Jones v Hamersley Resources Limited - [2005] NSWCA 371

NEW SOUTH WALES COURT OF APPEAL

CITATION: Jones v Hamersley Resources Limited [2005] NSWCA 371

FILE NUMBER(S):
40935/03

HEARING DATE(S): 28 July 2005

JUDGMENT DATE: 31/10/2005

PARTIES:
Robert JONES (Claimant)
HAMERSLEY RESOURCES LIMITED (Opponent)

JUDGMENT OF: Santow JA Mathews AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 12742/01, DC 12971/01

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

COUNSEL:
K W ANDREWS (Claimant)
G R GRAHAM (Opponent)

SOLICITORS:
Sowden Akerman (Claimant)
Cutler Hughes & Harris (Opponent)

CATCHWORDS:
PROCEDURE - leave to appeal - claimant contends he suffered continued negligence with respect to his employment between 1964 to 1973 resulting in hearing difficulties - whether extent of unavailability of evidence and witnesses regarding factual issues in dispute renders trial unfair were limitation period extended - whether claimant's delay in bringing action, once aware of his rights, adequately explained.

LEGISLATION CITED:
Limitation Act 1969 of NSW s60G(2); s60I

DECISION:
Leave to appeal denied. Claimant to pay opponent's costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40935/03
DC 12742/01
DC 12971/01
SANTOW JA
MATHEWS AJA
31 OCTOBER 2005

Robert JONES v HAMERSLEY RESOURCES LIMITED
(formerly New Broken Hill Consolidated Limited)

Judgment

SANTOW JA:
INTRODUCTION
This leave to appeal and concurrent hearing (CA 40935/03) was heard in conjunction with parallel proceedings in Robertson v The Zinc Corporation Pty Ltd (CA 41021/03). They were argued together by the same counsel. I shall refer to the latter by the shorthand “Robertson appeal” and the former by the shorthand “the Jones appeal”. The claimant in the Robertson appeal is Robert James Robertson while the claimant in the Jones appeal is Robert Jones. These proceedings before this Court are properly the subject of separate judgments as, though they share a common substratum of facts and common issues, they have a number of material differences. These relate to each claimant’s respective employment history in the Broken Hill mines where each worked.
That differing employment history had the potential to produce different answers at trial. In fact, before different primary judges both claimants were unsuccessful. They each sought an extension to the relevant limitation period applicable to their respective actions for noise-induced hearing loss. In each case the finding the subject of the leave to appeal, was that it was not “just and reasonable” to extend the time for bringing an action against the opponent employer pursuant to s60G(2) of the Limitation Act 1969 of NSW (“the Act”).
There was no issue in either case that the relevant claimant passed the threshold requirement in s60I of the Act. Each was accepted as unaware at the relevant date of the connection between the claimed personal injury and the opponent’s alleged act or omission.
Turning now to the Jones appeal, the claimant, Mr Robert Jones, seeks leave to appeal against Armitage DCJ’s denial of an extension of the limitation period to bring an action for noise-induced hearing loss. Mr Jones claims to have suffered that loss in the course of his employment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWCA 371
Decision Date: 31 October 2005

CaseChat Overview and Summary

This matter concerned an application for leave to appeal from a decision of the primary judge in the District Court. The claimant, Mr Jones, alleged that he suffered hearing loss as a result of his employment at a mine between 1964 and 1993, with the claim pressed on appeal focusing on the period between 1973 and 1987. The defendant, Hamersley Resources Limited, was Mr Jones' employer for part of this period. The core of the dispute revolved around whether the limitation period for Mr Jones' claim should be extended, and whether a trial could be conducted fairly given the passage of time and the unavailability of evidence and witnesses.

The legal issues before the court were whether the extent of unavailability of evidence and witnesses regarding disputed factual issues would render a trial unfair if the limitation period were extended, and whether the claimant's delay in bringing the action, after becoming aware of his rights, was adequately explained. The claimant sought to extend the limitation period under section 60G(2) of the relevant Act, arguing that he was unaware of the connection between his injury and the defendant's actions or omissions, and that the application was made within the prescribed timeframes under section 60I.

The primary judge found that while the claimant satisfied the threshold requirement of being unaware of the connection between his injury and the defendant's conduct, he ultimately concluded that it was not just and reasonable to extend the time. This conclusion was based on the finding that a fair trial would not be possible due to several significant factual issues that would arise, including whether machinery had become quieter or noisier over time, the provision and enforcement of hearing protection, and the timing of safety warnings and training. The primary judge determined that the unavailability of evidence on these points would prevent a fair trial, and therefore refused to extend the limitation period.

Leave to appeal was denied, and the claimant was ordered to pay the opponent's costs.

Orders

Orders of the court

Leave to appeal denied. Claimant to pay opponent's costs.

Background

Background to the litigation

The essential issues on this application for leave to appeal are: (a)whether the extent of the unavailability of evidence and witnesses regarding factual issues in dispute would render a trial unfair were the limitation period extended, and (b)whether the claimant’s delay in bringing the action, once he became aware of his rights, was adequately explained. SALIENT FACTS The claimant, Mr Jones, commenced employment in December 1964 at a mine in Broken Hill. His original employer from that date until 23 December 1988, with the exception of a period of six months in 1978, was Hamersley Resources Ltd (“Hamersley”). In 1988, Hamersley sold its interest in the mine to the newly created company Pasminco Broken Hill Mine Pty Ltd (“Pasminco”). In December 1988 Pasminco took over operation of the mine and employees of Hamersley were transferred to Pasminco. The claimant was then employed at the mine by Pasminco until 19 February 1993. His essential claim, according to the Amended Statement of Claim, was that during his employment at the mine by his successive employers, he was required to work and/or be near machinery which was loud and/or excessively noisy. As a result of being exposed to the noise of machinery and equipment, Mr Jones claimed to have suffered injury to the structure of both inner ears. The claim he brought was limited to injuries occurring prior to 30 June 1987. The reasoning behind this was evidently that on 1 July 1987 the Workers Compensation Act 1987 (NSW) came into force. That affected entitlements to claim common law damages prospectively. The original Notice of Motion seeking an extension of the limitation period, filed in the District Court on 26 November 2001, named Pasminco as defendant. This was by agreement between the parties, as Pasminco had taken over part of the workers’ compensation responsibilities of Hamersley. However, in September 2001, Pasminco was placed in voluntary administration, and by February 2002, the administrator had refused to continue to accept responsibility for any claims made in respect of events which occurred before Pasminco took over operation of the mine. Thus on 10 October 2002, an amended Notice of Motion was filed in the District Court substituting for Pasminco the current opponent/ defendant, Hamersley. Though the employment covered a span from 1964 to 1993 with the change of employer earlier noted, the claim that was pressed on appeal relied, but faintly, upon the nine-year period from 1964 to 1973. The claim sought to be pursued was essentially from 1973 to an earlier period of 1987, after which there was no contention pressed that the claimant was suffering continued negligence with respect to his employment. It follows therefore that the claim that was essentially pressed was in respect of the fourteen-year period between 1973 to 1987 with the omission of six months. The claimant during the course of his employment was required to work near machinery and equipment which, according to the claimant, appeared to him to be very loud. He was not aware of any hearing loss before commencing his employment. The primary judge summarised the claimant’s evidence as to the hearing protection provided by the opponent as follows: (a)No protection was provided when he first started, but in about 1975/1976 he began using cottonwool in his ears. (b)Cottonwool was provided by his employer, but he was not able to use it all the time because, when working in a new area, he had to tap the roof and listen for a hollow sound. (c)About 12 months after he started using cottonwool he was supplied by the company with ear plugs, which he wore consistently but which he was regularly required to remove in order to communicate. (d)He tried wearing ear muffs but found them ineffective when he moved his head.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 12 October 2002, the claimant swore an affidavit for the purpose of these proceedings. The first instance Judgment The claimant’s challenge is to the primary judge’s finding that it was not just and reasonable to extend the time period; see s60G(2) of the Act. The primary judge’s finding that s60I of the Act was satisfied, is not in dispute on appeal. The threshold requirements of s60I constitute the basis for any jurisdiction to extend the limitation period. The primary judge found that the claimant had proved at the relevant date (30 June 1993) that he was unaware of the connection between his personal injury and the opponent’s acts or omissions, so that he passed the test of s60I(1)(a); Judgment [12]. However, the claimant had also to pass the threshold requirement of s60I(1)(b) of the Act. It precludes the court making an order extending the limitation period unless satisfied that “the application is made within three years after the plaintiff became aware (or ought to have become aware)” of the three matters listed in s60I(1)(a). The primary judge in the end reached only a partial conclusion on that issue. He had no difficulty in finding that the actual motion to extend the limitation period was filed within three years of the relevant date provided in s60I. But he finally left open the question whether “the application” was made when the relevant Notice of Motion was filed to extend time, as distinct from when the matter was later heard by the court in any substantive sense. He referred on that issue to the judgment of Hungerford ADCJ in Italo Martini v NBH Limited (Hungerford ADCJ DC 9191/02, 10 July 2003, unreported) suggesting that the application is made when the matter is heard by the court, rather than earlier when the Notice of Motion to extend time was filed. I respectfully disagree. An application to extend time is made when it is initiated by Notice of Motion, as the reference to “application” in s60I(1)(b) makes clear. The contrary interpretation would place litigants hostage to circumstances over which they had no control, dependent as they would be on progress in the court’s list and the forensic diligence of their opponents. The primary judge in any event considered that he did not have to reach a concluded view on this question. This was because he had concluded, adversely to the claimant, that if the limitation period were extended and the matter proceeded to trial, the opponent would not be able to have a fair trial; Judgment [13]-[14]. So concluding, the trial judge explained why, leading to the conclusion that it was not just and reasonable to extend the time, in terms of s60G(2) of the Act.Whether just and reasonable to extend the time The primary judge found that several important factual issues would arise at trial: (a)whether the machines had become quieter or noisier over the years, (b)whether signs warning that hearing protection should be used were put up in the early years, and that hearing guards would be properly fitted by the nursing sister, (c)whether safety films about hearing loss were shown in the first ten years of the claimant’s employment, (d)when the claimant was first given hearing protection, (e)when the claimant was first given the opportunity of attending lectures, and (f)the ability of the opponent at the time to enforce the use of hearing protection.

Ratio Decidendi

Legal Principle Established

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