NSW Sugar Milling Co-Operative Ltd v Murray Norman Fowke

LOWER COURT JURISDICTION : District Court LOWER COURT 8574/00 FILE NUMBER(S) : LOWER COURT Certoma ADCJ JUDICIAL OFFICER :

COUNSEL : P Webb QC leading M J Gollan (Claimant) K W Andrews (Opponent) SOLICITORS : Dexter Healey Kalpage & Co CATCHWORDS : [LEAVE TO APPEAL] - Application for leave to appeal from District Court decision extending the limitation period under s 60G of the Limitation Act 1969 (NSW) - Whether primary judge failed to give adequate weight to the prejudice occasioned to the claimant - Whether primary judge misstated and misapplied the principles applicable to onus of proof. LEGISLATION CITED : Limitation Act 1969 (NSW) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 CASES CITED: CSR Limited & NSW Sugar Milling Co-Op Ltd v Rendell; NSW Sugar Milling Co-Op v Rendell (NSWCA, unreported, 7 August 1996, Handley, Sheller and Cole JJA) Holt v Wynter (2000) 49 NSWLR 128 DECISION : Summons dismissed with costs.

• 1 -IN THE SUPREME COURT OF NEW SOUTH WALES Court of appeal

Heydon JA, Foster AJA, Bergin J 11 JULY 2002

8574/00 NSW SUGAR MILLING CO-OPERATIVE LTD v MURRAY NORMAN FOWKE

JUDGMENT 1 BERGIN J: NSW Sugar Milling Co-Operative Ltd (the claimant) seeks leave to appeal against a decision of Certoma ADCJ in which his Honour extended the limitation period pursuant to s 60G of the Limitation Act 1969 (NSW) (the Act), as amended, permitting the opponent, Murray Norman Fowke, to commence proceedings against the claimant seeking damages for deafness alleged to have been caused by the claimant's negligence in, inter alia, failing to supervise and maintain a safe system of work for the opponent. The Court has ordered that the application for leave is to be heard concurrently with the appeal, on the assumption that leave were to be granted.

2 The proceedings were heard on 12 April 2001 and judgment was delivered on 27 June 2001. At the hearing the opponent relied upon the oral and affidavit evidence of the opponent, affidavits of the opponent's solicitors and documents including some of the claimant's records and records and reports of a specialist physician (ENT), Dr P C Macarthur. The claimant did not call any evidence. 3 The opponent was born on 6 February 1945 and left school in about 1960. Between 1960 and 1979 he completed his apprenticeship as a boilermaker/ ship builder and worked for a number of employers. He commenced employment with the claimant on 16 January 1979. In paragraph 5 of the affidavit of the opponent relied upon without objection he stated: "At the time I commenced employment ... I did not have any difficulties hearing." The opponent also claimed in his affidavit that in about 1983 he became aware of difficulties with his hearing but they were not a "major problem." He consulted Dr Macarthur in March 1984 who reported that the opponent had claimed that "over the past two years or more" he had been aware of a slight hearing loss. 4 The opponent made a Worker's Compensation claim in 1984 and was awarded a lump sum on 4 February 1985 for 19.2% diminution of hearing in his left ear and 15.9% diminution in his right ear resulting from injury deemed to have happened on 22 October 1984. By Terms of Settlement dated 25 February 1991 the claimant agreed to pay the opponent a lump sum in respect of 3.0% loss of hearing of both ears resulting from injury deemed to have happened on 23 July 1991. 5 The evidence before the primary judge included the reports of Dr Macarthur of 4 May 1984, 24 April 1991 and 17 August 1995. In the first of those reports, Dr Macarthur reported that the opponent had a "mild to moderate" bilateral sensory-neural deafness due to exposure to loud noise in his work as a boilermaker over the previous 24 years. In the report of 24 April 1991 Dr Macarthur reported that such condition was "moderate" due to the exposure over the previous 30 years. In the 1995 report Dr Macarthur reported that the condition was "moderately severe" due to the exposure over the previous 34.5 years. 6 In cross-examination of the opponent, the claimant established that between 1965 and 1972, the opponent worked for Evans Deakin at Kangaroo Point for a period of 5 years and then possibly for about 2 years over the next 2 years (tr. 4). The evidence established that the business was still "going" although the shipyard at which the opponent completed his apprenticeship was closed (tr. 10). Between 1965 and 1972 the opponent was employed by McDougall, Ireland; Evans, Anderson and Phelan; Readymix and KR Darling Downs. Between 1972 and the time the opponent commenced employment with the claimant he worked at Rheem at Townsville; the Evans Deakin slipway at Townsville; Planet Homes; Blake Engineering; KG Engineering; Patterson Engineering; Ballina Slipway Engineering; Armstrong Holdings in Sydney; Eyles Forge Engineering at Coffs Harbour; Grafton Brewery and Durra Welding Works. There was no evidence called to establish the status of those particular businesses nor was there any evidence that the records from those businesses were unavailable except for a general question and answer to which I shall refer shortly. 7 The primary judge referred to the relevant terms of section 60G and 60I of the Act and noted that it was conceded by the claimant that the applicant had satisfied the threshold requirements of s 60I of the Act. In those circumstances the only question for the primary judge was whether it was "just and reasonable" to extend the limitation period: s 60G(2). 8 The claimant argued that in all the circumstances it was not just and reasonable to extend the limitation period because a fair trial could not take place. It argued before the primary judge that a fair trial could not be had because it was prejudiced by the delay in bringing the proceedings. The two specific areas of prejudice claimed were: (1) that there would be difficulty in determining the extent of any effect on the opponent's deafness from his employment between 1960 - 1979 prior to his employment with the claimant; and, (2) that although the claimant had some records, the opponent had a poor recollection of his earlier years of employment with the opponent and an even vaguer recollection of his previous employers, some of whom have closed or moved. 9 In respect of the first area of alleged prejudice it was submitted to the primary judge that the opponent must have had some loss of hearing at the time that he commenced employment with the claimant because of the diminution of 3.08% in six years, between 1985 and 1991, said to be established by the Worker's Compensation Awards in those years. 10 The primary judge noted that the claimant did not call any evidence to establish that any hearing loss that may have appeared some three or four years after the opponent commenced employment with the claimant could be attributable to his earlier employment. His Honour also noted that the position remained "unclear" from Dr Macarthur's reports, notwithstanding the fact that Dr Macarthur had referred to exposure to noise over a period that included the period between 1960 and 1979 (at 9). 11 Having noted that position, the primary judge then assumed for the purposes of the assessment of the matter, that even if the opponent's deafness had been contributed to by his employment conditions between 1960 and 1979, the claimant had called no evidence to establish that such contribution could "not be satisfactorily apportioned by medical evidence" (at 9). The primary judge concluded that any prejudice which might be suffered by the claimant because of the uncertainty about how much of the opponent's hearing loss was attributable to his former employment was not caused by a lapse of time in bringing the proceedings but was "because of the nature of the case." The primary judge was also satisfied that relevant evidence had not been "materially lost through delay."

12 The claimant submits that the primary judge erred in extending the limitation period on the following grounds: (1) That he failed to give adequate weight to the prejudice occasioned to the claimant; (2) That he gave inappropriate weight to the prejudice that may occasioned to the claimant; (3) That he failed to have regard to the positive burden on the opponent of demonstrating that the extension would not significantly prejudice the claimant; (4) That he failed to properly apply the principles enunciated in CSR & Anor v Rendell; NSW Sugar Milling Co Op Ltd v Rendell (NSWCA, unreported, Handley, Sheller & Cole JJA, 7 August 1996); (5) That he failed to properly apply the principles enunciated in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; and (6) That he failed to apply the principles enunciated in Holt v Wynter (2000) 49 NSWLR 128. 13 The claimant submitted that the Primary judge failed properly to exercise his discretion in that he failed to find that significant prejudice would result to the claimant should the extension be granted, and failed to consider whether the cause of prejudice was occasioned by delay. 14 In oral argument the claimant grouped its contentions under three heads. The first was that the primary judge had misstated and misapplied the principles applicable to the onus of proof. The second was that the primary judge fell into the same error as the Queensland Court of Appeal in Taylor's case when it used as a point of reference that time after the event which founded the cause of action and compared it to the position at the time when the application was made. The third was that the primary judge failed to properly consider the difficulties inherent in the application with particular emphasis on the difficulties of memory after such a lapse of time.

15 In Brisbane South Regional Health Authority v Taylor, Toohey and Gummow JJ said at 547: There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the Court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission [1964] VR 788 at 793in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474: It is for the opponent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice. 16 McHugh J said at 551: The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. … The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose. 17 In Holt v Wynter, Sheller JA, with whom the majority agreed, said at 147: … the effect of the decision of the High Court in Brisbane South Regional Health Authority is 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. 18 In CSR Ltd v Rendell & Anor; NSW Sugar Milling Co-Op Ltd v Rendell, Handley JA said at page 6: In my judgment given the extent of the plaintiff's knowledge before August 1990 and even in 1982-4, it would not be just or reasonable to expose CSR to a action for industrial deafness when the quantification of the plaintiffs damages would be so speculative and uncertain. There is a real risk that CSR might be ordered to pay damages for industrial deafness it did not cause.

19 The onus was on the claimant to place in evidence "sufficient facts" to lead the court to the view that prejudice would be occasioned to it if the limitation period was extended. The facts that the claimant placed in evidence by way of cross-examination or which otherwise emerged from the opponent's evidence in general included: (1) that there were a number of employees who had worked with the claimant during the relevant years who are available to give evidence of the nature of the claimant's work system, the nature of the opponent's job throughout the years of his employment with the claimant, the type of equipment with which the opponent worked, the various noise levels of the work environment and the availability and/or use of protective ear muffs; (2) that the previous employers with whom the opponent worked between 1960 and 1979 were identified; (3) that the majority, and it appears all but one, of previous employers' work environments were "noisy"; and (4) that although the particular shipyard at which the opponent completed his apprenticeship had closed, the firm or business with which he worked during a five, and perhaps seven, year period from 1960 was still operating. 20 The claimant called no evidence to suggest that any of the other businesses or firms for which the opponent worked in the period prior to employment with the claimant were no longer operating. However in cross-examination the opponent, in answer to a question as to whether the former employers were "still around", said that "some had disappeared". There was no cross examination of which employers had disappeared in particular whether they were the ones for whom he worked at the earlier or later part of the period 1960 to 1979 (tr.10). There was no evidence that any of the possibly relevant records in relation to the opponent's employment or the employment environment in which the opponent worked during those years were unavailable. 21 The medical reports and Worker's Compensation records established that the opponent had first noticed a slight hearing difficulty in 1983, four years after the commencement of his employment with the claimant. The onus was upon the opponent to place before the primary judge "sufficient facts" to establish that the opponent would be prejudiced at trial in establishing the extent of any effect on the opponent's hearing capacity from his employment prior to employment with the claimant: if it did, it was for the opponent to show that the prejudice was not material. As I have already said there was no evidence, except for the general reference to "some" having disappeared, as to businesses being closed or records being unavailable from the previous employers. There was also no evidence that as a matter of forensic medical expert evidence it would be difficult to carry out a just apportionment if one were to commence from the premise that the records were unavailable. No evidence was led to suggest that a medical witness expert in the relevant field would be prejudiced by having to work only from the opponent's clinical presentation as at 1983 and following. 22 The primary judge's finding that the uncertainty about how much of the opponents hearing loss was attributable to his former employment was not caused by lapse of time in bringing the proceedings but by the "nature of the case" is in my view an expression of the conclusion that there was no prejudice established by the claimant by reason of a lack of records or unavailability of evidence. The term "the nature of the case" seems to me to refer to the fact that the hearing loss as reported upon by the expert was first noticed four years after the opponent commenced employment and that the nature and progress of the condition is one that is inherently surrounded by uncertainties. It is not, as the claimant submitted, directed to a comparison of the position as at 1993, when the limitation period expired, with the position as at 2000 when the application was made. In short, the claimant's contention that the primary judge had committed the same error as the Queensland Court of Appeal in Taylor's case is not made out as a matter of construction of the primary judge's language. 23 The primary judge carefully considered the evidence before him as to possible prejudice that may be suffered by the claimant. Although the claimant established by way of cross-examination of the opponent that the environment of the majority of previous employment was "noisy" the nature of that noise was not explored in any detail, except for the possible reverberation of noise of hammers on the hulls of ships. The claimant asked very few questions of the opponent about the nature of the equipment used in that employment period and asked no questions about the duration of the noise or the level of the noise. The cross examiner resorted to questions about whether the opponent had fired rifles during his cadet years at school or whether he had a "fetish" for heavy metal music. The primary judge referred to the relevant authorities and I am unable to agree that he failed to apply the principles enunciated within them. 24 Contrary to what the claimant has suggested, the primary Judge did not place any onus on the opponent in any wrong way. The claimant submitted the primary Judge concluded that the claimant had an onus of contradicting the proposition that "a satisfactory apportionment of the attributability of the opponent's hearing loss may be undertaken by medical evidence." He did not: he merely said that the claimant had called no evidence contradicting it. That was a relevant observation. If the proposition could be contradicted, and if the contrary of the proposition could be established, the claimant would have identified an item of prejudice. But this it did not do. The claimant's written submissions contended that whatever obligation it had to call evidence on prejudice was negated by the opponent's reliance on Dr Macarthur's report of 24 April 1991, which said: Mr Fowke has a moderate, bilateral, sensory-neural deafness due to exposure to loud noises in his work as boilermaker over the past thirty years.

But that statement does not demonstrate prejudice of any kind, and it does not demonstrate that a "satisfactory apportionment" could not be undertaken. Dr Macarthur had not turned his mind to that question. 25 There was nothing before the primary judge to suggest that, as in the case of CSR Ltd v Rendell, there was a "real risk" that the claimant might be ordered to pay damages for industrial deafness it did not cause. 26 I am of the view that the third group of submissions over-emphasise the difficulties that the opponent said he had in remembering past events. Having regard to the whole of the evidence it seems to me that there was no significant absence of recall of material matters. It was the lack of "sufficient facts" to lead the court to the view that prejudice would be suffered, rather than any inappropriate or inadequate attention to or weighting of the facts before the primary judge that led to the finding that the claimant would not be prejudiced. In my view the primary judge did not fall into error in the exercise of his discretion.

27 I would propose the following orders: (1) The Summons is dismissed; (2) The claimant is to pay the opponent's costs. 28 HEYDON JA: In my opinion on the true construction of the primary judge's reasons for judgment he did not impose an onus on the claimant to call evidence of prejudice. His reasons are consistent with the proposition, conformably with the authorities, that it was sufficient for it to be able to point to evidence of prejudice tendered by the opponent. 29 The complaint the claimant made about this was the most significant of its complaints. For the reasons given by Bergin J neither this nor the other complaints advanced by the claimant justify a setting aside of the primary judge's discretionary decision. I agree with the reasons and with the orders proposed. 30 FOSTER AJA: I agree with the reasons and the orders proposed.

31 HEYDON JA: Accordingly the orders are: 1. The Summons is dismissed. 2. The claimant is to pay the opponent's 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.