I. INTRODUCTION
3.1 The operation of the current legislation has been called into question for a number of reasons and on a number of levels. Arguments of principle have been directed against the concept of fixed limitation periods and their effect on plaintiffs who could not reasonably be expected to commence their actions within the relevant period. The hardship experienced by such plaintiffs cannot be justified by reference to the desire for prevention of delay. Only the public interest in an early trial and the defendant’s interest in certainty and finality of liability can justify the limitation on the plaintiff’s rights. It is no longer accepted that certainty and finality should be pursued independently of the other goals of limitations statutes.1 Attempts have been made to accommodate all these interests in limitations schemes.
3.2 Some of these attempts have been inadequate in addressing substantial problems which cannot be solved by a fixed limitation period. Furthermore, practical arguments have been levelled against some legislative changes. Recent statutory formulations have been seen as unnecessarily complex and ambiguous and in need of reformulation.
3.3 In addition to those cases in which it could be said that there has been an unavoidable or excusable failure to commence an action within the limitation period there are some cases which defy generalisation, such as Bergfels. There, the failure to commence an action within the limitation period was due to an unusual combination of factors and circumstances peculiar to that plaintiff and which belied any impropriety or lack of diligence. Other cases involve ignorance of the injury or its causation, ignorance of a right to sue for the injury, or a combination of two or more of these.
II. ARGUMENTS OF PRINCIPLE
A. The Bergfels Case
3.4 A brief account of this case was given in Chapter I (paras 1.2-1.6) in describing the background to this reference. We now give a more detailed account in order to illustrate how circumstances may combine to prevent a plaintiff, however diligent, from commencing proceedings within a fixed limitation period.
3.5 Mr Bergfels had suffered from coronary artery disease (arteriosclerosis) since 1963. He was employed as a mechanic by the Port Stephens Shire Council from 2 September 1964 until the time of his death, at work, on 10 November 1966. The Coroner found that death was due to natural causes-a coronary occlusion and dispensed with an inquest.
3.6 Mrs Bergfels originally pursued her remedy through the workers’ compensation system alleging that Mr Bergfels’ heart condition was aggravated by the nature of his work. Mr Bergfels was engaged in the conversion of disused tanks into water tanks for bushfire fighting trucks. This involved the repair and modification of the tanks which required welding to be performed inside the tanks. Entry into the tanks was secured by crawling through openings cut out of the tanks. The tanks’ surfaces were rustproofed by the application of an epoxyresin and rust proofing primer. Mrs Bergfels alleged that the emission of low level toxic fumes during welding inside the tanks aggravated her husband’s heart condition and precipitated the coronary occlusion which caused his death. The work area was inadequately ventilated and respiratory equipment had not been supplied.
3.7 Mrs Bergfels encountered considerable evidentlary problems in establishing the level of emission, the degree of exposure and the causal nexus between exposure and death. The Division of Occupational Health and Safety of the Department of Health, for example, reported on 13 March 1968 that Mr Bergfels’ maximum exposure inside the tank at the time was ten minutes. Mrs Bergfels, in contrast, asserted that it was from four to five hours.
3.8 On 23 June 1971 Gibson J found against Mrs Bergfels in her workers’ compensation claim. Shortly afterwards Mrs Bergfels received information which suggested that her husband’s death was due to an electric shock sustained immediately before his death. Because of his heart condition the shock need not have been considerable to be fatal and would not necessarily have marked the body.
3.9 On the basis of this possibility Mrs Bergfels requested an inquest into her husband’s death. On 26 January 1972 this was refused. Mrs Bergfels then contacted the Department of Labour and Industry and a re-enactment of the circumstances of death was arranged for 30 May 1972. The Department subsequently reported that the possibility of electrocution was not a feasible one. An independent electrician also present at the re-enactment, however, reported that there was a possibility of electrocution.
3.10 Mrs Bergfels sought leave to re-open her workers’ compensation claim to introduce new evidence of electrocution. This evidence had allegedly been concealed by the Council and its employees. Legal Aid was granted in respect of the application which was nevertheless not made for over 18 months. Leave to re-open was ultimately refused on 18 July 1975.
3.11 Mrs Bergfels again applied for an inquest which was ordered on 7 September 1979. The inquest lasted from 10 December 1980 to 27 July 1981. The Coroner found that the cause of death could not be determined on the basis of available evidence and an open verdict was returned.
3.12 By this stage Mrs Bergfels believed that she had a good cause of action against the Council and this was confirmed by legal advice obtained. Mrs Bergfels prepared to commence an action under s3 of the Compensation to Relatives Act 1897 alleging that her husband’s death had been caused by an electric shock sustained when he came into contact with an electrical fault In the equipment with which he had been working. The defendant conceded, for the purposes of the proceedings before the court, that there was evidence that Mr Bergfels’ death may have been caused by negligence for which the council was responsible. Such actions are governed by a six year limitation period, running from the date of death.2 As her husband had died in 1966, Mrs Bergfels was considerably out of time and the defendant was able to rely on the expiry of the limitation period as an absolute defence to Mrs Bergfels’ action.3 This was notwithstanding the absence of any lack of diligence and indeed the “remarkable tenacity”4 exhibited by Mrs Bergfels.
B. Latent Injury and Disease
3.13 Attention was drawn in Chapter I (paras 1. 1 7,1.18) to cases of latent injury or disease where diagnosis, using the currently available methods, may not be possible until many years, or even generations after the date of injury. The injury or disease may not manifest Itself in physical symptoms, or even at the pathological level until a latency period has elapsed. Where this latency period is longer than the relevant limitation period, the plaintiff’s action may be barred before the plaintiff discovers or could reasonably be expected to discover the injury or disease.
3.14 While the problem of latency generally arises in relation to diseases which are the accumulated effect of prolonged exposure to some injurious substance, it can also arise in cases of straightforward accident trauma. There is the possibility that an accident, the occurrence of which is immediately obvious, may have serious delayed consequences. Intra cranial tumours or epilepsy, for example, may occur many years after a trivial accident and decompression sickness may develop into serious joint disease after a long latency period.5 But such cases of latent injury are the exception and the inappropriateness of fixed limitation periods to the problems raised by latent disease is to a certain extent a result of the fact that existing causes of action and limitation principles were developed in the context of accidental or traumatic injury. The conceptual distinction between injury and disease means that the latter may be inadequately dealt with by existing systems.
3.15 If we consider asbestos-related diseases, for example, injury in the sense of tissue damage occurs shortly after the inhalation of asbestos fibres. The victim will not however experience any impairment of lung function or any physical symptoms for between ten and thirty years after exposure. Futhermore the time of manifestation after exposure cannot be predicted. It will depend on the person’s tissue response, his or her immune system and on the theory of disease adopted.6 A physician, for example, will not view as a disease that which has not manifested itself in physical symptoms. An histologist, however, would regard any deterioration of tissue as a disease, whether or not bodily functions were impaired.7 Where cancer is found to be present it may not be possible to ascertain the exact date of the development of the first cancer cell and even if it were this may not necessarily be regarded as the date of the disease’s inception.8
3.16 The traditional common law system of compensation for accidental injury is said to be concerned with the sporadic and isolated.9 It cannot therefore easily accommodate the concept of diseases which “manifest themselves over time” and whose origins cannot be pinpointed with accuracy.10 The running of a fixed limitation period from the date of injury is unsuited to latent disease both because the precise date of injury cannot be ascertained, even in retrospect, and in any case the disease may not manifest itself until long after the limitation period has expired.
C. Ignorance of Causation
3.17 Plaintiffs may also encounter difficulties in determining the cause of their injury or disease. There may be “no sufficiently widespread knowledge of the causal connection”11 between an injury and a particular act or omission of another person. A person may thus not attribute his or her injury or disease to a particular wrongdoing. The relevant limitation period may expire before the existence of the causal link is scientifically recognised. The gradual discovery of the hazardous effects of exposure to asbestos, for example, has been well documented in United States’ case law. The first reported cases of asbestos related disease occurred in 1906 and 1907 and the first verifiable death from asbestos exposure occurred in 1924.12 However it was not until 1935 that a report was published linking exposure to asbestos with the development of carcinomas13 and it was not until the 1960’s that the link between exposure and mesothelioma was established.14 In Australia, the first case of mesothelioma was diagnosed in 1960 by Dr Jim McNulty, the present Director of Public Health in Western Australia.15
3.18 The problem of latent injury and disease was referred in England to the Committee on Limitation of Actions in Cases of Personal Injury (the Edmund Davies Committee) which categorised such situations as cases of “concealed causation”16 and considered them analogous to cases of latent disease, where the injury itself is imperceptible.17 in both cases the plaintiff’s ignorance was said to relate to the nature of the injury. It is therefore not surprising that in some forms of injury, such as asbestosis, problems of latency and concealed causation have both been present.
D. Ignorance of a Worthwhile Cause of Action
3.19 A prospective plaintiff may know that he or she has suffered an injury, may know that it was probably caused by an act or omission of some person but may not be aware that he or she is thus entitled to commence an action claiming damages for that injury. This lack of awareness has been called ignorance of a worthwhile cause of action18 and may arise in a number of ways.
3.20 People who suffer a particular harm may fail to pursue a legal remedy, or even obtain legal advice due to timidity, ignorance, poverty or social attitude.
[M]ost people do not have a legal or business-like turn of mind.....they are reluctant to visit the terra incognita of a solicitor’s office.19
People may also be reluctant to commence proceedings because of fear of reprisals from a prospective defendant. A plaintiff injured at work, for example, may not seek legal advice for fear of jeopardising his or her job.20
3.21 A person’s ignorance of the right to bring an action may also be due to the receipt of incorrect advice, be it from a legal adviser, a fellow worker, a union official or a friend. In Central Asbestos Co Ltd v Dodd2l the plaintiff was informed by his works manager that although he could claim a disablement benefit for his contraction of asbestosis, he could not bring an action for damages against his employer. In consequence, the plaintiff did not seek further legal advice until he heard that a former fellow employee had commenced just such an action. The House of Lords held that “it was reasonable for the plaintiff to rest content with the wrong advice given him by the works manager”, even though it was said to have been “obvious that the works manager had no real competence to give the advice”.22
3.22 In Do Carmo v Ford Excavations Pty Ltd23 the plaintiff contracted silicosis from his exposure to silica dust while at work. He consulted his union’s solicitors but was not advised that it was well known in the industry that the risk of contracting silicosis could have been minimised by the taking of certain precautions by his employers. On making this discovery later, the plaintiff promptly sued his employer but by that time the relevant limitation period had expired.
3.23 Other cases can be envisaged where the plaintiff is advised that he or she does not have a worthwhile cause of action. While this advice may correctly state the effect of the then current law, later developments may mean that the plaintiff is entitled to bring an action. These developments may occur after the expiration of the limitation period.
III. PROBLEMS WITH ATTEMPTS AT REFORM
3.24 The introduction of the discovery rule both in England and New South Wales (paras 2.13-2.15) did not achieve the desired certainty and in fact created further difficulties. The complex drafting in particular led the House of Lords to make the following remarks.
The obscurity of the Act has been frequently and severely criticised: indeed I think this Act has a strong claim to the distinction of being the worst drafted Act on the statute book.24
This Act has been before the courts on many occasions during its comparatively short life. I do not think there are many judges who have had to consider it who have not criticised the wholly unnecessary complexity and deplorable obscurity of its language. It seems as if it was formulated to disguise rather than reveal the meaning which it was Intended to bear.25
In Do Carmo v Ford Excavations Pty Ltd26, Murphy ACJ noted that the relevant New South Wales sections were
derived from and copy the complexity and obscurity of the English Limitation Act 1963.27
In the same case Deane J28 and Dawson J29 referred to the ambiguity of the statutory language.
3.25 A significant problem which ultimately led to the reform of the English Act was the scope of the material facts provision. The range of facts which the plaintiff could rely upon to obtain an extension of the limitation period was far from settled. In Central Asbestos Co Ltd v Dodd30 (para 3.21) the plaintiff knew that he had contracted asbestosis; he knew that it was probably caused by his employment conditions; but he did not know that his employer was therefore liable to him for damages sustained, that is, he did not know that he had a worthwhile cause of action. The plaintiff’s work manager had specifically advised him that he could not sue his employer. When the plaintiff subsequently consulted a solicitor and initiated the proceedings in question, the relevant limitation period had expired. The House of Lords therefore had to consider whether the fact that the plaintiff had a worthwhile cause of action was a “material fact” of a “decisive character”,31 ignorance of which entitled the plaintiff to an extension of the limitation period.
3.26 A majority of the House of Lords allowed the plaintiff an extension of the limitation period but a different majority of the House rejected the plaintiff’s reasoning. Only Lord Reid and Lord Morris of Borth-y-Gest accepted the plaintiff’s argument that ignorance of a worthwhile cause of action was encompassed by the statutory criteria.32 Lord Simon of Glaisdale, Lord Salmon and Lord Pearson rejected that contention. Lord Pearson found for the plaintiff on another ground. introducing a requirement of “fault” as a middle course between acceptance or rejection of the worthwhile cause of action test. Under this formulation a plaintiff’s ignorance that he or she has a worthwhile cause of action will not of itself be sufficient to secure an extension of time, but it will be sufficient that the plaintiff did not know
as matters of fact...the defendants were at fault and that [the plaintiff’s] injuries were attributable to their fault.33
Thus no single view received majority support and the law continued in a state of uncertainty and ambiguity.
3.27 The worthwhile cause of action test was considered in Do Carmo and rejected by the High Court (Murphy ACJ dissenting). The majority of the Court adopted the approach of Lord Pearson in Central Asbestos Co Ltd v Dodd34 and the plaintiff was granted an extension of the limitation period even though he knew, at the relevant time, that he had sustained an injury (the inception of silicosis) and that it was caused by the conditions of his employment. The further information which the plaintiff in Do Carmo did not have at his disposal related to the alternative means available to his employers to provide a safe system of work. The High Court held that this was information which the plaintiff could not have been expected to have had and without which he could not have assessed his employer’s fault.35
3.28 Other key terms in the statutory formula, such as “material” and “decisive” fact have still not been clearly defined. Indeed, they probably defy definition in such a way as to create real certainty about the operation of these provisions of the legislation.
FOOTNOTES
1. S Glimcher “Statutes of Limitations and the Discovery Rule in Latent Injury Claims: An Exception or the Law ?” (1982) 43 University of Pittsburgh Law Review 501 at 513.
2. Limitation Act 1969 s19.
3. Bergfels v Port Stephen Shire Council [1983] 2 NSWLR 578.
4. Id at 579, per Master Allen.
5. Committee on Limitation of Actions in Cases of Personal Injury (Edmund Davies Committee) Report (Cmnd 1829, 1962) at 5, para 6.
6. S Glimcher, note 1 at 504.
7. Ibid.
8. Id at 511.
9. D Rosenberg “The Causal Connection in Mass Exposure Cases: A ‘Public Law’ Vision of the Tort System” (1984) 97 Harvard Law Review 851 at 855.
10. Harvard Law Review “Compensating Victims of Occupational Disease” (1980) 93 Harvard Law Review 916 at 921.
11. Note 5 at 6, para 8.
12. Borel v Fibreboard Paper Products Corporation 493 F 2d 1076 (1973) at 1083, per Wisdom J.
13, Vanderbilt Law Review “Special Project. An Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation” (1983) 36 Vanderbilt Law Review 573 at 598.
14. Id at 601.
15. T Hall The Ugly Face of Australian Business (Harper and Row (A’asia) Pty Ltd, 1980) at
42.
16. Note 5 at 6, para 9.
17. Id at 9-10, para 18.
18. Law Reform Committee (Orr Committee) Twentieth Report, Interim Report on Limitation of Actions, Personal Injuries Claims (Cmnd 5630, 1974) at 16, para 42.
19. Central Asbestos Co Ltd v Dodd [1973] AC 518 at 530, per Lord Reid.
20. McCafferty v Metropolitan Police Receiver [1977] 2 AII ER 756 at 769, per Megaw LJ.
21. [1973] AC 518.
22. Id at 530-1, per Lord Reid.
23. (1984) 154 CLR 234.
24. Central Asbestos Co Ltd v Dodd [1973] AC 518 at 529, per Lord Reid.
25. Id at 553, per Lord Salmon.
26. (1984) 154 CLR 234.
27. Id at 238.
28. Id at 250.
29. Id at 253 (Brennan J agreed: id at 249.)
30. [1973] AC 518.
31. This is the wording of ss1(3) and 7(3) of the Limitation Act 1963 (UK).
32. Central Asbestos Co Ltd v Dodd [1973] AC 518 at 533, per Lord Reid; at 538, per Lord Morris of Borth-y-Gest.
33. Id at 543, per Lord Pearson.
34. Do Carmo v Ford Excavations Ply Ltd (1984) 154 CLR 234 at 239, per Murphy ACJ: at 258-259, per Dawson J (with whom Brennan J agreed at 249).
35. Id at 258-259. This test was applied recently by Yeldham J in Wills v Minerals Pty Ltd [1985] 3 NSWLR 543.
