Dedousis v Water Board

High Court of Australia|1991-12-16|Before: McHugh JJ

High Court of Australia Deane, Dawson, Toohey, Gaudron and McHugh JJ. Dedousis v Water Board [1994] HCA 57

The order of the Court of Appeal of New South Wales be set aside and in lieu thereof it be ordered:

(b) that the order of the District Court of New South Wales be set aside; and

The matter be remitted to the District Court of New South Wales for determination in accordance with the judgment of this Court. The costs of the proceedings to date in the District Court be dealt with by the judge of that Court dealing with the matter.

The respondent pay the appellant's costs of the appeal to this Court.

The Court delivered the following written judgment: -

Nov. 16 Deane, Dawson, Toohey, Gaudron and McHugh JJ.

The question in this appeal is whether the plaintiff, who seeks to bring a personal injuries action, is entitled under sub-div. 3 of Div. 3 of Pt 3 of the Limitation Act 1969 NSW ("the Act") to an extension of the six-year statutory limitation period applicable to his action. He seeks the extension so that he may sue the defendant for damages for noise-induced hearing loss which was allegedly caused by the defendant's negligence.

The plaintiff was employed by the defendant Water Board between 1963 and 1965 and again between 1971 and 1990. His employment with the Water Board required him to use jackhammers until 1981 when he suffered an accident. After the accident, the plaintiff was given light duties and no longer used jackhammers himself. However, the plaintiff alleges that until he ceased to work with the defendant in 1990, he was still exposed to significant noise levels. He claims that he started to have difficulty with his hearing in about 1974 and that his hearing got worse after that. He was given ear-muffs at some time during or after 1971, but he claims that he was not obliged to wear hearing protection until a few years before leaving his employment with the Water Board. The plaintiff claims that he was never given any hearing tests during his employment with the Board.

The plaintiff consulted a solicitor for the first time in May 1991. Notwithstanding that the plaintiff's cause of action was statute-barred, he issued a statement of claim out of the District Court of New South Wales on 16 December 1991 alleging negligence by the Water Board. By notice of motion dated 14 April 1992, the plaintiff sought orders under the Act for an extension of the statutory limitation period for the bringing of his action. His application was put on three grounds. The first ground is no longer relevant. The second and third grounds relied on the provisions of sub-div. 3 of Div. 3 of Pt 3 of the Act and in particular on ss. 60F, 60G and 60I. Sub-division 3 is headed "Discretionary extension for latent injury etc.". Judge McCredie dismissed the motion. The plaintiff then appealed to the Court of Appeal of New South Wales. In that Court, the plaintiff relied solely on the provisions of sub-div. 3. His appeal was dismissed. Pursuant to the grant of special leave, he now appeals to this Court.

Sub-division 3 of Div. 3 of Pt 3 of the Act and Sch. 5 to the Act were inserted by the Limitation (Amendment) Act 1990 NSW.

Sub-division 3 commences with s. 60F which provides:

The purpose of this Subdivision is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time. This procedure is available for causes of action accruing on or after 1 September 1990, and also (by the operation of Schedule 5) for causes of action that accrued before that date. The plaintiff's cause of action in the present case arose before 1 September 1990.

(1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines.

Section 60H is concerned with Lord Campbell's Act claims which arose on or after 1 September 1990 and is not relevant in the present case.

(1) A court may not make an order under section 60G or 60H unless it is satisfied that:

(i) did not know that personal injury had been suffered; or

(ii) was unaware of the nature or extent of personal injury suffered; or

(iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and

(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)-(iii).

Schedule 5 to the Act is headed "Further transitional provisions". Clause 4 of the Schedule is relevant to causes of action accruing before 1 September 1990. Clause 4 is headed "Existing causes of action for personal injuries may be extended where latent injury etc.", and relevantly provides:

(1) Section 60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.

(a) whether or not a relevant limitation period has expired:

(ii) before an application is made under either of those sections in respect of the cause of action; and

(b) whether or not an action has been commenced on the cause of action before 1 September 1990; and

(c) whether or not a judgment on the cause of action has, on the ground that a limitation period applying to the cause of action had expired before 1 September 1990, been given (whether before, on or after that date); and

(d) whether or not a judgment in respect of legal professional negligence has, on the ground that a limitation period applying to the cause of action had expired before 1 September 1990, been given (whether before, on or after that date).

(4) The court may make an order under section 60G or 60H, in relation to a cause of action referred to in this clause, [if an application for such an order is made [1] ] within:

(a) the period of 3 years referred to in section 60I; or

(b) the period of 3 years commencing on 1 September 1990.

(5) For the purposes of this clause, a reference in Part 3 to a limitation period is to be read as including a reference to a limitation period as defined by this Schedule.

Inserted by Statute Law (Miscellaneous Provisions) Act 1993 NSW, Sch. 1.

Both Judge McCredie and the learned judges in the Court of Appeal saw s. 60F as the crucial provision in determining whether the plaintiff should be granted an extension of the statutory limitation period in the present case. Because the plaintiff was apparently aware at an early stage of the fact, nature and extent of his injury, both courts identified the issue as the state of the plaintiff's knowledge of the "cause" of his injury at the relevant time. The proper interpretation of the word "cause" in s. 60F became the focus of the case.

Before Judge McCredie, the plaintiff submitted that the word "cause" in s. 60F should be given an extended meaning that was synonymous with the plaintiff being unaware of the connexion between the injury and the defendant's particular acts or omissions, as is provided for in s. 60I(1)(a)(iii). The defendant on the other hand argued that the word "cause" should be given its ordinary meaning. Judge McCredie held that the cause of the plaintiff's injury was "the very loud noise of the jackhammers, and not the widely extended meaning contended for by the applicant". He concluded that by the early 1970s the plaintiff knew that he had a hearing loss and that it was caused by the loud noise of the jackhammers. Accordingly, his Honour held that the plaintiff could not bring himself within the provisions of s. 60F.

In the Court of Appeal, Clarke J.A. rejected the plaintiff's argument that the word "cause" in s. 60F meant the negligence or breach of duty on the part of another person that brought about the plaintiff's injury. His Honour held that the difference in terminology between s. 60F and those sections which specifically refer to the connexion between injury and breach of duty (e.g., s. 60I) supported the view that "cause" was not intended to have the wider meaning contended for by the plaintiff. His Honour concluded that the inquiry must be directed to the plaintiff's awareness of the factual cause of his injury and that Judge McCredie was correct in concluding that the plaintiff was well aware of the cause of his injury. Clarke J.A. said that he would have reached the same result on the facts of the present case even if he had accepted the construction contended for by the plaintiff. His Honour thought that the plaintiff had "failed to show that he was unaware of the connexion between the injury and his employer's failure to provide him with proper ear-muffs".

Mahoney J.A. and Meagher J.A. agreed with the conclusion of Clarke J.A. Mahoney J.A. added that, in so far as it was relevant, he would not infer from the evidence that the plaintiff did not know that he could bring proceedings against his employer in respect of the loss of his hearing.

The first question in determining the proper approach to the interpretation of sub-div. 3 is the effect of s. 60F. In the Court of Appeal, Clarke J.A. applied the decision of that Court inElectricity Commission (N.S.W.) v Plumb [2] , which held that the power of the court to grant an extension pursuant to the provisions of s. 60G(2) and cl. 4 of Sch. 5 was confined to cases of latent injury as defined in s. 60F. This meant that the plaintiff was obliged to show that he was "unaware of the fact, nature, extent or cause of the injury at the relevant time". Clarke J.A. did not think that it was necessary to decide whether "the relevant time" meant the expiration of the relevant limitation period or a time before that expiration when proceedings might reasonably have been instituted. As we have already said, the judges of the Court of Appeal saw s. 60F as the crucial provision.

(1992) 27 N.S.W.L.R. 364. The decision in Plumb has been followed by the Court of Appeal in several cases including Thelander v C. D. Townsend (Eng.) Pty Ltd (1993), 32 N.S.W.L.R. 358; John Lysaght (Aust.) Ltd. v Butfield (unreported; 8 December 1993); Brambles Australia Ltd. v Hall (unreported; 8 December 1993); Commercial Minerals Ltd. v Hollins (unreported; 22 December 1993).

With great respect, we are unable to accept that s. 60F has the role in the scheme of sub-div. 3 that Plumb attributes to it. In our opinion, s. 60F is no more than an introductory provision that indicates the purpose of sub-div. 3. It provides a summary of the effect of the substantive provisions of the sub-division. The terms of s. 60F must be interpreted on that basis. Support for this conclusion is found in the similar form of the first section in each of sub-divs 1 and 2 of Div. 3; ss. 57 and 60A respectively. Each of those sections refers to the purpose of the sub-division in which it appears and is a summary of the substantive provisions that follow. Accordingly, s. 60F, in referring to the requirement that the plaintiff was "unaware of the fact, nature, extent or cause of the injury at the relevant time", is summarizing the provisions of s. 60I(1)(a), which must be satisfied before a court can make an order under s. 60G. To the extent that Plumb and subsequent cases decide otherwise, they are wrong and must be overruled.

Section 60G is the primary substantive provision in sub-div. 3. Section 60G(2) provides that, where an application for extension is made by a person having a cause of action to which that section applies, the court may extend the limitation period for such period as the court determines. The court may only make such an order if it is satisfied that it is just and reasonable to do so. Section 60G(1) states that the section applies to certain causes of action accruing on or after 1 September 1990. However, cl. 4(1) of Sch. 5 provides that s. 60G also applies to certain causes of action that accrued or would have accrued before 1 September 1990.

Of crucial importance in the present case is the question of the effect of s. 60I in relation to causes of action that accrued before 1 September 1990. Section 60I(1) provides that a court may not make an order under s. 60G unless it is satisfied of certain matters. There are two basic facts of which the court must be satisfied. The first (s. 60I(1)(a)) is that, at the expiration of the limitation period applicable to the plaintiff's cause of action or at a time before that expiration when proceedings might reasonably have been instituted, the plaintiff did not know that injury had been suffered, or was unaware of the nature or extent of the injury or of the connexion between the injury and the defendant's act or omission. The second (s. 60I(1)(b)) is that the plaintiff commenced his or her application for an extension of time within three years after he or she became aware, or ought to have become aware, of the matters referred to in s. 60I(1)(a).

However, a complication arises in relation to causes of action that accrued before 1 September 1990. Although cl.4(1) in Sch. 5 provides that s. 60G applies to such causes of action, cl. 4(4) provides that the court may make an order under s. 60G in relation to such a cause if an application for such an order is made within either the period of three years referred to in s. 60I (cl. 4(4)(a)) or the period of three years commencing on 1 September 1990 (cl. 4(4)(b)). In James Hardie & Co Pty Ltd v Wootton [3] , the Court of Appeal held that the power of the court to make an extension order pursuant to the provisions of s. 60G(2) and cl. 4(4)(b) of Sch. 5 was not limited by the matters set out in s. 60I. In the present case, Clarke J.A. expressed the view that this was a surprising conclusion. Nevertheless, he considered himself bound by Wootton , given that the decision was unanimous and was not challenged before the Court of Appeal in the present case. Thus, Clarke J.A., with whom Mahoney and Meagher JJ.A. agreed, proceeded upon the basis that in order to succeed in the appeal the plaintiff did not need to satisfy the court of the matters appearing in s. 60I.

In this Court, counsel for the plaintiff adopted that conclusion and contended that, in relation to a cause of action which accrued before 1 September 1990, cl. 4(4) renders it unnecessary for the court to be satisfied of the matters listed in s. 60I except to the extent required by cl. 4(4)(a). He argued that cl. 4(4) is to be treated by the court as a substitute for s. 60I in cases where the court is dealing with a cause of action that accrued before 1 September 1990. Accordingly, he submitted that, where a plaintiff's case falls within cl. 4(4)(b), by virtue of an application for an extension of time having been made between 1 September 1990 and 1 September 1993, the only matter for the court to decide is whether it is "just and reasonable" to extend the limitation period under s. 60G(2).

The meaning of cl. 4(4) is a matter on which minds may reasonably differ. Anomalies arise irrespective of which construction is adopted. In our view, however, the construction of the sub-clause that was formulated in Wootton and reluctantly applied by the Court of Appeal in the present case is erroneous and should not be adopted. The construction which does least violence to the scheme of sub-div. 3 is one that interprets cl. 4(4) as affecting the operation of only s. 60I(1)(b). This effectively results in cl. 4(4)(b) inserting an alternative time limit in s. 60I(1)(b) where the court is considering an application for extension in relation to a cause of action that accrued before 1 September 1990. The result is that the plaintiff must satisfy the requirements of s. 60I(1)(a) and then satisfy the court that his application for an extension was brought within the time limit specified in either cl. 4(4)(a) or cl. 4(4)(b). This approach is in accordance with the language of the Act.

Clause 4(1) of Sch. 5 provides that "[s]ection 60G also applies" to certain causes of action accruing before 1 September 1990. That sub-clause effectively inserts a notional further sub-section into s. 60G. Section 60I then provides that a court "may not make an order under section 60G" unless it is satisfied of certain listed matters. In its natural and ordinary meaning s. 60I applies to any application for an order under s. 60G irrespective of whether it concerns a cause of action to which s. 60G applies by virtue of s. 60G(1) or whether it concerns a cause of action to which s. 60G applies by virtue of cl. 4(1) of Sch. 5.

Further support for the construction that we have placed on cl. 4(4) can be found in the form of s. 60F. We have already noted that the first sentence in s. 60F summarizes, inter alia, the provisions of s. 60I(1)(a). The second sentence then indicates that the procedure described in the first sentence applies both to causes of action accruing on or after 1 September 1990 and, by the operation of Sch. 5, to causes of action that accrued before that date. Thus the legislature appears to have intended that the plaintiff must have been unaware of at least one of the matters referred to in s. 60I(1)(a) before an extension could be granted, no matter when the plaintiff's cause of action accrued.

Of course, cl. 4(4) is virtually a spent provision. Clause 4(4)(b) will only be relevant in the now fixed group of cases where the plaintiff made application between 1 September 1990 and 1 September 1993 for an extension of the limitation period applicable to his or her cause of action. Once cl. 4(4)(b) ceases to be capable of having any effect, cl. 4(4)(a) will by itself do nothing more than emphasize the applicability of s. 60I to causes of action that accrued before 1 September 1990.

In the present case, the plaintiff's cause of action against the defendant in negligence accrued, on any view of the evidence, at some time prior to his being placed on light duties in 1981. The plaintiff made his application for an extension of the limitation period applicable to his action in 1992. Consequently, the plaintiff has to rely on cl. 4 of Sch. 5 in order to bring his application for an extension within sub-div. 3. Because the plaintiff's action falls within cl. 4(1), he is entitled to seek an exercise of the court's discretion under s. 60G(2) to extend the relevant limitation period. Further, because the plaintiff's application falls within cl. 4(4)(b), he is taken to have met the time requirement laid down in s. 60I(1)(b). However, the plaintiff is not entitled to any order under s. 60G unless the court is satisfied that he was unaware of at least one of the matters referred to in s. 60I(1)(a).

The District Court and the Court of Appeal effectively held that the plaintiff was aware of the fact, nature and extent of his injury at the relevant time within s. 60I(1)(a)(i) and (ii). That means that the plaintiff's prospects of success rest upon s. 60I(1)(a)(iii). However, because those courts focused on whether the plaintiff was unaware of the "cause" of his injury within s. 60F and gave that word a narrower meaning than the words "connection between the personal injury and the defendant's act or omission" in s. 60I(1)(a)(iii), they directed themselves to the wrong question. The correct question was whether, at the expiration of the limitation period applicable to the plaintiff's action or at the time before that expiration when proceedings could no longer reasonably have been instituted in time, the plaintiff was "unaware of the connection between the personal injury and the defendant's act or omission" (s. 60I(1)(a)(iii)).

It is true that both Mahoney J.A. and Clarke J.A. briefly expressed opinions on the merits of the plaintiff's application if a broader definition of the word "cause" was adopted. Thus Mahoney J.A. said:

It is plain that, from the early 1970s or thereabouts, the plaintiff knew all of the facts relevant to the claim in negligence which he now makes against his employer. His injury, the hearing loss, was a patent and not a latent injury. Insofar as it is relevant, I am not satisfied that he did not know that he could not [sic] sue his employer in respect of it. Clarke J.A. said: I would reach the same result on the facts of this case even if the test for which the appellant contends should be applied. In other words I am not satisfied on the evidence which was given by the appellant himself, and which was the only evidence on the issue, that he was unaware of "the connection between the personal injury and the defendant's act or omission". I have earlier set out portion of his evidence. There he concedes that he knew his loss of hearing was caused by the noise of the jack hammers and that the ear-muffs with which he was provided were inadequate.

What he did not know was that those facts, if true, gave him a good cause of action. In Do Carmo [4] it was held, in relation to s. 57B(1) (as it now is), that ignorance of the existence of a cause of action was not relevant and, although there are somewhat different considerations relating to s. 60F, both sections are concerned with ignorance of the existence of facts rather than legal conclusions. In my opinion the appellant failed to show that he was unaware of the connexion between the injury and his employer's failure to provide him with proper ear-muffs.

Do Carmo v Ford Excavations Pty Ltd (1984), 154 C.L.R. 234. The difficulty with these approaches is that they take an unduly restricted view of the acts and omissions upon which the plaintiff relies. The plaintiff's allegation of negligence is much broader than an assertion that the defendant failed to supply him with proper ear-muffs, as Clarke J.A. appears to assume. In the plaintiff's statement of claim, the particulars of negligence include, inter alia, allegations that the defendant failed to devise, institute, supervise and maintain a safe system of work; failed to adjust or modify the environment, equipment, plant and machinery in or with which the plaintiff had to work so as to reduce noise levels; failed to warn or educate the plaintiff about the dangers to health and hearing arising from the use of the equipment he would be required to use and from exposure to excessive noise levels; failed to issue, properly fit, and supervise the use of adequate personal hearing protection; failed to conduct workplace sound level surveys; and failed to carry out hearing tests on the plaintiff.
1. Do Carmo v Ford Excavations Pty Ltd (1984), 154 C.L.R. 234.

It is true that s. 60I(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" within the meaning of s. 60I(1)(a)(iii). On that hypothesis, the relevant act or omission is the employer's failure to provide the safer alternative system or to take suitable precautions.

The plaintiff asserts in his affidavit of 15 April 1992 that he was not aware until he spoke to his solicitors in May 1991 that the Water Board could have protected his hearing by providing him with proper hearing protection, by testing his hearing regularly, and by taking steps to reduce the noise levels of the machinery he was operating. Both the District Court and the Court of Appeal failed to evaluate this claim.

We would therefore allow the appeal. The matter should be remitted to the District Court to consider whether the plaintiff was unaware of the matter set out in s. 60I(1)(a)(iii). If that Court concludes that the plaintiff was unaware of the connexion between his injury and the defendant's act or omission at the relevant time, it must then decide whether it is just and reasonable to extend the limitation period under s. 60G(2).

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