SDC Kennedy & Bird v Kerry O'Brien; Kennedy & Bird [2002] NSWCA 367 | Case summary

Judgment 1 HANDLEY JA: The Court has before it two summonses for leave to appeal from a decision of Christie DCJ who ordered extensions of the limitation periods for actions against the claimants. Both claimants also seek extensions of the time for filing their summonses for leave to appeal. 2 On 18 January 2002 the Judge ordered that the limitation periods be extended to permit actions to be brought against SDC Kennedy and Bird Pty Limited, and Kennedy and Bird (Builders) Pty Limited (Kennedy and Bird companies), subject to statements of claim being filed within 21 days. 3 On 14 February both claimants filed notices of appeal without appointment purporting to appeal as of right. These would have been in time if the intending appellants had appeals as of right, but since the orders extending the limitation periods were interlocutory, appeals only lay with the leave of this Court. Supreme Court Act s 101(2)(e). 4 Summonses for leave to appeal were not filed until 8 May and 10 May respectively, approximately three months out of time, but the opponent knew within time that the claimants intended to challenge the judgment. Mr Andrews, for the opponent, acknowledged that there had been no relevant prejudice, and I would therefore extend the time for the filing of the summonses for leave to appeal, in the case of 40378/02 to 8 May, and in the case of 40386/02 to 10 May. 5 The opponent, a tradesman carpenter who has been in the building industry all his working life, commenced employment with the first Kennedy and Bird company some time in 1962 and continued to work for it until 30 June 1984 when his employment was transferred to the other Kennedy and Bird company, for whom he worked until 31 July 1987. He then worked for Reama Constructions, another builder, for a time, and then for ten years or so he worked in the maintenance department of Loretto Nursing Home, and since then he has worked in the maintenance department of Canterbury Hospital. 6 His evidence was that he had always been exposed to industrial noise in the building industry but that his worst exposure was while working for the Kennedy and Bird companies. He sought extensions of time to sue those companies to recover damages for his industrial deafness caused by his exposure to industrial noise in their employment. He stated in his affidavit that while working for those companies he was exposed to noise from jackhammers, compressors and power tools, but was given no hearing protection, no warning or training about the risks of industrial deafness, and his hearing was never tested. 7 The opponent said that he and his wife first noticed problems with his hearing about halfway through his employment with the Kennedy and Bird companies, that is, about 1975. He did nothing about his hearing problems until, at his wife's insistence, he arranged through his general practitioner to see a specialist, Dr Bridger, on 18 September 1996. The doctor diagnosed industrial deafness with a binaural loss of forty-one percent after allowing for presbycusis, and suggested to the opponent that he consult a solicitor. 8 The opponent consulted his present solicitors, but for reasons which have been fully explained, they were not able to file applications for extension of the limitation periods until 12 July 2001. Both Kennedy and Bird companies had been wound up and dissolved, and they had to be restored to the register and leave to proceed had to be obtained. The companies had no assets other than possible rights of indemnity under workers' compensation policies, and it took a long time for the opponent's solicitors to identify relevant insurers. The Court still does not know when the companies were wound up. Ultimately, the opponent's solicitors established the identity of the insurer which was on risk from 1968 until June 1984, and the insurer which was on risk from July 1984 until June 1987. The insurer or insurers on risk before 1968 have not been identified. 9 The insurer on risk for the earlier period would not be responsible for any hearing loss or increased vulnerability before 1968 and would not be responsible for losses after 30 June 1984. The other insurer would not be responsible for any accrued loss or vulnerability before it came on risk in 1984, or for any losses after 30 June 1987. The segregation of the plaintiff's total damages, if he succeeded against these defendants, into these four periods, would be extremely difficult where the first audiogram took place in 1996. The Judge was correct when he said, "the prospective calculation of the plaintiff's hearing loss might be fraught with difficulty". 10 There was evidence from the solicitors for the first claimant of her efforts to trace former officers and staff of that company who might be able to give instructions and possibly evidence in relation to the opponent's claims. She succeeded in tracing a Mr Sidney Kennedy, a former director, and a Mrs Carmel Kennedy, another former director and whose late husband had also been a director. However, it seems that Mrs Carmel Kennedy took no active part in the building operations of the companies. Mr Sidney Kennedy proved most unco-operative and his actual role in the companies and the period of that involvement was never identified. 11 The claimants therefore led evidence that they would presumptively be without any evidence from witnesses who had worked for the Kennedy and Bird companies during the period of some twenty-five years when the opponent was in their employ. 12 The opponent gave evidence that some of his former workmates were still alive and that he knew where they could be contacted. He was able to identify a Mr Cartwright, a Mr Dowling and three gentlemen by the name of Shaw. One of these apparently was the father and the other two his sons. However the father worked as a truck driver and may not have been able to throw a great deal of light on the plaintiff's exposure to industrial noise. 13 The opponent said that the sons were "boys, they weren't on the job a lot of the time. They were his sons, they were labourers," and it may well be that they could not throw a great deal of light on the opponent's exposure to industrial noise either at all or until a relatively late stage in his employment. The precise role of Mr Cartwright and Mr Dowling was never identified. The oponent said that the companies had branches in Sydney and in Canberra, and that the permanent employment in the Sydney branch was some forty or fifty. He also said when he gave evidence in December 2001 that Mr Cartwright and Mr Dowling and the Shaws were younger than himself, but he had not been in touch with them for some three years. 14 The claimants were never given the contact details for these former employees which would have enabled them to be identified and interviewed, although the opponent stated in paragraph 16 of his affidavit of 4 July 2001 that he was aware of some former employees who were living in the Sydney area. 15 On the basis of this evidence, the primary Judge said: "I would see those matters as being prejudicial to the various respondents but they are common matters, that is, commonly raised in this kind of application, because many of these industrial deafness cases are so old that one would not be surprised that none of the former employees are about and able to give evidence. That of itself would not in my view be sufficient to defeat the plaintiff, although I regard it as a matter of not insignificant prejudice. Nevertheless, I suppose one is entitled to say that that prejudice will flow as much to the prospective plaintiff, perhaps, as it would to the prospective defendants. After all, the prospective plaintiff, at least in theory, has the obligation to discharge the onus of proof in relation to the causation of his deafness." 16 Subsequently, he said: "The length of delay is something that must be considered as significant. The prejudice, both actual and presumed, is not insignificant, although I do not find it to be of an overwhelming nature, and that is nearly what it has got to be these days. I should not say in my view because it is not my view, it is the view of the Court of Appeal, and I am bound by it and I propose to act on that basis". 17 The opponent filed a notice of contention challenging the finding of the primary Judge that "not insignificant prejudice" had been established, but that finding was amply supported by evidence and must be affirmed. 18 The case is one where, in my judgment, this Court should grant leave to appeal. The Judge found that "not insignificant prejudice" had been established, but nevertheless proceeded to grant the extensions. This prima facie appears to be an error of principle capable of causing his discretion to miscarry and such as to invite review by this Court. The parties were on notice that the Court would hear full argument so that, should leave be granted, it could dispose of the matter without a further hearing. 19 Dealing with the matter as on an appeal, I have been persuaded that the error referred to requires this Court to set aside the exercise of discretion by the primary Judge and to refuse any extension of time. 20 The extensions sought were substantial. In January 2002 the opponent obtained extensions of time to sue for industrial torts which occurred between 1962 and 1987. The finding of not insignificant prejudice, whatever the semantics may be in some circumstances, on the evidence and findings in this case, amounts to a finding of significant prejudice. As such the settled course of decisions in this Court, especially since Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, culminating in the recently reported decision of Parsons v Doucas [2001] 52 NSWLR 162, required these applications for extension of time to be refused. The primary Judge could not have been referred either to that decision of the High Court, or to any of the substantial number of reported and unreported decisions of this Court. There are no recent decisions of this Court which require a finding of "overwhelming prejudice" before an application for extension can properly be refused. 21 His Honour referred to the prejudice suffered by the plaintiff as a result of the long delay and undertook a comparison between this and the prejudice to the defendants. However it has been accepted in this Court since Brisbane South Regional Health Authority v Taylor, especially at 549 per Toohey and Gummow JJ, that the exercise of the Court's discretion under provisions such as s 60G(2) of the Limitation Act should not involve a comparison of the likely prejudice to the plaintiff with that to the defendant. The focus must be on the actual or presumed prejudice to a defendant who has the benefit of an accrued limitation defence which may be withdrawn if the application for the extension of the limitation period is successful. 22 For these reasons I would propose the following orders: (1) Order that the time for the filing of the summonses for leave to appeal be extended in matter No 40378/02 to 8 May and in matter No 40386/02 to 10 May;

SDC Kennedy & Bird v Kerry O'Brien; Kennedy & Bird

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