DRAYTON COAL PTY LTD v DRAIN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, PRIESTLEY and MEAGHER JJA 9 August 1995, 22 August 1995 [1995] NSWCA 131 LIMITATION OF ACTIONS — where employee aware that condition resulted from employment — only later aware of precautions available — whether "unaware of the connection between the personal injury and the defendant's act or omission" — requirements of section satisfied. Limitation Act 1969, s601(1), "unaware of the connection between the personal injury and the defendant's act or omission". Dedousis v The Water Board (1994) 181 CLR 171, applied and explained. LIMITATION OF ACTIONS - Limitation Act 1969 The respondent, whilst in the appellant's employ, suffered industrial deafness. Before the expiration of the limitation period he knew that his condition resulted from his employment, but he only later learned of the principal steps which the appellant could have taken, but failed to take, to protect workers from industrial deafness. The appellant argued that the respondent could not satisfy s601(1) of the Limitation Act because he was aware that his condition resulted from the appellant's failure to maintain a safe system of work, even though he did not know the full particulars of that failure - HELD - The respondent could satisfy s60I(1). Dedousis v The Water Board (1994) 181 CLR 171 applied and explained. WORDS AND PHRASES - "unaware of the connection between the personal injury and the defendant's act or omission" Limitation Act 1969 ORDERS 1. Leave to appeal granted. 2. Appeal dismissed with costs. Gleeson CJ This matter raises questions as to the application, to a rather commonplace set of circumstances, of the principles laid down by the High Court in Dedousis v The Water Board (1994) 181 CLR 171. The facts of the case are similar to those in Dedousis. Having resolved certain issues as to the construction of relevant provisions of the Limitation Act 1969, the High Court in Dedousis sent that case back for further consideration at first instance. It has been submitted to us that their Honours did so leaving unresolved some important questions. For reasons that will appear, I am unable to accept that submission. The matter comes to this court by way of an application for leave to appeal against a decision of his Honour Judge O'Reilly QC in the District Court, who exercised the power given by s60G of the Limitation Act 1969 to extend the limitation period applicable to a cause of action propounded by the respondent against his employer, the appellant. By agreement, the court, on the leave application, heard full argument on the proposed grounds of appeal. Having regard to the number of other matters likely to be affected by the outcome in this case, it is a proper case for the granting of leave. The respondent claims to suffer from industrial deafness, contracted during his employment with the appellant. During the late 1980's the respondent was employed by the appellant as a storeman. His employment required him to work near noisy machinery. The excessive noise caused considerable discomfort for the respondent and other 2 UNREPORTED JUDGMENTS workers, and they requested the installation of sound dampening equipment in their workplace. Those requests were not complied with. By 1988 the respondent knew that he was suffering from a degree of deafness associated with his working conditions. He knew that he was working in an area where he was exposed to excessive noise, and that his employer had taken no steps to protect him by installing sound proofing or other noise dampening equipment. That was the extent of his relevant knowledge before he consulted a solicitor in 1992. When the respondent consulted a solicitor he was informed, for the first time, that there was an Australian Standard, which established a Hearing Conservation Code, and which, in its application to his case, set out a number of requirements which, if complied with, would have protected his hearing. According to the case the respondent will seek to make out at trial, those requirements included regular hearing testing, the provision to employees of advice and information as to steps that could be taken to protect hearing, and the supply of hearing protection devices. O'Reilly DCJ, of course, did not make any final determination of the merit of the respondent's complaints, but it was apparent from the particulars of negligence, the evidence, and the arguments of counsel, that the respondent was setting out to establish a case in negligence going substantially beyond any complaint, of the kind made in the late 1980's, about the failure to install, in the workplace, sound dampening materials. It was argued on behalf of the appellant, both at first instance and in this court, that by 1988 the respondent was aware that he was suffering from industrial deafness, that it was caused by his noisy working environment, and that his employer had taken no steps (whether of the kind being urged by the employees or of any other kind) to deal with the problem. However, his Honour held that, before consultation with a solicitor in 1992, the respondent "had only a primitive appreciation of the connection between any failure of the defendant and his hearing loss". In a later passage in his reasons for judgment O'Reilly DCJ said that, on the authority of Dedousis, the critical question was whether, until he consulted his solicitor in 1992, the respondent was not aware that his hearing could have been protected by the provision of a thorough hearing conservation programme. Although there is no explicit finding on the answer to that question, the way in which O'Reilly DCJ decided the case makes it reasonably clear that he resolved that issue in favour of the respondent. In summary, there was evidence on the basis of which O'Reilly DCJ was entitled to find, and he found, that it was not until 1992 that the respondent became aware of the alleged shortcomings in the conduct and workplace practices of his employer upon which he intended substantially to rely in making out his cause of action. Some years before that he was aware of his injury, and the fact that it resulted from his working conditions, and he was also aware that, despite complaints, his employer had done nothing to alleviate those conditions. On the other hand, he was not aware of the requirements of the Australian Standard, or of the steps that could and should have been taken pursuant to that Standard, or that the taking of those steps as prescribed would have prevented his deafness, and in that respect he was not aware of the acts or omissions upon which he intended to rely at trial if granted an extension of the limitation period to sue his employer. The relevant statutory provisions are contained in Subdiv3 of Div3 of Pt3 of the Act. URJ DRAYTON COAL PTY LTD v DRAIN (Gleeson Cu) 3 Subdivison 3 commences with s60F which provides: "60F The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) or causes of action that accrued before that date." S60G provides: "60G (1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, or damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897. (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines." S60I provides, so far as is relevant: "601 (1) A court may not make an order under s60G... unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered; or (ii) was unaware of the nature or extent of personal injury suffered; or (iii) was unaware of the connection between the personal injury and the defendant s act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in para(a) (i) - (iii)." The respondent's cause of action arose before 1 September 1990, but he relied upon the operation of Sch5 to bring the case within the potential scope of s60G. The respondent's application for an extension of time was made in 1992, and, in the light of the decision in Dedousis it was common ground that the effect of CL4(4) of Sch 5 to the Act was that the respondent had to satisfy the requirements of s60I(1). For the purposes of a case such as the present the decision of the High Court in Dedousis establishes the following propositions: S60F is no more than an introductory provision that indicates the purpose of Subdiv3. It is in s60I(1), and not in s60F, that the requirements to be satisfied by a plaintiff are to be found. 2 The requirement, in s60I(1)(a)(iii), that the plaintiff was, at a specified time, unaware of the connection between the plaintiffs personal injury and the defendant's act or omission, is not identical to a requirement (of a kind which might be inferred from s60F) that the plaintiff was unaware of the cause of the injury. (The decision in Dedousis turned upon that difference). 3 S60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. The legal complexion which may be put upon a set of facts or circumstances (eg actionable negligence), and the plaintiff's awareness of that legal complexion, is not what matters for the purpose of s601(1). 4 UNREPORTED JUDGMENTS 4 The acts or omissions referred to in s60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s60G. Those acts or omissions, in a case such as the present (as in Dedousis) will be found in the plaintiff's particulars of negligence. (In this connection I refer, not to the product of some word processor, which, as some of the particulars in the present case illustrate, might include allegations that are either inapplicable or of marginal relevance, but to the material particulars as they emerge from a consideration of the statement of claim and the evidence in support of the application for an extension of time). 5 If a plaintiff alleges that his or her employer has failed to provide him or her with a safe system of work and is able to establish that he or she was not aware that there was a safer alternative system then s60I(1)(a)(iii) will be satisfied. 6 Even so, it will still be necessary for the court dealing with the application for an extension of time to decide whether, under s60G(2), it is just and reasonable to extend the limitation period. The argument in the present case was principally concerned with the propositions in 4 and 5 above. However, the proposition in 6 is relevant to a determination of those arguments. Senior counsel for the appellant contended that O'Reilly DCJ took an inappropriately particular view of the meaning of the expression "the defendant's act or omission" in s60I. Here, it was argued, the relevant act or omission was the failure to provide a safe system of work, or the failure to provide adequate protection for the hearing of employees such as the respondent, and this was something of which the respondent was aware in 1988. The information obtained by the respondent in 1992 may have added some further detail to the knowledge and information already possessed by the respondent, but this was immaterial. The respondent knew, in 1988, the essential facts which were to form the basis of his claim against the appellant, and he could not establish that he was unaware of the connection between his deafness and his employer's failure to protect him against excessive noise, which was, in essence, the relevant act or omission relied upon. The first thing to be observed about this argument is that it is difficult to reconcile with the actual decision in Dedousis. In Dedousis the High Court accepted an argument based upon the difference between the particulars of negligence being relied upon by the plaintiff, and the somewhat narrower complaint which had been known to, and made by, the plaintiff some years before instituting his action. (See 181 CLR at 181). In the resolution of a problem of the kind that arose in Dedousis, and that arises in the present case, it may be necessary for a court to consider questions of degree. In the evaluation of a contention that a plaintiff was unaware of the connection between the plaintiff's injury and the defendant's act or omission, a court may well be confronted with a situation where, before and at the relevant time, the plaintiff was aware of some acts or omissions on the part of the defendant, and the connection between those acts or omissions and the plaintiff's injury, but not of other acts or omissions upon which reliance will be placed at a trial. The mere fact that a plaintiff's lawyers can think up some act or omission, upon which they will wish to place some reliance at a trial, which was not known to the plaintiff at the relevant time, does not automatically mean that the requirements of s60I(1)(a)(iii) are satisfied. On the other hand, the decision in URJ DRAYTON COAL PTY LTD v DRAIN (Meagher JA) 5 Dedousis establishes that unawareness of a material act or omission:which constitutes a substantial ground upon which reliance will be placed is sufficient to satisfy s60I(1)(a)(iii). It is important to bear in mind, however, that satisfaction of the requirements of s60I(1)(a)(ii) is not an end to the matter. One of the considerations which, in a given case, it may be proper to take into account under s60G(2) is the extent of a plaintiffs awareness at the critical time of acts or omissions which, by reason of their connection with the plaintiffs injury, are to be relied upon as constituting actionable negligence. It may well be that such questions of degree will also have a bearing upon the justice and reasonableness of extending a limitation period. The same applies to the other aspects of s60I(1)(a). For example, a plaintiff might be able to establish that he or she was unaware of the full extent of personal injury suffered, but a court might take the view that, at the relevant time, the plaintiff's awareness, although not complete, was so extensive that it would not be just or reasonable to extend the limitation period. Similarly, the state of a plaintiff's awareness of certain acts or omissions connected with the plaintiff's injury may, in a given case, lead a court to conclude that it would not be just or reasonable to permit the plaintiff to have an extension of the limitation period, even though the plaintiff is able to establish that some other act or omission only came to notice at a later time. In other words, s60G(2) may, depending upon the facts and circumstances of a case, operate as an important qualification upon the practical effect of s60I. In the present case O'Reilly DCJ was correct to conclude that the requirements of s60I had been satisfied by the respondent, and there was no error in his discretionary decision under s60G(2). Leave to appeal should be granted. The appeal should be dismissed with costs. Priestley JA I agree with Gleeson CJ. Meagher JA I agree with Gleeson CJ. 1. Leave to appeal granted. 2. Appeal dismissed with costs. COUNSEL: Appellant: RR Stitt QC/GM Watson Respondent: D Jackson QC/B Robinson SOLICITORS: Appellant: Sparke Helmore Solicitors Respondent: Maurice Hay and Co Solicitors