Under the Limitation Act 1969 (NSW), extension of limitation periods for latent disease claims requires establishing the applicant's actual subjective awareness of the nature or extent of injury, not what was reasonably foreseeable, with 'the extent' of injury assessed as at the date of application.
Later decisions that cite Harris v Commercial Minerals Ltd
Decisions cited by Harris v Commercial Minerals Ltd
Matter No S62 of 1995
DONNA THERESE HARRIS (AS ADMINISTRATRIX OF THE ESTATE OF DENIS PAUL HOLLINS) v
COMMERCIAL MINERALS LIMITED, LANDORA SECURITIES PTY
LIMITED (originally
NON-METALLICS LIMITED) AND AUQAL PTY LIMITED (originally QUALITY EARTHS PTY
LIMITED)
Matter No S63 of 1995
DONNA THERESE HARRIS (AS ADMINISTRATRIX OF THE ESTATE OF DENIS PAUL HOLLINS) v
AUQAL PTY LIMITED (originally QUALITY EARTHS PTY LIMITED,
COMMERCIAL MINERALS
LIMITED AND LANDORA SECURITIES PTY LIMITED (originally NON-METALLICS LIMITED)
F.C. 96/009
Number of pages - 17
Limitation of Actions - Damages
[1996] HCA 49; (1996) 186 CLR 1
HIGH COURT OF AUSTRALIA
DAWSON, TOOHEY, GAUDRON, McHUGH AND GUMMOW JJ
Harris v Commercial Minerals Limited and Ors
Harris v Auqal Pty Limited and Ors
Limitation of actions - Personal injury - Extension of limitation period -
Latent injury - Limitation Act 1969 (NSW) ss 60G, 60I.
Limitation of actions - Personal injury - Extension of limitation period -
"unaware of nature or extent of personal injury" - Subjective
awareness -
Reasonable foreseeability irrelevant - Time at which awareness determined -
Limitation Act 1969 (NSW) s 60I(1).
Damages - Personal injury - Deduction of future statutory benefits -
Financial source - Nature of benefit - Workers' Compensation (Dust Diseases)
Act 1942 (NSW) ss 6, 8.
Limitation Act 1969 (NSW) ss 60G(2), 60I(1).
Workers' Compensation (Dust Diseases) Act 1942 (NSW) ss 6, 8.
HEARING
CANBERRA, 17 August 1995ORDER
1. Appeals allowed.3. In lieu of the said orders of the New South Wales Court of Appeal, order that:
2. Set aside the orders of the New South Wales Court of Appeal.
(b) otherwise, the appeals to that Court by the respondents be dismissed;to assess the damages to be awarded against the second and third defendants before that Tribunal on the basis of the findings of and the evidence before Johns CCJ.
(c) the matter be remitted to the Dust Diseases Tribunal of New South Wales
DECISION
DAWSON, TOOHEY, GAUDRON, McHUGH AND GUMMOW JJ. Pursuant to the grant of special leave, Donna Therese Harris, as administratrix ad litem ("the administratrix"), appeals against an order of the New South Wales Court of Appeal setting aside a judgment for damages and an order extending the time for commencing the action for damages. The judgment and the order extending time were made by the Dust Diseases Tribunal of New South Wales in favour of Denis Paul Hollins ("the worker") who died before the hearing of this appeal.
2. The questions in the appeal are:
(1) whether the worker was entitled under subdiv 3 of Div 3of Pt 3 of the Limitation Act 1969 (NSW) ("the Act") to an extension of the six year statutory limitation period applicable to his action; and
(2) whether future benefits payable under the Workers'Compensation (Dust Diseases) Act 1942 (NSW) ("the Dust Diseases Act") are to be taken into account when awarding damages for future economic loss as the result of an injury that is also compensable under that legislation.
3. We would answer both questions, yes, allow the appeal, but remit the
matter to the Dust Diseases Tribunal for further hearing.
Factual background
4. In 1991, the worker brought an action for damages against three companies
claiming damages for negligence and breach of statutory
duty. His statement
of claim alleged that he suffered from silicosis as the result of his exposure
to dust during the course of
his employment.
5. The first company, Landora Securities Pty Limited ("Landora"), employed
the worker from 25 October 1953 to 31 March 1955. Landora
again employed the
worker from 8 July 1957 to 12 July 1962. From 1 July 1969 until 31 March
1973, the second company, Auqal Pty
Limited ("Auqal"), employed the worker
after purchasing the business of Landora. From 31 March 1973 until 15 August
1986, the third
company, Commercial Minerals Limited ("Commercial"), employed
the worker after purchasing the business of Auqal.
6. All three employers were engaged in processing raw minerals for industrial
uses, a process which exposed the worker to considerable
quantities of silica
dust. As a result, he contracted silicosis which is a disease that "involves
the fibrosis of many areas within
the lung, around the small bronchioles, they
are the small breathing tubes in the lung". The disease is idiosyncratic in
the sense
that its precise course is not predictable. In most cases of
silicosis, isolated nodules of fibrosis appear in the lung. At some
point,
however, the worker developed a progressive massive fibrosis which "is a
coalescence of the rounded deposits". A progressive
massive fibrosis is not a
necessary consequence of silicosis.
7. The worker was examined by the Dust Diseases Board in 1971 after he learnt
that his father, who had been engaged in similar work,
had silicosis. The
Board informed the worker that he had silicosis and that he had a 10 per cent
disability.
8. In 1972, the worker became employed as a truck driver with Auqal in order
to minimise his exposure to dust. Nevertheless, his
new work still exposed
him to dust. His condition deteriorated. In 1978, the Board assessed his
disability at 40 per cent, in 1982
at 50 per cent, in 1985 at 60 per cent, at
the commencement of 1986 at 70 per cent and later that year at 100 per cent.
9. When the worker commenced his action on 25 March 1991, his right of action
against Landora and Auqal was statute barred. So was
his right of action
against Commercial, except for causes of action that had accrued during the
last seventeen months of his employment
from 25 March 1985 to 15 August 1986.
However, s 60G together with Sched 5 to the Act provides for the extension of
limitation periods
in actions for personal injury accruing before 1 September
1990.
The statutory framework
10. Section 60G states:
"(1) This section applies to a cause of action that accrueson or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.
(2) If an application for an order under this section ismade to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines."
11. In terms, s 60G is limited to actions arising after 1 September 1990, but
Sched 5, cl 4 of the Act applies s 60G to a cause
of action, excluding an
action arising under the Compensation to Relatives Act 1897 (NSW), that
accrued before 1 September 1990. Clause 4 relevantly provides:
"(4) The court may make an order under section 60G or 60H,in relation to a cause of action referred to in this clause, within:
(a) the period of 3 years referred to in section 60I; or
(b) the period of 3 years commencing on 1 September 1990."
12. Section 60I provides, so far as is relevant:
"(1) A court may not make an order under section 60G or 60Hunless it is satisfied that:
(a) the plaintiff:suffered; or
(i) did not know that personal injury had been suffered; or
(ii) was unaware of the nature or extent of personal injury
(iii) was unaware of the connection between the personalinjury and the defendant's act or omission,
at the expiration of the relevant limitation period or at atime before that expiration when proceedings might reasonably have been instituted; and
(b) the application is made within three years after theplaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)-(iii)."
13. In the Dust Diseases Tribunal, Johns CCJ ordered that the limitation
periods against each defendant be extended. His Honour
held 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". He noted that the defendants
had not offered any evidence of any disadvantage or prejudice that they would
suffer from an
extension of the limitation period. Johns CCJ found that each
of them was in breach of the duty of care it owed to the worker.
He entered a
single judgment against the defendants for $502,272.
14. The employers appealed to the New South Wales Court of Appeal. Handley
JA, with whose judgment Meagher and Sheller JJA agreed,
applied s 60F of the
Act as the relevant provision. In doing so, his Honour followed the decision
of that Court in Electricity Commission
of New South Wales v Plumb (1), the
reasoning of which was subsequently overruled by this Court in Dedousis v
Water Board (2). Handley
JA held that the worker needed to prove that he
"'was unaware of the fact, nature, extent or cause of the injury, disease or
impairment
at the relevant time' (s 60F), 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' (s
60I(1)(a))". His Honour held that, at the expiration of the
limitation period
against Landora in July 1968, the worker was not aware of the nature or extent
of his injury. Consequently, the
Tribunal had power to extend the limitation
period against that company. However, his Honour held that the worker was
aware of the
nature and extent of his injury when the limitation period
against Auqal expired on 1 April 1979. Handley JA said:
"I can only conclude that by 1979 the worker knew that hehad silicosis, the general nature of this disease, its extent as determined by the Board in 1978, and its cause ... he knew that there was 'a real chance' or 'a real risk' that his condition would continue to worsen ... 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 1979the worker's knowledge of the extent of his then disability was for all practical purposes complete. The further deterioration that has occurred since ... was reasonably foreseeable and the worker was aware of this risk or chance."
15. Handley JA also held that the worker was aware of the extent of his
injury between 16 August 1986 and 24 March 1991 and that
there was no power to
extend the limitation period in respect of statute-barred causes of action
against Commercial.
16. Finally, Handley JA held that Johns CCJ had erred in not deducting the
benefit of future payments under the Dust Diseases Act
because "compensation
under the Act is a matter of legal entitlement and not administrative
discretion".
17. The New South Wales Court of Appeal ordered a new trial of the action
against Landora generally and against Commercial with
respect to any causes of
action that accrued after 25 March 1985.
QUESTION 1
Extension of the limitation period
18. Dedousis decided that, in cases coming within Sched 5 to the Act, the
effect of cl 4(4) of that Schedule is that an applicant
must satisfy the
requirements of s 60I(1) and not s 60F of the Act as the New South Wales Court
of Appeal held in this case. In Dedousis,
this Court said (3):
"This effectively results in cl 4(4)(b) inserting analternative time limit in s 60I(1)(b) where the court is considering an application for extension in relation to a cause of action that accrued before 1 September 1990. The result is that the plaintiff must satisfy the requirements of s 60I(1)(a) and then satisfy the court that his application for an extension was brought within the time limit specified in either cl 4(4)(a) or cl 4(4)(b)."
19. If s 60I(1) is satisfied, an applicant must then satisfy the court that
it is "just and reasonable" to extend the limitation
period (4).
20. Consequently, if a cause of action accrued before 1 September 1990 and an
applicant makes an application for an order to extend
the limitation period
before 1 September 1993, s 60I(1)(b) is satisfied. In the present case, the
worker made his application on
25 March 1991. Accordingly, he satisfied par
(b) of s 60I(1). The critical question, therefore, is whether he satisfied
the provisions
of par (a) of s 60I(1).
21. Having regard to the diagnosis of silicosis in 1971 by the Dust Diseases
Board, it is clear that the worker failed to establish
that he "did not know
that personal injury had been suffered" within the meaning of sub-s (1)(a)(i)
of s 60I. Accordingly, his application
for an extension could only succeed by
showing that he was unaware of the nature or extent of the injury or unaware
of the connection
between the injury and his employers' acts or omissions.
The worker did not rely on the second alternative.
Section 60I(1)(a)(ii) - "the nature or extent of personal injury"
22. Johns CCJ held that it was not until some time after 1986 that the worker
became aware of the "nature or extent" of his injury.
He accepted the worker's
oral evidence "that he thought his illness or disease would remain static and
that it would not necessarily
deteriorate further". His Honour said that he
thought "that the adoption by the (worker) of that position in relation to his
particular
disease was, in the circumstances, not unreasonable". The learned
judge concluded "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".
23. However, in the New South Wales Court of Appeal, Handley JA found that
the worker's awareness of the nature or extent of his
disease was "for all
practical purposes complete at all times between 2 April 1979 and 15 August
1986". His Honour effectively applied
an objective test in determining the
issue. He said:
"In these circumstances it seems to me that by 1 April 1979the 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 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 s 60F."
The subjective nature of the issue
24. With great respect to his Honour, however, reasonable foreseeability has
no part to play in determining the issue posed by s
60I(1)(a)(ii). To satisfy
s 60I(1)(a), an applicant must prove that he or she was "unaware of the nature
or extent of personal injury"
(5) or "unaware of the connection between the
personal injury and the defendant's act or omission" (6) at the relevant time.
To look
to anything other than the applicant's actual awareness of the matters
referred to in sub-pars (ii) and (iii) would be to read into
s 60I(1)(a) a
doctrine of constructive notice that is not justified by the language of the
provision (7). What this Court said in
Deming No 456 Pty Ltd v Brisbane Unit
Development Corporation Pty Ltd (8) about the meaning of the words "first
becomes aware of"
in a Queensland statute is equally applicable to the term
"unaware" in s 60I(1)(a):
"(T)he very words 'becomes aware' strongly indicate that thestatute is looking to the purchaser's actual knowledge of the failure which, by description, is a failure to comply with the statutory provisions. We conclude that the words 'becomes aware of the failure' in s 49(5) involve not only knowledge that a statement containing the specified material has not been given but an awareness that the fact that such a statement was not given constitutes a 'failure' to do something which the Act says should be done."
25. Support for a subjective construction of s 60I(1)(a)(ii) and (iii) can be
found in the words of s 60I(1) themselves. The words
"or ought to have become
aware" appear in sub-s (1)(b) but not in sub-s (1)(a). This is a strong
indication that neither reasonableness
nor constructive knowledge is an
element of sub-s (1)(a) (9).
The extent of the injury
26. While s 60I(1)(a)(ii) makes it clear that an applicant must prove that he
or she was unaware of the nature or extent of the
personal injury suffered "at
the expiration of the relevant limitation period" or at the earlier time
mentioned, it is unclear as
to when the "nature or extent of the injury" is to
be determined. Does the paragraph refer to the nature or extent of the injury
at the time when the limitation or earlier period expired? Or does it refer
to the nature or extent of the injury at the time of
the application or some
other time? If the first construction is correct, the applicant will have to
prove the nature or extent
of the injury at the expiration of the limitation
period and that he or she was unaware of either its nature or its extent at
that
time. Any subsequent consequences or developments of the injury will be
irrelevant. On the other hand, if the second construction
is correct, an
applicant will have to prove the nature or extent of the injury at the time of
the application or other time and then
show that at the expiration of the
limitation period he or she was unaware of the nature or extent of the injury
as proved at the
time of the application or other time.
27. The worker's case in this Court and the judgments in the Dust Diseases
Tribunal and the New South Wales Court of Appeal proceed
on the basis that the
second construction is the correct one. But the correctness of that view is
far from clear. In its terms,
par (a) simply requires proof that the
applicant was unaware of the nature or extent of the injury at the expiration
of the limitation
or earlier period. This seems to indicate that the course
of an injury after the expiration of the limitation period is not an issue
under s 60I(1)(a)(ii), although it could no doubt throw light on what was the
nature or extent of the injury at the expiration of
the limitation or earlier
period.
28. Furthermore, it seems unlikely that Parliament would have intended that
par (a) should raise an issue as to whether an applicant
was aware of a
consequence of an injury which at the expiration of the limitation period did
not exist, but which developed later.
In the present case, for example, the
worker asserted that he suffered from impotence and depression as a result of
his silicosis.
He claimed that these conditions developed well after all the
limitation periods had expired. If the impotence and depression are
part of
"the extent" of his injury for the purpose of par (a), it would have required
considerable foresight on his part to have
been aware of them - unless he had
knowledge that impotence and depression are the natural consequences of
silicosis.
29. The textual and policy considerations in favour of the first construction
are strong. But the practice of the courts in New
South Wales and the Federal
Court is to apply the second construction. Those courts regularly take
account of consequences that
manifested themselves long after the expiration
of the limitation period (10). This seems the better view of s 60I(1)(a)(ii).
The
"extent" of an injury must include all its consequences. It is not an
unnatural reading of s 60I(1)(a)(ii) to hold that what the
court must consider
is the total extent of the applicant's injury in determining whether, at the
expiration of the limitation or
earlier period, he or she was aware of the
extent of the injury. Unless that construction is adopted, the Act will fail
to provide
for the very sort of case for which the legislation is designed to
provide a remedy. That is to say, the case where the most serious
consequences
of an injury only arise after the expiration of the limitation period.
30. Thus in Commonwealth v Dinnison (11), although the applicant was aware
during the limitation period that he had an anxiety state,
it was only after
the expiration of that period that he became aware that he had a psychiatric
illness. Because of that fact, the
Full Court of the Federal Court held that
he was not aware of the extent of his injury. Similarly in F J Walker Ltd v
Webber (12),
the New South Wales Court of Appeal held that, although the
applicant knew that he had a disc lesion, he was unaware of "the extent"
of
his injury because "he did not know it would or could lead to a surgical
fusion or unfitness for work" (13).
31. The better view of s 60I(1)(a)(ii) is that "the extent" of the injury is
to be determined as at the date of the application
and not at the expiration
of the limitation or earlier period. When the extent is so determined, the
applicant must prove that,
at the expiration of the limitation or earlier
period, he or she was unaware that the injury was so extensive. As Clarke JA
said
in CRA Limited v G Martignago (14):
"The sub-section is concerned to inquire whether, in a realsense, the applicant knows the nature of his or her injury and its broad extent. Having regard to the policy of the legislation it is apparent that it is designed to afford relief to an applicant who is either unaware that he or she has suffered an injury or is aware that he or she has suffered an injury, possibly with continuing consequences, but is unaware of its complications, implications or potentially serious consequences. By way of example, an applicant who was aware that a blow on the arm had led to continuing but moderate pain but who was unaware until years later that there were serious complications flowing from that blow (eg osteomyelitis) would remain unaware of the extent of the injury until the complications and consequences were drawn to his or her attention."
"The range of factual situations which may be encountered bythe courts is so diverse that it would be overly optimistic and unwise, in my view, to attempt to provide a general formula by which the relevant inquiry may be answered. Rather courts should be concerned to analyse the facts in each case in order to determine whether the applicant knew the nature of the injury and, if so, in a broad way the extent of the injury, the nature of which is known. Practically speaking the resolution of the inquiry whether the applicant was unaware of the nature of the injury should throw considerable light on the task of resolving the second inquiry as to the extent of the injury. For instance, a finding that the applicant is aware that he or she has suffered a serious neck injury involving damage to the spine will, in general, provide an answer to the inquiries as to both nature and extent. In this context I would emphasise that the court is concerned not with the technical name or description of an injury but its effect, actual and potential, upon the applicant."
32. Expectation as to the likely consequences of an injury is clearly an
element in determining an applicant's awareness of the
extent of the injury.
When the relevant injury is a disease, the expectation of the applicant at the
expiration of the limitation
period as to the likely course of the disease
will usually be determinative of whether he or she was aware of "the extent"
of the
disease for the purpose of s 60I(1)(a)(ii) of the Act. In Australian
Iron and Steel Ltd v Connell (16) Dixon CJ said that a disease
was "a
pathological condition importing pathological and physiological incidents and
consequences and liable to follow a course or
some or one of courses more or
less known or expected". But it is the applicant's expectation as to the
course of the disease, not
that of the reasonable person, that is relevant.
Thus, if an applicant knew at the expiration of the relevant period that he or
she
suffered from a diseased spine, it does not necessarily follow that the
person was aware of the "extent of personal injury" if eventually
the disease
caused the vertebrae to collapse. Whether the applicant was aware of "the
extent" of the injury would depend on whether
that person was aware that there
was a real chance that the vertebrae would collapse as the result of the
disease.
33. In Ditchburn v Seltsam Ltd (17) the New South Wales Court of Appeal held
that early signs and symptoms may not constitute sufficient
indication of the
"nature and extent" of personal injury. In F J Walker Ltd v Webber (18) the
same Court also stated that:
"One can know 'the nature and extent' of one's injury evenif one is ignorant of the final form which it will take. Few plaintiffs ever know this, even at the time of trial, and it would be difficult to attribute to Parliament an intention that potential plaintiffs may completely disregard limitation periods merely because they are unable to predict their final state."
34. If an applicant can satisfy the requirements of s 60I(1)(a) merely by
proving a lack of knowledge at the expiration of the limitation
period of all
the later consequences of the injury, it will no doubt make the passage
through the gateway in s 60I(1)(a)(ii) much
easier than would be the case if
"the extent" of an injury was determined by an objective test of reasonable
foreseeability. But
that does not necessarily mean that the number of
successful applications will increase unduly. After the applicant gets
through
the s 60I(1) gateway, he or she must satisfy the court that it is
"just and reasonable" (20) to grant an extension of the limitation
period.
Under that provision, questions of what the applicant knew or ought to have
known will often play a critical role in determining
whether it is just and
reasonable to extend the limitation period. It may not be just and
reasonable, for example, to extend a limitation
period if before the
expiration of the period the applicant knew or ought to have expected most of
the consequences of an injury.
Unawareness of all the consequences may get the
applicant through the s 60I(1)(a)(ii) gateway, but it will not guarantee a
passage
through s 60G.
The worker was unaware of the extent of his silicosis
35. The question then is whether Johns CCJ was correct in finding that the
worker was in fact unaware of the nature or extent "of
(the) personal injury
suffered". The expiration dates of the causes of action against each employer
were:
Landora 12 July 1968The worker's awareness of the nature and extent of his injury at each of those dates was the critical issue.
Auqal 31 March 1979
Commercial 15 August 1992.
36. Determining his awareness of "the extent" of his silicosis at the
expiration of each of the limitation periods, however, is
not easy. To a
large extent this is the result of the failure of all parties to adduce or to
attempt to adduce precise evidence
concerning the worker's knowledge of the
extent of his silicosis. His awareness of "the extent" of his silicosis at
the expiration
of the limitation periods applying to each employer was never
explored. All parties were content to rely on general questions such
as "Were
you aware in the 1980s as to what to expect in respect of deterioration of
your condition, the rate of deterioration?" to
which the worker replied "I was
unaware." He was not asked any questions as to what his doctors had told him
as to the likely effects
of his disease. Moreover, although his progressive
massive fibrosis was diagnosed in 1982, he was not asked when, if at all, he
became aware of it.
37. Despite the generality of the worker's evidence, no proper basis exists
for rejecting the finding of Johns CCJ that the worker
believed that his
condition "would remain static and that it would not necessarily deteriorate
further". It is true that the worker
knew in 1978 that his disability had
increased from 10 per cent in 1971 to 40 per cent in 1978 and that by 1982 he
knew that it had
increased to 50 per cent, and by 1985 to 60 per cent.
Moreover, at the commencement of 1986 he knew that it had increased to 70 per
cent and later that year he was assessed as being totally unfit for work. But
this knowledge is not necessarily inconsistent with
the worker being unaware
in 1979 or 1986 that his condition would deteriorate to the extent that it had
at the time of the application.
This is particularly so in relation to the
expiration of the limitation period against Auqal in 1979.
38. Johns CCJ was entitled to be sceptical of the worker's evidence that he
believed that his condition would not necessarily deteriorate
further. The
objective facts indicated that he knew that his condition was getting worse
each year and that by 1979 he ought to
have known that there was a very strong
probability that his disease would permanently disable him. He also told a
doctor in 1991
that his shortness of breath had become apparent in 1975 and
had been "steadily progressive ever since". He also knew from the Dust
Diseases Board assessments that his disability was rapidly becoming worse.
But Johns CCJ accepted his evidence. Significantly, there
was no evidence as
to what his doctors told him about the prognosis of his disease. In those
circumstances, it is impossible to set
aside the trial judge's findings based
upon the worker's evidence that until about 1986 he believed that his
condition "would remain
static and that it would not necessarily deteriorate
further". Nor is it possible to set aside the finding that the worker was
unaware
of the extent of his injury at the expiration of the various
limitation periods.
39. The medical evidence established that silicosis is an idiosyncratic
disease affecting individuals differently in each case,
thereby making
prognosis difficult. The worker stated at the trial that he was unaware
during the 1970s and 1980s of the rate at
which his condition would
deteriorate and that he was unaware at what rate his health would continue to
decline in the future. He
said that it was not until late 1985 that he began
to realise the severity of his injury, although he conceded that by 1978 he
was
aware that his "condition carried with it a real chance that it would
continue to worsen". No doubt it was this evidence that the
trial judge had
in mind when he found that it was not "at least until some time after 1986"
that the appellant became aware of the
nature or extent of his injury.
Importantly, however, it was not until about 1987 that he began to demonstrate
symptoms of depression
and not until mid-1990 that he began to suffer from
impotence.
40. The extent of the worker's condition had to be determined as at the date
of the application. By that time the worker was not
only fully incapacitated
for work, he was also suffering from depression and impotence and his life
expectancy was known to have
been shortened. His depression and impotence
were obviously unknown to him at the expiration of each limitation period.
Consequently,
those two matters by themselves entitled the learned judge to
find that at the end of each period the worker was unaware of the extent
of
his injury as it existed at the date of the application.
41. Subject to the operation of s 60G, he was entitled to an extension of
each limitation period because he was unaware of the extent
of his injury at
the expiration of that period.
Section 60G
42. Johns CCJ found that it was "just and reasonable" (21) to extend the
limitation periods. No attack has been made on that exercise
of discretion.
QUESTION 2
Effect of Future Benefits Payable Under the Dust Diseases Act
43. In assessing damages, Johns CCJ deducted cash benefits made under the
Dust Diseases Act but held that future benefits were not
to be deducted from
the worker's award of damages. The New South Wales Court of Appeal, however,
held that an earlier decision of
that Court - Adams v Ascot Iron Foundry Pty
Ltd (22) - required a deduction for future benefits under the Dust Diseases
Act although
the Act had since been amended. In our opinion, the New South
Wales Court of Appeal was correct in holding that the present value
of the
future benefits payable under the Dust Diseases Act was deductible from the
worker's damages.
44. Both the administratrix and the employers agreed that whether these
benefits were deductible was to be resolved by applying
the principles
enunciated by this Court in Manser v Spry (23). In Manser, the Court held
that, where legislation provides for payments
in respect of an injury and is
silent as to whether those payments are deductible from any subsequent award
of damages in respect
of that injury, any one of three matters may indicate
whether the legislature intended that a deduction from the damages should be
made. The matters are: (1) the financial source of the benefit; (2) the
presence of a provision which requires the repayment of
a statutory benefit if
damages are awarded; and (3) the nature of the benefit (24). The second of
these three matters is absent
from the Dust Diseases Act, so we turn to the
other two.
The source of the benefit
45. If a legislative scheme provides for employees or for employers and
employees to make contributions to fund benefits payable
in respect of
personal injury, there is a strong ground for concluding that the legislation
did not intend that the benefit should
be deductible from an award of damages
for that injury. Such a scheme is to be likened to a personal injury
insurance policy, the
proceeds of which are not ordinarily deductible from an
award of damages for an injury covered by the policy (25). But the scheme
set
up by the Dust Diseases Act is not of that kind. Employees make no
contributions to the fund from which benefits are payable.
46. The benefits provided by the Dust Diseases Act derive from the Workers'
Compensation (Dust Diseases) Fund which is principally
employer funded
although the legislation provides that the fund may also be financed by "any
moneys provided by Parliament for the
purposes of the Fund" (26). Employers
falling within the scope of the legislation are obliged to pay premiums to
their insurers
who are then required to make contributions to the Work Cover
Authority which, in turn, makes payments to the Dust Diseases Board.
Those
payments become part of the Workers' Compensation (Dust Diseases) Fund (27).
The scheme is different, therefore, from a statutory
contributory pension
scheme, funded by both employers and employees, the benefits of which are to
be enjoyed by an injured person
without reduction of his or her damages (28).
Here employers alone are the principal contributors to the fund that provides
the benefits.
It is difficult to conclude that Parliament intended that the
employers should fund benefits paid for injuries suffered in the course
of
employment and at the same time have to make a payment by way of damages for
those injuries. The financial source of the benefits
therefore indicates that
the benefits should be deductible from awards of damages in respect of
injuries giving rise to the benefits.
The nature of the benefit
47. In Redding v Lee (29), in a passage cited with approval in Manser (30),
Gibbs CJ said:
"The conclusion that the benefit is intended for theplaintiff personally and not in reduction of the damages may more readily be drawn when it is seen that the receipt of the benefit is not dependent on the loss of wages or earning capacity ... for which the plaintiff claims damages (cf Parry v Cleaver (31) per Lord Wilberforce) and is not intended to replace the lost wages or remedy the loss of earning capacity."
48. Consequently, the common law courts should regard benefits under the Dust
Diseases Act as compensation for injury and as a substitute
or partial
substitute for wages lost. Because the fundamental rule in an action for
damages for tort is that a plaintiff cannot
recover an amount more than he or
she has lost (36), payments under that Act are deductible from any award of
damages payable in
respect of injuries that give rise to those benefits.
Benefits receivable under the Dust Diseases Act are therefore deductible from
any common law damages otherwise payable by an employer for injuries
compensable under that Act.
Single verdict
49. The administratrix did not dispute that the New South Wales Court of
Appeal was correct in holding that a single judgment should
not have been
entered against the three defendants. Their liability has to be apportioned.
Conclusion
50. The appeals should be allowed. The appeals to the New South Wales Court
of Appeal against the assessment of damages should
be allowed. Otherwise the
appeals to that Court by Auqal and Commercial should be dismissed. The matter
should be remitted to the
Dust Diseases Tribunal to assess the damages to be
awarded against the second and third defendants (Auqal and Commercial
respectively)
on the basis of the findings of and the evidence before Johns
CCJ. The administratrix did not appeal to this Court against the order
of a
new trial against Landora.
1 (1992) 27 NSWLR 364.
2 [1994] HCA 57; (1994) 181 CLR 171.
3 Dedousis (1994) 181 CLR 171 at 179.
4 s 60G; Dedousis [1994] HCA 57; (1994) 181 CLR 171 at 177.
5 s 60I(1)(a)(ii).
6 s 60I(1)(a)(iii).
7 CRA Limited v G Martignago unreported, New South Wales Court of Appeal, 31
January 1996 at 7-8 per Clarke JA.
8 [1983] HCA 44; (1983) 155 CLR 129 at 151. For further judicial support for such a
construction see also Ditchburn v Seltsam Ltd
(1989) 17 NSWLR
697 at 707 per
Mahoney JA; Commonwealth v Dinnison (1995) 56 FCR 389 at 403-404.
9 cf CRA Limited unreported, New South Wales Court of Appeal, 31 January 1996
at 8 per Clarke JA.
10 See, for example, CRA Limited unreported, New South Wales Court of Appeal,
31 January 1996; Bulley v Commonwealth of Australia
unreported, New South
Wales Court of Appeal, 31 January 1996; Dinnison (1995) 56 FCR 389.
11 (1995) 56 FCR 389.
12 Unreported, 16 November 1989. This was a decision on the meaning of "the
nature and extent of the personal injury" in s 57(1)(b)
of the Act.
13 F J Walker Ltd unreported, 16 November 1989 at 5.
14 Unreported, New South Wales Court of Appeal, 31 January 1996 at 11.
15 Unreported, New South Wales Court of Appeal, 31 January 1996 at 11-12.
16 [1959] HCA 54; (1959) 102 CLR 522 at 528.
17 (1989) 17 NSWLR 697 at 704 per Kirby P, with whom Hope A-JA agreed. This
was reaffirmed by the New South Wales Court of Appeal
in F J Walker Ltd
unreported, 16 November 1989.
18 Unreported, New South Wales Court of Appeal, 16 November 1989 at 4.
19 CRA Limited unreported, New South Wales Court of Appeal, 31 January 1996 at
12 per Clarke JA.
20 s 60G.
21 s 60G.
22 (1968) 72 SR(NSW) 120.
23 [1994] HCA 50; (1994) 181 CLR 428 at 434-437.
24 See Manser (1994) 181 CLR 428 at 436.
25 Manser (1994) 181 CLR 428 at 436.
26 s 6(1)(c) of the Dust Diseases Act.
27 See s 6 of the Dust Diseases Act.
28 See, for example, Parry v Cleaver [1969] UKHL 2; (1970) AC 1; Smoker v London Fire
Authority (1991) 2 AC 502; Redding v Lee [1983]
HCA 16; (1983) 151 CLR 117
at 138.
29 [1983] HCA 16; (1983) 151 CLR 117 at 125.
30 [1994] HCA 50; (1994) 181 CLR 428 at 437.
31 (1970) AC 1 at 42.
32 s 8(1) of the Dust Diseases Act.
33 See s 1 of the Dust Diseases Act.
34 s 8(2) of the Dust Diseases Act.
35 Redding (1983) 151 CLR 117 at 125.
36 Parry [1969] UKHL 2; (1970) AC 1 at 13; Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 at 63; Manser
(1994)
181 CLR 428 at 434-435.