SPADOTTO AND CO PTY LTD (IN LIQUIDATION) v RABER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and POWELL JJA 24 October 1995, 27 October 1995 [1995] NSWCA 442 LIMITATION ACT — AWARENESS OR NON-AWARENESS OF PLAINTIFF LIMITATION ACT — whether the lack of knowledge and non-awareness referred to in s60I(1)(a)(iii) must be those of the plaintiff himself or herself or whether knowledge of plaintiff's solicitor can be imputed to plaintiff — exercise of discretion under s60G. Held: para(iii) speaks of actual state of lack of knowledge and non-awareness of plaintiff; no error in exercise of discretion; appeal dismissed. Priestley JA Spadotto and Co Pty Ltd (in liquidation) (the appellant) employed Mr D Raber (the respondent) from November 1983 to May or June 1985. By notice of motion in the District Court dated 30 August 1993 the respondent sought orders that the period during which he might commence proceedings against the appellant and two other past employers be extended. His Honour Judge Kirkham decided the motion on 16 June 1995. Inter alia, he ordered that the limitation period for the cause of action against the appellant be extended. This is the only aspect of his decision of the motion that is relevant to this appeal. Leave to appeal was granted to the appellant on 4 September 1995. In the appeal the appellant made submissions under two heads. Under the first it was said that Kirkham DCJ had been wrong in holding that the respondent was, at the relevant time, "unaware of the connection" within the meaning of s601(1)(a)(iii) of the Limitation Act 1969 (the Act), "between the personal injury" for which he wished to claim damages from the appellant and the appellant's "act or omission". Under the second head it was submitted that Kirkham DCJ had erred in his application of s60G(2) of the Act. The material facts were that the respondent, born in 1932, had worked in various noisy jobs before he commenced employment with the appellant in November 1983. In that employment he was regularly exposed to a high noise level from machinery and equipment against which no hearing protection was provided, no hearing test carried out, and no safety lectures ever given. The respondent first noticed a hearing loss in approximately 1983. The hearing loss gradually grew worse over subsequent years. The respondent retained a solicitor in April 1989, who did not discuss with the respondent his hearing loss or associated matters but referred him to an ear, nose and throat specialist, whose findings were never discussed between the solicitor and the respondent. Those findings were that there had been 10.5% impairment of the respondent's hearing in the left ear and 9.4% in the right ear. The respondent saw his present solicitors on 28 July 1993. He was then told by them of a number of acts or omissions of the appellant. On 3 August 1993 the respondent was told by an industrial audiologist that he had a hearing loss of 77.7% in the left ear and 79.8% in the right ear. 2 UNREPORTED JUDGMENTS It was common ground in the appeal that CL4 of Schedule 5 of the Act made s60G applicable to the respondent's application for extension and that by virtue of CLA4(4) the first instance court could make an order under s60G (if it thought it appropriate) within the period of three years commencing on 1 September 1990. S60I(1) provided that a court might not make an order under s60G unless satisfied that the respondent either (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of the personal injury or (iti) was unaware of the connection between the personal injury and the appellant's act or omission. The words of this provision make it clear that the respondent had only to establish one of the three matters to put the court in the position of deciding, in exercise of judicial discretion, whether or not to make an order under s60G. The time at which any one of the three matters had to be established by the respondent was at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted. Kirkham DCJ was not satisfied of either of matters (i) or (ii) but was satisfied of the matter (iii), that is that the respondent had been unaware at the relevant time of the connection between his personal injury and the appellant's act or omission. Under the first head of the appellant's argument it was submitted that Kirkham DCJ should have held that the respondent had not established matter (iii) because of the knowledge which should be attributed to his agent, the solicitor retained in April 1989. In connection with this submission the appellant drew the court's attention to a case in the High Court tending against the submission. This was Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 in which it was held that the words in the South Australian Limitation of Actions Act 1936 "... that facts material to the plaintiff's case were not ascertained by him" meant that the facts had to be ascertained by the plaintiff personally (see at 637). However, it was further submitted that differences in the text of the South Australian and New South Wales statutes meant the case was not an authority on the New South Wales provision in question, which should be construed on its own terms. Although there are no strikingly obvious indications in the statute whether it is the knowledge and awareness of the plaintiff personally or in a wider sense that is being spoken of in s60I(1)(a) there are various considerations which, taken together, lead me to think that the better interpretation is that it is what the plaintiff himself or herself does not actually know or is not actually aware of that is being spoken of. I first mention that amongst the propositions established by Dedousis v The Water Board (1994) 181 CLR 171 is that s60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions, and that the legal complexion to be put upon a set of facts or circumstances and a plaintiff's awareness of that legal complexion are not what matters for the purpose of s60I(1): see per Gleeson CJ in Drayton Coal Pty Ltd v Drain (Court of Appeal, 22 August 1995, unreported, Gleeson CJ, Priestley and Meagher JJA) at 5. The construction proposed by the appellant does not seem to me to fit as well with this view of what para(iii) is concerned with as the idea that it is a plaintiffs own lack of knowledge or unawareness that is being spoken of in the three matters listed in para(a) of s60I(1). URJ SPADOTTO AND CO PTY LTD (IN LIQUIDATION) v RABER (Priestley JA) 3 Further, the way in which para(a) is written seems to me more in keeping with the meaning that what is being spoken of is the non knowledge and unawareness of the plaintiff as an individual than the other possibility. Although I can see that the words can be read the other way, they do not immediately, or after reflection, suggest to me that when "the plaintiff' is spoken of at the beginning of the paragraph there is any intention to convey the meaning of "the plaintiff whether by himself or his agent". Further again, the last mentioned reading of the words could cause difficulties of construction. This is illustrated by considering what would happen in the case of a plaintiff advised by a firm of solicitors containing more than one solicitor. It would be arguable that a plaintiff in getting advice from one of two partners in, say, a firm of two solicitors was in law retaining the firm, and it would be further arguable that the knowledge of both partners should be attributed to him. The greater the number of partners in the firm, the more obvious the difficulty would become. If the statute made it plain that the knowledge in question was both that of the plaintiff and the plaintiff's agents, then no doubt courts would devise common sense methods of dealing with the kind of situation that I am suggesting would at least be made arguable by such provision. However, it seems unlikely to me that those who drafted para(a) had in mind even the possibility of such argument. Another matter which seems to me to be important in understanding what para(a) is contemplating so far as a plaintiff's knowledge and awareness are concermed is that para(b), when it speaks of the time when "the plaintiff became aware (or ought to have become aware)" of the three matters listed in para(a) seems to be drawing a clear distinction between actual knowledge of the plaintiff and knowledge of which the plaintiff (as a person) ought to have become aware. Although, as already mentioned, CL4(4) of Schedule 5 so operates in the present case as to make para(b) of subCL(4) and not para(b) of s60I(1) the relevant provision, it still seems to me to be legitimate to consider the language of para(b) of s60I(1) in considering the appropriate construction of para(a) of that subsection. Taking para(b) into account, I think it is comparatively clear that it is an obstacle to the construction of para(a) for which the appellant contends. The appellant also sought to rely on para(c) of s11(2) of the Act. This is a paragraph in a definition subsection which seems to me to be directed to a quite different subject matter from that in question in s60I. I do not think it is of any assistance to the appellant. Reference was also made to the definition of "plaintiff" in s11(1). To the extent that this definition contributes anything to the construction question raised by the appellant, it seems to me to tend against the appellant's submission. The appellant also relied on what was said by Handley JA in Brambles Australia Ltd v Hall (Court of Appeal, 7 December 1993, unreported, Mahoney, Handley and Powell JJA). In that case Handley JA, with whom the other members of the Court agreed, was of the view that upon the evidence before the first instance judge, which was not reproduced in any detail in Handley JA's reasons, the plaintiff had not established that, in the words of s60F of the Act, he "was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time". In reaching his conclusion Handley JA said: "Taking the most favourable view of the evidence for the plaintiff, it is clear that by the end of July 1988 he knew 4 UNREPORTED JUDGMENTS 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... The plaintiff having that knowledge... therefore failed to establish the existence of the threshold requirements..." (at 3). I do not understand this passage to represent a considered view on the point sought to be taken by the appellant in the present case. It does not appear from a reading of Handley JA's reasons, or the briefer reasons of Mahoney JA, that the point was argued. There are also some indications, although quite inconclusive, in Handley JA's brief summary of the facts, that it would have been open to the court to conclude that the plaintiff in the case himself had actual knowledge. The position concerning what the evidentiary situation was in the case seems to me to be too unclear for this court to regard what Handley JA said as being part of the essential reasoning of his decision, in a way to make the case an authority which this court should follow on the point argued in the present case. For these reasons in my opinion the appellant's first head of argument fails. In the appellant's argument under the second head, attention was drawn to the concluding part of Gleeson CJ's reasons in Drayton Coal which were to the effect that the way in which a court exercises proper judicial discretion under s60G(2) may, depending upon the facts and circumstances of the case, have an important qualifying effect upon the operation of s60I when a plaintiff establishes at least one of the three matters listed in para(a) of subs! of that section (at 7-8). It was then submitted that Kirkham DCJ's brief explanation of his decision to exercise discretion in favour of the respondent under s60G(2) either revealed error or were so brief as to attract the line of authority which says that a failure to give adequate reasons can constitute an error of law. The court was told that the various matters relating to the exercise of the judge's discretion under s60G(2) were argued before him. Taking that into account with the whole of his Honour's reasons, it seems to me that the basis upon which the discretion was exercised is sufficiently clear. Nor, for my part, do I see any indication of the trial judge having acted on any misunderstanding of principle or misapprehension of matters to be taken into account or of the facts. The result he arrived at does not seem to me to warrant any submission that it is so wrong on the face of it that there must have been some concealed error in the judge's reasoning. A final submission was put by the appellant that the evidentiary material in support of the plaintiffs case against the appellant which was put before Kirkham DCJ showed that the plaintiff must in any event fail if allowed to proceed with his case against the appellant. It was submitted that the plaintiff would inevitably fail because of lack of any expert opinion evidence available to him to prove deterioration in his hearing during or caused by the period of his employment with the appellant. It may be that the appellant will succeed at the trial against the respondent on the court's consideration of the available evidence against the appellant. However, it does not seem to me that it is for this court to say at this stage that the respondent must fail against the appellant; I say this because there seems to me to be some evidence to support the respondent's case against the appellant. Although the appellant submits that it is only lay evidence and extremely shadowy, I do not think it can properly be said that it follows from the state in which it is in at present that this court should conclude that the respondent must fail at trial. In my opinion the appeal should be dismissed with costs. URJ = SPADOTTO AND CO PTY LTD (IN LIQUIDATION) v RABER (Powell JA) Clarke J I agree with Priestley JA. Powell JA I agree with Priestley JA. 5 Appeal dismissed with costs. Counsel for the Appellant: B TOOMEY QC/DR RUSSELL Counsel for the Respondent: K ANDREWS 10 Solicitors for the Appellant: AO ELLISON AND CO Solicitors for the Respondent. SOWDEN MCINNES AKERMAN