Cox v Australian Cancer Technology Limited (Formerly Minerals Mining and Metallurgy Limited)

[2005] NSWCA 48

CITATION:	Cox v Australian Cancer Technology Limited (Formerly Minerals Mining & Metallurgy Limited) [2005] NSWCA 48
HEARING DATE(S):	07/03/05
JUDGMENT DATE:	7 March 2005
JUDGMENT OF:	Ipp JA at 1; McColl JA at 33
DECISION:	(1) Application for leave to appeal granted (2) Appeal upheld with costs (3) Orders made by the primary judge are set aside (4) The claimant's application the subject of this appeal is remitted to the District Court for a rehearing (5) The opponent is granted a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

CATCHWORDS:	LIMITATION OF ACTIONS - Extension of time - Fair trial. ND
LEGISLATION CITED:	Limitation Act 1969 (NSW), ss 58(2), 60G
PARTIES:	Jeffrey Charles Cox (Claimant) Australian Cancer Technology Limited (Formerly Minerals Mining & Metallurgy Limited) (Opponent)
FILE NUMBER(S):	CA 41231/03
COUNSEL:	K Andrews (Claimant) A Parker (Opponent)
SOLICITORS:	Sowden & Akerman (Claimant) Lander & Rogers (Opponent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 9137/02
LOWER COURT JUDICIAL OFFICER:	Goldring DCJ

CA 41231/03
DC 9137/02

IPP JA
McCOLL JA

Monday, 7 March 2005

JEFFREY CHARLES COX v AUSTRALIAN CANCER TECHNOLOGY LIMITED (FORMERLY MINERALS MINING & METALLURGY LIMITED)

Judgment

1 IPP JA: This is an application for leave to appeal and, if granted, an appeal against a decision of Goldring DCJ. By that decision, his Honour dismissed the claimant’s application for an order in terms of s 58(2), alternatively s 60G, of the Limitation Act 1969 extending the period in which the claimant could bring proceedings against the opponent, and for related relief.

2 The claimant wished to sue the opponent for damages for injuries the claimant alleged he had suffered through the opponent’s negligence while in the opponent’s employ.

3 The opponent employed the claimant from 1980 to 1990. While so employed, the claimant was exposed to noise caused by machinery with which he was working. His hearing became impaired in 1986 and, in that year, he made a worker’s compensation claim.

4 On 25 February 1987 Dr Rice of the Bureau of Medical Inspection examined the claimant. Dr Rice found the claimant to have industrial deafness, which Dr Rice assessed at six percent for his left ear and three percent for his right ear.

5 On 1 April 1987 Dr Rice operated on the claimant’s ears.

6 On 6 April 1987 solicitors acting for the opponent wrote to the claimant stating, “[w]e are instructed to accept the findings of the medical panel which was held on 3 February, 1987”. Compensation was thereupon paid to the claimant.

7 No later than November 1989 the claimant claimed further compensation from the opponent. On 14 November 1989 the opponent completed an “employer’s report of injury” and, in answer to the question, “[h]ow did the injury occur, and what was the worker doing at the time?”, the person who completed the report on the opponent’s behalf inserted “industrial deafness claim”.

8 On 16 November 1989 the claimant was examined by a Dr Cullen “in accordance with the order for Medical Referee under s 51(4) of the Act”. An audiogram was carried out that showed “bilateral hearing impairment”. Dr Cullen observed that his disability was “consistent with his claim that the condition was brought about in the course of his employment”. Dr Cullen recommended that the claimant be referred to a specialist. The claimant was again referred to Dr Rice.

9 On 21 February 1990 Dr Rice furnished the claimant with a report in which Dr Rice stated that he had found that the claimant’s hearing had deteriorated. Dr Rice this time determined that his disability in his left ear was eleven percent and in his right ear three percent. Dr Rice made certain recommendations for the possible treatment of the claimant’s problems.

10 In the proceedings before the primary Judge, the claimant led evidence capable of establishing that his injuries were caused by the negligence of the opponent. He also sought to explain that the reason for his delay in bringing proceedings was, in effect, his ignorance of his rights. In cross-examination, the claimant said that since 1990 he had worked for other employers as a plant operator in noisy conditions. He had had no further tests on his ears since 1990. The opponent did not lead any evidence whatever.

11 After counsel for the claimant commenced his closing address, some discussion took place between the Judge and both counsel on a topic not presently relevant. The Judge then said:

“I will tell you frankly why I have concerns about Mr Andrews’ case [that is, the claimant’s case], Mr Parker [counsel for the opponent], and that really is the evidence that Mr Cox gave about his subsequent employment with other people in noisy occupations, and in view of the time that he ceased being employed by your client 14 years ago. I don’t know whether you want to say anything more than that, or whether Mr Andrews wants to address that issue.”

Mr Andrews replied that he was “happy to address that issue immediately” and Mr Parker said:

“And also the question of no medical examination during that period of time.”

Mr Parker also referred to the fact that the claimant had had surgery on his ear “but for what purpose and what relationship we don’t know”. The transcript records merely that counsel then addressed and his Honour gave judgment.

12 In his judgment, the primary judge accepted that there was evidence that the claimant had suffered damage to his hearing, that he had had two successful compensation claims, and that the claimant had supplied the names and addresses of witnesses. He said in regard to these witnesses:

“[A]ll they can do is to provide evidence of the environment, and, possibly, of a breach of duty, which it would be very difficult for the [opponent], in these circumstances, in my view, to deny.”

13 His Honour then said:

“What can be proved, in my view, but only after a trial, is the fact that the breach of duty caused the injury to the [claimant]. Prima facie, there would be a case for establishing that, but that could not be determined after a fair trial, because the [opponent] could not be put in a position where it would have access to medical and other evidence, showing the necessary cause or [sic - causal] relationship.”

The Judge said for “that reason” he would not extend the limitation period and he dismissed the application.

14 As I have noted, the claimant seeks orders setting aside the primary Judge’s orders and remitting the matter to the District Court so that the claimant’s application can be reheard.

15 One of the grounds of appeal is that the primary Judge failed to give counsel for the opponent the opportunity to address on all the issues. In view of the conclusion to which I have come, it is not necessary to address this issue.

16 The sole ground on which the Judge declined to grant the application was that a fair trial could not be achieved because the opponent did not have access to medical and other evidence showing the necessary causal relationship, that is, the causal relationship between the breach of duty on the part of the opponent and the injury suffered by the claimant. As his Honour noted, there was evidence before him capable of establishing, at trial, that the opponent had not provided a safe system of work in regard to protecting the claimant from injury to his hearing.

17 In this regard, it is to be noted that the injury relevant in the claimant’s cause of action is the injury as at 30 June 1987. The claimant only claims damages for injuries suffered up to that date.

18 There was indeed evidence before the Judge capable of establishing the claimant’s hearing state as at 30 June 1987 and that that state was caused by a breach of duty on the part of the opponent. The evidence in question was that of the specialist, Dr Rice, another medical practitioner, Dr Cullen, the evidence of the claimant himself and the opponent’s admission in April 1987 that the claimant had suffered a hearing disability while in its employ.

19 As I have mentioned, in April 1987 Dr Rice examined the claimant and determined the state of hearing in each ear. According to his report, he “followed” the claimant for a period after that but he had not seen him since 30 June 1987. The implication is that Dr Rice did indeed see the claimant on that date. Thus, Dr Rice’s evidence is capable of establishing the claimant’s condition on the relevant date. According to Dr Rice’s report, he was able to distinguish between the sensory neural deafness sustained by the claimant as well as a conduction hearing loss he sustained. This is relevant as the industrial conditions are alleged to have caused the sensory neural deafness.

20 Dr Cullen, who examined the claimant later, supports the evidence of Dr Rice. The audiograms performed at the request of these two doctors were in evidence. The claimant’s own evidence bears on the causal relationship between his condition and the breach of duty.

21 Accordingly, in my opinion, the Judge erred in determining the matter on the basis that there would not be access to the relevant medical evidence.

22 Further, his Honour’s reference to “other evidence” was misplaced. The opponent rightly conceded that the evidence of co-workers of the claimant at the time would not be of any significance to the present issue.

23 Mr Parker drew attention to several problems that he submitted would arise in attempting to distinguish between the symptoms that the claimant now experiences and his condition as at 30 June 1987.

24 These difficulties are caused by the fact that the claimant continued working after 30 June 1987 in a noisy environment and there is a strong inference, capable of being rebutted, that his present condition was influenced, at least partly, by what occurred after 30 June 1987.

25 Mr Andrews, on the other hand, submitted that it was not appropriate for the claimant to complain about the absence of medical evidence for the period 30 June 1987 to 1990 as the claimant was then working for the opponent and, on the claimant’s submission, the opponent carelessly failed to carry out appropriate tests on Mr Cox during that period in accordance with the Australian Standards.

26 As regards the period after 1990, Mr Andrews submitted that, on the evidence, the claimant wore earmuffs and other protective gear and, therefore, he could not have suffered further disability from the noise stemming from the workplaces in which he subsequently worked.

27 In my opinion, it is not necessary to determine these matters. The question whether there will be significant difficulty in distinguishing between the consequence of the claimant’s injuries as at 30 June 1987 in relation to his present condition and the consequence of working in a noisy environment after June 1987 is not a matter which weighed with the primary Judge in coming to the conclusion that he did.

28 The way in which his Honour put it was, simply, that a fair trial could not be held because the opponent would then be put in the position where it would not have access to medical and other evidence showing the necessary causal relationship.

29 As I have attempted to demonstrate, there is ample evidence of the necessary causal relationship. While there may or may not be difficulties in establishing the precise quantum of the damages, that is a different issue.

30 The claimant seeks only that the matter be remitted to the District Court and the issues to which Mr Parker relies can properly be raised before the District Court Judge who hears the matter.

31 In my opinion, an error of discretion has been demonstrated sufficient to vitiate the decision made by the primary Judge and that decision should be set aside.

32 I propose the following orders:

(a) The application for leave to appeal is granted.

(b) The appeal is upheld with costs.

(c) The orders made by the primary Judge are set aside.

(d) The claimant’s application, the subject of this appeal, is remitted to the District Court for rehearing.

(e) The opponent is granted a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled.

33 McCOLL JA: I agree.

34 IPP JA: Those will be the orders of the Court.

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