BHP STEEL (AIS) LTD v CINQUEGRANA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, PRIESTLEY and POWELL JJA 3 September 1997, 3 September 1997 [1997] NSWCA 45 Limitations of actions — extension of time — claim in negligence for industrial deafness — whether prejudice to appellant (defendant) in — refusing to extend time — whether just and reasonable to extend time - Limitation Act 1969, s60G, s60I Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 841 applied Mason P The respondent suffers deafness contracted during his employment with the appellant. He sues in negligence and has obtained an order extending time to bring a statute-barred claim. This appeal is brought by leave from that order. The claim for extension of time is made pursuant to s60G of the Limitation Act 1969 as extended by cl4 of schedule 5 of that Act. S60I precludes the making of an order unless the Court is satisfied of certain matters. S60G also requires the Court to decide that it is just and reasonable to extend time before an order can be made. The relevant principles are discussed in BHP Steel (AIS) Pty Ltd and Guidice, Court of Appeal, unreported 7 March 1997. The respondent has been employed by the appellant since 29 September 1960. Proceedings were commenced by the respondent in the District Court on 11 November 1994 but the respondent's claims in negligence are limited to acts and omissions which occurred between 1960 and 30 June 1987. This is done presumably to preserve any rights the respondent may have under s66 and s67 of the Worker's Compensation Act 1987. Thus the claim relates to acts or omissions occurring up to thirty-four years before commencement of the proceedings, and all acts and omissions sued upon were statute barred before the commencement of the proceedings. The relevant portion of the judgment of Gallen ADCJ was as follows: "T am satisfied that he was unaware until that conference the connection between his deafness and the alleged acts and omissions of the defendant until July of 1994. He has brought his application within three years of that awareness. In coming to the conclusion that he was not aware of the connection, I am not convinced that through his solicitors he became aware of the connection until that conference took place. "T am therefore moving to the consideration of the question of whether it would be just and equitable to grant the extension that he seeks. In this case I believe that it would be. I cannot in the evidence detect any significant prejudice to the respondent in granting the extension sought, therefore I will order that the time for instituting the plaintiff's action against the defendant be extended to 11 November 1994." I pass over the obvious deficiency in the disclosed reasons. There are, in my view, other grounds which compel the dismissal of the respondent's application to extend time. 2 UNREPORTED JUDGMENTS The judgment proceeds on the basis that the respondent was aware of the personal injury for which he now sues and of its nature and extent. It could hardly be otherwise since the respondent had undergone audiometric testing by Dr Hilliar and successfully claimed workers compensation for work-related hearing loss in 1979. The claim was for 98 percent loss of hearing on the left and 52 percent on the right. In 1979 the respondent had required the appellant to supply him with hearing aids. In his reasons the learned judge was obviously addressing s60I(1)(a)(iii), that is the requirement to be satisfied that the plaintiff was unaware of the connection between the personal injury and the defendant's act or omission at the expiration of the relevant -limitation period. Because of the operation of s60I(1)(b), the respondent had to satisfy the Court that he only became aware of this connection after November 1991 and that he ought not to have become aware of it before them. The judgment overlooks entirely the need for the Court to be satisfied of the objective requirement imposed by the words "or ought to have become aware" in s601(1)(b). Again this omission may be passed over. The real problem for the respondent lies in the fact that it was established that the respondent was in fact aware of the connection between his personal injury and the defendant's act or omission by at least 1990. Actual knowledge of effectively all matters relevant to his claim before November 1991 precluded the respondent from satisfying the Court of the matters required by s60I. As in the earlier BHP Steel case to which reference has been made, the ordinary statement of claim is a stereotyped word processed document containing thirty-one particulars of negligence. In this context it is appropriate to remind oneself of what Gleeson CJ said in Drayton Coal Pty Ltd v Drain, Court of Appeal unreported 22 August 1995. In a judgment concurred in by Priestley JA and Meagher JA, the Chief Justice said: "In the evaluation of a contention that the 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 plaintiffs lawyers can think up some act or omission upon which they will wish to place some reliance at trial, which was not known to the plaintiff at the relevant time, does not automatically mean that the requirements of s60I(1)(a)(ili) was satisfied." The conference in July 1994 mentioned in the extract from the judgment of Gallen ADCJ, which I have quoted, is referred to in paral0 of the respondent's affidavit sworn on 24 October 1994. The respondent there says: "On 4th July 1994 I was taken by my solicitor to see a barrister about my deafness. The barrister told me that there were many things that the defendant could have done to protect my hearing and that many of these were set out as far back as in 1962 in a report by the Commonwealth Acoustic Laboratories. He said to me that the defendant should have carried out tests to determine the noise levels in the areas around which I worked, regularly tested my hearing, provided a range of different hearing protection devices to me and taught me to properly wear and maintain such devices, that the defendant could have quietened down noisy machinery and insulated me from machinery which couldn't have been quietened, reduced background noise by using sound absorption materials and URJ BHP STEEL (AIS) LTD v CINQUEGRANA (Mason P) 3 taught me about the dangers that excessive noise exposure posed to my ability to hear. I did not know before this conference that my deafness was preventable." These maters form the substance of several of the particulars of negligence in the statement of claim. The difficulty for the respondent lies in the matters established when he was cross-examined on his affidavit. That cross-examination established that he knew by 1979 that substantial hearing loss had been caused by exposure to noise at work. This had been the subject of his compensation claim in 1979 to which reference has already been made. As the appellant demonstrates in its written submission it was also established that by 1990 the respondent knew his employer could have given him ear muffs and ear plugs and believed they would have protected his hearing from loud noise. By 1979 he knew of tests which could measure his hearing damage and by 1990 that his employer could have given him regular tests to see if his hearing was damaged. By 1990 he knew his employer could measure the sound emitted by particular machines. By 1990 he knew his employer could have taken measures to reduce the amount of noise emitted by the machines. By 1990 he knew his employer could have given safety lectures on the dangers of noise, on use of ear muffs and ear plugs, and on how properly to wear and maintain ear muffs and ear plugs. By 1990 he knew his employer should have done all these things and if it had his hearing loss could have been prevented. In my view these facts show that the respondent was aware of the acts and circumstances now alleged to constitute negligence and that he was aware of them before November 1991. The barrister's conference in July 1994 was not the first time that he learned the matters deposed to in pare 10 of his affidavit. The situation is effectively indistinguishable from that of Nicola Guidice, one of the respondents in the earlier BHP Steel case. Senior counsel for the appellant relied particularly upon the following evidence given early in the respondent's cross-examination: "Q. In 1990 you were aware that your employer had failed to protect your hearing, is that right? A. No, I didn't." That question is very broad and does not really engage with the question of awareness of negligence on the part of the employer. In any event it appears to me that the answer is plainly wrong given the evidence established elsewhere that the respondent had been advised of work-related hearing loss and had recovered workers compensation on that basis. This is, in my view, enough to dispose of the appeal. The appellant has also made good its submission that the learned judge erred in addressing the issue of prejudice to the appellant, which is critical to the proper exercise of the discretion to extend time if the Court decides that it is just and reasonable to do so - s60G(2). Brisbane South Regional Health Authority v Taylor (1996), 186 CLR 541 makes clear that it is prima facie prejudicial to a defendant to grant an extension of time in respect of a statute-barred claim. The passage already quoted from the judgment below reveals error in stating or inferring that it was just and equitable (sic) to grant the extension because the judge could not "in the evidence" detect any significant prejudice to the defendant. On the contrary, the Court should have approached the matter by inquiring whether the plaintiff had sustained what McHugh J described in Brisbane South as the positive burden of demonstrating that the justice of the case requires the extension. 4 UNREPORTED JUDGMENTS Here the court is dealing with a claim reaching back to 1960, which the respondent is seeking to make good by a scatter gun of 31 miscellaneous particulars. No attempt has been made to show what records are held by the appellant referable to the respondent and his working conditions over this long period. On that state of the evidence I am not satisfied that it is just and reasonable to extend time. I propose the following orders: 1. Appeal upheld. 2. Orders of Gallen ADCJ set aside. 3. Respondent's notice of motion for extension of the limitation period dismissed. 4. Respondent to pay the costs of the notice of motion in the District Court and the costs of the proceedings in this court but in relation to the costs in this Court is to have a certificate under the Suitors Fund Act. Priestley JA I agree with the orders proposed by the President and his reasons for proposing them, with the reservation that I do not wish in this case to express any opinion concerning the applicability of Brisbane South Regional Health Authority v Taylor to statutes other than the one dealt with in that case. Saying that, I am not intending to indicate one way or another any opinion about the applicability of that decision. I simply wish to reserve consideration of its applicability to an occasion when it is necessary to do so. Powell JA I also agree with the orders proposed by the President. I also would wish to reserve until an occasion when it becomes necessary to do so consideration of the relevance of the decision of the High Court in Brisbane South Regional Health Authority v Taylor to applications such as the present. 1. Appeal upheld. 2. Orders of Gallen ADCJ set aside. 3. Respondent's notice of motion for extension of the limitation period dismissed. 4. Respondent to pay the costs of the notice of motion in the District Court and the costs of the proceedings in this court but in relation to the costs in this Court is to have a certificate under the Suitors Fund Act. Counsel for the appellant: J D Hislop QC with GM Watson Solicitors for the appellant: Sparke Helmore Counsel for the respondent: A F Puckeridge QC with M Thompson Solicitors for the respondent: Maurice May