BARLOW v HOMEBUSH BAY DEVELOPMENT CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE and POWELL JJA and BADGERY-PARKER AJA 29 October 1995, 6 November 1995 [1995] NSWCA 39 LIMITATION OF ACTION — Limitation Act 1969, s60G, s60I — Dedousis v The Water Board (1994) 181 CLR 171, Colarado vy Haden Engineering Pty Ltd (NSW Court of Appeal, unreported to November 1995) followed. LIMITATION OF ACTIONS — Limitation Ant 1969, s60G, s60I District Court judge applied Dedousis vy The Water Board (New South Wales Court of Appeal, unreported 20 August 1993) — reversed, Dedousis v The Water Board (1994) 181 CLR 171. Colarado vy Haden Engineering Pty Ltd (New South Wales Court of Appeal, unreported 6 November 1995) followed — application remitted to District Court for rehearing. Clarke JA For the reasons given by Badgery-Parker AJA in this case and for reasons analogous with those I gave in Colorado v Haden Engineering Pty Ltd and Anor (New South Wales Court of Appeal, 6 November, 1995, unreported) I agree with the orders proposed by Badgery-Parker AJA. Powell JA I agree with Badgery-Parker AJA. Badgery-Parker, AJA The plaintiff, Barry Barlow, was employed by the defendantcontinuously from 1977 until 1988. By his statement of claim filed on 29 March 1993, he alleges that by reason of exposure to excessive noise levels during the course of his employment, he suffered damage to his hearing. On 13 August 1993, he applied pursuant to s60G of the Limitation Act for an extension of the time within which he might bring his action against the defendant. That application was dismissed by His Honour Judge Patten on 22 November 1993 and the plaintiff now seeks leave to appeal. At the time that that application was heard, the relevant law was established by the decision of this court in Dedousis v The Water Board (unreported 20 August 1993) subsequently reversed by the High Court (Dedousis v The Water Board (1994) 181 CLR 171. The decision of this court in Dedousis (following earlier decisions in Electricity Commission of New South Wales v Plumb (1992) 27 NSWLR 364 and in James Hardie and Co Pty Ltd v Wootton (1990 20 NSWLR 713 held that in order to succeed in an application under s60G, a plaintiff must first satisfy the criteria listed in s60F - "unaware of the fact, nature, extent or cause of the injury... at the relevant time" - and that a plaintiff could not succeed on the basis that he was unaware of the "cause" of his injury if he was in fact aware at or before the relevant time of the physical cause of it. Consequently, in the present matter, the District Court judge proceeded on that basis. The judge's conclusion that "it is probable that the plaintiff's impairment became patent by about 1983 and that, by that year, he was aware of the fact, nature, extent and cause of it" is to be understood as a finding that he was aware of the physical cause; so too, the judge's finding (which was incontrovertible, as the plaintiff had made a claim for 2 UNREPORTED JUDGMENTS workers compensation benefits in respect of loss of hearing in 1986) that "the plaintiff was aware of all relevant matters by 1986". The plaintiff had adduced evidence of the omission of the defendant to take precautions to protect his hearing, but that evidence would seem to have been directed, not to the satisfaction of s60F differently construed, but to the need to show that there was evidence available to support his cause of action: cf Limitation Act 1969, s58(2)(b), Martin v Abbott Australasia Pty Ltd (1981) 2 NSWLR 430 and PD v Australian Red Cross Society (unreported, Badgery-Parker, J 26 November 1992 at 6): "The need (s60G(2)) for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject a defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action." The decision of this court in Dedousis was reversed by the High Court, on the basis that s60F was no more than an introductory section providing a summary of the effect of the substantive provisions of that subdivision of the statute, and that the relevant requirements that a plaintiff must meet were to establish the matters specified in s60I and, thereafter, to satisfy the court in terms of s60G that it was just and reasonable that the limitation period be extended. It is clear that in the light of the High Court's decision, Judge Patten misdirected himself - understandably in the circumstances. It is also clear that no evidence was specifically adduced, directed to what is now known to be the correct construction of the statute. The plaintiffs claim, based on the contention that he was at the relevant time unaware of the connection between his injury and the defendant's omissions, has simply not been evaluated at first instance. It is, with respect, not to the point to say, as counsel for the respondent has submitted here, that there were "only four acts and omissions referred to in the plaintiff's evidence, three of which he was aware of and one of which does not have any relevant to his hearing loss or to his claim". It may be accepted that the plaintiff was at the relevant time aware that his hearing problems were related to his work, and that his employer had taken no effective steps to prevent such damage. That, however, is not the end of it. The plaintiff's evidence is that in April 1992 he was informed of, among other things, the existence of the Australian Standard known as the SAA Hearing Conservation Code. The allegations of negligence which the plaintiff makes in his statement of claim are not limited to those particular matters referred to in his own evidence but are based upon the provisions of the Code. It is open to infer, from the plaintiff's statement that he was made aware of those things in April 1992, that he was not previously aware. In the circumstances, the hearing before the District Court judge miscarried. For the reasons explained by Clarke, JA in Colarado v Haden Engineering Pty Ltd and Anor (New South Wales Court of Appeal, unreported 6 November 1995), the principle of finality does not preclude such an order. The judge also purported to hold that, as a matter of discretion, it would not be just and reasonable to extend the limitation period. The defendant submits that no ground appears for overturning that discretionary ruling. However, that ruling was in part based upon the irrelevant factual conclusion that the plaintiff was aware at the relevant time of the physical cause of his injury, and was arrived at without regard to the fact that the plaintiff may have been able UWARLOW v HOMEBUSH BAY DEVELOPMENT CORPORATION (Badgery-Parker, AJAB to demonstrate, if the question had been properly raised, that he was unaware of the connection between his injury and significant omissions on the part of the defendant. In those circumstances, it appears to me that the discretionary decision is vitiated. I propose that the court should: 1. 2. 3. 4. Grant leave to the claimant to appeal for the order of Patten, DCJ of 22 November 1993; Allow the appeal; Set aside the judgment of Patten, DCJ of 22 November 1993; Remit the proceedings to the District Court for determination in accordance with the law; Order that the costs of the proceedings before Patten, DCJ be in the discretion of the judge who hears the remitted application; Order the opponents to pay the claimant's costs of the application and appeal and, if qualified, order that they are to have certificates under the Suitors Fund Act in respect of those costs. COUNSEL: Appellant: B Robinson Respondent: C Hoeben SOLICITORS: Appellant: Maurice May and Co Respondent: Pieterse and Pieterse