Appeal to Court of Appeal
21 The appellants appealed from O'Keefe J's decision by leave of the Court. There were seven grounds of appeal which in their written submissions the appellants refined as raising the following questions:
"(a) Did O'Keefe J err in applying the House v The King test to the Master's finding in relation to s60I(1)(a)(iii)?
(b) Did the Master apply correct legal principles in considering whether the requirements of s60I(1)(a)(iii) were met?
(c) Did O'Keefe J err in upholding the Master's finding that the requirements of s60I(1)(a)(iii) were met?
(d) Did O'Keefe J err in concluding that the exercise by the Master of the discretion under s60G had miscarried?
(e) Did O'Keefe J err in his exercise of the discretion under s60G of the Act?"
22 I have quoted that part of O'Keefe J's reasons for judgment in which, after holding that the Master had applied the correct legal principle in reaching the conclusion she did about whether the requirements of s60I were satisfied and concluding the findings of fact were justified by the evidence, his Honour said that the case was not one which bespoke error of the kind referred to in House v The King. As was pointed out by Giles JA in Taylor v The State of New South Wales (1999) 46 NSWLR 322 at 330-331, where a court's power to exercise a discretion depends upon the satisfaction of conditions set out in a statute appellate intervention in a court's finding about the satisfaction of those conditions flows from principles involving the credibility of witnesses and the due weight and respect to be given to findings at first instance. The limitations on appellate intervention in the exercise of a discretion spelled out in House v The King do not apply at that stage in the process. O'Keefe J addressed the conventional matters to be considered when the Master's conclusion about s60I(1)(a)(iii) was challenged and adopted her conclusions both of law and fact as correct. The reference to House v The King was an unnecessary addition and can be ignored.
23 That brings me to the question of whether the Master applied correct legal principles in considering the requirements of s60I(1)(a)(iii) and whether O'Keefe J erred in upholding the Master's finding that the requirement of the subsection were met.
24 The Court may make an order under s60G if it is satisfied that the plaintiff was unaware of the connection between the personal injury which founds his claim for damages and the defendant's act or omission; s60I(1)(a)(iii). In the present case the appellants' acts or omission were those particularised in the statement of claim as failures to give Mr Bayliss any or any adequate warning that fumes from the industrial glues were dangerous to humans and that he should avoid exposure to fumes from the industrial glues and could do so by the use of masks; compare Dedousis v Water Board (1994) 181 CLR 171 at 181-2. The appellants submitted that sub para (iii) postulates unawareness of the existence of acts and omissions and not unawareness of legal conclusions; see Do Carmo v Ford Excavations Pty Limited (1984) 154 CLR 234 at 246, 250-252 and 254 and Dedousis v Water Board at 181.
25 Drayton Coal Pty Limited v Drain (unreported) Court of Appeal, 22 August 1995 was an appeal against a decision in the District Court to extend the limitation period applicable to a cause of action propounded by a plaintiff against his employer. The plaintiff claimed to have suffered from industrial deafness contracted during his employment. During the 1980s he was employed as a storeman and required to work near noisy machinery. The excessive noise caused considerable discomfort for him and other workers. They requested the installation of sound dampening equipment in the workplace. Those requests were not complied with. Gleeson CJ gave the principal judgment with which Priestley and Meagher JJA agreed. His Honour said:
"By 1988 the respondent knew that he was suffering from a degree of deafness associated with his working conditions. He knew that he was working in an area where he was exposed to excessive noise, and that his employer had taken no steps to protect him by installing sound proofing or other noise dampening equipment. That was the extent of his relevant knowledge before he consulted a solicitor in 1992.
When the respondent consulted a solicitor he was informed, for the first time, that there was an Australian Standard, which established a Hearing Conservation Code, and which, in its application to his case, set out a number of requirements which, if complied with, would have protected his hearing. According to the case the respondent will seek to make out at trial, those requirements included regular hearing testing, the provision to employees of advice and information as to steps that could be taken to protect hearing, and the supply of hearing protection devices. O'Reilly DCJ, of course, did not make any final determination of the merit of the respondent's complaints, but it was apparent from the particulars of negligence, the evidence, and the arguments of counsel, that the respondent was setting out to establish a case in negligence going substantially beyond any complaint, of the kind made in the late 1980's, about the failure to install, in the workplace, sound dampening materials.
It was argued on behalf of the appellant, both at first instance and in this court, that by 1988 the respondent was aware that he was suffering from industrial deafness, that it was caused by his noisy working environment, and that his employer had taken no steps (whether of the kind being urged by the employees or of any other kind) to deal with the problem. However, his Honour held that, before consultation with a solicitor in 1992, the respondent 'had only a primitive appreciation of the connection between any failure of the defendant and his hearing loss'.
In a later passage in his reasons for judgment O'Reilly DCJ said that, on the authority of Dedousis, the critical question was whether, until he consulted his solicitor in 1992, the respondent was not aware that his hearing could have been protected by the provision of a thorough hearing conservation programme. Although there is no explicit finding on the answer to that question, the way in which O'Reilly DCJ decided the case makes it reasonably clear that he resolved that issue in favour of the respondent.
In summary, there was evidence on the basis of which O'Reilly DCJ was entitled to find, and he found, that it was not until 1992 that the respondent became aware of the alleged shortcomings in the conduct and workplace practices of his employer upon which he intended substantially to rely in making out his cause of action. Some years before that he was aware of his injury, and the fact that it resulted from his working conditions, and he was also aware that, despite complaints, his employer had done nothing to alleviate those conditions. On the other hand, he was not aware of the requirements of the Australian Standard, or of the steps that could and should have been taken pursuant to that Standard, or that the taking of those steps as prescribed would have prevented his deafness, and in that respect he was not aware of the acts or omissions upon which he intended to rely at trial if granted an extension of the limitation period to sue his employer."
26 Later in his judgment Gleeson CJ said that for the purposes of the case the decision of the High Court in Dedousis established, inter alia, the following propositions:
"3 S60I(1)(a)(iii) is concerned with ignorance of the existence of acts or omissions rather than legal conclusions. The legal complexion which may be put upon a set of facts or circumstances (eg actionable negligence), and the plaintiff's awareness of that legal complexion, is not what matters for the purpose of s60I(1).
4 The acts or omissions referred to in s60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s60G. Those acts or omissions, in a case such as the present (as in Dedousis) will be found in the plaintiff's particulars of negligence. (In this connection I refer, not to the product of some word processor, which, as some of the particulars in the present case illustrate, might include allegations that are either inapplicable or of marginal relevance, but to the material particulars as they emerge from a consideration of the statement of claim and the evidence in support of the application for an extension of time).
5 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 s60I(1)(a)(iii) will be satisfied.
6 Even so, it will still be necessary for the court dealing with the application for an extension of time to decide whether, under s60G(2), it is just and reasonable to extend the limitation period."
27 The Chief Justice said that the case was principally concerned with propositions in 4 and 5. His Honour said:
"Senior Counsel for the appellant contended that O'Reilly DCJ took an inappropriately particular view of the meaning of the expression 'the defendant's act or omission' in s60I. Here, it was argued, the relevant act or omission was the failure to provide a safe system of work, or the failure to provide adequate protection for the hearing of employees such as the respondent, and this was something of which the respondent was aware in 1998. The information obtained by the respondent in 1992 may have added some further detail to the knowledge and information already possessed by the respondent, but this was immaterial. The respondent knew, in 1988, the essential facts which were to form the basis of his claim against the appellant, and he could not establish that he was unaware of the connection between his deafness and his employer's failure to protect him against excessive noise, which was, in essence, the relevant act or omission relied upon.
The first thing to be observed about this argument is that it is difficult to reconcile with the actual decision in Dedousis.
In Dedousis the High Court accepted an argument based upon the difference between the particulars of negligence being relied upon by the plaintiff, and the somewhat narrower complaint which had been known to, and made by, the plaintiff some years before instituting his action. (see 181 CLR at 181).
In 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)(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 s60G(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 s60I(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 s60G(2) may, depending upon the facts and circumstances of a case, operate as an important qualification upon the practical effect of s60I.
In the present case O'Reilly DCJ was correct to conclude that the requirements of s60I had been satisfied by the respondent, and there was no error in his discretionary decision under s60G(2)."
28 In the present case the appellants fastened upon a passage in the Master's judgment that I have quoted and now quote again. The Master said:
"Although the plaintiff knew that a warning appeared on the containers of solvent it was not until after August 1996 that the plaintiff became aware that the manufacturers should have included on their labels warnings of the chemicals in the solvents and that this constituted an omission which would found a cause of action."
29 The appellants submitted that this passage disclosed an error of law in that, contrary to the decisions to which I have just referred, the Master decided in favour of Mr Bayliss on the basis that although aware of the existence of acts or omissions he was unaware of legal conclusions, that is to say the legal complexion which might be put upon the particular facts or circumstances. Some support can be found for this in the words "that this constituted an omission which would found a cause of action." The Master had earlier referred to the critical date in August 1996. She said:
"In August 1996 the plaintiff became aware that the manufacturers should have included on their labels warnings of the chemicals in the solvents and that the manufacturers did not pass on to the consumer the details that were provided to them by the chemical companies. He was told this by Mr Johnny Walker ….. It was confirmed by Mr Walker in writing to the plaintiff on 26 September 1996."