ALLEN v DRAYTON COAL PTY LTD

Powell JA Two-questions have been debated on this appeal, by leave granted by the Court on 17th September 1995, from a Judgment delivered by O'Reilly DCJ on 15 July 1995, when his Honour dismissed with costs an application which had been brought by the Appellant seeking an order extending the time within which he might bring proceedings against the Respondent seeking to recover damages for industrial deafness which he claimed had been caused by the negligence, or breach of statutory duty, of the Respondent. Those questions were:

1. whether his Honour erred in holding that "it (could not) be said in any real sense that, as at 31 August 1990, the (Appellant) was 'unaware of the connection between the personal injury and the (Respondent's) act or omission' within the meaning of s60I(1)(a)(iii) of the Limitation Act of 1969" and;

2. whether his Honour erred in holding that, even if it be otherwise, "it (was not) either just or reasonable to make an order extending the time,"

The evidence as to the facts which gave rise to the application with which O'Reilly DCJ, both in the affidavits which were sworn in support of the application, and in the oral evidence given by the Appellant on the hearing before his Honour, was, to say the least, singularly sparse and lacking in detail. The record which I set out below is, accordingly, the best I can do with some singularly unpromising material.

The Appellant, is now but a few months short of his 61 st birthday, appears not to have achieved any significant level of education, he having left school in the second year of high school apparently at the time when he attained the age of 14 years, or not long after. This being so, it seems reasonable enough to assume that, over the course of his working life, which ended in May 1994 when he took voluntary retirement on the ground of redundancy, such positions as the Appellant had in the workforce were of a labouring, unskilled, or semi-skilled nature, many of which positions may well have called for the Appellant to work in noisy environments. Whether or not that had earlier been so, it would seem that in about 1969 - or perhaps it was a little earlier - the Appellant took a position as an underground miner - the name of his then employer, and of his subsequent employer or employers up to 1988, not being revealed by the material in the appeal papers (Appeal Book at 72) - which position he held for the following 14 years - or perhaps it was 18 years - until sometime prior to the commencement

of June 1983. It would further seem that the environment - or environments - in which as an underground miner the Appellant worked is a very noisy one despite which fact that the only form of protection against noise which was offered to the Appellant during that period of 14 - or 18 - years, were earmuffs, which the Appellant does not seem to have regarded as being in any way satisfactory (Appeal Book at 72).

Although, in his oral evidence (Appeal Book at 72), the Appellant seemed to suggest that, at the time when he ceased to work as an underground miner, he was not aware of any diminution in his hearing, and although, in the affidavit which he swore in support of his application (Appeal Book at 17) the Appellant seemed to suggest that it was not until some 3 years after he had commenced employment with the Respondent when he began to notice difficulties with his hearing, in the course of his cross-examination, the Appellant - who appears to have been a particularly poor historian - made a series of admissions (Appeal Book at 79-82) which appeared to indicate, first, that it was in early 1983 when he first became aware of hearing loss; second, that that hearing loss led him ultimately to make a claim for workers compensation; third, that, as the result the Appellant attended at the Joint Coal Board for the purpose of having his hearing tested, and thereafter attended before a medical panel for the purpose of having the degree of hearing loss assessed;and, finally, that he later received an award of compensation - in the sum of about $900.00 - in respect of the loss assessed.

Although, in the affidavit which he swore in support of the application (Appeal Book at 17), the Appellant asserted that he commenced employment with the Respondent on 9th June 1983 as a coal handling operator, in which position he thereafter continued and that, in the course of employment in that position, he was subjected to loud and/or excessive noise levels, it is clear that that was not so. On the contrary, the truth of the matter would seem to be that, for the first 12 months after the Appellant commenced to work for the Respondent, he worked as a cleaner/labourer in the "workshop", which appears to have been a substantial building devoted to the maintenance and mechanical repair of vehicles, plant and equipment such as bulldozers, dump trucks and the like, following which, for a period of some 6 years, the Appellant worked as an assistant shot firer or trainee shot firer. at the end of which time, and until he took voluntary retirement, he worked in the coal handling plant.

Although it is said by the Appellant that the noise in the "workshop" was very bad at times, and that the noise at the coal handling plant was "horrific", the Appellant admits (Appeal Book at 74) that the position of an assistant shot firer or trainee shot firer was not "a noisy job". The Appellant also admits, first, that, at all times during his employment by the Respondent, there were made available for his use when in a noisy environment, earmuffs and earplugs; second, that those earmuffs and earplugs were intended to be used in order to protect his hearing; third that there had been one or more "tool box meeting(s) on when to wear them in the plant and where to wear them in the plant"; that "your (sic) only abusing yourself if you didn't wear them"; fifth, that, by 1987, he was aware that although he was accustomed to wear earmuffs and earplugs when in a noisy environment, that the earmuffs and earplugs were inadequate to protect his hearing; sixth, that, by that time he knew that the deterioration in his hearing was due to the noise to which he had been exposed; seventh, that, by that time he appreciated that there was a connection between his deteriorating hearing and the

alleged failure of the Respondent adequately to protect him against hearing loss; and finally, that, by no later than 1987, he "wanted some more money for (his) deafness".

All this notwithstanding, in the affidavit which he swore in support of his application, the Appellant deposed (inter alia):

"6. As my hearing gradually deteriorated I contacted a person at work associated with my union who referred me to Mr Magee of Maurice May and Co Solicitors.

9. Mr Magee was the first person who informed me that there were certain steps which the defendant should and could have taken to protect my hearing and these included regular audiometry tests, breaks from noisy work place and making my machinery quieter by engineering means. It was not until I spoke with Mr Magee that I was aware I could bring proceedings at common Law against my employer."

the Appellant's avowed purpose (Appeal Book at 84-85) in attending upon Mr Magee being uto ask him to sue (the Respondent)" - this appears as if it may well have been at some time in early to mid-1993.

On 31st August 1993, there was filed in the Muswellbrook Registry of the District Court an Ordinary Statement of Claim, in which Statement of Claim The Appellant sought to recover from the Respondent damages for his hearing loss which damages he claimed had been caused by the failure of the Respondent - in some 30 respects which were particularised - to take proper care to protect him from hearing loss and the breach - in some 6 respects which were particularised

• by the failure of the Respondent to comply with the provisions of the Factories (Health and Safety - Hearing Conservation) Regulations - the significance of the date of filing of the Ordinary Statement of Claim is to be found in the provisions of Schedule 5 CL4(1), (4)(b) of the Limitation Act 1969 (see also Dedousis v The Water Board!).

Although, in the Ordinary Statement of Claim which was filed on his behalf, the Appellant's claim was not so limited, it would appear that the hearing of the application before O'Reilly DCJ proceeded upon the basis (Appeal Book pp. 88,89), and we were also informed on the hearing of the Appeal, that the Appellant did not seek to make any claim at common law in respect of any breaches of duty occurring after 4.00pm on 30 June 1987 - it seems fairly clear that the purpose sought to be achieved in so limiting the Appellant's cause of action, was to take the Appellant's claim out of the provisions of Pt5 - Common Law Remedies, of the Workers Compensation Act 1987 (see Workers Compensation Act 1987 Schedule 6 Savings Transitional and Other Provisions - Ptl4 - Provisions relating to Common Law remedies CL1).

On 20th September 1993, there was filed on behalf of the Appellant the Notice of Motion founding the application with which O'Reilly DCJ was later concerned to deal. In that Notice of Motion, the Appellant sought (inter alia) the following Orders: -

"1. Pursuant to S58(2) of the Limitation Act, 969 an extension of time in which the plaintiff may sue the defendant is granted.

2. Pursuant to Subdivision 3 of the Limitation (Amendment) Act, 1990 and Schedule 5 of the Act an extension of time be granted in which the Plaintiff may sue the Defender."

For reasons which are not made clear by the material contained in the Appeal Books, but which I assume are related to the state of the list in the District Court in its civil jurisdiction at Muswellbrook, the Notice of Motion did not come on for hearing before his Honour until 13th May 1995. At the conclusion of the hearing, his Honour reserved his Judgment, which Judgment, as I have earlier recorded. was delivered on 15th June 1995.

In the course of his Judgment, O'Reilly DCJ recorded a number of findings of fact which he made for the purposes of the application to extend time. Most of those findings of fact are encompassed by what I have earlier recorded, but, the following additional findings should be noted:

"11. The plaintiff understood that earplugs were for the purpose of protecting his hearing from loud industrial noise but was unaware of the correct method of feting. For example, he was unaware that, in order to provide proper attenuation, it was necessary to hold the plugs in position for 30 seconds to 1 minute.

16. It was not until early 1993 that the plaintiff became aware of the precise detail of the hearing conservation program prescribed by Australian Standard 1269 the implementation of which may have reduced or eliminated the further hearing loss alleged to have taken place whilst in the defendant's employ."

Having recorded those findings of fact, and the submissions of counsel, which submissions he then proceeded to examine, his Honour concluded: "In view of the comprehensive admissions made by the plaintiff in cross examination, I do not see how it can be said in any real sense that, as at 31 August 1990, the plaintiff was 'unaware of the connection between the personal injury and the defendant's act or omission' within the meaning of S60I(1)(a)(111) of the Limitation Act of 1969. He may not have been aware of the terms of one or two particulars of negligence which his solicitors chose to incorporate in the statement of claim but I do not understand the high Court to have gone so far in Dedousis as to decide that the plaintiff's lack of this level of awareness qualifies him under the third leg of S60I(1)(a). If I am wrong in this conclusion then it still seems to me that the plaintiff is in difficulty under S60G(2).

Noise induced hearing loss is an injury of gradual onset. Only the very slightest (if at all) additional hearing loss is likely to have been suffered by the plaintiff during the first few months of his employment with the defendant. In these circumstances it does not seem to me to be either just or reasonable to make an order extending time."

(as will be apparent, his Honour's Judgment was delivered after the delivery of, and was based upon his understanding of the principles laid down in, the Judgment of the High Court in Dedousis v The Water Board?,)

In his Notice of Appeal (Appeal Book at 92-93), the Appellant raised the following grounds of appeal:

" 1. His Honour erred in law in the application of S60I(1) of the Limitation Act 1969, (as amended).

2. His Honour erred in law in refusing to correctly exercising (sic) his discretion in favour of the appellant under S60G(2) of the said Act.

3. His Honour should have found that the 'relevant date' was the 9th June 1989 and not as he found the 31st August 1990.

4. His Honour should have found that it was not until 1993 that the Appellant "was aware there was a safer alternative system" (Dedousis v The Water Board (1993-94 81 CLR 171).

5. The extent of hearing loss or damage claimed by the Appellant is not a relevant criteria for the exercise of His discretion under the said S60G92) of the Act."

Even though it is difficult to discern the basis upon which - as it appears that he has done - O'Reilly DCJ chose 31st August 1990 as the expiration of the relevant limitation period for the purposes of s60I of the Act and even though I find it difficult to understand why it is that the Appellant places so much stress upon the relevant date being, not 31st August 1990, but 9th June 1989, it is convenient, first, to deal with the third of the grounds of appeal taken by the Appellant in his Notice of Appeal.

The basis for the Appellant's submission in this regard, as I understand it, was that the Appellant had only one cause of action, the limitation period in respect of that cause of action commencing as from the date of first exposure to the risk of injury. Such an approach, as it seems to me, does not, in a case such as this, represent the law. On the contrary, in cases where it is alleged that, as the result of continuing negligence or other breach of duty on the part of an employer, the health and well-being of an employee progressively deteriorates, a new cause of action will accrue from time to time as the worker suffers further not insignificant damage to his or her health or well-being (see, for example, Clarkson v Modern Foundries Ltd3; Cartledge v E Jobling and Sons Ltd; Berry v Stone Manganese and Marine Ltds; John Lysaght Aust Ltd v Butfield®; Commercial Minerals Pty Ltd v Hollins and Ors?; Colorado v Haden Engineering Pty Ltd8; Markarian v Woolworths Ltd9; Dowell Australia Pty Ltd v Page!®; Clerk and Linsell on Torts!!; McGee; Limitation Periods!2).

Given the history which I have recorded above, it would seem tolerably plain that, if it could be shown that, at some time between 9th June 1983 when he commenced employment with the Respondent and the time when he took up his position as an assistant shot firer or trainee shot firer the Appellant, as the result of the Respondent's negligence or breach of statutory duty, suffered not insignificant damage to his hearing, then the last of the limitation periods in respect of any common law claim which he might seek to bring to recover damages for the injury which he had thus sustained, would not have expired until June 1990 or a little later.

In the light of the decision of the High Court in Dedousis v The Water Board!3, and of the way in which the Appellant on the hearing before O'Reilly DCJ sought to establish his title to an extension of time, it is clear that he bore the onus of establishing:

Court of Appeal 8 December 1993 (as yet unreported). Court of Appeal 22 December 1993 (as yet unreported). Court of Appeal 6 November 1995 (as yet unreported). Court of Appeal 7 November 1995 (as yet unreported). Court of Appeal 1 December 1995 (as yet unreported.) 11. 14 Ed. (1975) 338-340.

1. that, at the expiration of the relevant limitation period, he was "unaware of the connection between the personal injury and the defendant's act or omission" (s60I(1)(a)Gii)); and

2. that it was "just and reasonable" to order that the limitation period be extended (s60G).

As Gleeson CJ has pointed out in Drayton Coal Pty Ltd v Drain!4 those two criteria are not completely independent the one of the other. In the course of his Judgment!5 the Chief Justice said:

"Tn the resolution of a problem of the kind that arose in Dedousis, and that arises in the present case, it may be necessary for a court to consider questions of degree. In the evaluation of a contention that a 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 plaintiff's lawyers can think up some act or omission, upon which they will wish to place some reliance at a trial, which was not known to the plaintiff at the relevant time, does not automatically mean that the requirements of s60I(1)(a)(iii) are satisfied. On the other hand, the decision in Dedousis establishes that unawareness of a material act or omission which constitutes a substantial ground upon which reliance will be placed is sufficient to satisfy s60I(1)(a)(iii).

It is important to bear in mind however, that satisfaction of the requirements of s60I(1)(a)(ii) is not an end to the matter. One of the considerations which, in a given case, it may be proper to take into account under s60G(2) is the extent of a plaintiff's awareness at the critical time of acts or omission which by reason of their connection with the plaintiffs injury, are to be relied upon as constituting actionable negligence. It may well be that such questions of degree would also have a bearing upon the justice and reasonableness of extending a limitation period... In other words, s60G(2) may, depending upon the facts and circumstances of a case, operate as an important qualification upon the practical effect of s60 I."

The observations made by the Chief Justice in the first of the paragraphs which I have set out above are particularly apt bearing in mind the sparse nature of the affidavit sworn by the Appellant in support of his application, and the extensive admissions made by the Appellant in the course of his oral evidence as compared with the extensive particulars of negligence and breach of statutory duty which have been included in the Ordinary Statement of Claim filed on behalf of the Appellant. This notwithstanding, I am, for the reasons which will shortly appear, prepared to proceed upon the basis that, as at the expiration of the relevant limitation period, the Appellant was not aware of the range of procedures - such as those referred to in the Standards Association of Australia Hearing Conservation Code - which were open to be taken by the Respondent, and which, if they had been taken by the Respondent, would, or, at least, might well, have provided better protection for the Appellant than those steps which in fact were taken by the Appellant at the relevant time, and I would, on the basis of that assumption, proceed to hold that O'Reilly DCJ fell into error when he held that

14. Court of Appeal 22nd August 1995 (as yet unreported).
15. Transcript of Judgment at 7.

URJ ALLEN v DRAYTON COAL PTY LTD (Badgery-Parker AJA) 7

"it (could not) be said in any real sense that, as at 31st August 1990, the Plaintiff was 'unaware of the connection between the personal injury and the Defendant's act or omission".

Ihave been prepared to proceed on that basis, for it seems to me that, contrary to the submissions advanced on behalf of the Appellant, when he came to exercise the discretion conferred on him by s60G of the Act, O'Reilly DCJ did not fall into error when he regarded as a fact relevant to the exercise of the discretion, the fact that, even if the Appellant had suffered any additional hearing loss in the early stages of his employment by the Respondent, that loss was likely to be only very slight. On the contrary, as it seems to me, the history which I have recorded above would seem to demonstrate that, to a great extent, if not entirely, any hearing loss which the Appellant had sustained as at 30th June 1987 - in respect of which hearing loss, it is to be recalled, the amount of workers compensation awarded to the Appellant was only of the order of $900.00 (Appeal Book at 71) - was substantially, if not entirely, due to the Appellant's exposure to noise prior to his commencing employment with the Respondent. The fact that the only prejudice which the Appellant would suffer by reason of the refusal of an extension of the limitation period was that he was deprived of the opportunity to establish a claim for damages in respect of "the very slightest... additional hearing loss" was clearly a matter which was relevant to the exercise of his Honour's discretion. No other ground of attack on the exercise of his Honour's discretion having been raised, I see no reason to dissent from his Honour's conclusion in this regard (see House v The King!)

For these reasons I would propose that the Appeal should be dismissed with costs.