of employment. It was also generally understood that persons who were not entitled to cover under the Accident Compensation Act 2001 and who had suffered personal injury before the passing of the Accident Compensation Act 1972, were entitled to seek common law damages for their injuries because their right to sue for such injury had not been extinguished.3

[4]        In October 2019 this court granted the Accident Compensation Corporation leave to appeal the decision of Calver. A hearing date has yet to be set. The outcome of the appeal is likely to determine whether the plaintiff is entitled to bring an action for damages in negligence for her injury. If the Court of Appeal upholds the decision of this Court, the plaintiff’s present action will be barred by the operation of the Accident Compensation Act 2001. On the other hand, if the Court of Appeal allows the appeal and decides that cover is not available for non-work related mesothelioma the plaintiff will be entitled to bring her action in negligence.

[5]        The plaintiff seeks an extension of time for service of six months pursuant to r 5.73 of the High Court Rules. She submits there is a good reason to extend the period

1      This legislation came into force on 1 April 1974.

2      Calver v Accident Compensation Corporation [2019] NZHC 1581, [2019] 3 NZLR 261.

3      The statutory bar against recovery of damages for personal injury that was imposed by the Accident Compensation Act 1972 has been continued in subsequent legislation leading up to the Accident Compensation Act 2001.

for service, this being that the availability of the plaintiff’s right to bring the proceeding depends on the outcome of the appeal in Calver v Accident Compensation Corporation. Until the appeal has been determined the state of the law in respect of the plaintiff’s entitlement to bring her case is unclear.

[6]        The plaintiff has helpfully referred this Court to relevant case law on the exercise of r 5.73 and its equivalent in other jurisdictions. This material was not available to Gault J when he refused the plaintiff’s application for an extension on 2 July 2020.

[7]        I consider the authority to extend time for service to be a broad discretionary power that is available to this Court. Here, it would serve little purpose if the plaintiff had served the defendant within the 12 month time-frame. Delivery of the judgment in Calver established a bar to this proceeding. Had the plaintiff served the proceeding she is likely to have found herself facing an application for strike out. Any action that would engage the defendant at this time may later result in a liability for the plaintiff for costs. I consider the plaintiff has acted responsibly by delaying service of her claim. This is an appropriate case where an extension of time should be granted.

[8]        Accordingly, the 12-month period for serving the statement of claim on the defendant is extended by a further six months.

Duffy J