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Accident Compensation Cases

Morgan v Attorney-General (HC, 16/07/91)

Judgment Text

ORAL JUDGMENT OF ANDERSON J 
N.C. Anderson, J
This proceeding is brought by a former employee of the Ministry of Transport. By his second amended statement of claim the plaintiff alleges that from 28 March 1966 to 6 June 1971 he was employed by the Civil Aviation Division of the Ministry of Transport as a rescue fireman, and that during such period of his employment he was exposed to asbestos, in consequence of which he has contracted and now evinces the debilitating symptoms of asbestosis. 
I am informed by learned counsel in general terms, and know as a member of the public, that there has been much concern in recent years over the incidence or suspected incidence of serious diseases arising from exposure to asbestos in earlier times when public awareness of the effects of such exposure were not so generally known and/or recognised. Because of the time period between exposure and the manifestation of symptoms, the impact of the Accident Compensation Acts on potential common law causes of action for personal injury is significant. 
In this case, as in the case of McKenzie v Attorney General, A257/90, Wellington Registry, there is concern over the interpretation of s 28(1) of the Accident Compensation Act 1982, it being perceived that a possible interpretation of that section could present an insurmountable barrier to the progress of actions or potential actions at common law for personal injuries. 
It is convenient at this stage to note that the alternative answers to a question concerning the interpretation of s 28(1) affect, significantly and respectively, the administration of public funds by the Accident Compensation Corporation, and the potential liability of the private commercial sector of our community. It is also appropriate to note that persons such as Mr Morgan and Mr McKenzie, who are suffering from cruel diseases which may be referrable to asbestos exposure, have a natural interest in knowing the availability and extent of compensation for their dependants in the event, likely, of sadly premature death. I comment upon these matters to demonstrate the obvious, namely that the issues raised by this litigation are of considerable public importance as well as having serious private impacts on the parties. The questions arising are to some extent novel; certainly their answers are at large. 
Against this background I refer to the application before the Court today which is that the following question be decided separately from and before trial, and that such question be removed to the Court of Appeal for determination:— 
“If asbestos is a disease within the meaning of s 28 of the Accident Compensation Act 1982, is the period of employment described in s 28(1) (which ends on or after 1 April 1974) of the Accident Compensation Act 1982 restricted to that part of the period of the person's employment which gave rise to the disease. ”
The grounds upon which such application is based are that the matter is a question of law and is of public importance; that there is urgency arising from the plaintiff's ill health; that there is an appeal before the Court of Appeal of the same matter or issue and that the decision in respect of the pre trial question will, if answered in the negative, dispose of the proceeding. It might be added that the question, if answered in the negative, will pre-empt what is likely to be a significant number of claims by persons exposed to asbestos in the course of employment. The question is, as I have indicated, of significant public importance and the answer to the question is certainly at large. 
I had an initial reservation about removing the question into the Court of Appeal because that Court will on 5 August this year hear argument on the same issue, expressed slightly differently, as the question now presented. In the McKenzie case the Accident Compensation Corporation was not a party at the first judicial consideration of the issue. That corporation now, for obvious reasons, seeks to be joined as a party. I make an order for such joinder pursuant to R 97 of the High Court Rules accordingly. 
For the following reasons I hold that it is appropriate in this proceeding that the question of law involved be determined before trial pursuant to R 418, and that such question be removed into the Court of Appeal pursuant to s 64 of the Judicature Act and R 419 of the High Court Rules notwithstanding that the same issue is about to be determined: — 
1.
The question is of such general importance that the Court of Appeal will be assisted by an opportunity to consider two cases rather than one and will be assisted by the submissions of alternative senior counsel. 
2.
The Court of Appeal will be assisted by having the Accident Compensation Corporation joined and able to make submissions at the first judicial consideration of the issue in the current proceeding. 
3.
The McKenzie appeal is imminent and no delays will occur in the disposal of the issue by reason of the orders made. 
I make these findings and so hold cognisant of course of the restraint which must generally be exercised in relation to a particular jurisdiction as indicated in Re Erebus [1981] 1 NZLR 615 and other cases. 
I therefore make an order adding the Accident Compensation Corporation and direct that it be served with all documents already filed within three days. 
I make an order that the question of law, as identified in the plaintiff's application, be determined before trial. I make an order removing the determination of that question into the Court of Appeal for the reasons aforesaid. 
Costs are reserved. 
I reserve leave generally to the plaintiff, defendant and intended second defendant to apply for such further orders or directions as may be necessary or expedient for facilitating the rapid transmission of all necessary documents and other organisational details. 

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