SCREEN PRINTING SUPPLIES PTY LTD v THE DISTRICT COURT OF NSW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS AP, CLARKE and HANDLEY JJA 7 March 1990, 7 March 1990 [1990] NSWCA 163 District Court — Certiorari — Limitation Act, 1969, s58(2) Error of law — No legal error shown — No question of fact. Samuels AP The Court has before it a summons pursuant to which the claimant seeks an order that the record of proceedings in matter No 3674 of 1988 be called up from the District Court of New South Wales and that the order be quashed or set aside. The particular order in question was made by his Honour Judge Mahoney on 6 June 1989 and what his Honour did was to extend the limitation period for the cause of action in the proceedings pursuant to s58(2) of the Limitation Act, 1969. The grounds upon which the claimant seeks the order are that there are two errors of law which appear on the face of the record. Some discussion has taken place during the argument as to the extent of the materials to which the Court should look as constituting the record for the purposes of the consideration of the summons. Despite the very careful, concise and helpful arguments of Mr Stevenson, there is no need to examine in this case the extent to which the Court can go. Even taking the most expansive view of the record, it appears to me that no error of law has been shown. When I say "taking the most expansive view", I mean to indicate that, even having regard to the pleadings, the reasons for judgment, the order and the transcript of evidence, the errors of law for which the claimant's counsel contends have not been shown. The first error of law which is attributed to Judge Mahoney concerns an assumption which he is said to have made. That assumption was that the second opponent had remained at all relevant times in the employ of his employer since the time he sustained his injuries, and it was said that there was simply no evidentiary basis for the assumption. In some circumstances, an assumption of the nature made by his Honour could not possibly ground an order of the type sought in this case. But Mr Stevenson has argued with some force that the assumption had a particular importance in this case because it provided a material explanation for his Honour's conclusion as to the reason why the second opponent had not taken earlier steps to determine his medical condition or his rights of action. What the evidence discloses is that the second opponent commenced employment with the claimant in about 1978. He sustained his injury on 18 October 1980. On that occasion he suffered serious burns when a faulty tap allowed a dangerous degreaser to drip on to his arms and leg. Although he suffered significant burns, he took no time off work and submitted to conservative treatment at the hands of doctors at the offices of Manufacturers' Mutual Insurance at Bankstown to whom he was sent by his employer. That is where the 2 UNREPORTED JUDGMENTS evidence was left in regard to his employment. Mr Stevenson argues that that material provides no basis for the assumption which his Honour made. Although I can see the force of the argument, I need to supplement my statement of the evidentiary material by reference to the course of the trial. The second opponent supported his application by the affidavit to which I have just made reference and a further affidavit which simply annexed a report from Dr Mitrofanis. There was no cross-examination of the second opponent, nor was his factual claim put in issue in any way at all. What the claimant sought to do was to argue that, even accepting fully everything that is said by the second opponent, he failed to make out a case for an extension of the limitation period. The trial judge was then left in a position where the evidence was that the second opponent had commenced work with the claimant about two years before his accident and had not lost a day from work following the accident, having returned immediately to his employment with the claimant. In those circumstances, I would think that it was not an unreasonable inference for the judge to draw that the second opponent had remained in that employment. Certainly, there was no suggestion that he had not. Even if, however, I be wrong in that conclusion, I would express the view that any error in drawing the inference could not be categorised as an error of law which would ground the making of the order sought by the claimant. It seems to me that if his Honour made a factual mistake as to the continuance of the second opponent in the claimant's employment, that at no stage was elevated to an error of law, albeit that his Honour used his factual conclusion as a step in the reasoning which led him to his ultimate conclusion. I would accordingly reject the first ground upon which the claimant seeks the order. The second ground is perhaps of more substance. The claimant argues that the trial judge applied the wrong legal test in granting the order which was sought. He submitted that the trial judge considered only whether the second opponent was aware of the fact which the trial judge accepted to be the material fact of a decisive character but failed to consider whether, insofar as that fact was capable of being ascertained, reasonable steps had been taken to ascertain it. The fact which his Honour accepted to be the material fact of a decisive character was the permanency of the scarring which the second opponent suffered as a consequence of the burns. What had been said by the second opponent was that he was unaware until September 1987 that the scarring which he had suffered was to remain with him permanently. He had thought previously, presumably, that the scarring would fade and ultimately disappear. His Honour accepted, as I have said, that the apprehension which the second opponent developed in September 1987 satisfied the description "material fact of a decisive character". When his Honour came to consider what he described as the third proposition, he posed the test with which he was confronted in these words: "I turn now to his third proposition, namely the absence of proof that it was beyond the knowledge or means of knowledge of the plaintiff until after that critical date, namely twelve months before the date of commencement of action. I am disposed to rule against him on his submission for the following reasons..." Pausing there, his Honour appears to have expressed the correct test. He has directed attention to the actual knowledge of the second opponent and his means of knowledge. In any event, counsel for the claimant accepts that there his Honour posed the correct test. Furthermore, it would appear that, having posed the correct test, his Honour considered it and resolved to find against the claimant, that is the employer - so much appears from his words. \REREEN PRINTING SUPPLIES PTY LTD v THE DISTRICT COURT OF NSW (Samuel& AP) What Mr Stevenson argues, however, is that any analysis of the words that follow the positing of the test would demonstrate that his Honour had clearly considered only one factor, and that was the actual knowledge of the second opponent. There is no mention, he argues, in the reasons for judgment of any reasons for rejecting the claimant's submissions that the appellant had failed to satisfy the test that the material fact of a decisive character was not within his means of knowledge at the critical date. In determining whether a fact is within the means of knowledge of a person, it is necessary to direct attention under s57(1)(e) of the Limitation Act, 1969 to two factors: the first is whether the claimant for an extension has shown that he did not at the relevant times know the fact, and the second is expressed in subs(2) in these words - "Insofar as the fact is capable of being ascertained by him, has before that time, taken all reasonable steps to ascertain the fact." Mr Stevenson argues that it was necessary for his Honour to address two additional questions beyond the question of actual knowledge. His Honour had to direct his attention to the question whether the material fact was capable of being ascertained by the second opponent before the critical date, and, if it was, then whether the second opponent had taken all reasonable steps to ascertain the fact. Iam unable to accept the submissions for two basic reasons. In the first place, it cannot be said, in view of that portion of the reasons for judgment which I read out, that his Honour failed to consider the correct test. Clearly, he did consider it; he set it out and then made his determination upon it. the complaint - if that be a correct description - of the claimant is more properly that his Honour failed to give reasons for that conclusion, but that is not the ground on which he seeks the present orders, and, even if it were, there may be some difficulties in supporting it in the light of the diversity of the material covered by his Honour and his concern relating to the report of Dr Mitrofanis which, on one view, may be said to have supported the view that it is difficult to give dogmatic opinions as to whether scarring will or will not continue to fade even after four or five years. However, the primary ground upon which I would reject the submission is that the judgment makes it plain that his Honour considered the test which he had set out and which is accepted to be the correct one. The secondary reason is that the second opponent gave evidence - which, as I pointed out, was not challenged - that prior to September 1987 he believed the scarring would fade over time and he was not told by those practitioners who had treated him after the incident that the scarring would be permanent. The second piece of evidence would support the inference that he had sought information as to the permanency of the scarring, or at least had been left with the impression by those practitioners, that there was nothing about it which would render it permanent. Having in mind his treatment and the extent of the information he received from those medical practitioners, it seems to me that it was open to his Honour to determine as a matter of fact that the second opponent had taken all reasonable steps to ascertain the permanency of the scarring. It may be that his Honour's decision was one to which I myself would not have come. That may mean that it is simply a matter of opinion on which minds can differ, or it may mean, taking it at its highest, that His Honour made an error of fact. But from whichever point of view it is looked at, there is material upon which his Honour could form a conclusion, and any mistake in respect of that conclusion would properly be categorised as one of fact and not of law. 4 UNREPORTED JUDGMENTS For those reasons, I am of the opinion that the second ground has not been sustained. The obvious consequence of those views is that, in my opinion, the summons should be dismissed with costs. Clarke JA I agree. Handley JA I agree. The order of the court is that the summons is dismissed with costs. 10 Counsel for the Claimant: J Stevenson Solicitor for the Claimant: Hickson Lakeman Holcombe Counsel for the First Opponent: Submitting appearance 15 Solicitor for the First Opponent: HK Roberts, Crown Solicitor Counsel for the Second Opponent: Miss M Raish Solicitor for the Second Opponent: John Allanson and Assoc, Cabramatta