McLean v Sydney Water Corporation

COUNSEL : K W Andrews - Appellant D J Brogan - Respondent SOLICITORS : Sowden Akerman - Appellant Bartier Perry - Respondent CATCHWORDS : LIMITATIONS - extension of time - very long lapse of time - no prejudice to defendant (other than general prejudice) - fair trial possible - whether other factors could be taken into consideration when determining justice and reasonableness of extension - whether extension was just and reasonable - no error in exercise of discretion. D BHP Steel (AIS) Pty Ltd v Lakouski (2000) NSWCA 334; Brisbane South Regional Health Service v Taylor (1996) 186 CLR 541; CASES CITED: Drayton Coal Pty Ltd v Drain (CA, 22 August 1995, unreported); Holt v Wynter (2000) 49 NSWLR 128; Jones v Royal Hospital for Women (CA, 24 July 1998, unreported). DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40530/99 DC 3021/99

STEIN JA GILES JA HODGSON CJ in Eq

Friday 20 April 2001 McLEAN v SYDNEY WATER CORPORATION JUDGMENT

1 GILES JA: Mr George McLean applied for extension of the time within which he might commence proceedings against the respondent claiming damages in respect of noise induced hearing loss. On 2 July 1999 Christie DCJ dismissed his application. Having obtained leave, Mr McLean appealed from his Honour's decision. 2 Mr McLean died shortly after instituting his appeal. His widow, Mrs Nita McLean, obtained special letters of administration ad litem and was substituted as the appellant. 3 Mr McLean was born in 1926. He was employed with the State Rail Authority from 1944 to 1959 and then with the respondent from about 1961 to 1985. He was in retirement from leaving the respondent until his death. 4 According to the evidence of Mr McLean on the application, in the course of his employment with the respondent he was required to work in and around noisy equipment and in underground situations which were extremely noisy, and was regularly exposed to loud noise. The respondent first provided hearing protection in the early 1970s. Mr McLean was not offered a choice of hearing protection, but was only provided with ear muffs which were not personally fitted to him. It was often necessary to wear the earmuffs with the headband behind his head in order to wear a safety helmet or other personal safety equipment. 5 Mr McLean first noticed hearing loss in about late 1961. In 1974, he was appointed a safety inspector within the respondent, and became aware of the relationship between hearing noise and hearing loss. His hearing was first tested by the respondent in 1978 or 1979, and at that time he received a worker's compensation payment by reason of hearing loss. The detail of this was not revealed. Mr McLean said that his hearing continued to deteriorate, from which it follows that it had deteriorated over the period 1961 to 1979. He said that when tested in 1997 he was found to have suffered a noise induced hearing loss of 14.7 per cent. 6 Mr McLean then said - "20. On and/or about 7 May 1996 I had a consultation with Mr S Akerman and a barrister who informed me and I verily believe that it had been known from the late 1940s that noise could affect persons hearing.

21. In and/or during the abovementioned consultation I was first informed that the Defendant should have provided me with hearing protection well prior to the time that they did as such hearing protection was available to industry. I was informed that in 1962 the Commonwealth Acoustic Laboratory released a report setting out the availability of hearing protection and its requirements for various industrial needs.

22. In and/or during the abovementioned consultation I was informed that the Australian Standards Association released standard 1269/1976 for discussion in early 1972 and released the standard in 1976 which set out all steps which needed to be taken in order to implement a proper hearing conservation program.

23. I was unaware of all the steps that should have been taken, as set out in the Australian Standard 1269/1976 until I had the consultation with the solicitor and/or barrister.

24. I had always assumed that the Defendant had taken all necessary steps to protect my hearing and had provided hearing protection at the first time that it was available having regard to the nature of my work." 7 No issue was taken in the application with these paragraphs so far as they suggested that the respondent could have done more to protect Mr McLean from the detrimental effect of noise, or so far as Mr McLean said that he was unaware until May 1996 that more could have been done. 8 On Mr McLean's case, his cause or causes of action accrued many years prior to 1999, certainly no later than 1979. The application was brought pursuant to s 60G(2) of the Limitation Act 1969 ("the Act"). It was not in contest that s 60G applied to Mr McLean's cause or causes of action, presumably by force of cl 4(1), (3) and (4)(a) of Schedule 5 to the Act, and I do not stay to question its application. 9 Section 60G(2) provides - "(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." 10 By s 60I of the Act an order under s 60G cannot be made unless the court is satisfied as to certain matters, being relevantly in the present case - (i) that Mr McLean 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. (S 60 I (1)(a)(iii)); and (ii) that the application was made within three years after Mr McLean became aware or ought to have become aware of that connection. (S 60 I (1)(b)).

11 That Christie DCJ should have been satisfied as to these matters followed from the respondent's stances already noted, and satisfaction was not contested and was in effect found by his Honour. The debate before his Honour was confined to whether it was just and reasonable within s 60G(2) for the limitation period to be extended. 12 His Honour noted that the respondent "specifically said that no prejudice, other I assume than general prejudice that follows from all delays, no prejudice is put forward by the respondent." He recorded the competing positions as follows - "The applicant says that the real test is whether a fair trial can still be had after all the water that has undoubtedly gone under the bridge. That is certainly one of the tests. The respondent says of course that although it does not suggest that a fair trial could not be had, the respondent says that it is not just and reasonable that the order be made in favour of the applicant." 13 His Honour's reasons for dismissing the application then were - "The real matter at issue here is not so much whether a fair trial could be had (and that is not the only matter that needs to be considered) but whether it is just and reasonable that I order the respondent to meet a claim from the applicant in terms of the chronology to which I have just made brief reference.

The man worked for the respondent for twenty-four years from 1961 to 1985. He received a Workers' Compensation payout in 1979, he was so to speak, what was the word he used, the Safety Inspector from about 1974, which acquainted him with the relationship between noise and hearing loss. I accept the submission made on his behalf that there is no evidence, for instance, that he had to consult a solicitor in respect of his Workers' Compensation payout in 1979 and there is no evidence and indeed the evidence is to the contrary that he had any knowledge of the sort of matters of which he learnt from the solicitor, Mr Akerman, in 1996.

I take the view that it is a view that I have harboured for a long time that there must eventually come a time when enough is enough. I have expressed the view on numerous previous occasions, sometimes in finding for the applicant, sometimes not, that respondents, whether they be self-insured respondents or otherwise, are entitled to order their affairs with some degree of order as years go by. I think it is beyond the pail [sic] that a man who is retired fifteen years, who has had previous Workers' Compensation moneys in respect of hearing loss and who has known of his hearing loss since the first year he worked there and who has known of the connection between his hearing loss and his work for many years before his retirement, I think it is just beyond the pail [sic] that he should be allowed at this late stage of the circus to commence proceedings having been retired so long.

He has been fifteen years away from this workforce, not to mention the fact that he saw his solicitor in 1996. There was apparently some sort of hearing consultation arranged by the solicitor in 1997, here we are in 1999 with an application of this sort. There is no explanation for that part of the delay although I think I should say that it was made known to me by both parties at the Bar table that apparently there was some previous application which was refused, I think by another Judge of this Court. I know nothing of that application, whether it was based on the same matter or whatever. I think it probably however explains such delay as existed between 1996 and the present time.

In any event, I do not think it is fair and reasonable in all of those circumstances to require the respondent to meet a claim from which he is otherwise protected by the Statute ... "

14 The appellant maintained three of the grounds of appeal in the notice of appeal, namely - "2. His Honour erred in dismissing an application for an extension of the limitation period after finding that the appellant satisfied the requirement of Section 60I(1)(a)(iii) and finding that there was no prejudice to the respondent.

3. His Honour had regard to irrelevant considerations in determining whether or not there could be a `fair trial' of the issues between the parties.

... 5. His Honour's exercise of a discretion miscarried in taking into account matters which were not the subject of evidence."

In the manner the appellant put her submissions, these grounds of appeal ran together. 15 For the appellant it was submitted that, if there was no prejudice to the respondent and a fair trial could be had, there was no other basis for a conclusion that it was not just and reasonable to grant the extension of time. It was said that Christie DCJ had wrongly found a basis in the mere passage of time, and had wrongly been influenced by the views which he said he had harboured for a long time, views which the submissions described as "views generally about limitations and/or limitation in industrial deafness matters" and as "unsupported by any evidence". So far as the views took account of the long period of time which had elapsed, it was said, while that could be relevant to prejudice it was not relevant in the absence of evidence supporting a prejudicial effect of the passage of time. In the appellant's written submissions it was said that "time of itself is not a relevant determination unless it evidences prejudice which was not the case in this matter", and in her oral submissions it was said that "time by itself does not impact on the just and reasonable test". Particularly was this so, it was said, when by s 51(2) of the Act the thirty year ultimate bar in s 51(1) did not apply to a cause of action in relation to which an extension of time had been granted. 16 The respondent accepted that a determination of whether it was just and reasonable to grant an extension of time will usually require consideration of whether a fair trial may be had, but it submitted that a finding that a fair trial could be had did not dictate that time should be extended, and that it was necessary also to conclude that in all the circumstances it was just and reasonable to extend time. In particular, it was said, even if prejudice from delay (apart from general prejudice) or unlikelihood of a fair trial did not arise in this case, it was still material to justice and reasonableness that Mr McLean had long known of his hearing loss and of a connection between his hearing loss and his work, albeit not a connection satisfying s 60I(1)(a)(iii) of the Act. Further, the respondent could properly be regarded as having ordered its affairs on the basis that it was not exposed to such a very stale claim as that propounded by the appellant. 17 In her written submissions the appellant referred to some cases apparently for the proposition that, when determining whether it was just and reasonable to extend time pursuant to s 60G(2) of the Act, one looked no further than prejudice engendered by delay and unlikelihood of a fair trial. 18 In Brisbane South Regional Health Service v Taylor (1996) 186 CLR 541 at 550 Toohey and Gummow JJ said, in relation to a different provision enabling extension of a limitation period that the real question was whether the delay had made the chances of a fair trail unlikely, and that if it had not there was no reason why the discretion should not be exercised in favour of the applicant for the extension. The relevant provision did not call for a determination of whether an extension of time would be just and reasonable but gave a relevantly unfettered discretion. Their Honours' statement was made in rejecting an approach of weighing the respective prejudices to the parties, and was made in the context of prejudicial effect of delay upon the chances of a fair trial. 19 In Holt v Wynter (2000) 49 NSWLR 128 at 147 Sheller JA, with whose reasons Meagher and Handley JJA and Brownie AJA agreed, said that the effect of the decision of the High Court in Brisbane South Regional Health Service v Taylor was that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. On the facts, the question was whether delay meant that there could not be a fair trial between the parties. 20 In BHP Steel (AIS) Pty Ltd v Lakovski (2000) NSWCA 334 at [9] prejudice engendered by delay and fairness of a trial were said not to be distinctly differing tests. It was asked rhetorically what factor could make a fair trial unlikely except prejudice engendered by delay and how prejudice could become significant unless it rendered a fair trial unlikely. Unlike the two preceding authorities, this was a case under s 60G of the Act. 21 In oral submissions, the appellant rather drew back from the argument in the written submissions founded on these authorities. She acknowledged that regard could be had to other considerations in determining whether it was just and reasonable to extend time. 22 That acknowledgment was in my view correct. Prejudice engendered by delay and unlikelihood of a fair trial will be highly material, and if there is prejudice and unlikelihood of a fair trial that will tell strongly, often conclusively, against the grant of an extension of time. It does not follow that in the absence of prejudice (other than general prejudice) and unlikelihood of a fair trial it will be just and reasonable to grant an extension of time. None of the cases to which the appellant referred stands for that position. 23 A specific test of whether it is just and reasonable to extend time is stated in s 60G(2) of the Act. Other considerations may be material to that determination. 24 Relevantly to the present case, it may be material that, although the applicant for an extension of time was unaware of the connection between the personal injury and the defendant's act or omission, or indeed of another matter in s 60I(1)(a) of the Act, the applicant had such other awareness that it would not be just and reasonable to grant an extension of time: see Drayton Coal Pty Ltd v Drain (CA, 22 August 1995, unreported) in the judgment of Gleeson CJ, with whom Priestley and Meagher JJA agreed - "It is important to bear in mind, however, that satisfaction of the requirements of s 60 I (a)(iii) 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 s 60G(2) is the extent of a plaintiff's awareness at the critical time of acts or omissions which, by reason of their connection with the plaintiff's injury, are to be relied upon as constituting actionable negligence. It may well be that such questions of degree will also have a bearing upon the justice and reasonableness of extending a limitation period. The same applies to the other aspects of s 60 I (1)(a). For example, a plaintiff might be able to establish that he or she was unaware of the full extent of personal injury suffered, but a court might take the view that, at the relevant time, the plaintiff's awareness, although not complete, was so extensive that it would not be just or reasonable to extend the limitation period. Similarly, the state of a plaintiff's awareness of certain acts or omissions connected with the plaintiff's injury may, in a given case, lead a court to conclude that it would not be just or reasonable to permit the plaintiff to have an extension of the limitation period, even though the plaintiff is able to establish that some other act or omission only came to notice at a later time. In other words, s 60G(2) may, depending upon the facts and circumstances of a case, operate as an important qualification upon the practical effect of 60 I ."

25 This has been repeated in Jones v Royal Hospital for Women (CA, 24 July 1998, unreported) in which Mason P said, with the agreement of Handley and Beazley JJA, that in exceptional cases considerations other than prejudice may prove decisive, "such as inordinate delay on the part of the applicant considering the extent of awareness of relevant issues under s 60I as explained by Gleeson CJ in Drayton Coal Pty Ltd v Drain … ". 26 As another consideration, the rationales for limitation periods include that the public interest requires that disputes be settled as quickly as possible and that people should be able to arrange their affairs on the basis that claims can no longer be made against them. These rationales remain material to extensions of limitation periods. As was said by McHugh J in Brisbane South Regional Health Service v Taylor at 553, in eliminating injustice to the particular claimant by granting an extension of time "whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action". 27 I do not exclude as a consideration properly to be taken into account as part of, or together with, considerations such as these, in appropriate cases, that there has been a particularly long lapse of time since the events material to the claim. In such circumstances there will commonly be an element of general prejudice, even if not such as to make a trial unfair, meaning thereby the dimming of memories and other such consequences of the passage of time. Fairness is a matter of degree. As Priestley JA said in Holt v Wynter at 142, the concept of a fair trial is a relative one, and must in any particular case mean a fair trial between the parties in the circumstances of that particular case. As well, for the trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable, and that a trial may be held for which not all relevant evidence is before the court does not mean that it is not a fair trial. 28 In my opinion Christie DCJ did not err in looking beyond prejudice (other than general prejudice) engendered by delay and whether a fair trial could be had, nor do I think that he impermissibly gave effect to personal views. His Honour was not expressing or acting upon an idiosyncratic whim, or on views held generally without regard to the particular case. Without endorsing some aspects of the way in which his Honour said it, he was saying that he considered it permissible and in the present case appropriate to take into consideration that a very long time had elapsed since Mr McLean's employment with the respondent came to an end, that Mr McLean had been aware of what his Honour referred to as a connection between his employment and his hearing loss, although obviously not a connection such that s 60I(1)(a)(iii) of the Act was not satisfied, and in particular that the length of time was such that the rationale of arranging one's affairs was of importance. In my opinion, his Honour was entitled to take those matters into consideration. 29 Nor do I think his Honour's regard to those matters was regard to the mere passage of time in the absence of evidence necessary before the passage of time could be taken into consideration. Mr McLean's degree of awareness was not just a matter of passage of time, and was the subject of evidence. The time which had elapsed was very long, and even without evidence it could properly be thought that the respondent would have conducted itself on the basis that it was free of a claim from Mr McLean, or at the least that the rationales to which I have referred meant that it would not be just and reasonable now to permit the claim to be brought against the respondent. What is just and reasonable, which it must be remembered is the statutory test, involves value judgment, not a calculus of only the precisely evidenced. 30 In my opinion Christie DCJ has not been shown to have erred in the exercise of his discretion, and it is not to the point that others might have exercised their discretion in favour of Mr McLean. I propose that the appeal be dismissed with costs. 31 STEIN JA: I agree with Giles JA. 32 HODGSON CJ IN EQ: I agree also. I would add just a little. 33 As noted by Giles JA, the trial judge did note that the respondent specifically said that no prejudice other than general prejudice that follows from all delays was put forward. I take that to mean that the respondent did not allege any particular prejudice, such as might be the subject of evidence, but on the other hand did not abandon opposition to the application on the basis of the general prejudice that follows from all delays. That general prejudice must include, among other things, the dimming of memory of witnesses and the consequent increase of the risk of a wrong decision being made. 34 Accordingly, when the trial judge later said it was not suggested that there could not be a fair trial, I do not take him as meaning that the application was being decided on the basis that optimal fairness would be achieved. 35 In my opinion, the dimming of the memory of witnesses from the passage of many years inevitably means that a trial would involve a greater risk of a wrong decision than if the proceedings had been commenced much earlier. Although it could be said that this is a risk to both parties equally and therefore does not involve unfairness, in my opinion the greater risk of a wrong decision in the circumstances of an application for extension of time does involve a degree of unfairness to prospective defendants, even though it may not be possible to say that there could not be a fair trial. 36 STEIN JA: Accordingly, the order of the Court will be that the appeal is dismissed with costs.

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.