JUDGMENT
1 MASON P: I have had the advantage of reading in draft the judgments of Foster AJA and Einstein J.
2 I agree with their Honours' legal analysis of s 60I (1) (b) of the Limitation Act 1969 and the need to focus on what the actual plaintiff knew or ought to have known.
3 However, I am persuaded that the primary judge erred in his factual conclusions in light of the principles in Dedousis v The Water Board (1994) 181 CLR 171 and Drayton Coal Pty Ltd v Drain, Court of Appeal, unreported, 22 August 1995.
4 The critical question in the present case is whether the court was satisfied that the plaintiff first became aware (or ought to have become aware) of the connection between his personal injury and the defendant's acts or omissions when he saw his barrister on 26 August 1997 (cf s 60I (1) (a) (iii) and (b)). In my view, he had the requisite notice much earlier, by the late 1980s.
5 The evidence in the District Court and the findings implicitly made by Judge Garling (at p3 of his judgment) show that, by 1988 at the latest, the plaintiff knew of his hearing loss, its employment-related cause and that his employer should have done something about it.
6 What more did he discover in August 1997? The judgment is quite unclear as to the critical knowledge deficit. The relevant findings made by Judge Garling were:
In this case what is argued is that whilst the plaintiff had some knowledge of those matters it was not until he saw a barrister on 26 August 1997 that he became aware of the Australian Standard, the Commonwealth Acoustics Laboratory Report or the contents of the reports, and it was not until he became aware of those that he would have the required knowledge.
This case seems to me, from a quick reading of Drayton Coal Pty Ltd v Drain to be somewhat similar to what the original judge, Judge O'Reilly, hearing the original application [in Drayton ] was faced with. It seems to me that this applicant did have some knowledge but was not fully aware until those matters were brought to his attention.
7 Counsel for the respondent submitted that this represents a finding that the plaintiff was unaware of a safer alternative system of work. Dedousis shows that such ignorance would be sufficient (see 181 CLR at 181-2). The plaintiff succeeded in that case because he proved that, until he spoke to his solicitors, he was not aware that his employer could have protected his hearing by providing him with proper hearing protection, by testing his hearing regularly, and by taking steps to reduce the noise levels of the machinery he was operating (see at 182).
8 In Drayton the plaintiff knew in 1988 that his deafness was 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 soundproofing or other noise dampening equipment. When he consulted a solicitor in 1992 he was informed, for the first time, that there was an Australian Standard which, in its application to his case, set out a number of requirements which, if complied with, would have protected his hearing. Those requirements included regular hearing testing and the supply of hearing protection devices. In the District Court an extension of time had been granted by Judge O'Reilly on the basis of a finding that the plaintiff was not aware that his hearing could have been protected by the provision of a thorough hearing conservation programme, until he consulted his solicitor in 1992. That decision was upheld on appeal.
9 Gleeson CJ said:
For the purposes of a case such as the present the decision of the High Court in Dedousis establishes the following propositions:
1. Section 60F is no more than an introductory provision that indicates the purpose of Subdiv 3. It is in s 60I(1), and not in s 60F, that the requirements to be satisfied by a plaintiff are to be found.
2. The requirement, in s 60I(1)(a)(iii), that the plaintiff was, at a specified time, unaware of the connection between the plaintiff's personal injury and the defendant's act or omission, is not identical to a requirement (of a kind which might be inferred from s 60F) that the plaintiff was unaware of the cause of the injury. (The decision in Dedousis turned upon that difference.)
3. Section 60I(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 s 60I(1).
4. The acts or omissions referred to in s 60I(1) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s 60G. 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 s 60I(1)(a) 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 s 60G(2), it is just and reasonable to extend the limitation period.
The argument in the present case was principally concerned with the propositions in 4 and 5 above. However, the proposition in 6 is relevant to a determination of those arguments.
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 s 60I. 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 1988.
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 s 60I(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 s 60I(1)(a)(iii).
10 In my view the present case is distinguishable from Dedousis and Drayton.
11 The cross-examination of the plaintiff established that he knew by 1989 that his employer should have used mufflers and different work practices to reduce noise levels (see transcript of 4 April 2001 at pp8, 10, 13, 19). He also knew that the employer could have and should have provided earmuffs (ibid p11). He also knew by then at the latest that the employer had the means of testing his hearing regularly and that it had failed to do so (Ibid pp15,16).
12 The plaintiff went to a solicitor, Mr Ackerman, in 1997. He gave the following evidence:
Q. So you thought you had a claim against Telecom before you saw Mr Ackerman, is that right?
A. I knew, thought I had a claim, yes.
Q. And Mr Ackerman, when you first saw him, I take it told you that, did he?
A. He didn't say it. I told him that I'm deaf cause by Telecom from the noises I've worked over the period of years and I know I'm getting worse.
13 As indicated above, Judge Garling decided that the combined threshold of s 60I(1)(a)(iii) and (2) was crossed on the basis that the plaintiff was not fully aware of the Australian Standard and the Commonwealth Acoustics Laboratory Report until he saw a barrister in August 1997. In my view, his ignorance of these documents has not been shown to be any more than ignorance of evidence capable of establishing that previously known omissions of his employer had legal significance in the sense of being a departure from generally accepted and promulgated standards of good practice. Thus viewed, the Standard and the Report conveyed no more than evidence of the legal complexion of omissions of which the plaintiff was already personally on notice (actual or constructive). Such knowledge is outside the concern of s 60I(1)(a)(iii).
14 In Dedousis the High Court drew a presently material distinction in stating (at 181) that:
It is true that s 60I (1) (a) (iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions.
This distinction was also emphasized by Gleeson CJ in Drayton (see proposition 3 in the passage set out above).
15 The present situation contrasts with Dedousis because the relevant visit of the plaintiff there to the solicitor was the first occasion on which he learnt that his employer could have protected his hearing by providing proper hearing protection, regular hearing tests and taking steps to reduce noise levels. The present plaintiff in the present case knew these matters long before he sought legal advice in 1997. The plaintiff's situation also contrasts with Drayton, because in Drayton the disclosure of the Standard brought home for the first time knowledge of the steps that could and should have been taken pursuant to that Standard, and that the taking of those steps as prescribed would have prevented his deafness. The vague and deficient findings in the present case fall far short of this.
16 If reference to the Standard or Report is the occasion on which a plaintiff first learns that his or her employer did or omitted to do some act, when the failure to perform it is arguably the cause of the plaintiff's injury, then s 60I(1)(a)(iii) is capable of being satisfied, subject to the question of degree referred to in the last portion of the lengthy extract from Drayton set out above. It is otherwise, if disclosure of the Standard or Report is no more than the first revelation (a fortiori the reinforcement of an earlier perception) that the employer's act or omission was a departure from generally accepted standards of good conduct.
17 The present case is if anything stronger than Sharp v State Rail Authority of New South Wales, Court of Appeal, (unreported 8 November 1995) where this Court (by majority) held that the plaintiff was aware of the material particulars more than three years before he made his application. Cole JA (with whom Sheller JA agreed) summarized the applicant's position in the following terms:
The appellant thus sought to argue that the evidence of Mr Sharp's solicitor which annexed a copy of Australian Standard 1269-1976 coupled with the statement of claim which alleged as a head of negligence "failure to have regard to provisions of Australian Standard 1269, and failure to regularly test the plaintiffs hearing and advise him of the results thereof", established absence of knowledge of the acts or omissions which grounded the cause of action and thus s 60I(1)(a)(iii) was satisfied.
I do not think that is so. As Drayton Coal makes it clear, the court is concerned, in considering the allegations of negligence, with "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". That evidence makes clear that Mr Sharp was in fact aware of his hearing loss in 1980, was aware that it was engendered by noises from the telephone system at his workplace, and contemplated suing SRA in consequence in 1986. Absence of testing to enable measurement of the damage caused by that activity did not in any material sense connect the hearing disability with the defendant's act or omission. There is little doubt on the evidence given by Mr Sharp that he was aware of the connection between his hearing loss and use of the telephones, and of the existence of alternative systems
18 Before us, counsel for the plaintiff pointed to the paragraph of the plaintiff's affidavit that deposed:
I was informed during the abovementioned consultation and verily believe that the Defendant/Respondent pursuant to the Australian Standard should have provided me with regular hearing protection which included a choice of hearing protection that was personally fitted to me, should have tested my hearing every one or two years, should have provided me with work environment which was away from noisy machinery, should have allowed my job to rotate into and out of quiet or noisy areas to allow my ears to recuperate, and should have taken engineering means to protect my hearing.
19 It was submitted that this shows that the sustainable particulars of negligence sought to be advanced by the plaintiff include freshly discovered matter as to the preventability of the hearing loss, thereby satisfying the principles expounded in Dedousis and Drayton. It was also submitted that it was only at the barrister's conference that the plaintiff learnt that (according to the Standard) provision of hearing protection should have included a choice of personally fitted protection; and that testing should have been every one or two years. It was further submitted that the cross-examination had not sought to establish that the plaintiff's knowledge went to these levels of detail (CA submissions p23).
20 In my view, this level of refinement amounts to hair-splitting. The difference between what the plaintiff admitted to knowing (in broad and general terms) and these extra refinements of specific knowledge said to be embodied in the Standard are distinctions without a difference in the present context. At the very least, the information admittedly known in the 1980s was broad enough to enable one to conclude that the plaintiff knew then the material cause of his hearing loss as now sought to be alleged in the pleading. The differences might be the sort that "a plaintiff's lawyers can think up", but they are not material in the sense indicated by Gleeson CJ in Drayton. In any event, the findings are quite inadequate to ground a decision that turns upon distinctions such as these, which counsel for the plaintiff sought to fine-spin before us.
21 It becomes unnecessary to consider whether, in any event, the plaintiff ought to have become aware of what I have termed the putative extra refinements (cf s 60I(1)(b)).
22 It is also unnecessary to do more than note that Nominal Defendant v Manning (2000) 50 NSWLR 139 does not establish an entitlement to bring multiple applications of this nature. I do no more than note that the appellant did not submit that the application before Judge Garling was an abuse of process having regard to the failed earlier application before Judge Quickenden.
23 I agree with my brethren in their conclusions that no separate error has been demonstrated in the primary judge's determination that it was just and reasonable to extend time. My disagreement with the judgment below comes at the earlier threshold.
24 I would uphold the appeal, set aside the orders made by Judge Garling and in lieu thereof order that the further application for extension of time be dismissed with costs. The respondent should pay the costs of the appeal but have a certificate under the Suitors' Fund Act 1951 if qualified.
25 FOSTER AJA: I agree with the judgment of Einstein J and his Honour's proposed orders. I wish to add the following comments with respect to the construction and operation of s 60I(1)(b) of the Limitation Act 1969 (NSW).
26 The question is whether the words in parenthesis, "ought to have become aware", require that there be imputed to the plaintiff, who is contemplated by ss 60F, G and I of the Act, the relevant knowledge of any solicitor from whom the plaintiff has sought advice in relation to a potential personal injuries claim, notwithstanding that that information is not imparted to the plaintiff, in the course of the giving of such advice.
27 More particularly, in the circumstances of the present case, should the knowledge, which it is inferred that the plaintiff's solicitor held as to the contents of the documents from the Australian Standards Association and the Commonwealth Acoustic Laboratory ("the documents"), be regarded as material of which the plaintiff "ought to have become aware" by virtue of his consultation with his solicitor, at a time outside the relevant three year period prescribed by s 60I(1)(b)? This question falls for consideration in the context of the trial judge's finding, not challenged in the appeal, that the information was not, in fact, imparted to the plaintiff by the solicitor, the plaintiff becoming aware of these matters only when consulting a barrister some time later, within the relevant three year period.
28 My consideration of the sections and the authorities referred to in argument and in his Honour's judgment, lead me to hold the following view of the meaning and operation of these words.
29 In Ford Excavations v Do Carmo [1981] 2 NSWLR 253, a different section of the Act was the subject of construction by the Court of Appeal; namely, s 58(2) which empowered a Court to extend an applicable limitation period where "any of the material facts of a decisive character relating the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period". In his judgment Hutley JA stated (at 267):
"where a solicitor acting for a client obtains knowledge or has knowledge as part of his general fitness to advise the client of the material facts relating to his client's cause of action, those facts are, in my opinion, part of the actual knowledge of the client."
30 This statement was not concurred in, when the matter was taken to the High Court in Do Carmo v Ford Excavations Pty Limited (1983-1984) 154 CLR 234. Wilson J, in the passage (at 249) referred to by Einstein J, reserved his opinion in relation to the statement, as there might be "a strong argument that the plain words of the paragraph exclude the operation of any general principle that might otherwise apply."
31 Dawson J, in his judgment, (at 259), said in relation to the appellant's receipt of advice from a solicitor:
"In fact he sought advice and, it would appear, did not receive the advice which he ought to be have given. However, s 58(2)…..makes no assumption that appropriate advice was received when it was sought. What is important is the means of knowledge which were reasonably available to the appellant. And that must mean available in a practical and not a theoretical sense."
32 I take these passages as indicating that, in relation to the section under consideration, the knowledge of an advising solicitor was not, in their Honours' view, capable of being imputed, without more, to the applicant. If the solicitor had the relevant knowledge but failed to impart it to the plaintiff, it did not become the knowledge of the plaintiff.
33 I consider that one arrives at the same result, by parity of reasoning, in relation to ss 60I(1)(a)(iii) and 60I(1)(b). As indicated in his Honour's judgment, it has been held in a number of cases that s 60I(a) is concerned with the plaintiff's actual and personal knowledge, or lack of it, of the matters referred to in the section. It is not concerned with the plaintiff's imputed knowledge or, indeed, his or her constructive knowledge of those matters. In arriving at this construction, the Courts have found assistance in the fact that a clear distinction is drawn between the wording of s 60I(1)(a) and s 60I(1)(b), where the constructive knowledge of the plaintiff is plainly referred to. That the latter sub-section has been called in aid of the construction of the former, is clearly exemplified in the judgment of Clarke JA in CRA Limited v Martignago (1996) 39 NSWLR 13 (at 18-19) where his Honour said, in a passage cited by Einstein J:
"In s 60I(1)(a) there is no mention of the concept of constructive knowledge nor do any of the subparagraphs of s 60I(1)(a) contain words such as "ought to have become aware". In contradistinction s 60I(1)(b) expresses the condition in terms which show that it will not be satisfied if the plaintiff became aware of certain facts within the stated time or if the plaintiff ought to have become aware of those facts within that time. Where the alternative tests are found in one subsection of s 60I but not in the other there is a logical difficulty in giving the expression "unaware" in subs (1)(a) the wider meaning embracing a form of constructive knowledge."
34 A statement to similar effect was made by Priestley JA in Spadotto & Co Pty Limited (in liquidation) v Raber, Court of Appeal, (unreported, 27 October 1995) where his Honour said, in relation to these paragraphs:
"Another matter which seems to me to be important in understanding what par (a) is contemplating so far as a plaintiff's knowledge and awareness are concerned is that par (b), when it speaks of the time when "the plaintiff became aware (or ought to have become aware)" of the three matters listed in par (a) seems to be drawing a clear distinction between actual knowledge of the plaintiff and knowledge of which the plaintiff (as a person) ought to have become aware."
35 Reference may also be made to the judgment of the High Court in Harris v Commercial Minerals Limited 186 CLR 1 in the passage cited by Einstein J.
36 In my opinion, in the same way that sub-section 60I(b) has been called in aid of the construction of s 60I(1)(a), the earlier sub-section can assist in the construction of the latter. It is clear that ss 60F, G and I are aimed, in general, at alleviating the harsh effect of the limitation period prescribed by the legislation, in its impact upon certain plaintiffs in certain situations. It is the actual position of the plaintiff having regard to his personal state of knowledge which is the subject of the first sub-section of s 60I(1). Although the second sub-section cannot, in my view, relate to imputed knowledge of the plaintiff, it clearly relates to his or her constructive knowledge. However, in my view, that constructive knowledge should also be regarded as knowledge peculiar to the plaintiff. I consider, with respect, that this is what Priestley JA was referring to in the passage cited above from Spadotto where his Honour referred to "knowledge of which the plaintiff (as a person) ought to have become aware." In this regard, I consider that the remarks of Lord Reid in Smith v Central Asbestos Co [1973] AC 518 at 530, cited by Dawson J in Do Carmo are particularly apt, his Lordship saying,:
"In order to avoid constructive knowledge the plaintiff must have taken all such action as it was reasonable for him to take to find out. I agree with the view expressed in the Court of Appeal that this test is subjective. We are not concerned with "the reasonable man". Less is expected of a stupid or uneducated man than of a man of intelligence and wide experience."
37 In the result, I am of the view that the words "or ought to have become aware" in sub-section 60I(1)(b) do not import the concept of imputed awareness on the part of the plaintiff. They import constructive knowledge, but only to the limited extent that I have discussed. The question for the learned trial judge, in the present case, was whether the plaintiff himself, not the hypothetical reasonable man, should have become aware of the existence and relevance of the documents. In the situation where he had no actual knowledge of these documents, the question was, should he have made enquiries which would have revealed their existence and importance. In the circumstances where, as his Honour has found, the solicitor did not impart this information to the plaintiff there would appear to have been no rational basis for further enquiry on his part. In my view, his Honour was, in these circumstances, correct in holding that the plaintiff had no relevant constructive knowledge of these matters, prior to his obtaining actual knowledge, when conferring with his barrister. Accordingly, in my opinion, his Honour was correct in holding that the plaintiff had brought himself within sub-section 60I(1)(b) as well as 60I(1)(a)(iii).
38 There remains the question whether, in these circumstances, his Honour, nevertheless, erred in exercising his discretion in favour of the plaintiff under s 60G(2) in holding that "it was just and reasonable" to extend the limitation period.
39 His Honour had regard to the question of prejudice to the present appellant, should the limitation period be extended. He dealt with the matter in a fairly succinct way. However, I agree with Einstein J that, in the circumstances, sufficient reasons were given. It is pertinent to bear in mind that his Honour's judgment was given ex tempore at the conclusion of hearing and argument, when the evidence, issues and submissions were fresh in the minds of all concerned. He spoke of "prejudice by lapse of time", pointing out that this was a common problem in applications of this kind. He spoke of the delay between the first application to the Court and the second, with which he was dealing. He said:
"I do not believe that results in prejudice. It seems to me that all these matters have been before the Court for some time. There have been obviously arguments going on between the parties for some time."
40 It seems clear that his Honour was referring to the two previous Workers' Compensation Applications, which the plaintiff had made in respect of his alleged employment-caused deafness and which would have provided the appellant with relevant information.
41 His Honour also made reference to the fact that the present appellant was "a large government organisation" and that "it appears that records going back many years would or should be available." He also referred to the fact that various witnesses would be available, a reference no doubt, to the fact that, after the first unsuccessful application, the plaintiff had obtained affidavits from a number of witnesses, who could attest to the working conditions over the years which had contributed to his increasing deafness.
42 I can detect no error of principle in his Honour's approach to the exercise of his discretion. I do not consider that any ground of appeal, in this regard, has been made out.
43 Consequently, I agree with the orders proposed.
44 EINSTEIN J: The claimant in these proceedings ("Telstra Corporation" or "Telstra") seeks leave to appeal from the decision of Garling DCJ who on application by the opponent ("Mr Rea"), granted leave to extend the limitation period and commence proceedings against Telstra pursuant to s 60G of the Limitation Act 1969 (NSW) ("the Act").