Delaney v Hay Point Services Pty Ltd [1991] QSCFC 11

h■ v 10 20 30 40 50 60 FULL COURT BEFORE : 4<j IN THE SUPREME COURT OF QUEENSLAND Appeal No. 4 of 1990 Mr. Justice McPherson S.P.J. J Mr. Justice Derrington Mr. Justice Moynihan BRISBANE, 7 MARCH 1991 1 REVISED COPIEslsSUED j Court Reporting Bureau | | Date/3 i 5 ! (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter , Court Reporting Bureau.) BETWEEN: JOHN PATRICK DELANEY (Applicant) -and- HAY POINT SERVICES PTY. LTD. (Respondent) JUDGMENT Appellant Respondent MR. JUSTICE McPHERSON: In this appeal I agree with Mr. Justice Derrington 's reasons for concluding this appeal should be dismissed with costs. I would so order. MR. JUSTICE DERRINGTON: I agree. I publish my reasons . MR. JUSTICE MOYNIHAN: I agree. MR. JUSTICE McPHERSON: The appeal is dismissed with costs. —Govt. Printer, Qld. G( / 1 10 20 30 40 50 60 1 [1991] QSCFC 11 -- 1 of 13 -- ft *n/ol in' the supreme OF QUEENSLAND FULL COURT BETWEEN: AND: COURT APPEAL NO. 40 OF 1990 JOHN PATRICK DELANEY (Applicant) Appellant HAY POINT SERVICES PTY.LTD. (Respondent) Respondent McPHERSON SPJ DERRINGTON J MOYNIHAN J Reasons for judgment delivered on 7th March, 1991 by Derrington J. McPherson SPJ and Moynihan J agreeing with those reasons and with the order proposed. "APPEAL DISMISSED WITH COSTS." -- 2 of 13 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 40 of 1990 Before the Full Court Mr Justice McPherson S.P.J. Mr Justice Derrington Mr Justice Moynihan BETWEEN: AND: JOHN PATRICK DELANEY (Applicant) HAY POINT SERVICES PTY . LTD, (Respondent) Appellant Respondent JUDGMENT - DERRINGTON J. Delivered the 7th day of March, 1991 CATCHWORDS: Counsel: Mr Jensen for appellant Mr Campbell for respondent Solicitors: Mclnnes Wilson & Jensen for appellant Morris Fletcher & Cross for respondent Hearing date: 21st February, 1991 -- 3 of 13 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT BETWEEN : AND: Appeal No. 40 of 1990 JOHN PATRICK DELANEY (Applicant) Appellant HAY POINT SERVICES PTY. LTD. (Respondent) Respondent JUDGMENT - DERRINGTON J. Delivered the 7th day of March, 1991 This is an appeal against a refusal of an application for an extension of time in which to bring an action pursuant to s. 31 of the Limitation of Actions Act 1974-1981 which reads as follows " 31. Ordinary actions. (1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person. (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; and -- 4 of 13 -- 2 (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation, the court may order that the period of limitation for the action be extended so that it expires at the end of one 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. (3) This section applies to an action whether or not the period of limitation for the action has expired - (a) before the commencement of this Act; or (b) before an application is made under this section in respect of the right of action." The applicant wishes to proceed with an action against the respondent who employed him from January 1977 until early 1981 as an apprentice fitter and turner during which period he was exposed to high levels of industrial noise causing him some significant hearing loss. He first developed a constant ringing tinnitus in his ears and loss of some hearing which led him to consult a specialist who on 3.February, 1981 provided him with a certificate that he was suffering from "noise induced hearing loss in both ears of moderate to severe degree in high frequencies",. Although the precise assessment of hearing loss in the form of a percentage figure was not communicated to him, he was aware- of the deterioration in his hearing and of the contents of the certificate. Although the respondent had given him no warning of the danger of industrial deafness induced by the noise in his work environment and had provided no protection after his first consultation with his specialist the applicant requested ear -- 5 of 13 -- 3 protection from the respondent's agent and being told that it was available on the premises he was provided with it. This of course implies that the employer was aware of the danger and of the availability of protection and could have supplied it, and that the applicant was aware of these things. There can therefore be no complaint of his lack of knowledge in that direction. After he received his specialist's certificate the appellant made an application for workers' compensation, but this was refused because it was required that he should have worked continuously for five years in an industry where the noise level would have contributed to the condition. Although he ceased to work for the respondent shortly after that tiine, he has since worked in similar positions in other employment, but always with ear protection. When the necessary period had expired he made a further application for workers' compensation. This was awarded him on 21 December, 1988 upon an assessment of 9.6 per cent loss of hearing. Soon after that he returned to his specialist who assessed his loss at 18.9 per cent, and upon reconsideration of his claim by the Workers' Compensation Board, his loss was determined at 26.7 per cent. A member of the Board suggested to him that he should consider changing his occupation. He issued his writ in this matter in November 1989 and of course was obliged to follow it with this application because without an extension of time his claim would be statute-barred. In order to support it, he must show that a material fact of a decisive character relating to his right of action was not within -- 6 of 13 -- 4 his means of knowledge until after November 1988, that is the year before the issue of his writ. Learned counsel for the appellant in his address attempted to lay great emphasis upon the appellant's youth in 1980 and 1981 when he first discovered his injury. Emphasis was also laid upon his claim, made for the first time under cross-examination in the application, that when he spoke to the personnel officer of the respondent at the time, the latter was of the opinion that it was unlikely that the appellant would have had industrial deafness and he suggested that in any case there was nothing that could be done about it and it was extremely difficult to prove; and that his attitude was one of "forget about it". However, he also admitted that he was not happy about that advice and indeed did pursue workers' compensation. These two points advanced by counsel suffer from the need to show that the appellant's lack of knowledge of the material points continued until as late as November 1988. He was then some twenty-eight years of age so that he cannot rely upon any suggestion of youth or immaturity which may have affected his view of matters at the earliest stages, though even this is not satisfactorily made out. He was clearly not influenced by the remarks of the personnel officer and on the contrary appears to have pursued jhis workers' compensation rights persistently and actively, even to the point of having the original determination reviewed. He can certainly not suggest that he accepted as late as November 1988 that his hearing was impaired only to the extent of about ten per cent. -- 7 of 13 -- 5 By way of formulation of his essential points, he claims that it was only in the twelve months prior to the issue of the writ that he discovered (a) that his hearing loss is much higher than 9.6 per cent; (b) that his hearing loss is such that he is advised to consider a change of employment; and (c) that in 1977 there was a considerable body of occupational safety literature, pamphlets and the like warning heavy industry employers of the dangers of industrial deafness to their employees if they were not protected from excessive noise. The first ground has already been substantially considered. This issue was decided against the appellant by the learned Judge at first instance who correctly found that "by February 1981 at the latest, he knew that he had a substantial problem and he at that time was blaming his employer for it" . It was not necessary that the appellant should know the percentage loss assessed by the specialist but rather the extent to which he was affected by the problem. As it has been remarked in any case he did not accept the assessment, but even that is not really to the point which is that he knew that he had suffered a significant injury. It is true that the court will not visit a penalty upon an applicant to an application of this nature who, erroneously believing his injuries to be slight, commendably refrains from leaping into litigation: Royal Northshore Hospital v. Hudson (1986) 7 N.S.W.L.R. 283 at 287; Byers v. Capricorn Coal Management Pty Ltd [1990] 2 Qd. R. 306 at p. 308; Do Carmo v . -- 8 of 13 -- 6 Ford Excavations Ptv Ltd (1984) 154 C.L.R. 234 at pp. 256 and 258. However this is a matter of degree and the benign understanding by the courts in such cases cannot be prayed in aid when it is not deserved. Here the appellant's own knowledge of his hearing loss caused by his work and the clear evidence of his employer's dereliction of duty should have told him that his loss and potential loss were such as to make his inquiry from a solicitor as to his rights both worthwhile and reasonable. As to the second ground, that is, the desirability of his changing employment, it is true that on the evidence he did not discover this until after November 1988. Moreover if it is correct it would enlarge his damages. However his loss as he knew it prior to November 1988 should have been sufficiently substantial as to agitate his inquiry from a solicitor, which would have led to appropriate action. That being the case, his unawareness of a further fact which might have enlarged the damages even further does not assist him. If the knowledge which he had should have caused him to take appropriate action, it matters not that there was another unknown fact which if known would have caused him to do so: Taggart v. The Workers' Compensation Board of Queensland [1983] 2 Qd. R. 19; Moriartv v. Sunbeam Corporation Limited (1988) 2 Qd.R. 306). Further, it is doubtful whether he would have acted differently even if he knew of it. His third ground, that is, his lack of awareness of the body of information on the subject of safety available to his employers, comes within the same principle and is subject to the same observations. The information which he had or which he -- 9 of 13 -- 7 should have had was more than adequate to provide him with an expectation of success in proving his employer's liability, or at least it should have provoked him into making an inquiry about it. Even if it were true that he did not have knowledge of the information available to the employer that is irrelevant because on the information which he had, it should have reasonably been obvious to him that there was a likelihood that his employer would be liable to him. The knowledge of the employer as to the danger and of the means of overcoming it, both of which are necessary to the employer's liability - Vozza v. Tooth & Co. Ltd (1964) 112 C.L.R. 316 - were clearly implied by the employer's possession of the ear protection which the plaintiff received as soon as he asked for it. The additional fact of the availability to the employer of information upon the point is no more than an added fact by way of fortification to the proof which the appellant already had. Again it is highly doubtful whether if he had knowledge of this point he would have acted any differently. It is not of such significance in these circumstances as to cause any change of opinion as to whether the bringing of an action would be worthwhile by enlarging the chances of success. The learned Judge at first instance failed to deal with this point although it is said to have been argued. That is somewhat surprising since there is no ground in the notice of appeal which raises this point specifically. However it is understandable that if it were raised in argument, it may have been so pale and the conclusion so obvious that it escaped mention in the reasons for judgment. -- 10 of 13 -- 8 It is correctly argued that because the section speaks of a material fact which "was not within the means of knowledge of the applicant", it is necessary for the court in its evaluation of all these matters to have regard to the subjective factors applying to the plaintiff in the relevant period. However, he is still expected to have behaved reasonably within those subjective circumstances: Do Carmo v. Ford Excavations Ptv Ltd (supra). This is one of the areas in which the appellant's counsel attempted to rely upon the subjective factors consisting of the applicant's youth and his "isolated location in North Queensland". But Hay Point is close to Mackay which is well served with solicitors who are no strangers to litigation. Again it must be observed that the appellant did not shrink from pursuing his rights in general, and his disposition is manifest by his very correct pursuit of his workers' compensation claims. Whilst this does not predicate knowledge of his common law rights, the point of the reference is that it would be wrong to characterise him as a person who, generally ignorant of the affairs of the larger world by reason of his youth and his isolation from the metropolis, is reluctant to inquire as to his rights. Further, as it has been remarked, on the evidence that certainly cannot be said of him in respect of his position immediately prior to November 1988. It might be added that knowledge of these facts could easily have been ascertained by the appellant through his solicitor had he sought suitable advice at that time. It is argued that it is not valid to take this into account because there was no obligation upon him to seek advice unless he believed that he had -- 11 of 13 -- 9 a good cause of action; and that he could not believe it unless he knew this particular fact. While it is true that if the appellant's lack of knowledge of a particular fact would justify his not pursuing inquiry then in those circumstances it does not work against him that inquiry would have revealed that fact. But that does not mean that an applicant such as the appellant can excuse himself of lack of knowledge of a material fact if the facts which were known to him should have caused him to seek advice. It is clear, and it is not argued to the contrary, that he could easily have discovered the additional facts referred to by consulting a solicitor. If it were essential to the present case, then the plaintiff's knowledge of the extent of his injury, that it was caused by his work and that his employer was responsible for failing to provide suitable protection should have been enough to require him to make further inquiry from a suitable source in respect of any other necessary technical matters of proof and of the full extent of his loss. After all, the section refers to a fact of a decisive character which was not within the "means of knowledge of the applicant". By s. 30(d) (ii) this is so defined as to require him to have taken all reasonable steps to ascertain the fact. See Dousi v. Colgate Palmolive Ptv Ltd (No. 2) (unreported - New South Wales Court of Appeal 12 May, 1989). Accordingly, even at best for him, if these matters relied on by him in his application were necessary to his decision as to whether to commence proceedings, they were within his means of knowledge though they may not have been in -- 12 of 13 -- 10 his actual knowledge. As a result he would have failed in those circumstances also. The appeal should be dismissed with costs. -- 13 of 13 --