Union approval was received and the hearing conservation programme has now started. The interest already shown by the staff and daily-paid employees indicates that it may be successful. To maintain that interest continued support must be given to all aspects of the programme. If noise measurements reveal sources of intense noise that noise must be reduced if it is demonstrably possible to do so. It must be evident to the employees that everything possible has been done and will be done to control Noise. Also, if they are to play their part in a hearing conservation programme, it is not sufficient merely to provide them with hearing protection. A vigorous long-range and detailed educational programme promoted and fully supported by management and applied at all levels must be maintained to stimulate awareness of the hazard, to promote the use of ear protection, and to encourage voluntary attendance for routine audiometry. Education will be the key factor in deciding whether the hearing conservation programme will be successful." [emphasis added]
40 Mr Robertson's evidence in his affidavit of 30 April 2002 was that apart from the workers' compensation hearing tests in December 1972 and August 1983, the opponent did not test his hearing. It was not until a couple of years before he retired from the opponent's employment (in 1982) that he was provided with some hearing protection, and that safety lectures which dealt with the effects of noise on hearing were given. In cross-examination he put the date at some time between 1974 and 1976.
41 It will be apparent that that evidence is at odds with the position described by Dr Cumpston earlier quoted, to the effect that toward 1967 neckband-style ear muffs be introduced not only for the shaft sinking crews but in all other sections of the mine and that "ear muffs or ear plugs are now freely available for all exposure to noise levels above 90 dbA" and that "the neckband style ear muffs had been well received".
42 I refer to this evidence simply to demonstrate that Dr Cumpston's availability could well have been material in respect of the period from 1961 to 1972. But that just emphasises the fundamental difficulty in the claimant's case, were it to apply to that earlier period. It explains why the claimant has pressed his claim much more strongly with respect to the later period (1972-1978). Given that Dr Cumpston was in fact alive until 2001, the loss of his availability only after that reinforces the significant prejudice to the opponent were it open to the claimant to obtain an extension of the limitation period to encompass the period prior to 1972.
43 The claimant submitted that the evidence that could have been given by Dr Cumpston, were he still alive, was not indispensable to the opponent's case, because other evidence, both documentary and witness evidence, was available.
44 However, to the extent the earlier period of employment remains relevant, as the opponent submitted, while Dr Cumpston might not have been the only person involved in noise and hearing loss issues at the mine, or even the most involved, at the very least he was the person who most clearly emerges from the remaining documentation as having had significant involvement in the system of work between 1961 and 1968 (with absence during October 1962 to the latter part of 1964). Moreover, he retained an interest in noise issues at the mine even after that up to 1973. For example, in addition to publishing the 1968 article noted above, Dr Cumpston advised the Broken Hill Mining Managers Association (MMA) on industrial deafness issues, and represented the MMA on numerous occasions at conferences from at least 1967 to 1973 at which he made reports and gave talks on industrial noise and hearing protection (see, for example, Mine Managers' Association Minutes 1969, 1972, 1973 [Vol 1, Tab 23]; MMA Industrial Accident Prevention Committee Minutes 1967 [Vol 3, np]; Report of Conference 16 Nov 1967 [Vol 3, np]). In April 1973, Dr Cumpston represented the MMA on the committee drawing up the Australian Standard, which was published in 1976. Thus, it was clearly open to the primary judge to find that the opponent would be placed in a position of significant prejudice by reason of the death of Dr Cumpston.
45 The claimant submitted that the primary judge failed to consider the availability of other witnesses, in particular, two of the claimant's shift bosses who are still living. However, in the absence of evidence establishing when, in the claimant's 24 year period of employment with the opponent, these shift bosses worked at the mine, this evidence is of limited assistance. More generally, the primary judge did advert to the possibility of other witnesses being alive and available, but it was open to him to infer as he did that any such witnesses would be too old and the length of time since they were involved with the mine too long, for it to be likely that they could give cogent evidence. The claimant himself conceded that all his workmates (that is, the men who worked underground with him in his crew) were dead. He also gave evidence in cross-examination that most of the senior personnel at the mine would have been close to retirement age, in his estimate between 58 and 60, by the time he left the opponent's employment in 1982. As the opponent submitted, common sense suggests that if Dr Cumpston and all the claimant's workmates are dead then the prospect of locating senior personnel still alive (or if alive, able to give cogent evidence) could not be rated very highly.
46 The claimant also submitted that because any trial would be concerned with whether there was a safe system of work, it would not be concerned with the evidence of witnesses as to what they observed. The claimant submitted that other documentation was available in relation to the system of work, that is, documentation as to noise levels in the mine and the steps being taken in hearing protection. However, most of this documentation relates to the late 1970s and 1980s, whereas the claimant ceased working in 1978. Moreover, as the opponent submitted, any trial would turn on the factual issues identified by the primary judge, such as what hearing protection was provided and how it was provided and fitted, what the attitude of the union was, and most critically, when hearing protection was made available. The determination of these factual issues would be reliant upon the evidence of witnesses at trial. The primary judge relevantly cited the decision of Mason P, Handley and Cole JJA in a similar case, BHP Steel (AIS) Pty Ltd v Dimitrioski, NSWCA, 7 March 1997:
"The matters which would require investigation at the trial, based on the opponent's pressed particulars of negligence relate to regularity of testing and the reasonableness thereof, the nature of instruction given regarding hearing protection, the availability of and reasonableness of providing quiet areas, and instruction regarding dangers of exposure to noise. To be required to investigate in 1997 those matters prior to 1982 would be onerous indeed upon BHP. Weighing that with the prima facie position made clear in Brisbane South Regional Health Authority that it is upon the opponent to establish that it is just and reasonable to grant such an extension as an exception to the general provision that statutes of limitation are to be enforced, demonstrates that the onus was not satisfied. It is not a sufficient discharge of the onus simply to show that some records are available."
47 The claimant further argued that the opponent failed to discharge its evidentiary onus in relation to the "just and reasonable" question by claiming privilege in relation to certain documents. The claimant seeks to rely on an affidavit of Steven Akerman from the firm of solicitors acting for the claimant dated 2 March 2005 (identical to that filed in the Jones appeal, where he is also the solicitor acting). I interpolate that objection was taken to the admission of that material as fresh evidence. The affidavit was directed, as in Jones to whether, based on transcripts of cross-examinations which post-dated the judgments in Robertson (22 October 2003) and Jones (26 September 2003), there had been admissions in other industrial deafness matters. The claimed admissions were to the effect that the relevant opponent had statements from relevant witnesses concerning the relevant working conditions, these were nonetheless statements for which privilege was still claimed by the opponent. Thus the claimant contends that this claim of privilege demonstrated the opponent's failure to satisfy the evidentiary onus, discussed in Brisbane South. In that case, Toohey and Gummow JJ (at 547) adopted a passage from Gowans J in Cowie v State Electricity Commission of Victoria [1964] VR 788 to the effect that: "It is for the respondent 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"; see also Kirby J in Brisbane South at 566.
48 The Court deferred ruling upon the admissibility of that affidavit and had before it also an affidavit of Mr O'Donnell from Cutler Hughes Harris on behalf of the opponent dated 20 June 2005. That latter affidavit bore upon the potential relevance of this material, derived as it was from several other cases referred to at para 5 thereof, namely Pearce v The Zinc Corporation Pty Ltd 29 February 2000 and 1 and 2 March 2000, Pearce v Hamersley Resources Ltd 18 and 25 June 2004. Reference was also made to Stackpool v NBH Limited 16 June 2004 and Charnock v Hamersley Resources Ltd 16 June 2004.
49 The opponent's objection to the admission of this evidence had two prongs. First, it was alleged that this evidence was not, or was unlikely to be relevant. Second, it was contended that Mr Akerman was on notice of the relevant material and failed to seek it, well before the decisions in Jones and Robertson. This was said to be by reason of bills of costs in the possession of and available to Mr Akerman for at least twenty-one months prior to the hearing before Rein DCJ in Robertson on 26 October 2003; see attachment to Mr O'Donnell's affidavit.
50 Taking first the question of relevance or potential relevance, while the opponent was careful not to waive privilege or purport to indicate what the material in the witness statements, which had been given in the other matters, might say, the proceedings in Pearce and Charnock were for extensions of time in relation to similar workplace injury which had been unsuccessful. That certainly undermined their potential relevance. As to the third matter, Stackpool v NBH Limited, while those proceedings for extension were successful, they related to an entirely different albeit adjoining mine, managed and owned by a different company, Broken Hill North. Thus on any view Stackpool could not be relevant.
51 The second prong of the attack relates to the contention that it was only as a result of cross-examination in the matters of Pearce, Stackpool, and Charnock that Mr Akerman "became aware for the first time of the fact that the opponent in these proceedings had available to it statements from numerous persons", being the statements over which privilege was claimed.
52 The answer given by Mr O'Donnell in his affidavit of 20 June 2005, as I have said, is that, for at least twenty-one months prior to 26 October 2003, by virtue of Bills of Costs in documents obtained at that earlier date on subpoena, Mr Akerman was on notice of this material well before the hearings in Jones and Robertson. The relevant Bill of Costs at page 7 relates to the Pearce matter and thus the relevant mine. They are attached to an application for assessment of costs filed in the Common Law Division of this Court. Mr Pearce sought an extension of time to bring proceedings relating to claims for damages for industrial deafness suffered before 30 June 1987. The application refers to a period of employment by Zinc Corporation between 1950 and 1968 and by New Broken Hill Consolidated Limited between 1968 and 1991, in circumstances where the workers' compensation liability of both of these companies had been assumed by Pasminco Australia Limited.
53 At page 30 of the affidavit reference is made to an item numbered 39 under the date 24 January 2000 "reading and considering files obtained by Aspec Holdings in searches of client records for general safety matters and particularly hearing protection - 240 pages - 1 hour 40 minutes".
54 It is clear that Aspec Holdings was an investigator appointed by the relevant company. The immediately preceding entry in the Bill of Costs refers to "telephone attendance on Mr Katz of Aspec Holdings regarding his searches of client records …".
55 There is a later entry in the same Bill of Costs dated 3 February 2000 "reading and considering further report of Aspec Holdings on interview with former safety officers and supervisors …"
56 In all the circumstances, I consider that the further material sought to be introduced by the claimant relating to the three matters I have referred to should not be allowed. This is more particularly given the evident prejudice to the opponent from its introduction now rather than at the time of trial is self-evident and where its relevance has been put significantly in question.
57 This leads to the question of whether the primary judge was in error in declining to extend the limitation period in relation to the later period in particular after 1972. The position before 1972 is self-evidently such that no extension could be justified under the criteria in s60G.
58 While it appears that the opponent has available a limited amount of documentary material, I would accept that the opponent would be a significant disadvantage in the presentation of evidence at a trial. This is unless it could bring forward relevant supervisors, foremen or managers from the years 1954 to 1978 to attest to the correctness of the documents in fact, and as to the application of the practices referred to in the documents.
59 I consider that the primary judge correctly found that the opponent's ability to call evidence on the relevant factual issues has been very significantly compromised by the passage of time. It was clearly open to the trial judge to find that the passage of time was such that other persons whose testimony would or could be relevant were unlikely to be less than 70 years of age (if they were still alive), would long ago have ceased to have any involvement with the mine, and were therefore unlikely to have the necessary degree of recollection that would permit them to provide cogent evidence in support of the opponent's case.
60 I consider that the primary judge gave adequate reasons for the exercise of his discretion and that there was no basis for challenging it as having miscarried in relation to the "just and reasonable" ground.