Cox v Australian Cancer Technology Limited (Formerly Minerals Mining & Metallurgy Limited) [2005] NSWCA 48

New South Wales Court of Appeal

CITATION: Cox v Australian Cancer Technology Limited (Formerly Minerals Mining & Metallurgy Limited) [2005] NSWCA 48

HEARING DATE(S): 07/03/05

JUDGMENT DATE: 7 March 2005

JUDGMENT OF: Ipp JA at 1; McColl JA at 33

DECISION: (1) Application for leave to appeal granted (2) Appeal upheld with costs (3) Orders made by the primary judge are set aside (4) The claimant's application the subject of this appeal is remitted to the District Court for a rehearing (5) The opponent is granted a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

CATCHWORDS: LIMITATION OF ACTIONS - Extension of time - Fair trial. ND

LEGISLATION CITED: Limitation Act 1969 (NSW), ss 58(2), 60G

Jeffrey Charles Cox (Claimant) PARTIES: Australian Cancer Technology Limited (Formerly Minerals Mining & Metallurgy Limited) (Opponent)

FILE NUMBER(S): CA 41231/03

K Andrews (Claimant) COUNSEL: A Parker (Opponent)

Sowden & Akerman (Claimant) SOLICITORS: Lander & Rogers (Opponent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 9137/02

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41231/03 DC 9137/02

IPP JA McCOLL JA

Monday, 7 March 2005 JEFFREY CHARLES COX v AUSTRALIAN CANCER TECHNOLOGY LIMITED (FORMERLY MINERALS MINING & METALLURGY LIMITED) Judgment 1 IPP JA: This is an application for leave to appeal and, if granted, an appeal against a decision of Goldring DCJ. By that decision, his Honour dismissed the claimant's application for an order in terms of s 58(2), alternatively s 60G, of the Limitation Act 1969 extending the period in which the claimant could bring proceedings against the opponent, and for related relief. 2 The claimant wished to sue the opponent for damages for injuries the claimant alleged he had suffered through the opponent's negligence while in the opponent's employ. 3 The opponent employed the claimant from 1980 to 1990. While so employed, the claimant was exposed to noise caused by machinery with which he was working. His hearing became impaired in 1986 and, in that year, he made a worker's compensation claim. 4 On 25 February 1987 Dr Rice of the Bureau of Medical Inspection examined the claimant. Dr Rice found the claimant to have industrial deafness, which Dr Rice assessed at six percent for his left ear and three percent for his right ear. 5 On 1 April 1987 Dr Rice operated on the claimant's ears. 6 On 6 April 1987 solicitors acting for the opponent wrote to the claimant stating, "[w]e are instructed to accept the findings of the medical panel which was held on 3 February, 1987". Compensation was thereupon paid to the claimant. 7 No later than November 1989 the claimant claimed further compensation from the opponent. On 14 November 1989 the opponent completed an "employer's report of injury" and, in answer to the question, "[h]ow did the injury occur, and what was the worker doing at the time?", the person who completed the report on the opponent's behalf inserted "industrial deafness claim". 8 On 16 November 1989 the claimant was examined by a Dr Cullen "in accordance with the order for Medical Referee under s 51(4) of the Act". An audiogram was carried out that showed "bilateral hearing impairment". Dr Cullen observed that his disability was "consistent with his claim that the condition was brought about in the course of his employment". Dr Cullen recommended that the claimant be referred to a specialist. The claimant was again referred to Dr Rice. 9 On 21 February 1990 Dr Rice furnished the claimant with a report in which Dr Rice stated that he had found that the claimant's hearing had deteriorated. Dr Rice this time determined that his disability in his left ear was eleven percent and in his right ear three percent. Dr Rice made certain recommendations for the possible treatment of the claimant's problems. 10 In the proceedings before the primary Judge, the claimant led evidence capable of establishing that his injuries were caused by the negligence of the opponent. He also sought to explain that the reason for his delay in bringing proceedings was, in effect, his ignorance of his rights. In cross-examination, the claimant said that since 1990 he had worked for other employers as a plant operator in noisy conditions. He had had no further tests on his ears since 1990. The opponent did not lead any evidence whatever. 11 After counsel for the claimant commenced his closing address, some discussion took place between the Judge and both counsel on a topic not presently relevant. The Judge then said: "I will tell you frankly why I have concerns about Mr Andrews' case [that is, the claimant's case], Mr Parker [counsel for the opponent], and that really is the evidence that Mr Cox gave about his subsequent employment with other people in noisy occupations, and in view of the time that he ceased being employed by your client 14 years ago. I don't know whether you want to say anything more than that, or whether Mr Andrews wants to address that issue."