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. [2] 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 -- 1 of 9 -- 2 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. [3] 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. [4] 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. [5] 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 in its glass products manufacturing and packaging business. At all material times its factory was very noisy: those working on the factory floor were consistently exposed to very high noise levels, as the appellant well knew. For the purposes of this appeal it conceded that there was evidence to establish the right of the respondent to sue it for negligence in relation to the noise. In 1995, Dr Patrick Doughty, a medical practitioner employed by the appellant on a contractual basis to advise it on matters pertaining to occupational health, recommended that the respondent lodge a claim for workers compensation for industrial deafness. (Dr Doughty was available to examine workers for one morning a week.) Thereafter the respondent consulted solicitors and on 8 July 1996 he commenced proceedings in the Magistrates Court for damages for negligence, claiming $20,000 and interest. By a defence dated January 1997 the appellant asserted that if the respondent suffered injuries as he alleged, his causes of action did not arise within three years before the action and were barred by s 11 of the Limitation of Actions Act 1974. Thereafter, and presumably in consequence thereof, the respondent applied under s 31 of that Act to extend the period of limitation so that it expired after the action was commenced. [6] The application was heard over two days in October 2001. Numerous witnesses were called and cross-examined and numerous affidavits were read. The appellant conceded that there was no discretionary reason to refuse the application. The issue was whether the elements of s 31(2)(a) were demonstrated. That paragraph provides: “(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court- (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; -- 2 of 9 -- 3 … the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.” For the purposes of that provision the extent of personal injury caused by negligence is a material fact 1 . In this case the relevant material fact was alleged to be the extent of the respondent's hearing loss. The appellant submitted that this fact was within the respondent’s knowledge or means of knowledge before 8 July 1995 (being one year before the commencement of the action); in fact it was so by 1990 at the latest. [7] The magistrate dismissed the application. His findings of fact were brief: “There is evidence in front of me that Mr Bawden was aware prior to that date in 1995 that he had a hearing loss. The evidence seems to be he relied on the system put in place at work. I have to then ask myself; was that reasonable? Bearing in mind what Justice Atkinson said at paragraph 73 of her reasons and it seems that that Justice was referring to Dicks case and Justice Thomas’ reasons therein. On balance, and that is the test I must apply – I balance I find that Mr Bawden has not brought himself within section 31. I do so somewhat reluctantly. He was, in my opinion, in evidence, a less than forthright witness. Where he differs in evidence with Coombs and the other nurse Scanland, I would accept their evidence as to what happened. In my belief, they did have a procedure that they adopted with each of the people. He was well aware pre-1995 he had a hearing loss and I find he took, in effect, no steps to do anything about that loss and, in my view, it is not reasonable to just rely on the occupational nurse at work. When he is told in 1990 he has a loss, in my view, it demanded that he should have done something more than he did. I, therefore, find that he does not bring himself within section 31 of the Act and I dismiss the application.” [8] From that decision the respondent appealed to the District Court. On 4 April 2002 that court allowed the appeal. It ordered that the order of the Magistrates Court be set aside and that in lieu thereof there be an order that the period of limitation be extended to and including 8 July 1996; and that the appellant pay the costs in both courts. The present appeal is brought by leave from those orders. [9] Two fundamental matters need to be borne in mind. The first is that this is an appeal on a question of fact. The question is whether one of the elements of s 31(2) was proved. The answer to the question depends upon identifying the correct inferences to be drawn from the evidence. In doing so due weight must be given to the findings of primary fact made by the magistrate. (The District Court judge, 1 Section 30(a)(iv). -- 3 of 9 -- 4 whose findings are challenged in this appeal, did not rehear any of the evidence and was in no better position than us to determine the facts.) The second matter is that it is common ground that the magistrate’s findings on credibility must be accepted. In that regard the magistrate found, without giving reasons, that the respondent was "a less than forthright witness". He held, "Where he differs in evidence with [sic] Coombe and the other nurse Scanland [sic], I would accept their evidence as to what happened." The respondent did not argue otherwise. [10] Unfortunately the magistrate made only two or perhaps three findings of primary fact. They were that the respondent was told in 1990 that he had a loss of hearing and that he was well aware before 8 July 1995 that he had a hearing loss; and that the two nurses referred to below had a procedure which they adopted with each of their patients. Those findings must be understood against the background of some uncontested facts. At all material times the appellant employed a staff nurse. That position was occupied from 1978 until 1987 by Mrs Coombe, from 1987 until 1994 by Ms Scanlan and at all material times thereafter by Ms Hall. Among the nurse’s duties was testing the quality of employees’ hearing. The two nurses to whom the magistrate referred in his findings were Mrs Coombe and Ms Scanlan. [11] It was not disputed that the respondent knew he had sustained a hearing loss. He swore in an affidavit that for some years prior to 1995 his wife used to complain to him that when watching television he had the volume too loud. In his oral evidence he also said that when he had his hearing tests he was told he had lost a little bit of hearing and that by 1993 it was probably in his mind that his hearing capacity had diminished. (He claimed he didn't think about it very much and that when he did the first thought that came into his mind was that it was old age.) The magistrate’s primary findings on this point therefore do not bear directly upon the point at issue in the proceedings. [12] The magistrate did not identify the procedure which each of the nurses adopted. It will be necessary in due course to refer to the evidence in that regard in some detail. [13] The appellant's submission in this Court was simple. By 1990 at the latest the respondent either knew or had at his disposal all the facts material to his action to enable him to make a reasoned decision about whether to bring a claim or not. The facts in support of that conclusion were said to be that a hearing loss existed in 1986; that the respondent was told of that loss in 1986 by Mrs Coombe; that the respondent was told that the loss was of a sufficient degree to justify going to see Dr Doughty and was told to go and see Dr Doughty; and that in 1990 he was told by Ms Scanlan that his hearing loss was no better and was irreparable. [14] Soon after the respondent began work for the appellant in 1978 his hearing was tested by Mrs Coombe. The test results were recorded as an audiogram which displayed the results on a graph. For each ear at each of six different frequencies there is a plot showing between five and ten peaks and troughs. The point of origin is apparently the top left of the graph (i.e. the graph seems to be the quadrant from 3 o'clock to 6 o'clock). The units on the y-axis are numbered from 10 to 90 at intervals of 10 but are not identified. The x-axis is segmented into 12 sections, one for each frequency for each ear, but no units are displayed within each segment. There was no evidence to explain what the graph means. -- 4 of 9 -- 5 [15] Mrs Coombe said that the tests indicated that the plaintiff had suffered hearing loss in respect of high frequency noise, most significantly in the left ear. In her affidavit she swore: “7. However, I would always discuss the hearing tests results with the worker. 8. If hearing loss was evident from the tests results (as in the plaintiff’s case), it was my practice to discuss with the worker- (a) inform the worker of the results of the hearing test and any hearing loss which had been suffered; (b) a comparison of the current test to previous tests which had been performed (if any); (c) whether the worker was utilising the hearing protection devices supplied by the defendant (ie foam ear plugs and ear muffs, although ear muffs had to be requested by individual workers); (d) whether the worker was engaging in any noisy activities outside the workplace without wearing hearing protection (eg metal grinding, shooting, using nosy power tools etc); (e) that an appointment should be made with Dr Doughty in respect of the hearing loss. 9. I believe that I would have discussed those matters with the plaintiff following each of the hearing tests in 1978 and 1986 and as such, the plaintiff would have been aware that hearing loss had been suffered.” [16] She was far less explicit in her oral evidence. Asked what in accordance with her practice she would have told the respondent in 1978 she answered simply, "I would have told him that he did have some loss in the area of industrial deafness." That is much more probable than what she said in her affidavit. To have shown the graph to the respondent would have been meaningless; he could not possibly have understood it. To have described those results in words would have been even more meaningless. In cross-examination she was asked: "And would you have recommended to the plaintiff at that time that he see Dr Doughty with that degree of hearing loss?-- On that I couldn't be sure whether I did or not. I can't remember." [17] Mrs Coombe saw the respondent again in September 1986. By then there had been further deterioration in his hearing. She said that it was her practice to tell employees of a loss: "I would have told them if there was a loss in the hearing, yes. If it was - as I usually have the card and would say to them, it would have just come out of the machine, ‘Look, you've got a bit of loss there’ or ‘you have no loss there at all’ or ‘you've got to be very careful’ if it [was] worse." She did not calculate the loss in percentage terms and therefore could not have told the respondent anything of his hearing loss in those terms. She said she couldn't remember whether she then recommended that he see Dr Doughty but her practice would have been to do so. However she also said that there would be a written -- 5 of 9 -- 6 record of such advice and of the appointment time on the respondent's file. There was no such record. [18] The appellant submitted that the magistrate found as a fact that the respondent was told by Mrs Coombe to go and see Dr Doughty. It conceded that there was no express finding to this effect but argued that the finding was implicit in the magistrate's finding on credibility. One assertion made by the respondent in his evidence was that he had not been told to go and see Dr Doughty. The appellant sought to elevate the magistrate's preference for the evidence of Mrs Coombe over that of the respondent to the finding referred to. In my judgment the evidence of Mrs Coombe does not go so far. The point must be decided on the basis of her evidence, not his; but her evidence must be taken in its totality. That includes what she said in cross-examination and in re-examination, not just what she deposed in her affidavit prepared by the appellant’s solicitors. [19] In assessing her evidence it is also necessary to take into account the evidence of Dr Doughty. He said that if a hearing test showed a significant change or changes in an employee's hearing, arrangements were usually made for him to see the employee after the test or for the test results to be examined by him. In Dr Doughty's opinion there was not a lot of difference between the test results in 1978 and those in 1986. Moreover much of the loss in the left ear was of such a nature that it had nothing to do with noise. Much of Mrs Coombe's evidence depended upon her perception at the time of the hearing that the difference between those results was significant. She had no recollection of her perception in 1986. [20] Adopting this approach the proper findings are as follows. Mrs Coombe did have a practice of informing workers if their tests showed a loss of hearing. She told the respondent that he had suffered a hearing loss in 1978 and in 1986. It is unlikely that she showed him his audiograms; and if she did they would not have meant anything to him. She did not describe his hearing loss in percentage terms and he had no way of knowing the loss in those terms. Her practice was to recommend that a worker see Dr Doughty in a case where she thought his hearing had deteriorated since the previous examination. Either because she did not regard the respondent’s deterioration as significant at the time of the examination or because in this case she did not follow her usual practice, she did not recommend that he do so. Even had he seen Dr Doughty it is unlikely that the latter would have said anything to encourage him to make a claim. [21] It appears from the magistrate's reasons for judgment that his Worship focused not upon what happened in 1986 but upon what happened in 1990. That is also the year by which at the latest, in the appellant's submission, the respondent knew or had at his disposal all the necessary facts. Further tests were done on the respondent's hearing in that year and also in 1993 and 1995. The results of those tests and of the earlier tests were examined by Dr Tonisson in 2001. He considered that the 1986 test showed a hearing loss of 11.3%. The 1990 test showed a loss of 22.3%. Subsequent losses were small. It is the loss between 1986 and 1990 which is vital for the respondent's claim. [22] Ms Scanlan tested the respondent’s hearing in December 1990. She plotted the results by hand as a graph, but with only one plotted point per frequency per ear. She deposed in her affidavit that the results showed that the respondent had suffered hearing loss in respect of high frequency noise, most significantly in the left ear. -- 6 of 9 -- 7 She also deposed, "In essence, I recall explaining to the plaintiff that he had suffered hearing loss which was irreparable and that he must wear hearing protection to avoid any further loss." However it emerged in her cross-examination that she thought the extent of his loss at that time had decreased since 1986; in other words that there was no deterioration in his hearing between 1986 and 1990. She said she would have told him this. [23] She was also asked about her practice regarding referring workers to Dr Doughty. She said that she did not refer a worker just because his or her hearing had deteriorated since the last test: “I would have had every single employee seeing the doctor because every single employee in that plant would have had hearing loss whether it was related to work or not.” Regardless of the state of their hearing a worker would be referred only if he or she wanted to make a claim for workers compensation. She explained why: “So are you saying that because everyone had hearing loss you just didn’t do anything about it-- Excuse me, no. Well, what did you do about it?-- What was I expected to do about it? Well, did you refer the worker to Dr Doughty and say, ‘You should go to see Dr Doughty and have your hearing checked’?-- No, that wasn’t the company policy.” She did not claim to have referred the respondent to the doctor. [24] For the appellant Mr Grant-Taylor SC submitted that by the time he had seen Ms Scanlan in 1990 the respondent knew that he had suffered a degree of hearing loss which was irreparable; that it was immaterial that Ms Scanlan did not describe it as “significant” (or any similar epithet); and that he therefore knew, or by acting reasonably could have discovered, everything he needed to know to make an informed decision about commencing a common law claim against the appellant. Moreover his knowledge then was no different from what it was in 1995. [25] I reject those submissions. It is true that the respondent was aware that he suffered some irreparable hearing loss. He had been suffering some loss when he joined the company in 1978, whether from previous events in his life or from ageing or both. His hearing deteriorated between then and 1986, but not, on Dr Doughty’s evidence, significantly or in a way which could be attributed to his work. It did deteriorate significantly between 1986 and 1990, but Ms Scanlan thought otherwise and therefore did not tell him of it. She did not refer him to Dr Doughty. There was no reason why the respondent should have sought advice from another doctor. It cannot be said, in my judgment, that he knew or could reasonably have discovered everything he needed to know to make an informed decision about commencing an action against the appellant. He did not know there had been a significant deterioration in his hearing between 1986 and 1990 and he did not know that the deterioration in his hearing was arguably the result of the appellant's negligence. He did not even know that it might ground a claim for workers compensation. [26] In 1995 Nurse Hall referred his test results to Dr Doughty. This was the first time they were seen by Dr Doughty. Why this happened was explained by Dr Doughty: -- 7 of 9 -- 8 "Was that something about Nurse Hall that was - why she more active in getting people to take some action on their hearing loss?-- No, I was more active. At that time?-- In 1995. The political scene had changed as regards compensation. Right?-- And so I instituted a - if you like, a policy that people with hearing loss were - had compensable loss, that we would offer to pay them compensation at that time. Right?-- Because by then, it had become fairly obvious that the education system was working and we were not getting increased losses. Right?-- And it was reasonable to assume that at that time, if somebody had x amount of hearing loss, then they were probably only going to get that amount of hearing loss." In other words, it was not until potential claims for workers compensation stopped increasing that the appellant became proactive about compensation. [27] Having seen the respondent's graph Dr Doughty commented that he had a justifiable claim for hearing loss. (In the context he was referring to a claim for workers compensation.) Nurse Hall conveyed this to the respondent. In due course the respondent went to see solicitors. The action in the Magistrates Court was the result. [28] The respondent's knowledge in 1995 was different from what it was in 1990 in one critical respect: he had been advised that he had a justifiable claim for hearing loss. Until then he had no reason to think that the deterioration in his hearing was of such an extent or had occurred in such circumstances as to show that an action against the appellant would have reasonable prospects of success. Then he became aware that the loss (or some of it) might be attributable to his work. It is true that he knew he worked in a very noisy environment and there is some force in the argument that a person working in such an environment ought to consider the possibility that it is the cause of a perceived loss of hearing, whatever its extent. However the respondent did not do so because he had always been provided with ear plugs which he swore he always wore. He said, "Being a charge hand and a first-aid officer, I felt that it was incumbent on me to set a good example to the other employees by wearing ear plugs at all times whilst working”. That evidence was unchallenged in cross-examination. Indeed it was put to him (and he agreed) that the appellant enforced and policed the wearing of ear protection. He further deposed, "Up until the hearing test conducted on 7th August 1995, I was under the impression that the ear plugs were giving me adequate protection, and that I had very little, if any, loss of hearing.” It was put to him that he must have drawn a conclusion that there could have been a link between the noisy work environment and his deteriorating hearing, but he responded that he accepted that the hearing protection given to him was good enough to stop him going deaf. That response was unchallenged. In the circumstances (including his pre-employment hearing loss) it was a reasonable belief for him to hold. -- 8 of 9 -- 9 [29] In view of the brevity of the magistrate’s findings it is desirable to say a little about reasons for judgment. It is well established that there is a duty on the part of judicial tribunals to give reasons for their decisions and that failure to give reasons which ought to be given amounts to appealable error 2 . A number of the reasons for this rule were identified by Meagher JA in Beale v Government Insurance Office of NSW3 . They were to avoid disabling the right of appeal, to prevent the "real sense of grievance" felt by a party who does not know or understand why the decision was made; to enhance judicial accountability, provide the educative effect resulting from the exposure of the trial judge or magistrate to review and criticism and encourage consistency in decisions; and to save time for appeal courts by reducing the number of appeals and the time taken in considering appeals. What is required to be included in the reasons varies, and depends upon the circumstances 4 , but in the words of Gibbs CJ, "It has long been the traditional practice of judges to express the reasons for their conclusions by finding the facts and expounding the law." 5 In Suncorp Insurance and Finance v Hill6 , Williams J, with whom Fitzgerald P and Davies JA agreed, cited a passage from the judgment of the President in Cypressvale Pty Ltd v Retail Shop Leases Tribunal: "The broad principle deducible from the cases is that the decision- maker is required to give reasons which disclose what was taken into account and in what manner, and thus whether an error has been made…. There have been many attempts to elaborate; indicating for example, the need for findings of fact, usually related at least in broad terms to the evidence on which each finding is based, and an explanation of the reasoning process; vague general statements, or unexplained conclusions are not sufficient…."7 The pressures on judges and magistrates to resolve cases quickly and their heavy caseloads cannot relieve them of this duty. [30] The order of the District Court was correct. I would dismiss the appeal with costs. [31] MUIR J: I agree with the reasons of Fryberg J and the order he proposes for disposing of this appeal. 2 Crystal Dawn Pty Ltd v Redruth Pty Ltd [1998] QCA 373. 3 (1997) 48 NSWLR 430 at pp 441-2. 4 Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462. 5 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at p 666. 6 [1998] QCA 112. 7 [1996] 2 Qd R 462 at p 467-7. -- 9 of 9 --