MARKARIAN v WOOLWORTHS LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE and POWELL JJA and BADGERY-PARKER AJA 27 October 1995, 7 November 1995 [1995] NSWCA 273 LIMITATION OF ACTIONS — PERSONAL INJURY — PRINCIPLE OF FINALITY IN INTERLOCUTORY APPLICATIONS — MISCARRIAGE OF JUSTICE — LIMITATION ACT 1969 (NSW) S60F, S60I FACTS The claimant first noticed hearing difficulties some time in the period between 1980 and 1982. In March 1984, she learnt that she was suffering from a 43.9 per cent loss of hearing in the left ear and 21.4 per cent in the right ear. In 1985, she was awarded compensation for this loss of hearing. In 1992, she first learnt that she had an 82.3 per cent hearing loss in her left ear and 23.3 per cent in her right ear. His Honour applied s60F of the Limitation Act 1969 and dismissed the claimant's application for an extension of time. HELD His Honour erred in deciding that the claimant became statute barred at about the beginning of 1986: Colorado v Haden Engineering Pty Ltd and Anor (New South Wales Court of Appeal, 6 November 1995, unreported) followed. Since his Honour handed down his judgment, Dedousis v The Water Board (1994) 181 CLR 171, was handed down by the High Court. A claimant now has to satisfy the requirements laid down in s60I of the Limitation Act. Sinclair J did not directed his attention to the inquiry under s60I(1)(a)(iii) and hence did not apply the correct legal principles in reading his determination. In the interests of justice, the Court should grant leave to appeal and allow the appeal. Colorado was followed. Since the correct issue was never addressed this Court is unable finally to deal with the application and the proceedings should be remitted for determination in accordance with the law. Clarke JA Ziazan Markarian, the claimant, has applied for leave to appeal froma judgment of Sinclair DCJ dismissing his application for an extension of time pursuant to s60G of the Limitation Act 1969 ("the Act"). The application was heard during a special list and one of the orders made at the time of listing was that the court should also hear full argument as though the proceeding was an appeal with the intent that if the court thought that the application should be granted it would finally dispose of the appeal. The claimant commenced employment with Woolworths Limited, the opponent, on 14 March 1974. At that time she had no hearing difficulty. In about 1975 she was transfered to the meat section of the opponent's store where she worked for eight and a half years full time and two years part time. In 1985 she ceased her employment with the opponent. She asserted that during this period she was constantly exposed to excessive noise at work. She also said that she first noticed hearing difficulties some time in the period between 1980 and 1982. In or about 1984, on the recommendation of her union, she consulted Messrs White, Barnes and McGuire in relation to her increasing hearing difficulties. She was examined by Dr C A Chappel in March 2 UNREPORTED JUDGMENTS 1984 and he expressed the opinion that she was suffering from a hearing loss in the left ear of 43.9 per cent and in the right ear of 21.4 per cent. This loss was consistent with noise exposure. On 4 July 1985 she was awarded compensation by the State Compensation Board for loss of hearing in each ear. The Board also found that she suffered from further loss of hearing from indeterminate causes not being due to industrial noise. In 1992 she consulted Messrs Morris May and Co, solicitors, and she was referred for consultation with Mr D Keck, an industrial audiologist. She says that she was informed by Mr Keck that she had a hearing loss of 82.3 per cent in the left ear and 23.3 per cent in the right ear and that Mr Keck was the first person to inform her of the extent of her hearing loss. Before Sinclair DCJ there was a dispute between the parties as to the time at which her cause of action became statute barred under the Act. His Honour was of opinion that it had not been established that she suffered damage to her hearing before January 1980 and went on to hold that her cause of action arose at that time and the limitation period expired at about the beginning of 1986. His Honour also held that by July 1985 the claimant was aware of the fact, nature and extent of the physical cause of her hearing impairment, as referred to in s60F, and for this reason he was not satisfied that at the relevant time (the time when her cause of action became statute barred under the Act) she had satisfied the provisions of s60F and dismissed her application. There are a number of errors in this approach. The first concerns his Honour's determination that the cause of action became statute barred at about the beginning of 1986. In Colorado v Haden Engineering Pty Ltd and Anor (New South Wales Court of Appeal, 6 November, 1995, unreported) I pointed out that the correct test was that applied by Handley JA in Commercial Minerals Pty Ltd v Hollins and Ors (New South Wales Court of Appeal, 22 December 1993, unreported). There his Honour said: "While exposure to industrial dust continues new causes of action will accrue from time to time as a worker suffers further not insignificant loss or damage. See Cartledge v E Jopling and Sons Ltd [1963] AC 758." Although it would be correct to say that all causes of action which had accrued by January 1980 were statute barred by January 1986 it was not correct to say, as his Honour did, that there was a universal time when her causes of action expired and that was in January 1986. The second and more important error flowed from his Honour's application of the principles laid down by this Court in Electricity Commission (NSW) v Plumb ([{1992] 27 NSWLR 364) and Dedousis v The Water Board (20 August 1993, unreported). Since his Honour gave his decision the High Court has handed down its decision in the appeal in Dedousis ((1994) 181 CLR 171) in which it held that this Court was in error in concluding that an applicant for an order under s60G needed to satisfy the requirements of s60F. The High Court held that s60F was, in essence, introductory and that before an order could be made extending time under s60G an applicant needed to establish that he or she had satisfied the requirements contained in s60I. Although there are some common conditions in s60F and s60I there is one very important distinction between them. The former section speaks of the cause of the injury, which was interpreted by this Court as meaning the physical cause, whereas s60I speaks of the connection between the personal injury and the defendant's act or omission. There is no identity between the two concepts. On the contrary they involve completely different inquiries. Sinclair DCJ never directed his attention to the inquiry under s60I(1)(a)(iii) and, URJ MARKARIAN v WOOLWORTHS LTD (Badgery-Parker AJA) 3 as that subsection posed the relevant test, his Honour did not apply the correct legal principles in reaching his determination. Counsel for the opponent submitted that the claimant did not seek to make out a case that she had satisfied the tests in s60I and that it was now too late for her to seek to rely on the principles laid down by the High Court in Dedousis. He referred the court to the two strands of authority those embodied in Eggins v Brooms Head Bowling and Recreational Club Ltd [1984] 5 NSWLR 521 and Coulton v Holcombe ([1986] 162 CLR 1) - which he said precluded this Court from entertaining the arguments now advanced by the claimant. A similar argument was put forward in Colorado and I there explained that, as applications for extensions of time under s60G involve the making of interlocutory orders, the principles in those cases should not automatically be applied. I also expressed the opinion that in circumstances such as have occurred in this case the court was required to balance the needs of justice in order to determine whether the principle of finality applied or whether the balance favoured the setting aside of-an apparent miscarriage of justice. I would apply the same approach in this case and would conclude that the interests of justice require that the court grant leave to appeal and allow the appeal. In saying that I have not overlooked an additional argument put by counsel for the opponent to the effect that there was no evidence led before Sinclair DCJ capable of satisfying the court that the claimant was unaware of the connection between her injury and the defendant's act or omission (s60I(1)(a)(iii)). I think that the opponent's counsel is correct in this submission. Although there is evidence from which it may be possible to draw the inference that the claimant was unaware of the relevant matter, that evidence is so sparse that it would be unsafe, in my opinion, to act upon it and draw the inference on which the claimant relies. I do not, however, consider that this is a relevant matter which should effect our approach to the order which should be made in the case. The primary reason that I say this is that there was no issue before the District Court as to whether s60I had been satisfied or not and it would be quite wrong, in my opinion, for this Court to dismiss the appeal because the evidence before the court was not capable of satisfying the tests set out in s60I. Because, however, the correct issue was never addressed this Court is unable finally to deal with the application and the proceedings should be remitted for determination in accordance with the law. The following orders should be made: (1) Grant leave to appeal; (2) Allow the appeal and set aside the order of Sinclair DCJ; (3) Remit the proceedings to the District Court for determination in accordance with law; (4) The opponent should pay the claimant's costs of the application and of the appeal and is to have, if qualified, a certificate under the Suitors Fund Act. Powell JA I agree with Clarke JA. Badgery-Parker AJA I agree with Clarke JA. (1) Grant leave to appeal; (2) Allow the appeal and set aside the order of Sinclair DCJ; (3) Remit the proceedings to the District Court for determination in accordance with law; 4 UNREPORTED JUDGMENTS (4) The opponent should pay the claimant's costs of the application and of the appeal and is to have, if qualified, a certificate under the Suitors Fund Act. 5 COUNSEL: Appellant: B Robinson Respondent: C Moore 10 SOLICITORS: Appellant: Maurice May and Co Respondent: Blake Dawson Waldron