BRAMBLES AUSTRALIA LTD v HALL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE and POWELL JJA and YOUNG AJA 24 October 1995, 8 November 1995 [1995] NSWCA 58 LIMITATION OF ACTIONS — WHETHER MATERIAL FACTS WITHIN MEANS OF KNOWLEDGE — s57b, s58 LIMITATION ACT 1969 FACTS The opponent gradually became aware that he probably had a hearing problem after 1981 and for a few years prior to June 1993 he had ringing in his ears. On 7 January 1993, the opponent learned that he might have a cause of action against his employer for hearing loss. Subsequently on 8 June 1993 proceedings were commenced against his employer. Moore DCJ ordered that the limitation period for the opponent's cause of action be extended to 7 January 1994 pursuant to s58 and s60G of the Limitation Act 1969. Held (per Clarke JA, Powell JA and Young AJA) The court grants the claimant leave to appeal and will consider whether the appeal should be upheld or dismissed - Ramton v Cassin (New South Wales Court of Appeal, 25 September 1995, unreported) considered. The sole question before the court is whether his Honour erred in granting an extension under s58(2) of the Act. The inquiry of whether "material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant" is directed at whether the applicant has taken all such steps which a person in his position might reasonably take or, to put it another way, whether the applicant has failed to take steps which a person in his position would, reasonably, have taken. The essence of the inquiry is whether he has shown that he has not failed to take reasonable steps. Where an applicant shows that he has taken all steps to determine the relevant fact which, objectively determined, were reasonable in the circumstances he would satisfy the test. Correspondingly, where he satisfies the court that a person in his position, and with his knowledge, would reasonably, not take any steps to ascertain the relevant fact it would follow that, not only had not fault on the part of the applicant been shown, but the applicant had satisfied the test. I would conclude that the plaintiff saw no reason to take steps to ascertain the relevant material facts until 1993 and that in the circumstances it would not have been reasonable to expect him to take any steps to become aware of those facts. Accordingly, his Honour was correct to grant an extension of time. Clarke JA Kenneth William Hall, the opponent, was employed by Brambles Pty Ltd, the claimant, from 12 March 1975 until 1991. During that time he worked in a noisy environment. In about 1981 the union to which he belonged arranged for his hearing to be tested. Following that test he was paid $1,000 by the claimant. Notwithstanding the fact that he had received compensation the opponent found it hard to accept that he was suffering any deafness. After 1981 he gradually became aware that he probably did have a hearing problem and for a few years prior to June 1993 he had ringing in his ears. On 7 January 1993 he visited Sydney with his son who had a conference With a barrister. On that occasion the opponent learned that 'industry guidelines were issued back in 1976 which advised that industry noise levels, such as those at Brambles, be reduced and measures be taken to test the hearing of workers and 2 UNREPORTED JUDGMENTS to provide them with hearing protection'. The opponent was also told that Government regulations were passed a few years after 1976 requiring noise levels in factories to be reduced to safe levels. He said that he did not know any of these facts before the conference. Following his discovery of those facts he instructed his solicitors to commence proceedings on his behalf. Those proceedings were commenced on 8 June 1993. The claimant filed its grounds of defence in July of that year contending, inter alia, that insofar as the opponent's injury was alleged to have been caused by his employment prior to 8 June 1987 the opponent was unable to maintain his action by reason of the operation of the Limitation Act 1969 ("the Act"). Before the defence had been filed, however, the opponent had lodged a notice of motion seeking an extension of time under s58 and s60G of the Act. His application was heard by Moore DCJ who, on 1 December 1993, ordered that the limitation period for the opponent's cause of action be extended to 7 January 1994. The claimant has sought leave to appeal from that decision. When the matter was returned before the court an order was made that this case be listed together with a number of other appeals, or applications for leave to appeal, concerning the provisions of s58 and/or 60G of the Act during a week set aside for these applications and appeals. The application then came before the court during the week set aside for limitation appeals and the court heard full argument on the application for leave and the merits of the appeal itself. In these circumstances the court ought, in my opinion, to grant the claimant leave to appeal and should proceed to consider whether the appeal should be upheld or dismissed. In saying that I do not wish to be thought to be disregarding the principles discussed in Ramton v Cassin (New South Wales Court of Appeal, 25 September 1995, unreported). That decision, as I understand it, expresses a flexible principle pursuant to which applications for leave to appeal by defendants from orders made pursuant to s58 or s60G of the Act extending the time for the institution of proceedings ought not in general to be entertained by the court. The substantive reason for that view being that the defendant would be entitled to appeal as of right once final judgment had been given in the action. If the present application had been dealt with in the motions list together with other applications for leave to appeal then it may well have been appropriate to apply that flexible principle but as the court adopted the course of adjourning the application and fixing a special time for the hearing of this and other applications, I consider it is incumbent upon the court to proceed to dispose of the issues raised by the challenge to Moore DCJ's order. Accordingly, as I earlier indicated, I would be disposed to grant leave and I will proceed to consider the merits of the appeal. The first point to be noted is that when the application came on for hearing before Moore DCJ the opponent expressly abandoned reliance on s60G of the Act. The reasons which led him to take this course are of no moment. What is important is that the sole question before the court is whether his Honour erred in granting an extension under s58(2) of the Act. That section provides, so far as is presently relevant, as follows: "58(2) Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that: (a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action; and URJ BRAMBLES AUSTRALIA LTD v HALL (Clarke JA) 3 (b).... the court may order that the limitation period for the cause of action be extended..." His Honour found that the opponent was aware in 1981 that the noise at his work place was potentially damaging to his hearing mechanism and that he was suffering from a hearing loss due to exposure to excessive work place noise; that that loss was compensible under the Workers Compensation Act; and that this loss could be permanent. His Honour went on to hold that the opponent was not aware, until January 1993, that there were industrial safety guidelines concerning noise which had not been observed by the claimant during the opponent's employment; that an employer can take steps to minimise noise in the work place; that measures can be taken to test a worker's hearing and that he (that is, the opponent) should have been directed to wear hearing protection. His Honour concluded that these were all material facts of a decisive character and were not within the means of knowledge of the opponent until 7 January 1993. In the circumstances he exercised his discretion in the opponent's favour and granted the extension sought. Although the written submissions of the claimant suggested a wide-ranging argument during the hearing of the appeal it became clear that there was only one point involved. In the light of Do Carmo v Ford Excavations Pty Ltd (19834) 154 CLR 234 (in particular the judgment of Dawson J at 258) the claimant accepted that the facts which I have identified and of which the opponent was unaware were "material facts of a decisive character" within the meaning of s58(2) of the Act. Its counsel, Mr D R Russell, also accepted that the opponent was unaware of those facts until January 1993. He submitted, however, that the opponent had not established that those facts were not within his means of knowledge within the meaning of the same subsection. He contended that there was no evidence upon which his Honour could have inferred, as he did, that the material of which the opponent became aware in January 1993 had not been within his means of knowledge prior to that time. The submission directs attention to the test by which means of knowledge is determined and which is set out in s57B(1)(e) of the Act. It reads: "(e) A fact is not within the means of knowledge of a person at a particular time if, but only if: (i) he does not, at that time, know the fact; and (ii) in so far as the fact is capable of being ascertained by him, he has, before that time, taken all reasonable steps to ascertain the fact;" It is clear enough that there was evidence which entitled his Honour to find that prior to January 1993 the opponent did not know the facts which were drawn to his attention at that time. The difficulty lies in the second part of the test. All that the evidence establishes is that the opponent had done nothing between 1981, when he received his compensation, and 1993 to ascertain the facts which have been characterised as material facts of a decisive character. How, Mr Russell enquires, could it be said that the opponent had taken all reasonable steps to ascertain the material facts when he did nothing? The question which is posed does not lend itself to a simple answer. The statement of the criteria by which the court is to determine whether a fact is within the means of knowledge of a person is connected in a complex way with the definition of 'the material facts relating to a cause of action which are of a decisive character'. Because, however, there is no substantial issue on the question whether the facts to which I have drawn attention were material facts of 4 UNREPORTED JUDGMENTS a decisive character, and the additional consideration that applications based upon s58 of the Act are rare and likely to become rarer, it is not necessary or desirable, in my opinion, to examine that connection in the present case. Turning back to s57(1)(e)(ii) I would observe that there are both subjective and objective elements involved in the inquiry. The use of the word 'reasonable' is, in my opinion, an instruction to apply an objective test but the context in which the word appears denies the proposition that one is concerned about the actions of the hypothetical reasonable person. The subsection requires the court, in my view, to consider whether a person, placed in a position of the applicant, had complied with the objective test of reasonableness set out in the subsection. The idea was more eloquently expressed by the Full Court of Victoria in McManamny v Hadley 1975 VR 705 at 714 in these terms: "The test to be applied is, we think, an objective one to be applied to a person in the position of the plaintiff and with her background and understanding." A similar test was applied by the Full Court in Queensland. (See also Castlemaine Perkins Ltd v McPhee 1979 QdR 469 at 472-3.) The argument that has been put is that the subsection requires that an applicant demonstrate that a step or some steps have been taken which are capable of satisfying the description "all reasonable steps". Correspondingly, it was said that where there has been a total failure to take any steps the court could not be satisfied, as a matter of law, that the applicant had taken all reasonable steps. The submission is to be viewed in the context of the policy underlying s57 and s58. This was described in terms with which I agree by Deane J in Do Carmo at 250: "Tt is that the limitation period should be extended only in favour of a person who was, without fault on his part, unaware that he had a worthwhile cause of action until not more than 12 months before the commencement of the proceedings". Having regard to that policy I do not think it correct to say that before the test can be satisfied the applicant must establish that he has taken steps which, although they failed to bring the relevant facts to his attention, were reasonable in the circumstances. Rather I think the inquiry is directed at whether the applicant has taken all such steps which a person in his position might reasonably take or, to put it another way, whether the applicant has failed to take steps which a person in his position would, reasonably, have taken. The essence of the inquiry is whether he has shown that he has not failed to take reasonable steps. Where an applicant shows that he has taken all steps to determine the relevant fact which, objectively determined, were reasonable in the circumstances he would satisfy the test. Correspondingly, where he satisfies the court that a person in his position, and with his knowledge, would, reasonably, not take any steps to ascertain the relevant fact it would follow that, not only had no fault on the part of the applicant been shown, but the applicant had satisfied the test. This aspect of these difficult sections of the Act has not received much detailed consideration in the authorities to which my attention has been drawn or which I have independently researched. I have, however, received considerable assistance from a passage in the judgment of Mahoney JA in Royal North Shore Hospital v Henderson, (1986) 7 NSWLR 283, at 299. There his Honour said: "But, in considering whether a plaintiff has, within s57(1)(e)(ii), 'taken all reasonable steps to ascertain' a relevant fact, it is necessary to determine whether, within the provision, the steps which he could have taken but did not take were 'reasonable steps'. The phrase 'reasonable steps' may have at least two significations. A particular step not taken may not fall within 'reasonable steps' URJ BRAMBLES AUSTRALIA LTD v HALL (Clarke JA) 5 because, in the circumstances, it was not reasonable to expect the plaintiff to take any steps at all; or it may not fall within the phrase because, though he could reasonably be expected to take some steps, the step in question could not reasonably be expected of him. The latter is, perhaps, the meaning ordinarily to be given to the phrase but it may, I think, also include the former. In the present context, I do not think it was intended that a fact should be taken to be within the means of knowledge of the plaintiff when it would not have been reasonable to expect him to take any steps at all." I agree with these observations. If an applicant establishes that it would not be reasonable to expect him to take any steps to discover the relevant facts, in my opinion, he satisfies the test posed in the subsection. An alternative way, perhaps a slightly different way, of expressing the same notion is to say that an applicant will satisfy the test where he establishes that he has not unreasonably failed to take particular steps to ascertain that fact. In these circumstances, it is necessary to consider whether the applicant ought reasonably to have taken some steps to ascertain the relevant facts which, it should be remembered, concerned the practicable means available to the claimant to obviate or minimise the risks of injury to its workers arising from the noisy environment. It is relevant in considering this question to note that the opponent had spent his life working as a plant operator and there is not the slightest indication in the evidence that he had any knowledge of legal matters. All that, relevantly, he did know was that he was suffering from a hearing loss due to exposure to excessive workplace noise and that that loss was compensible under the Workers Compensation Act. Although he had received compensation there is no indication to be found in the evidence that he was aware that additional compensation was available for a deterioration in his hearing (a factor only marginally relevant) or that he was aware that he might have a claim for damages. Unless he was aware of the latter possibility there would be no reason for him to make enquiries which may have made him aware of the relevant facts. A relevant consideration is the nature of the disability suffered. I would readily accept that workers who received frank injuries at work in circumstances where there was apparent fault on the part of another worker might, during the 1980's, have understood that they had two available areas of compensation, viz, under the Workers Compensation Act and at common law. In circumstances such as those a worker who had not taken some steps to ascertain whether he had a cause of action, and thereby learnt of the nature of the breaches of duty of the employer, may be unable to satisfy the test. But this case is not concerned with a frank injury but the insidious development of a hearing loss. It is not readily apparent to me that, given that common law claims for boiler makers, and other forms of industrial, deafness were relatively rare until recent times, a worker during the 1980s would have thought his deafness may be compensible at common law. Indeed the spate of applications for an extension of time under the various provisions of the Act in respect of deafness claims suggests to the contrary. More to the point the only inference available from the evidence given by the applicant that he learned in 1993 for the first time how his hearing could have been protected is that he was previously unaware of his possible rights to claim damages at common law. Indeed, he was not cross-examined to suggest otherwise. It is said that the absence of cross-examination could not assist the opponent to discharge his onus of proof. That is, of course, correct except insofar as the relevant statements in 6 UNREPORTED JUDGMENTS the opponent's affidavit are left unchallenged. There is, therefore, no reason to decline to draw the proper inferences available from those unchallenged statements. I would conclude that the plaintiff saw no reason to take steps to ascertain the relevant material facts until 1993 and that in the circumstances it would not have been reasonable to expect him to take any steps to become aware of those facts. Accordingly, his Honour was correct to grant an extension of time. The application for leave to appeal should be granted and the appeal should be dismissed. The claimant is to pay the costs of the application for leave to appeal and the appeal. Powell JA I agree with Clarke JA. Young AJA I also agree with Clarke JA. The application for leave to appeal is granted and the appeal is dismissed. The claimant is to pay the costs of the application for leave to appeal and the appeal. COUNSEL: Claimant: DR RUSSELL Opponent: A PUCKERIDGE QC AND M THOMPSON SOLICITORS: Claimant: EBSWORTH AND EBSWORTH Opponent: MORRIS MAY AND CO