Telstra Corporation Limited v Albert John Rea

LOWER COURT JURISDICTION : District Court LOWER COURT DC6673/00 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER :

COUNSEL : JD Hislop QC, NE Chan (Appellant) KW Andrews (Respondent) SOLICITORS : Sparke Helmore (Appellant) Sowden Ackerman (Respondent) CATCHWORDS : Limitation of Action - Application for Extension - Appeal from granting of extension of time in which to commence action - Application for leave to extend limitation period in which to bring action pursuant to s 60G of Limitation Act 1969 (NSW) - Action for damages for injury relating to hearing loss suffered by respondent during employment with appellant - Whether respondent aware or ought to have become aware of connection between personal injury and appellant's acts or omissions - Whether requirements of s 601 of the Limitation Act 1969 (NSW) met - Whether actual or constructive knowledge of injury relevant - Imputation of knowledge - Whether extension of limitation period just and reasonable - Whether exercise of discretion miscarried Limitation Act 1969 (NSW) LEGISLATION CITED : Limitation (Amendment) Act 1990 (NSW). Suitors' Fund Act 1951 Barlow v Homebush Bay Development Corporation (unreported, 6 November 1995, NSWCA, CA 40695/93, BC 9501753) BHP Steel (AIS) Pty Limited v Lakovski (unreported, 24 November 2000, NSWCA, CA 40065/99, BC 200007381) Commonwealth v McLean (1996) 41 NSWLR 389 Council of the Shire of Sutherland v McNeilly (unreported, 12 December 1994, NSWCA, BC 9405011) CRA Limited v Martignago (1996) 39 NSWLR 13 CSR Limited & NSW Sugar Milling Co-Op Ltd v Rendell (unreported, 7 August 1996, NSWCA, CA40090/96, BC 9603437) Dedousis v The Water Board (1994) 181 CLR 171 Dedousis v The Water Board (1993) AustTortsR 81-233 Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 CASES CITED: Do Carmo v Ford Excavations Pty Limited (1983-1984) 154 CLR 234. Drayton Coal Pty Ltd v Drain, Court of Appeal, (unreported, 22 August 1995, NSWCA, BC9505244) Ford Excavations v Do Carmo [1981] 2 NSWLR 253 Harris v Commercial Minerals Limited (1996) 186 CLR 1 Holt v Wynter (2000) 49 NSWLR 128 Kinzett v McCourt & Ors (1999) 46 NSWLR 32 (unreported, 9 February 1999, CA NSW, CA 40773/96) Milne v International Combustion Australia Ltd [1953] WCR 80 Nominal Defendant v Manning (2000) 50 NSWLR 139 Sharp v State Rail Authority of New South Wales (unreported, 8 November 1995, NSWCA, CA 40393/9, BC 9501613) Smith v. Central Asbestos Co. [1973] AC 518 Spadotto & Company Pty Limited (in liq) v Raber (unreported, 27 October 1995, NSWCA, CA 40425/95, BC 9501698) DECISION : 1.Grant leave to appeal; 2. Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40244/01 MASON P FOSTER AJA EINSTEIN J

5 MARCH 2002 TELSTRA CORPORATION LIMITED v Albert John REA

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").

The facts 45 Mr Rea's proposed Statement of Claim alleges that Telstra was negligent for exposing Mr Rea to injurious noise during the course of his employment resulting in severe hearing loss. He asserts that at the commencement of his employment with Telstra, he was not hearing-tested or provided with any hearing protection or warnings in relation to the risk of hearing loss. Mr Rea limits his damages claim to injuries and disabilities before 1 December 1988.

1955-1993 46 Mr Rea was employed by Telstra between 1955 and 1993. He gave evidence that after the first two years of employment, he was required to work in the proximity of jackhammers and during the following 12 years, he worked as a cable joiner near noisy equipment such as jackhammers, trucks and general factory noise. He alleged that he continued to carry out cable work until 1985, and from that period until 1993 supervised work that involved attendance in noisy environments. 47 Between about 1988 and 1990, Telstra provided Mr Rea with some hearing protection in the form of ear muffs.

1965 48 Mr Rea had an operation to his left ear as a result of discharge and balance problems; Mr Rea contends that these problems ceased following the operation.

1975 49 Mr Rea asserts that he became aware of hearing difficulties which became progressively worse.

6 May 1985 50 Mr Rea consulted an ear, nose and throat specialist (ENT) in connection with a workers compensation claim against Telstra for industrial deafness.

17 June 1986 51 Mr Rea consulted an audiologist who advised him that he had a noise-induced hearing loss of 39.4%. 52 Mr Rea conceded that by 1986, he was aware that he had sustained a hearing loss from being exposed to noise during his employment with Telstra; that there were means to measure hearing loss; and that Telstra had done nothing to protect him from noise in the workplace.

1988 53 Mr Rea also gave evidence that by 1988, he might have been aware that Telstra did not provide hearing protection.

1989 54 Mr Rea saw the ENT again in connection with a second workers compensation claim against Telstra based on industrial deafness.

Prior to 26 August 1997 55 Sometime prior to Mr Rea's meeting with his barrister, he met with his solicitor alone.

26 August 1997 56 Mr Rea consulted a solicitor and barrister about his hearing difficulties. He alleges that it was only then that he became aware of information relating to: (a) the availability of hearing protection authorised by the Commonwealth Acoustic Laboratory which had been available in 1962; and (b) hearing in the workplace from the Australian Standards Association that had been released in 1976.

This information included the need for regular hearing testing, education to protect hearing in the workplace and the supply of hearing protection devices.

3 March 1998 57 Mr Rea filed his first application for extension of time under the Act. This application was dismissed by judgment of Quickenden ADCJ dated 18 December 1998.

25 August 2000 58 Mr Rea filed his second application for extension of time under the Act. This application was allowed by judgment of Garling DCJ dated 4 April 2001. The present application is an application by Telstra for leave to appeal from this decision.

The decision of the trial judge 59 Mr Rea applied to the Court for leave to extend the limitation period during which action could be brought against Telstra pursuant to s 60G(2) of the Act which reads:

"If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines." 60 Telstra argued that before leave could be granted under this section, Mr Rea was required to pass the relevant test in s 60I(1)(a)(iii) which reads: "A court may not make an order under section 60G…unless it is satisfied that: (a) the plaintiff… (iii) was unaware of the connection between the personal injury and the defendant's act or omission…at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in paragraph (a)(i)-(iii). 61 Mr Rea had previously brought an unsuccessful application for an extension of time before Quickenden ADCJ. This second application before Garling DCJ involved further evidence from Mr Rea in the form of affidavits of people who had worked with Mr Rea at the relevant time and could attest to the working conditions. 62 Telstra contended that the requirements of s 60I(1)(a) had not been satisfied because at the time of the expiration of the limitation period Mr Rea had been aware: (a) that he had hearing loss;

(c) that his employer could have done something about it. 63 Mr Rea argued that whilst he had some knowledge of these matters, it was not until he saw a barrister on 26 August 1997 that he attained the required knowledge. 64 In response to this, and as a secondary argument, Telstra contended that Mr Rea would have acquired this knowledge at an earlier date when he met with his solicitor who would have given him, or so the Court can infer, the relevant knowledge. Telstra contended that the 3-year limitation period began as at that date and expired before the motion was filed; thus bringing Mr Rea outside of the requirements of s 60I(1)(b). 65 Garling DCJ accepted Mr Rea's evidence that he only became aware of the relevant information on 26 August 1997 and refused to draw the inference that Mr Rea became aware of these matters upon meeting his solicitor. 66 Garling DCJ also considered the issue of possible prejudice to Telstra as a result of the lapse of time since Mr Rea was alleged to have suffered the hearing loss and as a result of Mr Rea's operation. Garling DCJ held that there was no more prejudice than one would usually find in such cases. 67 Taking all of these matters into account, Garling DCJ held that it was just and reasonable to extend the limitation period pursuant to s 60G(2) and thus extended it for a period of 28 days.

Grounds of Appeal 68 Telstra contends that Garling DCJ erred in his decision and that the application brought by Mr Rea pursuant to s 60G(2) should have been dismissed. The grounds of appeal are that His Honour erred:

1. in failing to conclude that Mr Rea had not brought himself within the requirements of s 60I(1)(a)(iii) and s 60I(1)(b) of the Act;
2. in failing to have regard to the requirements of s 60I(1)(b) of the Act;
3. in failing to take into account, either adequately or at all, all relevant considerations;
4. in that the exercise of the discretion under s 60G of the Act miscarried; and
5. in failing to give adequate reasons for his decision. Grounds 1 and 2 - the requirements of s 60I(1) 69 Telstra claims that the cross-examination of Mr Rea established that he had become aware more than 3 years prior to the application: (a) that "steps could and should have been taken for the muffling of compressors and jackhammers, the rotation of work, the supply of earmuffs, the provision of warnings of noise danger and the implementation of frequent hearing testing"; and (b) that his hearing loss was due to Telstra's lack of care (it is said that he knew this by 1989). 70 Telstra contends that Mr Rea's knowledge of these matters takes the situation outside of the requirements of s 60I(1)(b). 71 Telstra argues that the principles set out in Drayton Coal Pty Ltd v Drain (unreported, 22 August 1995, NSWCA, BC9505244) mandate the conclusion that Mr Rea had failed to establish that the application had been made within 3 years after he had become aware of the connection between his injury and the alleged acts or omissions. 72 Telstra also points out that Mr Rea was held to have first consulted his solicitor in respect of the claim more than 3 years before the application was made. It is alleged that cross-examination of Mr Rea established that it was at this point that he first became aware that he had a claim for damages. 73 Relying on Ford Excavations Pty Ltd v Do Carmo (1981) 2 NSWLR 253, Telstra submits that the trial judge should have imputed the solicitor's knowledge to Mr Rea and/or deemed Mr Rea to have such knowledge as a reasonable and honest man would have had in the circumstances after making due inquiry. 74 On these bases, Telstra argues that Mr Rea failed to establish that the application was made within 3 years after he ought to have become aware of the connection between his injury and Telstra's act or omission under s 60I(1)(b) and the application should have been dismissed. 75 In response, Mr Rea contends that he only became aware of the existence of the information from the Australian Standards Association and the Commonwealth Acoustics Laboratory CAL19 report at the meeting of 26 August 1997. He submits that this information was received within 3 years of this application being filed on 25 August 2000 and that Garling DCJ was entitled to find that the requirements of s 60I(1)(a)(iii) had been satisfied. 76 To this extent, Mr Rea relies on decisions such as Barlow v Homebush Bay Development Corporation (unreported, 6 November 1995, NSWCA, CA 40695/93), Drayton and BHP Steel (AIS) Pty Limited v Lakovski (unreported, 24 November 2000, NSWCA, BC 200007381) which he submits all dealt with the issue of awareness of the connection between injuries and "acts or omissions" as set out in s 60I(1)(a)(iii). 77 Furthermore, Mr Rea contends that the courts in Barlow and BHP considered the existence of the Australian Standard 1269-1976 and the Commonwealth Acoustics Laboratory CAL19 Report as relevant to the s 60I(a)(iii) determination. 78 Mr Rea further points out that Garling DCJ specifically referred to the test set out in Drayton and that his decision is consistent with the principles expressed in Dedousis v The Water Board [1994] 181 CLR 171. 79 Mr Rea concedes that he first consulted his solicitor in respect of this claim more than 3 years before the application to extend time was filed. However, he submits that there was no evidence to establish that he was aware of the relevant matters prior to 26 August 1997. Mr Rea gave evidence that this was the first time that he became aware of these matters. 80 Mr Rea submits that s 60I(1)(b) does not impute his solicitor's knowledge to himself, even if it was established that the solicitor had that knowledge. Mr Rea relies on Spadotto & Company Pty Limited (in liq) v Raber (unreported, 27 October 1995, NSWCA, CA 40425/95) and Do Carmo v Ford Excavations Pty Ltd [1983 - 1984] 154 CLR 234 in support of this submission.

Ground 3 - all relevant considerations under s 60G 81 Telstra submits that Garling J failed to give regard, or adequate regard to: (a) Mr Rea's extensive level of knowledge; (b) the availability of all relevant information from Mr Rea's solicitor; (c) the unexplained delay between the first and second application for leave to extend time; (d) that the additional evidence adduced on the second application could have been obtained for the earlier application; and (e) the prejudice arising from the absence of the records of Dr Bear. 82 The submission is that if Garling DCJ had in fact had regard to all relevant considerations, the only open conclusion was that it was not "just and reasonable" under s 60G to extend the limitation period. 83 In response to this ground of appeal, Mr Rea repeats the submissions in relation to Grounds 1 and 2, specifically in relation to Barlow and BHP. 84 In relation to the issue of the absence of the records of Dr Bear, Mr Rea contends that Garling DCJ considered the matters placed before him and found no significant prejudice to Mr Rea which would render an unfair trial. Mr Rea relies upon Holt v Wynter (2000) 49 NSWLR 128 in this regard. 85 Mr Rea argues that in considering the question of prejudice, Garling DCJ accepted that there could be prejudice of a general nature due to the lapse of time but held that the prejudice was not significant and thus correctly applied the test in Holt.

Ground 4 - the meaning of "just and reasonable" 86 Telstra argues that Garling DCJ misdirected himself in considering the question of "just and reasonable" under s 60G when he stated: "I do not really think that there is any more prejudice than one would find in these sort of cases. There has always got to be prejudice. Prejudice by lapse of time." 87 Telstra contends that if Garling DCJ had correctly directed himself to the proper application of s 60G, the only conclusion open to him was that it was not "just and reasonable" to extend the limitation period.

Ground 5 - adequate reasons 88 The final ground of appeal relied upon by Telstra is that Garling DCJ erred by failing to give adequate reasons for his decision. 89 Mr Rea relies on Council of the Shire of Sutherland v McNeilly (unreported, 12 December 1994, NSWCA, BC 9405011) in submitting that a failure to provide detailed reasons is not a basis for granting leave to appeal.

The operation of the Act 90 It is appropriate to provide a brief synopsis of the operation of the relevant provisions of the Act for the purposes of these proceedings. 91 The limitation period for a cause of action founded on tort is 6 years running from the date on which the cause of action first accrues: s14 [cf Milne v International Combustion Australia Ltd [1953] WCR 80 as to periodic acquisition of fresh causes of action as and when putative plaintiff suffers appreciable noise-induced hearing loss. Milne was cited in CSR Limited & NSW Sugar Milling Co-Op Ltd v Rendell (unreported, 7 August 1996, NSWCA, CA40090/96 per Handley JA at page 5)]. However, Division 3, Sub-division 2 of the Act provides: "…a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time" : s 60F. 92 Where such an application is made in relation to a cause of action accruing after 1 September 1990 that is founded on negligence, nuisance or breach of duty, the court may order that the limitation period be extended for such period as it determines if it decides that it is "just and reasonable" to do so: s 60G(2). 93 There is a further 3-year limitation period imposed after the point at which the plaintiff becomes aware of certain matters in relation to his injury. More specifically, the court may not make an order extending the period unless it is satisfied that: (a) the plaintiff did not know that personal injury had been suffered; or was unaware of its nature or extent; or was unaware of the connection between the injury and the defendant's act or omission at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted, and

(b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in (a).

The principles 94 Dedousis, Drayton and Barlow all involved substantially similar facts scenarios to the circumstances of this case. The courts in these decisions provided detailed analyses of ss 60F, 60G and 60I and it is therefore appropriate at this point to turn to these authorities.

Unawareness of the plaintiff 95 This Court in Dedousis v The Water Board (1993) AustTortsR 81-233 originally held that the power of the court to grant an extension pursuant to s 60G(2) was confined to cases of "latent" injury as defined in s 60F. The plaintiff was accordingly required to show that he or she was "unaware of the fact, nature, extent or cause of the injury…at the relevant time". 96 On appeal, the High Court overruled this holding in Dedousis v The Water Board (1994) 181 CLR 171 at 177. The Court held that s 60F is no more than an introductory provision that is merely indicative of the purpose of the sub-division and provides a summary of the requirements of s 60I(1)(a). The first relevant consideration for a court considering whether to make an order under s 60G is therefore whether the plaintiff was unaware of one of the specific situations listed in s 60I(1)(a), not whether he or she was unaware of the cause of the injury in general (see also Barlow). 97 Whilst the plaintiff must prove his or her unawareness of a matter in s 60I(1)(a), the relevant matter itself need not be proved for the purposes of the application; it being sufficient that the claim raises a serious question to be tried: Commonwealth v McLean (1996) 41 NSWLR 389 at 394. The Court in McLean went on to state at 395: "Section 60G and s 60I are clearly intended to operate together. The requirement in s 60I that the court be satisfied of various matters must be read as requiring no higher proof from an applicant on matters which form part of the cause of action than is required by s 60G(2)."

Awareness of Codes and Reports 98 There have been a number of cases in which the plaintiff has been shown to have had knowledge of various aspects of his or her injury and its connection with the acts or omissions of the defendant; but has nonetheless been found to have satisfied the requirements of s 60I by reason of only becoming aware various codes or reports relating to industrial deafness upon meeting with legal representatives. For example: · In Barlow, the Court of Appeal accepted that the plaintiff was: "at the relevant time aware that his hearing problems were related to his work and that his employer had taken no effective steps to prevent such damage". The Court accepted however that the plaintiff had become aware of the Australian Standard's Code at a later date and that the allegations of negligence were not confined to the particular matters referred to in his evidence but were also based on the provisions of the Code. · The trial judge in BHP Steel held that s 60I had been satisfied despite the fact that the plaintiff had been aware of the following matters more than 3 years before the application was filed: "(i) that noise caused hearing loss;

(ii) that there was a connection between his hearing loss and noise at his place of work;

(iii) that there were methods available to BHP to test his hearing; (iv) that he had been told of the results of tests carried out to determine his hearing loss;

(v) that there were by that year available ear muffs or plugs to protect him from noise;

(vi) that there was a need for him to wear the ear plugs when he was in a noisy environment and he did so thereafter although not all the time; (vii) that he knew how to use the ear plugs that were made available by BHP;

(viii) that there were warning signs in the place where he worked drawing attention to the danger of noise." The trial judge made this finding on the basis that the plaintiff had later become aware of the Australian Standard and the protection that his employer should have provided. This finding was not disturbed on appeal.

Constructive and actual knowledge 99 Hutley JA in Ford Excavations v Do Carmo (1981) 2 NSWLR 253 at 267 in relation to the then Limitation Act stated: "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." 100 This issue was reconsidered on appeal to the High Court in Do Carmo v Ford Excavations Pty Ltd [1983-1984] 154 CLR 234, where Wilson J referred to this opinion and stated at 249: "With all respect, I would wish to reserve my opinion on that question because it seems to me there may be a strong argument that the plain words of the paragraph exclude the operation of any general principle that might otherwise apply." 101 Dawson J (with whom Brennan J agreed) stated at 259: "It is the means of knowledge which were available to the appellant which are relevant and not the means of knowledge of a hypothetical reasonable man. And s. 57(1)(e) provides that a fact is outside his means of knowledge if he does not know it and he has taken reasonable steps to ascertain it. The remarks of Lord Reid in Smith v. Central Asbestos Co. [1973] AC, at p 530, made in reference to a similarly worded provision, are to the point: '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.' It is also to be noted that it does not matter what advice the appellant received. In fact he sought advice and it would appear, did not receive the advice which he ought to have been given. However, section 58(2), unlike s57(1)(c) 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." 102 The position was made quite clear in relation to the current Act as a result of Spadotto. In that case, Priestley JA held that s 60I(1)(a) referred to matters which the plaintiff himself or herself does not actually know or is not actually aware of and that there is no suggestion that the sub-section was intended to convey the meaning of "the plaintiff whether by himself or his agent". 103 His Honour further pointed out potential difficulties that could be encountered as a result of an alternative construction. He noted: "Further again, the last mentioned reading of the words could cause difficulties of construction. This is illustrated by considering what would happen in the case of a plaintiff advised by a firm of solicitors containing more than one solicitor. It would be arguable that a plaintiff in getting advice from one of two partners in, say, a firm of two solicitors was in law retaining the firm, and it would be further arguable that the knowledge of both partners should be attributed to him. The greater the number of partners in the firm, the more obvious the difficulty would become. If the statute made it plain that the knowledge in question was both that of the plaintiff and the plaintiff's agents, then no doubt courts would devise common sense methods of dealing with the kind of situation that I am suggesting would at least be made arguable by such provision. However, it seems unlikely to me that those who drafted para (a) had in mind even the possibility of such argument." 104 In construing s 60I(1)(a), Priestley JA also turned his attention to the contrasting language used in s 60I(1)(b). He noted that s 60I(1)(b) draws a clear distinction between the actual knowledge of the plaintiff and knowledge of which the plaintiff (as a person) ought to have become aware. 105 The distinction between the types of knowledge intended by the two sub-paragraphs within s 60I was further clarified by Clarke JA in CRA Ltd v Martignago (1996) 39 NSWLR 13 at 18-19: "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." 106 Clarke JA (at 19) accepted however that the fact that the plaintiff had the means of knowledge at his disposal will be a highly relevant matter for consideration in the exercise of the discretion. 107 The High Court in Harris v Commercial Minerals Ltd (1996) 186 CLR 1 at 9 -10 per Dawson, Toohey, Gaudron, McHugh and Gummow JJ further stated: "To look to anything other than the applicant's actual awareness of the matters referred to in sub-pars (ii) and (iii) would be to read into s 60I(1)(a) a doctrine of constructive notice that is not justified by the language of the provision. What this Court said in Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 at 151 about the meaning of the words "first becomes aware of" in a Queensland statute is equally applicable to the term "unaware" in s 60I(1)(a): '[T]he very words 'becomes aware' strongly indicate that the statute is looking to the purchaser's actual knowledge of the failure which, by description, is a failure to comply with the statutory provisions. We conclude that the words 'becomes aware of the failure' in s 49(5) involve not only knowledge that a statement containing the specified material has not been given but an awareness that the fact that such a statement was not given constitutes a 'failure' to do something which the Act says should be done.'

Support for a subjective construction of s 60I(1)(a)(ii) and (iii) can be found in the words of s 60I(1) themselves. The words "or ought to have become aware" appear in sub-s (1)(b) but not in sub-s (1)(a). This is a strong indication that neither reasonableness nor constructive knowledge is an element of sub-s (1)(a)."

The defendant's "act or omission": s 60I(1)(a)(iii) 108 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions of the defendant rather than legal conclusions: Dedousis at 181. In considering the principles dealt with in Dedousis, Gleeson CJ in Drayton stated: "…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)." 109 Gleeson CJ also noted: "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 s 60I(1)(a)(iii) are satisfied." 110 His Honour also held: "The acts or omissions referred to in s 60I(1)(a)(iii) 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)." 111 On the other hand, the High Court in Dedousis qualified this approach in stating that s 60I(a)(iii) would in fact be satisfied where: "…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…On that hypothesis, the relevant act or omission is the employer's failure to provide the safer alternative system or to take suitable precautions." (181-182) 112 On the same point, Gleeson CJ in Drayton stated that the requirements of s 60I(1)(a)(iii) will be satisfied where the plaintiff was unaware of a material act or omission which constitutes a substantial ground upon which reliance will be placed.

Section 60I(1)(a)-' actual knowledge' 113 Whilst it is true that Mr Rea had some knowledge of the connection between his injuries and the acts and omissions of his employers prior to the meeting with his barrister on 26 August 1997 and more than three years prior to the application, Garling DCJ is not shown to have erred in holding that Mr Rea was unaware within the meaning of section 60I(1)(a) (iii) of "the connection between the personal injury and the Defendant's act or omission at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted". It is clearly established on the authorities that the search is here for actual knowledge or awareness. Notwithstanding the claimant's submissions which focused upon the trial judges references at page 5 of his judgment to "equally competing inferences of equal validity", the trial judge appears to have then proceeded to accept the plaintiff's evidence that he was told of certain matters on and not before 26 August 1997 and it seems to me that the trial judge was entitled to act upon this basis.

Section 60I(1)(b) - 'ought to have become aware' Legislative policy 114 The provisions allowing for the discretionary extension of the limitation period for latent personal injury were introduced into the Act (amongst other provisions) as a result of the Limitation (Amendment) Act 1990 (NSW). The Explanatory Note to the Bill expressed one of its objects in the following terms: "to ensure that worthwhile cases are not excluded because of the shortened primary limitation period by…allowing a further discretionary, but unlimited, extension if delay has been caused because the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment concerned." 115 In line with this, the NSW Court of Appeal in Kinzett v McCourt & Ors (1999) 46 NSWLR 32 (unreported, 9 February 1999, NSWCA, CA 40773/96) stated:

"The focus of s 60I(1)(a) is on a lack of knowledge on the part of the Plaintiff. It encompasses lack of knowledge of the fact that the Plaintiff had suffered an injury at all, sub-para (i); the nature and extent of the injury that had been suffered, sub-para (ii) and the connection between the injury and an act or omission, sub-para (iii). The plain policy of this section is, in the case of explicable delay, to ameliorate the harshness of the operation of limitation periods for which the Act otherwise provides. Lack of knowledge of the identity of the relevant Defendants falls within this policy purpose." 116 The rationale behind limitation periods and the latent injury extensions was further discussed in the Second Reading Speech of the Limitation (Amendment) Bill 1990 (NSW Legislative Council, Hansard, 4 June 1990, p 4994): "By limiting the time within which a plaintiff may make a claim, the defendant's potential liability is made finite and can be predicted with certainty. This is an important element in obtaining insurance against damages for liability. It is desirable, if not essential, that insurers be made aware reasonably quickly of potential claims, and that they be in a position to determine the possible size of claims. This is necessary to allow insurers to determine their future liabilities with some degree of accuracy, and on occasion, satisfy their need to inform reinsurers. Current arrangements make those financial assessments extremely difficult. The public interest demands that the proceedings be commenced with as little delay as possible, for delay can only prejudice the fair trial of the issues involved. The litigation of claims at a time when witnesses or records may no longer be available or reliable has to be discouraged. This is especially significant in personal injury actions which rely so much for their resolution on the proof of factual matters. There comes a time when a potential defendant can be secure in his reasonable expectation that he ought not to be called upon to resist a claim when evidence has been lost, memories have faded and witnesses are unavailable. Limitation legislation thus aims at the prevention of avoidable delay. However, its operation may lead to particular instances of hardship where the plaintiff could not be said to have acted improperly or unreasonably in failing to commence action within the limitation period. This is particularly true in relation to latent injury or disease." 117 Even more relevantly for present purposes, the Second Reading speech at pp 4994 - 4995 stated: "While the leave to proceed provisions are open ended it is still preferable that proceedings be commenced as quickly as possible. Therefore leave of the court to bring proceedings outside of the limitation period can only be obtained if it is sought within three years of the date the plaintiff became aware, or ought to have become aware, of the injury or disease suffered, the extent of such injury or disease, or the cause of the injury or disease…" 118 It is apparent that the intention of the legislature was to distinguish between the requirement of actual knowledge in s 60I(1)(a) and the expansion beyond actual knowledge into constructive knowledge in s 60I(1)(b). Analysis of these extracts and the stated purpose of the legislative regime makes the policy reasoning behind the different wording used in these sub-sections quite clear. 119 Under the legislation, an extension beyond the initial limitation period may be granted in circumstances where there is a lack of actual knowledge about certain aspects of the injury at the expiration of the period (s 60I(1)(a)). Logically, the secondary 3-year limitation period imposed after the expiration of the initial period should involve a stricter requirement of knowledge (that includes but extends beyond actual knowledge) than that required in respect of the initial period. In my view, the proper construction of the words "became aware (or ought to have become aware)" in s 60I(1)(b) is to include actual and/or constructive knowledge. This construction is appropriate by reason of the legislative intention to balance the need to extend the limitation period in certain circumstances of latent injury on one hand, with the concurrent need to give certainty to the liability of defendants and prevent delay on the other. 120 Additionally, having had the benefit of reading the draft judgment of Foster AJA I am in full agreement with His Honour's reasoning in relation to the proper construction of section 60I(1)(b). In short: · The passages extracted from the judgments of Hutley JA and Dawson J in Ford Excavations v Do Carmo both at first instance and before the High Court in relation to section 58 (2) of the Act empowering the Court to extend an applicable limitation period, indicated in relation to that section that 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. · The same result is arrived at by parity of reasoning in relation to section 60I(1)(a)(iii) and section 60I(1)(b). The relevant authorities that hold that section 60I(a) is concerned with the plaintiff's actual and personal knowledge (or lack of it) of the matters referred to in the section and clearly demonstrate that section 60I(a) is not concerned with the plaintiff's imputed knowledge nor his or her constructive knowledge of those matters. As earlier indicated, in arriving at this construction, the courts have found assistance in the fact that a clear distinction is drawn between the wording of section 60I(1)(a) and section 60I(1)(b) where the constructive knowledge of the plaintiff is plainly referred to. · In the same way as subsection 60I(b) has been called in aid of the construction of section 60I(1)(a), the earlier sub-section can assist in the construction of the latter. Sections 60F, G and I are in general concerned with alleviating the harsh effect of the limitation period prescribed by the legislation, in its impact upon certain plaintiffs in certain situations. Critically, it is the actual position of the plaintiff having regard to his or her personal state of knowledge, which is the subject of the first subsection of section 60I(1). Although the second subsection cannot relate to the imputed knowledge of the plaintiff, it clearly relates to his or her constructive knowledge. But that constructive knowledge should also be regarded as knowledge peculiar to the plaintiff. This is what Priestley JA was referring to in the passage in Spadotto where his Honour referred to "knowledge of which the plaintiff (as a person) ought to have become aware". See also Smith v Central Asbestos Co [1973] AC 518 at 530 where Lord Reid put the matter as follows: "In order to avoid constructive knowledge the plaintiff must have taken all such action as 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" · The relevant question for the trial judge in relation to section 60I(1)(b) was therefore whether the plaintiff himself (not the hypothetical reasonable person), having no actual knowledge of the documents should have become aware of the existence and relevance of the documents by making the relevant inquiries. · In circumstances where the solicitor was found not to have imparted this information to the plaintiff, there was no rational basis for further inquiry on his part.

· The trial judge was therefore correct in holding that the plaintiff had no relevant constructive (or actual) knowledge of the matters before consulting with his barrister and that the plaintiff had therefore brought himself with in s 60I(1)(b) (as well as s 60I(1)(a)(iii)).

"Just and reasonable" 121 No error of principle has in my view been shown in his Honour's exercise of discretion in the holding under s 60G(2) that it was just and reasonable to extend the limitation period. Sufficient reasons were given in an ex tempore judgment. The references to "prejudices by lapse of time" indicate an awareness of this common problem in like applications. 122 Reference was made to the present appellant being "a large government organisation" and that "it appears that records going back many years would or should be available". Various witnesses who would be available were referred to. The plaintiff had it seems, obtained affidavits from a number of witnesses who could attest to the working conditions over the years which had contributed to his increasing deafness. 123 In the result the application for leave to appeal should be granted and the appeal dismissed. The trial judge's exercise of discretion is not shown to have miscarried.

I certify that this and the preceding 36 pages are a true copy of the reasons for judgment of the Hon Justice C Einstein and the Court

5 March 2002 Associate

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