New South Wales Court of Appeal CITATION : COMMONWEALTH v REMINGTON [2003] NSWCA 182 HEARING DATE(S) : 22 May 2003 JUDGMENT DATE : 23 July 2003 JUDGMENT OF : Meagher JA at 1; Handley JA at 2; Tobias JA at 30 DECISION : Leave to appeal granted. Appeal allowed with costs and extension set aside. Orders made. CATCHWORDS : LIMITATION - extension of limitation period - no question of principle LEGISLATION CITED : Safety, Rehabilitation and Compensation Act 1988 (Cth) Limitation Act 1969 CASES CITED : Dedousis v Water Board (1994) 181 CLR 171 Drayton Coal Pty Limited v Drain (CA NSW, 22/8/95, unrep) COMMONWEALTH OF AUSTRALIA PARTIES : v BARRY REMINGTON FILE NUMBER(S) : CA 40776/02 COUNSEL : Appellant: G M Watson SC/S B Loughnan Respondent: K W Andrews SOLICITORS : Appellant: Minter Ellison Respondent: Keddies Solicitors LOWER COURT District Court JURISDICTION : LOWER COURT DC 12963/01 FILE NUMBER(S) : LOWER COURT Gibb DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40776/02 DC 12963/01 MEAGHER JA HANDLEY JA TOBIAS JA 23 July 2003 COMMONWEALTH OF AUSTRALIA v BARRY REMINGTON LIMITATION – extension of limitation period – no question of principle The respondent worked for the Commonwealth at the International Terminal at Mascot Airport for the Australian Quarantine and Inspection Service. As such he was exposed to high levels of noise from aircraft engines during his employment. However he was required to wear ear muffs and was not permitted onto the tarmac unless he was wearing them. The respondent sued the Commonwealth for noise induced hearing loss and tinnitus in his left ear allegedly caused by his exposure to noise in his employment between April 1977 and 1 December 1988 when the Safety, Rehabilitation and Compensation Act 1988 (Cth) commenced. The appellant had been exposed to further noise in his employment with the Commonwealth for a period of between 8 and 9 years after 1988 for which had no common law rights. The respondent's total hearing loss was modest and was asymmetric, being substantially greater in his left ear, and he really complained about his tinnitus, which was also confined to his left ear. There was medical evidence in the respondent's case that one sided tinnitus was not caused by his exposure to industrial noise. There was also no evidence that the respondent had discovered in 2001, during a conference with his legal advisers, that there was a safer alternative system that the Commonwealth could and should have provided to protect his hearing which would have made any difference. The District Court Judge held that the condition in s 60 I (1)(a)(iii) of the Limitation Act 1969 had been satisfied and granted an extension of the limitation periods. On appeal - HELD: Appeal allowed and extension set aside. ORDERS (1) Leave to appeal granted subject to the notice of appeal being filed within 14 days; (2) Appeal allowed with costs; (3) Set aside the orders of Gibb DCJ of 8 August 2002; (4) In lieu thereof order that the plaintiff's notice of motion of 22 November 2001 be dismissed with costs; (5) The respondent is to have a certificate under the Suitors Fund Act. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40776/02 DC 12963/01 MEAGHER JA HANDLEY JA TOBIAS JA 23 July 2003 COMMONWEALTH OF AUSTRALIA v BARRY REMINGTON Judgment 1 MEAGHER JA: I agree with Handley JA. 2 HANDLEY JA: This is a summons for leave to appeal from a decision of Gibb DCJ of 8 August 2002. The Judge ordered under s 60G of the Limitation Act 1969 that the limitation period be extended to permit the plaintiff's action against the Commonwealth based on his exposure to industrial noise to proceed. The action was based on the Commonwealth's acts and omissions during his employment between 13 April 1977 and 1 December 1988 when the Safety, Rehabilitation and Compensation Act 1988 (Cth) commenced. During this period the plaintiff was employed by the Australian Quarantine and Inspection Service (the Service). 3 The parties have been fully heard as on an appeal and the Court is able to dispose of the case without a further hearing. 4 During the relevant period of his employment with the Service the plaintiff worked at Mascot International Airport inspecting incoming aircraft. His duties brought him into close proximity with aircraft and aircraft engine noise. He was responsible for spraying the cargo and luggage holds of incoming aircraft and had to do this while the engines were still running. He worked for the New South Wales Department of Agriculture between 1990 and 1995 when he returned to the Service. Since then his duties have varied and he has spent less time on the tarmac. 5 He first noticed ringing in his ears in 1984, particularly in his left ear, and the ringing has become steadily worse over the years. He said that his hearing was tested when he joined the Service in 1977 but the record of this test cannot be found. His hearing was again tested by the Commonwealth on 30 October 1986, and the record has survived, and again on 7 February 1997, but that record is incomplete. His last test referred to in the evidence was by Dr Scoppa on 25 February 2002. This revealed a hearing loss of 13.6% for the left ear and 7% for the right ear and a binaural loss of 8.3%, in each case after correction for presbycusis. 6 On 27 July 2000 his industrial deafness for the purposes of his Comcare claim was assessed at 8.2%, which was below the threshold at which compensation becomes payable. It seems that statutory compensation is not available for tinnitus. 7 The plaintiff had no difficulties with his hearing when he commenced employment with the Service. He was provided with a pair of ear muffs which he was required to wear when he was on the tarmac. Federal Airports Corporation staff would not allow him onto the tarmac unless he was wearing his ear muffs and he always wore them on the tarmac. He knew how to wear them. It was obvious, one simply put them on. He could recall receiving a total of 5 pairs of ear muffs during his employment. 8 He said in his affidavit that he had always assumed that the Commonwealth was taking all steps required of it to protect his hearing. He did not receive any safety lectures about the dangers of industrial noise. He had a conference with counsel and his solicitor in February 2001 when he learned for the first time of the 1962 report of the Commonwealth Acoustic Laboratories (CAL 19): "Hearing Conservation in Industrial Noise", which recommended that employers regularly test their employees' hearing, provide them with hearing protection, and give them safety lectures warning of the effect of noise on hearing. 9 At the same conference he learned for the first time about the Australian Standard 1976: "Hearing Conservation Code", which reiterated the recommendations in CAL 19, but added recommendations that employees should be provided with the results of their hearing tests, and given a choice of hearing protection which should be personally fitted having regard to the duties of employees and their physical features. It was also said that staff should be rotated in their employment so that they were not always exposed to excessive noise. 10 Prior to commencing employment with the Service in 1977 the plaintiff worked for twenty two years in the building industry as a bricklayer. The Commonwealth suggested that he would have been exposed to excessive noise during this period which could account for some of the damage to his hearing. The Judge was not persuaded of this because she accepted his evidence that bricklayers tended to come on site after the noisy work had been finished. 11 The medical evidence consisted of reports from Dr Kwan who saw the plaintiff on 25 October 1984 but did not test his hearing, Dr Scoppa, who saw the plaintiff on 25 February 2002 and tested his hearing, tendered for the plaintiff, and the audiological report of Dr Lucchese and a compensation audiologist of 27 July 2000, and the report of Dr Halliday of 8 July 2002, tendered for the Commonwealth. 12 In his report of 22 December 2000 Dr Kwan confirmed that he had seen the plaintiff in 1984 when he was complaining of "ringing" in his left ear. He did not test the plaintiff's hearing but referred him to an ear, nose and throat specialist. Reference has already been made to the findings of Dr Scoppa. He said in his report that the hearing loss in the plaintiff's left ear over and above that in his right ear "is inconsistent with industrial deafness as occupational noise exposure does not cause such an asymmetrical hearing loss as is seen on the audiogram of 25 February 2002". He also said: "It is probable that Mr Remington's tinnitus is unrelated to occupational noise exposure as it is present in the left ear and the hearing loss in the left ear is not entirely due to industrial deafness". 13 Dr Lucchese and the audiologist reported a binaural hearing loss of 8.2% which in their opinion was wholly due to his employment with the Commonwealth. They also reported that the plaintiff's Comcare claim was really for tinnitus as he had few hearing problems. They considered that his tinnitus was related to his Commonwealth employment. 14 Dr Halliday, as the parties agreed, reviewed the results of the plaintiff's audiometric test on 30 October 1986. He concluded that this showed a binaural loss of 6.9%. He added that "the loss shown in this man's right ear is a slowly progressive loss and quite unlike the loss shown in his left ear". I understand that Dr Halliday was referring to the shape of the graphs for the losses in each ear at particular frequencies as shown in the 1986 report. The progress referred to was from lower to higher frequencies, and not in the hearing losses from earlier to later years. Dr Halliday concluded that it was: "... most unlikely that the whole of this man's demonstrated loss is, in fact, noise induced". 15 In his view a generous assessment of the noise induced component of his hearing loss as at October 1986 was 5%. It seems that Dr Halliday did not know of the plaintiff's complaint of tinnitus. The plaintiff had to establish that he was unaware of one or more of the matters in s 60 l (1)(a) at the expiration of the limitation periods between October 1983 and December 1994. 16 It was clear from the plaintiff's own evidence that he was aware by 1984 that he had suffered some hearing loss and was suffering from tinnitus. He was also aware of his exposure at work to high levels of industrial noise. The only question, as the Judge recognised, was whether the plaintiff had brought himself within sub para (a)(iii) "the connection between the personal injury and the defendant's act or omission". The meaning of this provision was explained in Dedousis v Water Board (1994) 181 CLR 171, 181-2, where the High Court said: "It is true that s60 I (1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. However, 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 the proper conclusion is that the plaintiff was 'unaware of the connection between the personal injury and the defendant's act or omission' ... On that hypothesis, the relevant act or omission is the employer's failure to provide the safer alternative system or to take suitable precautions". 17 The issue under s 60 I (1)(a) therefore was whether this plaintiff discovered in February 2001 at the conference with his solicitor and counsel that "there was a safer alternative system" that the Commonwealth could and should have provided to protect his hearing. 18 The plaintiff was provided with ear muffs from the outset and was required to, and did, wear them on the tarmac. There was a suggestion that he was not told how to wear them but this vanished during cross-examination when he said that one just put them on and it was obvious. There was no suggestion, let alone evidence, that ear muffs of the kind provided by the Commonwealth and used by the plaintiff were inferior to any that could and should have been provided. 19 Other suggestions were that the plaintiff should have been required to attend a lecture or lectures on the dangers of industrial noise and that his hearing should have been tested at the outset and then each year and he should have been provided with the results. Finally it was said that he should have been rotated from time to time to other duties where he would not be exposed to high levels of industrial noise. 20 Lectures on the dangers of industrial noise may be appropriate, or even necessary, when employees have to be motivated to use hearing protection devices where it would be difficult for the employer to strictly enforce their use. The utility of such lectures is marginal or nonexistent where the employer is willing and able, as the Commonwealth was at Mascot, to strictly enforce the wearing of ear muffs. 21 The same may be said of annual hearing tests and the provision of the results to employees. There was no evidence that the plaintiff would have done anything more than he was already doing to protect his hearing had he been required to attend a lecture or lectures, or been provided with the results of annual hearing tests. 22 It is self evident that rotation through other duties where an employee would be exposed to less noise will reduce the risks of industrial deafness. However it is not self evident that the industrial deafness avoided in this way would be significant for this plaintiff. His binaural deafness on 30 October 1986 was 6.9% and on 25 February 2002 was 8.3%. However Dr Scoppa said that only 7% of the latter figure was due to exposure to industrial noise. Dr Halliday agreed that it was most unlikely that the whole of the plaintiff's loss was in fact noise induced but did not attempt to estimate the proportion that was. By February 2002 the plaintiff had been exposed to industrial noise in the employment of the Commonwealth for some 8-9 years after 1 December 1988 for which he had no common law rights. His exposure to industrial noise which could attract common law rights had been for 11 years and 1 month. 23 Most of the deterioration in the plaintiff's hearing since his test on 30 October 1986 from 6.9% to 8.3% would not be actionable and on Dr Scoppa's evidence some 16% (based on the difference between 7% and 8.3%) of the 6.9%, that is 1.10%, would also not be actionable. 24 On any view the claim for industrial deafness was a very modest one, but the plaintiff said that his real claim was for the tinnitus in his left ear. He told Dr Lucchese that he had few hearing problems and he confirmed this during his cross-examination. The Judge recorded that when the plaintiff was in the witness box his hearing was better than that of others in court. 25 The Judge did not extend the limitation period to allow a claim for industrial deafness but the claim for tinnitus. Dr Kwan recorded a history of tinnitus, but expressed no view as to its cause or severity. Dr Halliday was not aware of the tinnitus claim and said nothing about it. Dr Lucchese accepted the plaintiff's history and considered that his tinnitus was related to his employment with the Commonwealth but did not expose his assumptions or reasoning. 26 Dr Scoppa on the other hand said that "it was probable" that the plaintiff's tinnitus was unrelated to occupational noise exposure. He based this opinion on the fact that the tinnitus was only in the left ear and part of the hearing loss in that ear was not due to industrial deafness. 27 There was no evidence to contradict or qualify this opinion other than the bald assertion to the contrary, without explanation, given by Dr Lucchese. The matter was of little concern to Dr Lucchese as compensation was not payable for tinnitus. There was no other evidence to link the plaintiff's tinnitus with his employment, or to establish a causal nexus between the absence of lectures, annual testing, the provision of results, or rotation of duties on the one hand and the tinnitus in the plaintiff's left ear on the other. 28 In my judgment therefore the plaintiff failed to make out any case for an extension of the limitation periods. The difference between the system of hearing protection used by the plaintiff, and the supposedly superior system recommended by CAL 19 and Australian Standard 1976 "Hearing Conservation Code", was not shown to be material. The reasoning of Gleeson CJ in Drayton Coal Pty Limited v Drain (CA NSW, 22/8/95, unrep) at p 7 established that a marginal and immaterial difference in the plaintiff's knowledge does not meet the threshold requirement in s 60 I (1)(a)(iii). 29 In any event it was not just and reasonable to exercise the power of extension under s 60G(2) where the plaintiff's industrial deafness was modest and not relied upon, and on the acceptable expert evidence of Dr Scoppa a causal link between the plaintiff's tinnitus and his employment was negatived. In my judgment therefore the appeal succeeds and the following orders should be made: (1) Leave to appeal granted subject to the notice of appeal being filed within 14 days; (2) Appeal allowed with costs; (3) Set aside the orders of Gibb DCJ of 8 August 2002; (4) In lieu thereof order that the plaintiff's notice of motion of 22 November 2001 be dismissed with costs; (5) The respondent is to have a certificate under the Suitors Fund Act. 30 TOBIAS JA: I agree with Handley JA. ****** Last Modified: 07/23/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.