New South Wales Court of Appeal Amaca Pty Ltd v Ridgway [2005] NSWCA 417 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 07/11/05 JUDGMENT DATE: 16 December 2005 JUDGMENT OF: Giles JA at 1; Santow JA at 2; Brownie AJA at 3 DECISION: Appeal upheld. Judgment and orders of the Dust Diseases Tribunal set aside. Matter be remitted to the Tribunal for re-hearing. Respondent to pay Appellant's costs of the appeal, but should have a certificate under the Suitors' Fund Act 1951. CATCHWORDS: Limitation of Actions - whether a failure to comply with s48(4) of the Limitation of Actions Act 1936 of South Australia operates to extinguish a cause of action. - Appeal - error of law - irreconciliable findings of fact, not explained. Limitation of Actions Act 1936 of South Australia LEGISLATION CITED: Dust Diseases Tribunal Act 1989 Suitors' Fund Act 1951 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 206 Sinha v Health Care Complaints Commission [2001] NSWCA 206 Mahon v Air New Zealand Ltd [1984] 1 AC 808 Amaca Pty Ltd v New South Wales [2003] HCA 44, 119 ALR 596 Robinson v Craven (1994) Aust Torts Reps 81-315 CASES CITED: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] 15, 67 ALJR 517 Chapman v Luminis Pty Ltd [1998] FCA 1084 Reid v Agco Australia Ltd [2000] VSC 363 Woolworths (SA) Pty Ltd v Cauchi [2001] SASC 48 Van Den Heuval v Tucker [2002] SASC 361 Suter v Development Assessment Commission [2003] SAERDC 47 Amaca Pty Ltd - Appellant PARTIES: Richard Wakefield Ridgway - Respondent FILE NUMBER(S): CA 41036/04 Mr G Watson SC with Mr J Sheller - A Mr G Little SC with Mr D Morgan - Respondent COUNSEL: Phillips Fox - A SOLICITORS: Watkins Tapsell - R LOWER COURT JURISDICTION: Dust Diseases Tribunal LOWER COURT FILE NUMBER(S): DDT 375/02 LOWER COURT JUDICIAL OFFICER: Walker J - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41036/04 DDT 375/02 GILES JA SANTOW JA BROWNIE AJA Friday 16 December 2005 AMACA PTY LTD v RIDGWAY Judgment 1 GILES JA: I agree with Brownie AJA. 2 SANTOW JA: I agree with Brownie AJA. 3 BROWNIE AJA: The respondent sued the appellant for damages for negligence, in the Dust Diseases Tribunal of New South Wales. The respondent claimed that he had suffered personal injury as a result of his inhaling, in South Australia, on one or more of various occasions, asbestos particles that had emanated from asbestos products manufactured and/or distributed by the appellant. The appellant pleaded that the claim was time barred, by reference to the Limitation of Actions Act 1936 of South Australia (the Act), which contained the following provisions: "36 Personal Injuries (1) All actions in which the damages claimed consist of or include damages in respect of personal injuries to any person, shall be commenced within three years after the cause of action accrued but not after. (2) In this section – 'personal injuries' include any disease and any impairment of a person's physical or mental condition. 48 General power to extend periods of limitation (1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for - (a) instituting an action; or (b) doing any act, or taking any step in an action; or (c) doing any act or taking any step with a view to instituting an action, a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require. (2) A court may exercise the powers conferred by this section in respect of any action that – (a) the court has jurisdiction to entertain; or (b) the court would, if the action were not out of time, have jurisdiction to entertain. (3) This section does not – (a) apply to criminal proceedings; or (b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied – (i) that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or (ii) that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representatives or that conduct and any other relevant circumstances, and that in all the circumstances of the case it is just to grant the extension of time. (3a) A fact is not to be regarded as material to the plaintiff's case for the purposes of subsection (3)(b)(i) unless – (a) it forms an essential element of the plaintiff's cause of action; or (b) it would have major significance on an assessment of the plaintiff's loss. Example - In a case involving personal injury, a fact might qualify as a fact material to the plaintiff's case if it establishes – (a) a substantial reduction of the plaintiff's capacity to work; or (b) that the plaintiff will require substantially more medical care than previously expected; or (c) a significant loss of expectation of life. (3b) In determining whether it is, in all the circumstances of a case, just to grant an extension of time, the court should have regard to – (a) the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial; and (b) the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums; and (c) the nature and extent of the plaintiff's loss and the conduct of the parties generally; and (d) any other relevant factor. (4) Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section. (5) Proceedings under this section may be determined by the court at any time before or after the close of pleadings. (6) This section does not derogate from any other provision under which a court may extend or abridge time prescribed or limited by an Act, regulation, rule or by-law." 4 The respondent's Statement of Claim was issued on 9 September 2002, and it did not bear the endorsement mentioned in s 48(4). 5 At trial, before Judge Walker QC, there was a debate as to when the respondent's cause of action arose. His Honour held that it did not arise until December 1999, so that s 36 did not apply, with the consequence that there was no need to consider whether an order should be made under s 48(3), or the effect of s 48(4). 6 The appellant submits that his Honour's finding (at [88]) that the cause of action did not arise until December 1999 is inconsistent with other findings made by his Honour, and that the inconsistencies are not explained, so that an appeal on a point of law lies under the Dust Diseases Tribunal Act 1989, s 32. (See Beale v Government Insurance Office of NSW (1997) 48 NSWLR 206, Sinha v Health Care Complaints Commission [2001] NSWCA 206 at [52], and Mahon v Air New Zealand Ltd [1984] 1 AC 808 at 821.) 7 When considering the question of the measure of the damages to be awarded, his Honour noted the agreement of the parties that X-rays taken in 1992 revealed that the respondent suffered from asbestos related pleural thickening, and at [83] his Honour found that the respondent had found it increasingly difficult and tiring to work from the mid 1990s. At [85] he found that the pleural effusion for which the respondent was hospitalised in August 1999 was "asbestos related". At [81] the judge found that prior to August 1999 the respondent had "well established asbestos related damage to his lungs manifesting in calcified pleural plaques which limited the ability of his lungs to expand". At [175] he found that the respondent had retired from full time work in March 1999, and that "the sole cause of the [respondent] ceasing work [then] was his restrictive lung deficit"; and he proceeded to assess the damages payable for impairment of earning capacity on that basis. 8 In short, the appellant's point is that the finding made on the question whether the claim was time barred, that the cause of action did not arise until December 1999, is inconsistent with the findings made concerning damages, including particularly the finding that as early as March 1999, the respondent suffered economic loss as a result of the tort sued upon. 9 All that appears from the reasons for judgement that might explain the inconsistencies appears at [86] - [87], where his Honour found that, although the claim for economic loss commenced in March 1999, the respondent did not then have available evidence that would have substantiated the case that his disability was related to his exposure to asbestos; and if he had consulted a lawyer at that time, that lawyer would have advised him that he did not have the evidence necessary to prove a case: he did not come "into possession of the material facts" until December 1999. This appears to be a reference to s 48(3), but his Honour was not dealing with an application under that subsection. The cause of action was complete when the respondent first suffered measurable loss or damage, meaning beyond what is negligible, even if he was not aware of it: Cartledge v E Jopling & Sons Limited [1963] AC 758 at 772; see most recently Illawarra Area Health Service v Dell [2005] NSWCA 381 at [78]. That was no later than March 1999. 10 The consequence is that the appeal must be allowed and the matter remitted to the Dust Diseases Tribunal for re-hearing, unless a further submission of the appellant is accepted, to the effect that the South Australian Limitations legislation was substantive (see John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503), and that the respondent's omission to comply with the provisions of s 48(4) means that since the respondent's case would have to be dismissed, there is no utility in making such an order (although see Amaca Pty Ltd v New South Wales [2003] HCA 44, 199 ALR 596 at [22]). 11 I will assume that the South Australian Limitations legislation was substantive. In Robinson v Craven (1994) Aust Torts Reps 81-315 the Full Court of the Supreme Court of South Australia held that a failure by a plaintiff to comply with the terms of s 48(4) of the Act is not necessarily fatal. Generally speaking, the Act barred actions from being commenced, otherwise than in accordance with its terms, but it did not extinguish causes of action, and it was necessary for a defendant to plead the time bar if the action was to be defeated by reason of that bar. At 61,865 - 61,866 King CJ said: "The requirement in subsection (4) that the request for an extension must be endorsed on the originating process does not sit comfortably with the rule, it must be said, where the time limitation is one imposed by the Statute of Limitations or a similar statutory provision. It does not sit comfortably because when the process is issued it is not known whether the statute will be pleaded. It is appropriate, however, where the cause of action has been extinguished and has to be revived. I do not think too much should be made of that anomaly. The purpose of section 48 is to relieve plaintiffs whose actions are out of time, of the hardship resulting from time limitations. Its purpose is ameliorative. It would not accord with that purpose to construe the section as extinguishing causes of action which would not otherwise be extinguished." 12 By parity of reasoning with what was said in Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15, 67 ALJR 517 at [9], this Court should follow the decision of the Full Court of the Supreme Court of South Australia, when considering the proper meaning of a single statute, unless convinced that that decision is plainly wrong, and I am not so convinced. In addition, considerations of comity mean that this Court ought generally to defer to the decisions of the Full Court of the Supreme Court of South Australia concerning the proper construction of a South Australian statute. 13 Further, in Chapman v Luminis Pty Ltd [1998] FCA 1084 at 12, in Reid v Agco Australia Ltd [2000] VSC 363 at [37] – [53] and in Woolworths (SA) Pty Ltd v Cauchi [2001] SASC 48 at [62] – [63], the matter was taken further, in that it was held that the respective plaintiffs might obtain leave to amend the initiating process, which had not borne the endorsement required by s 48(4) of the Act, so as to add that endorsement. I see no reason to dissent from the reasoning in these cases. See also Van Den Heuval v Tucker [2002] SASC 361 at [2] and Suter v Development Assessment Commission [2003] SAERDC 47 at [14]. 14 In the result, the appeal should be upheld, the judgment and orders of the Dust Diseases Tribunal set aside, and the matter remitted to the Tribunal for re-hearing. The respondent should pay the appellant's costs of the appeal, but should have a certificate under the Suitors' Fund Act 1951. ********** 21/12/2005 - wrong date - Paragraph(s) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.