DOUSI v COLGATE PALMOLIVE PTY LTD (NO 2) [1989] NSWCA 68

DOUSI v COLGATE PALMOLIVE PTY LTD (NO 2)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, Hope and MEAGHER JJA

1 February 1989, 12 May 1989

[1989] NSWCA 68

LIMITATION OF ACTIONS — personal injury case — extension period — statutory requirements for — material fact of a decisive character — applicant's knowledge of relevant facts — whether ought to have brought action within period plaintiff exposed over ten years to repetitive assembly line work — consults solicitors about workers' compensation unaware of alternative systems of work to avoid or reduce risk of repetitive strain injury — appointed union representative — representations made to employer insubstantial changes to work practices — upon threat of dismissal for prolonged compensation absences worker consults solicitors again — advised of viable cause of action in negligence — seeks extension of time under Limitation Act 1969 ss58,59 — extension granted by Master — disallowed on appeal by Allen J — further appeal (by leave) to the Court of Appeal — held: (1) (Hope and Meagher JJA; Kirby P dissenting) Because on the evidence the plaintiff had not taken all reasonable steps to ascertain, within time, the material fact of a decisive character, namely the existence of an alternative system of work which gave rise to an action in negligence; (2) (per Meagher JA; Kirby P contra, Hope JA dubitante) Because ignorance of the existence of an alternative system of work was not a material fact of a decisive character. Do Carmo v Ford Excavations Pty Limited (1983-84) 154 CLR 234 discussed; Brunton v D O'Bryan and Co Pty Limited, Court of Appeal, unreported, 4 August 1988; (1988) NSWJB referred to. PRECEDENT — binding rule — dissenting judgment in the High Court — status of — Federation Insurance Ltd v Wasson (1987) 163 CLR 303, 314 referred to. Limitation Act 1969 ss57,58.