BHP STEEL (AIS) PTY LIMITED v LAKOVSKI

PARTIES : BHP STEEL (AIS) PTY LIMITED v Blagoja LAKOVSKI JUDGMENT OF : Meagher JA at 1; Fitzgerald JA at 12; Heydon JA at 13

LOWER COURT JURISDICTION : District Court LOWER COURT 3772/98 FILE NUMBER(S) : LOWER COURT Kuner ADCJ JUDICIAL OFFICER :

COUNSEL : Appellant: J D Hislop QC/ G. M Watson Respondent: K. Andrews SOLICITORS : Appellant: Sparke Helmore Respondent: Nicholas Karefylakis CATCHWORDS : Limitations Act 1969 NSW - consideration of presumption of prejudice in a case of long delay in the commencement of common law proceedings - determination of prejudice in an application for extension of time to bring common law proceedings - where significant prejudice precludes a fair trial. LEGISLATION CITED : ss. 60I, 60G Limitation Act 1969 (NSW) CASES CITED: Council of the City of Sydney v Zegerac (1998) 43 NSWLR 195; BHP Steel (AIS) Pty Limited v R. Dimitrioski (unreported, Supreme Court of New South Wales, Court of Appeal 24 February 1997); Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Holt v Wynter (2000) 49 NSWLR 128. DECISION : 1. Appeal dismissed with costs.

• 6 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Friday, 24 November 2000 BHP STEEL (AIS) PTY LIMITED v Blagoja LAKOVSKI FACTS The respondent/plaintiff brought a successful application for an extension of time under s.60 of the Limitation Act 1969 (NSW). The appellant/respondent appeals on the ground that his Honour Kuner ADCJ erred a) in his interpretation of s.60G of the Limitation Act 1969 (NSW) because the defendant argued that the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 precluded success by the plaintiff/respondent; b) in relying upon Council of the City of Sydney v Zegerac (1998) 43 NSWLR 195; c) by way of consideration of any prejudice to the plaintiff if no order were made, because such consideration is irrelevant; and d) in not giving proper weight to the decision of the Court of Appeal in BHP Steel (AIS) Pty Limited v R. Dimitrioski (unreported, New South Wales Supreme Court, Court of Appeal, 24 February 1997). HELD By the Court:

1. The decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 does not mean there are distinctly differing tests to determine how a long delay may prejudice a fair trial: see Holt v Wynter (2000) 49 NSWCA 128.
2. In seeking to rely on a finding of significant prejudice, the appellant/defendant sought to rely on a state of affairs and did not lead any evidence that they would suffer prejudice, which is hardly conducive to a finding that they will suffer prejudice. ORDERS
3. Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Friday, 24 November 2000 BHP STEEL (AIS) PTY LIMITED v Blagoja LAKOVSKI JUDGMENT

1 MEAGHER JA: BHP Steel (AIS) Pty Limited ("BHP"), the appellant, appeals against an order made by Kuner ADCJ in favour of one of its employees, Mr Blagoja Lakovski ("Lakovski") for leave to extend time to bring common law proceedings against BHP, for its alleged negligence in causing Lakovski's hearing loss. 2 Lakovski commenced employment in 1971 with BHP, where he apparently still works. In 1985 he seems to have discovered that he was suffering hearing loss. In respect of this matter he made two applications to the Compensation Court in 1985 and 1989, the former successfully and the latter unsuccessfully. His work history shows that Mr Lakovski was employed by BHP in 1971 and he worked at its steelworks in Port Kembla in the following areas and activities: · from 1971 until 1982 in the No 1. Merchant Mill as a labourer and bundler; · from March 1982 for 3 to 4 months in the Tin Plate section; · for 2 to 3 years from mid 1982 as a wrapper of strapping pallets; · for a period of approximately 8 to 9 months Mr Lakovski was unable to work due to an injury to his right thumb; · in the Coil Preparation Line until 1990; and · from 1990 as a driver of a 30 tonne truck. · from the commencement of his employment in 1971 Mr Lakovski was continuously exposed to machinery noise. 3 In the application before Kuner ADCJ Lakovski claimed damages against BHP for deafness suffered in the period 1971 to 1987, choosing the latter date presumably because he was prepared to rely on the provisions of the Workers Compensation Act 1987 for injuries sustained after that date. 4 Detailed evidence was led on the topic of what he knew or did not know at various times. His Honour held (and there was no challenge to this finding) that by 1985 Lakovski knew the following eight matters: "(i) that noise caused hearing loss; (ii) that there was a connection between his hearing loss and noise at his place of work; (iii) that there were methods available to BHP to test his hearing; (iv) that he had been told of the results of tests carried out to determine his hearing loss; (v) that there were by that year available ear muffs or plugs to protect him from noise; (vi) that there was a need for him to wear the ear plugs when he was in a noisy environment and he did so thereafter although not all the time; (vii) that he knew how to use the ear plugs that were made available by BHP; (viii) that there were warning signs in the place where he worked drawing attention to the danger of noise." 5 His Honour also held that by 1990 he knew, in addition, that BHP could do some things to reduce his exposure to noise in the work place, and that, apart from earplugs, one of the things BHP could do was put up a shield in the Coil Preparation Line. 6 What is more important in a case like the present is what the applicant did not know. He saw his solicitors and barrister on 28 April 1998, when he became aware for the first time of the existence of the Australian Standard dealing with industrial deafness, and with the contents of the Standard. As he put it in paragraph 25 of his affidavit, he did not know until then: "…that BHP should have provided me with hearing protection from the time I commenced my employment, tested my hearing every one to two years and provided me with details as to the result of any hearing loss from the time of commencement of my employment, should have provided me with safety lectures dealing with the effects of noise on hearing, should have after 1985 ensured that I was given a selection of hearing protection that was suitable for the type of work I had to perform that would effectively protect my hearing while wearing other safety equipment should have ensured that the hearing protection was personally fitted to me, should have shown me how to maintain the hearing protection, and should have provided me with work which allowed me to work part of the time in a noisy area and part of the time in quiet to allow my ears to get better from the noise they were exposed to." 7 His Honour found that these allegations of ignorance were true. Nor, I think, can it sensibly be alleged that, although he was ignorant of these matters, he should not have been. Then, his Honour found that Lakovski had proved at the relevant time that he was unaware of the connection between his personal injury and BHP's acts or omissions. He therefore passed the test of s.60I of the Limitation Act (NSW) 1969. 8 His Honour then turned to the question of s.60G, and came to the conclusion that it was just and reasonable to order an extension of time, and did so. His reasoning in this regard was subject to considerable attack. Thus it was said, and rightly so, that his Honour's reliance on the Council of the City of Sydney v Zegarac (1998) 43 NSWLR 195 was not entirely appropriate; that he took into account the prejudice which would occur to the plaintiff if no order were made (an admittedly irrelevant consideration); and that he paid but scant attention to BHP Steel (AIS) Pty Limited v R. Dimitrioski (unreported, Supreme Court of New South Wales, Court of Appeal, 24 February 1997) a decision of this Court whose facts were uncannily similar to the facts of this case. 9 But the main bone of contention before his Honour on s.60G was whether the principles laid down in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 precluded the applicant's victory. At the time of the trial the decision of the High Court in that case was considered to pose a conundrum - whether, in a case of long delay like the present, the delay itself would give rise to a presumption of prejudice to a defendant, which, if, "significant", should be sufficient to refuse the applicant (a view said to be espoused by McHugh J);or whether the application should only be refused if the delay made "the chances of a fair trial unlikely" (a view said to be espoused by Toohey and Gummow JJ). Happily, the problem has evaporated, as this Court has since held that there were no distinctly differing tests laid down in Taylor's Case: see Holt v Wynter (2000) 49 NSWCA 128. Indeed, the logic of Taylor's Case would otherwise be difficult to follow: what factor could make a fair trial unlikely except prejudice engendered by delay? And how can prejudice become "significant" unless it renders a fair trial unlikely? 10 In any event, his Honour held that no relevant prejudice would be suffered by BHP if the application was granted and that there was no reason to think a fair trial would be unlikely if that were done. In this regard one must remember that the applicant was not relying on any conversation, or any incidents, but merely on the existence of a state of affairs. Added to this is the fact that BHP elected not to lead any evidence at all before Kuner ADCJ which is hardly conducive to a finding that they will suffer prejudice. 11 I would dismiss the appeal with costs. 12 FITZGERALD JA: I agree with Meagher JA. 13 HEYDON JA: I agree with Meagher JA.

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