Bawden v ACI Operations Pty Ltd

[2003] QCA 293

SUPREME COURT OF QUEENSLAND

CITATION:

Bawden v ACI Operations P/L [2003] QCA 293

PARTIES:

VICTOR EDWARD BAWDEN
(appellant/respondent)
v
ACI OPERATIONS PTY LTD ACN 004 230 326
(respondent/appellant)

FILE NO/S:

Appeal No 3970 of 2002
DC No 5322 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 July 2003

DELIVERED AT:

Brisbane

HEARING DATE:

10 April 2003

JUDGES:

McPherson JA and Fryberg and Muir JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

LIMITATION OF ACTIONS – Postponement of the bar – Extension of period – Cause of action in respect of personal injuries – Knowledge of material facts – Material facts of decisive character – Whether the respondent had knowledge of a material fact at the relevant time

Limitation of Actions Act 1974, s 31(2)(a)

COUNSEL:

M Grant-Taylor SC for the appellant
K F Boulton for the respondent

SOLICITORS:

Dibbs Barker Gosling for the appellant
Roberts & Kane for the respondent

1. McPHERSON JA:  I have read the reasons of Fryberg J for dismissing this appeal and, subject to a qualification to be mentioned, I agree with what his Honour has written.

1. In  my opinion, the critical occasion for determining in this case whether a material fact of a decisive character had first come within Mr Bawden’s knowledge or means of knowledge was in 1990 when his hearing was assessed by Nurse Scanlan. According to her evidence she considered that his hearing loss had decreased since 1986, when he had seen Mrs Coombe. She also said she would have told him this. On that occasion, he was not referred to Dr Doughty.

1. It was not until he was examined by Nurse Hall in 1995, and the test results were for the first time referred to Dr Doughty, that it became apparent to Mr Bawden that he had sustained a hearing loss that was worth suing for. It was after this that action was instituted. His hearing had in fact deteriorated before 1986, but at that time he had no reason to think it was attributable to his workplace environment.

1. The adequacy of the magistrate’s reasons in making his finding as to credibility was not the subject of submission by either counsel on appeal and I therefore refrain from considering it. Whether, in a case like this or generally, a judicial officer is required to give reasons for his findings on issues of credibility is a large question on which we have not had the benefit of hearing argument or the citation of authorities. It follows that nothing that may be said on the subject in this appeal is capable of binding this Court on any future occasion.

1. FRYBERG J: In 1978 the respondent went to work for the appellant at its South Brisbane factory. For the next twenty years until his retirement at the age of 60, he worked continuously for the appellant…