MOHRWINKEL v COMMONWEALTH OF AUSTRALIA [1999] NSWSC 852

New South Wales Supreme Court CITATION : MOHRWINKEL v COMMONWEALTH OF AUSTRALIA [1999] NSWSC 852 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20182/1998 HEARING DATE(S) : 20 July 1999 JUDGMENT DATE : 26 August 1999

Joerg Guenter Martin Mohrwinkel PARTIES : v Commonwealth of Australia JUDGMENT OF : Master Malpass

COUNSEL : Mr K Andrews (Plaintiff) Mr D Brogan (Defendant) SOLICITORS : Sowden Akerman (Plaintiff) Australian Government Solicitor (Defendant) CATCHWORDS : Extension of limitation period; no question of principle. ACTS CITED : Limitation Act 1985 (A.C.T), s36 (2), s36 (3). CASES CITED : N/A DECISION : See paragraph 19

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 26 AUGUST 1999

20182/1998 JOERG GUENTER MARTIN MOHRWINKEL v COMMONWEALTH OF AUSTRALIA JUDGMENT 1 The plaintiff has been an employee of the Commonwealth of Australia (the defendant). There were two periods of employment. Firstly, he was employed between 1961 and 1968. Secondly, he was employed between 1969 and 1989. During the course of his employment, he was regularly exposed to the noise of printers and presses which were extremely noisy. For many years, he has suffered from industrial deafness. He first noticed that he was suffering from hearing loss in 1985. 2 It was then that his ears started having ringing noises. At the time, this was not a major concern to him. 3 The ringing noises gradually got worse. By 1986/1987 he was suffering difficulties in certain situations. In 1987, the defendant caused some testing to be done and it was found that the plaintiff had suffered a noise induced hearing loss. Since that time, the ringing in his ears has continued to get worse and has become extremely annoying. There has been a continuing deterioration in his hearing. 4 There is evidence that the plaintiff did not suffer from hearing difficulties at the time of the commencement of his employment. Apart from the testing in 1987, there has been no testing carried out by the defendant of the plaintiff's hearing. During his employment, he was not provided with any protection. He was not provided with any safety lectures. 5 In 1993, he responded to an advertisement placed by a Solicitor. On 23 August 1993, certain consultations took place. The plaintiff consulted with Mr Keck (industrial audiologist), Mr Krikunov (solicitor) and a barrister. It was then that he first received advice that the defendant had been negligent ("in that they had failed to provide me with proper hearing protection and failed to regularly test my hearing and give me the results of those tests and had failed by engineering means to reduce the noise that I was exposed to"). 6 In 1994, he commenced proceedings in the District Court. In those proceedings, he propounded a claim for damages arising out of personal injury. The claim was founded on negligence. The proceedings were removed into this Court in 1998 (because of jurisdictional reasons). 7 The explanation for the delay between 1993 and 1998 is to be found in affidavit material provided by Mr Akerman (the present solicitor for the plaintiff). The delay is not the subject of any complaint made by the defendant. Indeed, it is not delay for which the plaintiff can be held responsible. 8 The plaintiff seeks extension of the relevant limitation period. The hearing of this application took place on 20 July 1999. 9 The proceedings were originally brought against two defendants. The Commonwealth of Australia is now the only defendant. It opposes the application. 10 On behalf of the plaintiff, a number of affidavits have been read. The plaintiff has been briefly cross-examined. He has tendered documentation. The defendant has not adduced any affidavit material or other documentation. 11 The application is made pursuant to s 36 (2) of the Limitation Act 1985 of the Australian Capital Territory. This provision enables the Court to extend the relevant limitation period where it decides that it is just and reasonable so to do. It is a discretionary power. In exercising the power, the Court is required to have regard to all the circumstances of the case including those enumerated in subsection (3). The plaintiff bears the onus of satisfying the Court that an order should be made. 12 The opposition to the application is of limited nature. There is a general submission to the effect that the Court should not decide that it is just and reasonable to make an order on the basis that the relevant onus has not been discharged. I shall briefly refer to some of the other matters that were agitated. The defendant submits that there is a lack of satisfactory explanation for the period that elapsed between 1987 and 1993. There was a contention of the suffering of general prejudice. It is said that there cannot now be a fair trial because there have been at least three other employers of the plaintiff. 13 The period between 1987 and 1993 is not the subject of detailed explanation. The substance of the explanation lies in the insidious nature of the plaintiff's condition itself. It creeps up on the person suffering from it. This is evidenced by the expert material placed before the Court. The plaintiff's position seems to be that there was a continuing deterioration and that by about 1993 the stage had been reached where there was an appreciation that action was necessary. It was then that he responded to the advertisement and obtained advice which led to the commencement of proceedings. Whilst it may be said that further amplification could have been helpful, the material that has been offered just manages to suffice in the circumstances of this case. 14 The plaintiff has been employed by others. There is evidence to suggest that this employment may not be of any real significance in relation to the suffering of his condition. If any of this employment has some materiality to his condition, it seems to me that any such problem can be fairly dealt with at trial. 15 There is no evidence of specific prejudice. The defendant alleges the suffering of general prejudice only. It is not in dispute, that the defendant retains all relevant documentation. The delay is significant. Delay of itself may give rise to prejudice. The cases speak of presumptive prejudice. I take such prejudice into account. 16 I have had regard to the matters agitated by the defendant. However, it seems to me that this is a case where, a fair trial can still take place. 17 The plaintiff has what may be regarded as a serious injury. It is not treatable and can be expected to deteriorate. It is not said that he does not have an arguable case which may be productive of substantial damages. 18 I am satisfied that the relevant onus has been discharged. In all of the circumstances of this case I have reached the decision that it is just and reasonable to make an order and that an order should be made. 19 I order that the period within which an action on the plaintiff's cause of action may be brought be extended up to and including 25 July 1994. The costs of the application are to be costs in the cause. The exhibit may be returned. **********