F J WALKER LIMITED v WEBBER [1989] NSWCA 76

F J WALKER LIMITED v WEBBER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER JA and Hope AJA 6 October 1989, 16 November 1989

[1989] NSWCA 76

LIMITATIONS — extension — personal injury — material facts of a decisive character — plaintiff's knowledge of — whether a reasonable man would have known the nature and extent of the injury — whether a reasonable man would have commenced proceedings earlier — held: He would not. Appeal (from Carruthers J) dismissed. Ditchburn v Seltsam Ltd, Court of Appeal, unreported, 19 September 1989 applied. LAW REFORM — limitation of actions — desirability of reform of s57, s58 Limitation Act 1969 — criticism by Meagher JA of the provisions as unintelligible and unable to be applied in a sensible, consistent manner. WORDS AND PHRASES — "extent"; "material fact of a decisive character''. Limitation Act 1969, s57, s58. ORDERS Appeal dismissed with costs.

Kirby P I agree that Carruthers J was correct in his conclusion in this case.

For the reasons additionally given by Meagher JA, I do not believe that the respondent knew of the "extent" of his injury in the time when he first was injured and began to suffer intermittent pain. As I said in Ditchburn v Seltsam Ltd, Court of Appeal, unreported, 19 September 1989; some meaning must be given to the word "extent" in the Act. It cannot be wished away. Nor do I believe that a reasonable man in the respondent's position would have known the "extent" of his injury at that time.

Finally for the reasons given by Meagher JA, I do not consider that a reasonable man, knowing what the respondent knew, would earlier have instituted the common law proceedings which he was eventually prompted to launch within three months of discovering that a spinal fusion would be required. Then, at last, he knew the "extent" of his personal injury that thereafter he acted with proper speed.