New South Wales Supreme Court CITATION : Pascoe v Edsome Pty Limited & 3 Ors [2009] NSWSC 795 HEARING DATE(S) : 18/12/08-19/12/08 JUDGMENT DATE : 13 August 2009 JUDGMENT OF : Hidden J DECISION : Proceedings dismissed. CATCHWORDS : PROCEEDINGS FOR DAMAGES - disease contracted by conditions of employment - proceedings statute barred - no tenable evidence of causation - summary dismissal Workers Compensation Act 1987 LEGISLATION CITED : Limitation Act 1969 Uniform Civil Procedure Rules CATEGORY : Procedural and other rulings Pascoe v Edsome Pty Limited & Ors [2007] NSWSC 472 CASES CITED : Sea Coatings (Australia) Pty Limited & Ors v Pascoe [2008] NSWCA 54 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Commonwealth of Australia v Shaw [2006] NSWCA 209, 66 NSWLR 325 Jody Pascoe (Plaintiff) Edsome Pty Limited (First Defendant) PARTIES : Solitaire Pty Limited (Second Defendant) Sea Coatings (Australia) Pty Limited (Third Defendant) Sea Coatings Pty Limited (Fourth Defendant) FILE NUMBER(S) : SC 20726/2001 A J McQuillen (Plaintiff) COUNSEL : T Moisidis (First Defendant) J Catsanos (Second Defendant) D J Hooke (Third & Fourth Defendants) G H Healey & Co with Graeme R Jensen & Co (Plaintiff) SOLICITORS : Vardanega Roberts (First Defendant) Moray & Agnew (Second Defendant) Ellison Tillyard Callanan (Third & Fourth Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HIDDEN J Thursday 13 August 2009 20726/2001 Jody PASCOE v EDSOME PTY LIMITED & 3 ORS JUDGMENT 1 HIS HONOUR: The plaintiff, Jody Pascoe, has instituted proceedings in this Court against four companies seeking damages for personal injury said to have been suffered through his employment at various times by each of them. The defendant companies are: Edsome Pty Limited ("Edsome"), first defendant; Solitaire Pty Limited ("Solitaire"), second defendant; Sea Coatings (Australia) Pty Limited ("Sea Coatings (Australia)"), third defendant; Sea Coatings Pty Limited ("Sea Coatings"), fourth defendant. 2 The companies were related, and together they carried on the business of marine construction services under the trading name "Sea Coatings". Put shortly, the plaintiff alleges that the defendants failed to provide a safe work environment and that he became ill through exposure to various chemicals and other noxious substances. He claims that he suffered pneumonia, pulmonary alevitis and sarcordiosis, together with consequential psychological problems. 3 The proceedings were instituted by a statement of claim filed on 17 August 2001. However, the periods during which the plaintiff alleges he was employed by the defendants are to be found in an amended statement of claim filed on 14 February 2002. In chronological order, they are: by the third and fourth defendants, Sea Coatings (Australia) and Sea Coatings: between 1987 and 1990; by the first defendant, Edsome: as a full-time employee between 1990 and 1996 and thereafter as a casual employee until 1999; by the second defendant, Solitaire: as a casual employee between July 1996 and September 1999. 4 Before me are applications by the defendants that the statement of claim be struck out and that the proceedings be dismissed. Those applications must be considered in the light of the history of the proceedings. 5 In December 2003 the plaintiff filed a notice of motion seeking retrospective leave, under s 151D of the Workers Compensation Act 1987, to commence the proceedings for damages against Edsome, Sea Coatings (Australia) and Sea Coatings. Section 151D(2) provides: A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken. 6 That leave was not sought in respect of the proceedings against Solitaire. Almost 3 years elapsed before the motion came on for hearing before Harrison AsJ. After receiving a volume of evidence on affidavit and given orally, her Honour granted the leave sought: Pascoe v Edsome Pty Limited & Ors [2007] NSWSC 472. 7 An application by the three defendants for leave to appeal was successful and the appeal was allowed. Her Honour's order was set aside and the plaintiff's motion for leave was dismissed: Sea Coatings (Australia) Pty Limited & Ors v Pascoe [2008] NSWCA 54. It is not necessary to examine how it was the court found that her Honour had fallen into error. What is important is the conclusions which the court reached after its examination of the evidence. (In the Court of Appeal Sea Coatings (Australia), Sea Coatings and Edsome were the first, second and third claimants respectively.) 8 The leading judgment was delivered by Handley JA, with whom Hodgson and Tobias JJA agreed. His Honour noted that the plaintiff's case was that his illness had developed over a period of time during his employment, but he first experienced symptoms in August 1995. His condition worsened, he developed pneumonia and was admitted to hospital. This was the first time that he had been off work because of a respiratory complaint: see the judgment at [45]. Special provision is made by s 15 of the Workers Compensation Act for compensation under the Act where the worker's injury is a disease "which is of such a nature as to be contracted by a gradual process". 9 After an examination of that section and of s 151D, his Honour concluded that the only defendant who might have been liable to pay compensation under the Act to the plaintiff was Edsome, the company by which he was employed in 1995. That being so, it was only for the purpose of proceedings against Edsome that leave under s 151D was required. However, claims for damages against the other two defendants were subject to the 3 year limitation period imposed by s 18A(2) of the Limitation Act 1969, although by s 60C(2) of that Act a court can extend that period by up to 5 years. The 3 year limitation period commenced to run when the cause of action first accrued against those two companies. That occurred when the plaintiff first suffered appreciable damage which, on his case, was also in August 1995: [9] – [17]. 10 That being so, the 3 year limitation period under both Acts commenced in 1995 and concluded in 1998. His Honour noted that for practical purposes the same principles applied to an application for leave under s 151D or extension of the limitation period under s 60C, and the result would be the same in both cases: [15]. 11 In determining whether an application under either Act could succeed, Handley JA considered whether the plaintiff had a case fit to be tried against any of the defendants and, in the case of Sea Coatings (Australia) and Sea Coatings, whether an extension of the limitation period would cause them prejudice such that there could not be a fair trial. 12 On that latter issue, there was evidence from Mr Grounds, who was the managing director of Sea Coatings (Australia) and had at different times also been a director of the other two companies, that a search of the companies' records failed to locate any record of the plaintiff's employment prior to July 1991. There was a record of his employment by Edsome from that month until September 1996. The plaintiff himself had no records earlier than 1996. In that event, there was no record that the plaintiff had ever been employed by Sea Coatings (Australia) or Sea Coatings: [19] – [21]. 13 There was evidence that the plaintiff's father, Barry Pascoe, had himself been a director of Sea Coatings (Australia) in the later 1980s, and it had been put on the plaintiff's behalf that his father could give evidence at trial to fill this gap. However, there was no evidence from Mr Pascoe senior before Harrison AsJ – nor, for that matter, before me. Handley JA noted that, while an application to extend the limitation period was "not the trial of the action or a dress rehearsal for the trial", the plaintiff bore the onus of establishing that a fair trial was possible and had to deal with evidence of actual prejudice to any of the defendants: [25] – [27]. His Honour added that, in any event, because of the absence of any records for the relevant period those companies would be unable to rebut evidence of Mr Barry Pascoe that the plaintiff had been employed by them. There would be a miscarriage of justice if records for that period would have established the contrary: [31]. 14 His Honour observed that the evidence of Mr Grounds "prima facie established" that the plaintiff had never been employed by Sea Coatings (Australia) or Sea Coatings, and concluded that he had failed to prove that he had a case fit to be tried against those companies: [28] – [29]. His Honour found that the case for refusing an extension of the limitation period against them was "overwhelming": [34]. 15 In dealing with the application for leave against Edsome, Handley JA considered the medical evidence at [35] – [50]. Professor Bryant, who treated the plaintiff from November 1995 till 2002, considered that he was suffering from an idiopathic fluctuating condition that was not likely to be related to his work. Dr Hamor, who saw the plaintiff briefly in 1995, also did not think that his illness was related to his occupation. Dr Gianoutsos provided a report in March 2003 in which he expressed the view that the condition may have been work related, but in which he sought further information about the plaintiff's treatment before expressing any concluded view. The plaintiff's solicitors never supplied that information. 16 Some guarded support for the plaintiff's case was to be found in a report of August 2006 of Dr Crawford. He found that the plaintiff suffered from asthma and, if his history were accepted, that it was probably "occupation-related". He went on to consider Professor Bryant's diagnosis, and relevant passages from his report are set out in Handley JA's judgment at [38] – [39]. Put shortly, Professor Bryant had diagnosed chronic eosinophilic pneumonia which, Dr Crawford reported, "may also have been sustained from work-related exposure". However, that connection was expressed no more firmly than as a possibility. 17 Significantly, it emerged in evidence that in August 1995 the plaintiff was working near the edge of a wharf at Walsh Bay when his wallet fell into the water. He jumped into the water, retrieved his wallet, and swam about one hundred metres to a ladder to get out. It was after this incident that he started to feel symptoms of a "mild flu", which gradually worsened and in due course led to his admission to Blacktown Hospital. The incident did not form part of the history supplied to the hospital or to any of the reporting doctors. Handley JA saw this of particular significance in assessing the weight to be given to the report of Dr Crawford: [50]. 18 His Honour found that this "sequence of events" gave rise to the inference "that the swim and its aftermath, rather than his industrial exposure to dust and fumes, was the real cause of his illness and his continuing symptoms". The medical reports disclosed a family history of asthma which, his Honour said, "suggests that the plaintiff may have had a pre-disposition which remained asymptomatic until his swim and its aftermath": [47] – [48]. 19 His Honour concluded that, although Dr Crawford provided "a scintilla of support" for the case on causation, the plaintiff had not discharged his onus of establishing that he had a case fit to be tried. He added that there was no evidence that the plaintiff's condition deteriorated after 1995 "despite his further industrial exposure": also at [50]. As he put it at [51], "At best the plaintiff had a weak case, at worst he had none". Hence, on the re-exercise of the discretion to grant leave to proceed against Edsome, his Honour held that leave should be refused. 20 An application by the plaintiff for special leave to appeal to the High Court against the Court's decision was also refused. 21 Before me, all four defendants seek orders disposing of the proceedings under the following provisions of the Uniform Civil Procedure Rules: dismissal under r 13.4, on the basis that the proceedings are frivolous or vexatious, no reasonable cause of action is disclosed, or the proceedings are an abuse of the court's process; dismissal under r 12.7, on the basis that the plaintiff has not prosecuted the proceedings with due despatch; striking out the amended statement of claim under r 14.28 (presumably on each of the three bases set out in that rule). 22 The applications under r 12.7 arise from the undoubtedly sorry history of the proceedings. The original statement of claim of 17 August 2001 was filed shortly after the plaintiff first consulted his solicitors. However, the progress of the matter thereafter was glacial. There is no need to recite the detail of it. It is sufficient to refer to the brief summary of the procedural history in the judgment of Harrison AsJ at [9] – [10], [23] and [38]. Her Honour referred to the significant delay before the motion for leave under s 151D was filed and the further time which elapsed before it was ready for hearing, the delay in having two of the defendants which had been deregistered, Edsome and Sea Coatings, reinstated to the register, and the numerous occasions upon which the plaintiff's solicitors failed to comply with timetables set to prepare the matter for trial. 23 The judgment of the Court of Appeal was handed down on 7 April 2008, and the application for special leave to appeal to the High Court was refused on 26 August 2008. On 9 September 2008 Registrar Bradford set the defendants' motions down for hearing on 18 December 2008 and set a timetable for the filing of written submissions. Earlier, on 8 April 2008, Deputy Registrar Haggart made orders by consent for the filing of any further evidence on which the parties wished to rely. 24 The plaintiff filed no further evidence. However, on 26 November 2008 his solicitor filed an application, supported by an affidavit sworn the previous day, for the orders of Registrar Bradford to be set aside and for the hearing of the motions to be adjourned until March 2009. On 4 December 2008 that application was refused by Rothman J, although his Honour observed that the judge hearing the motions on 18 December might yet be persuaded to grant the adjournment. I was that judge. The application for adjournment was renewed, supported by an additional affidavit of the plaintiff's solicitor of 17 December, but I refused it. 25 The same solicitors continue to act for the plaintiff, but there has been a change of counsel representing him. Mr McQuillen, who appeared for him before me, had come into the matter only recently. In opposition to the defendants' motions, he relied upon the affidavits of his instructing solicitor of 25 November and 14 December 2008, even though they had been prepared primarily for the application for an adjournment. I also received in evidence a copy of an undated letter on the letterhead of Edsome, signed by Mr Grounds as managing director of that company, to which I shall refer shortly. Otherwise, Mr McQuillen took me to some of the material which had been before Harrison AsJ and the Court of Appeal. 26 In his affidavits, the solicitor noted that the Court's refusal of leave to proceed out of time would not apply to any injury the plaintiff might have sustained at work within the 3 year period prior to the filing of the statement of claim, that is, from 17 August 1998. He asserted that the plaintiff's doctors, apparently Professor Bryant and Dr Crawford, had been contacted to examine whether the plaintiff's exposure to various substances in that period might have caused or exacerbated his condition. He said that it appeared from "present inquiries" that the plaintiff suffered from work related asthma and that the aetiology of that condition needed to be examined by those experts. Indeed, he anticipated that the application for leave to proceed out of time might be renewed in the light of "new supporting evidence". 27 However, that line of inquiry had not progressed beyond contact with Professor Bryant and Dr Crawford, and I have not been supplied with a supplementary report from either of them. No doubt, this is due in large part to the plaintiff's inability to fund further investigation of his claim. The solicitor has deposed, and I accept, that lack of funding has bedevilled the prosecution of the claim from the outset. Whether that has been the primary reason for the delay in its progress is not a matter which I need to decide. 28 However that may be, I have no material from which I could determine the nature or availability of any new expert evidence. I might add that the amended statement of claim does not plead the aggravation or exacerbation of an existing condition and, as I have said, in the Court of Appeal Handley JA noted the absence of evidence that the plaintiff's condition had deteriorated after 1995. Moreover, it is clear that the plaintiff and his legal advisors were conscious at a much earlier stage of the proceedings of the problem posed by the 3 year limitation period, and they could not have been confident that an application for leave to proceed would be successful. There is no explanation why it was left so late to make these new inquiries. 29 The undated letter signed by Mr Grounds appears to be an employment reference for the plaintiff. It begins with the assertion that he "has been employed by Edsome Pty Ltd which is part of the Sea-Coatings Group of companies since 1 July 1987". Mr McQuillen relied upon it in response to Mr Grounds' evidence that no record of the plaintiff's employment prior to 1991 could be found. He argued that the letter could lead to "a further train of inquiry" about that issue. As I have said, this is a matter particularly affecting Sea Coatings (Australia) and Sea Coatings, by whom the plaintiff alleges he was employed between 1987 and 1990. 30 To this counsel for those two defendants, Mr Hooke, responded that, whatever might be meant by the expression "Sea-Coatings Group of companies", the letter does not assert that the plaintiff was employed by either of those companies. It refers in terms only to Edsome, and appears to have been signed by Mr Grounds in his capacity as managing director of that company. It is also to be noted, as Mr Hooke pointed out, that the letter is undated and its age is difficult to determine. The letterhead displays phone and fax numbers, each of them of seven digits. In oral argument, Mr Hooke said that his best recollection was that the transition to eight digit numbers took place in 1995. There is no evidence about that, and I would be reluctant to take judicial notice of it. In any event, the seven digit numbers might provide some enlightenment as to the age of the letterhead, but not necessarily of the letter itself. 31 The assertion in the letter that the plaintiff had been employed by Edsome since July 1987 is not consistent with the statement of claim, which alleges that he was employed by that company from 1990. That is not a matter of significance for present purposes. The fact remains that it is Mr Grounds' evidence that records prior to 1991 cannot be found and, in the absence of further evidence about it, it is not apparent to me how the letter could in any meaningful way open fresh lines of inquiry about the plaintiff's employment by Sea Coatings (Australia) or Sea Coatings. There remains a dearth of evidence about the matter and, if the case were to proceed to trial, the prejudice to those two defendants would not be remedied. 32 The submissions of Mr Hooke about the case generally were adopted and expanded upon by Ms Moisidis, counsel for Edsome, and Mr Catsanos, counsel for Solitaire. While Solitaire had not been a party to the proceedings before Harrison AsJ and the Court of Appeal, Mr Catsanos relied upon the assessment of the case by Handley JA. In particular, he referred to his Honour's finding that the plaintiff's illness had manifested itself in 1995 and did not deteriorate thereafter as a result of his employment. On the plaintiff's case, his employment with Solitaire did not commence until the middle of the following year. There was also evidence that the plaintiff acknowledged that his period of employment with that company did not contribute to his condition, but I do not find it necessary to resort to that evidence in arriving at my decision. 33 Mr Hooke relied upon the absence of evidence of the plaintiff's employment by Sea Coatings (Australia) and Sea Coatings, and counsel for all four defendants argued that, in the light of Handley JA's analysis of the evidence, the plaintiff's case on causation is untenable. Equally, they submitted that it was clear that the claim against each defendant is statute barred. Accordingly, it was put that the proceedings should be summarily dismissed. 34 For the plaintiff, Mr McQuillen pointed out that the Court of Appeal was considering the exercise of the discretion to extend the limitation period, and that to invoke that discretion the plaintiff bore an onus of establishing that he had a case fit to be tried. Where summary dismissal of a claim is sought, the defendant bears the burden of satisfying the court that it cannot succeed, applying the principles enunciated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 – 30. I am mindful of that distinction but, accepting the submissions of counsel for the defendants about the paucity of the evidence and the statutory bars, I am so satisfied. In coming to that conclusion I acknowledge the assistance of Handley JA's careful analysis, but it is also my own assessment of the evidence. 35 I have arrived at this decision only after anxious consideration. However, putting aside the limitation periods set by the relevant legislation, after more than 7 years the plaintiff has been unable to fashion an arguable case. In truth, what he asked me to do was to grant him an opportunity, at the eleventh hour, to see if he could make out a new case. Given the history of the matter, that course would not have served the interests of justice. Although directed to the discretion to grant the extension of a limitation period, some observations of Basten JA in Commonwealth of Australia v Shaw [2006] NSWCA 209, 66 NSWLR 325 are apt. At [40] his Honour said: One element of unfairness to a defendant is to have to expend resources on meeting a weak claim in circumstances where there is little likelihood of recouping any significant part of the costs involved. 36 The defendants' application for dismissal under r 12.7 for the plaintiff's failure to prosecute the proceedings with due despatch has merit, but I need not determine it. In my view, the appropriate disposition of these proceedings is to dismiss them under r 13.4, on the basis that I am satisfied that they cannot succeed. If necessary, I shall hear the parties on costs. ********** 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.