Cremer (as Executor of The Late Winifred Cremer) v Seltsam Pty Limited & Ors (No. 1) [2004] NSWDDT 27

Reported Decision (2004) 1 DDCR 478

Dust Diseases Tribunal of New South Wales

CITATION : Cremer (as Executor of The Late Winifred Cremer) v Seltsam Pty Limited & Ors (No. 1) [2004] NSWDDT 27 Philip Leslie Cremer Seltsam Pty Limited PARTIES : Wallaby Grip Limited Wallaby Grip (BAE) Pty Limited Amaca Pty Limited MATTER NUMBER(S) : 444 of 2002 JUDGMENT OF: Duck J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 10/05/04 DATE OF JUDGMENT: 05/13/2004

FOR PLAINTIFF: Mr B F Ferrari instructed by Watkins Tapsell FOR FIRST DEFENDANT: Mr Luke instructed by Leigh Virtue and Associates LEGAL REPRESENTATIVES: FOR SECOND & THIRD DEFENDANTS: Mr A Scotting instructed by Acuiti Legal FOR FOURTH DEFENDANT: Mr T G R Parker instructed by Holman Webb

JUDGMENT:

1. The original plaintiff in these proceedings was Winifred Cremer. She commenced proceedings against the first, second and third defendants on 6 November 2002. She alleged in her statement of claim that in her employment by Epstein and Company Hardware Stores during periods commencing in 1936 and ending in 1965 she was exposed to various asbestos products and inhaled dust from them. Then from 1965 to 1974 she was similarly exposed in employment by Mascot General Hardware. Asbestos cement sheeting was pleaded to have been manufactured and supplied by the first defendant, asbestos mats were pleaded to have been supplied by the second defendant up until 1966 and by the third defendant during the period 1966 to 1974. The plaintiff contracted mesothelioma from which she died on 16 March 2003. 2. By an amended statement of claim filed on 4 June 2003 the present plaintiff who is the son of the deceased became the plaintiff "as executor of the late Winifred Cremer". 3. The second amended statement of claim was filed on 1 October 2003. Pursuant to that pleading a fourth defendant was added namely Amaca Pty Limited. By that statement of claim it was pleaded that the deceased was employed on a casual basis during the period 1974 to 1984. It was alleged that the fourth defendant was a supplier of asbestos cement sheeting which the deceased had to handle. 4. The fourth defendant filed a defence on 25 February 2004 in which it denied many of the allegations made in the second amended statement of claim. In addition at paragraph 8 the fourth defendant pleaded that by force of s2 (2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 the plaintiff was not entitled to any damages for any pain or suffering of the deceased or for any bodily or mental harm suffered by the deceased or for any curtailment of the deceased's expectation of life. 5. The question of whether or not that defence is an effective one in the circumstances of the case has been tried as a separate issue. 6. There is no dispute between the parties about the relevant dates upon which events have happened. 7. S 2 of the Law Reform (Miscellaneous Provisions) Act 1944 appears in Part 2 of that Act under the heading Survival of Causes of Action after Death. The terms of s 2 are as follows: 2 Effect of death on certain causes of action (1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person's estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under section 52 of the Matrimonial Causes Act 1899 , as amended by subsequent Acts, for damages on the ground of adultery or to claims under Division 2 of Part 3 of the Property (Relationships) Act 1984 . (2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person: (a) shall not include: (i) any exemplary damages, or (ii) any damages for the loss of the capacity of the person to earn, or for the loss of future probable earnings of the person, during such time after the person's death as the person would have survived but for the act or omission which gives rise to the cause of action, (b) in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry, (c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to the person's estate consequent on the person's death, except that a sum in respect of funeral expenses may be included, (d) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall not include any damages for the pain or suffering of that person or for any bodily or mental harm suffered by the person or for the curtailment of the person's expectation of life. (3) (Repealed) (4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Part, to have been subsisting against the person before the person's death such cause of action in respect of that act or omission as would have subsisted if the person had died after the damage was suffered. (5) The rights conferred by this Part for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Compensation to Relatives Act 1897 , as amended by subsequent Acts, and so much of this Part as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Act as so amended as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1). (6) The rights conferred by this Part for the benefit of the estates of deceased persons and the obligations continued or created by this Part against the estates of deceased persons shall be in addition to and not in derogation of any rights conferred or obligations created by or under the Motor Vehicles (Third Party Insurance) Act 1942 or the Transport Accidents Compensation Act 1987 or the Motor Accidents Act 1988 . (7) This section has effect subject to section 12B of the Dust Diseases Tribunal Act 1989 . 8. S 12B was inserted into the Dust Diseases Tribunal Act 1989 by the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 which commenced on 1 December 1998. S 12B is in the following terms: 12B Damages for non-economic loss after death of plaintiff (1) The purpose of this section is to enable the estate of a person whose death has been caused by a dust-related condition to recover damages for the person's pain or suffering, or for any bodily or mental harm suffered by the person, or for curtailment of the person's expectation of life, provided proceedings commenced by the person were pending before the Tribunal at the person's death. (2) Section 2 (2) (d) of the Law Reform (Miscellaneous Provisions) Act 1944 does not apply in relation to proceedings commenced by a person before his or her death and pending before the Tribunal at his or her death, where the cause of action is for damages in respect of a dust-related condition. 9. The fourth defendant submits that the cause of action pleaded against it is a different cause of action from those pleaded against the other parties although if what is pleaded is proved the negligence thus proved will contribute to the same damage in the plaintiff ie mesothelioma. The fourth defendant submits that where the term "proceedings" is used in s 12B(1) it means "proceedings arising out of the cause of action against it". "Proceedings" may mean a number of things depending upon the context in which it is used. It is submitted that normally it means a proceeding adopted to enforce a cause of action. The normal meaning should be applied in respect of s 12B, it is submitted so that the proceedings as that term is used in s 12B were not pending against the fourth defendant as at Mrs Cremer's death. Hence s 12B has no application and the constraints of s 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1994 have application. 10. Reference was made in submissions to the decision of Smart J in Blake v Norris (1990) 20 NSWLR 300. His Honour was there concerned with the meaning of the word "proceeding" in the Jurisdiction of Courts (Cross-Vesting) Act 1987. The issue concerning His Honour was whether a part of proceedings could be cross-vested. He thought that it could provide a complete cause of action was cross-vested. In that context proceeding equated to cause of action. I note the authority but I think it is of limited application in the present circumstances. 11. It is also submitted that support for the contention for the fourth defendant may be gained from the fact that in subsection 12B(2) of the Dust Diseases Tribunal Act 1989 both the word "proceedings" and the words "cause of action" are used so that it may be inferred that the Parliamentary draftsman was alert to their meaning. 12. The plaintiff submits that proceedings were commenced by the filing of the first statement of claim. Leave to add the first defendant was granted by O'Meally J pursuant to part 20 rule 1 of the Rules. That rule is in the following terms: 1 General (1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit. (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings. (3) Where there has been a mistake in the name of a party, sub rule (1) applies to the person intended to be made a party as if he were a party. (3A) An order may be made, or leave may be granted, under sub rule (1) notwithstanding that the effect of the amendment is, or would be, to add or substitute a cause of action arising after the commencement of the proceedings, but in such a case the date of commencement of the proceedings, so far as concerns that cause of action, shall, subject to rule 4, be the date on which the amendment is made. (4) This rule does not apply to the amendment of a minute of a judgment or order or of a certificate. 13. The rule clearly contemplates adding a new cause of action to existing proceedings. The Rules generally contemplate the addition of a party to proceedings: see Part 8 Rule 8. 14. It follows it is submitted that a proper reading of the Rules leads to the conclusion that the proceedings have been on foot since 6 November 2002 and hence were on foot at the time of Mrs Cremer's death. Hence s 12B Dust Diseases Tribunal Act 1989 has application. 15. The Tribunal was reminded in submissions that the provisions relating to the Dust Diseases Tribunal are intended to deal with the dynamic of people dying as their court cases are being prepared. That is the context within which the rules relating to the Tribunal are to be considered. To that may be added the consideration that such problems were the reason the Tribunal came into existence at all. 16. The arguments were developed by submissions arising out of the Transitional Provisions in Part 5 of the Dust Diseases Tribunal Act 1989. I do not think it is necessary in the present circumstances to go to the detail of those arguments. They are advanced by way of development of the position I believe I have outlined above. 17. The attitude of the other defendants to paragraph 8 of the fourth defendant's defence may be briefly stated as follows: 1. The first defendant did not wish to be heard; 2. The second and third defendants were concerned only because whatever was decided in respect of the instant matter may have a bearing on the ability of the second and third defendants to cross claim against the fourth defendant. 18. Further the second and third defendants adopted the submission of the plaintiff in relation to the way in which the word "proceedings" has been used in s 12B Dust Diseases Tribunal Act 1989. 19. Having regard to the way in which the Rules provide wide power to amend proceedings by adding parties and by adding causes of action, it seems to me to be preferable to construe "proceedings" in s 12B Dust Diseases Tribunal Act 1989 in a way which is consistent with that breadth of power. To construe the term as the fourth defendant contends for is to adopt too narrow a construction. It is not consistent with those wide powers. 20. The express proviso in s 2(7) Law Reform (Miscellaneous Provisions) Act 1944 seems to point this way. 21. Further I accept the plaintiff's submission as to the context in which legislation about the Tribunal's operations is to be considered. 22. I do not accept that s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 provide the defence for which the fourth defendant contends. 23. Costs of 10 May 2004 to be costs in the cause. Mr B Ferrari instructed by Watkins Tapsell appeared for the plaintiff Mr Luke instructed by Leigh Virtue and Associates appeared for the first defendant Mr A Scotting instructed by Acuiti Legal appeared for the second and third defendants Mr TGR Parker instructed by Holman Webb appeared for the fourth defendant