BRAMBLES AUSTRALIA LTD v HALL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONE AP, HANDLEY and POWELL JJA 12 October 1993, 8 December 1993 [1993] NSWCA 34 LIMITATION — EXTENSION — LATENT INJURY — EXTENT OF INJURY The plaintiff was employed by the defendant from 1981 onwards apart from an absence of six months in 1982. In July 1988 tests revealed hearing losses in both ears in relation to which the plaintiff received workers' compensation. The primary Judge granted an extension of the limitation periods under s60G(2) of the Limitations Act. Held: (1) The plaintiff failed to establish the existence of the threshold requirements for an extension under the Limitations Act 1969 of his causes of action accruing after | August 1982 as he was aware by the end of July 1988, through his solicitors, if not personally, of the fact, nature and extent of his then industrial deafness. Electricity Commission v Plumb (1992) 27 NSWLR 364 applied. (2) The plaintiff failed to establish that it would be just and reasonable to extend the limitation period for causes of action that accrued in the period before August 1982 as the evidence suggested that little, if any, of his hearing loss was due to his exposure to noise in that period. Mahoney JA I agree with the judgment of Handley JA. The plaintiff seeks an extension of time to sue in respect of injuries which occurred, and therefore in respect of a cause or causes of action which accrued, before 18 December 1986. Accordingly, he must rely on Schedule 5 to the Limitation Act 1969. It is now settled that that Schedule applies only to a case "where the plaintiff was unaware of the fact, nature, extent or cause of the injury... at the relevant time". See Electricity Commission of New South Wales v Plumb (1992) 27 NSWLR 364. For the reasons detailed by Handley JA, the evidence shows that the plaintiff was not unaware of such matters at any time here relevant. At the latest, he was aware of them, to a sufficient extent, by about July 1988. No loss occurred to him until, at the earliest, late 1982. Accordingly, no case was made out on the facts for such an extension of time. I agree with the orders proposed. Handley JA This is an appeal by leave from an order made by his Honour Judge Madgwick QC in the Wollongong District Court on 19 April 1993. His Honour extended the limitation period for the plaintiffs causes of action for industrial deafness to 18 December 1992, the day the plaintiff's statement of claim seeking damages for negligence against the appellant was filed. In 1981 the plaintiff commenced working for the defendant as a plant operator in the noisy environment of the Port Kembla steelworks. He was retrenched at some date in the middle of 1982 but re-employed at the end of the year after an absence of some six months. He has been employed by the defendant ever since. The defendant had the plaintiffs hearing tested during 1985 but at the time he was not told the result. The evidence did not reveal the extent of any hearing loss revealed by that test. At some time during 1986 a fellow employee suggested to 2 UNREPORTED JUDGMENTS the plaintiff that he might be deaf. Subsequently, in 1988, he consulted his present solicitors and was referred by them for his hearing to be tested. Dr Gow reported to his solicitors on 28 July 1988 that the plaintiff had a loss in the right ear of 10.9 per cent and in the left of 13.4 per cent. He claimed and later received $5,500 as workers' compensation for that hearing loss. The plaintiff was again tested for hearing loss by Mr Keck on 3 February 1993 and the latter's report to the plaintiffs solicitors of 14 April 1993 stated that the plaintiff then had a loss in the right ear of 10.8 per cent and in the left of 13.8 per cent. This showed that there had been no substantial deterioration in the plaintiff's hearing since the test in 1988. The plaintiff was entitled in the proceedings commenced on 18 December 1992 to recover damages for the injury to his hearing that he has suffered or will suffer as a result of his negligent exposure to industrial noise since 18 December 1986. There would, of course, be legal difficulties in recovering damages for exposure to industrial noise experienced since the commencement of the Workers " Compensation Act 1987. The plaintiff required an extension of the limitation period in order to be able to recover in respect of such exposure prior to 18 December 1986. The extension was sought under the provisions added to the Limitation Act 1969 by the Limitation (Amendment) Act 1990 and in particular s60F, s60G and CL4 of sched 5. The decision of this Court in Electricity Commission v Plumb (1992) 27 NSWLR 364 establishes that, in the case of a pre-1990 injury such as this, a party seeking an extension of a limitation period must establish that he "was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time" (s60F), 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" (s60I(1)(a)). If these threshold requirements are satisfied the applicant must establish that it is "just and reasonable" that the limitation period be extended (s60G(2)). Taking the most favourable view of the evidence for the plaintiff, it is clear that by the end of July 1988 he knew through his solicitors, if not personally, the fact, nature, extent and cause of his then level of industrial deafness. At that stage the plaintiff could have commenced proceedings within time and recovered damages for his exposure to industrial noise since 30 July 1982. The plaintiff having that knowledge by the end of July 1988 therefore failed to establish the existence of the threshold requirements for an extension for his causes of action which accrued after 1 August 1982. To that extent, the order made by his Honour Judge Madgwick QC must be set aside. There remains the plaintiff's causes of action which accrued between the commencement of his employment with the defendant during 1981 and his dismissal in the middle of 1982. On the evidence the plaintiff's hearing was first tested in 1986 but he did not become aware of any hearing loss until 1986 at the earliest. The evidence therefore suggests that the plaintiff suffered little, if any, hearing loss before August 1982. Moreover there is nothing in the evidence to suggest that the plaintiff will be able to prove what his level of hearing loss then was or what further hearing loss would have accrued later independently of further exposure to industrial noise. In these circumstances it seems that an extension of the limitation period for the plaintiff's earlier causes of action would confer no practical benefit on him. The plaintiff therefore failed to establish that it would be just and reasonable to extend the limitation period for the causes of URJ BRAMBLES AUSTRALIA LTD v HALL (Powell JA) 3 action that accrued during that earlier period and an extension for these earlier causes of action should also be refused. In my opinion the following orders should be made: 1. Appeal allowed with costs. 2. Set aside the order extending the limitation period to 18 December 1992. 3. In lieu thereof order that the notice of motion of 22 March 1993 in so far as it sought an extension of the limitation period be dismissed with costs. 4. The respondent is to have a certificate under the Suitor's Fund Act for the costs of the appeal. Powell JA I agree with Handley JA. 1. Appeal allowed with costs. 2. Set aside the order extending the limitation period to 18 December 1992. 3. In lieu thereof order that the notice of motion of 22 March 1993 in so far as it sought an extension of the limitation period be dismissed with costs. 4. The respondent is to have a certificate under the Suitor's Fund Act for the costs of the appeal. Counsel for the Appellant: D R Russell Counsel for the Respondent: J Crumpton QC/M Thompson Solicitors for the Appellant: Moray and Agnew Solicitors for the Respondent: Maurice May and Co