COMMERCIAL MINERALS PTY LTD v HOLLINS; AUQAL PTY LTD (ORIGINALLY QUALITY EARTHS PTY LTD) v HOLLINS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and SHELLER JJA 22 and 23 July 1993, 22 December 1993 [1993] NSWCA 74 LIMITATION — LATENT INJURY TORT — SUCCESSIVE TORTFEASORS DAMAGES — SEPARATE JUDGMENTS AGAINST SUCCESSIVE TORTFEASORS. The worker brought proceedings in March 1991 in the Dust Diseases Tribunal against three companies that employed him at different times between 1953 and 1986 alleging that his exposure to dust in the course of his employment had caused silicosis. The second and third defendants appealed challenging an order to extend the limitation periods to September 1993 and the entry of a single judgment against all the defendants. Held: (1) The worker was aware of the fact, nature, then extent and cause of his silicosis by April 1979 when all causes of action against the second defendant became provisionally statute barred, Electricity Commission v Plumb (1992) 27 NSWLR 364; (2) The worker's knowledge of the extent of his silicosis was for all practical purposes complete at all times after 2 April 1979 as causes of action against the third defendant were becoming provisionally statute barred. (3) Variations in the later progress of a disease within limits that were reasonably foreseeable at an earlier stage cannot establish a relevant lack of awareness of the nature or extent of that disease for the purposes of s60F of the Limitation Act (4) The enquiry under s60F is directed at the plaintiffs awareness of the factual cause of the injury. Dedousis v Water Board (Court of Appeal, 20 August 1993, unreported) applied; (5) Accordingly the orders extending the limitation periods in respect of the second and third defendants should be set aside. (6) Future compensation benefits under the Workers' Compensation (Dust Diseases) Act 1942 should be deducted in computing the worker's future economic loss. Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 followed; (7) A single judgment against all the defendants could not have stood on principle as they were consecutive tortfeasors whose separate acts and omissions caused some separate damage. Thomson v Smith's Shiprepairers [1984] QB 405 followed. ORDERS 1. Appeals allowed with costs. Cross appeal dismissed with costs. 2. Set aside the orders of 16 December 1992 insofar as they extended the limitation periods against the appellants, Auqual Pty Ltd (formerly Quality Earths Pty Ltd) and Commercial Minerals Pty Ltd the second and third defendants in the proceedings in the Dust Diseases Tribunal. 3. In lieu order as against those defendants that the motion for extension of the limitation periods be dismissed with costs. 4. Set aside the judgment for $502,272 entered against all three defendants. 5. In lieu thereof order that judgment be entered for the second defendant with costs. 6. Order a new trial of the proceedings generally against the first defendant and against the third defendant with respect to any causes of action that accrued on and after 25 March 1985. 2 UNREPORTED JUDGMENTS 7. Costs of the first trial as against the first defendant to abide the order of the Judge conducting the new trial. 8. The plaintiff to pay the third defendant's costs of the first trial. The costs of the second trial against that defendant to abide the order of the Judge conducting that trial. 9. The respondent Dennis Paul Hollins is to have a certificate under the Suitor's Fund Act in respect of the costs of the appeals by Augal Pty Ltd and Commercial Minerals Pty Ltd. Meagher JA I agree with Handley JA. Handley JA These appeals and a cross appeal arise out of proceedings brought by Dennis Hollins (the worker) in the Dust Diseases Tribunal (the Tribunal) against three companies that employed him at different times between 1953 and 1986 at and from the same premises at the comer of Shirley and Unwin Streets, Granville. The companies produced and sold products such as talc, mica, silica, limestone, and other minerals. The production bagging and dispatch of these products generated considerable quantities of dust and persons, such as the worker, engaged in these processes worked in a very dusty environment. The worker was employed by the first defendant from 25 October 1953 until 31 March 1955 and from 8 July 1957 to 12 July 1962 for a total of some six years and five months. He was employed by the second defendant from 1 July 1969 to 31 March 1973 for three years and nine months and by the third defendant from 31 March 1973 to 15 August 1986 for thirteen years and five months. He commenced proceedings against the three defendants on 25 March 1991 alleging that his exposure to dust in the course of his employment had caused silicosis and he claimed damages for negligence and breach of statutory duty. He was provisionally statute barred against the first and second defendants and against the third defendant except for causes of action that accrued during the last seventeen months of his employment from 25 March 1985 to 16 August 1986. On 16 December 1992 Johns CCJ ordered that the limitation periods be extended to 1 September 1993 (sic). The Judge then heard the action and on 22 December 1992 found in favour of the worker against all three defendants and entered a single judgment against them for $502,272. The second and third defendants have appealed challenging the order extending the limitation periods, the assessment of the worker's damages and the entry of a single judgment against all defendants. The first employer did not appeal and was not represented in this Court. The worker cross appealed seeking increased damages. EXTENSION OF THE LIMITATION PERIODS The order extending the limitation periods was made under the provisions added to the Limitation Act 1969 by the Limitation (Amendment) Act 1990 and in particular s60F, s60G and CL4 of sched 5. The decision of this Court in Electricity Commission v Plumb (1992) 27 NSWLR 364 establishes that in the case of a pre 1990 injury such as this, a party seeking an extension of a limitation period must establish that he "was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time" (s60F), the relevant time being "at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted" (s60I(1)(a)). If these threshold requirements are satisfied, an applicant must establish that it is "just and reasonable" that the limitation period be extended (s60G(2)). WROMMERCIAL MINERALS PTY LTD v HOLLINS; AUQAL PTY LTD (ORIGINALLY QUALITY EARTHS PTY LTD) v HOLLINS (Handley JA) Johns CCJ noted in his reasons for extending the limitation periods that the worker had been suffering increasing symptoms as a result of his silicosis for many years before the deterioration in his condition compelled him to retire in August 1986 and that he had been assessed by the Dust Diseases Board (the Board) before his retirement. He referred to evidence given by the worker that he thought that his illness or disease would remain static and not further deteriorate, a view which, on the medical evidence his Honour thought "not unreasonable". His Honour said that the report of Dr Field to the Board of 24 December 1982 indicated that at that stage the worker also had a cardiac problem which may have been partially responsible for his disabilities. He found that the worker "had some doubts as to the nature, the extent and the cause of his disease, at least until some time after 1986". The defendants led no evidence to establish particular prejudice arising from any extension. His Honour referred to the decision in James Hardie and Co Pty Ltd v Wootton (1990) 20 NSWLR 713 and noted that the 1990 amendments had "in relation to matters of this kind... (any case of latent injury), produced a special and particular situation during that period of three years commencing 1 September 1990." In these circumstances his Honour concluded that it would be just and reasonable to extend the limitation periods. The appellants challenge this order on the ground that at the relevant times the worker was aware of the fact, nature, extent and cause of his silicosis. He said in his evidence in chief that he went to the Board in 1971 after he learned that his father, who had been doing similar work, had silicosis. He then found out that he also had silicosis and that his disability was assessed at ten per cent. In 1972 his father, then aged sixty seven had to retire because of his silicosis and the Board awarded him a pension. His father died in 1978. In the same year the Board reassessed the worker's disability at forty per cent, in 1982 at fifty per cent, 1985 sixty per cent and in 1986 seventy per cent and later that year one hundred per cent. He was put on a part pension in 1986 and when he retired later that year he was awarded a full pension. In 1972 the second defendant offered the worker the job of driving the company truck which the worker accepted because he "wanted to get out of the factory... away from the dust". He was still exposed to dust while in the factory and loading dock areas and while assisting in unloading bagged products at customers' premises. However his overall exposure was considerably reduced because he spent about eighty per cent of his time driving. The worker said that his condition deteriorated after 1972, he found it harder to handle the bags of product and the tarpaulin, and he suffered increasing breathlessness. He also found it increasingly difficult to do home repairs and gardening and to play golf. He said in chief that during the 70s he did not know that his silicosis would interfere with his working future and he only found this out in 1985. He also said that he was not aware of the rate at which his condition would deteriorate or its effect on his life expectancy. He consulted his present solicitors in March 1990 but in 1988 he had consulted other solicitors experienced in common law industrial negligence actions. The extent of the worker's knowledge was explored in cross examination. He agreed that in 1971 he knew that his silicosis was a dust related disease which had been caused by his exposure to dust at work. The following year he changed his job to driver to get away from the dust. He agreed that his father's chest condition had deteriorated from 1971 until his death in 1978 and that he had died from silicosis. The worker agreed that in the late 70s he was having increasing problems with his work but was still able to do it. He said: "The condition didn't 4 UNREPORTED JUDGMENTS really stop me from doing my work without too much distress until the early 80s". However he agreed when asked that "Between 1971 when you first went to the Board and 1978 it was apparent to you that your condition was worsening as time went by". He was told in 1978 that the Board had assessed his disability at forty per cent, he knew that in 1971 he had been assessed at only ten per cent and that his father's condition had also deteriorated over those years and that he had died of silicosis. He then gave this evidence: "Q. All those things must have indicated to you, I suggest to you, that your condition carried with it a real chance that it would continue to worsen. That is right is it not? A. Yes." By 1982 when he was assessed at fifty per cent disability his condition caused him "a bit of concern" in relation to his ability to work but he could still do his job. At the time he hoped that the deterioration in his condition would stop or level off. He said that he wanted to keep his job because it was steady employment and he had a mortgage to pay off and a big family to support. Silicosis is caused by prolonged exposure to dust. While exposure to industrial dust continues new causes of action will accrue from time to time as a worker suffers further not insignificant loss or damage. See Cartledge v E Jopling and Sons Ltd [1963] AC 758. All causes of action against the first defendant became provisionally statute barred at the latest by 13 July 1968. There is no suggestion that at that time the worker was aware of the fact, nature, extent or cause of his silicosis. He became aware of these matters for the first time only in 1971. Accordingly the Tribunal had power to extend the limitation period as against this defendant. Unfortunately for the worker, such an order will apparently be of little or no advantage to him because the Court was told that this defendant is in liquidation and its insurance cover against liability to its workers at common law has been exhausted. All causes of action against the second defendant became provisionally statute barred at the latest by 1 April 1979. At that time the worker knew that he had silicosis, that his disability had been assessed the year before at forty per cent, that the disease was progressive, that his father had died from it at seventy three and that his father's disease had continued to progress after his exposure to industrial dust ceased in 1972. I can only conclude that by 1979 the worker knew that he had silicosis, the general nature of this disease, its extent as determined by the Board in 1978, and its cause. It is true that he did not know its future course, or the effects it would later have on his ability to retain his job and his life expectancy. However he knew that there was "a real chance" or "a real risk" that his condition would continue to worsen. Moreover it was not suggested that a specialist in the field could then have predicted the future course of his silicosis. It is now known that the worker's condition continued to deteriorate after 1979 but there is no evidence which would enable this Court to determine the extent (if any) to which that deterioration was caused by the worker's exposure to dust while employed by the second defendant between 1969 and 1973. In other words there is no evidence and no finding that the worker's knowledge in relation to the second defendant's contribution to his silicosis is any greater now than it was in 1979. In these circumstances it seems to me that by 1 April 1979 the worker's knowledge of the extent of his then disability was for all practical purposes complete. The further deterioration that has occurred since, to the extent that it was caused wholly or in part by his exposure to dust during his employment by WROMMERCIAL MINERALS PTY LTD v HOLLINS; AUQAL PTY LTD (ORIGINALLS QUALITY EARTHS PTY LTD) v HOLLINS (Handley JA) the second defendant, was reasonably foreseeable and the worker was aware of this risk or chance. As a general rule it seems to me that variations in the later progress of a disease within limits that were reasonably foreseeable at an earlier stage cannot establish a relevant lack of awareness of the nature or extent of that disease for the purposes of s60F. Nothing occurred in this case akin to the discovery by the plaintiff in Royal North Shore Hospital v Henderson (1986) 7 NSWLR 283 eleven years after his negligent treatment that as a result he was suffering from radicular myelopathy "an extremely grave disease, possibly resulting in quadriplegia" or the discovery by the plaintiff in James Hardie and Co Pty Ltd v Wootton (1990) 20 NSWLR 713 at 714, 718, who knew he had asbestosis that he might also contract mesothelioma. In my opinion there was no power to extend the limitation period in respect of the causes of action against the second defendant. The worker's causes of action against the third defendant that accrued between 2 April 1973 and 24 March 1985 were being progressively statute barred from 2 April 1979 until 24 March 1991. The worker was assessed at one hundred per cent disability and retired on a full pension on 15 August 1986. By that date at the very latest he knew that his disease had progressed to the point where he was no longer able to work although he was still unaware of the precise effect it would have on his life expectancy. It would seem beyond argument that the causes of action which became statute barred between 16 August 1986 and 24 March 1991 were in any event outside the proper scope of the 1990 amendments to the Limitation Act. The worker however had earlier been only too well aware of the progress of his disease as he was successively assessed at fifty per cent disability in 1982, sixty per cent in 1985 and seventy per cent in early 1986. He agreed that by the early 80s he was no longer able to do his work "without too much distress". In my opinion the worker's knowledge of the extent of his silicosis was for all practical purposes complete at all times between 2 April 1979 and 15 August 1986 as limitation periods for causes of action against the third defendant expired. Accordingly his case did not fall within s60F of the Act and there was no power to extend the limitation periods in respect of such causes of action. As explained earlier the absence of power in respect of the further causes of action which became provisionally statute barred between 16 August 1986 and 24 March 1991 is, if that is possible, even clearer. Mr Semmler QC submitted that the Tribunal had power to extend the limitation periods because the worker was unaware of the extent to which his disease had been caused by dust inhaled while he was employed by each defendant. Put another way it was said that he was unaware of the cause or causes of his disease because he was unaware of the causative effects of the dust inhaled in the course of his employment by each defendant. In my opinion the worker's lack of knowledge of these matters provides no proper basis for an extension of the limitation periods. The worker was fully aware that his silicosis was caused by dust inhaled in the course of his employment by the three defendants and he was aware that he had been employed by those different defendants. In Dedousis v The Water Board (CA, unreported, 20 August 1993) Clarke JA said at 8 that the inquiry under s60F "'is directed at the applicant's awareness of the factual cause of the injury" and that this section, like s57B(1) that had been considered in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 is "concerned with ignorance of the existence of facts rather than legal conclusions" (at 9). 6 UNREPORTED JUDGMENTS This is not a case where the worker was earlier not aware of the dangerous properties of the dust he inhaled during his employment with a particular defendant or defendants, but now has that knowledge. In this respect he and his legal advisers are still none the wiser. The problem of attributing or dividing legal responsibility for the worker's disease between the three defendants in circumstances such as the present where the precise facts can never be known must be governed by legal principles or presumptions. The worker's ignorance of the extent to which legal principles will attribute legal responsibility for his disease between the three defendants is an ignorance of legal conclusions rather than facts and does not attract this power to extend the limitation periods. Accordingly in my opinion the appeals by the second and third defendants from the order extending the limitation periods in respect of causes of action against them succeed and to that extent the order must be set aside. In these circumstances it is not strictly necessary to express any view on the other issues in the case but I will do so since they were fully argued and are of some importance in the work of the Tribunal. EFFECT OF FUTURE PAYMENTS UNDER THE WORKERS' COMPENSATION (DUST DISEASES) ACT, 1942 Johns CCJ followed an earlier decision of O'Meally CCJ in Ellul v Morton Pty Ltd (17 April 1991, unreported) and held that future compensation benefits under the Act should not be deducted in computing the worker's future economic loss. He followed another decision of O'Meally CCJ in Carnuccio v Cinzano and CIA Australia Pty Ltd (1 March 1990, unreported) and held that such benefits received before trial should be deducted. Unfortunately it appears that the attention of O'Meally CCJ and Johns CCJ was not directed to the decision in Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 which is directly in point. This Court there held that both past and future benefits under the Act should be taken into account in assessing a worker's damages. See per Sugerman JA at 127G and 129G, per Walsh JA at 137D and 138D-E and per Asprey JA at 141A. It also held that the receipt of such payments depended on "no mere matter of administrative discretion" but were a matter of legal entitlement. See per Sugerman JA at 129D. As Asprey JA said at 140: "In my opinion payments received by a worker by way of compensation in pursuance of an award made under the Act are not a bounty. If a worker is able to demonstrate that he is qualified in accordance with the provisions of the Act for an award he is entitled to receive compensation at the prescribed rates. The fact that the worker requires the certification of the Medical Authority that his disablement was due to the disease defined in s3 as well as the finding of the Committee that he was a worker engaged in the occupation which the Act covers is no ground for arguing that the Act does not create an enforceable right to the benefits which it provides." The Act has since been amended to allow appeals by way of new hearing to the Compensation Court from decisions of the Medical Authority and the Board (which has replaced the Committee referred to by Asprey JA). See generally the Workers' Compensation (Dust Diseases) Board v Veksans (CA, unreported, 12 November 1993). These amendments reinforce the conclusion that compensation under the Act is a matter of legal entitlement and not administrative discretion. Adams v Ascot Iron Foundry has been followed since in other cases where damages and compensation benefits overlap and there is no effective statutory WROMMERCIAL MINERALS PTY LTD v HOLLINS; AUQAL PTY LTD (ORIGINALLY QUALITY EARTHS PTY LTD) v HOLLINS (Handley JA) mechanism for their adjustment. See Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60 and Tipper v Williams (Court of Appeal, unreported, 12 May 1993). In my opinion compensation benefits under the Act should have been taken into account in assessing the worker's future economic loss. SINGLE JUDGMENT AGAINST CONSECUTIVE TORTFEASORS The trial Judge held that each defendant had been negligent in exposing the worker to a foreseeable risk of silicosis and had also been guilty of breaches of statutory duty. He held that the defendants were several concurrent tortfeasors and he applied the established principle that a plaintiff is entitled to a single judgment against all defendants sued in that capacity. See Barisic v Devenport (1978) 2 NSWLR 111 at 120, 139-140, and Caltex Oil v XL Petroleum (1982) 2 NSWLR 852 at 858, 863. Accordingly his Honour entered a single judgment against all defendants. However these defendants were consecutive tortfeasors whose separate acts and omissions caused some separate damage. Only the first defendant could be liable for damage which accrued prior to the commencement of the worker's employment with the second defendant in 1969. The second defendant could not possibly be liable for damage which accrued before the worker's employment with that defendant commenced in 1969 and the third defendant could not possibly be liable for damage which accrued before employment with that defendant commenced in 1973. The trial Judge assessed the worker's economic loss as having commenced on | July 1972 and awarded damages on that basis. Accordingly an identifiable part of the worker's damages was awarded for loss which accrued before his employment with the third defendant commenced on 31 March 1973. It is clear on principle that the single judgment against all three defendants could not have stood. This conclusion is supported by the judgment of Mustill J in Thompson v Smith's Shiprepairers Ltd [1984] QB 405 especially at 437-444 which contains, with respect, an admirable analysis of the present problem both in principle and in the light of the authorities. Unfortunately counsel did not refer the Court to this decision although it is cited in such an obvious reference work as Fleming on Torts 8th ed 1992 at 202. A possible view of the facts in this and similar cases is that the first and second defendants were several concurrent tortfeasors in respect of the period between 1 July 1969 and 31 March 1973 because their independent acts and omissions caused or contributed to the damage suffered then or later as a result of dust inhaled during that period. In other words it may be that damage was suffered by the worker then or later as a result of the combined effect of dust inhaled during his employment by the first defendant and the further dust inhaled during his employment by the second defendant. On the same basis it is possible that all three defendants were several concurrent tortfeasors in respect of the period from 1 April 1973 to 15 August 1986 because their independent acts and omissions caused or contributed to the damage suffered then or later as a result of dust inhaled during that period. In other words it may be that damage was suffered by the worker then or later as a result of the combined effect of dust inhaled during his employment by the first two defendants and the further dust inhaled during his employment by the third defendant. Compare generally Mahony v Kruschich Demolitions Pty Ltd (1985) 156 CLR 522. 8 UNREPORTED JUDGMENTS If that were the case the appropriate result might be a single judgment against the first defendant for damage suffered solely as a result of the tortious acts and omissions for which it was responsible, a single judgment against the first and the second defendants for the additional damage suffered as a result their combined tortious acts and omissions and a single judgment against all defendants for the additional damage suffered as the result of their combined tortious acts and omissions. It is not necessary in this case to arrive at any final conclusion as to the legal principles which might assist a tribunal of fact in apportioning an injured worker's total damages between tortfeasors responsible for exposure to dust during different periods of employment. The resolution of these matters when that becomes necessary may well require consideration of the reasoning in Thompson v Smith's Shiprepairers Ltd [1984] QB 405 at 437-444, Purkess v Crittenden (1965) 114 CLR 164 and March v E and MH Stramare Pty Ltd (1991) 171 CLR 506. It is not necessary to comment on the issues raised by the worker's cross appeal as these do not raise questions of general principle. In my opinion the following orders should be made: 1. Appeals allowed with costs. Cross appeal dismissed with costs. 2. Set aside the orders of 16 December 1992 insofar as they extended the limitation periods against the appellants, Augal Pty Ltd (formerly Quality Earths Pty Ltd) and Commercial Minerals Pty Ltd the second and third defendants in the proceedings in the Dust Diseases Tribunal. 3. In lieu order as against those defendants that the motion for extension of the limitation periods be dismissed with costs. 4. Set aside the judgment for $502,272 entered against all three defendants. 5. In lieu thereof order that judgment be entered for the second defendant with costs. 6. Order a new trial of the proceedings generally against the first defendant and against the third defendant with respect to any causes of action that accrued on and after 25 March 1985. 7. Costs of the first trial as against the first defendant to abide the order of the Judge conducting the new trial. 8. The Plaintiff to pay the third defendant's costs of the first trial. The costs of the second trial against that defendant to abide the order of the Judge conducting that trial. 9. The respondent Dennis Paul Hollins is to have a certificate under the Suitor's Fund Act in respect of the costs of the appeals by Augqal Pty Ltd and Commercial Minerals Pty Ltd. Sheller JA I agree with Handley JA. ORDERS 1. Appeals allowed with costs. Cross appeal dismissed with costs. 2. Set aside the orders of 16 December 1992 insofar as they extended the limitation periods against the appellants, Auqual Pty Ltd (formerly Quality Earths Pty Ltd) and Commercial Minerals Pty Ltd the second and third defendants in the proceedings in the Dust Diseases Tribunal. 3. In lieu order as against those defendants that the motion for extension of the limitation periods be dismissed with costs. 4. Set aside the judgment for $502,272 entered against all three defendants. JOBNAME: No Job Name PAGE: 9 SESS: 1 OUTPUT: Fri Oct 19 17:09:34 2007 /reports/caseml]/case/urj/9302366 WROMMERCIAL MINERALS PTY LTD v HOLLINS; AUQAL PTY LTD (ORIGINALLY QUALITY EARTHS PTY LTD) v HOLLINS (Sheller JA) . In lieu thereof order that judgment be entered for the second defendant with costs. . Order a new trial of the proceedings generally against the first defendant and against the third defendant with respect to any causes of action that accrued on and after 25 March 1985. . Costs of the first trial as against the first defendant to abide the order of the Judge conducting the new trial. . The plaintiff to pay the third defendant's costs of the first trial. The costs of the second trial against that defendant to abide the order of the Judge conducting that trial. . The respondent Dennis Paul Hollins is to have a certificate under the Suitor's Fund Act in respect of the costs of the appeals by Augal Pty Ltd and Commercial Minerals Pty Ltd. 15 Counsel for Appellant (1): C Gee QC with G Little Solicitors for Appellant (1): AO Ellison and Co Counsel for Appellant (2): J Hislop QC with G Parker 20 = Solicitors for Appellant (2): PV McCulloch and Buggy Counsel for Respondents: PC Semmler QC with A Katzmann Solicitors for Respondents: Turner Freeman