CSR LTD v RENDELL NSW SUGAR MILLING CO-OP LTD v RENDELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, SHELLER and COLE JJA 3 June, 7 August 1996 [1996] NSWCA 133 Damages — Certainty — Extension of time. Limitations of actions — Limitation Act 1969 s60G, s60I — Whether extension just and reasonable — Plaintiff's knowledge — Intervening causes — Assessment of damages uncertainty. The plaintiff worked for the first defendant from January 1976 to August 1978 and for the second defendant between August 1978 and June 1982 and claimed damages for industrial deafness resulting from those employments. The plaintiff's possible causes of action against the first defendant became prima facie statute-barred in August 1984 and against the second in June 1988. The plaintiff began proceedings and applied for extensions of time on 30 August 1993. The plaintiff had audiograms in 1979 and 1989 noting hearing loss and as early as 1982 had noted hearing difficulties. He had consulted doctors and made enquiries as to making a claim in 1987, had suffered from tinnitus from firing a shotgun in 1987, possibly participated in gun clubs, played in bands, and had other industrial exposure. On 5 February 1996 the trial judge, applying Dedousis v The Water Board (1994) 181 CLR 171, found that the plaintiff had satisfied the pre-conditions for extending time under s60I(1)(a)(ii) and s60I(1)(a)(iii) of the Act and extended the limitation period for the plaintiff's causes of action. The defendants sought leave to appeal and the parties agreed to treat the hearing of the summonses as the hearing of the appeals should leave be granted. HELD, granting leave and allowing the appeals: (1) Despite some evidence indicating the plaintiff's knowledge of the extent of his hearing loss, the trial judge's decision that the case fell within s60I(1)(a)(ii) and s60I(1)(a)(iii) of the Limitation Act 1969 should not be disturbed; (2) Where some real loss has been proved, difficulties in quantifying loss do not deprive a plaintiff of his right to damages and where the proceedings are brought as of right the Court is bound to do the best it can; (3) However, given the plaintiff's knowledge at earlier periods when his hearing could have been tested, the absence of the 1979 audiogram, and the numerous intervening causes, quantification would be speculative and uncertain; (4) Under s60G(2) it would not be just or reasonable to extend time against either defendant: Harris v Commercial Minerals Ltd (1996) 70 ALJR 425 and Drayton Coal Pty Ltd v Drain (unrep, CA 22/8/95) applied. Handley JA These proceedings heard together by consent comprised two summonses by defendants, CSR Ltd (CSR) and New South Wales Sugar Milling Co-operative Ltd (the second claimant), for leave to appeal from orders of Cramer-Roberts ADCJ of 5 February 1996 extending the limitation period for the plaintiff's causes of action for industrial deafness pursuant to s60G of the Limitation Act. The parties agreed to treat the hearing of the summonses as the hearing of the appeals should leave be granted. The plaintiff applied for these extensions on 30 August 1993 on the second last day of the 3-year period provided for in Sch 5 cl4(4)(b) of the Act. He was suffering from industrial deafness which had been assessed on 17 August at 2 UNREPORTED JUDGMENTS 28.2% in the left ear and 20.6% in the right. He had been employed as a fitter and turner on maintenance work at Broadwater Sugar Mill first by CSR and then by the second claimant and later at Harwood Sugar Mill by the latter. The plaintiff worked for CSR at the Broadwater Mill from January 1976 to August 1978 when the mill was sold to the second claimant. He continued to work at that mill for the second claimant until June 1979. He then worked for six weeks at a sawmill in Grafton although he said this was in the yard away from any noisy machinery. He was re-engaged by the second claimant at its Harwood Mill in December 1979 and remained there with short interruptions until June 1982. The plaintiff claimed that his industrial deafness had been substantially caused by his exposure to noise in these mills and the failure of the employers to provide appropriate hearing protection. Dedousis v The Water Board (1994) 181 CLR 171 establishes that the pre-conditions for an extension of time in a case within Sch 4 cl4(4)(b) are contained in s60I(1)(a). This provides that the limitation period for a cause of action may be extended if the court 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;". The plaintiff conceded before the primary judge that he could not rely on para(a)(i) but claimed to rely on the others. He had an audiogram in 1979 shortly after leaving the employment of the second claimant before commencing employment at the sawmill. After the audiogram he was told he had a hearing loss due to industrial deafness. When he left the employment of the second claimant for the last time, he was aware of difficulties with his hearing if there was a lot of background noise. The primary judge found that by 1987 the plaintiff was careful to wear earmuffs in a noisy working environment, and he was then aware of a continuing impairment in his hearing (judgment at 8, 12). He learned that workers at the Harwood Mill were making claims for hearing loss with the assistance of their union. Although he was no longer employed by the second claimant he went to the mill and attempted to make a claim through his former union but was told he could not because he did not work there anymore. About this time the plaintiff began suffering from a "ringing" in his ears but it emerged in cross-examination and from subpoenaed medical records that in August of that year he had fired two barrels of his shotgun at a snake in his garage without using earmuffs. On 24 August he complained to his local doctor, Dr Alcock, of ringing in both ears since that incident. The doctor diagnosed tinnitus and told the plaintiff that nothing could be done to improve his hearing. The plaintiff may have been referred by Dr Alcock to Dr Hulcome, an ENT specialist, who may have taken an audiogram (T17, 18). Two years later the plaintiff was still complaining of tinnitus and Dr Alcock referred him to Maclean Hospital for a hearing assessment. On 10 August 1989 following a tympanogram and audiogram the assessor reported that there appeared to be "a mild dropping to moderate sensorineural hearing loss in both ears". The audiogram was before the primary judge but by an oversight was not URJ CSR LTD v RENDELL (Handley JA) 3 tendered in evidence. It was tendered in this Court and admitted by consent becoming Exhibit A. The report also states: "Tinnitus for past 2 years following loud noise Worked in noise 9-10 years (1975-84) Difficulty in hearing noted by wife c/o difficulty hearing high frequencies". Dr Alcock's clinical notes in evidence included an entry for 10 July 1989 which referred to the plaintiff's activities in "gun" clubs. Dr Hulcome, an ENT surgeon to whom the plaintiff was referred, recorded a history from the plaintiff that he had been a "pistol" shooter. The plaintiff denied at the hearing that he had ever been a pistol shooter, but was not asked either to deny or confirm his activities in any other form of "gun" club, although it was clear that in 1987 he had both a shotgun and ammunition at his home. The plaintiff also agreed in cross-examination that during the 80's he had played an electric piano in bands which performed at local golf and bowling clubs and elsewhere. One of the bands was known as "Swing-a-long" which does not suggest a likely source of hearing loss, but another band known as "Stagefright" with which he played five or six times conveys no such reassurance and the plaintiff rehearsed with another band known as "The River Rats", which also suggests a less harmless form of music although he said he did not play in that band. Music from some of these bands was amplified and the plaintiff agreed that it was "sometimes" difficult to have a conversation on stage because of the noise. During August 1993 the plaintiff responded to an advertisement in a newspaper inserted by his present solicitors and as a result his hearing was tested again on 17 August with the results previously stated. A comparison of the two audiograms discloses that the plaintiff had suffered further hearing loss during the intervening four years particularly in the higher frequencies at and above 3,000 hertz. As a matter of technicality it seems likely that the plaintiff, while exposed, as he claims, to unreasonable noise levels when working for the claimants was periodically acquiring fresh causes of action as and when he suffered appreciable noise-induced hearing loss. Cf Milne v International Combustion Australia Ltd (1953) WCR 80. On this basis the last of the plaintiff's possible causes of action became prima facie statute-barred in the case of CSR in August 1984, and in the case of the second claimant in June 1988. Although the trial judge found that the plaintiff had satisfied the conditions in s601(1)(a)(ii) and s60I(a)(iii), the findings are not in all respects persuasive. The plaintiff knew he had industrial deafness in 1979 when he had his first audiogram, and subsequent events reinforced this knowledge. His hearing deteriorated and in 1982 he knew it was worse. He consulted doctors in 1987, may then have had another audiogram, and consulted his doctor again in 1989 when he had an audiogram which is in evidence. He was then told that he "had lost quite a lot hearing" (T14). The 1989 audiogram includes a history of having worked "in noise' between 1975 and 1984. The plaintiff did not ask about the extent of his hearing loss in percentage terms and did not know this until August 1993. However he was aware of the practical results of his loss because the history recorded in the 1989 audiogram included "difficulty in hearing noted by wife c/o difficulty hearing high frequencies". Some of this information came to his knowledge after the expiration of the last limitation period against CSR in 1984 and against the second claimant in 1988. 4 UNREPORTED JUDGMENTS The plaintiff knew of the existence of earmuffs and the purpose for which they were worn while working at Harwood for the second claimant. The judge found that in 1987 the plaintiff was using earmuffs when working in noisy conditions, although perhaps this finding should have related to 1989/90. However, there was evidence that he was not aware before 1993 that the claimants could and should have reduced the noise levels in their mills. He was also not aware until then of the precise extent of his hearing loss. I am content to proceed on the findings of the trial judge that the plaintiff had brought his case against both claimants within s601(1)(a)Gii) and s601(1)(a)(iii). The plaintiff however knew a great deal about the matters referred to in those subparagraphs before 1984 and 1988, even if his knowledge was not then complete. The conditions for the exercise of the power in s60G(2) made available by cl4 of Sch 5 were therefore satisfied in each case and the remaining issue is whether it was "just and reasonable" within s60G(2) to extend the limitation periods. In the past such a finding may have been treated as a formality, but it is now clear from the decisions in Harris v Commercial Minerals Ltd (1996) 70 ALJR 425 at 432 and Drayton Coal Pty Ltd v Drain (CA 22/8/95 u/r at 7-8 per Gleeson CJ) that this is not the case. There is evidence from the plaintiff, and indirectly from the history in the 1989 audiogram, that he was exposed to industrial noise during 1975 while working as an apprentice fitter and turner for Broadway Milling Supplies in Sydney. The evidence does not reveal the plaintiff's work history after leaving Harwood Mill in 1982 until he started work in an engineering workshop either in 1987 or 1989-90. However the 1989 audiogram reports him working in industrial noise until 1984. His work at the sawmill may be put to one side because the period was short' and the exposure minimal. However there remains his exposure to noise through some of his music and his shooting, including the 1987 incident. The 1979 audiogram was not in evidence, and the plaintiff's advisers appear to have made no attempt to secure its production to the Court, or to discover whether it still existed. If it still existed it would substantially fix and limit CSR's liability and limit the liability of the second claimant. On the plaintiff's evidence an audiogram may also have been taken in 1987. Such an audiogram, if still in existence, would identify any further hearing loss which occurred between 1987 and 1989, and thus help fix and limit the liability of the second claimant. Dr Carroll, an ENT specialist, provided evidence for CSR in the form of a report dated 23/12/94. He said that in the absence of bridging audiograms any assessment of the plaintiff's hearing loss while working for CSR was "necessarily conjectural". He also said that exposure to constant levels of industrial noise does not necessarily result in constant development of noise-induced hearing loss, and that this was a controversial area. There was no evidence to the contrary. There was also evidence that hearing loss due to industrial noise does not continue after exposure has ceased. The Court asked Mr Andrews, counsel for the plaintiff, how the plaintiff proposed to prove the extent of his hearing loss caused by the negligence of the claimants if liability were established. He had two answers. The first was that their failure to test the plaintiffs hearing during his employment was a breach of their duty of care and this would assist the Court in assessing his damages. However Mr Andrews later accepted that such claims were statute-barred, and the limitation periods could not be extended because those claims were not for personal injury. See s60G(1). The second was that where some real loss has been URJ CSR LTD v RENDELL (Handley JA) 5 proved, difficulties in quantifying that loss do not deprive the plaintiff of his right to damages and the Court is bound to do the best it can. This principle is well established and was not challenged; see Luntz 3rd ed 1990 at 79-81, 98-9. He also referred to the decision of this Court in Corowa Timber and Moulding Mill Pty Ltd v Wood (11/5/89 u/r) where Priestley JA said that this principle applies "where it is necessary to put a figure on the degree of physical loss suffered during a particular period" and continued: "I think that in the present case, the evidence of some injury before employment, increased injury during the two periods in the moulding shed, the latter only being compensable, stabilisation after leaving the employment and the quantification of hearing loss by Dr Hunter in 1982 is sufficient, perhaps barely sufficient, but sufficient to justify a conclusion that on the probabilities the respondent suffered in the order of 30% of his total hearing loss during the last three months of his employment with the appellant". In that case the plaintiff worked for the appellant between 19/1/77 and 5/2/79 and had been exposed to dangerous noise levels at the beginning and end of his employment. Only the latter period was within 6 years of the statement of claim and an extension of time in respect of the earlier period had been refused. The facts of the case are remote from those in the present cases. Only one employer was involved, extraneous exposure to loud noise after the employment ceased was not suggested, the plaintiff's hearing had been tested within 3 years of leaving that employment, and he had a cause of action which was within time. That case therefore had far less complications than the present ones. The most important difference in my view is that damages were awarded in respect of a cause of action which was not time-barred that the plaintiff could enforce as of right. The question in the first of the present cases is whether it was just and reasonable in 1996 to grant an extension of the limitation periods in respect of the plaintiff's causes of action against CSR which became time-barred between 1982 and 1984. If the tribunal of fact accepted the plaintiff's case on liability, the assessment of damages would require the effects of noise exposure while employed by CSR for 2 years 4 months to be separated from the effects of noise exposure with Broadway Milling Supplies (12 months), the second appellant (3 years 6 months less breaks), elsewhere in 1982-4 (up to 2 years 6 months), from the shooting incident of August 1987, other shooting, his exposure to loud music, and his further exposure to industrial noise at the workshop after 1987. If the audiogram taken in 1979 had been available, the situation would have been very different because the Court could have separated the plaintiffs hearing loss due to noise exposure at Broadwater Mill and at Broadway Milling Supplies from his hearing loss due to all later noise exposure. Moreover that audiogram would have shown what the plaintiff's actual hearing loss was in 1979. The plaintiff was told in 1979 that he had some industrial deafness, and he knew before the limitations periods against CSR started to expire in 1982 that his hearing had further deteriorated but he made no claim at that time, even for workers' compensation. Had he done so it is reasonable to suppose that the 1979 audiogram would have been available, and another audiogram would have been taken. Moreover in 1982-4 the plaintiff knew a great deal about his condition, what had caused it and the value of earmuffs in reducing hearing loss. 6 UNREPORTED JUDGMENTS CSR also relied on additional prejudice due to the absence of any surviving records relating to the plaintiff's employment at Broadwater. The primary judge seems to have misunderstood this evidence and thought that CSR should have searched for records at that mill. However this was then owned by the second 5 claimant and CSR had no right to make such a search. In my judgment given the extent of the plaintiff's knowledge before August 1990 and even in 1982-4, it would not be just or reasonable to expose CSR to an action for industrial deafness when the quantification of the plaintiff's damages would be so speculative and uncertain. There is a real risk that CSR might be 10 ordered to pay damages for industrial deafness it did not cause. The second claimant retains its records relating to the plaintiff's employment. However it faces similar difficulties in assessing the proper measure of the plaintiff's damages. If the 1979 audiogram had been available it would have been protected from the risk of being made liable for industrial deafness arising from 15 earlier noise exposure except for the 10 months the plaintiff was employed by it at Broadwater. If an audiogram had been taken in 1987 and still existed, it would also have been protected from liability for the results of noise exposure after that date. As it is the second claimant faces the risk of being ordered to pay damages for hearing losses which occurred as a result of the plaintiff's exposure to noise 20 after June 1982 when his employment at Harwood ceased. Here again the extent of the plaintiff's knowledge before August 1990, and before 1984-8, particularly his knowledge of claims for industrial deafness by workers at Harwood, is relevant to the justice and reasonableness of the extension sought. In these circumstances I conclude that the limitation periods against the second claimant 25 should not be extended to enable it to be sued for exposing the plaintiff to industrial noise between 1978 and 1982. In my opinion the following orders should be made in each case: (1) Leave to appeal granted and appeal allowed with costs; (2) Set aside the orders of Cramer-Roberts ADCJ and in lieu thereof order that the notice of motion dated 30 30 August 1993 be dismissed with costs; (3) The respondents to have a certificate under the Suitors' Fund Act. Sheller JA I agree with Handley JA. Cole JA I agree with Handley JA. (1) Leave to appeal granted and appeal allowed with costs; (2) Set aside the orders of Cramer-Roberts ADCJ and in lieu thereof order that the notice of motion dated 30 August 1993 be dismissed with costs: (3) The respondents to have a certificate under the Suitors' Fund Act.Counsel for the Claimant: MB Duncan (CSR), RB Page (NSW Sugar) Solicitors for the Claimant: Edwards Johnstone Sullivan (CSR), Dexter Healey (NSW Sugar) 45 — Counsel for the Opponent: KW Andrews Solicitors for the Opponent: Sowden McInnes Akerman