Plumb v The Electricity Commission of New South Wales

[1992] HCATrans 209

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S67 of 1992

B e t w e e n -

RONALD GEORGE PLUMB

Applicant

and

THE ELECTRICITY COMMISSION OF

NEW SOUTH WALES

Application for special leave

to appeal

MASON CJ

· BRENNAN	J
MCHUGH J

Plumb 1 3/8/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 3 AUGUST 1992, AT 10.05 AM

Copyright in the High Court of Australia

MR B.J. GROSS, OC:  May it please the Court, I appear with

MR P.C.B. SEMMLER, for the applicant. (instructed

by Geoffrey Edwards & Co)

MR D.F. JACKSON, OC: . Your Honours, may it please the Court,

I appear with my learned friend, MR A.R. COOLEY,

for the respondent. (instructed by P.C. Sistrom,

Solicitor, Electricity Commission of NSW)

MASON CJ:	Mr Gross?
MR GROSS:	Your Honours, might I hand up some materials.

MASON CJ: What is all this?

MR GROSS:  I am sorry, Your Honours, I will refer

Your Honours to particular parts but will

Your Honours first of all look at the top document which is the original section 60F in bill form, and

Your Honours the source of the problem in the Court

of Appeal may relate to the fact that section 60F

was changed from what appears in the bill to as it

appears in the legislation. Your Honours, the

relevant page in the Limitation Act is at page 36

if Your Honours are going to that legislation, and

the relevant section of the transitional provisions

is on page 48.

Your Honours will see that in bill form there

was a heading:

Discretionary extension for latent injury

etc -

and

The purpose of this Subdivision is to provide

a procedure ••.•• where latent injury, disease

or impairment is involved.

In the Act, however, as enacted section 60F was

changed so that, although for some strange reason,

it retained the same heading:

Discretionary extension for latent injury

etc -

it referred to the relevant purpose as related to

situations -

where the plaintiff was unaware of the fact,

nature, extent or cause of the injury, disease

or impairment at the relevant time.

Your Honours, in the bill it was appropriate to

speak of "latent injury etc" because there was a

genus related to the character or quality of injury

Plumb 2 3/8/92

which made it appropriate to use the word "etc"

after injury.

But, Your Honours, in section 60F, as enacted,

that section deals not only with what I might

describe as hidden injuries but with situations

where the extent and consequences of the injury are	hidden and where the role of the tortfeasor, even
in relation to an obvious and serious injury,
remains hidden and, without labouring the point,
Your Honours obviously one can know one has an
injury, for example, which gives a rise to a scar,
it could create ulceration and cancer at a later
stage. We are not talking there about a latent
injury but rather one where the consequences only
slowly manifest themselves.

So that, Your Honours, in our submission, the

Court of Appeal fell into the initial error of

assuming there was a distinction which the Act

still opserves between latent injury and obvious

injury. That is, a distinction between, in effect,

physical conditions of gradual onset, on the one

hand, and acute injuries, on the other. The court,

in our submission, repeatedly refers to the fact

that the Court of Appeal decision in Wootton's case

was concerned with latent injuries, and the

Justice Handley frequently refer to the fact that	judgments of both of Mr Justice Mahoney and
Wootton was concerned with a latent injury, whereas
this is not one of· those situations, and that the
concept of latent injury is one which dominates
Subdivision 3, and in particular the importation of
section 60G, into Schedule S, that is the
transitional provisions relating to old injuries.

=

~ Now, Your Honours, the Court of Appeal

decision in James Hardie & Co Pty Ltd v Wootton is

'included in those materials, but the effect of that

decision was that clause 4 of the further

transitional provisions in Schedule 5, that is on

page 48, Your Honours, which deals with causes of	action accruing "before 1 September 1990", that is
old injuries, picks up the power under section 60G,
more particularly section 60G(2) to make orders
extending time if "it is just and reasonable to do so", but when it picks up section 60G it does so
free of the restraints imposed by section 60!.
And, Your Honours, will see that section 60! is, in
effect, on page 38, a provision which has two
elements: one setting out, as it were, the
criteria;. and the other dealing with the relevant
time frame.

Now, Your Honours, in Wootton it was common

ground that Wootton could not satisfy the

requirements of section 60!, but the Court of

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Appeal held that the scheme of the legislation is that Schedule 5, in which clause 4 appears, in picking up the section 60G power does not import

also the qualification on that power contained in

section 60!.

MASON CJ:	Wootton was a latent injury case, was it?
MR GROSS:	Your Honour, yes, it was a chronic exposure to

asbestos particles. Your Honours, the Court of

Appeal in Wootton - if Your Honours would go to the

photocopy of Wootton's case, in the judgment of

Chief Justice Gleeson, at page 717 - points out

that section 60G does not contain in its opening

words an expression that it is subject to section 60I, and that Your Honours is at 717E.

This fits in, in our submission, with the

scheme of the legislation under which for old
injuries, that is the cause of action accruing

before -1 September 1990, clause 4 absorbs

section GOG without the qualification it has for

new causes of action, that is those accruing after

1 September 1990, namely, section 60!.

Your Honours will note from page 717 of the

judgment of Wootton that Chief Justice Gleeson

rejects a number of arguments put by the employer.

Your Honours, before I just go to those arguments

can I add that not only does section GOG not

contain any words making it subject to section 60I

as Chief Justice Gleeson pointed out but also that

when one goes to clause 4 in the transitional

provisions on page 48 it is importing section 60G

in terms and not the subdivision from which it

comes, namely Subdivision 3 and, Your Honours, in

our submission, that represents the same

legislative choice as the Court of Appeal

·acknowledged in Wootton.

Your Honours, there are two arguments rejected

by the Court of Appeal in Wootton:  first, that the

legislation as it applied to old causes of action

ought be construed as though Schedule 5 imported

into its provisions the terms of section 60I, and

Chief Justice Gleeson rejects that argument at

7170; secondly, that clause 4 merely modifies the

operation of section 60I(l)(b), that is the time

limit provision, and not the operation of

section 60I(l)(a), that is the criteria which need

to be satisfied concerning awareness of particular

matters at the relevant time. Now, that also,

Your Honours, is rejected at 7170.

Your Honours, the Wootton case was concerned

with what Chief Justice Gleeson described as a

latent injury, as has been pointed out, but the

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reasoning by the Court of Appeal in Wootton did not

depend upon whether the injury could be described

as latent but rather depended upon the fact that

only section 60G and did not pick up the rest of	the transitional provisions in Schedule 5 picked up provision in section 60!.
Your Honours, it is our submission that the correctness of our position, that is that only
section G is picked up but not section 60F, which
Your Honours will find at page 36, is supported by the fact that clause 4 in the transitional provisions on page 48 and, indeed, the whole of Schedule 5 is not a mere footnote dependent for its
power upon Subdivision 3 in which section 60G
appears, but rather it has its -

BRENNAN J:	I am sorry, you have lost me, Mr Gross.
MR GROSS:	I am ~orry, Your Honour, it is very difficult

turning pages.

BRENNAN J:  No doubt this is all very familiar as an area of

discourse to New South Wales practitioners but at the moment it seems to be a matter of parsing and

analysing a few words here and there in a

particular statute that no doubt is of importance

here, but what is the proposition for which you are

contending as matter of construction?

MR GROSS:  Your Honours, can I shorten this. That

section 6(2) is the enlivening provision for

Schedule 6, that is the transitional provisions

where it provides Schedule 5 has effect. Our

submission is that it is notable to begin with that

the bench that decided the Wootton case was not
represented in the bench that decided Plumb's case,

but nevertheless there is a head-on conflict

between the two cases. And, Your Honours,

according to both cases, if they stand, clause 4

qualifications stated in section 60F but without,	imports section 60G, together with the purpose of
as it were, the other qualifications related to criteria which are in section 60I.

MASON CJ: But that is a strange result in itself, is it

not?

MR GROSS:  Yes. Your Honours, we would put three things if

we may, briefly: neither clause 4 nor section 60G

are restricted to latent injuries and, indeed, that

is a distinction which is not relevant for the

importation process. Your Honours, it would be odd

if the purpose - - -

BRENNAN J: What do you mean by latent injury?

Plumb 5 3/8/92

MR GROSS:	Your Honours, that, with respect, is the problem because "latent injury etc", which is the
expression used in the heading which is not part of
the Act incidentally, does not give any clues as to
what is the character of the remaining unstated
ingredients. Your Honours, section 60F was said by
the Court of Appeal to provide the meaning for
"latent injury etc" and that depends upon
unawareness "of the fact, nature, extent or cause
of the injury, disease or impairment" and,
Your Honours, as we have indicated that does not
require that there be a latent injury. One could
be unaware of the extent of the injury or the cause of the injury when, in fact, the injury is quite
clearly not a latent injury.

Your Honours, the case went off, in our

submission, on the wrong ground that the court in

the present case perceived that there was a

distinction within the Act between, as it were,

your d~seases of gradual onset or your insidious or

subtle injuries and, on the other hand, the acute

injuries where it is plain at the time that you

have sustained an injury, and section 60F, in any

event, appears to have a general description in

terms of purpose which would go well beyond latent

injuries.

BRENNAN J:  Why is it that the class of injuries, to which

subdivision applies, is not comprehended by the

words "unaware of the fact, nature, extent or cause

of the injury, disease or impairment"? Why does it

not mean that?

MR GROSS: 

Your Honours, to begin with "latent injury", the

expression itself, is not part of the Act it is one
of those - - -

. BRENNAN J:· No, I appreciate that, but if you are using the

term why is it that this subdivision does not apply

to cases which are falling within those words?

MR GROSS:  Your Honours, it does in situations where one is

dealing with new causes of action, and the

difficulty is that when one deals with the

transitional provisions. When they come in, the

plain language of section 4(1) and 4(4)(b) is that

one has a simple criterion dependent upon

reasonable cause being shown and with those actions
having to satisfy a fairly simple time limit in

clause 4(4)(b), so that the regime is spelt out.

Can I point out one matter, Your Honours, that

under 4(4)(b), and that is on page 49,

Your Honours, the power to make an order there are

two alternatives as to time but the second one is:

Plumb 6 3/8/92

the period of 3 years commencing on

1 September 1990.

So that in relation to the old causes of action

which are, shall we say, acute traumatic injuries,
the orders have to be made prior to

1 September 1993 unless otherwise you fall within

4(4)(a) which brings in the section 60I

restriction. So that, in effect, what has been

created is a temporary amnesty period during which

time the traumatic acute injuries are dealt with by

this particular regime.

BRENNAN J: But why is it that - I mean the three years

referred to in 4(a) is the three years referred to

in 60I, is it not?

MR GROSS:  Yes, Your Honour, that is right. I am sorry.

Yes, that is so.

BRENNAN J: Which is linked to discovery, discovery by the

plaintiff?

MR GROSS: Yes.

BRENNAN J: That is perfectly understandable. If the

sections, if clause 4 imports Subdivision 3.

MR GROSS:  Your Honours, Wootton's case says it only imports

from the case of old injuries section 60G.

BRENNAN J:  If Wootton's case says the case was one which

fell within the description of "unaware of the

fact, nature, extent or cause of the injury" then

Wootton's case goes on to say 4(b) can apply.

MR GROSS:  Your Honours, the reasoning of the Court of

Appeal does not confine it to that situation, it

basically indicates that in respect of old causes

of action that section 60G alone determines the

situation, and Chief Justice Gleeson referred to

that aspect at 717B and 717F.

Your Honours, there is no sense, in our

submission, taking section 60F - if you cannot take

section 60I, as Wootton's case says, in taking

section 60F in isolation in order to control the

importation of section 60G in these cases because

section 60F has no meaning at all without the

relevant time frame which is imposed elsewhere,

that is at the relevant time. So section 60F

cannot work on its own.

Your Honours, section 60F, in our submission,

is merely, as it were, the provision which

announces the role of section 60I as applied to

Plumb 3/8/92

section 60G and, Your Honours, section 60I is

merely what we would put as being the procedural

fulfilment of the purposes foreshadowed in

section 60F but where you still need a time frame

in order to give it meaning.

Your Honours will note, comparing section 60F

with section 60I, that the criteria in
section 60I(l)(a) - and there is a series of

alternatives there - duplicate in an extended form

the more tersely expressed excuses based on lack of

awareness which you find in section 60F. In our

submission, if one takes Wootton and Plumb together

at this stage, it authorizes going to section 60F

in order to control the importation of section 60G

but where in fact there is no reason to pick one

section rather than the other. Your Honours, can

we identify very quickly if we may what we say are

the errors?

BRENNAN J: Mr Gross, could I just ask you one further

question, delaying you for a moment:	is it
possible for a case which falls under	clause 4 to
find itself within subclause 4(a) and	does that not
import 60I?

GAUDRON J: Your Honours, it may or may not but it - - -

BRENNAN J: It must, must it not, because it is the period

referred to in 60I?

MR GROSS:  Your Honours, they are, of course, alternatives

and until September 1993 if one passes through the

gateway of 4(b) one will not need to go to the time

1 imi t in 4 (a) •

BRENNAN J: No.

MR GROSS:  But after that you will. So that is why we put

it as being, as it were, a temporary amnesty period which has a limited operation in terms of time and	that may well be because of recognition by the	legislature that the law has got itself into a
dreadful mess over the years and there ought to be
a period during which matters are adjusted to the
full awareness of the new criteria.

Your Honours, can I briefly set out what we

say are the errors. Justice Handley said that

Wootton was only concerned with section 60I(l)(b),

that is the time limit part of section 60I, and

His Honour says that at page 57 line 23 but, in

fact, it is clear, in our submission, from looking

at Wootton, page 717D, that it was the whole of

section 60I which was rejected and not just the

time limit provision.

Plumb 3/8/92

Secondly, Justice Handley says that Mr Wootton

would have passed the test under section 60I, and
that is at page 53 line 25:

Accordingly he could bring his case within

s 60I(l)(a).

However, that is in conflict with what

Chief Justice Gleeson said at 717B:

It is common ground that the respondent would

have been unable, in the facts and

circumstances of the present case, to bring himself within the provisions of cl 4(4)(a).

Thirdly, Your Honours, we submit there is the latent injury analysis error in that the judgments

are dominated by that distinction which is not found in the Act. Fourthly, we would put that where clause 4 operates the Court of Appeal erred

in finding section 60G as being the source of the

power but with the section 60F baggage, whereas, in

our submission, clause 4 as enlivened by

section 6(2) has its own source of power; so you

have, in effect, an incorporation by reference.

And fifthly, we would submit, that in using the

headings, although not as part of the Act, as an

aid to interpretation, the court reached a

conclusion which was contrary to unambiguous

language. Your Honours, we would merely add that,

of course, this is remedial legislation which ought

be construed liberally.

Your Honours, we have some further complaints

which we make concerning the court's treatment of

section 57B, that is the old section 58, and may I

state those briefly Your Honours, very briefly.

Justice Mcinerney, at pages 19 to 20 of the appeal

book, summarized various factors which could bear

upon section 57B. Your Honours will find

section 57B at page 31 of the Limitations Act and

His Honour at the conclusion of this first judgment

expressed the view that, at line 15 on page 20,

that:

It may be, in those circumstances, that the

subjective circumstances of the respondent may

be such that his failure to commence
proceedings for those reasons was reasonable

until he became aware of the possibility of

dismissal.

Now, Your Honours, in the second judgment

His Honour Justice Mcinerney only concentrated on

the new provision, that is clause 4 importing

section 60G. In the Court of Appeal, because there

was a notice of contention on the point,

Plumb 3/8/92

Justice Handley, at page 61 line 25, said this,

Your Honours:

It is not necessary to reach a final

conclusion on this evidence because the change of policy by the Commission at the end of 1988

was not a material fact relating to the

plaintiff's cause of action.

Now, Your Honours, His Honour did so on the basis

that the employer's change of policy as to the
retention of injured workers was not a fact, or

material fact, relating to a cause of action. But

His Honour was obliged to go further into the

question of whether the material facts, if known,

were of a decisive character for the purpose of

making the judgment under section 57B(l)(c) and,	Your Honours, the error on this particular matter
was that His Honour, at page 63 line 10, having found that:

the employer's change of policy was not a

material fact relating to the worker's cause

of action -

His Honour said this -

If the employer's change of policy was

not a material fact relating to the worker's

cause of action it cannot be one of the

material facts of a decisive character within

s 58(2)(a) so that its discovery by the

respondent late in 1988 cannot authorise an

extension of the limitation period.

The error His Honour fell into was that the words
"of a decisive character" in 57B(l)(c) -

Your Honours 58 has become 57B under the new

numbering - the test of whether the material facts
which are known are of a decisive character looks

at an overall conclusion upon the totality of the

facts known; so that you can have a situation

where all material facts in relation to the cause

of action could be known, but nevertheless lack the

quality of being of a decisive character

collectively because they do not pass the test

under 57B(l)(c)(ii) and, Your Honours, that

involves a judgment as to whether or not a

reasonable man, et cetera, would still bring an

action even though he knew about all the material

facts. In short, they can be material facts

relating to the cause of action but collectively

they do not pass the test of being of a decisive

character.

The Court of Appeal's error was to isolate

each fact and ask whether it can be a material fact

Plumb 10 3/8/92

of a decisive character when in fact

section 57B(l)(c)(ii) requires consideration of all

of the material fac~s in order to cover that

conclusion. And, Your Honours, that error at 63:

If the employer's change of policy was

not a material fact relating to the worker's

cause of action it cannot be one of the

material facts of a decisive character within

s 58 -

et cetera, that involved isolating each material

fact and asking whether it was of a decisive

character and, Your Honours, that meant that the

Court of Appeal itself failed to give any

consideration to the question whether, taking all the material facts which were known, a reasonable

man in the circumstances would have taken the

relevant decision. And, Your Honours,

Justice Mcinerney postponed a factual decision on

that a~pect and then did not deal with it because

he found the new provision more appealing; the

Court of Appeal did not deal with it because they

fell into the error of finding that one had to

identify the employer's change of policy as both

being a material fact and also being one of a

decisive character. And, Your Honours, in that

context they posed the wrong test for themselves.

Your Honours, may I say, finally - and I am

sorry to have taken so long - there is possibly a

subsidiary question which may arise that whether a

fact can be a material fact when it goes to the

quantum of damage rather than being one of the

facts which represents the collection of
foundational facts which complete the cause of
action. And, Your Honours, what we put is that the
definition of material fact is an inclusive

definition, as has been pointed out, and it

requires, in our submission, a consideration of a

wider range of facts than those which go to

completing the occurrence of the tort. That

completes our submissions, Your Honour.

MASON CJ: Yes, thank you, Mr Gross. The Court need not

trouble you, Mr Jackson.

The Court is not persuaded that the

interpretation which the applicant seeks to place

on ss 57 and 58 and schedule 5 of the Limitation

Act 1969 (NSW) is sufficiently arguable to justify the grant. of special leave to appeal. The

application is therefore refused.

MR JACKSON:  I ask for costs of the application?

Plumb 11 3/8/92

MASON CJ:	You do not oppose costs Mr Gross?
MR GROSS:	No.
MASON CJ:	The application is refused with costs.

AT 10.36 AM THE MATTER WAS ADJOURNED SINE DIE

Plumb 12 3/8/92